Choice of Law

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Page 1 of 101
Introduction to Conflicts ..................................................................................................... 4
Conflict of Laws Theories .................................................................................................. 5
Approaches to Conflicts of Laws .................................................................................... 5
Principle of Territoriality ............................................................................................ 5
Comity......................................................................................................................... 5
Vested Rights .............................................................................................................. 5
Local Law Theory ....................................................................................................... 6
Governmental Interest Analysis .................................................................................. 6
Conflicts and the Constitution ............................................................................................ 6
Public Policy, Public Law Claims .................................................................................... 10
Huntington v. Attrill (1893) (PC) ............................................................................. 16
USA v. Harden (1963) (SCC) ................................................................................... 17
Stringam v. Dubois (1992) (AB CA) ........................................................................ 18
Re: Sefel Geophysical (1989) (AB QB) ................................................................... 18
Domicile and Residence ................................................................................................... 19
Domicile........................................................................................................................ 19
Residence ...................................................................................................................... 20
Part Two: Jurisdiction ...................................................................................................... 21
Parties to an Action (Standing to Sue) – a “juristic entity” .............................................. 21
Assumption of Jurisdiction: The Existence of Jurisdiction or Jurisdiction Simpliciter... 22
Parties within the Jurisdiction ....................................................................................... 22
Parties outside the jurisdiction ...................................................................................... 24
Forum Non Conveniens: Discretion to Decline Jurisdiction ........................................... 34
English Position in Transition....................................................................................... 34
Modern Canadian Position ............................................................................................ 38
Discretion as to the exercise of territorial competence – CJA s. 11 ............................. 38
Part Three: Recognition and Enforcement of Extra-Territorial In personam Judgments 44
Common Law Enforcement – Pre Morguard................................................................ 45
FACTS .................................................................................................................. 45
Jurisdiction of the Foreign Court in an International Sense – Requirement that it be
within a foreign court’s jurisdiction .............................................................................. 46
Schibsby case (1870) .................................................................................... 46
FACTS .................................................................................................................. 47
Defend on the merits = submission............................................................... 48
FACTS .................................................................................................................. 48

ON, but CL position ...................................................................................... 49
FACTS .................................................................................................................. 49
The Morguard Rule ....................................................................................................... 49

Life has never been the same in conflicts or constitutional law ................... 50
FACTS .................................................................................................................. 50
HELD .................................................................................................................... 50
REASONING / RATIO ........................................................................................ 50
POST-MORGUARD CASES ...................................................................................... 52
FACTS .................................................................................................................. 53
ISSUE ................................................................................................................... 53
HELD .................................................................................................................... 53
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REASONING / RATIO ........................................................................................ 53
NOTES .................................................................................................................. 54
Default judgment against D .......................................................................................... 54
BC Ct applying Morguard ............................................................................................ 54
Common law defences (or circumstances of non-enforcement) to enforcement of
foreign or extra-territorial judgments............................................................................ 56
Defence of Fraud............................................................................................... 56
Defence of Natural Justice ................................................................................ 57
Non-pecuniary judgments ............................................................................................. 58
Hunt........................................................................................................................... 58
NOTES .................................................................................................................. 58
FACTS .................................................................................................................. 59
HELD / REASONING .......................................................................................... 59
RATIO .................................................................................................................. 59
Statutory Enforcement .................................................................................................. 59
Court Order Enforcement Act ................................................................................... 60
Enforcement of Canadian Judgements and Decrees Act .......................................... 60
Cases reviewing the statutory topic after Morguard ..................................................... 62
Choice of Law ................................................................................................................... 63
Choice of Law Methodology ........................................................................................ 63
When is a foreign law to be applied? ............................................................................ 63
Which foreign law applies? .......................................................................................... 64
Characterization .................................................................................................. 64
Problems with the Mechanical/Classical Approach ................................................. 65
Invoking and Determining Foreign Law....................................................................... 66
What is the foreign law? ............................................................................................... 66
Amosin v. The Ship “Mercury Bell” (1986) (FCA) ................................. 67
Hunt v. T and N Plc (1993) ....................................................................................... 68
Law of Procedure .......................................................................................................... 68
Tolofson v. Jensen (1994) (SCC).............................................................................. 68
International Exception: ................................................................................................ 70
Somers v. Fournier (2002) (ON CA) ........................................................................ 70
International Assn. of Science and Technology v. Hamza (1995) (AB CA) ............ 73
Gathering Evidence and Compellability of Witnesses .......................... 74
Blocking Legislation ................................................................................................. 75
Part Five: Torts ................................................................................................................ 76
General/Historical ......................................................................................................... 76
Trends in US + Australia + other Commonwealth ............................................... 77
The Current Position – Canada ..................................................................................... 77
Tolofson v. Jensen (1994) (SCC).............................................................................. 77
International Exception: ................................................................................................ 79
Somers v. Fournier (2002) (ON CA) ........................................................................ 79
Part Six: Contracts ........................................................................................................... 81
The Proper Law............................................................................................................. 81
Vita Foods v. Unus Shipping Co. (1939) (PC) ......................................................... 82
Star Texas (1993) (Eng. CA) ................................................................................. 84
Page 3 of 101
Imperial Life Assurance Co. v. Colmenares (1967) (SCC) ................................. 85
Amin Rasheed Shipping v. Kuwait Insurance (1984) (HoL) ............................. 86
Mandatory Legislation and Illegality of Contract ......................................................... 86
Nike Infomatic v. Avac Systems (1979) (BC) .......................................................... 86
Law Other than the Proper Law .................................................................................... 87
ISSUE ................................................................................................................... 88
HELD .................................................................................................................... 88
RATIO .................................................................................................................. 88
Greenshields v. Johnston (1981) (AB CA) ............................................................... 89
Avenue Properties v. First City (1986) (BCCA) ...................................................... 89
If Illegal Under Where the Contract was Done ........................................................ 90
Gillespie Management v. Terrace Properties (1989) (BCCA).................................. 91
Part Seven: Property ........................................................................................................ 92
FACTS .................................................................................................................. 92
ISSUE ................................................................................................................... 92
HELD / REASONING / RATIO .......................................................................... 92
NOTES .................................................................................................................. 92
From here, property already classified as immoveable ........................................ 92
Issues ............................................................................................................................. 93

How far to extend the Mocambique lex situs rule? ...................................... 94
Granting of patent ........................................................................................................ 94
Copyright ...................................................................................................................... 94
FACTS .................................................................................................................. 95
REASONING ....................................................................................................... 95
FACTS .................................................................................................................. 96
RATIO .................................................................................................................. 96
Ward v Coffin ................................................................................................... 96
FACTS .................................................................................................................. 98
RATIO .................................................................................................................. 98
Chapman Estate v O’Hara Case ........................................................................ 99
Issue: would Sask re hear case? ............................................................................ 99
Issue: Bigger question was should Manitoba court have taken juris? .......................... 99
Case where Interlocutory order of Quebec was enforced in BC ................................ 100
Page 4 of 101
Introduction to Conflicts
Conflict of laws is the area of law that resolves disputes containing a “foreign element.”
Three broad areas:
Jurisdiction
Jurisdiction simpliciter
-
the authority for a court to accept jurisdiction
determined by legislation or Rules of Court or forum
largely a question of civil procedure: Does the court of the particular jurisdiction
have authority to deal with the matter
one must look to an interpretation of the rules of court to see if it falls within the
jurisdiction of the court
Jurisdiction forum non conveniens
-
Over the parties of the dispute
Over the subject matter of the dispute
this extends beyond civil procedure – beyond establishing jurisdiction simpliciter
it asks whether the court _should_ hear the case, or if there is a more appropriate
jurisdiction that should hear the case; matter of discretion
this is an issue with anti-suit injunctions – injunctions in one jurisdiction barring
someone from starting a court action in another jurisdiction
Choice of Law
If there is jurisdiction, and if the forum is the most appropriate jurisdiction, which law
should apply? Options:
Lex fori – law of the forum (the area where the case is being decided). Usually lex fori is
used for procedural matters; but sometimes it’s difficult to determine what is a procedural
matter.
Lex loci delicti – law of the place of the wrong or infringement
Lex situs – Law of the location of the subject matter, e.g., a debtor or property (not so
easy to determine for intangibles like copyrights)
Lex causae – The legal system that governs a dispute
The above is used to determine procedural and substantive issues.
Recognition and Enforcement of Foreign Judgments
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The trend of conflicts has changed considerably in the last few decades, from nonrecognition, to full faith and credit to judgments of foreign courts (the USA in particular).
This is subject to concerns such as public policy.
Conflict of Laws Theories
Approaches to Conflicts of Laws
Public international law deals with international rules that are designed to deal with states
whereas conflicts rules are domestic court rules that regulate private individuals in cases with
an international element
Principle of Territoriality
General rule: every nation possess as exclusive sovereignty and jurisdiction within its
own territory
Effect: rules of the state are binding on all property, people, and contracts made within
its territory (specific geographic location)
BUT no state can directly affect or bind property beyond its territory, or non-residents
(can be supreme within BC, but problem if try to move outside of BC)
How to reconcile territoriality and the application of foreign law: (Ted says none really work)
Comity
General rule: recognition of foreign law depends on comity  the law of no country can
have effect as law beyond it’s own territory unless by permission of another state
Comity: deference to foreign laws seen as an attempt to promote international harmony
by accommodating the views of a foreign sovereign in the expectation of receiving
reciprocal treatment - principle of enlightened self-interest
Doctrine criticized for being too vague and discretionary to explain the mandatory
application of foreign law
Vested Rights
All rights must be created by some law
A right having been created by the appropriate law, the recognition of its existence
should follow everywhere (where the right arose, this should follow the individual
around)
There is no exception from territorial law, instead local law simply recognizes that a right
has become vested in an individual under the foreign law at the time when the
individual was subject to the foreign law.
Emphasized the individual’s entitlement to his vested right rather than the courts’ politeness
or concession to foreign sovereigns
Unlike comity, this explains the mandatory nature of conflict of laws; courts have no
discretion in recognizing vested rights
However, this theory is criticized – doesn’t explain why some foreign rights become vested
while others do not
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Local Law Theory
The forum incorporates foreign law, and is then able to apply it as domestic law
Allows the conclusion that the court only enforces rights created by its own law – what you
are really doing isn’t applying foreign law, just making domestic law like foreign law
Governmental Interest Analysis
Argues that we would be better off without choice of law rules
Suggest a method to follow: normally apply domestic law (even where there is a foreign
element), consider the policy of the domestic and foreign laws:
Apply the foreign law where the forum state has no interest in the application of its
policy but the foreign state does.
Where both states have an interest (or the foreign state has no interest), should
apply the law of the forum state.
In line with modern theories that see conflict of laws as having to do with the familiar CL
task of deciding the appropriate scope of any rule given its underlying rationale or purpose
Courts consider whether the local law, which has been developed to respond to local
situations, ought to be modified in light of a foreign element
Courts should consider the underlying policy or purpose the law is meant to serve and
then ask whether the law should be applied
Two variants of governmental interest analysis
(a) “Most closely connected” Proper Law
- Approach that continues to see the choice of law as a separate set of
rules, but rules that are open-textured or indeterminate
- Almost all the formal rules look the same since each legal category is said
to be governed by its proper law. However in determining the proper law
to govern a particular issue, courts are urged to choose the law with which
the issue is most closely connected
- i.e. similarity between proper law and governmental interest analysis
- Approach has been adopted in intl conventions (Hague Conference on
Private IL, 1984)
(b) “Principles of restraint” on local law intended to further intl goals
- Composed of various attempts to combine an analysis of the purposes of
domestic laws with some principles of restraint intended to further intl goals
- E.g. intl pressure of the need to live in the world ensures a high degree of
similarity among the many territorial systems of PIL
Judges often fall back on comity – conceptual analysis doesn’t significantly take
into account govt interests. Real emphasis on limits in terms of rules that one
can apply.
Conflicts and the Constitution
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Unlike other countries, no express provision of “full faith and credit” in the Canadian
constitution.
s. 129 of the Constitution Act – continued in force all laws in the colony at the time of
joining the confederation until such time as they should be repealed, abolished, or altered
by the appropriate legislature under the new federal system of government (this is where
we get our conflict rules from)
s. 92 of the Constitution Act – gives provinces authority over property and civil rights in
the province (but not outside the province – the clause has the effect of a territorial
limitation on provincial legislative competence)
Issue then is the situs of property – courts have used conflict rules to determine whether
the province had the power to tax or regulate
King v. National Trust Co (SCC) – Property can only have one location in Canada for
the purposes of the imposition of direct taxation by provincial legislatures
Historically, each province was treated as a foreign country using English conflict of laws
rules. Commentators have asked: why has Canada followed and applied English
principles (a unitary state) in a federation? Morguard changed this.
Churchill Falls (SCC) – Leading constitutional case dealing with extraterritoriality,
Looks at the ability of a province to legislate on matters that may be within the province
but might also have consequences external to the province. Also, the case is an
examination of the location of civil rights.
The court examined two conflicting lines of authority and concluded that where the pith
and substance (P&S) of a provincial enactment is in relation to matters that fall within the
field of provincial legislative competence, incidental or consequential effects on extraprovincial rights will not render the enactment ultra vires.
However, beware of colourability. Where the P&S of the enactment is the derogation
from or elimination of extra-provincial rights, even if cloaked in proper constitutional
form, the court will find it to be ultra vires.
Williams (SCC) – Indian Act, conflict of laws rules don’t automatically apply
Usually courts use conflict of laws rules to determine where something occurred, or
where rights were situated, but this is not a hard and fast rule per this case.
The appellant was owed money from the Gov’t. CoL rules would say the situs of the
debtor was off the reserve, thus making the payment not exempt from taxation under the
Indian Act.
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Court held that while CoL rules are normally OK, they were not in this case. One had to
inquire as to the utility for the purposes underlying the exemption from tax in the Indian
Act. Court said it was dealing with a different context which will necessarily bring about
different policy considerations that don’t come up with debtors or even employers.
Note, unlike Churchill Falls which was highly focused on location of rights, Williams
was a little more removed from the regular conflicts situation.
The point: CoL rules are subject to constitutional scrutiny whether the rules are common
law or in statutory form.
Morguard (SCC) – Important breakthrough, court employed federalism principles to
create new rule for recognition and enforcement of judgments interprovincially. The rule
was expressly stated to be a CL rule as the case was not argued in constitutional terms,
but the nature of the discussion was such that it provoked speculation as to its
constitutional status.
The case involved recognition by courts in one province to a judgment of courts in
another province, in a personal action brought to the latter province at a time when the
defendant did not live there. (Normally, the historical rule required a defendant in such
circumstances to either agree to have that province’s law apply, or to be served in that
jurisdiction. That did not occur here.)
The court holds that while there is no “full faith and credit” clause express in our
constitution, various factors make such a clause unnecessary. The court lists various
factors such as the fact that judges are federally appointed and paid (consistency in
judgments), that all provinces are subject to the SCC as a final court, that Canadian
lawyers all adhere to the same code of ethics, and so on. The court suggests that the
obvious intention of the Constitution is to create a single country. The court concludes
that the historical rules about comity must be shaped to conform to the federal structure
of the Constitution.
The court does acknowledge a limitation to “full faith and credit.” The courts of one
province should recognize a judgment by another province only if that court has properly
or appropriately exercised jurisdiction in the action. There must be fair process as well
(not an issue interprovincially, but perhaps internationally).
The test is whether there is a real and substantial connection (RSC) between the petitioner
and the country/territory exercising jurisdiction. If there is, the other provinces must
respect the judgment.
Note: Does this mean jurisdiction simpliciter only or forum non conveniens as
well? Unclear in judgment, case suggests mostly jurisdiction simpliciter.
Also: Recall that jurisdiction simpliciter is largely a question of civil procedure.
But even if civil procedure rules give jurisdiction, if the rules are worded too
broadly and can be read where there is no RSC, then it will not be allowed
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constitutionally. “In the case of service outside the issuing province, service ex
juris must measure up to constitutional rules.”
In applying the test to the case, the court found RSC. Reasonable for the action to take
place in the latter province because it regarded a land dispute of land located in that
province. RSC between the damages suffered and the jurisdiction.
This case left open a question – was the reasoning constitutional in nature (meaning the
law created only applies interprovincially)? Subsequent case law is mixed on this point.
Beals (SCC) – The RSC test from Morguard “which has until now only been applied to
interprovincial judgments, should apply equally to the recognition and enforcement of
foreign judgments”
However, a dissent from LeBel in this case states that the RSC test must be modified
significantly in that the assessment of the propriety of the foreign court’s jurisdiction
should take into account the additional hardship imposed on a defendant who is required
to litigate in a foreign country. Broadly put, assumption of jurisdiction shouldn’t be
accepted if it was unfair to the defendant.
Basically, LeBel asks one to weigh the hardship to the defendant against the connection
to the forum and the proceeding, the fairness of the proceeding, etc.
He went on to say that comity isn’t an absolute principle. It is stronger interprovincially
because of constitutional and practical requirements, but not between other countries.
Hunt (SCC) – Constitutional inapplicability of provincial legislation designed solely to
derogate extra-provincial rights.
A Quebec Act prohibited compliance with demands for discovery of documents by courts
of other jurisdictions. The effect was that it was impossible to sue Quebec residents
outside of Quebec unless one proceeded without the right of discovery (winning is
impossible in that case).
The law had no effect in Quebec; it was designed solely to derogate extra-provincial
rights.
Court applied Morguard, stating that courts should give full faith and credit to judgments,
including court orders, of the courts of sister provinces. This respects principles of order
and fairness as required by Morguard. It is beyond the power of the provincial legislature
to override the structure of the federal country – it must respect the constitutional
standard of order and fairness.
Fed Parliament has power to legislate respecting the recognition and enforcement of
judgments. This is related to the powers contained in the POGG clause.
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Subject to these overriding powers, provinces can legislate, subject to:
Principles in Morguard and
The demands of territoriality as expounded in Churchill Falls
Given the above, the court held the Act was “constitutionally inapplicable” to other
provinces. Interesting that it was constitutionally inapplicable and not ultra vires – leaves
open the possibility of the Act being valid when applied internationally to “true”
foreigners. Perhaps internationally a province can legislate, whereas in an interprovincial
case they cannot.
Tolofson (SCC) – choice of law case: lex loci delicti (law of the place of the wrong) for
tort action
This case involved two BC drivers getting into an accident in Saskatchewan.
The court does away with the double actionability rule – an old UK rule requiring that for
something to be actionable, it has to be a wrong in the place it occurred and it has to be a
wrong in the place where the forum was brought.
Instead, the court states that lex loci delicti must apply.
As for interprovincial situations, the majority said this is an absolute rule. Such an
approach has the advantage of unquestionable conformity with the Constitution (no
territoriality issues – province can only regulate rights within the province).
Note: This was not argued in constitutional terms – leaves open the possibility of a
provincial legislature enacting a choice of law option. Quebec for instance has this – two
Quebec residents getting into an accident = Quebec law applies, foreign law used an in
operational sense to determine standard of care. As this was a SCC case, courts below
are bound by the decision.
Public Policy, Public Law Claims
Comes up in two circumstances: choice of law and enforcement of extra territorial
judgments.
The general rule is that public policy and public law are pled as exceptions to the
application of foreign law. I.e., public policy does not create a choice of law.
USA v. Ivey (ONCA)
The case offers an introduction to the reasons for judicial application of public
policy/public law exceptions.
Penal Law
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Canadian courts will not enforce penal laws of other jurisdictions. To do so would
extend jurisdiction of that other state beyond its borders. However, it is not always clear
whether something is a penal law or not. For example, in Ivey, the USA was seeking the
costs to clean up environmental damage caused by the defendant. The court saw this as
reimbursement for an expense incurred, not a tax, and not something imposed to punish
the defendant.
Revenue Law
Canadian courts will not enforce revenue (tax) laws of other jurisdictions. In Ivey, while
the nature of the law was not precisely defined, it was not made to raise money for government,
but rather was for reimbursement for environmental damage.
Other Public Law/Public Policy
This category is a “murky” area of the law that has yet to receive full recognition in Canada. One
argument was raised in this area:
The defendant argued that the severity of the US legislation as compared to the Ontario
legislation should render the decision based on the Michigan legislation unenforceable 
would be against Ontario public policy
Murky area - established to some measure in certain jurisdictions, but hasn’t got full
recognition
Held: Court notes that the remedies required in the Michigan legislation were not that
different from what was required under Ontario legislation. It is not enough that the
local law on the same point differs from the foreign law, fundamental values must
be at stake (more than just a mere difference in policy)
Disparity between the two regimes was not sufficient to meet the public policy
test
Similarities far outnumbered the differences between the two legislations
 Comment: A substantial similarity in the legal policies of the lex fori and the
foreign lex causae defeats any possible application of the public policy exception.
But a substantial dissimilarity isn’t sufficient for the public policy defense either.
Natural Justice: argued that enforcing the judgment would violate natural justice. This category
is distinct from the other defenses because, unlike the other defenses, NJ is based on the fairness
of the procedure rather than the substantive character of the foreign laws.
A lack of natural justice is a defence to the recognition and enforcement of a foreign
judgment
Granting judgment without any notice to the defendant or a complete lack of
opportunity to defend yourself could = breach of natural justice
Held: the rules of liability and burden of proof are matters for the foreign jurisdiction,
there is no authority for non-enforcement of a judgment merely because it is rendered on
the basis of strict statutory liability.
Requires a fundamental deviation from forum natural justice values  it is
insufficient to show simply that the forum and foreign procedures diverge (See
Beals)
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
Comment from Beals: American jury awards are way higher than in
Canada. Quantum itself isn’t a bar to enforcement, but, overlapping
between public policy and natural justice, is an argument that if the
quantum is arbitrarily imposed or arbitrary in quantum then it may succeed
as a defense
Court notes that natural justice exists in theory, but has rarely been successfully utilized in
Canada. Cites Beals v. Saldana:
Majority: held that natural justice was not applicable
Dissent: supported the non-enforcement of the decision based on the lack of natural
justice  had not had proper notice of the case (used natural justice as one reason why
they would not enforce the award)
Held: All of Ivey’s arguments failed  enforcement of the Michigan decision was allowed
Kuwait Airways v. Iraqi Airways (HoL)
Iraqis seized Kuwaiti airplanes and flew them back to Baghdad during the Gulf War.
Kuwaitis now wanted them back and sued for conversion.
In order to be actionable for conversion under British law, it had to be actionable under
both jurisdictions. But at the time, Iraq had a law that said the theft was OK and so Iraqi
Airways pled this as a defence. Kuwaiti Airways argued that the law shouldn’t apply
because of the public policy exception.
Argument: Iraqi Airways argued that this is the only time that public policy will prevail is if
there is a gross violation of human rights
Court held that gross violations of human rights would certainly allow public policy to
prevail, but rejected this as the only grounds to trigger public policy
Argument: Iraqi Airways argued that if expropriation was in violation of public international
law, this was not in itself inconsistent with public policy
HoL accepted that argument: test is not whether there is a breach of public
international law. However, such a breach is a consideration.
However:
Importance of context:
Public policy to be determined by contemporary standards in the context of the Gulf War.
HoL wants to give effect to clearly established rules of int’l law to reflect the increasing
interdependency of states.
International law violation by the Iraqis in invading Kuwait – this war would not be
recognized by the UK
“Enforcement or recognition of this law would be manifestly contrary to the public
policy of English law… (English law had incorporated the dimensions of the relevant
Int’l law into its own regime) it would sit uneasily with the almost universal condemnation
of Iraq's behaviour and with the military action, in which this country participated, taken
against Iraq to compel its withdrawal from Kuwait.”
Comment: If had been straight up expropriation within its territory minus the war, you
would get a different result
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Old North State Brewing Co. (BCCA)
A foreign jurisdiction awarded treble damages. Was this penal in nature?
No. Such an award was comparable to exemplary damages as applied by Canadian
courts. Just because a judgment of another jurisdiction is harsher doesn’t mean it cannot
be enforced. Because of the similarity to exemplary damages, it cannot be said that
enforcement would be contrary to the essential or moral interests of Canada.
An Abstract or Relative Standard?
There are cases where the public policy argument is simply that the substantive content of
the foreign provision is so “morally repugnant” to forum community standards as to
justify rejection in the abstract – regardless of the relative degree of connection of the
parties and the events to the forum. This applies only to exceptional cases such as laws
permitting slavery, sale of noxious drugs for recreational purposes, etc. Usually, one
must consider the “application” of the law in the concrete circumstances or, in the case of
a foreign judgment, the “outcome” of recognition or enforcement as against the particular
defendant on the particular facts. (Carter)
Boardwalk Regency v. Marouf (ONCA)
Facts: Gambling debt incurred in New Jersey by an Ontario resident. Casino obtained a default
judgment in New Jersey and sought to enforce the judgment against Marouf in Ontario. Ontario
statute provided that gambling contracts were rendered void and unenforceable.
OCA and lower court recognized that the proper law of the contract was New Jersey law.
However, the Ontario statute did not have extraterritorial application – didn’t say that
contracts made outside of Ontario were void (only applied to gambling contracts in
Ontario). Thus, gambling contracts in NJ not covered by the Ontario statute.
Issue: whether the enforcement of the gambling contract was contrary to the public policy
of Ontario.
Rule: If you incur gambling debts in other jurisdictions, they can be enforced against you in
Canada
Held: Public policy argument rejected – gambling contract enforced.
Court noted that both Ontario and NJ regulated gambling and gambling debts – determined
that the non-enforcement of gambling contracts can’t be against public policy
Must be more than the morality of some people and run through the moral fabric of society
Society of Lloyd’s case (ONCA)
Facts: Lloyds Insurance “names” those folks who provide the money to back up the insurance
claims that can be made against Lloyds through very odd contractual arrangements. The contracts
allow for the Lloyds syndicate to call on letters of credit that are placed at the disposal of the
syndicate by the “names”.
Insurance industry hits bad times. UK judgments came down requiring “names” to pay up.
Page 14 of 101
Saunders has to pay up to his letter of credit, but wants to get out.
Agreements between Lloyds and the “names” were solicited in Ontario, but the solicitation
did not comply with the relevant Ontario securities regulations.
Contracts in question had a choice of forum clause and a choice of law clause: England. Also,
the contracts were signed in England.
Key fact: there had been a case brought in Ontario by the names against Lloyds and the
OCA had stayed that case  the choice of forum and choice of law clause meant that
the proceedings should properly be held in the UK.
Argument: Saunders argues that the UK judgment should not be enforced in Canada
because it would be against public policy
Reasoning: court reviews cases  trend of jurisprudence is that the public policy exception is to
be narrowly construed and rarely applied. OCA decided that public policy does involve more
than just morality issues  However, the exception is still very narrow.
Notes that in the environment where the courts are to respect international comity more
frequently, public policy need to play a larger role that was previously the case  “That
trend is to emphasize the concept of comity among nations and particularly among
provinces of this country when addressing the issue of enforcement of judgments and
choice of law.”
Refers to Morguard and Tolofson: “In both cases, the role of the public policy concept was
left, in effect, as a safety valve to prevent anomalies.”  broadening of the public policy
exception
In this case, the public policy issue is (para. 68):
“Because the primacy of the protection of our capital markets and the role that the full, true
and plain disclosure obligations and the anti-fraud measures contained in securities
regulation legislation plays in the scheme for that protection is basic to the well-being of
our economy and our society, it is, in my view, beyond dispute that taken on its own and
in isolation from other factors, to condone a breach of those obligations would be
contrary to the public policy of Ontario.
However, to view the disclosure obligation provisions of the Securities Act, such as the
prospectus requirement, as akin to a moral imperative may be to stretch the concepts
unnecessarily. Public policy has been universally described as "fundamental values" and
"essential principles of justice". In my view, it is appropriate at this stage in the
development of our society, to characterize the protection of our capital markets and of
the public who invest in and depend on the confident and consistent operation of those
markets as such a fundamental value.
Held: Okay in this case to enforce the English judgment. While the disclosure provisions are of
fundamental value, there was in the end no public policy objection.
Fundamental though is the fact that the Ontario courts had already dealt with the issue in the
earlier judgment and granted a stay of proceedings
Public policy may not turn exclusively on repugnance for the fundamental values
represented by the underlying legal basis for the judgment, but on whether the
forum courts are prepared to enforce a foreign judgment when an action on the
same cause, had it been litigated in the forum, would not have been entertained
Would have concluded that contrary to public policy but:
Previous case where Lloyds had been successful in getting a stay in Ontario – by
refusing to hear the action, courts had contemplated that the result might not be in
accordance with the Act
Page 15 of 101

If they had been concerned about enforcing the public policy than this
consideration would have trumped and they would have heard the case  Don’t
want to undermine the credibility of their own courts!
International comity – Lloyds is getting judgments in England against names all
around the world
 Courts elsewhere have recognized the English court’s authority to hear these
cases and had been enforcing the judgments. If Ontario wanted to act weirdly,
would cause unfairness, economic turmoil, etc.
Take home message: as you expand comity (the new ethos of conflicts), you also need to look
at some of the defenses in a new way. And, even the most fundamental forum policy must
sometimes give way to overriding private and public interests (such as the protection of the
international insurance market and the avoidance of conflicting decisions in multiple
litigation fora).
When Forum Public Policy displaces normally applicable Lex Causae
Enforcing forum may have a “mandatory rule” so despite any choice of law rules, a particular
enforcing forum may stipulate that its legislation applies to all contracts or proceedings as a
prerequisite to enforcement. For example, there is Canadian law that states that Canadian law
applies to all shipments in a Canadian port.
Is this constitutional (taking into account Morguard and Hunt)? Hunt said that between
provinces, Quebec rules couldn’t be imposed on other provinces. However, perhaps laws like
these are OK internationally.
Also, there may be mandatory rules which state that a specific foreign law, which bears a “special
connection” has to apply. In that case, public policy operates [positively so as to support the
recognition or application of an otherwise inapplicable foreign law.
Gillespie Management Corp v Terrace Properties
According to Washington law, non-resident broker had to have a license to act as real estate
broker. K called for performance of acts in Washington - law of the place at which the obligation
is to be performed (a controversial choice of law rule)  claim unenforceable
Southin J had different reasoning:
- Said the ct should give effect to a foreign public policy analogous to own domestic policy
(policy in BC was not to enforce illegal contracts, law in BC also requires licensing of
property managers in order to collect fees)
Public Policy in an Interprovincial Context
Limited after SC in Hunt recognized constitutionally mandated requirement to give “full faith
and credit”  judgments have to be enforced, as long as there is a real and substantial connection
But if it is in conflict with own strong policies, and the relevant law is within the constitutional
auth of the sister province, PP exception can be invoked to exclude the claims or defenses
- But situation rarely arises, most states have similar “moral foundations”
Public Policy as a Basis for Depecage
Page 16 of 101
The positive invocation of public policy is not the only means by which a state can give
effect to mandatory rules of a closely connected legal system that is not the normally
applicable lex causae. Although less flexible an approach the technique of depecage – by
which a particular legal issue is hived off from the generally applicable lex causae and
subjected to its own discrete choice of law rule – is sometimes used to reach results
similar to those achieved by a more general public policy doctrine.
Beals v. Saldanha (SCC 2003)
The public policy defence prevents the enforcement of a foreign judgment which is
contrary to the Canadian concept of justice, and turns on whether a foreign law is
contrary to our view of basic morality. It must shock the conscience of the reasonable
Canadian.
For example, the PP defence is not meant to bar enforcement of a judgment rendered by a
foreign court with a RSC to the cause of action for the sole reason that the claim rendered
in the foreign jurisdiction is worth far more than what one could receive in Canada.
However, perhaps the PP defence could be engaged if the award was founded in
arbitrariness. (perhaps not, better to frame that as a natural justice defence, namely that
the judicial process was flawed in the other jurisdiction)
Pro-Swing (SCC 2006)
There may be PP concerns and a PP defence when a non-monetary order from a foreign
jurisdiction requires disclosure of personal information that’s protected by Canadian law.
The protection of such information is quasi-constitutional in nature.
Penal Laws
Choice of law has no application to criminal law – courts always apply their own
criminal law and do not enforce the criminal law of other states.
Really just a public policy issue
Forum court will only apply criminal law for event happening within its own territory
Note that foreign criminals can be extradited back to the state where they committed the
crime – this is how it’s typically handled
Contracts
Criminal activity: unlikely to enforce a contract that is illegal where it was performed.
That is the extent to which we import foreign criminal law into contracts
Spencer v. R.
Canadian bank official objected to giving evidence because it would be a crime in the
Bahamas (breach of confidentiality).
Held: tough luck – you’re here, so testify! Forced the bank official to testify.
Huntington v. Attrill (1893) (PC)
Page 17 of 101
Facts: New York company issued false statements involving company stock. Under NY law,
each officer of the company who signed the document was made personally liable by statute.
A suit was successfully brought against the bank director personally. Come to Ontario (where
the director now lives) to enforce the judgment.
Argument: Director argues that unenforceable because this is NY penal law.
General Rule: no proceeding which has the objective of punishment ought to be
admitted for enforcement by the courts of another country
Forum court makes the determination: Ontario gets to decide if this is penal law or
not.
Although the opinion of the foreign court may be persuasive, the characterization of
the law in the foreign jurisdiction is not determinative!
General question to ask: To determine whether it’s penal in nature, ask if the wrong sought
to be addressed is being a wrong to the public or to the individual? In an international sense,
is its purpose to punish an offense against the public justice of the state, or to afford a private
remedy to a person injured by a wrongful act?
“The rule had its foundation in the well-recognized principle that crimes, including in that
term all breaches of public law punishable by pecuniary mulct or otherwise, at the instance of
the state government, or of some one representing the public, were local in this sense,- that
they were only cognizable and punishable in the country where they were committed.
Accordingly no proceeding, even in the shape of a civil suit, which had for its object the
enforcement by the state, whether directly or indirectly, of punishment imposed for
such breaches by the lex loci, ought to be admitted in the courts of any other country.”
Draws a distinction between laws that create a civil remedy that are protective and
remedial in nature and those that are punishment provisions.
Held: provisions here were protective and remedial, not penal  able to enforce
Note: In this case, the money didn’t go to the state – it went to the individual creditors.
The court construed the statute as creating an implied term of a contract between the
corporation and its creditors.
Recall Ivey: court said that this was not a matter of penal law, merely reimbursement for
recovery and cleanup of environmental damage
Revenue (Tax) Laws
General rule: a forum court will not enforce foreign revenue laws – taxes!
Again, really a public policy exception.
Downside – does encourage tax flight.
BUT tax treaties have changed the playing field significantly, so many of the following cases
have limited applicability:
Domestic and international treaties have made significant changes regarding the
collection of taxes
Canada and the US have agreed to recognize each others tax claims where certain conditions
are met
Provincial tax laws generally allow for the enforcement of tax claims from other provinces
Rationale: full faith and credit, comity, Morguard, etc.
Remember: the lex fori still gets to decide if tax law or revenue law.
USA v. Harden (1963) (SCC) – leading case
Page 18 of 101
Facts: California wanted to recover taxes from someone in BC. Got a judgment in California
and came to BC to enforce it.
Issue: Should someone who incurs huge tax debt be able to hide in BC?
Argument: California argued that this is not the enforcement of revenue law, but rather
the enforcement of a California judgment - no one is asking BC to apply California law,
but merely to enforce a California judgment.
General Rule: the forum court will not enforce foreign revenue laws – territorially
based (improper extension of the taxing state’s authority)
Given the generality, seems to encourages the idea of tax havens
Held: the rule that you cannot recover foreign tax debts was sufficiently well established
and with such sound reasoning that it should not be circumvented by allowing
enforcement of a judgment based on foreign revenue law.
Stringam v. Dubois (1992) (AB CA)
Facts: testator died in the US, left farm to niece in AB, executor wanted sale of the farm to
pay Arizona estate tax.
Issue: whether the rule against courts enforcing a tax claim of a foreign jurisdiction applies so
as to allow transfer of the Canadian realty to the devisee, rather than requiring that the
property be sold and the proceeds used firstly to pay the US estate taxes
Harden rule applicable even where there is no direct involvement by the foreign state
Reed – BC estate case where the CA had not applied Harden.
Limited to its facts: treasury of the foreign state was going to be directly enriched,
foreign state was directly involved in the action to get the money
What you can’t do directly, you really can’t do indirectly!
Held: farm not sold because it would be an indirect enforcement of Arizona revenue
laws
Comment: fairly strict rule that doesn’t seem to make sense (because people moving all
around the world, essentially allowing tax havens)
Harden has been criticized as too narrow, too bold, doesn’t take into account comity
(decided before Morguard), way of business has changed
Niece is actually an American resident – bank or executor had recourse against her if
there was non-payment  may distinguish this case on the facts
AB CA suggests that SCC may want to re-examine this rule!  Upheld this case on
principle only
Re: Sefel Geophysical (1989) (AB QB)
Facts: trustee of a bankrupt company applied for advice as to the appropriate distribution
among creditors of the proceeds of sale of the bankrupt estate
Issue: were revenue claims from the US and the UK barred by the tax exclusion?
Held: Foreign claims are enforceable - court basically ignored cases that revenue claims in
a bankruptcy are not enforceable
Because of international comity, not satisfied that the old English case is applicable
anymore  suggestion that some foreign tax claims should be recognized
“If the goal is to deal with liquidations in an orderly fashion in one country by virtue of
deference shown by competing nations, surely some claims should at least be recognized.
Page 19 of 101
I am not dealing with the priority of those claims at this point, but rather I am
saying that current comity principles suggest that some foreign tax claims should be
recognized in a Canadian liquidation setting.
Comity is about respecting foreign judgments, proceedings and acts of state. If our
bankruptcy proceedings are respected and deferred to, as they were in the case at bar, I
am of the opinion that the claims of foreign states should be respected in our proceedings
as long as they are of a type that accords with general Canadian concepts of fairness
and decency in state imposed burdens.”
BUT exception is restricted to liquidation proceedings (i.e. very narrow)!
Result: US and UK tax authorities get a claim, but no priority. Priority would have
recognized the state’s authority as a taxing authority – can’t do that.
Domicile and Residence
-
a preliminary area to consider to answer matters such as those concerning
matrimonial property or capacity to make a will
the theory is that everyone has a “personal law” or an attachment to the law of the
community to which one has the most significant continuing connection
decreasing relevancy given the increasing mobility of people
still relevant for issues primarily concerning family life and wills
analysis is highly fact based
Domicile
-
domicile is a common law development, civil law usually considers nationality.
Nationality is irrelevant to domicile
lex fori is used to determine domicile (Foote and Gillespie)
you can only have one domicile. So the analysis of domicile often emphasizes
consideration of whether or not you gave up your old domicile
Gillespie v. Grant (Alta Surr. Ct)
-
lex fori is used to determine domicile
distinguish between domicile of origin (where you were born) and domicile of choice.
DOC can overrule DOO
in the context of a will, domicile is determined at date of death, not date the will was
made
Urquhart Estate (ON Div Ct)
-
frequently moved, but there was one “constant” in his life – the maintenance of a
room in Ontario from which he voted, received mail, etc
court held that the room in Ontario was his domicile (very fact based finding)
Page 20 of 101
-
-
note: court noted that he left New Zealand because of divorce – this was important to
the court because it found that after the divorce there was no reason for him to be
there (some facts are weighed more heavily than others)
for domicile, court expects to see an intention to stay permanently or indefinitely
(requiring future intention to stay there)
Foote Estate
-
good summary of the law of domicile
in this case, the Theory of Doctrine of Revival is applied: If you give up your
domicile of choice and fail to acquire a new one, your domicile is deemed reverted to
where you were born
- this reasoning flows from the idea that you can only have one domicile and that
you must have a domicile at any given time
National Trust Company
-
the domicile of a corporation is the country in which it was incorporated
it follows that the instrument of incorporation and the law of the corporation’s
domicile govern all matters regarding the corporation
Residence
-
there has been a trend to move away from domicile to residency
residency is more flexibility, can have multiple residences
it is like a “spot test” in that residency depends on factors laid out in various statutes
(e.g., residency for voting purposes, residency for tax purposes, etc)
domicile looks for a jurisdiction where you have the _most_ substantial connection.
Residency just requires a substantial connection
Residency also doesn’t require intention of permanency
Order of permanency – domicile  habitual res  ordinarily res  simple res
Re Koo (FC)
-
Citizenship Act required one be a resident of Canada for 3 of 4 years before applying
for citizenship
test for residency: whether it can be said that Canada is the place where one
“regularly, normally or customarily lives”
court identified a series of factors:
- is the connection more substantial than any other country?
- Did the person have roots here?
- Did the person go beyond obtaining formal indicia of residency (e.g., getting a
local drivers license)
- Court wants to see that Canada was the focus of one’s living situation
Page 21 of 101
Adderson v. Adderson (Alta. CA)
-
“Last joint habitual residence” (family law case)
Looks at present intention, unlike domicile where you have to consider subjective
intention as to the future
Habitual residency concentrates on quality of quantity of time
Intent and factual situation (context) are key
In this case, though the parties left Alberta hoping an intending they would establish a
joint habitual residency in Hawaii, they never did so (failed on the facts) and so the
court considered their last joint habitual residence to be Alberta
Haig v. Canada (SCC)
-
voting rights case, looked at meaning of ordinarily resident
ordinarily resident means you may not be there at the moment, but you still are
resident there (for example, for voting purposes) because you retain a substantial
connection to the area
Part Two: Jurisdiction
Parties to an Action (Standing to Sue) – a “juristic
entity”
Business Corporation Act (BC) – This Act used to restrict corporations from suing
without being registered in BC. It’s now changed though and corporations have standing
to sue even if not registered.
This is BC only, however, and Ontario still requires registration. See e.g., Success Intl
where the plaintiff corporation was unable to maintain an action due to not being
registered. The plaintiff corporation was considered by the court to be carrying on
business in Ontario because of the continuous activities it was involved in with respect to
a single transaction. Thus, it needed to be registered.
Comment: This case was international (the plaintiff was from out of country) but it
might raise a constitutional question if interprovincial. Is this sort of statute
constitutional given that it takes away the right of extraprovincial entities to sue? Perhaps
this is similar to the Quebec Business Act case?
Note: Also see s. 7 of the Court Jurisdiction and Proceedings Transfer Act which
closes the categories under which corporations can be considered ordinarily resident. A
corporation is ordinarily resident in BC for the purposes of this part only if:
a) the corporation has or is required by law to have a registered office in BC
Page 22 of 101
b) pursuant to the law, it
i. has registered an address in BC at which process may be served generally;
or
ii.
has nominated an agent in BC upon whom process may be served
generally
c) it has a place of business in BC; or
d) its central management is exercise din BC
However, note that s. 7 falls under Part 2 of the CJPTA which applies only to defendants.
Bumper and Hamza cases – Generally speaking, local entities must either be natural
persons, accepted artificial persons like corporations, or statutory persons like the
government to maintain an action. Unincorporated associations for instance usually
cannot maintain an action – its individual members must all sue together.
Lex fori applies – the law of the forum determines who can bring an action. Standing to
sue is a procedural issue.
The courts in Canada will use their own inherent jurisdiction to control its own civil
procedure, including who will be a plaintiff. Using principles of comity, courts will
recognize a foreign entity as having standing to sue even if that entity normally wouldn’t
be able to sue if it were local.
Policy considerations: Court just wants to make sure there is someone who is legally
responsible for their claims. If that entity would be responsible in its own jurisdiction,
then the court will apply comity and accept its existence.
Also there’s an argument that the entity in the other jurisdiction gains a vested right to
maintain an action and that it can carry this right to other jurisdictions.
Re Indian Residential Schools – suit brought against Catholic church, in Canada church
was not an entity that could be sued, no intention shown of suing the church
internationally, case law said domestically the church is not a juristic entity; it’s an
unincorporated association. Hamza distinguished on basis that the entity in that case was
foreign. The entity “The Roman Catholic Church” is struck out.
Assumption of Jurisdiction: The Existence of
Jurisdiction or Jurisdiction Simpliciter
Parties within the Jurisdiction
Maharanee of Baroda (Eng. CA) – The tradition rule, English courts are entitled to
assume jurisdiction over any person present in England on whom a writ could be served
Page 23 of 101
subject only to discretionary principles of self-restraint. This applies even if the person
had only a “fleeting” present in the country (e.g., just came to visit for a couple hours).
(Canadian version of this case is Forbes)
Court Jurisdiction and Proceedings Transfer Act (CJPTA) and Jurisdiction
Simpliciter – modifies the common law rule. Generally, the rule is the same except s. 3
closes the categories available for a court to find territorial competence (jurisdiction
simpliciter or JS).
s. 3 is defendant based, a court has JS in a proceeding that is brought against a person (a
defendant) ONLY if:
a) that person is the plaintiff in another proceeding in the court to which the proceeding
in question is a counterclaim
b) during the course of the proceeding that person submits to the court’s jurisdiction
(attorns)
c) there is an agreement between the plaintiff and that person to the effect that the court
has jurisdiction in the proceeding;
d) that person is ordinarily resident in BC a the time of the commencement of the
proceeding (significant, recall definition of ordinarily resident)
e) there is a RSC between BC and the facts on which the proceeding against that person
is based (also significant)
s. 2(2) requires territorial competence be solely referred to by Part 2 (under which s. 2
and 3 lie) and that would require fleeting to either be ordinarily resident or for the case to
have a RSC to BC.
One can’t easily say that a person with a fleeting presence is ordinarily resident in BC.
Perhaps fleeting is no longer the law in BC.
Residual Discretion – CJA s. 6
CJA s. 6: A court that under section 3 lacks territorial competence in a
proceeding may hear the proceeding despite that section if it considers that
(a) there is no court outside British Columbia in which the plaintiff can
commence the proceeding, or
(b) the commencement of the proceeding in a court outside British Columbia
cannot reasonably be required.
Under residual discretion, a BC court can have JS without a real and substantial
connection!
S. 6 is essentially a clause of last resort to establish JS. However, may be
constitutionally suspect because of unfairness to the defendant.
Generally, it is the real and substantial connection that ensures order and fairness.
Without such a connection, may be problematic.
Section will likely be interpreted narrowly.
Page 24 of 101
Plaintiff will have significant burden in demonstrating that no other court can
commence proceedings.
Plaintiff may need to show that they have been shut out of other courts.
Parties outside the jurisdiction
Constitutional Issues
Before Morguard, most courts asked the following 3 questions based on the CL:
1. Is there a good arguable case on the merits?
2. Do the circumstances of the case fall within the rules of court?
3. As a matter of discretion, is the jurisdiction also forum
conveniens?
Morguard Investments Ltd – Imposed a constitutional standard on the assumption of
JS. The court held that a RSC between the province and the action is required by the
constitution. The three step test isn’t enough. Since Morguard, the RSC question is
usually asked twice, once at the JS stage and again at the discretionary stage of the
process (determining forum conveniens). Many judges recognize that the discretionary
stage requires a closer degree of connection, but many of the same factors are considered
twice.
Also see s. 6 of CJPTA – constitutional issues raised (see above).
Procedural Enactments (for ex juris service)
CJPTA – s. 10 is basically equivalent to JS. (a) through (l) lists specific situations when
RSC between BC and the facts will be presumed (rebuttable presumption) to exist.
s. 10 also has a “residual” category in that it’s worded “Without limiting the right of the
plaintiff to prove other circumstances…”
BC Rules of Court – Rule 13 now says that service ex juris without leave is OK if the
case falls within the specific situations under s. 10 of the CJPTA, otherwise leave is
needed. However, s. 14(6) permits a defendant to rebut the RSC presumption. Rule 6
also states that when someone is coming to the province to challenge JS, that doesn’t
mean he or she submitted to the court’s jurisdiction.
Note: Old cases before the CJPTA that use the old BC Rules of Court (the old Rule 13)
are still relevant in helping understand the legislation, particularly for its procedural
aspects.
Moran v. Pyle (1973) (SCC) – leading case as to JS and whether there was a tort in a
jurisdiction
Page 25 of 101
Facts: Saskatchewan resident gets fatally electrocuted while replacing a light bulb.
Family brought suit in Saskatchewan against the manufacturer for negligence. The
manufacturer was an Ontario company with no assets or offices in Saskatchewan. Bulbs
were sold into Saskatchewan through various intermediaries. Saskatchewan’s Queens
Bench Act prohibited bringing action for a tort committed outside the province without
the leave of the court.
Issue: Where was the tort committed?
Reasoning: Situs of the court for jurisdiction simpliciter is different from the situs of
the tort for choice of law (covered later). Just because the court has jurisdiction
simpliciter and chooses to exercise this discretion, doesn’t mean that the law of the
forum applies (lex fori).
For purposes of jurisdiction simpliciter, SCC discusses two different theories:
Place of acting theory: tort occurs where the act is done that ultimately results in the
harm – in this case would be Ontario, where the light bulb was negligently made
Rejected as too rigid – there is no tort until the product malfunctions.
Place of harm theory: the last necessary element it the ground for where the tort occurs
– in this case would be Saskatchewan, where installing light bulb was the last necessary
element.
Rejected as problematic for the purposes of jurisdiction simpliciter.
The court rejects both of these approaches:
“Generally speaking, in determining where a tort has been committed, it is
unnecessary and unwise to resort to any arbitrary sort of rules. The place of acting
and the place of harm theories are too arbitrary and inflexible to be recognized in
contemporary jurisprudence.”
Supports a rule that is much more principled in nature:
Real and substantial connection will attach mostly to the effects, and it would not be
inappropriate to “regard a tort as having occurred in any country substantially affected
by the defendant's activities or its consequences and the law of which is likely to have been
in the reasonable contemplation of the parties.”
Rule: “Where a foreign defendant carelessly manufactures a product in a foreign
jurisdiction which enters into the normal channels of trade and he knows or ought to know
both that as a result of his carelessness a consumer may well be injured and it is
reasonably foreseeable that the product would be used or consumed where the plaintiff
used or consumed it, then the forum in which the plaintiff suffered damage is entitled
to exercise judicial jurisdiction over that foreign defendant.
Recognizes the important interest a state has in injuries suffered by persons within its
territory.
Purpose of negligence as a tort is to protect against carelessly inflicted injury and thus that
the predominating element is damage suffered.
Held: Tort occurred in Saskatchewan and was reasonably within the contemplation
of the manufacturer. Doesn’t necessarily mean that the law of Saskatchewan would be
applied in this case, but does mean that Saskatchewan has jurisdiction simpliciter.
By tendering his products in the market place directly or through normal distributive
channels, a manufacturer ought to assume the burden of defending those products
Page 26 of 101
wherever they cause harm as long as the forum into which the manufacturer is taken
is one that he reasonably ought to have had in his contemplation when he so tendered
his goods. This is particularly true of dangerously defective goods placed in the
interprovincial flow of commerce.
Note: To determine choice of law, look to the Tolofson case.
Teja v. Rai (BCCA) (2002) – (this case would easily fit under the CJPTA today)
How far does the Morguard RSC test take over from traditional CL tests? Does it
supplant or supplement the CL tests?
The court reads down Morguard by saying that it wasn’t intended to supplant traditional
CL rules (e.g., power over the def, situs of the tort, place of performance of K). It was to
be read alongside the traditional rules and factors.
RSC was described as being developed for non-traditional situations, to take account of
constitutional limits on a court’s reach – not a new test that overrides traditional tests.
Furlan v. Shell Oil (BCCA) (2002)
Facts: Plaintiff (class action law suit) alleged that harm was caused by polybutylene
plumbing system. Three defendants: all companies that manufacture the plumbing resin.
Defendants were served ex juris under the old Rule 13, and they argue the BC courts
have no jurisdiction.
Defendants: none carried on business in BC, were not the manufacturers of the
plumbing equipment (were quite far removed from the damaged) and had reasonable
defences.
Arguments:
Shell argued that they were not selling resin directly to Canada, but didn’t deny that it
might have showed up here.
Second company: did not admit to selling resin to Canada and didn’t know how it
showed up here
DuPont: admitted to selling resin into Quebec, but not to any of the companies that
were involved in the law suit.
Issue: Sufficiency of the evidence to support the service ex juris and the meeting of the
old Rule 13(1). Here the plaintiff has the burden of proof and the defendant can
challenge that under Rule 14(6).
Defendant companies challenged service ex juris under Rule 14(6) – argued that the
plaintiffs had not made out their case and the pleadings were not sufficient to
support service ex juris
I.e. argued that the plaintiff had not disclosed evidence of a connection between
the harm suffered and the resin sold by the companies (or at least a company)
Here the defendants did not provide evidence to negate the allegations.
Reasoning: Jurisdiction simpliciter is different than forum non conveniens: if the
case is made and you fit within the pattern, then JS is there.
Page 27 of 101
Basic rules to determine jurisdiction simpliciter:
Basic rule: jurisdiction simpliciter is determined based on pleadings.
A case does not have to be made out on the evidence where the facts of the
pleadings are not challenged
If the defendant does challenge the pleadings with evidence, the plaintiff must
respond with evidence
If the defendant counters by affidavit evidence, there is an obligation on the
plaintiff to provide evidence to counter or explain the defendant’s affidavit
Residual category (qualification on the proposition that JS is to be determined by the
pleadings): Where plaintiff puts forward an extremely tenuous claim, affidavit
evidence would be needed to support it  concern as to whether there is ANY
evidence to support the claim
This would be necessary where application is made for ex juris service and the
claim is extremely tenuous
If plaintiff cannot make a good arguable case on any material fact that is
crucial to the case, jurisdiction should be refused (otherwise risk abuse of
process)
Useful on questionable suits that are begun strictly on pleadings.
Held: BC courts have jurisdiction simpliciter  service ex juris is allowed.
Muscutt v. Courcelles (Ont CA 2002)
No longer good law in BC because of the CJPTA and in Stanway, the BCCA straight up
says it’s no longer good law.
But per Howell, the statement in Stanway may be overreaching. Muscutt may not be
relevant as a statement of general principle, but it may be relevant in its context. Also, it
may be relevant if a claim doesn’t fall under the s. 10 enumerated categories or if you are
trying to challenge the presumption.
Facts: Car accident. Plaintiff was a passenger in a vehicle driven by one defendant,
owned by another defendant, struck by the defendant driver of an ambulance. Accident
occurred in Alberta. Plaintiff suffered serious spinal cord injuries. Returned to his home
province of Ontario and commenced an action there.
Clear that the tort occurred in Alberta.
Issue: Was this “damage sustained in Ontario”? Was this principle an inappropriate
extension of their jurisdiction?
Different to Moran since the ongoing suffering was taking place in Ontario, not the
initial accident
Defendant argued that action should be stayed for want of jurisdiction, since the
plaintiff’s pain and suffering in Ontario did not amount to a RSC  to do so would
have an inappropriate and disproportionate effect on the defendant
Page 28 of 101
Reasoning: Key consideration is the content of real and substantial connection. The
court considered to different approaches for determining real and substantial
connection:
Personal subjection approach (the older approach):
Focuses attention on the defendant and the connection between the defendant and
their actions which would make it reasonable for them to contemplate that they
might be sued in the Province of BC.
This idea raised in Moran v. Pyle – reasonable contemplation of the defendant
(sort of)
Administration of justice approach (the newer approach):
Broader than personal jurisdiction approach. All that is required to establish a
RSC is that there is a minimum standard of suitability: rests in part on the
fairness of the case in the forum in which it is being brought.
Ontario prefers the broad approach
SCC has made it clear that RSC is flexible and should be flexible
SCC, at least in interprovincial cases, ensures a high degree of respect about the
recognition and enforcement of foreign judgments: for order and fairness
Broad approach is the product of the relationship between JS and forum non
conveniens – encourages broad approach
The real and substantial connection test involves a fact-specific inquiry, but the test
ultimately rests upon legal principles of general application. Asking two separate
questions:
(1) jurisdiction simpliciter – is the minimum threshold there?
Under jurisdiction simpliciter, you are not looking for the most convenient
forum, just the minimum standards of whether R&S has been met.
“The question is whether the forum can assume jurisdiction over the claims of
plaintiffs in general against defendants in general given the sort of relationship
between the case, the parties and the forum.”
(2) forum non conveniens – is this is the most suitable place to hear the case?
Under forum non conveniens, you are looking for the most suitable forum as
a matter of discretion
“By contrast, the forum non conveniens test is a discretionary test that focuses
upon the particular facts of the parties and the case. The question is whether the
forum should assert jurisdiction at the suit of this particular plaintiff against this
particular defendant.”
There is some overlap between jurisdiction simpliciter and forum non conveniens
- many of the same factors are considered
Overlapping considerations include the connection of the forum to the plaintiff
and defendant, fairness to plaintiff and defendant
Factors that are relevant in the administration of justice approach for jurisdiction
simpliciter:
Connection between the forum and the plaintiffs claim
Page 29 of 101
Forum has a legal interest in protecting its residents – mere residence is not
sufficient, but notes that the medical costs are falling in Ontario
Important interest a state has in injuries suffered within its territory
Stretches Moran case which looked at the contemplation of the parties (if you
produce products that are defective, you should contemplate it would cause injury
in a number of places)
Connection between the forum and the defendant
If D has done anything within that jurisdiction that bears upon the claim advanced
by the P, then case for jurisdiction would be stronger
In this case, D had no connection with Ontario, but there is an inherent risk that
driving around Alberta you might hit someone from Ontario.
Unfairness to the defendant in assuming jurisdiction
Very much like forum non conveniens considerations
One of the key points that persuaded the court.
Court emphasized fact that it was the insurance industry that was defending the
action. There is really no unfairness to the insurance companies - automobile
insurers are national companies that can handle the litigation anywhere in Canada
Uniformity in terms of insurance – prospect of this going inter-provincially. Not
at the international level – insurance schemes would not necessarily be similar.
Unfairness to the plaintiff in NOT assuming jurisdiction
Relies on Morguard: need to consider the plaintiffs interest in access to the
courts and the inconvenience of compelling them to bring and action in Alberta.
Involvement of other parties in the suit
Avoiding risk of inconsistent results and a multiplicity of suits, especially parties
outside the jurisdiction
Again, very much like a forum non conveniens consideration
Not an issue in this case
Reciprocity (Court’s willingness to recognize and enforce extra-provincial
judgments that were rendered on the same jurisdictional basis)
Want to consider the grounds on which the another court might have exercised
jurisdiction
“Every time a court assumes jurisdiction in favour of a domestic plaintiff, the
court establishes a standard that will be used to force domestic defendants
who are sued elsewhere to attorn to the jurisdiction of the foreign court or
face enforcement of a default judgment against them.”
Cases of an interprovincial or international nature will be handled differently
Ontario judgment would be enforced elsewhere, but also need to contemplate a
reverse of the action  i.e. domestic D sued in “sister provinces”
If international or interprovincial nature: Morguard, Tolofson and Hunt
Assumption of jurisdiction more justified in interprovincial cases as opposed to
international cases because of the context of the Canadian federation and sister
provinces
Assumption of jurisdiction not as easy in international environment
Comity
Should consider the standards of jurisdiction, recognition and enforcement
In interprovincial cases, same standard applies within Canada; more complex for
Page 30 of 101
international cases
Should probably be considered under forum non conveniens
Held: Jurisdiction simpliciter had been met.
Sample Ontario cases where there was no jurisdiction simpliciter:
Plaintiff is injured in a motor vehicle accident in New York State
Plaintiff injured in a fall in a restaurant in Buffalo NY
Plaintiff falls while rappelling during a package holiday in Costa Rica
Applying the 8 Considerations:
1) All have a connection between the plaintiff and the action
2) None have connection between forum and the defendant
3) Would be unfair to the defendant to force them come to Ontario, even in the case of
New York
4) Unfairness to the plaintiff: not unfair to require the plaintiff to bring the action where
the claim arose.
5) Involvement of other parties – not an issue
6) Willingness to recognize extra-provincial judgments – wouldn’t recognize and
enforce judgments with such a tenuous connection
7) Doesn’t really apply
8) Doesn’t really apply
AG Armeno Mines and Minerals (BCCA 2000)
Facts: Contract to acquire share in proposed mining development in Indonesia not carried
out. The contract had been made in BC and was to be subject to BC law.
Plaintiff argued that BC court had jurisdiction under Rule 13(1)(h) – tort committed
within BC, which includes breach of contract.
Trial judge set aside the ex juris service because had no jurisdiction over the
defendant.
Rule: Where there is a tenuous claim, jurisdiction simpliciter cannot be decided on
pleadings alone  will have to look to evidence to make out a good arguable case
Tenuous = evidence introduced by the foreign defendant contradicts material
facts pleaded by the plaintiff, or otherwise proves fatal to the plaintiff’s claim
Good arguable case = serious question to be tried, genuine issue, or with some
chance of success  not a high evidentiary threshold
Plaintiff does not have to tender evidence about issues that the defendant’s
evidence has not put at issue
Held: Although the plaintiff made a case for jurisdiction simpliciter on the pleadings
alone, refused jurisdiction on the grounds that they had failed to make a good
arguable case on the evidence
In the pleadings, the plaintiff claimed to be “substantially affected” by the breach in
BC and pointed to the fact that the contract was made in BC
Page 31 of 101
However, the plaintiff hadn’t made out a good arguable case on the evidence - hadn’t
established causation from inducement
Plaintiff was required to make some evidentiary response to the defendant’s
affidavits sufficient to raise a triable issue  couldn’t rely on pleadings alone.
Comment: Was this case eclipsed by the CJPTA?
United States Satellite Broadcasting Co (2001 ABCA)
Asked to read para. 17 only which states
US Satellite Broadcasting – company based in Minnesota provided satellite TV in
the US; no presence in Canada. They did not deny that their broadcast signal went
into Canada. Admitted to activating decoders in Canada, and to receiving payment for
these decoders. Indicated that they would discontinue any service that was being
received in Canada.
Court found that there was damages done to the Canadian company 
USSB essentially carrying on business in Canada = jurisdiction simpliciter
Comment: Was this eclipsed by the CJPTA?
Strukoff v. Syncrude Canada (BCCA 2000)
Employee worked in Alberta, employer had no BC presence.
Rule 13.1(c) of the rules of court at the time required a breach of contract to occur within
BC for the court to take jurisdiction.
Employment termination was sent from Alberta to BC by mail, question of whether the
termination occurred in Alberta or BC.
Court said that general rule is that the breach occurs at the point of mailing (Alberta
then).
However, court applied Muscutt analysis – looked at continuing disability of employee in
BC, his use of BC doctors, and analogized to contractual performance precedent (i.e., the
requirement that the substantial performance of the contract occur in BC). In other
words, there was a substantial connection between the cause for dismissal and the
province of BC. RSC found.
Issue in background providing saving grace: Doctor in BC working for defendant
appeared to have made negligent misrepresentation to plaintiff, and so the chambers
judge below thought this could be construed as a tort committed within BC.
Another comment: Court treats cases falling within the rule of court for service ex juris
as presumptively satisfying the RSC test.
Page 32 of 101
Craig Broadcasting Systems (1998 MBCA)
Any RSC is sufficient to establish jurisdiction simpliciter. The extent of the RSC is to be
examined when looking at the issue of forum conveniens.
Harrington v. Dow Corning Corp (2000 BCCA)
Class Action Suits
In conflicts, class actions suits are always treated a little bit different.
Facts: Class actions for negligence in manufacturing silicone breast implants
BC Class Actions Proceedings Act s. 16(2) does appear to allow someone who is
not a resident in BC to be involved in a class action in BC.
Only BC and Ontario have Class Action statutes
Issue: whether JS existed for those persons who had opted into the class action but
who were not residents of BC. I.e. does the Class Proceedings Act permit the court to
take wider jurisdiction than it otherwise would? If yes, is it unconstitutional?
Allows a non-resident to opt into a class action lawsuit
Defendant argued that people in the class action must have some connection to BC.
Normally, Court would not have jurisdiction over non-resident claims unless there
was a real and substantial connection to BC.
However, class action suits add an extra dimension
Held: Trial judge and BCCA both found that there JS over non-residents who wanted to
opt into the class action law suit.
Anchored in fundamental values of fairness:
orderly decision making
comity
“Do not mean to suggest that a court may assume jurisdiction at a plaintiff's request
for her convenience. More than a plaintiff's choice is required.
I do suggest that the existence of a certified class action may be that something
more. It may, depending on the nature of the cause of action and the certified
common issues, provide a sufficient connection to justify a claim to jurisdiction.
So long as the process is fair, there need be little concern at this stage for the
interests of a defendant; they are well protected by the doctrine of forum non
conveniens.”
Within context of class action, convenience, practicality and mobility of people
supports bringing people in to suitable locations (BC or ON) but this must be
balanced against identified issues which in the Canadian context raises
constitutional concerns of provincial legislation that includes non-residents.
If there was a sufficient number in province, then it could be said that bringing in
other people would be incidental, but if no residents from BC, then can't be said
that non-BC residents are incidental.
Court says the non-residents should be included for public policy reasons.
Accords with comity and orderly decision making. Manufacturers of products
marketed throughout Canada should be expected to be sued before any Canadian
Page 33 of 101
court any way.
Note: might it have been different if dealing with an “opt-out” act
Comment: RSC is here more because of the nature of the action – class action
changes the action of JS.
Muzak Corporation (1953 SCC)
Federal Court Rules, can one appeal an interlocutory judgment allowing service ex juris
to the SCC or must appeals be for final judgments only? Answer: SCC can hear the
appeal. An interlocutory judgment within the meaning of s. 82 of the Federal Court
Rules includes an order and the SCC can hear such an appeal.
Purple Echo v. KCTS (2006 BCSC OVERTURNED ON APPEAL BUT POSSIBLY
STILL VALID SEE BELOW)
Facts: Plaintiff claims damages for breach of contract. Defendant is a public broadcaster
in Seattle. Plaintiff argues that KCTS did not properly show a series of 13 TV programs
as required under contract – didn’t do enough to promote or show them at a reasonable
time.
Documents served in Seattle without leave of the court, relying on Rule 13(1).
KCTS argued that the BC courts did not have jurisdiction simpliciter.
Held: Plaintiff attempted to establish jurisdiction simpliciter based on three
arguments (only one argument listed here because Howell asked us to read the case
for the judge’s view on 10(h)):
Under CJA s. 10(h) - concerns of business carried on in BC
Para 38-41: JS applies to ANY business carried on in BC.
Although plaintiff clearly carries out business in BC, Court decides that the law
before the CJPTA focused on the connection between the court and the
defendant, not just the plaintiff, and that 10(h) did not change this law.
Based on this approach, had already found that KCTS was not carrying on
business in BC (question 1)  Thus, did not fall within CJA s. 10(h).
“I decline to interpret 10(h) as altering the law so as to invoke a presumption of
RSC merely on the basis that the plaintiff is carrying on business in BC.
Purple Echo v. KCTS (2008 BCCA)
The chambers judge erred in concluding that the def did not have a place of business in
BC despite evidence to the contrary. The judge erred by imposing the burden of
establishing jurisdictional facts on a balance of probabilities. All that the plaintiff had to
do was establish an arguable case that KCTS had a place of business in BC, that the
obligations were to be performed significantly in BC, that an objective of the agreement
was to capitalize on KCTS’s considerable audience in BC, and that KCTS carried on
business in BC.
Further, KCTS didn’t show that Washington was the more appropriate forum. A judge
must consider the prima facie entitlement of the plaintiff to its chosen forum (basically,
Page 34 of 101
more evidence should be shown of forum non conveniens). The existence of a more
appropriate forum must be clearly established to displace the forum selected by the
plaintiff.
Note: Requirement for service ex juris and jurisdiction simpliciter are not the same.
Forum Non Conveniens: Discretion to Decline
Jurisdiction
English Position in Transition
Spiliada Maritime v. Cansulex (1987) (HOL)
Facts: Ship is registered in Liberia. Loaded with wet sulphur in Canada. Damage was
incurred. Plaintiff, a Liberian company (ship owners) sued the Canadian company in an
English court. (All of the insurers were in London). Leave to serve ex juris was granted
by the British court.
Arguments:
Defendant challenged jurisdiction: argued that the BC court was more appropriate
since that is where the damage took place and where the defendants (and their assets)
were.
Litigation strategy: plaintiff was suing in England because the case would have been
time barred under BC law.
Reasoning: A judge may decline to take a case where there is another jurisdiction
that is more suitable for the parties.
However, the burden is on the claimant (who wants a stay of action) to establish
that the foreign forum is clearly or distinctly better.
Term forum non conveniens is not about convenience. Rather, what is at stake
is suitability or appropriateness of the forum  “the natural forum” is one
where the parties would reasonably expect the case to be heard.
While the P has a degree of choice in forum, this will not overwhelm the court.
Many factors can be considered to determine the "natural forum" including:
the availability of witnesses,
the applicable law of the matter,
the parties' residence or place of business, and
other cases related to the subject matter,
location of insurers,
the possibility for the plaintiff to obtain justice in the foreign jurisdiction.
Juridical advantage is not a separate consideration
If a party makes out a claim for a natural forum the opposing side may rebut the
claim by showing that justice requires the matter to be heard in the domestic
court, otherwise justice would not be done.
Page 35 of 101
General preference for the plaintiff’s choice of forum  places a significant
burden on the defendant to show that another forum is more appropriate.
Distinction between service ex juris and in the jurisdiction  goes to the
burden:
Service in juris: more difficult to show that there is a more appropriate
forum.
Service ex juris: easier to show that there may be a more appropriate forum
elsewhere.
Underlying principle of fairness and comity requires that regard must be had to all
of the parties and the ends of justice, and may lead to a different conclusion in other
cases.
Courts don’t want to be used for abuse of process (forum shopping)
In this case:
If the only reason they chose England was because of the limitation period, that’s not
a good enough reason. If the plaintiff is simply forum shopping, the court will not
recognize the claim.
But if the plaintiff acted reasonably and there was a reasonable connection with the
forum, then at least regarding limitation periods, court will look beyond that.
Applying the facts:
Court notes that the location of the witnesses was in England
There is another related case going on in England between the renter and the ship
owner. The contract of rental generally says that the law of England will apply.
Essentially the same set of facts – crucial point!
Common insurers: most of the insurance in admiralty is done in England.
All the work and all the learning has taken place in England based on previous
counsel.
Loading did take place in BC
Held: BC is not a more appropriate forum than England. The expenses alone and the
existence of a B.C. limitation period was enough to allow the claim to come to
England.
Note: Even if the court had granted a stay and the case went to BC, court would have
conditioned the stay on the parties waiving their limitation bar (lose that juridical
advantage).
Societe nationale Industrielle Aerospatiale v. Lee Kui Jak (1987) (Privy Council)
Facts: Helicopter falls out of the sky in Brunei and 12 people are killed. Helicopter was
manufactured by Aerospatiale, a French company. Helicopter was owned by an English
company. Brunei government ordered a transportation safety inquiry  determined that
there was a mechanical malfunction and a failure to advise regarding regular
maintenance.
Widow of one of the deceased brings action all over: France, Brunei and Texas.
Brought in Texas on the grounds that Aerospatiale did business in Texas.
Page 36 of 101
Texas Wrongful Death statute: allowed the action to be brought in Texas simply
on the basis that the cause of death might have involved a company that had a
subsidiary in Texas.
Suing in Texas because lenient products liability law and high damage awards.
Texas Action
Motion by Aerospatiale in Texas to dismiss the case on the grounds of forum non
conveniens.
Widow counters that the forum non conveniens has no application under the Texas
statute.
Also argue that the court should not use discretion
Texas court dismissed the Aerospatiale motion, but gave no reasons (not required
to!)
Texas case to proceed - passes forum non conveniens
Brunei Action
In Brunei, Aerospatiale tries to get an anti-suit injunction to prevent the widow from
proceedings in Texas
Unsuccessful in getting the injunction.
Appeal all the way to the Privy Council in England
Held: Court notes several starting principles:
An injunction shall be granted where the ends of justice require it
An anti-suit injunction is not a declaration of war on the other court, but rather is
issued against the individuals party
Will only be granted where the defendant is “amenable to the jurisdiction” – i.e.
where its going to be effective
Must be careful: many comity issues at stake – indirectly affect foreign courts
Privy council tries to create two categories of anti-suit injunctions:
Where the injunction is designed to protect English court jurisdiction –
possibility that a foreign judgment would compromise English court jurisdiction.
I.e. don’t want interference from foreign courts – easier to get an injunction
in these circumstances
Where there are (or possibility of) parallel proceedings – purpose of the
injunction is to quiet the parallel proceedings
Goes more to court efficiency – more difficult to get the injunction
Will only be granted where the foreign proceedings would be vexatious or
oppressive
Of these two categories, Aerospatiale fits into the second category  Must show that
the action in the Texas court is vexatious or oppressive.
The fact that there are parallel proceedings is not sufficient to be granted an anti-suit
injunction – much higher burden
Just because the court is being heard in an inconvenient location is not vexatious
or oppressive
Page 37 of 101
However, abuses of courts can occur where parties go to a jurisdiction with little
or no connection to the parties simply to get higher damages
Alluding to forum shopping
Forum non conveniens is a way to balance jurisdictions  if the foreign court
doesn’t seem to be applying forum non conveniens properly and is therefore not
respecting comity, this may be grounds to grant an anti-suit injunction.
The action of the foreign court is considered to be oppressive
Quote:
"Their Lordships refer, in particular, to the fact that litigants may now be encouraged
to proceed in foreign jurisdictions, having no connection with the subject matter of
the dispute, which exercise an exceptionally broad jurisdiction and which offer great
inducements, in particular greatly enhanced, even punitive, damages, that they may
tempt litigants to pursue their remedies there.
In normal circumstances, application of the now very widely recognized
principle of forum non conveniens should ensure that the foreign court will
itself, where appropriate, decline to exercise its own jurisdiction . . .
But a stay may not be granted; and if, in particular, the English court concludes
that it is the natural forum for the adjudication of the relevant dispute, and that
by proceeding in the foreign court the plaintiff is acting oppressively, the English
court may, in the interests of justice, grant an injunction restraining the plaintiff
from pursuing the proceedings in the foreign court."
Court rejects the argument that the test for forum non conveniens and for anti-suit
injunctions are so closely related that the Spiliada test should actually apply in the
same way for anti-suit injunctions
Whatever the relationship between the two might be, there is going to be a
separate test for anti-suit injunctions, largely because of the much higher
importance of comity considerations in the context of an anti-suit injunction.
Held: In this case, concludes that it’s an appropriate case to issue an anti-suit
injunction
Texas had no significant connection
Texas not respecting comity
Texas selected only because of possibility of higher damages (forum shopping)
Summary:
The test for a stay of proceedings under forum non conveniens and for an antisuit injunction are not the same
Generally, although many of the considerations under the two tests are the same,
the burden to be granted an anti-suit injunction is much higher
Anti-suit injunctions can only be issued where the proceedings in the foreign
jurisdiction were vexatious, oppressive and contrary to the ends of justice
Where a foreign court is clearly not adhering to forum non conveniens and
exercising jurisdiction improperly, this raises concerns for comity and may
be considered as oppressive and thus grounds to issue an anti-suit injunction
Page 38 of 101
Court granting the anti-suit injunction must be a natural forum – not sufficient on
its own, but makes it easier.
Modern Canadian Position
Discretion as to the exercise of territorial competence – CJA s. 11
CJA s. 11(1): After considering the interests of the parties to a proceeding and the ends
of justice, a court may decline to exercise its territorial competence in the proceeding
on the ground that a court of another state is a more appropriate forum in which to
hear the proceeding.
(2) A court, in deciding the question of whether it or a court outside British
Columbia is the more appropriate forum in which to hear a proceeding, must
consider the circumstances relevant to the proceeding, including
(a) the comparative convenience and expense for the parties to the proceeding and for
their witnesses, in litigating in the court or in any alternative forum,
(b) the law to be applied to issues in the proceeding,
(c) the desirability of avoiding multiplicity of legal proceedings,
(d) the desirability of avoiding conflicting decisions in different courts,
(e) the enforcement of an eventual judgment, and
(f) the fair and efficient working of the Canadian legal system as a whole.
Comments:
s. 11 is directed to stay of proceedings only, “decline to exercise its territorial…”
The interests of the parties – this includes consideration of both plaintiff and defendant
interests
Basically, s. 11 is forum non conveniens
Looking at s. 11 in the context of Amchem -- A through E considers the “convenience of
the parties.” B through F considers the “ends of justice”
Amchem v. BC Workers Compensation Board (1993) (SCC)
Lower Court: In BC, the injunction was granted by the lower court on the condition
that they attorn to the jurisdiction of BC  didn’t want them to come back later and
claim that BC didn’t have jurisdiction
Being wary of forum shopping and courts being abused.
Lower court judge relied on all the English cases: permissible to grant an anti-suit
injunction where the plaintiff was acting oppressively in the foreign court.
More annoyed by the fact that the Texas statute had wiped out forum non conveniens.
BCCA:
Page 39 of 101
Also allowed the anti-suit injunction  the absence of the forum non conveniens in
the Texas jurisdiction was a big problem.
Weak argument: Granting the anti-suit injunction did not compromise the principle of
comity since directed at individuals, not the court.
SCC (Sopinka): Reviews all the previous Canadian cases
Concludes that there is no consistent approach in Canadian law to anti-suit
injunctions. Only certain thing is that anti-suit injunctions should be granted with great
caution (not particularly helpful)!
Holds that Aerospatiale should be the foundation for the Canadian approach:
Due regard must be paid to comity
However, rejects that the emphasis should be on vexatious or oppressive conduct –
differs from British approach. Also unimpressed with Lord Goff’s two category
approach
Four principles are set out (although they are not really followed in subsequent cases):
Procedural: domestic court should not entertain the application unless
(a) foreign action has been commenced or is pending, and
(b) party seeking injunction sought a stay in the foreign court (under forum non
conveniens) and been denied.
“In order to resort to this special remedy consonant with the principles of comity, it is
preferable that the decision of the foreign court not be pre-empted until a proceeding
has been launched in that court and the applicant for an injunction in the domestic court has
sought from the foreign court a stay or other termination of the foreign proceedings and
failed.”
Want to wait for the other court to consider forum non conveniens  if the case is
stayed or dismissed in the other jurisdiction, problem solved!
Effectivity: domestic court must be a natural forum, that is, it must have
jurisdiction simpliciter  real and substantial connection
“…the domestic court must proceed to entertain the application for an injunction but only if
it is alleged to be the most appropriate forum and is potentially an appropriate
forum.”
This will automatically be met if there is already action underway on the same matter in
BC
Must also take into account that there is an action proceeding in another court and has
been accepted there
Comity: consider whether foreign court assumed jurisdiction on a basis that is
inconsistent with principles relating to forum non conveniens (as understood by the
domestic court).
Anti-suit injunction will only be granted where the foreign court exercised
jurisdiction in a manner that was inconsistent with our principles of forum non
conveniens
Foreign court doesn’t have to use the specific doctrine, as long as they consider the
principles.
“The foreign court, not having, itself, observed the rules of comity, cannot expect its
decision to be respected on the basis of comity.”
Page 40 of 101
Then
Juridical disadvantage tied with unjust result: general rule from Aerospatiale - will
not grant an injunction if by doing so they will be depriving the plaintiff of
advantages that it would be unjust to deprive them of.
Consider loss of juridical advantage, extent of connection to the forum, loss of personal
advantage, weigh against loss of advantage to defendant
Trying to avoid forum shopping – need to look at the connections with Texas
If you are legitimately in Texas, it would unjust to deprive you of a juridical advantage in
Texas.
However, if chose Texas only because of higher possible damages and there was no real
connection otherwise, not unjust to deprive you of this advantage
“A party can have no reasonable expectation of advantages available in a jurisdiction
with which that party and the subject matter of the litigation has little or no connection.”
“If a party seeks out a jurisdiction simply to gain a juridical advantage rather than by
reason of RSC, that is normally condemned as forum shopping. But if RSC exists, the
plaintiff has a legitimate claim to the advantages that the forum provides.”
Excerpt:
The result of the application of these principles is that when a foreign court assumes
jurisdiction on a basis that generally conforms to our rule of private international law
relating to the forum non conveniens, that decision will be respected and a Canadian
court will not purport to make the decision for the foreign court.
The policy of our courts with respect to comity demands no less.
If, however, a foreign court assumes jurisdiction on a basis that is inconsistent with our
rules of private international law and an injustice results to a litigant or "would-be" litigant
in our courts, then the assumption of jurisdiction is inequitable and the party invoking the
foreign jurisdiction can be restrained.
The foreign court, not having, itself, observed the rules of comity, cannot expect its
decision to be respected on the basis of comity.
Held: Anti-suit injunction overturned – Texas was an appropriate forum.
Amchem failed to show a legitimate juridical advantage that it would be unjust to deprive
them of
They were in fact carrying on business in Texas an should reasonably have contemplated
that they could be sued on Texas
Texas does not have forum non conveniens as we understand it, but does have some
inkling of the process
14th amendment – due process: provides a safeguard on states from taking jurisdiction
where they have no connection
Texas cannot just take jurisdiction any time it wants – must accord with due process
under US constitutional law
As long something like forum non conveniens was applied (in this case, due process),
that was sufficient
Page 41 of 101
Comment on anti-suit injunctions

in appropriate cases, the court will not insist the party ask the
foreign court to make an application for a stay e.g. in Hudon the P
couldn’t afford to make an application for a stay in Japan before seeking
an anti-suit injunction in Ontario and the court was fine with this.
Comment on Hudon:
Comment:
Note that only two of the condition from Amchem were met:
Ontario was an appropriate forum
No injustice to the Japanese company in hearing the case in Ontario
Indicates that the Amchem principles, although carefully laid out by Sopinka,
are actually fluid. Ted says this is not an abuse of the process, just not strict
application  result is not unfair.
Bushell v. T&N Plc (1992 BCCA)
The plaintiff has the burden of establishing that British Columbia is forum conveniens in
service ex juris cases.
Tortel Communications (1994 Man. CA)
The only connection to the jurisdiction was that the def had an asset there which had
nothing to do with the plaintiffs’ claims.
Court said def was doing business in Manitoba but not carrying on business in Manitoba
pursuant to Rule 17.02(m).
Court also wanted to overturn the pre-emptively awarded garnishing order against that
asset.
Court recognized an obiter comment in Spiliada, the idea that even if the forum is not
appropriate, one should keep the benefit of security, but that’s only when there is also a
real and substantial connection to the inappropriate forum (i.e., jurisdiction simpliciter
but not forum conveniens).
Concurring judgment: Perhaps the benefit of security would stand if the plaintiff could
show that if the security was lost, the judgment likely would be unsatisfied. Jurisdiction
simpliciter may be assumed here.
Westec Aerospace Inc. (1999 BCCA)
Page 42 of 101
Facts: Contract between Westec, a BC company, and Raytheon, a Kansas company,
involving the transfer of computer technology from BC to Kansas. Contract ends.
WestTec argues that Raytheon has not returned source codes  argue this amounts to
breach of contract in BC.
Raytheon went to a Kansas court to get a declaration that they had not breached the
contract.
Westec commences a breach of contract case in BC. Raytheon comes to BC and argues
that Kansas is the appropriate forum to hear the case and that they already have a case
commenced in Kansas.
Concern of the court is the ongoing problem of the race to the court house:
Comity, if applied with vigour, would basically result in that the later court always
defers to the earlier court (assuming existence of JS)
Unavoidable that such a race will occur: attempting to minimize inefficiency  to
some extent will inevitably favour the court where the action first originated.
BUT: Will only defer to the first court where the second court believes that the
initial court house is an appropriate forum
If you had a rule which permitted parallel proceedings, then there might not be a race to
file, but rather a race to judgment  advantage goes to the first party to obtain judgment
Held: In this set of facts, held that both Kansas and BC were appropriate forums.
Where both forums are appropriate, the race to file will be very influential.
Comity suggests that the race to file will perhaps be a determining fact.
Here, Kansas was an appropriate forum  BC conceded jurisdiction
Sufficient connection that there was a reasonably expectation that the case could be
tried in Kansas.
Comity played a role, even though an international case
Teck Cominco Metals (2009 SCC)
This case distinguishes Westec. Here the court states that s. 11 of the CJPTA applies
even in the existence of foreign proceedings. Foreign proceedings are only one factor
among many to be considered under s. 11. To hold otherwise would encourage a first to
file system.
The desire to avoid parallel proceedings cannot overshadow the objective of the forum
non conveniens analysis.
(Comment: A foreign court can be said to have asserted jurisdiction when it has been
asked to decline its jurisdiction over the matter and has refused to do so, holding that it’s
the appropriate forum to hear the dispute.)
Court also says that s. 11 merely codifies forum non conveniens and does not supplement
or add to it.
Page 43 of 101
Court suggests that a distinction be drawn, however, between interprovincial cases which
share the same approach to forum conveniens and international cases where the different
jurisdictions do not share the same approach.
Struck v. Struck (2008 Ont Sup Crt)
Limited connection between the plaintiffs and Ontario. No Canadian divorce
(American).
Court comments that attempting to deal with support obligations in the absence of a
Canadian divorce encroaches upon provincial jurisdiction under s. 92 of the Constitution
Act.
Case shows courts reluctance to split cases, creating multiplicity of proceedings and
confusion. Severance of some issues within a case from another is not appropriate.
Young v. Tyco (2008 ONCA)
Factual issues – the motion judge should accept the plaintiff’s version as long as it has a
reasonable basis in the record.
Braintech Inc v. Kostiuk (BCCA)
Forum non conveniens – a complainant for a libel action must offer better proof that the
defendant has entered a jurisdiction than the mere possibility that someone in that
jurisdiction might have reached out to cyberspace to bring the defamatory material to
their computer screen (to hold otherwise would open the floodgates to multiplicity of
action across the world).
Van Breda (2010 ONCA)
Facts: Motion judge used Muscutt factors to find a RSC between the pltfs and defs in
Ontario.
(note: remember existence of “forum of necessity” doctrine, codified in the CJPTA,
court in this case says that doctrine exists as an exception to RSC)
Court modifies how Muscutt should be applied, saying that the presumptive factors in the
CJPTA should be considered first, and then look to the Muscutt factors as mere analytical
tools which are no longer given equal weight.
Court reminds that the factors listed for consideration at the forum non conveniens stage
have no bearing on RSC and shouldn’t be considered at the jurisdiction simpliciter stage.
The test for jurisdiction simpliciter is whether there’s a RSC, an inquiry that does not turn
upon a comparison with the strength of the connection with another potentially available
jurisdiction.
Page 44 of 101
The core of the RSC test is the connection that the plaintiff’s claim has to the forum and
the connection of the defendant to the forum. The remaining considerations or principles
(under Muscutt) are analytical tools to assist the court in assessing the significance of the
connections between the forum, the claim and the defendant.
The American Position vs. the Canadian Position
As expressed in Oakley v. Barry:
In the United States the Constitution’s due process clause (14th amendment) requires
“minimum contacts” between the defendant and the state which seeks to exercise
jurisdiction. This is known as the “personal subjection approach.” Basically, it requires
that the defendant’s conduct and connection with the forum court be such that he should
reasonably anticipate being brought before the forum court.
This means that even if the defendant would suffer minimal or no inconvenience from
being forced to litigate before the court of another state, even if the forum state has a
strong interest in applying its law to the controversy, even if the forum state is the most
convenient, the due process clause can kick in to divest the forum of its jurisdiction.
This doesn’t exist in Canada. It doesn’t exist because Morguard and Hunt require a more
co-operative spirit in recognition and enforcement of judgments by sister provinces. This
is partly because Canada has a unitary structure of the judicial system with the SCC at its
apex. There is no unitary structure in the USA.
Further, the due process guarantee in the USA protects property rights. Our constitution
(i.e., the Charter) does not.
As explained in Muscutt, the fairness emphasized in Morguard and Hunt concerns not
only the defendant but the plaintiff. A plaintiff ought to be able to sue in his home
jurisdiction out of necessity for instance. There can be a RSC despite a lack of contact or
connection that amounts to personal subjection by the defendant.
Per Muscutt, “While the defendant’s contact with the jurisdiction is an important factor, it
is not a necessary factor. In my view, to hold otherwise would be contrary to the SCC’s
direction that the RSC test be flexible.”
Part Three: Recognition and Enforcement of ExtraTerritorial In personam Judgments
In BC and across the provinces, foreign judgments can be recognized and enforced in
three ways:
Sue on the original cause (need to establish jurisdiction simpliciter and FNC however)
Bring an action in a BC court on the foreign judgment as a debt
Page 45 of 101
Essentially enforcing the foreign judgment that created the debt
Common law approach treats in personam claims as enforcement of debt
Register and enforce a judgment through legislation
In BC, you have two choices:
 Court Order Enforcement Act (older – likely falling into obscurity)
 Enforcement of Canadian Judgments and Decrees Act – restricted to
Canadian judgments (new)
For Canadian judgments, more likely to go under the legislations – tends to streamline the
process and eliminate certain steps
For international judgments, more likely to use the common law – legislation does not
always apply to non-Canadian judgments
NOTE: Statute and common law can work together simultaneously
Statute does not override the common law – you can choose to use the common law over the
statute!
Limitation periods:
NEW RULE in BC for the enforcement and recognition of non-BC judgments:
limitation period to be applied is the one from where the judgment originally arose, or 10
years. – whether you are going under the common law or the statute
What if you can’t get the judgment enforced?
You can relitigate the substantive matter in the local forum (as long as you won in the
foreign forum) – but have to go through jurisdiction simpliciter, FNC, etc.
But if you lost in another forum, you can’t just relitigate the whole thing – abuse of process
Common Law Enforcement – Pre Morguard
There are two requirements for a foreign judgment to be recognized and enforced under
common law:
Judgment from the foreign court must be final and conclusive
Foreign court making the judgment had to have jurisdiction “in the international sense”
to decide the matter. Three ways to meet this requirement:
Presence: If the defendant was present in the foreign jurisdiction when the action
commenced
Attornment: If the defendant attorned to the jurisdiction of the foreign court
Canadian addition - Morguard – if in the foreign court there is a real and substantial
connection between the facts and the exercise of its jurisdiction
Nouvion v. Freeman (1889 HL) - leading case on the meaning of “final and
conclusive” at common law
FACTS
 originating court was Spanish, and a UK court is being asked to R&E the Spanish
judgment
 HL must decide whether the Spanish judgment is the type of judgment it is willing to
R&E
RATIO
Page 46 of 101


The judgment must be final and conclusive
Final and conclusive: it must be the kind of judgment which is res judicata
between the parties
 There will always be an examination of the foreign law relating to the foreign
judgment: this is not done in the abstract – the P must provide evidence to the court
about the way the foreign judgment operates
 if the D can go back to the court which gave judgment for variation of the order – it is
not final and conclusive for purposes of R&E
NOTES
 a default judgment is final for these purposes
 family maintenance and support orders are never final in Canada because you can go
back to the same court to have them varied – so that is why we have special
legislation for R&E of family orders
 As far as the CL is concerned, a foreign judgment is final and conclusive even if there
is an appeal pending or if the defendant still has a right to appeal. It is acceptable at
CL to commence an action for enforcement/recognition. This is not the case when it
comes to the statutory procedures.
NEC Corp. v. Steintron International Electronics Ltd. (1985 Ont. HC) 359
 this ON case is how the law in BC works to
 even if there is an appeal pending or it is permissible to appeal it is still a final judgment –
you can commence an action at CL on that foreign judgment BUT you may not register per
the statutory scheme, Court Order Enforcement Act, if there is an appeal or the
possibility of appeal
 register a foreign judgment while there is the possibility of appeal BUT you can still
commence an action at CL, and once you have a cause of action alive in the province
you can seek prejudgment remedies (ie garnishment, Mareva injunction, etc)
Jurisdiction of the Foreign Court in an International Sense –
Requirement that it be within a foreign court’s jurisdiction
Schibsby case (1870)
-
Older case delaing with traditional laws (rules in process of being formulated  some
uncertainty)
An attempt to defend is equivalent to a voluntary submission to jursdiction
If P selected foreign tribunal, then consent.
Key factors: residency OR carrying on business in the jurisdiction
But recent developments suggest mere nationality/residency is doubtful for grounds
of enforcing judgment.
Simple location of assets in jurisdiction is not in itself sufficient to enforce Ct of
origins judgment  Held D had no duty to obey French judgment
Suggested in this case that if a resident at time, then obligation is assumed
Now date of commencement of proceedings is important - mere presence at time
of cause of action arising is not enough
Page 47 of 101
Traditional Context summary:
- Broad general framework emphasised traditional grounds of presence in jursdiction,
consent to jursd (e.g. contract choice of forum clause) OR submission/attonement to
jursdiction
- Foreign Ct could take ex juris authority but that wouldn't necessarily be enforced
elsewhere unless 1 of 3 traditional factors met
- Not helpful if person would never go back to that jurisdiction or had no contact ever
with that jurisdiction  see how it changed with Morguard and Beals
(a) Presence
 Pretty straight forward
 Mere physical presence – can be fleeting
 Do not have to be resident or domicile – just present and served
Forbes v. Simmons (1914 Alta. SC) 368
FACTS

D comes to BC on a fleeting visit to see sick wife; P in BC action serves D with the
writ
ISSUE
 Did the BC court have jurisdiction in the international sense – was there presence?
RATIO
 Mere fleeting presence is sufficient if you can get the D served
 Statutory protection if they are coming to be a witness
 Cannot trick them into coming
Carrick case (1987)
- Casual presence at BC football game by Montreal resident football player
- Statutory enforcement
- Sask s4 of Act: precluded registration as wasn’t carrying on business or ordinarily
resident in BC
- If CL had been looked to, Ct comments that temp residence in jurisdiction may
suffice to take jurisdiction but doubtful re: enforcemnnt perspective
Test for presence for enforcement of judgment?
 At CL, casual presence is enough, but some doubt cast
 Under statute, casual presence isn't enough
Comments: Fleeting presence isn’t enough anymore because of s. 3(d) of CJPTA. There
is s. 10 residual capacity though but an argument based on that is a bit of a stretch.
Page 48 of 101
Also look at s. 29(2)(a)(i) of RECO… but also 29(6)(b) can’t get registration under Act
unless def. was carrying on business and resident – fleeting not looking good!

Meaning of “carrying on business”
Moore case (1978)
- Is a question of fact:
1) Activity carried on by the foreign corporation must be a business
2) Business carried on for a substantial period of time - some sort of intent to be more
than casual
3) Business carried on in a fixed place
4) Business must be that of the corporation itself (agency is possible but must be
sufficiently linked – i.e. agent has auth to contract on behalf of corporation, is part of
corp structure)
- HELD: Ds were clearly carrying on business through their agent. D’s applicatoin to
set asign the registration dismissed with costs to P
(b) Submission / Attornment



Things get a little less certain, as the court must examine what the D actually did
What was done must have been done voluntarily – submission / attornment must
be voluntary
There are a variety of ways in which a D may be found – ex post facto – to have
submitted to the jurisdiction of the foreign court
Defend on the merits = submission
First National Bank of Houston v. Houston E&C Inc. (1990 BCCA) 372
FACTS

Action in Texas; accepted as a fact that counsel appeared for the D in the Texas
action; default judgment; application to set aside via attorneys in Texas
 Many defences are raised by BC D’s in the BC action to R&E – nerf defence
 [bottom 376 – D we are concerned with] – argued they did not submit because they
did not give lawyers express instructions to submit
RATIO
 test is objective:
 you do not have to give express, precise instructions to submit – the question is did
you submit and did the lawyer who represented you have your authority to
participate
 leaves open that the lawyers could go off on a frolic without authority – if that were
the case there would be no submission
 it was argued that the application to set aside the Texas default judgment could not be
found to be submission because that would be ex post facto or retrospective, but the
issue was not decided
 more recent case have dealt with this under the new statute which state that you
cannot - have to participated at the original stage which produced the judgment – not
Page 49 of 101
definitively settled, but courts are reluctant to find submission from participating at a
later stage to have a judgment set aside
Clinton v. Ford (1982 Ont. CA) 377

ON, but CL position
FACTS



similar to Houston fact pattern: the D defended the foreign action on the merits
garden variety contract action arising in South Africa
both were physically present in South Africa at time of creation of contract; D
subsequently moved to ON; P commences a contract action and served the D ex juris
(ie in ON); at this time, had the D done nothing, the judgment would not have been
recognized in ON
 what actions did the D take? (this is what must be examined in these cases):
entered appearance by mail, filed affidavit of defence and notice of defence; did
nothing to object to the jurisdiction of the SA court – he defence on the merits
 argued: South African law allows the P to seize D’s property before judgment (like a
Mareva injunction); P seizes three pieces of property before judgment; there was
some precedent for the position that if you act to protect property that cannot be
voluntary submission
 so the quasi in rem jurisdiction is getting jurisdiction by seizing property – a US
thing to
RATIO
 can make an no jurisdiction argument without submitting
 Can make conditional appearance s. 14(5) ECJDA (abolished in BC, s. 14(6.4))
you don’t attorn if challenging jurisdiction, but a general conditional
appearance is abolished)
 could have challenged the validity of the seizure of the property because the
quasi in rem doctrine is a way of claiming jurisdiction by seizing property (ie the
D left property, must have submitted) as this is about jurisdiction
 if you appear just to contest validity of seizure of assets = no attornment
 but if you get into merits of case = attornment
NOTES
 letter to court may be considered submission
 submit in advance by putting in a jurisdiction clause in a contract
The Morguard Rule
(c) Real & Substantial Connection
A Real and Substantial Connection




R&SC is ambiguous which we have never firmly established its content
Morgaurd also creates new constitutional principles and changes the CL rule re jurisdiction
So now there are constitutional aspects
Some Edigner propositions – as per LaForest in Morguard
1. Conflicts rules (and R&E included) are outdated – globalization! living in new world and
we need to modernize
Page 50 of 101



2. The operating concept is comity; enlightened self-interest; must allow individuals in the
new global economy to transact beyond state boundaries – really, without comity we
wouldn’t have conflicts rules a all!
3. within Canada, we have the federal principle – comity has a federalism counterpart –
must be particularly nice to our sister Provinces – we are all the same for the most part,
so it is easier to be nice!
4. Federalism has two operating principles: order & fairness
5. only have to give full faith and credit to judgments of other provinces – only if
jurisdiction properly and appropriately assumed
6. “properly and appropriately” = real and substantial connection between the action and the
province
for our purposes at this point – the basis for R&E (including non-Cnd) that there must have
been a R&SC between the action and the jurisdiction
constitutional standards – full faith and credit + real and substantial – so all statutory
rules and CL rules have to conform to the standard – so not a rule but a standard
in theory, the statutory provisions could be challenged on the grounds that they do not
conform with the two constitutional principles set out (minimal chance of success, but
theoretical state of affairs)
Morguard Investments Ltd. v. De Savoye (1990 SCC) 35

Life has never been the same in conflicts or constitutional law
FACTS






P carrying on business in AB; D living in AB; P grants mortgage land located in AB; D first
guarantees then assumes mortgage; D moves to BC; fails to make payments; foreclosure in
AB and a pecuniary judgment in AB for the deficiency
Before the action was commenced, the D had moved to BC; they were served ex juris in BC
D consulted lawyer: finality not at issue; jurisdiction in the international sense - present? No;
so best course of action (good and sound at that point) do nothing and do not go back to AB –
D did nothing and ought to have been judgment proof
P brings R&E action in BC for the pecuniary judgment despite the fact there was no presence
or submission
P had some basis for thinking there would be R&E; a few BCSC judgments which had
adopted a theory that there ought to be more reciprocity in terms of R&E
Rationale – if BC would have taken jurisdiction on the facts we should recognize a judgment
based on the same facts
HELD

Jurisdiction because of the real and substantial connection doctrine
REASONING / RATIO
 Third alternative for establishing jurisdiction in an international sense within the
Canadian federation
 presence and submission are a little outdated, we need another option for Canadian
judgments
 a new CL recognition rule only for judgments coming from other Canadian courts – the
standard for reciprocity: real and substantial connection
Page 51 of 101
 We currently interpret as holding that a R&S connection must be between the Province and
the action: so fairly broad – can include cause of action, the parties, geographical things
 what degree of connection does this mean? What level of proximity is required? Minimal?
some? Balance? Close? How close must the proximity be?
 Logically, less than presence : Edinger’s best guess – referring to the kind of connection that
every province had in their rules of court or in statute
 Expressly made the new rule applicable to judgments from other Canadian provinces
NOTES
 Now we have three real alternative options: (1) presence; (2) submission; (3) real and
substantial connection
 Satisfy one of those, the foreign court (Canadian or elsewhere) will have jurisdiction in the
international sense
 D must now try to guess ahead of time if there was a real and substantial connection, which is
very, very difficult to guess, even 18 years on after Morguard
 So D must err on the side of caution – if there is any doubt, the D probably has to make some
kind of appearance in the foreign court (and then runs the risk of having the judgment
recognized because of submission)
 Can go anywhere in the world and start your action – and the D has to make an assessment on
what the connection of the action and that jurisdiction are – and will most likely have to
defend
 A lot of uncertainty caused by Morgaurd
Majority (Majer): Morguard should apply to international judgements
Flow of goods and people necessitates liberal enforcement
Reciprocity: if the same facts occurred, would Ontario have taken jurisdiction or not?
Yes – therefore, not unreasonable that Florida took jurisdiction
Not whether Florida would recognize the judgement , but whether Ontario would have
taken jurisdiction
Not abnormal part of the conflicts of law analysis
Ontario family purchased land in Florida = significant engagement with the foreign
jurisdiction
“Where a party takes such positive and important steps that bring him or her within the
proper jurisdiction of a foreign court, the fear of unfairness related to the duty to defend
oneself is lessened. If a Canadian enters into a contract to buy land in another country,
it is not unreasonable to expect the individual to enter a defence when sued in that
jurisdiction with respect to the transaction.
Concurring (Binnie): Agrees with the majority that Morguard should apply internationally,
but thinks it should NOT be applied blindly to international judgements:
There is something different about judgements from another Canadian jurisdiction and
from an international jurisdiction (internal vs. external judgements).
Dissent (Lebel): Again, agrees that Morguard should be applied internationally, but that we
must distinguish between Canadian judgement and non-Canadian judgements
Although I agree both that the "real and substantial connection" test should be extended
to judgments from outside Canada and that the Florida court properly took jurisdiction
over the defendants in this particular case, in my view the test should be modified
significantly when it is applied to judgments originating outside the Canadian
federation.
Page 52 of 101
Specifically, the assessment of the propriety of the foreign court's jurisdiction
should be carried out in a way that acknowledges the additional hardship imposed
on a defendant who is required to litigate in a foreign country.
“Context sensitive jurisdiction test”: must take into account the difficulty of defending
in a foreign jurisdiction. Consider:
Quality of the justice in the foreign system
Real and substantial connection in the international sense impacted by convenience to the
defendant
How real and substantial a does a connection have to be?
Must be strong enough to make it reasonable for the defendant to have expected
to have litigated there, even though it may entail additional expense, risk, time,
etc.
If litigating very burdensome, a stronger degree of connection is required
List of burdens to be taken into account:
Expenses
Inconvenience of travel
Finding out the foreign law
Corruption and bias
But in this case, there was a very strong connection with Florida: any potential burden is
outweighed by the strength of the connection!
Reciprocity argument: rejects based on an equivalence of jurisdiction
Difficulty of finding a balance between enforcing foreign judgements and protecting
Canadian citizens:
The traditional rules impeded cross-border commerce by making it difficult for judgment
creditors to obtain effective remedies against defendants resident in other countries, thus
undermining the security of transactions.
But an excessively generous test would be unduly burdensome for defendants and might
discourage persons with assets in Canada from entering into transactions that could
eventually get them involved in international disputes.
Ideally, the test should represent a balance designed to create the optimum conditions
favouring the flow of commodities and services across state lines. Judgements should travel
more easily across provincial boundaries than national boundaries
Don’t blindly apply Morguard to foreign judgements:
“The "real and substantial connection" test should apply to foreign-country judgments,
but the connections required before such judgments will be enforced should be specified
more strictly and in a manner that gives due weight to the protection of Canadian
defendants without disregarding the legitimate interests of foreign claimants.”
Comment: Ted thinks that with the right set of facts, Lebel dissent likely to get picked up by
the majority.
POST-MORGUARD CASES
Page 53 of 101
Beals v. Saldhana
 SCC held that it was appropriate to continue to apply the real and substantial test to
non-Canadian judgments.
 Thus, if you can prove presence, submission or real and substantial connection, the foreign
court will have jurisdiction.
 The strategic problem for the D who was not present is to decide whether there is a real and
substantial connection. If there is any doubt, the D probably has to defend the action. B/c of
this very generous Canadian rule, the P can start an action in almost any court in the world
and force the D to defend (Edinger likens this to “litigation blackmail”).
FACTS






action commenced in Florida arising from the purchase of property in Florida by ON
residents (confusion about which lot they actually owned)
ON defendants filed a first defence in Florida, but under Florida law, you have to file a new
defence every time the claim is amended, which it was several times.
D didn’t bother filing new defenses b/c they thought they were only on the hook for at most
10,000 and they figured it wasn’t worth it to get legal advice.
Finally, in 1990 a default judgment is entered against the Ontario defendants in Florida for
more than 200,000 dollars (crazy tripe damages in US law) plus interest.
The Ontario defendants consult an Ontario lawyers who tells them that they are OK b/c they
weren’t present and didn’t submit (NOTE: this was after Morguard so this was bad advice).
By the time the case reaches the SCC, the amount of damages is 1,000,000.
ISSUE

Does the real and substantial connection test apply to non-Canadian judgments
HELD

The Florida Court had jurisdiction in the international sense
REASONING / RATIO
 This case extends the R&S connection test to apply to non-Canadian judgments
Morguard applies to all judgments, not just Canadian judgments
 The Court leaves open the possibility this test may be adjusted depending on where the
judgment came from and the quality / variety of legal systems around the world: so in this
case there is a recognition that there might have to be an adjustment to the standard - or
scope of defences – when we extend to other jurisdictions which may not have the same
quality of legal system as we have
 US jurisdictions (as here) on the whole we can usually trust that they conform to similar
standards of independence, impartiality, fundamental justice
 Degree of nexus required to meet the R&SC test: “The “real and substantial connection”
test requires that a significant connection exist between the cause of action and the
foreign court. Furthermore, a defendant can reasonably be brought within the embrace of a
foreign jurisdiction’s law where he or she has participated in something of significance or
was actively involved in that foreign jurisdiction. A fleeting or relatively unimportant
connection will not be enough to give a foreign court jurisdiction. The connection to the
foreign jurisdiction must be a substantial one.”
 R&SC is now the overriding factor in the determination of jurisdiction, the presence of
more of the traditional indicia (attornment, presence, etc) will serve to bolster the real
and substantial connection between to the action or parties
Page 54 of 101

We assumed until this case that you could show either of the three, now R&SC seems to
be the requirement, as demonstrated by the traditional indicia - In Morguard, the SCC
stated specifically that you could establish either presence, submission or real and
substantial connection.
 HOWEVER Edigner says as far as she knows, the courts are still using R&SC as the
third option – has not fully displaced the traditional indicia
 There is still a lot of debate about what this case does to the relationship btw real and
substantial connection and presence and submission.
 Parties remain free to select or accept the jurisdiction by attornment or agreement
NOTES

no other jurisdiction in the world applies the “real and substantial” connection test for
recognition and enforcement; we are far more generous.
CASE 1: Moses v Shore Boat Builders (1994) BCCA
p392
Facts:
-
Contract to build boat, boat was alleged to be defect
Boat supplied from Alaska and P sued in Alaska
D said had good defence (4 yrs post-Morguard) on merits but was not going to go up
to Alaska (as it could then be enforced against him in BC)
Default judgment against D
-
Morguard makes Alaska judgment enforceable
No enforcement prior to Morguard, but now would say there is enforcement.
Stay of 60 days of BCCA to let D go to Alaska to sort it out there
Ct applied RSC test to Alaska
- Case in which Alaska is not acting like Texas
- Clear justification that Alaska was connected to this damage suffered in Alaska
- K signed in Alberta
- D lived in Al at time of K
- Boat in Alaska.
 Alaska had jurisdiction and was properly entitled to hear the case
BC Ct applying Morguard
-
Morguard only applies interprov  strictly speaking only obiter for truly foreign
entities or foreign jurisdictions
BC replies that obiter comment by SCC whether made by the whole Ct or majority
should be treated as ratio decidendi.
Also looked at comity in modern system
Moran case in tort law: Takes approach that in tort law there are no fixed rules but
one would look to see if one could reasonably anticipate harm
Applying to the case: Boat was made in Alaska specifically for shipping
Page 55 of 101
-
Test is RSC from perspective of jurisdiction simpliciter because it commented that
FNC might be relevant but didn't develop too much
On the other hand, have Moses simply applying Morguard and not giving any weight
to FNC
Braintech v. Kostiuk (1999) (BCCA)
Facts: Plaintiff obtained a default judgement against the defendant, a BC resident, for libel and
defamation. Defendant had allegedly placed material on a group bulletin board on the Internet
that was defamatory or libelous about the plaintiff. Plaintiff had some kind of presence in Texas,
sufficient to bring an action in a Texas court against the defendant (Statute directed that even
though the defendant was not physically present in Texas, because they were carrying on business
there, this was sufficient presence.). Texas court based its jurisdiction its own civil procedure
rules which provided that Texas court had jurisdiction simpliciter regarding non-residents doing
business in Texas and where the non-resident commits a tort in Texas. Plaintiff, having gotten the
judgement, comes to BC to enforce it against the BC resident.
Plaintiff was not physically present in Texas and did not attorn to their jurisdiction
Held: There had been no presence and no submission/attornement.
Presence: BCCA rejected the Texas court’s determination that the defendant was
“present” in Texas
Lex fori gets to determine the question of presence  BC court doesn’t have to accept
the Texas determination
Here, says that the defendant was NOT present in Texas
Attornment: defendant had clearly not attorned to the jurisdiction of Texas, even if they
had been served.
Thus, apply the Morguard principles:
In Texas, court had determined that there was a real and substantial connection because
affected Texas resident and “took place in Texas” (but we’re on the Internet!)
Court references the American case of Zippo Manufacturing v. Zippo Dotcom (1997):
“…the likelihood that personal jurisdiction can be constitutionally exercised is directly
proportionate to the nature and quality of commercial activity that an entity conducts over the
Internet.
At one end of the spectrum are situations where a defendant clearly does business
over the Internet. If the defendant enters into contracts with residents of a foreign
jurisdiction that involve the knowing and repeated transmission of computer files over the
Internet, personal jurisdiction is proper. ...
At the opposite end are situations where a defendant has simply posted information
on an Internet Web site which is accessible to users in foreign jurisdictions. A
passive Web site that does little more than make information available to those who are
interested in it is not grounds for the exercise personal jurisdiction.
BCCA adopts this approach: BC resident fit into the passive category – simply posting
information
“To enforce recovery of the default judgment obtained in Texas on the deemed proof of
use of an electronic bulletin board would encourage a multiplicity of actions the world
over wherever Internet was available.”
Held: British Columbia was the only natural forum, and Texas was not an appropriate
forum. Comity did not require the courts of British Columbia to recognize the default
judgment.
Page 56 of 101
Will not enforce the judgement because Texas did not take jurisdiction properly – goes so
far as to say that Texas court asserted jurisdiction unconstitutionally under US law!
Common law defences (or circumstances of nonenforcement) to enforcement of foreign or extra-territorial
judgments
See earlier notes for public policy defence
Otherwise:
1. Fraud;
2. natural justice;
3. public policy
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Beals is the place to start re current SCC version of CL defences
Fraud and breach of natural justice often come up together (the fraud of the P causes the
breach of NJ)
Ambiguity re defence of fraud in Beals para 50ish – Major J. fraud going to jurisdiction v.
fraud going to the merit – as opposed to intrinsic / extrinsic – which actually doesn’t change
much
Can always raise fraud to jurisdiction – but to raise fraud as to merits, the D must
demonstrate due diligence – subsequently discovered, that could not have been discovered at
time of trial in other jurisdiction – can’t just sit back and allow the trial to happen in foreign
jurisdiction and then when comes for R&E cry fraud
Now the case you go to in order to know what the parameters are for the CL defences – fraud, natural justice, exclusionary rules
Beals v. Saldanha (2003 SCC)
Defence of Fraud
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Canadian courts generally give a narrow interpretation to fraud in the conflicts context
While the traditional Canadian position distinguished between Extrinsic fraud (goes to the
jurisdiction of the court- someone on the court has been defrauded into assuming jurisdiction)
and Intrinsic fraud (fraud going to the merits of the case) here the courts gets rid of this
distinction – NOW:
 fraud going to jurisdiction can always be raised before a domestic court to challenge
the judgment.
 the merits of a foreign judgment can be challenged for fraud only where the
allegations are new and not the subject of prior adjudication.
 material facts not previously discoverable arise that potentially challenge the
evidence that was before the foreign court, the domestic court can decline
recognition of the judgment.
 BUT D must demonstrate that she used due diligence – must exercise due diligence
in trying to discover the evidence - must be active – if new evidence comes to light
after judgment that would have changed the outcome bring to local court and the BC
court can choose not to R&E because there was fraud on the court
Page 57 of 101
Defence of Natural Justice
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Major J. for the majority opts for a general test:
Q: is the basic legal system consistent with our concept of natural justice?
Binnie J. says it should be a specific test - in this case for these parties
Room for argument: Majority is correct in terms of describing what is entailed, but Edinger
thinks Binnie’s application is the correct one: so argument for EXAM – choose the one that
works
Contrary to forum public policy (the huge award)
 This case reaffirms what was said in the above cases – offensive to forum ideas of morality
and justice?
 this was an exorbitant award – would “shock the conscience of the reasonable Canadian” and
that kind of award offends our forum public policy? Court says that sums involved, although
they have grown large, are not by themselves a basis to refuse enforcement of the foreign
judgment in Canada
NOTES
 What did Beals decide – whether there is an absolute right to claim fraud to jurisdiction or if
there are limits: courts have decided that there are some limitations even on a D of fraud as to
jurisdiction of the foreign court
 If the D in that other place knew about the jurisdictional facts and did nothing – that is
probably not going to be a successful defence of fraud here = probably won’t even be
considered
 D must show an absence of apathy – some due diligence
Old North State vs. Newlands (BCCA)
Facts: Contract between a BC company and a North Carolina company. Choice of law clause:
apply BC law and parties agree to attorne to the jurisdiction of BC. Contract goes bad. North
Carolina company decided to sue for breach of contract in North Carolina. BC company doesn’t
show up in North Carolina and a default judgement is issued against them. North Carolina
legislation triples damages against the BC company. Punitive damages also awarded. Seek to
enforce this judgement in BC.
Here, there was a real and substantial connection to North Carolina:
BC company operated internationally rather than out of BC
Goods were delivered to North Carolina
Installation in North Carolina
Losses suffered in North Carolina
Arguments:
BC company argues that the choice of law clause provided BC exclusive jurisdiction over
the matter such that North Carolina had no jurisdiction simpliciter - without jurisdiction
in the international sense. Judgement in North Carolina should not be upheld because they did
not apply BC law or even attempt to.
Held: Court agrees that the real and substantial connection could be overridden by an
exclusive choice of law and choice of forum clause.
Issue then becomes whether the clause in the contract in fact gave exclusive jurisdiction.
Foreign law is a question of fact to be proved. But because BC didn’t show up to the North
Carolina court, no one was arguing BC law!
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Therefore, North Carolina court was entitled to assume that the BC law was the same as
North Carolina law
Doesn’t fit within any of the known defences
Legislation which tripled damage and punitive damages were a problem:
Penal law:
Argument that amounted to enforcing penal law
Rejected: not penal law primarily because the money didn’t go to the benefit of the state (might
have gotten a different result if the foreign state was directly enriched)
Public policy:
Argument: against public policy to enforce the foreign judgement, mostly because we don’t
award damages this way
Rejected: not sufficient that the laws are different. Treble damages not enough to raise moral
outrage or be contrary to fundamental justice.
Foreign Extraterritorial Measures Act: Federal statute which allows for the non-enforcement
of treble damage awards in anti-trust cases
Argument: that although this act didn’t apply here, provided an indication that it was against
public policy to award treble damages
Rejected: not similar enough in these cases
Held: North Carolina judgement to be enforced.
Goddard Case (1870)
Just because the foreign court misapplied the law or misunderstood the facts doesn’t
mean the judgment cannot be enforced in Canada.
Non-pecuniary judgments
Hunt
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BC asbestos litigation
QC has a statute prohibiting companies from producing docs anywhere outside of the
Province (defensive legislation against aggressive US anti-trust litigation against Canadians)
SCC decides on constitutional grounds that the statue is inapplicable to litigation anywhere in
Canada – inapplicable because it is a pre-emptive strike against order from other Canadian
courts – it refuses to give full faith and credit like Morguard requires
Morguard principles consitutionalised in relation to non=pecuniary
The SCC extends the principle that one province must give full faith and credit to the
orders of courts of another province to non-pecuniary orders from other Canadian
Courts
NOTES

The question then becomes, once you’ve eliminated the distinction btw pecuniary and nonpecuniary judgment, is there any limit to the recognition and enforcement of foreign
judgments. This question was answered in Pro Swing.
Page 59 of 101
Pro Swing Inc. v. Elta Golf Inc. (2006 SCC) find online
FACTS

Pro Swing wanted it’s Ohio injunction and contempt order against Elta enforced by the ON
courts after Elta continued to sell is “Rident’ golf clubs which infringed Pro Swings’
“Trident” copyright
HELD / REASONING

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Order was not R&E because found not to be sufficiently precise; however, recognized that
such orders may be R&E by Canadian courts if sufficiently precise
Because equitable orders require judicial supervisions the imprecision rationale is highlighted
in this case: such an order requires the Canadian court to supervise, so must be very clear
about what it has to do
Equitable orders – there tends to be more of a requirement of judicial supervision which
requires judicial renounces AND going back to the court for directions – it is harder to
convert because discretion might be exercised differently in the different jurisdictions
RATIO
 ONCA states that after Morguard and the invocation of the comity principle, the courts
are prepared to recognize foreign injunctions. But in this case, no, because the pltf
wanted enforcement of a foreign contempt order which was penal in nature
 This is also truly foreign – not Canada – so SCC took a giant leap forward by R&E truly
foreign non pecuniary order
NOTES
 The full range of equitable orders that will be enforced is not known
 Edinger predicts we will see more cases invoking and defining further the scope of this new
rule in the future!
 Also found troubling and prevents form R&E: contempt proceedings are penal in nature and
there is a quasi-criminal aspect (ie in Canada you can go to jail)
 What if the pltf just wanted the consent order enforced? Perhaps the court would have?
Look at the consent order as a contract of sorts.
 See para 28-29. Traditional defences insufficient, must also consider equitable defences,
including consideration of how foreign court applied equity
 Shouldn’t be able to do in a foreign court what you can’t do domestically
 There was an interesting trademark issue here. Court maj restricted the scope of the
enforcement order saying the USA trademark wasn’t worldwide. Perhaps this ruling
overrules Beals as applied to trademarks???

Dissent says that sort of reasoning looks to merits of the case and you’re not supposed to do
that in a R&E case. Formalism supreme. But maj. Would probably argue that one cannot use
comity to give worldwide protection to a US mark
 Also, what is a final equitable judgment? Maj says it must be final and ultimate decision of
foreign court. Dissent would enforce interlocutory judgments as long as they’re final
Statutory Enforcement
Page 60 of 101
Registration: Statutory method of getting foreign judgements registered in BC. If registered,
has the same force as if were a judgement of the BC court.
Two relevant statutes:
Court Order Enforcement Act – old
Enforcement of Canadian Judgements and Decrees Act – new in 2006
REMEMBER: statutes do not wipe out the common law! Rather, can choose whether to
take the statutory route or the common law route.
Court Order Enforcement Act
S. 9: makes it clear that the statute does not eliminate the common law option
Even if you register the judgement under the Act, you still have the common law option
Even if you fail to get the judgement enforced, can still sue on the contract in the local
jurisdiction
BUT: reciprocity arrangement - only applies to foreign states that recognize Canadian
judgements in return!
S. 37: specifies whether the foreign state is one to which the Act applies
Applies to all Canadian provinces, EXCEPT Quebec
Applies to certain foreign states: Washington, Oregon, Alaska, California, Germany,
Austria and Australia
Only applies to money judgements!
Enforcement of Canadian Judgements and Decrees Act
Definition of “Canadian judgements”:
Applies to Quebec and civil judgements
Goes beyond monetary judgements
Under this act you can register foreign judgements that might go to injunctions,
intellectual property, etc.
Also applies to certain decisions by tribunals: certain tribunal orders will be enforceable as
court orders
Exclusions:
Family maintenance orders
Penal law
Anything to do with minors
Estates
"Canadian judgment" means a judgment, decree or order made in a civil proceeding
by a court of a province or territory of Canada other than British Columbia
(a) that requires a person to pay money, including
(i) an order for the payment of money that is made in the exercise of a
judicial function by a tribunal of a province or territory of Canada other
than British Columbia and that is enforceable as a judgment of the
superior court of unlimited trial jurisdiction in that province or
territory, and
(ii) an order made and entered under section 741 of the Criminal Code
in a court of a province or territory of Canada other than British
Columbia,
(b) under which a person is required to do or not do an act or thing, or
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(c) that declares rights, obligations or status in relation to a person or thing,
but does not include a judgment, decree or order that
(d) is for maintenance or support, including an order enforceable under the
Family Maintenance Enforcement Act,
(e) is for the payment of money as a penalty or fine for committing an offence,
(f) relates to the care, control or welfare of a minor,
(g) is made by a tribunal of a province or territory of Canada other than British
Columbia, whether or not it is enforceable as an order of the superior court of
unlimited trial jurisdiction of the province or territory where the order was
made, to the extent that it provides for relief other than the payment of
money, or
(h) relates to the granting of probate or letters of administration or the
administration of the estate of a deceased person;
Procedures under the Act:
S. 6(1): Authorizes either party to apply for directions regarding local enforcement of a
non-local decision
S. 6(2): gives the court discretion to fine tune an order – the court may:
(a) make an order that the judgment be modified as may be required to make
it enforceable in conformity with local practice,
(b) make an order stipulating the procedure to be used in enforcing the
judgment, or
(c) make an order staying or limiting the enforcement of the judgment,
subject to any terms and for any period the court considers appropriate in
the circumstances, if
(ii) Appeals: can get a stay if you are appealing a decision in the foreign
jurisdiction
(iv) Public policy: if enforcing the court order is contrary to public policy, can
be kicked out
S. 6(3) “blind faith in full faith and credit clause” respecting non-local CANADIAN
judgements. (Like Morguard, should waste too much time looking behind other Canadian
judgements)
Directs that a BC court MUST not make an order staying or limiting the enforcement
of another Canadian judgement solely on the grounds that the original court lacked
jurisdiction over the parities or the subject matter under private international law or
under its own domestic law.
Can’t say that they didn’t apply their own law properly
Prohibited at looking at whether the original Canadian court had proper jurisdiction assume that there was a real and substantial connection
Also eliminates a number of defences:
(b) Error of law cannot be used as a defence: doesn’t matter if the BC court would
have come to a different decision on a finding of fact or law
(c) Cannot raise defect of process: assume that there is no fraud or lack of natural
justice in another Canadian court
Exception: s. 6(4) – if there has been a default judgement from a non-local province that
was obtained without notice to the defendant, then court has discretion to stay the
enforcement
Page 62 of 101
Cases reviewing the statutory topic after Morguard
Question becomes how do you interpret these provisions in the light of
Morguard?
-
Morguard doesn’t directly change the statute.
But if there is a phrase that refers back to CL, and incorporates a bit of CL,
and this CL has been changed to Mortguard, then the decision in Mortguard
comes into the statute.
Central Guaranty Trust Co v Deluca [1995]
North West Territories Case
- D submit that the basic statutory requirements for an application to be made
ex parte have not been met
Section 2(3) requirement: “judgment debtor personally served with process
in the original action”.
- Asks if you have been served with process i.e. submitted to jurisdiction of
original Ct. Interpret the phrase so as to mean personal service within the
jurisdiction of the original Ct – this meaning is based on CL which has
changed with Morguard
- Statutory rules asks the same thing, Morguard has been incorporated in the
EFJ legislation using the Morguard test  RSC between jurisdiction and the
action
- Looking at s2(4), allows for the registration only on the traditional bases.
Presence and residence in jurisdiction, agreement, registration (more
convenient way on traditional grounds). Narrower than Mortguard, but it still
governs
 Impact of Morguard on s2(3) doesn’t alter the specific requirements of the Act.
If choose to reciprocally enforce a judgment under the Act and evidence
establishes one of the criteria in s2(4), then the judgment cannot be enforced
2 things to contemplate after Morguard and Beals
1) Whether you want to send enforcement for foreign judgments
2) Whether you want to preclude the effect of Mortguard - but can’t do this
interprovcincially, must be done internationally
James C Bennet case
- Points to strictness of how these EFJ are enforced
- If it specifies a time limit, court can’t look to general rules of court to extend a
jurisdiction
- Court notes it is open to suspend registration but not extend registration
- IN OTHER WORDS, the Rules of Court are subordinate to the Act (Recip.
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Enforc. Of Judg. Act)
Choice of Law
Choice of Law Methodology
Choice of law is part of the common law of British Columbia  i.e.
the principles that we use in choice of law were developed
through the common law
After taking jurisdiction, there may be a question about which law applies
Domestic court may apply foreign law in some contexts
Choice of law is about deciding what the appropriate lex causi is, the law of the court
that will be applied
Choices are:
lex fori – law of the domestic forum
lex loci delicti – place of the wrong or infringement
lex situs – law of the situs or location of the subject matter (location of the land or
immovable)
Procedural law is always lex fori
Sometimes difficult distinction between substance and procedure
Foreign law is a fact that must be pleaded by the parties and proven by expert witnesses
No obligation on the other side to do this
Technically it applies between provinces, but because of the unifying feature of the SCC,
courts do look to other provincial laws and interpret them
Choice of law influenced by a number of factors:
May be in the contract
Comity
Government interest analysis
Vested rights analysis
Expectations of the parties
Three questions arise:
When is foreign law to be applied?
Which foreign law is to be applied?
What is the foreign law that needs to be applied?
When is a foreign law to be applied?
Choice of law only becomes a possibility/issue in the BC court if it is
plead  you must plead that an issue before the BC court should
be resolved through reference to foreign law.
Must be able to show as a matter of fact that the foreign law will
actually lead to a different result than the BC law
BC courts prefers to apply BC substantive law
Page 64 of 101
In some areas, choice of law does not arise because of international
treaties or because the substantive law is essentially the same
regardless of where you tend to be.
Even if foreign law may apply, may be a choice not to plead choice
of law as it increases complexity and expense
Which foreign law applies?
The Anglo-Canadian perspective is fundamentally different from the
American perspective in most states
In Canada (and most of the commonwealth) there is a very
mechanical process for determining which law will apply
Three step process:
Step 1: Characterization – which juridical category does the case
fit within?
Determined by the lex fori (BC court) – whether the subject
matter is tort, contract, marriage, etc.
Step 2: What is the connecting factor?
For each juridical category, there will be a connecting factor
(e.g. tort = lex loci delicti – where the tort occurs, property = lex situs
– where the property is).
It is the connecting factor that points to the external jurisdiction.
Step 3: Lex causi
The law of the court that is to be applied
Characterization
The conflict rules point to the jurisdiction whose laws will govern the
subject matter:
Each jurisdiction has its own choice of law regime:
Even for those jurisdictions that take the Anglo-Canadian perspective,
they may nonetheless have different juridical categories.
Even if there is commonality in characterization, there may be
variation in the corresponding connecting factors.
E.g. Even where the issue in the case is put in the contractual
category, connecting factor could be:
 Where the contract was formed
 Where the contract was performed
 What was in the expectation of the parties
There are many juridical categories, which are determined by the
lex fori. May also be subcategories.
Whether a particular set of facts fits within a certain category is
determined by the court.
Connecting factor is also determined by the lex fori = may get a
very different result in another jurisdiction
Allowing the lex fori to make their determinations allows for some degree
of predictability, but there may be wide variation in different courts.
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There may be a fairly high degree of consistency among common law
jurisdiction, but varies widely with civil law jurisdictions.
However, between the provinces within Canada, there is a fairly
high degree of consistency between jurisdictions for both
characterization and the corresponding connecting factors
Statutes may affect the juridical category, and more importantly,
the applicable connecting factor (particularly true in family law)
REMEMBER: Choice of law is trumped in a number of situations:
By legislation – may be explicit or implicit
Particularly prominent in family law
In contract, by a choice of law clause (except when it isn’t!)
However, clause is subject to being overridden
By public policy: the BC court will not apply foreign law that goes
against the public policy of BC
Usually this is only an argument of last resort – tough to win on this
argument!
Choice of law only applies to substantive law, and not to questions
of procedure
If the matter is procedural, its up to the lex fori to decide (apply BC
procedure)
Choice of law does not apply where what is being brought in is
penal law or revenue law
BC courts is not to enforce the penal or revenue laws of a foreign
jurisdiction
Problems with the Mechanical/Classical Approach
Arbitrariness: use of artificial constructs (such as the locus of a tort), ability to
recharacterize an issue to reach a desired result
No account taken of real conflict of interests between states (not true to assume that the state
where the tort takes place necessarily has the greater interest)
No systematic account taken of international policies (want efficient ordering of multinational
interactions)
Alternatives:
Issue particularized rather than categorized  breaking down to single choice of law
issues (e.g. instead of “tort,” look at standard of care, duty owed, etc.)
Proper law (k) approach – look to the real and substantial connection
Government interests – look to the conflict of state interests, if a true conflict then chose
to apply the forum law
The better law – consider what will lead to a substantively just result, looking at the
parties expectations, the basic policies underlying the area of law, and the certainty and
predictability impact of the result.
RENVOI

Renvoi: the rule that in some jurisdictions the capacity of a nonresident to sue upon a
cause arising locally may be determined by the court looking into the law of her
domicile rather than local law. An application of the renvoi doctrine occurs when the
whole law of a foreign state, including its conflict of laws rules, is looked to for a solution. If
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reference is to the whole law and not merely the internal law of the other state, then use of the
renvoi concept is involved.
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Common law choice of law rules just reference “the law” of the foreign jurisdiction it does
not say whether it is talking about the foreign jurisdiction’s domestic law or its choice of law
rules.
Civil law systems do not usually use domicile as a connecting factor. Traditionally, civil law
systems use nationality whenever CL systems use domicile. CL choice of law rules, do not
specify whether the reference is to the domestic law of the domicile or its C of L rules. E.g. if
testator dies domiciled in France, but testator was not of French nationality, do the French C
of L rules govern? In this situation, it is open to a party who doesn’t want the French
domestic law to apply to argue that French C of L laws apply and therefore the law that
actually governs the merits of the case is the law of the country of which the testator was a
citizen.
95% of the time, the rule is that the choice of law rule points you to the domestic law that is
to apply to the merits (e.g. there are cases that say that this is always the case in contracts
cases)
Renvoi relies on the ambiguity in the choice of law rules to rely either on the domestic law of
the legal system that has been selected or its choice of rules.
Foreign choice of rules may be the same as the forum’s or they may direct the action back to
the forum’s law or they may deflect to a third legal system.
There are Two Types of Renvoi:
1) Partial Renvoi – Gives the forum a choice btw the domestic law of the lex causa or
whatever domestic law the lex causa C of L rule would apply. The CL cases, w/very few
exceptions, reach the result as if they used partial renvoi although they pay lip service to
total renvoi.
2) Total Renvoi – occurs when the question asked of the foreign expert is how would
your court solve this problem; you just turn the whole thing over to the foreign expert
and follow whatever he/she says. The leading case on total Renvoi = Re: Anisley. The
Justification for total renvoi is uniformity i.e. that we are trying to produce the result here
in the forum that would have occurred if the litigation had occurred in the other
jurisdiction whose laws we’ve decided to apply. This is usually a deference to the control
of the foreign court over the matter. Total revoi, in Edinger’s opinion, is not useful b/c it
leads to uncertainty b/c who knows what the foreign expert will say that his jurisdiction
would do.
 Edinger can’t say which is the law of BC.
 If you want total renvoi, just ask the foreign expert what his/her legal system would do.
 If you want partial renvoi, just ask the foreign expert what his/her legal system’s C of L
rules would be in the situation.
Example from notes: Renvoi – act of sending back. A says apply law of state B, B says
law A applies, resolved by saying law B applies except conflict of law rules of B.
Invoking and Determining Foreign Law
What is the foreign law?
Must prove the foreign law before it can be applied in court!
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What the foreign law is is a question of fact to be argued in the foreign
court
Must be both plead and proven in order to be applied – this is a common
law proposition
Under the civil law, if the case appears to require the application of
foreign law, then the civil court is required to go out and find out the
foreign law
In the common law system, the party seeking to rely on foreign law
must themselves prove it
How do you prove foreign law?
Requires the use of foreign law experts
Foreign lawyers
Law academics
Government or business workers
BUT courts not necessarily bound to accept the opinions of the experts
Courts are entitled to draw their own conclusions about the law – fact finding mission
Unless the foreign law is really going to help you, not usually worth pleading
May choose not to invoke the foreign law where:
(1) it would be pointless to do so
(2) where the time and expense required to prove the foreign law would outweigh any
advantage to be obtained by its application
(3) application of the foreign law would have an unpredictable outcome
Amosin v. The Ship “Mercury Bell” (1986) (FCA)
Facts: Pilipino sailors working on a Liberian registered vessel. Sailors were
hired in Manila and signed individual employment contracts. Once hired on
the Mercury Bell, they found out there was a collective agreement on the
vessel that allowed for a higher rate of pay. Vessel arrived in Canada, and
the sailors decide to sue the ship for the difference in wages.
The Canadian Shipping Act directed the court on the issue of choice of
law: provision in the Act stated that any matter relating to a ship
or to a person belonging to a ship not otherwise covered under
the Shipping Act is to be covered by the law of the place of the
ships registry = Liberian law should apply
Because the statute stated the law that should apply, did not need to
plead the foreign law  Court agreed that is was to be Liberian law
that would govern the contract.
Unfortunately, no one could prove what the Liberian law was
before the court!
Issue: Where it is clear that the foreign law should apply but has not been
proven, does the lex fori include the common law or also statutes?
Held: In the absence in the proof of foreign law, the foreign law
cannot be applied.
Therefore, only alternative is to apply Canadian law, but uncertain
if should apply just common law, or statutes as well.
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Court noted that scholars appear to distinguish the two situation – some
forums applied only the common law, while other applied the statutes
(not very helpful!)
Court decides that the distinction between common law and statute is artificial
Instead, finds it better to differentiate between the general law of the forum and aspects
of the law that were intended to have only local application
Result: Canadian labour code should apply, but only partially. Canadian
Labour Code should apply to the extent that the collective agreement took precedence over
the individual context.
Common practice – similar provisions found in other countries
BUT provisions dealing with the procedures under the Canadian Labour Relations Board not
applicable – too local
Hunt v. T and N Plc (1993)
Facts: Quebec blocking legislation prevented business documents from leaving the province
(prevented discovery).
Issue: whether the statute is ultra vires or whether it is constitutionally
inapplicable to a judicial proceeding in another province
Rule: No reason why judge can’t deal with constitutional issue that incidentally
arises in the ordinary course of litigation
Jurisdiction of superior court of a province includes decision as to constitutionality
BUT power limited: must be real and substantial connection to the forum
Held: constitutionality of the law that was to be applied was a question of fact
May plead the Quebec law, and then argue that it was not valid on the basis of
unconstitutionality  follows that the validity of the statute is material
Unconstitutional because does not comply with requirement to give full faith and
credit to judgements rendered by a court in a sister province  inapplicable to
proceedings in another province (ultra vires)
Laws of a province are not required to be proved as a fact the SCC – it’s competent
and capable of applying all the laws of Canada
Law of Procedure
Tolofson v. Jensen (1994) (SCC)
Facts: Plaintiff injured in car accident where his father was driving. Accident occurred in
Saskatchewan. Tolofson and his father were BC residents and the car was registered there.
Tolofson brought action in BC against his father and Jensen (a resident in Saskatchewan).
Saskatchewan limitation period had expired.
Issue: common law test respecting limitation periods turned on the wording of the statute:
If the statute only barred the remedy – procedural
If the substantive right was extinguished – substantive
Problem: artificial distinction, turning on bizarre words trying to determine what was meant;
if limitations are procedural will lead to forum shopping
Page 69 of 101
Looks at position historically:
CL courts in UK and US says limitation is procedural
This is because of the historical rationale that foreign litigants in the UK ought
not to have an advantage that other people don’t have
Also because common law looked at a substantive right as existing forever, but
your ability to utilize the court system to enforce it is limited by statute
Civil law regards it as substantive
Civil law is the opposite, views ability to pursue a remedy as substantive
A limitation destroyed the substantive right
Analysis for choosing between substantive/procedural:
RULE: The substantive rights of the parties to an action may be governed by a
foreign law, but all maters pertaining to procedure are governed by law of forum
If lex loci delicti will be the substantive law, you should give preference to
finding the rule as substantive
If lex fori will govern, should err toward procedure
When dealing with internal Canadian issues – limitations periods are substantive
Purpose of the classification is determine which rules will make the machinery of the forum
court run smoothly as opposed to those that relate to substantive rights
If there is doubt as to whether substantive or procedural, then you should err on the
side of procedural
The rule of procedure is about convenience for the forum
Test is: how far can the court go in applying the foreign rules without
inconveniencing itself?
Old Reasoning:
BC Limitation Act s.9: limitation periods in BC laws considered to be substantive
Effect of a limitation period is to extinguish the cause of action, not the remedy
BUT doesn’t say how BC court is to interpret foreign limitations
s.13: where the foreign law is the lex causi (supposed to apply), and the foreign law
is procedural (such that it won’t apply)
BC Courts have a choice: can apply the BC limitation OR the foreign limitation,
depending on which achieves the most just result – Tolofson nullifies this almost
entirely
Held (La Forest): The Saskatchewan limitation rule was properly characterized as
substantive and hence P’s action is statute-barred
Comment: Procedure has been changed significantly by Tolofson
CL distinction (remedy v. rights) although somewhat discredited by Tolofson, is still
applicable and being used in several areas:
e.g. seizure and sue legislation (debtor-creditor) are substantive even though go to dealing
with rights rather than remedies;
no fault insurance (considered substantive in BC and when drawing it in from another
jurisdiction);
maritime liens
Page 70 of 101
International Exception:
Somers v. Fournier (2002) (ON CA)
Facts: Action commenced in Ontario arising from motor vehicle accident in New York
state between an Ontario resident and a New York resident.
Argument for an exception to the lex loci delicti rule:
Application of the substantive law of NY would create serious injustice and hence
fell under the basis for the international exception cases outlined in Tolofson.
In Tolofson, SCC said courts could retain a discretion to apply the local law
(lex fori) in international litigation where necessary to avoid injustice
Ontario CA says exception was not to be specialized, it should be limited only to
compelling and exceptional circumstances
Court examines approaches taken by other courts:
Hanlan v. Sorensky (OCA) - Court applied the international exception
Facts: Plaintiff injured as a passenger on a motorcycle in Minnesota. All parties from
Ontario.
Held: Ontario law governed since all parties were from Ontario.
Considered whether another legal system was more closely connected to the action.
Decided that Ontario had a stronger connection than the lex loci delicti and that the
court had discretion to apply local law.
Ontario residents
Vehicle registered in Ontario
Injustice would have arisen by applying Minnesota law
Wong v. Wei (1999) (BCSC)
Facts: Plaintiff and defendant both BC residents. Motor vehicle accident in California. No
liability on the part of any other parties. Plaintiff wanted to apply California law because no
cap on damages. Defendant wanted BC law.
Held: Court avoids substantive/procedural distinction and instead goes to Tolofson tort rule
that the law to be applied is lex loci delicti interprovincially but internationally there is a
small discretion to apply lex fori
Court exercises the discretion and applies lex fori, so no need to decide the cap issue
Court used an “unjust” test to decide which law to apply: California law would
burden defendant with unlimited damages for non-pecuniary loss
Further, BC is the only jurisdiction of persons involved
Issue 1: In the application of the substantive law of NY, what aspects of the
proceeding are substantive or procedural?
Held: Court looks at Tolofson and the distinction drawn between substance and procedure:
Substantive law is seen as creating rights and obligations
Procedural law is a means to meet those ends
Costs: procedural
Under NY state law, costs are considered to be substantive
In Ontario, costs are dealt with under the civil procedure rule
Costs are discretionary on the court
Draws a distinction between civil procedure rules and other legislation
Page 71 of 101
Costs are incidental to the rights of the party and are a defining part of the civil
litigation process  thus are seen as being procedural
Relate to the machinery and remedy as opposed to the right itself
Even though it affects parties, more focused on operating the system
(efficiency, incentives) and it is discretionary
Pre and post judgment interest: substance
Interest arises from the Court of Justice Act, rather than being entirely at the discretion of
the court (like costs)
While there is some discretion regarding prejudgment interest, it is much more fettered
than with costs, which is entirely at the discretion of the courts
More importantly, prejudgment interest arises from statute (unlike costs which arise
from the rules of civil procedure) = substantive
Presumptive right to this, even though it is not absolute
Primarily compensatory tool as opposed to costs which are about operating the system
Cap on non-pecuniary loss: procedural
General conflict of laws principles regarding damages distinguish between an
entitlement to damages and the quantification or measurement of damages:
Remoteness and heads of damage are questions of substance governed by
the lex loci delicti,
Whereas the quantification or measurement of damages is a question of
procedure governed by the lex fori.
The cap was not a bar to the non-pecuniary damages, but was only a measure of
the loss recovery. Thus, cap goes to the quantum and is therefore a procedural
matter
Issue 2: International exception to lex loci delicti (more important)
Two arguments:
Application of the foreign law would result in an injustice (but injustice must be quite
significant and go beyond a mere difference in law)
There is an insufficient connection to the lex loci delicti to apply the foreign law
OCA looks at Wong v. Lee (OCA): (Howell says this approach is more accurate)
Facts: Single car accident in New York to a car registered in Ontario. All of the parties were
from Ontario. Insurers were all Ontarian.
Reasons:
"It is not mere differences in public policy that can ground the exception to the
general rule of lex loci delicti; the exception is only available in circumstances where
the application of the general rule would give rise to an injustice.
Every difference in the laws of the two forums is going to benefit one side or the other
and be perceived as unjust to the one not benefiting. Because La Forest J. [in Tolofson]
anticipated the exercise of discretion being necessary only in a very unusual case, an
injustice that would require a court to exercise the discretion must be something
beyond ordinary differences between the laws of the forums.
La Forest J. did not articulate the criteria he envisaged for any particular
circumstance to qualify as an injustice.
Held: Lex loci delicti applies notwithstanding the high degree of connection between the
parties and the forum
Page 72 of 101
All of the parties were residents of the forum and had no connection with the foreign
jurisdiction. However, even in these circumstances the lex loci delicti governed.
In Somers, the court adopts the narrow approach to injustice from Wong (i.e. narrow
international exception from Tolofson)
There were significant connections with NY: NY driver, insurance company, location of the
accident
Further, there was no substantive injustice to Somers with applying lex loci delicti - no real
substantial injustice in part because there is a significant connection to NY
Comment: For injustice to occur, a whole avenue of damages would likely have to be cut off by
the application of lex loci delicti
Ted thinks that the dissent in Wong will likely be adopted in the future (but does not govern
now)
Wong dissent: Have to interpret Tolofson cautiously – lex loci delicti should not be
arbitrarily applied. After all, the context of Tolofson was interprovincial!
On the level of comity, it is difficult to see what interest New York State would have in
applying its statutory compensation regime to a claim between two non-resident parties
litigating in their home forum. In my opinion, the better view is that Ontario has a greater
interest in the compensation of an Ontario resident by another Ontario resident being
determined by Ontario law, rather than by New York law.
An Ontario resident injured in a foreign state by the negligence of another Ontario resident,
each of whom was insured in Ontario by an Ontario insurer, should be compensated under the
Ontario statutory no-fault compensation regime for personal injuries sustained in a motor
vehicle accident. To insist on the application of the lex loci delicti in this fact paradigm
would preclude an Ontario court from awarding damages in compliance with Ontario's
statutory compensation regime and would, thus, result in giving rise to an injustice of
the nature contemplated in Tolofson.
Really a question of which state has the greater interest in the outcome of the case!
READ HOWELL’S HANDOUT

REMEDIES
Distinction used to be between rights and remedy
- Generally a remedy is a procedural matter, but increasingly is bound up with
the substantive law (one can’t just accept this statement)
- Maybe not necessarily so, removing remedy such as constructive trust from
the substantive law in which it originated (no longer a cause of action)
- Option to seize or sue, no fault bars – Quebec or NZ – no fault payments can
be taken if action is barred.
Restrictions on Remedial Relief:
1) No-fault insurance legn
- Be aware of const limit on province to legislate extraterritorially
- Situation where in an event that arises in Quebec, that could spill into another
Page 73 of 101
-
province. BC person accident in Quebec, no fault, can’t sue in tort. Further
injury in BC results because of the weakness from the earlier injury.
Where does the consequence of the act end? Has there been an intervening
cause? If so, then it is a new accident. If it was forseeable as a consequence,
then it is linked with the earlier accident. And if this was incurred in the other
province, it could limit their ability to bring action.
2) Claims by Unlicenced Persons
- Murky area, but talking about mandatory rule of the forum and not something
that should be classified as procedural or substantive
- Statutes that impose requirements, such as Fraud Act to put something in
writing, one could say it is substantive – need to look purpose of the rule 
that it goes to Q of relationship between the parties.
- If classify it as a purpose as being evidentiary, then if it is a matter of proof
then it has historically been procedural
- Again, hard to say  should look at the primary purpose of the rule
- Governing relationship btwn parties
- To gain proper info to ensure administration of justice

DAMAGES
General rule: A head of damage is substantive but the quantification or
assessment of damage is procedural
- This distinction hasn’t always been clear though
- How you would classify a rule that would say a lump sum is not to be paid,
but the ct may order a structured settlement, eg pay over a period of 20 years
(looked at as being more sensible)
- Is this to the procedure, saying the admin of justice is not administered
properly if they are just given a pile of money
- Or is this between the parties? P or D may want it
Parties
International Assn. of Science and Technology v. Hamza (1995) (AB
CA)
Facts: matrimonial property action - Swiss society swoops in to say that certain
assets belong to them and are not part of a divorce. The defendant (divorcing
couple) moved to strike out on the basis that the plaintiffs (a Swiss society) lacked the legal
status to sue in AB. Although the plaintiffs were registered in Switzerland and were
recognized entities under Swiss law, they were not recognized under Canadian law.
Held: foreign individuals can sue, provided they are not enemy aliens
Corporations Act – unregistered foreign corps cannot sue regarding contracts carried out
in AB
Page 74 of 101
Law tends to support granting status where the entity in question is recognized as a
legal or judicial person by the laws of its home jurisdiction
Looked back to status within Switzerland
Supported by comity

PARTIES
-
Similar to Bumper (Indian temple) case
Choice of law and parties can be summed up:
1) Law of forum is applied to see if the forum has jurisdiction to hear a particular
party
2) That law will ask is that person a legal person in the forum, if a natural
person, corporation or incorporated organisation then can act. If not a legal
person, can ask if the person is one under the foreign law of that person. If
they are a juristic entity in the foreign jurisdiction, will grant that person
standing
3) There maybe a mandatory rule of the forum to say something about standing
where certain codns have to be met. If they are not registered in the forum,
have no right to sue as P for any conduct in the course of carrying on
business
-
Law of the forum to determine jurisdictioniction
In making the determination, can be qualified under forum law or foreign law
of that foreign person
Unless there are mandatory rules as to certain conditions
Gathering Evidence and Compellability of Witnesses
In common law, most evidence is matter of procedure rather than
substance:
Competence and compellability of witnesses are matters of
procedure
BUT standards of proof may be substantive.
The means of proving a fact in court is procedural
BUT what facts you have to show is substantive.
In re Cohen: statutes which establish presumptions (which facts
must be proved) are considered to be substantive and not
procedural.
BC courts cannot compel witnesses which are outside the
jurisdiction of BC or force the production of documents outside of
BC
Forum court needs to enlist the support of the foreign
jurisdiction where the witness is or where the documents are
Page 75 of 101
Fairly easy within Canada because there is legislation –
Subpoena (Interprovincial ) Act:
Reciprocating provincial agreement – reciprocating province
will accept a court order form BC compelling a witness to testify or
produce documents.
Therefore, within Canada can indirectly compel witnesses
and documents indirectly through the legislation
Witnesses and documents outside of Canada are not covered by the
legislation:
BC courts would then require judicial aid from the foreign court
Two ways to seek judicial aid:
Apply directly to the foreign court
Request the BC court to issue letters rogatory (more common):
Request the foreign court’s assistance in the production of
documents or obtaining oral examination
 Even if don’t get witness to come to BC, may be able to do or an
oral examination or see the documents in the foreign jurisdiction
Difficult to get the foreign court to actually order a person to go to
BC, but helpful to get aid of foreign court
Discretionary on the BC court to issue the letter rogatory,
and also discretionary on the foreign court to oblige - largely
a matter comity
Canada is member to a number of treaties dealing with evidence
taken abroad:
May provide for the possibility of an officer from a consulate of embassy
taking evidence from a foreign person or document
Given the international nature of the world, need for this kind of
arrangement
Ministerial Discretion
The Foreign Extraterritorial Measures Act gives the Minster of
Justice the capacity to issue an order denying or preventing a
court from accepting letters rogatory from a foreign court – allows
the Minister to trump a court decision to compel witness
testimony or production of documents
Designed to protect against long-armed reach of foreign law trying to
interfere with Canadian companies engaging in activities which are
perfectly legal in Canada
Blocking Legislation
Some provinces have produced legislation prohibiting the production of
documents to foreign jurisdictions
Ed Millar Sales: A court will order discovery and production of documents
notwithstanding that disclosure was contrary to foreign law. (General comment: This is
Page 76 of 101
usually done in criminal or regulatory proceedings where the lex fori was also the lex
causae.)
Part Five: Torts
See Howell’s handout
General/Historical
-
History was later changed by Tolofson.
a) The Rule in Phillips v Eyre (“Double Accountability”)
CASE 1: Phillips v Eyre
- 19th c. case
- Rebellion in British Colony Jamaica  Governor of island Eyre proclaimed Martial
law in some districts.
- Action brought against Eyre in UK for false imprisonments, other torts. Jamaican
legislation removed liability from governor and all persons concerned. Found
acceptable.
- Jamaican law extinguished right to bring action, even if brought in UK.
Applied formula from The Halley case - 2 conditions:
1) Wrong would have to be actionable if had been committed in forum (UK)
2) The action must not be justifiable by law of place where act was committed.
CASE 2: Pettigrew
- D and P were Montreal residents, accident in Ontario
- What law applies?
- If occurred in Quebec, D would've been liable  Meets 1st limb
- 2nd limb: No civil action avail in Ontario on these facts. Highway Act barred any
action by injured gratuitous passenger
- Ct said even though no civil recourse available in Ontario, but Highway Act or
maybe Criminal code had been breached.
- Said Highway Act s27 “due care and attention” requirement was breached,
therefore act was not justifiable.
- Gave broad consequence in that rule relating how to justify something
- Find situations that wouldn't justify the act.
CASE 3: Boys v Chaplain (1971)
- Whether Canadian law should be modified to reflect changes from Phillips Road
accident in Malta. P and D were brit servicemen.
- Issue: Whether P was entitled to damages for pain and suffering, loss of amenities
- Under Maltese law no damages, under UK law would recover
- How far do we interpret “justification”? Was the wrong justified or not?
- Phillips v Eyre rule retained, but focus on lex loci delicti was strengthened b/c rule on
Page 77 of 101
-
justification changed to "would there be civil accountability where event occurred"
From that situation, rule of double accountability  focus on whether it was a civil
wrong to would there be civil accountability?
Ct would have discretion to apply lex loci delicti in any situation appropariate.
So it narrowed down rule in engl terms to look at civil accountability
HL also carved out discretion to apply lex fori or lex loci deleicti as saw fit.
 Considerable watering down of Philips v Eyre rule as Cts have the ability to
exercise discretion
Trends in US + Australia + other Commonwealth
-
Move away from double accountability rule and prefer one simple rule prefering lex
loci delicti
The Current Position – Canada
Tollefson v. Jensen changed the choice of law for tort overnight!
RULE: Juridical category of torts: the relevant connecting factor is lex loci delicti –
where the tort occurred
Unresolved questions:
Does it apply to all torts?
Appears that lex loci delicti is was intended to apply to all torts and not simply car
accidents, but there are exceptions (e.g. defamation) – could treat as a separate juridical
category
Canadian cases and commentators have tended to say that Tolofson applies to all
torts – uphill battle to go against this
What does lex loci delicti cover?
Castelles has a list (pretty much everything related to the tort – remoteness, contributory
negligence, etc.)
Where does the tort arise?
There are situations where the action occurs in one place but the consequences are felt
somewhere else. In such a case, likely that the tort arises where the consequences of
the action are felt.
Difficulties also arise when the action arises from interprovincial or transnational
transactions.
Tolofson v. Jensen (1994) (SCC)
Facts: Father and son from BC in a car accident in Saskatchewan with another driver from
Saskatchewan. The son was 12 at the time. Under BC law, he had to wait until he was 19 before
he could sue, at which time he sues both his father and the Saskatchewan driver.
Issue: Under Saskatchewan law, for a passenger to be able to sue the driver you had to show
wilful and wanton misconduct of the driver.
Page 78 of 101
Lucas v. Gagnon (1994) (SCC) - companion case
Facts: Same facts, different provinces. Plaintiff is from Ontario, accident takes place in Quebec.
Bring the case in Ontario against the father, who was the driver, and against the Quebec driver.
Under Ontario law you can sue in tort both drivers. Under Quebec law, you cannot sue in tort, but
can only achieve legislative benefits (no fault scheme).
In both cases, determining the choice of law determines the outcome!
If the Saskatchewan law applies, the son will not be able to recover (since can’t show wilful
and wanton misconduct)
If the Quebec law applies, no tort but will get legislative benefit
Held: SCC pretty much trashes the law as it existed at the time. Does a survey of the
previous law on choice of law for tort:
SCC is highly critical of the development of the Anglo-Canadian case law:
Notes that the British confuse jurisdiction simpliciter with choice of law; give an unduly
strong role to the forum law of England.
No reason to retain any of this stuff.
Held: From the general principle that a state has exclusive jurisdiction within its own
territories and that other states must under principles of comity respect the exercise of its
jurisdiction within its own territory, it seems axiomatic to me that, at least as a general rule,
the law to be applied in torts is the law of the place where the activity occurred, i.e., the lex
loci delicti.
Supports with practical considerations:
“The rule has the advantage of certainty, ease of application and predictability.
Moreover, it would seem to meet normal expectations.
Ordinarily people expect their activities to be governed by the law of the place
where they happen to be and expect that concomitant legal benefits and
responsibilities will be defined accordingly. The government of that place is the only
one with power to deal with these activities. The same expectation is ordinarily shared by
other states and by people outside the place where an activity occurs.
If other states routinely applied their laws to activities taking place elsewhere, confusion
would be the result. In our modern world of easy travel and with the emergence of a
global economic order, chaotic situations would often result if the principle of
territorial jurisdiction were not, at least generally, respected.
Stability of transactions and well grounded legal expectations must be respected. Many
activities within one state necessarily have impact in another, but a multiplicity of
competing exercises of state power in respect of such activities must be avoided.
Leaving aside the British practice, the practice of most states favoured lex loci delicti
Having adopted lex loci delicti, court turns to whether there are any exceptions:
Rejects the possibility of any exceptions within the internal Canadian context
Promotes settlement of disputes and within Canada  the jurisdictions in Canada are similar
enough that it should not create undue hardships.
Limited international exception  Leaves the door open to tort occurring outside of
Canada
One of the main goals of any conflicts rule is to create certainty in the law. Any exception
adds an element of uncertainty. However, since a rigid rule on the international level
Page 79 of 101
could give rise to injustice, the courts should retain discretion to apply their own law to
deal with such circumstances, although such cases would be rare. Indeed, if not strictly
narrowed to situations that involve some timely and close relationship between the parties, an
exception could lead to injustice.
Comment: consider the difficult fact pattern where all the parties from one jurisdiction but
get into an accident in another jurisdiction
Results:
Tolofson: plaintiffs lost – no recovery for injury from the accident
Lucas: get some money out of the Quebec legislative benefit, but is not able to sue in tort
International Exception:
Somers v. Fournier (2002) (ON CA)
Facts: Action commenced in Ontario arising from motor vehicle accident in New York
state between an Ontario resident and a New York resident.
Argument for an exception to the lex loci delicti rule:
Application of the substantive law of NY would create serious injustice and hence
fell under the basis for the international exception cases outlined in Tolofson.
In Tolofson, SCC said courts could retain a discretion to apply the local law
(lex fori) in international litigation where necessary to avoid injustice
Ontario CA says exception was not to be specialized, it should be limited only to
compelling and exceptional circumstances
Wong v. Wei (1999) (BCSC)
Facts: Plaintiff and defendant both BC residents. Motor vehicle accident in California. No
liability on the part of any other parties. Plaintiff wanted to apply California law because no
cap on damages. Defendant wanted BC law.
Held: Court avoids substantive/procedural distinction and instead goes to Tolofson tort rule
that the law to be applied is lex loci delicti interprovincially but internationally there is a
small discretion to apply lex fori
Court exercises the discretion and applies lex fori, so no need to decide the cap issue
Court used an “unjust” test to decide which law to apply: California law would
burden defendant with unlimited damages for non-pecuniary loss
Further, BC is the only jurisdiction of persons involved
Issue 1: In the application of the substantive law of NY, what aspects of the
proceeding are substantive or procedural?
Held: Court looks at Tolofson and the distinction drawn between substance and procedure:
Substantive law is seen as creating rights and obligations
Procedural law is a means to meet those ends
Costs: procedural
Under NY state law, costs are considered to be substantive
In Ontario, costs are dealt with under the civil procedure rule
Costs are discretionary on the court
Draws a distinction between civil procedure rules and other legislation
Page 80 of 101
Costs are incidental to the rights of the party and are a defining part of the civil
litigation process  thus are seen as being procedural
Relate to the machinery and remedy as opposed to the right itself
Even though it affects parties, more focused on operating the system
(efficiency, incentives) and it is discretionary
Pre and post judgment interest: substance
Interest arises from the Court of Justice Act, rather than being entirely at the discretion of
the court (like costs)
While there is some discretion regarding prejudgment interest, it is much more fettered
than with costs, which is entirely at the discretion of the courts
More importantly, prejudgment interest arises from statute (unlike costs which arise
from the rules of civil procedure) = substantive
Presumptive right to this, even though it is not absolute
Primarily compensatory tool as opposed to costs which are about operating the system
Cap on non-pecuniary loss: procedural
General conflict of laws principles regarding damages distinguish between an
entitlement to damages and the quantification or measurement of damages:
Remoteness and heads of damage are questions of substance governed by
the lex loci delicti,
Whereas the quantification or measurement of damages is a question of
procedure governed by the lex fori.
The cap was not a bar to the non-pecuniary damages, but was only a measure of
the loss recovery. Thus, cap goes to the quantum and is therefore a procedural
matter
Issue 2: International exception to lex loci delicti (more important)
Two arguments:
Application of the foreign law would result in an injustice (but injustice must be quite
significant and go beyond a mere difference in law)
There is an insufficient connection to the lex loci delicti to apply the foreign law
OCA looks at Wong v. Lee (OCA):
Facts: Single car accident in New York to a car registered in Ontario. All of the parties were
from Ontario. Insurers were all Ontarian.
Reasons:
"It is not mere differences in public policy that can ground the exception to the
general rule of lex loci delicti; the exception is only available in circumstances where
the application of the general rule would give rise to an injustice.
Every difference in the laws of the two forums is going to benefit one side or the other
and be perceived as unjust to the one not benefiting. Because La Forest J. [in Tolofson]
anticipated the exercise of discretion being necessary only in a very unusual case, an
injustice that would require a court to exercise the discretion must be something
beyond ordinary differences between the laws of the forums.
La Forest J. did not articulate the criteria he envisaged for any particular
circumstance to qualify as an injustice.
Held: Lex loci delicti applies notwithstanding the high degree of connection between the
parties and the forum
Page 81 of 101
All of the parties were residents of the forum and had no connection with the foreign
jurisdiction. However, even in these circumstances the lex loci delicti governed.
In Somers, the court adopts the narrow approach to injustice from Wong (i.e. narrow
international exception from Tolofson)
There were significant connections with NY: NY driver, insurance company, location of the
accident
Further, there was no substantive injustice to Somers with applying lex loci delicti - no real
substantial injustice in part because there is a significant connection to NY
Comment: For injustice to occur, a whole avenue of damages would likely have to be cut off by
the application of lex loci delicti
Ted thinks that the dissent in Wong will likely be adopted in the future (but does not govern
now)
Wong dissent: Have to interpret Tolofson cautiously – lex loci delicti should not be
arbitrarily applied. After all, the context of Tolofson was interprovincial!
On the level of comity, it is difficult to see what interest New York State would have in
applying its statutory compensation regime to a claim between two non-resident parties
litigating in their home forum. In my opinion, the better view is that Ontario has a greater
interest in the compensation of an Ontario resident by another Ontario resident being
determined by Ontario law, rather than by New York law.
An Ontario resident injured in a foreign state by the negligence of another Ontario resident,
each of whom was insured in Ontario by an Ontario insurer, should be compensated under the
Ontario statutory no-fault compensation regime for personal injuries sustained in a motor
vehicle accident. To insist on the application of the lex loci delicti in this fact paradigm
would preclude an Ontario court from awarding damages in compliance with Ontario's
statutory compensation regime and would, thus, result in giving rise to an injustice of
the nature contemplated in Tolofson.
Really a question of which state has the greater interest in the outcome of the case!
Part Six: Contracts
The Proper Law
Proper law of the K: What is the system of law with which the K has the closest and
most real connection?
There are five possible connecting factors in contracts:
Where the contract was made – lex loci contractus
Where the contract was or is to be performed – lex loci solutions
Where the parties reside or have main places of business – lex domicilii
Where the subject matter of contract is located – lex re sitii
Where the case is being brought – lex fori
Choice of law in contract is determined by judge-made rules, but beware when
dealing with certain types of contracts!
Immovables  land
Page 82 of 101
Principles:
Courts involved with contracts where conflicts are involved seek to uphold the contract
Court generally likes the autonomy of the parties - give the parties the maximum choice
regarding choice of law. Really want to apply a choice of law clause
Certainty of commerce – courts don’t want to upset the business community by
changing the law
When it comes to choice of law, the courts are looking for solutions that foster economic
development – what is reasonable, what was contemplated by the parties, etc.
Definition of proper law of contract (Castelle, based on Dicey and Morris):
The system of law by which the parties intended the contract to be governed
or, where the intention is neither express nor to be inferred from the
circumstances, the system of law with which the contract has the closest and
most real connection.
Three possibilities for determining choice of law:
What was expressly agreed upon as being the governing law: if there is a clear
and unambiguous choice of law clause, then that clause stands
However, there are still ways to get around a clear and unambiguous choice of
law clause, although much more difficult
If no explicit choice of law clause, look to see if the parties impliedly agreed on
a choice of law  intent of the parties.
But what do you look for?  Choice of forum clause can be an indication
If you can’t figure out the intention, then look for the real and substantial
connection between the elements of the contract and the law of a jurisdiction
Similar in many ways to implied intent
Approach:
1. Look to see if there is express agreement (i.e. choice of law clause in the
contract)
2. If not, can the parties be seen to have impliedly agreed to a choice of law?
3. If not, look to what the contract is about (and to some extent also to the people
involved) and decide where the most real and substantial connection lies.
Note: US courts do not play a very important role in choice of law because they
generally just go to real and substantial connection when there is no express
choice of law clause
Vita Foods v. Unus Shipping Co. (1939) (PC)
Facts: Plaintiff had a lot of fish in Newfoundland and wants to get the fish to New York. Plaintiff
is a New York company who contracts with a Newfoundland shipping company to ship the fish to
New York. Ship runs aground and the herring go bad. Plaintiff comes to Nova Scotia to bring
action because that is where the defendant has assets. No question that the captain of the ship was
negligent.
Bill of lading (contract between the cargo owner and the shipping company)
Contract signed in Newfoundland
Contract states that the vessel owner would not be liable for any negligence
whatsoever
Choice of law clause: states that English law will apply
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Problem: The bill of lading that was signed did not bring in the Hague rules, which balance
the liability between the owner and ship  under Newfoundland law, the Hague rules had
to apply! Thus, under Newfoundland law, bill of lading might be invalid!
Important because if you can kick out the bill of lading in its entirety, then you can kick
out the no negligence provision!
Arguments:
Vita Foods argues that because the bill of lading didn’t incorporate the Hague provisions and
thus didn’t follow Newfoundland law, the contract was invalid and the common law should
govern
Unus Shipping argues that the bill of lading is still valid: the no negligence clause stands and
the choice of law is England.
Issue: Whether the contract bill of lading was valid or not because of its failure to comply with
the Newfoundland statutory regime.
If the contract is not valid, the common law applies  regular negligence rules.
If the contract is valid, the no negligence clause stands.
Illegality of the contract:
Which law deals with illegality of contract – whose law determines that?
PC held that you didn’t look to Newfoundland to determine if the contract was
illegal or not
What is the importance of the choice of law clause?
The parties expressed intention with respect to choice of law must be given effect
 express wishes must be respected to foster economic activity
“In questions relating to the conflicts of law, the rules cannot be stated in
absolute terms, but rather only as prima facie assumptions. Where there is an
express statement by the parties of their intention to select the law of the contract, it is
difficult to see what qualifications are possible, provided the intention is expressed is
bona fide and legal, and provided there is no reason for avoiding the choice on the
grounds of public policy.
If you’ve got an express clause, its going to be pretty hard to shake
Not necessary for the chosen law to have any specific connection to the
facts, the parties of the case in general as long as it was a bona fide choice
of law
Rule: The only exceptions to an express choice of law clause would be:
Where there is a lack of bona fides in the selection of the law OR
Where applying foreign law would be against the public policy of the forum
In this particular case, the court noted that the parties may have wished to choose
a law that is well developed in the area, and England had well developed shipping
laws.
Insurance companies also likely in England
Maritime law ultimately has a large British component
Held: English law applied.
The express choice of law clause did win out – Privy Council was unwilling to
undermine that choice of law clause.
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Here the choice of law clause was clear – complications related to the legislation
and the formation of the contract largely ignored
But then up to the English law to determine what effect to give to the
Newfoundland statute?
In this case, court stated that as a matter of policy the English court cannot be
overly concerned with illegality under Newfoundland law. (Remember that it is
1939, and England did not give much effect to foreign law)
The fact that the bill of lading was issued inconsistent with the Newfoundland
law did not make the contract illegal, and it is therefore not illegal in England
But PC noted that if the case had been heard in Newfoundland, you might have
gotten a different result  probably would have found the contract to be
illegal
However, finding of what a Newfoundland court would have done is largely
irrelevant: perhaps persuasive, but certainly not binding!
Result: Contract was valid  carrier exemption from negligence applied
Comment: express choice of law may not resolve all of the issues of the contract
Star Texas (1993) (Eng. CA)
Significance: Stands for the proposition that if you have an arbitration clause or
choice of forum clause that takes you a particular state, there is an inference
that it carries with it a choice of law (even though this is what they didn’t do in
this case)
Facts: An English company owns the ship and charters it to a Chinese company to ship
chemicals. Chemicals spill on board the ship and cause damage. English company
brings suit in England. No choice of law clause in the contract, but contract contained
an arbitration clause stating that any dispute is to be arbitrated in London or Beijing,
depending on the choice of the defendant (if you get sued you choose the forum). But
which court gets to interpret the arbitration clause and whether its even valid.
Arguments:
The Chinese company challenges the ability to bring this action in a British court –
supposed to go to arbitration  argue that the English Arbitration Act allows
them to challenge the jurisdiction of the English court
Plaintiff argues that the arbitration clause in the contract should not be given
effect – ambiguous, poorly drafted, etc. Therefore, case should go to the English
court.
Issue: Whether the arbitration clause, because of its relationship to choice of law,
was rendered without effect.
Does a choice of forum clause raise an implication or lead to an implied agreement
as to the choice of law regarding the contract.
Was the arbitration clause null and void or void for uncertainty?
Basic argument: the choice of law is wherever the matter is arbitrated.
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Held: Arbitration clauses (and maybe even choice of forum clauses), in the absence
of an express choice of law clause, may give rise to an inference that there is an
implied agreement as to the choice of law.
But if you haven’t clearly chosen the place of arbitration, you have not chosen
the choice of law!
In this case, the parties probably never thought of choice of law  Decided that
they wanted to go to arbitration, but no one decided whose law was going to
apply!
Rule: Where the arbitration clause allows for single situs, then the arbitration
clause provides a strong indication of the choice of law
But where there is more than one situs, then the indication that they intended
a certain choice of law is considerable less strong
Held: In the absence of any implied intention, the court must objectively ascertain
the most real and substantial connection
Here, they determined it to be the law of England.
Leading Canadian case on proper law of contract (though not necessarily the
leading case in Canada):
Imperial Life Assurance Co. v.
Colmenares (1967) (SCC)
Facts: A Cuban national purchases life insurance in Cuba through an agent of the
Ontario company. Cuban moved to the United States and then wanted to cash out on
the insurance policy. Insurance company refused, saying that Cuban law at the time
prohibited the surrender of the cash value of the insurance policy if you were living in
the US. Ontario law did not have such a clause. Case brought in Canada. No express
choice of law clause in the contract.
Issue: if Cuban law applies, no payout. If Ontario law applies, plaintiff gets the
payout.
Arguments: Court looks at real and substantial connection:
Insurance company noted that the contracts were prepared in Ontario and written
in standard Ontario form. Payable in US dollars and the request for cash surrender
had to be made to the Ontario office.
Cuban argued that the documents were drafted in Spanish, became effective
through delivery to the defendant in Cuba, Cuban agent and the insurance had to
be authenticated in Cuba according to Cuban law.
Reasoning: Lay out a number of factors to be weighed in considering real and
substantial connection:
Place of contracting
Place of performance (but where do you perform an insurance contract?)
Language of the contract
Place of residence or business of the parties
Nature of the subject matter or its situs
Domicile
If K valid in one law but invalid in another
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Economic consequences of K
Held: As a question of fact, the contract was formed in Ontario – not
determinative, but persuasive
Insurance contract was based on a standard form contract drafted in Ontario
according to Ontario law
Decision to accept the risk was made in Ontario
Comment: Case kind of skips over the consideration of an implied intention for a
choice of law clause, but there really are three considerations.
Amin Rasheed Shipping v. Kuwait Insurance (1984) (HoL)
Facts: Shipping company incorporated in Libya, carries on business in Dubai, seeking
to sue Kuwaiti insurers in an English court.
Issue: What is the proper law of the contract?
Reasoning: Court looks first at intent of the parties. If there is no such implied
agreement, then look to the closest and most real connection to determine the proper
law of contract.
Court is very clear that there are three approaches, but that implied intention and
real and substantial connection are very similar
Relevant factors:
Most important: No indigenous marine insurance law in Kuwait
No Kuwait statutes relating to marine insurance – this is a specialized area,
complex contracts, ancient language, could not be governed by regular
commercial law and could only be understood by reference to English law
“Not good enough to suggest that English law could be persuasive…”
Use of an English form
Nationality of the parties
Sterling Pounds was the currency of the contract
Use of the English language in the contract
Held: English law applies.
Even if Kuwait law was the proper law, could still borrow from English law
Mandatory Legislation and Illegality of Contract
Two ways to attempt to get around a choice of law clause
Attack the choice of law clause itself for not being bona fide
Apply the choice of law clause, then attack it for being contrary to public policy
Nike Infomatic v. Avac Systems (1979) (BC)
Facts: BC company (plaintiff) enters into a distribution agreement with an Alberta company
(defendant). Contract had an odd choice of law clause: contract to be governed by the laws of BC,
BUT if any provision of the contract contravenes the law of the place of performance, then that
provision is deemed to not be part of the contract. Contract to be performed in Alberta. Under
Alberta law, distribution agreements of this type were supposed to be registered, but this was not
done. Under BC law, there was not registration requirement.
Page 87 of 101
Arguments:
BC company argues that the first sentence of the choice of law wins the day: BC law is
supposed to apply. The second sentence is severable or subordinate.
Alberta company argue the contrary: expressed intention (BC law to apply) overridden
by the fact that the contract was signed, performed and entered into in Alberta and
should be governed by the law of that province. Further, the clause is ambiguous, and
therefore the law of the forum should apply (BC). Also argue contrapreferentum  if
ambiguous, should be interpreted against the drafter.
Issue: Effect that should be given to the choice of law clause
Cites Vita Foods: express intent of the parties should be respected unless the expressed intent is
not bona fide or results in the application of a law that is against the public policy of the forum
Quotes Dicey and Morris: “No court ... will give effect to a choice of law (whether English or
foreign) if the parties intended to apply it in order to evade the mandatory provisions of
that legal system with which the contract has its most substantial connection and which, for
this reason, the court would, in the absence of an express or implied choice of law, have
applied.”
How do you tell if the clause is bona fide or not?
If the contract directs you to a law that was deliberately and clearly chosen in order to
avoid the application of mandatory legislation in the jurisdiction that has the most real
and substantial connection. Consider:
Absent the choice of law clause, what law would apply based on real and substantial
connection?
Is there mandatory legislation that would apply?
Was the choice of law clause implemented in order to avoid this legislation?
Held: In this case, found that the choice of law clause stood, so BC law to apply
Without the choice of law clause, Alberta law would probably apply.
Looks at whether there is a connection with BC:
Cites Vita Foods in which English law was applied because it was specified in the choice
of law clause even when there was otherwise not a very strong connection to England.
Here there is a connection with BC, and it was much stronger than what was
allowed in Vita Foods  defeats any argument about the non-bona fides of the choice of
law clause.
Although there were very strong connections to Alberta, this did not amount to lack of
bona fides and is not sufficient to overcome the choice of law clause.
Law Other than the Proper Law
(1) FORMATION
 Law that governs whether there is a contract at all.
 TWO options:
(1) law of the forum OR
Page 88 of 101
(2) putative proper law of the contract (law that would have been the proper law of the
contract if the contract had been completed).


Simplest of the possible choice of law rules for this issue – law of the forum
another possible rule floated judicially is the putative proper law which is the law that
would be the PLC if the contract had been completed
MacKender v. Feldia (1967)
FACTS
 Insurance policy on jewelry store; diamonds go missing; insurer alleges smuggling and
argues that makes the contract void—never meant to insure a smuggling operation.
 contract contains a COL clause stipulating Belgium. Insurers want to bring the action in
England and argue that if the contract is void, then the COL clause also does not exist.
ISSUE

Which law is applied to determine the formation of the contract?
HELD

Forum law—contract exists so off to Belgium per contract’s choice of jurisdiction clause.
RATIO
 When there is an issue as to whether there is a contract, the forum can apply its own law to







determine whether there is a basic agreement (doesn’t have to be a contract in the legal
sense). You can use this instead of the putative law of the contract. However, you can also
argue that the putative law of the contract should govern.
NOTE: See s.10 of the CJPTA
Need to apply forum law to determine whether there is a contract. However, this is
basic offer and acceptance without any technicalities (consideration is viewed as a
technicality). Need to ask whether there was an agreement.
What is the role of the forum? It is for the forum to determine if there is consensus – if
so – off to PCL
Proposition when there is an issue about whether a contract exists (ie formation of contract)
the CL court relying on MacKender may apply the law of the forum to decide if there is a
basic agreement – consensus ad item - So apply llc to see if there was a basic agreement –
not necessarily full contract
What is the role of the forum? It is for the forum to determine if there is consensus – if so –
off to PCL
Proposition when there is an issue about whether a contract exists (ie formation of contract)
the CL court relying on McEndermay apply the law of the forum to decide if there is a basic
agreement – consensus ad item
So apply llc to see if there was a basic agreement – not necessarily full contract
Capacity
Charron v. Montreal Trust Co: Only Canadian case, a party’s capacity to enter into a K is
to be governed by the proper law of the particular K – in this case, the court means the
objective proper law of the contract, not a proper law chosen by the parties
Page 89 of 101
Greenshields v. Johnston (1981) (AB CA)
Facts: Greenshields was an investment broker in Canada with offices in Toronto and Edmonton.
Defendant was an Alberta company. Greenshields wanted payment on a commission from the
Alberta company. Defendant company had a principle officer who had personal guarantee for
payment of the commission.
There was a contract signed in Alberta, but Greenshields was mostly an Ontario company and
the choice of law was that of Ontario.
Arguments:
Alberta company argued that the contract was invalid because it did not comply with an
Alberta statute that required the contract to be signed before a notary public.
Ontario had no such law, and Ontario was the proper law of contract.
Which law applies to the formalities of contract?
Rule: Contract is valid if it meets the formalities either of the place where the contract was
made (lex loci contractus) OR by the proper law of contract.
Two connecting factors: As long as you meet one of the two, then the contract will be
valid.
Choice of law rules meant to ensure that the contract cannot be avoided based on a
technicality.
Issue: How do you attack this?
Three argument attempted in this case, all of which fail:
Attack the clause itself - whether the choice of law was a bona fide choice
Consider if there was an attempt to avoid mandatory legislation  not so here, since
Greenshields was mostly an Ontario company
Argue that the Ontario law should be ignored because its contrary to the public policy
of Alberta
Court noted that there was significant connection to Ontario and therefore was not likely
to be inconsistent with the public policy of Alberta
Argue that the legislation is procedural and therefore the Alberta court must apply it.
Failed – legislation went more to substance.
Avenue Properties v. First City (1986) (BCCA)
Facts: A real estate deal in BC for the purchase of property in Ontario  Contract goes sour.
Avenue Properties (BC company) bought property in Ontario from an Ontario company. Avenue
Properties wanted out of the deal and the Ontario company sues Avenue in Ontario. Avenue
comes to BC and seeks a decision that the contract is not enforceable.
Choice of law clause: the law to be applied is that of Ontario.
Ontario seller had been trolling for business in BC and had not filed a prospectus as required
under BC law. Because there was no prospecutus, this made the contract unenforceable in
BC.
Appears to be a valid contract in Ontario.
Issue: Whether the illegality of the contract and its unenforceability under BC law precluded
recovery on the contract? Does the BC statute apply?
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Note: Choice of law clause here is not being challenged.
Court notes that it can apply forum law to a contract where:
The enforceability of the contract is a matter of procedure
The court is compelled by statute to apply BC legislation
The failure to apply the forum statute would be inconsistent with public policy
Rule: even where the choice of law clause is not in issue, the court may still apply
a provision of local law in preference to the foreign proper law of the contract
where it is satisfied that it would be contrary to public policy to do otherwise
Whether a contract is illegal or not must be determined not based on what would have
happened had the contract taken place in BC, but whether the legislation of the forum has
extra-territorial application which makes a contract conducted outside the province
illegal in BC
In other words, does the forum law apply irrespective of the choice of law clause or the
proper law of the contract?
Tension points:
There is a fundamental tension between the concepts that nearly all issues under the contract
should be decided by the parties themselves and the obvious desire by legislatures to impose
restriction on contracting parties for reasons of fairness, broad social policy or economic
regulation.
There is a conflict between autonomy of the parties and legitimate regulatory actions by the
legislature
Held: the BC legislation expressly applied to solicitations within BC for the sale of land
outside of the province!
This makes it different from the gambling cases!
BC legislation had to be respected by the BC court  to not do so would be inconsistent
with the public policy of the forum.
If the legislation is constitutionally valid, then this is one way to undermine a choice of law
clause or the proper law of contract.
Held: BC law applies. Contract is unenforceable
Comment: The choice of law clause could operate, but it was overridden by the BC legislation.
However, in Golden Acres, the choice of law clause had to be attacked directly to be overcome.
If Illegal Under Where the Contract was Done
If the contract is valid under the proper law of contract, valid in the forum, but illegal in the
jurisdiction where the contract was entered into and signed
Rule: where the contract is done is largely irrelevant
Vita Foods: Newfoundland legislation which perhaps made the contract illegal where it was
made. Choice of law clause directed action to England. Forum court was Nova Scotia.
Held: Newfoundland statute did not apply and did not matter, even though the contract
was signed there. Lex loci contractus was not determinative of illegality of the contract.
Comment: but if the Newfoundland court was the forum court, then they might have been
bound by the legislation to declare that the contract was illegal if: the enforceability of the
contract was procedural in nature, or the Newfoundland law had extra-territorial effect.
Page 91 of 101
Gillespie Management v. Terrace Properties (1989) (BCCA)
Facts: A claim for real estate management fees that arose in Washington State. Property owner
was in BC. Property management company was in Washington. Manager of the Washington
company was in BC. The property was in Washington. Contract was drawn up in BC. Property
owner came to the BC court for breach of contract. But under Washington law, the manager of
the property company had to be licensed as a real estate agent in Washington, which they were
not. Washington law applied to both resident and non-resident property brokers (i.e. intended to
have extra-territorial effect as long as had business in Washington). Onsite management was done
in BC (by phone?).
BC was the proper law of the contract (not disputed).
Contract is being performed in Washington.
Held: In order to support its claim for damages, the respondent would have to rely on acts that
would have been illegal in Washington if they had been performed. The Washington state law
provided that it was unlawful for any person to act as a real estate broker by negotiating in the
lease or rental of real estate without first obtaining a licence. The claims for the performance of
such illegal acts were not sustainable in British Columbia.
The forum court will not allow enforcement of a contract where it would be illegal in the
place of performance, even if performing it in BC would have been legal.
Forum court get to determine if the contract is illegal or not in the place of
performance.
Southin (concurring): BC forum court should not enforce the illegality of the Washington
contract because it would be contrary to public policy.
“The doctrine of illegality is founded on considerations of public policy - not foreign public
policy but the domestic public policy of not enforcing unlawful bargains or requiring
unlawful conduct.
I leave open the question whether this Court must always defer to the law of the foreign
state and hold that that which is unlawful there is unenforceable here as contrary to our
public policy. But, as a matter of our own public policy, I think we should give effect, in
these circumstances, to foreign legislation which is of the same order as domestic
legislation.”
Comment: Southin’s decision tends to complicate the matter by bringing in a very broad public
policy argument.
Not the leading approach!
However, some academics have disagreed with the approach taken by the court in Gillespie
Management:
Castelles: There is no valid reasons for Canadian courts to not apply domestic law of
contracts where the forum is the proper law of the contract.
Argues that illegality at the place of performance is irrelevant  should only look to the
proper law of contract. To do otherwise is to destroy the foundation of the proper law
doctrine. Questions of illegality at the place of performance has nothing to do with this
question
Applying a strict choice of law analysis, the only relevant question should be: was the
enforcement of the contract inconsistent with the proper law of the contract?
Comment: Don’t want to dismiss Castelles, but court will be wary of enforcing contracts
where they are illegal where they are to be performed.
Page 92 of 101
Part Seven: Property
 In the conflict of law all property is divided into movables OR immovables
 There are different jurisdiction, choice of law, recognition, and succession rules for
immovable property: so whether property in question is moveable or immovable can
make a huge impact on the out come of a case
classification
Hogg
 An approach (not a definition) to classification
 Is the property moveable or immoveable??
FACTS



SKCA
Classification of property for purposes of selecting the proper choice of law rule to see if SK
tax can be imposed on the estate
Deceased was domiciled in SK; had an estate (property) this case is only concerned with the
mortgages which the deceased owned on real property in BC; SK taxing statute imposed tax
only on property devolving by or under the law of SK (if SK law applies to determine the
question of who inherits the property it can be taxed; if the law of some other jurisdiction
applies to this end SK cannot tax on it); that is a choice of law Q – who’s law determines
inheritance to the mortgages
ISSUE

Are mortgages moveable or immoveable property?? CL considers mortgages to be interests
in land; statutory treats as interest in land
HELD / REASONING / RATIO
(1) Step one: decide where the asset to be classified is located
 Interests are intangible – but land is easy to locate – land in BC so mortgages located in BC .
..
(2) Step two: get expert evidence on the lex citus classification – we defer absolutely to the
classification of that legal system; of the legal system where the property is located
NOTES


ie how does BC classify mortgages? Does BC characterize them as moveable or
immovables???
Personal property act generally as moveable – BUT moveable can be intangible – you might
have to locate intangible property – so you often do step one even for personal property AND
occasionally there will be a legal system which will say it is immoveable
From here, property already classified as immoveable
 UK Courts developed specific rules with relation to immoveable property
 Mocambique rule: no foreign law has exclusive jurisdiction over immovables in UK and,
as corollary, a UK court will not assume jurisdiction to decide title of foreign
immovables –
Page 93 of 101
 if a question of title of foreign immoveable arises usually a UK or Canadian court will

not assumed jurisdiction
This rule was challenged in Hesperides and a more modern HL case dealing with the primary
rule of exclusive jurisdiction
CASE 2: Mocambique
- Haunts modern 21st c. intellectual material
- Concerned with land in South Africa, P & D both located in England
- Situation arose in SA re: land which one could characterise as trespass of land  Qs
as to title, possession of land
- Both parties within jurisdiction  did UK Ct have jurisdiction to enforce trespass in
foreign jurisdiction?
- Seen as an action relating to damages
- Ct did have to get in the question of title. If P found to have better title, will avoid
liability issues
Issues
1) Ct couldn’t give decision as rights of title/possession of foreign land
2) Ct couldn’t give damages re: interference with foreign land (damages in personam)
- 2 disagreed on issue of title that generally accepted a decision as to title or rights to
possess land in foreign jurisdiction should be determined by law and Courts of
that jurisdiction
- Debate as to granting of damages
Rule that came in later cases: Other matters concerning land e.g. injury to land, should be
left also to law and courts of situs of the land
In Mocambique, the Ct was in some doubt as to what it should do  had been situations
by Cts in equity to say reason why CL Cts were so strict in relation to rights of
title/possession because of conveyancing and procedural processes.
- In England itself, was procedural practice to do so in local court with local jury
- Judicature Act 1873 and 1885 made it clear action could be brought in any country in
England (Eng law applies everywhere)
- Argued this should be applied internationally as well
But it was rejected by the HL, found questions of title and in relation to possession are
determined by the law of situs (foreign courts have no jurisdiction in these matters)
Comment: Dispute in Mocambique primarily went to title, wasn’t just about the tort of trespass
Page 94 of 101
 How far to extend the Mocambique lex situs rule?
1) Rights of Title/Possession (to land and immovables)
2) Damages in personam (not involving title/possession)
- Subject to criticism in this section  too broad?
LEX SITUS ---------------------------------------------------------------------------------------3) Other situations concerning the foreign land
e.g. damage to the land (beyond pure trespass) | Question area
4) Situations that involve some other area of law (other legal contexts re: land)
e.g. contract that might relate to sale of land (land is just incidental, part of the context of the case)
Lee v Li case: Fraud occurring in BC but subject matter was land in Taiwan
2-4: Who should be able to exercise judicial authority and where should it apply?
- Slippery slope argument

-
“Local or fixed criteria” and “transitory criteria” – link to IP area of law
2 members of the CA drew a distinction between “local or fixed criteria” and
“transitory criteria” but this was rejected (significant for the IP area)
Granting of patent
-
Government grant and applies only in territory
Fixed into jurisdiction that grants it
Very similar to land (suggested distinction – issues going to validity and title cf
issues going to infringement)
A lot more formalities (application for grant)
Copyright
-
Broad international treaty basis, protected in all countries under the WTO
Any country belonging to the WTO is able to take jurisdiction
Transitory ppty right/issue – has no situs of itself
In effect it is the ultimate of “immovability”
Little scope to challenge the validity of copyright (no formalities)
Need skill and judgment for copyright
If talking about infringement in jurisdictions other than where it was granted, should be
allowed to enforce where the infringement took place (applying laws of the granting
jurisdiction) cf validity/title  always situs of grant
Page 95 of 101
Discussion comparable to title/possession of land cf disputes between parties relating to
or concerning land (Mocambique).
- This is why Mocambique has been talked about in IP law
Court in Mocambique said good reason not to interviere with title/possession is that there
is no means to enforce – “come and get me off the land”
- Issue injunction, like in Airbus, no effect

-
-
DAMAGES: Slippery slope argument
If award damages for trespass to land, how do we know won’t go back to SA and also
get damages there?
Dispossessed of land in SA – P gets $ in England, but could go back and take land by
force and therefore person has BOTH land and damages
 Therefore shouldn’t entertain any issue of damages
English Chancery Division flirted with doing something re: damages but it was
rejected in the Mocambique case
Hesperides 1979
FACTS
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P attacked rule of exclusive jurisdiction over immovables in two ways (1) tried to frame
action in tort as to not run afoul of foreign jurisdiction immoveable rule and (2) challenged it
head on
Hotels in the Turkish part of Cypress: immoveable property in Cypress – fixtures on real
property – clearly located – clearly immoveable under CL or civil law
Furniture: moveable
Owners of Hotels are Greek and now in UK because Turks kicked them out; they discover
that Aegean Turkish Holidays is booking UK tourists into their hotels
Commence action in UK; not directly raising the issue of ownership of the hotels (of the
foreign immovables) because of the rule against assuming jurisdiction over disputes about the
title of foreign immovables; so they frame their action in tort; claiming damages for
conspiracy to trespass, account of profits and an injunction (smart, because if they just went
for trespass they would have to prove title – it is a necessary issue even if no once challenges)
REASONING
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No, cannot do an end run this way and avoid operation of the Mocambique rule
Direct attach on the Mocambique rule: argument – time for a change, the world has changed;
lots of criticism of the rule; rule ripe for change
 No – rule is used throughout the commonwealth now; deference to Parliamentary supremacy
– and they should modify the law; changing could result in forum shopping; circumstances
have not changed
 So there was nothing in the arguments to persuade the HL to change the Mocambique rule
RATIO
 Rule remains – a UK court (BC / Can) will not assume jurisdiction in an action
involving any issue of title to foreign immovables
 Three big exceptions – Courts will take jurisdiction:
(1) Contracts related to immovables
Page 96 of 101
(2) Equities among the parties as long as the order is in personam – ie Penn v. Baltimore UK
court could making an in personam order
(3) Context of administering an estate if there is a portion of the estate which consists of a
foreign immoveable the court may take jurisdiction to settle questions regarding the
estate
 So what does the Mocambique rule mean practically – you have to go to the jurisdiction
where the immoveable property is located to litigate about matters which involve a
question regarding the
Godley v. Coles ONHC 1988
FACTS
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ON Ps and ON residents
Both Ps and Ds own condos in Florida – Ds own upstairs condo, Ps own bottom
No question that condos are foreign immovables
Ds toilet leaks and damages the Ps lower condo – clearly damage to immoveable property
and to furniture and other movables located in the lower condo – Ps bring action in ON for
damages
 Canadian courts have generally been more rigid with the Mocambique rule than UK
ISSUE
 Should the ON court take jurisdiction?
HELD / REASONING
 Immovables in FA, but everything else is connected with ON and ON court takes jurisdiction
over the tort action (title is not an issue)
 Substantial portion of the damage may well be found to be damage to immovables – so
assumes most of the claim will be damages for damage to moveable, and some damage to
immovables should not disentitle P from bringing ON action
 How binding is this type of rationalization to be – can you use it in another claim??
RATIO
 So can use case to help argue where the bulk or substantial amount of damages is to
movables, and a minority of the value of the claim is damage to immovables, a
Canadian court will probably take jurisdiction
Ward v Coffin
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P and D both in NB - K entered into in NB for sale of land in Quebec.
Involves title and possession BUT here if able to say that we aren’t dealing directly
w/title and possession we are acting in personam against parties themselves.
So in seeking specific performance against D, we are saying in NB that you are
subject to our jurisdiction in personal sense, you have to in personam take nec steps to
make in rem changes in Quebec.
Page 97 of 101
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In effect, by ordering spec perf, Ct changing possession/title to ppty in Quebec.
BUT bc both parties, esp D was in NB, and was going to stay there, then there is in
personam juris that courts can use to require person to do something up scale.
Different than saying title to Quebec property belonged to X and then holder of
judgment to take it to Quebec to ask for enforcement. Quebec court would say no bc
seeks to deal w/ title in Quebec.
NB had no juris BUT if you don’t have to go to prov or country where land is situated
and have personal juris over parties, then can say we ordered party to make nec
changes in Quebec.
So parties don’t have to go to Quebec court to enforce bc NB has power over the
party e.g, can order contempt of court.
Action in personam is indirect way around title problem.
BUT if parties moved out of NB, then NB could order whatever it wanted but no
personal (power) over party.
BUT contempt of court issued in NB may be enforced in other prov bc of
Morguard.
If impossible for D to comply with order, e.g., D says I went to Quebec and attempted
to transfer property to P but bc of formalities weren’t entered into wrt property,
Quebec won’t accept docs.
If performance is impossible, in personam won’t work. If D makes bona fide
attempt, but unable bc of lex situs law, then no consequence to D.
SO if dealing with Contract like this, court asked is k was valid?
- Can be valid in either in lex situs OR lex contractus (law where k was formed or law
where land is situated).
Lee v. Li (2002 BCCA)
14 The trial judge rejected the argument that she should decline to exercise jurisdiction
to avoid conflicting with probate now proceeding in Taiwan. She said that the defendants
had "more than ample opportunity" to commence proceedings in Taiwan at an earlier date
and held that it would be "grossly unfair" to decline jurisdiction after a full trial on the
merits because of recently brought litigation in Taiwan. She reasoned that she was not
dealing with land situate abroad but with "the conscience of the defendants". She stated
that a finding of fraud could be an effective means of resolving the dispute as it could
lead to an award of damages for the deprivation of benefit under the wills, and,
accordingly, she concluded that it was "fair and just" that she retain jurisdiction over the
action.
Catania case (1999)
- Deed entered into in Canada (Ontario) in 1993, whereby house in Italy gifted to
certain persons (appellants).
- Had been a will earlier executed which had also left land to appellants (but not
effective until death)
- Will was subject to certain restrictions (right of way & first refusal on sale to certain
Page 98 of 101
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party)
Challenge to validity of deed on basis that the father was mentally incapable of
understanding what was going on.
Not contract, but case of equitable relief sought.
Not making direct order wrt Italian land but making order that deed made in Ontario
was invalid.
Parties didn’t meet criteria here, esp relationship btwn in rem and in personam re
contract and equity.
Propositions:
Ct must have in personam juris over D, if not then no point. P must be able to serve
D with notice or D must submit to juris of court.
 4 criteria
1) Person has to be in province or submitting to prov.
2) Personal obligation btwn parties (in this case, obligation was missing)
 Juris can’t be exercised against strangers.
3) Juris cannot be exercised if local court can’t supervise execution of judgment
- (so like Airbus-will just be ignored otherwise)
4) Can’t order it if of no effect in situs
- so if it requires action to be taken in situs and w/o action it won’t be effective, then
court shouldn’t issue order
Duke v. Andler SCC 1932
 Canadian CL rule for R&E of foreign judgments dealing with immovables – still good law
FACTS
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CA takes jurisdiction in a contract action re sale of BC land and makes an order for
specific performance to re-convey title (an in personam order) … but to affect title
There is a re-conveyance executed by force in CA; P comes to BC and commences action of
declaration that they are the owners of the BC land by either the CA conveyance OR by
virtue of the CA judgment
A BC court might have done the same thing – contract; equitable remedy; remedy for breach
Should BC R&E judgments from courts which exercise jurisdiction on the same basis we
would??
Answer given by SCC is No!
RATIO
 Would not R&E because it involves immovables in BC and do not want foreign
jurisdictions playing around with our immovables
 California judgment may have been in personam, but the property is in BC and BC
courts won’t stand a foreign court deciding what will happen to land here.
 If you want specific performance to convey immovable property, you better go to that
jurisdiction to litigate b/c the courts in that jurisdiction are the only ones who will have the
ability to convey title to that immovable property. You can try to get specific performance in
another jurisdiction, but the defendant may not obey the in personam order.
Page 99 of 101
Chapman Estate v O’Hara Case
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Admin of estate
Adminstrator and all parties are in Manitoba.
Proceedings brought in Manitoba and Manitoba exercises in personam relief against
O’Hara re: land in Sask
O’Hara lost in Manitoba and came to Sask and filed lis pendens to title (litigation
pending against land) sought to bring proceedings on same issue in Sask  that as an
inpersonam judgment it could not conclusively determine the title to land in Sask
Issue: would Sask re hear case?
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Manitoba Ct had no jurisdiction to remove the lis pendens but did have territorial
jurisdiction over O’Hara to enforce a warrant for contempt should he again to to
Manitoba where it could be enforced
But D said he wasn’t going back to Manitoba.
Held: No abuse of process bc matter already litigated through to CA in Manitoba.
Issue: Bigger question was should Manitoba court have
taken juris?
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Manitoba Ct had through control of admin and admin of estate, the power to see that
title to Sask land was conveyed to proper party without using Sask Ct
Could ensure transfer in Sask could take place without resort to Sask.
O’Hara said property should be held by him.
Administration could pass property to anyone, administration by going to Sask
wanted to transfer property.
O’Hara could only stop this by asking Sask court to intervene BUT Sask consent
wasn’t needed for completion of action by administration
cf Calif case  no control over parties in personam sufficient to require them as
indiv to make transfer, but then had to go to BC to enforce
Howell asks: Can you enforce your in personam order?
- If so, good, if not, don’t make order.
- Sask court has said it wouldn’t hear case already, so D can’t bar.
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Second limb of Mocam rule
Damages to immovable
If you can get around other branch by in personam, why not allow this limb to be
litigated anywhere?
Noone really disagrees about title/possession rules.
Decision should be based on forum conveniens for 2nd branch
Monetary award should be enforceable esp if P and D in same province.
Page 100 of 101
Important to go back to enforcement of judgments
Divide btwn
1) in personam pecuniary judgments
2) other judgments
Judgments are enforced on the basis of debt.
- Therefore, order by way of injunction/specific performance or other order-based
action, instead of enforcing debt, are NOT enforceable
Question about position after Morguard/Hunt
Hunt
SCC indicated that Ct of any province could rule on constitutional validity of legn of
other province because:
1) SCC oversees
2) judges are federally appointed
3) same ethics throughout Canada legal profession
Have we reached point where non-pecuniary judgments should be enforced
interprovincially so that if an injunction is granted by one prov against a person in
another prov it should be enforced
Case where Interlocutory order of Quebec was enforced in
BC
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If we have constitutionalized things is there any need?
Ought there be any continuance of rule that only pecuniary in personam judgments
that are enforceable? Why no other types of judgments?
All fit themes of Hunt/Morguard.
Prof Howell thinks its time where these types of orders will be enforceable
Thinks it will challenge title/possession eventually
- Will challenge 2nd branch of the Mocam principle
- Look at O’Hara case, seems that Manitoba was most appro court to hear proceeding,
since most parties and estate were in Man. Seems foolish in light of Hunt-one country
one system, etc. Would NOT extend to international situations. ALTHOUGH Bealscourt has lost the ualms they used to have wrt enf foreign judgments. So not
impossible for it to occur internationally but long way off.
Choice of Law Issues and Property
Page 101 of 101
Capacity: The courts tend to apply, as a universal rule, the law of the situs to govern all
questions relating to one party’s capacity to transfer immovables. See Landry v.
Lachapelle.
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