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The binding effect of a judgment as to matters actually litigated and determined in one action on later controversies between the parties involving a different claim from that on which the original judgment was based. 2. A doctrine barring a party from relitigating an issue determined against that party in an earlier action, even if the second action differs significantly from the first one. Substantive law - The part of the law that creates, defines, and regulates the rights, duties, and powers of parties. Cf. PROCEDURAL LAW. "So far as the administration of justice is concerned with the application of remedies to violated rights, we may say that the substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other." Procedural law - The rules that prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves. -Also termed adjective law. Cf. SUBSTANTIVE LAW Forum non conveniens [Latin "an unsuitable court"] Civil procedure. The doctrine that an appropriate forum -- even though competent under the law -- may divest itself of jurisdiction if, for the convenience of the litigants and the witnesses, it appears that the action should proceed in another forum in which the action might also have been properly brought in the first place. -- "Forum non conveniens allows a court to exercise its discretion to avoid the oppression or vexation that might result from automatically honoring plaintiff's forum choice. However, dismissal on the basis of forum non conveniens also requires that there be an alternative forum in which the suit can be prosecuted. It must appear that jurisdiction over all parties can be secured and that complete relief can be obtained in the supposedly more convenient court. Further, in at least some states, it has been held that the doctrine cannot be successfully invoked when the plaintiff is resident of the forum state since, effectively, one of the functions of the state courts is to provide a tribunal in which their residents can obtain an adjudication of their grievances. But in most instances a balancing of the convenience to all the parties will be considered and no one factor will preclude a forum non coveniens dismissal, as long as another forum is available." Jack H. Friedenthal et al., Civil Procedure §§ 2.17, at 87-88 (2d ed. 1993). In personam [Latin "against a person"] 1. Involving or determining the personal rights and obligations of the parties. 2. (Of a legal action) brought against a person rather than property. Cf. IN REM. in personam, adv. "An action is said to be in personam when its object is to determine the rights and interests of the parties themselves in the subjectmatter of the action, however the action may arise, and the effect of a judgment in such an action is merely to bind the parties to it. A normal action brought by one person against another for breach of contract is a common example of an action in personam." Lex fori - The law of the forum; the law of the jurisdiction where the case is pending <the lex fori governs whether the death penalty is a possible punishment for a first-degreemurder conviction>. -- Also termed lex ordinandi. Cf. LEX LOCI (1).
lex loci - [Latin] 1. The law of the place; local law. Cf. LEX FORI. 2. LEX LOCI CONTRACTUS. Lex loci actus - The law of the place where an act is done or a transaction is completed. -- Often shortened to lex actus. Lex causae - The legal system that governs a dispute. Lex loci contractus - The law of the place where a contract is executed or to be performed. • Lex loci contractus is often the proper law by which to decide contractual disputes. -- Often shortened to lex loci; lex contractus. "The lex loci contractus controls the nature, construction, and validity of the contract; and on this broad foundation the law of contracts, founded on necessity and commercial convenience, is said to have been originally established. If the rule were otherwise, the citizens of one country could not safely contract, or carry on commerce, in the territories of another." Lex loci delicti - The law of the place where the tort or other wrong was committed. -Often shortened to lex delicti. -- Also termed lex loci delictus; lex loci delicti commissi; place-of-wrong rule; place-of-wrong law. Cf. LOCUS DELICTI. Lex loci solutionis - Latin "law of the place of solution", The law of the place where a contract is to be performed (esp. by payment). -- Often shortened to lex solutionis. Conflict of laws; it is the court of NB looking at its own conflict of laws rules, whether its dispute should be decided based on the substantive law of Ontario or not. “Substantive Reference” – is the NB looking at its own conflicts rules to determine if it is going to use the substantive laws of another place or that of NB. “Domestic Rule of Decision”: indicates the rule that would be applied by the court if there were no relevant foreign facts of any kind –as if the matter had arisen within exclusively local facts. INTRODUCTION – pp. 1-17 1. Questions Central to the conflict of Laws - where there are relevant facts that have occurred outside the province, the rules and principles of Conflict of Laws are used to reach a solution - Conflict of Laws is concerned with cases where there are geographically complex facts - Three problems o When should the court take jurisdiction in cases with geographically complex facts? o When should the court recognize/enforce a foreign judgement? o When should the court use foreign law to help decide the issue? - Generally, Conflicts deals with private law
Some statute, some common law rules “conflict of laws” vs. private international law o Common law vs. civil tradition o Private international law is a better descriptive term 2. Note on the Materials 3. The Purpose of the Materials - two goals o understanding conventional organization of the law o examining those rules to see if they are useful predictors of the court decisions that apply them - traditional method of analysis – English - modern approach incorporates new features and concerns o fairness to individual parties o predictively useful rules o faithfulness to constitutional principles in a federal state (i.e. interprovincial context in Canada) - dual focus – result in the individual case & development of set of rules over time - Four main areas for conflicts problems o Substantive law of tort & contract o Procedural Issues of jurisdiction o Recognition & Enforcement of foreign judgements 4. 5. Note on Uniform Laws international uniform law has been developed in some areas this resolves conflicts problems before they arise despite this advance, common law rules will remain important What is a ‘Conflicts’ problem? conflicts case = any case with geographically complex facts must allege geographically complex facts in pleadings, plead foreign law once it is determined that there are geographically complex facts, you then move to the analysis of conflicts issues fundamental difference between establishing foreign law and establishing the law of the forum o call expert for evidence of foreign law o judicial notice of forum law – no evidence contents of the foreign law: matter of fact, expert evidence relevance of foreign law: decided by using the forum’s jurisdiction laws o plaintiff argues that foreign law is relevant, how does the court respond? o Choice of law rules
Part 1 – Choice of Law Chapter 1 – Process and Analysis – pp. 18-24 1. Introduction - jurisdiction; recognition & enforcement; choice of law - choice of law – most important and most difficult of the questions 2. Choice of Law Process - issue raised by choice of law questions: if a Canadian court does exercise jurisdiction, and it is alleged that foreign law is relevant, what rule of decision does it apply? o Forum law vs. foreign law o Can involve multiple jurisdictions - ‘domestic rule of decision’ o Rule that a court would apply in case with geographically complex facts - In some cases a more just decision will be reached by applying a different jurisdiction’s ‘domestic rule of decision’ - Choice of law process = justifying the decision to apply someone else’s ‘domestic rule of decision’ 3. Structure of Conflicts Analysis - pleadings/preliminary matters o existence of foreign facts – alleged and found by the court as fact o content of foreign law – alleged and proved properly - if these conditions are met, court proceeds to determining to apply (or not apply) foreign law o Is the foreign law relevant to the issues before the court? - How to analyze the relevance of foreign law to the case before the court o Characterization What type of case is it? o Choice of Law Rule What is the rule for that category of cases o E.g. contracts = proper law of the contract o Determining ‘proper law’ relies on local law – question of law, not fact - Focus of the dispute = determine which of the competing laws is the proper law - Tests for proper law of the contract o Implied Intention Test What law would the parties have chosen? Look at connecting factors to the jurisdictions use connecting factors to determine governing law for the dispute forum law vs. foreign law - If foreign law is chosen, it will displace the domestic rule of the forum in favour of the foreign country’s domestic rule
Characterization is very important because it determines what choice of law rule will be applied Goal of the process: predictability and uniformity o Precisely defined rules help predict the outcome in future cases o Uniformity – result shouldn’t depend on the place where the action is brought
Part 1 – Choice of Law Chapter 2 – Choice of Law in Contract – pp. D was to repay the loan by having sister in Switzerland give P the amount in US$.earliest formulation of contract choice of law rule o the place where the contract was made – l.l. parties went to Ont. that has been largely rejected in all other areas .this rule was replaced by ‘will theory’ of contracts o intention of the parties . The transaction would be void under Austrian law. Kertesz – OCA (1960) – p.c. 25-80 1.based on the idea of legal formalism (law as a science). 29 P lent money to D in Austria in US$. o governing law covers validity.modern development – 19th century to today . A Note on Historical Development . and entitlement to damages re contract o focus on a single connecting factor o should lead to uniformity o this rule has declined in importance. Loan not paid. And P sues on the loan. enforceability. I: Is proper law of contract Austria (place of contract) or Switzerland (place of performance)? H: For D: proper law is Austrian. The proper law of the contract is whatever the parties intended or could be presumed to intend.potential choice of law rules in contracts o law of the parties domicile o place of performance o law implicitly chosen by parties o law explicitly chosen by parties o forum law o law with the ‘closest and most real connection’ to the contract .‘closest and most real connection’ o Most modern formuliation of the choice of law rule Etler v. but still one of the connecting factors that is looked at o place where contract is made = offer & acceptance where the last act necessary to make the contract occurs when the offeror receives notice of acceptance • postal exception . .
It sunk due to negligence of D.o. Kuwait Insurance Co.Real & Substantial Connection: If there is nothing to indicate what the intentions of the parties were. I: Which law should be applied to the contract? French law (P’s nationality) or Italian law (D’s nationality)? H: court does a mechanical counting of connections to find the proper law. process. 35 “A caricature of the traditional approach” P owned cargo on board the Assunzione which they had chartered. so their intentions should prevail . Diplock says: .l. ‘closest and most real connection’ o Formation is governed by proper law o Capacity is governed by closest connection or domicile/residence • • . express or implied If not. – House of Lords (1984) – p.both parties present in Austria .Performed substantial part of contract there The Assunzione – England CA (1954) – p.In seeking to ascertain the intention of the parties as to the proper law of the contract. who owned the ship. This case represents a move away from the “intention” approach. in the absence of expressed intention it should be determined as the one with which the transaction has its closest and most real connection. does not discuss the contracts issue being contested. 40 • Good illustration of the traditional c. use the real and substantial connection test: to what transaction is there the most real and substantial connection? No renvoi in contract law There is no “international” law of contract (not sure if this case stands for that but it discusses it) Summary of the traditional method for solving choice of law problems in contract o ‘proper law of the contract’ System which the parties intended.contract entered into in Austria .Intent: First see what intentions of the parties are: freedom of contract. Amin Rasheed Shsipping Corporation v. it relies on an “objective” approach. .
l. The Effect of an Express Choice of Law Clause . law and so not caught by Hague rules.standard for contracts to contain a ‘governing law clause’ Vita Food Products Inc v. to NY arrived damaged due to negligent shipper. Buyer wants to sue. Nfld. and law of England is party to Hague rules so they apply.o. of damages. Some Further Problems of Choice of Law in Contracts . and P argues that bills of lading were illegal under Nfld. Hague rules would limit amt.o Formal validity is governed by place where contract is made or proper law o Material/essential validity is governed by proper law o Interpretation is governed by proper law o Right and obligations of parties are governed by proper law o Mode of performance is governed by place of performance o Discharge of a contract is governed by proper law 2.l. – Privy Council (1939) Leading case on exclusive c. law applies.following cases are not good examples of how to deal with these problems . D says even though bills of lading didn’t comply w. Unus Shipping Col Ltd. H: Court gives effect to c. clause saying law of England applies.o. clause in contract Herring shipped from Nfld. statute they said law of England governs. Nfld. statute says all bills of lading must have a clause saying Nfld.limits on the parties implied or express choice of law . Give effect to a choice of law clause if it’s bona fide legal and doesn’t offend public policy all that a choice of law clause can do is to indicate the background legal system against which the contract was drafted/made o can’t expand or limit the parties freedom to make deals on their own terms choice of law clause would not avoid the following problems o fundamental breach o enforcement of penalties o fiduciary obligations (agent-principal) o mistake/frustration o assignability these potential problems are requirements along the line of ‘if bona fide legal and doesn’t offend public policy’ o some restrictions on ability to choose ‘governing law’ - - 3.
I: Must decide whether to give effect to the part of the contract that says it’s governed by the law of Ont. but contract was made in Ont. AB law says you have to be a licensed R/E agent in order to sue for commission. but even if they did mean it. H: AB law applies: It is the lex fori and is a matter of public policy. Thus you don’t want people to be able to say their real estate agency contracts are governed by the law of some other country w.Ross v. no rules about licensing. First court says it doesn’t think the parties actually meant for the law of Ontario to govern (not a bona fide choice). 4. The land and negotiations and sale and performance were in AB. 59 Relation Between choice of law issues and Rules of the forum Two Ont. you can’t sue for a commission. If merely facilitative. P leaves AB after a few months. Sale goes through. there’s commission. To decide whether a given law of the forum can be contracted out of. thereby entirely defeating the domestic law requiring real estate agents to be licensed. real estate agents go to Calgary to develop property w.g. agreement to split commission 70/30. Review and Further Examination of Typical Cases outline of the choice of law process o characterization determines if contracts choice of law rule applies o contracts cases governed by proper law of the contract various potential choices ‘closest and most real connection’ . they can’t do that b/c it goes against a mandatory law. determine if it’s mandatory or facilitative. you probably can’t do it indirectly by a choice of law clause A contract illegal under the lex fori is unenforceable there. who brings suit for it in AB. and D doesn’t split it w/ P. then it is possible to contract out of it (e. If you can’t do something expressly. SOG Act – applies unless contracted out of). Decide whether a law is mandatory or facilitative. Both are bound by another contract saying disputes are governed by law of Ont. Licensing real estate agents: there is a policy reason for the rule that if you’re not licensed. McMullen – Alberta SC (1971) – p.
Later when she was sued on the note by a bondholder. There is a debate about whether or not we can abandon Assunzione and look at the policy and purpose of a statute. woman who signed a promissory note to buy land in Fla. but it may not apply.’s incapacitation of women. ‘closest and most real connection’ Consider all aspects of the contract o Governed = all aspects of the contract are decided with reference to the proper law o Contracts must be localized in one system of law. for back payments of alimony under a separation agreement made in Ontario. o same choice of law process with a different rule Charron v.o Express choice of law will be given effect if it is ‘bona fide and legal and not contrary to public policy’ o If no express choice. D claims law of domicile should . the weight of authority is to the effect that the capacity or incapacity of a person to contract must be determined by the law of the country where the contract arises. The court finds here that it does apply: at least in the case of mercantile contracts not prohibited by the lex fori. statute: is it aimed at married women? All women? The default position is freedom of contract. 67 Unenforcability under a foreign law. statute is an exception to that. I: What’s the purpose of Fla. and how should that be applied to this case? Decision: Promissory note not valid. law. Quebec law doesn’t recognize separation agreements as valid contracts. Manville – Sask. CA (1933) – p. relation between unenforcability and choice of law issues Facts: D was Sask. no ‘unlocalized or international’ system of law Bondholders v. CA (1958) – p. 69 Facts: Charron died and his former wife sues D. the executor of his estate. she claimed that she wasn’t bound by it b/c women can’t make promissory notes under Fla. The Fla. Montreal Trust – Ont. The court looks at policy and purpose behind the Fla.
Payment could be made in Ontario. D enters into contract w. Court decides that the law governing the contract is the proper law and that is Ont. 78 English P chartered ship to carry cargo from India to Spain… . Decision: Expert evidence of Quebec law says the contract would be unenforceable. Court uses real and substantial connections test: consider the contract as a whole in light of all the circumstances which surround it and apply the law with which it has the closest and most substantial connection. He wants to get his money from Toronto. Cuban revolution comes along and freezes the assets of all the banks and institutions. So what difference does it make what the proper law of the contract is? You could have the proper law be that of Cuba. o real issue: which party should bear the risk of loss for this event? o Requires more than just choosing a proper law Rail Brothers v. but if he did that as soon as he took it out the Cuban gov’t will seize it. 72 A suit for a cash surrender value in life insurance policy. iii) Payment in US dollars mostly iv) Place of making Court manipulates the rules a bit. What court uses in its decision: i) form and language ii) Head office is in Ont.apply (husband’s permanent domicile was always Quebec) and P says law of place of contract should apply. This is really a claim about an unallocated risk in a contract. or the proper law be Ontario’s w. Compania Naviera Sota… – Eng. CA (1920) – p. Colmenares – SCC (1967) – p. Colmenares can go back to Cuba and get his $8000 claim. with the parties allocating the risk one way. P while in Cuba. the parties allocating the risk the other way. law: The parties were married there and lived there a long time Imperial Life Assurance v. P says to go back Cuba and make his claim there.
This case doesn’t fit into traditional jurisdiction selection rule. but has been used to stand for the position that issues of mode of performance are governed by place of performance. . [confirms the Dicey rule?] This is similar to Southin J. in Gillespie.Just because it’s an English contract doesn’t prevent the court from looking at a statute in force in the place of performance.
fault-based vs. no-fault . Introduction . most cases. l. not the same in case of negligent manufacture o proper law of the tort ‘closest and most real connection’ Importing the contracts rule o Law of the forum – lex fori . the differences among jurisdictions are more significant o i.a. and l.g.a. rules across jurisdictions are nearly the same o have to be. criminal element to torts • intentional torts o Fault vs.l. generally easy to ascertain. Summary of the Development of Modern Tort Choice of Law Rules . no-fault Negligence Vicarious liability = no-fault (strict liability) Defectively manufactured goods – strict liability in some jurisdictions o Social policy Tort law is influenced by social policy and is used to achieve social objectives 2.l.four potential choice of law rules in tort o place where the tort was committed – l.d. 81-142 1.) o Considerable criticism of this rule . because of prevelance of international commercial contracts .theoretical issues that arise in torts o criminal element historically.in tort.l.d.l.a are the same e. Canada employed a ‘double-barrelled rule’ o Two conditions Wrong would have been actionable if committed in the forum (lex fori) Act must not have been justifiable in the place where it was done (l.major judgement in 1994 – SCC .e.in contracts.l.Prior to SCC restatement in 1994.Part I – Choice of Law Chapter 3 – Choice of Law in Torts – pp. but can be difficult place of commission is generally held to be the place where injury occurs o place where the act giving rise to injury occurred – l.
Chaplin v. Eyre rule is satisfactory and canvases other options: Place of tort: Two disadvantages: first is the difficulty of domestic courts trying to apply foreign law. Maltese law wouldn’t allow recovery for pain and suffering. and never has. Basically within the double barreled approach. the Maltese government probably doesn’t care whether or not their law prohibits two foreigners from not being liable for.d. you can’t derogate from the law of the forum. Pettigrew – SCC (1945) – p. or able to recover. and shows the pros and cons of each rule. subject to exceptions McLean v. o traditional Phillips v. 97 Canadian approach until Tolofson (1945-1994) . Contact/Interest Principle (Proper Law of the Tort): Looks at the US where they look at all the factors and the policies that underlie them. Boys – House of Lords (1971) – p..l. Wilberforce: Asks if Philips v.l. It’s also difficult to agree on the issue of the underlying policy. Eyre. compensatory damages. It shows England’s departure from Phillips v. second the place where the wrong occurred can be fortuitous: place of the tort can be a fluke. Also there’s the problem of having to decide where the tort occurred. o Wilberforce says that the Phillips rule applies unless there is a reason to ignore the foreign law. Facts: Two Englishmen get into an automobile accident in Malta. Wilberforce’s criticism of this is that there is too much uncertainty: the search for relevant contacts and of weighing them qualitatively against each other leads to uncertainty and dissent. Eyre rule is forum centred forum rules are almost entirely determinative can lead to forum-shopping o UK now has a statutory test for choice of law in tort l. so Chaplin sues in England. but you can derogate from the l.d. 86 This doesn’t represent the law of Canada.: in this case. the Maltese limitation could be ignored. Because the two parties were British and lived in Britain etc.
Wray – SCC (1930) – p. In Ontario. but in Canada we bought Phillips. but court doesn’t buy that. Held: For D.e. who negligently struck two women walking on the road in Ont.Facts: P is passenger in car. P wants to invoke contractual liability of D. killing one and injuring the other. court ignores choice of law rules and looks at the scope of the law: Ont.e. They get into a single-car accident in Ontario. o SCC can take judicial notice of the laws of all provinces O’Connor v. can’t impose strict liability on people who aren’t in or from Ontario.. ii) Actionable as a tort. civil liability would arise for this in Ontario (satisfies first part of old test). In this case. i. b/c it doesn’t have any such law. and P brings suit in Quebec. it held that the action must have civil liability in both places. Highway Traffic Act stating that the owner of a vehicle is responsible for any violation of the Act. and actionable as such in England. Chaplin v. an act which. but the court gets around this by finding that D’s actions were contrary to a provision stating that drivers must use reasonable consideration for other persons using the highway: therefore non-justifiable. i. P is husband of the killed woman. would be a tort. If they did create a statute that extends the scope of the . S. P therefore wants the law of Quebec to apply. according to English law. if done in England. 42 of Ontario’s Highway Traffic Act says drivers aren’t liable to gratuitous passengers. if it is both i) Non-justifiable according to the law of the foreign country where is was done. this wasn’t actionable. D is driver. This injury isn’t actionable in Quebec though (fails on second part of Philips test) However. he relies on provisions of Ont. Boys rejected the “gloss” of non-justifiability. Decision: Court quotes Dicey rule stated in Philips: An act done in a foreign country is a tort. there is no such provision in Quebec. 101 Facts: D is Quebecois owner of car who lent it to the driver.
Pettigrew reading to apply when the parties are from the same province. 109 Facts : P is Ont. Sask. Applying the Ontario legislation instead of the Quebec legislation would be “officious intermeddling with the legal concerns of a sister province. Looks at many factors. Lucas v. also required actions to be brought w/in 12 months. We only want MacLean v. Cloutier – Ont. o court could simply have decided that statute was not intended to apply to Quebec residents defendant never became subject to the act o trying to determine which of the innocent parties should suffer the loss + geographically complex facts very difficult o no-fault compensation re motor vehicle accidents caused a shift in the law no causes of action under no-fault applying traditional rules. who sues driver and other driver for an accident that occurred in Sask. Quebec residents (no-fault) could be found liable in Ont. Some courts have tried to get around this rule since. who have their automobiles in Ontario. Jensen. no matter where they’re from.law to all people. . Sask.” o apply Phillips unless it leads to an unjust or unreasonable result o Phillips ignores important factors Residence of parties Insurance background o These factors become relevant under the Grimes approach Tolofson v. the statute might not be constitutionally valid. residents provinces respond with legislation. Gagnon – SCC (1994) – p. at age 18. Decision: Distinguishes MacLean. but the SCC doesn’t leave much room for that. but courts say people can still bring action in their own province for accidents in Quebec Grimes v. for Quebec accidents with Ont. here the boy brought the case 6 years later. Resident injured in MVA in PQ by car driven by D. had a law at the time that required gross negligence to be proved in order for a gratuitous passenger to recover. Facts: P is injured son of driver. CA (1989) – p. including what’s fair between the parties. 116 Place of the tort rule applies.
would give rise to injustice. The other exception to the clear rule here is if the l. States generally try to accommodate judgments and rules of other states: comity. Cloutier test to find that Quebec driver can get the benefit of Quebec’s no-fault scheme. Ratio: Within Canada.’s limitation as between a BC resident driver. “From the general principle that a state has exclusive jurisdiction w/in its own territories and that other states must under principles of comity respect the exercise of its jurisdiction w/in its own territory. but usually are. VB thinks this is a terrible decision: the purpose of not allowing gratuitous passengers to sue drivers is to prevent fraud – guest passengers and friend drivers could collude to prove negligence in a no-fault system even where there was no negligence.Lower court in Gagnon basically applied the Grimes v.e. La Forest wipes the slate clean: Begin thinking about things on the basic level: nation to nation. Court refers to the Constitution and notes that although this choice of law rule isn’t dictated by it. doesn’t want to heighten the bar so doesn’t have any legislation protecting their govt. a gratuitous passenger in his BC registered automobile. the BC govt. i. as long as it is possible to determine the place of the tort.d. (ICBC) from being defrauded. and isn’t the only one that fits with it. doesn’t really care about limiting claims against ICBC. insurance co. the law of the place of the tort applies. In such cases it is uncertain what the choice of law rule is. The principle on which this is based is territoriality – sovereign states get to lay down the law in their territory. this rule does have the virtue of fitting with it. Courts have found ways around Tolofson when not happy with the result it would give Tolofson is a rejection of the Grimes approach . it seems axiomatic to me that as a general rule the law to be applied in torts is the law of the place where the activity occurred. Sask.” One exception to this is when a wrong comes from an interprovincial or transnational activity. in those cases the court can retain discretion to apply Canadian law to deal w. La Forest says these cases would be very rare. and his son.l. so there is no real reason to apply Sask. lex loci delicti. those circumstances. In this case. The challenge then becomes to figure out which torts fall into the category with the clear rule set out by La Forest here and which are interprovincial or transnational. States aren’t required to be comitous.
The exception to Tolofson should be very narrow. Both were residents of Ontario.l. Injustice is interpreted narrowly. Lee – Ont. and suit was brought in Ontario. CA (2002) – p. 136 Exceptions to l. rule should be v. narrow Facts: Passenger sues driver for accident that occurred in New York.d. Decision: Place of tort should still apply. doesn’t require actionability by the forum . Insurance Context o car insurance policies and Insurance Act offer a different approach to ‘inter-provincial torts’ o partial legislative reversal of Phillips.Wong v. Shuts down exceptions to Tolofson unless the foreign law amounts to an injustice. Just because the foreign law differs somewhat from the domestic law doesn’t mean there is an injustice.
Land Contracts Act says no action can be commenced w/o leave of court. court said the provision is procedural. and Sask. Introduction . Martin Estate – Sask. court it has to use Sask.Part 1 – Choice Of Law Chapter 4 – Escape Devices – pp.Anytime foreign law is found to apply. 146 D trying to escape liability by trying to characterize parts of forum law as procedural – functional approach P suing on mortgage made in BC for land in BC. Now D lives in Sask. the substance/procedure distinction must be made o then characterized on the basis of contracts/torts. procedure.example of procedural matters o costs o who may be a party to a legal action o remedies – in some instances vested rights principle o limitation periods historically.four principal methods to get to the result that the court wants o substance/procedure distinction o renvoi o choosing between competing characterizations o public policy doctrine 2.categorizing laws as procedural negates the actual choice of law exercise . law of the forum applies if question of procedural law .Only foreign substantive law is applied o Foreign substantive does not displace the forum’s procedural rules . where D resided. if question of substantive law o or.courts will sometimes manipulate characterization to achieve the result they want . D says it’s a procedural law.Canadian court will never apply foreign procedural law . Another Sask. QB(1985) – p. 143-182 1. etc. substantive move towards substantive TD Bank v.procedural differences shouldn’t influence the eventual outcome . The court in this case says that the context is different: they used the word “procedure”. . The Substance/Procedure Distinction .whole structure of choice of law process depends on characterization .. and if P sues in Sask. procedural civil law.
BC statute limits the rights of mortgagee to exercise contractual rights. Mortgagee can sue on debt. the Alberta lenders are suffering b/c they are being treated the same as BC lenders. they’ve lost their right to sue for a deficiency. Block Bros. The Alberta lenders aren’t limited by such legislation so they wouldn’t do that. and D is gaining through the protections afforded by the BC statute: really there is no market adjustment occurring so it’s unfair to the AB lenders. Black thinks that this is a bad result b/c if you enact consumer protection legislation as BC did here. Must consider the purpose of the statute Alberta Treasury Branches v. but here since it says how they are to be enforced. The BCCA buys this argument. must take BC procedure. lenders will make adjustments for it (e. 152 P is licensed R/E broker in AB claiming commission for land sold in BC. so can only seize or sue. Decision: D says the governing law of the chattel mortgage is the proper law. then went to BC. So if they seize it and sell it. Court says law is substantive.g. but that doesn’t really effect whether or not it is actually procedural for the purposes of this case. BC law says a person may not maintain an action in any court unless licensed in BC. P isn’t licensed in BC. The court sees the purpose of the statute as being related to substantive contractual rights. or seize property and sell it and if there is a deficiency sue under the debt. the provision is procedural. Mollard and Deltra Holdings – BC CA (1981) – p. • Consider the consequences of characterization: if prosecution is prevented by a procedural rule of the law of the forum. it would have been substantive. In this case. but only one or the other. Realty v. but brings a suit. ask for a greater down payment or charge more interest). then you can’t . Granoff – BC CA (1984) – p. 149 D trying to escape liability by trying to characterize parts of forum law as procedural – mechanical/formalistic approach Facts: D executed chattel mortgage in AB. Probably the court wasn’t really thinking about conflict of laws issues at all. AB doesn’t have that provision. b/c they say that it speaks to the method of enforcement. If the statute said D’s rights were only X.
the seller couldn’t buy from his upstream supplier. the more rigid the choice of law rule that is used. w. c. QB (1953) – p. AB has longer one. So D wants English law of remoteness to be procedural so that it will apply. A court should not characterize a rule of law of the forum as procedural just b/c it is characterized as procedural for some domestic purpose. 168 Alberta has legislatively reversed Tolofson: Limitations Act. The proper law of contract is law of Portugal.D. so now seller seeks to recover value of contract from the buyer along with the amount of the penalty clause. Court also says that legislation should be categorized as procedural only if the question is beyond any doubt – if it could go either way.e. more applicable in tort cases – rigid rule in Tolofson Castillo v. This harsh effect can me mitigated if the concept of remoteness is separated from quantification of damages.A. L-12.l. CA has short limitation period. Sir Frederic Becker & Co. but remoteness isn’t. One-car crash in California. just b/c he was lucky enough to get UK court to take jurisdiction. err on the side of substantive. 159 Facts: buyer didn’t pay for goods.• • even look to the law of another jurisdiction so any c. rule saying that the substantive law of another jurisdiction applies will be frustrated. over a year . This makes it so that a party could be deprived of damages he would have gotten under proper law. upstream supplier had a penalty clause. R. the greater the need for escape devices o for this reason.S. governed by proper law of contract) Court says that some questions of damages might be procedural. Dicey says liability for contractual obligations is determined by proper law. 2000. H: remoteness is substantive (i. Seller’s contract w. Almeida Araujo v. seller gets to claim loss on contract. but measure of damages is governed by law of forum. When thinking about substance/procedure distinction also consider what the purpose of procedural rules are. J. Castillo – SCC (2005) – p. but English court’s rules say that recovery for the penalty clause is too remote. – Eng. 2 Albertans in the car. but b/c buyer didn’t pay.o. Suit is brought in AB. s. 12.
should we ever look at the conflicts law of the foreign law selected? o Renvoi = making reference to the conflicts rules of foreign law selected through the choice of law process o Eventually one court applies a set of contract rules. Issue: English COL rules point to France. but only for French citizens. . French choice of law rules say freedom of testation is limited. Renvoi . (1926) – p.after the crash. Leave to appeal to SCC has been granted. Section 12 of Limitations Act says that AB’s law should always be applied. governing law has been selected . and is therefore subject to limitation on testation. 3. and stops there. English court pretending to be the French court looks at English law and then decides that English law would bounce the question back to French law.characterization has occurred. exclusive of any contract rules – noone really knows when it stops Partial renovoi – over and back once (civil law) Total renvoi – three times over (English) . English law says the law of the will is governed by the domicile of the testatrix at her death: French law governs. and say that the statute means not even foreign substantive law will apply. Which COL rules should apply? Decision: Court applies renvoi w/o really discussing why it is adopted in succession even though it doesn’t apply in contract or tort. choice of law rule has been applied. but you never get to AB’s longer period b/c Tolofson says limitation period is substantive and by applying CA’s substantive law. but there is in French law: must give a certain amount of your estate to your children. Only AB procedure is used under Tolofson.Renvoi is never used in contracts cases Re Annesley – Chancery D. Black is guessing the SCC will reverse the interpretations that have been applied up until now. but French COL rules point to England. Court applies domestic law + conflicts rules including renvoi rules. However. will valid under English law. 172 Example of renvoi being applied Facts: British woman dies in France w. This is probably not what the AB legislature intended. There is no limit to testation in English law. the shorter limitation period applies.
courts have lots of freedom to decide whether to call something torts of contract . Continental Casualty Company – Wisc.Black thinks this decision is questionable b/c France only wants to apply their testation law to its citizens. 176 Judicial use of characterization to avoid choice of law rules that lead to unwanted results WI has spousal immunity rule at this time: spouses can’t sue each other for torts.traditional rules assume characterization is possible and consistent . Tort law says that l.bright line distinctions between different areas of law do not exist . Daniels U-Drive Auto Renting – Conn. doesn’t have those rules. But then the English domestic law goes and uses French law that never really was intended to apply to English citizens.d. . you can’t go wrong. SC (1928) – p. SC (1959) – p. 178 Connecticut has law where the rental company would be responsible for torts caused by the operation of its vehicles. applies. so WI’s spousal immunity rule should kick in. they’d let England apply their domestic law. so it’s pretty much a crap shoot.use characterization to avoid a choice of law rule they don’t want to apply Haumschild v. Characterization . Is this a torts case or a contracts case? The court calls this a contracts case. it’s a family law case. Mass. D argues that this isn’t a tort case. and the accident here occurred in CA. For these cases Black is saying that we are not really equipped to properly answer questions of characterization. Renvoi can be useful in certain situations exceptions where renvoi may be applicable o bequests o title to foreign land o some cases involving title to movables o marriage applied to make a bequest/marriage valid not invalid general view: renvoi does not apply to tort cases o Australia has gone the other way - 4. Court applies law of the domicile – characterizes it as an issue of incapacity based upon family relationship – family law instead of tort Levy v. The message I’m getting is that if you get this on an exam.l.
o. process – is found to be repugnant. and defends it against the view that we shouldn’t characterize.if the lex causae – the result selected by the c. p. 204 – likes the traditional approach of characterization.l. then its application can be declared contrary to public policy and the court can refuse to apply it .comes up in the context of enforcement .Castel. 5. we should just look at policy. Public Policy .
you can bring an action for that debt in the English courts o criticism of this analysis o Ont.Bases for not recognizing/enforcing the foreign judgment o Asserted jurisdiction in an unfair manner Forum non conveniens .1990: Morguard rewrites the rules . CA – bring an action on the judgment not the debt.Even more efficient mechanisms for enforcement through Reciprocal Enforcement of Judgments Act o Common law basis for enforcement remains the same .enforcement = process by which the foreign judgment is transformed into a judgment of the forum . Recognition and Enforcement: Common Law Rules .Part II – Recognition and Enforcement Chapter 5 – Recognition and Enforcement of Foreign Judgements – pp. promote fairness & justice – but clearly not every foreign judgment should be enforced .recognition = process by which the foreign judgment is regarded as validly determining a dispute between the parties o relevant if the sole issue is the conclusiveness of the foreign judgment o recognition alone is in issue where foreign judgment is in favour of the defendant .Rules re preclusiveness (finality) of foreign decisions are similar to the rules of res judicata in relation to domestic judgments .common law .England: foreign judgment creates a debt.important case re enforcement of foreign judgments 2.Not clear if Morguard replaces old rules in every situation . 183-308 1.a party who has obtained a judgment in a foreign jurisdiction may be able to have that judgement given effect in another jurisdiction .Old rule o Rendering court must have had jurisdiction in accordance with the rules of the enforcing court Personal survice in the jurisdiction Defendant submitted to the jurisdiction • Unconditional appearance • Submission of a defence • Agreement to submit • Choice of the forum o Avoid relitigation.common law rules re enforcement of foreign judgments were unchanged from 19th century until 1990 . subsequently rejected in favour of traditional view o Treated like a contract debt .Morguard . Introduction .Foreign judgment can be enforced through motion for summary judgment .
F: P says D wrongly dismissed him.this contract has an arbitration clause in it. Geoprosco International – Eng. D’s arguments: . it’s whether or not the lawyer did enough to count as submitting.House of Lords (1975) – p. The question then is how far you have to have acted in a given jurisdiction before you are deemed to have addressed the charge on its merits.- Arbitrary arrest/detention o Unfair proceedings Lack of notice No opportunity to present answer to the claim Corrupt decision-maker o Decision was wrong on the merits Applied the wrong conflicts law Applied the wrong rule of decision Canadian approach to recognition/enforcement is narrow o Did the foreign court have jurisdiction in accordance with our rules? o The reasoning of the foreign court in taking jurisdiction is not relevant o Compare the decision reached with our rules – compatible? Henry v. Papierwerke Waldhof… . and D wants NS courts to recognize foreign ruling and not allow P to sue again in NS.that AB doesn’t have jurisdiction . P wants to now sue in NS. Even arguing an arbitration clause can count as fighting the case on the merits. the whole case should go to the arbitrator.’ Canadian court rejects these arguments and enters judgment against D. The standard is not whether or not a party intends to submit.that AB has discretion and should decline to take jurisdiction – forum non conveniens . . CA (1976) – p. finds that D submitted enough to AB jurisdiction even though he never argued the case substantively. when deciding whether or not they will enforce the judgment. The English court. 192 You have to have submitted on the merits. Black-Clawson Int’l v. 195 Use of a foreign judgment as a defence to an action brought in another jurisdiction – issue estoppel – recognition only Facts: Foreign court rules in favour of D.
so D can never really go back there. has consequences for a lot of other stuff. H: P gets to pursue the claim b/c it wasn’t decided on the merits before De Savoye v. – SCC (1990) – p.g. Bank serves D in BC. Morguard Investments Ltd. The SCC says this is BS. a court could fully adjudicate a case on its merits and then dismiss the action. German law does the renvoi and says that English limitation period should apply. but D is OK in BC]. or (2) how domestic jurisprudential practice works: would we take jurisdiction in like circumstances: e. Another possible basis for jurisdiction is nationality. This can mean two things: (1) we’ll enforce your judgments if you enforce ours. so bank sues on deficiency judgment. would they do ex juris service and hold D responsible. submission) this would not have been enforceable Court broadens the old rules using the concept of reciprocity. D ignores service: hadn’t submitted in any way. but views limitation periods as being substantive.Issue: When using a foreign judgment as a defence you’re talking issue estoppel. b/c the foreign judgment can’t be regarded as res judicata. such as deciding it is not the proper forum to deal with the cause of action. This is the single most important case we’ll look at. Discussion: In this case the German court dismissed the cause of action b/c it was barred by limitation period. and he wasn’t present in AB when served. Is this a sufficient reason to not allow P to sue again? Ger. but on the other hand a court could dismiss an action based on a technical issue. On the one hand. Calgary housing market takes a dive. Decision: Under the old rules (presence. but there is a deficiency. if the same thing happened in BC. P sells it. There is no certainty that when a court finds in favour of a defendant that the case has been decided on its merits. where he moved. [the judgment would always be enforceable in AB. but . and D walks away from the house. 198 The single most important case of this course – rewrites the rules of enforcement in Canada Facts: D gets mortgage on house. has short limitation period. English law says limitation period is procedural and bounces back to Germany (I don’t even know if I put this down right).
this is necessary to facilitate trade: “accommodating the flow of wealth. So you can no longer do the flip that the defendant attempted in this case: if AB has a real and substantial connection with the cause of action the judgment can be enforced. s. The EC has also moved towards automatic judgment enforcement: because they have a common market. 1867.Common Market o Constitution Act. This adds a huge option: presence and submission are still options. which requires that all states enforce each other’s judgments. 224). it was a mistake right from the beginning to transpose 19th century rules applying to judgments from foreign states into rules enforcing judgments from sister-provinces. they have also decided that there is no defence to a judgment of an Italian court sought to be enforced in England. If the courts of one province are expected . 6: mobility rights – people can move. There should still be a jurisdictional test though: o Order and fairness . The considerations underlying comity apply w. 91(2) . but now also a real and substantial connection is as well – assumed jurisdiction Important Obiter: Service Ex Juris La Forest also says we should consider using the Constitution to limit provincial service ex juris rules. There are a number of things that make the federal interprovincial scene different from the international scene: o Charter. 1867. more force btw. skills and people across state lines has now become imperative. SCC thinks the conception of comity that underlies the traditional enforcement of foreign judgments needs to be adjusted in light of a changing world order: we should have ready enforcement of judgments across borders. the units of a federal state. so should judgments o Constitution Act. which it has done. 121 .” More importantly though. s.federal Trade & Commerce Power o Federal POGG power o Superior court judges are appointed by federal authorities For these reasons Canada doesn’t need a “full faith and credit” clause in the Constitution like the US does. s. The Australian Constitution gives the federal government power to address the issue of inter-state judgment enforcement. that’s not good law and it doesn’t really apply any more (bottom of p.requires that a person not be able to avoid obligations just by moving to another province (fairness to Plaintiff) o Real and substantial connection – the court giving judgment must have properly exercised jurisdiction (fairness to Defendant: P can’t go to any court to sue).
But certain cases have held that Morguard does apply to foreign judgments. provinces can’t take jurisdiction over foreign defendants in any instance they want: there’s a relationship between the original assertion of jurisdiction and then enforcement of foreign judgments. there must be some limits to the exercise of jurisdiction against persons outside the province. judgment could have been a lot different if rendered in Canada. but there are limits to service ex juris so that provinces can’t just bring anybody before their courts. Similarly in Australia. So La Forest in Morguard makes the very important argument that not only should we allow more enforcement of judgments. La Forest pretty much builds his arguments based on interprovincial reasons. Note: The substantial connection test is unclear as to what there must be a connection between: o subject matter of the action and the territory in which it’s brought o damages suffered and the jurisdiction which rendered the original judgment o the rendering jurisdiction and the defendant o sufficient “contacts the rendering jurisdiction may have to the defendant or the subject matter of the suit” Note: After Morguard most defendants raise a defence at the jurisdiction stage. (see note for cases) Minkler and Kirschbaum v. Sheppard – BCSC (1991) – p. there are no bars to judgment enforcement. The Brussels Convention (EC) also sets out the maximum service ex juris rules. There are two options for battling a suit commenced in another jurisdiction: . If you have enforcement.to give effect to judgments given in another province. 213 Applying Morguard to int’l judgment. constitutionally we should limit the legislation that purports to give original jurisdiction to hear cases in the first place. The US has its full faith and credit clause. Note: Morguard left it open as to whether the real and substantial connection rule also applies to extra-national judgments. but it doesn’t have the authority to enforce broad service ex juris: there are limits on long-arm jurisdiction.
Provinces can legislate away from Morguard re: international judgments. then any court worldwide could take jurisdiction. then a province would have a hard time arguing that it shouldn’t be enforceable 3. and then tries to get the Texas judgment enforced in BC. Dubious argument: mode of service. Sask. and NB have statutes that require pre-Morguard rules to enforcement of international judgments. and he posts something online that B finds defamatory. Quebec also has tougher standards. the defamation is available online in Texas. Morguard – recognition that conflicts cases raise constitutional concerns o Increased ability to bring in non-resident defendants If the assertion of jurisdiction was approved by the Supreme Court. and then when P comes to D’s province to enforce it. Decision: BCCA finds that there was no real and substantial connection between the cause of action and Texas. Kostiuk – BCCA (1999) R&S connection test not satisfied in online defamat’n Facts: One of the first internet cases in Canada. Kostiuk is in BC.old rules: additional bars to enforcement besides jurisdictional issue .i) ii) Go to the other jurisdiction and say the court has no jurisdiction to hear it Wait until judgment is issued against D. Judgments that will be Refused Enforcement .court has the power to exclude offensive claims in order to prevent an abuse of its process . B sues K in Texas. say there was no real and substantial connection Braintech v. D hadn’t even shown that anyone in Texas had even read the defamation. An argument for thinking this holding is correct is that if you allow a court to take jurisdiction just b/c the web site w. There should be a more substantial connection than that.uncertain to what extent these are applicable post-Morguard (a) Public Policy . so they won’t enforce the judgment. These don’t apply w/in Canada b/c they wouldn’t be constitutional. Braintech is in Texas or something.
at which point they consult a lawyer.000. Maalouf – Ont. Not every legal prohibition raises a public policy defence. who tells them to ignore it b/c they haven’t attorned to the . now that enforcement has been broadened.o refuse to listen to argument or give a remedy on the basis of public policy o ‘impeachment’ defence Boardwalk Regency Corp. Eventually judgment is issued in Fla. status of public policy defence Possible arguments about impeachment defences: i) Morguard doesn’t effect impeachment defences: jurisdictional requirement and impeachment concerns are unrelated separate matters in a case. CA (1992) – p. Beals v. and should do so in light of the fact that since before Morguard the defences were construed narrowly. v. we should broaden defences as well. apart from its impact on domestic contracts. they defend a second action. Issue in this case is whether the language of the Gaming Act. 230 substantial connection test applies to foreign country judgments. b/c Morguard emphasizes the importance of allowing foreign judgments to be enforced in the name of comity and reciprocity iii) We should broaden impeachment defences: we should rethink the whole package. Facts: Ds defend one action and are successful. we’ve never really defined the impeachment defences. which are required in order to maintain defence. is an expression of public policy such that it would be offensive for a court to participate in enforcement of foreign judgment. Ontario’s law against enforcing gambling debts is not based on public standards of morality and therefore a gambling debt arising out of a contract in NJ is not unenforceable in Ontario on the grounds of Public Policy. ii) We should trim back impeachments defences even more. Saldanha – SCC (2003) – p. 227 At c/l a foreign judgment won’t be recognized or enforce in Canada if it would be contrary to public policy to do so. but don’t defend subsequent amendments. to the tune of $270.
judgment fell below Ont. Sideline here is that b/c of the lawyer’s negligence it is his insurance company that is on Saldanha’s side (?) taking this all the way to the SCC.000 to account for P’s claim that the model home they were going to build on the lot was going to make them a lot of money Ds didn’t realize that they had to put in a new defence for each amended statement of claim Majority holds that you can’t put on Ps the obligation to educate Ds about differences in procedure Public Policy: Unfair Law This defence should be applied narrowly: only injustices that offend our sense of morality The high damages awarded by a Fla. don’t offend our sense of morality. punitives. Public Policy . there should be an obligation on P to educate D on differences that may give rise to the harsh result. claim didn’t say the amount. only “in excess of $5000” – no indication that it could involve treble damages. Decision: After Morguard we shouldn’t change our concept of impeachment defences Fraud: Narrow If you allow a broad defence of fraud it will be troublesome Fraud going to jurisdiction can always be raised as a defence The merits of a foreign judgment can only be challenged for fraud only where the allegations are new and not the subject of prior adjudication Evidence of fraud has to be new and material.jurisdiction (even though this is one year after Morguard so the real and substantial connection applies). but how different does it have to be? Fla. Dissent: There is particular concern w/r/t default judgments… Natural Justice: If foreign procedure is different enough to result in an excessive judgment against D. while high. etc. jury. Natural Justice: Unfair Procedure Enforcing court must ensure D was granted a fair process: Fla. undetectable by foreign court. to amount to over $270. standards.
foreign judgment for a fine will not be enforced . The majority didn’t really address public policy on the punitive damages. who breached agreement of purchase and sale. not the government. . Andler – SCC (1932) – p. We don’t know on the facts whether the Fla court bought the argument that the Beals were malicious and high handed etc. Attrill – Privy Council (1893) – p.Can’t enforce foreign judgments dealing w.many countries have bilateral tax treaties that provide for reciprocal crossborder enforcement though (c) Foreign Penal Claims .Canadian courts may not enforce a foreign judgment dealing with Canadian land Duke v. so this isn’t a claim “in the nature of a suit in favour of the state whose law has been infringed. (b) Foreign Tax Claims . LeBel suggests we shouldn’t enforce US punitive damages awards in cases where we wouldn’t enforce them. Held: The standard of recovery wasn’t a fine. any misrepresentation signed by officers of a company made the officers jointly and severally liable for any damage coming from the misrepresentation. P sued to get land back and CA court ordered a reconveyance back to P. The measure was the harm to creditors (i.e.Parties in CA would have to come to BC and relitigate. Maybe Cdn. . Under NY law.foreign tax claims won’t be enforced and courts will refuse to take jurisdiction – ‘revenue rule’ . so P brought suit in BC. 264 Facts: H lent money to NY company of which Atrill was director. courts should enforce the judgment but trim down the amount of punitive damages. 267 Facts: Ps and Ds both lived in CA. title to land in province. Ds refused to convey. plaintiff’s loss). Held: . Ps sold BC land to Ds.area of corporate legislation brings borderline issues – civil or penal? Huntington v.” (d) Foreign Judgments Concerning Land .
Enforcement of Non-Monetary Awards . NS won’t take jurisdiction to give title to land in NB. v. but because of problems with the particular orders in this case they don’t do it here o order is quasi-criminal.- SCC says even if they knew CA had applied BC law they still wouldn’t enforce the judgment The rule here is also that money judgments based on title to land shouldn’t be enforced either. This doesn’t arise in Canada b/c. Statutory Provisions and International Agreements (a) Provincial Statutes . it’s that anything involving a foreign finding of title isn’t enforced.g. 4.how should we deal with foreign non-money judgments? o Declarations o Injunctions o Specific performance of a contract Pro Swing Inc. 270 sets out rules re foreign non-money judgments balance national identity and jurisdiction vs. Elta Golf Inc. etc. but this is not the case to implement it the court recognizes the need to change the rule. – SCC (2006) – p. It’s not just in rem rulings aren’t enforced. Dissent o Similar principle to majority. but different result o They would enforce the judgment - 5. quicker way of enforcing judgments that could already be enforced at c/l but not allow for judgments that wouldn’t be enforced at c/l: . globalization & increased mobility of people/assets court was asked to change the common law o common law: prevents enforcement of non-money judgments o changes must be made cautiously o we need a new rule.provincial jurisdiction to legislate re enforcement of foreign judgments: ‘Property and Civil Rights in the Province’ (i) Reciprocal Enforcement Legislation In force in all the provinces Product of Uniform Law Conference The statutes provide a cheaper. e.
Uniform Enforcement of Canadian Judgments Act Doesn’t depend on reciprocity – one province that enacts it will have to enforce judgments of another province even if that other province hasn’t enacted it. .2(1) the judgment creditor can apply to a court for an order for the judgment to be registered. The next statute accounts for that: The drafters intentionally stayed on the conservative side. and this Act follows that decision Only defences are in 6(1): Court can stay or limit enforcement of a registered Canadian judgment if: a) An order could be made by superior court under its rules or enactment of enacting province relating to creditors’ remedies and enforcement of judgments b) Appeal: the judgment debtor brings or intends to bring a proceeding to set aside or vary the original judgment c) An order staying or limiting judgment is in effect where judgment was made d) Judgment is contrary to public policy This is fishy b/c it lacks the “real and substantial” connection from Morguard. Morguard. So the Act just helps save the time and expense of having to bring an action The Act contains all the pre-Morguard defences though: 3 The judgment won’t be enforced if: (b) The judgment debtor wasn’t carrying on business or residing w/in jurisdiction of original court and didn’t voluntarily appear or otherwise submit to proceedings (c) The judgment debtor wasn’t duly served and didn’t appear or otherwise submit to jurisdiction of the court (d) Obtained by fraud (e) An appeal is pending or judgment debtor intends to appeal (at c/l the judgment has to be final) (f) Public policy says it shouldn’t be enforced (g) The judgment debtor would have had a good defence if an action were brought on the original judgment This is out of synch w. “judgment” is a final judgment of a Canadian court Morguard drew lines between Canadian judgments and other judgments.
b/c Morguard brought the constitution into play. (iii) Other Provincial Legislation . Allowing people to do that is bad policy b/c it could cause a lot of wasted time and money if P is successful in foreign jurisdiction but then cannot get another jurisdiction to enforce it. The argument is that 6(1) should make reference to “real and substantial connection” (ii) Arbitration Awards . 6(1) essentially requires someone to show up in the foreign jurisdiction at the jurisdiction stage rather than waiting for the enforcement stage. court recognized it. it would be unconstitutional to require a Nova Scotian to go to BC to fight a suit there. Gasmac Inc.Insurance Acts: attempts to alleviate the strictness of pre-Morguard enforcement (b) Canadian Statutes and International Agreements . GD (1992) – p.United Nations Convention o Attempt to balance state’s domestic interests with the need for neutral enforcement of arbitration awards o Implemented in Canada by federal/provincial governments Schreter v. under the International Commercial Arbitration Act H: Ont. There might be an argument that.It’s not a reason for an NS court that passes the statute to make an order limiting another province’s judgment on the grounds that the other province doesn’t have jurisdiction… Drafters of the statute thought that it’s not a good policy to allow defendants to lay low when the case takes place elsewhere and then fight it when judgment creditor comes to defendant’s jurisdiction to enforce the judgment on the grounds that there’s no substantial connection. – Ont. 296 Application to enforce a foreign arbitration award in Ont. this law if enacted would be unconstitutional b/c it takes away a defendant’s right to stay at home.arbitration awards are enforceable under Reciprocal Enforcement Act in the same manner as a court judgment .Motor Vehicle Acts provide for extraterritorial application of a license suspension . If Morguard says that a BC court can’t hear a case if there is no real and substantial connection.Federal Court established by Federal legislation – enforceable across Canada .international arbitration requires minimal state interference .
5 allows AG to prohibit a Canadian from complying w. . US legislation tries to tell US companies to get their subsidiaries to not do business w.- o Court has very limited jurisdiction Discussion of Foreign Extraterritorial Measures Act o in response to broad American assertions of jurisdiction. Cuba. so AG says ignore it. Also s. 8). Gives capacity to AG to make an order that a foreign judgment not be enforced where the recognition or enforcement of it would significantly interfere w.g. e. a foreign order. significant trade and commerce or Canadian sovereignty (s.
rules re jurisdiction o statutes i. leave to appeal to SCC) .four general problems created by geographically complex facts o are the rules that disable from hearing the case? o Should the court refuse to hear a case where the defendant is properly served as a matter of justice/fairness? o When is a court justified in hearing a case with a defendant outside its borders? o When will a court enjoing the parties from continuing proceedings in a foreign court? 2. laws were designed for application inside the jurisdiction – no geographically complex facts . Divorce Act o common law rules re contract.basic position: jurisdiction of any court is territorial o idea of sovereign ordering someone to appear.focus on the criteria considered by the court .in any proceeding.e. and not in rem . Rules Excluding the Jurisdiction of the Courts (a) Personal Exclusions .principal exclusion: sovereign immunity o cannot assert jurisdiction over foreign sovereigns . the defendant can argue that the court lack jurisdiction to hear the case .courts of general jurisdiction – original common law courts in each province o defendant has to show that the court should not hear the case . have to be subject to the sovereign – sovereignty traditionally seen as territorial o citizenship was developed later .anyone who is served in accordance with the Rules of Civil Procedure is subject to jurisdiction o generally requires personal service o corporations present unique problems . Introduction .e. tort and property more complex deal mostly with judgments in personam.Part III – Jurisdiction Chapter 7 – Jurisdiction of the Provincial Courts – pp. 355-523 1.all jurisdictions are limited geographically.close relationship between jurisdiction and choice of law o the fact that courts take jurisdiction in geographically complex cases is what necessitates choice of law rules o underlying factors should be essentially the same .other courts have limited jurisdiction o plaintiff has to convince the court to hear the case (i.
in the middle of a traffic circle in Iran.Charter argument doesn’t fly either… .Bouzari has no real and substantial connection to Canada (Tolofson rule). SCC has held that you can look to int’l norms to resolve ambiguities in a statute: court looks to state practice.power of provincial courts to hear cases is limited by a number of factors o historically. has previously held that both nature and purpose can be considered.w/r/t/ P’s argument that exception should be read into State Immunity Act. the Iranian government. 6 exception to commercial activity: P argues that b/c he had to pay bribes in relation to an oil deal. blindfolded. Ct. Iran’s actions were commercial Nature: police and prison activity not commercial in nature at all Purpose: sort of commercial Although the SCC.A decision on excluding immunity for torture was left to the legislature (b) Subject Matter Exclusions . 5 exception to torts: this applies only to torts committed in Canada . here the acts of Iran weren’t even close to being commercial when all things are considered. (2002) – p.- o applies to jurisdiction & enforcement legislation: State Ammunity Act(federal). so he was imprisoned and tortured. o S. . but court disagreed: still a civil suit therefore not criminal proceeding. Jus. o S. He refused to give a bribe to an Iranian official. and finds that no other courts in the world had ignored state immunity in order to allow civil suits in torture cases. but court doesn’t rely on that fact in dismissing his case. helping them get lucrative oil deals w. 359 Facts: Bouzari used to be a consultant to oil and gas companies.State Immunity Act o Doesn’t apply to crimes. Now he’s in Canada Discussion: . etc. Iran – Ont. federal taxation. Federal Court re admiralty. After paying about $3 million in fines he was dumped. some provinces couldn’t issue divorce solved by federal Divorce Act o federal legislation may give another court jurisdiction i. . Sup.e. o can’t hear a claim regarding foreign land may not apply inter-provincially . P argued that his case was penal in nature. also provincial leading case on sovereign immunity: Re Canada Labour Code Bouzari v.
L. Dist. the judge decided not to apply the Mocambique Rule. This is pretty exceptional.Hesperides Hotels Ltd. and it was done because to apply Mocambique just wouldn’t make sense. finds that there is no such exception: the original rule generalized and didn’t allow room for distinguishing cases where there is no dispute so that can’t be an exception to the rule o There are exceptions to this subject matter exclusion: you can sue a ship that runs into land and damages it. IMA Exploration – BC SC (2006) Administering an estate or trust that includes property in Canada. Muftizade – House of Lords (1979) – p. After Morguard there is an argument that Mocambique shouldn’t apply interprovincially. Ct. Mocambique rule o No jurisdiction re: Determination of title to foreign land Trespass on foreign land o Exceptions Court has jurisdiction in personam due to contract. trust or partnership • Case where action for unjust enrichment met the in personam exception – Minera Aquiline Argentina v. 378 Arguments by P: o This isn’t trespass. In Godley v. but this argument hasn’t won any cases yet. H. it’s conspiracy to trespass o There should be an exception where there is no dispute as to claim of title. (a) - - . v. Coles (1989) Ont. as well as foreign land Jurisdiction in rem against a ship o Lower courts are sometimes reluctant to apply Mocambique strictly o Potential for analogy between case dealing with land and copyright cases Other Restrictions on Taking Jurisdiction Forum Non Conveniens serious concerns about forum shopping this a rule that limits the plaintiff’s freedom to choose the forum o courts will control an unfair exercise of this freedom – abuse of process o basis for interference has been expanded in recent years principal issue: should the court be plaintiff or defendant-oriented o initial position: defendant has to show that the choice of forum was vexations and an abuse of the court’s process 3.
H: • P must first have founded jurisdiction as of right in the country where the action is brought.. o this restritive test has been relaxed in recent English cases balance of convenience test Spiliada Maritime Corp. 394 FNC in Canada F: P’s ships were damaged in BC. who is found liable in Illinois court and so assigns his interest in insurance policy to her. one negative) i) The defendant must satisfy the court that there is another forum to whose jurisdiction he is amendable in which justice can be done at substantially less inconvenience or expense. and owners of the Spiladia were Liberian. court is Forum Non-Conveniens (FNC) b/c action brought by parties who live in US arising out of MVA that happened in UK involving an insurance policy to be interpreted under law of UK would be unjust and an abuse of court’s process. Norwich Union Fire Insurance Society – Ont. P obtained leave for service ex juris. so Mrs. Cansulex Ltd. HCJ (1971) – p. so M sues Norwich in Ont. a US air force pilot serving in UK. 390 Example of Traditional Forum Non-Conveniens F: Norwich insured Collins. managed partly in Greece and partly in England. Norwich won’t pay under policy (says Collins drunk). suit brought in UK. Court is FNC R: Although a court will not lightly interfere w.Moreno v. a plaintiff’s chosen jurisdiction. – House of Lords (1986) – p. D argues FNC. who claims the Ont. . H: Ont. if the inconvenience of trying a case in a certain jurisdiction would be a serious injustice to defendant and be vexatious then the court can use its discretion to decline to hear the case. • In order to justify a stay two conditions must be satisfied (one positive. Collins killed Moreno. Moreno sues Collins. but P says they’d lose a big juridical advantage by not being able to sue in UK b/c suit in BC would be statute-barred. v.
despite the BOP (below) the P will have to show that it’s not an inconvenient forum b/c there will be so much expense and inconvenience to D.two kinds of forum clauses o agree to submit to a particular jurisdiction but don’t specify that this is an exclusive jurisdiction o confer exclusive jurisdiction on a specified court . effect is that in service ex juris cases. o Note: this case closely connected to Amchem o This case has been approved by SCC – may be different interprovincially (b) Contractual Limits on Forum Selection . For (i) above.international contracts will usually specify a governing law and choose a forum for litigation/arbitration . o Burden of Proof: On D to persuade the court to exercise its discretion to grant a stay If D establishes prima facie that another forum is more appropriate.exclusive clause o courts don’t like it o won’t enforce an exclusive clause in an unfair contract o otherwise.ii) The stay must not deprive the P of a legitimate personal or juridical advantage which would be available to him if he invoked the jurisdiction of the forum in which he brought the claim.court’s discretion in controlling forum selection clauses – common law Eftheria o court is not bound to grant a stay.non-exclusive clause o makes the court competent to hear o makes judgment enforceable pretty much anywhere . o Losing Juridical Advantage: the fact that lower damages would be awarded in the more convenient jurisdiction doesn’t count – a court should not be deterred from granting FNC as long as substantial justice can be done tin the more appropriate forum. they’re stuck with it . • Court distinguishes between jurisdiction as of right and service ex juris – the standard for finding FNC is lower for service ex juris. BOP is on P to show special circumstances that justice requires trial should still take place in the forum in which he brought the claim. discretionary power to do so .
fed. Shipper shipped by rail. but rather have a rule that an exclusive jurisdiction clause can only be ignored for a reason already recognized in contract law that allows courts to ignore a clause in a contract (e. Even the things taken into account in the test don’t necessarily relate to freedom of contract. Parties need contractual certainty Lower court used fundamental breach as an excuse for ignoring the exclusive jurisdiction clause Courts have discretion to ignore exclusive jurisdiction clauses in contracts. – SCC (2003) Appeal from Federal Court judgment refusing to give effect to choice of jurisdiction clause Facts: contract to ship goods from Europe to Seattle said not to ship by rail and included exclusive jurisdiction clause in favour of Antwerp. The “Strong Cause” test from Eleftheria applies. confirming the “strong cause” test in Eleftheria. but should use it only in extreme circumstances. court. court.g.V.- o stay should be granted unless there is strong reason not to o take into account all the circumstances in the case location of evidence applicable law. Black: Why not make the rule not discretionary. e.g. Pompey Industrie v. Decision: SCC overturned fed. Action was started in Cdn. connections between the parties and the jurisdictions are the defendants just seeking procedural advantages? Would the plaintiffs be prejudiced by having to sue in the foreign court? o Common law rules were unpredictable and unsatisfactory – litigants need to know the relevant criteria a court will apply Canadian courts usually give effect to choice of jurisdiction clauses Z. using the same tripartite test that is used when a court is asked to issue an interlocutory injunction. breached contract. fraud).I. Discretion still exists. duress. but should only be used in extreme circumstances. ECU Line N. why would the court take into account where the . unconscionability. which decided to exercise discretion and not grant a stay based on the exclusive jurisdiction clause.
or Sask. – SCC (1975) – p. Thompson where the P. The defendant’s act which gives the P his cause of complaint must have occurred w/in the jurisdiction.witnesses are? The parties may well have known or taken into account the place of the witnesses when they made the contract. Pyle National (Canada) Ltd. This failure was a continuing act that had been made in Australia. It rejected a mechanical application of “last event” theory in favour of a more flexible qualitative and quantitative test. Issue: is service actually authorized by the rules? Decision: o All constituent elements of the tort must occur in the forum in order for an action to lie. 422 Deciding where a tort occurs for purposes of service ex juris rules. but with a catch-all provision giving discretionary power in instances where specific categories aren’t met o Nova Scotia – service without leave anywhere in Canada or US. the damage in Australia ended up w. company that made light bulbs. and that combined w. Approaches: Place of acting Place of injury SCC likes Distillers Co. Service Ex Juris aka ‘long-arm’ jurisdiction significant change to common law jurisdiction first introduced so that leave had to be obtained for any service ex juris o convince the court this is a proper case to authorize this exceptional power o courts will be exceedingly careful recent expansion in the court’s powers: three types of rules o narrowest: service ex juris only if it fits into a specified category (Alb. o SCC concludes: for the purposes of servis ex juris rules. It held the tort had occurred in Australia b/c there had been a failure to warn of possible damage. where D’s negligently manufactured bulb killed P’s husband. Facts: D was Ont. finding for P. 4. service outside Canada or US only with leave Moran v. & NL) o similar to the first. P lives in Sask.. The court considers whether the tort occurred in Ont. There can be no liability until the damage has been done.C. v. a tort occurring anywhere that D could reasonably foresee it is fair - . hints at a real and substantial connection test.
every damage that occurs in Sask. it doesn’t mean that. injured in accident in AB. will allow for an action. D said P’s claim should be struck out on FNC grounds. 429 NS service ex juris rules allow service anywhere in North America so issues like the ones in Moran v. If you can anticipate harm occurring there. P lives in NS and that’s where medical experts are. e. Pyle don’t arise. you can have committed the tort there. Pyle: it’s reasonable for Sask. Things might be different now that constitutional considerations are more prevalent (Morguard – R&S connection) Note on Actions and Judgements In Rem in rem: binds the parties to the legal relation established in the judgment and also binds third parties o admiralty o divorce o any proceeding that decides title 5.game. Morguard took place 15 years after Moran. how could you then say the judgment isn’t enforceable? Of course. Warren – NS SC Appeal (1982) – p. Where a foreign defendant carelessly manufactures a product in a foreign jurisdiction which enters into the normal channels of trade and he knows or ought to know both that as a result of his carelessness a consumer may well be injured and it is reasonably foreseeable that the product would be used or consumed where the P used or consumed it.g. Forum Non-Conveniens becomes much more important though: P was passenger in D’s car. o Although this test is pretty broad. Appeal dismissed. Long quote from Catel’s Conflict of Laws is pretty good. then the forum in which the P suffered damage is entitled to exercise judicial jurisdiction over that foreign Defendant. o You can see Morguard as a constitutionalization of Moran v. Robinson v. H: For P: P’s action in NS not frivolous or vexatious to D. to take jurisdiction here.a form of ‘offensive’ forum non conveniens o enjoins someone from starting or continuing an action in another jurisdiction . Anti-Suit Injunctions . P returned to NS and served D in AB.
were injured by working w. onus is on plaintiff to prove no FNC (in UK P has to bring motion to get court’s permission . British Columbia Workers Comp – SCC (1993) – p. Ps get anti-anti-suit injunction from Texas court.e. o Stay proceedings unless it deprives X of significant juridical advantage Sopinka modifies Spiladia for ASI purpose: o Consider Both Steps Together: juridical advantage should be weighed with other factors in determining which forum is more appropriate. asbestos and sue about 30 asbestos cos. Texas doesn’t have forum non conveniens (that changed after this case – FNC is allowed). Negative declarations such as this are not usually issued. If it is elsewhere. When service is ex juris.- became common in the last few years Amchem Products v. Issues: Is Texas an appropriate place to sue. since there isn’t an obvious home state for the companies? Is it appropriate for BC to issue an anti-suit injunction against BC Plaintiffs? Decision: Texas took jurisdiction b/c it was as good as any forum to hear the case. In order to get anti-suit injunction you have to have an action going in BC so remedy Ds seek as Plaintiffs in BC action are damages for abuse of process (w. Ds get anti-suit injunction from BCSC. in Texas. It is limited only by the due process clause of the 14th Amendment of US Constitution. but this is a case where one could be. 433 3rd out of 4 big cases in 1990s (Tolofson and Morguard are first two we covered) Facts: A bunch of plaintiffs. Issued anti-suit injunction Spiliada forum non-conveniens test: o Identify more appropriate forum. trial judge dismissed) and a declaration that they are not liable to claimants w/r/t any of the matters raised by Ps in Texas action. can take jurisdiction over any defendant who does business in Texas. service w/in jurisdiction) onus is on defendant to prove forum non-conveniens. Lower Court: found that b/c Texas doesn’t have forum non conveniens they were an inappropriate forum: P’s action there is oppressive or vexatious. o Burden of Proof from Spiladia: When service is as of right (i. mainly in BC.
Stubbs – plaintiff may not get an interlocutory injunctions before trial that would prevent defendant from dealing with its property in a way that might deprive plaintiff of an effective remedy . Is BC the natural forum? If there is no other forum more appropriate. 6. Brown and Root o SNI realized that ASI was not the flip side of FNC. would it also be an injustice to allow Texas to hear the case? In this case asbestos cos. to do service ex juris). because it effectively interferes w. don’t pass first step of the test: just b/c Texas didn’t use FNC doesn’t mean they wrongly took jurisdiction.Never get an anti-suit injunction until action is started in foreign court .g. Procedural aspects of ASI in Canada: .Mareva is an exception to this general rule . Munday (1821) o Later it was determined to be the flip side of forum non-conveniens test: Castanho v. Sopinka decides that the rules of court dictate who has onus: if rules of court of a province allow service ex juris then onus is on D to prove FNC. foreign jurisdiction.Lister v. UK didn’t want to get involved.Must give foreign court a chance to decline jurisdiction . Canada has service ex-juris as of right. and Texas is limited by provision in 14th Amendment in US Constitution – look at the decision.Would it make sense for the forum jurisdiction where the ASI is sought to hear the application? Anti Suit Injunction Test: Is there another forum more clearly appropriate? E. If BC is the natural forum. Anti-Suit Injunctions: o Initially fairly lax: Bushby v.g. would it be an injustice for case to be heard in foreign jurisdiction? E. not the process used to reach the decision Recent HL case held that ASI should only be issued to protect domestic jurisdiction. Many jurisdictions don’t use FNC. Held that anti-suit injunction should only be issued when foreign proceedings were vexatious or oppressive. Mareva Injunctions . They declined to issue one when India was argued to be natural forum and Ds wanted vexatious proceedings to be stopped in Texas.
F now wants a Mareva injunction to keep Aetna from transferring assets to its offices outside MB. • • • In the federal system. 450 In appropriate cases court can issue injunction to D to freeze assets. Friedland – BCSC (1996) – p. CA (1975) – p.Mareva Compania Naviera v. Feigelman – SCC (1985) – p. had an office in MB. Therefore UK Mareva rules don’t transfer intact to Canada United States of America v. Real likelihood that D will take money out of the jurisdiction (don’t necessarily have to show that D has done so in the past) Considerations: D does not have to be outside of the jurisdiction for a Mareva injunction to be issued. Feigelman went into default under some debentures held by Aetna so they appointed a receiver for them. P must show: 1. the injunction binds not only D but also other parties that have notice (e. 462 F: Aetna had office in Toronto and head office in Montreal. Injunction can also apply when there is fear of dissipating assets rather than moving assets out of jurisdiction Mareva is an exceptional remedy b/c of danger of its abuse (tying up assets of D to pressure to settle etc.) Aetna Financial Services v. banks).g. Taking into account constitutional considerations a la Morguard.g. International Bulkcarriers – Eng. if D disobeys Mareva injunction and then skips town so that he is out of reach of court. isn’t outside of jurisdiction for the purposes of a mareva injunction: any judgment obtained in a province can be executed in another Here no clandestine transfer of assets intended to defraud P or make D judgment proof – Aetna publicly announced its intention to transfer the assets. out of province D is not a foreigner. Reasonable cause of action (don’t have to show an indisputable claim) 2. Injunctions are effective against 3rd parties with notice: e. I: Can Mareva injunctions be issued inter-provincially? H: Provincial courts shouldn’t be as concerned about effects of Mareva injunctions on bank managers in other provinces. 466 issue of stand-alone Mareva injunctions in aid of proceedings brought elsewhere .
If BC is an appropriate forum. T&N – SCC (1994) Fourth big SCC case. The Quebec statute doesn’t meet order and fairness requirement underlying comity. Facts: Hunt worked w. then discovery is necessary as a part of litigation.- interlocutory assistance can be granted to proceedings in a foreign court without an underlying cause of action 7. confirmed the constitutional aspects of jurisdiction proposed in Morguard. but it must meet minimum standards of order and fairness. so it is not effective against another Canadian court that is the proper forum. asbestos in BC and got cancer. Now P raises constitutional challenge: BC should ignore Quebec legislation b/c it’s unconstitutional. Ds therefore refused to comply w. and the order and fairness required by the common bonds that the constitution provides mean Quebec’s blocking statute is not OK. At trial BC courts deferred to Quebec Act. and its discovery rules reach to the rest of the country.Canada is a federal state. Discovery is a v.Need a vision of jurisdiction that accords with constitutional imperatives Hunt v. different that England (unitary state) where most of our rules have come from . which was originally devised to protect Canadian companies from US anti-trust suits and says that it’s against the law for businesses to send documents out of the province. 92(13). This case confirms that there are constitutional limits on service ex juris. A province isn’t prohibited from enacting legislation that has an effect on litigation in other provinces. Morguard requires more recognition and enforcement of judgments of sister provinces due to the integrating character of our constitutional arrangements.National perspective on service ex juris is very important . important tool in litigation. . (14) & (16) of the Constitution Act? (ii) Does Morguard make the Quebec statute constitutionally inapplicable? Decision:. The constitutional considerations of Morguard trump the Quebec Act. discovery in BC suit. Ds relied on Quebec’s Business Concerns Records Act. The Constitutional Component . Issues: (i) Is Quebec’s statute ultra vires its powers in ss.
in other forums? Should we only use a FNC test? (In US the concern about home-court bias leads people to go to federal courts under their diversity jurisdiction: when there are Ps and Ds from different states. CA (2002) – p. Muscutt v. as a result of a tort committed elsewhere. Courcelles – Ont.) The question of whether or not we need both tests underlies the decision here. substantial connection test fails and D doesn’t have to litigate in the foreign jurisdiction even if . Obiter: It may be the case that the federal government has the power to legislate w/r/t enforcement of judgments nationally (476). and must be decided before looking at FNC considerations o Forum Non-Conveniens is discretionary. 482-484: Good review of cases up to this point. This decision tries to give content to the R&S test while being mindful La Forest’s statement that it may be impossible to define it with much certainty. rules of a court does not itself confer jurisdiction. courts should assume jurisdiction over out-of-province Ds in claims for damage sustained in Ont. VB discusses US minimal connection test: focused on miles. and is only considered once a court determines that it has jurisdiction SCC finds Ont. If there are none.02(h) is procedural. Our R&SC test is focused on borders. Two main approaches to assumed jurisdiction: o Personal Subjection: test focuses on connections between D and forum.This case and Morguard invent “constitutional inapplicability”. CPR 17. The real and substantial connection test for jurisdiction is correlative to the real and substantial connection test for enforcement of judgments (like Braintech). Muscutt differentiates between Real and Substantial Connection test and Forum Non-Conveniens: o Real and Substantial Connection test is rule based. Are we really concerned about bias etc. and you go to fed court in the state where the action was started. I: whether the Ont. 484 Defines the real and substantial connection test. service in accordance w. either party can opt to go to fed court.
Connection between D and forum 2. Oakley v. Barry leading NS case on this: NS resident suffered from sub-standard medical care given in NB. it shouldn’t expect 7. Here court looks to Brussels Convention. adopts broader approach. CA (2006) – p. C. There is a textual basis for this approach. 8. but we have all the constitutional principles from Morguard: mobility rights. procedure etc. and a court deciding whether or not to take jurisdiction should be mindful of its own jurisprudence: if it has previously refused to enforce judgment of another province in a similar case. witnesses etc. Unfairness to P if court assumes jurisdiction 5. Comity and standards of jurisdiction and enforcement elsewhere: look at international standards. common citizenship. w. P. 8-Part Real and Substantial Connection Test: 1. and Draft of Hague Conference on worldwide assumption of jurisdiction. etc. e. she would be suffering in NS. Smith v.g. – a much lower standard: it must be fair for the case to be heard in the province b/c it’s a reasonable place of the action to take place. Whether case is interprovincial or international. US approach based in constitutional provision that they can’t lose property w/o due process of law. Ont. logic is that losing a suit in another state would deprive one of due process of law. Unfairness to D if court assumes jurisdiction 4. R&SC test between provinces is more lax: D who has to travel to another province is still w/in same country. We don’t have that. wouldn’t be that hard for NB doctors to come defend in NS etc. 507 application of Muscutt factors . The standards are correlative. A stronger connection is necessary to find a R&S connection internationally. common market. same language.A.it’s much cheaper or more convenient for everyone else (this is essentially the US approach. o Broader Approach: test that looks at all connections: between the forum and D. similar laws. b/c traveling would be a hardship. Connection of others to the forum 6. Held that NS was proper place to hear the case. World Wide Volkswagen). Court’s willingness to enforce a foreign judgment rendered on the same basis. Connection between P and forum 3. Money Mart – Ont.
LeBel said: 1. but all other factors favour the plaintiff Spar Aerospace on appeal from Quebec. R&SC test doesn’t apply outside of Canada. finds a real and substantial connection for parent company that doesn’t have operations in the province o subsidiary company does and evidence that parent company has total control o fairness balancing favours the individual plaintiffs in Ont. Start with some fundamental propositions: Law is a rational enterprise • Decisions should be made based on principles and reason • Even though there are limits to rationality (limited information. saying Quebec didn’t meet R&SC test. This would mean that foreign Ds can’t rely on lack of R&S connection. etc. o the fact that it is international and not interprovincial favours a finding that there is no real and substantial connection. where Spar sued US defendant in PQ court. equally desirous results) we still want a structured way in which to decide things . LeBel doesn’t mention Muscutt and accompanying cases. and it is impossible to say how the provisions will be applied in the future. Woodson – US SC (1980) In US long-arm jurisdiction is limited by the “due process” clause in the 14th amendment. which has been read to mean that nobody can have their property (money. 2.) taken away by a court with which they have no connection. Other courts and parties to actions haven’t really picked up on this case. World-Wide Volkswagen v. which VB thinks is just plain wrong. not on constitutional basis but rather because the provisions of the code take into account the factors of the R&SC test. R&SC test didn’t apply to Quebec’s Civil Code. No state can deprive any peson of property w/o due process of law. This is sketchy b/c you’re supposed to do test on case by case basis. US takes personal subjection approach instead of broader Canadian approach from Muscutt Chapter 8 Evaluation of the rules we’ve learned so far: A main difficulty of conflicts is that there is no universally accepted approach to dealing w. where there were a bunch of US defendants. the problems at hand.
traditional conflicts theory is unsatisfactory.g.g. but we’re not even sure why o Logically insoluble: how do you know when to stop? It could go on forever “The claim of this part of the materials is that traditional conflicts doctrine is fundamentally incapable of faithfulness to the demands of the process of adjudication and. to the requirements of justice. Block Brothers – does it really matter whether something is substantive or procedural given that what the case really needed to balance were the need to not allow unlicensed real estate agents to practice in BC and the need to not allow unjust enrichment. • Renvoi: o Indefensible: it’s only of limited application.• • If things are decided rationally one has to respect the demands of the judicial process – know what criteria one needs to make a reasoned argument. hence. what facts are necessary Also we can talk rationally about the solutions the law reaches for the problems it has to solve Based on the proposition that law is a rational enterprise. • Characterization: o Fundamental to the operation of the rules. but nobody can agree on how it should be carried out or even what it is o We draw lines even when we’re not sure why we should draw them: e. e. • • The traditional theory’s claim that it leads to certainty of results is wrong and illogical The American approach is good to look at b/c they started from a different point than Canada did .
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