Professional Documents
Culture Documents
Spring 2004
Conflict of laws is the area of law that resolves disputes containing a foreign
element.
The question of divorce and marriage under Canadian law starts to come under
the Charter, ultimately comes before SC to decide inter-provincially.
1) JURISDICTION
If the party lives in Texas and has filed in Texas judgment can be enforced, but
if the partys assets happen to be in BC should the Texas judgment be
recognised and enforced in BC?
Historically there were a set of rules to determine this matter. However this body
of law in the last 10 years (starting with series of constitutional cases) has been
departed from. The trend has changed from one of non-recognition, to one of
full faith and credit where judgments of foreign courts (in particular US) is
to give recognition. Now it is bad advice for example to stay away from Texas
maybe need to go there and defend that case. Therefore is a signficant
developing area in this context.
3) CHOICE OF LAW
If decide that there is juridiction, and secondly decide that the forum is the most
appropriate jurisdiction, then need to decide WHAT law is to be applied.
In this course, focus mainly on the areas of tort, ppty and contract.
Options:
a) Lex fori: law of the forum (where the case is being decided)
b) Lex loci delicti: law of the place of the wrong or infringement
c) Lex situs: law of the location of the subject matter (not so easy for things
such as copyrights)
CONSTITUTIONAL QUESTIONS
US has always had const Qs in matters of COLs. Came earlier as a separate
body of laws. UK was a unitary state and issues that came up before their courts
involved truly international cases - focus was largely on lex fori. Was primarily
wanting to protect interests of its subjects (its investments).
Why do we treat provinces of Canada like foreign countries? They are parts
of a whole Canadian jurisprudence should have taken more note of the US
situation. Instead they looked to the unitary context of the UK.
One of the difficulties of const cases Laforest J. wasnt careful to say that what
was being stipulated was to be limited to inter-provincial matters. Inter-provincial
and global lines are blurred difficult to see how far to extend the laws in an
international case. Trend to interpret more globally.
7) THEORETICAL CONSIDERATIONS
B THEORY
[Chapter 2: pages 7-26]
Fair to say that in Canadian and Commonwealth terms, there has been a
reluctance to give a theoretical basis to COL more so a conceptual, analytical
approach. However, this may be changing. Real and substantial connection
has been increasingly used. Has been a greater emphasis in US courts of the
theory.
Judges often fall back on comity conceptual analysis doesnt significantly take
into account govt interests. Real emphasis on limits in terms of rules that one
can apply.
C CONFLICTS AND THE CONSTITUTION
[Chapter 3 pages 27-55]
Looking at a federation we need to ask whether and how rules relate to the whole
- Is there a role for federal legislation? Is there an overriding role?
Facts
Contractual arrangement in relation to the Churchill Falls river, development of
hydroelectric facility by Hydro Quebec through subsidiaries, to produce cheaper
electricity for popn. Quebec found it didnt need all the electrical supply units and
decided to sell excess off to US at higher price. Said no, they wanted a 61-year
term (till 2030)
Extra-territorial effect = ultra vires enactment = unconstitutional
- NFL provincial legislation was passed whereby certain controls could be
imposed executively on the supply of electrical units generally in the province.
- Principal attack against this Reversion Act was that it interfered with civil
rights existing outside the province of NFL
- Ct noted that there is no prohibition on province of passing legislation that
would expropriate public ppty within its boundaries
- However what happens when it has an impact outside of the province?
Did the derogation of civil rights outside of the province mean the enactment was
ultra vires?
Appellants:
1) Argued that while all that would be taken under the Act is physically situated
within the province of NFL, the effect would be to destroy lawfully acquired
civil rights outside the province any provincial legislation that has
extraterritorial effect is ultra vires
2) Argued the Reversion Act was aimed at the destruction of the rights of HQ
under the power K, rights that were situated outside of NFL. The true
purpose and intent of the legislation its pith and substance, governs the
issue of territorial limitation just as it does in other consitutional cases
involving division of powers.
The Act is beyond the legislative competence of the province of NFL
Applying to Churchill Falls: Reversion Act in pith and substance was aimed
directly at the HQ facility, and ppty and civil rights outside the province.
HELD: Effect was to destroy civil and ppty rights outside the province
(using the broader pith and substance approach)
Where the P&S of the provincial enactment is in reln to matters which fall within
the field of provincial legislative competence, incidental or consequential effects
on extra-provincial rights will not render the enactment ultra vires
Where the P&S of the enactment is the derogation from or elimination of extra-
provincial rights the, even if cloaked in proper const form, it will be ultra vires
Lord Atkin a colourable device will not avail.
It was more than an incidental or consequential impact (prima facie ultra vires).
However also held that although it effects extra-provincial secured creditors, it is
incidental in nature, and in accordance w Ladore, would not be grounds for
declaring the Act ultra vires.
Location of Civil Rights
Finding the Act was aimed at the rights of HQ, must also show the K rights
attacked are in Quebec, beyond the jurisdiction of the legislature of NFL
i.e. Next issue is determining where the rights are situated in the contract
- More difficult Q in general terms. Easy in this case bc K itself stipulated that
rights under the K would be situated within the juris of Quebec and choice of
law clause said it would be Cts of Quebec that would adjudicate any disputes
- General rule: Rights under Ks are situate in the province of the country
where the action may be brought
If rights were located within the province of NFL, even though the company
affected was extra-territorial, then enactment would not be ultra vires.
When the Ct looked at where something occurred, or where rights were situated,
they looked at it in a constitutional context, but used conflict of laws rules to
provide the answer:
- Choice of law rules distinguishing laws relating to the validity of marriages
(where is a marriage celebrated, domestic relationship created)
- Locating a tort (Moran case), some cases have provoked speculation that
choice-of-law rules may have achieved constitutional status
- Interpreting provisions of the Indian Act the case of Williams
This case cautions that this automatic use of conflicts rules wont nec always be
the case
Facts: Looking at situs of ppty the particular context related to the immunity
from taxation and execution of judgments against an aboriginal person on an
Indian Reserve under and Indian Act
Q for Ct was whether they were to apply the conflicts rule to this case
- Cautionary word to tell us that the Ct today may not always be willing to take
advantage of set COL rules, when in a different context.
- Is reasonable for the general purposes of conflicts of laws, however had to
enquire as to the utility for the purposes underlying the exemption from
taxation in the Indian Act
- Ct also said were dealing with a different context which will nec bring about
diff policy considerations that dont come up with debtors or even employers.
Should not be bound by this.
- If use too widely, may have consequence that have to use this in a set way
(cant change the conflict rule for fear of upsetting other areas of law)
conflict law will be locked in
Facts:
Concerns the recognition to be given by courts in one province to a judgment of
courts in another province, in a personal action brought to the latter province at a
time when the D did not live there.
Issue: Could judgment of Cts in Alberta be enforced against the appellant in BC?
Also:
- Biggest downfall in the Churchill - to what extent were they talking ET?
- How far should the principle in Morguard be applied in a truly intl situation?
Courts Analysis (La Forest J):
Interprovincial matters
- Obvious intention of the Const is to create a single country one of the
central features of the Const Act 1867 was the creation of a common market.
Promotion of mobliity, common citizenship, social and economic stabilty.
i.e. Need for cooperation between provincial courts in terms of enforcement of
judgments
Various const and sub-const arrangements and practices make
unnecessary a full faith and credit clause that is used in US and Aust where
each state will give full faith and credit to the judgment of another:
1) Judges are federally appointed and federally paid. Therefore is little risk
that one judge would be more qualified than another (quality and
consistency of judgments)
2) SCC as final court controls all provinces within their respective units
3) Canadian lawyers all adhere to the same code of ethics
4) Proliferation of interprovincial law firms
Morguard corrected this posn (wasnt inherent until then)
Where other areas of law are looked at, in particular a case where there is an
injunction to move assets to another province to avoid jurisdiction, rules should
recognise that they are entities within a whole and functions should not be
defeated by the fact that they can turn to another jurisdiction.
A person should not be allowed to avoid legal obligations arising in one province
simply by moving to another province.
La Forest says there some limitations and qualifies full faith and credit
- Has to be weighed against fairness to the defendant
- Courts in one province should give full faith and credit to judgments given by
a Ct in another province so long as that Ct has properly or appropriately
exercised jurisdiction in the action.
- Meet demands of order and fairness to recognise a judgment given in a
jurisdiction that had the greatest or at least significant contacts with the
subject-matter of the action
- Proceedings may have been brought where has no relation to the situation at
hand and here a qualificatio has to be made
Ct also takes note of the fair process but every province has a fair process
(only look at this if an international case)
TEST:
Whether there is a real and substantial connection between the petitioner and
the country/territory exercising jurisdiction
Even if civil procedure rules give jurisdiction, if rules are worded too broadly and
can be read where there is no RSC, then will not be allowed constitutionally.
In the case of service outside of the issuing province, service ex juris must
measure up to consitutional rules (ie RSC).
- Some say RSC is all consuming: if have RSC then will be the most
appropriate court
- In Beals the Ct says RSC has to be SUBSTANTIAL (emphasis on this fact,
ie it encompasses forum conveniens)
- Historically, FC gives more weight to the convenience of the parties and is
focussed on particulars of case
Possibility raised in Mortguard La Forest POGG could cover this where fed
legislation and inter-prov and arguably intl context
- Applying reg constitutional principle: supremacy to the FEDERAL law
Suggests application of const will extend from inter-prov to the intl context
CASE 4: Hunt v T&N Plc (1993)
Effect: Cant sue outside of Quebec unless you proceed without the right of
discovery (which is impossible!). Quebec statute is an unconsitutional in the way
it impedes litigation. Does not respect principles of order and fairness as
reqd by Morguard
Reasoning in Hunt
- Raises issues as to whether doctrine propounded in Morguard is of const
nature and whether it applies to the case
- Morguard stated need for a greater degree of recognition and enforcement of
judgments given in other provinces. But a court must have reasonable
grounds for assuming jurisdiction. There must be a RSC to the forum that
assumed jurisdiction and gave judgment
- The discretion not to exercise jurisdiction must ultimately be guided by the
requirements of order and fairness, not a mechanical counting of contacts
or connections
- Fed Parl has power to legislate respecting the recognition and enforcement of
judgments. This is related to the powers contained in the POGG clause
- Subject to these overriding powers, provinces can legislate, subject to:
- principles in Morguard and
- the demands of territoriality as expounded in Churchill Falls
CASE 6: Tolofson v Jensen (1994)
Choice of law case: lex loci delicti (law of the place of the wrong)
When dealing with a wrong (esp a tort), you apply lex loci delicti
- In so far as interprovincial sitns, the maj said that it is an absolute rule
- In so doing, Ct emphasises principles from Mortguard therefore, may well
have some const dimension.
- Argued Tolofson wasnt stipulating the rule constitutionally, leaving it open for
a province to change the legislation
- Amendment depends on interpretation of the ruling of the case as either:
- a rule of conflicts, which would bind all judges
- OR viewed with this const dimension which would prevent any legislative
amendment
- Equivocal: La Forest states the approach suggested also has the advantage
of unquestionable conformity with the Constitution. Hasnt really been
demanded or decided either way concretely and is left for further comment
- Constitutional problems referred to as a backdrop
- Q lies in the fact whether provincially they can change the rule in Tolofson
element of uncertainty
- La Forest saying suggestion conforms with consitutionally, but the court has
only discussed the constitutionality as a backdrop
SUMMARY OF CHAPTER
1) CONSTITUTIONAL DIMENSION
Morguard (1990)
- Is a question mark
- RSC requirement in terms of enforcement interprovincially
Hunt (1993):
- Provincial legn constitutionally inapplicable in the interprovincial context
- Didnt extend to the international context
- Internationally a province can legislate, whereas in a interprovincial case they
cannot
- Cant pass legn that would impinge upon the rule stipulated in the Morguard
case interprovincially a judgment of a province is enforceable in another
province if there is a RSC.
- After Hunt more considerations have to be made as to order and fairness
2) NO CONSTITUTIONAL DIMENSION
- Uncertainty as to how far these series of cases, esp Mortguard, were to apply
to cases of intl context If they were to apply, what was the const dimension
- On Dec 18, the majority (Major J) RSC and the principles of Mortguard are to
apply to truly intl context
- Enforcement of Florida, Miami case in Ontario
- Dissenting judge: 3 of them, divided up into Binney, Ecabuchi no problem
with applying RSC test internationally, BUT defence of failure to meet
principle of natural justice and LeBel
- LeBel J provided an interesting perspective said if we are to liberalise the
rules of enforcement by extending Mortguard to cover truly intl sitns, then we
must firstly modify the RSC test to give due weight to protection of Canadian
defendents specify the restrictions in a foreign context in addition, need to
build up defences natural justice etc.
- Need a more real RSC. More careful and stronger defences to that. Majority
didnt change any of the defences
- Should we legislatively build up the defences (2 ties interprovincial and intl)
- J Lebel thought this was essential
- Legislatures may deal with this if they wish
Tolofson (1994)
- Not a constitutional stipulation
- Acknowledges Cts below the SC have not raised constitutional matter, and is
only a backdrop to other issues
- Leaves open for provincial legislature a choice of law
- Judges however, are bound to this precedent in terms of COL rules
- i.e. nothing to prevent legislature enacting a statute that has choice of law
provision in opposition to the decision made in Tolofson
Potential use of Charter s7 has been left open in Morguard and Beals (only
that it would not be a shield to protect from enforcement of financial judgment
of a foreign jurisdiction)
All these judgments emphasise comity and as such, the underlying theory in
COL in Canada
D DIVISION OF DEFENCES: PUBLIC POLICY & PUBLIC LAW CLAIMS
[CHAPTER 4 pages 57-118]
In Beals, LeBel wanted an overall category to deal with matters that didnt fall
within specified categories.
DEFENCES
1) Penal law
- Relates to sitns where a state is legislating in a way that would seek to bind
extra-territorial persons if it were applied extraterriorially
ie. to extend jurisdiction beyond borders
- Would this be a penal law or not, given that one state will not enforce another
states penal laws
- Found the measure of recovery was the same amt expended in the clean-up
- In characterising the environmental statute, wouldnt categorise as penal law
only used to reimburse and compensate for what the co. had an obligation
to do (clean up), not a punishment or directly designed as a deterrent
2) Revenue law
- Ct again said it wasnt hadnt precisely been defined, but was not made to
raise money for govt, was for the reimbursement
Why should we have this other category, shouldnt it be wrapped into public
policy?
1) NATURAL JUSTICE
- NJ head relates to procedural issues not prepared to extend the principle
to matters that had occurred prior to the court (earlier proceeding in nuisance)
- Ct said this would not be looked at in terms of NJ offence. Indications were
that the US court had looked at this issue, and at best might be categorised
as US court making an error but Ct said error of law was not a ground for
refusal of enforcement
- NJ only concerns procedure before and during the foreign courts judgment,
not matters that preceded this judgment
CASE 2: Beals (2003)
3) Le Bel took the most expansive posn in reln to NJ: makes a policy stmt to say
that if you are going to expand or liberalise on the jurisdiction side (from
interprovincial to international), then you need to also expand the defences or
exceptions category liberalising the jurisdictional side while still keeping
narrow defence categories on the other side would not be coherent
- In particular Le Bel thought the RSC needed to be clarified and more detailed
info as to the jeopardy of the D had to be given when proceeding in a foreign
court (but this was rejected by the maj decision)
- Put the burden on the P on the foreign action to est the LS that it orginated
from is a fair one (again rejected by maj burden to show it was unfair)
2) PUBLIC POLICY
- Firmly established area of law
- Acknowledged by the Maj in Beals that the foreign law had to be contrary to
Canadian concept of justice and morality
- Mere difference of law is not enough, has to go to core of society
- In Ivey said it was something of morality, of fundamental values
US vs Canada: Jury awards
- In Canada not used that much in civil proceedings (only in defamation and
other limited cases). The right to jury is enshrined in US const law and juries
are largely uncontrolled (there is a process to appeal)
When one looks at public policy, Beals made 2 comments:
1) Quantum itself, is not a bar to enforcement
2) BUT overlapping btwn PP and NJ, if quantum seems to be arbitrarily imposed
or arbitrary in quantum, then it may succeed as a claim to defence
Le Bel was also along this line: not quantum per say but an absence between the
amount given or the harm caused, or conduct deserving punishment and what
was given
Policy/process mix: If you are going to do business in the US, you should be
aware under the system that huge damages can be awarded (different than in
Canada) play by the rules if you want to operate there.
Debate over extent to which, when looking at public policy, we should take into
account intl stds OR should there be a focus on national standards
e.g. Civil Code of Quebec standard is: manifestly inconsistent with public order
as understood in international relns
Facts:
Lloyds has unlimited liability and gets contributions from Names who guarantee
to underwrite. Were large claims due to envrionmental asbestos cases and
Lloyds were forced to call upon contributors for more money. Eng could make
new rules that would bind contributors (all around the world) to the Society the
contributors knew all this upfront K stated would be Eng jurisdiction.
Enforcement was to be made in Ontario. But was it contrary to Ontario law? Or
unenforceable as contributors not given adequate info.
1) Enforcing forum may have a mandatory rule, so despite any choice of law
rules, a particular enforcing forum may stipulate that legn may apply to all Ks
or proceedings as a prereq to enforcement
e.g. Applies to all shipments in a Canadian port
2) Mandatory rule which states that a specific foreign law, which bears a
special connection has to apply
But if it is in conflict with own strong policies, and the relevant law is within the
constitutional auth of the sister province, PP exception can be invoked to exclude
the claims or defences
- But situation rarely arises, most states have similar moral foundations
3) PENAL LAWS
- Extension of foreign sovereignty: no other country has the right to execute the
penal laws of another.
- Some states claim a territorial auth to regulate the same events or activities,
as in the case of transnational crimes conflicts criminal jurisdiction
- Canadian Criminal Code: Cts have auth over any crime that bears a RSC to
Canada, whether or not territorial jurisdiction is also available in another state.
(Similar to Morguard test)
Ivey: View of punishing the party responsible (not restituionary). The fine went to
the state, ie penal, but state was getting money as reimbursement of the amount
they had spent
4) TAX
- Ultimate eg of public law state asserting its public policy tax policy is
reflective of social and econ policy w/in a particular state
- Process of change going on in this context: Many ppl today who would say
that the taxing juris is so relevant to provn of services in the community that
one should now begin to enforce taxation statutes of foreign juris (essential to
the working of every community).
- Provn of services is for the society in general a more universal approach
like environmental concerns
General rule: No country ever takes notice the the revenue laws of another
Indirect enforcement
Stringham v Dubois
- Deceased was resident and domicile in Arizona
- Strong finding that she was a resident and domicile (strong desire to live in
Arizona) real and substantial connection to Arizona
- Had an US executor, US levies estate duties
- Left an Alberta farm to her niece, total value $9.4m
- Executor was apportioning US state tax and wanted to take tax - $149,000
apportioned contribution to state tax
- HELD: Not allowed, would be indirect enforcement of US tax
- Not distinguished bc it was a piece of land in Alberta, was a matter of policy.
- Strong argument for enforcement: becomes a double windfall for niece, and
other beneficiaries/trustee are burdened with more of the share of the tax
- Tax was estate duty of a person domiciled in Arizona. Alberta farm was tax
free from US state tax
Characterisation
(a) LeBel: expand your enforcement, but also more stringent in terms of defences
OR
(b) Should we not challenge the defences we have now? (Ivey case, tax)
E DOMICILE AND RESIDENCE
Chapter 5
1) DOMICILE
Facts
- Frequent flyer case: Left NZ bc of breakup of 1 st marriage (NB reason can be
important), travelled the seas, journalist in Vancouver, NZ embassy in States,
moved to Ottawa, son born, separated but went back and forwards from
Quebec (but were regional excursions and not relevant in this context)
- Although he lived and worked in a no. of places, he had a room where he
kept his things and was his mailing address
- Met Taylor and lived in her apartment in Ottawa, went to Washington with her
for work, he was transferred to Florida and died there
2) RESIDENCE
Test: whether it can be said that Canada is the palce where the applicant
regularly, normally or customarily lives
- Court identifies a series of factors specfied in the determination:
[QUALITY of the connection with Canada]
- Is the connection more substantial than that exists in any other country?
- Did the person have roots here, visits or return?
HELD: Despite acquisition of formal indicia (drivers license etc) quality of
residence in Canada is NOT more substantial than the quality in HK
- Context, in this case was very important in reaching this conclusion
Domicile of Corporations
CASE 3: Natural Trust Co. Ltd v Ebro Irrigation and Power Co. Ltd
Recap:
Remembering earlier principles esp in relation to:
- Consitutional validity on an inter-provincial basis
- Beals: Internationally, constitutional issues are not of concern
- depended on absence of provincial or federal legislation under s91
residual auth POGG
- consistent with Hunt (Quebec code was inapplicable, not ultra vires)
JURISDICTION IN PERSONAM
Juris simpliciter
- The existence of jurisdiction
- Can the court take jurisdiction under:
- Provincial/rules
- Common law (RSC)
- Inter provincial/Constitutional element (RSC)
If there is jurisdiction:
1) Should jurisdiction be taken - principle of forum non-conveniens
(Anti-suit injunction)
2) Is the party a jurisdic entity
a) JURISDIC ENTITY
Incorporated entities
- Corporation sole Crown, Bishop
- Corporation company
- Unincorporated bodies/institutions Look to the members more individually
- Other jurisdictions have taken a broader meaning of legal personality for
juristic entities (can have a legal personality) Bumper case
CASE 1: Success Intl Inc v Environment Export Intl of Canada Inc (1995)
Facts:
Defendant outside of the jurisdiction, made subject through service ex juris
- P (Success) NY co and D (EEI) Ontario co entered an Ag re: tire
manufacturing equip
- Success complained about perceived slowness on part of EEI in loading
equip into containers in Ontario
- K provn: All disputes to be resolved by private arvbitration cf resort to the
courts decision not honoured by the EEI
- Plaintiff took the arbitration to Ontario to be enforced
HELD:
In order to be a party as plaintiff (even though it was an incorporated party)
under provincial laws it had falied to meet the registration requirements
that was necessary for it to be a party.
Facts:
Idol from a temple ends up in London where it is purchased by Bumper in good
faith. Temple and Govt of India says they want it back.
[Oritz case: NZ tried to enforce legislation attempt to extend policy ET]
Issues:
1) Does the particular party have status or recognition as a legal person in the
country where it exists (jurisdic entity under the law of that country)
2) If have JE, would the forum accept that (an issue of comity)
What did the Hindu law say in regards to whether any of the claimants
preceeding on behalf of the temple have title superior to Bumper?
When one jurisdiction is applying the law of another jurisdiction, the court
itself cannot simply enforce that law. The foreign law is treated as a
question of fact which must be proved in evidence.
- Court can questions or raise issues with experts, cannot conduct and rely on
its own researches into foreign law
- In the absence of any contrary evidence, assumed same as English law
- If there is concliting evidence, Ct is bound to look at sources to decide
HELD: Under Hindu law the temple was a juristic entity and the third
claimant had the right to sue and be sued on behalf of the temple
Eng law would not usually recognise corporations as having legal personality.
BUT Eng Cts would recognise in this case according to principles of comity
CASE 4: International Assn of Science & Tech for Devt v Hamza (1995)
- Case about societies under Swiss law
Overlap between jurisdiction (RSC) and forum non conveniens
Key difference:
Public law (govt scheme to recover under public policy) vs Private law
(temples attempt to recover own goods)
- NZ govt presence moved it into an attempt to legislate extraterritorially
COMMUNAL OWNERSHIP
e.g. indigenous peoples
- Australian dissenting judge suggested the CL would recognise cultural
heritage and knowledge of a group
G CIRCUMSTANCES JUSTIFYING ASSUMPTION OF JURISDICTION:
THE EXISTENCE OF JURISDICTION OR JURISDICTION SIMPLICITER
[CHAPTER 6: pages 194-268]
Issue: Was the D within the jurisdiction at the time of the service?
HELD: Even if D was fleetingly in UK it was allowable for a writ to be served
- Even as a temporary visitor you can be served
- Uncertainty: What are the boundaries of the fleeting visit?
- Truely transitory visit e.g. transitting through an airport
- If youve been through customs check, legally you are in the jurisdiction
- This is the type of area where this sort of question could arise
When you have a website and are selling material outside of Canada, are you
carrying on business in Texas if:
a) Website is accessible from Texas
b) Have interactive conversation from Texas
c) Actually sell an item to someone form Texas
- US authorities said you would be subject to Texan jurisdiction for allbut then
realised that this was silly!
- Now just say if you have sold something into Texas, then they are subject
to Texan consumer protection laws (same in Manitoba)
- What is more difficult is being interactive because there is not sale, it will
come up as something like defamation
- HC of Australia enabled jurisdiction for one of its citizens defamation in New
Jersey Dow Jones argued it was uploaded in NJ, but HC said the impact
was in the state of Victoria, Australia have jurisdiction
HISTORY
(i) England
- Eng legislation let courts have ex juris powers to assume jurisdiction even
when the D could not be found in England and served there
- Subject to some limits - link between cause of action or parties and Eng
(ii) Canada
- Same position in BC and Ontario and Alberta
- Most provinces have used Eng rules AND Morguard case
HELD: Court came to conclusion that it doesnt want to have mechanical rules
- Any jurisdiction that is substantially affected, jurisdiction where it is
reasonably foreseeable as to who would be injured by person who uses
the product interest to protect people in its state
- Sask does have jurisdiction
Facts:
- Muscutt bringing action in Ontario for damages for pain and suffering, loss of
income and business opportunity caused in accident that occurred in Alberta.
Ds were from Alberta, one moved to Ontario
- Ontario court rules s1702(h) provide for ex juris service for damage sustained
in Ontario
OR
BUT How do you deal with principle forum conveniens (Teja case took an
approach more inline with this principle)
1) Teja case
- Strong emphasis on traditional rules
- Discussion as to whether RSC test supplemented or supplanted the
traditional rules Ct gave narrow interpretation to RSC test
- More focussed on supplementary role a limitation in the sense that the
jurisdiction is limited by the RSC test
- Taking this approach, would favour a D on the receiving end of the action
- Arguably, closer to personal subjection approach cf admin of justice approach
2) Muscutt case
- Didnt take away from traditional grounds, but saw RSC as more supplanting
the traditional focus
- Would acknowledge that RSC is a limitation but utilised it in an expansive way
- Conclude that it would benefit the plaintiff (continuing harm was a RSC)
- Whether looking at:
1) Administration of justice perspective: At jurisdiction simpliciter level, is it a
reasonable place to litigate
2) Between the parties approach (similar to US due process clause): Where
would a P reasonably contemplate whether he or she would be sued
RSC is not defined and has to be interpreted flexibly. However there is a need
for some sort of clarity and certainty which has to be balanced against flexibility.
6) Reciprocity
- Ontario judgment would be enforced elsewhere, but also need to contemplate
a reverse of the action i.e. domestic D sued in sister provinces
- Reciprocity more internationally? Beals case suggests intl movement in the
area, but how does one intepret things in this area
8) Comity
- Should consider the standards of juris, recog and enforcement
- In interprov cases, same standard applies within Canada, moreso for intl
Held: Cannot accept the appellants argument that the RSC, as in Morguard
and Hunt, is an additional criteria in determining jurisdiction of Quebec Cts
- Not additional criteria, it is subsumed under the provisions listed (much like
Furland and Teja case) and if these are met then there is a RSC
- Ct goes on to note under aspect #2 offers a counterbalance to a potential of a
broader inqury of jurisdiction simpliciter (same as Muscutts use of forum
non conveniens as a counter)
- In relation to consititutional case, a RSC is an imperative only assume it
when it exists. It was interprovincial and noted interprovincial comity
- Perhaps in conflict with Beals
- Constitutional dimension from Morguard: The Ct noted the const
dimension, but said it must always be remembered that these
relationships were interprovincial (Morguard and Hunt)
These should be seen as interprovincial cases
CL requirement for GOOD ARGUABLE CASE
Furlan
- Relationship between pleadings and evidence was a little bit confused
- Are we simply accepting a Ps pleadings that a situation occurred in BC, or
putting it more broadly, that it occurred within rule 13(1) or jurisprudence
under 13(4). Or evidence be considered to what standard of inquiry should
we be focussed on.
- Normally facts for jurisdiction simpliciter will be pleaded and the issue
is just an intellectual exercise BUT there is an exception where material
before the Ct establishes that the Ps claim is tenuous
1) Armeno case
- Clear cut example, that nws complaince with 13.1 or 13.3, the case couldn't
succeed
2) Furlan case
- Damage caused by resin in plumbing systems negligent in the manufacture
of resins for that purpose
- Affidavit evidence was insufficent to say conclusively that there couldn't be a
case and there was no jurisdiction
3) WIC
- No direct sales into Canada, US broadcasters had corporate policies to not
encourage sales in Canada but evidence not conclusive
Furlan and WIC cf Armeno - inconclusiveness of evidence in Furlan and WIC
didn't rule out causation so good arguable case could still be met
Procedure: D raises this possibility and then P must meet this possibilty of
conclusiveness.
CASE 10: Craig Broadcast Systems Inc v Frank N Magid Assoc Inc
- Breach of fiduciary obligation
- Craig applicant for broadcast licence under CRTC engaged with Iowa
- Not successful before CRTC, found that Magid helped other applicants for
same license claimed Magid breached fid obligation to Craig
- Ct held Manitoba Courts had jurisdiction and it was forum conveniens
Jurisdiction test difference between JS and FNC
- Any RSC is sufficient to est jurisdiction, doesnt need to be the most RSC
- Extent of the RSC is to be examined when looking at issue of forum
conveniens
JURISDICTION SIMPLICITER
Looking for Authority for the Ct to hear the case. Might distinguish between:
HISTORY OF FNC
1) European Union
- Brussels convention which takes account of objectives and aspirations of EU
- Principle object is to avoid disputes between member states
- Rules drawn in detailed and rigid manner that predetermined most things
little room for discretion, possibly productive of injustice.
2) Common Law
- Jurisdiction is founded on the presence of the D within the jurisdiction and in
certain specified circumstances on a power to serve the D with process
outside the jurisdiction. However this is limited by principle of FNC
- Principle is directed against cases being brought in inappropriate jurisdictions,
does not aim to avoid all clashes like in EU
- Flexible, responsive to particular cases and responsive to finding best soln in
terms of the most appropriate place for proceeding to be heard
- Dependant on all Cts applying the same broad rules and using the same 2
weapons:
1) Stay of proceedings (by the Forum Ct itself)
2) Anti-suit injunctions (One forum saying persons over which it has
control should not file elsewhere)
Must take into account convenience of parties, but must realise its not just
pure and simple convenience by itself: look at appropriateness for the
parties in this case
Burden of Proof
- General position: burden is on the defendant
- In the context of P asking for Ct to take jurisdiction simpliciter, and the D
asking for a stay of proceedings
1) Stay of proceedings
- Ct asked to stay proceedings that have been brought in that jurisdiction on
the basis on the notion of the D, that the jurisdiction is not the more suitable.
- Ordinarily a Ds motion, and has that burden to meet
2) Anti-suit injunction
- Ct saying persons over whom it has control, are not permitted to litigate there.
- Much cleaner and more consistent with comity if went to foreign jurisdiction
and ask foreign ct to stay its decision. But doesnt always happen this way
- Even though is not an injunction against foreign Ct, indirectly says the foreign
court is not suitable have an immediate and obvious conflict
- Amounts to the Ct that has control over litigants, saying we will finally
determine this issue.
STAY OF PROCEEDINGS
Other Factors that take a more neutral position between the parties
- Discussion of circumstances that go beyond connections
- Factors that indicate justice can be done in the other forum at substantially
less inconvenience or expense
- Factors such as the law governing the relevant transaction
- Places where the parties respectively reside or carry on business
Facts: Litigation that involves 3 ships that had been transporting sulphur
HELD:
There is a good arguable case that Canulex were parties to the cill of lading
K and so parties to a K governed by English law
Facts:
- Helicopter accident - owned by English company, furnished in Malaysia
- Proceedings taken by widow in Brunei, France and Texas
- Texas refused to grant a stay, no reasons were given was suggested that
Texas had no rule of forum non conveniens
History
- Equitable remedy
- should only be subjected to someone is ammenble to the court
- Matters of comity are applied
- Ref to a settings of catgories that principles are applied to, however should
never be confined to these
- Court says its too narrow. Emphasises the notion of ASI is related to a Stay
of proceedings, but in effect the St Pierre case is applicable
Pg 298: Ct says the broadened test would not apply to ASI and no need to go
beyond traditional test which in effect would be the same as the St Pierre test.
General rule:
The court will not grant an injunction if, by doing so, it will deprive the P of
advantages in the foreign forum of which it would be unjust to deprive him.
Issue: Whether Eng Ct would grant an ASI in circumstances where there was no
relevant connection between the Eng jurisdiction and the proceedings in Q, other
than the appellants who were resident in Eng, were subject to the jursidiction and
could effectively be restrained by an injunction branted by an Eng Ct
Held: Refused to grant an Eng ASI prohibiting continuation of the Texas action
Reasoning: There is no connection or amenability to the parties
- Comity requires that the Eng forum should have a sufficient interest in, or
connection with the matter in W to justify the indirect interference w the
foreign Ct which an ASI entails
1) Aerospatiale natural forum test: closest connection with the action and parties
2) Modified for conform with FNC test: forum that is more appropriate
3) Aerospatiale test 2nd step: injunction on ground that ends of justice require it
India is the natural forum for the dispute, but is unable to grant injunction on
Texas as Airbus are outside the jurisdiction of the Indian Cts. Airbus is therefore
seeking the aid of the Eng Cts to prevent proceedings.
- Inconsistent with comity for Eng courts to exercise power without direct
reliance on Indian Cts decision
- Only the Cts of an interested jurisdiction can act, if they are powerless to do
so (Indian Cts), that will not of itself be enouch to justify the Cts of another
jurisdiction to act in their place
ASI does not work if parties are not amenable to courts jurisdiction
e.g. India and UK
- No injunction, unless they have assets, or pass through or travel within the
country that issues the injunction
- If the country is off the beaten path e.g. NZ, the country has to be careful
about issuing injunctions
Parallel proceedings
- Should be respected, but if all you have is simply a genuine disagreement
and nothing more then you should not proceed with the case (should stay
proceedings)
- Only if foreign juris hasnt applied FNC properly then the 1 st step is met
Conclusion: Tests for ASI are basically the same as for a stay of
proceedings, subject to the fact that ASI are of greater severity in terms of
comity and not as likely to be granted as a stay of proceedings.
Bushell
- If brought ex parte, under s13(3) jurisdiction simpliciter, it can spill over into
FNC and burden falls on P
- Burden of proof shouldnt provide a significant role as it only applies in cases
where judge cannot come to a determinate decision on the basis of the
material presented by the parties - more significant onus if it is ex parte
Tortel
- Manitoba case
- D had assets in Manitoba, had no other connection with the proceeding
would not contemplate the proceeding bc of the lack of connection
A IN REM JUDGMENTS
[CHAPTER 8: page 353]
RECOGNITION
Soveriegnty vs comity
- Former says no direct enforcement of judgment of other jursdiction, while
latter says that sometimes there should be rules of converting foreign
judgment into domestic/local judgment.
- These comity rules are correlated with taking of jursdiction into prov or intly.
- Prior to Morguard, there were fixed rules of soveriengty and comity
JUDGMENTS IN REM
Judgments that are focused on status of either a person (usu in rules re:
parternity, adotion, marriage) or more ordinarily a thing (usu where judgment in
rem arises) judgment = determination re: disposition of pty.
1) Immovables (land): If judgment from place other than where immovable is,
then won't be enforced
JUDGMENTS IN PERSONAM
1) Injunctive
- Injunctions usu aren't enforced by another jurisdiction as they are a sovereign
command via Cts to command someone to do something.
- Interprov const issues after Morguard + Hunt, in interprov context there
may be room for argument that provinces in Canada are not to be treated
between each other as sovereign independent countries
i.e. Perhaps an injunction by one prov should be enforced by other provs
2) Pecuniary judgments (Monetary)
At common law
- If elect not to proceed on reciprocal laws (choose not to sue on cause itself
but on judgment) it is regarded as action in debt (foreign judgment)
HELD: The type of judicial instrument wasn't final and conclusive because
the same Ct could still raise or rehear or make changes.
- At common law, the fact that there was appeal to higher Ct didn't prevent
judgment from being seen as final and conclusive
- Has to be final and conclusive in Ct that made the decision - Ct doesn't have
process to reoopen case, not an interlocutory decision
- At CL, even though there is an appeal filed, can still use the judgment
Impt difference between common law and statutory law
- Under statutory law, if appeal filed or appeal period hasn't expired, then can't
register judgment under reciprocal enforcement of foreign judgments statute.
- If sue on judgment in common law, then D can move to stay enforcement
pending the appeal. An action may be commenced even though the Ct may
be vested with jurisdiction to stay proceedings P can issue prejudgment
order for remedy
Jurisdiction continued:
- Historical position in Schibsby: Residency or carrying on business at time
obligation was contracted even though person left before suit instituted would
be enough
- Residency permanenet or temporary - domicile suggested in case
- Clear today that mere nationality or domicile when one is resident
elsewhere may not be sufficient
- Depends on nature of what proceeding is - temporary residence and
domicile are different
- Historical case picked up the voluntary nature of selection/consent or
submission/attonement to jursdiction
- Castel's view: Mere location of assets isn't enough in itself for enforcement in
other jurisdiction
(i) Presence
RULE:
Eng Cts wont enforce judgment of foreign Ct against D whohas assets
within that jurisdiction and appears before that Ct solely to preserve those
assets which have been seized by that Ct
According to Morguard:
- Morguard departed from traditional tests of presence, consent etc.
- New test is for RSC
- Interprovincially traditional rules merged in RSC
- Policy factors based on federation, mobiility, safeguards of judicial system
- Internationally, there was a creeping move to apply Morguard principles, but
always an element of doubt.
- Even Spar Aerospace (2002): Looks like Morguard will likely be limited to
interprovincial matters in Canada
Morguard recap:
- Constitutional issue: After Hunt, was clear that it was constitutional
- On facts: interprovincial (Alberta/BC) but mixed with international
- Critical of UK position and Canada unthinkingly adopting uk position (unitary
state vs. federal state)
- But easy to criticize past from current perspective
- Ct emphasized notions of comity - has become true underlying theory in
Canada (common interest)
- Morguard linked the taking of jurisdiction by one prov and enforcing in other
prov as being correlated - enforcement depends on jurisdiction being properly
exercised
- Clear that there is no problem in Canada in terms of fair process procedures
and meeting natural justice standards confident in SCC to supervise whole
process
- In adopting the RSC test, Morguard is talking in context of jurisdiction
simpliciter
- LaForest refers to in throw away para What is relationship between FNC
and the jurisdiction simplicter requirement for RSC (interprov and intl)
In the intl context (e.g. Braintech), considerable emphasis is placed on FNC.
POST-MORGUARD CASES
Facts:
- Contract to build boat, boat was alleged to be defect
- Boat supplied from Alaska and P sued in Alaska
- D said had good defence (4 yrs post-Morguard) on merits but was not going
to go up to Alaska (as it could then be enforced against him in BC)
BC Ct applying Morguard
- Morguard only applies interprov strictly speaking only obiter for truly foreign
entities or foreign jurisdictions
- BC replies that obiter comment by SCC whether made by the whole Ct or
majority should be treated as ratio decidendi.
- Also looked at comity in modern system
- Moran case in tort law: Takes approach that in tort law there are no fixed
rules but one would look to see if one could reasonably anticipate harm
- Applying to the case: Boat was made in Alaska specifically for shipping
- Test is RSC from perspective of jurisdiction simpliciter because it commented
that FNC might be relevant but didn't develop too much
- On the other hand, have Moses simply applying Morguard and not giving any
weight to FNC
CASE 2: Braintech v Kostiuk (1999) BCCA p405
Facts:
- Internet and tort of defamation case
- Website where ppl can make comments
- Run by Kostiuk living in BC
- Braintec with corporate HQ in Vancouver
- Some R&D in Austin, Texas, but not emphasized in judgment
- Had connections w/ other states in US.
Beals (2003)
AND
2) Defences
- Binnie and Iacobucci go with majoirty in applying RSC in restrained way
- BUT said on defences, the judgment shouldn't be enforced
- LeBel said that if its going to be used liberally on an intl bases, then need to
boost defences. Internal safeguards of cdn system may not exist int'lly)
- In Beals, LeBel said that in an enforcing situation, would not look at FNC
but the BC court looked at it in Braintech
- In Moses case, BCCA notes that while primarily addressing Alaska and BC,
relationship with FNC is rather unclear. In previous cases, court has applied
the RSC test however, court didnt state whether it was addressing JS or
conducting a forum conveniens analysis
While we have noted for some time that the relationship between JS and
FNC post-Mortguard is murky few courts have addressed it.
Muscutt
- Ontario focusses on JS in an interprovincial context
- The presence and existence of FNC would help in expanding the jurisdiction
of JS because when it comes to discretion, it can always cut back on that
consequence of a broader JS
- If you are broad with JS, any adverse consequence of this is that you can be
pulled back under FNC
Pre-Beals
- Teja emphasis on supplementary rules
- Muscutt emphasis on RSC taking over these situations
Braintech
- Court was dealing with internet context where there is no Canadian law
- Looked at US law US const due process requirement
- Ds are given a measure of const protection in that it must generally be
forseeable or within ones reasonable contemplation, that you would
be sued in the state within the state in which you were sued
- Forum in which suit is brought, is one which parties would have
contemplated
NB Also that the Ct in BC did look at the question of whether the Texas court
correctly applied this principle. Is it the function of the enforcing court to get so
deeply in the law of the court that brought the suit.
Moses defence
- Ct states that in BC, a D may raise defence that there is a manifest error on
the face of the record in the foreign judgment
- Legitimacy is dubious, but in any event, its reach should not be extended.
- Ct states that if BC rules find that Alaska has sufficient jurisdiction, then
judgment could be enforced. Although technicially the Alaskan Courts may
not have followed their own rules
2) Should the Ct in Morguard have taken upon itself to extend judicially the
conflicts of law principles
- Demarkate between constitutional principles for interprovincial and open
imprecise language about foreign
Beals [2003] SC 77
Majority decision
Major J decision:
Dissent
Binney and Iacobucci decision:
[Diplomatically put, both Major J and LeBel J acknowledge with varying degrees
of enthusiasm that greater flexibility be used different considerations will apply]
LeBel dissent
Refers to the need to be more liberal than the traditional categories, but not as
liberal as the case for interprovincial jurisdictions. Have a RSC test, but it needs
to be more particularly fashioned to have regard to foreign Ps and protect
Canadian Ds.
In terms of looking at connections which the maj never defined, nor did
Binney, need to ask if it was appropriate for orginating forums to take
jurisdiction. Is it expected and fair for D to go to the originating jurisdiction.
- Strongest connection is where there is link between forum and the D (such as
in the Moran case where selling items that contemplate would flow into
another jurisdiction)
In the US the Ds do have protection under the const that they wont be
deprived of ppty where no due process. Whereas under Canadian s7, are
only secured to life, liberty and security of the person. This leaves them w/o
any proprietory protection.
- Recommends that the RSC test emphasises the link with the forum and the D
Murky relationship between FNC and JS
- Talks about FNC and overlap with JS, but they are not nec the same
Mortguard was the root of everything good or the root of all evil, depending on
your stance.
- Loose discussion should it be a judicial decision to extend it internationally,
where not taking into account what other coys are doing.
- Result: situations where still working under old rule, but subject to new rule.
- Private intl law dealing with other systems Ds are caught out.
- No political incentive for legislature to deal with it but should the courts have
taken it into their own hands???
Did the court fail in not putting a limit on itself, or was it sensible for the judiciary
to later have courts rule the RSC test applicable to intl cases?
FRAUD
- Distinguish between extrinsic (going to the jurisdiction i.e. the court itself has
acted fraudulently or the parties have misled the court to assume jurisdiction)
and intrinsic (going to the merits of the case)
- The interesting feature of Beals is the maj saying these descriptions are of no
value and the enquiry should only be whether the fraud goes to the
jurisdiction
NATURAL JUSTICE
- Higher duty dealing with foreign juris cf interprov juris
- Noted the P was under no burden to show the system of the originating court
was fair and likewise no burden on D to explain consequences of the law of
the deciding jurisdiction.
- Suggested in the dissent of LeBel that there was an obligation on P to give D
info on how Florida system worked a fair enough position.
- Could comment and say if the new world order on judicial enforcement brings
together jurisdictions that are similar but different on particular elements, then
it would be useful to have agreement where standard form info is given to Ds
when Ct orders ex juris service.
- It is not easy to find out how to defend if you get a notice served on you to be
served in Florida.
- Comment in maj that not only would one have heightened duty but
suggestion that it should be mandatory for court as to fairness of the
process
Court cautions against using the defences (esp public policy) on basis that
although not directly a criticism of the law of the ct of decision, it is indirectly a
criticism of the policy of that country.
- On the other hand, LeBel J says it is the price you pay for extending the
enforcement law. In both these situations you have a good argument on both
sides.
The maj seem to think that excessive damages are not in itself a defence.
- Difficult point for some time (e.g. US jury produces irrational awards). BUT
says if damages are ARBITRARY then it is possible ie. It is left open as we
dont know the test for arbitrariness.
- A good test for arbitrariness:
Is this award out of line of the type of awards given in this area in this
jurisdiction?
(more than the sniff test relating it to cases of this type in the jurisdiction)
- Perhaps link it back to NJ was there evidence here that this judgment
was excessive or in someways directed to the fact that it was a foreign
litigant?
Moses found that only in BC can D raise defence there is manifest error in the
judgment. Court indicated this status of rule is suspect and doesnt want to
extend it to being a rule legitimacy is dubious and reach not to be
extended
Old North State Brewing case [1999]
- A number of issues that led into the choice of law area
- Supply of equipment to N Carolina.
- Court acknowledged N Carolina had a RSC with this case
- Equipment didnt work
- Choice of law clause: BC law should be applied but no express choice of
FORUM clause
- State of N Carolina could take jurisdiction, given it had a RSC and would
decide on BC law.
- But they didnt decide on BC law - Ct said wasnt a problem as when you are
talking about conflicts, in CL systems, it is a Q of fact.
- You have to plead the foreign law and bring evidence to foreign law as you
would any Q of fact
- Parties can control this: If they dont plead and bring evidence, there is no
duty on court to apply this foreign law. In absence, they are entitled to assume
the foreign law is the same as the forum law.
- Also raises the Q of public policy
- Treble damages (work out how much you have lost and then you triple it)
- And punitive (deterent) damages
- US has more dealing with treble damages. Only one e.g. in Canada
- Is this contrary to public policy Court says we have it too, in our
competition law therefore not contrary to Canadian concept of justice
Sue to enforce the foreign judgment (debt) - have CL private intl law rules and
statutory mechanism]
Impact of Morguard on s2(3) doesnt alter the specific requirements of the Act.
If choose to reciprocally enforce a judgment under the Act and evidence
establishes one of the criteria in s2(4), then the judgment cannot be enforced
Unavoidable because you have different jurisdictions that form a composite in the
intl community
If you dont fall within these categories, it is whos law in deciding whos law to
apply. It is the law of the law of the forum choice of law which choice of law to
apply.
Canada takes a classical approach to Choice of Law (apart from Contract cases)
These preliminary enquiries, characterisation and meaning, is all the law of forum
The choice of law rules sometimes indicate one place e.g. Tort law where it
occurred.
Leaves open to the forum court what it means by occurred
Sometimes it will give a couple of choices for where it may have occurred and
court will have to find a combination of both.
e.g. Questions of access and custody of children
- COL rule may say have to consider law of parent and law of child meet an
arrangement that suits both laws.
Or it might say in the situation before us, the laws of 2 countries must be
applicable to 1 party (usually in tort). Prior to Tolofson, there was a double
accountability (Chaplin and Boyes). Could only recover if it was a wrong in
the place it occurred and if it would have occurred in the forum.
Tolofson was the first time choice of law was looked at in depth
- Torts case
- Result was a decisive and unanimous rejectionof the newer tendencies in the
US Cts in favour of a choice of law rule of the classical type application of
the law of the PLACE OF THE TORT
B INVOKING AND DETERMINING FOREIGN LAW
[Chapter 10: page 509]
Fernandez [1986]
- Ps were Filipino nationals who had been crew members of Liberian registered
D ship - D had made collective agreement higher wage but werent paid this
- In rem proceedings to obtain the difference between the wages they received
and those provided for in the other agreement
- Hired in Manila, docked in Montreal
HELD: Court will leaving it to the parties to plead the foreign law
- Lex fori is applied on basis of default application where foreign law hasnt
been pleaded. Ct will assume foreign law is same as forum law.
- Court shouldnt simply apply this foreign law without plea
- How far do we go with the Canadian law? Statute or CL or both?
- Best to avoid demarking
- Law of Liberia applies, but no proof of the law so presume it is similar to
Canadas but only so far as to the substantial provisions apply general
law of the country (general principles). The specific laws should not apply
(not appropriate for a context such as this)
- Held Agreement had full force and effect under Liberia law as under basic
provns of Canadian labour Code
- Found that foreign law is a question of fact, is not for the tribunal or the court
to take judicial notice of the FL, and as such has to be established as a fact
- Cant engage own research, bound by expert advice given by lawyers/judges
- Other persons category is a secondary one, strong preference for best
evidence focussed on info given by those practicing in the particular area.
- Always discretion given for the other persons category
- Some rules arent going to be applicable: penal laws, revenue laws
Parties can always agree what the law is and can present an agreed stmt of
facts which may include what that foreign law is.
- Can submit materials if cant agree on the content of the materials. Courts
can require experts to be brought before it.
- How far should they go in letting parties determine how to decide.
- Justice might be better served by giving more discretion to the courts to find
out and apply the foreign law cf giving emphasis on parties to bring evidence
before the court
- Should Courts have more initiative to investigate? A system in impt complex
cases that allows parties to state case before Ct in a foreign jurisdiction?
- Can only be done intly if there were an Intl Convention made. Could be done
interprovincially.
3) Alternative means of determining foreign law
- Classic case b/c situation of a statue in Quebec which wasnt discovered for
long time. Litigation was brought in BC for recovery of documents Quebec
Statute blocked it
Issue: whether the statute is UV or whether it is constitutionally
inapplicable to a judicial proceeding in another province
Rule: No reason why judge cant deal with constitutional issue that
incidentallly arises in the ordinary course of litigation
- The BC Courts were excessivly cautious in refusing to consider
constitutionality at the potential price of injustice to the P
courts were in error in believing that the rules of conflicts law prevented
consideration of the consitutionality of the laws of another jurisdiction
- Hard to rationalise looking at where constitution was made
Characterisation
Reasoning:
- Forum litigants would be subject to same rules as foreign litigants
- Where the event occurs and should the law be applied
- General preference for lex fori, but have to be careful in continuing to say this
with disparagement
- CL theory that rights would last forever, only the limitation would take away
the ability to enforce these rights
- In relation to land, may be that if have a right of entry upon a failed codn
subsequent that occurs. If guarantor doesnt use right of entry, loses the right.
- If cant use the Cts to use land, then if its a determinable fee, then it is
yours in law. Once you have moved in, they cant get you out.
- Distinction between rights and remedy
Canadian legislation in 1984, changed law regarding limitation periods
TEST: Does the particular law make the machinery of the forum run
smoothly, if so it is procedural. Does the law reflect the determination of
rights between the parties, if so it is substantive.
- Not always so clear cut
i.e. Boils down to a policy choice Brings it into line with substantive
decisions, like in the US
Different approaches:
Wong v Lee [2002]
- Transition decision
- International litigation arising from an car accident in NY involving Ontario
residents. If the NY law applied, the D insurance co. would be exposed to L
for pecuniary damages without a deductible, if Ontario not
- Maj of Ct concluded it was not an injustice, the Ds increased L exposure
was the necessary effect of applying the LLD rule
- All parties to the accident were resident in the forum
Principal aspects of the Somer case
- Court elaborates on the tests that are set out in Tolofson, machinery of justice
- Procedure is that of the court
- Provide means and they deal with conduct of the courts and parties
- The ends rather than the means
- Conduct of relationship (SUBS) cf administration of justice (PRO)
- Choice of law applicable to claims in action for costs, prejudgment int and
non-pecuniary general damages
1) Capped non-pecuniary damages
2) Court came down on pre-judgement interests - were substantive
3) Costs were procedural
1) Role of costs
- Could be looked at as a compensatory vehicle, a form of indemnification to
the party to whom they are awarded to could say it is substantive, right
between parties, compensates for that sort of loss
- On the other hand, there are other aspects to costs that indicate procedural
- Purposes to encourage settlement
- Manage the process of litigation
- Deter and penalise or reward in relation to how one conducts the process
of litigation in terms of its management and reasonableness to achieve a
sound administration of justice
- Not guaranteed no party doesnt get award, open for court to award costs
against sucessful claimants
- Client-solicitor costs
- On balance, costs are more PRODCEDURAL (Relate less to relationship
between parties)
2) Pre-judgment interests
- Said it is SUBSTANTIVE
- Primarily compensatory, not a punitive measure
- Says I have a title of interest to my money, and now I have shown it, should
get interest
- Could also say it is presumptive not absolute, how one conducts the process
is also relevant. Is awarded when it is just to do so
- Courts have used this in a context of dealing with delay
- Not set out in rules of procedure in Ontario, but was in a separate statute and
the presumption was stronger than the discretion to deny came down as
compensatory substance
REMEDIES
DAMAGES
PARTIES
1) Law of forum is applied to see if the forum has jurisdiction to hear a particular
party
2) That law will ask is that person a legal person in the forum, if a natural
person, corporation or incorporated organisation then can act. If not a legal
person, can ask if the person is one under the foreign law of that person. If
they are a juristic entity in the foreign jurisdiction, will grant that person
standing
3) There maybe a mandatory rule of the forum to say something about standing
where certain codns have to be met. If they are not registered in the forum,
have no right to sue as P for any conduct in the course of carrying on
business
Hunt
- Canadian const issues
- Dealing with jurisdiction of the judges in Canada to deal with constitutional
validity of legn even though that legn is of another prov.
- In Hunt, BCCA exercised restraint
- SCC said it was commendable but misplaced in assessing Quebecs legn.
Quebecs legn couldn't be challenged internally.
Consequence of Hunt
- All of Cts in Canada can deal with constitutionality of legn in Canada, even
from another prov
- Consequence is superior Ct record in each prov can take probably judicial
notice of law of other provs without that law having to be proved as fact.
- SCC and Fed Cts had already asserted that.
- Can interpret Canada and Provincial Evidence Acts permit that to be done;
Quebec civil code lets that be done too.
PROCEDURAL SUBSTANCE
- Procedure is always lex fori (law of forum).
- When apply choice of law principle, may be applying law from another
jurisdiction. Difficult ?, what is subjstance + what is proceudre.
- Look at precedents + historically Engl precedents, see significant emphasis
on lex fori (for various reasons) and often led Cts to find things procedural
when that classification in fact was questionable or less obvious.
- Engl law has been amended by legn
- Diff b/t Engl + Canadian law is not acute b/c of amendments in UK.
- Some changes to bring UK in line w/ EU req'ments.
- some idea of things determined to procedural vs. substance + idea of
inquiry/mechanism to determine that issue.
Tolofson v. Jensen
- leading case re: tort + conflict of laws
- p536 focuses on issue on substance + procedure. looking particularly at
limitation period.
- Pls = residents of BC + car registered in BC. Df = residents of SK. MVA in SK. 1
yr limitation period had expired. SK legn didn't let gratuitous ppl collect if
willful/wanton ???( stnd of obligation w.r.t. certain ppersons in certain contexts).
- Df was suing in BC. ? of jurisdiction. choice of law = what law is oging to apply?
= substantive/principle issue in Tolofson case. decided lex loci delecti for
interprov matters. also established rule int'lly but in int'l context, left open
exception where justice would be req'd, law of forum wouuld apply. BUt no
exception in interprov context.
- having decided that change in private int'l law in cdda. ? = how to deal w/
situation here if applying SK law .. what are these aspects of SK law (esp
limitation period .. are these periods procedural or substantive). If procedural,
then BC would apply not SK.
- crt in Tolofson looks back at hxcal position. common law Cts in UUK/US =
limitation is procedural. Civil law EU = limitation was substantive. speculation of
why common law took firm position in UK + US = foreign litigants shouldn't get
adv over forum litigants. Where did event occur + should that law apply?
- UK preferred lex fori .. but ??
- Common law had theory that rights would last forever but limitation would
remove ability to enforce right through the Cts. That is thought to be discredited.
if can think of situations where hxcal theory would work, eg. in relation to land. it
may be that if have right of entry on failed condition subsequent ... grantor loses
right of entry after 6 yrs. BUT if move to determinable fee, no need for that to be
exercised. After 6 yrs have expired, if its a determinable fee, land is yours in law
but can't use Cts to get it but if get another way (eg. ppl absent from land + you
move in), they would come back + have to get you out. Distinctions b/t rights +
remedies wasn't wholly illusory. there were situations where couuld claim benefit
of legal right even though not in position for Cts to enforce that for you.
- How to deal w/ in Canada ..
= UK legn 1984 changed limitation period from prcoeduural to substantive
= crt provided test = does the particular law make the machinery of forum
run smoothly. if yes, then procedural. OR does the particular law reflect more the
determination of rights b/t particular parties? then substantive
= limitation period has some significant aspects that relate to rights b/t
parties. concerns Df right to plead .. affects obligation at law b/t parties. BUT if
wanted to justify this as procedural, not impossible to do that .. just say that
limiation period designed to make machinery of forum smoothly... machinery
can't run smoothly after period of time that memories worse, parties at disadv
(can't work when things are stale). BUT these are rights b/t parties. SO it has
elements of both. so boils down to policy choice. making it substantive is okay.. in
line to civil law + UK law countries. amendments for change in US too. BUT 1
shouldn't regard it as so obvious + could smirk .. reflects modernizing of law...
need some measure of harmonization.
= so limiation = substantive in Canada via tolofson. consistent w/ civil law
system.
Somers v. Furrier
Hanlon case
- unavil of claim by family mbrs would work injustice
- example of when exception would be exercised
- in gen, not convinced by Howell
- latest word w/ Wong v Lee 2002 = on exception to lex loci delicti (tolofson int'l
- no excpetion for interprov matters
- might argue interprov matters have const dimesion (howell not absolutely
convinced).
CONFLICTS EXAM NOTES
Spring 2004
PART 5: TORTS
A GENERAL HISTORIAL BACKGROUND
[CHAPTER 12: page 567]
CASE 2: Pettigrew
- D and P were Montreal residents, accident in Ontario
- What law applies?
- If occurred in Quebec, D would've been liable Meets 1st limb
- 2nd limb: No civil action avail in Ontario on these facts. Highway Act barred
any action by injured gratuitous passenger
- Ct said even though no civil recourse available in Ontario, but Highway Act
or maybe Criminal code had been breached.
- Said Highway Act s27 due care and attention requirement was breached,
therefore act was not justifiable.
- Gave broad consequence in that rule relating how to justify something
- Find situations that wouldn't justify the act.
LaForest puts great deal weight on fact that a Ct will take jurisdiction
only if RSC
- Thinks that will provide answer to most questions
- Linking w FNC, if the law of forum isn't appropriate law to apply, then answer
provided by FNC - case should go off to be heard by jurisdiction that applies.
Connection between choice of laws + FNC
- If going to apply law of other jurisdiction, then may be that other jurisdiction is
more appropriate forum than yours to hear case
- BUT this is unclear, questionable re: relationship between JS + FNC.
- RSC test for JS. established on grounds it has a (not most) substantial
connection.
- Prof Howell doesn't think this idea of LaForest will pan out.
Should there be an exception in Canada to the lex loci delecti rule
- To want public policy exceptions shows that Ct doesnt approve of the law
that the legislature having power to enact it within its territory has chosen to
adopt
- Context receving lots of attn in this case is where parties to proceeding are all
or mostly from forum but tort in other jurisdiction.
- In circumstance, as matter of policy + judicial experience + party expectation,
then law of forum should apply.
- Point to international context Exception under Hague rules where all
parties involved in the accident are from the forum. Although Canada is not
party to that aspect of Hague rules.
- Reason for Hague exception is guarding of sovereignty - particularly in
european context
BUT rejected here interprovincially
- LaForest fails to see any application for such principle in single country
- Reasoning: Sees it as nation building, lex loci delecti links country;
- Would be open for provincial legislature to enact that if all parties come from
BC + have tort event in US, that BC law applies. Constitutionality of that
wouldn't infringe, but might be constution dimensions if law passed in
interprovincial legislation - consistent w/ hague rules.
If have 2 rules (LLD and LF) and all parties are in forum, then will push
lawyers to find 3rd party from outside forum if don't want forum law
The more certain a rule is, the more likely settlement would be promoted - would
avoid litigation to settle.
Interprovincially, any attempt to legislate rule, proper rule of tort, would run into
const difficulties on being extraterritorial
- But rules do exist on proper law of contract.
- Quebec situation potentially could be okay, but doesn't find favour with
LaForest led Ct.
Wong v Lee - All parties were from forum but doesn't mean exercise of discretion
in intl context.
B PARTICULAR TORTS
[CHAPTER 12: page 624-642]
Couple of torts where LLD may run into problems:
Defamation and product liability produces difficulty for strict LLD to apply
Should either amend torts concerned defn OR amend choice of law theory.
Seems the latter is better for mass type torts, but can our provs do that?
Tolofson is not arguably a const case.
CONFLICTS EXAM NOTES
Spring 2004
PART 6: CONTRACTS
A INTRODUCTION
[CHAPTER 13: page 643]
In each case where you look at these areas (pg 676), in both contexts, what you
are trying to find out is the sys of law with which the K has closest and most real
connection.
Must first see if there is an intention that can be gleaned by implication.
- If no express agreement, must find place with most real connection and if
there happens to be such an implication of an intention, it must be taken into
account.
2 and 3 are actually very close often come down to same sort of enquiry, only
that 2 has a little inclination towards the fact that there is intention.
Facts:
- Shipment of herrings from NFL (at the time independent of Canada) to NY,
Def was ship owner and P was cargo owner.
- K that was entered through bill of lading had been entered into in NFL and
expressly stipulated Eng law would apply.
- Ship ran into bad weather off Nova Scotia. Damage due to negligence of
ships master in navigation.
- Case was being heard in Canada, but K made in NFL, ship was heading to
NY.
Around this time there were certain laws agreed to by certain maritime coys
Canada, Aus, NZ etc. Hague Rules, Carriage of Goods by Sea stipulated
clause like s3 of the NFL Act so that all the maritme coys had legislation that had
section like s3, by in large. K is to have effect subject to Hague rules. Every
signatory coy would have this situation.
- But looking at s1, in every case the rules enacted by the various coys, said
they applied to cargos LEAVING their port (ie NFL, Eng legislation applied
to cargoes leaving Eng, Aus cargo leaving Aus).
- Therefore parties can easily get around this rule loophole for parties to
avoid requirement by stipulating law of coy other than where your cargo was
leaving from.
- English legislation would not apply because although they have statute, it only
applies to cargo leaving Eng could not apply to the cargo leaving NFL
- But NFL law couldnt apply either as the K said it should apply Eng law.
- If case was brought in NFL or Eng, and cargo had left from Eng, then it may
well be that NFL has to apply b/c it could be interpreted as mandatory law of
the forum.
- If you choose forum, place where cargo left from, will be bound to law of
the forum
- But if you are in a forum other than where cargo left from, and choice of law
not from where the cargo left from, could take advantage of loophole.
Background:
The intention of the Hague Conference on Carriage of Goods by Sea wasnt that
BoL will always stipulate that shipment is always subject to the Hague rules.
- Even though signatory coys have drafted to cargos leaving its ports
- Is so central to Hague rules that all supplementary laws of that provision
mandatory laws of another coy. (Uniformity of Hague rules in all coys)
The effect that when parties choose a jurisdiction, that other law can incorporate
other law from another coy or it may have regard to other laws even if not
incorporated in its own law (see 5) above).
The coy that you chose for their law to apply, doesnt nec have to do anything
with the transaction. This doesnt mean Eng can take jurisdiction - the real and
substantial test and the discretionary test (forum non conveniens) would have to
be met. Jurisdiction is entirely different, nothing to do with choice of law.
If both parties chose Eng as not only choice of law, but also forum, then the fact
that parties have chosen that place, it is likely the RSC test would be met
b) Implied Agreements
2 issues raised:
1) Was the clause void for uncertainty court said no
2) Uncertain who the defendant was, therefore what does the 1 st party have to
do not to be seen as the defendant, but the plaintiff.
Will not put weight on place of arbitration if there is a choice between 2. But,
once you have determined proper law of the K, then you can have choice as to
where you want to litigate the matter. The Ct called this the floating curial law
i.e. a floating place to litigate. Nothing wrong with having a floating place to
litigate, but have to have a proper law to start with. The floating aspect cant
relate to the law, it can only refer to where the case is to be heard (which court).
HELD: Proper law was Eng law in this case and the D as they defined, could
choose to have the Eng law applied by Eng OR Chinese court.
c) No agreement between parties re: choice of laws
Issue: Would proper law be Cuban or Ontario law in the Imperial case
- Relevant re: payout surrender value b/c Cuban law has no surrender
payments in US w/o permission of national bank Cuba.
- If proper law was Ontario then surrender value could be paid
- Delivered to P, Cuban national insurer said policy was addresed to head office
in TO.
- Conformed in every respected (except lan) with policies/laws in Ontario.
- Were same as standard form contracts issued by this comp.
- The decision-making ppl were in TO.
- Policies couldn't be varied except by head office. changes have to be
signed by 2 execs in head office = pt of dec in insurance comp.
- Premiums paid in US $, surrender val contemplated in US $
- K made in cuba but agreement actually (dec bringing coverage into effect)
was made in TO. Could argue that not effective til delivery in cuba
Therefore this case is mixture of looking at objective factors relating to what party
would anticipate. The more you look to what party would anticipate, the more the
distinction between this category and that of choice of law (still rather thin tho)
- Fact that can't have floating proper law of K but can have floating curial law of
K or floating forum (place where something is decided)
- To be K, must be recognised by a body of law as K. lots of obj assessment
- Although looking at what Ct decides on what parties insist on proper law, lots
of attn on what parties might have contemplated
- So suggestion that 2 categories aren't too far apart.
- HELD: Look at factors normally regarded as relevant when the proper law is
being searched for, including the anture of the policy itself, look for the system
of law which has closes and most real connection
- English law was found to be the proper law
Where there is no express choice of law and where there is party that has to
effect performance of a matter that is a principle characteristic of the K, then
that parties place of habitual residence is the place of appropriate law.
This is a murky law to common law mind. It is incorpoated in civil code Quebec.
Quebec will freq do this in civil code (matters drawn from int'l conventions).
- Presumed that where the chracteristic act to be performed, it is to be place
most closely connected with the K
- Canada is not a party to Rome convention
- Characteristic relates to particular K and event it contemplates
E.g. Sale of goods
- person who has to deliver the goods, where that person's habitual
residence is would then be the proper law.
- where no delivering of goods there is a problem
2 enquiries:
1) what is most closely connected law
2) then presumption that if can identify principal characteristic of particular type
for K and then identify
But not enough articulartion on steps in mind regarding what jurisdiction has
next/closest jurisdiction
- not really advanced situation
- maybe can say that produces more certainty?
- No contemplation that cda will be party to rome convention
Impt area because mostly a partys choice is gen accepted (esp in common law
jurisdictions) so if you make choice, then expected to live with that choice
If there is no bona fide reason for choosing another law to apply and the place
that would normally be the proper law has a mandatory law sought to be avoided,
Cts say this might be a restriction on parties ability to choose particular law.
Ct will ask if there is some good reason for choosing particular law beyond
forum shopping
- Vita foods: common to choose UK law to govern maritime acts. parties
wanted to take adv of body of law that had developed.
- It wasn't done substantially - could've chosen NY law which would've been
more bona fide (b/c choosing where delivery would be made)
If both parties were resident and doing business in Alberta, but said Ontario law
applies, then would be caught on lack of bona fides.
C LAW OTHER THAN THE PROPER LAW
[CHAPTER 13: page 690]
a) Formation
Non-disclosure
- Problem is the nondisclosure didn't present situation of immediate invalidity
(ab initio), it produced only situation where K is voidable (cf void)
- So insurer could elect the K void from this point in time but not earlier.
- Wouldn't give ground for total nullity
- UK Ct held you can't say that K doesn' exist, K says belg jurisdiction excl.
Illegality
- Nothing on facts arose in any activity re: smuggling.
- Smuggling was in background.
- If this were UK law, could argue that antecedent illegality taints the whole K
- If taints whole of K, then K is unenforceable (not voided).
- K still exists but unenforceable in UK law But Belgian law has no
equivalency of tainting for some general anticedent illegality.
- Deprived of opportunity of saying that K void from beginning.
- Put insurers in position of having to ask Ct in UK to proceed in matter where
proper law is Belgium, where matter proceeding in Belgium and no way of
denying jurisdiction to Belgium (validly entered into K)
- Matter must proceed in Belgium
If could find a K was void ab initio or complete nullity, could raise some sort
of legal challenge to K that shows K doesn't exist at all. Then theres nothing that
can give jurisdiction to Belgium (K entered into in UK; K now nonexistent).
i.e. Must find something that destroys existence of K
b) Contractual Capacity
- What if parties never had capacity to K
- Capacity issue is determined by a law other than proper law
- Proper law is therefore the objective proper law of the K, not the proper law
chosen by the parrties
- Whether agreement on what proper law should be is a valid agreement.
needs something that takes out validity of proper law itself.
c) Formalities
- Certain formalities are needed re: licenses for engaging in certain operations
e.g. real estate agent
- Comes down to where you are bringing the particular action
Greenshields case
- If in jurisdiction where not bound by that rule, you look at the proper law
- If no such requirement (Ontario) from formality perspective, then there
is no application of that
PART 7: PROPERTY
A TRANSFERS OF IMMOVABLES
[CHAPTER 14: page 723]
- Not categorising as real (land or certain types of things associated with land
e.g. easements) or personal
- There will be a difference depending on whether it is movable due to law of
situs of that ppty
1) Preliminary Question: FORUM state for which lex fori has to answer
Where is an item situated
Hogg case
- Series of questions as to tax focussed on by Sask Commission
- Could only tax if there was devolution under the law of the province
- Succession law had to be law of Sask
- Were the mortgages immovable or movable
- If they sere located in BC, if BC law said they were immovable, BC law would
apply
- If movable then sask law would apply
- HELD: they were immovable therefore BC succession law applied and would
devolve as personal ppty
i.e. relevant law for devolution was BC, the law of situs
CASE 2: Mocambique
- Haunts modern 21st c. intellectual material
- Concerned with land in South Africa, P & D both located in England
- Situation arose in SA re: land which one could characterise as trespass of
land Qs as to title, possession of land
- Both parties within jurisdiction did UK Ct have jurisdiction to enforce
trespass in foreign jurisdiction?
- Seen as an action relating to damages
- Ct did have to get in the question of title. If P found to have better title, will
avoid liability issues
Issues
1) Ct couldnt give decision as rights of title/possession of foreign land
2) Ct couldnt give damages re: interference with foreign land (damages in
personam)
- 2 disagreed on issue of title that generally accepted a decision as to title
or rights to possess land in foreign jurisdiction should be determined
by law and Courts of that jurisdiction
- Debate as to granting of damages
Rule that came in later cases: Other matters concerning land e.g. injury to land,
should be left also to law and courts of situs of the land
But it was rejected by the HL, found questions of title and in relation to
possession are determined by the law of situs (foreign courts have no
jurisdiction in these matters)
How far to extend the Mocambique lex situs rule?
2-4: Who should be able to exercise judicial authority and where should it apply?
- Slippery slope argument
Granting of patent
- Government grant and applies only in territory
- Fixed into jurisdiction that grants it
- Very similar to land (suggested distinction issues going to validity and title
cf issues going to infringement)
- A lot more formalities (application for grant)
Copyright
- Broad international treaty basis, protected in all countries under the WTO
- Any country belonging to the WTO is able to take jurisdiction
- Transitory ppty right/issue has no situs of itself
- In effect it is the ultimate of immovability
- Little scope to challenge the validity of copyright (no formalities)
- Need skill and judgment for copyright
To overcome Mocambique rule, reformulated the claim to say your wrong is the
conspiracy to commit trespass (with turkish cyprians) in North Cyprus
First submission said to preserve Mocambique BUT get rid of the 2 nd limb
- HL declined to do this: was aware in Mocambique, that it did involve a right to
possess but also aware that they discussed damages
- 2 members of the CA also said to do this, but HL firmly overruled them in
1983 - Cant validate those CA members
Reasoning:
1) Rule has been accepted in various other jurisdictions of the CL (therefore
reasons of consistency and continuity)
2) The delicate nature of the rule itself, as it involves possible conclift with
foreign jurisdictions and the possible entry into and involvement with political
questions (therefore should be legislative initiative not judicial)
3) May involve consequential damages that may not know of yet
- In particular relating to FNC preventing forum shopping, the FNC rule hadnt
been fully developed in Eng at the time
4) Cant justify the reasons for change
- compared to the IP evolution of communications and internet
Further to this, a conspiracy to commit trespass cant be different to committing
trespass
- Turkish Cyprus had laws that validate this
- Key point is that need to show there is an iillegality
- I.e. Is there a trespass to the land which brings us back to Q1: re title and
possession
Spectrum of Issues:
- Title/Possession
- Damage to immoveable
- Issues in relation to immoveables (in personam type issue)
Mocam had title/possession and second limb was damages for interfence with a
moveable. In what circs would we find an exception? Issue going to in rem title
or possession.
Godley v Coles
- Both parties lived in Ontario.
- Condos in Florida. One condo above other. Top condo leaked. Water dmage
occurred to bottom condo. Damage to condo itself
- Therefore the condo was an immovable and there was damage to contents of
condo (moveables)
- Didnt really concern title/possession of the immovable BUT did concern
damage
- HOWEVER both parties were resident in Ontario Ct in Ontario decided that
it was convenient forum, decided not to split juris and able to say there was
substantial portion of damage to moveables as well as immovables. Court
able to proceed in this context.
Similar to patent law: suggested that issues which challenge validity of patent
which can be granted only by sovereign power of particular juris.
- No reason why ques of infringement that dont challenge title or validity of
patent couldnt be litigated in some other court.
- Hague-says they can be split, e.g., issue of validity could be determined by
state, and ques of whether infringement could be answered in any court.
Ward v Coffin
Propositions:
Ct must have in personam juris over D, if not then no point. P must be able
to serve D with notice or D must submit to juris of court.
4 criteria
1) Person has to be in province or submitting to prov.
2) Personal obligation btwn parties (in this case, obligation was missing)
Juris cant be exercised against strangers.
3) Juris cannot be exercised if local court cant supervise execution of judgment
- (so like Airbus-will just be ignored otherwise)
4) Cant order it if of no effect in situs
- so if it requires action to be taken in situs and w/o action it wont be effective,
then court shouldnt issue order
c) Foreign Judgments re Land in Forum
Based on the acceptance of the principle that no Ct should make an order which
it is unable to enforce
- Calif cts resorted to BC Cts in order to obtain effectual enforcement of their
order in personam proceedings in Cali which was enforced in BC where
the land was located
Chapman Estate v OHara Case
- Admin of estate
- Adminstrator and all parties are in Manitoba.
- Proceedings brought in Manitoba and Manitoba exercises in personam relief
against OHara re: land in Sask
- OHara lost in Manitoba and came to Sask and filed lis pendens to title
(litigation pending against land) sought to bring proceedings on same issue in
Sask that as an inpersonam judgment it could not conclusively determine
the title to land in Sask
Issue: Bigger question was should Manitoba court have taken juris?
- Manitoba Ct had through control of admin and admin of estate, the power to
see that title to Sask land was conveyed to proper party without using Sask Ct
- Could ensure transfer in Sask could take place without resort to Sask.
- OHara said property should be held by him.
- Administration could pass property to anyone, administration by going to Sask
wanted to transfer property.
- OHara could only stop this by asking Sask court to intervene BUT Sask
consent wasnt needed for completion of action by administration
- cf Calif case no control over parties in personam sufficient to require them
as indiv to make transfer, but then had to go to BC to enforce
Divide btwn
1) in personam pecuniary judgments
2) other judgments
Hunt
SCC indicated that Ct of any province could rule on constitutional validity of legn
of other province because:
1) SCC oversees
2) judges are federally appointed
3) same ethics throughout Canada legal profession
Prof Howell thinks its time where these types of orders will be enforceable
Moveables
- Very difficult
- Similar btwn situs and ancillary issues are applied to moveables.
- BUT Moveables move, usually intangible moveable
- These follow person wherever person goes.
e.g. copyright
- Where would you find situs for copyright?
- Place of registration?
- But you can register it several places at one time
Major problem:
- Immovable analysis is tied up with focus on situs and authority always to
give to situs.
- With Moveables there is a problem with finding where they are. How do find
situs to apply? Can you even say that some are located in certain position?
EXAM REVISION
Beals:
- Traditional rules not enough to ground jurisdiction they are a part of the
factors considered for RSC
- RSC is the overriding factor which clearly doesnt rule out the traditional
context, it is encompassed within the RSC test
- Therefore more in line with Muscutt
[Need to go beyond traditional test]
Muscutt:
- Is focussed narrowly not a case where suffered damage in Ontario.
- Damage really was suffered in Alberta BUT the continuing effects were
felt while in Ontario
Policy advantages:
- Within Canada it may well be a sensible position to wait the province where
the bulk of the medical costs were met.
- The province that has to take care of the victim in the case of torts where
physical injury were.
Questionable whether Muscutt applies where was some other sort of damage
such as to reputation (non-pecuniary damage)
Teja does tend toward this and the traditional criteria, relationship between
parties and personal subjection approach
Beals held Florida was the most appropriate jurisdiction and could read into that
that the Ct found no need to think about any discretion
Muscutt
- Involved personal injury and national insurance
- Not convinced that Muscutt could apply in other Cts with the same rational as
in this context
- In cases of ppty damage, mental suffering rationale is not really appropriate
- Whole area not really thought through in all its manifestations (consequences)
- SC should have been more careful
Morguard itself is a case of conflict
- Producing case of such uncertainty in case of decisions as to foreign
decisions
- Should have said the application to truly intl applications is left for another
case instead of leaving it open
- Has put Canada out on a limb not sure why this is necessary
After Spar Aerospace in 2002, would not have thougth SC could come up with
what it did in Beals, that Morguard applies interprovincially
- Really in the international context, should be looking at traditional factors
CHOICE OF LAW
ANTI JUNCTION
Mocambique rule stipulated when dealing with an immovable, it is only the law
and courts of the forum where the land is situated who can deal with land in a
certain jurisdiction.
i.e. both jurisdiction simpliciter
Godley: Case where the 2 ppl live in Ontario and both own condo in Florida one
above the other. One leaks into the other, why shouldnt Ontario take
jurisdiction?
- If they do, then juris issue has been severed from Mocam ratio
- Relevant law would be Florida law applied by Ontario court
- So strictness of both choice of law and jurisdiction may be being prized apart
if the law relating to damage to ppty is seen, or becoming seen as
different to title or possessory issues
- If do prize it apart, will have separated jurisdiction from choice of law
- Tort rule of lex loci delecti one that has to be flexible (diff types of damages
etc. defamation enquiries)
How do you deal with lex loci delecti in case of mass tort?
e.g. Asbestos, breast implant cases
- Following Moran, injury in multitude of jurisdictions reasonably forseeable as
to who would be injured or jurisdiction that is substantially affected
- How does Tolofson deal with multiple physical injury or other tortious injuries
that are not personal injuries? car accident in Sask, P were from BC
- Still difficult to answer this question e.g. in the matter of privacy, violation can
be in many locations
Tolofson est rule in tort in relation to personal injury
Andler case
- In California have sitn where Ct made orders in personam that parties would
convey land in BC
- Cal Cts however werent in posn to enforce the orders it made adequately
against the parties.
- California had a process whereby if parties didnt follow order, and make nec
changes in title, the party who had judgment could come back to Ct and court
officer would execute papers that would purport to make transfer of land.
- Works fine in California, but when land in BC, couldnt be taken to BC Land
Title Office, whereas Cal LTO would
- BC Cts had to be asked to enforce the Cal judgment, so
- Although in personam, was in rem
- The Californian granting court couldnt follow through on their in rem
judgment, had to come to BC courts of where land was situated.
- If Cal ct had only served damages, could have executed judgment and taken
Californian land to enforce judgment
OHara
- Land was outside jurisdiction in Sask
- Manitoba made order
- Key point is that the enforcement could have been done in Manitoba they
had complete control over the process, without having to go to Sask to get
assistance.
Difference: Both crossed line from in personam to in rem BUT in case of OHara
the Manitoba Ct in the circumstances could have achieved the result without
having to go to Sask courts
Enforcement of judgments
- Not talking about injunctions
Airbus case
1) Courts of India will you enforce our injunctions in Eng
- RULE: pre-emptry judgment like injunctions or specific perf not allowed, only
in personam judgments like monetary judgments and debts
2) If interprovincial, maybe after Morguard and Hunt they should enforce
- Only orders in rem that cant be enforced are orders of the Ct in the location of
the ppty
- If land is in Florida, decision of Florida court might be enforced in BC if it had
to be.
- If a court in Alabama made order in reln to Florida ppty, it would not be
enforced. In a Canadian context, might be arguable a judgment in another
province, it could be enforced Morguard argument