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Spring 2004


[CHAPTER 1: pages 3-5]

Conflict of laws is the area of law that resolves disputes containing a foreign

Nature of this area

- International in a sense that it is dealing with rules when one state or one unit
that prescribes law can take jurisdiction to a case. And, when it does take
that jurisdiction, what law should it apply
- Has to be contrasted with public IL where there is a considerable body law
that is independent of particular jurisdictions (customary IL, treaty IL, body of
conventions creating IL area that is above all jurisdictions)
- In COL dont have this separate transnational, international body of law
have territorial determinations that take account of the foreign element of the
case. How is this foreign element resolved.

e.g. Family law context - Questions of marriage

- Will state A recog marriage performed in state B
- What are the rules that will determine this recognition
- What if the law or policy in state B is not applicable in state A
- To what extent can this issue be dealt with, to what extent can state As local
law be used
- Same sex marriages significant COL issues not only provincially, but

i.e. Emphasises the TERRITORIAL nature

It is international as it involves things that occur in more than one state.

Add to this the distinction between formal and informal relationships

- To what extent will one state recog an informal relationship
- What rules would be applicable to a de facto marriage in some judicial units,
they are treated the same, but not for all purposes (matrimonial ppty)
- This difference is of greater significance when looking internationally in this
- Recognition of divorce and nullity
Find a generally accepted principle:
- formal marriages
- informal law relating to the domicile of the parties
Where should it be taught? Under conflict of laws or under family laws? Relevant
to COL in brief. Same for the case of residency substantial connection,
habitual residence how does it relate to domicility

The question of divorce and marriage under Canadian law starts to come under
the Charter, ultimately comes before SC to decide inter-provincially.

There are 3 broad areas:


(i) Jurisdiction simpliciter

- The authority for a court to accept jurisdiction
- Determined by legislation or Rules of Court or forum
- Largely a Q of civil procedure: Does the court of the particular jurisdiction
have auth to deal with the subject matter
- Does it fall within the civil procedure rules
- Looking to an interpretation of the rules of Ct to see if it falls within the
jurisdiction of the court

(ii) Jurisdiction forum non conveniens

- Over the parties of the dispute
- Over the subject matter of the dispute
- Matter of discretion
- Beyond civil procedure basic jurisdiction has been established
- If yes, rules of civil procedure allow ct to hear the case then should the court
hear this case
- Is there a more appropriate jurisdiction to hear the case nws that the Ct CAN
hear this case
- Gets tied up with anti-suit injunctions
- E.g. BC court does have jurisdiction. If filed in Texas, is this the most
appropriate place for parties? Other party may got to BT cts and ask for
injunction against the party within the Texan jurisdiction. If both parties are in
the forum, and the injunction can be effective, then BC can say wont let you
litigate in Texas.
- Indirectly asks question within the courts to see which is most appropriate
when and under what circumstances


If the party lives in Texas and has filed in Texas judgment can be enforced, but
if the partys assets happen to be in BC should the Texas judgment be
recognised and enforced in BC?

Historically there were a set of rules to determine this matter. However this body
of law in the last 10 years (starting with series of constitutional cases) has been
departed from. The trend has changed from one of non-recognition, to one of
full faith and credit where judgments of foreign courts (in particular US) is
to give recognition. Now it is bad advice for example to stay away from Texas
maybe need to go there and defend that case. Therefore is a signficant
developing area in this context.

Area of public policy

Whereby courts can decline to enforce a foreign judgment When and under
what circumstances should that be done.

Interesting NZ case involving return of indigenous items of culture - attempt to

legislate extra-territorially
- Item of culture happened to be in the UK and a judgment was given against
the party to return the item.
- Went before Eng courts and said the NZ judgment could not be enforced. It
was really a public policy reasoning that the legislature was exercising extra-
- Infringed too greatly on traditional areas of law
- i.e. goes to what TYPE of judgment

Is an environmental measure an intent to legislate extra-territorially, an attempt to

impose tax, or a matter relating to restitutional property Categorisation of the
case is important but sometimes difficult


If decide that there is juridiction, and secondly decide that the forum is the most
appropriate jurisdiction, then need to decide WHAT law is to be applied.
In this course, focus mainly on the areas of tort, ppty and contract.

a) Lex fori: law of the forum (where the case is being decided)
b) Lex loci delicti: law of the place of the wrong or infringement
c) Lex situs: law of the location of the subject matter (not so easy for things
such as copyrights)

Used to solve Substantive or Procedural issues

- Procedural matter is usually lex fori but the difficult thing is what is
procedural matter

US has always had const Qs in matters of COLs. Came earlier as a separate
body of laws. UK was a unitary state and issues that came up before their courts
involved truly international cases - focus was largely on lex fori. Was primarily
wanting to protect interests of its subjects (its investments).

Huge development in US as have 50 states = units of jurisdiction

- Units of a federal state
- Early on the Americans made modifications, and while they are units of
jurisdiction, they come under one country

Why do we treat provinces of Canada like foreign countries? They are parts
of a whole Canadian jurisprudence should have taken more note of the US
situation. Instead they looked to the unitary context of the UK.

One of the difficulties of const cases Laforest J. wasnt careful to say that what
was being stipulated was to be limited to inter-provincial matters. Inter-provincial
and global lines are blurred difficult to see how far to extend the laws in an
international case. Trend to interpret more globally.


Private Law
Public Law
No clear line between the two




[Chapter 2: pages 7-26]

Fair to say that in Canadian and Commonwealth terms, there has been a
reluctance to give a theoretical basis to COL more so a conceptual, analytical
approach. However, this may be changing. Real and substantial connection
has been increasingly used. Has been a greater emphasis in US courts of the

Have a conceptual difficulty in saying we are dealing with an international/inter-

prov or state, that relate to how far one unit can deal with matters that deal with
units of a different jurisdiction. Yet there is no general body of law (unlike public
IL) when dealing with international matters US theorists (and Dicey) have
been trying to resolve this issue.

1) Comity Enlightened self-interest/reciprocality

- Best represents the view of Canada
- Can use comity to find some sort of international harmony or accomodation
between these jurisdictional units in the expectaion of receiving reciprocal
- Some say it is politeness, one sovereign state is polite to another, but is more
than that, it is an enlightened self-interest
- Dicey in England and Beale in US found this doctrine too vague and
discretionary to explain the mandatory application of foreign law

2) Vested Rights Theory foreign created rights

- Explanation for how foreign law became part of local law
- Local municipal law recognised a right that had become vested in an
individual under the foreign law at a time when the individual was subject to
foreign law
- Better than comity as it explained the mandatory nature of the COLs Cts
had no discretion in recognising vested rights
- Emphasized the individuals entitlement to his or her VR cf Cts politeness or
concession to foreign sovereigns
- Was criticised Only the local courts who would determine the VRs and
doesnt explain why some foreign rights became vested while some did not

3) Local law Theory

- Attempt to explain the national or local character of the COL
- But subject seemed to resemble the allocation of legislative and judicial
authority similar to that of a federal state

4) Government Interest Analysis

- Not simply dealing with rules for assigning legislative/judicial competence or a
conceptual analysis
- Courts consider whether the local law ought to be modified in light of any
foreign element, looking at the purpose or policy of the law
- Looking for the impact of the rule and asking who would this impact upon in
your particular state
- Criticised as it seeks to avoid objective rules between particular units of
jurisdiction (conceptual analysis would give this objectivity)
- Critics also say it doesnt place enough emphasis on need for intl cooperation
or harmony

5) Two variants of governmental interest analysis

(a) Most closely connected Proper Law

- Approach that continues to see the choice of law as a separate set of
rules, but rules that are open-textured or indeterminate
- Almost all the formal rules look the same since each legal category is said
to be governed by its propert law. However in determining the proper law
to govern a particular issue, courts are urged to choose the law with which
the issue is most closely connected
- i.e. similarity between propert law and governmental interest analysis
- Approach has been adopted in intl conventions (Hague Conference on
Private IL, 1984)

(b) Principles of restraint on local law intended to further intl goals

- Composed of various attempts to combine an analysis of the purposes of
domestic laws with some principles of restraint intended to further intl goals
- E.g. intl pressure of the need to live in the world ensures a high degree of
similarity among the many territorial systems of PIL

Judges often fall back on comity conceptual analysis doesnt significantly take
into account govt interests. Real emphasis on limits in terms of rules that one
can apply.
[Chapter 3 pages 27-55]

- In CL provinces conflicts rules remain a product of judicial decision and

interpretation. In Quebec they are found in code form
- Section 129 of the Constitution Act 1867 continued in force all laws in the
colony at the time of joining the confederation until such time as they should
be repealed, abolished, or altered by the appropriate legislature under the
new federal system of government

Line of Constitutional Cases: Provincial Jurisdiction

- Conflicts rules were co-opted by the Cts as the constitutional test for
determining the validity of provincial legislation challenged on grounds of
- Most often, issue was the situs of ppty and conflicts rules were used to
determine whether the province in Q had power to tax or regulate
King v National Trust Co [1993]: Ppty can only have one location in Canada
for the purposes of the imposition of direct taxation by provincial legislatures

- Each province as a jurisdictional entity was considered in the same way as a

- Predominantly Eng auths have been followed
- Have been commentators who have asked the Q: why has Canada followed
and applied the principles of a unitary state in a federation with the result that
provinces are treated as truly foreign jurisdictional foreigners
- Wasnt until Morguard that things changed

Looking at a federation we need to ask whether and how rules relate to the whole
- Is there a role for federal legislation? Is there an overriding role?

CASE 1: Churchill Falls (Labrador) Corp. Ltd. V AG of Newfoundland (1984)

The leading constitutional case dealing with extraterritoriality: Looks at ability of

provincial govt to legislate on matters that may be within the province but might
also have consequence external of the province.

Case was held in substance to be legislation in relation to civil rights (even

though in form it was legislation in reln to ppty all of which was situated in the
province) Question was then as to the LOCATION of those civil rights

Contractual arrangement in relation to the Churchill Falls river, development of
hydroelectric facility by Hydro Quebec through subsidiaries, to produce cheaper
electricity for popn. Quebec found it didnt need all the electrical supply units and
decided to sell excess off to US at higher price. Said no, they wanted a 61-year
term (till 2030)
Extra-territorial effect = ultra vires enactment = unconstitutional
- NFL provincial legislation was passed whereby certain controls could be
imposed executively on the supply of electrical units generally in the province.
- Principal attack against this Reversion Act was that it interfered with civil
rights existing outside the province of NFL
- Ct noted that there is no prohibition on province of passing legislation that
would expropriate public ppty within its boundaries
- However what happens when it has an impact outside of the province?

Did the derogation of civil rights outside of the province mean the enactment was
ultra vires?

1) Argued that while all that would be taken under the Act is physically situated
within the province of NFL, the effect would be to destroy lawfully acquired
civil rights outside the province any provincial legislation that has
extraterritorial effect is ultra vires
2) Argued the Reversion Act was aimed at the destruction of the rights of HQ
under the power K, rights that were situated outside of NFL. The true
purpose and intent of the legislation its pith and substance, governs the
issue of territorial limitation just as it does in other consitutional cases
involving division of powers.
The Act is beyond the legislative competence of the province of NFL

Territorial limitation on provincial legislative competence is contained in

Constitution Act 1867 s92: auth over ppty and civil rights in the province

Court looked at precedents

Was disagreement in case authorities as to the test which should be applied in
determining the constitutional validity of a provincial statue of ET effect

1) Royal Bank case (1913)

- Facts: Proceeds of a bond issue made by a railway co were held by the
appellant bank. Railway co made default in payment of int and in
construction of the railway line. Alberta govt which had guaranteed the bonds
enacted a statute requiring payment of the $ from the bank into Revenue
Fund of the province. Funds held by the bank in a Montreal account. Bank
refused to pay on grounds that the right to the $ upon default of the railway co
revested in the bondholders and this right was a right outside Alberta.
Held that any prov enactment which is not wholly confined in its effect
to that province would be therefore ultra vires
- No differentiation between statutes which are directed at extra-provincial
rights and statutes which only incidentally affect those rights.
2) Ladore et al v Bennett et al [1939]
- Concerned provincial legn which amalgamated certain municipalities in
Ontario into the city of Windsor. Securities for debts of various municipalities
were replaced by new bonds issued by new city of Windsor rights of
creditors outside of Ontario were affected and derogated from
- Lord Atkin held the pith and substance of the Acts was in relation to
municipal institutions within the province and were justified as having been
passed in relation to local works and undertakings under British N.America
Act 1867
although they affect rights outside the Province they only so affect them
collaterally, as a necessary incident to their lawful POGG with the Province.
- Day v Victoria [1938] applied the pith and substance test to territoriality
whether it is in the derogation from, or elimination of extra-provincial rights.
- Even if it is cloaked with proper const form, it will be ultra vires.
- All the physical plant of the hydro facility was in Labrador, and therefore on
its face was in the province physically

Applying to Churchill Falls: Reversion Act in pith and substance was aimed
directly at the HQ facility, and ppty and civil rights outside the province.
HELD: Effect was to destroy civil and ppty rights outside the province
(using the broader pith and substance approach)

Conflict in lines of authorities: Royal Bank cf Ladore

(Relating to permissible incidental or consequential)

Where the P&S of the provincial enactment is in reln to matters which fall within
the field of provincial legislative competence, incidental or consequential effects
on extra-provincial rights will not render the enactment ultra vires

Where the P&S of the enactment is the derogation from or elimination of extra-
provincial rights the, even if cloaked in proper const form, it will be ultra vires
Lord Atkin a colourable device will not avail.

HELD: The Reversion Act is a colourable attempt to interfere with the

power K and thus to derogate from the rights of HQ to receive an agreed
amount of power at an agreed price

It was more than an incidental or consequential impact (prima facie ultra vires).
However also held that although it effects extra-provincial secured creditors, it is
incidental in nature, and in accordance w Ladore, would not be grounds for
declaring the Act ultra vires.
Location of Civil Rights

Finding the Act was aimed at the rights of HQ, must also show the K rights
attacked are in Quebec, beyond the jurisdiction of the legislature of NFL
i.e. Next issue is determining where the rights are situated in the contract

- More difficult Q in general terms. Easy in this case bc K itself stipulated that
rights under the K would be situated within the juris of Quebec and choice of
law clause said it would be Cts of Quebec that would adjudicate any disputes
- General rule: Rights under Ks are situate in the province of the country
where the action may be brought

HELD: The rights of the K being attacked were situate in Quebec

Reversion Act is ultra vires

If rights were located within the province of NFL, even though the company
affected was extra-territorial, then enactment would not be ultra vires.

CASE 2: Williams v Canada (1992)

When the Ct looked at where something occurred, or where rights were situated,
they looked at it in a constitutional context, but used conflict of laws rules to
provide the answer:
- Choice of law rules distinguishing laws relating to the validity of marriages
(where is a marriage celebrated, domestic relationship created)
- Locating a tort (Moran case), some cases have provoked speculation that
choice-of-law rules may have achieved constitutional status
- Interpreting provisions of the Indian Act the case of Williams

This case cautions that this automatic use of conflicts rules wont nec always be
the case

Facts: Looking at situs of ppty the particular context related to the immunity
from taxation and execution of judgments against an aboriginal person on an
Indian Reserve under and Indian Act

Issue: Whether the entitlement to an unemployment insurance cheque, is a right

on the reserve, or is it a right that relates to someting that is situated off the

Conflicts rule: Entitlement to chq equivalent to entitlement to salary or debt

Location of the debt/ppty is at the residence of the debtor (person paying).
(Rationale is that it is here that the debt may normally be enforced)
Problem: The chq came from the Federal Crown (Ministry of Employment), so if
apply conflicts rules analogy (of debtor paying salary) in interpreting the Indian
Act, location is not on the Reserve no immunity under s8 of Indian Act

Q for Ct was whether they were to apply the conflicts rule to this case
- Cautionary word to tell us that the Ct today may not always be willing to take
advantage of set COL rules, when in a different context.
- Is reasonable for the general purposes of conflicts of laws, however had to
enquire as to the utility for the purposes underlying the exemption from
taxation in the Indian Act
- Ct also said were dealing with a different context which will nec bring about
diff policy considerations that dont come up with debtors or even employers.
Should not be bound by this.
- If use too widely, may have consequence that have to use this in a set way
(cant change the conflict rule for fear of upsetting other areas of law)
conflict law will be locked in

Comment by Prof Howell: One needs to look at sitn which is illustrated in

Churchill and Williams.
- Churchill was also very focussed on location of rights (have to look at COL
rules in this case).
- Williams was a little more removed from the regular conflicts situation

CASE 3: Morguard Investments Ltd v De Savoye (1990)

SC employed federalism principles to create new rule for recognition and

enforcement of judgments interprovincially. The rule was expressly stated to be
a CL rule as the case was not argued in constitutional terms, but the nature of the
discussion was such that it provoked speculation as to its const status.

Concerns the recognition to be given by courts in one province to a judgment of
courts in another province, in a personal action brought to the latter province at a
time when the D did not live there.

Morguard Investments was mortgagee of lands in Alberta. Appellant who was a

resident of Alberta was the mortgagor, and subseqently moved to BC.
Mortgages fell into default and Morguard brought actions in Alberta. Appellant
took no steps to appear or defend the action. Mortgaged properties were sold but
werent enough to cover the full amount.

Issue: Could judgment of Cts in Alberta be enforced against the appellant in BC?
- Biggest downfall in the Churchill - to what extent were they talking ET?
- How far should the principle in Morguard be applied in a truly intl situation?
Courts Analysis (La Forest J):

Examines history of conflicts in Canada noting CL strong territorial approach to

recognition and enforcement of foreign judgments
Sovereign states have exclusive jurisdiction in their own territory
States law has no binding effect outside its jurisdiction

Develops theories that depart from the territorial approach:

- Modern states cannot live in splendid isolation and do give effect to
judgments given in other countries.
- Idea of politeness and respect of one states judgment process.
- Says this is an old way of viewing comity. He says what has to be seen is
convenience, self-interest, necessity a common interest impels states to
The rules of PIL are grounded in the need to facilitate the flow of wealth,
skills and ppl across state lines in a fair and orderly manner, in the
recognition that the world is made of different global borders.
- Suggests traditional Eng approach was an exaggerated concern about
perceived poor quality of justice served outside of Britain
- Talks about new world order and looks at the EU and US who both have more
generous rules.

Interprovincial matters
- Obvious intention of the Const is to create a single country one of the
central features of the Const Act 1867 was the creation of a common market.
Promotion of mobliity, common citizenship, social and economic stabilty.
i.e. Need for cooperation between provincial courts in terms of enforcement of
Various const and sub-const arrangements and practices make
unnecessary a full faith and credit clause that is used in US and Aust where
each state will give full faith and credit to the judgment of another:
1) Judges are federally appointed and federally paid. Therefore is little risk
that one judge would be more qualified than another (quality and
consistency of judgments)
2) SCC as final court controls all provinces within their respective units
3) Canadian lawyers all adhere to the same code of ethics
4) Proliferation of interprovincial law firms
Morguard corrected this posn (wasnt inherent until then)

Speculation by La Forest that there is legislative provincial power under s 91(2)

the POGG clause which gives federal Parl powers to deal with interprovincial
Ability for federal legislative intervention to deal with this Q of conflicts
issues between the provinces of Canada.
The rules of comity or PIL as they apply between the provinces must be
shaped to conform to the federal structure of the Const.

Where other areas of law are looked at, in particular a case where there is an
injunction to move assets to another province to avoid jurisdiction, rules should
recognise that they are entities within a whole and functions should not be
defeated by the fact that they can turn to another jurisdiction.

A person should not be allowed to avoid legal obligations arising in one province
simply by moving to another province.

Enforcement of Judgments: Real and Substantial Connection Test

La Forest says there some limitations and qualifies full faith and credit
- Has to be weighed against fairness to the defendant
- Courts in one province should give full faith and credit to judgments given by
a Ct in another province so long as that Ct has properly or appropriately
exercised jurisdiction in the action.
- Meet demands of order and fairness to recognise a judgment given in a
jurisdiction that had the greatest or at least significant contacts with the
subject-matter of the action
- Proceedings may have been brought where has no relation to the situation at
hand and here a qualificatio has to be made

The jurisdiction must have some significant context or relevance to the

dispute, and if it doesnt then the jurisdiction hasnt been properly taken
therefore enforcement doesnt need to be made

Ct also takes note of the fair process but every province has a fair process
(only look at this if an international case)

Whether there is a real and substantial connection between the petitioner and
the country/territory exercising jurisdiction

Applying the RSC test to this case:

- Reasonable place for the action for the deficiencies to take place in Alberta.
Land in Alberta = very substantial connection, lived in Alberta and was in
business in Alberta
- RSC connection between the damages suffered and the juridiction
- Proper that Alberta Ct had jurisdiction, enforcement of judgment in BC is reqd

Forum shopping is prevented against by this test.

Constitutional element

Even if civil procedure rules give jurisdiction, if rules are worded too broadly and
can be read where there is no RSC, then will not be allowed constitutionally.

E.g. BC Rules of Court 13(1): Specific circumstances for servicing documents.

Rule 13(3): leave to service outside jurisdiction

Applying Morguard to these principles, if Ct exercises discretion to give ex-

service jurisdiction, then this exercise of discretion is then ultra vires (as there
is no real or substantial connection).

In the case of service outside of the issuing province, service ex juris must
measure up to consitutional rules (ie RSC).

Recent Development: Beals v Saldanha [2003]

- 6/3 majority, dissent very strong
- Issue: Whether RSC test for enforcing interprocincial judgments should be
extended to foreign judgments (Florida judgment to be enforced in Ontario)
- Held: Judgment of Florida court should be enforced RSC between the
Florida jurisdiction, the subject matter of the action and the defendants
- Dissent: Need to modify RSC test significantly when applied to judgments
originating outside Canadian federation.
- Provincial legislature and federal initiative could change what the
majority was stipulating in relation to a foreign judgment (POGG)
- Uncertainty after Morguard: did La Forest really mean it to be constitutional?
- Historically, regard whole area as judge-made CL, in Beals it wasnt decided
constitutionally, but with Hunt it became clear it was constitutional
- Legislative rules, like in Churchill and Hunt, didnt meet constitutional
requirement (involved legislation for ultra vires action)

Other discretionary techniques used by Cts to refuse granting jurisdiction to Ps

whose contact with the jurisdiction is tenuous:
- forum non conveniens (test in conflicts thats been around for years vs. RSC)
- power of Ct to prevent an abuse of its process


1) Determine RSC for jurisdiction
2) Second test of jurisdiction is the forum conveniens test (we have
jurisdiction, ought we do so in this particular case)
If there is a better forum elsewhere, what weight do you give to the discretionary
jurisdiction? It seems after Beals, that there should not be much. Last
paragraph: There maybe other disc techniques of refusing to grant jurisdiction
Dealt with incidentally. Beals doesnt deal with it either.
What if foreign ct had RSC but another ct in another juris had a better RSC?
Or was more appropriate in terms of forum conveniens?
How much is this to be taken into account?

- Some say RSC is all consuming: if have RSC then will be the most
appropriate court
- In Beals the Ct says RSC has to be SUBSTANTIAL (emphasis on this fact,
ie it encompasses forum conveniens)
- Historically, FC gives more weight to the convenience of the parties and is
focussed on particulars of case

Possibility raised in Mortguard La Forest POGG could cover this where fed
legislation and inter-prov and arguably intl context
- Applying reg constitutional principle: supremacy to the FEDERAL law

Another possibility left open is the due process s 7 of charter effect on

jurisdiction. No development of this. In US const, the due process clause is
used in such a way that need overriding test of connection to be met.

Suggests application of const will extend from inter-prov to the intl context
CASE 4: Hunt v T&N Plc (1993)

Issue: Whether the provisions of a Quebec Act, a blocking statute provide a

lawful excuse for Quebec Ds not to comply with a demand for discovery of
documents (as reqd by the BC Rules of Court).
i.e. A piece of provincial legn that deals with process of inter-provincial legn.
The blocking statute would prohibit the removal from province of docs of
business concerns in Quebec have a lawful excuse for not presenting docs.

Effect: Cant sue outside of Quebec unless you proceed without the right of
discovery (which is impossible!). Quebec statute is an unconsitutional in the way
it impedes litigation. Does not respect principles of order and fairness as
reqd by Morguard

Applying the Churchill Falls principle we have instance UV legn OR as

formulated in this case, piece which is inapplicable to interprovincial proceedings

HELD: Quebec Act was constitutionally inapplicable to other provinces

- Interesting they didnt say it was UV
- In CF the attempt to legislate unconstitutionally was UV

Position after Beals

- Case left open whether Quebec Act was applicable to international litigation
- Hunt looks at the extent to which a province may give ET effect to legislation
- Provincial legn probably not applicable internationally after Beals
- Cant facilitate litigation in a jurisdiction that is foreign but still has RSC
This sort of blocking statute might not be permissible HOWEVER have to
remember that in Beals, Ct did say the province could legislate
- Beals doesnt seem to be constitutionally directed so on that score, could
say this Q Statute could still stand

Reasoning in Hunt
- Raises issues as to whether doctrine propounded in Morguard is of const
nature and whether it applies to the case
- Morguard stated need for a greater degree of recognition and enforcement of
judgments given in other provinces. But a court must have reasonable
grounds for assuming jurisdiction. There must be a RSC to the forum that
assumed jurisdiction and gave judgment
- The discretion not to exercise jurisdiction must ultimately be guided by the
requirements of order and fairness, not a mechanical counting of contacts
or connections
- Fed Parl has power to legislate respecting the recognition and enforcement of
judgments. This is related to the powers contained in the POGG clause
- Subject to these overriding powers, provinces can legislate, subject to:
- principles in Morguard and
- the demands of territoriality as expounded in Churchill Falls
CASE 6: Tolofson v Jensen (1994)

Choice of law case: lex loci delicti (law of the place of the wrong)

English position (Phillips v Eyre, applied in Chaplain v Boys)

Rule of double actionability
- In order to be actionable it has to be a wrong in the place it occurred and it
has to be a wrong in the place where the forum was brought
- Tolofson got rid of this in Canada, bringing it more in line with US and
Australian view

When dealing with a wrong (esp a tort), you apply lex loci delicti
- In so far as interprovincial sitns, the maj said that it is an absolute rule
- In so doing, Ct emphasises principles from Mortguard therefore, may well
have some const dimension.
- Argued Tolofson wasnt stipulating the rule constitutionally, leaving it open for
a province to change the legislation
- Amendment depends on interpretation of the ruling of the case as either:
- a rule of conflicts, which would bind all judges
- OR viewed with this const dimension which would prevent any legislative
- Equivocal: La Forest states the approach suggested also has the advantage
of unquestionable conformity with the Constitution. Hasnt really been
demanded or decided either way concretely and is left for further comment
- Constitutional problems referred to as a backdrop
- Q lies in the fact whether provincially they can change the rule in Tolofson
element of uncertainty
- La Forest saying suggestion conforms with consitutionally, but the court has
only discussed the constitutionality as a backdrop


Morguard (1990)
- Is a question mark
- RSC requirement in terms of enforcement interprovincially

Hunt (1993):
- Provincial legn constitutionally inapplicable in the interprovincial context
- Didnt extend to the international context
- Internationally a province can legislate, whereas in a interprovincial case they
- Cant pass legn that would impinge upon the rule stipulated in the Morguard
case interprovincially a judgment of a province is enforceable in another
province if there is a RSC.
- After Hunt more considerations have to be made as to order and fairness


Beals v Saldanha (2003)

- Uncertainty as to how far these series of cases, esp Mortguard, were to apply
to cases of intl context If they were to apply, what was the const dimension
- On Dec 18, the majority (Major J) RSC and the principles of Mortguard are to
apply to truly intl context
- Enforcement of Florida, Miami case in Ontario
- Dissenting judge: 3 of them, divided up into Binney, Ecabuchi no problem
with applying RSC test internationally, BUT defence of failure to meet
principle of natural justice and LeBel
- LeBel J provided an interesting perspective said if we are to liberalise the
rules of enforcement by extending Mortguard to cover truly intl sitns, then we
must firstly modify the RSC test to give due weight to protection of Canadian
defendents specify the restrictions in a foreign context in addition, need to
build up defences natural justice etc.
- Need a more real RSC. More careful and stronger defences to that. Majority
didnt change any of the defences
- Should we legislatively build up the defences (2 ties interprovincial and intl)
- J Lebel thought this was essential
- Legislatures may deal with this if they wish

RSC requirement (same as Morguard) but applied to an international situation

- Majority expressly acknowledged that provincial legislatures and even federal
parliament (s91 POGG) can change
i.e. consistent with Hunt which was only speaking of interprovincial situation and
didnt comment on applicability to international situations
Effect of Beals (2 options):
1) Common Law re conflicts and enforcement of judgments = RSC i.e. will
bind all judges even in an international context
2) Moving away from CL, into statute not being constitutionally imposed, the
provincial legislatures can say we dont want this CL to operate in this context
(interprovincially between themselves). To bind the legislature you have to
move to a consitutional dimension

Tolofson (1994)
- Not a constitutional stipulation
- Acknowledges Cts below the SC have not raised constitutional matter, and is
only a backdrop to other issues
- Leaves open for provincial legislature a choice of law
- Judges however, are bound to this precedent in terms of COL rules
- i.e. nothing to prevent legislature enacting a statute that has choice of law
provision in opposition to the decision made in Tolofson

SC has commented in Beals, Morguard and Hunt that there is a role

interprovincially and likely internationally for provincial govt to use s91
POGG to legislate on a federal basis. If federal Parl did this, then have
provincial and federal legislature conflicting and under regular const law
theory, federal legislature would be supreme.

Potential use of Charter s7 has been left open in Morguard and Beals (only
that it would not be a shield to protect from enforcement of financial judgment
of a foreign jurisdiction)

Relationship between RS and forum non conveniens, is one that awaits

further clarification (will come back to this)

All these judgments emphasise comity and as such, the underlying theory in
COL in Canada
[CHAPTER 4 pages 57-118]

2 broad categories of defences:

1) Public policy dimensions

- Relates to nature of laws that are to be enforced
- Penal laws, revenue laws, laws that are a matter of public policy

In Beals, LeBel wanted an overall category to deal with matters that didnt fall
within specified categories.

2) Matters concerning the way in which it was handled:

- E.g. justice & fraud

Extrinsic and intrinsic fraud

- To simply say that if there was fraud that it went to jurisdiction, this can always
be raised historically called Extrinsic fraud
- If it is fraud that goes to the merits (intrinsic fraud), prima facie dont allow the
fraud to be raised in enforcement proceedings
- The maj in Beals said that merits of case can only be challenged by fraud
that relates to new matters that were not subject to prior adjudication. Must
be facts not previously known and couldnt have been exercised by process
of due diligence

CASE 1: USA v Ivey

Facts: Concerned an environmental clean-up, tactic that govts used in many

parts of world of saying to persons who engage in pollution will have to clean it
up (or they will clean it and take civil proceedings to recover the costs)
- Ontario company left mess in Michigan
- Enforcement of proceedings in Michigan against the Canadian Defendants
- Judgment was brought to Ontario to be enforced
- Would the judgment be enforced OR would it not be enforced because of the
defences raised by the defendants?
- On the jurisdiction issue, Michigan had a RSC to support the exercise of
personal jurisdiction over the Ontario defendants (Morguard)


1) Penal law
- Relates to sitns where a state is legislating in a way that would seek to bind
extra-territorial persons if it were applied extraterriorially
ie. to extend jurisdiction beyond borders
- Would this be a penal law or not, given that one state will not enforce another
states penal laws
- Found the measure of recovery was the same amt expended in the clean-up
- In characterising the environmental statute, wouldnt categorise as penal law
only used to reimburse and compensate for what the co. had an obligation
to do (clean up), not a punishment or directly designed as a deterrent

2) Revenue law
- Ct again said it wasnt hadnt precisely been defined, but was not made to
raise money for govt, was for the reimbursement

3) Other Public law

- Murky area, est in some measure in certain jurisdictions but hasnt got full
recogition (not mentioned specifically in the Beals case)

Oritz case: NZ AG seeking to enforce in UK a statute that was designed to

prevent cultural items from being taken. UK did not have to enforce the judgment
- Lord Denning in Eng CA considered this sort of legislation to recover ppty ET
by extending NZ political public policy ETly outside of their jurisdiction
- Like Churchill falls type of case, is ultra vires
- Lord Ackner said no residual category HOL decided on other grounds and
didnt comment on Dennings formulation
- Not enforced as seen as an attempt by a foreign state to assert its
sovereignty within the territory of another state
- Saying it is a novel scenario seen outside of normal ppty law situation
- If it was a chattel based on normal ppty law, would be based on normal ppty
law principles. Said it was a declaration by NZ govt of their policy through
their legislation
- Didnt want to enforce the public law of another jurisdiction

Heinemann Publishers Spycatcher case: Australian case argued as military

and security breach (larger public interest). Not enforceable as private interest of
a foreign state (govt interest). If it was a case of trade secret then it would have
been enforced.

Q in Ivey: Extend the public law defence OR treat it as enforceable?

- Prima facie would say its not traditional, a new method of doing things and
hence should not be enforced.
HELD: Enforceable because:
1) It didnt deprive persons of ppty held (as in Oritz), was simply a restitution for
2) Was not a national security issue (envtl issue not like in Spycatcher)
- Bolstered this by finding that the type of law that was before it was the same
type of law that Ontario and other parts of Canada had.
- Ct looked at comity and reciprocity: was in interest of governance that this
type of law should be enforced. US courts were enforcing same cases when
envtl damage was occurring outside of their borders
Not an area where there is general consensus by govts of all countries.
- Looking at defences in recognition and enforcement of judgments
- Also broader Qs of where public policy will come into play in terms of foreign

First broad grouping of defences:

1) Penal laws
2) Revenue laws
3) General public policy
- [other public laws existance is somewhat suspect]
- [Dissent of Le Bel (minority) in Beals: Residue cases that dont fit into the
above categories, where the conscience of Canadians would be shocked if
were to be enforced]

Looking at the nature of law in foreign jurisdiction

Second broad grouping of defences:

1) Natural justice
2) Fraud
- instrinsic fraud:goes to merits of case, and cant be raised in the enforcement
- extrinsic fraud: goes to the jurisdiction of the case

Majority accepted fraud as to jurisdiction as opposed to as to merits (ignoring the

classification as intrinsic & extrinsic)

- Beals case didnt refer to other public laws

- Spycatcher case looked at other public laws had no intention of enforcing
other countrys public laws
- Oritz case enforcing another countrys public law

Why should we have this other category, shouldnt it be wrapped into public

- NJ head relates to procedural issues not prepared to extend the principle
to matters that had occurred prior to the court (earlier proceeding in nuisance)
- Ct said this would not be looked at in terms of NJ offence. Indications were
that the US court had looked at this issue, and at best might be categorised
as US court making an error but Ct said error of law was not a ground for
refusal of enforcement
- NJ only concerns procedure before and during the foreign courts judgment,
not matters that preceded this judgment
CASE 2: Beals (2003)

1) Majority were very similar in terms of approach to NJ defence relates to

procedure, procedural due process, doesnt concern substance or merits of
the claim, but in so far as that it is relevant as to procedure
The foreign courts procedure must meet standard that is in Canada
- Burden of proof lies on the defendant
- Maj also said there was a heightened issue/duty on court to be alert to any
failure of NJ when the Ct who gave the judgment is a truly foreign court.
Enforcing court is required to think about the NJ issue.
- It is easier to evaluate this when dealing with ct from a similar system (Florida
was similar, but not idential system)
- After Ivey and Beal the NJ situation is limited to was the procedure fair
was D informed, did they know of the case that had to be met and were they
given a fair opportunity to do so?
- Ct Maj gave weight fact that D acted on negligent legal advice. Just
recently SC said Morguard applied in intl situations. Almost unfair to say they
were negligent, as it has been such a uncertain area of law very much
caught in the middle of a changing system.

2) Dissenting judges (Binney and Iacobucci) would have applied the NJ

defence more broadly. In their view, the party was not properly informed
(statement of claim procedures) and saw the sitn as a culmination of events
that in totality resulted in an unfair procedure.

3) Le Bel took the most expansive posn in reln to NJ: makes a policy stmt to say
that if you are going to expand or liberalise on the jurisdiction side (from
interprovincial to international), then you need to also expand the defences or
exceptions category liberalising the jurisdictional side while still keeping
narrow defence categories on the other side would not be coherent
- In particular Le Bel thought the RSC needed to be clarified and more detailed
info as to the jeopardy of the D had to be given when proceeding in a foreign
court (but this was rejected by the maj decision)
- Put the burden on the P on the foreign action to est the LS that it orginated
from is a fair one (again rejected by maj burden to show it was unfair)

- Firmly established area of law
- Acknowledged by the Maj in Beals that the foreign law had to be contrary to
Canadian concept of justice and morality
- Mere difference of law is not enough, has to go to core of society
- In Ivey said it was something of morality, of fundamental values
US vs Canada: Jury awards
- In Canada not used that much in civil proceedings (only in defamation and
other limited cases). The right to jury is enshrined in US const law and juries
are largely uncontrolled (there is a process to appeal)
When one looks at public policy, Beals made 2 comments:
1) Quantum itself, is not a bar to enforcement
2) BUT overlapping btwn PP and NJ, if quantum seems to be arbitrarily imposed
or arbitrary in quantum, then it may succeed as a claim to defence

Le Bel was also along this line: not quantum per say but an absence between the
amount given or the harm caused, or conduct deserving punishment and what
was given

Policy/process mix: If you are going to do business in the US, you should be
aware under the system that huge damages can be awarded (different than in
Canada) play by the rules if you want to operate there.

National or International Standard

Debate over extent to which, when looking at public policy, we should take into
account intl stds OR should there be a focus on national standards
e.g. Civil Code of Quebec standard is: manifestly inconsistent with public order
as understood in international relns

CASE 2: Kuwait Airlines Corp v Iraqi Airways Co [2002]

- Iraqis seized Kuwaiti airplanes and flew them back to Bhagdad

- Brought proceedings in UK against Iraq carrier
- A number of issues:
- Property rule of lex situs, law of the country where the movable was
situated at the time of the transfer - was situated in Iraqi apply Iraq law
- Double actionability rule was in force in UK needed to be conversion in
UK and Iraq, which there wasnt
- Focussed on upon obligation of UK court to enforce Iraq law as stated in
IRCs resolution
- Issue: Whether they could say they disregarded the IRCs resolution,
even if it was lawful decision in Iraq, due to PP of Eng
- Took account of intl law and resolutions of the Sec Council, as well as
customary intl law (under which Iraqs actions were illegal)
- Could extend PP to take the international law regime into account
- HELD: The resolution wouldnt be given account to
- Reasoning: Very clear international standard - wrongful invasion, contrary to
many intl conventions. As a member of UN, Britain was bound by obligations
to the UN Charter which was internalised in their PP.
- Had to move with the times thinking back to Ivey, other public laws is a
feature of modern public society
- Intl law can be looked for PP at BUT only if it is part of the PP in that country
i.e. it incorporates these dimensions of the intl law in that domestic regime
External criteria can be utilised as long as it can be demonstrated that
these elements are part of the forums jurisdictional policy of the law
Abstract or Relative Standard?
Liberalisation of recognition for enforcement of foreign judgments, should mean
more concern with the public policy reasonings (LeBel in Beals)

CASE 3: Society of Lloyds case (p74)

Lloyds has unlimited liability and gets contributions from Names who guarantee
to underwrite. Were large claims due to envrionmental asbestos cases and
Lloyds were forced to call upon contributors for more money. Eng could make
new rules that would bind contributors (all around the world) to the Society the
contributors knew all this upfront K stated would be Eng jurisdiction.
Enforcement was to be made in Ontario. But was it contrary to Ontario law? Or
unenforceable as contributors not given adequate info.

- Lloyds recruits contributors from around the world

- Forum and choice-of-jurisdiction in all Ks was the UK.
- Ks are all entered into in England. Contributors are required to travel to the
UK to execute the docs in the UK, BUT the actual solicitation of the
contributors takes place in other parts of the world.
- Ontario contributors claimed enforcement would be to public policy of Ontario
as they had not filed a prospectus as reqd by Ontario Securities Act
(COMPARE with Avenue Properties case where prospectus requirements
not met, and hence not enforced in BC)

Look at procedural issue in earlier proceedings:

- Ontario had to rule on validity of the solicitation. They stayed the Ontario
proceedings on basis of the choice of jurisdiction clause in the K. Eng found
to be forum non conveniens
- Matter went to be heard by Eng courts according to Eng law, then back to
Ontario for enforcement.
- Hard to say that it could not be enforced now, since Ct could have said it
earlier instead of staying the proceedings.

Distinction btwn mere difference & something much more fundamental

- A mere difference of law is of no effect. Must be fundamentally opposed to
the policy of the enforcing juris, for the law to be not enforced

Regency case: Leading case in Ontario on meaning of PP

- Gambling on credit in New Jersey. Enforcement to pay gambling debt. In
Ontario, was contrary to Gaming Act. Q as to Ontario enforcement of K made
in NJ relating to gambling in NJ where it was legal.
- Preferred a narrow construction of PP
- Split court in Ontario potential morality issues.
- Maj took posn that if it was legal in New Jersey, it would not be offensive
to Canadians.
HELD Judgment was enforceable - Reasoning:
- Even the most fundamental forum policy (protecting citizens from solicitation
without investment information) must give way to overriding private and public
interests (protection of the intl insurance mkt)
Tolofson: Forest placed order above fairness as guiding principles of PIL
- Although it was against PP of Ontario, and even though it was fundamental
different, was distinguished bc of the nature of lawyers
- Prospectus requirements are there to protect general members of the public,
not really the sort of people who are named contributors to Lloyds (very well
off, likely to be a very well-informed person).
- Contributors are likely to have access to good accounting and legal advice,
know what is going wrong and is able to assess the risks adequately

An abstract or relative standard

- Look at policy in the context of the particular case
- Can also add the connection with the jurisdiction of judgment
- Here there was a substantial connection with England - had to travel to Eng
to execute K and had a clause stating the jurisdiction to be UK

When Forum Public Policy displaces normally applicable Lex Causae

1) Enforcing forum may have a mandatory rule, so despite any choice of law
rules, a particular enforcing forum may stipulate that legn may apply to all Ks
or proceedings as a prereq to enforcement
e.g. Applies to all shipments in a Canadian port

Q: Is this constitutional? (taking into consideration Morguard and Hunt).

- Hunt said btwn provinces, Quebec rules couldnt be enforced on other
provinces. But could be possible in foreign case.
- In Beals, Ct was saying that it is subject to any federal laws

2) Mandatory rule which states that a specific foreign law, which bears a
special connection has to apply

Public policy operates positively so as to support the recognition or application of

an otherwise inapplicable foreign law positive invocation of puclic policy

Gillespie Management Corp v Terrace Properties

According to Washington law, non-resident broker had to have a licence to act as
real estate broker. K called for perfomance of acts in Washington - law of the
place at which the obligation is to be performed claim unenforceable
Southin J had different reasoning:
- Said the ct should give effect to a foreign public policy analogous to own
domestic policy
Public Policy in an Interprovincial Context

Limited after SC in Hunt recognised consitutionally mandated requirement to

give full faith and credit judgments have to be enforced, as long as there is a
real and subtantial connection

But if it is in conflict with own strong policies, and the relevant law is within the
constitutional auth of the sister province, PP exception can be invoked to exclude
the claims or defences
- But situation rarely arises, most states have similar moral foundations


- Extension of foreign sovereignty: no other country has the right to execute the
penal laws of another.
- Some states claim a territorial auth to regulate the same events or activities,
as in the case of transnational crimes conflicts criminal jurisdiction
- Canadian Criminal Code: Cts have auth over any crime that bears a RSC to
Canada, whether or not territorial jurisdiction is also available in another state.
(Similar to Morguard test)

Characterisation & Enforcement Aspects

Ivey: View of punishing the party responsible (not restituionary). The fine went to
the state, ie penal, but state was getting money as reimbursement of the amount
they had spent

Huntington v Attrill [1893] - Definition of penal law

- Concerned a NY statute: certificate or report made by offices of corporation
that is false in any material representation
- Huntington brought an action on the NY judgment in the Ontario HC where
Attril resided Attril argued was based on foreign penal law
- In order to come within the scope of the rule, the proceeding must be in
the nature of a suit in favour of the state whose law has been infringed.
(Didnt matter in Ivey as it was restitutory)
- Here, the money didnt go to the state was distinguished as it went to the
individual creditors (provisions protective and remedial in nature). Constituted
an implied term of very K between corp an its creditors
- In Ivey, it was the state seeking recovery, and in this sense one of the factors
from Huntington was modified in Ivey
Whether it is penal in nature: Is the wrong sought to be addressed is a
wrong to the public or to the individual?

Whether it is a penal law in an international sense: Is its purpose is to

punish an offence against the public justice of the state, or to afford a
private remedy to a person injured by the wrongful act?
Interprovincial Aspect
Provinces have the const auth to impose penalities under refulatory legn
suppletive to provincial heads of jurisdiction
US posn: As with PP exception, distinguish btwn enforcing judgments of sister-
state that establish a penal obligation (entitled to full faith and credit) cf penal
claims not yet deliberated on (up to discretion of each state).

4) TAX

- Ultimate eg of public law state asserting its public policy tax policy is
reflective of social and econ policy w/in a particular state
- Process of change going on in this context: Many ppl today who would say
that the taxing juris is so relevant to provn of services in the community that
one should now begin to enforce taxation statutes of foreign juris (essential to
the working of every community).
- Provn of services is for the society in general a more universal approach
like environmental concerns
General rule: No country ever takes notice the the revenue laws of another

Ontario case: Van der Mark

- Canadian bank HO in Toronto, had deposits from D (a Canadian citizen)
- Bank office in NY and D was somehow linked with parents activities in NY
- US auths said taxes were owed served Toronto Dominion office in Ontario
had to take Ds money from Canadian office for US tax purposes, otherwise
the bank would be liable for 200% of the tax amount
- To allow bank to freeze the assets and deposits would be indirectly enforcing
tax statute of the US. US would not be allowed to come in and enforce tax
statute directly couldnt indirectly
- Unfortunate that the bank was in this posn but part of the cost of doing
business in another coy.

Indirect enforcement
Stringham v Dubois
- Deceased was resident and domicile in Arizona
- Strong finding that she was a resident and domicile (strong desire to live in
Arizona) real and substantial connection to Arizona
- Had an US executor, US levies estate duties
- Left an Alberta farm to her niece, total value $9.4m
- Executor was apportioning US state tax and wanted to take tax - $149,000
apportioned contribution to state tax
- HELD: Not allowed, would be indirect enforcement of US tax
- Not distinguished bc it was a piece of land in Alberta, was a matter of policy.
- Strong argument for enforcement: becomes a double windfall for niece, and
other beneficiaries/trustee are burdened with more of the share of the tax
- Tax was estate duty of a person domiciled in Arizona. Alberta farm was tax
free from US state tax

Re Sefel Geophysical Ltd [1989]

- Looks at Q of bankruptcy: current comity principles suggest that some foreign
tax claims should be recognised in a Canadian liquidation setting
- Whether the foreign coy should recover in the bankcruptcy vs whether they
should get priority in the bankruptcy (Revenue Canada gets priority)
- Even if a foreign sovereign could claim a tax in bankruptcy, some priority was
given to US tax but this was a special case in reln to concerted action that
had preserved US assets
- Move to liberalise the exception to say that in a bankruptcy perhaps there
should be some sharing or participation by a foreign sovereign
- Bankrupcy exception: Look more generally and say that if the Q of tax that
comes up is a relatively incidental Q focussed on the particular parties, cf an
assertion of tax for purposes of foreign sovereign one looks at the primary
objective and find some sort of distinction
- If the US were to say that any US citizen is reqd to pay state duty on any ppty
transaction anywhere in the world, incl the sale of Canadian ppty, and then
the claim is brought from US authorities in Canada, this maybe a sitn which is
more closely related to the assertion of other public law or territory. But still up
to Canada auth to enforce this
Question: Is tax an assertion extra-territorially of a foreign sovereign, or is
it merely an incidental effect of an activity

Role of the exec (cf judiciary)

- Ability to enter into tax treaties solution
- Enables coys to be selected, govts to select each other, govts to reach
agreements as to circumstances or type of taxes that would be in force
- Relieves the Cts of the resp of having to raise embarrassing questions that
might suggest the tax policy is inappropriate in terms of policy and hence
would not be enforced
- Better not to enforce any tax in the absence of a tax treaty, than have a
Ct make a judgment as to what should be done
- Some tax treaties are designed to prevent double taxation or simply aimed at
taxing authorities exchanging info about tax payers etc.


(a) LeBel: expand your enforcement, but also more stringent in terms of defences


(b) Should we not challenge the defences we have now? (Ivey case, tax)
Chapter 5

- A preliminary area to be looked at to answer matters such as those

concerning matrimonial ppty or capacity to make a will
- Theory that everyone should have a place where they are subject to law
of that jurisdiction (a personal law)
- Domicile is a common law devt (Anglo-American) cf Civilians have been more
foussed on nationality
- Determination by a state as to who are its subjects
- A lot of domicile relates very much to the INTENTION of the person whether
intent was indefinite or permanent (subjective)
- Domicile of CL brings flexibility, a greater element of uncertainty, takes
account more of the mobility between coys and if are applying rules in
federation takes account of modern immigration
- Can produce some conflicts in immigration, in the case of some coys, if you
go back to that coy as children of citizens, they will also regard you as citizens
when you go there.

There is a move away from domicile but not to nationality it tends to

- Trend has been picked up by both civil and CL systems
- Habitual residents, requires only a RSC
- From Civil perspective: Need for greater objective determination,
deemphasise the subject of intent of the persons
- From CL perspective: more certainty perhaps
- Frequently the Q becomes absorbed into the substantive laws
- If asking a court to apply domicile, cant simply bring in a different test has
to be in statutory context
- Residency is not quite a replacement for domicile, is more like a spot test
(for tax, citizenship, pension purposes) it depends on the context of the
particular statute (e.g tax act)
- Domicile: looking for the most appropriate jurisdiction or the
jurisdiction that has the MOST substantial connection to this person [cf
Residency which just requires a substantial connection]


CASE 1: Gillespie V Grant (1992)

About capacity to make a testamentary position, and gave rise to a couple of

- Disposition of land - lex situs, law of the land
- Movables - domicile of those things
- Died in Vancouver, 2 children challenged validity of will alleging testamentary
incapacity and undue influence Alberta & BC both have jurisdiction, so
need to look at domicile
- Chose to reside in Vancouver, but kept penthouse in Calgary, lived in both
places where was the most appropriate place, forum conveniens?
- Had links to both cities

Test: Domicile is defined as a persons permanent home which requires the

act of residence and the intention to remain there permanently
- You cant have domicile in more than one place
- Have a concept of domicile of origin and a domicile of choice
- Was accepted that their DOO and previous DOC was Alberta but was it
superceded by DOC in BC?
HELD: Alberta was the appropriate forum
- Looking at factual context, current domicile at the RELEVANT TIME Ct said
it was the date of death (rule in terms of immovable ppty) most say when
the will is made
- Ordinarily medical treatment is focussed on your place of residency
- Also important are relationships, where business is carried out
- A difficult question to decide either way weighting of factors
- Evidence as to what he said to people

Interesting legal question if was brought before a BC court divergence of rules

questions of domcile should be determined lex fori ie rules of BC
- Domicile of choice, until abandoned factually (Abandonment rule)

CASE 2: Re Urquhart Estate (1990)

- Frequent flyer case: Left NZ bc of breakup of 1 st marriage (NB reason can be
important), travelled the seas, journalist in Vancouver, NZ embassy in States,
moved to Ottawa, son born, separated but went back and forwards from
Quebec (but were regional excursions and not relevant in this context)
- Although he lived and worked in a no. of places, he had a room where he
kept his things and was his mailing address
- Met Taylor and lived in her apartment in Ottawa, went to Washington with her
for work, he was transferred to Florida and died there

HELD: Domiciled in Ontario

Reasoning: Ct looked for some intent to stay permanently or indefinitely

1) Florida, Washington location was focussed on his job, NY wanted to
move there but had no green card extension
2) Quebec only recreational excursions
3) NZ domicile of origin, only visited, no intention of going back
4) Ontario maintenance of his room was a strong element in the chain of
evidence (otherwise would have been difficult)

Theory of Doctrine of Revival: Your domicile of origin acts like a reversion in

land law a place to go back to, always there when DOCs end and another
has not been acquired yet
- Eng courts have utilised this doctrine, rejected in US courts, little evidence of
what Canadian courts would do
- Law reform docs have recommended that they not be utilised, but rather the
LAST DOC should continue until a new DOC is acquired
- Flows from fact that you can only have ONE PLACE in terms of domicile
(place of greatest connection)

By what law is domicile determined?

- Ontario has 2 rules: Determined lex fori (Ontario) OR he had Ontario domicile
and it has to be shown it was abandoned (determined in the jurisdiction of
abandoned coy)
- Florida: law fori BUT have to prove domicile in order to have abandonment


- More of a SPOT TEST

- Residency avoids the domicile limitation of one place
- Problem with domicile: Determining when domicile of origin stops and
domicile of choice begins is difficult
- Revival of domicile: used in the UK, min auth in Canada, rejected in US
- Can have different levels and features of residency
- Comes from Hague Conference on Private Intl Law
- Residency is statutorily based e.g. terms adopted in domestic statutes
- Influence of the CONTEXT is GREATER cf domicile
- When dealing with parties, custody matters, look at habitual residency of
the child (protecting welfare of child) i.e. context specific
- Tourists and visitors are not residents, and after this it depends on context

Physical Presence and Residence

CASE 1: Re Koo [1993]

- Citizenship case: Need min of 3 yrs physical presence out of the last 4 yrs
- Changes made to the Citizenship Act but Parl still intended physical presence

Test: whether it can be said that Canada is the palce where the applicant
regularly, normally or customarily lives
- Court identifies a series of factors specfied in the determination:
[QUALITY of the connection with Canada]
- Is the connection more substantial than that exists in any other country?
- Did the person have roots here, visits or return?
HELD: Despite acquisition of formal indicia (drivers license etc) quality of
residence in Canada is NOT more substantial than the quality in HK
- Context, in this case was very important in reaching this conclusion

Ordinary and Habitual Residence

CASE 2: Adderson v Adderson (1987)

- Mat ppty case: divorce filed in Hawaii, but claim for ppty was filed in Alberta
- If dealing with immovable ppty, it is the place where the immovable ppty is

Last Joint Habitual Residence

- Came into Canadian law from Hague Conventions
- Looking at a present intention, unlike domicile where you dont have to be
focussed on subjective intention as to the future
- Habitual residency concentrates on quality cf quantity of time
- Habitual residence sits between domicile and mere residence
- Brings in some degree of permanence, i.e. a degree of settled purpose
(Some notion of continutity, not the test of permanancy or indefinite stay)
- Looked at electoral case: residency under these laws may not necessarily be
applied in MP law emphasises the importance of CONTEXT
(in that case was concerned voting)
- Federal legislation said it was where they were ordinarily residing
- Policy of ensuring that as many ppl as possible are able to vote
(participation contextual element)
HELD: Though the parties left Alberta hoping and intendning that they would
establish a joint habitual residence in Hawaii, they never did so

Domicile of Corporations

CASE 3: Natural Trust Co. Ltd v Ebro Irrigation and Power Co. Ltd

Place of incorporation, is where governance issues are to be determined

Also where the co. is carrying on business (distinguished from internal
governance issues) is a connecting factor when determining when an
extraprovincial corporation is subject to local regulation

Comparing habitually, ordinarily resident with domicile

- Palm tree approach: Certain features of residency e.g.quality, can be carried
from one context to another, but cases are more contextual than others
- Free from finding the once place can have many residences
- Free from subjective element
- Free fom being futuristic (permanancy)
Although domicile gives us the one place, there is still the problem of the
subjective, futuristic approach
Spring 2004


[CHAPTER 6: pages 177-194]

Remembering earlier principles esp in relation to:
- Consitutional validity on an inter-provincial basis
- Beals: Internationally, constitutional issues are not of concern
- depended on absence of provincial or federal legislation under s91
residual auth POGG
- consistent with Hunt (Quebec code was inapplicable, not ultra vires)

The chapter is clear that it is not dealing with jurisdiction in rem.

Have to be careful that it is LAND not just incidental to a contract involving land
- In administrative law, when dealing with a Q of breach of admin law, you will
be dealing with a governmental body
- Comity has said it will be left to the jurisdiction of that bodys country
- Seen as a sovereignty issue


Juris simpliciter
- The existence of jurisdiction
- Can the court take jurisdiction under:
- Provincial/rules
- Common law (RSC)
- Inter provincial/Constitutional element (RSC)

If there is jurisdiction:
1) Should jurisdiction be taken - principle of forum non-conveniens
(Anti-suit injunction)
2) Is the party a jurisdic entity


Incorporated entities
- Corporation sole Crown, Bishop
- Corporation company
- Unincorporated bodies/institutions Look to the members more individually
- Other jurisdictions have taken a broader meaning of legal personality for
juristic entities (can have a legal personality) Bumper case
CASE 1: Success Intl Inc v Environment Export Intl of Canada Inc (1995)

Defendant outside of the jurisdiction, made subject through service ex juris
- P (Success) NY co and D (EEI) Ontario co entered an Ag re: tire
manufacturing equip
- Success complained about perceived slowness on part of EEI in loading
equip into containers in Ontario
- K provn: All disputes to be resolved by private arvbitration cf resort to the
courts decision not honoured by the EEI
- Plaintiff took the arbitration to Ontario to be enforced

Issue: Ability of foreign corporations to resort to Ontario courts in circumstances

where their corporate status in Ontario is in doubt)
i.e. Could Success be a plaintiff in Ontario?
- As Success was carrying on business in Ontario and did not have a license
registration as reqd by the Ontario Act, it had no standing in any K made by it
1) Proceeding in respect of a K
- Court dismissed argument it was not enforcing K but an arbitration as a
technical and not relevant
2) Carrying on business in Ontario
- Court rejected argument that it was only a single commercial transaction
- Not looking at the number of Ks it had entered into in Ontario, they had set up
a joint enterprise with the defendant

In order to be a party as plaintiff (even though it was an incorporated party)
under provincial laws it had falied to meet the registration requirements
that was necessary for it to be a party.

Interprovincial case (cf international)

- Look at Hunt type of constitutional question - Is this type of statute
constitutional? (like the Quebec Business Act)
- May not be able to answer this Q as it is a developing area of law, but you
MUST show you are thinking of this possibility being raised
CASE 2: Bumper Development Corp Ltd case [1991]

Idol from a temple ends up in London where it is purchased by Bumper in good
faith. Temple and Govt of India says they want it back.
[Oritz case: NZ tried to enforce legislation attempt to extend policy ET]

1) Does the particular party have status or recognition as a legal person in the
country where it exists (jurisdic entity under the law of that country)
2) If have JE, would the forum accept that (an issue of comity)
What did the Hindu law say in regards to whether any of the claimants
preceeding on behalf of the temple have title superior to Bumper?

Defn of jurisdic entity:

A person, body of persons or object who or which is recognised by the law
concerned as being capable of enjoying legal possession of or title to an object
an of suing or being sued in respect thereof.

When one jurisdiction is applying the law of another jurisdiction, the court
itself cannot simply enforce that law. The foreign law is treated as a
question of fact which must be proved in evidence.

- Court can questions or raise issues with experts, cannot conduct and rely on
its own researches into foreign law
- In the absence of any contrary evidence, assumed same as English law
- If there is concliting evidence, Ct is bound to look at sources to decide

HELD: Under Hindu law the temple was a juristic entity and the third
claimant had the right to sue and be sued on behalf of the temple

Eng law would not usually recognise corporations as having legal personality.
BUT Eng Cts would recognise in this case according to principles of comity

Application to interprovincial cases

This principle has never been applied with such strictness in cases of
interprovinciality. Hunt suggests courts can rule over laws if applied strictly, it
would apply interprovincially

CASE 3: Re Indian Residential schools [2001]

- Evidence relied on by claiming Ct was a tape put out by the Catholic church
- Alberta court didnt rely on the church
- Doesnt mean they would rely on them

CASE 4: International Assn of Science & Tech for Devt v Hamza (1995)
- Case about societies under Swiss law
Overlap between jurisdiction (RSC) and forum non conveniens

- One question to keep in mind: Relationship between the 2

- Keep in mind benefit to plaintiff and defendant
- Emphasis on benefitting one or the other

Comparing Bumper (Indian Temple case) with Oritz

- The temple was able to recover whereas the NZ govt was not
- Different as approached under different categories of conflicts of law

Appear on the surface to be relatively similar, but there are differences:

1) Oritz case concerned AG cf Bumper case, temple applying as the owner
2) While both concerned historical artifacts, Oritz case was more established in
legislative policy while Bumper case is more in line with the ordinary chattel
type case

Key difference:
Public law (govt scheme to recover under public policy) vs Private law
(temples attempt to recover own goods)
- NZ govt presence moved it into an attempt to legislate extraterritorially

e.g. indigenous peoples
- Australian dissenting judge suggested the CL would recognise cultural
heritage and knowledge of a group
[CHAPTER 6: pages 194-268]


- Generally speaking a person physically present in the territory can come into
the jurisdiction
- But for cos must be incorporated company

CASE 1: Maharanee of Baroda v Wildenstein

- Looks at it from perspective of a defendant
- What does it mean by being in jurisdiction

Facts: Transaction dealing with artwork entered to in France, authentication

letter from London (but turned out to be a false letter). D was from France, writ
served when he went to UK for the races. D sought to have it set aside.

Issue: Was the D within the jurisdiction at the time of the service?
HELD: Even if D was fleetingly in UK it was allowable for a writ to be served
- Even as a temporary visitor you can be served
- Uncertainty: What are the boundaries of the fleeting visit?
- Truely transitory visit e.g. transitting through an airport
- If youve been through customs check, legally you are in the jurisdiction
- This is the type of area where this sort of question could arise


Definitional issue: Internet

When you have a website and are selling material outside of Canada, are you
carrying on business in Texas if:
a) Website is accessible from Texas
b) Have interactive conversation from Texas
c) Actually sell an item to someone form Texas
- US authorities said you would be subject to Texan jurisdiction for allbut then
realised that this was silly!
- Now just say if you have sold something into Texas, then they are subject
to Texan consumer protection laws (same in Manitoba)
- What is more difficult is being interactive because there is not sale, it will
come up as something like defamation
- HC of Australia enabled jurisdiction for one of its citizens defamation in New
Jersey Dow Jones argued it was uploaded in NJ, but HC said the impact
was in the state of Victoria, Australia have jurisdiction

(i) England
- Eng legislation let courts have ex juris powers to assume jurisdiction even
when the D could not be found in England and served there
- Subject to some limits - link between cause of action or parties and Eng


1) Establish there is a good arguable case/serious issue to be tried on the
2) Case has a connection as defined under Rules of Court
3) As a matter of discretion that it is forum conveniens

(ii) Canada
- Same position in BC and Ontario and Alberta
- Most provinces have used Eng rules AND Morguard case


- Imposed a constitutional standard on the assumption of jurisdiction
- A RSC between province and action is reqd by the constitution
- Therefore since Morguard, Q of RSC is usually asked twice once at the
jurisdiction simpliciter stage, and again at the discretionary stage of the


CASE 2: Teja v Rai (2002)

Difficulty in determining what is the constitutional barrier

How far does the RSC test take over from traditional common law tests?
i.e. Does the RSC test supplant or supplement the CL tests?

On the constitutional limitations, one has to make a distinction between interprov

and international: this case was international
- Principle of RSC subject to provincial legislation (same in Hunt, didnt say it
was ultra vires, it was just inapplicable)
- If prov rules have 13(1) or an order ex parte given under 13(3) that goes
beyond RS rule, then it would be brought back (i.e. only interprovincially)
- It may be a different situation internationally
- Not a significant issue in this case Washington State not Alberta dealt with

Facts of the case:

- Motor accident in Washington state, but all persons were BC residents
- Subsequently has gone to live in Washington, but was happy to receive
process and come under jurisdiction of BC
Maharanee stated that it is sufficient to constitute jurisdiction

Preston v Lucas (Copyright case)

- Claim that they had made Ewoks, made and copied in california i.e. US law
- Lucas travelled to Calgary and submitted to Canadian court jurisdiction
- Preston said hed posted it to California copying done in US
- Submitted because wouldnt have to be subject to jury?

Earlier Courts didnt have jurisdiction bc injuries occurred in Washington

Connecting factors Only thing missing was the tort occurred in Washington
state, but this was the RELEVANT factor
i.e. The RSC test supplanted the CL test

HELD: BC was the more appropriate forum (forum conveniens)

The judge was looking at convenience of parties, but needed to ensure that the
BC court did have jursdiction (simpliciter).

Reading down of Morguard

Morguard case was not intending to supplant the traditional CL rules (power over
the D, situs of the tort, place of performance of the K). It was to be read
alongside the traditional rules and factors SUPPLEMENTARY
- Indications that it is intended to be sole test, or other times some of the more
traditional grounds are still important
- Doesnt take over in one big test, the traditional factors that are still relevant
- Situs is important in determining forum, and presence of D is also an impt
- Describes RSC as being developed for non-traditional situations, to take
account of constitutional limits on a courts reach not a new test that
overrides traditional tests
- Is a new test that includes the traditional elements as relevant connecting
factors, incl the presence of the D within the territory

Subject to Muscutt, an interprovincial case

- RSC test is a shield against a jurisdiction that is extending its reach beyond a
point of appropriate connection.
- Protect defendant from being subject to jursidiction from a far away place
- Have to acknowledge that the Ps may miss out
- Why would D agree to submit to get out of Washington state? More
favourable heads of damage?
- Is Mortguard designed to benefit P by getting more favourable conditions, or
is it to protect Ds?
- How do you fit Mortguard in with the CL?

If it were interprovincial it would have more impact consitutional issue

CASE 3: Furlan V Shell Oil Co.
- Took the TJ approach to RSC
- Looks at rule 13(1) and states situations specified where one can process
order ex juris
RSC supplements provision of rule 13(1) was focussed on

CASE 4: Moran v Pyle National (Canada) Ltd (1973)

- Products liability case that was looking at L for a defective product that had
been manufactured in Ontario
- Fatally injured someone in Saskatchewan
- Under Sask rules, there was no automatic ability to serve ex juris, unless it
was committed within the province
Where was the situs of the tort?
1) Place where the act of manufacture occurred? Ontario
2) Where duty of care owed? beyond Ontario
3) Where the last act occurred i.e. damage Sask
(a very strong benefit for the plaintiff, would usually be in their place of
residence disadvantage for D)

HELD: Court came to conclusion that it doesnt want to have mechanical rules
- Any jurisdiction that is substantially affected, jurisdiction where it is
reasonably foreseeable as to who would be injured by person who uses
the product interest to protect people in its state
- Sask does have jurisdiction

CASE 5: Muscutt v Courcelles (2002)

- Muscutt bringing action in Ontario for damages for pain and suffering, loss of
income and business opportunity caused in accident that occurred in Alberta.
Ds were from Alberta, one moved to Ontario
- Ontario court rules s1702(h) provide for ex juris service for damage sustained
in Ontario

Issue: Was this damage sustained in Ontario?

Was this principle an inappropriate extension of their jurisdiction?
- Different to Moran, the ongoing suffering was taking place in Ontario not the
intial accident
- D argued action should be stayed for want of jurisdiction, since Ps pain and
suffering in Ontario did not amount to a RSC to do so would have an
inappropriate and disproprtionate effect on the defendant
Interpretation of Morguard

Personal subjection approach The parties should anticipate being hauled

into the forum of the jurisdiction? Alberta drivers anticipating that potential injured
were from Ontario and hence be taken to Ct there


Broader administration of justice approach Should be litigated where the

damage is suffered, as it is bearing the burden of having to care for the person.
In terms of mobility, it will bring a better and improved system of guaranteeing
justice (esp in terms of these torts cases)

BUT How do you deal with principle forum conveniens (Teja case took an
approach more inline with this principle)

When talking about admin of justice principle, should we be talking about it

interprov, or are/should we be talking about it internationally?
- What is the limitation in talking about constitution? Where should the
emphasis be? Fairness to D or to the P?

What is the status of the traditional CL rules?

- In Teja Ct indicated that RSC wasnt to supplant but to supplement
- BUT in Muscutt, Ontario Ct took a different approach RSC does supplant

3 Key Aspects of these cases

1) RSC test and relationship with traditional CL rules
2) Relationship between RSC test and forum non conveniens (Muscutt)
3) Scope of the Constitutional perspective (interprov and intl distinctions)

Muscutt covers all 3 key aspects

- Because of the consideration of forum non conveniens, can look at the
expansion of jurisdiction
- RSC can be seen as secondary test if it is a convenient place


1) Teja case
- Strong emphasis on traditional rules
- Discussion as to whether RSC test supplemented or supplanted the
traditional rules Ct gave narrow interpretation to RSC test
- More focussed on supplementary role a limitation in the sense that the
jurisdiction is limited by the RSC test
- Taking this approach, would favour a D on the receiving end of the action
- Arguably, closer to personal subjection approach cf admin of justice approach

2) Muscutt case
- Didnt take away from traditional grounds, but saw RSC as more supplanting
the traditional focus
- Would acknowledge that RSC is a limitation but utilised it in an expansive way
- Conclude that it would benefit the plaintiff (continuing harm was a RSC)
- Whether looking at:
1) Administration of justice perspective: At jurisdiction simpliciter level, is it a
reasonable place to litigate
2) Between the parties approach (similar to US due process clause): Where
would a P reasonably contemplate whether he or she would be sued

RSC is not defined and has to be interpreted flexibly. However there is a need
for some sort of clarity and certainty which has to be balanced against flexibility.

FACTORS PROVIDING CERTAINTY (under the admin of justice approach)

1) The connection between forum and Ps claim

- Important interest a state has in injuries suffered within its territory
- Stretches Moran case which looked at the contemplation of the parties (if you
produce products that are defective, you should contemplate it would cause
injury in a number of places)
- Close to personal subjection case consequential, continuing injury after time
of impact (Strong P-focussed connection)
- P reqd extensive medical attention in Ontario significant connection

2) The connection between the forum and the D

- If D has done anything within that jurisdiction that bears upon the claim
advanced by the P, then case for jurisdiction would be stronger
- In this case, D had no connection with Ontario

3) Unfairness to the D in assuming jurisdiction

- One of the key points that persuaded the court (esp re interprov and intl)
- Ct empasised fact that it was the insurance industry that was involved in this
litigation. Risk fell on insurer of D personally no unfairness in this regard.
- Were engaged in activity outside of the province (driving outside of Ontario)
- Uniformity in terms of insurance prospect of this going interprovincially. Not
at the intl level insurance schemes would not necessarily be similar.

4) Unfairness to the P in assuming jurisdiction

- Ps access to Cts of home jurisdiction P would be compelled to litigate in
Albera which would be inconvenient given the injuries sustained
- Inconsistency in 3 and 4? No unfairness since insurance covers you but
then you are looking at Ps position P doesnt have benefit of an insurer
5) Involvement of other parties to the suit
- Avoiding risk of inconsistent results, esp parties outside the jurisdiction

6) Reciprocity
- Ontario judgment would be enforced elsewhere, but also need to contemplate
a reverse of the action i.e. domestic D sued in sister provinces
- Reciprocity more internationally? Beals case suggests intl movement in the
area, but how does one intepret things in this area

7) If international or interprovincial nature: Morguard, Tollefson & Hunt

- Assumption of jurisdiction not as easy in international environment

8) Comity
- Should consider the standards of juris, recog and enforcement
- In interprov cases, same standard applies within Canada, moreso for intl

CASE 6: Spar Aerospace case

- SC of Canada case
- LeBel was dissenting in Beals Reading his judgment for the court here
gives a sense that there are many issues that havent been worked through
- Quebec code could equally apply to common law

Issue: Damages suffered in Quebec (similar to Muscutt damage in Ontario)

Held: Cannot accept the appellants argument that the RSC, as in Morguard
and Hunt, is an additional criteria in determining jurisdiction of Quebec Cts
- Not additional criteria, it is subsumed under the provisions listed (much like
Furland and Teja case) and if these are met then there is a RSC
- Ct goes on to note under aspect #2 offers a counterbalance to a potential of a
broader inqury of jurisdiction simpliciter (same as Muscutts use of forum
non conveniens as a counter)
- In relation to consititutional case, a RSC is an imperative only assume it
when it exists. It was interprovincial and noted interprovincial comity
- Perhaps in conflict with Beals
- Constitutional dimension from Morguard: The Ct noted the const
dimension, but said it must always be remembered that these
relationships were interprovincial (Morguard and Hunt)
These should be seen as interprovincial cases
CL requirement for GOOD ARGUABLE CASE

- Relationship between pleadings and evidence was a little bit confused
- Are we simply accepting a Ps pleadings that a situation occurred in BC, or
putting it more broadly, that it occurred within rule 13(1) or jurisprudence
under 13(4). Or evidence be considered to what standard of inquiry should
we be focussed on.
- Normally facts for jurisdiction simpliciter will be pleaded and the issue
is just an intellectual exercise BUT there is an exception where material
before the Ct establishes that the Ps claim is tenuous

CASE 7: US Satellite Broadcasting Co v WIC Premium TV Ltd case [2001]

- Good arguable case but evidence wasnt as compelling
- CRTC had given WIC exclusive license to broadcast programs
- USSB satellite signals were also coming into territory in which WTP has
exclusive rights, supplied decoders to Canadian residents
- WPT established good and arguable case, and a RSC in the subject matter,
therefore can sue US company in BC jurisdiction

CASE 8: AG Armeno Mines and Minerals Inc v Newmont Gold Co (2000)

- Agreement to acquire interest to a proposed mining devt, made in BC, to be
governed by BC law Armeno alleged Ds (Dutch Co.) induced breach of K
- HELD it had no jurisdiction in BC, as hadnt made out a good and arguable
case on the evidence - hadnt established causation from inducement
- Reqd participation by someone and shareholder withheld consent
therefore K couldn't have succeeded SO couldn't have been any causative
intentional inducement
- Armeno was reqd to make some evidentiary response to Ds affidavits
sufficient to raise a triable issue couldnt rely on pleadings alone.

Summary of good arguable case:

1) Armeno case
- Clear cut example, that nws complaince with 13.1 or 13.3, the case couldn't
2) Furlan case
- Damage caused by resin in plumbing systems negligent in the manufacture
of resins for that purpose
- Affidavit evidence was insufficent to say conclusively that there couldn't be a
case and there was no jurisdiction
3) WIC
- No direct sales into Canada, US broadcasters had corporate policies to not
encourage sales in Canada but evidence not conclusive
Furlan and WIC cf Armeno - inconclusiveness of evidence in Furlan and WIC
didn't rule out causation so good arguable case could still be met

Procedure: D raises this possibility and then P must meet this possibilty of

CASE 9: Strukoff v Syncrude Canada Ltd (2000)

- Rule 13.1c breach contract in BC re: termination of employment
- Tied up with disability and employer's perception that disability wasn't as
severe as employee claimed. Termination was sent by mail.
- Since leaving for disability, employee moved to BC.
- So termination located not receipt but place of mailing/origin = Alberta
- Precedent that performance of Ps duties was to be in BC RSC, but
performance for this K was to be in Alberta oil fields so didn't help
- Ct adopted Muscutt analysis - looked at continuing disability of employee in
BC and analogized to contractual performance precendent
- Issue in background producing saving grace: Doctor in BCs appeared to have
made negligent misrep (employed by employer) to employee in BC. Perhaps
may help support decision the CT came to.

CASE 10: Craig Broadcast Systems Inc v Frank N Magid Assoc Inc
- Breach of fiduciary obligation
- Craig applicant for broadcast licence under CRTC engaged with Iowa
- Not successful before CRTC, found that Magid helped other applicants for
same license claimed Magid breached fid obligation to Craig
- Ct held Manitoba Courts had jurisdiction and it was forum conveniens
Jurisdiction test difference between JS and FNC
- Any RSC is sufficient to est jurisdiction, doesnt need to be the most RSC
- Extent of the RSC is to be examined when looking at issue of forum

CASE 11: Harrington v. Dow Corning Corp (2000)

- Class actions for neglience in manufacturing silicone breast implants
- Only BC and Ontario have class action statutes
- RSC could be made out by residents of BC who had implants from BC
- Purpose of class action is to benefit all of parties and have proceeding dealt
with together BUT other provinces haven't enacted class action procedures
- Product would move after point of sale to anywhere in Canada but 2
provinces usurped quasi-federal interpretation to legn
- Within context of class action, convenience, practicality and mobility of ppl
supports bringing ppl in to suitable lcoations (BC or ON) but this must be
balanced against identified issues which in the Canadian context raises
constitutional concerns of prov legn that incls nonresidents of prov.
- If there was a sufficient number in province, then it could be said that bringing
in other ppl would be incidental. but if no pls from BC, then can't be said that
non-bc ppl are incidental.


[CHAPTER 7: page 269]

- Both JS + FNC concepts have been subj to recent developments

- The relationship between the 2 hasn't been appropriately or sufficiently
articulated (relatively ad hoc comparisons)
- JS has been around for years, but until development of RSC test in Morguard,
it was seen as relatively automatic (either came within rules or not)


Can the jurisdiction be taken in this case by the Court?

- RSC & Traditional tests (Teja and BC Ct Rules)
- RSC & more expansive (Muscutt)

Looking for Authority for the Ct to hear the case. Might distinguish between:

(a) Personal Subjection

- depends on the anticipation of the D where likely to be sued
- US's due process
- Arguably, BC approach is closer to this
- Tends to emphasise the D

(b) Administration of Justice

- more like Muscutt
- Tends to emphasise the Pl Looks to convienence of the system

Linked with Enforcement of Judgments.

Did Ct making decision properly apply RSC?
- A reasonable jurisdiction to hear the case
- Has considerable Constitutional Significance
- Little influence re: Choice of Laws
- Anti-suit injunctions relevant as is a more flexible matter
- Burden of proof on P (generally burden is same for ex juris and in jurisdiction)
- When look specifically at ex juris then if you're within 13.1 specified
categories, the burden isn't as high. But if proceeding by way of discretion
(13.3), then higher burden (if ex juris).


Should jurisdiction be taken in this case by the Court?

- Factors generally relate to connections w forum (sometimes seen as RSCs)
- Circumstances (generally situations beyond connections, beyond not getting
a fair hearing)
- These factors and circumstances give rise to the most RSC
- if only looking at 2 of many jurisdictions, then "most" replaced with "more"
i.e. whoever has more/most factors/circumstances

Looking at the appropriateness for the forum to hear the case

- The HoL and SCC has noted that it is more than "convienence" (to parties)
- It is tied up with appropriateness of jurisdiciton to Cts system for the admin of
- Also look at convience of parties objectively in context of appropriateness of
- Very likely linked with enforcement of judgments (but not as clear as JS)
- Throw away line by LaForest

"The" most (more) appropriate jurisdiction to hear the case.

- Seems to have little or no const significance (Conflict of Laws jurisprudence)
- Choice of Laws a factor to consider when looking at discretion.
- Stay of proceedings and anti-suit injunctions are linked to FNC
- Burden of proof is on the D to demonstrate that there is a more appropriate
jurisdiction elsewhere. (Different from evidentiary balance of proof only if
evidence was exactly equal then judge would talk about burdens and
balances - but this is very unlikely)


CASE 1: Airbus Industrie GIE v Patel and Others

1) European Union
- Brussels convention which takes account of objectives and aspirations of EU
- Principle object is to avoid disputes between member states
- Rules drawn in detailed and rigid manner that predetermined most things
little room for discretion, possibly productive of injustice.

2) Common Law
- Jurisdiction is founded on the presence of the D within the jurisdiction and in
certain specified circumstances on a power to serve the D with process
outside the jurisdiction. However this is limited by principle of FNC
- Principle is directed against cases being brought in inappropriate jurisdictions,
does not aim to avoid all clashes like in EU
- Flexible, responsive to particular cases and responsive to finding best soln in
terms of the most appropriate place for proceeding to be heard
- Dependant on all Cts applying the same broad rules and using the same 2
1) Stay of proceedings (by the Forum Ct itself)
2) Anti-suit injunctions (One forum saying persons over which it has
control should not file elsewhere)

Must take into account convenience of parties, but must realise its not just
pure and simple convenience by itself: look at appropriateness for the
parties in this case

Most appropriate jurisdiction changed to more appropriate: Context is usu

out of a contest between 2 places

Burden of Proof
- General position: burden is on the defendant
- In the context of P asking for Ct to take jurisdiction simpliciter, and the D
asking for a stay of proceedings

When one looks at these processes, have 2 aspects to consider:

1) Stay of proceedings
- Ct asked to stay proceedings that have been brought in that jurisdiction on
the basis on the notion of the D, that the jurisdiction is not the more suitable.
- Ordinarily a Ds motion, and has that burden to meet

2) Anti-suit injunction
- Ct saying persons over whom it has control, are not permitted to litigate there.
- Much cleaner and more consistent with comity if went to foreign jurisdiction
and ask foreign ct to stay its decision. But doesnt always happen this way
- Even though is not an injunction against foreign Ct, indirectly says the foreign
court is not suitable have an immediate and obvious conflict
- Amounts to the Ct that has control over litigants, saying we will finally
determine this issue.


CASE 2: Spiliada Maritime Corp case

- Discretion to stay proceedings, usu on Ds motion.
- Rule 13(1) D comes to either challenge JS or other argument
- More appropriate jursidiction elsewhere
- Or Rule 13(1) ex parte motion

Old English rule flows from 1936 case: St Pierre

- Still applicable in UK law, not totally in North America
- Emphasis in Saint Pierre favours a plaintiff
- Broad principle underlying the jurisdiction is that it is to be exercised when the
ends of justice require it - D is limited to raising grounds the foreign
proceedings are oppressive, vexatious, abuse of process grounds
- Subsequent cases recast old test in terms of limiting it to stay of proceedings
St Pierre not really forum non conveniens
- Rule is non-distinguishable from FNC test

Position after this landmark case

1) Comity
2) No longer necessary to show oppression, vexation or abuse of process
was never really defined anyway (must have been an extremity of justice)
3) Ps choice of grounds is not decisive, need to also incl other factors

Other Factors that take a more neutral position between the parties
- Discussion of circumstances that go beyond connections
- Factors that indicate justice can be done in the other forum at substantially
less inconvenience or expense
- Factors such as the law governing the relevant transaction
- Places where the parties respectively reside or carry on business

Facts: Litigation that involves 3 ships that had been transporting sulphur

Looked at similar case: Cambridgeshire

- Owners of ship were English, claimed damages for damage alleged to habve
been caused to their vessel by cargo of sulphur loaded on her at Vancouver
- Bill of lading not a contractual agreement
- Case heard in England (same cargo, same litigation)
- Court dismissed application for leave to serve proceedings holding there was
a good arguable case that the Canadian cos were parties to a K governed by
Eng law, and the case was a proper one for service out of the jurisdiction
- Ct decided on circumstances it should proceed in the UK

There is a good arguable case that Canulex were parties to the cill of lading
K and so parties to a K governed by English law

CASE 3: Societe nationale Industrielle Aerospatiale v Lee Kui Jak [1987]

- Helicopter accident - owned by English company, furnished in Malaysia
- Proceedings taken by widow in Brunei, France and Texas
- Texas refused to grant a stay, no reasons were given was suggested that
Texas had no rule of forum non conveniens

- Equitable remedy
- should only be subjected to someone is ammenble to the court
- Matters of comity are applied
- Ref to a settings of catgories that principles are applied to, however should
never be confined to these
- Court says its too narrow. Emphasises the notion of ASI is related to a Stay
of proceedings, but in effect the St Pierre case is applicable

According to Spiliada, to justify the grant of an injunction the D must show:

1) Is the English court a natural forum for the trial of the action to whose
jurisdiction the parties are amenable
And since the Ct is concerned with the ends of justice must take into a/c
2) Injustice to the D if the P is allowed to pursue the foreign proceedings
3) Injustice to the P if he is not allowed to do so

Pg 298: Ct says the broadened test would not apply to ASI and no need to go
beyond traditional test which in effect would be the same as the St Pierre test.

General rule:
The court will not grant an injunction if, by doing so, it will deprive the P of
advantages in the foreign forum of which it would be unjust to deprive him.


Airbus Industrie GIE v Patel and Others [1999]

- Aircrash in India, certain Eng residents had relatives on the airbus

- Finding Ct that had the more more natural connection
- Suit was filed in Texas India filed an injunction

Issue: Whether Eng Ct would grant an ASI in circumstances where there was no
relevant connection between the Eng jurisdiction and the proceedings in Q, other
than the appellants who were resident in Eng, were subject to the jursidiction and
could effectively be restrained by an injunction branted by an Eng Ct

Held: Refused to grant an Eng ASI prohibiting continuation of the Texas action
Reasoning: There is no connection or amenability to the parties
- Comity requires that the Eng forum should have a sufficient interest in, or
connection with the matter in W to justify the indirect interference w the
foreign Ct which an ASI entails

1) Aerospatiale natural forum test: closest connection with the action and parties
2) Modified for conform with FNC test: forum that is more appropriate
3) Aerospatiale test 2nd step: injunction on ground that ends of justice require it

India is the natural forum for the dispute, but is unable to grant injunction on
Texas as Airbus are outside the jurisdiction of the Indian Cts. Airbus is therefore
seeking the aid of the Eng Cts to prevent proceedings.
- Inconsistent with comity for Eng courts to exercise power without direct
reliance on Indian Cts decision
- Only the Cts of an interested jurisdiction can act, if they are powerless to do
so (Indian Cts), that will not of itself be enouch to justify the Cts of another
jurisdiction to act in their place

Parallel proceedings general rule: Ought to be avoided but if proceedings have

already been launched in a place that is appropriate, should stay it in the
domestic forum (if all there is, is a mere difference of assessment)

ASI does not work if parties are not amenable to courts jurisdiction
e.g. India and UK
- No injunction, unless they have assets, or pass through or travel within the
country that issues the injunction
- If the country is off the beaten path e.g. NZ, the country has to be careful
about issuing injunctions


- Broadening position in Spiliada and Societe Nationale
- Same as St Pierre for ASI has to show oppression, abuse of process,
vexation, attn given to juridical advantage of the P
- Eng: Is Eng a natural forum, and secondly does the result require a more
neutral position?

CASE: Amchem Products Inc v BC Workers Compensation Board (1993)

First Step: Is the domestic forum the natural forum?

Second Step: Does it have the closest connection?

- Under this test ct must determine if there is another court which is MORE

Parallel proceedings
- Should be respected, but if all you have is simply a genuine disagreement
and nothing more then you should not proceed with the case (should stay
- Only if foreign juris hasnt applied FNC properly then the 1 st step is met

Passage quoted by the English Court in Airbus

- Interpreted by Lord Goff that Sopinka was saying this 1 st step would be met
simply if the Ct that is hearing the matter has not properly applied the FNC
- This then would leave the possibility that in an Airbus sitn, a Canadian court
would be more ready to intervene.
- Not nec this interpretation Canadian court would have to be a NATURAL
jurisdiction as well.

General discussion on FNC

- In the Eng situation, following St Pierre need to show opression, vexation and
will have personal and juridical position protected
- In both those cases, Ct indicating that the reference to opression, vexation
ought not to be emphasised in justice.
- Ct indicates those terms were never satisfactorily defined but these terms
emphasise a degree of seriousness difficult as Sopinka states to find a
defn but could just be a test of severity

Loss of personal and juridical advantage

- Court in Amchem says simply one factor that must be considered among
- FNC and other discussions in reln to ASI
- Could say that in Canada after Amchem, have a greater similarity in terms of
stayed proceedings and the ASI
- Lord Goff: noted the Q of a loss of juridicial advantage should not be treated
as a distinct, second stage of the inquiry as it is under Eng law
- Whereas the Eng has moved FNC in a broad and non-formal way
- BUT in terms of ASI, they have retained link with St Pierre case.
Having said this, there are comments in Amchem that suggest a different
test for ASIs. A question of severity in there.

When would it be just if simply applying test of justice?

- Ct doesnt give a comprehensive answer
- Says shouldnt be looked at in isolation, treated as a factor along with other

Conclusion: Tests for ASI are basically the same as for a stay of
proceedings, subject to the fact that ASI are of greater severity in terms of
comity and not as likely to be granted as a stay of proceedings.

Comment: The legitimacy of the claim is based on the reasonable

expectation that in the eventjuridical advantages will be available
- Gives rise to an expectation, similar to Muscutt context, but is more in reln to
P, not D

US: JS more of the personal subjection, D focussed approach

Canada: more of the FNC Factors expectation approach

Stay UK & Canada Even out ASI Canada
Should courts in Eng have given a remedy in that case to the parties
that wanted to enforce injuction of the Indian courts?
- Should Ct give weight to asking itself if it is an appropriate jurisdiction
- OR saying it is unfair to charge Texas
- OR wash its hands of it
Impact for comity and system of justice as weve seen in Mortguard and

Should the Eng courts have issued an injunction?

- might be different in provincial situation
- the fact of residency in England gave
- general fabric of private intl law --- preserve intl order?

Canada: Stay of proceedings and ASI similarity

- If brought ex parte, under s13(3) jurisdiction simpliciter, it can spill over into
FNC and burden falls on P
- Burden of proof shouldnt provide a significant role as it only applies in cases
where judge cannot come to a determinate decision on the basis of the
material presented by the parties - more significant onus if it is ex parte

- Manitoba case
- D had assets in Manitoba, had no other connection with the proceeding
would not contemplate the proceeding bc of the lack of connection

Westec Aerospace v Raytheon Aircraft Co (1999)

- Another eg of parallel proceedings (Whether BC juris should have been
stayed while parallel proceedings going on in Kansas)
- According to Amchem the applicable guiding principle in Canada when an
application is made to set aside service ex juris or when a stay is sought is
now FNC
- Kansas was an appropriate forum as Westec failed to est that it would lose a
juridical advantage such that an injustice would resolt if a stay were not
Spring 2004


[CHAPTER 8: page 353]


Soveriegnty vs comity
- Former says no direct enforcement of judgment of other jursdiction, while
latter says that sometimes there should be rules of converting foreign
judgment into domestic/local judgment.
- These comity rules are correlated with taking of jursdiction into prov or intly.
- Prior to Morguard, there were fixed rules of soveriengty and comity


Judgments that are focused on status of either a person (usu in rules re:
parternity, adotion, marriage) or more ordinarily a thing (usu where judgment in
rem arises) judgment = determination re: disposition of pty.

1) Immovables (land): If judgment from place other than where immovable is,
then won't be enforced

2) Movables (chattels/choses in action): Difficulty in determining exactly

where are; but if in territory of forum at time of commencement of
proceedings, then that judgment will be recognized + enforced in Canadian
Cts provided other rules of enforcement of judgments are met
Issue here is where is situs
- where is located?
- patent is a grant by state location of patent is where patent is granted.
Same with trademark. But get by creating literary work.


1) Injunctive
- Injunctions usu aren't enforced by another jurisdiction as they are a sovereign
command via Cts to command someone to do something.
- Interprov const issues after Morguard + Hunt, in interprov context there
may be room for argument that provinces in Canada are not to be treated
between each other as sovereign independent countries
i.e. Perhaps an injunction by one prov should be enforced by other provs
2) Pecuniary judgments (Monetary)

Legislation providing for reciprocal enforcement of judgments

The process of statutory mechanism is procedural:

- Gives option to either sue on original cause OR on foreign judgment
- When sue on foreign judgment, it is really fictionalized/focussed on system
whereby judgment is treated as if it were judgment of jurisdiction in whcih
registration (of foreign judgment) under statute is made.
- Once registered, it has same effect and force if had been judgment in
registering Ct ("deemed to be judgment of Ct in which registered"), however
there are certain limits to this
- If elect procedure under statutory law, don't necessarily lose right to proceed
under common law
- Major diff in how statute deals with filing of appeal in origin jursdiction cf
common law
- Once appeal filed, statute says registration can't take effect or is de-registered
SO have to wait till appeal done

At common law
- If elect not to proceed on reciprocal laws (choose not to sue on cause itself
but on judgment) it is regarded as action in debt (foreign judgment)

When can you sue on judgment:

a) Traditional context (pre-Morguard)

- Looking for presence in jursd of origin of judgment
- OR for some form of consent to judgment (e.g. choice of forum clause)
- OR submission/attonement to particular Ct
- Some uncertainty on what presence in jurisdiction means - could be set by
residency (permanent or temporary), or simply being present at time of
- When looking at submission, there was always situation where Ct of origin
would service ex juris but ordinarily that wouldn't be enforced (b/c not
connected to nor will never go to that jursdiction)

b) Expanded context (post-Morguard period)

- 1990: SCC in Morguard effected radical change to CL rules, creating a new
basis for recognition service ex juris where there is RSC
- Rule was said to be only another CL rule and applicable only within Canada,
but subsequently held to be constitutional rule and extended internationally
(not sure at first but gradually Cts moving to yes 2003 Beals, definite yes).
- Rule is so broad an imprecise that it is likely to replace the traditional CL rules
(that the foreign judgment is final and conclusive & foreign Ct has jurisdiction)
Certain rules have to be met
The judgment being enforced must be:
(i) Final and conclusive
(ii) For a fixed sum of money (b/c if suing on judgment then suing on debt)
(iii) and no reconsideration on merits (also in line with debt notion - once
judgment made, then debt sits in fact).

There are certain defences:

- penal laws
- tax law
- public policy
- failure to meet natural justice
- judgment obtained by fraud
- other public laws.


1) Requirement that the judgment be FINAL AND CONCLUSIVE

Nouvion case (1889)

- Debt is the theoretical basis for enforcing judgment
- Case involved land in Spain
- Executive judgment of debt was given but what did it amount to? Was it
absolutely conclusive?

HELD: The type of judicial instrument wasn't final and conclusive because
the same Ct could still raise or rehear or make changes.

- At common law, the fact that there was appeal to higher Ct didn't prevent
judgment from being seen as final and conclusive
- Has to be final and conclusive in Ct that made the decision - Ct doesn't have
process to reoopen case, not an interlocutory decision
- At CL, even though there is an appeal filed, can still use the judgment
Impt difference between common law and statutory law
- Under statutory law, if appeal filed or appeal period hasn't expired, then can't
register judgment under reciprocal enforcement of foreign judgments statute.
- If sue on judgment in common law, then D can move to stay enforcement
pending the appeal. An action may be commenced even though the Ct may
be vested with jurisdiction to stay proceedings P can issue prejudgment
order for remedy

A judgment is considered F&C for purposes of recognition and

enforcement even if there is still time to appeal the originating judgment
and even if that judgment is under appeal
NEC Corp case (1985)
- Judgment brought in BC, but D filed a notice of appeal that put provns of Act
beyond reach of P P took judgment to Ontario to enforce the BC judgment,
filing it under Ontario statute then just before appeal period expired, it was
revealed that D had filed appeal in BC
- So, D then moved to have statutory registration to be extinguished
- Court extinguished the registration
- In the meantime, D sold warehouse in Ontario and trucks (an attempt to get
assets out).
- Then went to file at common law D could try to get stay on execution of
judgment, but common law let P apply to Ontario Ct stop removal of assets
- Steintron (D) were trying to dispose of its Ontario assets in order to thwart
NEC (P) from realising pon its BC judgment

Final and conclusive:

- definite sum of money
- no reconsideration of merits

2) Requirement that it be within Jurisdiction of the Foreign Court

A foreign Ct will be held to have jurisdiction in the intl sense if:

1) D was present in the jurisdiction at the time the action was commenced
2) D voluntarily submitted to the jurisdiction of the foreign Ct (atonement)
3) There was a RSC connection between the action and the jurisdiction

Schibsby case (1870)

- Older case delaing with traditional laws (rules in process of being formulated
some uncertainty)
- An attempt to defend is equivalent to a voluntary submission to jursdiction
- If P selected foreign tribunal, then consent.
- Key factors: residency OR carrying on business in the jurisdiction
- But recent developments suggest mere nationality/residency is doubtful for
grounds of enforcing judgment.
- Simple location of assets in jurisdiction is not in itself sufficient to enforce Ct of
origins judgment Held D had no duty to obey French judgment
- Suggested in this case that if a resident at time, then obligation is assumed
- Now date of commencement of proceedings is important - mere
presence at time of cause of action arising is not enough
Traditional Context summary:
- Broad general framework emphasised traditional grounds of presence in
jursdiction, consent to jursd (e.g. contract choice of forum clause) OR
submission/attonement to jursdiction
- Foreign Ct could take ex juris authority but that wouldn't necessarily be
enforced elsewhere unless 1 of 3 traditional factors met
- Not helpful if person would never go back to that jurisdiction or had no contact
ever with that jurisdiction see how it changed with Morguard and Beals

Jurisdiction continued:
- Historical position in Schibsby: Residency or carrying on business at time
obligation was contracted even though person left before suit instituted would
be enough
- Residency permanenet or temporary - domicile suggested in case
- Clear today that mere nationality or domicile when one is resident
elsewhere may not be sufficient
- Depends on nature of what proceeding is - temporary residence and
domicile are different
- Historical case picked up the voluntary nature of selection/consent or
submission/attonement to jursdiction
- Castel's view: Mere location of assets isn't enough in itself for enforcement in
other jurisdiction

(i) Presence

Forbes case (1914)

- Looks at mere presence in relation to:
1) Ct taking jurisdiction
2) Another Ct is enforcing judgment
- Mere presence enough for Eng Ct to take jurisdiction
- HELD: Casual presence in BC was found sufficient to establish an ability in
Alberta to enforce BC judgment

Carrick case (1987)

- Casual presence at BC football game by Montreal resident football player
- Statutory enforcement
- Sask s4 of Act: precluded registration as wasnt carrying on business or
ordinarily resident in BC
- If CL had been looked to, Ct comments that temp residence in jurisdiction
may suffice to take jurisdiction but doubtful re: enforcemnnt perspective

Test for presence for enforcement of judgment?

At CL, casual presence is enough, but some doubt cast
Under statute, casual presence isn't enough
Meaning of carrying on business

Moore case (1978)

- Is a question of fact:
1) Activity carried on by the foreign corporation must be a business
2) Business carried on for a substantial period of time - some sort of intent to be
more than casual
3) Business carried on in a fixed place
4) Business must be that of the corporation itself (agency is possible but must
be sufficiently linked i.e. agent has auth to contract on behalf of corporation,
is part of corp structure)
- HELD: Ds were clearly carrying on business through their agent. Ds
applicatoin to set asign the registration dismissed with costs to P

(ii) Voluntary Submission

First National Bank of Houston case

- Issue: Had D submitted to jurisdiction of Texas Ct in this particular case
- Difficult issue to resolve in many respects
1) Documents filed initially
- To appear without protest in a foreign action has always been considered a
voluntary submission under rules of conflicts
- Did it amount to a defence as contesting/protesting the jurisdiction
2) Did lawyer have authority act for D and attorn
- Person bound by authorized agent's actions
- Can you demonstrate that no authority at all (burden of proof on D)
- Lack of authority was not made out

Clinton v Ford case

Issue: Whether D asked for assessment by Cts on basis of merits or whether D

was protesting jursdiction?
- D contends he didnt voluntarily attorn to the jurisdiction of the SA Ct but that
the steps taken by him to defend the SA action were taken with the purpose
of protecting his SA assets, therefore judgment shouldnt be binding

Eng Cts wont enforce judgment of foreign Ct against D whohas assets
within that jurisdiction and appears before that Ct solely to preserve those
assets which have been seized by that Ct

D stuck between a rock and hard place:

- Want to protect ppty because decision of foreign Ct will result in losing ppty
- BUT if that ppty isn't sufficient to cover judgment, then if you have submitted
on merits to protect ppty and judgment is traditionally enforceable in home
jurisdiction Have to make choice if voluntarily want to defend or not to

Some of these rules have to be wrapped up post Morguard/Beals in RSC test

- In Beals, traditional factors are factors that would strengthen the RSC test

What advice to give?

In period between Morguard (1990) to Beals (2003) there was uncertainty on
how to advise someone re: e.g. being sued in Florida

According to traditional law:

- Traditional law talked about presence, consent, submission/attonment
- Traditional advice: "Be careful what you do because when you are out of state
of Florida when proceedings are served ex juris. Presumably there are no
more assets in Florida and you haven't got a K
Only get caught if you submit to Florida Ct i.e. do something beyond
challenging jurisdiction of Florida
Therefore advice is to stay away from Florida

According to Morguard:
- Morguard departed from traditional tests of presence, consent etc.
- New test is for RSC
- Interprovincially traditional rules merged in RSC
- Policy factors based on federation, mobiility, safeguards of judicial system
- Internationally, there was a creeping move to apply Morguard principles, but
always an element of doubt.
- Even Spar Aerospace (2002): Looks like Morguard will likely be limited to
interprovincial matters in Canada

Morguard recap:
- Constitutional issue: After Hunt, was clear that it was constitutional
- On facts: interprovincial (Alberta/BC) but mixed with international
- Critical of UK position and Canada unthinkingly adopting uk position (unitary
state vs. federal state)
- But easy to criticize past from current perspective
- Ct emphasized notions of comity - has become true underlying theory in
Canada (common interest)
- Morguard linked the taking of jurisdiction by one prov and enforcing in other
prov as being correlated - enforcement depends on jurisdiction being properly
- Clear that there is no problem in Canada in terms of fair process procedures
and meeting natural justice standards confident in SCC to supervise whole
- In adopting the RSC test, Morguard is talking in context of jurisdiction
- LaForest refers to in throw away para What is relationship between FNC
and the jurisdiction simplicter requirement for RSC (interprov and intl)
In the intl context (e.g. Braintech), considerable emphasis is placed on FNC.


CASE 1: Moses v Shore Boat Builders (1994) BCCA p392

- Contract to build boat, boat was alleged to be defect
- Boat supplied from Alaska and P sued in Alaska
- D said had good defence (4 yrs post-Morguard) on merits but was not going
to go up to Alaska (as it could then be enforced against him in BC)

Default judgment against D

- Morguard makes Alaska judgment enforceable
- No enforcement prior to Morguard, but now would say there is enforcement.
- Stay of 60 days of BCCA to let D go to Alaska to sort it out there
- Ct applied RSC test to Alaska
- Case in which Alaska is not acting like Texas
- Clear justification that Alaska was connected to this damage suffered in
- K signed in Alberta
- D lived in Al at time of K
- Boat in Alaska.
Alaska had jurisdiction and was properly entitled to hear the case

BC Ct applying Morguard
- Morguard only applies interprov strictly speaking only obiter for truly foreign
entities or foreign jurisdictions
- BC replies that obiter comment by SCC whether made by the whole Ct or
majority should be treated as ratio decidendi.
- Also looked at comity in modern system
- Moran case in tort law: Takes approach that in tort law there are no fixed
rules but one would look to see if one could reasonably anticipate harm
- Applying to the case: Boat was made in Alaska specifically for shipping
- Test is RSC from perspective of jurisdiction simpliciter because it commented
that FNC might be relevant but didn't develop too much
- On the other hand, have Moses simply applying Morguard and not giving any
weight to FNC
CASE 2: Braintech v Kostiuk (1999) BCCA p405

- Internet and tort of defamation case
- Website where ppl can make comments
- Run by Kostiuk living in BC
- Braintec with corporate HQ in Vancouver
- Some R&D in Austin, Texas, but not emphasized in judgment
- Had connections w/ other states in US.

HELD: No sufficient connection with Texas

- BCCA looked directly at the Amchem case (forum non conveniens
principle) and said that applying this test, it was not a natural forum
- Texas had abolished a FNC test and therefore a futher reason for not
enforcing the judgment
- BCCA applied FNC that BC is more natural forum than Texas
- Stated FNC puts flesh on the bones of real and subs connection

Internet scenario in Canada

- This issue has been faced by many US Cts
- Constitutional limitations on US Ct jurisdiction
- due process clause = ultimate const limit on ability to take jurisdiction
- minimum contacts must be completed
- complaints must arise out of the min contacts
- US Cts developed internet scenario by saying that merely putting something
on internet so accessible from 1 of 50 states, that you need more significant
connection (other end of spectrum... doing business)
Emphasis on personal subjection by BC Ct following US situation (not
admin of justice like in Muscutt)

Reaching decision on facts

- All Kostiuk did was put up passive website
- Texas hand't properly exercised jurisdiction
- It hadn't looked at jurisdiction in restrained way
- If Texas hadn't applied constitutional due process limitation
- FNC = Texas not natural jurisdiction (was BC)

This case applies US law (personal subjection) and FNC

Look for the most or more appropriate jurisdiction
applies that by saying that no jurisdiction in Texas

Recent Aust HC case: Dow Jones

- Defamation posted in New Jersey but defamed person in Australia.
- Dow Jones said appropriate law was place of uploading - where harm
Ct uses it here but how do we deal with FNC when move Morguard RSC test
internationally. FNC can't just be flicked off map so easily, was used in Braintech

Clearly there is big difference between FNC and JS

FNC is looking for most or more natural jurisdiction
JS simply asks if there was any connection

Beals (2003)

1) Does the RSC test apply internationally

- Majority says yes
- Binnie and Iacobucci said yes with some doubts
- LeBel said no, not without substantial revision


2) Defences
- Binnie and Iacobucci go with majoirty in applying RSC in restrained way
- BUT said on defences, the judgment shouldn't be enforced
- LeBel said that if its going to be used liberally on an intl bases, then need to
boost defences. Internal safeguards of cdn system may not exist int'lly)

MOSES compared with BRAINTECH

- In Beals, LeBel said that in an enforcing situation, would not look at FNC
but the BC court looked at it in Braintech
- In Moses case, BCCA notes that while primarily addressing Alaska and BC,
relationship with FNC is rather unclear. In previous cases, court has applied
the RSC test however, court didnt state whether it was addressing JS or
conducting a forum conveniens analysis

While we have noted for some time that the relationship between JS and
FNC post-Mortguard is murky few courts have addressed it.

- Ontario focusses on JS in an interprovincial context
- The presence and existence of FNC would help in expanding the jurisdiction
of JS because when it comes to discretion, it can always cut back on that
consequence of a broader JS
- If you are broad with JS, any adverse consequence of this is that you can be
pulled back under FNC
- Teja emphasis on supplementary rules
- Muscutt emphasis on RSC taking over these situations

- Court was dealing with internet context where there is no Canadian law
- Looked at US law US const due process requirement
- Ds are given a measure of const protection in that it must generally be
forseeable or within ones reasonable contemplation, that you would
be sued in the state within the state in which you were sued
- Forum in which suit is brought, is one which parties would have

NB Similar in effect to principle in SCC Moran case for tort liability

NB Also that the Ct in BC did look at the question of whether the Texas court
correctly applied this principle. Is it the function of the enforcing court to get so
deeply in the law of the court that brought the suit.

Moses defence
- Ct states that in BC, a D may raise defence that there is a manifest error on
the face of the record in the foreign judgment
- Legitimacy is dubious, but in any event, its reach should not be extended.
- Ct states that if BC rules find that Alaska has sufficient jurisdiction, then
judgment could be enforced. Although technicially the Alaskan Courts may
not have followed their own rules

General points to contemplate:

1) Should Morguard have been clearer in its formulations

2) Should the Ct in Morguard have taken upon itself to extend judicially the
conflicts of law principles
- Demarkate between constitutional principles for interprovincial and open
imprecise language about foreign

3) Is there a need after looking at Beals for legislative amendment provincially or

indeed federally under the POGG power
- Esp international/foreign: Hunt and Mort make it hard to have legislation in
contradiction in terms of local provincial law as it is a const issue

4) What other jurisdictions are doing

- Eng, Aust and NZ courts have not moved to such a generous position in reln
to enforcing foreign judgments
- US have moved towards it, but the US courts have the defendant protection
under the due process clause under the US const. Canadas s7 doesnt
directly protect ppty D doesnt have this protection.
- LeBel says our court has gone out infront and asks why has this been done
- does it fail to give adequate protection to Canadian Ds
- does it prevent them from participating in foreign intl trade
- Ct should have left it to the legislature to make this change

5) Difficulties in the definition of reciprocities

6) Are there adequate safeguards in this bold move?

Beals [2003] SC 77

Majority decision

Major J decision:

Q of comity, cross-border transactions, modernisation of law

- RSC to date has been applied interprovincially, time has arrived to extend it
internationally to foreign jurisdictions
Notes 2002 Spar Aerospace case as not being so keen on extn, but such
hesitancy doesnt prevent this court from RSC being used on foreign
- does not preclude this test from being used in both types of cases, if
unfairness is considered
Awkward in stating their change of consensus and attitude on the SC
- May reflect that the difficulty the ct was getting in
- Mort in 1990 which is v unclear as to how it is to be applied internationally
- Appeal courts start applying it, which is then braked by Spar Aerospace
- Position the ct has gotten itself into is a hard place.
- How should it respond to these situations fault really lay in the Morguard
case in not being clear
RSC test internationally speaking, requires that a significant connection to
the foreign court must exist. Fleeting connection is not enough
- Is this perhaps an indication that Cts should be focussing on finding more
than what has been found in other cases.
- How might this qualify language, such as in Muscutt (it can be more
generous in finding a RSC bc of admin of justice principle and FNC less
Question involved land, land was in Florida,by buying land in Florida, the
parties did submit themselved to Florida RSC
How much weight is given to different considerations
- Considerations are not stipuated
Canadian Ds sued in foreign jurisdiction have ability to redress unfairness in
foreign proceedings defences applicable in Ontario are natural justice,
public policy and fraud AND in addition, D can raise the doctrine of FNC. This
would apply in the usual way where it is claimed that on the basis of
convenience is not in the proper forum.
- NB this is all the maj says on FNC
- In contrast, Braintech and Moses directly apply FNC as a matter of
determining whether enforcement takes palce
- NB LeBel J in his judgment states that FNC is a Q only for the originating
court, not the enforcing court uses the situation to bolster the argument
the defences should not be brought
RSC is overriding factor, the presence of more of the traditional factors will
serve to bolster the RSC to the actual parties
- Affirms Teja and Muscutt
- RSC test has been declared by maj to be the overriding test that
supplants cf supplements.
- Traditional factors now just egs of the supplantation, not separate tests
that stand alone along side the RSC test
Acknowlegement that in a foreign sitn, there may need to be certain different
considerations but are silent as to what they might be

Binney and Iacobucci decision:

Binney says that failure to use procedures in Florida

- Agrees that test used in Mortguard, Hunt and Tolofson provide good
conceptual framework
- Are dissenting, but not as strongly as LeBel
- That said (ie applying RSC), recognises that there are significant
differences in enforcing internationally and within a country
RSC provides a f/w and is an appropriate conceptual vehicle in order to
determine whether foreign judgment should be enforced, it is not to be overly
rigid in staking out a position, time will come again when re examination of
this application will arise (not entirely comfortable with intl application)

[Diplomatically put, both Major J and LeBel J acknowledge with varying degrees
of enthusiasm that greater flexibility be used different considerations will apply]
LeBel dissent

Acknowledges that Mortguard brought in a new era in this context

Notes a few questions were left unanswered at a practical level, incl whether
it applied to the intl situation
Sees the Ds as the meat in the sandwich
Comments that the other major feature left unanswered is the precise
nature of connections that have to be met in order to have a RSC.
- This is significant bc we find the majority, has to be significant and substantial,
but Cts in Canada havent done this in the interprov context, esp looking at
Muscut case.
- The approach has been towards the insubstantial
- Muscutt says can be less stringent with RSC test bc of the presence of
the FNC.
Note ref to FNC - Already noted majs approach to FNC which leaves open
the fact that it can be raised in the foreign jurisdiction.
- LeBel J sees it as only being able to be raised in the originating jurisdiction
Mortguard is founded on principles: 1) Constitutional and 2) Comity
- LaForest seems to change it in the light of a changing world order
- Asks whether such a change should have been left to the legislature. Loose
language led courts to change it perhaps unrightly so.
- Notes that the international sitn is different comity is not so strong as a
constitutional basis it is a prefence to cooperate out of own self-interest
and where it is fair to do so.
Mortguard and LaForest again: modern states cannot live in splendid
isolation, but we do not yet live in a borderless worldcultural differences
divergent value systems

Refers to the need to be more liberal than the traditional categories, but not as
liberal as the case for interprovincial jurisdictions. Have a RSC test, but it needs
to be more particularly fashioned to have regard to foreign Ps and protect
Canadian Ds.

In terms of looking at connections which the maj never defined, nor did
Binney, need to ask if it was appropriate for orginating forums to take
jurisdiction. Is it expected and fair for D to go to the originating jurisdiction.
- Strongest connection is where there is link between forum and the D (such as
in the Moran case where selling items that contemplate would flow into
another jurisdiction)

In the US the Ds do have protection under the const that they wont be
deprived of ppty where no due process. Whereas under Canadian s7, are
only secured to life, liberty and security of the person. This leaves them w/o
any proprietory protection.
- Recommends that the RSC test emphasises the link with the forum and the D
Murky relationship between FNC and JS
- Talks about FNC and overlap with JS, but they are not nec the same

Taking jurisdiction takes 2 steps:

2) FNC discretion on connection factors and circumstances
- But in the enforcing context, only JS is applicable, i.e. rules out using FNC
which is against what has held before. [Trying to get a stronger more pro-
defendant RSC test??? Not sure]
- Comes back to his proposition, many factors to take into account, and
hardship to the D should be one of them

Then talks about benefit of Canadian court structure

Reciprocity = equivalence of jurisdiction

- Difficult word, could mean State A could recognise statements of State B.
- Points out that this is not what majority is talking about it actually means SA
will recognise SB if SA would assume same jurisdiction of SB in a similar
position as SB (more like equivalence of jurisdiction, not reciprocity)

Looks at other countries:

- Commonwealth coys: Use traditional presence, attornment, residence
- US will apply and enforce foreign judgments, but only on grounds similar to
the interstate enforcement system. Broad, but no way near as broad as the
position taken by the maj in Canada

Is this broad approach sensible? In terms of restricting Canadian

defendents, trade effects

Mortguard was the root of everything good or the root of all evil, depending on
your stance.
- Loose discussion should it be a judicial decision to extend it internationally,
where not taking into account what other coys are doing.
- Result: situations where still working under old rule, but subject to new rule.
- Private intl law dealing with other systems Ds are caught out.
- No political incentive for legislature to deal with it but should the courts have
taken it into their own hands???

Another option is to give D get same protection as in US

- Due process clause: could the D have reasonably contemplated a suit in that
- Adopt their defendant protection of property clause into the common law.
- Because of commercial patterns of trading in NA, could look more favourably
at transactions within NA.
- For CL jurisdictions, this would cut out the EU. ie problems with demarkation
Recap of the significance of Morguard and Beals

Did the court fail in not putting a limit on itself, or was it sensible for the judiciary
to later have courts rule the RSC test applicable to intl cases?

LeBel said FNC could only be raised before a foreign court.

- The majority arent very clear in this regard
- Perhaps to the defences talking about it directly after defences and can be
used as in the Braintech case.


- Majority dont refer to other public laws.

- In Ivey, it was raised whether this was a relevant category, or just a public
policy aspect.

Substantive defences in terms of the procedural defs

1) Lack of natural justice
2) Fraud

- Distinguish between extrinsic (going to the jurisdiction i.e. the court itself has
acted fraudulently or the parties have misled the court to assume jurisdiction)
and intrinsic (going to the merits of the case)
- The interesting feature of Beals is the maj saying these descriptions are of no
value and the enquiry should only be whether the fraud goes to the

- Higher duty dealing with foreign juris cf interprov juris
- Noted the P was under no burden to show the system of the originating court
was fair and likewise no burden on D to explain consequences of the law of
the deciding jurisdiction.
- Suggested in the dissent of LeBel that there was an obligation on P to give D
info on how Florida system worked a fair enough position.
- Could comment and say if the new world order on judicial enforcement brings
together jurisdictions that are similar but different on particular elements, then
it would be useful to have agreement where standard form info is given to Ds
when Ct orders ex juris service.
- It is not easy to find out how to defend if you get a notice served on you to be
served in Florida.
- Comment in maj that not only would one have heightened duty but
suggestion that it should be mandatory for court as to fairness of the
Court cautions against using the defences (esp public policy) on basis that
although not directly a criticism of the law of the ct of decision, it is indirectly a
criticism of the policy of that country.
- On the other hand, LeBel J says it is the price you pay for extending the
enforcement law. In both these situations you have a good argument on both

Prof Howell errs more on side of LeBel even differences between CL

systems are significant.
- Problem is saying there is a certain element of uncertainty.
- It is a developing area - Binney J took the middle and said had no doubt that
the Q of defences relating to the differences of interprov and intl would have
to come back to the court at a later date.

The maj seem to think that excessive damages are not in itself a defence.
- Difficult point for some time (e.g. US jury produces irrational awards). BUT
says if damages are ARBITRARY then it is possible ie. It is left open as we
dont know the test for arbitrariness.
- A good test for arbitrariness:
Is this award out of line of the type of awards given in this area in this
(more than the sniff test relating it to cases of this type in the jurisdiction)
- Perhaps link it back to NJ was there evidence here that this judgment
was excessive or in someways directed to the fact that it was a foreign

Looking at US constitution, they recognise this themselves.

- Const principle of diversity of citizenship.
- Federal courts have district courts throughout the states (Federal district
- Under this principle, when one person is sued by another in an out of state
sitn, they can have it brought in the Federal court.
- Removed from State court to avoid possibility of bias.

Goddard case (1870)

- No longer open to contecnt, that a foreign judgment can be impeached on the
ground that it was erroneous on the merits, or set up a defence on the basis
the tribunal mistook either the facts or the law
- Cant question merits of the case

Moses found that only in BC can D raise defence there is manifest error in the
judgment. Court indicated this status of rule is suspect and doesnt want to
extend it to being a rule legitimacy is dubious and reach not to be
Old North State Brewing case [1999]
- A number of issues that led into the choice of law area
- Supply of equipment to N Carolina.
- Court acknowledged N Carolina had a RSC with this case
- Equipment didnt work
- Choice of law clause: BC law should be applied but no express choice of
FORUM clause
- State of N Carolina could take jurisdiction, given it had a RSC and would
decide on BC law.
- But they didnt decide on BC law - Ct said wasnt a problem as when you are
talking about conflicts, in CL systems, it is a Q of fact.
- You have to plead the foreign law and bring evidence to foreign law as you
would any Q of fact
- Parties can control this: If they dont plead and bring evidence, there is no
duty on court to apply this foreign law. In absence, they are entitled to assume
the foreign law is the same as the forum law.
- Also raises the Q of public policy
- Treble damages (work out how much you have lost and then you triple it)
- And punitive (deterent) damages
- US has more dealing with treble damages. Only one e.g. in Canada
- Is this contrary to public policy Court says we have it too, in our
competition law therefore not contrary to Canadian concept of justice

To sue on the original cause need to est jurisdiction simpliciter/FNC

Sue to enforce the foreign judgment (debt) - have CL private intl law rules and
statutory mechanism]

1) Proceed at common law

- Nouvion and NEC Corporation cases: it is final in the court that gave it
- Have access to pre-judgment relief even if enforcement is stayed (appeal)

2) Or you can register under Enforcement of Foreign Judgments (EFJ)

- Once appeal has been filed you cant register
- Doesnt change private IL, just provides more efficient way to procedure
(convenient supplementary procedure - shortcut)

In post-Mortguard times, how has this been affected?

- Hasnt been affected in an overt sense, in that the Mortguard principles are
designed to be dealing with this CL aspect
- And from const point of view, having the statutory part (2) doesnt infringe the
constitutional part.
- Although EFJ is different to what is in Mortguard, it is ok as it isnt seeking to
amend the Private intl law no constitutional issue is raised

Question becomes how do you interpret these provisions in the light of


- Morguard doesnt directly change the statute.

- But if there is a phrase that refers back to CL, and incorporates a bit of CL,
and this CL has been changed to Mortguard, then the decision in Mortguard
comes into the statute.

Central Guaranty Trust Co v Deluca [1995]

North West Territories Case
- D submit that the basic statutory requirements for an application to be made
ex parte have not been met

Section 2(3) requirement: judgment debtor personally served with process

in the original action.
- Asks if you have been served with process i.e. submitted to jurisdiction of
original Ct. Interpret the phrase so as to mean personal service within the
jurisdiction of the original Ct this meaning is based on CL which has
changed with Morguard
- Statutory rules asks the same thing, Morguard has been incorporated in the
EFJ legislation using the Morguard test RSC between jurisdiction and the
- Looking at s2(4), allows for the registration only on the traditional bases.
Presence and residence in jurisdiction, agreement, registration (more
convenient way on traditional grounds). Narrower than Mortguard, but it still

Impact of Morguard on s2(3) doesnt alter the specific requirements of the Act.
If choose to reciprocally enforce a judgment under the Act and evidence
establishes one of the criteria in s2(4), then the judgment cannot be enforced

2 things to contemplate after Morguard and Beals

1) Whether you want to send enforcement for foreign judgments
2) Whether you want to preclude the effect of Mortguard - but cant do this
interprovcincially, must be done internationally

James C Bennet case

- Points to strictness of how these EFJ are enforced
- If it specifies a time limit, court cant look to general rules of court to extend a
- Court notes it is open to suspend registration but not extend registration
Spring 2004


[CHAPTER 9: page 475-508]

Unavoidable because you have different jurisdictions that form a composite in the
intl community

Can only avoid if:

1) Have uniformity of law, e.g. est by treaty
2) System that provides an alternative to the CL PIL COL principles
e.g. law between coys under the Berne Convention, each resident is
protected in every coy to the extent set out by the coy concerned where the
infringement takes place. Linked to the national treatment rule.
3) Mandatory rule of the forum (forum might stipulate COL forum)
- COL principle that might excl from COL theory, national reg laws or other
public laws (eg Ivey and Oritz) that gives discretion where law concerns
public policy.

If you dont fall within these categories, it is whos law in deciding whos law to
apply. It is the law of the law of the forum choice of law which choice of law to

Canadas Standard or Classical Approach

Canada takes a classical approach to Choice of Law (apart from Contract cases)

1) Nature of the Choice-of-Law Rule

- Identify what type of legal issue it is, and hence what legal principle is applied
(e.g. domicile)
- Rules as to choice of law are to the forum of the court
- Court will determine what its choice of law rule is
- The categorisation of the event is also in accordance with the laws of the
- The interpretational meaning to be given to the connecting event (eg domicile
or citizenship) is also with the law of the forum

These preliminary enquiries, characterisation and meaning, is all the law of forum

The choice of law rules sometimes indicate one place e.g. Tort law where it
Leaves open to the forum court what it means by occurred
Sometimes it will give a couple of choices for where it may have occurred and
court will have to find a combination of both.
e.g. Questions of access and custody of children
- COL rule may say have to consider law of parent and law of child meet an
arrangement that suits both laws.

Or it might say in the situation before us, the laws of 2 countries must be
applicable to 1 party (usually in tort). Prior to Tolofson, there was a double
accountability (Chaplin and Boyes). Could only recover if it was a wrong in
the place it occurred and if it would have occurred in the forum.

Ambiguities in the Application of a Choice of law Rule

In addition, a choice of law rule may have to be set aside, or be qualified:

- Usually by a legislative provn in the forum that stipulates that a mandatory
rule of the forum may apply.
- Replaces or qualifies the conflicts of law rule itself.
- Exception: when it stipulates in detail that a law of another country may apply.

Renvoi Reference back

- No Canadian law in this context
- Have situation where in State A the forum (home) jurisdiction, its choice of law
rule applies law of juridiction B (the place of the tort). But, what if Bs internal
law says apply the law of jurisidiction A.
- If the state laws conflict, eg where the injury occurred vs at home. Bounces
back to A.
- The argument is that the law of B means not just the internal rules that the
legal system applies to wholly domestic cases, but also the choice of law
rules that the legal system applies to cases with connections to other
- When you apply the law of B, where the event occurred, are you applying the
whole law of B (incl the choice of law part) or is it only in relation to tort law?
- A way around this area, is to be more precise.
- Castell concluded that Canadian courts should eschew (ignore) the use of
renvoi unless a statutory provn requires them to apply it.

Only in contract has this approach been taken:

1) proper law of the contract, or
2) the centre of gravity (where this is, then you apply this law)

Tolofson was the first time choice of law was looked at in depth
- Torts case
- Result was a decisive and unanimous rejectionof the newer tendencies in the
US Cts in favour of a choice of law rule of the classical type application of
the law of the PLACE OF THE TORT
[Chapter 10: page 509]

1) Effect of Omission to Plead or Prove Foreign Law

Fernandez [1986]
- Ps were Filipino nationals who had been crew members of Liberian registered
D ship - D had made collective agreement higher wage but werent paid this
- In rem proceedings to obtain the difference between the wages they received
and those provided for in the other agreement
- Hired in Manila, docked in Montreal

HELD: Court will leaving it to the parties to plead the foreign law
- Lex fori is applied on basis of default application where foreign law hasnt
been pleaded. Ct will assume foreign law is same as forum law.
- Court shouldnt simply apply this foreign law without plea
- How far do we go with the Canadian law? Statute or CL or both?
- Best to avoid demarking
- Law of Liberia applies, but no proof of the law so presume it is similar to
Canadas but only so far as to the substantial provisions apply general
law of the country (general principles). The specific laws should not apply
(not appropriate for a context such as this)
- Held Agreement had full force and effect under Liberia law as under basic
provns of Canadian labour Code

2) Pleading and proving foreign law

- Found that foreign law is a question of fact, is not for the tribunal or the court
to take judicial notice of the FL, and as such has to be established as a fact
- Cant engage own research, bound by expert advice given by lawyers/judges
- Other persons category is a secondary one, strong preference for best
evidence focussed on info given by those practicing in the particular area.
- Always discretion given for the other persons category
- Some rules arent going to be applicable: penal laws, revenue laws
Parties can always agree what the law is and can present an agreed stmt of
facts which may include what that foreign law is.
- Can submit materials if cant agree on the content of the materials. Courts
can require experts to be brought before it.
- How far should they go in letting parties determine how to decide.
- Justice might be better served by giving more discretion to the courts to find
out and apply the foreign law cf giving emphasis on parties to bring evidence
before the court
- Should Courts have more initiative to investigate? A system in impt complex
cases that allows parties to state case before Ct in a foreign jurisdiction?
- Can only be done intly if there were an Intl Convention made. Could be done
3) Alternative means of determining foreign law

Judicial notice by the SCC

Hunt v T & N Plc [1993]

- Canadian constitutional issues and uncertainties in the position
- Laws of a province (other than that from the Cts of which an appeal is taken),
are not reqd to be proved as a fact to the SCC
- Competent and capable of applying all the laws of Canada

Statutory Authority for taking Judicial notice

- How might an issue of tort law in BC come up in Federal Court?
- Provincial rule of Nova Scotia, or Quebec
E.g. Quebec Civil Code: Judicial notice maybe taken of the law of other
provinces of Cananda provided it has been pleaded
- Canada Evidence Act and other provincial Acts are broadly similar to those in
the provision

Implications for Full Faith and Credit Doctrine

- Castel commented on the Hunt case relating choice of law to constitution
- To require law of sister state to be pleaded and proved as a fact would seem
to contravene full faith and credit doctrine

Pleading and determining the constitutionality of EP law

- Classic case b/c situation of a statue in Quebec which wasnt discovered for
long time. Litigation was brought in BC for recovery of documents Quebec
Statute blocked it
Issue: whether the statute is UV or whether it is constitutionally
inapplicable to a judicial proceeding in another province
Rule: No reason why judge cant deal with constitutional issue that
incidentallly arises in the ordinary course of litigation
- The BC Courts were excessivly cautious in refusing to consider
constitutionality at the potential price of injustice to the P
courts were in error in believing that the rules of conflicts law prevented
consideration of the consitutionality of the laws of another jurisdiction
- Hard to rationalise looking at where constitution was made

Pg 529: made clearer, SC talked about remeby.

Particular legislation could not be raised in Quebec, no longer an impediment
(now it is more common though)
Pg 562: FNC
Relevent language
Procedural issues were also brought up

Matter of statutory law NZCL reluctant to do so

Chapter 11: page 535

Difference between substance and procedure

- Procedural law is lex fori

- Legislative amendments that have taken place in the UK have been designed
to align with EU


Tolofson v Jensen [1994]

- Focusses on substance and procedure, whether there is a limitation period
- Ps were residents of BC, car registered in BC, D were residents were from
Sask, accident happened in Sask
- Sask Act: 1 year limitation period which had expired, didnt allow gratuitous
claimants to recover unless wilful or wanton conduct (which it wasnt in this

RULE: The substantive rights of the parties to an action may be governed by a

foreign law, but all maters pertaining to procedure are governed by law of forum

Held: The Saskatchewan limitation rule was properly characterised as

substantive and hence Ps action is statute-barred

Looks at position historically

- CL courts in UK and US says limitation is procedural
- Civil law regards it as substantive

- Forum litigants would be subject to same rules as foreign litigants
- Where the event occurs and should the law be applied
- General preference for lex fori, but have to be careful in continuing to say this
with disparagement
- CL theory that rights would last forever, only the limitation would take away
the ability to enforce these rights
- In relation to land, may be that if have a right of entry upon a failed codn
subsequent that occurs. If guarantor doesnt use right of entry, loses the right.
- If cant use the Cts to use land, then if its a determinable fee, then it is
yours in law. Once you have moved in, they cant get you out.
- Distinction between rights and remedy
Canadian legislation in 1984, changed law regarding limitation periods
TEST: Does the particular law make the machinery of the forum run
smoothly, if so it is procedural. Does the law reflect the determination of
rights between the parties, if so it is substantive.
- Not always so clear cut

Significant aspects that relate to rights between the parties:

- D right to plea
- Obligation at law between the parties
- Clear application to the parties
On the other hand, could be procedural as a limitation period is designed to
make the machinery of the forum operate smoothly (peoples memory dims after
an amounty of time) ie has elements of both

i.e. Boils down to a policy choice Brings it into line with substantive
decisions, like in the US

CASE: Somers v Fournier (2002)

- Action commenced in Ontario arising from motor vehicle accident in NY

- No question of jurisdiction
- Issue was application of substantive law of NY

Argument for an exception to the lex loci delecti rule

- Application of the substantive law of NY would create serious injustice and
hence fell under the basis for exception cases outlined in Tolofson.
- In Tolofson SCC said Cts could retain a discretion to apply the local law (lex
fori) in intl litigation where necessary to avoid injustice
- Ontario CA says exception was not to be specialised, it should be limited only
to compelling and exceptional circumstances
- Different approach Beals saying we played under rules that you said. Court
doesnt say it is an access to seek

Different approaches:
Wong v Lee [2002]
- Transition decision
- International litigation arising from an car accident in NY involving Ontario
residents. If the NY law applied, the D insurance co. would be exposed to L
for pecuniary damages without a deductible, if Ontario not
- Maj of Ct concluded it was not an injustice, the Ds increased L exposure
was the necessary effect of applying the LLD rule
- All parties to the accident were resident in the forum
Principal aspects of the Somer case
- Court elaborates on the tests that are set out in Tolofson, machinery of justice
- Procedure is that of the court
- Provide means and they deal with conduct of the courts and parties
- The ends rather than the means
- Conduct of relationship (SUBS) cf administration of justice (PRO)
- Choice of law applicable to claims in action for costs, prejudgment int and
non-pecuniary general damages
1) Capped non-pecuniary damages
2) Court came down on pre-judgement interests - were substantive
3) Costs were procedural

1) Role of costs
- Could be looked at as a compensatory vehicle, a form of indemnification to
the party to whom they are awarded to could say it is substantive, right
between parties, compensates for that sort of loss
- On the other hand, there are other aspects to costs that indicate procedural
- Purposes to encourage settlement
- Manage the process of litigation
- Deter and penalise or reward in relation to how one conducts the process
of litigation in terms of its management and reasonableness to achieve a
sound administration of justice
- Not guaranteed no party doesnt get award, open for court to award costs
against sucessful claimants
- Client-solicitor costs
- On balance, costs are more PRODCEDURAL (Relate less to relationship
between parties)

2) Pre-judgment interests
- Said it is SUBSTANTIVE
- Primarily compensatory, not a punitive measure
- Says I have a title of interest to my money, and now I have shown it, should
get interest
- Could also say it is presumptive not absolute, how one conducts the process
is also relevant. Is awarded when it is just to do so
- Courts have used this in a context of dealing with delay
- Not set out in rules of procedure in Ontario, but was in a separate statute and
the presumption was stronger than the discretion to deny came down as
compensatory substance

3) Cap on non-pecuniary judgments

- Ontarios upper limit is $2000 + inflation, in NY no upper limit Somers is
arguing it is part of Ontarios substantive law
- Is this a matter of substance between the parties, does it relate to entitlement,
remoteness of damage or a head of damage which is considered to be
- Does it relate to the rights between the parties OR is it something that
suggests once you get above the right for pecuniary loss, it is difficult to prove
and the parties should have to run that risk and not expect to recover as a Q
of right between him and her and the P?
- On the other hand, you can say the cap might be there to enable the system
of justice to run more smoothly. It avoids excessive and unpredictable
awards, might be predicated on basis that you allow on the state of the jury at
the time of decision, have sat too long, settle on this instead of merits
- Where does this fit?
- What is the overlap between the 2 situations? How do you cap it so the
justice system is fairer is this to do with the system or is it demonstrating
that being excessive is arbitrary, or is it cant have excessive awards, it would
not be appropriate because it is too hard for measurement
- Different approach in US: Thinks it is not procedural/administration of justice
(without the cap, admin of justice is not prevented).
- Danger that award is not excessive, but that it is arbitrary
- Should craft a rule that is not a cap, but deals with arbitrariness


Distinction used to be between rights and remedy

- Generally a remedy is a procedural matter, but increasingly is bound up with
the substantive law (one cant just accept this statement)
- Maybe not necessarily so, removing remedy such as constructive trust from
the substantive law in which it originated (no longer a cause of action)
- Option to seize or sue, no fault bars Quebec or NZ no fault payments can
be taken if action is barred.

Restrictions on Remedial Relief:

1) No-fault insurance legn

- Be aware of const limit on province to legislate extraterritorially
- Situation where in an event that arises in Quebec, that could spill into another
province. BC person accident in Quebec, no fault, cant sue in tort. Further
injury in BC results because of the weakness from the earlier injury.
- Where does the consequence of the act end? Has there been an intervening
cause? If so, then it is a new accident. If it was forseeable as a consequence,
then it is linked with the earlier accident. And if this was incurred in the other
province, it could limit their ability to bring action.

2) Claims by Unlicenced Persons

- Murky area, but talking about mandatory rule of the forum and not something
that should be classified as procedural or substantive
- Statutes that impose requirements, such as Fraud Act to put something in
writing, one could say it is substantive need to look purpose of the rule
that it goes to Q of relationship between the parties.
- If classify it as a purpose as being evidentiary, then if it is a matter of proof
then it has historically been procedural
- Again, hard to say should look at the primary purpose of the rule
- Governing relationship btwn parties
- To gain proper info to ensure administration of justice


General rule: A head of damage is substantive but the quantification or

assessment of damage is procedural
- This distinction hasnt always been clear though
- How you would classify a rule that would say a lump sum is not to be paid,
but the ct may order a structured settlement, eg pay over a period of 20 years
(looked at as being more sensible)
- Is this to the procedure, saying the admin of justice is not administered
properly if they are just given a pile of money
- Or is this between the parties? P or D may want it


- Similar to Bumper (Indian temple) case

- Choice of law and parties can be summed up:

1) Law of forum is applied to see if the forum has jurisdiction to hear a particular

2) That law will ask is that person a legal person in the forum, if a natural
person, corporation or incorporated organisation then can act. If not a legal
person, can ask if the person is one under the foreign law of that person. If
they are a juristic entity in the foreign jurisdiction, will grant that person

3) There maybe a mandatory rule of the forum to say something about standing
where certain codns have to be met. If they are not registered in the forum,
have no right to sue as P for any conduct in the course of carrying on

- Law of the forum to determine jurisdictioniction

- In making the determination, can be qualified under forum law or foreign law
of that foreign person
- Unless there are mandatory rules as to certain conditions

- Canadian const issues
- Dealing with jurisdiction of the judges in Canada to deal with constitutional
validity of legn even though that legn is of another prov.
- In Hunt, BCCA exercised restraint
- SCC said it was commendable but misplaced in assessing Quebecs legn.
Quebecs legn couldn't be challenged internally.

Consequence of Hunt
- All of Cts in Canada can deal with constitutionality of legn in Canada, even
from another prov
- Consequence is superior Ct record in each prov can take probably judicial
notice of law of other provs without that law having to be proved as fact.
- SCC and Fed Cts had already asserted that.
- Can interpret Canada and Provincial Evidence Acts permit that to be done;
Quebec civil code lets that be done too.

- Procedure is always lex fori (law of forum).
- When apply choice of law principle, may be applying law from another
jurisdiction. Difficult ?, what is subjstance + what is proceudre.
- Look at precedents + historically Engl precedents, see significant emphasis
on lex fori (for various reasons) and often led Cts to find things procedural
when that classification in fact was questionable or less obvious.
- Engl law has been amended by legn
- Diff b/t Engl + Canadian law is not acute b/c of amendments in UK.
- Some changes to bring UK in line w/ EU req'ments.
- some idea of things determined to procedural vs. substance + idea of
inquiry/mechanism to determine that issue.

Tolofson v. Jensen
- leading case re: tort + conflict of laws
- p536 focuses on issue on substance + procedure. looking particularly at
limitation period.
- Pls = residents of BC + car registered in BC. Df = residents of SK. MVA in SK. 1
yr limitation period had expired. SK legn didn't let gratuitous ppl collect if
willful/wanton ???( stnd of obligation w.r.t. certain ppersons in certain contexts).
- Df was suing in BC. ? of jurisdiction. choice of law = what law is oging to apply?
= substantive/principle issue in Tolofson case. decided lex loci delecti for
interprov matters. also established rule int'lly but in int'l context, left open
exception where justice would be req'd, law of forum wouuld apply. BUt no
exception in interprov context.
- having decided that change in private int'l law in cdda. ? = how to deal w/
situation here if applying SK law .. what are these aspects of SK law (esp
limitation period .. are these periods procedural or substantive). If procedural,
then BC would apply not SK.
- crt in Tolofson looks back at hxcal position. common law Cts in UUK/US =
limitation is procedural. Civil law EU = limitation was substantive. speculation of
why common law took firm position in UK + US = foreign litigants shouldn't get
adv over forum litigants. Where did event occur + should that law apply?
- UK preferred lex fori .. but ??
- Common law had theory that rights would last forever but limitation would
remove ability to enforce right through the Cts. That is thought to be discredited.
if can think of situations where hxcal theory would work, eg. in relation to land. it
may be that if have right of entry on failed condition subsequent ... grantor loses
right of entry after 6 yrs. BUT if move to determinable fee, no need for that to be
exercised. After 6 yrs have expired, if its a determinable fee, land is yours in law
but can't use Cts to get it but if get another way (eg. ppl absent from land + you
move in), they would come back + have to get you out. Distinctions b/t rights +
remedies wasn't wholly illusory. there were situations where couuld claim benefit
of legal right even though not in position for Cts to enforce that for you.
- How to deal w/ in Canada ..
= UK legn 1984 changed limitation period from prcoeduural to substantive
= crt provided test = does the particular law make the machinery of forum
run smoothly. if yes, then procedural. OR does the particular law reflect more the
determination of rights b/t particular parties? then substantive
= limitation period has some significant aspects that relate to rights b/t
parties. concerns Df right to plead .. affects obligation at law b/t parties. BUT if
wanted to justify this as procedural, not impossible to do that .. just say that
limiation period designed to make machinery of forum smoothly... machinery
can't run smoothly after period of time that memories worse, parties at disadv
(can't work when things are stale). BUT these are rights b/t parties. SO it has
elements of both. so boils down to policy choice. making it substantive is okay.. in
line to civil law + UK law countries. amendments for change in US too. BUT 1
shouldn't regard it as so obvious + could smirk .. reflects modernizing of law...
need some measure of harmonization.
= so limiation = substantive in Canada via tolofson. consistent w/ civil law

Somers v. Furrier

- MVA in NY. Summers resident in ON. Furrier resident in NY.

- no ? of jurisdiction b/c Df attoned to ON.
- but ? of substantive law of NY applying or not --> yes after Tolofson
- this case interesting b/c the submission on p615 that this being a foriegn
situation, exception to gen rule Tolfson was avail to be argued. serious injustice
argued to occur if crt applied NY law. Rejected ultimately. p615-8.
= There were various cases following Tolofson where exception was
applied (p617). those cases occurred b/c after Tolofson, there wasn't universal
acceptance .. many asked how to get round Tolofson. Many saw it as inflexible

ONCA Wong v. Lee

ONCA says exception is not to be exercised except in exceptional
= to get exception, it was argued (as in Beals) that played game according
to some rules.. but 1990, crt changed rules + now disadv b/c of that. We played
under rules that thought were rules.
= when dealing in conflict of laws, a change of rules that has retrospective
appln by proceedings in pipeline can work injustice + system doesn't have
mechanism to deal w/ that. Does raise ? .. when one mkg claim that will involve
interjurisdiction issues, perhaps change should be by stat amendment w/
prospective appln + lots of notice. Don't think there was much injustice here
(howell) b/c crt said woulnd' have made diff.
= should legislature be more active?

Hanlon case
- unavil of claim by family mbrs would work injustice
- example of when exception would be exercised
- in gen, not convinced by Howell

- latest word w/ Wong v Lee 2002 = on exception to lex loci delicti (tolofson int'l
- no excpetion for interprov matters
- might argue interprov matters have const dimesion (howell not absolutely
Spring 2004

[CHAPTER 12: page 567]

- History was later changed by Tolofson.

a) The Rule in Phillips v Eyre (Double Accountability)

CASE 1: Phillips v Eyre

- 19th c. case
- Rebellion in British Colony Jamaica Governor of island Eyre proclaimed
Martial law in some districts.
- Action brought against Eyre in UK for false imprisonments, other torts.
Jamaican legislation removed liability from governor and all persons
concerned. Found acceptable.
- Jamaican law extinguished right to bring action, even if brought in UK.

Applied formula from The Halley case - 2 conditions:

1) Wrong would have to be actionable if had been committed in forum (UK)
2) The action must not be justifiable by law of place where act was committed.

CASE 2: Pettigrew
- D and P were Montreal residents, accident in Ontario
- What law applies?
- If occurred in Quebec, D would've been liable Meets 1st limb
- 2nd limb: No civil action avail in Ontario on these facts. Highway Act barred
any action by injured gratuitous passenger
- Ct said even though no civil recourse available in Ontario, but Highway Act
or maybe Criminal code had been breached.
- Said Highway Act s27 due care and attention requirement was breached,
therefore act was not justifiable.
- Gave broad consequence in that rule relating how to justify something
- Find situations that wouldn't justify the act.

CASE 3: Boys v Chaplain (1971)

- Whether Canadian law should be modified to reflect changes from Phillips
Road accident in Malta. P and D were brit servicemen.
- Issue: Whether P was entitled to damages for pain and suffering, loss of
- Under Maltese law no damages, under UK law would recover
- How far do we interpret justification? Was the wrong justified or not?
- Phillips v Eyre rule retained, but focus on lex loci delecti was strengthened
b/c rule on justification changed to "would there be civil accountability
where event occurred"
- From that situation, rule of double accountability focus on whether it was a
civil wrong to would there be civil accountability?
- Ct would have discretion to apply lex loci delecti in any situation appropariate.
- So it narrowed down rule in engl terms to look at civil accountability
- HL also carved out discretion to apply lex fori or lex loci deleicti as saw fit.

Considerable watering down of Philips v Eyre rule as Cts have the

ability to exercise discretion

Trends in US + Australia + other Commonwealth

- Move away from double accountability rule and prefer one simple rule
prefering lex loci delecti


[CHAPTER 12: page 587]

Tolofson v Jensen [1994]

- Decision came to SCC after BCCA decision applied Pettigrew case
- Said decision was wrong as didnt separate issues of jurisdiction and FNC
from choice of law submitted applicable law was of Sask
- Whether wrong was justifiable in Sask couldn't sue in Sask (b/c limitation
period + old rule in number of provinces that gratuitous passenger couldn't
sue driver), but still wasn't justifiable in Sask.
i.e. Unaffected by any changes in Chaplain v Boys.
- SCC consolidated case with no faulty system in Quebec case
- Ct took opportunity to change conflict of laws rules in general tort context
- Very apparent in situations of act vs. consequences of act and in situations of
multiple injury (esp in defamation), multiple liabilities
- Even in personal injury context, have prospect of multiple jurisdictions (torts
happening in multiple places although one act)
- Rule of lex loci delecti doesn't solve everything BUT it does get rid of double
accountability that tended to favour law of forum

Ct here moves to make some amendment to law in Tolofson.

- Ct notes, it is within power of parties to apply law of forum.
- All you need to do is not plead the foreign law.
- If don't plead foreign law, then law of forum applies OR by theorising that
foreign law presumed to be same as forum law.
- However articulate position, does give parties power to apply lex fori if parties
want that to be done.
Chaplain v Boys rule
- Want to make change to this rule
- Stipulates governing rule is lex loci delecti.
- Ct did in international context preserve an exception to this: If reqd for
interests of justice in intl context, lex fori couuld be applied.
- La Forest suggested it would be a most rare type of situation that would give
arise to such appln in terms of injustice

Whether such an exception should be applied in Canada

- LaForest would want Lex Loci Deliciti ruule to be of appln everywehere (inter
prov and intl)
- BUT other ppl in Ct wanted discretion at least internationally and some
thought there should be that discretion at interprov level
- Debate seems to be focused on this discretion. Chaplain has preserved
NB: In interprov context, is there any constitutional room for a leglislature
to differ from finding of Ct?

Overlap which we can conceed with other areas of conflict of laws.

LaForest looked at:

- discretion of law of forum
- double accountability rule why emphasize forum vs. law where occurred?
- b/c don't like law where event occurred
- so like policy defence, enforcing judgment which is contrary to local public

LaForest develops theory: Desire by some to retain discretion in forum, is akin to

desire to strengthen policy of enforcing judgment
- LaForest says don't want to use policy in this way, but saying this is what
dissent trying to do

LaForest puts great deal weight on fact that a Ct will take jurisdiction
only if RSC
- Thinks that will provide answer to most questions
- Linking w FNC, if the law of forum isn't appropriate law to apply, then answer
provided by FNC - case should go off to be heard by jurisdiction that applies.
Connection between choice of laws + FNC
- If going to apply law of other jurisdiction, then may be that other jurisdiction is
more appropriate forum than yours to hear case
- BUT this is unclear, questionable re: relationship between JS + FNC.
- RSC test for JS. established on grounds it has a (not most) substantial
- Prof Howell doesn't think this idea of LaForest will pan out.
Should there be an exception in Canada to the lex loci delecti rule
- To want public policy exceptions shows that Ct doesnt approve of the law
that the legislature having power to enact it within its territory has chosen to
- Context receving lots of attn in this case is where parties to proceeding are all
or mostly from forum but tort in other jurisdiction.
- In circumstance, as matter of policy + judicial experience + party expectation,
then law of forum should apply.
- Point to international context Exception under Hague rules where all
parties involved in the accident are from the forum. Although Canada is not
party to that aspect of Hague rules.
- Reason for Hague exception is guarding of sovereignty - particularly in
european context
BUT rejected here interprovincially
- LaForest fails to see any application for such principle in single country
- Reasoning: Sees it as nation building, lex loci delecti links country;
- Would be open for provincial legislature to enact that if all parties come from
BC + have tort event in US, that BC law applies. Constitutionality of that
wouldn't infringe, but might be constution dimensions if law passed in
interprovincial legislation - consistent w/ hague rules.
If have 2 rules (LLD and LF) and all parties are in forum, then will push
lawyers to find 3rd party from outside forum if don't want forum law

The more certain a rule is, the more likely settlement would be promoted - would
avoid litigation to settle.

Constitutional Situation in Tolofson

- There is scope for prov legislature to pass choice of laws diff from tolofson in
int'l context, esp if parties all from same prov.
- but if interprov context, then not wholly academic .
- Art 3126 Quebec civil code stipulates LLD but goes on to say if D+ P have
domicile in same country, then law of that country applies.
- SO Quebec followed hague rules.
- Quebec favours following int'l rules vs. common law situations.
- Tolofson didn't have to answer const of this question.
- Ct able to come to conclusion - legn was specific + not cmplx

What is const postion re: choice of laws re: interprov?

- Const problems weren't averted to in Cts below and were largely dealt with in
this Ct as backdrop to other issues.
- Approach suggested unquestionably is in conformity with const.
- This is not a case that stipulates LLD const, it merely stats that LLD would
meet const stnds (but doesn't mean that other arrangements wouldn't meet
const standards).
- Jurisdiction of judges is similar to power of legislature to make law unless
indepedent basis of judicial authority + federal power.
- Provincial power found in 92(13) - ppty + civil rights in province

b) Concurrent tort and contract

- What if BC enacted different choice of law rule
- Either rule looking for proper law of tort + is rule of contract
- Balancing of factors: what is jurisdiction with most connection with case
that jurisdiction's law should apply. What if prov were to enact this?
- LaForest notes that + seems to indicate some sort of disapproval which might
amount to extra territorial exercise of provincial power.
- But LaForest says there may be more promise if province to enact legn only
affected their residents. so Quebec code could be const in relation to
residents of Quebec. "go no further on possible resoln of these problems"
- Other rules may run gauntlet - may be promise of validity is talking only of
own residents

Interprovincially, any attempt to legislate rule, proper rule of tort, would run into
const difficulties on being extraterritorial
- But rules do exist on proper law of contract.
- Quebec situation potentially could be okay, but doesn't find favour with
LaForest led Ct.

Seen in Beals, related context of jurisdiction

- Ct did enivsage that legislature could legislate something diff.
- may cross over here

Dissent of Sopinka and Major in Lucas v Gagnon p607

- Agree generally with LLD, but why should it be absolute?
- Parties by agreement should choose lex fori
- Situation would be too uncertain.
- Woulnd't be appropriate to federation of Canada.
- Remember, Quebec Code 3126 is different from rule as stipulated.

On international exception: Somers case

- Some cases applied exception after Tolofson
- some commentators suggested that reflected a sense by lower Ct judges that
didn't like tolofson rule.
- but howell said that ppl in pipeline organized themselves per pre-tolofson law.
- but that didn't succeed in Somers case.
- Ct said in somers even though filed in Ontario, making choice on law as it
was, former position was defeated by tolofson.

Wong v Lee - All parties were from forum but doesn't mean exercise of discretion
in intl context.
[CHAPTER 12: page 624-642]
Couple of torts where LLD may run into problems:

1) Products liability (e.g. Moran)

- Multiple locations of injury, LLD doesn't work in multiple causes of action
2) Defamation
- Key area esp re: internet, difficulty with defamation is tort depends on
publication so liable where publication is made - BUT nature of publication
means made in number of places.
- How to deal w/ national defamation or intl defamtion:
ABC case and Waterhouse
- Ct found that in Australia-wide defamation context, suit was filed in all 8 Aust
states b/c tort occurrred in place of publication in all 8 states
- But Ct says this isn't terribly satisfactory
- Can't analogise torts with physical injury vs. torts with publication type injury.
- But 2 contexts aren't totally apart - some solns in defamation may be relevant
to mass multiple tort.

US has taken 2 broad approaches to defamation

1) Reform law of defamation to provide for single publication rule

- only 1 cause regardless of number of times defamation published and
number of ppl to whom it was published
- Goes to law of 1st occasion
- use of abuse of process provisions
- only incur damage once (procedural aspect possible to consolidate, but still
have to figure out where it would be heard SO maybe not best to redefine

2) Redefining choice of law rule re: defamation

- Place where P resident has most connection factors
- So choice of law is place w most connecting factors is place where P resident
(not always but common)
- Would provs have const jurisdiction to do that? questionable in Tolofson.
but thats what is done in contracts
- In internet context, might like to look at Dow Jones case of intl defamation.
- Victoria Aust is likely place of damage BUT Dow Jones surprised b/c
thought would be litigated in US HCA had different ideas.

Defamation and product liability produces difficulty for strict LLD to apply
Should either amend torts concerned defn OR amend choice of law theory.

Seems the latter is better for mass type torts, but can our provs do that?
Tolofson is not arguably a const case.
Spring 2004

[CHAPTER 13: page 643]

Proper law of contract that applies as general principle

1) Specific types of Ks for which there are special/international

e.g. international carriage by air or international sale of goods
Apply implementing legislation in your forum

2) International conventions dealing generally with conflicts and K (pg 634)

e.g. Organization of American States 1994
Rome Convention1980: If you bring a proceeding into the forum of a coy
party to this convention, then that forum will apply the Rome Convention
rules even if the litigation involved involves a coy not party to the

3) Process of Arbitration (which we wont be dealing with)

If in an exclusive jurisdiction, then clear this jurisdiction will apply. Under
other arbitration e.g. Intl Commercial, rules arbitrators can apply rules it
deems appropriate

4) General Conflicts Choice of Law re K

Proper law of the K: What is the system of law with which the K has the
closest and most real connection?
- Judge-made law (in CL system)
- Objective of this system of finding a proper law is that you are looking for
one law that will deal with all issues that arise concerning enforcability of
rights and duties of the parties under the K.

5) Other laws or matters outside of the scope of the proper law

Tend to deal with ancilliary details e.g. capacity of infant to contract (look to
jurisdiction of infant to decide). Outside legal and enforcability of rights and
duties like the duty to contract.
[CHAPTER 13: page 645]

Take account of:

1) Where there is an express agreement between the parties

- will normally goven completely

2) Where there is an implied agreement between the parties

- implied intention

3) Where there is no express agreement

- No factor implied intention

In each case where you look at these areas (pg 676), in both contexts, what you
are trying to find out is the sys of law with which the K has closest and most real
Must first see if there is an intention that can be gleaned by implication.
- If no express agreement, must find place with most real connection and if
there happens to be such an implication of an intention, it must be taken into

2 and 3 are actually very close often come down to same sort of enquiry, only
that 2 has a little inclination towards the fact that there is intention.

a) Express Agreement by the Parties

Vita foods case [1939]

- Looking at shipping law
- Indicates a lot of factors about choice of law

- Shipment of herrings from NFL (at the time independent of Canada) to NY,
Def was ship owner and P was cargo owner.
- K that was entered through bill of lading had been entered into in NFL and
expressly stipulated Eng law would apply.
- Ship ran into bad weather off Nova Scotia. Damage due to negligence of
ships master in navigation.
- Case was being heard in Canada, but K made in NFL, ship was heading to

Around this time there were certain laws agreed to by certain maritime coys
Canada, Aus, NZ etc. Hague Rules, Carriage of Goods by Sea stipulated
clause like s3 of the NFL Act so that all the maritme coys had legislation that had
section like s3, by in large. K is to have effect subject to Hague rules. Every
signatory coy would have this situation.
- But looking at s1, in every case the rules enacted by the various coys, said
they applied to cargos LEAVING their port (ie NFL, Eng legislation applied
to cargoes leaving Eng, Aus cargo leaving Aus).
- Therefore parties can easily get around this rule loophole for parties to
avoid requirement by stipulating law of coy other than where your cargo was
leaving from.
- English legislation would not apply because although they have statute, it only
applies to cargo leaving Eng could not apply to the cargo leaving NFL
- But NFL law couldnt apply either as the K said it should apply Eng law.
- If case was brought in NFL or Eng, and cargo had left from Eng, then it may
well be that NFL has to apply b/c it could be interpreted as mandatory law of
the forum.
- If you choose forum, place where cargo left from, will be bound to law of
the forum
- But if you are in a forum other than where cargo left from, and choice of law
not from where the cargo left from, could take advantage of loophole.


The Torni (Eng CA 1932)

- Ship case with very similar facts, except dealing with Palestine ordinance
similar to the NFL one
- CA said stipulation that K should be construed by Eng law doesnt mean it
should be the proper law only the rules of construction, not the
SUBSTANTIVE laws should apply
- PC got rid of this, Lordships didnt agree to this view of the CA.
- Precedent was removed and therefore substantive laws DID apply.

Ct acknowledged CL rule: first question is to ascertain what was the bargain

of the parties, and should try to give effect to this bargain. Only fail to give it
effect if prevented from doing so by foreign law that binds the forum. In this
case, would say is the forum Nova Scotia bound by the foreign law NFL
stipulating this provision had to be put in the BoL.

Ct poses this issue Whether failure renders it void in the Cts of NS

- Have to contemplate when looking at foreign law, in general, NFL legislation
or Palestine ordinance are not to be given extraterritorial effect.
- When parties choose an applicable law, rules would ordinarily say intention
of the party is the general test and gen intention would apply to all
substantive law of the chosen law, not simply those relating to the
interpretation of the K.
- Court held NS should not be bound
- Parties had chosen Eng law, which covers Eng substantive law, and the
Eng statute is applicable only to cargoes leaving Eng
Result is the BoL was not void, not illegal, it must be accepted as a valid
doc in the courts of NS.
It is possible to have a situation where a forum court would declare itself
bound by the law of another jurisdiction (by its own laws).

Gillespie (Eng CA 1932)

- Mme Justice Sutherland, regards mandatory provision of Washington.
- Law of another jurisdiction cf its own jurisdiction is mandatory. Why does it
do this? Because it feels the foreign illegality ought not to be given affect to.
- It is so significant in the context of the case, the illegality, even though foreign,
should prevent operation of the transaction before the forum.

The intention of the Hague Conference on Carriage of Goods by Sea wasnt that
BoL will always stipulate that shipment is always subject to the Hague rules.
- Even though signatory coys have drafted to cargos leaving its ports
- Is so central to Hague rules that all supplementary laws of that provision
mandatory laws of another coy. (Uniformity of Hague rules in all coys)

Why ultimately didnt the PC argue this?

- PC saw the BoL as not merely a K, but also a negotiable instrument. Once
a BoL is endorsed, it transfers ownership of goods from seller to buyer.
Negotiable instrument when endorsed as valuable as cash.
- Therefore didnt rule in line with uniformity of rules (would have nullified the
negotiable nature of BoLs)

The effect that when parties choose a jurisdiction, that other law can incorporate
other law from another coy or it may have regard to other laws even if not
incorporated in its own law (see 5) above).

The coy that you chose for their law to apply, doesnt nec have to do anything
with the transaction. This doesnt mean Eng can take jurisdiction - the real and
substantial test and the discretionary test (forum non conveniens) would have to
be met. Jurisdiction is entirely different, nothing to do with choice of law.

i.e. Because UK law is chosen, doesnt mean UK applies as jurisdiction to

hear the case (need RSC and FNC)

If both parties chose Eng as not only choice of law, but also forum, then the fact
that parties have chosen that place, it is likely the RSC test would be met
b) Implied Agreements

Star Texas case [1993]

- Beijing or China, London? Depends on what D chooses.

2 issues raised:
1) Was the clause void for uncertainty court said no
2) Uncertain who the defendant was, therefore what does the 1 st party have to
do not to be seen as the defendant, but the plaintiff.

Who could choose where to arbitrate?

- D could be any D in any legal proceedings OR it could be regarded that any
litigation that follows as litigation, any could be seen as a D
- Carelessly drawn clause in terms of who is a D. Should have had more of a
defn in terms of giving one party the right to choose - words such as who has
a claim against such a party (not using the word D)

What were the parties intending a floating proper law?

- The CL has never recognised a floating law as a proper law of K
- Has always required that a K have a set and proper law, it not, then it is not a
K. If you detach a K from a body of law, then it does not exist
- Court said if you have a proper law, can certainly have a clause that chooses
a situs for arbitration.
- In interpreting a single choice for arbitration, ct will weight it as saying if you
choose Beijing as single place for arbitration, then the choice of law will
also be that of China.
- When you have a dual situs, will lose any implication that you can get from a
single situs. Brings you more into the floating area and hence is a less
strong factor.
- Third situation where you simply say arbitration can take place under intl arb
rules, then cant say wherever those rules allow those arbitrations to take
place, then this is the law of the K. Not only dual, but multiple places.

Will not put weight on place of arbitration if there is a choice between 2. But,
once you have determined proper law of the K, then you can have choice as to
where you want to litigate the matter. The Ct called this the floating curial law
i.e. a floating place to litigate. Nothing wrong with having a floating place to
litigate, but have to have a proper law to start with. The floating aspect cant
relate to the law, it can only refer to where the case is to be heard (which court).

HELD: Proper law was Eng law in this case and the D as they defined, could
choose to have the Eng law applied by Eng OR Chinese court.
c) No agreement between parties re: choice of laws

Imperial Life Assurance case [1967] p 665

- Court is simply trying to determine from the whole of the circumstances,

where there is the closest and most real connection.
- In trying to choose which jurisdiction Cuba or Ontario had the most real
connection, the Ct considered what the parties might have contemplated
i.e. INTENTION reinforces the point whether there is really any difference
between 2nd and 3rd categories.

What is diff between no agreement on choice of law and implied

agreement on choice of law?
If dealing with implied agreement of parties, looking more to matters that may
have been in contemplation of parties (more so than objective proper law of K
Ct deciding by principle vs. what parties chose)

Issue: Would proper law be Cuban or Ontario law in the Imperial case
- Relevant re: payout surrender value b/c Cuban law has no surrender
payments in US w/o permission of national bank Cuba.
- If proper law was Ontario then surrender value could be paid
- Delivered to P, Cuban national insurer said policy was addresed to head office
in TO.
- Conformed in every respected (except lan) with policies/laws in Ontario.
- Were same as standard form contracts issued by this comp.
- The decision-making ppl were in TO.
- Policies couldn't be varied except by head office. changes have to be
signed by 2 execs in head office = pt of dec in insurance comp.
- Premiums paid in US $, surrender val contemplated in US $
- K made in cuba but agreement actually (dec bringing coverage into effect)
was made in TO. Could argue that not effective til delivery in cuba

TEST: Determine the proper law of K by considering the K as a whole in

light of all the circumstances which surround it and applying the law which
it appears to have the most RSC with
- domicile
- residence of parties
- national character of corp
- place K made
- place K to be performed
- Style of K drafted if appropriate to particular system of law
- If K valid in one law but invalid in another
- Econonomic consequences of K
- Nature of subj matter or situs
and other facts that serve to localise the K
Ct refers to location of HO in Toronto
- Moreso the making of the decision to go on risk was made in TO
- Ct adds it would be reasonable inference that person applying for insurance
on a form prepared at the HO Ontario would be governed by the law of that
province form of policies in this case governed by law of Ontario

Therefore this case is mixture of looking at objective factors relating to what party
would anticipate. The more you look to what party would anticipate, the more the
distinction between this category and that of choice of law (still rather thin tho)

- Implied agreement is more about what parties anticipated

- Where no agreement, more obj factors vs. what parties anticipated

Ct here suggests that split proper law

- Notion of splitting of proper law has been looked at (e.g. Gillespie case
Cummings CA) but defeats object of proper law inquiry (should avoid splits -
this law is most relevant and as matter of policy this law ought to apply to talk
of dividing proper law in these places).
- Have been cases where Ct looked at this jurisdiction for particular aspects but
very divided approach - doesn't have much authority behind it but has been

Amin Rasheed Shipping Corp [1984]

- Fact that can't have floating proper law of K but can have floating curial law of
K or floating forum (place where something is decided)
- To be K, must be recognised by a body of law as K. lots of obj assessment
- Although looking at what Ct decides on what parties insist on proper law, lots
of attn on what parties might have contemplated
- So suggestion that 2 categories aren't too far apart.
- HELD: Look at factors normally regarded as relevant when the proper law is
being searched for, including the anture of the policy itself, look for the system
of law which has closes and most real connection
- English law was found to be the proper law

Whether agreement by implication or no agreement

- In both Imperial Life and Amin Rasheed, seeking system of law w which K
has most RSC
- situations merge significantly
- No indigenous law in Kuwait as to marine insurance. does that produce
situation of uncertainty?
- If show that Kuwait is applying UK law to marine insurance policies then
not uncertain
- But if the Kuwaiti jurisdiction without own indigenous law hasn't been seen
to be applying another jurisdiction's law, then could be uncertain
Multiple Proper Laws
- Little case law on multiple proper laws
- Seems to defeats object of proper law
- Rome Convetion and Organisation of American states (south amer, civil law
cntries) convention contemplate it

Article 4 Rome Convention 1980

Where there is no express choice of law and where there is party that has to
effect performance of a matter that is a principle characteristic of the K, then
that parties place of habitual residence is the place of appropriate law.

This is a murky law to common law mind. It is incorpoated in civil code Quebec.
Quebec will freq do this in civil code (matters drawn from int'l conventions).
- Presumed that where the chracteristic act to be performed, it is to be place
most closely connected with the K
- Canada is not a party to Rome convention
- Characteristic relates to particular K and event it contemplates
E.g. Sale of goods
- person who has to deliver the goods, where that person's habitual
residence is would then be the proper law.
- where no delivering of goods there is a problem

2 enquiries:
1) what is most closely connected law
2) then presumption that if can identify principal characteristic of particular type
for K and then identify

But not enough articulartion on steps in mind regarding what jurisdiction has
next/closest jurisdiction
- not really advanced situation
- maybe can say that produces more certainty?
- No contemplation that cda will be party to rome convention

d) Limits on Parties Choice of Law

Impt area because mostly a partys choice is gen accepted (esp in common law
jurisdictions) so if you make choice, then expected to live with that choice

BUT the forum Ct is bound by any mandatory rule of forum

e.g. Vita foods (shipment from NF to NY, forum was Nova Scotia)
- If forum had been NF, then stat rule requiring bill of lading statements would
have had to have been given effect so as to invalidate the K (notwithstanding
engl law stitpuatlion in K)
- Parties can avoid mandatory rules by choosing a law of jurisdiction that
doesn't have rule and then provide for jurisdiction to be in that forum as well
- But Ct may sometimes contemplate that parties choice not bona fide choice
(sole purpose is to forum shop + avoid particular mandatory rule)

If there is no bona fide reason for choosing another law to apply and the place
that would normally be the proper law has a mandatory law sought to be avoided,
Cts say this might be a restriction on parties ability to choose particular law.

Ct will ask if there is some good reason for choosing particular law beyond
forum shopping
- Vita foods: common to choose UK law to govern maritime acts. parties
wanted to take adv of body of law that had developed.
- It wasn't done substantially - could've chosen NY law which would've been
more bona fide (b/c choosing where delivery would be made)

Golden Acres case

- Sale of land in Queensland, which was natural forum, place where
proceedings brought Claimant was a co. from HK
- Exclusive world wide fanchise agreement entered to in HK
- Queensland statute said real estate agent not entitled to sue unless licensed
under the Act no commission had to be paid for violation of agreement
- Ct found that clause was mandatory (as in Gillespie), Queensland Act applied
- Trying to get around the license system: attempted selection of HK law was
for no other purpose than to avoid the operation of the Queensland law

Greenshields Inc Case (1981)

- Involved Toronto investment dealer that was working in no. of cities across
Canada. Had entered into agreement in Alberta whereby a guarantee was
taken by Albertan resident
- Albertan law provided by statute for certain formalities that have to be
complied with in order for guarantee incl requirement for signing of obligation
before public notary
- Ontario law never had such a provision was this simply an attempt to get
around AB law requiring as matter of consumer protection for notary public
- Looked at facts: Co. was in Ontario and doing business across Canada so
enough to say it wasnt an arrangement to defeat the mandatory rule of
Alberta dealing with guarantors in Alberta

If both parties were resident and doing business in Alberta, but said Ontario law
applies, then would be caught on lack of bona fides.
[CHAPTER 13: page 690]

a) Formation

Mackender demonstrates how this area of law is tricky

Mackender v Feldia AG [1967]

- Involved Lloyds underwriting for diamond industry
- Lloyds wanted to get into insurance business re: diamonds but diamond
industry has large connection with Belgium more familiar with law in Belg
and civil systm Lloyds had to agree to Belgian law
- Lots of illegality in diamond industry - Lloyds took position that didn't know
about that
- Claim came up re diamond smuggling
- Claim was brought to underwirters who took 2 positions:
1) There has been smuggling going on here (not when diamonds taken from
body of broker but there had been antecedent smuggling involved) so
question of illegallity;
2) Insurance law question - process of crossing borders w diamonds without
declaring hadn't been disclosed to Lloyds (insurance K require utmost good
faith, if don't disclose what could affect risk then policy is voidable at the
discretion of insurer)

Insurers brought proceedings in UK and wished to have proceedings declare K

against public policy and hence void
- If K fails, with it falls the choice of law clause and excl jurisdiction clause in
- Therefore an attempt to deprive Belgium of jurisdiction

- Problem is the nondisclosure didn't present situation of immediate invalidity
(ab initio), it produced only situation where K is voidable (cf void)
- So insurer could elect the K void from this point in time but not earlier.
- Wouldn't give ground for total nullity
- UK Ct held you can't say that K doesn' exist, K says belg jurisdiction excl.

- Nothing on facts arose in any activity re: smuggling.
- Smuggling was in background.
- If this were UK law, could argue that antecedent illegality taints the whole K
- If taints whole of K, then K is unenforceable (not voided).
- K still exists but unenforceable in UK law But Belgian law has no
equivalency of tainting for some general anticedent illegality.
- Deprived of opportunity of saying that K void from beginning.
- Put insurers in position of having to ask Ct in UK to proceed in matter where
proper law is Belgium, where matter proceeding in Belgium and no way of
denying jurisdiction to Belgium (validly entered into K)
- Matter must proceed in Belgium

Consequences of this would be

1) If deal in generally with illegality: If UK law had been proper law of K, then K
wouldn't have been enforceable in UK Cts, nor would it have been
enforceable in any foreign Ct as the foreign Ct would be applying UK law
2) BUT If Belgium law is proper law of K (as it was) then it wasn't illegal in
Belgium, and Belgian Cts would enforce law (had proper jurisdiction)
3) If proceedings had been brought in UK, then may well have been that UK
laws wouldn't have enforced it b/c of the mandatory law dealing with
Only insurers wanted to enforce in UK
4) If enforcement had been brought in Canada, Canada woud have enforced
Belgian law where not illegal, unless one could say that Canadian law also
found that general tainting had taken place

If could find a K was void ab initio or complete nullity, could raise some sort
of legal challenge to K that shows K doesn't exist at all. Then theres nothing that
can give jurisdiction to Belgium (K entered into in UK; K now nonexistent).
i.e. Must find something that destroys existence of K

When challenge the very existence of K which gives jurisdiction to forreign

country and selects foreign law to govern K, then we're saying what law do we
apply to determine if K that gives the foreign choice of law is valid.
- Really asking Ct to engage in separate inquiry by saying that object law to
look to determine validity of K is different from law chosen by parties for
operation of K
- Law looked to is underlying objective law
- Separate from proper law chosen

b) Contractual Capacity
- What if parties never had capacity to K
- Capacity issue is determined by a law other than proper law
- Proper law is therefore the objective proper law of the K, not the proper law
chosen by the parrties
- Whether agreement on what proper law should be is a valid agreement.
needs something that takes out validity of proper law itself.
c) Formalities
- Certain formalities are needed re: licenses for engaging in certain operations
e.g. real estate agent
- Comes down to where you are bringing the particular action

Greenshields case
- If in jurisdiction where not bound by that rule, you look at the proper law
- If no such requirement (Ontario) from formality perspective, then there
is no application of that

d) Mandatory Rules of Legal Systems Other than the Proper Law

Backs into notion of illegalities

- Gillespie and Avenues cases
- Typical rule is the rule of forum (Avenues)

Gillespie was an unusual situation applying principle of illegality

- BC Ct could not enforce an act that was illegal in the place of performance
i.e. mgmt and collection of rents re: apartment in Wasting state was legal if
wasnt issued in Washington state
- Sutherland J based it on illegality Agreement couldnt be enforced in BC
e.g. of mandatory rule of another jurisdiction enforced in forum jurisdiction
- The other 2 judges split on other aspects of law
Spring 2004

[CHAPTER 14: page 723]

a) Categorisation as movable or immovable

- Not categorising as real (land or certain types of things associated with land
e.g. easements) or personal
- There will be a difference depending on whether it is movable due to law of
situs of that ppty

1) Preliminary Question: FORUM state for which lex fori has to answer
Where is an item situated

War Eagle Mining Co

- Mineral claims Ct concluded mineral claims were situated with land to
which claims were associated/related (Sask)
- BC Ct said it should be linked like stocks and shares to where transfer docs

2) Law of situs will govern as to whether they are immovable or movable

- If law of jurisdiction says it is immovable then will mean law of situs will prevail
- If it says it is movable another law may prevail

Hogg case
- Series of questions as to tax focussed on by Sask Commission
- Could only tax if there was devolution under the law of the province
- Succession law had to be law of Sask
- Were the mortgages immovable or movable
- If they sere located in BC, if BC law said they were immovable, BC law would
- If movable then sask law would apply
- HELD: they were immovable therefore BC succession law applied and would
devolve as personal ppty
i.e. relevant law for devolution was BC, the law of situs

1st enquiry: Where are they located?

2nd enquiry: Applying law of situs, are they movable or immovable
b) Foreign Immovables Jurisdiction

CASE 2: Mocambique
- Haunts modern 21st c. intellectual material
- Concerned with land in South Africa, P & D both located in England
- Situation arose in SA re: land which one could characterise as trespass of
land Qs as to title, possession of land
- Both parties within jurisdiction did UK Ct have jurisdiction to enforce
trespass in foreign jurisdiction?
- Seen as an action relating to damages
- Ct did have to get in the question of title. If P found to have better title, will
avoid liability issues

1) Ct couldnt give decision as rights of title/possession of foreign land
2) Ct couldnt give damages re: interference with foreign land (damages in
- 2 disagreed on issue of title that generally accepted a decision as to title
or rights to possess land in foreign jurisdiction should be determined
by law and Courts of that jurisdiction
- Debate as to granting of damages

Rule that came in later cases: Other matters concerning land e.g. injury to land,
should be left also to law and courts of situs of the land

In Mocambique, the Ct was in some doubt as to what it should do had been

situations by Cts in equity to say reason why CL Cts were so strict in relation to
rights of title/possession because of conveyancing and procedural processes.
- In England itself, was procedural practice to do so in local court with local jury
- Judicature Act 1873 and 1885 made it clear action could be brought in any
country in England (Eng law applies everywhere)
- Argued this should be applied internationally as well

But it was rejected by the HL, found questions of title and in relation to
possession are determined by the law of situs (foreign courts have no
jurisdiction in these matters)
How far to extend the Mocambique lex situs rule?

1) Rights of Title/Possession (to land and immovables)

2) Damages in personam (not involving title/possession)

- Subject to criticism in this section too broad?

LEX SITUS ----------------------------------------------------------------------------------------

3) Other situations concerning the foreign land

e.g. damage to the land (beyond pure trespass) | Question area
4) Situations that involve some other area of law (other legal contexts re:
e.g. contract that might relate to sale of land (land is just incidental, part of the
context of the case)
Lee v Li case: Fraud occurring in BC but subject matter was land in Taiwan

2-4: Who should be able to exercise judicial authority and where should it apply?
- Slippery slope argument

Local or fixed criteria and transitory criteria link to IP area of law

- 2 members of the CA drew a distinction between local or fixed criteria and
transitory criteria but this was rejected (significant for the IP area)

Granting of patent
- Government grant and applies only in territory
- Fixed into jurisdiction that grants it
- Very similar to land (suggested distinction issues going to validity and title
cf issues going to infringement)
- A lot more formalities (application for grant)

- Broad international treaty basis, protected in all countries under the WTO
- Any country belonging to the WTO is able to take jurisdiction
- Transitory ppty right/issue has no situs of itself
- In effect it is the ultimate of immovability
- Little scope to challenge the validity of copyright (no formalities)
- Need skill and judgment for copyright

If talking about infringement in jurisdictions other than where it was granted,

should be allowed to enforce where the infringement took place (applying laws of
the granting jurisdiction) cf validity/title always situs of grant

Discussion comparable to title/possession of land cf disputes between parties

relating to or concerning land (Mocambique).
- This is why Mocambique has been talked about in IP law
Court in Mocambique said good reason not to interviere with title/possession is
that there is no means to enforce come and get me off the land
- Issue injunction, like in Airbus, no effect

DAMAGES: Slippery slope argument

- If award damages for trespass to land, how do we know wont go back to SA
and also get damages there?
- Dispossessed of land in SA P gets $ in England, but could go back and take
land by force and therefore person has BOTH land and damages
Therefore shouldnt entertain any issue of damages
- English Chancery Division flirted with doing something re: damages but it was
rejected in the Mocambique case

CASE 2: Hesperides case

- Cyprus 1974 invasion by Turkey, is partitioned
- Greek hotel owners had to leave, still owned hotel
- Turks said they had title come get it
- Package tours from UK to hotel in turkish area
- Greek Cyprians sued in England trespass on hotel ppty

To overcome Mocambique rule, reformulated the claim to say your wrong is the
conspiracy to commit trespass (with turkish cyprians) in North Cyprus

Went to HL: Rule in Mocambique has 2 limbs

1) Determination of title or right to possess
2) Recovery of damages

First submission said to preserve Mocambique BUT get rid of the 2 nd limb
- HL declined to do this: was aware in Mocambique, that it did involve a right to
possess but also aware that they discussed damages
- 2 members of the CA also said to do this, but HL firmly overruled them in
1983 - Cant validate those CA members

1) Rule has been accepted in various other jurisdictions of the CL (therefore
reasons of consistency and continuity)
2) The delicate nature of the rule itself, as it involves possible conclift with
foreign jurisdictions and the possible entry into and involvement with political
questions (therefore should be legislative initiative not judicial)
3) May involve consequential damages that may not know of yet
- In particular relating to FNC preventing forum shopping, the FNC rule hadnt
been fully developed in Eng at the time
4) Cant justify the reasons for change
- compared to the IP evolution of communications and internet
Further to this, a conspiracy to commit trespass cant be different to committing
- Turkish Cyprus had laws that validate this
- Key point is that need to show there is an iillegality
- I.e. Is there a trespass to the land which brings us back to Q1: re title and

Court reversed the decision for CHATTELS (beds, chairs etc.)

- These were movable ppty therefore could be distinguished from Mocambique!
- Could bring proceedings for trespass or conversion of chattel (not for the
immovable ppty)

Beretum and Albert v Fraser

- Applied Mocam, but were under category 3 damage to land (i.e. no Q re:
title) YET they pushed the ruling down to this category which is greatly
- Court in Coles expressly disagreed with this
Rule from Mocam and Hesperides cases:
If dealing with immovables follow law & jurisdiction of where the
immovable is situated.

Spectrum of Issues:
- Title/Possession
- Damage to immoveable
- Issues in relation to immoveables (in personam type issue)

Mocam had title/possession and second limb was damages for interfence with a
moveable. In what circs would we find an exception? Issue going to in rem title
or possession.

Godley v Coles
- Both parties lived in Ontario.
- Condos in Florida. One condo above other. Top condo leaked. Water dmage
occurred to bottom condo. Damage to condo itself
- Therefore the condo was an immovable and there was damage to contents of
condo (moveables)
- Didnt really concern title/possession of the immovable BUT did concern
- HOWEVER both parties were resident in Ontario Ct in Ontario decided that
it was convenient forum, decided not to split juris and able to say there was
substantial portion of damage to moveables as well as immovables. Court
able to proceed in this context.

Case sometimes seen as incorrect bc it didnt follow trend of cases, dealing w/

damage to chattels.
- Howell thinks it seems a sensible result in this context.
- One might ask where was expectation of parties that they would be
proceeding agianst? Arguably, in courts in Florida where condos were. How
much emphasis should be on fact that both parties in Ontario?
- Can you argue combo of subst damages to moveables (pg 739)
- both residents of Ontario-case should be regarded as odd case or could it be
seen as a foothold for saying that principle of convenient forum should be
primary factor that should be looked at and ordinarily questions of damage
to land, no need to insist on same strictness that it should be lex situs courts
(same as title/possession)

Similar to patent law: suggested that issues which challenge validity of patent
which can be granted only by sovereign power of particular juris.
- No reason why ques of infringement that dont challenge title or validity of
patent couldnt be litigated in some other court.
- Hague-says they can be split, e.g., issue of validity could be determined by
state, and ques of whether infringement could be answered in any court.

Ward v Coffin

- P and D both in NB - K entered into in NB for sale of land in Quebec.

- Involves title and possession BUT here if able to say that we arent dealing
directly w/title and possession we are acting in personam against parties
- So in seeking specific performance against D, we are saying in NB that you
are subject to our jurisdiction in personal sense, you have to in personam
take nec steps to make in rem changes in Quebec.
- In effect, by ordering spec perf, Ct changing possession/title to ppty in
- BUT bc both parties, esp D was in NB, and was going to stay there, then
there is in personam juris that courts can use to require person to do
something up scale.
- Different than saying title to Quebec property belonged to X and then holder
of judgment to take it to Quebec to ask for enforcement. Quebec court
would say no bc seeks to deal w/ title in Quebec.
- NB had no juris BUT if you dont have to go to prov or country where land is
situated and have personal juris over parties, then can say we ordered party
to make nec changes in Quebec.
- So parties dont have to go to Quebec court to enforce bc NB has power over
the party e.g, can order contempt of court.
- Action in personam is indirect way around title problem.
- BUT if parties moved out of NB, then NB could order whatever it wanted but
no personal (power) over party.
- BUT contempt of court issued in NB may be enforced in other prov bc of
- If impossible for D to comply with order, e.g., D says I went to Quebec and
attempted to transfer property to P but bc of formalities werent entered into
wrt property, Quebec wont accept docs.
- If performance is impossible, in personam wont work. If D makes bona
fide attempt, but unable bc of lex situs law, then no consequence to D.

SO if dealing with Contract like this, court asked is k was valid?

- Can be valid in either in lex situs OR lex contractus (law where k was formed
or law where land is situated).

Catania case (1999)

- Deed entered into in Canada (Ontario) in 1993, whereby house in Italy gifted
to certain persons (appellants).
- Had been a will earlier executed which had also left land to appellants (but
not effective until death)
- Will was subject to certain restrictions (right of way & first refusal on sale to
certain party)
- Challenge to validity of deed on basis that the father was mentally incapable
of understanding what was going on.
- Not contract, but case of equitable relief sought.
- Not making direct order wrt Italian land but making order that deed made in
Ontario was invalid.
- Parties didnt meet criteria here, esp relationship btwn in rem and in
personam re contract and equity.

Ct must have in personam juris over D, if not then no point. P must be able
to serve D with notice or D must submit to juris of court.

4 criteria
1) Person has to be in province or submitting to prov.
2) Personal obligation btwn parties (in this case, obligation was missing)
Juris cant be exercised against strangers.
3) Juris cannot be exercised if local court cant supervise execution of judgment
- (so like Airbus-will just be ignored otherwise)
4) Cant order it if of no effect in situs
- so if it requires action to be taken in situs and w/o action it wont be effective,
then court shouldnt issue order
c) Foreign Judgments re Land in Forum

Do you need the assistance of situs jurisdiction to enforce your order?

If so, you wont get it, usually subject to Morguard.

Duke v Andler (1932)

- K entered into in Calif.
- Calif makes order wrt contract of land in BC.
- Calif orders that title to the lands in BC would pass from one party to other.
- Under procedure in California, if party who had to make transfer didnt do so,
then court official could make transfer by completing docs.
- Inpersonam action: works for land in Calif (specific performance)
- BUT only for Calif, and this was BC land
Not possible for solution to be reached under Calif juris.

Question: In order to transfer land must be able to enforce order in BC

- So judgment of Calif court brought to BC.
- SCC declined to enforce.
- Said matter involving title/possession of land in BC
- BC law and exclusive juris in relation to this
- Not enforced

Beyond capacity of supervision of Cal Ct to enforce it (change in title)

- Calif could have gotten around this by saying party will do it or pay X amount
of damages.
- Supervision in personam court re: damages.
- Would be interesting if damage figure had to be enforced in BC.

Question: Whether BC court saw it as in personam attempt to get around

rule and shouldnt be enf due to public policy.
- Indirect way of getting around rule for immovables that situs law and juris
- Usually when give $ award, ad parties in juris, then enforce $ award against
property in Calif.

Based on the acceptance of the principle that no Ct should make an order which
it is unable to enforce
- Calif cts resorted to BC Cts in order to obtain effectual enforcement of their
order in personam proceedings in Cali which was enforced in BC where
the land was located
Chapman Estate v OHara Case
- Admin of estate
- Adminstrator and all parties are in Manitoba.
- Proceedings brought in Manitoba and Manitoba exercises in personam relief
against OHara re: land in Sask
- OHara lost in Manitoba and came to Sask and filed lis pendens to title
(litigation pending against land) sought to bring proceedings on same issue in
Sask that as an inpersonam judgment it could not conclusively determine
the title to land in Sask

Issue: would Sask re hear case?

- Manitoba Ct had no jurisdiction to remove the lis pendens but did have
territorial jurisdiction over OHara to enforce a warrant for contempt should he
again to to Manitoba where it could be enforced
- But D said he wasnt going back to Manitoba.
Held: No abuse of process bc matter already litigated through to CA in

Issue: Bigger question was should Manitoba court have taken juris?
- Manitoba Ct had through control of admin and admin of estate, the power to
see that title to Sask land was conveyed to proper party without using Sask Ct
- Could ensure transfer in Sask could take place without resort to Sask.
- OHara said property should be held by him.
- Administration could pass property to anyone, administration by going to Sask
wanted to transfer property.
- OHara could only stop this by asking Sask court to intervene BUT Sask
consent wasnt needed for completion of action by administration
- cf Calif case no control over parties in personam sufficient to require them
as indiv to make transfer, but then had to go to BC to enforce

Howell asks: Can you enforce your in personam order?

- If so, good, if not, dont make order.
- Sask court has said it wouldnt hear case already, so D cant bar.

Second limb of Mocam rule

- Damages to immovable
- If you can get around other branch by in personam, why not allow this limb to
be litigated anywhere?
- Noone really disagrees about title/possession rules.
- Decision should be based on forum conveniens for 2nd branch
- Monetary award should be enforceable esp if P and D in same province.
Important to go back to enforcement of judgments

Divide btwn
1) in personam pecuniary judgments
2) other judgments

Judgments are enforced on the basis of debt.

- Therefore, order by way of injunction/specific performance or other order-
based action, instead of enforcing debt, are NOT enforceable

Question about position after Morguard/Hunt

SCC indicated that Ct of any province could rule on constitutional validity of legn
of other province because:
1) SCC oversees
2) judges are federally appointed
3) same ethics throughout Canada legal profession

Have we reached point where non-pecuniary judgments should be enforced

interprovincially so that if an injunction is granted by one prov against a person in
another prov it should be enforced

Case where Interlocutory order of Quebec was enforced in BC

- If we have constitutionalized things is there any need?
- Ought there be any continuance of rule that only pecuniary in personam
judgments that are enforceable? Why no other types of judgments?
- All fit themes of Hunt/Morguard.

Prof Howell thinks its time where these types of orders will be enforceable

Thinks it will challenge title/possession eventually

- Will challenge 2nd branch of the Mocam principle
- Look at OHara case, seems that Manitoba was most appro court to hear
proceeding, since most parties and estate were in Man. Seems foolish in light
of Hunt-one country one system, etc. Would NOT extend to international
situations. ALTHOUGH Beals-court has lost the ualms they used to have wrt
enf foreign judgments. So not impossible for it to occur internationally but long
way off.
[CHAPTER 15: page 763]

- Very difficult
- Similar btwn situs and ancillary issues are applied to moveables.
- BUT Moveables move, usually intangible moveable
- These follow person wherever person goes.

e.g. copyright
- Where would you find situs for copyright?
- Place of registration?
- But you can register it several places at one time

Like Tort case of defamation

- Diff icult to find bc not naturally situated
- BUT if you can find situation, even if it is involuntarily so

Cammel v Sewell (1860)

- Shipping goods from Russia to UK and ship ran aground in Norway

- Goods were located in Norway at time of proceedings, so lex situs prevailed
despite involuntary location of goods.

Major problem:
- Immovable analysis is tied up with focus on situs and authority always to
give to situs.
- With Moveables there is a problem with finding where they are. How do find
situs to apply? Can you even say that some are located in certain position?

Traditional rules vs RSC

- Traditional rules not enough to ground jurisdiction they are a part of the
factors considered for RSC
- RSC is the overriding factor which clearly doesnt rule out the traditional
context, it is encompassed within the RSC test
- Therefore more in line with Muscutt
[Need to go beyond traditional test]

- Is focussed narrowly not a case where suffered damage in Ontario.
- Damage really was suffered in Alberta BUT the continuing effects were
felt while in Ontario

Policy advantages:
- Within Canada it may well be a sensible position to wait the province where
the bulk of the medical costs were met.
- The province that has to take care of the victim in the case of torts where
physical injury were.

Questionable whether Muscutt applies where was some other sort of damage
such as to reputation (non-pecuniary damage)

Muscutt wouldnt work well in an intl context

- Works well interprovincially but in an international context, Muscutt would fall
- Cant be sure intl judges necessarily have the same degree of professional
ability or safeguards or consolidating influence of SCC, or that judges are
appointed from same place, insurance cos not coordinated internationally.

Traditional test v Personal subjection

Traditional factors for enforcement: attornment, consent, and presence

- If those arent present then would likely produce a RSC from elsewhere
- Therefore RSC doesnt supplant the traditional categories but has there been
consent, was there attornment etc. and IS THERE SOMETHING MORE
Look to forum non conveniens
- Hasnt really been thought through

Beals: LeBel supports personal subjection

Moran: Should enforce where would anticipate damages/being subject to suit

- Moran is very similar to US due process enquiry which is very similar to
personal subjection approach
- Overriding constitutional test was whether the parties could have anticipated
being subject to suit in foreign jurisdiction

Muscutt didnt focus on this issue more about administration of justice

Teja does tend toward this and the traditional criteria, relationship between
parties and personal subjection approach

Forum non conveniens

Braintech was related more to forum non conveniens

- Emphasises relationship between the parties, personal subjection
1) whether to enforce Texas judgment
2) whether there was RSC but also about Amchem and NFC
- Classically FNC is a relevant principle in terms of whether foreign Ct has
applied proper rules to take jurisdiction.
- Jurisdiction simpliciter historically relates to internal law of Florida - Rule of
Court that enabled jurisdiction to be taken e.g. 13(1).
- All jurisdictions have an element of discretion.

Braintech established that in Canada if you are asking to serve ex juris:

1) Find RSC
2) Ask Ct as matter of discretion, should you exercise your jurisdiction ie. FNC

FNC not in context of jurisdiction simpliciter requires flexibility

- Waiting for the more appropriate solution: Look at discretionary question what
is the better for the 2 parties

Conflict with Beals which didnt look to convenience of parties, established an

RSC Overrides the decision in Braintech

Beals held Florida was the most appropriate jurisdiction and could read into that
that the Ct found no need to think about any discretion

RSC is better interprovincially

FNC is better internationally

FNC not really discussed in a constitutional case

- Involved personal injury and national insurance
- Not convinced that Muscutt could apply in other Cts with the same rational as
in this context
- In cases of ppty damage, mental suffering rationale is not really appropriate
- Whole area not really thought through in all its manifestations (consequences)
- SC should have been more careful
Morguard itself is a case of conflict
- Producing case of such uncertainty in case of decisions as to foreign
- Should have said the application to truly intl applications is left for another
case instead of leaving it open
- Has put Canada out on a limb not sure why this is necessary

After Spar Aerospace in 2002, would not have thougth SC could come up with
what it did in Beals, that Morguard applies interprovincially
- Really in the international context, should be looking at traditional factors

Advice in Beals: NOT to go to Florida

- If you dont go down, then it wont be enforced in BC
- They can still take jurisdiction based on traditional factors, but wouldnt be
enforced in Canadian Ct.
- If dont turn up, then would be at risk later on if decide to go into territory

Alaska was clearly a convenient forum

Should have had a law reform body to think through these issues a little more


- Beals was dealing with in terms of quantum (amount) NJ

- Argument that a claim for $8000 suddenly became $800 000 and that as a
matter of quantum, policy for enforcement should take into account.
- No choice of law issues it was clear it was Florida
- Procedural consequence of the quantum that was of concern ie. natural
justice type of issue


St Pierre test (as in Airbus and Spiliada)

- Question is vexacious and oppressive to who?
- St Pierre looked to benefit of P in choosing a law, and whether this was
detrimental to D
- In context of stay of proceedings, was merged in Eng into the FNC test.
- Amchem: merged further into the anti-junction test
- Ct said should be part of general injustice, not looking at any advantage
or vexacious prejudice.
- Take it all into account in regards to all parties
Airbus rejected this recommendation St Pierre still prevails, although it has
been merged in FNC in stay in proceedings case in Eng
PROPERTY Foreign Immovables

Mocambique rule stipulated when dealing with an immovable, it is only the law
and courts of the forum where the land is situated who can deal with land in a
certain jurisdiction.
i.e. both jurisdiction simpliciter

Difference is significant if move away from Mocambique rule

- Trend has been to develop matters such as K and collateral equity to land as
being different to title to land.
- As to damage to land, devt still slower
- Rule is that questions to title and damage belong to law of the situs and
- Collateral have been dealt with other courts.

Damage to land reach position where separate the 2 limbs:

Godley: Case where the 2 ppl live in Ontario and both own condo in Florida one
above the other. One leaks into the other, why shouldnt Ontario take
- If they do, then juris issue has been severed from Mocam ratio
- Relevant law would be Florida law applied by Ontario court
- So strictness of both choice of law and jurisdiction may be being prized apart
if the law relating to damage to ppty is seen, or becoming seen as
different to title or possessory issues
- If do prize it apart, will have separated jurisdiction from choice of law
- Tort rule of lex loci delecti one that has to be flexible (diff types of damages
etc. defamation enquiries)

Mocambique: Different type of tort land focussed on lex situs (situs of an

item or status or right, for an immovable it cannot move) not loci delecti (law of
the place where the tort or injury occurred, in the case of land it will ordinarily be
lex situs, but when it becomes movable it becomes different)

How do you deal with lex loci delecti in case of mass tort?
e.g. Asbestos, breast implant cases
- Following Moran, injury in multitude of jurisdictions reasonably forseeable as
to who would be injured or jurisdiction that is substantially affected
- How does Tolofson deal with multiple physical injury or other tortious injuries
that are not personal injuries? car accident in Sask, P were from BC
- Still difficult to answer this question e.g. in the matter of privacy, violation can
be in many locations
Tolofson est rule in tort in relation to personal injury


Is OHara wrong in respect of Andler?

Howell says you can reconcile the cases

Andler case
- In California have sitn where Ct made orders in personam that parties would
convey land in BC
- Cal Cts however werent in posn to enforce the orders it made adequately
against the parties.
- California had a process whereby if parties didnt follow order, and make nec
changes in title, the party who had judgment could come back to Ct and court
officer would execute papers that would purport to make transfer of land.
- Works fine in California, but when land in BC, couldnt be taken to BC Land
Title Office, whereas Cal LTO would
- BC Cts had to be asked to enforce the Cal judgment, so
- Although in personam, was in rem
- The Californian granting court couldnt follow through on their in rem
judgment, had to come to BC courts of where land was situated.
- If Cal ct had only served damages, could have executed judgment and taken
Californian land to enforce judgment

- Land was outside jurisdiction in Sask
- Manitoba made order
- Key point is that the enforcement could have been done in Manitoba they
had complete control over the process, without having to go to Sask to get

Difference: Both crossed line from in personam to in rem BUT in case of OHara
the Manitoba Ct in the circumstances could have achieved the result without
having to go to Sask courts

Lay in power of the courts to enforce

In personam order = order not directed to land or title of object, or status of a

person it is an order between persons

Mocambique cant enforce foreign judgments on LAND but can on persons

After Morguard in rem injunctive enforcements other than monetary judgments

HAVE to be enforced
Anti-suit injunctions interprovincially is difficult as it is still historically young
no examples now arguable that might help, matter elevated to SC who would
resolve the issue

Enforcement of judgments
- Not talking about injunctions

Airbus case
1) Courts of India will you enforce our injunctions in Eng
- RULE: pre-emptry judgment like injunctions or specific perf not allowed, only
in personam judgments like monetary judgments and debts
2) If interprovincial, maybe after Morguard and Hunt they should enforce

- Only orders in rem that cant be enforced are orders of the Ct in the location of
the ppty
- If land is in Florida, decision of Florida court might be enforced in BC if it had
to be.
- If a court in Alabama made order in reln to Florida ppty, it would not be
enforced. In a Canadian context, might be arguable a judgment in another
province, it could be enforced Morguard argument

Could reach a point saying that Mocambique doesnt apply in Canada

[Or like in OHara has evolved where Court can enforce their own judgment]

Characterise it as something other than in rem get to in rem through in

personam contract, or equity.