3C2017 Canada

Conflict of Laws
A Survey of Canadian Cases
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Conflict of Laws:
A Survey of Canadian Jurisprudence
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Ateneo de Manila University- School of Law

Block 3C 2017
CONTRIBUTORS:
Alvarez, Ana Emelita
Borja, Kristine
Bullo, Mark Timothy
Casama, Fritz
Chatto, Esther Patrisha
Chy, Kristine Sherika
Cruz, Maria Patricia
Cuizon, Erlces John
Dahilig, Ana Margaret
Dantes, Raphael Augusto
De Guzman, Elreen Joy
De La Calzada, Alebeth Libra
Dimaano, Mara Marie
In partial fulfillment of the requirements of the course Conflict of Laws under Atty.
nd
Eduardo Robles, 2 Semester, A.Y. 2016-2017
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TABLE OF CONTENTS
Williams v. Canada 90 DLR (4th) 129 (SCC) ....................................................................................... 1
Re Koo (1993) 1 FC 286 TD ............................................................................................................... 6
Morguard Investments Ltd. v. De Savoye (1990) 76 DLR (4th) 256 (SCC)......................................... 8
Tolofson v. Jensen (1994) 120 OR (4th) 289 (SCC) .......................................................................... 10
United States of America v. Ivey (1995) 120 OR (3d) 533 (Gen. Div.) ........................................... 13
Kuwait Airways v. Iraqi Airways (2002) 2 AC 883 (HL) ................................................................... 17
Gillespie Management Corp. v. Terrace Properties (1989) 39 BCLR (2d) 337 (CA) ....................... 20
Huntington v. Attrill (1893) AC 150 (PC) (Ont.) .............................................................................. 22
Stringam v. Dubois (1992) 135 AR 64 (CA)..................................................................................... 24
Re Sefel Geophysical Ltd. (1989) 1 WWR 251, 260-61 (Alta. QB) .................................................. 26
Gillespie v. Grant (1992) 4 Alta LR (3d) 122 (Surr. Ct).................................................................... 29
Re Urguhart Estate (1990) 74 OR (2d) 42 (HC) .............................................................................. 32
Adderson v. Adderson (1987) 36 DLR (4th) 631 (Alta. CA) ............................................................. 34
Success International Inc. vs. Environmental Export Int’l.of Canada, Inc. (1995) 123 DLR (4th)
(Ont. Gen. Div.) .............................................................................................................................. 36
Maharanee of Baroda v. Wildenstein (1972) 2 A 11 ER 689 (CA) .................................................. 39
Duncan (Litigation Guardian of) v. Neptunia Corp (2001) 199 DLR (4th) 354 (Ont. SCJ) ................ 41
Teja v. Rai (2002) 209 DLR (4th) 148 (BCCA) ................................................................................... 44
Moran v. Pyle National (Canada) Ltd. (1973) 43 DLR (3d) 239 (SCC) ............................................ 47
Muscutt v. Courcelles (2002) 213 DLR (4th) 577 (Ont. CA) ............................................................. 49
Craig Broadcast Systems, Inc. v. Frank N. Magid Associates, Inc. (1998) 155 DLR (4th) 346 (Man.
CA) .................................................................................................................................................. 52
Harrington v. Dow Corning Corp (2000) 193 DLR (4th) 67, 2000 BCCA 605 ................................... 55
Airbus Industries GIE v. Patel and Others (1999) 1 AC 119 (HL) .................................................... 58
Amchem Products, Inc. v. British Columbia, etc. (1993) 102 DLR (4th) 96 (SCC)............................ 60
Hudon v. Geos Language Corp (1997) 34 OR (3d) 14 (Div. Ct.)...................................................... 62
Re Carrick Estates Ltd. And Young (1987) 43 DLR (4th) 161 Sask. CA)............................................ 65
Moore v. Mercator Enterprises Ltd. (1978) 90 DLR (3d) 590 NS SC .............................................. 67
Batavia Times v. Davis (1977) 82 DLR (3d) 247 (Ont. HC) .............................................................. 71
Braintech Inc. v. Kostiuk (1999) 171 DLR (4th 46, 1999 BCCA 0169 ............................................... 73
Old North State Brewing Co. v. Newlands Services Inc. (1999) 4 WWR 573 (BCCA) ..................... 75
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Fernandez v. The Mercury Bell (1986) 3 FC 454 (CA) .................................................................... 79
Mc Lean v. Pettigrew (1945) 2 DLR 65 (SCC).................................................................................. 82
Somers v. Fournier (2002) 60 OR (3d) 225 CA ............................................................................... 84
Australian Broadcasting Corp v. Waterhouse (1991) 25 NSWLR 519 (CA) .................................... 87
Nike Informatic Systems Ltd. vs. Avae Systems Ltd. (1979) 105 DLR (3d) 455 (BC SC) ................. 90
Mackender vs. Feldia AG (1967) 2 QB 590 (CA) ............................................................................. 93
Avenue Properties Ltd. vs. First City Dev. Corp. (1986) 32 DLR (4th) 40 (BC CA) ........................... 95
Gillespie Mgmt. Corp. vs. Terrace Properties (1989) 62 DLR (4th) 221 (BC CA) ............................. 98
Christopher vs. Zimmerman (2000) 192 DLR (4th) 476, 2000 BCCA 532 ...................................... 100
Hogg vs. Provincial Tax Commission (1941) 3 WWR 605 (Sask. CA) ............................................ 102
Godley vs. Coles (1988) 39 CPC (2d) 162 (Ont. DC) ..................................................................... 104
British South Africa Co. vs. Companhia de Mocambique (1893) AC 602 (HL) ............................. 106
Ward vs. Coffin (1972) 27 DLR (3d) 58 (NB SC App. Div.) ............................................................ 108
Catania vs. Giannattasio (1999) 174 DLR (4th) 170 (Ont. CA) ....................................................... 111
Century Credit Corp. vs. Richard (1962) 34 DLR (2d) 291 (Ont. CA) ............................................ 118
Maden vs. Long (1983) 1 WWR 649 (BCSC) ................................................................................. 121
Republica de Guatemala v. Nunez (1927) 1 KB 669 (CA) ............................................................. 126
Re Kloebe (1884) 28 Ch. D 175 .................................................................................................... 130
Canadian Commercial Bank v. Belkin (1990) 73 DLR (4th) 678 (Alta. CA)..................................... 132
Re Thom (1987) 40 DLR (4th) 184 (Man. QB)................................................................................ 135
Re Mac Donald (1964) 44 DLR (2d) 208 (SCC).............................................................................. 137
Davies vs. Davies (1915) 24 DLR 737 (Alta. SC) ............................................................................ 139
Re Allen’s Estate (1945) 2 A11 ER 264 (Ch. D) ............................................................................. 141
In the Estate of Maldonado (1954) P223 (CA) ............................................................................. 143
Harris vs. Murray (1995) 28 Alta. LR (3d) 377 (QB)...................................................................... 145
Re Edward and Edward (1987) 39 DLR (4th) 654 (Sask. CA) ......................................................... 148
Savelieff vs. Glouchkoff (1964) 45 DLR (2d) 520 (BC CA) ............................................................. 151
Sangha vs. Mander (1985) 6 WWR 250 (BC SC) ........................................................................... 154
Gwyn vs. Mellen (1979) 6 WWR 385 (BC CA) .............................................................................. 156
Gillespie vs. Gillespie (1992) 10 OR (3d) 641 (CA) ....................................................................... 158
Finizio vs. Scoppio-Finizio (1999) 46 OR (3d) 226 (CA) ................................................................ 160
TIL vs. JLF (2000) 152 Man. R (2d) 138 (QB)................................................................................. 163
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Teczan vs. Teczan (1992) 62 BCLR (2d) 344 (CA) ......................................................................... 166
Bosch vs. Bosch (1991) 36 RFL (3d) 302 (Ont. CA) ....................................................................... 168
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Williams v. Canada
90 DLR (4th) 129 (SCC)
Doctrine:
The situs of the receipt of unemployment insurance benefits cannot be determined in the same
way the conflict of laws determines the situs of a debt. To simply adopt general conflicts of law
principles and to apply the "residence of the debtor" test in the present context would be entirely
out of keeping with the scheme and purposes of the Indian Act and Income Tax Act.
Facts:
1. The appellant received a notice of assessment by the Minister of National Revenue which
included in his income, for the taxation year 1984, certain unemployment insurance
benefits. The appellant contested the assessment.
2. Appellant was a member of the Penticton Indian Band and resided on the Penticton
Indian Reserve.
3. He received regular unemployment insurance benefits for which he qualified because of
his former employment with a logging company situated on the reserve, and his
employment by the Band in a "NEED" project on the reserve. In addition to regular
benefits, the appellant also received "enhanced" unemployment insurance benefits paid
in respect of a job creation project administered on the reserve by the Band, pursuant to
a written agreement between the Band and the Commission. The enhanced benefits
constituted the bulk of the appellant's remuneration for his work in this program.
4. Section 38 of the Unemployment Insurance Act. authorized the creation of such
programs on a general basis, without any limitation to Indians. The enhanced
unemployment insurance benefits were also paid by the Commission's regional computer
centre in Vancouver.
5. The Federal Court, Trial Division held that, under the Indian Act, both the regular and
enhanced unemployment insurance benefits were exempt from taxation.
6. The Federal Court of Appeal set aside the judgment holding that only the enhanced
portion of those benefits was exempt.
Issue:
Whether the unemployment insurance benefits received by the appellant were exempt from
taxation pursuant to s. 87 of the Indian Act. YES.
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Sub-issue:
Whether the benefits received by the appellant were "situated" on a reserve. YES.
Held:
Refer to “4” for matter that concerns Conflicts of Law
1. In order to decide the basis upon which a situs is to be assigned to the unemployment
insurance benefits in this case, it is necessary to explore the purposes of the exemption
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from taxation in s. 87 of the Indian Act , the nature of the benefits in question, and the
manner in which the incidence of taxation falls upon the benefits to be taxed.
2. The Nature and Purpose of the Exemption from Taxation
a. Mitchell v. Peguis Indian Band
 the purpose of these sections was to preserve the entitlements of Indians to
their reserve lands and to ensure that the use of their property on their
reserve lands was not eroded by the ability of governments to tax, or
creditors to seize.
 the purpose of the sections was not to confer a general economic benefit
upon the Indians. the historical record makes it clear that ss. 87 and 89 of the
Indian Act , the sections to which the deeming provision of s. 90 applies,
constitute part of a legislative "package" which bears the impress of an
obligation to native peoples which the Crown has recognized at least since
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87. Notwithstanding any other Act of the Parliament of Canada or any Act of the legislature of a province, but subject to section
83, the following property is exempt from taxation, namely:
(a) the interest of an Indian or a band in reserve or surrendered lands; and
(b) the personal property of an Indian or band situated on a reserve;
and no Indian or band is subject to taxation in respect of the ownership, occupation, possession or use of any property mentioned in
paragraph (a) or (b) or is otherwise subject to taxation in respect of any such property; and no succession duty, inheritance tax or
estate duty is payable on the death of any Indian in respect of any such property or the succession thereto if the property passes to
an Indian, nor shall any such property be taken into account in determining the duty payable under theDominion Succession Duty
Act , being chapter 89 of the Revised Statutes of Canada, 1952, or the tax payable under the Estate Tax Act, on or in respect of other
property passing to an Indian.
89. (1) Subject to this Act, the real and personal property of an Indian or a band situated on a reserve is not subject to charge,
pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian.
(2) A person who sells to a band or a member of a band a chattel under an agreement whereby the right of property or right of
possession thereto remains wholly or in part in the seller, may exercise his rights under the agreement notwithstanding that the
chattel is situated on a reserve.
90. (1) For the purposes of sections 87 and 89 , personal property that was (a) purchased by Her Majesty with Indian moneys or
moneys appropriated by Parliament
for the use and benefit of Indians
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the signing of the Royal Proclamation of 1763. From that time on, the Crown
has always acknowledged that it is honour-bound to shield Indians from any
efforts by non-natives to dispossess Indians of the property which they hold
qua Indians, i.e., their land base and the chattels on that land base. under
the Indian Act , an Indian has a choice with regard to his personal property.
b. The Indian may situate this property on the reserve, in which case it is within the
protected area and free from seizure and taxation, or the Indian may situate this
property off the reserve, in which case it is outside the protected area, and more
fully available for ordinary commercial purposes in society.
c. The purpose of the situs test in s. 87 is to determine whether the Indian holds the
property in question as part of the entitlement of an Indian qua Indian on the
reserve.
3. Nature of benefit and the Incidence of Taxation

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a. Section 56 of the Income Tax Act is the section which taxes income from
unemployment insurance benefits.
 The parties have approached this question on the basis that what is being
taxed is a debt owing from the Crown to the taxpayer on account of
unemployment insurance which the taxpayer has qualified for.
 This is not precisely true, since the liability for taxation arises not when the
debt (if that is what it is) arises, but rather when it is paid, and the money is
received by the taxpayer.
 However, it is true that the taxation does not attach to the money in the
hands of the taxpayer, but instead to the receipt by the taxpayer of the
money.
b. Nowegijick v. The Queen
 the receipt of salary income is personal property for the purpose of the
exemption from taxation provided by the Indian Act
 the court did not see any difference between salary income and income from
unemployment insurance benefits in this regard, therefore I hold that the
receipt of income from unemployment insurance benefits is also personal
property for the purposes of the Indian Act
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Income Tax Act
56. (1) Without restricting the generality of section 3, there shall be included in computing the income of a taxpayer for a taxation
year,
(a) any amount received by the taxpayer in the year as, on account or in lieu of payment of, or in satisfaction of,
…
(iv) a benefit under the Unemployment Insurance Act, 1971 . . .
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 The inclusion of personal property in the calculation of a taxpayer's income
gives rise to a tax in respect of that personal property within the meaning of
the Indian Act , despite the fact that the tax is on the person rather than on
the property directly.
c. There fore, most of the requirements of s. 87 of the Indian Act have clearly been
met in this case. The receipt of unemployment insurance benefits is personal
property. That property is owned by an Indian. The Indian is being taxed in
respect of that property, since it is being included in his income for the purpose of
income taxation. The remaining question is whether the property in question is
situated on a reserve.
4. Comments on the Residence of the Debtor Test (Matter that concerns Conflicts of Law)
a. The only justification given in these cases for locating the situs of a debt at the
residence of the debtor is that this is the rule applied in the conflict of laws. The
rationale for this rule in the conflict of laws is that it is at the residence of the
debtor that the debt may normally be enforced.
b. This may be reasonable for the general purposes of conflicts of laws. However,
one must inquire as to its utility for the purposes underlying the exemption from
taxation in the Indian Act .
c. The respondent argues that the situs of the receipt of unemployment insurance
benefits should be determined in the same way the conflict of laws determines
the situs of a debt. The debtor is the federal Crown, or the Canada Employment
and Immigration Commission, neither of which reside on a reserve, therefore the
receipt of benefits is not situated on the reserve.
d. In resolving this question, it is readily apparent that to simply adopt general
conflicts principles in the present context would be entirely out of keeping with
the scheme and purposes of the Indian Act andIncome Tax Act. The purposes of
the conflict of laws have little or nothing in common with the purposes underlying
the Indian Act .
e. It is simply not apparent how the place where a debt may normally be enforced
has any relevance to the question whether to tax the receipt of the payment of
that debt would amount to the erosion of the entitlements of an Indian qua Indian
on a reserve. The test for situs under the Indian Act must be constructed
according to its purposes, not the purposes of the conflict of laws.
5. Determining the situs
a. Determining the situs of intangible personal property requires a court to evaluate
various connecting factors which tie the property to one location or another.
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b. In the context of the exemption from taxation in the Indian Act , there are three
important considerations: the purpose of the exemption; the character of the
property in question; and the incidence of taxation upon that property.
c. Given the purpose of the exemption, the ultimate question is to what extent each
factor is relevant in determining whether to tax the particular kind of property in a
particular manner would erode the entitlement of an Indian qua Indian to
personal property on the reserve.
d. With regard to the unemployment insurance benefits received by the appellant, a
particularly important factor is the location of the employment which gave rise to
the qualification for the benefits.
e. In this case, the location of the qualifying employment was on the reserve,
therefore the benefits received by the appellant were also located on the reserve.
The question of the relevance of the residence of the recipient of the benefits at
the time of receipt does not arise in this case.
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Re Koo (1993)
1 FC 286 TD
Doctrine:
One must be able to prove that he regularly, normally and customarily resided in a country where
he or she plans to apply for citizenship. The laws of the country where one applies for citizenship
shall be controlling.
Facts:
1) The Chee Chow David Koo (applicant) and his wife arrived in Canada as landed immigrants
in 1987. The applicant left the country for business reasons 18 days later. He returned to
Canada several times thereafter but only for short periods of time. Most of the applicant’s
presence were of little more than one week duration. In the four years preceding his
application for Canadian citizenship, he spent a total of 232 days in Canada. His frequent
absences were necessitated by his duties as head of his family's Hong Kong-based business.
2) The applicant and his wife acquired a house in Canada, and the applicant acquired many of
the standard indicia of attachment to Canada, including a driver's license, bank accounts,
medical coverage and a tennis club membership.
3) The applicant's wife became a Canadian citizen. His uncle, aunt, cousin, mother-in-law, and
younger brother lived in Vancouver.
4) The applicant was an active promoter of Canadian business interests in Hong Kong and was
involved in lobbying the Canadian government to obtain changes in the tax laws to make it
more attractive for international shipping companies to locate in Vancouver.
5) The applicant's application for Canadian citizenship was denied on the ground that he had
not, in the four years preceding his application, acquired at least three years of residence in
Canada.
6) He appealed this decision of the Court asserting that his case should be accorded liberal
consideration because he would make an excellent citizen of Canada. He claimed that he
should be granted citizenship to reward his services as exceptional value to Canada.
Issue:
Whether the application for citizenship will prosper. [NO]
Ratio:
1) The appeal was dismissed. The quality of the appellant's residence did not demonstrate that
Canada was the place where he regularly, normally, and customarily resided. He had not
6|Conflict of Laws
centralized his mode of existence in Canada. His family did not have "roots" in Canada.
Some of the applicant’s extended family is in Canada but it is not possible to say that Canada
is the main focus of applicant’s family life. The pattern of physical presence in Canada is
more consistent with visits to the country rather than demonstrating a return to a place where
one regularly, normally, and customarily lives.
2) In so far as the quality of the applicant’s attachment to Canada is concerned, he has acquired
many of what might be called the standard indicia, i.e. driver’s license, bank accounts,
medical coverage, library card, and tennis club membership. Despite these formal indicia of
connection to Canada, the Court is not persuaded that the quality of the applicant’s residence
in Canada is more substantial than the quality of his residence in Hong Kong.
3) Although there is jurisprudence to the effect that, where an applicant would obviously make
an excellent citizen, the provisions of the citizenship act should be given a liberal
interpretation so as to make the granting of citizenship possible, those cases should not be
followed. The same criteria are required to be met by all applicants regardless of the judge's
opinion on the individual's qualities as a potential citizen. The citizenship judge did not err in
not making a recommendation to the minister pursuant to Section 5(4) of the citizenship act
that the applicant should be granted citizenship to "reward services of an exceptional value to
Canada." given that the making of such a recommendation is highly discretionary, the failure
to make one is not properly the subject of an appeal.
4) In any event, the activities in which the applicant engaged were not appreciably different from
those in which many businessmen involve themselves for the sake of making and cementing
useful business contacts and experiences.
5) One must be able to prove that he regularly, normally and customarily resided in a country
where he or she plans to apply for citizenship. The laws of the country where one applies for
citizenship shall be controlling.
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Morguard Investments Ltd. v. De Savoye (1990)
76 DLR (4th) 256 (SCC)
Doctrine: The courts in one province should give "full faith and credit" to the judgments given by
a court in another province or territory so long as that court has properly or appropriately
exercised jurisdiction in the action. Both order and justice militate in favour of the security of
transactions. A person should not be able to avoid legal obligations arising in one province simply
by moving to another province. However, fairness to the defendant must also be considered. The
taking of jurisdiction by a court in one province and its recognition in another must be viewed as
correlatives. Recognition in other provinces should be dependent on the fact that the court giving
judgment exercised jurisdiction "properly" or "appropriately."
Facts:
(1) The plaintiffs, Morguard Investments Limited and Credit Foncier Trust Company were
mortgagees of land situated in Alberta in 1978.
(2) De Savoyye is the mortgagor in this case. He later moved to British Columbia, where he
continued to reside and carry on business.
(3) The mortgages fell into default, and the Morguard brought action in Alberta.
(4) De Savoyye was served in British Columbia in accordance with the rules for service ex
juris of the Alberta Court. He took no steps to appear or defend the action.
(5) There was no clause in the mortgages by which he agreed to submit to the jurisdiction of
the Alberta court, and he did not submit to its jurisdiction.
(6) In the foreclosure action the plaintiffs obtained Rice orders, under which judicial sale of
the properties was carried out and personal judgment was entered against the defendant
for the deficiencies.
(7) The plaintiffs then commenced separate actions in British Columbia to enforce the
Alberta judgment for the deficiencies.
(8) Judgment was granted to the plaintiffs, and was upheld on appeal. The defendant
appealed further.
Issue: WON the judgment of the Alberta Court can be enforced in another jurisdiction (British
Columbia)
Held: Yes, the judgment may be enforced.

(1) Comity, the informing principle of private international law, is an idea based not simply on
respect for the dictates of a foreign sovereign but on convenience and necessity. The
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rules of private international law are grounded in the need in modern times to facilitate
the flow of wealth, skills and people across state lines in a fair and orderly manner. What
must underlie a modern system of private international law are principles of order and
fairness that ensure security of transactions with justice. Thus the content of comity must
be adjusted in light of a changing world order.
(2) There is no comparison between modern interprovincial relationships and those obtaining
between foreign countries in the 19th century. It was a serious error to transpose the
rules developed for the enforcement of foreign judgments to the enforcement of
judgments from sister provinces. The considerations underlying the rules of comity apply
with much greater force between the units of a federal state. Moreover the 19th-century
English rules fly in the face of the obvious intention of the Canadian Constitution to create
a single country. The rules of comity or private international law as they apply between
the provinces must be shaped to conform to the federal structure of the Constitution.
(3) The courts in one province should give "full faith and credit" to the judgments given by a
court in another province or territory so long as that court has properly or appropriately
exercised jurisdiction in the action. Both order and justice militate in favour of the security
of transactions. A person should not be able to avoid legal obligations arising in one
province simply by moving to another province. However, fairness to the defendant must
also be considered. The taking of jurisdiction by a court in one province and its
recognition in another must be viewed as correlatives. Recognition in other provinces
should be dependent on the fact that the court giving judgment exercised jurisdiction
"properly" or "appropriately."
(4) Here, the most reasonable situs for the action for the deficiencies was Alberta. The
property was situated there, and the contract was entered into there by parties then both
resident in the province. Moreover, deficiency actions follow upon foreclosure
proceedings and the action for the deficiencies should have been consolidated with the
foreclosure proceedings in some manner similar to a Rice order. A more "real and
substantial" connection between the damages suffered and the jurisdiction did not exist.
The Alberta court had jurisdiction, and its judgment was to be recognized and
enforceable in British Columbia.
(5) The reciprocal enforcement of judgments Acts in the various provinces were never
intended to alter the rules of private international law. They simply provide for the
registration of judgments as a more convenient procedure than bringing an action to
enforce a judgment given in another province. The Acts do not prevent a plaintiff from
bringing such an action and thereby taking advantage of the rules of private international
law as they may evolve over time.
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Tolofson v. Jensen (1994)
120 OR (4th) 289 (SCC)
Doctrine:
The law where the tort is committed should be applied no matter what the residence of the
tortfeasor or victim. This is to prevent forum-shopping, looking for jurisdictions outside the loci that
is favorable to the plaintiff. The reason for lex loci is the territoriality principle, that people expect
the law of where they are to apply to their actions, and judges cannot be expected to know the
procedural law of other jurisdictions.
Facts:
1. This is a consolidation of 2 similar Canadian Cases decided in different provinces.
2. The Tolofsons, British Columbia natives, were involved in an accident in Sasketchewan
with Leroy Jensen, a Saskatchewan native. The one suing here is the 12-year-old
passenger in a car driven by his father Roger Tolofson.
3. Tolofson brought an action eight years later where they resided, in British Columbia, on
the assumption that the action was statute-barred under Saskatchewan law.
4. Further, Saskatchewan law, unlike British Columbia law, did not permit a gratuitous
passenger to recover, absent willful or wanton misconduct of the driver of the car in which
he or she was travelling.
5. The defendants wanted a determination if Saskatchewan law applied even if the action
was brought in British Columbia.
6. The CA found that the law of the forum (British Columbia) should apply.
7. In Lucas v. Gagnon. The Gagnons, Ontario natives, were involved in an accident in
Quebec with Quebec native Lavoie.
8. Gagnons brought the case in Ontario as litigation guardian of two children against her
husband the driver, for personal injuries.
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9. Since Mrs. Gagnon obtained all the no-fault benefits allowable under the Quebec scheme
from Mr. Gangnon’s Oinsurer, she was barred from bringing action in Quebec by
operation of Quebec’s Automobile Insurance Act, this is why the action was brought in
Ontario.
10. The Ontario Court decided that it had jurisdiction
11. The CA decided that as to Lavoie, Quebec law should apply since the accident occurred
there.
Issue: W/N the lex fori, law where suit was brought, should be applied instead of lex loci, the law
where the tort was committed. – LEX LOCI should apply.
RATIO:
1. The rule of private international law that should generally be applied in torts is the law of the
place where the activity occurred -- the lex loci delicti. This approach responds to the territorial
principle under the international legal order and the federal regime.
2. It also responds to a number of sound practical considerations. It is certain, easy to apply and
predictable and meets normal expectations in that ordinarily people expect their activities to be
governed by the law of the place where they happen to be and expect that concomitant legal
benefits and responsibilities will be defined accordingly. The government of that place is the only
one with power to deal with these activities. The same expectation is ordinarily shared by other
states and by people outside the place where an activity occurs.
3. he former British rule, adopted in McLean v. Pettigrew, that a court should apply its law (lex
fori) when adjudicating on wrongs committed in another country, subject to the wrong's being
"unjustifiable" in that country, cannot be accepted. This would involve a court's defining the
nature and consequences of an act done in another country, which, barring some principled
justification, flies against the territoriality principle. In practice, the courts of different countries
would follow different rules in respect of the same wrong and invite forum shopping by litigants in
search of the most beneficial place to litigate an issue. Applying the same approach to the units
of a federal state like Canada would make forum shopping even easier.
4. In this respect, given the mobility of Canadians and the many common features in the law of
the various provinces and the essentially unitary nature of Canada's court system, an invariable
rule that the matter also be actionable in the province of the forum is not necessary.
5. The underlying principles of private international law are order and fairness, but order comes
first for it is a precondition to justice. Considerations of public policy in actions that take place
wholly within Canada should play a limited role, if at all. Arguments for an exception based on
public policy are simply rooted in the fact that the court does not approve of the law that the
legislature chose to adopt. The law of the land, however, is not usually ignored in favour of those
who visit. The perception that the parties intend the law of their residence to apply is not valid.
6. Saskatchewan's substantive law applies in Tolofson v. Jensen. This includes its limitation
rule. In any action involving the application of a foreign law the characterization of rules of law as
substantive or procedural is crucial because the substantive rights of the parties to an action may
be governed by a foreign law, but all matters of procedure are governed exclusively by the law of
the forum. The forum court cannot be expected to apply the procedural rules of the foreign state
whose law it wishes to apply. The forum's procedural rules exist for the convenience of the court,
and forum judges understand them.
7. In Lucas (Litigation Guardian of) v. Gagnon, Quebec law applies, both by virtue of Quebec's
no-fault insurance scheme and through the operation of lex loci delicti. Barring other
considerations, the legislature clearly intended that these provisions should apply to all persons
who have an accident in Quebec regardless of their province of residence.
United States of America v. Ivey (1995)
120 OR (3d) 533 (Gen. Div.)
Doctrine:
Judgments of the foreign country may be enforceable against a resident of another country if that
resident has a real and substantial connection in the foreign country.
Facts:
1. Liquid Disposal Inc. (LDI) is a Michigan corporation conducting a waste disposable

business. Ivey, an Ontario resident, had a controlling interest in LDI and oversaw its
management and operations. Ivey is also the president and CEO of Ineco and Maziv
which are his co-defendants.
2. Maziv, an Ontario corporation, was the parent of LDI and held 80% of LDI’s shares.
3. Ineco, another Ontario corporation, acquired the shares of Maziv and assumed the
liabilities of Maziv.
4. On January 1962, there was a serious accident in the LDI site resulting to death and
injuries. As a result thereof, the Michigan Court issued a TRO to cease all operations of
LDI.
5. LDI’s lawyers commenced involuntary bankruptcy proceedings against their clients.
6. Meanwhile, pursuant to the delegated authority under the Comprehensive Environmental
Response, Compensation and Liability Act 1980 (CERCLA), Environmental Protection
Agency (EPA) undertook remedial measures to contain the adverse environmental
effects of the accident caused by LDI.
7. The removal actions of EPA include:
a. Cleanup of oil discharged into a river;
b. Removal of liquid waste stored in above-ground tanks and drums;
c. Excavation and Removal of subsurface tanks and drainage and stabilization of
lagoons and
d. Removal of incineration equipment
8. The trustee in the bankruptcy of LDI and Ivey did not assume responsibility for the
cleanup due to insufficiency of funds.
9. US sued for reimbursement of the cost of remedial measures undertaken by EPA related
to a waste disposal site owned and operated by Ivey.
10. Defendants were served in Ontario. They asked the District Court to dismiss the case
based on lack of personal jurisdiction.
11. US, on the other hand, relied on the Michigan “long-arm” statute.
12. District Court found for the plaintiff on the ground of defendants’ financial interest and
Ivey’s close involvement to the operations of LDI.
13. US was able to obtain a summary judgment against herein defendants.
14. US brings this motion to enforce 2 judgments it has obtained against Ivey.
Issues/Held:
1. Did the District Court have jurisdiction against the defendants to provide basis for this
court to enforce such judgments? Yes.
2. Should enforcement be refused on the ground that the judgments are based on the
“penal, revenue or other public law” of a foreign state? No.
3. Should enforcement be refused on the ground that the judgments were obtained in
violation of the rules of natural justice? No.
4. Should enforcement be refused on the ground that to enforce the judgments would be
contrary to public policy? No.
Ratio:
1. The Court used the case of Savoye v. Morguard Investments Ltd. which specifically dealt
with the recognition and enforcement of a judgment of the courts of one province by
courts of another province.
a. In this case, the Court held that the exigencies of modern life and commerce in
the Canadian federation require a departure of the traditional and restrictive rules
governing recognition and enforcement.
b. Provided there was a real and substantial connection between the rendering
province and the subject matter of the action, the judgment is entitled to
recognition and enforcement throughout CANADA.
2. The Court held that in a number of cases, the doctrine in Morguard applies to judgments
rendered by US Courts and other foreign courts whose legal regimes are based upon
principles compatible to Canadian concepts of justice.
3. If the ruling would be otherwise, the law can seriously be circumvented by having the
resident of Ontario to actively engaged in a business in Michigan, US but then shelter
behind the borders of Ontario from answering a civil liability for harm caused by that
business.
4. Applying the Real and Substantial Test in this case:
a. Defendants were engaged in the waste disposal business in Michigan
b. Cause of Action arose within the jurisdiction of the Michigan District Court.
c. Maziv and Ivey had direct ownership interest in LDI.
d. Ivey was a principal officer of LDI and Maziv. He was present in Michigan to
make decisions concerning the very environmental issues giving rise to the US’
claims. He directly dealt with EPA.
e. Ineco acquired interests in LDI and assumed any liability of Maziv.
5. Furthermore, the court held that the CERCLA provisions imposing liability cannot be
classified as penal in nature.
a. CERCLA does not exact punishment but mere reimbursement obligation on any
person judicially determined responsible for the costs of remedying hazardous
conditions.
b. The measure of recovery is directly tied to the cost of the required environmental
cleanup.
6. Neither is CERCLA a revenue law.
a. The effect of the law is to require those who have created a hazard to bear the
cost of cleanup.
b. To repeat, the damages claimed were the actual cost of removal and remedial
measures.
c. In imposing civil liability for the cost of repairing the harm for which the
defendants are being held to account, the US is not insisting on depriving the
defendants of property rights within Canada for some public purpose.
d. The CERCLA is an exercise by the sovereign government of its sovereign a
uthority over property within its territory or over its subjects wherever they may
be.
7. Given the prevalence of regulatory schemes aimed at environmental protection and
control, considerations of comity strongly favour enforcement.
8. Defendants are also precluded in challenging the validity of the proceedings in the
Michigan District Court since such court had jurisdiction with respect to the alleged
nuisance at the LDI site.
9. The defendants lost. The principles of res judicata and estoppel apply to proceedings
before foreign courts.
10. Even if it is shown that the District Court erred in holding defendants liable, the
enforcement of the judgments would still continue as such error of law is not a ground for
refusing enforcement.
11. It has been held that where foreign law is applicable, Canadian courts will generally apply
that law even if the result may be contrary to domestic law.
12. Lastly, a comparison of CERCLA and OEPA (Canadian counterpart of CERCLA) reveal
that OEPA has adopted measures very similar to CERCLA. Therefore, there is no merit
in the contention that there is a violation of public policy since both Ontario and Michigan
adopts the same policy in dealing with environmental concerns.
Kuwait Airways v. Iraqi Airways (2002)
2 AC 883 (HL)
DOCTRINE:
When deciding an issue by reference to foreign law, the court of England must have a residual
power, to be exercised exceptionally, to disregard a provision in the foreign law when to do
otherwise would affront basic principles of justice and fairness which the court seeks to apply in
the administration of justice. Violation of international law is considered as against public policy.
FACTS:
1. In August 1990, after Iraq invaded Kuwait, the Revolutionary Command Council (RCC) of
Iraq adopted resolutions proclaiming the sovereignty of Iraq over Kuwait.
2. Iraqi forces took over the airport at Kuwait and seized 10 commercial aircraft belonging to
Kuwait Airways Corporation (KAC)
a. 9 of the aircraft were subsequently moved to Iraq.
b. The remaining one, undergoing repair at the time of the invasion, was flown to
Baghdad at a later time.
3. The RCC adopted Resolution 369 dissolving KAC and transferring all its property
worldwide, including the 10 aircraft, to the state-owned Iraqi Airways Co. (IAC).
4. KAC commenced proceedings against the Republic of Iraq and IAC claiming the return of
its 10 aircraft or payment of their value, and damages.
5. In February 1991, 4 of the 10 aircraft were destroyed by a bombing (Mosul 4). The other
6 were evacuated to Iran. Following negotiations with the government of Iran, the 6
remaining aircraft were eventually flown back to Kuwait, with KAC paying Iran for the cost
of keeping, sheltering and maintaining them. (Iran 6)
6. The appealed case revolved around 2 principal issues
a. Liability – J. Mance [lower court] held that IAC had wrongfully interfered with the
aircraft
b. Damages – J. Aikens [lower court] held that KAC failed to establish that it had
suffered any recoverable damage in respect of any of the aircraft. KAC would
have suffered losses even if IAC had not wrongfully interfered with the aircraft.
PRELIMINARY DISCUSSION OF ISSUES:
7. It should first be noted that this case is a claim for damages which has no connection with
England (the forum). Neither do the parties have any connection to England. Thus, the
Court held it proper to apply the double actionability rule relevant to torts cases. (In order
to be actionable, the tortious act done abroad must also be considered tortious in the
forum.)
8. To satisfy the aforementioned test, KAC must show that it was the owner of the aircraft
when IAC did the acts complained of.
a. On its face, KAC is not the owner of the aircraft.
i. Under Iraqi law, Resolution 369 divested KAC of its ownership and
vested title in IAC. The repeal of this decree did not retrospectively give
KAC a title it did not have during the relevant period.
ii. Under English conflict of laws principles, the transfer of title to tangible
movable property normally depends on the lex situs which in this case
was Iraq.
b. However, KAC argues that Resolution 369 is against forum public policy and
should not be considered by the Court.
ISSUES:
1. Whether Resolution 369 is against public policy - YES
RATIO:
1. Resolution 369 is against English public policy.

a. When deciding an issue by reference to foreign law, the court of England must
have a residual power, to be exercised exceptionally, to disregard a provision in
the foreign law when to do otherwise would affront basic principles of justice and
fairness which the court seeks to apply in the administration of justice.
b. The resolution was part and parcel of the Iraqi seizure of Kuwait and its assets
and the assimilation of these assets into the political, social and economic
structure of Iraq. That this seizure and assimilation were flagrant violations of
rules of international law of fundamental importance is beyond argument.
c. In fact on August 9, the UN Security Council decided that the annexation of
Kuwait by Iraq had no legal validity and was null and void. The Council called
upon all states not to recognize this annexation, and to refrain from any action
which might be interpreted as an indirect recognition. This decision is binding
upon all members of the United Nations, including England, Kuwait and Iraq.
2. The acceptability of a provision of foreign law must be judged by contemporary
standards. The courts of this country should give effect to clearly established rules of
international law. Resolution 369 was not simply a governmental expropriation of property
within its territory. Having forcible invaded Kuwait, Iraq adopted this decree as part of its
attempt to extinguish every vestige of Kuwait’s existence. Such a fundamental breach of
international law can properly cause the courts to say that a law depriving those whose
property has been plundered of the ownership of their property in favor of the aggressor’s
own citizens will not be enforced or recognized in proceedings in this country.
Gillespie Management Corp. v. Terrace Properties (1989)
39 BCLR (2d) 337 (CA)
Doctrine: Illegality of performance of a contract in the place of performance is a valid defense for
breach of contract, despite the fact that the contract is valid in the state where it was entered into.
Where another state’s laws are similar to the laws of the forum, the Court should give effect to a
foreign public policy.
Facts:
1. Gillespie Mgmt. Corp. (a British Columbia company) and Terrace Properties (a Washington
partnership) entered into a management agreement in British Columbia. In the agreement,
Terrace was to assume the management of the Gillespie's apartment building in Washington,
USA. Said agreement had a three-month notice provision for its termination.
2. Gillespie subsequently terminated the agreement without notice as required by the agreement,
neither was any payment in lieu of notice made.
3. Terrace brought an action for damages for alleged breach of contract, claiming the amount of
$10,252.97 as management fees.
4. One of Gillespie’s defenses was the illegality of the performance of the contract. In the state of
Washington, the law provides that it shall be unlawful to act as a license broker without a valid
license. That no suit or action shall be brought for the collection of compensation of a real estate
broker unless the plaintiff is duly licensed. And that said law is to apply to nonresident brokers
practicing within the state. Gillespie argued that Terrace, not being licensed in Washington, could
not legally perform the agreement, and thus is not entitled to compensation.
5. Trial Court ruled in favor of Terrace. Gillespie appealed.
ISSUE:
Is the agreement enforceable such that Terrace is entitled to compensation? - No
HELD:
1. The agreement was entered into British Columbia, and thus the proper law of the contract is
the law of British Columbia. However, it must be noted that a substantial part of the contract was
to be performed in Washington. The Court ruled that the illegality of Terrace’s performance of its
obligations in the contract in Washington, where there is an express prohibition against its doing
so unless properly licensed, renders its claim unenforceable in the courts of British Columbia.
2. In the absence of evidence that the parties intended another law to apply, the mode of
performing a contract, as distinct from the substance of the obligation, is governed by the law of
the place at which the obligation is to be performed.
3. In addition, on the grounds of forum public policy, the Court should give effect to a foreign
public policy where it is similar to its own. British Columbia has a similar law that prohibits a
person to act as an agent for the collection of rents, and will not be entitled to receive
compensation, unless the agent has a license.
4. Appeal granted, Terrace may not enforce compensation for performance of an illegal act.
Huntington v. Attrill (1893)
AC 150 (PC) (Ont.)
Doctrine:
The question whether a statute of one state which in some aspects may be called penal is a
penal law in the international sense, so that it cannot be enforced in the courts of another state,
depends upon the question whether its purpose is to punish an offense against the public justice
of the state or to afford a private remedy to a person injured by the wrongful act. A statute making
the officers of a corporation who sign and record a false certificate of the amount of its capital
stock liable for all its debts is not a penal law in the international sense.
Facts
1. Henry Attril was a director of the Rockaway Beach Improvement Company, a

company incorporated in New York. He caused to be recorded a false certificate, stating
that the whole of the capital stock of the corporation had been paid in.
2. Collis P. Huntington, was a resident of New York and a creditor of Rockaway

Beach Improvement Company. He lent the company the sum of $100,000, to be repaid
on demand.
3. Huntington filed a case against Atrill by the law of the State of New York which
provides that the officers of a corporation who sign and record a false certificate of the
amount of its capital stock shall be liable for all its debts. Huntington argues that by
making such false certificate, Attrill became liable for all the debts of the company,
including its debt to the former. The case was decided in against the company and its
stockholders as liable party to pay all the debts of the company.
4. Attrill, while indebted under New York law, acquired a large amount of stock from
Equitable Gaslight Company of Baltimore, a corporation of Maryland.
5. On March 21, 1888, A bill in equity was filed before the Circuit Court of Baltimore
City by Huntington against the Equitable Gaslight Company of Baltimore, a corporation of
Maryland, and against Attrill, his wife and three daughters.
6. The purpose of the Bill of Equity was to set aside a transfer of stock from
Rockaway Beach Improvement Company to Equitable Gaslight Company made by Attrill
in fraud of his creditors, and to charge the stocks in the New York company with the
payment of a judgment recovered by the plaintiff against him in the State of New York.
7. The court of Maryland declined to entertain the bill because it had been
recovered in another state in an action for a penalty.
Issue: WON the Court of Maryland erred in dismissing the bill because the laws of New York
was penal in nature, therefore not enforceable in another state.
Held:
The SC in Gray opinion Reversed. The law of NY cited is not penal in nature.
Ratio:
1. The question whether a statute of one state which in some aspects may be
called penal is a penal law in the international sense, so that it cannot be enforced in the
courts of another state, depends upon the question whether its purpose is to punish an
offense against the public justice of the state or to afford a private remedy to a person
injured by the wrongful act.
2. A statute making the officers of a corporation who sign and record a false
certificate of the amount of its capital stock liable for all its debts is not a penal law in the
international sense.
3. But who will determine Whether a statute of one state is a penal law, which
cannot be enforced in another state?? It is to be determined by the court which is called
upon to enforce it.
4. If the highest court of a state declines to give full faith and credit to a judgment of
another state because in its opinion that judgment was for a penalty, this Court, in
determining whether full faith and credit have been given to that judgment, must decide
for itself whether the original cause of action was penal in the international sense.
Stringam v. Dubois (1992)
135 AR 64 (CA)
Doctrine: Foreign tax or revenue laws cannot be enforced in another country directly or
indirectly. The Supreme Court stressed two points, namely that an indirect attempt at
enforcement is as offensive as a direct attempt and that one must look at the substance of the
claim to determine its nature for the purposes of application of the rule.
Facts:
 The testator in this case Sarah Dubois Cravey, was a United States resident, died on
May 1, 1983, with domicile in the State of Arizona.
 In her will she named the Valley National Bank of Oregon as her executor and she
expressly devised to Kimberly Dubois, her niece and the Respondent in this appeal, her
Alberta wheat farm.
 The total value of the estate is $1.9M including probate and non-probate assets.The U.S.
Executor bank applied to an Arizona Court for an order apportioning the total estate
taxes. The court ordered that 63% be taken from the Pennsylvania Trust while the
remaining 37% will be taken from the probate assets.
 After the settlement and payment of some taxes, it was determined that the U.S. probate
assets were insufficient to pay the appropriated share of taxes, the U.S. Executor is now
looking at the Canadian real estate for this payment
 The respondent devisee then applied for an order requiring the conveyance to her of the
wheat farm. This application was opposed by the Administrator on the grounds that the
only remaining asset of substance from which the unpaid taxes could be paid was the
Canadian farm.
 Trial Court judge allowed the respondent’s application and thus ordered the appellant to
transfer title to the wheat farm to her.
Issue: Whether or not the foreign judgment from the U.S. for the payment of tax in the said
foreign country can be enforced over the property in Alberta, Canada.
Held: NO, the foreign revenue laws cannot be enforced directly or indirectly in the Country where
the property is situated
Ratio:
 Based on the facts of this case, the rule against the Canadian courts enforcing a tax
claim of a foreign jurisdiction applies so as to allow the transfer of Canadian realty to the
devisee of that realty, rather than requiring that the property be sold and the proceeds
used firstly to pay United States estate taxes.
 The Supreme Court, citing United States of America v. Harden, endorsed unconditionally
that which is referred to as the “ancient rule”, that in no circumstances will the courts
directly or indirectly enforce the revenue laws of another country
 A foreign State cannot escape the application of this rule, which is one of public policy, by
taking a judgment in its own courts and bringing suit here on that judgment. The claim
asserted remains a claim for taxes. It has not, in our courts, merged in the judgment;
enforcement of the judgment would be enforcement of the tax claim.
 The Supreme Court stressed two points, namely that an indirect attempt at enforcement
is as offensive as a direct attempt and that one must look at the substance of the claim to
determine its nature for the purposes of application of the rule.
 In this case the nature or substance of the proceeding is the indirect enforcement of the
tax laws of the United States and as such the rule enunciated in Harden should be
applied.
 It must also be noted that the U.S. taxing authority has recourse for unpaid taxes against
the respondent, who is a U.S. resident, and thus it need not pursue either the appellant or
the Bank. With respect to a duty imposed under the deceased's will, it must be noted that
approximately 4 years after execution of his will, the testatrix executed a codicil dealing
only with the payment of "all inheritances, death & estate taxes". The clear intent of which
is that all those taxes mentioned by her should be paid out of either trust or the residue of
her estate. There is no suggestion that the property specifically devised to the respondent
should be burdened by estate taxes.
Re Sefel Geophysical Ltd. (1989)
1 WWR 251, 260-61 (Alta. QB)
Doctrine: Priority of claims in bankruptcy proceedings is determined by lex fori. However, the
court may give preferential claims by reason of equity.
Facts:
 Sefel Geo is a company that was involved in seismic and geophysical activity in Canada,
United States, and United Kingdom.
 During the early 1980s, Sefel Geo encountered financial difficulty.
 A petition was filed pursuant to the Companies’ Creditors Arrangement Act (CCAA).
 In conjunction with the CCAA, Sefel obtained a stay of proceedings against all creditors
in Canada while negotiations under the CCAA were ongoing.
 Since majority of the unsecured assets were located in the United States, it was
necessary for Sefel to obtain a similiar stay in the US to prevent the creditors who were
located in that jurisdiction from attaching the assets.
 Evidence was submitted to the US Bankruptcy Court in the district of Colorado to obtain
the stay of proceedings in accordance with Section 304 of the Bankruptcy Code. Section
304 gives the US courts remedial powers with respect to assets in the US at the behest
of a foreign trustee. The Canadian lawyer also gave evidence that led the US court to
believe that the US creditors would receive equal treatment under the CCAA agreement.
The order was granted
 The agreement pursuant to the CCAA failed.
 The Royal Bank of Canada filed a petition for bankruptcy for Sefel Geophysical
 The court appointed Clarkson Gordon, Inc. (CGI) as the trustee. CGI was able to recover
$1.25 million in unsecured assets, approximately $113 million of which was received from
the liquidation of assets located in the US.
 Nothing was collected from the UK because there are no unsecured assets located in
that jurisdiction.
 US creditors: Claims of US creditors included tax, workers’ compensation and
unemployment insurance claims.
o US creditors sought to be given preferred status as this would have been
accorded them under American bankruptcy laws.
o However, foreign claims such as those asserted by US creditors are denied
preferential status under Canadian Bankruptcy Act.
o The Canadian Bankruptcy Act grants preferential status to tax claims, workers’
compensation claims, and unemployment insurance claims but only if they are
domestic. It does not provide for the recognition of similar foreign claims.
o The US creditors attempted to get around the Canadian Bankruptcy Act by
arguing firstly, that the doctrine of comity of nations required the Alberta court to
recognize their claims. Secondly, if comity was not adequate, equity, more
specifically the equitable remedy of unjust enrichment, provided the court with
sufficient justification for the recognition of the claims.
 UK creditors: The status of UK creditors was not contentious because there are not
assets in that jurisdiction. There was nothing which they could have attached to satisfy
their claims.
Issue:
Whether the US claims and UK claims, similar in nature to Canadian Crown claims, are to be
considered preferred, unsecured, or disallowed?
US claims- preferred; UK-unsecured
Ratio
 Doctrine of Comity
o The doctrine of comity has only been used with respect to the recognition of
foreign bankruptcy proceedings. The court was unable to find an example where
comity was used to determine priorities, which are traditionally determined by the
lex fori.
o According to conflict of laws principles, priorities are determined by the lex fori.
The lex fori with respect to the present case is the law of Canada and that law is
encompassed in the Bankruptcy Act.
o Comity does not allow the court to alter priorities set out in the Canadian
Bankruptcy Act, but it does dictate the recognition of foreign sovereigns and
governments to some extent in liquidation proceedings.
 Doctrine of Equity
o Since the US creditors were refrained from attaching and realizing on the assets
located in the US, which comprised of at least 90% of the total unsecured assets,
it would be grossly unfair if the US creditors will be denied any preference. To
turn around and prevent the parties with priority to those assets from asserting
similar priority in the present proceedings seems manifestly unjust.
o Thus, the US preferred creditors succeeded in obtaining preferential status in the
Canadian proceedings on the basis of a principle in equity.
 Doctrine of Remedial Constructive Trust
o Similar to the doctrine of equity, constructive trust depends on the existence of
unjust enrichment.
 UK creditors are not granted preferential status
o Due to the fact that there are no unsecured assets in the UK that are available to
the creditors in that jurisdiction, Sefel’s estate was not unjustly enriched at their
expense.
o UK creditors are given general status
Gillespie v. Grant (1992)
4 Alta LR (3d) 122 (Surr. Ct)
Doctrine: Domicile has been defined as a person's permanent home which requires the act of
residence and the intention to remain there permanently. While a person may have more than
one home, he can only have one domicile.
Facts:
 Arlo Bertram Grant died at Vancouver, British Columbia, in 1991. He left a Will and Codicil,
both drawn by K. Bruce Panton, a Barrister and Solicitor of Richmond, British Columbia. The
Will was allegedly executed by the Grant at Richmond, British Columbia, both while he was
resident in British Columbia.
 The beneficiaries of the Estate are two of his four children, his sons Thomas True Grant and
Kenton Rex Grant, and his long-time friend and business associate, David L. Gillespie, who is
also one of the three named executors. The other two executors are Harry Johnstone Noble,
an Alberta lawyer, and Howard G. Rowland, an Alberta Chartered Accountant, both of whom
are long-time friends of the Deceased.
 The Applicants argue that the Court of Queen's Bench has jurisdiction over the probate
proceedings in respect of the Estate on the basis that the only immovable property in the
whole of the Estate is situate in the Province of Alberta. They further argue that Alberta has
jurisdiction over all movable property because the domicile of the late Arlo Bertram Grant at
death was Alberta. Based on these factors, they argue Alberta is the proper forum for the
determination of all matters and no question of lis alibi pendens or forum conveniens arises.
 While there is no reference in the above text to the movable/immovable distinction being
necessary to the determination of the applicable law in deciding capacity, it is clear that the
issue of domicile is relevant to a determination of capacity and in this case
Issue: Whether British Columbia or Alberta law will apply in determining Bud Grant's
testamentary capacity.
Held:
 Alberta was the natural forum. In choosing a forum, the "natural forum" may have an
advantage as being the home of both the law and the evidence. There was no prejudice to
having the issue of domicile determined here. The issue of whether Alberta or British
Columbia was the appropriate forum thereafter was left for further consideration after
determination of domicile.
 In the event there is an issue of forum conveniens with respect to the issue of domicile on the
basis of lis alibi pendens, Alberta is the appropriate forum based on the law and the
proceedings to date.
 The fact that the proceedings are well under way in Alberta (affidavits on behalf of both the
Applicants and Respondents concerning the issue of domicile have been filed and cross-
examinations of the affiants have been conducted in this province) while the proceedings in
British Columbia have not gone beyond the initial stages cannot be overlooked.
 Domicile has been defined as a person's permanent home which requires the act of
residence and the intention to remain there permanently. While a person may have more
than one home, he can only have one domicile
 A trial of the issue for domicile is necessary because of the unusual circumstances of this
case, the fact that the Deceased maintained two residences, one in each province. It is
important in this case to determine the intentions of the Deceased from the time he
established his Vancouver residence until his death in order to make a proper determination
of domicile. The issue of whether or not Alberta or British Columbia would be the appropriate
forum to continue the proceedings after domicile has been determined should be left for
consideration pending that determination.
 If Mr. Grant is found to have died domiciled in Alberta: his testamentary capacity, the manner
and formalities, and the intrinsic validity and effect of his will with respect to all of his
movables, both in Alberta and British Columbia, would be determined according to Alberta
law.

If, however, Mr. Grant is found to have died domiciled in British Columbia: the law of British
Columbia province would be determinative of capacity and succession to all movables in both
provinces. Alberta law would apply to the only immovable, the Gull Lake property. Both
provinces will have jurisdiction in the matter and the issue of forum conveniens may have to
be determined having regard to all of the circumstances of the case that exist at that time.
Re Urguhart Estate (1990)
74 OR (2d) 42 (HC)
Doctrine:
1. An existing domicile is presumed to continue until it is proved that a new domicile has
been acquired.
2. A person abandons a domicile of choice in a country by ceasing to reside there and by
ceasing to intend to reside there permanently or indefinitely and not otherwise.
Facts:
1. Charles Yule Urquhart and the applicant, Mariette Felice Taylor lived together as
common law spouses from 1980 until the death of the deceased in April 1986
2. By his will, the deceased left all of his assets to his son, Brett Dolisie.
3. Urquhart's life was insured under his employer's group insurance. Dolisie was named as
beneficiary. He opposes the application.
4. This application was started in the Surrogate Court of the Judicial District of Ottawa-
Carleton.
5. On the same day an ex parte order was made suspending administration of the estate,
restraining Canada Life Assurance Company from paying under the group insurance and
restraining Dolisie from receiving any such payment.
6. Letters of probate were granted to Dr. Byron Hyde who was named executor and the will
also described Urquhart as being of the City of Ottawa.
7. Dolisie petitioned to the Palm Beach County Circuit Court in Florida for administration of
his father's estate which was granted by the court.
8. Taylor took steps in the Florida court to have the grant of administration to Dolisie
revoked, the existence of her common-law marriage to Urquhart recognized and for relief
afforded by the law of Florida.
9. Taylor commenced civil proceedings against Dolisie in the Florida court.
10. Taylor's probate proceedings in Florida were successful and an order was made revoking
the grant of letters of administration to Dolisie.
11. It appears that Dolisie and Canada Life both moved in Ontario to set aside the order
restraining payment of the insurance proceeds to Dolisie which was denied.
Issue:
1. Whether or not Ontario, Canada was the domicile of the deceased at the time of his
death so its laws would govern
Ruling:
1. One's domicile, putting it briefly, is where one lives and intends to go on living indefinitely.
2. The possible choices here are New Zealand, Ontario, Quebec, Florida and New York.
3. Urquhart was born in New Zealand and left after the breakup of his first marriage.
4. He also worked in California and was in journalism in Vancouver.
5. He was working at the New Zealand Embassy in Washington, D.C., when he met the
woman who became his second wife.
6. Urquhart and his wife moved to Ottawa where their son, Brett, was born.
7. According to Brett, his mother and father separated shortly after and Brett, presumably
with his mother, was in Germany from 1968 to 1973.
8. His father stayed on in Ottawa. He remained in or about Ottawa until 1981.
9. In Ottawa he met Hyde, who became a very close friend. The deceased maintained a
room in Hyde's house, used Hyde.'s address as his mailing address and the address on
his driver's licence and voted regularly from that address.
10. During his last years, he frequently returned to Canada. He was living in Florida at the
time of his death but from the evidence it could not be concluded that there was any
intention on his part to stay there indefinitely.
11. By the summer of 1980, the deceased had established a domicile of choice in Ontario: he
was living there in fact and, insofar as he had any intention, it was to go on living there
indefinitely.
12. It was not necessary to find that the deceased intended to live there permanently. A
domicile of choice continues until it is lost by leaving it with the animus non revertendi.
13. The intention must be one to abandon permanently. The deceased never intended to live
in the United States permanently. Accordingly, he never lost his domicile of choice in
Ontario.
Adderson v. Adderson (1987)
36 DLR (4th) 631 (Alta. CA)
Facts:
 The wife was born an American citizen who subsequently acquired Canadian citizenship
while her husband was born in Canada.
 They married in Calgary and lived together in Alberta for some 14 years.
 They separated for 3 months and during which time the wife lived in Hawaii
 When they reconciled they returned to Alberta and lived together from Jan 1983 to March
1984
 Subsequently, they decided to leave for Hawaii and so they sold some of their
possessions and obtained US alien registration
 At first they lived with friends and the wife secured employment but the husband couldn’t
find a suitable one
 In early May they moved out of their friend’s house and rented a house on a month-to-
month tenancy
 Mid-May the husband returned to Calgary on business. He went back in June and
enrolled in an acting course
 At the middle of august 1984, the husband left Hawaii to reside in California and later
Oregon
 In October 1984 he advised his wife that he wanted a divorce so his wife commenced an
action for divorce in Hawaii in May 1985 and also in that month commenced this
matrimonial property action in Alberta
 The decree of divorce was pronounced on Oct 2, 1985
Issue:
WON Alberta had jurisdiction to rule upon the matrimonial property action
Held: Yes because the last joint habitual residence of the parties was in Alberta
Ratio:
The test for jurisdiction of the Court of Queen's Bench of Alberta in a matrimonial property action,
where a divorce petition is not issued in this province, is contained in s. 3(1) of the Matrimonial
Property Act, which provides:
3(1) A spouse may apply to the Court for a matrimonial property order only if
(a) the habitual residence of both spouses is in Alberta, whether or not the spouses are
living together,
(b) the last joint habitual residence of the spouses was in Alberta, or
(c) the spouses have not established a joint habitual residence since the time of marriage but the
habitual residence of each of them at the time of marriage was in Alberta.
The term "last joint habitual residence" has not previously been considered in this court. The
concept of "habitual residence" seems to have come into Canadian law from the Hague
Conventions adopted by the Hague Conference on Private International Law. With the entry of
Great Britain into the European Community it began to appear in British statutes enacted to give
effect to the Hague Conventions.
Habitual residence involves only a present intention of residence. It is not the same with domicile
that is concerned with whether there is future intention to live elsewhere.
Habitual residence refers to the quality of residence. Duration may be a factor depending on the
circumstances. It requires an animus less than that required for domicile; it is mid-point between
domicile and residence, importing somewhat more durable ties than the latter term.
Considering all of the factors in this case, though the parties left Alberta hoping and intending that
they would establish a joint habitual residence in Hawaii, they never did in fact do so.
Their joint residence never did exhibit the durable ties to Hawaii necessary to a joint habitual
residence. Consequently their last joint habitual residence was in Alberta.
Success International Inc. vs. Environmental Export Int’l.of Canada,
Inc. (1995)
123 DLR (4th) (Ont. Gen. Div.)
Doctrine:
Although a corporation’s relationship with another corporation is based on a single contractual

transaction, it will constitute as carrying on business in a country based on the magnitude and
duration of the transaction, and activities with it, distinguishing it from the simple transactions
provided by jurisprudence.
Facts:
1. Applicant Success is a New York corporation with headquarters in New York City.
Respondent EEI is an Ontario company based in Kitchener.
2. Success and EEI entered into a commercial contract on June 7, 1993. The subject matter
of the contract was a substantial amount of used tire manufacturing equipment located
primarily at the former Uniroyal-Goodrich tire manufacturing plant in Kitchener. Success
purchased the equipment from E.E.I. for resale and delivery to the Yunnan Tire and
Rubber Manufacturing Company in the Peoples Republic of China.
3. A key provision of the contract provides that all disputes must be resolved by private
arbitration rather than by resort to the courts. Throughout 1994, both companies took
various matters to the arbitrator. He made a variety of awards in March, June, October,
November and December 1994.
4. In the late spring of 1994 Success complained about a perceived slowness on the part of
E.E.I. in loading the tire manufacturing equipment into containers in Kitchener.
5. Arbitrator made an award which ordered that EEI shall modify its operations by packing
and loading a minimum of four to five containers of approved equipment per day and that
regular shipping schedules be provided to Success in a timely fashion.
6. Success alleges that E.E.I. has not complied with this award and seeks to have it
enforced by the court pursuant to s. 50(1) of the Arbitration Act, 1991, S.O. 1991, c. 17,
which provides:
50(1) A person who is entitled to enforcement of an award made in Ontario or
elsewhere in Canada may make an application to the court to that effect.
7. EEI contends that Success cannot enforce the arbitrator’s June 30 award. It advances
severed arguments in support of this position; however, the main one is clearly E.E.I.’s
contention that Success has not complied with the licensing requirements of the Extra-
Provincial Corporations Act and is, therefore, disentitled from seeking access to the
Ontario courts.
Issue:
Whether Success is in violation of the licensing requirements of the Extra-Provincial

Corporations Act and, as a result, cannot resort to the courts of Ontario to seek to enforce an
award flowing from a consensual arbitration process. YES.
Held:
For purposes of Ontario law, there are different classes of corporations. Success is what is
known as a class 3 corporation; that is, it is incorporated under the laws of a foreign
jurisdiction, namely, the State of New York. The Extra-Provincial Corporations Act sets out
some of the rights and responsibilities, commercial and legal, of foreign corporations
engaging in business in Ontario. Sections 4(2) and 21(1) provide:
4(2) No extra-provincial corporation within class 3 shall carry on any of its business in Ontario
without a licence under this Act to do so
21(1) An extra-provincial corporation within class 3 that has not obtained a licence when
required by this Act, is not capable of maintaining any action or proceeding in any court or
tribunal in Ontario in respect of any contract made by it.
 The court agrees with EEI’s first contention. Success’s application is “a proceeding in
respect of a contract”. Success argues that the subject matter of its application is the
enforcement of an arbitral award, not a contract. In the court’s view, this is an overly
technical argument. The entire relationship between the parties is governed by a 22-
page contract. The arbitration method of resolving disputes between the parties is
established and regulated by the contract. The arbitrator’s many awards deal with
nothing but the contract. In light of these factors, it would be artificial and technical in
the extreme to conclude that Success’s application to enforce one of the arbitrator’s
awards is not “a proceeding in respect of a contract”.
 The court likewise agrees as to the second contention that Success is carrying on
business in Ontario within the meaning of section 4(2) of the Extra-Provincial
Corporations Act.
o Success’s ultimate submission, based on the case-law, is that the contract
between it and E.E.I. is a single or isolated transaction (Linde) that happened
to take place in Ontario but does not go so far as to constitute carrying on
business within Ontario (John Deere Plow). Although this submission is not
without merit, in my view it must fail. I reach this conclusion for several
reasons.
o First, although the Success-E.E.I. relationship is based on a single
contractual transaction, the magnitude and duration of the transaction, and
the activities associated with it, distinguish it from the simple transactions
considered in the cases relied upon by Success.
o According to the court, What is the sensible commercial result in this case is
the conclusion that a New York company which opens a large office in
Kitchener, furnishes it with equipment and supplies, brings in from Ohio a
full-time project manager, employs 22 workers, professional and labourers,
including nine brought in from the United States, labels its workforce “a team”
and its activities “a project”, and contemplates that all of this will be in place
for a minimum of almost six months (with extensions being anticipated and
provided for) is “carrying on business” in Ontario.
o In this case, the real relationship between Success, a New York company,
and its Ontario contract establishes that Success is carrying on business in
Ontario. It follows, by virtue of ss. 4(2) and 21(1) of the Extra-Provincial
Corporations Act, that it cannot maintain this application to enforce the
arbitrator’s June 30, 1994 award.
Maharanee of Baroda v. Wildenstein (1972)
2 A 11 ER 689 (CA)
Doctrine
1. Service of the writ of summons done while the defendant was only on a visit in England
does not raise a presumption that the case was vexatious or oppressive.
2. A tort is territorial in nature but an issue of genuiness of art (not a tort) between two
“citizens of the world” is international in character and cannot be said to be confined to
one territory.
3. The forum where more favorable evidentiary rules for the plaintiff here played a part in
selecting English jurisdiction.
Facts:
1. An Indian princess who was a resident of France, bought for £32,920 in France a painting
from Wildenstein, a French citizen and worldfamous art expert connected with art dealer
companies in London and New York.
2. The painting was claimed to be by François Boucher. The Maharanee offered it for sale
in London. London auction house Sotheby’s showed the painting to English Art Firm
Christie’s said it was not an original Boucher.
3. Normally, the Maharanee was infuriated and wanted to rescind the sale with damages
against seller Wildenstein. They were both French residents but the Maharanee brought
the proceedings to an English Court.
4. The Maharanee had the papers served personally to Mr. Wildenstein while he was in
England watching the races in Ascot.
5. Wildenstein an unconditional appearance but asked the case to be dismissed as
vexatious and an abuse of the process of the court.
6. The writ was set aside because the judge said there is a presumption of vexatious or
oppressiveness of suit when brought in a court.
Issue: W/N The court properly served the writ of summons in London while Wildenstein was on a
visit, instead of France, where they resided.
Held: Yes
1. In this case the writ has been properly served on the defendant in this country [England].
2. The defendant claims that a presumption arises that the proceedings are oppressive if
the defendant is served when he appears to be here in England on a visit.
3. Lord Denning cannot agree with that statement. There is no such presumption. If a
defendant is properly served with a writ while he is in this country, albeit on a short visit,
the plaintiff is prima facie entitled to continue the proceedings to the end. He has validly
invoked the jurisdiction of the Queen's courts; and he is entitled to require those courts to
proceed to adjudicate upon his claim.
4. Since there is no presumption, the burden is on Mr. Wildenstein to show that he would
suffer injustice if the case is tried in England. He has not shown this.
5. The courts should not strike it out unless it comes within one of the acknowledged
grounds, such as that it is vexatious or oppressive, or otherwise an abuse of the process
of the court. It does not become within those grounds simply because the writ is served
on the defendant while he is on a visit to this country.
6. Defendant Wildenstein likens this case to a road accident in Rome, when two Italian
citizens were in collision. Suppose that one of them was served with an English writ while
on a short holiday in England, such action would be stayed. The issue would be solely
Italian.
7. But here the main issue is whether this painting was a genuine Boucher or not. It is not
solely a French issue. The art world is so international in character today that this issue
has itself something of an international character. The parties on either side are citizens
of the world.
8. Both parties were "citizens of the world,” both parties had sufficient social and business
ties to England, and the plaintiff had a valid interest in bringing suit in London and not
before the jurisdiction of the legal residence for both parties.
9. Lastly, In England, both parties are allowed to call expert witnesses on their behalf. The
experts could then clarify their expert opinions and defend their positions during cross-
examination.
10. On the other hand, in France, expert witnesses are appointed by the courts, evidentiary
materials are restricted, and courts are satisfied with only a written opinion; no cross-
examination of the witness takes place.
11. The more favorable--from the Duchess` viewpoint--evidentiary rules certainly played a
role in selecting English jurisdiction.
Duncan (Litigation Guardian of) v. Neptunia Corp (2001)
199 DLR (4th) 354 (Ont. SCJ)
Doctrine: Real and Substantial Connection is not an absolute requirement to confer jurisdiction.
Under Rule 17.02(h), Ontario courts has jurisdiction over torts cases wherein damages were
sustained by the plaintiff in Ontario. Lastly, where minimum connection has already been
established to Ontario, the issue should not lie on jurisdiction but which court is the most
convenient forum.
Facts:
1. Duncan, an Ontario resident, entered into a 2-year employment contract with the
defendants to work at a plant in China.
2. One of the terms of the contract provide that the employer will provide Duncan with
accommodation in China.
3. While residing in the furnished accommodation, Duncan was allegedly poisoned by gas
leaking into the apartment.
4. While it looked like Duncan has recovered after being confined in the hospital, he showed
signs of confusion and forgetfulness.
5. When Duncan came back to Ontario, his health deteriorated rapidly which eventually led
to his death.
6. A case was brought in Ontario against herein foreign defendants.
7. The foreign defendants were served with the plaintiff’s claim under Rule 17.02(h).
8. Defendants bring a motion to stay plaintiffs’ Ontario action arguing:
a. That there is no real or substantial connection to Ontario. Therefore, Ontario
courts have no jurisdiction.
b. China is the more convenient forum for the trial.
Issue/Held:
1. Is real and substantial connection absolutely required to confer jurisdiction? No.

2. Is China the more convenient forum to raise the action? No.
Ratio:
1. Rule 17.02(h) provides that where a plaintiff sustains damages in Ontario, the plaintiff
may, without leave of court, serve a claim on a foreign defendant.
2. Said rule does not expressly require a real and substantial connection to confer
jurisdiction to Ontario courts.
a. Otherwise, there seems to be little sense in requiring a service of claims to the
foreign defendants if the Ontario courts do not have jurisdiction in the first place.
3. The purpose and intent of Rule 17.02(h) is to enable people of Ontario to use their own
courts more easily to sue tort-feasors for damage sustain in Ontario, as a result of torts
that were committed elsewhere.
a. Therefore, requiring a real and substantial connection for Ontario courts to have
jurisdiction would be contrary the purpose and intent of the rule.
4. Where the minimum connection to Ontario is met, the paramount issue should not be
which court has jurisdiction but which court is the more convenient forum.
5. In determining which forum is the more appropriate, the court considers the following
factors:
a. Location where contract was made
i. Although negotiations were made in Ontario, the final negotiations took
place in China where the contract was signed and performed.
b. Applicable law of the contract
i. Since Duncan entered into an agreement to provide services in China
and to live there for over 2 years, it can be reasonably be expected that
the parties expected that issues of negligence and breach would be
address pursuant to Chinese law.
ii. However, an Ontario Court could apply the Chinese Law
c. Location where majority of the witnesses reside
i. Due to modern technology, this factor is not as important.
ii. The proper installation and inspection of gas lines and gas detectors
would come from persons familiar with the gas system in China.
iii. However, plaintiffs said that they would be introducing a professional
engineer originating in China but residing in Toronto and she could testify
as to how the local population install and operate their residential gas
services.
iv. Plaintiffs would also be calling Duncan’s neighbours in China who are
now residing in Washington State, and the Philippines.
d. Location of key witnesses
e. Location where the bulk of the evidence will come from
i. Bulk of the evidence would come from witnesses who reside outside
China.
f. Jurisdiction in which the factual matters arose
i. Factual matters arose in China but debilitating damages were sustained
while in Ontario.
g. Residence or place of business of the parties
i. Plaintiffs reside in Ontario while defendants’ registered offices are in
different places.
ii. SMC, one of the defendants, has its registered office in the Philippines.
iii. SMBIL, one of the defendants, has its head office in the British Virgin
Islands with a registered office in the Philippines.
iv. SMBBB, another defendant, is registered in China.
v. Neptunia is a Hong Kong company.
h. Loss of juridical advantage
i. Since it is not clear where the plaintiffs’ claims will be adjudicated if the
case was filed in China (whether in People’s Republic of China or Hong
Kong) or whether the case would go first to a Labour Arbitration
Commission before going to a court, it can be concluded that the
plaintiffs would lose a juridical advantage in their case if required to be
heard in China.
i. Other important factors may be considered:
i. In this case, the plaintiffs already lost the love and support of a husband
and father.
ii. The plaintiffs have limited financial resources to retain counsel in China
and to pay travel expenses.
iii. Plaintiff’s daughter attends York University and her schooling might be
interrupted if she goes to China for trial.
iv. On the other hand, the defendants are multi-national corporations which
have plenty of financial resources and would not be inconvenienced if
the case was tried Ontario.
6. Considering these circumstances, the plaintiffs would likely abandon their claim if they
are forced to litigate in China.
7. Since it is the plaintiffs who must prove their case, the court leaned towards favouring the
plaintiff’s forum.
Teja v. Rai (2002)
209 DLR (4th) 148 (BCCA)
DOCTRINE:
For a court to have jurisdiction over an action, the forum must have a real and substantial
connection to the subject matter of the case (i.e. parties are residents)
FACTS:
1. The present appeal raises the question whether the Supreme Court of British Columbia
would have jurisdiction over a claim founded on two wrongful deaths in Washington
State.
2. The parties and the deceased were all residents of British Columbia when a single car
accident resulted in the death of 2 passengers and injuries to three other passengers in a
British Columbia leased Ford Expedition.
a. The respondent driver is willing to accept service in British Columbia and to
attorn to the SC of British Columbia if the appellants bring the action in this
province.
b. Thus, the three injured passengers started a procceding.
3. On respondent’s motion, the Washington Superior Court dismissed the action on a forum
non conveniens on the ground that the British Columbia Court would be a more
appropriate forum.
a. Judge Mura of the Washington Court noted in his oral reasons that the Superior
Court had jurisdiction and that “the courts of Canada probably have jurisdiction.”
b. However, he refused to dismiss the action with prejudice until the issue of
jurisdiction and statute of limitations is finally resolved in Canada.
4. The appellants brought an application in British Columbia for a declaration that the BC
Court does not have jurisdiction over the action (The appellant preferred to have the case
in Washington since the Washington statutes granted more damages)
a. This was dismissed by the judge holding that there was a real and substantial
connection between the parties, the action and the province (British Columbia) or
the following reasons:
i. Deceased was a resident
ii. Spouses and their counsel were residents
iii. Although the respondent now lives in Washington, he lived in British
Columbia at the time of the accident
iv. Respondent submitted himself (attorned) to the jurisdiction of British
Columbia
v. Vehicle was registered in British Columbia at the time of the accident
b. The only anomaly was that the accident itself occurred in Washington.
ISSUE
Whether the Court of British Columbia should take cognizance of the case
RATIO:
1. The Court of British Columbia may take cognizance of the action

2. Traditionally, the presence of the defendant within the territorial limits of the court or her
voluntary submission to the authority of the court has founded jurisdiction in a personal
action in that court.
a. It is contended that the application of the real and substantial connection test is a
limitation to the assertion of jurisdiction under the traditional test.
i. Previous jurisprudence suggests that a nexus between the forum and
subject matter is the only element of a new test for jurisdiction or that the
real and substantial test has replaced the traditional tests. However, the
Court disagreed.
b. The Court in this case sees the real and substantial connection test as having
been developed for non-traditional situations, to take account of constitutional
limits on a court’s reach and to make coherent the rules for assuming jurisdiction,
enforcing judgments and granting anti-suit injunctions.
i. The Court does not see it as establishing a new test that overrides the
traditional tests. The new test can be seen as including the traditional
elements as relevant connecting factors, including the presence of the
defendant within the territory of the court and the situs of a tort.
3. Appellants perceive the transfer of forum as based on the defendant’s will, thus unfair to
the plaintiff’s own choice forum.
a. The Court did not agree with this averment. The appellants sued in Washington.
The court of their chosen forum considered this “Canadian dispute” should be
resolved in Canada if a British Columbia court would accept jurisdiction. The
unfairness the appellants perceive flows from being required by the Washington
Court to bring action in BC as a consequence of the respondent’s concessions.
However, in truth, the transfer was not due to the respondent’s preference but
due to the Washington Court’s view that the BC court is a more appropriate
forum for the resolution of the real dispute between the parties.
4. In the view of the Court, the real and substantial connection test is working.
a. It is permitting a balancing of interests in the choice of forum.
b. It acknowledges the need for a court to have the capacity to restrain its
jurisdiction.
c. It is serving the interests it was designed to serve: fairness to the parties and
orderly decision-making in a dispute with cross-border ties.
d. The Constitution is not offended.
5. Having regard to the 5 factors the lower court judge considered fulfilled the real and
substantial connection test as this court has explained it, the Court found no error of law
in the conclusion that the Supreme Court would have jurisdiction to entertain an action
similar to that brought by the appellants in Washington State.
Moran v. Pyle National (Canada) Ltd. (1973)
43 DLR (3d) 239 (SCC)
Doctrine:
Where a foreign defendant carelessly manufactures a product in a foreign jurisdiction which

enters into the normal channels of trade and he knows or ought to know both that as a result of
his carelessness a consumer may well be injured and it is reasonably foreseeable that the
product would be used or consumed where the plaintiff used or consumed it, then the forum in
which the plaintiff suffered damage is entitled to exercise judicial jurisdiction over that foreign
defendant.
Facts:
1. William Franklin Moran, an electrician, was electrocuted while removing a used light bulb in
Saskatchewan. Said incident resulted in his death, The wife and children of the deceased
[Morans] brought an action under The Fatal Accidents Act in the Courts of Saskatchewan against
Pyle National (Canada) Ltd. [Pyle], the manufacturer of the light bulb and a federally incorporated
Canadian company,.
2. Pyle did not conduct business, nor had any property or assets in Saskatchewan, neither did it
have any salesmen or agents in said place. All of the company’s manufacturing and assembling
operations took place in Ontario with components being manufactured either in Ontario or in the
United States. Pyle sold its products exclusively to distributors, it did not sell to consumers
directly.
3. The Morans claim that Pyle was negligent in the manufacture and construction of the bulb and
negligent in failing to provide an adequate system of safety checks to prevent its product
containing faulty wiring from leaving its plant, or from being distributed or sold or used.
4. The chambers judge ruled in favor of the Morans. It held that assuming Pyle was negligent,
such negligence occurred in Ontario. The tort was thus committed outside Saskatchewan.
Section 54 of The Queen’s Bench Act, R.S.S. 1965, c. 73, s. 54, provides:
Notwithstanding anything in Section 53, no action shall be brought in Saskatchewan for

damages in respect of a tort committed outside the province except by special leave of the
Court or a judge.
Thus, the court granted the Morans special leave to commence an action in Saskatchewan and
made an order allowing service of the proposed statement of claim and writ of summons in
Ontario.
5. Pyle appealed and the Court of Appeals of Saskatchewan rued in its favor, setting aside the
order of the chambers judge.
Issue:
Whether the tort alleged was committed within the Province of Saskatchewan? - Yes
Whether the Courts of Saskatchewan have jurisdiction over Pyle for the action for tort? - Yes
Held:
1. For the Courts of Saskatchewan to have jurisdiction over the alleged tort committed by Pyle, a
federally incorporated Canadian company, the tort must have its situs in Saskatchewan.
2. If the essence of a tort is the injury or wrong, a paramount factor in determining situs is the
place of the invasion of one’s right to bodily security. The purpose of negligence as a tort is to
protect against carelessly inflicted injury and thus that the predominating element is damage
suffered.
3. In the case of products liability, where a foreign defendant carelessly manufactures a product
in a foreign jurisdiction which enters into the normal channels of trade and he knows or ought to
know both that as a result of his carelessness a consumer may well be injured and it is
reasonably foreseeable that the product would be used or consumed where the plaintiff used or
consumed it, then the forum in which the plaintiff suffered damage is entitled to exercise judicial
jurisdiction over that foreign defendant.
4. In placing his products in the normal channels of trade, a manufacturer ought to assume the
burden of defending those products wherever they cause harm as long as the forum into which
the manufacturer is taken is one that he reasonably ought to have had in his contemplation when
he so tendered his goods.
5. Appeal granted, the Courts of Saskatchewan have jurisdiction to try the case.
Muscutt v. Courcelles (2002)
213 DLR (4th) 577 (Ont. CA)
Doctrine:
In assuming jurisdiction, first the court determines whether the forum can assume jurisdiction
given the relationship among the case, the parties, and the forum. The first question is whether
the forum should assert jurisdiction at the suit of the particular plaintiff against the particular
defendant. Second, the court considers the discretionary doctrine of forum non conveniens, which
recognizes that there may be more than one forum capable of assuming jurisdiction. The court
may decline to exercise its jurisdiction on the ground that there is another more appropriate forum
to entertain the action. The residual discretion provides a significant control on assumed
jurisdiction and a rationale for lowering the threshold for the real and substantial connection test.
Facts:
1. Chris Muscutt moved to Alberta from London, Ontario. to work on a contract for
his Ontario-based employer.
2. Three weeks after, Muscutt was a passenger in a motor vehicle that was involved
in an accident in Cochrane, Alberta. The vehicle was owned by the defendant Simpson
and was being driven by the defendant Ducharme-Gullins. He suffered physical injuries
which prevented him from working.
3. At the time of the accident, all of the defendants resided in Alberta. Following the
accident, the defendant Ducharme-Gullins moved to Ontario.
4. Muscutt brought this action in Ontario, claiming damages for pain and suffering,
loss of income and loss of business opportunity.
5. The defendants Simpson and Durcharme-Gullins moved pursuant to rule 17.06
and s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43 to set aside service out of
the jurisdiction and to stay the action. They argued that the action should be stayed for
want of jurisdiction, since the plaintiff's expenses, loss of income and pain and suffering
in Ontario did not amount to a "real and substantial connection" with Ontario.
6. Court judge dismissed the motion. He found that for Ontario to assume
jurisdiction, there must be a real and substantial connection between the forum and "the
transaction or subject matter which gives rise to the action or the parties". e dismissed
the defendants' motion, holding that the real and substantial connection test for
jurisdiction had been satisfied and that Ontario was the most appropriate forum. He held
that these requirements were met. In his view, rule 17.02 is procedural and "does not by
itself confer jurisdiction". If there is an issue as to jurisdiction, rule 17.06 explicitly
provides for a review of the issue, including an assessment of the applicability of any
constitutional limits on jurisdiction.
Issues
(1) WON rule 17.02(h) is ultra vires the province?
(2) WON the motions court judge err in finding that the Ontario Superior Court could assume
jurisdiction against the out- of-province defendants
(3) WON the motions court judge err in refusing to exercise his discretion to decline jurisdiction on
the ground that Ontario is not the forum conveniens
Held:
1. There are three ways in which jurisdiction may be asserted against an out-of-
province defendant: (1) presence- based jurisdiction; (2) consent-based jurisdiction; and
(3) assumed jurisdiction.
2. This case raises the issue of assumed jurisdiction. Assumed jurisdiction is
initiated by service of the court's process out of the jurisdiction pursuant to rule 17.02 and
does not provide a basis for recognition and enforcement.
3. Is Rule 17.02(h) Ultra Vires the Province? The Court agrees with the motions
court judge that rule 17.02(h) is procedural in nature and does not by itself confer
jurisdiction. It dismissed this ground of appeal and hold that rule 17.02(h) is not ultra
vires the province. It follows that provincial rules of court allowing for service out of the
jurisdiction, including rule 17.02(h), must now be read in the light of the constitutional
principles of "order and fairness" and "real and substantial connection".
4. Did the Motions Court Judge Err in Finding that the Ontario Superior Court Could
Assume Jurisdiction Against the Out-of-Province Defendants? The Supreme Court of
Canada has insisted that the real and substantial connection test must be flexible. The
court has not attempted to define the precise nature of the connection to the jurisdiction
that is required, and the court's language is ambiguous. While certain passages in
Morguard suggest that the connection must be with the defendant, others suggest that
the connection must be with the subject matter of the action or with the damages
suffered by the plaintiff. In the present case, the plaintiff has required extensive medical
attention in Ontario. His claim is, inter alia, for pain and suffering in Ontario. These
damages represent a significant connection with Ontario.
5. Did the Motions Court Judge Err in Refusing to Exercise his Discretion to Decline
Jurisdiction on the Ground that Ontario is not the Forum Conveniens? The motions court
judge found that Ontario is the most convenient forum for the action. In his view, the
inconvenience that would result to the plaintiff if he were required to bring the action in
Alberta outweighed the defendants' inconvenience of defending the action in Ontario. In
particular, he found that for the plaintiff to bring the action in Alberta would require
significant effort and expense, since the plaintiff is a resident of Ontario and all of the
plaintiff's medical witnesses are from the London, Ontario area. By contrast, for the
defendants to defend the action in Ontario involves minimal inconvenience.
Craig Broadcast Systems, Inc. v. Frank N. Magid Associates, Inc.
(1998)
155 DLR (4th) 346 (Man. CA)
Doctrine: This action involved a Manitoba resident headquartered in Manitoba. The contract was
negotiated from Manitoba and dealt with consulting services to be provided to an Alberta entity
created and controlled by the Manitoba resident. Surely, services for a Manitoba resident making
an application to the CRTC for the licensing of television rights in Canada should be determined
in a Canadian court.
FACTS:
 Craig Broadcast Systems, Inc. (Craig), headquartered in Brandon, Manitoba, owns and
operates radio and television stations. Frank N. Magid Associates, Inc. (Magid) provides
consulting and research services to the radio and television industry. Magid is located in
Marion, Iowa, in the United States.
 The Canadian Radio-television and Telecommunications Commission (CRTC) is the body
which determines if and when television and radio services are required in a particular area in
Canada.
 When the CRTC issued its call for applications to obtain the right to offer a new television
service in Alberta, Craig was interested. Prior to the CRTC call, Craig and Magid had had
discussions on the type of advice and service that Magid would be able to provide Craig. In
June 1993, Drew Craig contacted Magid to discuss the possibility that Magid could assist
Craig in making the Alberta application. Negotiations led to a consulting contract which was
executed by the parties on June 18, 1993, at Magid's offices in Marion, Iowa.
 Magid's obligation under the contract was to provide an analysis of the viewing behaviour of
Alberta residents based upon a survey or questionnaire it prepared and distributed. Craig
proceeded to establish an Alberta company, Alberta Channel Inc., as an entity to advance the
licence application. Based upon the data that it had gathered, Magid prepared a written
analysis for Alberta Channel Inc.
 Alberta Channel Inc. did not succeed in its application. Craig subsequently learned that
Magid had been involved with two other applicants for the Alberta licence in breach of the
parties' contract and in breach of the fiduciary duty owed by Magid to Craig. Craig
subsequently brought action against Magid in Manitoba and served the statement of claim on
Magid in Iowa.
 Magid applied for interlocutory relief to dismiss or stay the proceedings on the basis that the
courts of Manitoba have no jurisdiction to hear the proceeding and on the basis that Manitoba
is not the convenient forum for the proceeding. Magid appeals from the order dismissing that
application.
 Magid's submission is that the motions judge erred in law by failing to apply the proper test to
the application for a stay of proceedings. It further submits that the motions judge erred in law
in failing to find that the onus was on Craig to establish the convenient forum for the
proceeding.
 Magid contends that Rule 17.02 sets out the procedural requirements which allow the
Manitoba courts to assume jurisdiction in this case, but that Manitoba should only exercise its
jurisdiction if the requirements of the substantive law have been met.
ISSUE: Does the Manitoba Court of Queen's Bench have jurisdiction to entertain the plaintiff's
action against the out-of-province defendant in this case, and, if it does have the jurisdiction,
should it exercise it?
HELD: Yes, the said Court has jurisdiction. In the result, the deciding Court dismissed the
appeal.
RATIO:
 In Canada, a court may exercise jurisdiction only if it has a "real and substantial
connection" (a term not yet fully defined) with the subject matter of the litigation.
 This action involved a Manitoba resident headquartered in Manitoba. The contract was
negotiated from Manitoba and dealt with consulting services to be provided to an Alberta
entity created and controlled by the Manitoba resident. Surely, services for a Manitoba
resident making an application to the CRTC for the licensing of television rights in
Canada should be determined in a Canadian court.
 The factors which the motions judge considered of her reasons as establishing a real and
substantial connection between "the action and the province of Manitoba" are:
- Craig is a resident of the province of Manitoba and conducts most of its business in
this province. Most of the witnesses who would be called for Craig reside in
Manitoba, including the officers who negotiated and entered into the contract on
behalf of Craig.
- The terms of the contract were negotiated by employees of Craig while they were
physically present in Manitoba
- As both Craig and its shareholders are Manitoba residents, any loss occasioned by
the breach of contract will be sustained in Manitoba.
- Magid sought out Craig in Manitoba on many occasions over a period of several
years, starting in 1989, to explain the consulting services that it could offer to Craig. It
made a concerted effort, through a series of several different employees, to maintain
regular contact with Craig at its offices in Manitoba when Craig did not at first
purchase any of its services, which included offering to have its employees visit at
Craig's place of business in Manitoba.
- Magid provides research and consulting services to broadcasters in other parts of
Canada, including at least one other broadcaster in Manitoba. In providing services
to the other Manitoba broadcaster, Magid has sent its employees into Manitoba to
work with that broadcaster on at least 13 occasions between October 1992 and
January 1995. Further, Magid offered to conduct advertising and promotion seminars
for Craig on-site in Manitoba.
 While these factors clearly meet the requirements for service outside of Manitoba under
Rule 17.02 and thus establish jurisdiction simpliciter, they are also relevant to the
substantive law test. Clearly they support the motion judge's determination that Manitoba
does have an interest in the case
 The Court also speaks of a real and substantial connection between the subject-matter of
the action and the jurisdiction, not the most real and substantial connection. Any real and
substantial connection is sufficient to establish jurisdiction. The extent of that connection
is examined when the issue of forum conveniens arises. From his wording of the test and
his observation that the test has not been defined, the Court would conclude that a failure
by a motions judge to refer to any one or more factors in a case will not necessarily be
fatal to her ultimate decision.
 In this case, there are three jurisdictions associated with the action - Manitoba, Alberta,
and Iowa. The motions judge listed the factors which linked each of those three
jurisdictions with the case. In dealing with Iowa, which she did not find to be more closely
connected to the case than either Alberta or Manitoba, she concluded that the subject-
matter in dispute, the licensing of television rights in the province of Alberta under the
CRTC, rendered Iowa a forum that was not convenient for the resolution of the dispute.
That finding was from the view of the Court, a proper on
Harrington v. Dow Corning Corp (2000)
193 DLR (4th) 67, 2000 BCCA 605
Doctrine: A court can assume jurisdiction over non-resident plaintiffs in a class suit on the basis
of common issue. Common issue of fact is sufficient connection to acquire jurisdiction.
Facts:
 This is a class action comprised of women who have been implanted with silicone gel
breast implants and suffered an injury caused by the implant. The action is filed in British
Columbia.
o Plaintiffs in the class suit comprise of residents and non-residents of British
Columbia
o They allege that given the risks of the implantation of these devices, they should
not be manufactured or marketed for use in a human body.
o Alternatively, they allege that the manufacturers and distributors are under a duty
to warn a potential customer of the harm inherent in the use of the prosthesis to
permit the customer a fully informed choice of whether to have a surgeon implant
one in her body.
 The claim is against manufacturers of silicone breast implants and Bristol-Myers Squibb
Company, a supplier of silicones.
o Defendants allege that the issue does not meet the requirement of having a
“common issue” under the Class Proceedings Act.
o If, however, class proceeding is the preferable procedure, members of the class
should be restricted to residents only whose claims have a real and substantial
connection with British Columbia.
 Plaintiffs accept that many of the non-resident class and some of the resident class
cannot establish jurisdiction simpliciter under a strict application of the real and
substantial connection test.
o They ask this court to relax the traditional approach to claims to jurisdiction so
that the benefits of a class action may be made available to all Canadian
residents wishing to have their claims resolved in that province.
o They are believe that an extension of jurisdiction to non-residents is explicitly
permitted by Section 16 (2) of the Class Proceedings Act: a person who is not a
resident of British Columbia may opt into that class proceeding if the person
would be, but not being a resident of British Columbia, a member of the class
involved in the class proceeding
Issue: Can the court in British Columbia take jurisdiction over non-resident plaintiffs in a class
suit on the basis of common issues? Yes, common issue of fact is sufficient connection for
jurisdiction simpliciter.
Ratio:
 Common Issue
o A "common issues” mean common but not necessarily identical issues of fact or
common but not necessarily identical issues of law that arise from common but
not necessarily identical facts.
o Under this definition, the common issue need only be an issue of fact.
Presumably such a factual issue should involve a material fact in the case in
order for the finding to advance the proceedings. In addition, the finding would be
binding on all members of the class and other parties to the case. But there is
nothing in the definition that requires a common issue of fact be sufficient in itself
to support a relief, and such a restrictive view of “common issue” could
undermine the needed flexibility of class action proceedings.
o The common issue set out by the plaintiffs meets the test of a common issue as
defined in the Class Proceedings Act.
 Jurisdictional issue
o Jurisdiction involves two concepts:
1. jurisdiction simplicter- involves a question of law
2. forum (non) conveniens- involves an exercise of discretion
o Defendants did not suggest that British Columbia is an inconvenient forum or that
another forum is more appropriate
o The well-settled test for jurisdiction simpliciter requires a connection between the
forum and either the defendant or the subject-matter of the litigation.
o The Class Proceedings Act is procedural in nature and it neither seeks to extend
the jurisdiction of British Columbia courts beyond its constitutionally recognized
limits nor to define those limits. The courts would not have jurisdiction over the
non-resident claims aside from the class proceeding.
o The common liability issue in this case against defendants is sufficient to
establish a ‘real and substantial connection’ over claims which are otherwise
beyond the court’s jurisdiction
o Amchem Products Inc. v. British Columbia (Workers Compensation Board): With
the increase in free trade and the rapid growth of multi-national corporations, it
has become more difficult to identify one clearly appropriate forum for this type of
litigation. The defendant may not be identified with only one jurisdiction.
Moreover, there are frequently multiple defendants carrying business in a
number of jurisdictions and distributing their product or services world wide. As
well, the plaintiffs may be a large class residing in different jurisdictions. It is often
difficult to pinpoint the place where the transaction giving rise to the action took
place. Frequently, there is no single forum that is clearly the most convenient or
appropriate for the trial of the action but rather several which are equally suitable
alternatives.
o Morguard and Hunt: The courts in various states will, in certain circumstances,
exercise jurisdiction over matters that may have originated in other states. And
that will be so as well where a particular transaction may not be limited to a
single jurisdiction. Consequently, individuals need not in enforcing a legal right be
tied to the courts of the jurisdiction where the right arose, but may choose one to
meet their convenience. This fosters mobility and a world economy
o In Canada, a court may exercise jurisdiction only If it has a “real and substantial
connection” with the subject matter of the litigation
o Moran: rejected any right or mechanical theory for determining the situs of the
tort. Rather, he adopted a more flexible, qualitative and quantitative test, posing
the question, in terms of whether it was “inherently reasonable” for the action to
be brought in a particular jurisdiction or whether there was a “real and substantial
connection” between the jurisdiction and the wrong doing
Airbus Industries GIE v. Patel and Others (1999)
1 AC 119 (HL)
Doctrine: The domestic court as a matter of comity must take cognizance of the fact that the
foreign court has assumed jurisdiction. If, applying the principles relating to forum non-
conveniens, the foreign court could reasonably have concluded that there was no alternative
forum that was clearly more appropriate; the domestic court should respect that decision.
FACTS:
 An Indian Airlines Airbus A-320 crashed at Bangalore airport while coming to land after
an internal Indian flight.
 The plaintiff passengers lived in England. Proceedings began in Bangalore against the
airline and the airport authority.
 The natural forum was the Bangalore court in India and there were proceedings on foot
there.
 The Patels and other English passengers, however, having settled with the airline for its
maximum liability, chose, in defiance of an order made by the Bangalore court, to sue the
French manufacturers of the aircraft in Texas, which had no natural jurisdiction.
 They based the suit on the American principle of no-fault liability, punitive damages, and
contingent fees. The Texas court had no principle of forum non-conveniens. It was not,
therefore, an option for Airbus Industrie to apply to the Texas court to stay the
proceedings there on that ground.
 Airbus then issued an originating summons in this country with these purposes:
o (1) enforcing the Bangalore judgment against the appellants, and
o (2) obtaining an injunction from the English High Court restraining the appellants,
who are residents in England, from continuing with their action against Airbus in
Texas on the grounds that pursuit of that action by the appellants would be
contrary to justice and/or vexatious or oppressive.
ISSUE: W/N the English court can grant an anti-suit injunction in this instance.
Held: NO.
 In alternative forum cases, in which the choice is between the English forum and some
other forum overseas, an anti-suit injunction will normally only be applied for in an English
court where England is the natural forum for the resolution of the dispute; and, if so, there
will be no infringement of comity.
 The grant of an injunction, restraining parties from pursuing a remedy overseas, must be
supported by clear evidence of a close connection with the English jurisdiction.
 ‘The domestic court as a matter of comity must take cognisance of the fact that the
foreign court has assumed jurisdiction. If, applying the principles relating to forum non
conveniens … the foreign court could reasonably have concluded that there was no
alternative forum that was clearly more appropriate, the domestic court should respect
that decision and the application should be dismissed.’ ‘The former [the power to stay]
depends on its voluntary adoption by the state in question and the latter [the power to
make a restraining order] is inhibited by respect for comity.’
 The passengers were not to be restrained from suing in Texas. There were no English
proceedings (other than the application to the English court for the injunction), and nor
did Airbus Industrie have any sufficient interest in asking the English court for a remedy.
Amchem Products, Inc. v. British Columbia, etc. (1993)
102 DLR (4th) 96 (SCC)
Doctrine:
1. The test for forum non conveniens is there must be some other forum more convenient
and appropriate for the pursuit of the action and for securing the ends of justice.
Facts:
1. The individual appellants consist of 194 persons who have suffered injury claimed to be
caused by exposure to asbestos or who are dependents of deceased persons affected by
asbestos.
2. The action seeking damages from the respondent asbestos companies was brought in
Texas in 1988.
3. In all but forty of these claims, the Workers' Compensation Board of British Columbia has
a subrogated interest by virtue of having paid compensation in the form of disability or
death benefits to workers whose health was adversely affected by exposure to asbestos,
and hence is dominus litus.
4. Most of the claimants were residents of British Columbia when the injuries were
sustained.
5. The respondents are all companies involved in the manufacture, sale or supply of
asbestos and asbestos products. None of the respondents has any connection with the
Province of British Columbia.
6. After the action was commenced in Texas, most of the corporate defendants filed motion
to dismiss on the ground that Texas was forum non conveniens. The motion was
dismissed by the Court.
7. The asbestos companies brought applications in the Supreme Court of British Columbia
seeking anti-suit injunctions against the appellants, in order to prevent the continuation of
the Texas actions which was granted.
8. Those claimants who were not residents of British Columbia, sought and obtained an
injunction in Texas to prevent the respondents from obtaining similar injunctions against
them in Canada. This is referred to as an "anti-anti-suit" injunction.
Issue:
1. Whether or not the anti-suit injunction issued in British Columbia which seeks to prevent
the appellants from pursuing their action against the respondents in Texas should be set
upheld. -> No
Ruling:
1. The first step in the analysis is to determine whether, in conformity with the forum non
conveniens test, there is another forum that is clearly more appropriate than the domestic
forum.
2. If, applying the principles relating to forum non conveniens, the foreign court could
reasonably have concluded that there was no alternative forum that was clearly more
appropriate, the domestic court should respect that decision and the application should
be dismissed.
3. The court will not generally grant an injunction if it will unjustly deprive the plaintiff of
advantages in the foreign forum, having regard to the extent that the party and the facts
are connected to it.
4. The result of the above test will be that when a foreign court assumes jurisdiction on a
basis that generally conforms to the Canadian rule of private international law for
determining whether Canadian courts are the forum conveniens, that decision will be
respected and a Canadian court will not purport to make the decision for the foreign court
5. The finding of sufficient contact with Texas was supported by the evidence and hence,
the jurisdiction in Texas was asserted according to the Due Process Clause of the U.S.
Constitution. The application of this provision is consistent with Canada's rules of private
international law relating to forum non conveniens.
Hudon v. Geos Language Corp (1997)
34 OR (3d) 14 (Div. Ct.)
Doctrine:
Even though it had been settled between the parties that Japan was the convenient forum for the
action, Geos failed to show that preventing it from proceeding with the action in Japan would
deprive it unjustly of any legitimate juridical advantage. Further, there was strong personal
advantage to Hudon as a disabled person in being able to pursue the action in Ontario. Ontario is
the more convenient forum.
Facts:
7) Dana Hudon (Hudon) is a young woman, now residing in Toronto, who entered into a written
employment contract with Geos Language Corp. (Geos) in Toronto, to teach English in
Japan.
8) The employment contract contained the following provisions:
a. In an effort to safeguard the health and welfare of the Employee, the Employer shall
arrange and pay premiums for health insurance coverage by AIU Insurance Company,
so long as the Employee resides in Japan and remains in the employ of Geos
Corporation.
i. This insurance covers accidents and illnesses which occur while the Employee is
residing and working in Japan.
ii. Any and all health care costs not covered by AIU (such as preexisting medical
conditions, maternity, or dental or eye treatment) shall be the responsibility of the
Employee.
b. The information, validity, interpretation and execution of this contract are all to be
governed by the laws of Japan.
9) Geos is a Japanese Corporation.
10) Geos Language Corporation is a British Columbia Corporation and is a subsidiary or affiliate
of Geos.
11) Hudon commenced teaching in Japan.
12) During a break in her teaching duties, she took a brief trip to China were she was seriously
injured in a motor accident. She suffered severe head injuries and multiple fractures of the
ribs, pelvis, and femur. She was in deep coma when brought back to Toronto.
13) Geos arranged for a policy of insurance to be issued by the AIU Insurance Company in
Japan covering Hudon. The policy titled “Overseas Travel Accident Insurance Policy” and
provides for benefits of 10M yen for death or disability and 3 M yen for medical treatment.
The full amount of those benefits has been paid or is available to Hudon.
14) Hudon filed an action in Ontario whereby she claims general damages for negligence, breach
of contract, breach of fiduciary duty, and for negligent, reckless, and intentional
misrepresentation, together with unspecified special damages and exemplary damages.
These claims greatly exceed the coverage in the AIU policy.
15) Apart from the contract, the basis of her claim is that she was induced to enter into the
employment contract by representations from Geos that the latter would arrange complete
health, life, disability, and accident insurance covering all losses that she could encounter
were she to become an employee of Geos and become temporarily a resident of Japan.
16) She further alleges that the provisions of such coverage by Geos was an implied term of her
contract with Geos.
17) Geos moved in Ontario for an order staying the action on the ground that Ontario was not a
convenient forum.
a. This Motion was dismissed.
b. No appeal was taken from said decision.
18) After the motion to stay had been commenced, but before it was disposed of, Geos
commenced an action in Japan against Hudon for a declaratory judgment seeking to interpret
the contract of employment pursuant to the laws of Japan.
a. Geos claims in that action a declaration that its obligation to pay damages to Hudon
based on default or tort related to the employment contract relative to the traffic
accident is non-existent.
b. Geos alleges that under Japanese law an employer has an obligation to pay damages
when an employee suffers from injury, disease, impairment or death by a cause
resulting from his or her corporate duties.
c. It alleges that provisions concerning insurance like those in the plaintiff's employment
contract are naturally intended to pay damages caused by corporate duties.
d. Such insurance is not intended, it is alleged, to cover accidents unrelated to the
corporate duties of the plaintiff and occurring while the plaintiff was abroad on vacation.
19) Hudon applied for an injunction with the Canadian Court, to restrain Geos from proceeding
with the Japanese action.
20) Injunction was granted restraining Geos from proceeding with the action brought in Japan.
21) Hence, the present Petition by Geos.
Issue:
Whether the issuance of the injunction order restraining Geos from proceeding with an action in
Japan was proper. [YES]
Ratio:
6) Even though it had been settled between the parties that Japan was the convenient forum for
the action, Geos failed to show that preventing it from proceeding with the action in Japan
would deprive it unjustly of any legitimate juridical advantage. Further, there was strong
personal advantage to Hudon as a disabled person in being able to pursue the action in
Ontario.
7) Therefore, Ontario is the more convenient forum.
a. Evidence relating to the assessment of damages could only be given by Ontario
witnesses.
b. Evidence as to the law of Japan could be given by witnesses brought from Japan, if
necessary, but that evidence was not likely to be as controversial as the evidence
relating to the making of the contract in Ontario.
c. That latter evidence would be essential to the allegations of negligence and
misrepresentation and would, no doubt, be given by witnesses from Ontario.
d. The Geos failed to show that preventing it from proceeding with its action in Japan
would deprive it unjustly of any legitimate juridical advantage.
e. On the other hand, there was a strong personal advantage to Hudon, a permanently
disabled person, in being able to pursue the action in Ontario, instead of travelling to
Japan for the purposes of the trial.
8) In this case, the Court upheld the order of injunction, to restrain Geos from proceeding with
the case it filed in Japan. To support its decision the Court stated that it would be unjust,
vexatious and oppressive to require Hudon to seek to stay the Japanese action. Hudon would
lose juridical advantage and it would be unjust in these circumstances to require defense of
the action in Japan.
Re Carrick Estates Ltd. And Young (1987)
43 DLR (4th) 161 Sask. CA)
Facts:
 Mr. Young while in Vancouver for a football game was sued in the court of British
Columbia and had been served there with the writ and statement of claim.
 He filed no answer and as a result of which he obtained default judgment
 Mr. Young applied to set aside the default judgment alleging he had intended to defend
the action but through inadvertence had not filed material within the required time
Issues:
WON the British Columbia Court acquired jurisdiction over Mr. Young
Held:
No
Ratio
The petitioner argued that the service of writ upon Mr. Young gave the SC of British Columbia
jurisdiction over the latter but the SC held that service upon Mr. young is immaterial even if
service had the effect of perfecting the internal or intra-provincial jurisdiction of the British
Columbia Court, the service did not, of itself, found external or inter-provincial jurisdiction
according to the law of Saskatchewan; and the latter is essential to the recognition and
enforcement of the judgment in this province.
While at common law, temporary presence within the territorial limits of the original court may
suffice to found international jurisdiction but under the statutory law of this province, casual
presence in the foreign jurisdiction, in the absence of submission to that jurisdiction, is insufficient
for the purposes of enforcement in Saskatchewan.
The petitioner also argued that Mr. Young submitted to the court’s jurisdiction by applying to it to
have the judgment set aside to which the SC ruled in this manner: The court had no information
on why the case (Mr. Young’s application) was dismissed. It only stated that had the application
succeeded, and Mr. Young been granted leave to do so, he would have defended the action. In
that event there would have been no doubt about his having submitted to the jurisdiction. As it is
the matter is left in some doubt.
Under the Act, the issue turns upon the proper application of s 4(b) and, to a significant extent,
upon the meaning of the subsections’ phrase “during the proceedings.”
In the absence of a voluntary appearance or other equally clear submission to the jurisdiction of a
foreign court in order to contest the merits of an action, the issue of whether a defendant’s
conduct should be taken to amount to submission for the purposes of enforcing the judgment
elsewhere, is largely technical and often uncertain, making it difficult to say this or that case was
rightly or wrongly decided.
Here Mr. Young submitted to the jurisdiction of British Columbia court for the primary, if not
exclusive, purposes of having the judgment set aside and giving him leave to defend on the
merits. It was in that context only, limited as it is, that the merits of his defense may have been
considered if, indeed, they were considered at all since the decision might have tuned on other
grounds. So the case for submission in the context in which are dealing with it, is, at best,
marginal. And when considered in light of the language of the Act, which speaks to submission
“during the proceedings,” the contention that he submitted to the jurisdiction of the original court
within the meaning and for the purposes of the Act becomes even more tenuous.
Dissent:
The authorities on the meaning of the word “proceeding” do not in any event suggest that these
are limited to the time before the default judgment is entered. In Consortium General Textiles
case it was ruled that it is indeed appropriate to consider matters arising out after a default
judgment as part of the proceedings, if the intent of the Act is to be carried out. Thus, the court
acquired jurisdiction over Mr. Young when he filed his application with the court.
Moore v. Mercator Enterprises Ltd. (1978)
90 DLR (3d) 590 NS SC
Doctrine:
For a foreign judgment to be enforceable, jurisdiction over the defendant must be had. A default
judgment is enforceable against a judgment debtor carrying on business within the jurisdiction of
the original court.
Facts:
1. This is an application to set aside a judgment registered under Chapter 13 of the Acts of
1973, the Reciprocal Enforcement of Judgments Act. Default Judgment was obtained
against Mercator Enterprises Limited and Mercator Shipping Limited in the Supreme
Court of Ontario
2. The plaintiffs are advertising and printing companies whose services were retained by
Thomas Cook Overseas Ltd. in Toronto, Ontario, as agent for the defendants. Thomas
Cook was to coordinate all facets of the defendant's pleasure cruise business including
all promotion and advertising as well as handling the sale of tickets and bookings. The
plaintiff's function was to carry out all appropriate productions, media plans, marketing
analysis, public relations and sales promotion.
3. The defendants' head offices appear to be situated in the Province of Nova Scotia; by
retaining an agent in Toronto, Ontario to handle the complete marketing of the
defendant's undertaking the defendants commenced carrying on business in this
jurisdiction. Through the accepted principles of agency, the carrying on business of the
agent in Ontario can be imputed to be the carrying on business of the principals, namely
the defendants (judgment debtors).
4. Plaintiffs were advised by Cook, the general sales agent, that the principal for the
undertaking was Mercator enterprises Limited(Enterprises). Cook also advised that
billings were to go directly to Enterprises.
5. Sometime after, the account had become seriously delinquent and the platinffs
accordingly on several occasions telephoned Enterprises to discuss payment. During the
course of these telephone conversations, the officers of Enterprises promised that
payments would be made and at no time was there any question as to the liability of
Enterprises as to the account.
6. Despite meeting in the Enterpises’ main office and the promise to be paid, no payment
was received by the plaintiffs.
7. By order dated August 16, 1977 Chief Justice Cowan granted leave to the plaintiffs to
register the Judgment in Nova Scotia. The order provided that Notice of the Registration
be served upon the defendants within one month. The present application is made under
Section 8(2) of the Reciprocal Enforcement of Judgments Act. It was agreed by counsel
on the hearing that the application was made pursuant to the following provisions of
Section 4(5) of the Reciprocal Enforcement of Judgments Act:
"4 (5) No order for registration shall be made if it is shown to the court to which
application for registration is made that,
(b) the judgment debtor, being a person who was neither carrying on business nor
ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or
otherwise submit during the proceeding to the jurisdiction of that court; or
...
(d) the judgment was obtained by fraud; or
...
(g) the judgment debtor would have a good defence if a proceeding were brought on the
judgment."
The Act, which was the work of the Conference of Commissioners on Uniformity of
Legislation in Canada, was adopted in Nova Scotia by Chapter 13 of the Acts of 1973.
The Act provides a simple method of enforcing foreign judgments to which it applies. It
does not alter the rules of conflict of laws as to the recognition to be given to foreign
judgments. At common law a foreign judgment is conclusive. The following references
are from Castel, Canadian Conflict of Laws, page 465:
"The merits of a foreign judgment in rem or in personam, are not examinable at all
whether the judgment is relied upon by the plaintiff as a cause of action or pleaded by the
defendant as a bar to an action instituted against him. The rule that the courts will not
permit a re-trial of the issues which have already been decided by the foreign court is
now well settled in England.
'Conclusiveness is the logical consequence of the fact that a foreign judgment imposes
an obligation on the defendant to obey the judgment and the successful plaintiff has the
corresponding right to demand satisfaction.' (Borm-Reid, 'Recognition and Enforcement
of Foreign Judgments' (1954), 3 Int. & Comp. [*26] L.Q. 49, at p.52.)
8. The principal ground of opposition to the registration of the judgment is that the debtor
companies were not carrying on business in Ontario. Under our Act "judgment debtor"
means the person against whom the judgment was given.
Issue: Whether or not the default judgment can be registered? YES.
Sub issue: Whether or not the debtor companies were carrying on business in Ontario?
YES.
Ratio:
In the court’s view, the defendants were clearly carrying on business through their agent Thomas
Cook Overseas Limited.
The court applied the passage found in Dicey & Morris, the Conflicts of Law, Eighth Edition:
"Alternatively, at common law a corporation can be treated as being present in England for the
purposes of jurisdiction if it carries on business in England; and under Order 65, r.3, of the Rules
of the Supreme Court, service of the writ may, in cases for which provision is not otherwise made
by any enactment, be effected by leaving a copy of the writ with the chairman, president,
secretary, treasurer or other similar officer of the corporation. The question whether a corporation
is carrying on business here is one of fact not always easy to determine. In order that the
jurisdiction may exist, six conditions must be fulfilled.
(1) The activity carried on by the foreign corporation must be a business. It has been held that the
maintenance in England of a share transfer office for the convenience of English shareholders in
the corporation is not a business, but that the raising of loan capital on the London market for the
purposes of the corporation is a business.
(2) The business must have been carried on for a substantial period of time. But nine days have
been held to be sufficient in appropriate circumstances, as where a foreign manufacturer of
motor-cars occupied a stand at an exhibition in London.
(3) The business must have been carried on at some fixed place in England.
(4) The business must be that of the corporation, not that of the agent who acts for it in England.
This condition is fulfilled if the agent has authority to make contracts on behalf of the corporation,
even if he is paid only by commission, pays the rent of his office, and also acts as agent for
another foreign corporation. But it is not fulfilled if the agent has no general authority to make
contracts on behalf of the corporation but merely to obtain orders and submit them to the foreign
corporation for approval. Nor is it fulfilled if the agent sells tickets for a foreign steamship
company as part of his own business."
Batavia Times v. Davis (1977)
82 DLR (3d) 247 (Ont. HC)
Facts
(1) The plaintiff's claim is for the sum of $16,940.63, together with interest thereon at the rate
of 5% from December 12, 1969, to the date of the payment or a judgment herein.
(2) The plaintiff's claim is based upon a judgment which it obtained in the Court of Common
Pleas for the County of Allegheny, in the State of Pennsylvania, on August 26, 1970.
(3) As part of its evidence, the plaintiff presented both documentary evidence and testimonial
evidence. The documentary evidence is a promissory note allegedly signed by
defendant. For the testimonial evidence, the plaintiff called upon a Eugene James Brew
to give evidence at trial. He is an attorney from Pennsylvania, and his practice for the last
16 years, since he was admitted to the Bar, has been what he described as a "general
civil practice including litigation of civil matters".
(4) Mr. Brew stated in evidence that the type of note signed by the defendant and shown as
"Exhibit A" is one that could be entered into a judgment through the authorization given to
“any attorney” as provided in the note without further notice. This is in line with the
procedure in effect in the State of Pennsylvania in 1970. Mr. Brew further stated that the
language used in the note is common within the jurisdiction of the State of Pennsylvania.
He stated that it is the law of that State that judgment is validly entered without further
notice when the note employs language such as the note in this case.
(5) The indebtedness evidenced by the note was originally created by reason of certain
printing work which the plaintiff performed on behalf of the defendant. The defendant did
not enter any defense in the proceedings in Pennsylvania, nor did he appeal or move to
set aside the judgment which the plaintiff obtained there.
(6) The defendant in his statement of defense in this action argues that the judgment was
obtained without his consent and without notice of process being served upon him prior
to the commencement of the proceedings in Pennsylvania. According to defendant, while
the judgment may have been obtained in accordance with the laws of Pennsylvania, the
fact that he was not notified of the process goes against natural justice.
Issue: Whether the defendant is entitled to impeach the judgment upon which the plaintiff's
action is based on the ground that the proceeding in which it was obtained was conducted
contrary to the principles of natural justice.
Held:
(1) Preliminarily, the Court ruled that a final judgment, if rendered by a court of competent
jurisdiction and if free from fraud, is conclusive on the merits and not open to re-
examination by another Court (English Rule). In this case, where the defendant also
recognizes that the judgment was rendered in accordance with the laws of Pennsylvania,
it should not be opened to re-examination by another Court.
(2) With regard to the issue of natural justice, the defendant maintains that he is entitled to
impeach the judgment because he received no notice of the plaintiff's intention to obtain
the judgment with which we are dealing in this case. As indicated above, the defendant
does admit that the proceedings in Pennsylvania were regular inasmuch as the
procedure of the Court allowed a judgment to be obtained where the promissory note
authorizes any attorney of the Courts therein mentioned to appear for, and to enter
judgment against, him in favour of the plaintiff for the amount in question.
(3) The defendant maintains that notwithstanding this authorization and even accepting the
fact that the procedure leads to a validly rendered judgment in Pennsylvania, which is
enforceable in Pennsylvania, further notice should have been given by the plaintiff of its
intention to enter judgment on the note before it did so. The failure to do so, the
defendant maintains here, infringes upon the principles of natural justice, thus rendering
the judgment unenforceable in this jurisdiction.
(4) There appeared to be no quarrel between the parties that the Court in the State of
Pennsylvania did possess international jurisdiction in cases where, as here, the
defendant had contracted to submit himself to the forum in which the judgment was
obtained. In effect, the defendant voluntarily submitted himself to the jurisdiction of the
State of Pennsylvania by entering into the form of promissory note with which we are
dealing here. That note authorized and empowered “any attorney of any court of record
of Pennsylvania, New York, Canada or elsewhere to appear for and to enter judgment
against me in favour of the said Batavia Times Publishing Co. for the above sum with
costs of suit, release of heirs and with five (5%) percent added as a reasonable attorney's
fee and I hereby waive and release all benefit and release from any and all appraisement
or exemption laws of any state or dominion now in force or hereafter to be passed.”
(5) In my opinion, the defendant in authorizing and empowering "any attorney" to appear for
and enter judgment against him has constituted that attorney as his agent. When that
agent does, in fact, enter judgment against the defendant in accordance with the
defendant's written authorization, what further notice is required? The defendant had
notice through his agent.
Braintech Inc. v. Kostiuk (1999)
171 DLR (4th 46, 1999 BCCA 0169
Doctrine:
1. Mere passive presence in cyberspace of alleged defamatory material, which wasn’t even
proven to be made by the defendant does not constitute a real and substantial presence
in a state. (Not considered as doing business).
Facts:
1. Braintech obtained a favorable judgment of default for $300,000 (US) in a libel and
disparagement case in a Texas court.
2. Braintech brought it to Canadian courts. The British Columbian CA refused to enforce it
on the ground that there was no “real and substantial connection” between the parties
and Texas at material times.
3. The Court’s ruling seems to be based on the lack of any evidence that anyone in Texas
actually viewed or downloaded the allegedly defamatory matter which had been posted
on a computer located outside Texas. Accordingly, there was no evidence of any
“publication” to a third party within Texas.
Issue: W/N the Texas court should have declined jurisdiction? Yes
Held/Ratio:
2. The plaintiff Braintech unsuccessfully argued in the Court of Appeal that Texas had
jurisdiction over its defamation claim because the Texas “long-arm” statute provided that
a non-resident did business in Texas if the non-resident “commits a tort in whole or in
part in this state.”
3. Braintech alleged in its statement of claim filed in British Columbia that the libel was
disseminated by one Silicon Investor on an internet “discussion group or bulletin board.”
4. The Court of Appeal’s ruling does not say where the computer hosting Silicon Investor
was located but it clearly was not in Texas.
5. The Court of Appeal did note that the defendant Kostiuk was not the operator of Silicon
Investor and that the “bulletin board [was] ‘passive’ as posting information volunteered by
people like Silicon Investor.
6. The [plaintiff] must offer better proof that the defendant has entered Texas than the
mere possibility [emphasis added] that someone in that jurisdiction might have reached
out to cyberspace to bring the defamatory material to a screen in Texas. No person in
Texas is alleged to have seen the allegedly defamatory material except the parties.
7. It would would create a crippling effect on freedom of expression if, in every
jurisdiction the world over in which access to the Internet could be achieved, a
person who posts fair comment on a bulletin board could be haled before the
courts of each of those countries where access to this bulletin could be obtained.
8. Braintech Inc. v Kostiuk does not answer the question whether the tort of defamation
would have been committed in Texas (in the eyes of British Columbia law) if someone in
Texas actually had viewed or downloaded the defendant’s allegedly defamatory posting
on the Internet.
9. As to Forum conveniens: The British Columbia Court of Appeal concluded that British
Columbia was “the natural forum for the resolution of the dispute between two residents”
and not Texas where no presence was established.
10. The defendant never did business in Texas and the only connection he has is the
allegation that he committed a tort there.
11. No juridical advantage is alleged to accrue in Texas which is not available if a defamation
action was brought in British Columbia.
Old North State Brewing Co. v. Newlands Services Inc. (1999)
4 WWR 573 (BCCA)
Doctrine: If the parties intended to vest a particular court exclusive jurisdiction, the parties should
have used the word “exclusive” or any other words purporting to grant such exclusive jurisdiction.
Absent any indication granting a particular court exclusive jurisdiction, it is to be considered as
granting concurrent jurisdiction. If the contract provides that a particular law should apply, the
party wanting to enforce such provision must prove by evidence that foreign law. If the party fails
to prove such law, the court would assume that the foreign law would be the same as that of the
law of the forum.
Facts:
1. Plaintiff, a North Carolina Company, operates a microbrewery business while the

defendant, a British Columbia (B.C.) Company, is engaged in supplying brewing
equipment within Canada, USA and internationally.
2. Plaintiff and Defendant decided to enter into a contract for the supply of brewing
equipment in favour of herein plaintiff.
3. The purchase agreement between the parties contained a clause concerning choice of
forum and choice of law:
a. Agreement will be governed by and interpreted in accordance with the laws of
Province of British Columbia, Canada.
b. Parties will attorn to the jurisdiction of the Courts of the Province of British
Columbia, Canada.
4. However, a number of defects were noted by the plaintiff with regard the equipment sent
by defendant.
5. Plaintiff filed an action in a North Carolina Court against the defendant on the grounds of:
a. Breach of Contract
b. Unfair Trade Practices
c. Other Causes of Action
6. Summonses were served personally upon the defendant in B.C. requiring defendant to
file an answer within 20 days after service. No answer was filed. As a result, a default
judgment was issued against the defendant.
7. The North Carolina Court, applying the provisions of a North Carolina fair trade statute,
awarded treble damages and punitive damages. Defendant did not attorn to the
jurisdiction of the North Carolina Court nor did it contest its liability in the Court
8. Plaintiff applied, under Rule 18A, in the B.C. Court to enforce said judgment.
9. Defendant argued that:
a. By virtue of the aforesaid provision in the contract, North Carolina Court did not
have jurisdiction.
b. Assuming that it had jurisdiction, the North Carolina Court should have applied
the B.C. law.
c. Judgment, in any event, should not be enforceable in B.C. because it would
offend public policy to enforce foreign law that was penal in nature.
10. The B.C. Court rejected all of the defendant’s arguments and granted judgment in favour
of the plaintiff holding that:
a. The contractual provision committing the parties to the jurisdiction of the B.C.
Courts was not an exclusive choice of forum. Said provision merely provides a
concurrent jurisdiction.
b. The North Carolina Court did have jurisdiction because there is a real and
substantial connection between the cause of action and the State of North
Carolina.
c. B.C. Law was also inapplicable because the defendants failed to prove such law
as a matter of fact.
d. Award of Damages is not a penal judgment and therefore, its enforcement is not
contrary to public policy.
Issue/Held:
1. Did the contractual provision as to the venue where actions should be commenced give
B.C. an exclusive jurisdiction in disputes arising under the contract? No.
2. Did the contractual provision as to the choice of law render the North Carolina judgment
applying North Carolina Law unenforceable in B.C.?
3. Will enforcing the North Carolina judgment, awarding treble and punitive damages, in
B.C. contrary to public policy?
Ratio:
1. In Morguard Investments v. De Savoye, the SC of Canada held that courts of one

Canadian province should recognize the jurisdiction of the courts in another province
where there is a “real and substantial” connection between the action and the jurisdiction
in which it was brought.
2. The SC of Canada applied the principles of Morguard to foreign judgments and anti-suit
injunctions.
3. In this case, it is clear that the action brought by plaintiff in North Carolina has a real and
substantial connection with that jurisdiction.
a. Defendant sent promotional material to the plaintiff in North Carolina.
b. The purchase order was executed in North Carolina.
c. The goods were delivered in North Carolina.
d. Defendant even sent its representatives in North Carolina during the installation
and repair of the brewing equipment it supplied.
e. Losses were incurred by plaintiff in North Carolina due to the installation of
defective equipment.
f. Defendant portrayed itself as a corporate citizen that operated internationally
rather than out of B.C.by virtue of its advertisements.
4. The contractual provision does not purport to confer exclusive jurisdiction.
a. Had the parties intended to vest B.C. exclusive jurisdiction, they word “exclusive”
should have been used in the contract.
b. Without such word, such provision will be interpreted as necessarily conferring
concurrent jurisdiction.
5. In fact, SC noted Khalij where it said that recent case law suggests that even the use of
the word “exclusive” with respect to jurisdiction of a court in a contract does not oust the
discretion of another court to find jurisdiction.
6. As to the choice of law, the Court held that the B.C. law is a foreign law from the
perspective of the North Carolina law. Ergo, such foreign laws must be proven by
evidence of persons who are experts in that law.
a. If such law is not proven, it is assumed to be the same as the law of the forum.
b. Defendant has the burden of proof to adduce evidence of foreign law.
7. If the defendants wanted the B.C. law to govern the North Carolina proceeding, it should
have pleaded in the proceeding that B.C. law should apply and prove the same in the
satisfaction of the North Carolina court.
a. In the absence of such pleading and proof, the North Carolina court had no
obligation to make its own inquiries and attempt to apply B.C. law.
8. Any error in the North Carolina judgment may only be addressed by the North Carolina
court. Without any appeal, such judgment is to be treated as conclusive and
impeachable.
a. An alleged error of law or fact is not a ground on which a B.C. court can refuse to
enforce a foreign judgment.
9. There is also no violation of public policy because:
a. The North Carolina judgment containing an award of treble damages is based on
the fact that the defendant committed unfair and deceptive trade practices.
b. The trebling of damages was within the power of the North Carolina court and
can be equated to exemplary damages applied by Canadian courts.
c. Both treble and punitive damages are remedial and for the benefit of the
individuals and not for the benefit of the state whose laws were enforced.
Fernandez v. The Mercury Bell (1986)
3 FC 454 (CA)
DOCTRINE:
The English jurisprudential rule that, in the absence of proof of the foreign law governing the
case, the judge will apply the law of the forum, should not be seen as a pure abandonment of the
rule of conflict. It is a pure rule of convenience, and one which can only be rationally acceptable
when limited to provisions of law potentially having some degree of universality.
FACTS:
1. The plaintiffs are

a. All citizens of the Philippines
b. Members of the crew of the M/V Mercury Bell, a cargo ship engaged in
international trade and registered under the laws of Liberia
c. Hired in Manila, on various dates, by the shipowners’ crewing agent
d. They had all signed individual contracts of employment duly approved by the
Philippine National Seamen Board
2. After joining the ship, the plaintiffs learned that a so-called “Special Agreement” and
“Collective Agreement” was entered into between the owners of Mercury Bell and the
Special Seafarer’s section of the international Transport Workers’ Federation (ITF) setting
minimum wage rates for seamen on board the ship which were higher than those
provided in their respective contracts.
3. They continued accepting the pay they agreed to but when the ship docked in Montreal,
they initiated the present proceedings to obtain payment of the difference between the
wages they actually received and that provided for in the ITF agreement.
4. Lower Court judge granted their claim, citing jurisprudence to the effect that a collective
labour agreement always supersedes the employees’ individual contracts.
5. In a Canadian context, the LC judge is correct. However, this case does not fall under the
Canadian context.
a. The ship flies a Liberian flag
b. The crew if Filipino
c. The contracts of employment were signed in Manila
d. The agreement sought to be enforced was executed in Australia
e. The ship was arrested in Canada, but that alone does not mean that Canadian
law is applicable.
ISSUE:
What law should be applied?
RATIO:
1. To determine the rights of seamen against the owners of the ship on which they are
serving, the law of the ship’s port of registry must be looked at.
a. This is required by the well-established rule of international law that the law of the
flag state ordinarily governs the international affairs of a ship.
2. This action must be disposed of on the basis of the law of Liberia. However, the law of
Liberia was not proven before the Court.
a. It is well-known that in countries governed by the English law, a court will not
take judicial notice of foreign law. It will not even be considered as an ordinary
fact about which the court can require evidence.
i. Failure to prove foreign law will result in the court acting as if the foreign
law is the same as its own law or the lex fori
ii. What is still unclear is whether the lex fori applicable should include the
statute law or limited to common law
3. Under the common law, there appears to be no doubt that the action as instituted simply
cannot succeed.
a. The ITF agreement could not create legal obligations between the shipowners
and the individual seamen.
b. It is also settled that between employer and employee a collective labour
agreement has not legal force except to the extent conferred by a statute.
c. The plaintiffs cannot pretend that the “Special Seafarers Section” of the ITF were
their agents in Australia for the simple reason that they were not even crew
members, or that the signing of the agreement had the effect of creating a trust of
which they became beneficiaries. They are strangers to the agreement and
therefore, cannot claim from it.
4. Under the statute law, the plaintiff’s action is to be considered in a radically different legal
context.
a. A ship engaged in international trade is a “federal undertaking” to which the
Canada Labour Code (CLC) is applicable.
b. The ITF, which is admittedly a Labour Union, is a valid bargaining agent under
the terms of the CLC and that the agreement entered into between it and the
shipowners is a collective agreement.
5. Upon a review of jurisprudence, the Court noted the reluctance of judges to dispose of
litigation involving foreign people and foreign law on the basis of provisions of legislation
peculiar to local situations or linked to local conditions.
a. This reluctance recognizes a distinction between substantive provisions of a
general character and others of a localized or regulatory character.
b. The English jurisprudential rule that, in the absence of proof of the foreign law
governing the case, the judge will apply the law of the forum, should not be seen
as a pure abandonment of the rule of conflict.
i. It is a rule strictly related to the incidence of evidence.
ii. The Court does not repudiate the premise that the case is governed by
the foreign law, but simply says that in so far as it is formally aware the
foreign law is similar to its own law.
iii. It is a pure rule of convenience, and one which can only be rationally
acceptable only when limited to provisions of law potentially having some
degree of universality.
6. The law of Liberia is the law which is applicable here. However, in the absence of proof,
the Court must presume that it is similar to the law of Canada but only insofar as the
substantial provisions are concerned.
a. Provisions under the Canada Labor Code recognizing the role of labour unions,
giving effect to collective agreements, and recognizing the right of each individual
employee to sue for his wages under the agreement are fundamental and have
the potential degree of universality.
b. Therefore, the Filipino seamen may file their claims under the ITF agreement.
Mc Lean v. Pettigrew (1945)
2 DLR 65 (SCC)
Mc Lean vs. Pettigrew (1945)
1945 | 2 D.L.R. 65
Laws in Conflict: Ontario Law (Lex loci delicti commissi) v. Quebec Law (Lex forri)
Doctrine: In aan action brought in one forum for damages in respect of personal injuries due to a
tortious act committed outside that forum, the plaintiff's right to recover rests upon the fulfillment
of two conditions: a. the wrong is actionable if committed in that forum and; b. the act must not-
have-been justifiable by the law of the place where it was committed.
Facts:
1. Mc Lean and Pettigrew are both domiciled in the Province of Quebec.
2. Pettigrew was a gratuitous passenger in Mc Lean’s automobile on a trip from
Montreal to Ottawa on July, 1940. She was injured when the appellant's automobile left
the road in the province of Ontario near Rockland.
3. The accident occurred as the automobile proceeded down a hill and around a
curve. It was raining at the time. The road was smooth asphalt, and was not very well
banked. As the appellant approached the hill, there was a large sign confronting him
containing the warning "Drive slowly on wet pavement". Pettigrew sustained injuries in
the spinal column which prevented him from going to work.
4. Pettigrew filed a case in the Province of Quebec against McLean anchored on
the purported breach of beneficial contract and tort of the latter.
5. It is submitted that if the liability is contractual, it is the law of the Province of
Quebec (lex fori) where the contract was made which applies, and the respondent must
succeed. But if it is by virtue of the principles of tort liability then this case must be
determined in the Province of Ontario (lex loci delicti commissi), where the tort occurred.
Issue: Whether or not McLean is liable -- Yes, but the liability is not based on a breach of contract
but one arising from a tort.
Held:
1. Now here is a person who offered one of his friends to ride with him in the latter’s vehicle,
or accept the place offered to him. Then an accident occurs. Is there breach of contract of
carriage as to impute liability on the driver, Mc Lean? Based from jurisprudence we can
not admit here a contractual liability, as there is no contract. In principle, we must support
this solution. Certainly in this case, the carrier makes a friendship service or complacency
does not assume any obligation, nor conveyed the thought of asking any commitment.
2. Section 47 of the Highway Traffic Act reads: -
“The owner or driver of a motor vehicle, other than a vehicle operated in the business of
carrying passengers for compensation, shall not be linkable for any loss or damage
resulting and from bodily injury to, or the death of any person being the carried in such
motor vehicle”.
3. However as based on tort, in an action brought in one forum for damages in respect of
personal injuries due to a tortious act committed outside that forum, the plaintiff's right to
recover rests upon the fulfillment of two conditions: a. the wrong is actionable if
committed in that forum and; b. the act must not-have-been justifiable by the law of the
place where it was committed.
4. The accident occurred in the Province of Ontario, but both parties are domiciled in the
Province of Quebec where the action was filed. It was sufficiently shown by the Pettigrew
(and was not rebutted by Mc Lean) that first, had the accident occurred in Quebec
(forum), it would give rise to an action; and second, that the accident was also wrongful
or non-justifiable under the law of Ontario, the place where the tort was committed.
Somers v. Fournier (2002)
60 OR (3d) 225 CA
Doctrine
General conflict of laws principles regarding damages distinguish between an entitlement to

damages and the quantification or measurement of damages. Remoteness and heads of damage
are questions of substance governed by the lex loci delicti or where the activity occurred whereas
the quantification or measurement of damages is a question of procedure governed by the lex fori
or law of the forum.
Facts
 The case involves the choice of law to be applied in an international negligence action
commenced in Ontario and arising from a two-car motor vehicle accident which occurred in
the State of New York. At issue, in particular, is the choice of law applicable to claims in the
action for costs, pre-judgment interest and non-pecuniary general damages.
 In 1990, Arthur and Lola Somers (the "Somers"), residents of Ontario, were involved in a
motor vehicle accident with a car driven by Steven D. Fournier ("Fournier"), a resident of the
State of New York, while on a road trip in New York State. Lola Somers was a passenger in
the vehicle being driven by her husband when it was rear-ended by the vehicle operated by
Fournier and owned by Fournier's father. Ms. Somers was also involved in a subsequent
motor vehicle accident in Ontario on October 14, 1994. As a result of both accidents, several
related lawsuits have arisen.
 In this action, commenced by the Somers in Ontario against Fournier and Liberty Mutual
Insurance Company ("Liberty Mutual"), the Somers claim compensatory damages for
personal injuries, pre-judgment interest and costs arising from the 1990 accident (the
"Action"). The defendants in the Action attorned to the jurisdiction of the Ontario courts. Thus,
there is no challenge in the Action of Ontario as the proper forum.
 At the time of the 1990 accident, Lola Somers was insured by Liberty Mutual under an
Ontario standard form automobile insurance policy. Neither that policy nor Ontario's statutory
regime applicable in 1990 restricts an injured person's right to sue an at-fault motorist in tort
for damages arising from injuries occasioned by a motor vehicle accident. Further, the Liberty
Mutual policy is silent on the choice of law applicable to claims arising from accidents in
foreign jurisdictions.
 Fournier moved prior to trial for, among other relief, a declaration that the substantive law of
New York State applies to the Action. By order dated June 29, 2001, Justice C. Campbell
held that the substantive law of New York State and the procedural law of Ontario applies to
the Action. He further concluded that pre-judgment interest, costs and Ontario's "cap" on non-
pecuniary general damages are procedural in nature and, therefore, are governed in the
Action by Ontario law.
 Defendant Fournier appeals the motions judge's decision that: a) the procedural law of
Ontario applies to the Action, and b) that law governs claims in the Action for pre-judgment
interest and costs. Ms. Somers cross-appeals the motions judge's determination that the
substantive law of New York State applies to the Action and, in the alternative, his conclusion
that the "cap" on non-pecuniary general damages recognized under Ontario law applies to
claims in the Action for damages for non-pecuniary losses and expenses. Mr. Somers
abandoned a cross-appeal brought by him from the motions judge's dismissal of his claim for
non-pecuniary general damages. He did not participate in this hearing.
Issue/s
 Whether or not costs and pre-judgment interest are matters of procedure to which Ontario
law (the lex fori) applies;
 Whether or not the substantive law of New York (the lex loci delicti) applies to the action;
 Whether or not the “cap” on non-pecuniary general damages recognized under Ontario law is
a matter of procedure, rather than substantive, law with the result that it applies to the action
as part of the lex fori.
Held
 The Appeal was allowed in part, but the cross-appeal was denied.
 As a matter of New York State substantive law, no pre-judgment interest is awardable in
personal injury compensation claims;
 Attorneys’ fees, as a matter of New York State substantive law, cannot be awarded in
personal injury compensation cases, each party is responsible for his or her own
attorney’s expenses for litigation
 As a matter of New York State substantive law, there is no judicial cap or ceiling
governing award of general damages
Ratio
 Ontario residents bringing negligence action in Ontario arising from collision in New York
State with vehicle driven and owned by residents of that state -- Substantive law of New
York State and procedural law of Ontario applying to action.
 A distinction between procedural and substantive law must be made. Substantive law
creates rights and obligations and is concerned with the ends which the administration of
justice seeks to attain, whereas procedural law is the vehicle providing the means and
instruments by which those ends are attained. It regulates the conduct of Courts and
litigants in respect of the litigation itself whereas substantive law determines their conduct
and relations in respect of the matters litigated.
 The forum court cannot be expected to apply every procedural rule of the foreign state
whose law it wishes to apply. The forum’s procedural rules exist for the convenience of
the court, and forum judges understand them.
 General conflict of laws principles regarding damages distinguish between an entitlement
to damages and the quantification or measurement of damages. Remoteness and heads
of damage are questions of substance governed by the lex loci delicti or where the
activity occurred whereas the quantification or measurement of damages is a question of
procedure governed by the lex fori or law of the forum.
 There is no merit in the argument of Ms. Somers that application of the lex loci delicti rule
to the Action would create serious procedural problems concerning the assessment of
her damages and the resolution of the pending litigation. She emphasizes that multiple
actions relating to the 1990 accident are outstanding, and that her injuries overlap the two
accidents in which she was involved.
Australian Broadcasting Corp v. Waterhouse (1991)
25 NSWLR 519 (CA)
Doctrine: In a defamation action commenced in New South Wales in relation to a publication

elsewhere in Australia, the defendant may plead any defenses  available either in this State or in
the jurisdiction in which the publication  took place.
Facts:
 The defendant in these three associated actions for defamation has re-applied for leave
to amend its Defense by pleading the defenses available by the law of New South Wales
to the claims made by the plaintiffs based upon publications outside this State (but within
Australia).
Issue: WON the defendant may plead defenses available in the jurisdiction where publication
took place?
Held:
 In a defamation action not commenced in New South Wales, but which is being heard
here in accordance with the cross-vesting legislation, the defendant may plead in relation
to publications taking place in either Queensland or  Tasmania only defenses available in
such State or States. Otherwise, the defendant may plead any defenses available either
in this State or in the jurisdiction in which the publication took place
 In McKain v RW Miller and Co: the High Court has now returned the common law rules of
choice of law applicable in Australia to those stated in Phillips v Eyre (1870) LR 6 QB 1,
but it has modified those rules so as to define more precisely the system of law by
reference to which the court hearing an action based upon a tort committed elsewhere in
Australia is to determine the claim made.
 A plaintiff is now entitled to sue in one State to enforce a liability in respect of a tort
committed outside that State (but in Australia) if:
1. the circumstances out of which the claim arises are of such a nature that, if they
had occurred within that State, a cause of action would have arisen entitling the
plaintiff to enforce a civil liability against the defendant of the kind which he seeks
to enforce;
2. those circumstances also gave rise to such a civil liability by the law of the place
where the tort was committed; and
3. that civil liability was still continuing in that place. The joint judgment of the
majority in McKain's Case recognizes that a State legislature may by statute vary
the common law rules of choice of law.
There is no such statute in New South Wales relating to an action commenced in this
State, and defendants in such actions may now once again plead to claims based
upon torts committed elsewhere in Australia defenses available to them had those
torts been committed in this State, in addition to defenses available by the law of the
place where those torts were committed
 Where, however, the action was not commenced in this State but is being heard here in
accordance with the cross-vesting legislation (as are these actions), the NSW Courts
(Cross-Vesting) Act 1987 provides that, except in matters of evidence and procedure, the
court hearing such an action in this State must apply the law in force here (being both its
written and unwritten law and including its choice of law rules) unless the right of action to
be determined arises under a written law of another State or Territory. So far as the right
of action in defamation is concerned in each of New South Wales, Queensland and
Tasmania, it arises under a written law
 This State's common law choice of law rules accordingly have no application to the
plaintiff's claim in relation to publications in Queensland or Tasmania, and the defendant
may plead in relation to such publications only the defenses available in such State or
States.
 The remaining rights of action claimed by the plaintiffs here arise under the common law
in each of the other Australian jurisdictions. The decision in McKain's Case therefore
means that, in relation to each of those other Australian jurisdictions, the plaintiffs can
succeed in this Court only if they would have succeeded both in that jurisdiction and (if
the publication had occurred in New South Wales) in this State. The defendant is thus
entitled to rely upon any defenses available either in this State or in the jurisdiction in
which the publication took place.
 This decision in McKain's Case has effectively overruled; both decisions had of course
been based on Breavington v Godleman. In my judgment, I expressly reserved the
defendant's right to reapply for leave to plead the defenses available in New South Wales
to the publications outside this State in the event the law was changed. The law has
indeed now been changed. Mr Evatt for the plaintiffs has said that he has no submissions
which he can make in opposition to the merits of the defendant's application, although he
says that the defendant remains bound by the decision of the Court of Appeal, and that it
is obliged to seek relief only from the High Court. This is, however, a fresh application. I
am bound to apply the law as it stands at present, not as it was when the previous
application was made and determined. The appeal, moreover, appears to have been
taken to the Court of Appeal by only one of the plaintiffs.
Nike Informatic Systems Ltd. vs. Avae Systems Ltd. (1979)
105 DLR (3d) 455 (BC SC)
Doctrine:
The proper law of a contract is the law which the parties intended to apply, and where they have
expressed their intention the contract will be governed by the law so chosen if their expressed
intention is bona fide, legal and not against public policy, and it is immaterial that the contract has
no connection with such law and that it makes foreign statutes applicable to certain eventualities.
Facts:
1. Nike Informatic Systems Ltd, plaintiff, is corporation domiciled in British Columbia, which
leases certain audio-visual equipment and sells franchises for the operation of such
equipment. The defendant Avac Systems Ltd. (“Avac”) is an Alberta Corporation, and the
defendant James Wallace (“Wallace”) apparently resides in that province and is a director
of the defendant company.
2. The parties signed a franchise agreement in 1976. Nike and Avac termed it as a “direct
distributor lease and service agreement.”
3. The third paragraph of the agreement has the follow pertinent provision:
a. “Nike has selected the distributor as a franchised Nike distributor in reliance upon
the personal qualifications and business ability of the person or persons who are
named in paragraph third thereof”
4. The contract stipulated that British Columbian law is the law of the contract.
5. Clause 20, from part N.L. – 3, of the contract states:
a. “This Agreement is to be governed by and construed according to the laws of the
Province of B.C. (British Columbia). If, however, any provision in anywise
contravenes the laws of any state or jurisdiction where this agreement is to be
performed, such provision shall be deemed not to be a part of this agreement
therein.”
Issue:
W/N British Columbia Law is the proper law of the contract;
Held:
1. British Columbia is the governing law; the contract is valid

2. Nike correctly points out that, through the first sentence of clause 20, part N.L. 3 alone;
the parties have selected the applicable law to be the law of British Columbia. The
second sentence is subordinate to the first sentence.
3. AVAC, to counter this, states that that any such expressed provision is overridden by the
fact that the contract, signed in Alberta, was meant to be performed in Alberta and was
an “Alberta contract” which should be governed by the law of that province.
4. Vita Food Products Inc. v. Unus Shipping Co. stated
a. “It is now well settled that by English law the proper law of the contract ‘is the law
which the parties intended to apply.’ That intention is objectively ascertained and
if not expressed will be presumed from the terms of the contract and the relevant
surrounding circumstances.
5. But, R. v. Internet, Trustee for the Protection of Bond-holders Aktiengesellschaft:
a. ‘Their intention will be ascertained by the intention expressed in the contract if
any, which will be conclusive,’ It is objected that this is too broadly stated and
that some qualifications are necessary.
6. In questions relating to the conflict of laws, rules cannot generally be stated in absolute
terms but rather as prima facie presumptions. BUT where the English rule of intention
applies and where there is an express statement by the parties of their intention to select
the law of the contract, it is difficult to see any deviations from this intention, PROVIDED
the intention expressed is bona fide and legal, and there is no reason for avoiding the
choice on the ground of public policy.
7. “The proper law of a contract is the law which the parties intended to apply, and where
they have expressed their intention the contract will be governed by the law so chosen if
their expressed intention is bona fide, legal and not against public policy, and it is
immaterial that the contract has no connection with such law and that it makes foreign
statutes applicable to certain eventualities.”
8. The fact that Nike is a corporation domiciled in British Columbia makes the connection
with British Columbia a real one and the grounds (even if needed) stronger than inVita
Foods. Thus, even if the contract was signed in Alberta and was meant to be performed
in Alberta, the expressed intention prevails.
9. As stated, the only way to overcome the expressed intention is if the expression was
meant to evade the law wherein the contract has its most substantial connection. There is
nothing to indicate that the choice of law was not bona fide but only an attempt to evade
Alberta law. The phraseology and use of the word “therein” in the second sentence of the
clause in fact shows the complete reverse.
Mackender vs. Feldia AG (1967)
2 QB 590 (CA)
Doctrine:
Where the parties have by their contract agreed to submit all disputes to a foreign court, that is a
strong reason for refusing leave to serve outside the jurisdiction.
Facts:
1. By a contract made in London in 1964, the plaintiffs, Lloyd's underwriters, issued a

jewellers' block insurance policy covering the defendants, who were diamond merchants
incorporated respectively in three different European countries, against loss or damage to
their stock anywhere in the world.
2. The policy contained a foreign jurisdiction clause providing that it should be governed
exclusively by Belgian law and that any disputes thereunder should be "exclusively
subject to Belgian jurisdiction."
3. A loss of diamonds and pearls occurred in Naples. The defendants made a claim on the
plaintiffs for the loss.
4. After investigations and negotiations, the plaintiffs rejected the claim, alleging that the
defendants had made a practice of smuggling diamonds into Italy, that it was contrary to
English policy to insure goods which were intended to be smuggled into a friendly foreign
country and that the defendants had been guilty of non-disclosure of this practice.
5. The defendants started proceedings in Belgium claiming payment of their loss. Wanting
the dispute to be tried in England, the plaintiffs issued a writ in England asking that the
policy be declared void for illegality and voidable for non disclosure, and that it be
rescinded or annulled.
Issue:
1. Whether or not the English proceedings should be continued. -> No.
Ruling:
1. This contract was undoubtedly made within the jurisdiction. The negotiations between the
underwriters and the brokers were here in London, the slip signed here, and the policy
issued out of and signed at Lloyd's policy signing office.
2. Even if there was non-disclosure, nevertheless non-disclosure does not automatically
avoid the contract. It only makes it voidable.
3. The contract is not avoided from the beginning but only from the moment of avoidance. In
particular, the foreign jurisdiction clause is not abrogated.
4. The foreign jurisdiction clause is a positive agreement by the underwriters that the policy
is governed exclusively by Belgian law.
5. Any dispute under it is to be exclusively subject to Belgian jurisdiction.
6. That clause still stands and is a strong ground why discretion should be exercised
against leave to serve out of the jurisdiction.
Avenue Properties Ltd. vs. First City Dev. Corp. (1986)
32 DLR (4th) 40 (BC CA)
Doctrine:
In order to succeed in an application for a stay of proceedings or declaration of jurisdiction, two

conditions must be satisfied: (1) the party applying for the stay must satisfy the court that there is
another forum to whose jurisdiction he was amenable and in which justice can be done between
the parties at substantially less inconvenience and expense; and (2) if the first condition is met,
the other party may still prevent a stay being granted if he can show that a stay would deprive him
of a legitimate personal or juridical advantage which would be available to him if he invoked the
jurisdiction of the court where the stay is sought.
Facts:
1. The dispute between the parties arises from certain agreements for the sale and
purchase of units of real estate development in Ontario. The vendors of the Ontario
property were First City Development Corporation Ltd., an Alberta company extra-
provincially registered in the provinces of Ontario and British Columbia, and John Garay
& Associates Limited, an Ontario corporation. These vendors were joint venturers
carrying on business under the name of Granby Place.
2. The purchaser was Avenue Properties Ltd., a British Columbia company
3. The First City Development Corp. entered into agreements with Avenue Properties Ltd.
4. The agreements consisted of three contracts for the purchase of interests in the
development and a collateral agreement regarding the rental of the development and
revenue from it. Each of the agreements contained the following clause: This agreement
shall be governed by and construed in accordance with the laws of the Province of
Ontario.
5. The development agreement contained the following additional clause: The parties
hereby attorn to the jurisdiction of the Province of Ontario
6. The vendors complied with Ontario law requiring the delivery of certain particulars to the
purchaser before the sale. However, they did not comply with the requirements of the
Real Estate Act of British Columbia that they submit a prospectus for the development to
the Superintendent of Insurance of the Province of British Columbia and deliver such a
prospectus to the purchaser.
7. Subsequently, solicitors for the purchaser notified the vendors that they would not
complete performance of the respective agreements because of the failure of the vendors
to comply with the provisions of the British Columbia Real Estate Act. The purchaser
demanded the return of the deposits paid to the vendor, and has not completed its
obligations under the agreements.
8. Later, the vendors commenced actions in the Supreme Court of Ontario against the
purchaser, claiming specific performance of the agreements and, alternatively, damages
for their breach. The purchaser filed appearances and statements of defense in the
Ontario action claiming, amongst other things, that the agreements are unenforceable for
failure to comply with the provisions of the British Columbia Real Estate Act.
9. The purchaser likewise commenced an action in British Columbia, seeking a declaration
that the agreements are unenforceable under the British Columbia Real Estate Act and
an order that its deposits be repaid.
Issue:
Whether an action commenced by the purchaser, Avenue Properties Ltd. in British Columbia
should be stayed because of the stipulation of the parties that forum should be in Ontario. [No]
Ratio:
1. The existence of two actions in different jurisdictions is not in itself sufficient to invoke the
court's jurisdiction to grant a stay, particularly when the plaintiff in the forum court is the
defendant in the foreign action
2. In MacShannon it was held that in order to succeed in an application for a stay of
proceedings or declaration of jurisdiction, two conditions must be satisfied:
a. The party applying for the stay (the defendant) must satisfy the court that there is
another forum to whose jurisdiction he was amenable and in which justice can be
done between the parties at substantially less inconvenience and expense;
b. If the first condition is met, the plaintiff may still prevent a stay being granted if he
can show that a stay would deprive him of a legitimate personal or juridical
advantage which would be available to him if he invoked the jurisdiction of the
court where the stay is sought.
3. The onus is on the defendant on the first branch of the test, and on the plaintiff on the
second branch.
4. The chambers judge erred in holding that justice could be done between the parties at
substantially less inconvenience and expense in Ontario.
a. The purchaser had a real interest in proceeding in British Columbia.
b. It was a British Columbia corporation.
c. The solicitation giving rise to the contract occurred in British Columbia and was
regulated by British Columbia legislation.
d. The contract was signed by the purchaser in British Columbia.
e. The purchaser’s only assets were in British Columbia, meaning that if the
vendors were successful in their action in Ontario, they would have to bring
subsequent proceedings in British Columbia to enforce that judgment.
5. On the other hand, the only inconvenience to the vendors in proceeding in British
Columbia was the risk of inconsistent decisions and possible difficulties in enforcing any
judgment obtained in Ontario, if a different decision were rendered in British Columbia.
6. A court can apply the law of its own jurisdiction in substitution or supplementation for the
proper law of the contract in two circumstances. The first is where the local law is
procedural. The second is where the local law, although substantive rather than
procedural, is of such a nature that it should be applied. A court has no alternative but to
do this where the local legislation specifically states that certain provisions will apply,
notwithstanding that the proper law of the contract may indicate otherwise. This sort of
provision is referred to by the authorities as a “choice of law rule”.
7. The chambers judge erred in failing to go on to consider the possibility that, assuming
that the British Columbia law requiring prospectus, a British Columbia court would apply it
on the basis that it constitutes a “choice of law rule” — that is, the legislature's edict that a
person soliciting agreements for the sale of land in British Columbia, whether that land is
inside or outside the province, must comply with the British Columbia Act’s prospectus
requirements if he wishes the subsequent agreement to be enforceable in this province.
8. The decision of the court gives another concept regarding which law applies when two
jurisdictions are available. As other cases have mentioned, lex fori applies when
procedural laws are at issue. However, this decision applied lex fori, even where a
substantial law was at issue by invoking the “choice of law rule” notwithstanding that the
proper law of the contract stated otherwise.
9. Lex fori was applied in this case because the law of the forum specifically mandated a
requirement.
Gillespie Mgmt. Corp. vs. Terrace Properties (1989)
62 DLR (4th) 221 (BC CA)
Doctrine:
The effect of a contract is determined in accordance with the proper law of the contract, taking
into consideration where it is to be performed.
Facts:
1. A management contract was entered into between Gillespie (a British Columbia

company) and Terrace Properties (A U.S. company) with Dr. Papadopoulus (a British
Columbia resident) wherein Gillespie was to assume the management of the latter’s
apartment building in Washington, USA.
2. The agreement was made in British Columbia and it contains a 3 month notice provision
for its termination.
3. Terrace properties terminated the agreement without notice pursuant to the agreement
and it also did not make payments to Gillespie in lieu of notice.
4. Gillespie an action for damages against Terrace properties.
Issue
WON Gillespie can recover the commissions due him under the contract or damages for its
wrongful termination in spite of the fact that he was not licensed as a real estate broker in the
State of Washington
Held
No, the illegality of Gillespie’s act in performing its obligations under the contract in the State of
Washington, where there is an express prohibition against its doing so unless properly licensed,
renders its claim unenforceable in the courts of this province.
Ratio
1. The court ruled that the Washington Law is not directly binding on British Columbia
because under Rule 151 (1) it was stated that the effect of a contract is to be determined
in accordance with the proper law of the contract. In this case, the contract was perfected
in British Columbia.
2. However the Washington law must be taken into consideration because the contract is to
be performed in Washington. Under the Washington Law, it is unlawful for any person to
act as a real estate broker without first obtaining a license. Thus, the action for damages
was dismissed.
Christopher vs. Zimmerman (2000)
192 DLR (4th) 476, 2000 BCCA 532
Doctrine:
Claims to moveable property are to be goverened by the “lex domicilii” or the law of the
matrimonial domicle absent some express or implied agreement to the contrary.
Facts:
1. The parties met in the Spring of 1988 when the defendant, who is a citizen of the United
States of America was living in Hawaii. The Plaintiff who was born in Austria, came with
her family to Canada in 1960. She is a Canadian Citizen. They began living in Hawaii and
they continued to reside together, although there is considerable dispute as to the exact
extent of their relationship, until their separation in October 1998.
2. There is dispute as to the nature and extend of the plaintiff’s physical contribution to the
defendant’s enterprise and it forms basis for the plaintiff’s claim in trust that the defendant
has been enriched by her physical efforts and she has, correspondingly, been deprived.
In short, the plaintiff claims in constructive trust against the defendant.
3. In 1993 the parties moved to California where they opened a modeling business that did
not prove to be successful. They next resided in Georgia where they created a travel
guide. Thereafter they proceeded to Florida where they remained briefly before moving
yet again to Vancouver.
4. In her affidavit in support of an application for an order restraining the defendant from
dealing with any of the liquid assets which he had brought into this jurisdiction, the
plaintiff deposed:
"The defendant has no connection to Canada and is most closely connected to

the United States. His family all lives in the United States. His mother and two of
his daughters live in New York City. His other daughter lives in San Francisco.
He has no friends in Vancouver. His best friend, Brian Smith, lives in San Diego."
5. The plaintiff then detailed other actions of the defendant indicating little, if any connection
with, or an intention to create a domicile of choice in, Canada. The defendant accepts
and relies upon this evidence in support of his position that the proper law to determine
the rights of the parties is Hawaii.
6. Defendant’s:
a. "A domicile of origin can not be lost by mere abandonment. It can only be lost by
the acquisition of a domicile of choice. On the other hand, a domicile of choice
can be lost by abandonment; and if it is, and a new domicile of choice is not
simultaneously acquired, the domicile of origin serves to fill the gap.
b. The defendant says that the plaintiff has failed to establish a domicile of choice in
this jurisdiction; rather, she has emphatically averred that the defendant has not
established a domicile of choice.
7. Plaintiff:
a. "In the absence of any previous contractual relationship between the parties, the
obligation to restore the unjust enrichment has its closest and most real
connection with the law of the legal unit where the immediate or ultimate
enrichment occurred since the enrichment is at the heart of the action."
b. The plaintiff says that there is an argument to be made that as a claim in
constructive trust is a remedy and not a substantive right, restitutionary remedies
should be governed by the "lex fori".
Issue:
Whether or not the Hawaii law should apply? YES.
Held:
In the court’s view, in a modern context the determination of domicile ought not to rest on whether
the parties were married or not. Claims to moveable property are to be governed by the "lex
domicilii" or the law of the matrimonial domicile absent some express or implied agreement to the
contrary. Given the affidavit evidence of the plaintiff, the court is satisfied that she has not
established that the defendant changed his domicile of choice to British Columbia. Accordingly,
the British Columbia court should decide the issues of trust on the basis of the law of Hawaii.
Hogg vs. Provincial Tax Commission (1941)
3 WWR 605 (Sask. CA)
Doctrine
1. Whether certain property is a movable or immovable must be determined by the law of

the country where it is situated.
2. A duty or tax is only payable when the title is derived or devolves from the law of the
taxing province.
FACTS:
1. The deceased Hannah Dalrymple died on March 2, 1939, intestate, leaving only two
sisters surviving her. The deceased was, and her sisters are, domiciled and resident in
Saskatchewan. She left an estate valued at about $70,000, of which $37,000 consisted of
mortgages registered against lands in the province of British Columbia.
2. The Provincial Tax Commissioner made an assessment of succession duty in respect of
the succession to the two sisters of the deceased under the provisions of sec. 26 of The
Succession Duty Act, 1938, ch. 11 [now R.S.S., 1940, ch. 29. This assessment covered
the succession in respect to the mortgages held on the lands in British Columbia
3. The contention of the appellant is that the Saskatchewan Succession Duty Act, 1938,
imposes a duty on the succession to property and not the property itself, and that all
property of the deceased is liable to this duty, as the deceased was and the two
beneficiaries, the respondents in this appeal, were and are domiciled and resident in this
province.
4. Witness for the heirs, Mr. Norris, deposes that according to the law of British Columbia
not only lands and houses thereon but also servitudes and easements and other charges
on land such as mortgages and trust estates are deemed to be in the sense of the law
immovables.
5. CTR counters with its own expert, Mr. Long. He deposes that money secured by
mortgages on land in British Columbia devolves as personal property.
ISSUE: W/N Mortgages are immovable or movable properties. – Depends on the law where the
property is situated.
W/N Mortgages in British Columbia are taxable by the CTR of Sasketchewan. – No because law
of decedent did not allow tax out properties outside the province.
RATIO:
1. Various Courts of high authority have held mortgages to be movables HOWEVER, it is always
to be borne in mind that the question whether certain property is a movable or immovable must
be determined by the law of the country where it is situated.
2. Since it is thus affirmed that the mortgages are classified as immovables, under the law of
British Columbia it follows that such was the law to be taken into account by the appellant as
determining the proper law of succession in this case. Then, but not till then, the law of that
province may be deemed to take effect which says that such property shall devolve as personalty
and not as realty.
3. In Duncan v. Lawson - it was held that the devolution of property though amounting to only a
chattel interest, yet being by nature immovable, must be governed by the lex loci rei sitae (in that
case, the law of England).
4. The duty or tax is only payable when the title is derived or devolves from the law of this
province. The contention of the respondents is that the British Columbia mortgages are immobilia
and therefore devolve by or under the laws of British Columbia. The appellant's contention is that
these mortgages are mobilia and therefore devolve under the laws of this province.
5. The Sasketchewan Succession Duty Act provides - No duty shall be leviable on real property
situated outside of the province.
6. The appeal is dismissed. The Saskatchewan CTR cannot collect upon immovable in British
Columbia.
Godley vs. Coles (1988)
39 CPC (2d) 162 (Ont. DC)
Doctrines:
1. If there is a question on the title of the immovable, the jurisdiction is conferred to the
place where the land is situated.
2. If the title is not in dispute, any action for damages arising from any injury inflicted to an
immovable property located abroad may be brought to any convenient forum.
Facts:
1. Plaintiffs Robert and Dorothy Goldley, residing in Ontario, are joint owners of a
condominium unit located in Florida, USA.
2. Defendants Harold and Eleanor Coles, also residing in Ontario, are joint owners of a
condominium unit located directly above the plaintiff’s condominium unit.
3. Plaintiffs sued defendants due to an alleged water leak originating from a crack in the
defendant’s toilet tank.
4. Defendants moved for the dismissal on the ground that:
a. The Ontario court has no jurisdiction to award damages for any injuries suffered
by the plaintiffs with regard to their immovable property located in Florida, USA
(or otherwise known as the Mocambique Ruling) and
b. Ontario is not the convenient forum.
Issues/Held:
Are the plaintiffs entitled to sue in Ontario? Yes.
If yes, is the forum of convenience in Florida or in Ontario? Ontario.
Ratio:
1. The presence of some damage to immovable property should not disentitle the plaintiffs
from bringing their action in Ontario.
2. The purpose of the Mocambique ruling is to ensure that in actions where title to
property is in question, the jurisdiction in which the property is located must hear the
matter to the exclusion of every other jurisdiction, and with that principle no one would
disagree.
3. In this case, there is not dispute as to the title of the land. Therefore, the Mocambique
ruling cannot be applied.
4. As to the second question, the Court held that Ontario is the convenient forum because
majority of the key witnesses of the plaintiffs reside in Ontario including the defendants
themselves. On the other hand, the identified witnesses residing in Florida are restricted
to those workmen assisting in the repairs and renovations of the apartment.
British South Africa Co. vs. Companhia de Mocambique (1893)
AC 602 (HL)
Doctrine:
The Courts have no jurisdiction to entertain an action to recover damages for a trespass to land
situated abroad, as such involves a question of title to foreign land. No change in the law of
venue can supply the want of jurisdiction.
Facts:
1. The case involves a dispute between two companies, British South Africa Company (a
British company) and Companhia De Moçambique (a Portuguese company). The
Portuguese company filed an action against the British company which claimed that they
owned certain tracts of land and mining rights in South Africa. That the British company
allegedly, by its agents, wrongfully and maliciously broke and entered and took
possession of the said lands, mines and mining rights, and ejected the Portuguese
company, its servants, agents and tenants therefrom; to the injury of their business and
to put an end to their existence as a trading company in South Africa. The Portuguese
company prayed a declaration that they were lawfully in possession and occupation of
the lands, mines and mining rights, an injunction against the British for from continuing to
occupy or from asserting any title to the said lands, mines and mining rights, and for
£250,000 in damages.
2. The British company denied the title of the Portuguese company and the alleged wrongful
acts imputed to it. More importantly, it stated that the lands, mines and mining rights were
situated abroad, in South Africa, and submitted that the English Courts had no jurisdiction
to adjudicate upon the Portuguese company’s claim.
3. The Queen’s Bench Division dismissed the Portuguese company’s case so far as it
claimed a declaration of title to land, and so far as it claimed damages or an injunction
and claim in relation to trespass to land. The Portuguese company abandoned their
appeal as to the declaration of title and for an order of injunction. The Court of Appeal
affirmed most of the decision of the Queen’s Bench, however, as to the issue of recovery
of damages for trespass, it declared that the English Court has jurisdiction .
Issue:
Whether the English Court has jurisdiction to try an action to recover damages for a trespass to
land situated in a foreign country (South Africa).- No
Ratio:
1. The Portuguese company cannot maintain its action for recovery of damages for a
trespass to land situated in South Africa in the English Court, as such involves as
question of title to land in a foreign country.
2. The Portuguese company claimed that that the only difficulty in the jurisdiction to
entertain an action for trespass to land abroad was one of procedure and has been
removed by the Judicature Acts. However, the Court explained that as recited in previous
cases, the Judicature Acts have only changed procedure and did not extend jurisdiction.
No change in the law of venue can supply the want of jurisdiction.
3. The Courts have always refused to entertain cases of trespass to lands abroad. The
Court cannot determine an action which, previous to the enactment of the Judicature
Acts, was outside its competence. Where Lord Halsbury states, “Rules of procedure and
practice in England would not, I think, in the contemplation of any one, touch questions of
territorial or international jurisdiction.”
4. Appeal granted. The decision of the Court of Appeals is reversed, and the decision of the
Queen’s Bench is restored.
Ward vs. Coffin (1972)
27 DLR (3d) 58 (NB SC App. Div.)
Doctrine:
While the formalities of an agreement of sale of immovables are sufficiently observed if they
comply with the law of the place where the agreement is entered into, a conveyance or transfer of
an interest in land is always governed by the lex situs.
Facts:
1. The defendant is the widow of Lawrence Maxwell Coffin who died March 14, 1969 at
Pointe Antoine in the Province of Quebec where he was domiciled and resident. She
was named executrix of his estate and was the sole heir of the deceased.
2. The defendant retained Mr. J.C. Van Horne, a solicitor who practices at Campbellton, to
act for her in winding up her husband's estate. As she knew the plaintiff had purchased
the adjoining property from her husband, she instructed Mr. Van Horne to get in touch
with the Wards view of selling all the real and personal property at Pointe Antoine
belonging to the estate of her deceased husband.
3. The plaintiff claimed that he purchased from the deceased Lot No. 51 with the
prefabricated cottage thereon for $ 5,500 which he paid for and that he has been in
possession of it ever since. He swore that it was understood that the deed would be
delivered to him by the deceased when letters patent were received from the Province of
Quebec.
4. Mr. Van Horne testified that when the defendant retained him she suggested that the
former contact the Wards and ask if they are interested in buying Lot 1.
5. On April 22, 1969 the plaintiff and his wife sent to Mr. Van Horne a cheque for $ 500
payable to the Coffin and Mr. Van Horne which bore the endorsement "Deposit on
cottage at Temiscaming. $ 5000.00 balance due when we receive deeds". He testified
that on numerous occasions after the bargain was made, the defendant had expressed to
him her willingness and desire to conclude the transaction and that she was fully aware
of its terms, but that during his illness she obtained the file from his office.
6. However, the defendant wrote a letter to Ward stating that she is increasing the selling
price of the property to $ 8500.
7. On October 6, 1969, as a result of a telephone conversation with Mr. Van Horne, plaintiff
sent him a cheque for $ 5,000 payable to the defendant for the balance of the purchase
price of the properties, with instructions not to deliver the cheque to the defendant without
first obtaining the deeds. On being informed of the receipt of the cheque by Mr. Van
Horne the defendant refused to complete the transaction and on October 14, Mr. Van
Horne informed the plaintiff of the defendant's refusal by letter.
8. An action was commenced plaintiff who claimed specific performance of the contract to
sell the cottage and lots of land situate at Pointe Antoine for $ 5,500.
9. The trial judge ordered specific performance with costs.
Issues:
1. WON the agreement of sale entered into between the plaintiff and the defendant's
solicitor comprise both Lots No. 1 and 51 with the improvements thereon?
2. Assuming the plaintiff has such an agreement, WON it enforceable by him in an
action for specific performance
3. WON the agreement of sale is unenforceable in the Province of Quebec because of
the absence of written authority to the plaintiff's agent to sign the memorandum of
sale on her behalf, affect the plaintiff's right to enforce the agreement of sale in New
Bruanswick? And
4. Assuming the plaintiff has the right to enforce the agreement of sale in this Province,
WON the fact the will of the deceased was not probated in Quebec provide any
defense to the action?
Held:
1. As to the first issue, the evidence of the plaintiff and of Mr. Van Horne as to what was
being sold was not attacked on their cross-examination and notwithstanding the denial of
the defendant as to Mr. Van Horne's authority the evidence in support of it is
overwhelming.
a. The plaintiff in consideration of $ 5,500, was to get a good title to both Lot No. 1
and Lot No. 51 together with the contents of the log cottage on Lot No. 1. It was
only after the defendant learned that under the law of Quebec she had certain
proprietary interests in the properties which the deceased could not alienate
without her concurrence that she attempted to renege on the bargain and seek
out ways of avoiding the agreement which she authorized her solicitor to enter
into on her behalf.
2. As to the second issue, the Court is of the position that Statute of Frauds has been
sufficiently complied with insofar as the interest of the estate of Lawrence Coffin is
concerned and the defendant is precluded from setting up the Statute of Frauds with
respect to her own interest in the property by reason of the part performance of the
agreement of the plaintiff.
3. As to the third and fourth issue, the Court opined that the absence of written authority to
the defendant's solicitor to enter into the agreement of sale on her behalf does not affect
the plaintiff's right to enforce the agreement in New Brunswick.
4. This brings us to the question whether the plaintiff can maintain an action in this Court to
enforce his agreement of sale of lands situated in Quebec against the defendant who is a
resident of and was served with the writ of summons in the action within this Province.
5. The plaintiff's action is for specific performance of his agreement of sale with the
alternative claim for damage for its breach. Such an action is one in personam. There can
be no doubt that the Court has jurisdiction over the defendant who resides in New
Brunswick and was served here.
6. Where there is jurisdiction over the person the Court has jurisdiction to entertain an
action for specific performance of an agreement of sale of lands situate outside the
Province. The plaintiff's contract was undoubtedly made in New Brunswick since his offer
was received and the verbal acceptance of his offer was made by Mr. Van Horne at
Campbellton over the telephone. The confirming letter was also written at Campbellton
and sent by mail to the plaintiff from there. The contract having been made in this
Province the law of New Brunswick applies.
7. While the formalities of an agreement of sale of immovables are sufficiently observed if
they comply with the law of the place where the agreement is entered into, a conveyance
or transfer of an interest in land is always governed by the lex situs. The duty imposed on
the defendant by the agreement of sale is therefore to convey the properties in
accordance with the law of the Province of Quebec where the properties are situate. Trial
judge was justified in granting the equitable remedy of specific performance and the
appeal against his judgment should be dismissed with costs.
Catania vs. Giannattasio (1999)
174 DLR (4th) 170 (Ont. CA)
Doctrine
1. Canadian courts only have jurisdiction to enforce rights affecting land in foreign countries
if these rights are based on contract, trust or equity and the defendant resides in Canada.
In exercising this kind of jurisdiction, Canadian courts are enforcing a personal obligation
between the parties. In other words, they are exercising an in personam jurisdiction.
2. Canadian courts, however, will exercise this exceptional in personam jurisdiction only if
four criteria are met. These four criteria are:
a. The court must have in personam jurisdiction over the defendant;
b. There must be some personal obligation running between the parties;
c. The jurisdiction cannot be exercised if the local court cannot supervise the
execution of the judgment; and
d. Finally, the court will not exercise jurisdiction if the order would be of no effect in
the situs.
Facts
1. The appellants and the respondent live in Ontario. They are the only children of Eugenio
Catania, who died on January 17, 1993
2. Eugenio Catania, father of appellants Angelina Giannattasio and Nicolina Maiuri. Eugenio
transferred property situated in Italy to Angelina and Nicolina through a “Deed of Gift and
Acceptance” which was executed in Ontario.
3. By the terms of the deed, called a "Deed of Gift and Acceptance", Mr. Catania gifted a
house and a parcel of land in Salerno, Italy to the appellants. The deed, which was
written in Italian, was signed in Ontario by Mr. Catania and the appellants on April 2,
1990. The respondent Catania is not a party to the deed.
4. Earlier, in 1983, Mr. Catania had made a holograph will in which he bequeathed the
same house and parcel of land to the appellants. The will, unlike the deed, provides for a
right-of-way over the property around the house in favour of all three children and a right
of first refusal in favour of the respondent's son on any sale of the house.
5. After his father died, the respondent began proceedings in Italy to determine the validity
of his father's holograph will and to have his father's property dealt with according to
Italian succession law. Those proceedings are still unresolved.
6. Appellants intended to sell the properties, to which respondent Verniere Catania, brother
of appellants, responded by bringing an application to the Ontario Court.
7. In the Ontario Court, he challenged the validity of the deed, alleging that his father was
mentally incapacitated when he signed the deed and therefore did not understand the
nature of the document.
8. The lower court allowed the case to proceed stating that the Ontario Court had
jurisdiction.
9. All three siblings lived in Ontario.
Issue
WON an Ontario court has jurisdiction to declare void a deed executed in Ontario transferring title
to foreign land?
Held
NO, the general rule is that it has no jurisdiction. Petition is GRANTED, the decision of the
Ontario Court is REVERSED.
Ratio
1. The deed transfers title to land in Italy. The general rule is that Canadian courts have no
jurisdiction to determine title to or an interest in foreign land.
2. “The title to real property therefore must be determined by the standard of the laws
relating to it of the country where it is situated”.
3. Thus, ordinarily a judgment by a Canadian court on a disputed title to foreign land would
be ineffective. If Canadian courts cannot grant an effective judgment or an enforceable
remedy concerning land in a foreign country, they should decline jurisdiction to decide
these disputes.
4. The argument that the remedy prayed for amounts only to equitable relief against two
Ontario residents does not sway.
5. Canadian courts only have jurisdiction to enforce rights affecting land in foreign countries
if these rights are based on contract, trust or equity and the defendant resides in Canada.
In exercising this kind of jurisdiction, Canadian courts are enforcing a personal obligation
between the parties. In other words, they are exercising an in personam jurisdiction.
6. Canadian courts, however, will exercise this exceptional in personam jurisdiction only if
four criteria are met. These four criteria are:
a. The court must have in personam jurisdiction over the defendant;
b. There must be some personal obligation running between the parties;
c. The jurisdiction cannot be exercised if the local court cannot supervise the
execution of the judgment; and
d. Finally, the court will not exercise jurisdiction if the order would be of no effect in
the situs.
7. Respondent does not meet the second criterion. The deed created an obligation on the
father, and now his estate, to transfer the two properties to the appellants. It does not
create any contractual or other legal obligation between the respondent and the
appellants.
 Therefor, no in personam jurisdiction was acquired. The respondent is a “stranger” to the
deed and nothing in the record suggests that he is personally affected by his father’s
obligation to the appellants. Moreover, there are no equities between the children that
would affect the conscience of the appellants if they insisted on their rights under the
deed.
Duke vs. Andler (1932)
4 DLR 529 (SCC)
Doctrine:
The courts of a country have no jurisdiction to adjudicate upon the title or the right to possession
of immovables situated in another country. Not only must such a dispute be decided according to
the lex situs, it must be adjudicated upon by the courts of the country of the situs. The line of
cases in England, in which it has been laid down that the English courts will enforce rights
affecting real estate in foreign countries if such rights are based on contract fraud or trust and the
defendant resides in England, are all limited to the exercise of jurisdiction in personam, and the
courts in those cases did not purport to adjudicate upon questions of title. Therefore, a judgment
of a California court purporting to vest in plaintiffs lands in British Columbia, of which defendant is
registered owner, is a nullity, and will not be enforced in British Columbia.
Facts:
1. Duke entered into a contract with Promis in California for the purchase of certain real
estate in the city of Victoria, in the province of British Columbia. The purchase price is
$55,000 payable $10,000 cash and the price, $55,000 payable $10,000 cash and a note
for $45,000 to be secured by a mortgage on certain property in the city of Berkeley, in
California, the said mortgage to be subject to an existing encumbrance now of record in
the sum of $22,150 as a first lien on the property.
2. The contract provides that: Upon evidence of good merchantable title being vested in
G.E. Duke, he will immediately cause to be paid in to the Alameda County Title Insurance
Company the sum of ten thousand ($10,000) dollars U.S. lawful money, together with
note and mortgage to be delivered to the vendors.
3. All the parties to the contract were, at the time, residents of California, and the survivors
and executors of the two vendors, who died shortly after the date of the contract, have
continued to be residents of that state
4. Duke was able to register the property under his name without complying with the terms
of the agreement
5. The vendors brought an action in California to require Duke to reconvey the property
alleging that Duke obtained possession of the conveyance without the knowledge of the
vendors and without complying with the terms of the agreement, and in violation of the
escrow agreement, that he delivered the mortgage stipulated for subject to an
encumbrance of $9,605 in addition to the encumbrance of $22,150 mentioned in the
agreement
6. The California court finds that the defendant G.E. Duke got possession of the deed
without complying with the terms of the agreement. The Court ordered duke to reconvey
title to the vendors
7. The vendors sought to execute the judgment in British Columbia where the property was
located.
8. British Columbia court refused to execute a the judgment.
Issue:
WON the judgment of the foreign court (California) on the question of title and ownership of real
property situated in British Columbia is to be recognized as final and to be enforced by the courts
of British Columbia? No
Ratio:
1. The general rule is that the courts of any country have no jurisdiction to adjudicate on the
right and title to lands not situated in such country
2. If a court pronounce a judgment affecting land out of the jurisdiction, the courts of the
country where it is situated — and, it is presumed, also the courts of any other country —
are justified in refusing to be bound by it, or to recognize it; and this even if the judgment
proceed on the lex loci rei sitae.
3. This rule is merely an application of a more general principle that no court ought to give a
judgment the enforcement whereof lies beyond the court's power, and especially if it
would bring the court into conflict with the admitted authority of a foreign sovereign, or
what is the same thing, the jurisdiction of a foreign court.
4. There is, however, a long line of cases in which it has been held that English courts will
enforce rights affecting real estate in foreign countries if such rights are based on
contract, fraud or trust, and the defendant resides in England.
5. An adjudication as to title to the lands in question, to have any effect in British Columbia,
must be an adjudication on the basis of British Columbia law relating to real property
applied to the facts.
6. It may be that on the facts as found, the courts of British Columbia, in applying the laws
of British Columbia, would reach the same conclusion as the California courts, but it is to
be remembered that findings of fact may in some cases be based on the particular law to
be applied to them. For instance, a finding of fraud depends on what constitutes fraud
under the particular law to be applied.
7. It is to be noted that there is a special clause in the constitution of the United States
dealing with the credit to be given by the courts of one state to the judgments of the
courts of another. It appears, however, that this clause does not make judgments of the
courts of one state dealing with lands in another binding on the courts of the latter.
8. In the present case the plaintiffs sue in British Columbia to enforce a judgment of the
California courts deciding that the plaintiffs are the owners of the British Columbia land in
question, rather than the defendants, one of whom is the registered owner. In California,
it must be conceded that that judgment has effect only in personam, but if the courts of
British Columbia were obliged to enforce it between the same parties, without question,
there would be no practical difference, in effect, between such a judgment and a
judgment for a debt, and the distinction so much insisted on in the authorities referred to
would be of no real consequence.
9. The courts of a foreign country have no jurisdiction to adjudicate upon the title or the right
to the possession of any immovable not situated in such country. Controversies in
reference to land can only be decided in the state in which it depends. Judgments of
foreign courts purporting to deal with the title and with rights to lands in another country
can only be enforced by proceedings in personam. The judgment of the court of
California here in question does not affect the title to the lands in British Columbia and is
not a judgment that should be enforced by the courts of British Columbia as binding there
on the parties.
Bank of Africa vs. Cohen (1909)
2 Ch. 129 (CA)
Doctrine: The lex situs prevails as to all rights, interest, and titles in and to such property and to
the question of the capacity of a married woman to enter into a contract relating to her real
property situated in a colony.
Facts:
1. Plaintiffs in this case are bankers both in London and in the Transvaal.
2. The defendant, Ms. Cohen, was the wife of Mr. Cohen. His matrimonial domicile is
English.
3. Ms. Cohen was the registered owner of two plots of land near Johannesburg. The title
deeds were held by the plaintiffs for safe custody on her behalf.
4. In 1903, Mr. Cohen was heavily indebted to the Bank of Africa and sought to obtain
further advances from them.
5. Husband and wife Cohen executed a power of attorney, through which Ms. Cohen did the
following:
a. Appointed the manager of the bank at Johannesburg to be her attorney to
represent her before any registrar of deeds or other proper authority in the
Transvaal
b. Acknowledged her indebtedness in such sums as he might fix and determine;
and
c. Settled the terms and conditions as to the rate of interest, not exceeding 7 per
cent per annum.
6. In 1907, the plaintiffs obtained judgment against defendant for the sum then due to them
because of the advances. However, the plaintiffs were unable to obtain registration in
South Africa of the two plots of land in question because the deeds did not sufficiently
comply with the law of Transvaal relating to married women.
7. The property thus remained registered in the name of the defendant, who subsequently
repudiated her obligations under the deed and demanded the return of the documents of
title relating to the said property from the plaintiffs' manager at Johannesburg.
8. The plaintiffs thus brought this action for:
a. Specific performance of the agreement contained in the deed for the transfer to
the plaintiffs of the said property;
b. Injunction restraining the defendant from taking proceedings in the Transvaal to
recover possession of the documents of title;
c. Injunction restraining the defendant from charging or
d. Disposing of the property otherwise than to the plaintiffs; alternatively damages.
Issue:
W/N the wife is capacitated to convey the properties in question?
Held:
1. Yes. Defendant wins.

2. Regarding immovable property, the lex situs prevails as to all rights, interest, and titles in
and to such property and to the question of the capacity of a married woman to enter into
a contract relating to her real property situated in a colony.
3. By Transvaal law, a married woman is, speaking generally, incapable of becoming surety
for her husband unless she expressly renounces the benefit of certain provisions of the
Roman-Dutch law after having been informed of her rights thereunder.
4. The court holds that the law of the Transvaal governed the question of her capacity to
enter into this agreement and that it was void for want of capacity.
Century Credit Corp. vs. Richard (1962)
34 DLR (2d) 291 (Ont. CA)
Doctrine:
The laws of Ontario provides that a later transaction which takes place wholly within Ontario has
the effect of overriding prior titles. The laws of Ontario prevails and the title created under the
laws of Ontario displaces the title reserved in the Quebec transaction.
Facts:
1. Moses sold to Foldes a 1957 Chevrolet motor car. With respect to the unpaid purchase
price of the motor car, Foldes signed a conditional sales contract containing the usual
reservation of the title and ownership.
2. The sale took place in Quebec. The vehicle was also situated there. Both Foldes and
Moses also resided in Quebec.
3. The vehicle was then delivered to Foldes, and the conditional sales contract
acknowledged the delivery to and acceptance by him of the vehicle.
4. On the same day, as contemplated by the conditional sales contract, Moses assigned it
for value to respondent Richard.
5. Foldes, without the knowledge of the respondent, brought the vehicle into Ontario where
it was sold, in a damaged condition, to Hamilton Car Refinishers, which latter purchaser,
in the belief that Foldes was the absolute owner, paid him the sum of $450 for it
6. After work had been done on the vehicle it was resold to third parties or one of them, and
in turn sold to the appellant, Century Credit Corp., who purchased it without any notice of
the respondent's title or claim.
Issue:
Who has the better right to the vehicle? [Appellant/purchaser in good faith Century Credit
Corp. has the right to the vehicle]
Ratio:
1. The purchaser in good faith has valid title or claim over the vehicle sold.
2. In considering the respective rights of the parties the respondent as assignee of the
original seller, stands in no higher position than its assignor, and for the purpose of this
judgment the right of the respondent is similar to that of an unpaid seller.
3. At the outset consideration must be given to the conflicts of law problem presented by the
facts. The applicable principles are stated in Dicey's Conflict of Laws, 7th ed., in Rules 86
and 88 set out at pp. 537 et seq. Rule 87 is inapplicable due to the particular facts of this
case.
Rule 86. -- (1) A transfer of a tangible movable which is valid and effective by the proper
law of the transfer and by the law of the place where the movable is at the time of the
transfer (lex situs) is valid and effective in England.
(2) A transfer of a tangible movable which is invalid or ineffective by the proper law of the
transfer and by the lex situs of the movable at the time of the transfer is invalid or
ineffective in England.
Rule 88. -- A title to goods acquired or reserved in accordance with Rules 86 or 87 will be
recognized as valid in England if the goods are removed out of the country where they
were situated at the time when such title was acquired, until such title is displaced by a
new title acquired in accordance with the law of the country to which they are removed.
4. Applying these rules to the present facts the absence of registration in Ontario is not a
circumstance invalidating the contract in Ontario and the title reserved by the respondent
will remain valid in Ontario unless and until it is superseded by a valid title acquired in
accordance with the laws of Ontario.
5. If the laws of Ontario were to invalidate the respondent's title by refusing to recognize that
the transaction which took place in Quebec had the effect of continuing the title in the
respondent, this attempt of Ontario law to invalidate a transaction taking place in Quebec
would be bad because the validity of a Quebec transaction must be decided according to
the laws of Quebec, the lex situs. However, if the laws of Ontario provide that a later
transaction which takes place wholly within Ontario has the effect of overriding prior titles,
then since Ontario does not seek to give its laws any extra-territorial effect the laws of
Ontario prevail and the title created under the laws of Ontario displaces the title reserved
in the Quebec transaction.
6. The sale by Foldes to a subsequent purchaser took place in Ontario and its effect must
be decided according to Ontario law. The sale to a purchaser, who received the vehicle in
good faith and without notice of any lien or other right of the original seller, has the same
effect as if Foldes in making the delivery and transfer were a mercantile agent in
possession of the goods with the consent of the owner. This sale by Foldes is as valid as
if it were expressly authorized by the owner and the title acquired by the purchaser by
virtue of this sale is absolute. The respondent/assignee of the unpaid seller can stand in
no higher position than the original seller in Quebec and therefore unpaid
seller/respondent's title is displaced by the valid sale in Ontario.
Maden vs. Long (1983)
1 WWR 649 (BCSC)
Facts:
1. In November 1976 the plaintiffs purchased the mobile home from a dealer at Grande
Coulee, Washington, for the price of $13,900 plus tax. Financing was arranged through
the seller by means of a document entitled "Conditional Sale Contract and Security
Agreement".  
2. They took the trailer to a town called Tonasket, Washington, where they lived in it for
about 11 months. However, they found they could not afford to make the payments on
the home and put it up for sale.  
3. An advertisement was placed in a local paper and a man by the name of John Wesson,
alias the defendant Lauren Deming Hall, offered to purchase the home.  
4. On 28th September 1977 the plaintiffs' lawyer drew up a form of purchase and sale
agreement between the plaintiffs and Wesson (Hall). It provided for a sale price of
$13,900 with a down-payment of $1,300 and the balance on 1st November 1977. Both
plaintiffs and Hall signed the document on 28th September 1977.  
5. After receipt of the $1,300, and at the request of Hall, the plaintiffs delivered
possession of the mobile home on 29th September 1977 by arranging for its move
from Tonasket, Washington, to Chelan, Washington, where Hall intended to live.  
6. On 31st October 1977 the plaintiff Mark Maden visited the mobile home pad at Chelan,
Washington, where Hall was supposed to have placed it, but the house was missing. So
was Hall.  
7. By means unknown, the mobile home found its way to the lot of the defendant
Biggins at Surrey, British Columbia. He carried on business as "Biggins Family
Mobile Homes".  
8. In mid-October 1977 the defendant Gary Banting purchased the home from Biggins
for $25,000. To finance the purchase he borrowed money from the defendant Canadian
Imperial Bank of Commerce. It took back security by way of a promissory note and
chattel mortgage.  
9. Banting moved the mobile home to Dawson Creek, where he and his family have
lived in it for the past five years.  
10. An expert in Washington law gave evidence on behalf of the plaintiffs. He testified that
when the plaintiffs gave up possession to Wesson on 29th September 1977, title to the
mobile home probably passed to Wesson.  
11. He went on to say that the sale agreement dated 28th September 1977, which reserved
title to the plaintiffs until full payment of the purchase price, was probably effective only to
retain a "security interest" in the plaintiffs.  
12. On a further analysis of Washington law, he stated that a purchaser in Washington does
not acquire title to goods where they are obtained through fraud punishable as larcenous
under the criminal law. In 1975 the Washington Criminal Code was revised and a section
was enacted which provides:  ”Theft and Larceny Equated. All offences defined as
larcenies outside this title shall be treated as thefts as provided in this title.”
13. It was his opinion that in Washington state, since 1975, the word larceny has only one
meaning — theft. If title to a chattel is transferred to a purchaser on the basis of materially
false representations by the purchaser, this amounts to larcenous theft.  
14. In his view, the false representation of an alias by Hall and the representation that he
intended to perform the contract of 28th September 1977 were not bona fide and can be
defined as larceny or theft in Washington.  
15. It is agreed between the parties that Hall was convicted of theft in Washington state some
time after 31st October 1977 when the plaintiffs discovered the mobile home was missing
from Chelan, Washington.  
Issue:
Was the mobile home "stolen" from the plaintiffs in Washington state so that Gary Banting never
acquired lawful title?
Held: Not stolen, Banting has lawful title.
1. Two sections of the Sale of Goods Act require interpretation. They read:
28. When the seller of goods has a voidable title to them, but his title has not
been avoided at the time of the sale, the buyer acquires a good title to the goods,
if he buys them in good faith and without notice of the seller's defect of title. 
29.(1) Where goods have been stolen and the offender is prosecuted to
conviction, the property in the goods stolen re-vests in the person who was the
owner of the goods, or his personal representative, notwithstanding any
intermediate dealing with them, whether by sale in market overt or otherwise.
(2) Notwithstanding any enactment to the contrary, where goods have been
obtained by fraud or other wrongful means not amounting to theft, the
property in the goods shall not re-vest in the person who was the owner of
the goods, or his personal representative, by reason only of the conviction
of the offender.
2. For the plaintiffs, it is argued that since Hall was convicted of theft in Washington state,
he had a void title which did not permit transfer of ownership in the mobile home to either
Biggins or Banting. But the defendants submit the title held by Hall was voidable and not
void since the transaction between the plaintiffs and Hall in September 1977 does not
amount to theft in Canada. Thus, the problem is mainly one of statutory interpretation and
conflict of laws.  
3. For a variety of reasons, English common law did not face the same kind of dilemma in
its early development. Growth in this area of the law comes mostly from Canadian and
American authorities. In the beginning, common law  held that movables were governed
by the law of the domicile of the owner. That rule did not prove satisfactory when
applied to the inter vivos transfer of chattels and today, in Canada, the validity of a
transfer of tangible movable property is governed by the law where the movable is
at the time of the transfer. It has become known as the lex situs rule.
4. In this instance, the mobile home was in Washington state at the time of the
transfer from the plaintiffs to Hall. Then it was in British Columbia at the time of the
transfer from Biggins to Banting. Since there are these two lex siti, what law
governs? Almost invariably the authorities apply the law in the country or province where
the goods actually are at the time of litigation:
a. There are several reasons for this rule. One must assume that when the
legislature enacted the Sale of Goods Act, it meant to provide for an orderly
transfer of goods in British Columbia with an idea of protecting its own citizens.
Throughout the reported cases the courts adopt this theme.  
b. Although a foreign plaintiff will be treated fairly, he will never be placed in a better
position than a comparable dissatisfied resident plaintiff complaining about the
same kind of transaction which took place within the boundaries of the province.
Put in the context of this case, Washington state law cannot give the plaintiffs
any better title than they would get in British Columbia if the original sale
and disposition on 28th and 29th September 1977 occurred here instead of
in Washington.  
c. Similarly, when the legislature speaks of stolen goods, theft and fraud, it must
have in mind the meaning of these words in Canadian law. Consequently, I must
look at the facts surrounding the transaction in Washington on 28th and 29th
September 1977 and decide whether the plaintiffs' title is protected by our Sale of
Goods Act.  
5. On 29th September 1977 I know the plaintiffs voluntarily gave up possession of the
mobile home to Hall on his promise to pay the balance due by 1st November 1977. In
return, they received a signed contract and a down-payment of $1,500. An examination
of s. 283 of the Criminal Code shows this is not theft because Hall did not acquire
possession "fraudulently and without colour of right". At best, Hall may be guilty of a
crime arising from either obtaining goods by false pretenses or by fraud
6. In these circumstances, s. 29(2) of the Sale of Goods Act specifically declares that since
the mobile home was obtained by fraud or other means not amounting to theft,
property in the chattel does not revest in the plaintiffs. Should I be obliged to apply
Washington state law, the result would frustrate the objectives of the Sale of Goods Act.
This is because the plaintiffs, as residents of Washington, would be entitled to succeed,
whereas if the original dealings on 28th and 29th September 1977 occurred in British
Columbia, they would not. Because one purpose of our laws is to give a foreign resident
no better title than he would get if he were resident in the province from the beginning, I
decline to apply the Washington state definition of theft to s. 29 of our Sale of Goods Act.
 
7. While there is no direct evidence that Hall delivered the mobile home to Biggins, from the
facts this is a reasonable inference. Evidence is also lacking as to whether Biggins
acquired the mobile home from Hall in good faith and without notice of any lien held by
the plaintiffs. In such a case, the onus of proving there were these circumstances that
prevented Biggins from being an innocent purchaser rests upon the plaintiffs.  
8. Because the plaintiffs have failed to prove Biggins was other than an innocent
purchaser from Hall, it means that Biggins had title to the goods which he could
pass on to Banting.
9. Against the proposition with respect to whether or not there was a theft of the mobile
home is a decision of His Honour Judge MacKinnon sitting as a local judge of this court:
Moxcey v. Long. It involved a similar fact pattern arising out of the theft of another mobile
home in Washington state, its delivery to a company called Marcel Management Ltd. in
British Columbia and a subsequent purchase by two defendant British Columbia
residents named Bevan. They were bona fide purchasers for value without notice.  
10. His Honour informs me that at the trial both sides agreed the law of Washington state
was the relevant law. Acting on this consensus, he rightly concluded that since the trailer
was "stolen" and the thief was prosecuted to conviction in Washington state, no
subsequent purchaser could acquire a valid title in British Columbia.  
11. But here there is no such agreement, and I have decided the law of British
Columbia is the law I must look to and not the law of Washington state. Because of
the agreement of counsel before MacKinnon L.J.S.C.. I believe I am not bound to follow
Moxcey v. Long.  
12. Based upon the reasons previously enunciated, the claim against the defendants Banting
and C.I.B.C. is dismissed. Judgment will be entered against the defendant Hall for
damages in the sum of $12,669.60 together with prejudgment interest at 14 per cent from
1st November 1977 until today. Banting and C.I.B.C. are entitled to their costs. The
plaintiffs will recover costs against the defendant Hall.  
Republica de Guatemala v. Nunez (1927)
1 KB 669 (CA)
Doctrine:
A person’s capacity to take an assignment of personal property is to be governed either by the

law of his domicil, or by that of the country where the assignment takes place. When the law of
the domicil and the law of the place where the assignment takes place are one and the same, it is
immaterial to inquire which, had they been different ought to prevail. Further, if the personal law
of one receiving a gift and the law of the place where it(the giving of gift) takes place disables the
receiver from accepting it, such cannot properly be treated as valid in the place (in this case
England) where the subject-matter of the property is situated.
Facts:
1. In 1906 Manuel Estrada Cabrera, the then president of the republic of Guatemala,
deposited with Messrs. Lazard Bros., bankers of London, a sum of money with interest.
2. In April, 1920, Cabrera was deposed and imprisoned by his political opponents.
Subsequently the money so deposited with Lazard Bros. was claimed on behalf of the
republic of Guatemala.
3. Lazard Bros. refused to pay it over, as they had received notice that it was also claimed
by one Nunez, an illegitimate son of Cabrera.
4. In October, 1921, an action was commenced on behalf of the republic of Guatemala
against Lazard Bros. to recover the money, whereupon the defendants took out an
interpleader summons. They were ordered to pay the money into Court, and were
dismissed from the action, Nunez being substituted in their place as defendant.
5. In support of his claim a letter was produced on behalf of the defendant Nunez, dated
July 24, 1919, signed by Cabrera, and addressed to Messrs. Lazard Bros. in New York,
in which Cabrera requested them to transfer the balance of his account with their London
house to Nunez. This letter Greer J. held to be a genuine document signed before July,
1921, and intended to operate as an assignment of the funds in question by Cabrera to
his son Nunez.
6. The only point calling for report arose upon the defendant's claim, the question being
whether the validity of this was to be determined by English law or by Guatemalan law.
7. Evidence was given that by Guatemalan law an assignment of money exceeding $100 in
amount if without consideration was void, unless made by a written contract before a
notary, duly stamped, and unless the assignee signed before the notary to signify his
acceptance. These formalities had not been complied with in the present case. Further by
Guatemalan law a minor cannot accept a voluntary assignment; it must be made to and
accepted by a tutor or legal representative appointed by a judge to act on his behalf. At
the time of the assignment in question Nunez was a minor, and no legal representative
had been appointed to act for him.
8. Greer J. held that, the assignment having been executed in Guatemala, its validity must
be determined by the law of that country, and by that law it was bad. He therefore
dismissed the claim of the defendant also. The defendant appealed.
Issue:
Whether the validity of the assignment was to be determined by English or Guatemalan law?
GUUATEMALAN LAW.
Held:
The validity of the assignment to Nunez must be determined by the law of Guatemala, and was
therefore bad.
1. Banks L.J.
a. The republic and Nunez were both domiciled in Guatemala at the date of their
respective assignments, and as the English depositary claimed no interest in the
fund, the question which, if either, of the two claimants was entitled to it must be
determined by the law of their domicil and residence, and not by that of this
country.
2. Scrutton and Lawrence L.JJ.
a. The question of a person’s capacity to take an assignment of personal property is
to be governed either by the law of his domicil, or by that of the country where
the assignment takes place, and that, as in this case the country of Nunez
domicil and that of the assignment to him were the same, it was immaterial to
inquire which, had they been difference, ought to prevail; but from either point of
view Nunez was incapable, by reason of his infancy, of receiving the donation.
b. Scrutton L.J.
i. By reason of noncompliance with the formalities relating to stamp,
notary, etc., the assignment was, both by the law of the place whore it
was made, and by that of the domicil of the parties to it, not merely
inadmissible in evidence but void.
ii. It will be seen, therefore, that if Guatemalan law, being both the law of
the domicil of both parties and the lex loci actus, is to be applied, the
document was a nullity. If English law, as the law of the situs of the debt
assigned, or the lex loci solutionis of the contract to pay, is to be
followed, the document was effective. It is to be assumed, however, that
in any case it is English law which the English Courts enforce; the
question is whether English law directs them to ascertain the validity of
the assignment by the law of Guatemala, or by the law of England
applicable to such documents.
iii. On the question of the law applicable to an assignment of personal
property invalid by the law of the country where the transaction takes
place, or by the lex domicilii of the parties to the transaction, but valid by
the law of the country where the property is, or is deemed to be, situate,
the English authorities are scanty and unsatisfactory.
iv. There seem to me, however, in this case to be two clear matters which
help to a conclusion. First, in cases of personal property, the capacity of
the parties to a transaction has always been determined either by the lex
domicilii or the law of the place of the transaction; and where, as here,
the two laws are the same it is not necessary to decide between them
v. Second, where a transaction is invalid or a nullity by the law of the place
where the transaction takes place owing to the omission of formalities or
stamp, it will not be recognized in England
c. Lawrence L.J.
i. As the contract of deposit was made in England, and the money was
repayable in England where the bank was domiciled, and was
recoverable in England, it was an English debt having a local situation in
this country, and accordingly the validity of the assignment (as
distinguished from that of a contract to assign) must be governed by the
lex loci rei sitæ, and not by the law of the country where the assignor and
assignee were domiciled, or where the assignment took place.
ii. Consequently if noncompliance with the required formalities had been
the only objection he would have held the assignment good.
iii. The main questions which were debated before this Court were: first,
whether that rule correctly states the law; and, secondly, whether, on the
facts, the defendant's case falls within it.
iv. The principle that a transfer of goods made according to the lex situs is
valid is, in my opinion, well established
v. In the case of a debt so situated I am unable to appreciate why on
principle an assignment valid according to the lex situs should be
rendered ineffectual merely because it was made in Guatemala, where
the parties to it were domiciled, and because it did not comply with the
requirements of the law of Guatemala.
vi. If intention has anything to do with it, I should have thought that the
presumed intention of the parties to the assignment was that, as the
assignment was to operate on a debt in England, it should be governed
by the law of England and not by the law of Guatemala, according to
which it was a nullity and passed nothing.
vii. This brings me to the final point whether the capacity of the defendant is
to be determined by the law of England or by the law of Guatemala.
viii. In the result I have come to the conclusion that the gift to the defendant,
who by his personal law and by the law of the place where it was made
was disabled from accepting it, cannot properly be treated as valid in
England notwithstanding that the subject-matter of the gift was situate
here.
Re Kloebe (1884)
28 Ch. D 175
DOCTRINE
1. The law where the assets of an estate are located will determine which law on preference of
credits will apply. Here the estate of a domiciled foreigner is in England, English law does not give
preference to foreign creditors.
FACTS:
1. This was an action for the administration of the estate in England of Charles Jules Alexander
Kloebe, a domiciled Greek (meaning a domiciled foreigner in England), who died at Syra on
the 15th of February, 1882, intestate and insolvent. The deceased carried on business in England
in partnership under the style of Charles Kloebe & Co. and was possessed of property in
England.
2. There were debts due to English and Foreign Debtors. Foreign Debtors were alleging that they
were preferred to be paid first.
ISSUE: W/N the foreign creditors of the deceased resident alien are preferred to be paid first. –
NO, no such preference exists in the law where the assets of the estate is.
HELD/RATIO:
1. The rule is that in the administration of the personal estate of a domiciled foreigner, the law of
the country where the assets are, is to be applied in getting in the assets and getting rid of the
liabilities, and according to English law creditors who happen to be foreigners are entitled to the
same benefit as others.
2. If the contention that foreign creditors are to be preferred, it must have been the practice of the
Court to inquire in actions for the administration of deceased persons domiciled abroad as to the
nationality of creditors. I can find no case in which the Court in distributing assets has made an
inquiry as to the nationality of different creditors, or ordered that English creditors should be paid
in priority to others.
3. Every administrator, principal or ancillary, must apply the assets reduced into possession
under his grant in paying all the debts of the deceased, whether contracted in the jurisdiction from
which the grant issued or out of it, and whether owing to creditors domiciled or resident in that
jurisdiction or out of it, in that order of priority which according to the nature of the debts or of the
assets is prescribed by the laws of the jurisdiction from which the grant issued.
4. All that is there said is that although mobilia sequuntur personam, in the collection, the lex fori
must be observed: so also is it to be observed in the administration of those assets when
collected.
5. Therefore, if a man dies domiciled in England, possessing assets in France, the French assets
must be collected in France, and distributed according to the law of France. If the French
creditors are entitled according to that law to be paid in priority, that rule must be observed,
because it is the lex fori, and for no other reason.
6. But if it should happen that a man died domiciled in France, leaving assets in England, those
assets can only be collected under an English grant of administration, and being so collected
must be distributed according to the law of England. No doubt in a case in which French assets
were distributed so as to give French creditors, as such, priority, in distributing the English assets
the Court would be astute to equalize the payments, and take care that no French creditors
should come in and receive anything till the English creditors had been paid a proportionate
amount.
7. I know of no law under which the English creditors are to be preferred to foreigners. On the
other hand the rule is they are all to be treated equally, subject to what priorities the law may give
them.
Canadian Commercial Bank v. Belkin (1990)
73 DLR (4th) 678 (Alta. CA)
Doctrines:
1. Under Nova v. Grove, the Court held that the foreign executors cannot be properly
impleaded due to possible interference in the administration of the estate.
2. Executors de son tort or those persons who meddle with the estate of the deceased is an
exception to the Nova ruling.
3. The liability of the executors de son tort is limited to the asset in which he intermeddled.
Facts:
1. Two actions arose from the insolvency of Canadian Commercial Bank. These actions
involve a claim by the Crown and the Canadian Deposit Insurance Corporation (CDIC),
and a claim by the liquidator called the CCB Action.
2. Among the defendants in the actions is Belkin who died testate following the filing of the
actions.
3. In the CCB action, Belkin was personal served ex juris. However, Belkin was not served
in the other action.
4. The executors of Belkin’s will, who proved the will in British Columbia, filed an action in
Alberta to set aside the service arising from the CCB action without submitting to Alberta
court’s jurisdiction.
5. The executors argued that under Nova v. Grove, it is settled rule that foreign person
representatives cannot be properly impleaded in a foreign tribunal.
6. The plaintiffs, on the other hand, argued that the executors, at their peril, will be liable for
any distribution of Belkin’s estate in British Columbia
7. The plaintiffs also cited Rule 54 which states that if by reason of death where the cause
of action survives, any estate , , , is transferred, an action may be continued by or against
the person to or upon whom the estate, interest or title has come or devolved.
8. Lastly, the plaintiffs argued that foreign executors are “executors de son tort” or persons
who meddle with the estate of a deceased person. Since Belkin left properties in Alberta,
the executors would have to necessarily perform acts of administration to deal with such
land.
9. Since in the CDIC proceedings, the judge held that those executors who meddle with the
estate of estate of the deceased are exceptions to the Nova ruling, plaintiffs argue that
jurisdiction may be acquired over these foreign executors.
Issue/Held:
Whether or not the foreign executors in British Columbia may be impleaded in the jurisdiction of
the Court of Appeals of Alberta. No
Ratio:
1. Rule 54 cannot be construed as having extra-territorial effect so as to authorize

impleading a non-resident upon whom the estate has devolved.
2. Jurisdiction is essentially territorial.
3. While it is true that Alberta court take jurisdiction over non-residents in many cases,
however, under the principle recognize in Nova v. Grove, Alberta cannot assume
jurisdiction over a foreign personal representative.
4. Since the restriction only applies to foreign representatives, Alberta courts can maintain
proceedings against the estate insofar as it is properly represented within the province.
Thus, there may be an administrator appointed for Belkin’s assets located in Alberta.
5. However, just because Alberta courts cannot implead foreign executors, an Alberta claim
is precluded from enforcing it against an estate. This claim may be pursued in British
Columbia.
6. The claim of the plaintiffs that Alberta should take jurisdiction since it is the only and
convenient forum is untenable. This is because in Nova v. Grove, the Court had held that
Alberta cannot assume jurisdiction over foreign executors because of the possible
interference in the administration of the foreign estate.
7. The Court simply cannot accept the proposition that the estate of the Canadian citizens
be left hostage to litigation in every other part of the federation assuming jurisdiction to
establish a liability of the estate.
8. As to the argument that the executors are “executors de son tort,” the Court held that the
foreign executors may choose to walk away from the Alberta land. This is because the
Alberta land comprises simply of 1% of Belkin’s estate.
9. To walk away from 1% of the estate rather than participate in a law suit claiming an
amount in excess of 100% is not self-evident folly.
10. Even assuming that the foreign executors administer such property, the recovery against
those executors will be limited to the property which he meddled with.
11. Plus, there is no evidence that suggest that the foreign executors intermeddled with the
Alberta property. They have done nothing in Alberta except to communicate someone in
Alberta that they were not prepared to continue negotiations with regard to its disposal
12. Executors might leave the Alberta realty’s administration to some Alberta representative
of the estate.
13. However, there is nothing to prevent the plaintiff from simply naming a party nor
preventing the named party from submitting to the jurisdiction of the court.
Re Thom (1987)
40 DLR (4th) 184 (Man. QB)
Doctrine:
The purpose of the Manitoba Devolution of Estates Act is to provide for the equitable distribution
of the estate of a deceased person where there is intestacy or partial intestacy. Where a widow
has already obtained her preferential share in the estate in one state, she can no longer claim
that she is also entitled to her preferential share in another state. At most, she will only receive
the difference in case one state provides a larger preferential share.
Facts:
1. Gordon John Thom died intestate and was domiciled in Saskatchewan at the time of his
death. He was survived his wife, Shirley Velva Thom (the widow) and his three minor
children, Shane Gordon Thom, Sandi-Lee Elizabeth Thom, and Sherri-Lynn Louise Thom
(the children).
2. The widow became the administratrix of the estate. The decedent had owned properties
in Saskatchewan, and was also the registered owner of an half section of land in
Manitoba.
3. The widow received, as her preferential share in the estate, the sum of $ 40,000.00 plus
one-third of the residue of the net estate in excess of the $ 40,000.00 pursuant to the
Intestate Succession Act of Saskatchewan law. The Public Trustee of Saskatchewan
received two-thirds of that residue for the children.
4. The widow who was now residing in Manitoba, and who also obtained letters of
administration in said province, wanted to sell the half section of land in Manitoba. She
claims that she is entitled to her preferential share, which is the first $ 50,000.00 of the
sale proceeds plus one-half of the residue remaining after deducting the $ 50,000.00,
provided under the Manitoba Devolution of Estates Act.
Issue:
W/N a surviving spouse is entitled to the preferential share provided for under Manitoba law,
having already received a spouse's preferential share under Saskatchewan law? - No
Held/Ratio:
1. The widow raises that the principle in conflict of laws in cases of intestacy, is that the law
of succession of land which governs is the law of the jurisdiction where that land is
situated, that is, the lex rae sitae. According to the law of Manitoba, where the half
section of land is situated, the widow asserts she is entitled to the first $ 50,000.00 of the
proceeds from the sale of land and one-half of the residue after deducting $ 50,000.00.
2. However, the children argue that the widow would only be entitled to one-third of the
proceeds from the sale of land as Saskatchewan law provides that all assets, regardless
where they are situated, are to be included in calculating the net value of the deceased's
estate. That when the net value of the estate exceeds $ 40,000.00, the spouse is entitled
to $ 40,000.00, and thereafter, one-third of the residue if there is more than one child.
3. The Court explained that the purpose of the Manitoba Devolution of Estates Act is to
provide for the equitable distribution of the estate of a deceased person where there is
intestacy or partial intestacy. The law in both Manitoba and Saskatchewan provide for a
preferential share to the surviving spouse in a fixed amount, where such fixed amount
shall be a charge against the estate. After payment of such, the residue shall then be
divided among the surviving spouse and children.
4. The Court then rejected both the positions of the widow and the children, stating that if
the widow’s position were to be accepted, there would not be an equitable distribution of
the estate. Whereas if the children’s position were to be accepted, the Court would in
effect, be sitting as a court in Saskatchewan, applying the law of that province. A situation
of renvoi would then occur, which the Canadian courts disfavor.
5. Under the Manitoba law, a preferential share of $50,000.00 in favor of the surviving
spouse must first be complied with before the distribution of the residue between the
surviving spouse and the children. However, said law does not charge any specific asset
with the debt. The payment of the $50,000.00 in favor of the surviving spouse does not
necessarily have to come from properties located in Manitoba. Having already received
her preferential share of $ 40,000.00 under Saskatchewan law, the widow is thus only
entitled to the amount of $ 10,000.00 as a charge on the Manitoba estate. Thereafter, the
widow and the children shall share in the residue, the widow receiving half, and the
children the other half, pursuant to Manitoba law.
Re Mac Donald (1964)
44 DLR (2d) 208 (SCC)
Doctrine:
In determining whether a disqualifying conflict of interest exists, the Court is concerned with three
competing values: (1) the concern to maintain the high standards of the legal profession and the
integrity of our system of justice; (2) the countervailing value that a litigant should not be deprived
of his or her choice of counsel without good cause; and (3) the desirability of permitting
reasonable mobility in the legal profession.
Facts:
1. Macdonald brought an action against Martin for an accounting.

2. Martin's solicitor was assisted by a junior member of his firm who was actively engaged in
the case and was privy to many confidences disclosed by appellant to his solicitor. The
junior member later joined the law firm which represents respondent in this action.
3. Martin applied to the provincial superior court for a declaration that the law firm was
ineligible to continue to act as solicitors of record for MacDonald.
4. The lower court granted the application and ordered the firm removed as solicitors of
record. The Court of Appeal reversed that decision.
5. This appeal is to determine the appropriate standard to be applied in deciding whether a
law firm should be disqualified from continuing to act in the litigation by reason of a
conflict of interest.
Issue
WON appeal should be upheld – YES
Held
1. The Supreme Court of Canada stated that in determining whether a disqualifying conflict
of interest exists, the Court is concerned with three competing values: (1) the concern to
maintain the high standards of the legal profession and the integrity of our system of
justice; (2) the countervailing value that a litigant should not be deprived of his or her
choice of counsel without good cause; and (3) the desirability of permitting reasonable
mobility in the legal profession.
2. The "probability of mischief" standard, which is the traditional English test, is not
sufficiently high to satisfy the public requirement that there be an appearance of
justice. The use of confidential information is a matter usually not susceptible of proof,
and the test must therefore be such that the public represented by the reasonably
informed person would be satisfied that no use of confidential information would
occur. Two questions must be answered: (1) Did the lawyer receive confidential
information attributable to a solicitor and client relationship relevant to the matter at
hand? (2) Is there a risk that it will be used to the prejudice of the client?
3. In answering the first question American courts have adopted the "substantial
relationship" test: once it is established that there is a "substantial relationship" between
the matter out of which the confidential information is said to arise and the matter at
hand, there is an irrebuttable presumption that confidential information was imparted to
the lawyer. This test is too rigid, however. Rather, once it is shown by the client that
there existed a previous relationship which is sufficiently related to the retainer from
which it is sought to remove the solicitor, the court should infer that confidential
information was imparted unless the solicitor satisfies the court that no information was
imparted which could be relevant. The degree of satisfaction must withstand the scrutiny
of the reasonably informed member of the public. This will be a difficult burden to
discharge.
4. In answering the second question, whether the confidential information will be misused, a
lawyer who has relevant confidential information is automatically disqualified from acting
against a client or former client. With respect to the partners or associates in the firm, the
concept of imputed knowledge is unrealistic in the era of the mega‑firm. The court should
therefore draw the inference that lawyers who work together share confidences, unless
satisfied on the basis of clear and convincing evidence, that all reasonable measures
have been taken to ensure that no disclosure will occur by the "tainted" lawyer to the
member or members of the firm who are engaged against the former client. Such
reasonable measures would include institutional mechanisms such as Chinese Walls and
cones of silence. Until the governing bodies of the legal profession have approved of
these and adopted rules with respect to their operation, it is unlikely that a court would
accept them as evidence of effective screening. Undertakings and conclusory
statements in affidavits are not sufficient, since affidavits of lawyers are difficult to verify
objectively and the public is not likely to be satisfied without some additional guarantees
that confidential information will under no circumstances be used.
Davies vs. Davies (1915)
24 DLR 737 (Alta. SC)
Doctrine:
Law of Matrimonial Domicile. In deciding upon the effect of marriage as a revocation of a will, an
English Court will apply the law of the matrimonial domicile, and not the law of the place where
the (real) property affected by the will is situated.
Facts
1. This is a case stated by agreement of the parties interested for the opinion of the court.
John Vernon Davies, the above named deceased was born in the State of Ohio, one of
the United States of America. He was married in Montana and was divorced from his first
wife, Isabel Davies, in 1901. By the said marriage he had four children.
2. At the time of the making of the said will and of the second marriage of the said John
Vernon Davies, and subsequent divorce, the said John Vernon Davies was resident and
domiciled in the State of Montana
3. On August 7th, 1908, the Testator died at Nanton, in the Province of Alberta, about four
months before the completion of the term necessary to obtain patent for his homestead.
4. The said John Vernon Davies was never naturalized in the Dominion of Canada.
5. By letters of administration with will annexed, dated the 5th day of August, 1909, granted
by the District Court of the District of Macleod, administration with will annexed of all and
singular, the property of the said John Vernon Davies was granted to the Trusts &
Guarantee Company, Limited, a certified copy of the said letters, setting out the said will,
being hereto annexed. Annexed hereto is a true copy of the inventory of the property of
the said John Vernon Davies coming into the hands of the said Administrator.
Issue/s
Whether recourse should be had to the law of Alberta or to the law of the State of Montana, in
determining whether the marriage revoked the will
Held
The Law of Montana Applies.
Ratio:
1. The deceased was domiciled there at the date of his first marriage, at the date of his will
and at the date of his second marriage. Neither at the date of the will, nor at that of the
second marriage did he apparently have any real estate in Alberta.
2. The Court was unable to see what possible relation to the question of the effect upon the
will of his subsequent marriage, the fact that long afterwards he acquired some real
estate in Alberta can have. If the marriage revoked the will, then it did so when it took
place. If it did not revoke the will, then the will continued to be a good one if otherwise
valid.
3. It no doubt is true that when the validity of a will is in question with respect to the
requisites of form and execution, this matter will be determined with respect to realty in
Alberta according to Alberta law, and that it may be held bad in respect to that and yet be
a good will as to personalty if validly made according to the law of the testator's
domicile. But the question of validity in respect of form as well as questions of
interpretations are very different from the question whether a will, perfectly valid as to
form even when it is to be applied to real estate in Alberta, was revoked by a subsequent
marriage.
Re Allen’s Estate (1945)
2 A11 ER 264 (Ch. D)
Doctrine:
Testator domiciled in South Africa and subject to South African law regarding community of
property between husband and wife. An indication on the face of the will shows that testator
contemplated application of English law. The doctrine of election applies.
Facts:
1. The testator made his will on 5 June 1941, at Bournemouth, where he was then residing,
and, after appointing his wife and an English solicitor as executors and trustees thereof,
he gave to his wife, free of duty, all his personal chattels as defined in the Administration
of Estates Act, 1925 a pecuniary legacy and all the real property in South Africa which he
might have, or have power to dispose of, at his death. He further gave certain silver plate
to his trustees on trust for the use of his wife during her life and after her death on trust
for JB absolutely.
2. The testator gave the residue of his property to his trustees upon trust for sale and
conversion, with power to postpone sale indefinitely and so that any reversionary interest
should not be sold prior to falling into possession unless the trustees should see special
reason for earlier sale; and after giving directions for the payment of his funeral and
testamentary expenses, etc, the testator gave the income of his residuary trust fund to his
wife for life and, subject to the wife's life interest, the trustees were, in the event that
happened, to hold the trust fund and future income thereof in trust for RB absolutely.
3. The testator died on 24 June 1941, and probate of his will was granted in England to the
executors named therein. The testator had married his wife in South in 1936, and, at the
date of the marriage and down to the date of his death, he was domiciled in South Africa
and the property which ostensibly belonged to him at his death was subject to the law of
South Africa relating to community of property between spouses. Under this law, the wife
was entitled, on the testator's death, to half the joint property after payment of all debts
due by the joint estate.
Issue:
WON the wife could take half of the joint property to which she was entitled under the South
African law and also retain the benefits given her by the will, or must elect between her rights
under the South African law and the benefits given to her by the will.
Ratio:
1. It was clearly indicated on the face of the will, in particular by the reference to the
Administration of Estates Act, 1925, that the testator wrote the will with reference to
English law.
2. Therefore, the exception to the general rule that disposition of personal property follows
the law of the domicil was established and English law was applicable to the construction
of the will.
3. Re Price, Tomlin v Latter followed.
(ii) upon the true construction of the will, the expression "residue of my property" meant
the residue of the testator's ostensible property, the residue of what would have been the
testator's property under English law if he had been domiciled in England. The power to
postpone sale and the direction that the reversionary interest should not be sold before
falling into possession showed that the testator was not disposing merely of his share of
the joint estate.
(iii) since, upon the true construction of the will, the testator was purporting to dispose of
property which belonged to the wife under the South African law relating to community of
property, the wife must elect between her rights under the South African law and the
benefits given to her by the will.
In the Estate of Maldonado (1954)
P223 (CA)
Doctrine: If the deceased died leaving no successors according to the law of the foreign
domicile, or if the State of that domicile sought to assert a right to the properly, not as successor
to the deceased, but by a jus regale which foreign courts would not recognize as having
extraterritorial validity
FACTS:
1. The deceased was Spanish and domiciled in Spain. He died intestate, leaving no next of
kin. The State of Spain claimed a grant of administration to the personal estate of the
deceased in England as sole and universal heir to her estate by Spanish law, while the
Treasury Solicitor of England claimed that the personal estate in England belonged to the
Crown as bona vacantia.
2. Bona vacantia occurs when a person dies and there is no heir who acquires the property
left by the decedent by succession. Property is bona vacantia when it becomes heirless
property. So the Crown is arguing that the estate of the deceased in the England has
become heirless property. But the Spanish government is claiming that there being no
next of kin, under its law; it has become the sole heir to the estate of Maldonado,
precluding the application of bona vacantia.
3. The lower court decided in favor of Spain.
ISSUE:
W/N Spain has the better right to the estate of the deceased
HELD:
1. Spain has the better right.

2. The property would only come to the Crown (England) as bona vacantia if the deceased
died leaving no successors according to the law of the foreign domicile (Spain), or if the
State of that domicile sought to assert a right to the properly, not as successor to the
deceased, but by a jus regale which the English courts would not recognize as having
extraterritorial validity. This is because some countries have as law that, when a person
dies heirless, the property becomes ownerless and the State as a right to confiscate the
property under the principle of jus regale.
3. According to the relevant law of the domicile of the deceased, however, the Spanish
State took as ultimus heres and as a true successor, and accordingly the maxim mobilia
sequuntur personam applied to entitle Spain the deceased's property in England.
4. Spain did not exercise its right to take the property by virtue of its becoming heirless, but
by virtue of it being left as the sole heir of the deceased where there is no next of kin.
5. In applying that maxim of having no next of kin, there is no valid ground for differentiating
between successors who were personally connected with the deceased and other
persons or bodies, including the State, which were by the law of the deceased's domicile
constituted successors. Here by the law of the deceased's domicile the Spanish State
was a true successor and was not seeking to exercise its paramount authority as a
sovereign State to confiscate ownerless property.
6. The English courts must recognize the capacity in which Spain claimed the estate and,
consequently, the deceased having left a "successor" in Spain, there was no right in the
British Crown to take the estate in England as bona vacantia.
Harris vs. Murray (1995)
28 Alta. LR (3d) 377 (QB)
Doctrine:
When a foreign court assumes jurisdiction on a basis that generally conforms to our rule of
private international law relating to the forum non conveniens, that decision will be respected and
a Canadian court will not purport to make the decision for the foreign court. Thus, as the
Applicant seeks a divorce in her own petition she cannot be allowed to argue that it is unjust for
her marriage to be dissolved by the Indonesian Court, when such a dissolution does not preclude
her from seeking corollary relief or variation of terms relating to corollary relief in Alberta.
Facts:
1. Mr. Murray (respondent) and Ms. Harris (applicant) separated when the latter left the
matrimonial residence in Jakarta, Indonesia, and returned to her family home near
Calgary, Alberta, with the infant child of the marriage.
2. The applicant commenced an action under the Domestic Relations Act seeking an order
for custody, child support and alimony. Subsequently, she also applied for an order for
spousal maintenance and child support
3. The respondent appeared at the application in opposition to the claim for spousal
maintenance.
4. The Court ordered child support and directed a stay of spousal maintenance pending
cross-examination of the respondent with leave to reapply thereafter should the
respondent not make himself available for cross-examination.
5. The applicant also commenced an action under the Matrimonial Property Act and
obtained an ex parte order on the same date restraining the respondent from removing
matrimonial assets registered in his name from the Province of Alberta, which order
provided it would cease to have any effect in the event the action was discontinued.
6. Subsequently, the respondent applied for summary judgment to dismiss the action for
want of jurisdiction, which application has also been stayed on the same terms as the
Domestic Relations action.
7. The basis of the application seeking extraordinary relief by way of an injunction against
the Respondent is that the effect of the Indonesian divorce would unjustly deprive her of
the opportunity to advance claims for spousal support and matrimonial property otherwise
available to her in the jurisdiction of Alberta. She alleges that such a decree would enable
the Respondent to remove assets in his name alone from Alberta, rendering her chances
to recover her legal entitlement negligible.
8. The Applicant acknowledges that to be entitled to injunctive relief in any case, including
this one, she must satisfy the tripartite test tripartite test may be summarized as follows:
a. There must be a serious issue to be tried;
b. The applicant must demonstrate that if the injunction does not go, she would
suffer irreparable harm;
c. If the Court is satisfied that the first two tests have been met, the balance of
convenience must justify the granting of the injunctive relief sought.
Issue:
Whether the Indonesian divorce decree has an impact on the right to advance claims in Alberta.
[NO]
Ratio:
1. The result of the application of these principles is that when a foreign court assumes
jurisdiction on a basis that generally conforms to our rule of private international law
relating to the forum non conveniens, that decision will be respected and a Canadian
court will not purport to make the decision for the foreign court. The policy of our courts
with respect to comity demands no less.
2. Having regard to that authority, it is fundamental that the Applicant in this case establish:
1) That the ends of justice require the exercise of that discretion to take jurisdiction in
divorce from the Indonesian Court by restraining the Respondent from accessing those
Courts; 2) That were the injunction not to be so ordered, the Applicant would suffer
irreparable harm; and 3) That the Indonesian Court has assumed jurisdiction on a basis
which does not generally conform to our rule of private international law relating to the
forum non conveniens and that before exercising such a discretion the Court is further
cautioned that the jurisdiction to enjoin a foreign action is one which must be exercised
with caution.
3. It is the conclusion of this Court that the Applicant has failed to establish that this case
falls within the principles so adopted and that that failure rests upon a misinterpretation
by the Applicant of the impact of an Indonesian divorce decree upon her right to advance
claims in Alberta.
4. Notwithstanding that it may be successfully argued that the Indonesian divorce should
not be recognized in Alberta, there having been no personal service of originating
documents, it will be assumed that pursuant to s. 22 of the Divorce Act, an Alberta Court
will recognize that judgment and upon application by the Respondent will order the
petition of the Applicant to be struck. The jurisdiction of the Alberta Court with respect to
the marriage would thereby be foreclosed.
5. With respect to both, the Alberta Court retains jurisdiction to hear and determine
proceedings if a former spouse is ordinarily resident for one year in the province at the
commencement of the proceedings (s. 4(1) and s. 5(1)(a), Divorce Act, respectively).
6. As the Applicant seeks a divorce in her own petition she cannot be allowed to argue that
it is unjust for her marriage to be dissolved by the Indonesian Court, when such a
dissolution does not preclude her from seeking corollary relief or variation of terms
relating to corollary relief in Alberta.
7. The result of the application of these principles is that when a foreign court assumes
jurisdiction on a basis that generally conforms to our rule of private international law
relating to the forum non conveniens, that decision will be respected and a Canadian
court will not purport to make the decision for the foreign court. The policy of our courts
with respect to comity demands no less.
Re Edward and Edward (1987)
39 DLR (4th) 654 (Sask. CA)
Facts:
1. Stephanie (36 y/o) married Harold (59 y/o) in a Catholic church in Saskatoon,
Saskatchewan on May 11, 1957
2. Their marriage was duly registered under the Vital Statistics Act
3. They lived together for 27 years until Harold died in 1984
4. Harold had 2 prior marriages: 1) his first wife died in 1948 from whom he has a daughter,
Shirley Skolrood (Harold’s only surviving child, now 68 y/o); 2) Harold remarried in 1950
with Helen Penney in Idaho, USA but obtained divorce in 1955
5. Shirley alleged that her father’s divorce with Helen was invalid and that he was not free to
marry Stephanie
6. Harold left of xxx assets
7. Stephanie made 2 applications, one for an order under the Dependant’s Relief Act and
under the Matrimonial Property Act
8. The trial judge ruled that the divorce was valid and that the provisions of the Intestate
Succession Act did not make reasonable provisions for Stepahanie’s maintenance thus
awarded Harold’s whole estate to Stephanie under the Dependant’s Relief Act
9. Shirley appealed the judge's decision. One of her main grounds of attack was that the
respondent was not the husband's "wife" within the meaning of the Dependants' Relief
Act or the Intestate Succession Act and was, therefore, totally barred from making a
claim under those Acts. This submission was predicated on the assertion that when he
married the respondent, the husband was not legally divorced from his second wife.  
10. It was contended that the law, in a Saskatchewan court, for determining the validity of the
California divorce was the law of Saskatchewan as it was perceived in 1957, at the time
of the husband's marriage to the respondent wife, and not the law of Saskatchewan as it
was found to exist at the time of the trial of this action. In particular, it was contended that
the 1957 law of Saskatchewan relating to the husband's domicile for the purpose of a
divorce required a finding of nonrecognition of the California divorce; and, that the
"substantial connection" rule enunciated in the 1967 case of Indyka v. Indyka, [1967],
applied by the judge, did not operate retrospectively to affect the validity, or more
accurately, the recognition of validity, of the husband's divorce in 1957.  
Issues
Whether the overruling of a precedent should be given retrospective effect
Held
Yes
Ratio
1. Traditionally in England and in Canada, judicial decisions have been given both
retrospective and prospective effect. The law declared by a court decision applies to both
future and past transactions.
2. This retrospective application is part of the declaratory theory of law and precedent.
3. It appears that the principle has become so elementary that most courts now readily
apply it without making reference to it and perhaps without even recognizing that they are
using it. A good example of this is the frequent application of the rule in the very case,
which bears so closely upon the main issue in the present case: Indyka v. Indyka, supra.
4. In that case the House of Lords changed the common law with respect to recognition of
foreign divorces. The House of Lords ruled that the Courts of England will recognize a
foreign divorce decree granted upon the petition of a wife, if, notwithstanding the
husband's domicile, a real and substantial connection exists between the petitioner and
the jurisdiction where the divorce was granted. This judgment was issued on 23 May
1967, but has been applied by both English and Canadian courts to recognize foreign
divorces occurring prior to 1967.
5. In all cases cited by the Court, there is no mention that they are giving retrospective
application to the common law. It may be taken that in keeping with the attitude of the
English and Canadian courts generally, the courts in these cases assumed that the
retrospective principle is so basic and inherent in the law, that it may be applied without
mention or acknowledgment.
6. But, by contrast, in the United States and in other countries such as India, the courts
"have developed a handful of judicial techniques, characterized generally as prospective
overruling". Prospective overruling simpliciter was formulated by Cardozo, J., in Great
Northern R. Co. v. Sunburst Oil & Ref. Co. In this case, the U.S. Supreme Court upheld
the decision of the Supreme Court of Montana which had refused to make its ruling
retroactive. Mr. Justice Cardozo described the effect of such a ruling: Comment appears
to be the only recognition given to the technique of prospective overruling in Canada and
England. There are attractive arguments in favour of it and convincing arguments against
the use of such a power by Canadian and English courts.
7. The most cogent reason for rejecting this technique is the necessity for our courts to
maintain their independent, neutral and nonlegislative role. The practice of giving
prospective effect to law is endemic to legislatures. By deciding an existing case under
the old rule but warning that future cases will be decided under a new rule now being
announced, a court is really usurping the function of the legislature.
8. Any exercise of prospective overruling in a Canadian court would be a dramatic deviation
from the norm in both Canada and England. The use of such a technique first requires
extensive study as to its possible effects and the overwhelming overhaul it may cause to
the present Canadian justice system. Consideration of such a change in technique
should perhaps be left to another forum, and until such a change takes place, the
principle to apply in Saskatchewan is one of retrospective application of the common law.
9. As the foregoing indicates, the judge was correct to apply the Indyka rule to determine
whether to recognize the husband's California divorce. Given the facts before her, the
judge was also correct to conclude that there existed a "real and substantial connection"
within the meaning of Indyka, between the petitioner (and the husband as well) and the
State of California, the jurisdiction where the divorce was granted. There was no dispute
about the validity of the wife's marriage in any other respect. In the result the judge made
no error in finding that the respondent wife was the "wife" of the deceased husband within
the meaning of the Dependants' Relief Act (and within the Intestate Succession Act) and
thus a dependant within the meaning of the first Act.
Savelieff vs. Glouchkoff (1964)
45 DLR (2d) 520 (BC CA)
Doctrine:
There is an important distinction when it comes to court jurisdiction of void and voidable
marriages. When a marriage is void, then either party can ask the court of his or her domicile to
declare the marriage a nullity. A wife alleging a void marriage can rely on her own domicile before
marriage if there is nothing to show that it has been changed except the existence of the marriage
A voidable marriage is much more complicated. If the marriage is only voidable there is a court of
a common domicile whose decision will be paramount. A wife cannot ask the court of her present
domicile to declare the marriage void if the same is not the domicile of the husband. The wife
necessarily follows the domicile of the husband.
Facts:
1. In this action the plaintiff(appellant) asks for a declaration that the marriage between
himself and the defendant is null and void by reason of a prior subsisting marriage of the
defendant. The marriage took place in Algeria. The learned trial Judge dismissed the
action holding that the Court had no jurisdiction. For the purpose of deciding the
jurisdictional question the learned trial Judge assumed that at the commencement of the
proceedings the plaintiff was resident and domiciled in this Province and that the
defendant was resident in Ontario, as was alleged by the plaintiff.
2. The learned trial Judge felt himself bound by the judgment of this Court in Shaw v. Shaw.
In that case the wife sued to have the marriage declared a nullity on the ground of her
husband's impotence. The marriage had been celebrated in Alberta and the husband
was resident and domiciled in that Province. The wife sought to have the Courts of British
Columbia assume jurisdiction on the sole ground that she herself was a permanent
resident of British Columbia.
Issue:
Whether or not the trial court had jurisdiction to declare the marriage null and void? YES.
Held:
1. The court held that if the plaintiff is domiciled in British Columbia, and if by its proper law
the marriage between the parties was a void marriage, the court below had jurisdiction to
grant the plaintiff the relief asked for by him. In such circumstance the case of Shaw v.
Shaw has no application.
2. It is important to keep in mind the distinction between a marriage which is merely
voidable and one which is void ab initio and between the results which flow from each of
them.
a. De Reneville v. De Reneville:
i. a void marriage is one that will be regarded by every court in any case in
which the existence of the marriage is in issue as never having taken
place and can be so treated by both parties to it without the necessity of
any decree annulling it: a voidable marriage is one that will be regarded
by every court as a valid subsisting marriage until a decree annulling it
has been pronounced by a court of competent jurisdiction. In England
only the Divorce Court has this jurisdiction.
ii. If, however, the marriage is by its proper law a void marriage no decree
of any court is required to avoid it.
b. Lord Cohen: The fact is that when a Court pronounces a decree of nullity in the
case of a void marriage it is not bringing any state of affairs about but is merely
making a declaration as to what the state of affairs had been and is.
c. The differences in the results flowing from void and voidable marriages carries
forward into the matter of the jurisdiction of the Courts to pronounce nullity
decrees.
i. Where the marriage is void ab initio as distinct from being merely
voidable, the Courts of British Columbia are invested with jurisdiction
where the person seeking the decree, whether it be the so-called
husband or the so-called wife, is domiciled in British Columbia when the
proceedings are taken and had.
ii. Domicile of the petitioner gives jurisdiction to make a declaration of his or
her status.
iii. A void marriage does not create married status.
d. Ross Smith v. Ross Smith: The court accepts the view that a wife alleging a void
marriage can rely on her own domicile before marriage if there is nothing to show
that it has been changed except the existence of the marriage. But in the case of
a voidable marriage she cannot do that and must admit until the case has been
decided that her domicile is that of her husband. That means that if the marriage
is only voidable there is a court of a common domicile whose decision will be
paramount. But if the marriage is alleged to be void there may be no such court
...
e. Ambrose v. Ambrose: The court had jurisdiction to entertain the nullity suit on the
ground of the domicile of the parties being in British Columbia and also on the
ground of the domicile of the petitioner being in British Columbia. It should be
pointed out however that the was one involving an allegedly void marriage and
the man and not the woman was the petitioner.
3. Shaw v. Shaw is clearly distinguishable from the case at bar on its facts. In it the
marriage was merely voidable and, by reason of this fact, the petitioner's domicile was
that of her husband, which was Alberta.
Sangha vs. Mander (1985)
6 WWR 250 (BC SC)
DOCTRINE
1. There is a presumption that the domicile of origin continues.

2. Validity of the Marriage is governed by place of marital domicile.
FACTS:
6. 1. Miss Sangha went through a valid marriage ceremony with Mr. Mander on 17th August
1982 in British Columbia. At the date of the marriage and at the date of commencement
of proceedings, both parties were resident in British Columbia. Miss Sangha's antenuptial
domicile was British Columbia. Mr. Mander came to British Columbia from the Punjab, his
place of birth, for the marriage. No domicile of choice was proven; thus, for the purposes
of this action his domicile of origin continues.
7. 2. Miss Sangha issued a writ claiming a declaration of nullity of the marriage because of Mr.
Mander's impotence. The action is uncontested. The evidence persuades me that Mr.
Mander was unable to consummate the marriage.
8. 3. This impotence resulted in his leaving the matrimonial home seven days after the marriage
ceremony. Although Miss Sangha knows he lives within British Columbia, she does not
know his exact whereabouts.
Issue:  
9. 1. Does this court have jurisdiction to entertain this proceeding for nullity? - YES. 
10. 2. If it does, what is the proper law to apply to determine the validity of the marriage? - British
Columbia’s laws.
Ratio:
1. The differences in legal effect of the distinction between the remedies of divorce and
annulment of a voidable marriage have been rendered negligible by provincial legislation.  
2. Miss Sangha went through a ceremony of marriage expecting a marriage in every sense
of the word, but the marriage could not be consummated. In her view, she was never
married. She seeks that declaration from this court.  
3. If a remedy long embedded in canon and common law is to be replaced by Parliament
by a remedy with a vastly different social effect, it must be repealed expressly or by
necessary implication.
4. There is nothing in the Divorce Act to suggest that the common law action for nullity on
the ground of impotence, that is, the practical impossibility of consummation, was to be
repealed. Rather, non-consummation for a period of one year, whether by reason of
illness, inability or refusal, was deemed by s. 4 of the Act to constitute a "permanent
breakdown" of the marriage, which breakdown entitled the petitioner to a divorce.
5. After reviewing the tests and the considerable number of authorities provided to me by
counsel in a most useful brief, I have concluded that joint residence is a sufficient basis
for the exercise of nullity jurisdiction, whether the marriage is void or voidable.
6. The parties having both been resident in British Columbia at the commencement of these
proceedings, this court has jurisdiction to entertain the claim.  
7. By the domestic law of British Columbia, this marriage is voidable for want of capacity in
Mr. Mander to consummate it. Although some jurisprudence and some text writers
consider that the lex fori is the proper law by which to determine the ultimate issue of the
validity of this marriage,
8. There is a presumption that unproven foreign law is the same as that of the forum. This
presumption may not correspond to fact. However, Mr. Mander had an opportunity to
appear - he chose note to do so. Miss Sangha does not know his exact whereabouts in
British Columbia. The pleadings alleged his domicile is unknown and his place of birth as
the Punjab, India.
9. In these circumstances, the inability of Miss Sangha to prove the domicile of Mr. Mander
does not prevent her from taking the benefit of that presumption. In the result, Miss
Sangha is entitled to the declaration of nullity she seeks.
Gwyn vs. Mellen (1979)
6 WWR 385 (BC CA)
Doctrines:
1. Courts recognize foreign court decisions based on the principle of reciprocity.

2. If the principle of reciprocity cannot be applied, recognition of foreign court decrees is still
valid under the basis of the “real and substantial connection” principle.
3. When the same issues are pending between a local and foreign court, the decision of the
foreign court would have the effect of res judicata as to the local court.
Facts:
1. Mellen petitioned for divorce in England pleading irretrievable breakdown of the marriage
and misbehaviour during their life together in England until his husband’s departure to
Canada.
2. Gwyn denied Mellen’s allegations but prayed that divorce be granted alleging Mellen’s
misdeeds.
3. Gwyn was ordered by the English court to pay Mellen interim maintenance pending suit
at the rate of 4,000 British Pounds per annum. Gwyn never paid.
4. Instead, Gwyn went to a British Columbia (B.C) court and asked for the annulment of his
marriage with Mellen and that the payment of interim maintenance be declared as void
since his marriage with Mellen was void ab initio.
5. Mellen attempted to block the proceedings in B.C. by pleading lack of jurisdiction.
However, the B.C. court held that it has jurisdiction.
6. Mellen amended her petition from divorce to annulment but maintained her prayer for
maintenance. The nullity decree was granted and ordered payment of permanent
maintenance of 4,000 British Pounds.
7. Gwyn argued that if B.C Court will recognize the English decision while the same issues
are pending before the B.C. Court, there is a possibility of having two inconsistent orders
binding on the same parties and both enforceable in B.C.
Issues/Held:
Whether or not a B.C. court can recognize foreign decrees of nullity. Yes
Ratio:
1. The weight of authority is such that, on the basis of the reciprocity principle, our courts
should recognize the nullity decree pronounced in England since if the geographical
jurisdictions had been reversed, B.C. courts will assume the same jurisdiction to
hear this matter and to grant such a decree.
2. Even if reciprocity is not applicable either because B.C. should not assume jurisdiction to
annul a void marriage in B.C. or because the reciprocity principle should only be applied
where the basis on which the jurisdiction is assumed is the same in both domestic and
the foreign court, B.C courts should still recognize foreign court decisions on the basis of
real and substantial connection principle.
3. In this case, Mellen had a real and substantial connection with England because:
a. She has been a resident without interruption in that country from a date
preceding the ceremony of marriage with Gwyn.
b. Her domicile is also in England.
4. As to the possibility of having contradicting decisions, the Court held that the better
recourse, rather than not recognizing the English decision, is to permit the principle of res
judicata to apply.
5. In such case, the B.C. court which recognizes the order of the foreign court will not
anymore review the same order. Therefore, the grant of nullity by the English court
should have been brought before the B.C Court. Upon the basis of such order, the B.C.
court would have been prevented from making a further decree.
Gillespie vs. Gillespie (1992)
10 OR (3d) 641 (CA)
Doctrine:
A judge should not refuse recognition of a foreign award of custody based merely on the fact that
she does not agree with it, absent any legal impediments on the enforceability of the award. Such
approach goes against statutory requirements.
Facts:
1. Spouses Gillespie, married in 1985 in New Zealand and had three children, and later
separated in 1990. The mother (Respondent), a Canadian citizen, was granted custody
over the children.
2. In 1992, Respondent gave the father (Appellant), an American citizen, notice that she
was moving to another part (Dunedin) of New Zealand along with the children, which was
800 kilometers away from where they were currently residing (Nelson)
3. The Appellant filed in the New Zealand Family Court in Nelson: a) an application seeking
custody, b) an order enforcing his access, and c) an order to restrain the Respondent
from moving the children. However, before such matters could be settled by the Court,
Respondent left New Zealand and moved to Canada with the children, without informing
the Appellant.
4. Meanwhile, the judge hearing the custody application granted custody over the children
to Appellant in June 1992. The judge referred to the rights of the children to see their
father, to grow up in a familiar environment, and to be in a stable situation. He found that
Respondent had created a background of obstruction, non-cooperation and denigration
of the Appellant, against which the welfare of the children had to be considered. The
Appellant then brought an application in Ontario for an order recognizing and enforcing
the order of the New Zealand Family Court
5. The Ontario judge of first instance ruled that the Respondent have permanent custody of
the children, she refused to give the New Zealand order any weight as she found that
such order was not a ruling on the merits, but instead, was meant to punish Respondent
for removing the children without notice, and was not in the best interests of the the
children. Appellant appealed.
Issue:
Did the judge of first instance in Ontario err when she refused to recognize the order of the New
Zealand Family Court of June 1992? - YES
Held
1. The judge of first instance erred in not addressing the jurisdiction conferred on her under
s. 41 of the Children's Law Reform Act, R.S.O. 1990, c. 12, to recognize the June 1992
order and in not making an order under that section. Based on the facts of the case, the
Court ruled that none of the provisions which would prevent the Court from recognizing
an order for custody was applicable. Where the only basis on which the Respondent
challenged the applicability of s. 41 was that provided for in s. 41(1)(b) -- that she was not
given an opportunity to be heard by the New Zealand Family court before the order was
made. However, it was shown that Respondent had been aware of the said proceedings
and had even filed a defense on her behalf. It was Respondent who deliberately chose
not to avail herself of the opportunity to be personally present at the hearing.
2. The Court ruled that it appears that the judge of first instance did not recognize the New
Zealand order because she did not agree with it. However, the Court explained that such
approach is not in accordance with the statutory requirements. The Court disagreed with
the ruling that the new Zealand Order was not a judgment on the merits, it explained that
the said decision of the New Zealand judge was based on a primary regard to the welfare
of the children. The Court noted that the New Zealand court was presented with
substantially more evidence respecting the marriage, the history of the proceedings, the
children, and the children's relationship to their parents, than there was before the judge
of first instance in Ontario
3. Appeal granted, the order of the lower court is set aside, and in its place there will be an
order recognizing the New Zealand order and directing that the children be returned to
Nelson, New Zealand, within four weeks from the promulgation of the decision.
Finizio vs. Scoppio-Finizio (1999)
46 OR (3d) 226 (CA)
Doctrine:
In the application of Article 3 of the Convention on the Civil Aspects of International Child
Abduction, the nature of the custody rights of the party seeking an order for the return of children
must be determined in accordance with the law of the habitual residence of the children.
Facts:
1. Giampiero Finizio ("the husband"), is an Italian national with an immigrant status in

Canada. Grazia Scoppio-Finizio ("the wife), was born in Italy and immigrated to Canada
in 1977.
2. Giampiero and Grazia married on October 1990 and resided in Italy since their marriage.
There have two children, Corinne aged 7, and Paola aged 2. The children have dual
citizenship and are fully bilingual.
3. Spouses were having marital problems and on 1998, both agreed to lead separate ways.
Grazia claimed that her husband punched her face and also withdrew almost all of their
joint funds in their bank account.
4. Grazia, without knowledge of Giampiero, brought the two children to Toronto without
intention of returning to Italy.
5. Giampiero filed a claim before the Canadian court seeking relief wrongful removal or
detention of the children within the meaning of Article 3 of the Convention on the Civil
Aspects of International Child Abduction.
6. Justice Paisley did not grant the declaration and return order sought by the husband.
Although he found that the Grazia had wrongfully removed the children from Italy, he
refused to order their return to Italy because to do so "would place them in an inherently
intolerable situation as well as exposing them to a grave risk of psychological harm.”
7. Giampiero appealed Justice Paisley’s decision.
Issue:
WON the removal the children, from Italy to Canada, is a wrongful removal contrary to Article 3 of
the Convention?
If the removal of the children was wrongful, WON the children should be permitted to continue to
live in Canada because an order returning them to Italy would violate Article 13 of the Convention
Held:
1. Article 3 of the Convention provides: The removal or the retention of a child is to be
considered wrongful where:
a. it is in breach of rights of custody attributed to a person, an institution or any
other body, either jointly or alone, under the law of the State in which the child
was habitually resident immediately before the removal or retention; and
b. at the time of removal or retention those rights were actually exercised, either
jointly or alone, or would have been so exercised but for the removal or retention.
2. In analyzing Article 3, the nature of the custody rights of the party seeking an order for
the return of children must be determined in accordance with the law of the habitual
residence of the children. The habitual place of residence of the Finizio children is Italy.
Accordingly, the custody rights of their parents must be determined in accordance with
Italian law. Thus, it was correct to hold that the husband had standing under Article 3 to
challenge the wife's removal of the children from Italy.
3. It is also important to determine whether Justice Paisley was also correct in refusing to
order the return of the children to Italy. Under Article 12 of the Convention:
a. “Where a child has been wrongfully removed or retained in terms of Article 3 and,
at the date of the commencement of the proceedings before the judicial or
administrative authority of the Contracting State where the child is, a period of
less than one year has elapsed from the date of the wrongful removal or
retention, the authority concerned shall order the return of the child forthwith.”
4. However, Article 12 does not provide an absolute rule of return. There are some
circumstances in which a court can refuse to make a return order, such as “grave risk
that his or her return would expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation” (Article 13).
5. Although return is not absolute, the Court decided that the children should be returned to
Italy absent any proof that there is a grave risk of physical or psychological harm. The
Court cited several reasons to support its decision:
a. There is no evidence that the husband has ever done anything to harm the
children.
b. The alleged single incident of assault at the summer home in Italy is, even on the
wife's evidence, the only incident of a physical altercation between the spouses
in their eight-year marriage.
c. There is simply no basis for suggesting that the Italian courts are not well-suited
to deal with matrimonial issues, including support, custody and access.
d. Canadian courts can impose undertakings on parties to deal with the transition
period between the time when a Canadian court makes a return order and the
time at which the children are placed before the courts in the country of their
habitual residence.
6. Thus, the Court decided that the Finizio children return almost immediately to Italy, the
country of their birth and of their habitual residence until they were wrongfully removed.
TIL vs. JLF (2000)
152 Man. R (2d) 138 (QB)
Doctrine:
Adoption proceedings are a creation of statute. The process terminates the legal relationship
between a child and his or her birth parents and substitutes a new legal parent-child relationship
between persons whowould otherwise be strangers in law. More than mere residence or ordinary
residence must be established in order to determine the court's jurisdiction because of the
significance of the outcome of such an application.
Facts
1. TLF is a child born in the United States of America to American parents, JLF and SJK.
TIL and GAL, residents of Manitoba, apply to adopt him pursuant to the provisions
relating to private adoptions. The birth mother, JLF, consents to the adoption. SJK, the
birth father, is opposed.
2. In this case, TLF was a child born in the United States of America to American parents,
JLF and SJK. The child was born in year 2000 in Grand Forks, North Dakota, United
States of America.
3. JLF and SJK, as the biological mother and father were not married with each other, and
do not live together.
4. Before the child TLF was born, the birth mother determined that she would be unable to
properly care and provide for the child so her mother put her in touch with AL who resides
in Manitoba.
5. AL then introduced her to AL’s stepson GAL and his wife TIL, the petitioner in this case,
who wanted to adopt a baby.
6. TIL and GAL, residents of Manitoba, apply to adopt him pursuant to the provisions
relating to private adoptions.
7. The birth mother did not want to follow the process required pursuant to Inter-country
Adoptions. She and the prospective adoptive parents, therefore, formulated a plan that
the birth mother would come to Canada to give birth. After the child's birth, she would
place the child with the prospective adoptive parents and the adoption would proceed as
a Private Adoption pursuant to Division 2 of the Act.
8. However, the child was born 3 days prematurely in the United States, just before she was
able to go Canada.
9. The mother saw a counselor and an adoption agency and she was sent to a lawyer to
ensure the birth father’s rights were appropriately considered. Three (3) days after, the
mother crossed the Canada-US border and on the same day she executed a Consent of
Parent to Adoption.
10. The Child and Family Services of Central Manitoba approved the placement as soon as
she had signed the papers. Immediately thereafter, the child was placed with the
prospective adoptive parents. The birth mother then left the country and returned to her
home in the United States. The birth mother told the birth father that she was arranging
an adoption.
11. However, he was in jail in Grand Forks. His only means of communication with anyone
outside the jail was by collect telephone call as he had no money to place his own
telephone calls.
12. The birth father was served with the Manitoba "Notice to Birth Father" on April 26, 2000.
He was in jail in Grand Forks at the time of service
13. Despite the acknowledgement of all concerned that SJK was the father of the child, when
the child was born, the birth mother did not name SJK as the father of the child on the
birth certificate.
14. In this case, SJK, the birth father, is opposed.
Issue
Does the Manitoba court have jurisdiction to consider an application for adoption of an American
child?
Held
No, the Court held that the Manitoba court does not have jurisdiction to consider this adoption
application. The Application for Adoption is dismissed.
Ratio
1. In this case, it was held that the court must consider the domicile of the child when
determining if the child legally resides within the jurisdiction of the court. It was found that
this child is domiciled in North Dakota, the common domicile of his birth parents.
2. This case explains that Adoption proceedings are a creation of statute. The process
terminates the legal relationship between a child and his or her birth parents and
substitutes a new legal parent-child relationship between persons who would otherwise
be strangers in law. More than mere residence or ordinary residence must be established
in order to determine the court's jurisdiction because of the significance of the outcome of
such an application.
3. Hence, the mere presence of the child does not give the court outright jurisdiction to
adjudicate the adoption proceedings. It is explained in this case that Adoption is a
proceeding, which would terminate the legal relationship between the parents and the
child. Thus, the rules governing it must be strictly construed. The facts in this case
provide that the mother of the child seeks to evade the legal procedure in North Dakota
pursuant to Inter-country Adoptions.
4. Manitoba notice to birth father was totally inadequate to advise birth father residing in
another country of his rights and options.
5. In this case, it was ruled that the birth father's response on birth parent background
information form was not indicative of him consenting in legally valid way to adoption and
did not provide real and substantial connection to Manitoba
6. The short length of time that the child has been here, the fact that the birth father
challenged the court's jurisdiction over the adoption as soon as he was served with the
Notice of Application, and the fact that if an adoption were proceeding in the North
Dakota court, the birth father's parental rights would have to be terminated in advance of
an adoption order being granted, have been considered.
7. Presently, the child resides with the applicants pursuant to the interim order of
guardianship issued under the court's parens patriae jurisdiction. As a result of the birth
mother's and the prospective adoptive parents' actions, the child's life and legal status
are "on hold."
8. The case stated that any further delay of any kind in resolving this baby's status will not
be in his best interests. Accordingly, the interim order of guardianship will remain in force
for three months or until the North Dakota court assumes jurisdiction and makes
whatever order it deems appropriate with respect to the child TLF, whichever is the
earlier.
Teczan vs. Teczan (1992)
62 BCLR (2d) 344 (CA)
Facts:
1. The parties were born and married in Turkey. There were two children of the marriage: a
son, Haluy, and a daughter, Kamer.
2. The parties moved to Vancouver where the husband worked as a lecturer in the Faculty
of Engineering at the University of British Columbia
3. Three British Columbia properties were purchased during the course of the marriage.
th
a. The “West 13 property” which was held in the joint names of the parties until it
was sold in April 1983. The proceeds were used to purchase property in Turkey
which was eventually given to Haluk;
b. The “Cornwall Condominium” which was held in the joint names of the parties. At
the time of trial it was valued at $163,000 subject to a $31,340.60 mortgage;
c. The “Blythwood Apartments” which was purchased in 1967 and held in the name
of the husband as to a 13/20 undivided interest. The remaining interest was held
by unrelated third parties. It was never actually physically used by the Tezcan
family, although the income it produced was clearly used for a family purpose
and it was intended to secure the family’s financial future. The property was
managed by others hired for the purpose.
4. In June 1966, the Tezcan family returned to Turkey and in 1967 came again to
Vancouver. Both of the parties obtained Canadian citizenship.
5. In 1968 the Tezcan family returned to Turkey where they lived for the remained of their
marriage. While the family lived in Turkey, the wife also cared for the husband’s mother
who lived with them.
6. The husband purchased properties in Turkey which at the time of trial were valued at
over $1 million
7. The parties separated in June 1983. In early September 1983, the parties and their two
children met at Ulus, near Istanbul to discuss the disposition of property acquired during
the marriage. No final agreement, however, was reached.
8. On September 18, 1983, the parties were divorced in Turkey. The Turkish divorce decree
did not deal with the property of the parties and no other proceedings have been taken
with respect to the property. The husband has exclusive title and right to the properties in
Turkey
9. The husband remarried in Turkey. He has two children by his second wife.
10. The wife also remarried but she divorced her second husband one month before the trial
of the present case. The wife has minimal education and is now virtually unemployable
except in low-paying jobs. She has received no maintenance from her first husband.
11. This action was commenced by the wife on January 1984.
Issue:
Whether the law of Turkey or the law of British Columbia should apply in the disposition of the
matrimonial assets? British Columbia
Held:
1. Characterization of property: matrimonial claim or not. In order to properly determine

which substantitve law the Court should resort to, it is first necessary to determine which
choice of law rule to apply in accordance with the conflicts rules. The choice of law rule
instructs the court as to which substantive system of law it should apply to resolve the
issue in dispute.
a. Turkish court would characterize the claim as one related to property hence in
accordance with the lex rei sitae rule
b. British Columbia characterization: property claim which happens to arise in a
matrimonial contract.
2. Choice of Law Rule for Property. It is common ground that the choice of law rules
applicable to proprietary claims arising from marriage are as follows:
a. Claims to movable property are governed by the lex domicilii (law of the
matrimonial domicile)
b. Claims to immovable property are governed by the lex situs unless
c. Any marriage contract (express or implied) provides otherwise
Bosch vs. Bosch (1991)
36 RFL (3d) 302 (Ont. CA)
Doctrine:
The right to equalization is separate from the right of ownership and absent the express or
implied intent of the spouses in the contract to deprive another of an entitlement to the share in
the financial worth of the other spouse, the equalization right must still be exercised.
Facts:
1. Husband (plaintiff Bosch) and wife (respondent Bosch) were married in Netherlands in
1976. The husband owned a house in Woodstock, Ontario when they got married. They
eventually moved to this house.
2. Before their marriage, the parties entered into a marriage contract.
3. The contract provided that all the properties of each party should remain their properties:
a. …all property, money, and rights of every nature and kind held by the parties
hereto, whether held at the time of the marriage or obtained afterwards, shall
remain the property of the respective parties but each shall contribute equally to
the upkeep and maintenance of the household (and children). If both parties
contribute to the purchase of any property for purposes of the household it shall
be deemed to be held jointly in equal shares, and not in proportion to their
respective contributions.
4. The trial judge was dismissive of this marriage contract, even going as far as considering
it contemptuous.
5. He was enunciating a position that has been adopted by a number of trial judges:
a. The equalization provisions of the FLA and its predecessor, the Family Law
Reform Act, R.S.O. 1980, c. 152 (FLRA), cannot be ousted by a domestic
contract UNLESS that contract, expressly or by implication, considers an
alternative scheme of property distribution: this despite the absence of any such
requirement of a domestic contract in either statute.
6. The trial court found that the contract did not exclude the matrimonial home from the
calculation of the husband’s net family property and awarded the wife an equalization
payment, the custody of the three children, and a lump sum child support.
7. The husband appealed the decision.
Issues:
1. W/N the contract of the husband and wife can operate to defeat the claim of the wife
under the FLRA
2. W/N the matrimonial home was properly included in the husband’s net family property in
view of the marriage contract.
Held:
1. Matrimonial home EXCLUDED. The domestic contract in question is sufficient to

EXCLUDE the house and six acres of land owned by the husband from the husband's
net family property
2. The parties were separate as to property before the marriage and this status did not
change as a result of the marriage.
3. Unlike other jurisdictions, there is no community of property arising from marriage in
Ontario. The husband had legal title to the matrimonial home at the time of the marriage
and title remains with him to this date.
4. In the case at hand, there is no conflict between the Act and the contract. The two are in
harmony. The contract provides that the spouses shall remain separate as to their
respective properties and the Act provides that in that event the properties are not to be
included in their net family properties.
5. A marriage contract, which provides only for ownership of property during the marriage,
has been held not to provide for a division of property under Section 4 of the Family Law
Reform Act.
6. A contract dealing with ownership of property during or after marriage may not prevail
over the equalization provisions of the Act.
7. The right to equalization is quite separate from any right of ownership. For the marriage
contract to prevail over the equalization provisions of the Act, it must contain provisions
which address in intent, if not explicitly, the position of the parties on the division of
assets between them on the basis of ownership or otherwise.
8. The parties did not do this under this contract.
a. A matrimonial home is treated differently in the equalization process as there is
no deduction if one party prior to the marriage owned it. The parties could have
agreed to exempt the value of the home from the equalization process.
b. However, this marriage contract was silent not only as to entitlement on the
dissolution of the marriage, but also as to the matrimonial home.

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Conflict of Laws

A Survey of Canadian Cases

Ateneo de Manila University- School of Law

Refer to “4” for matter that concerns Conflicts of Law

3. Nature of benefit and the Incidence of Taxation

Held: Yes, the judgment may be enforced.

procedural law of other jurisdictions.

1. This is a consolidation of 2 similar Canadian Cases decided in different provinces.

2. The Tolofsons, British Columbia natives, were involved in an accident in Sasketchewan

passenger in a car driven by his father Roger Tolofson.

he or she was travelling.

was brought in British Columbia.

7. In Lucas v. Gagnon. The Gagnons, Ontario natives, were involved in an accident in

Quebec with Quebec native Lavoie.

husband the driver, for personal injuries.

10. The Ontario Court decided that it had jurisdiction

where the tort was committed. – LEX LOCI should apply.

states and by people outside the place where an activity occurs.

and forum judges understand them.

who have an accident in Quebec regardless of their province of residence.

1. Liquid Disposal Inc. (LDI) is a Michigan corporation conducting a waste disposable

1. Whether Resolution 369 is against public policy - YES

1. Resolution 369 is against English public policy.

5. Trial Court ruled in favor of Terrace. Gillespie appealed.

Is the agreement enforceable such that Terrace is entitled to compensation? - No

1. Henry Attril was a director of the Rockaway Beach Improvement Company, a

2. Collis P. Huntington, was a resident of New York and a creditor of Rockaway

US claims- preferred; UK-unsecured

Although a corporation’s relationship with another corporation is based on a single contractual

Whether Success is in violation of the licensing requirements of the Extra-Provincial

1. Is real and substantial connection absolutely required to confer jurisdiction? No.

1. The Court of British Columbia may take cognizance of the action

Where a foreign defendant carelessly manufactures a product in a foreign jurisdiction which

Notwithstanding anything in Section 53, no action shall be brought in Saskatchewan for

Issue: Whether or not the default judgment can be registered? YES.

1. Plaintiff, a North Carolina Company, operates a microbrewery business while the

1. In Morguard Investments v. De Savoye, the SC of Canada held that courts of one

1. The plaintiffs are

What law should be applied?

General conflict of laws principles regarding damages distinguish between an entitlement to

Doctrine: In a defamation action commenced in New South Wales in relation to a publication

W/N British Columbia Law is the proper law of the contract;

1. British Columbia is the governing law; the contract is valid

1. By a contract made in London in 1964, the plaintiffs, Lloyd's underwriters, issued a

1. Whether or not the English proceedings should be continued. -> No.

In order to succeed in an application for a stay of proceedings or declaration of jurisdiction, two

1. A management contract was entered into between Gillespie (a British Columbia

"The defendant has no connection to Canada and is most closely connected to

Whether or not the Hawaii law should apply? YES.

1. Whether certain property is a movable or immovable must be determined by the law of

Are the plaintiffs entitled to sue in Ontario? Yes.

If yes, is the forum of convenience in Florida or in Ontario? Ontario.

Duke vs. Andler (1932)

4 DLR 529 (SCC)

Bank of Africa vs. Cohen (1909)

2 Ch. 129 (CA)

W/N the wife is capacitated to convey the properties in question?

1. Yes. Defendant wins.

Held: Not stolen, Banting has lawful title.

A person’s capacity to take an assignment of personal property is to be governed either by the

1. Rule 54 cannot be construed as having extra-territorial effect so as to authorize

1. Macdonald brought an action against Martin for an accounting.

WON appeal should be upheld – YES