LAW 363 | Conflict of Laws
class notes | 2014-2015
John Bullock
PLEASE NOTE:
These notes are UNORGANIZED.
With it being a Howell class, I basically transcribed exactly what he said in class, but he
does not always go directly in the order of the provided syllabus.
NB. I think I missed one class?
This is basically good for using the search command to find specific cases to see what
Howell focused on in class.
Please look at my actual outline on the LSS Outline Database to see everything organized.
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PART ONE: GENERAL
INTRODUCTION – CHAPTER 1
 Subject can be divided into three areas:
JURISDICTION – JURISDICTION SIMPLICITER
 Do they have jurisdiction over the parties; can they entertain proceedings; the subject
matter, etc.?
 The authority for a court to accept jurisdiction
 Determined by legislation or Rules of Court of forum
 forum non conveniens
 Over the parties of the dispute
 Over the subject matter of the dispute
CHIOCE OF LAW
 If a judgment is obtained in one jurisdiction, in what circumstances can it be enforced in
a different one?
 Which jurisdiction’s law will be applied?
 To resolve substantive issues
 To resolve procedural issues
 Principal Options
 lex fori – law of the forum
 lex loci delicti – law of the place of the wrong or infringement
 lex situs – law of the situs or location of the subject matter
RECOGNITION AND ENFORCEMENT OF DECISIONS OF EXTRA-TERRITORIAL COURTS
(TRIBUNALS)
 Private Law
 Tort
 Contract
 Property
 Trusts
 Wills and Succession
 Public Law
 Extra-territorial “grants” or “acts of state”
 Penal law/Criminal law
 Administrative law/Labour
 Revenue law
 Social policy
 Can a clear line be drawn between “private” and “public” law?
 Family laws
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 No fault laws
 Wills variation laws
COMMON LAW/CIVIL LAW
 Common law – judge made law
 English law basis
 Recent divergence
 Canada
 England
 US Comparison
 Restatement (First) of Conflict of Laws (1934)
 Restatement (Second) of Conflict of Laws (1971)
 Constitutional dimensions
 Civil law (Quebec) comparisons
INTERNATIONAL CONVERSIONS/HAGUE CONFERENCE ON PRIVATE INTERNATIONAL
LAW

THEORETICAL CONSIDERATIONS

THEORY – CHAPTER 2
INTELLECTUAL HISTORY
 First considered in a significant way in the US.
 England only had to consider after its union with Scotland, but not much actual history.
 Canada didn’t necessarily adopt American jurisprudence despite similarities in
governmental structure and social aspects.
TERRITORIALITY
 Literature tends to focus on choice of law – why would a court use laws of a different
land?
COMITY
 “Enlightened self-interest”/reciprocity – this theory is most often applied contextually
within a “jurisdictional” analysis
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 Instances of deference to foreign law were seen as an attempt to promote international
harmony by accommodating the views of a foreign sovereign in the expectation of
receiving reciprocal treatment.
 From Story, Commentaries on the Conflict of Laws (1834)
 The true foundation on which the administration of international law must rest is,
that the rules which are to govern are those which arise from mutual interest and
utility, from a sense of the inconveniences which would result from a contrary
doctrine, and form a sort of moral necessity to do justice in order that justice may be
done to us in return.
 From Dicey, The Conflict of Laws (1896)
 The application of foreign law is not a matter of caprice or option, nor out of
courtesy, it flows from the impossibility of otherwise determining whole classes of
cases without gross inconvenience and injustice to litigants, whether natives or
foreigners.
THEORIES
 The below theories are principally predicated on “choice of law” analysis
 “Vested rights” – “Foreign created rights”
 This recognition of foreign law does so under the pretence that certain rights had
been afforded to someone in a foreign state, and those rights travelled with them to
the current jurisdiction.
 From Beale, Selections from a Treatise on the Conflict of Laws (1935)
 When a right has been created by law it becomes fact. A right may be changed by
the law that created it, or by any other law having power over it. If no law having
power to do so has changed a right, the existing right should everywhere be
recognized; since to do so is merely to recognize the existence of fact.
 “Local law theory”
 A theory of justice
 “Governmental interest analysis”
 “Most closely connected” Proper Law (Hague Conference on Private International
Law, 1984)
 Some “principles of restraint” on local law intended to further international goals
CHOICE OF LAW – CHOICES

HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, ETC.
 Private International Law/Globalization, Technological Universality
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TUESDAY, 13 JANUARY 2015
 Hunt case adds scope to the Morguard case regarding interprovincial matters.
 We come back to Tolofson later re: choice of law – the leading case.
 Says that, wrt tort, the rule of choice of law is lex loci licti, place where the tort
occurred.
 This rule applies without exception interprovincially.
 Internationally there is narrow discretion to apply law of the forum, lex fori?
 More detail when we get to choice of law in tort.
 For present purposes, on page 52-54 extract, see Laforest saying this hasn’t been before
the court today as a constitutional matter, but can say the rule that is stipulated in
Tolofson is of unquestionable constitutional correctness.
 If provincial legislature would legislate to contrary, may be contrary to
constitutional principle. May violate 92(13).
 Door is left open, suggestion that it may be constitutional if the province would
legislate to an event that affects all parties that are from that jurisdiction.
 Civil code in QC does that.
 Note that the rule specified in Tolofson is of constitutional correctness, even though
it is not argued as a constitutional matter.
 The suggestion is there, in the case, that you choose a different option legislatively at
your peril. Therefore, a strong indication that within choice of law, the Tolofson
principle, particularly the interprovincial aspect, is basically going to be seen as a
constitutional requirement with the possibility of an exception where all of the
parties are from the same province.
 The BC v. Imperial Tobacco Canada Ltd. Is a more recent example in which 92(13) is
looked at.
 A case which is focused on tobacco products and health care issues from the use of
tobacco products, and the recovery of health care expenses by the BC Govt.
 Constitutionality aspect was upheld in this instance. Previous case it was not.
 Court found that, in pith and substance, it was connected with the BC health care
system in which money was expended by the BC govt.
 The legislation in this instance did not go into extra-territorial matters, no breach of
duty, etc, or things of that nature. Those matters were left to ordinary tort
legislation.
 Take a look at page 60 for class actions.
 The issue with class actions and 92(13), the theory is that you should avoid multiple
litigation. It’s not efficient to have litigation in multiple provinces for the same matter.
 Problems can occur, however, and we’ll look later at a situation of the supply of
material re breast implants.
 How do you meet 92(13) when you are not only covering people from BC, but also
AB, SK, MB, etc. within your class action?
 Courts like the idea of class actions as it avoids expense and duplication. Basically,
while you have a core of people within your province, then those outside can be
treated as incidental because the pith and substance because the pith and substance
is within the province.
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PUBLIC POLICY, PUBLI C LAW CLAIMS
 Material is focused, in terms of local law theory, saying that in certain contexts that
involve a foreign law element, the foreign can exercise a discretion to not apply that
foreign element.
 Two contexts in which this comes along:
 Primarily when a province is asked to recognise or enforce a judgment from
elsewhere; or,
 Foreign is asked on a choice of law to apply the law of somewhere else.
 In these contexts the court has certain discretion to decline to do so.
 We can really make a broad division into two halves:
 On the one hand, we are looking at certain categories of law - often these are put
under descriptive terms of “public law”.
 Penal laws – excluded as a category from the subject of conflict laws.
 At their core, are focused on criminal law.
 When you have a foreign element in criminal law, you look at extradition.
 Criminal law comparison with conflict laws is extradition law.
 The reason for this is when you talk about penal law, you’re talking about a
state reflecting its public policy and criminal law is directly reflective of its
public, social, or economic policy.
 Argued that these laws ought not to be projected extraterritorially.
 Certain exceptions, war crimes, crimes against humanity, federal parliament
has authority to legislate extraterritorially against its own citizens (child
pornography, those who engage in activities related to that overseas).
 Look more at penalties for Huntingdon case.
 United States v. Ivey
 Was it a penal law applied when it entered and cleaned-up an
environmental site, then sought recover from a defendant that lived in
ON.
 Found that it was not a penalty imposed, not a penalty imposed, it was an
amount that was tied directly to the cost of cleaning it up.
 It is therefore a compensatory payment, like civil damages.
 Revenue (or tax) law
 Excluded.
 There is some movement in this area.
 Basically, as a category, been seen as an area reflecting
public/social/economic policy.
 As a category, revenue laws are excluded.
 The movement we will see later relates to where there has been a
bankruptcy and money is owing to creditors and a govt may be a creditor in
terms of tax.
 There has been a move to say that foreign govts can share as a simple
creditor.
 Looking to allow govts to recover strictly as a creditor, not with priority.
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

Movement to bring, in certain contexts, revenue recovery within conflict of
laws.
 Is the US govt levelling a site-specific tax.
 Found that no, US govt is not levelling a site-specific tax, only recovering a
specific amount to cover specific expenses.
 If it was site-specific, would it be penal or a tax?
 Focused on amount expended, but simple recovery (civil)
“Other Public Law”
 Not a lot of Canadian cases on this, but there are cases elsewhere.
 Looked at in the Ivey case.
 First question, does this third category actually exist?
 Look at Ivey, ONCA is not keen on this category existing.
 There are some cases, though, that we may want to think about.
 End of this section, pg 5, AG of NZ in Ortiz.
 Legislated that certain items of historical or cultural value could not
be exported from NZ.
 Particular items were carvings of Maori people.
 Had been sold to dealer, then to Ortiz in the UK, and ended up at
Sotheby’s in London.
 NZ govt sought to recover these items.
 Matter went to HoL, found the NZ statute had not been complied with,
and therefore no action could be brought.
 CoA, Lord Denning speaks against the English Courts allowing this
type of recovery.
 Saw it as the public law of NZ being pushed extraterritorially.
Thought the UK courts shouldn’t assist the NZ govt, as they were
seeking to recover on the premise of extended NZ public policy.
 What is the NZ statute doing? Protecting indigenous ownership.
 NZ’s statute was only doing what the law normally does with
property, but basically in a context that was seen as too political.
 Also seen in a context of expropriation, and the idea of expropriation
is seen as very much a matter of public policy or political action to
expropriate property, in this case, from Ortiz.
 Look back to Ivey, the idea of environmental clean-up and recovery of
costs was also seen by some to be a political adventure by a state, in
this case, the US, a political move to say you haven’t cleaned up
properly and we have to for you and recover the cost. Saying they
were taking the action as a matter of governmental action to clean up
the site and recover the costs.
 Is this something that is too far beyond the traditional realm of public
international law to be seen as appropriate subject matter, or is it too
political?
 Hyneman(?) case of MI6 information being published, it wasn’t in
Australia’s interest to protect the secrets of another government –
conflicting with the notion of free speech?
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 Pg 65, cases in this context are sparse in Cdn jurisprudence.
 References to govtl or political.
 Pg 66, insofar as environmental clean-up, the US govt is not depriving the
defendants of any property rights in Canada, so the govt wasn’t trying to
take back any property.
 Wasn’t getting back property, just cleaning it up, but without request
by the Canadian defendant.
 What are the boundaries, what are the parameters?
 Become relevant at the end of the course when we look at the
significant developments in IP and private intl law.
 Hasn’t traditionally been within that realm, but is looking at it through
govt economic monopolies. – public/social/economic policy
 Like environmental, clean-up has become universal, same with IP.
 Maybe it’s not so political now?
 As cultural rights expand, maybe that won’t be seen as so political
either (Ortiz).
 Should conflicts of law extend into these areas? Or are these areas such
that one state should not get into the job of enforcing another states
activities or applying another state’s law or choice of law because of the
public or political feature that’s involved.
 Better to say that in some areas the public or policy matters such that one
state ought not to apply policy from that area in private international law.
(huh? I’m pretty sure that’s what he said).
 Or Public Policy – case specific.
 Natural Justice – recognition and enforcement, a violation of natural justice?
 Tribunal may not have given adequate notice, or an appropriate right to be
heard.
 Issues dealt with in administrative law deal with the idea of fair process.
 In broad terms, basically looks at the procedure, procedural process that
was engaged. In the Ivey case, we did not see the breach of any procedure.
It was an argument that looked at the environmental clean-up. The
grounds that you would ordinarily apply in review don’t apply here.
 Fraud – come back when we look at the Beals case, SCC 2003
 Will see that there are two categories, and the expressions that have been
given to these two sub categories – intrinsic and extrinsic fraud.
 In Beals, SCC says we need to move away from using these words.
 These two subcategories are asked for intrinsic fraud, you are looking for
fraud that would go to the merits of the case.
 Often this comes up before, and enforced in court, when there are new
facts that could not reasonably have been brought to attention at the time
of the hearing, and particularly if the facts were in some way obscured.
 Has there been fraud in persuading the foreign court to give judgment
with that info.
 Historically, courts of the provinces have been split.
 BCCA recognized only extrinsic fraud.
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
 ONCA also recognized intrinsic fraud.
 SCC recognizes both in Beals.
Public Policy
 R&E or choice of law context, asking if the matter offends the fundamental
values of Canadian society. Does it affect the morality in terms of Canadian
morality.
 It may be that Canadian law is different to the foreign law, but being different
is not enough. The whole idea of choice of law inherent in that notion is that
the laws will be different.
 If you are applying the law of another jurisd it will be different in most cases
to the law of your own.
 A mere difference in law is not enough.
 Likewise with recognition and enforcement, the mere fact that it involves a
law that is different is not enough.
 If the law is similar, and in Ivey’s case, the law was almost identical to
environmental clean-up in the US, it removes the public policy issue.
 Similarity, basically raises the question of public policy but dissimilarity is
not in itself a ground to say that you will not recognize, enforce or apply it.
 Must go beyond that.
 If issue violates constitutional, is it fundamental? (what? Missed first
sentence)
 French judgment in Yahoo that said Nazi paraphernalia could not be traded.
 Tried to apply in the US, but said it couldn’t apply in US because free speech
was fundamental. Hasn’t happened in Canada.
 Broadwalk case –
 Case where gambled with money that was borrowed from casino. Two
judgments said that it doesn’t offend Canadian morality that a person
from Canada was gambling with borrowed money. Even though, in ON at
the time, there was a law that prevented recovery of money that was lent
for the purpose of gambling.
 These are prime examples of a local law theory, we won’t recognize and
enforce, we won’t utilize your law as it offends our local policy. The policy of
local enforcing jurisdiction.
 Looking at page 72-73, see a reference to QC civil code, 3081 where this
principle is expressed differently.
 3081 “that something is manifestly inconsistent with public order as
understood in international relations”
 That’s slightly different to saying contrary to public order in QC. In
common law jurisdictions.
 Should QC code be interpreted as emphasizing that it has to be of a
fundamental nature.
 If that is taken, you get a measure of consistency with the common
law provinces, and it says the reference to intl relations must be
quite fundamental (huh?).
 Kuwait Airlines
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

 Interrelation between relations and policy.
 Re the tort of conversion.
 In first Gulf War, airlines is taking action in England in relation to tort of
conversion re 10 airplanes at airport. Iraq took the airplanes and merged
them into Iraqi airlines. In order to succeed, you have to own the airlines,
the airplanes, at the time of conversion.
 Here it says Kuwaiti airlines did not own the airplanes at the time due to
code of Iraq, which dissolved Kuwaiti airlines, which dissolved it and
transferred all to Iraqi airlines.
 English court looks to see what English policy will be on this point.
 Page 76 it is argued by Iraqi counsel that English courts should not
take into account international law.
 In its face, such a submission is directly opposite from QC code 3081.
 Said you shouldn’t judge the actions of a foreign sovereign, such as
resolution that is passed. Counsel said the UK court had no discretion.
 English court said no, we can apply international law.
 Can do it where a foreign sovereign breaches intl law.
 Not inconsistent with English policy.
Society of Lloyd’s
 More subtle, Lloyd’s is an ultimate insurer. Small to bigger to Lloyd’s of
London.
 Lloyd’s is funded by rich people, who ordinarily get much richer by being
part of Lloyd’s. Big returns.
 In this case, not profitable due to injury from asbestos.
 Lloyd’s said to the names, now it’s your turn to throw your money into
this.
 At this point, the Ontario names (70 out of 35,000 worldwide), said there
was a law in Ontario that states if you are soliciting money from them,
they must abide by certain prospectus requirements.
 The court determined that the laws relating to prospectuses were of
fundamental value to Ontario, but the court determined that,
notwithstanding that fundamental value that had not been met.
 Global interest in the insurance market.
 The names had benefited greatly in the past, also have an exclusive choice
of forum and of law, saying English courts and law.
 Doesn’t trump, but strong factor.
 Situation where 70 names had tried earlier to get ON court to take
jurisdiction in this matter but ON courts had declined, so that means they
should likely enforce UK judgment.
 Courts identified 20 points of contact with England in this scenario.
 Court also relied on worldwide comity – names all over the world were
being proceeded against and other countries were doing so.
Mandatory Rule
 If there is, then the courts of the jurisdiction where those rules exist, have
to give affect to that rule. Referred to as a mandatory rule of the forum.
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

 Historically, the Canada Shipping Act did expressly stipulate (Regal Scot),
stipulated that it would apply to all shipments from a port in Canada.
 When legislature has mandated the rule, the courts of that forum have
to give affect to it.
 Avenues Property
 Way in which the statute was worded could be seen as stipulating a
mandatory rule, court cannot use discretion, would have to use it.
 Must consider if, within the foreign legislation, if there is a mandatory
rule that stipulates.
Gillespie Management Corp v. Terrace Properties
 Concerned with a mandatory rule, but the courts of BC, and the legislation
was WA.
 Rule stipulated that in WA it would be unlawful for an organization to
recover any commissions in relation to a contract to manage an
apartment building unless the appropriate licenses from the state were
obtained.
 In WA it was mandatory.
 Particular contract involved a BC company, the proper law of the contract
would probably have been BC law.
 The performance of the K included performance in WA.
 There was legislation that was mandatory, but not directly binding on BC.
 Nevertheless, BC had to respond to that law because the K envisaged a
performance to include a performance in WA.
 BCCA took two approaches.
 Madame Justice Suthen took better approach, said BC law applies. BC is
the proper law of the K. The proper law of the K is where one assesses the
jurisdiction with which the K has the greatest number of connections, or
the parties may choose a particular law expressly or it may be implied.
 J Suthen said that was BC.
 But, because K required so much performance in WA, BC had to take
account of the mandatory nature of the law in WA.
 Justice Suthen said BC policy would acknowledge and give effect to that
law insofar as the activities of the company involved significant activities
in WA.
 In the appeal, Justices Cumming and Legg? stepped back from finding one
proper law of the K.
 Divided choice of law.
 Said the choice of law of the K is in general BC law, BUT in relation to its
mode of performance in WA, it is WA law.
Look at article 3079 of QC Civil Code, authorizes courts where legitimate and
manifestly preponderant, the courts of QC may give effect to a mandatory
provision of law of another country. Court has to consider the purpose of the
provision and the consequence of its application.
Difference between Beals and Pro Swing.
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 Beals deals with enforcement of an international monetary in personam
(?) judgment. Thrust of Beals and the majority was that no further public
policy defences needed to be considered in the context of that case.
Majority left door open to consider further defences, but in the context of
that case decided not to. Context was to apply the Morguard principle of
full faith and credit to international as well as interprovincial.
 Dissenting judges were seeking to expand the defences, saying if you
are going to expand recognition and enforcement, you have to expand
the defences as well.
 Majority judgment by Major, while leaving open for future, said no for
the present case.
 Seen as monetary, as debt judgment.
 Pro Swing was non-monetary. Judgment in the nature of injunctive orders
and contempt of court orders.
 Very problematic that non-monetary orders would be enforced.
 Canada put out on limb in Beals to decide to give full faith and credit
to foreign judgments re: monetary, then Pro Swing came along with
non-monetary.
 Dissent in Beals became the majority in Pro Swing.
 Said non-monetary orders could be enforced, but a great deal of
scrutiny and policy were to be applied to non-monetary orders.
 Penal Laws
 Huntington
 Joint and several, misrepresentation, the whole of the capital stock had been
paid but it had not.
 Creditor brought an action against the directors.
 Question was, would the judgment of the NY court in favour of the creditor,
be enforced in Canada against the director of the company that moved to
Canada.
 Court looks at the nature of penal, goes beyond criminal law.
 In criminal, equivalent is extradition.
 Penal provision goes beyond that and gets into regulatory matters for which
a penalty is imposed.
 How can you identify a penalty? Directed to a number of things: is the
proceeding at the instance of the state? Proceeding that is seen as a
punishment for a certain activity that may have occurred in the place of the
law? Something that is for the benefit of the govt or the community at large of
the state that passed the law?
 In this case, court said no, this law is not.. provision basically gives a civil
remedy to creditors to sue civilly the directors of the company, doesn’t
stipulate any monetary amount. An action that is brought between creditor
and director. No action by the govt in itself. The court contrasted the
particular clause we’re looking at with another that said “failure to use the
word limited produced a penalty recoverable by the DA of the district
concerned, the money recovered would be paid over to the proper
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

authorities for the [something] systems of that county” - court said that was
an example of a penal provision..
Simply providing a remedy to sue someone who is residing in Canada is not a
penal provision.
Things to look for: is it a government taking the action? Then getting close to
being seen as penal.
 In the Ivey case it was the govt taking action. BUT when the court
examined the situation, it was an amount of money calculated strictly on
a compensatory basis.
 If govt is taking the action, look very closely at the situation. Prima facie in
a penal situation, the govt or the community that represents the govt, or
some official appointed by the govt.. then careful scrutiny is required..
though still not conclusive as in Ivey.
 Tax
 Talking about recover of taxes? Or something else that just happens to have a tax
element somewhere in there?
 It is seen as a trite rule that tax or revenue of a foreign sovereign is not to be
enforced in Canada.
 The reason for that is tax law is a law or area of law that very closely follows
socio-economic political objectives of a foreign sovereign.
 However, need to look carefully to see if the particular law is or is not.
 QC article 3155 is to the same effect as the common law in relation to revenues
law in general.
 In Ivey – is this a site specific situation? If so, not enforceable.
 Court said not a tax, it’s compensation.
 No formula or percentage, strictly a recovery of the actual amount that was
expended by the US govt – not a tax.
 Key case in this context is the Harden case (109-110)
 Harden – basic proposition was made clear, this case too involved a US govtl
activity but the US argued that we know there is this exclusion in relation to
taxing extra-territorially but only against its own citizens.
 We can’t sue directly in BC to recover tax, but we brought a suit in the US, but
we’re now bringing the judgment to BC to enforce in BC.
 In the Harden case this was rejected on basis that the US govt was seeking to
achieve indirectly that which it could not achieve directly.
 Characterization
 May be recovered in some situations, depending on how we characterize this.
Is this a tax case, or a bankruptcy case?
 Re Sefel Geophysical Ltd and Re Matol looking at a context where the court
characterized the nature of the case as basically bankruptcy and insolvency
rather than tax collection. In both cases, the court said that, in a bankruptcy
or international insolvency, (Matol case involved scheme of arrangement in
relation to insolvency of a cross-border international entity), in these cases
the money owed to a foreign govt could also be seen as money owed to a
creditor in bankruptcy or insolvency.
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 Therefore not characterized as tax.
This movement is to say we’re in an environment of international business,
and when things go wrong, there needs to be a cross-border way to recover.
 In this scheme, so long as there is a notion of reciprocity between the govts –
an understanding that Canada would be treated similarly if the litigation
were in the US – if so, and so long as the govts do not claim any sort of
priority, govts can be seen simply as a creditor in bankruptcy.
 That fudges the principle, because it is a tax, and that tax probably reflected
something of pubic policy.
 Reciprocity and comity are emphasized, though primarily as bankruptcy and
insolvency.
Indirect Enforcement
 Stringam v. Dubois
 Divisive issue – here you have a situation of where a deceased person was
domiciled and resident in AZ.
 Had a farm in AB, left the AB farm to her niece.
 The US has significant estate tax, and the farm was worth $431,000 at the
time.
 Assessed estate tax under US law was $149,000.
 In looking at this case, the court came back to the heart of the case, that
said you cannot achieve an enforcing of foreign tax indirectly when you
can’t achieve it directly. Harden case was cited.
 Court did look at another context, looked at a BC case, the Reid case. This
case, along with other cases, looked a situation from the UK where there’s
also high estate taxes, in the UK, as in the US, the difficulty for the
executor or the trustee is, if the executor pays out without paying the tax
to the UK/US govt, then the trustee can be personally liable to the UK/US
govt.
 Said now I need to be reimbursed by the beneficiary of the trust in BC. BC
court said it wasn’t really tax, it was reimbursement of a trustee for
expenses in the administration of a trust. Pragmatic, but the AB court
declined to follow the Reid case and found that it was indirectly seeking to
enforce a tax that couldn’t be done directly.
 So, you have an interesting conflict – an example of characterization: are
you just reimbursing the trustee who has a legal obligation in his/her
jurisdiction? Or are you indirectly paying a tax that cannot be done
directly.
 Must be resolved pragmatically, ultimately through some sort of
agreement.
 Reid found a pragmatic solution, by finding it as reimbursement rather
than indirectly taxing.
 The way things would follow through, you could get a complete standoff
in this area.
 Old North State


14
 Defendant was supplier of equipment for brewing of beer. Supplied
equipment to the plaintiff in NC. There are things that went wrong with
the supply of the equipment.
 Plaintiff had a micro-brewery, and the equipment was just not working
properly.
 Defendant required the cost of the equipment to be paid upfront 100%
before the equipment was delivered to NC.
 It didn’t work, despite efforts by the defendant to go down to help.
 Plaintiff filed in NC, defendant decided not to go near NC.
 Default judgment was issued, and in addition to any compensatory
damages, others were on the basis of an unfair trade practice.
 NC judgment was brought to BC to enforce.
 Two things are relevant, two clauses in the particular case
 1. Choice of law to be applied would be the law of BC.
 2. Stated that the parties will attorn to the foreign laws of BC.
 Court said not exclusive choice of BC, simply that the parties will attorn to
BC, but not that BC was the only place that could hear the case.
 NC had a real and substantial link to the case.
 Also the choice of law clause, here it’s useful to be quickly introduced to
choice of law.
 Choice of law in common law jurisdiction, we’re talking about foreign law
being proved as fact.
 In civil law jurisdiction, the choice of law can be taken judicial notice of by
the judge.
 Can simply apply the foreign law.
 In common law jurisdictions, the foreign law is treated as a fact, and the
parties has to plead the foreign law and then bring expert witnesses to
the court to give evidence as to what the foreign law is.
 Of course, defendant didn’t show up.
 NC court does what any court would do in CL jurisdiction, makes an
application of its own law.
 Domestic law is applied because that’s the law the court is capable of
applying when it doesn’t have evidence of a foreign law.
 So, useful to have that point in mind.
 So many cases that raise choice of law incidentally.
 Other interesting feature in this case is of policy.
 NC introduced treple damages. Was that contrary to public policy, court
said no, process in Canada under competition where treple damages.
 Asses another area that is difficult, when it comes up for enforcement, the
enforcing court can’t look at an error of law.
 If there is an error of law that doesn’t go to one of the defences that we
looked at, it’s the court that gave the judgment that has to be looked at to
correct the error.
 If there was an error, BC court couldn’t correct it.
15
DOMICILE AND RESIDENCE
 Area seeks to find, for individuals, in certain circumstances, a law that is relevant to that
individual.
 The law which determines the rights of persons and sometimes that law is focused on
where that person is domiciled. This can come up in a number of areas, generally in
wills and trusts (succession), the capacity to make a will is law of the country or
province where the person is domiciled (as to whether that person has capacity).
However, in relation to land, it’s covered by the law of the state in which the land is
located.
 Comes up a lot in area of wills variation where the testator has not made adequate
provision for the maintenance of spouse of children depending on nature of legislation
(dependent or non-dependent children).
 Depends on jurisdiction, but if you want to use the wills variation act in BC, you must be
domiciled in BC.
 Subjective intent of the person concerned, that element is focused upon whether that
person intended to stay in the jurisdiction where they were located, or did they intend
that jurisdiction to be temporary.
 Domicile of origin is seen as residual domicile and given significant weight.
 If you make a choice to change, that may displace, but the evidence needs to be
strongly established that by choosing a different place, you’ve changed.
 To look if you’ve displaced the domicile of origin, etc.. it’s more strict.
 Have you adopted a new domicile of choice, then you start looking at facts as to
whether you’ve adopted a new place rather than displacing an old place.
 Have to compare domicile with residency. Residency can be divided into habitual
residency, ordinary residency, or residency. (in order of strength)
 Residence is complicated further that stipulations of residency are normally
statutory.
 If a voting statute, asking are you ordinarily resident here, then shouldn’t deprive
people of right to vote.
 Becomes context relevant.
 Domicile doesn’t take into account the context.. a standalone area of law without
regard to a substantive context.
 Wills variation.. next class.
 Domicile is inherent and always has been in conflict of laws.
 Mainly common law jurisdictions, civil law jurisdictions frequently look at
citizenship.
 Common law is frequently focused, for many things, at domicile.
 Statute has often moved to residence, and has addressed habitual residence,
ordinary residence and simply residence.
 One of the reasons why legislation has moved to residence is the difficulty from a
factual point of view in deciding domicile.
 Domicile involves a requirement that the person concerned subjectively, but
determined objectively, (because normally that person is dead), that that person
intended to remain in that jurisdiction permanently or indefinitely.
16
That future element that makes domicile problematic.
Not just looking at where you’ve been, or where you are, but what is your future
intent in relation to where you see you will be in terms of place.
 That which has proven to be problematic, therefore legislation moves to
residence.
 Residence is not so easy either, still features of difficulty with residence.
 Domicile is determined always lex fori. (The law of the forum determines the
domicile)
 Different forums have slightly different points of emphasis.
 When talking about deciding domicile, we are always applying the law of the
court that the matter is before.
 The law of the jurisdiction, lex fori, that determines domicile.
 In general terms domicile can be defined as the law of a location by which
persons should be governed in certain matters.
 In certain matters, in conflict of laws, in the area of wills and trusts and
succession, the capacity to make a will that depends upon the law in relation
to the domicile of the person. In terms of wills variation, that depends on the
domicile, wills variation law in the jurisdiction that you’re using.
 For marriage, formal validity, the law of the place where the marriage is
celebrated.
 Essential validity is the domicile of the parties.
 Domicile is one’s personal law, and there are certain contexts where you
have to ascertain one’s personal law.
 The law of the community with which a person has the most significant
connections.
 When we begin looking at domicile, we start off with a domicile of origin. A
person can have only one domicile at any one time.
 You can have numerous places of residence, but only one domicile at any
one time.
 The first place is the domicile of origin, largely where you were born.
 The domicile of origin is frequently referred to as a residual location.
 If you do not have another place, the residual location or (like a reversion in
land) kicks in and that is your domicile. Sometimes referred to as revival of
domicile of origin.
 At least one province (MB) has removed the revival of domicile of origin.
 In England, if you’re looking at domicile in the UK, it’s very hard to remove or
abandon. Not so in Canada, but apart from MB, the revival can occur, but it is
not of the same strength, though not of the same strength as revival in UK,
noted in the Foote case, but no different from any other domicile of choice.
 For above:
 Domicile of Origin
 Born
 Residual
 Revival of Domicile of Origin
 Domicile of Choice


17
 Have you abandoned the domicile (of origin; of first choice)
 Have you adopted the domicile (of first choice; of second choice)
 If you’re talking about abandonment or adoption, it’s more difficult to conclude on
facts, that there has been an abandonment, than it is to conclude on facts that a new
place has been accepted.
 You can always find that a person has maintained some links with their previous
place, so if you’re emphasizing an abandonment, you tend to focus on links, if
you’re emphasizing adoption, look at the facts that connect to the new place.
 In close cases, you can get a different result depending on whether you’re
looking for abandonment or adopting the new place – a slightly different
emphasis.
 Also must be alert to the fact that, in a federation, we have to demarcate between
federal and provincial(/or state) and that generally depends on the area of law that
is in the background.
 If the area is in regard to federal law, then it’s domicile in Canada.
 If provincial, then domicile in province.
 If looking at intent, may say permanently, may look at indefinitely though – have you
a plan where you intend to move elsewhere at some point?
 That’s what causes some of the difficulties in this area.
 The intent about moving somewhere else must be more than a vague possibility
or wistful thinking.
 A number of situations where people came to Canada from Eastern Europe at the
time of the Soviet Bloc, and there will people who would say “I will return home
if my country ceases to be occupied by the Soviet Union” – this would fall in the
category of wistful thinking (at the time).
 If I were to win the lottery I would go and live in Mayfair in London – category of
wistful thinking.
 Must take into account sentiment, but not too much. “Ultimately want to die in
native country” – wistful/sentimental thinking and not to be taken too seriously.
 Must separate those things out.
 On the other hand, things can be more important.
 Firstly, immigration, are you a legal or illegal immigrant? In many respects,
doesn’t matter, depends on subjective intent. However, if you are not a legal
immigrant, then arguably that could be a factor weighed against intent to stay.
 Most place have tended to begin to de-emphasize the difference between
legal and illegal immigration.
 Have you taken citizenship? There can now be different types of that, some
countries will not take a new citizenship.
 Citizenship can be a factor, but also, where is your family?
 Original family (parents) how do you regard your relationship with the
country where your parents are? Do you go back frequently to visit parents?
Do you feel as a visitor? Or do you feel as though you are “going home”?
Where is your focus? Where are you the visitor?
 Employment.
18

If you have a permanent job with good prospects that you can use that to say
you’re here indefinitely because of your position.
 If the employment is clearly for a limited time, or type of employment that
you are there because you hold a position in Canada, then it’s not relevant to
say that you’re domiciled in the place where you are.
 Other factors
 Where are your future financial arrangements? Where are your pension
plans?
 If in Canada, when you leave, you may just be visiting elsewhere.
 If it’s in your place and origin and you’re still contributing, that’s a factor.
 Where is your healthcare?
 Provided here or there?
 De-emphasize what was discussed in the “Agulian” case.
 Silly comments, such as “Greeks are very attached to their homeland”.
 “A Greek Cypriot in Cyprus is less attached to his homeland as a Greek on the
mainland”.
 For infants, generally look at the domicile of the parents.
 Historically, if married, looked to the domicile of the father.
 Unmarried, looked to the domicile of the mother.
 Today focus is on the parent of the child with which the child habitually
resides, or which country does the child spend most time in, etc.
 Must more factually based today than historically.
 Agulian & Anr v. Gyganik
 Born in Cyprus, resided almost all adult life in England (19+) but maintained
strong ties with Cyprus.
 His daughter was sent to Cypress to be educated, sent money to Cyprus, bought
property in Cyprus, and had a prospective business interest in Cyprus.
 Died at 63, had up to the time of his death, generally a string of short term
girlfriends but for the last two years or so before he died, had a relationship with
a woman and was engaged to be married to her, but hadn’t actually married.
 Trial court gave weight to the personal relationship, indicating a domicile of
choice in England, emphasizing that he had entered into this relationship, even
though this woman lived illegally in England.
 Nevertheless, TJ emphasized that.
 Appeal court said that was too much emphasis to put simply on a relationship.
One had to look at the whole time of his residency in England, and the court of
appeal accepted that he was habitually resident in England, but could not come
to the view that he was domiciled in England, because domiciled required
evidence that you had abandoned or adopted.
 Looked at domicile of origin, and in the UK it’s very hard to remove domicile
of origin.
 Appeal court said too much weight in Trial court was placed on engagement and
plans to marry.
 Would it have been different if they were already married?
19
Standard of proof was the civil standard, but had to prove clearly and
unequivocally that there was an intent to change the DoO.
 British, demonstrate clearly an intent to either accept a new domicile or
abandon previous.
 If this were to come to Canada, what would we say?
 Moved to Canada since 19.
 Would say domiciled here.
 Urquhart Estate
 Born in NZ in 1960s (no.. first marriage in 1960s), first marriage in NZ, broke up,
and went on yacht around the Pacific, came to Vancouver where he was a
journalist, then went to DC where he was working with the NZ embassy.
 Met second wife in DC, moved to Ottawa in 1967, child born in 1968, divorced,
stayed until 1981, roomed/rented, but had a friendship with person described as
Hyde, family friend, deceased looked after Hyde’s children for him.
 Had a room at Hyde’s place, the room became his mailing address, address of
his driving licence, etc.
 Rented around though, 1974-75, rented in a farm in QC, weekend home in
QC, in 1977 he met a third person, Taylor, stayed with her in her apartment
in Ottawa, but then moved to DC together for employment then moved to FL
at his employer’s request. Died in FL, but had been offered a position in NYC
and was contemplating taking that position.
 Where is he going to be domiciled?
 Court said ON, gave a great deal of weight to the room in Hyde’s home.
 If one applies a test of living indefinitely, then one would focus in on the
room in Hyde’s home.
 He had never abandoned Ottawa.
 If, instead of looking at abandonment, he hadn’t abandoned the room in
Hyde’s home, if we look at if he has adopted somewhere, we may have said
US, but it would have been difficult to say DC, FL, or NY to which he may have
gone.
 What was the nature of the employment? Immigration status? Etc.
 In any event, Court said Ottawa, couldn’t say FL, was going to go to NY, didn’t
have a green card, but other cases have de-emphasized il/legality of an
immigrant’s status.
 Room in Hyde’s home was the key feature.
 Gillespie (page 138) Unassigned case
 Court said – we can’t decide this matter on a motion, we need to go to trial.
 Born in ON, 1922, moved to AB 1939 when 17, married in AB in 1949,
businesses in AB, had four children, stayed through until the 1970s then bought
hotels in BC.
 In 1979, separated from wife in AB, and expanded his business into BC.
 Moved to BC but maintained a penthouse suite in one of his hotels in Calgary.
 In 1983, entered into a same-gender relationship in BC, but maintained
penthouse in Calgary, expanded business in BC, bought more hotels, very close

20
to his family in Calgary, had his mail addressed to Calgary penthouse, in effect,
maintained two residences.
 Most of his personal effects in Calgary, had an AB drivers licence, had healthcare
in both, dental in AB, passport had Calgary address, filed taxes in AB, but
received homeowner’s grant in BC, for which one needs to focus on the principle
residence which was BC.
 Received medical treatment in BC, entered into joint-ownership in BC, spent
most of his time in BC, but made visits back to Calgary, died in 1991 in BC
hospital.
 Court said you need to go to trial.
 Where was the permanent or indefinite domicile?
 Foote Estate (Re)
 Very wealthy person whose estate was in the range of $230 million.
 He had moved around quite a bit, his domicile of origin was AB, stayed there
until 1967, 1967 went to AUS, on to Europe, then to Japan.
 First marriage ended during this period, took up with a second person, at this
stage went to Norfolk Island off coast of Australia.
 Built a very large homestead there.
 Maintained that homestead right up until his death (never abandoned) but from
1991 to 2001, acquired in that period condos in BC and stayed for about 3 years
in, 2001-2003 was in Victoria during the summers, then went to AB for
treatment because he was suffering from cancer.
 Went to a clinic in AB. Had talked about returning to AB, but never gave up his
home in Norfolk Island, and perhaps it was unlikely that he would have moved
from NI without selling his home, and had made no move to sell his home.
 The thought was that one wouldn’t leave NI without first selling the home there,
as opposed to moving to AB and getting an agent to sell the home in NI, which is
quite feasible, but it seemed that he was too attached to that home to move
without first selling that home.
 Some suggestion that he intended to live permanent in Victoria (BC), but he
moved quickly in the end because he had an adverse medical diagnosis and
thought that he would get back to AB. Why? For treatment? Very likely. For the
purpose of dying in one’s place of origin? Maybe.
 What was the significance of returning to place of origin? If this was decided
in England, AB would likely have been given a lot of weight.
 He left all of his money, pretty much, to AB charities.
 Can rule out Victoria, Japan, Europe, but the two key places where the focus
came down to, were NI (administered by Aus) and AB.
 Move must be voluntary, not dictated by business, health.
 Court was unhelpful to say where does one intend to spend the end of one’s
days.
 Court thought he would have likely moved at some point but he hadn’t yet
displaced NI, no intent to abandon NI.
 When looking at abandonment, tend to look at, well what have you done?
 Adoption – what have you done to adopt?
21
Why did he go back to AB? Wanted to? Or because he heard they had a good
clinic that could help him?
 It’s a very tricky situation.
 Residence
 Habitual Residence
 Canada v. Wall
 Residence immediately before three of four years immediately before you
seek citizenship.
 Given that it is a statutory area, the inquiry is focused on substantive content,
courts have said in citizenship context, there are tests – one is body, one is
mind.
 If you are physically present for 3 of 4 years prior to applying for citizenship,
then your residence will be in Canada.
 For the mind test, you are looking for a place where there is your centralized
mode of living.
 On the facts, in this case, the person concerned was a US citizen who had
attended from 1983-1987 a bible college in Canada, and 1987-1991 was a
resident in Canada but immediately prior to her application (married to
Canadian and children were Canadian) had gone to New Guinea.
 Family were missionaries, basically operated for 10 years in NG, the family
were with her in NG, they had a system in the organization they worked for,
whereby one would go home for a period of a year then spend 4 years away.
 Looked like most of time from 1992-2002 that they were in NG.
 In terms of body, in four years, 1422 days, only 38 of those days were in
Canada.
 In terms of mind, where was her centralized abode? Where was her
headquarters? Canada or elsewhere?
 Came to no conclusion here, sent it back to citizenship board to do a better
job of sorting out the facts. What was her centralized place of abode.
 Court discusses ordinary residence and habitual, and says the expressions
differ (page 175 in the Adderson case)
 Ordinary is of a slightly lesser qualitative than habitual residence.
 In Agulian person was habitually resident, but there is a difference between
the two.
 The woman paid her taxes, for revenue purposes, would say that in her mind,
it was probably Canada, her children were sent back tot Canada.
 Her organization was one that spanned both Canada and the US, and she was
a US citizen, but had done her training in Canada.
 In that context, one would say that the residency would probably be met.
 Adderson
 Looking at the last joint habitual residence.
 Wife was American, had acquired Canadian citizenship, husband was born in
Canada, married in Calgary in 1970, lived there until 1982 when separated.
Wife moved to HI, came back, lived until 1984 in AB.

22

In 1984, both decided to go to HI, initially she went first, lived with friends,
got a job in HI, husband came, unable to find work, left, came back to AB,
though he went on to CA.
 For divorce purposes, where was the last joint habitual residence?
 Very close to domicile, but no need to have a subjective intent of permanent
or indefinite.
 Still a strong test, very close to domicile. Was it HI or was it AB?
 The fact that it spoke of joint made it a bit easier, court was able to say that
the husband never adopted HI.
 Wife maybe? But don’t have to show an intent of permanence or indefinite
location.
 Court said AB was the last joint place.
 Ordinary Residence
 Quigley
 NS statute, wife filed for divorce in NS, husband filed in TX.
 Where was ordinary residence? Immediately resident for a year for NS filing.
It was a very highly specific fact situation.
 Court looked at fact that she had a law practice in NS, maintained
membership in the NS bar, family were in residence in NS, bank and
insurance in NS, and she intended to return to NS if the parties were unable
to reside together as a family in TX.
 However, she did have a fixed address in TX, her son was attending school in
TX, her son’s primary care giver went with them to TX, and a number of her
horses and an attendant to look after her horses went with her from NS to
TX.
 Court came to view that TX was not simply a visit, that she was ordinarily
resident in TX. The fact that she intended to return to NS if the parties were
unable to reside together in TX as a family would be important from a
domicile point of view.
 Here the test was simply ordinarily resident.
 Where is customary place of abode?
 Moved to TX, took family, caregiver, her horses, attendant, etc., all with
her.
 Therefore, ordinary residence is TX.
 Haig
 Referendum for Charlottetown Accord.
 Person from ON, moved for four months to QC.
 QC statute said you have to be domiciled in QC to vote in referendum in QC.
 He hadn’t established domicile to vote in QC, so could he vote in ON?
 In ON, the legislation said he had to be ordinarily resident in the place
outside of QC in which you were going to vote.
 He had moved, just like the woman in NS had moved, his ordinary residence
was now QC.
23

He couldn’t vote in QC, didn’t meet domicile, couldn’t vote in ON, wasn’t
ordinarily resident in ON.
 SCC majority said well, that’s the position.
 Justice Corrie gave compelling judgment saying when you’re dealing with a
voting statute or situation, you should apply policy to facilitate the obtaining
of a vote, and this person should not have been seen to have fallen between
cracks in the floor.
 Ordinarily resident in ON? No – left ON. Ordinary resident is not a tough test
to meet. Ordinarily resident is now QC. Domicile had not yet been met in QC.
 Residence
 Key difficulty with domicile is the subjective intent that must be determined
objectively.
 Residence removes the subjective intent from domicile. Once you remove that,
habitual residency is basically the same as domicile.
 Term habitual arose from Hague Conference on private international law,
intended as concept to avoid difficulty inherent in domicile.
 Still looking for some qualitative feature as to the residency in a place.
 In Agulian, though domicile wasn’t established, found the person was
habitually resident.
 See discussion on pg 165 in Adderson, key statutory test was last joint
habitual residence.
 Different from domicile, no prospective element.
 Difficulty comes in when you try to articulate what is more than ordinary
with cases come to do with being in a place for health, education, work, etc. –
could all apply to ordinary.
 Line between habitual residence and ordinary residence is not so clear.
 We know there is one though, because the courts have said habitual
residence is more than ordinary residence.
 Habitual residence needs to focus on something otherwise than for a
known limited term. If there’s a limited term, in Howell’s view, though the
cases aren’t altogether clear, then you start to slip into ordinary residence
from habitual residence.
 Saw ordinary residence in Quigley with reference to 12 months ordinary
residence for filing for divorce. In that case, the court was looking at the
relationship between ordinary residence and simply a more limited type of
visit like residence. The court noted that ordinary residence was less than
habitual residence, but went on to say that the dividing line between
ordinary and just residence - ordinary residence must be more than casual
and more than a sojourn, more than a deviatory stop. On the facts of this
particular case, court emphasized that the person had moved aspects of her
life such as horses and trainer, family and caregiver for family, had all moved
to TX – therefore not a casual period in Texas, despite being for a limited
time. It was however, not casual or short-term, or a visit.
 When looking at ordinary residence, may be for a limited term, but must be
more than for just a short period of time. Must have to move your home.
24


For residence, we saw residence in the Wall case, and also saw in the Haig
case, ordinary residence, but in both of those cases a significant influence in
terms of the substantive statutory subject area with which the inquiry was
involved. In the Haig case it was voting, J Corrie, saying that when one looks
at an expression that involves residence, one should take account of the
context, particularly the right-to-vote context. If you follow Corrie, you would
accept less of a presence than what you might in another context to
constitute ordinary residence.
 In Wall, that spoke strictly of residence, but in a context of gaining
citizenship, the court seems to want more than what you would normally
find in just residence. The court looks to body and mind, and looks to a place
of saying where is your centralized place of living, are you returning home to
Canada or simply visiting Canada?
 Those types of test would not ordinarily relate to residence because that’s
simply where you are.
 In the context of citizenship, more was sought for residency. In Haig,
more was wanted but statutory context was emphasized and perhaps
required less.
 Do we improve certainty, is it better to be focused on residence rather than
domicile, do we solve some problems of domicile but create other problems
in its various elements. How sensible is it to look at the substantive statutory
context, we might say it is sensible because we are interpreting a statute. The
result, however, will be that we have different requirements for the same
expression between different substantive contexts – no notion of uniformity.
 Do we need uniformity focused on those particular descriptions or can
we get a uniformity focus on those descriptions.
 There has been some statutory modification in a couple of provinces.
 QC – look at Civil Code, article 75.. page 141.
 Defines domicile with regard to one’s principle establishment. One’s
actual residence plus an intent to make it one’s principle
establishment.
 Then deem domicile to be your residence.
 Also allows a party to make an election in advance as to the domicile
for particular circumstances.
 Look at MB, pg 123, legislation has removed the common law on domicile
and brings together domicile and habitual residence into a merged test.
 Apply the statute as a mandatory law of the forum, then looks for
habitual residence and domicile at principle home and one’s intent to
reside there.
 Presumed to reside indefinitely at the place of principle home.
National Trust Company Ltd.
 Says domicile of corporation in relation to its constitutional establishment is
the place where the corporation was incorporated.
 Can be resident in many place, but where domiciled? Place of incorporation.
25
PART TWO: JURISDICTION
PARTIES TO AN ACTION (“STANDING TO SUE”) – CHAPTER 6
 A “Juristic Entity”
 Start off looking at position of parties in this situation.
 To be a plaintiff or a defendant.
 If one is human, no great difficulty.
 If a Corporation, in some jurisdictions, there may be some issues that have to be
dealt with. First of such issues relates to what’s illustrated in the Success case.
 BC also had provision to that effect – under the BC BCA we don’t stipulate that
requirement.
 Looking at International Association of Science, in that case, in discussion that
took place in AB with references to SK cases, the court said, alright the statute
covered that, but for other aspects then an extra-territorial company will be
recognized if it is incorporated elsewhere. Yes, recognized, and a corporation is
recognized if it is a defendant.
 If an unincorporated entity, then there is difficulty in being a juristic entity. You have
to look to some process, whereby a statute will have recognized you as an entity. Or
whether a statute has required some sort of registration, like a society, if you don’t
fit within those categories, then the entity itself is not a juristic entity – rather the
members are the ones who are the juristic entities and that gives rise to other
difficulties.
 In terms of our domestic law, it is difficult, you have to look for some provision,
either recognized judicially or by legislation, to say that although you’re
unincorporated, you can still be a juridical entity.
 In other terms, unincorporated entities are not a juristic entity.
 Kanza
 When you are international, or sometimes inter-provincial, here when you are
(extra-territorial) the first rule is that you look at the forums conflicts of laws.
 Says juristic entity: yes if, a juristic entity at the place of origin.
 If you had associations that were not incorporated, but were not Canadian,
defendants said they cannot seek a declaration in the courts, international
associations were saying neither defendant had any standing for owning certain
assets in dispute.
 These Swiss associations were asking for a declaration that said, regardless of
the divorce, neither person has any standing for the particular assets.
 This is international entity, so first we must look at AB conflict of laws, and when
one looks at AB conflict of laws, conflict of laws said, if unincorporated entities
are permitted to be juristic entities in their place of origin, then they can be
juristic entities here in AB.
 First thing, look to conflict of laws, directs you to look at whether it is an entity in
its place of origin.
 Business Corporation Act
 Success International Inc.
26
Ontario, as well as other provinces like AB and SK, have a provision that
stipulates, by statute, that a corporation cannot be a plaintiff with respect to
maintaining any action or proceeding in respect of any contract made by it unless
it is registered or filed as a extra-provincial company - if it is doing business in
the province.
 Is the corporation doing business in the province?
 If yes, is it registered or entered as an extra-provincial company?
 If not, then it cannot sue on any contract from the position of a plaintiff.
 Illustrated in this case.
 Argued that they were not doing business in ON, just doing one big single
transaction. That is to say, we are taking equipment from a plant that
manufactured tires, taking it from the plant to China. That’s the only activity in
ON.
 Success was a NY-based company.
 Court said they were still doing business in Ontario.
 Magnitude was significant, large staff, team approach with other company,
and the contract with the other company and for disposal is relatively longterm.
 Therefore, doing business, not registered as extra-provincial company, must
comply with the restrictions that are stipulated or you cannot sue.
 Bumper Development Corp. Ltd.
 Illustrated nicely in this case.
 Contrast to Ortiz case, as discussed previously.
 Here, you have a situation where a bronze Hindu idol was discovered by some
farmers in India.
 Idol made its way, by various hands, to England.
 It was an artefact of some value, and came to be put on sale in England.
 There was an intervention by English police who seized the idol.
 Suit was brought against police for conversion by the person who claimed
they were the owner of the idol.
 Certain other claimants then came forward to participate in the litigation.
 One was the government of India, the government of a state in India (TamilNadu?), both governments had standing. Thirdly, the temple itself sought
standing.
 Nevertheless, the law in Tamu? Recognized the temple that had ceased to exist
several hundred years ago. Law recognized the temple to have the right to sue or
be sued – recognized as a juristic entity.
 Didn’t actually exist, but sued by the concept of its “next friend” for an
authorized person acting on their behalf.
 Did that temple have standing? English court looked at forums choice of laws,
and choice of law said that, if the temple is a juristic entity in its place of origin,
then it is a juristic entity here (England).
 Court said yes, temple by its next friend, is a juristic entity in England.

27
Also brought up whether a certain 12th century noble, who had given the land
upon which the temple stands, had standing, and the court decided it was not
necessary to decide whether the deceased 12th century noble had standing.
 Choice of law from the conflict of laws, choose the place of the origin, are they a
juristic entity there? If so, also here. If it was domestic, then they would not have.
 Ortiz – Again
 NZ govt seeking to recover certain artefacts in relation to indigenous Maori
people.
 Denning had said that the matter was too political for the court to get into.
 Same thing was happening in the Bumper case, not to the same issue.
 International Association of Science and Technology for Development
 Re Indian Residential School
 Note on page 615.
 Here, a suit was brought in relation to some of the abuse in residential schools,
against the “Roman Catholic Church”.
 Within domestic law, the Roman Catholic Church as such is not a juristic entity.
 Certain bishops or certain dioceses can be a juristic entity but not the whole
church.
 It was argued that, well the RCC is a foreign organization and therefore should
we not apply our conflict of laws and say, is the RCC a juristic entity at its place of
origin.
 Matter wasn’t proceeded with.
 Immunity from Suit
 There but not spending any time on it.

ASSUMPTION OR JURISDICTION: THE EXISTENCE OF JURISDICTION OR JURISDICTION
SIMPLICITER
 Typical tests are service within the jurisdiction where it occurred, consent (to foreign
laws), or attornment. Only three situations that traditionally would allow a jurisdiction
to be taken.
 Service within the jurisdiction – within common law, it could be a fleeting presence,
even if just passing through a jurisdiction and are served with a summons, that would
be effective.
 Parties within the jurisdiction
 Maharanee of Baroda
 Painting was purchased in Paris, she brought it to England, the defendant lived
in Paris, carried on business in Paris and NY, and had an agency of some nature
in London.
 He was visiting races in London, and that’s when the service of documents was
made on him.
 Because the painting turned out not to be an original, that he said it had been.
 So, his presence in England was as a visitor, and though the court indicated that
it was poor manners to serve someone at the Ascot races, notwithstanding that,
it was still regarded as an effective service.
 Even though it was a temporary visit and not in a typical situation for service.
28
 Forbes?
 In this context, there may well be a difference with court jurisdiction and
proceedings transfer act.
 If one looks at section 3d of Court Jurisdiction and Proceeding Transfer Act
 If one is ordinarily resident in BC, it may be that fleeting presence in BC is no
longer sufficient as a basis for the gaining of jurisdiction, unless you can come
within one of the other contexts that are set out in section 3, then fine, if
simply looking at presence then you have to meet (under D), ordinary
residence – which is more than a fleeting presence.
 Common law jurisdiction to say that you could give a jurisdiction simply if
you managed to serve a document on someone while they were in the
jurisdiction, is probably now suspect with the passing of the 2006 CJAPT Act.
 Maharanee
 Even a fleeting visit was enough to give jurisdiction, and could ensure that
judgment was enforced.
 Conflicting comment
 Real and substantial connection test from Morguard doesn’t affect the traditional
grounds.
 Also find that, while yes it might affect the traditional grounds, Van Breda case,
(SCC), some elements may need to be rethought.
 One of which is the fleeting presence.
 Looking at Proceedings Transfer Act, probably need more than a fleeting
presence now.
 If we go back to coverage of Morguard, at CL requires a real and substantial
connection based on theory of order and fairness, based on theory of comity, and
a notion that if a foreign jurisdiction (or interprovincial) has taken jurisdiction
then that judgment will be enforced.
 Saw that in an interprovincial context, Hunts case, given constitutional
dimension to that principle from Morguard.
 Also noted, although coming back to this later, than in the Beals case, the
principles of Morguard were applied internationally re: jurisdiction, and
recognition and enforcement, also noted that Beals internationally had not been
given constitutional dimension as the court left it to the provinces, if they wishes,
to legislate.
 Howell’s comment, any legislation by a province must meet 92(13) property
and civil rights.
 From traditional taking of jurisdiction into the modern position, mention a
further theory that wasn’t expressly presented in the Morguard case.
 Did base BCCA judgment in Morguard, and addressed by Laforest at length
without disapproval.
 Later addressed with approval by SCC in Beals.
 Hasn’t occupied centre stage, but is relevant, principle described as
reciprocity.
29

Must distinguish this principle from an idea of reciprocity as something to
which states “sign up” and therefore there’s a reciprocity due to various
jurisdictions signing on for something.
 Here, the CoA in Morguard and discussed w/o disapproval by Laforest but
not part of the court’s formulation, is a notion that, if BC or an enforcing
jurisdiction, if that jurisdiction would itself in similar circumstances have
taken jurisdiction, then the foreign jurisdiction should be seen as properly
taking jurisdiction.
 When Morguard was decided, there were several gaps.
 One, is Morguard limited to interprovincial.
 As recent as 2002, Spark Aerospace, it would be limited to interprovincial.
 In 2003, Beals International, SCC applied.
 The other big gap, how do we define real and substantial connection.
 That gap caused a good deal of difficulty.
 That difficulty, flowing from that great “leaving open of what it means”, in the
lead up to the Van Breda case.
 Gap
 With a gap, something had to fill that gap.
 Two lines of though in relation to real and substantial connection.
 First line of approach looked at a theory of personal submission to a jurisdiction.
 Other theory was the administration of justice theory.
 If you focused on a personal submission theory, then you are focused on a
defendant.
 If, however, you were focused more broadly, then you focus on not only a
defendant, but also a plaintiff.
 “Focus on X” – referring to the connecting points to make it a real and substantial
connection under a personal submission theory you’re looking at connecting
points with the defendant. Under a broader administration of justice theory,
looking at connections to plf and dft.
 That in a nutshell reflects the division that followed after Morguard with
respect to how to interpret real and substantial connection as stipulated in
the Morguard case.
 Parties outside the jurisdiction
 The Muscott case (pg 217) (theories on 219)
 Proceedings and Transfer Act - Personal subjection theory, defendant focused.
 Muscott emphasized administration of justice theory.
 Difference between the two theories lies in whether you apply the connecting
factors of real and substantial connection to defendant (personal subjection
theory) or to both (administration of justice theory)
 Section 2 of CJPTA (BC)
 Territorial competence is to be determined solely by part 2.
 The expression territorial competence is defined: aspects of a court’s jurisdiction
that depend upon a connecting between the territory and a party to a proceeding
in the court or the facts on which the proceeding is based.
 Section 3
30
Territorial court in BC has jurisdiction for cases brought against a defendant
only if a) that person is a plaintiff in another proceeding in the court
(counterclaim) or b) in the course of the proceeding that person submits to the
court’s jurisdiction (attornment) or c) there is an agreement between the
plaintiff and that person to the effect that court has jurisdiction, d) that person,
the defendant, is ordinarily resident in BC, or e) a residual clause that there is a
real and substantial connection between the person and the facts for the
proceeding against that person (defendant)(look up this part.. might be wrong).
 Example of personal subjection theory, defendant focused.
 Section 10
 Real and substantial connection between person and BC, list of situations in
which those facts are presumed to exist.
 If matter falls within the enumerated categories A-L.
 Ex juris
 If you fall within an enumerated category, then rule 4-5 states you can serve
your process ex juris without asking the leave of the court to do so.
 If however, your situation does not fall within an enumerated category, then
you are required to obtain the leave of the court to do so.
 Have a look at Rule 4-5 (1) and/or (3) (civil procedure).
 S. 10 jurisdiction simpliciter
 S. 11 forum non conveniens (mistake in Muscutt)
 Similar to US theory – dft that as a matter of constitutional US process, has to be
able to contemplate a jurisdiction where dft will be subject to a proceeding
(huh?)
 Other theory from Muscutt.
 Moran v. Pyle
 Here, when we look at the Muscutt case, we need first of all to go back to the
Moran (1973) case.
 Must look at in contrast to the Muscutt case.
 Moran was focused upon jurisdiction, but also focused on what was the situs
of a tort.
 When we think of s.10(g) and jurisdiction, a tort committed in BC, what does
that mean.
 Person was changing light bulb, problem with it, electrocuted and killed.
 In touching the light bulb, particularly the bottom part, it was live and the person
was electrocuted.
 The question then becomes, does SK have jurisdiction, and this depended on
various statutes.
 Focus was, has a thought occurred in SK – where was the tort committed (pg
209 top) SK would have jurisdiction only if the tort had occurred in SK.
 The negligence occurred at the place of manufacture which was in ON.
 The motions judge said no tort occurred in SK because the wrongful act
occurred in ON.
 SKCA agreed with his reasoning – said the matter as to tortious conduct
occurred in ON, not SK.

31
SC reversed, and looked at the difficult decision of where does a tort occur?
 Court looks for flexibility.
 Court then focuses on the category of products liability, and looks through
two lines of authority.
 One, page 211, Munro case, (and vaccines case), place where the standard
of care had been violated.
 Court comes along to look at another line of authority, in particular the
distiller company (thalidomide product) and asks, well, when the tort of
negligent product, is complete?
 If it’s fabricated in one place, but also used.
 Not just the wrongful act, but also damage must occur.
 The need for damage, occurs in the place where (for thalidomide) was
consumed (or light bulb) caused electrocution.
 216, product liability, careless manufacture, light bulb enters into normal
channels of trade, manufacturer in ON knows or ought to know that as a
result of careless manufacture, a consumer will likely be injured.
 If reasonably foreseeable that product would reach SK, then that is the
place where the manufacturer should contemplate that there will be
liability.
 For the nature of this tort, products liability, the court emphasizes the need
for damage to complete the tort and notices that in negligence, the
predominant element is damage (especially with dangerous goods
interprovincially).
 In Moran case, in defining the situs of a tort, the court seeks flexibility, then
focuses on products liability and notes the need for damages before
complete.
 Damages occurred in SK, therefore was that a place where manufacturer
could reasonably foresee that damage could occur after defective good made
it there.
 Muscutt
 Look at the facts, involved a situation in which a person had left ON and gone to
AB. There in AB, that person was involved in a motor vehicle of a serious nature.
 Person was seriously injured and went home to ON.
 Person is now in ON as a plaintiff, tort did not occur in ON, but plf returned.
 Court looked at a rule in ON, 17.02H (repealed last year) – said that ON could
take jurisdiction in respect of damage sustained in ON arising from a tort (and
other situations) wherever committed.
 CA preferred the administration of justice approach.
 Both dft and plf focused – looking at real and substantial connections
between ON and both dft and plf.
 Plf had a lot of connection to ON, court says they prefer the administration of
justice approach.
 In looking at the needs of the system, court thought it was the best place to
bring the proceedings.

32

Looked at Morguard, noticed Laforest said connections to dft are important,
and to subject matter, and sometimes to where the damage is being suffered.
 Driver was insured, companies operate nationally across Canada, makes
sense from AOJ approach.
 Where had the case crossed into? Forum non conveniens – emphasized at 220,
both parties, dft’s interest is just one interest among other factors, not
determinative. Also refers to common sense (often used when you don’t have
a good reason)
 Factors became the gold standard (need to look at the rest)
 Meantime, uniform law commission was looking at drafting the Court
Proceedings and Transfers Act and chose personal subjection.
 Other provinces didn’t like what Muscutt had done, after a while it started to be
picked at.
 Look at handout sheet.
 By 2010 in Van Breda case, came to a head.
 Involved a situation of 2 or 3 cases that were consolidated together, but only
looking at the facts of Van Breda.
 Situation where an Ontario person went to an Ottawa travel agency and booked
and went on a trip to Cuba, staying in a resort in Cuba.
 Dft was located in Cayman Islands and had no office in ON.
 On arriving at the resort and heading to the beach, the plf was severely injured
(and in another case involving scuba diving – killed).
 Action was brought in ON, but dft had no connection to ON and the wrong
occurred in Cuba.
 Only connection to ON was that the plf lived in ON and that a contract was made
through a travel agent in ON.
 Under CJPTA in BC, unlikely to give jurisdiction to BC if it had happened here.
 In ON, based on connections to plf and dft, jurisdiction is taken.
 Court, by the stage, is aware that Muscutt is subject to heavy criticism.
 5 judge panel created in ONCA to consider Van Breda appeal and a few others
that had booked with travel agents and gone somewhere else.
 Time to review Muscutt, and dft said time to adopt personal subjection theory
and dump Muscutt and adopt CJPTA.
 Didn’t happen.
 Look at first column of hand out – the CoA said they were going to refine
Muscutt.
 Adopted at pt 2, core considerations. Said the plf’s connection to the forum and
the dft’s connection to the forum, retained connections to both plf and dft.
Adopted an approach similar to s. 10 based on 17.02 (minus H and O)
 Remaining factors of Muscutt should not be considered as factors.
 Pt 5 said, yes, made a mistake, should keep forum non conveniens and forum
simpliciter separate.
 Pt 6, court discusses both theories but opts for AoJ, says Personal Subjection too
restrictive.
33
SCC starts by saying we’re not going to try to fiddle with Muscutt, will determine
this matter independently.
 CoA was trying to salvage Muscutt.
 SCC in Van Breda said presence of plf in forum is not, on its own, a sufficient
connection.
 The dft’s connection to the forum was emphasized.
 SCC moves to emphasize the defendant.
 Pt 3. SCC declines to adopt a theory of presumptive context based on ON rule
17.02.
 SCC says we’re going to make up the rules at common law in relation to tort.
 Stipulates 4 rules
 Carrying on business in the forum
 Noted that it has to be actual business, and that virtual presence or the
availability of accessing a website is not enough in itself.
 In looking at that, SCC was looking at having an actual office in ON, or at
least some sort of agents there.
 Situs of the tort is important,
 But when one looks to see where the tort was committed, was it
committed in the province? No.
 Was the defendant resident or domiciled in the province?
 No
 Contract connected with the dispute was made in the province.
 Look at 10E, none covered the contract entered into in ON.
 In one case, dealing with global tourism – pair with the light bulb.
 Not going to be injured in your home province.
 See a website, and go with that website, but you’ll be injured elsewhere.
 Global tourism is, in a sense, like products liability except the injury occurs
elsewhere.
 Service, injury occurs elsewhere. Only connection is the website.
 Product doesn’t come in.
 Said mere availability of a website was not enough.
 SC has moved closer to personal subjection theory, but doesn’t discuss theories
 Review
 Morguard
 Introduced concept of real and substantial connection
 Interprovincial
 Definition – content, real and substantial connection
 Beals
 Haven’t done yet.
 International
 Reciprocity principle
 Two Theories came out
 Personal Subjection
 Defendant focused

34

Administration of justice
 Looks at plaintiff and defendant
 Developed at common law, particularly in ON
 Muscutt, AoJ looks more broadly and asks is it fair that the defendant would be
heard in this forum. One has to have regard for the position of the plf and the
needs of the federal state in the administration of justice.
 On the facts of Muscutt, it might have been quite reasonable to proceed in ON
given that it was a motor vehicle accident with insurers that cover nationally
and don’t really care where it happens.
 Noted in Muscutt, 17.02H, rule of civil procedure enabled ON courts to serve
extrajurisdictionally.
 Moran was looking at where the situs of the tort was, looking in the context of
jurisdiction, but it was focused on where a tort occurred – also relevant. Not only
in jurisdiction but also choice of law.
 If we note the key features from Morguard – sought flexibility when talking
about the situs, but Moran sought flexibility but then focused itself on product
liability.
 In Van Breda, Court in ON wants to redefine Muscutt because it was seen as
unpopular. Court was cognizant of the fact that it had probably messed up by joining
together jurisdiction simpliciter and forum non conveniens.
 Probably wished it had never done that.
 SCC moves away from AoJ theory over to Personal Subjection theory. (look at
chart)
 Agrees jurisdiction simpliciter and forum non conveniens should not have
been merged.
 The SCC stipulates for “claims in tort” (para 85) the following presumptive
connecting factors:
 A) Carrying on business in the forum – “actual, not only virtual, presence in
the jurisdiction”
 B) The situs of the tort in the jurisdiction (para 88) or “the tort was
committed in the province”.
 C) The defendant is domicile or resident in the province (forum) (paras 86
and 90)
 D) A contract connected with the dispute was made in the province (forum).
 Two features that we need to link here are A and D.
 D is much wider than s. 10e, 10e could not have covered what happened in
Van Breda.
 In Van Breda, person goes to independent travel agent to book the trip.
 No physical movement into the province, unlike the light bulb.
 Court said, we don’t have a tort committed in ON, happened in Cuba, if we
look at carrying on business in ON, court said advertising or providing a
website that is accessible is not enough.
 Could say, the court is thinking in terms of the physical and commerce is
moving into the non-physical. On the face of things as they are, if you
35




access from Ontario, a website to give you a holiday in Cuba, that would
not amount to the resort in Cuba carrying on business in ON.
 If that same business sold a light bulb in ON
If you substitute BC for ON, there would not be an enumerated ground that we could
use in the Van Breda fact pattern.
 So unless we read in Van Breda, and say carrying on business, unless we read
into the residual, then a plf contracting with a resort would not give BC
jurisdiction unless we read in point 4 of Van Breda.
Another point for which the common law is different, pt 2 for Van Breda, court gets
rid of remaining factors of Muscutt.
 Presumptive factors at common law are not exhaustive, more can be developed,
but A-D points are factors to consider when considering new presumptive
connecting factors.
 If the law creates new presumptive factors, how might they become relevant
under the residual clause.
 Stipulation, “only if ordinary residence”, no category in s. 3 that states simply
service in jurisdiction – that’s gone. Attornment and consent and ordinary
residence are there, but not mere service in the jurisdiction. (personal view is
that fleeting presence, mere service is gone) Must meet ordinary residence
requirement.
Teja v. Rai
 In WA, said go back to BC and figure it out there.
 Dft was resident in BC, but before the commencement of the proceedings, s. 3(d)
said ordinarily resident in BC at the time of the commencement. But before, he
had moved to WA.
 Looking with CJPTA
 Occurred in WA, would have had to build up the case to establish under the
residual clause a real and substantial connection.
Likewise, if we look at the Spar Aerospace – a case in which it was decided by the
SCC in 2002, Lebel J., makes the comment that it can’t be extended beyond
interprovincial. Thought in 2003, majority says you can. 2002 Lebel said Morguard,
no, interprovincial only.
 Focused on Civil Code 3148(3) said damage was suffered in QC, basically the
same as 17.02(h) in ON,
 American mobile satellite company called Motinet was involved in contracting
with Hughes Aerospace for construction of a satellite.
 Hughes subcontracted with Spar Aerospace in QC.
 Subcontract was to build the communications payload for the satellite.
 Spar built it, it was installed, satellite was launched, then the company that
ordered the satellite, said they were getting another party to test the
communication system and it sort of disintegrated.
 Hughes refused to pay Spar certain performance-incentive payments.
 Spar said it wasn’t their fault that the people doing the testing of the satellite
overloaded the signals that they were sending to the satellite.
 Sued the owner of the satellite.
36
Owner wasn’t doing business in QC. Was there a tort committed in the
jurisdiction?
 Was there a K connected with the dispute made in the province?
 Yes, but not by the satellite owner, by Hughes the subcontractor.
 Comes to question, is there a real and substantial connection?
 Lebel said yes anyway.
 Example of traditional realm here
 Stanway v. Wyeth
 Plf is BC resident
 Developed breast cancer, alleged that it was as a result of taking two medications
called progestin and premarin at the same time.
 Apparently there were suggestions that the two worked together to cause
cancer.
 Two drugs were purchased and used in BC.
 Motions judge, in an action against a Canadian Corporation, and several US
corps, the motions judge went straight to real and substantial connection.
 Looked at s. 3(e) RSC and then looked at Muscutt.
 The CoA launched into a criticism of the motions judge, said they took the wrong
approach.
 Should have looked first at the enumerated categories in s. 10. These
categories, of the nature of presumptions (rebuttable), certain mandatory
presumptions, when you look at them, look at 10(g), tort in BC, that would be
met here, it was a medication that was sent to BC, all of the dfts knew, or
ought to have known, that the product would be used in BC, American
companies working with a Canadian distributor (10g made out just like
lightbulb case in Moran) (10h made out in that the argument that was made
by the US companies, that they were not carrying on business in BC, was
rejected on basis that they were in a joint marketing enterprise with the
Canadian company) similar to Success where two companies were joined.
 It is marketing.
 No Muscutt in determining if there is RSC. Query if that comment by CoA,
query if one replaces Muscutt with Van Breda and looking at residual clause,
possibly Howell thinks you could use Van Breda but Muscutt was so
discredited by this time.
 Differentiating between Muscutt and Van Breda, one it’s the SCC, two it’s
reflective of the SCC wanting to move the common law closer to the statutory
formulation in the Act.
 Laxton v. Anstalt
 Conversion occurs at the point where the funds are taken not the place to which
the funds are sent.
 In this case, certain funds that were kept in the company and there was a claim
that the funds were to be subject to a trust for a party in a divorce proceedings.
 The funds were sent from BC to Liechtenstein.
 Court ruled that when dealing with tort of conversion you look to place where
the funds were taken not where they were ultimately sent to.
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10F – breach of trust, moneys were taken in BC and restitution arose in BC.
Muscutt and principle in Muscutt are not to be used for rebuttal also.
Looked at whether BC judgment would be enforced in Liechtenstein, didn’t
matter, they were going to take the case anyway.
 Josephson v. Balfour
 Case involving tort, basically involving an accident that occurred on a golf course
where two people riding on a golf cart and one fell off/was thrown off.
 A lawsuit is brought against the driver. On the medical side of things the injured
party was taken to a BC hospital – the Kootenay Hospital.
 Seems that the injured person was doing reasonably alright – able to move arms
and legs, able to interact with family etc. Then he was moved to the Idaho
medical centre in the Kootenai Hospital (Kootenai was in Idaho).
 When he got to the Kootenai hospital he had severe paralysis and brain injury.
 The plaintiff sued the defendant driver in BC, at that point that is quite
appropriate under 10(g) in BC.
 The defendant looks to issue a third party notice to the Idaho hospital saying the
plaintiff was fine in BC, but after being taken to Idaho he became paralyzed.
 Therefore there’s an issue surrounding what happened to him in the hospital in
Idaho.
 Jurisdictional problems then developed – Idaho hospital said what is the
jurisdiction for us being subjected to the BC court?
 Is there a tort in BC?
 The initial tort was in BC, but if the Idaho hospital had nothing to do with the
initial tort, so you can’t use that.
 The allegation is that they were careless in Idaho – if so, then that tort
occurred in Idaho not in BC.
 Idaho hospital was not carrying on business in BC.
 The court said well where do we look in this regard, you have to defend in
BC, then you can go and issue separate proceedings in Idaho.
 Law in ID only permitted a suit by a patient and there was a prescreening mechanism that had to be gone through – taking state based
steps to deal with the huge amount of medical malpractice suits that are
filed in the US.
 Could look at the residual category in s. 10, in this case the judge
contemplated looking at Muscutt though now would not consider doing so,
or to go to s. 6.
 This case introduces us to section 6 – a section that seeks to provide a forum
when there is no other forum.
 A court, when under 3 lacks territorial competence, may have it if there is
no court outside of BC wherein a proceeding could be commenced.
 What is the constitutional jurisdiction under 92(13) to enact such a
provision.
 Class actions are about cutting down the number of individual proceedings, and
sometimes for the procedures of third parties.
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Instead of having two, one in BC for plf and defendant, and one in ID, the
purpose is to link them up.
 Must be some linkage back with the original event that gives the territorial
competence to the BC court.
 Court said s. 6(b) would be applicable.
 The question that would arise, (not in this case), if BC took jurisdiction and it
went on (settled in this case), what law are you going to apply against third
party ID? ID law? – says there’s no action, the pre-screening mechanism, is it
merely procedural or substance? If only procedural you don’t have to apply
in foreign, if substantial then you do. How would BC apply it?
 Get the notes for this from someone – missed an important point.
 Dembroski v. Rhainds
 Had a horse feed business.
 Plaintiff went to AB for the purpose of shoeing horses, becomes involved in a
motor accident in AB.
 Returns to BC, this is very much like Muscutt.
 Plaintiff is resident in BC, but s. 3, personal subjection, focuses on the defendant
and the dft is not resident in BC.
 Court rules that mere residence in BC of a plaintiff will not support the taking of
jurisdiction by BC.
 The court acknowledges that she is continuing to suffer damage in BC, but BC
doesn’t have a provision that focuses on damage in BC – not like 1702H which
has now been repealed.
 Said 10(h), carrying on business in BC, and did business in AB also.
 Court said no, injury had nothing to do with carrying on business in AB.
 If the injury had arisen from getting kicked by a horse, then maybe.
 Aleong v. Aleong
 (also a Kildari (sp?))
 Case is a response by the BC courts in effect to the Van Breda SCC case.
 The question looked at here is how different would be the common law from the
court jurisdiction and proceedings transfer act (CJPTA)
 In both cases there is a statement by the BCCA that the BCCA considers the law
on jurisdiction enunciated by the SCC in Van Breda, based as it is, on the real and
substantial connection test to be consistent with the principles in this province
as set out in Stanway.
 If we stand back, the SCC in Van Breda rejected the ONCA’s attempt to keep the
AoJ theory and to keep an emphasis on both the plf and the dft.
 The SCC moves ON and common law generally much closer to the CJPTA.
 Now, we see in Aleong, and Kildari, we see the BC court making statements to
say that things are consistent between the CJPTA and the common law as set
out by the SCC.
 Therefore, our courts here are probably inclined to take account of what the SCC
said at common law in Van Breda.
 Question becomes, when and where might that be seen/done.
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If one looks at the question that came up in Aleong, it’s a matrimonial property
case in which the claim is made that, the couple lived in BC ~11 years ago then
went to live in Trinidad for 11 years and made substantial amounts of money
($millions), then there is a matrimonial property issue upon breakdown of the
marriage.
One party returned to BC and said that BC should take jurisdiction in this case to
deal with the matrimonial property claim.
There is no specific category under s. 10 that is focused on family law – no
enumerated category.
Court said, in effect, family law must just fit within the categories that are there –
look at 10(a) – assert declare proprietary or possessory rights in BC (??)
Some property in BC, but the moveable property in BC was miniscule in
comparison to the total assets of the couple.
 Only a minute amount related to 10(a).
On what basis would there be a jurisdiction in BC?
 Looked at residual clause.
 Submitted that s. 10 gives a wide-ranging ability to establish jurisdiction
upon the residual clause.
 This was rejected by the court.
 Court looks directly to Van Breda in SCC and notes that Lebel J. said that
courts have to restrain themselves from finding jurisdiction “on the fly”.
 In other words, finding jurisdiction on the particular facts of particular cases
without regard to some underlying principle – that should be avoided.
The court does look at the Van Breda SCC case, looks at the material which is set
out in pt. 4 of the handed out chart.
In looking at that material, it’s material dealing with further presumptive
connecting factors that the court is saying in Van Breda further presumptive
connecting factors in common law might be developed in the future.
In Aleong, the BC court spends some time engaging in whether some new
presumptive connecting factor should be established in BC.
Ultimately decides no, if it did decide at all, it states it has to be on some solid
objective ground like “last common habitual residence of the couple” as opposed
to deciding on the fly.
 Decides that it is not going to do it.
Court spends a lot of time discussing whether it might.
Can’t simply re-write s.10, SCC elsewhere has said that CJPTA is basically code.
The only place where you might transfer a CJPTA or BC court creating new
presumptive connecting factors would be in the development of the residual
clause or perhaps in the development of an existing enumerated category like
10(a).
 Therefore, potentially possible for a court to look at 10(a) at property or
possessory rights, to develop through interpretation a subcategory that
would relate to familial property, for example.
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The other interesting thing the court says is, when looking at RSC under the
residual clause or an enumerated clause, the court indicates that the barrier
can’t be too low.
 Indicates that it is not good practice to have a low barrier and leave everything
to forum non conveniens – says there must be RSC.
 Differs from Van Breda because J. says there may be some instances where
barrier is quite low, but in agreement by saying that you can’t just do it on the fly
without there being a more substantial connection.
 Rule 21.8 on reverse of handout.
 Look at 1(a), (b), (c), that basically goes to jurisdiction simpliciter (s.10).
 21.8(2) – looking at a discretionary area that goes to forum non conveniens
under s. 11.
 Those are the two sections of rule 21.8 that we’re concerned about here.
 Rules state that a party who has been served, whether that service has been
effected in or outside of BC, after filing a jurisdictional response, may apply to
strike out, dismiss, or stay on the basis that the proceeding does not allege facts
that, if true, would establish that the court would have jurisdiction over the
party.
 Rule (2) is that, if the court feels that it should decline, the mechanism in place
for a defendant to respond to a proceeding and say that “I challenge that this fits
within jurisdiction simpliciter” and if it does, I would ask the court to decline as
there is a more appropriate forum elsewhere for forum non conveniens.
 Procedural POV for a plf to start this, a statement of claim which is sworn, and
affidavits which are sworn evidence.
 Those that the defendant responds to, burden is on defendant but if the dft raises
queries that are sufficient enough to challenge that jurisdiction has been made
out or that a good arguable case has been made out, then the plf is obliged to
respond to what the dft has submitted.
 In the Armeno case, a situation where the dft was successful.
 Even if there was a tort in BC, of inducement of a party to breach a K, even if that
is successful, the case cannot be won by the plf.
 Therefore, it is not a good arguable case.
 This case has a convoluted set of facts, but there was a JV company in Indonesia
in which an outfit called PT PI had a 20% holding in the JV and another outfit, a
Dutch company, NTP, had 80% holding in the JV.
 There was a letter of agreement that had been made in BC and was subject to BC
law that gave the plf the right to acquire 90% of the 20%.
 The plf claims that the dft induced the breach of that agreement and inducing the
breach is a tort and that it occurred in BC.
 The dft owns 56.25% of NTP, and the rest was held by a Japanese company.
 Dft says, well the K/LoA, that would let the plf claim 90% of the 20% holding is
going nowhere because, before that acquisition takes places, two preconditions
are necessary.
 First, govt of Indonesia has to approve and that is unlikely.
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Second, this acquisition has to involve the consent of NTP of which I, the dft,
own 56% and I’m not going to approve.
 Therefore, even if there is a breach of the K in BC, there’s no causation
because even if I hadn’t, I would not approve of this therefore there is no
good arguable case.
 The plf did not cross-examine on that.
 The court said, the dft has submitted evidence by way of affidavit, to the
effect of the above, which requires the plf to make some evidentiary response
as to whether what is said in the affidavit by the dft is true or not and that
wasn’t done.
 Argument to say that the dft has not proved what is in the affidavit doesn’t
matter because you haven’t responded to what the dft has said – based in
particular on the dft’s position as 56% holder of NTP.
 MTU Maintenance
 Plf, MTU, an NB company but registered and carrying on business in BC, involved
in maintenance of aircraft engines.
 At some point has to send engines to the US.
 Dft is in the US, other dft was a company that organized the customs clearance
for these engines to go to the US and come back to Canada.
 Particular submission, among others, was that a misrepresentation had been
made – but where?
 Affidavits did not say that the misrepresentation had been made in BC, nor was it
clear that the dft was carrying on business in BC, affidavit simply said that the
company has been registered in BC.
 Counsel had stood up before the motions judge and said yes, these facts are true,
and the court of appeal said not good enough, can’t just rely on this because it’s
not sworn evidence.
 Submissions for jurisdiction must be submitted as sworn evidence.
 Right Business
 Chinese company wanted to buy a potash company, but govt refused.
 Company entered into a series of agreements with other companies so they
would purchase the company on their behalf.
 Money was used by the Chinese company to buy it eventually.
 What did it have to do with BC? Money flowed through a Richmond bank.
 Court was able to find a 10(d), breach of trust in BC, 10(g) – conversion or
conspiracy to convert money in BC.
 Chinese company was found to have an agent in BC, fixed with agency in BC,
court said yes, subject to BC jurisdiction.
 Environmental Packaging Technlogies v. Rudjuk
 Similar type of case, on the face of it has nothing to do with BC.
 Russian company associated with an HK company, engaged with a TX company.
 K entered into by a character Rudjuk in relation to this Russian/TX/HK deal.
 Rudjuk operated with a company in BC, gave rise to jurisdiction in BC, various
heads in s. 10.
 Court cautions that proceedings at this stage are only preliminary proceedings.
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Says that the trial court did not establish firmly that there was a tort in BC or
that there was business carried on in BC, or 10(f) that there was a fiduciary
arrangement in BC.
 Ward
 Where the federal government is located – everywhere in Canada.
 Here, in relation to injury (alleged) from being exposed to Agent Orange and
other herbicides while working for Canadian Forces in NB in the 50s, plf was
now a MB resident and was suffering from illness that he attributed to AO.
 Question was if MB had jurisdiction, dft was the Crown.
 Court simply said yes, federal Crown is resident in every province.
 Harrington v. Dow Corning Corp.
 Useful to illustrate 92(13)
 Idea of class action is something that generally everyone finds desirable unless
you’re the defendant.
 Saves judicial resources.
 Problem, is how do you bring it within 92(13) – dealing with provincial
courts and saying this judgment from court in BC will also encumber people
from ON – what is their connection to BC?
 Silicone breast implants were supplied to BC – product liability.
 Received the implants in BC – or received implants but were non-residents –
both fit with 92(13).
 Women who were resident in other provinces and received the implants in other
provinces.
 Not looking at CJPTA, looking at s. 16 – opt-in, submitting to the jurisdiction but
it’s the plaintiff.
 Ontario has an opt-out, so that its judgment binds unless people opt-out.
 More problematic.
 Usual inquiry as to RSC – here, what is the constitutional connection.
 Is there a difference between opting in and opting out?
 Yes
 But here it’s not the defendant that is opting in.
 Given that there are a significant number of women that were resident or
implanted in BC – could say that there were enough of those that the others
could be lumped in through pith and substance.
 However, if there are a minimal number in BC and a substantial number in ON,
then it makes it harder to make the argument re: significant numbers in BC.
 Muzak Corporation v. Composers, Authors & Publishers Association of Canada Ltd.
 Federal court.
 Authorization right – like having a photocopier at university and allowing
students to photocopy entire books.
 Copyright law, looking at the authorization right.
 Machine allowed listeners to play certain discs.
 Supplier was in NY.
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SCC decided the merits and said, in the context of supplying a machine with the
discs, there would not be an authorization and the SCC applied a narrow English
test to that alleged authorization.
Should have just said yes you can serve, but left to exchequer court to decide on
the merits but the SCC decided it all there.
FORUM NON CONVENIENS
 A court may decline to take jurisdiction if it finds a court in another jurisdiction is more
appropriate. In older cases, some courts would say “this other court is the most
appropriate jurisdiction”. Legislation avoids that by saying the other forum is more
convenient.
 Rule 21.8 (2) –
 Difficult issue is attornment – some jurisdictions take a more difficult approach than
others, in BC we say you can appear to challenge and you’re not attorning, but some
jurisdictions say you would attorn simply to appear to challenge the jurisdiction.
 If you are trying to challenge jurisdiction but you slip into the merits, that can count as
attornment, you’ve gone beyond simply challenging the jurisdiction of the courts.
 Primary test - Court must consider the circumstances relevant to the proceeding.
 Including comparative convenience and expense for the proceeding and their
witnesses for the court and the alternative jurisdiction.
 Convenience is a manner of efficiency.
 The choice of law comes up as well.
 Parallel litigation – want to avoid conflicting rulings in different courts.
 If the fair and efficient working of the Canadian legal system –
 E – the enforcement of the parallel judgment, from before, there was concern if
Liechtenstein would enforce the judgment, but found that the connections to BC
were so great they would take jurisdiction regardless.
 First thing that isn’t referred to is an anti-suit injunction
 11.1, a court may decline to exercise – focused on a stay.
 There is a similarity between forum non conveniens and an anti-suit injunction.
 Second, nothing expressly in s. 11 concerning jurisdiction selection clauses.
 Old North State – clause was worded not to be exclusive, but if one had an exclusive
choice of forum clause, what impact should that have?
 Two ways to look at this, one is saying s. 11 does not express exclusive forum – then
look to Pompey (this tends to be the position in BC)
 Alternative test is 11(2), circumstances relevant to the proceeding.
 SK court seems to have done that, Preyman seems to say it doesn’t matter which
way you went.
 No express enumerated category except for maybe C, which seeks to avoid multiple
of the same proceeding?
 Recognition and enforcement – can you look at issues of relative connection or issues of
forum non conveniens when you are asked if a foreign court has properly taken
jurisdiction or are you limited to looking at jurisdiction simpliciter and not forum non
conveniens.
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 Cases have looked at forum non conveniencs but, that said, in the Canada Post Corp.
case, the SCC, in interpreting the QC civil code, declined and prohibited looking at
the provisions in the QC civil code
 English Position in Transition
 English law was slow to adopt forum non conveniens, but Scottish and other
common wealth was faster.
 Gradually moved towards forum non conveniens and the decision in the Spiliada
case was the final decision in that line that brought into English law what they
referred to as the Scottish law of forum non conveniens.
 Pg 305 – middle of the page – Look at the St. Pierre case.
 St Pierre
 Focused upon tests that could displace a plaintiff’s choice of forum.
 Starts off with proposition of saying that the plf can choose the location where
there is a juridical advantage to the plaintiff.
 Then it asks when will that be displaced?
 Two contexts
 One is stay of proceedings
 Where the English court would say the plf has filed here in England but
we’re going to stay the proceedings because we don’t think England is a
suitable place to file them.
 Two is anti-suit injunction
 Plf files in a foreign state, and the question becomes, where the plf has
filed is not appropriate.
 If the court has personal jurisdiction over the plf (like Airbus case)
suppose the plf is resident in England and files in TX, then the English
court can say TX has no connection with this case, therefore the court
issues a injunction that they cannot continue the case in TX.
 Both cases, English court restraining itself, requiring a English plf, both
displaced the juridical advantage that the English plf was seeking.
 Spiliada Maritime Corp. v. Cansulex Ltd.
 English courts adopt fully the forum non conveniens principle. (sometimes
referred to as forum conveniens principle).
 Ship – bulk carrier – was Liberian registered. Managers were in Greece but there
were some managers in the UK.
 Chartered to an Indian company, which was using the boat to transfer sulphur
from port of Vancouver to various ports in India.
 Defendant, BC exporter of sulphur, loaded the sulphur into the ship and
apparently damaged the ship’s hull with the sulphur.
 A whole series of cases were involved here, in similar circumstances, such as a
ship called the Roseline, which had been heard in the federal court of Canada,
and a ship called the Cambridgeshire which had been heard in the UK (again
with sulphur damaging the hull of a ship)
 The key question of law, one was a limitation period, hadn’t expired in England
(seen as procedural at the time), other question was the contract in the bill of
lading was the shipper the defendant, a party to a K with the ship-owner or only
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with the charterer of the ship (the Indian company that had contracted with the
dft).
 In Canada, ruling in federal court was that the defendant wasn’t in a contract
with the owner and was therefore not subject to arb/med in London, etc.
 English court took the stance that they were in a contractual relationship with
the Owner of the ship as well.
 Question became, should the English courts stay the proceedings in the Spiliada
case? Court declined to do so (pg 286) various reasons given, test under s. 11 are
the circumstances relevant to the proceeding.
 Looks at the suitability and relevance of the jurisdiction, ends of justice would
require the court to stay the proceedings if there was a more suitable forum
elsewhere.
 Court notes that the burden is on the party that asserts there is a more
appropriate forum elsewhere.
 Court begins to discuss the historical position at common law in England in
relation to what was seen as a plaintiff’s juridical advantage and a theory that
the plf should rarely be disturbed in the choice of forum.
 Based on English law from 30s and emphasizes the fact that probably a plf
will pick England, and the courts were favourable to their own citizens.
 Historically, juridical advantage was greater, today you have to be more neutral.
Can’t have favour for plaintiff for relative convenience.
 Must look at various factors – governing law, where are the witnesses, etc.
 Societe Nationale Industrielle Aerospatiale v. Lee Kui Jak
 Privy Council decision for anti-suit injunction.
 Looks at what happened in Spiliada under a stay and decides that they’re not
going to follow that in the context of an anti-suit injunction.
 In this context, the PC says we have to apply the stronger test of vexatious or
oppressive.
 Not going to apply a forum non conveniens test when they come to an anti-suit
injunction.
 Pg 306 defines vexatious and oppressive
 Proceedings that are absolutely absurd and cannot possibly proceed, perhaps
the objective is to annoy or harass, but even if the objective is not, it probably
looks to some fanciful advantage – will probably involve a multiplicity of
proceedings, and may be in an inconvenient place.
 S. 11, after considering the interests of the parties – the interests of both parties.
 Quite in line with where the HoL came in this case.
 Involved helicopter crash in Brunei, owned by English company, manufactured
in France, operated by local people and investigated in Brunei.
 Something interfered with the rotors and that’s why it crashed.
 Plfs filed in TX. High level of damages awarded and more liberal re: awarding
damages.
 No law for forum non conveniens, refused to stay, and allowed no appeal.
 Modern Canadian Position
 Court Jurisdiction and Proceedings Transfer Act
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 Amchem Products Inc. v. British Columbia (WCB)
 Discusses both the stay from Spiliada and the ASI from Societe Nationale in the
SCC.
 Followed Spiliada, pg 317, look for a broad consensus among common law
jurisdictions regarding what they should do, and followed the HoL.
 Sopinka noted the western provinces were already well in line with this
approach and that ON was a little behind at the time.
 In terms of a stay, Sopinka notes that the Spiliada case does not deal with
oppressive or vexatious.
 Sopinka considers ASI, says they will follow Societe Nationale.
 Involved Asbestos difficulties, Sopinka said we adopt Societe Nationale,
vexatious or oppressive but I don’t like those words, and will replace those
words with the words the ends of justice.
 What is the difference when one replaces vexatious and oppressive with ends of
justice.
 Literally – ends of justice – pretty watered down from vexatious and oppressive.
 Pg 321, when one looks for ASI, there must be a foreign proceeding that has been
filed. Shouldn’t issue an ASI until a plf has filed in a foreign jurisdiction.
 The court indicates that it is preferable, spoke as if it were required, but other
cases have proceeded when it hasn’t occurred, for the party to have sought a stay
in the foreign proceeding first.
 Court that issues the ASI must be the appropriate forum to hear the case, though
there was reference to the most appropriate, that is modified to say more
appropriate.
 The court that issues the ASI must have personal jurisdiction over the plf
otherwise it’s a waste of time and makes the court look foolish.
 Second step then, is to look for injustice.
 For ASI, look primarily to Amchem, look at discussion here and Societe Nationale.
 Important as to how we interpret justice in relation to ASI, court was fine with
SN, but not pleased with vexatious or oppressive.
 Review
 Spiliada
 HoL completes its move to adopt principle of forum non conveniens which it
attributed to the Scottish Court, moved away from St. Pierre, contains in the
context of a stay no mention of vexatious or oppressive and focuses upon
both or all parties without emphasizing a plf’s juridical advantage.
 Looks to suitability of the forum and the ends of justice in terms of efficiency
of hearing the particular case
 Most significantly, looks at connecting factors.
 Looks primarily to s. 11 of CJPTA that provides us with the detailed focus that
we need to contemplate today in BC, s. 11 largely reflects the Spiliada case.
 S. 11(1) reflects the interests of the “parties” – can say from there, that within
the context of a stay at CL and under our section that we do not apply the St.
Pierre test.
 Societe Nationale
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Anti-suit injunction case – PC decided that it would not depart from the St.
Pierre test for an anti-suit injunction.
 Focused and applied the test vexatious or oppressive, it looked at the
meaning of vexatious or oppressive, and it found that vexatious would
focused upon annoyance with no real advantage to the plf, but more
importantly, oppressive focused on the lack of connections with the
jurisdiction that the plf had sought to bring the proceeding.
 The PC emphasizes that the issue of an A-SI is a more significant process than
a stay, a stay is an example of self-restraint by a forum whereas an ASI,
although not directed to the foreign forum, is directed to the party,
nevertheless, it is a more aggressive move, by saying to a party you cannot
litigate in that jurisdiction. (Doesn’t directly affect the jurisdiction itself, but
indicates that jurisdiction is not appropriate). Greater emphasis is focused on
not disturbing plf’s choice unless it is a very important reason to intervene in
that way.
 Amchem
 When in context of ASI, we are looking at caselaw, looking at Amchem from
SCC.
 Involved an ASI, and the discussion in Amchem by Sopinka embraces both
the stay and the ASI.
 Looking at Amchem in the discussion of a stay, we find that Amchem follows
Spiliada (and the HoL), we note that Sopinka (giving the judgment in 1993)
does use the words “real and substantial connection” but noted that those
words are probably not appropriate now to forum non conveniens and s. 11
does not use that phrase.
 Recall from jurisdiction simpliciter, in the period immediately after the SCC
decision in Morguard, that simpliciter analysis and forum non conveniens
sort of ran together.
 We need to disregard that language, somewhat, by and large we find that
Amchem follows the analysis in Spiliada in relation to a stay.
 Wenngatz v. 371431 Alberta Ltd.
 Paras 26-30, court makes it clear that, in the context of a stay, we do not deal
with any notion of a juridical advantage of the plf, and a reference that had been
made in an earlier BCCA decision that had spoke of the plf’s choice should not be
lightly denied, court here said that was gone after Amchem.
 When looking from the perspective of the ASI, reiterating that there’s nothing in
s. 11 about ASIs, we find that the SCC in Amchem followed Societe Nationale and
the PC, but declined to use the words “vexatious or oppressive”.
 Sopinka said that the PC had not defined those terms, but PC had in fact defined
those terms fully – definition on page 306 of coursebook.
 Nevertheless the SCC prefers the term “ends of justice”. The watering down of
“vexatious or oppressive” to simply the “ends of justice” may make it difficult to
distinguish the balancing process of an ASI from that of a stay.
 Court did indicate that a deeper inquiry had to be made for an ASI than for
simply a stay.
48
Our court has distinguished ASI from a stay, even though it has watered down
the language of the PC to simply “ends of justice”.
 Pg 332, looks to s 36 of BC Equity Act, that injunction would be issued if it
appears to the court to be “just or convenient”.
 Look at steps – missed this.
 The court in Amchem stipulates that there must be an actual foreign proceeding
underway or commenced that an ASI would not be issued on an anticipatory
basis.
 There must be an actual filing in the foreign court.
 Secondly, there is some equivocation in Amchem, but Sopinka speaks quite
definitely that a party should seek a stay in the foreign jurisdiction before asking
the court to issue an ASI.
 Has not been followed in every case, such as Hudon case.
 A stay should be sought in the foreign jurisdiction before asking for ASI in
domestic jurisdiction.
 Thirdly (pg 321), if you’re asking domestic court to issue ASI, then you should
have commenced proceedings which would be parallel proceedings in the
domestic court.
 Sopinka points out that, in order for the court to take cognizance for the leave
of an ASI, a defendant must have filed in the domestic court.
 This reflects the fact that the domestic court must be seen as the more
appropriate jurisdiction to that.
 If you’re asking domestic court for ASI, saying that the court you’re seeking
the ASI at is the more appropriate forum, you would then need to file
proceedings there.
 Looking to Airbus case, the ASI was issued by the court in India, in the Indian
court, was the most appropriate jurisdiction, certainly more appropriate than
TX, but nevertheless, the plfs were located in England.
 If the matter is interprovincial, the order in Hunt was interlocutory.
 Indian injunction was not enforced, second question came up, is the UK a
more appropriate jurisdiction or a natural forum for this to be heard? Is it
more appropriate than TX? It had nothing to do with UK either, but maybe
better than TX. Court didn’t find that UK was appropriate to hear the
particular case, so that was another basis for not becoming involved. Thirdly,
also a question about comity, the UK was in a position of having to respect
comity with India and TX.
 Bushell v. Raytheon Aircraft Co.
 Wang v. Sun
 Laxton v. Anstalt
 Teck Cominco Metals Ltd. V. Lloyds Underwriters
 Class Actions
 Missed part of this.
 Canada Post
 All about a situation of Canada Post saying they were offering free internet
service that would last a lifetime, actually lasted 9 months.
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On Feb 6, 2002, the Lepine action was filed in QC.
In ON on Mar 8, 2002, the McArthur application was filed.
May 27, 2002, the Chen application was filed in BC.
Dec 2002, action filed in AB under the AB Fair Trade Act, settled and AB dropped
out of the picture at that point.
Motion filed in QC for class action, certification given in QC, Dec 23, 2003.
ON certified the motion a day before it was certified in QC.
Lebel says, not the date of certification, it is the date of filing, proceedings are
commenced when the motion is filed for a Class Action.
Looking at SCC judgment, para 11, court notes that, in the case before it, an
inevitable and unavoidable legal conflict has resulted.
 On Dec 22nd, 2003, not only did ONSC certify and approve the class action,
but there had been negotiations going on, but a settlement had been reached
with Canada Post, the action was certified and the settlement approved and a
judgment given approving the settlement.
 ONSC said they operate on an opt-out basis, saying it bound everyone in
Canada except BC, where they reached a settlement in 2004.
 Didn’t exempt QC, and AB had dropped out of the picture.
Basically, ONSC said this judgment, which approved the settlement reached with
Canada Post, binds people in QC unless those people opt out and take an
individual action against Canada Post.
What happens, para 11, SCC the judgments rendered by the ONSC and what has
happened in QC, unavoidable legal conflict, happened because QC proceedings
were there, and would not be stayed.
To break the impasse, Canada Post applied to QC Superior Court to enforce the
ON judgment. That raises the issue that was left open in Teck Cominco, QC
wouldn’t stay, ON had given a judgment, how to get around the impasse?
Canada Post said, we’ll seek enforcement of the ON judgment in QC.
Looking here, QC Civil Code 3155, will be recognition and enforcement of any
judgment from outside QC except one when there is no jurisdiction in the forum
of the judgment.
 2, when the judgment of the forum is not a final judgment. (ON was final).
 3, except when there is a contravention of procedure.
 4, dispute between same parties, same facts, same object, given rise to a
decision already given in QC or a decision that is pending in QC.
 5, inconsistent with public order as understood in international proceedings.
QC Sup Crt refused to enforce the ON judgment.
 Cited 3155 (3)
When QC heard of ON judgment, would say, what is this business of ON saying
they will bind everyone in Canada when they know they have their own
proceedings.
Per pt 4, decision hadn’t been given, but proceedings were pending.
Therefore, the QC Sup Crt didn’t deal with that, but CA and SCC did, said yes,
3155 applies.
 Basically the same as the point left open in Teck Cominco.
50
3164, QCCA went with (3) and (4) - why was BC excluded and not QC?
Back to 3155 (1), judgment of another court is recognized and enforced except
when no jurisdiction in the forum of judgment.
 Here that a question was raised, when you interpret 3155, do you take into
account jurisdiction simpliciter alone? Or, jurisdiction simpliciter and non
conveniens.
 Interpreting the Civil Code, the SCC said you take into account only
jurisdiction simplicter.
 The Recent English Position
 US Position
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ANTI-SUIT INJUNCTIONS: RESTRAINT OF FOREIGN PROCEEDINGS
 The English Position
 The Canadian Position
 Hudon v. Geos Language Corp.
 ASI was issue without requiring it be sought in other forum.
 To teach English in Japan.
 Org indicated, as an inducement, and in the K, that the plf who was heading off to
teach English in Japan, would be covered by insurance during her time in Japan.
 While in Japan, Hudon took a vacation in China – lead to the question: what is the
scope of the medical insurance? Does it relate only to presence in Japan; or does
it cover a person who was travelling to another country during a break in the
teaching?
 She was severely injured while in China and came back to Toronto, filed
proceedings in ON.
 Defendant moved for a stay in ON, of those proceedings, on the basis that the
insurance was to be interpreted according to Japanese law, dft said the
appropriate forum is Japan.
 The ON court declined to stay.
 Defendant immediately filed in Japan for a declaration that it was not liable
under the K or in tort for the injury suffered by the plf.
 Two proceedings, one filed by plf in ON, for which the court declined a request
by the dft to stay, and the dft seeks a declaration in Japan.
 The question is presented whether the ASI should be issued against the dft in
ON.
 The plf did not seek a stay in Japan, and the court in ON indicates that its
interpretation of Amchem is that it is not mandatory for a stay to be sought in
the foreign jurisdiction. It is only a process that ought to be considered as a
factor in whether or not an ASI should be issued. The court in Hudon looks to a
discussion in Amchem whether a stay should be sought in the foreign
jurisdiction.
 In other parts, Sopinka seems to say that a stay must be sought in the foreign
jurisdiction.
 Here, finds that it would be oppressive to force a stay to be sought in Japan.
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Seems that there were two factors that were relevant in answering that “why”
question, the first is that the ON court noted that the plf was not engaged in
forum shopping.
The plf was from ON, had gone to Japan, to China, severely injured, then came
home to ON, so the filing was made in her home province.
She was not forum shopping.
Second point in answering why focuses on the fact that the defendant had
already asked the ON court to stay the proceedings, and the court had declined.
It was only after that that the dft filed for a declaration in Japan. The court took
the view that the earlier proceeding where the court declined to issue a stay was
found determinative as to the suitability of the forum.
Background point: if one looks at regular proceedings on interlocutory
proceedings, it is usually a requirement that you’d also seek a permanent
injunction.
ASI is an exception to any usual requirement that if you want an interlocutory
judgment you’d also want a permanent injunction.
JURISDICTION SELECTING CLAUSES
 Some interesting questions about Burden of Proof in forum non conveniens, the starting
point is to look at Bushell (pg 358) and the discussion there.
 Amino case, and MTU Maintenance case, that requires that the plf seeking an ex juris
service has to have a good arguable case, for any proceeding, not just ex juris. We’ve
seen that already, under the rules, that when a dft challenges and presents evidence
which is ordinarily by way of affidavit, that a plf has to answer that. If the plf doesn’t,
then the dft is likely to succeed in showing that there is not a good case.
 When we come to look at forum non conveniens, the law becomes a little muddy
because of the Spiliada case, which, as we know, was followed by Amchem, at page
289 the UK HoL said that the Burden resting on the defendant is not just to show
that England is not the natural or appropriate forum for the trial, but to establish
that there is another available forum that is clearly or distinctively more
appropriate.
 Talks about the burden on the defendant. Pg 391, the BoP should not play a
significant role in these matters, as it only applies in cases in which the judge cannot
come to a determinate decision on the bases of material presented.
 BC has ordinarily kept the BoP on the plf, as an overall burden requiring the plf to
answer, on the balance, what the defendant has presented. But BC and ON have
traditionally kept the formal burden on the plf.
 Wang v. Sun 2014
 BCSC, in relation to this, paras 51-67, also discuss parallel proceedings. Court
looks to onus of proof, and it makes the statement that the plf prima facie has the
right to proceed in his or her chosen forum – this is a suspect statement.
 There is no longer any issue of juridical advantage, and one would likely
interpret that to say that the plf has filed somewhere and has taken the initiative
to do so.
52
Court says the dft has a significant onus to meet to show clearly that there is a
more appropriate forum elsewhere.
 Court refers to Van Breda, para 103, in SCC, in that para Lebel says if the dft
raises forum non conveniens, the burden is on the dft to show why the court
should decline to exercise its jurisdiction and displace the forum chosen by the
plf.
 The dft has the burden to show that another court is clearly more appropriate.
 That comes from the Amchem case.
 Lebel notes that the expression “clearly more appropriate” does not appear in s.
11 of the CJPTA, the expression in that act in s. 11(1) is simply more appropriate,
not clearly appropriate. Lebel also notes that in the QC Civil Code, 3135, the
expression used is simply “exceptionally”. Nevertheless, at para 109, Lebel says
that the plf has selected a norm, and there is a burden on the party who seeks to
depart from a normal state of affairs.
 Lebel continues by saying that a decision on forum non conveniens is not
equivalent to “flipping a coin”, he elaborates by saying “it’s not enough for a dft
to show that there is another jurisdiction of comparable appropriateness”, or
another jurisdiction that is equal, it must be shown that the foreign jurisdiction
is more appropriate.
 Appears that the SCC in Van Breda, is inclined to say that a BoP lies on the dft to
show a more appropriate jurisdiction elsewhere.
 Burden is on plf, to answer what the dft says. For forum non conveniens, it’s on
the dft.
 Parallel proceedings
 Where there is a lawsuit about similar subject matter and has been filed in two
or more places by one or the other of the parties.
 If we look at s. 11(1) and (2), must consider the circumstances relevant to the
proceeding including (c) and (d), want to avoid multiplicity of proceedings and
conflicting proceedings.
 Historically, when we emphasize the plf’s juridical advantage, we tended to focus
on where something was first filed.
 Note that in s. 11 there is no emphasis on any advantage to the plf that the court
is required to consider the interests of both or all parties, so we can say that
we’re not so locked into a motion to the point where any subsequent filing be
stayed.
 May go back to notion of comity, where we work on a “first to file” notion, tied up
to that is the notion of comity. If another jurisdiction had allowed the
proceedings to exist, comity required that a second jurisdiction stay second or
subsequent proceedings.
 Westec
 BC Corp that made equipment, supplied to Raytheon?
 Got in to a dispute about source code for software and West Tech gave to
Raytheon an offer of settlement which it left open until the 31st of March, 1998 at
midnight.
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53
With an hour to go before that was to expire, Raytheon filed in Kansas for a
declaration that there had been no breach of K with West Tech and that no
damage had been suffered.
 Said formation of K did not point clearly to either KS or BC, licence had been
extended by phone from BC and accepted by phone in KS. More witnesses in KS
and filed in KS.
 West Tech lost in terms of choice of forum.
 Teck Cominco
 Alleged environmental damage as a result of waste material being put into the
Columbia River from the 1920s and in particular after 1930s after Americans
built the Grand Cooley dam caused waste to accumulate in the Columbia River.
The claim for environmental damage was proceeding in WA at the level of
Federal Court, and other proceedings at state court as well.
 Second issue was an issue about insurance coverage of Teck. Insurers had little
to do with the US.
 Filed at 1 minute after midnight in WA.
 At 9am, filed in BC.
 First to file had occurred earlier in WA.
 Question that was presented was, does the first to file principal + idea of comity
mean the BC proceedings should be stayed? Court says no.
 Clearly an environmental issue.
 When one looks at the insurance, the people who were injured environmentally
had no claim under the insurance policy.
 Policy did not cover the environmentally injured people, it was more from their
point of view the pragmatic situation of deep pockets so that, if TC was backed
up by insurance, that gave greater scope in terms of money perhaps.
 In terms of legal principle, the injured people, if an injury ultimately was or is
found environmentally, they weren’t insured (were not the insured people
under the insurance K)
 Case brings up general feature – insurance issues in disputes. Are we dealing
with one dispute or two or more disputes, or can we say, they are all run
together?
 Talked about the timing in this case, served 12:01am in WA, then in BC at 9am.
 BCCA judgment, a very useful discussion of the Amchem and Spiliada case (and
another one? Hanna talked), something useful to read GET SUMMARIES FROM
THIS CASE?? Re Sopinka not using “vexatious or oppressive”.
 Comity is stronger interprovincially than extra-jurisdictionally.
 Also on pg 349 in BCCA decision, useful discussion of the Westech case, saying
that we have to regard Westech as an example where neither BC nor KS was
more appropriate than the other.
 Recall from discussion previously, when we looked at the Wang v. Sun case,
citing from Van Breda, to the effect that forum non conveniens is not enough,
if each forum has an equal appropriateness, you must be more appropriate to
displace the initial one.
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Turning to SCC decision, first point argued is, pg 354, s. 11 of CJPTA does not
apply when a foreign court has asserted its jurisdiction.
 Counsel was submitting that s. 11 must give way to the principle of comity,
that a foreign court has asserted jurisdiction, comity therefore should trump
that.
 Alternative submission was, if s. 11 does apply, the assertion of jurisdiction
by the foreign court was overriding and determinative under the s. 11
analysis.
Both the above submissions were rejected by the SCC.
The SCC looks at s. 11 and states that s. 11 is a code, not some ancillary feature of
a CL analysis, it’s a code that is complete in itself.
 It codifies forum non conveniens.
When looking at s. 11, look at (2), must consider the circumstances relevant to
the proceeding. The principles test, then follow enumerated pedigrees.
Though it’s a code, it has there an open-ended feature, circumstances relevant to
the proceeding, it’s potentially possible to look to prior common law cases that
might influence what could be regarded as circumstances relevant to a
proceeding.
The SCC is clear that you can’t introduce exceptions to s. 11. We know s. 11 does
not cover anti-suit injunctions, only stays.
Looking ahead, when we look at the Pompey and Preymann cases, looking at
foreign selection clauses, look to issue in Teck Cominco, s. 11 is a code, not a
supplement, and no exceptions are permitted.
Raises a question, as to whether a forum selection clause – is that part of s. 11 or
is that separate from s. 11?
Given that s. 11 applies, parallel proceedings is only one factor considered under
s. 11.
Blind acceptance of a foreign court’s acceptance of jurisdiction carries the risk of
declining jurisdiction for a forum that is not more appropriate. In other words, s.
11 is reflective of ascertaining which is the more appropriate jurisdiction. If you
gave weight overwhelmingly to first to file, you would not achieve where was the
more appropriate jurisdiction to hear the case.
Pg 357, WA wouldn’t stay the proceedings, held while Canadian proceedings
went to the SCC, but proceedings weren’t permanently stayed in WA. The SCC
has said the BC proceedings were not to be stayed either.
 Now have parallel proceedings in an insurance context, well, we have
disposed of first-to-file as an overriding factor, but have we replaced it with
“the first to give judgment”. Hypothetical becomes “what if WA gives
judgment against the insurers in interpreting the policy as to whether
liability can be seen as property damage under the insurer’s policy… what if
that judgment is given first and is brought to BC for enforcement?”.
 SCC said they will cross that bridge when they come to it, three options:
 First to judgment is first to enforce.
 Absolute preference to the local proceedings – the position under the QC
Civil Code.
55
 Could be some middle ground – enforce the first judgment but add
additional defences or additional qualifications.
 In any event, left it open.
 Review
 Parallel proceedings - looked at suits filed in two or more jurisdictions
 Wang v. Sun – whether or not a commission would be paid to a person who
helped with a purchase of land, person who was seeking a commission was not a
party to the proceedings in China – not a parallel proceedings case.
 Looked at with regard to Van Breda case re: burden of proof.
 11 (c) and (d) no parallel – C – avoid multiplicity, D – desirability of avoiding
conflicting decisions in different courts
 Historically – a first to file “rule” developed, can be attributed to two features, first,
historically when it came to the “should” inquiry, “discretionary” inquiry, weight
was given to the plf’s choice under a notion of a plf’s juridical advantage.
 That has gone, (Amchem, Wenngatz).
 Second policy factor related to comity, to say, if a foreign court had taken
jurisdiction, then comity would stipulate that a second court, in this instance, a
domestic court, ought not to take jurisdiction as a matter of comity with the foreign
court. Will see that Teck Cominco disposes of comity as an overriding policy
principle.
 Both areas lead to a “rule” of first to file being the dominant feature, both of those
policies have been displaced to some degree.
 Looked at Westech case, regard as being correct but being focused on a situation
where two jurisdictions (BC and KS) were both equally appropriate jurisdictions.
 Westech also points out the difficulty of using the words plf and dft, who is plf who
is dft? Do we talk of natural plf, the one complaining the K has been breached? Or
the first party to file is the plf. The language or description of plf and dft may be
problematic in themselves in looking at who’s who.
 Recall Laxton
 Whether a judgment would be enforced in Liechtenstein.
 They may not enforce it, but nevertheless, court in BC said it was not going to use
that ground as a basis for rejecting its jurisdiction.
 Recall Wang v. Sun (2014)
 S. 11(2)(f) comment – para 47 of this case, BCSC notes that s. 11(2)(f) is not
applicable. It’s the fair and efficient working of the Canadian legal system as a whole,
the court here says that was not applicable because it was a foreign country that
was the other country involved. Not applicable when other particular forum is
outside of Canada.
 Canada Post
 Interprets QC Civil Code,
JURISDICTION SELECTING CLAUSES
 ZI Pompey Industries v. Ecu-Line N.V.
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 Looking at s. 11, nothing explicit about express selection clauses, the question we
have to ask is, should express choice of forum clauses be seen as, like ASIs,
something outside of s. 11?
 In an ASI, outside of s. 11.
 In BC, CA has tended to view that express choice of forum clauses are external to s.
11.
 However, two decisions in SK have taken view (similar CJPTA) that they do fall
within s. 11.
 Count as circumstances relevant to the proceeding.
 Interesting question, as seen in Teck Cominco, you can’t make exceptions to s.
11.
 But, if it’s outside of s. 11, has nothing to do with it, so not an exception?
 On the other hand, more difficult to say, with an express choice of forum clause,
because you are seeking a stay, not a stay with an ASI.
 Looking at Pompey, 2003, before CJPTA came into effect (didn’t come into effect
until May 2006).
 Looking at that question, of express choice of forum clauses, prior to CJPTA,
court said an express choice of forum clause ought to be given effect to on the
policy of holding parties to the party that they have struck unless there is a
serious reason or cause that would justify taking proceedings notwithstanding
an express choice of forum clause.
 Federal CoA in Pompey had read out the express choice clause, had also replaced
the test of “serious question” with the test that is applicable to interlocutory
injunctions.
 Said we should apply when we are asked to stay the case, notwithstanding
the express choice of forum, we should apply the law we would normally
apply if we were asked to issue an interlocutory injunction. Would there be
irreparable harm?
 SCC said when dealing with express choice of forum clause, that has to be given
effect to unless there is a serious cause or question that would go against that
choice of forum. But, importantly, at 372, SCC indicates that express forum
selection clauses are separate from general forum non conveniens inquiry.
 In Preymann, question between Austria and BC, court seeks to use 11(2)(f) as a
factor, that may be utilized here, (fair and efficient working of Canadian legal
system as a whole)
 Express Forum Selection
 Two ways to look at it, 1 – that it does not fall under s. 11 (position of BC Courts)
therefore it falls outside of s. 11 and reliance is placed on SCC decision of Pompey, or
2 – look at general clause in s. 11 and consider the circumstances relevant to the
proceeding.
 Preference is to BC approach, outside the section. Simply because, on the case
law it is given considerable emphasis.
 Must be given effect to unless serious case to be raised against it, one would have
thought that as a matter of legislative drafting one wanted to include it in s. 11
one would have specified it as a factor.
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By missing it out entirely, when it’s important, suggests that it’s better to seek it
alongside of s. 11 rather than as a part of s. 11.
 Pompey was decided in 2003 before CJPTA, though it was passed in 2003.
 Courts have emphasized that whether you put it within s. 11 or outside, it will
prevail as an important factor.
 Whether in or out of s. 11 a forum selection clause will trump unless a serious
case to be made and the burden is on the party that wishes to displace the forum
selection clause. Notwithstanding where the burden may be, it’s on the party
who wishes to displace the clause.
 Preymann v. Ayus Technology Corp.
 Discussion about 11(2)(f).
 Referred to 11(2)(f) as an option, issue with this, doesn’t really fit within that and
also we need to contemplate what it means by a Canadian legal system as a whole,
and as noted in the Wang case, that clause was interpreted as applying only
interprovincially.
 Court here looked at it with regard to forum selection. The view of keeping it aside
makes more sense than putting it within a general position.
 Old North State Brewing
 BC Rail Partnership v. Standard Car Truck Company

ARBITRATION CLAUSES (NOT ASSIGNED)
RECOGNITION AND ENFORCEMENT OF EXTRA-TERRITORIAL JUDGMENTS
 Recognition
 Simply relates to a matter where a finding has already been found, and that it can’t
be raised again.
 If a plf brings in a different jurisdiction and loses, the dft can ask that it not be
brought up again because of the principle of res judicata – matter has been decided.
 If the plf wins in a different jurisdiction and wins, can bring judgment in other place
or bring case.
IN REM JUDGMENTS
 In rem order – relates to the title of an item of property, largely land or immovable
objects.
 Special rules apply in relation to recognition and enforcement, basically the
judgment that has been given in relation to a title issue can only be given by the
courts in the place where the land is located and the law in the place where the land
is located.
 Exclusive jurisdiction in that context in relation to immovables. Basically land, or
certain interests that are treated like land (like mineral rights). Features that are
treated like land, come to edge where courts may differ on opinion on what is
immovable.
 Canadian Conflict of Laws – section 14.11(a) and (b)
PERSONAL STATUS JUDGMENTS
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 In BC reference to legitimacy was removed in 80s, but other jurisdictions may not
have.
 Legitimation – situation where someone was born outside of wedlock but the
parents married subsequent to that. Could apply to areas where there is some
question as to the status of a person (adoption, etc) – generally fall under some
conflict of law provisions.
 Section 14.11(c), chapter 11.
IN PERSONAM JUDGMENTS
 Coursebook notes on 397 that it’s a nice question as to whether Morguard has altered
the law for rem orders interprovincially.
 In rem judgements are subject to their own special laws, it is a nice question of
Canadian constitutional law as to whether those special rules are also subject to
scrutiny under the Morguard principle.
 Howell’s view tends toward saying, if they are not within that principle (doesn’t
think they are yet), they ought to be.
 Looking at Enforcement of Canadian Judgments and Decrees Act, and you look at
definition of Canadian judgment s.1(1), under (a), referring to monetary, under (b), a
non-monetary judgment (a person being required to do or not to do something), and
under (c), reference to rights, obligations or status (this subsection 1(1)(c) includes
judgments that refer to rights, obligations or status in relation to a person or thing –
what does thing include? Land? Commonly one wouldn’t refer to land as a thing.)
 Pecuniary/Monetary
 Court Order Enforcement Act
 Part II – The reciprocal enforcement of Court Orders (or Reciprocal Enforcement of
Foreign Judgments)
 Look at three things, 1) Common Law, 2) COE Act, specifically part 2, and 3)
Enforcement of Canadian Judgments and Decreets Act (interprovincial application)
 Doesn’t equate with the Morguard case, has been around for a long time.
 Doesn’t provide an issue of constitutional nullity because of Morguard – because
it is seen as a short cut. If you come within the COE Act, then you can register
your judgment under the COE Act.
 Narrower than Morguard - doesn’t seek to alter the common law, just sits
alongside and offers a shortcut if you sit within its terms.
 Act concerns only monetary judgments and it only applies between
reciprocating states (states that have signed an enactment).
 In Canada, basically all provinces except QC.
 In Aus, includes a bunch of territories as well as NSW, etc, except Western
Australia.
 In US, a few states.
 In EU, basically Austria and Germany.
 In UK, in a limited way.
 S. 29(6)(b) – (may be wrong). There are conditions, must be carrying on business or
ordinarily resident, or has voluntarily appeared or otherwise submitted during the
proceedings to the jurisdiction of the court (basically attorned during the
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proceedings or was ordinarily resident or was carrying on business within that
state).
 Pretty traditional in terms of what can be covered.
 Settled in most senses, though not for electronic transactions.
 Court Order and Enforcement Act does NOT equate with the Morguard case,
predated Morguard; does not however provide an issue of constitutional nullity
because of Morguard, b/c seen as a shortcut → if you come within the Act, which
is predicated upon pre-Morguard traditional principles, then you can register
your judgment under the Act = shortcut to enforcement, once registered under
Act then automatically enforceable as if judgment in BC
 So narrower than Morguard – based on traditional grounds of recognition and
enforcement → valid b/c does not seek to alter CL; simply sits alongside and
provides a shortcut
 Act concerns only monetary judgments and it applies only between
reciprocating states (states that have signed up to enactment)
 S. 29(6)(b) must be ordinarily resident in that state, carrying on business in that
state or has voluntarily appeared or attorned during the proceedings
 NB: question as to what it means to carry on business in an internet/electronic
context
 S. 29(6)(d) excludes if the judgment is obtained by fraud – NB: when we look at
Beals we will be looking at notion of judgments and fraud
 S. 29(6)(e) registration is precluded if an appeal is pending or if the time in
which an appeal might be taken has not expired
 S. 29(6)(f) if the judgment was for cause of action that for reasons of public
policy, or other similar reason, would not have been entertained by the
registering court
 S. 29(8) if a judgment provides for payment of money and also contains
provisions for other matters, may be registered under this part for payment of
money – so Act contemplates that judgment might be severed between judgment
of money part and other parts (consider this when we discuss Pro-Swing)
 Recall Morguard, interprovincially, looking at order and fairness which lead to the
real and substantial connection (also predicated upon comity, with the note that
comity interprovincially is stronger than internationally).
 Also note that, the relationship of the taking of jurisdiction and the recognition
and enforcement principles go together.
 If real and substantial connection then judgment is to be enforced
 In terms of interprovincial application of Morguard, it is an in personam
judgment, notwithstanding fact that it did deal with mortgages in AB (just
concerned with seizing land, rather concernd with land not providing sufficiency
of revenue to lender.
 Need to distinguish principle of reciprocity at CL from reciprocal registrations
under the Court Order and Enforcement Act (two separate concepts)
 Reciprocity under Act relates to s. 37, to states/other jurisdictions signed up
under the Act
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
Reciprocity under CL, relates to a means of determining when an extraterritorial jurisdiction has properly taken jurisdiction on a real and
substantial connection.
 Principle of reciprocity simply states that if an enforcing court under its
law, procedures or policy would have taken jurisdiction in similar
circumstances then the taking of jurisdiction by the extra-territorial court
is valid as a real and substantial connection jurisdiction.
 Reciprocity as a theory is well-established in the QC Civil Code (art 3164).
 It is described and discussed in the Canada Post case by J. Lebel at paras
24-26, discusses the principle of reciprocity.
 The theory is, if the enforcing court under its law procedures and policy
would have taken jurisdiction in similar circumstances.
 To what extent is this principle applicable under common law?
 When Morguard got to the SCC, Laforest discusses reciprocity in this
theoretical context, and does not expressly adopt it but does not
expressly disapprove (though Label considers that Laforest did reject
reciprocity at least in an interprovincial context and questioned its
usefulness).
 Discussed, not adopted, not disapproved.
 Laforest decides on real and substantial connection and comity.
 Where does it come from in Common Law? Para 29 in Beals.
 Justice Major, giving majority judgment, “in the absence of a different
statutory approach, it is reasonable that a domestic court recognize
and enforce a foreign judgment where the foreign court assumed
jurisdiction on the same basis as the domestic court would, for
example, on the basis of a real and substantial connection basis”
 Adoption under CL comes from Beals, not Morguard.
 When looking at a jurisdiction taking jurisdiction or recognizing and enforcing,
do we have regard to jurisdiction simpliciter and forum non conveniens? Or do
we just have regard to jurisdiction simpliciter?
 In the Canada Post case, interpreting provisions in the QC Civil Code, Lebel
rejected applying the code provisions that are equivalent to forum non
conveniens.
 Nevertheless, forum non conveniens has been taken account of, sometimes in
common law (in BC, Brain Tech case).
 From Morguard and Hunt, Laforest for the SCC noted that constitutionally there is a
jurisdiction under s. 91 (POGG) for the federal government to be involved in
recognition and enforcement interprovincially and internationally. (they have
stayed away, however)
 When we look at this area, reminded of US due process clause, that a defendant
ought to be able to foresee or contemplate forums that they may be liable to be sued
in. Recall that on a couple of occasions the courts in Morguard and Hunt (pg 44)
have left open the situation under s. 7 of the Charter of Rights (doesn’t expressly
cover property), though in the US, reference to property is in their Bill of Rights(?)
which we don’t have.
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 Defences – tax, penal, public policy, etc. (when looking at Beals – ex/intrinsic fraud).
 Recall from last time, the Teck Cominco case, position re: recognition and
enforcement, if the US court was the first to reach a judgment, would that judgment
be enforced in BC, given that BC and SCC declined to stay the BC case.
 Said three options, recognize foreign, ignore and take local, or do some sort of
hybrid.
 In Canada Post, applying art 3155(4) of the QC Civil Code, gives priority to local
or domestic judgments.
 If a judgment has been made or if proceedings are ongoing.
 With regard to Pro Swing, in enforcement traditionally, courts have not looked
behind the judgment.
 This too is expressed in the QC CC.
 In monetary judgments, predicated upon the notion that it’s just a debt.
 In a non-monetary context, the court looked very much behind the judgment.
 General points to keep in mind, decision about tribunals.
 The area of tribunal recognition and enforcement is largely unexplored.
 Tribunals are treated under ECJaP Act (interprovincially).
 Looking at reading list
 Final and Conclusive
 At common law, final and conclusive within the court that decided it.
 In other words, res judicata in the court that decided it.
 The fact that there is an appeal process doesn’t prevent recognition and
enforcement at common law.
 If there is an appeal process or ongoing, it is relevant under COE Act 26(e).
 NEC Corporation
 Initial filing under reciprocal enforcement legislation then appeal was made,
court said cannot stay under the Act because there is an appeal BUT can go back
to CL fact that you have decided to file under Act does not preclude you from
going back to CL, so registration under Act was struck out but judgment party
could enforce judgment at CL and thereby gain access to certain procedures such
as Mareva Injunctions and garnishing orders.
 Nouvion v. Freeman
 KEY CASE – GET THIS
 Jurisdiction of the Foreign Court in an International Sense
 Service in the jurisdiction, even if fleeting.
 See Forbes, Re Carrick
 S. 29(6)(b) of CEP Act judgment will not be enforced unless person carrying on
business in juris or ordinarily resident or had attorned to jurisdiction – so fleeting
service not available under Act, but still under CL.
 Focused at CL on attornment. Think s. 29(2)(a)(ii) and 29(6)(b)
 The act itself does not define attornment.
 Law of the forum that determines if there has been attornment.
 Looking at a spectrum of contexts to determine what’s involved, if you appear and
defend on the merits then that is attornment. If you appear and seek a stay and get
into the merits on a question of a stay, as opposed to simply looking at the question
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of jurisdiction, then there is attornment. If you limit yourself to jurisdiction, then
that is not attornment under BC law. If you appear and you get into the merits
purely because you have property in the jurisdiction or that you travel frequently to
the jurisdiction, those features don’t excuse or explain a lack of attornment – it will
be found to be attornment.
 Protecting property or travel there frequently, doesn’t save you from
attornment.
 However, if your property has been seized and you attend and deal on the
merits, to the extent of looking at the validity of the seizure, there is conflicting
authority. Some say it is entering upon the merits and it is attornment, other
authorities will say it is not. The latest authority (Wang v. Sun para 39-50) where
the situation is set out, that case would seem to allow you to embark to some
extent on considering the merits if your property has been seized (or in this case,
garnishee order was made), regarded as duress, therefore not attornment.
Authorities are conflicting on that point.
 Basic proposition in BC, if you are challenging jurisdiction, strictly on
jurisdictional grounds, not attornment. If you get into the merits, it is, even if
your motive is to look after property, or because you travel there, it is
attornment.
 But, if property has been seized, or garnishee order, then a conflict in the
authority, and some authorities will say you can get into the merits as to the
validity of the seizure.
 It is an open question as to whether after the decision has been made, you file
an appeal, or you ask for the matter to be reviewed. That point is left open in
the National Bank case.
 Beals
 Along with Pro Swing – major cases.
 You can see immediately when you look at both cases, there is substantial
disagreement at the SCC. That disagreement will continue (Howell suspects)
because if you look at Pro Swing, which was a 4-3 decision, and you look at the
judges who were involved, they have all, except 2, retired.
 Applies the Morguard principle, order and fairness, real and substantial connection
with jurisdiction simpliciter to international judgments.
 No doubt that the FL court had a real and substantial connection, involved a
transaction involving land in FL. Probably no other court that has a better
jurisdiction than FL in the context of the facts.
 The problem was the process that was entered into in FL. In particular, what started
out as a transaction involving $8000 for a piece of land, the awarding of damages
and a process of penalties under FL procedure for not filing appropriate documents
at appropriate times, the $8k escalated to $1MM judgment.
 The legal problem that faced the participants was, to go or not to go.
 What would you have advised? – Client comes to you and says should I buy an air
ticket to go to FL, or stay here?
 Should this be solved with judicial activism? Or left to legislature? Come down to
non-waffling decision.
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 At para 18 says Morguard did not decide whether RaSC applied to foreign judgment
although some appeal courts have extended Morguard to that situation (including
BCCA).
 Para 15, should RaSC be extended to foreign judgments? Compelling reasons to
expand and no principled reason not to do so. The compelling reasons to expand are
not elaborated on at that point, but looking at para 26 some policy grounds are
stated, such as international commerce, trade, the world economy – yet we still deal
with de-centralized, territorial, political jurisdictions. We can take the compelling
reasons as being international commerce as being international trade, etc.
 What about, how does a lawyer advise someone when the advise is succinct – go or
not to go? When the courts themselves are in a state of flux in this context?
 At para 21, court refers to order and fairness, RaSC, talks of the connection between
forum and the subject matter or the defendant. From s. 10, the RaSC exists between
the forum and the facts, and s. 11, the parties. Here, need to focus on forum and the
facts, or the parties. Here (in Beals), between forum and subject matter or forum
and..
 Note SCC indicated that comity was not to trump the legislative provisions of the
CJPTA, and drew back from a notion of comity seeming to justify a lot of things (like
recognition and enforcement).
 Get the impression, until Teck Cominco, that the mere mention of the word comity
stops all discussion – after Teck, that is not the case.
 Para 28-29, the majority makes it clear that what it is stipulating is subject to the
legislature adopting an alternative approach… (this has not been done).
 Not unconstitutional to mention, that legislatures can adopt a different approach,
but legislatures have to be careful to stay within 92(13). Are you legislating in the
province – or outside of it?
 Para 29, the court looks at reciprocity, and here, talking about reciprocity as a
theory, the court notes that, like comity, the notion of reciprocity is equally
compelling both internationally and interprovincially. The assumption is that
Laforest went along with reciprocity interprovincially, but did not expressly, but
noted that it would be odd for a jurisdiction to not enforce a judgment if the
enforcing jurisdiction would have taken jurisdiction under those circumstances.
Doesn’t expressly stipulate that reciprocity is the test interprovincially. In the
dissesnt, Label said Laforest in Morguard did not approve reciprocity
interprovincially and actually doubts it internationally.
 Para 30, the majority notes that in Spar Aerospace in 2002 that, speaking for
unanimous court, Label noted that Morguard should be limited to an interprovincial
context. The court doesn’t delve further into that, simply indicates that it sees the
international context as appropriate. Makes a point that it is Canadian conflict of
laws that determines recognition and enforcement of foreign judgments.
 The court embarks on this, it doesn’t deal with the question which was present in
Morguard, to say, what is the impact interprovincially if we now apply the same rule
internationally? If we go back to the beginning, Laforest in Morguard says the idea of
each province seeing itself as a foreign country to each other province isn’t good,
must have full faith in the other provinces because it’s one country.
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Now, says there’s nothing special about being one country, and says what was
being applied interprovincially should now be applied internationally.
Some discussion at para 31 as to whether or not a distinction should be made
between foreign judgments that have gone through a trial and foreign judgments
that are simply default judgments. Without much elaboration, the majority states
that there is no logical reason to exclude default judgments or to make a distinction
between default and trial judgments. The problem is that, if you take away the
default judgment, you take away a strong incentive to get people to attend the
foreign court if they have to go through a full trial…
Para 32, RaSC requires a significant connection. Nevertheless, when we look at the
taking of jurisdiction simpliciter, we know it’s relatively a low bar that has to be met.
So, maybe the bar needs to be looked at in terms of para 32, that real substantial
requires significant, yet the bar is not terribly high. The court notes that a fleeting or
relatively unimportant connection will not be enough to give a foreign court
jurisdiction.
The court looks to whether he or she has participated in something significant or
was actively involved in the foreign jurisdiction. Important when considering the
internet, as there isn’t much Canadian jurisprudence re: the involvement with a
foreign jurisdiction during an online transaction.
Here, the party clearly purchased land in a foreign jurisdiction, but there isn’t much
guidance on the internet front.
Here, says foreign court must have a connection at least as what was established in
Morguard.
Defences - para 41 – indicates that while they are not to be looked at in this case,
they are not exhaustive. The majority have left the door open for crafting of new or a
modification of the defences, though it didn’t do so for this case. Does say that
defences must remain narrow. The one defence it broadened was the defence of
fraud.
 Para 43+, looking at fraud, the court looked at the precedents that existed and
said first, you have extrinsic and second, intrinsic.
 Later said those terms were confusing. But said that extrinsic fraud goes to the
jurisdiction of the court.
 Intrinsic, division of authority between ON and BC.
 ON recognized intrinsic, BC did not.
 Goes to the merits of the case, including fraud that goes to persuading that
cause of action does or does not exist.
 ON said that, under this heading, when the time came to recognize or enforce,
the enforcing court could look at new material facts that had been newly
discovered and which were not before the issuing court, and/or that they
were not available at the time.
 Majority, at the time, took the ON approach and expanded it to both extrinisic
and intrinsic fraud.
 Said the focus had to be on new facts that had not been discovered before.
Majority found no difficulty with the natural justice issue, the majority said there
was no requirement on the plf to describe the legal steps that will have to be taken
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by the defendant to comply with the procedure of a foreign court. Label had said
that should be a requirement.
The majority view here, quite reasonably, if you do have a RaSC connection with a
foreign jurisdiction, (as it was here, purchased land in FL, then you ought to know
what the law is in FL).
Majority also said (rejecting another point by Label in the dissent) that there was no
duty on the plf to establish that the foreign legal system is a fair legal system. Label
had said that, when you expand this internationally, there must be an obligation to
demonstrate positively that the foreign jurisdiction must have a legal system that is
fair. Majority instead said that the dft would have to prove it was unfair.
Said when you are dealing with foreign judgments, beyond interprovincial, it is
mandatory for the foreign court to be satisfied that a fair process is used.
Para 63, foreign court must be minimum Canadian standards.
When it comes to foreign policy, a large issue here that is a question that Howell
thinks legislatures should look at – the court rejects that a large quantum by itself
should be grounds to say that a public policy intervention is necessary. There have
been cases that have tended to say a large quantum may be a public policy ground to
deny judgment.
Have a look at the Uniform Enforcement of Foreign Judgments from 2003,
conference sent out a draft structure for provinces to consider, and in s. 6 of the
draft legislation, would give discretion to the courts to remove or reduce punitive or
multiple damages that are not focused on compensation. S. 6(2) allows the amount
of compensatory damages to be reduced if the court feels that those damages are
excessive in the circumstances and multiple damages that are not compensatory.
Only SK has adopted the uniform law at this point.
 Problem arises with US judgments at this point, as US operates with juries in
civil cases. Jury may go away and come back with a sum, a global sum, doesn’t
have to be rational, could say $10MM.
 One might distinguish large judgments as a matter of quantum from abatery
judgments?
In dissent, Binnie said that a judgment going from $8k to $1MM was breath-taking,
and described the outcome as bizarre. Noted that a FL jury decided this in less than
half a day. Indicates that the parties were kept in the dark about the true
nature/extent of their jeopardy, but the counter argument is that if you bought land
in FL, find out what your liability is – if you went down to buy land, you should find
out. Also noted that parties had not been served with some documents that maybe
they should have.
 Binnie notes that a time will come when a re-examination will have to take place.
Looking at Label, there were three broad points in his dissent:
 Unfairness in the assumption of jurisdiction – difficult to see what he’s talking
about, there was no unfairness in the assumption by FL. Perhaps he’s talking,
more generally, could read into that a forum non conveniens, but even then it
wouldn’t be such, and Label rejected the idea later in the Canada Post case
anyway.
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Secondly, rejects using reciprocity as a theory – whereas the majority adopted it.
To be fair to the majority, the QCCC expressly stipulates reciprocity and Label
thought it odd not to enforce if it would have taken jurisdiction.
 Third, merited – talks of the logic. If you are going to expand the assumption of
recognition and enforcement, should at least consider and rationalize the
defences. Shouldn’t expand, and then turn a blind eye to the defences,
 At para 210+, looks at this broad notion of balance. Saying we need a balance
between security of transactions on one hand, and fairness to the individual on
the other hand. Says the traditional grounds of recognition and enforcement, and
the traditional ground of defences go together, if you expand recognition and
enforcement, should at least consider expanding the defences.
 Notes most of the $1MM was not based on proof of any loss, or based on
compensation.
 Pro Swing
 Majority was Label, now in the majority, CJ was in the minority. In the context of
non-monetary judgments, the majority in Pro-Swing has engaged in a very
significant intrusion into the merits of the case.
 Review of last class, March 3, 2015-03-03
 Beals
 Looked at the majority in detail, then looked at Lebel’s judgment.
 Difficult judgment to read,
 Three themes
 Unfairness in the assumption of jurisdiction – not exactly clear what Lebel’s
addressing in this point, as we noted, given that it was land in Florida and on
the facts of the case there was no connection… Maybe Lebel was referring to
utilization of forum non conveniens,
 Reciprocity
 Third – most important, makes compelling argument, expand basis for
recognition and enforcement, need also to look to reviewing the scope of the
defences. Looking from defence point of view, forms a general defence of
unfairness. Makes two specific points, which the majority expressly reject,
that is that the plf has to show that the legal system of the other jurisdiction
is fair, (rejected by majority, though the majority did say the enforcing court
must be sure that the procedure followed was fair (which it found it was)),
and secondly Lebel indicated specifically that the plf should detail the legal
steps to be taken or the consequences that would follow if they were not
followed by the dft – also rejected.
 Pro Swing
 Keep in mind Lebel’s third point, general defence of unfairness, then look at this
case, we see here that the majority now (with Lebel) is in effect, and in broad
terms, taking that sort of approach but with some specific detail.
 Only two justices are still around from this case. (Abella and McLachlin)
 Dealing with US registered trademark, has effect only in the US. (Same with a
Canadian registered trademark) – strictly territorially focused.
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Plf is in OH, dft in ON. Alleged to be a breach of the trademark by virtue of sales
of golf clubs and a settlement agreement is reached and then that is incorporated
into a consent decree in US district court.
No territorial limit specified in the relief, so one could contemplate (and the
majority did), that this injunction and the order made by the OH court would be
to relate to purchasing, marketing, selling wherever. US trademark doesn’t
provide for exclusive rights wherever – only within the US.
Also contempt, that the decree was not complied with.
TJ was prepared to enforce judgments but CoA set aside.
Non-monetary order – breaking new ground.
Members of court were prepared to contemplate such a move, but majority said
not in this instance.
Court has said yes we will entertain non-monetary orders, but the majority said
this case “no”, and there was to be extra scrutiny in a non-monetary context.
Interprovincially after Morguard and Hunt (non-monetary), we can say yes,
we’ve moved into that context. Internationally, Pro Swing was breaking this new
ground.
Looking at monetary, the theory that has operated upon in enforcement of debt.
Role for enforcing court is traditionally limited to enforcement of monetary
judgment.
Moving to non-monetary, dealing with something that can potentially reach deep
into the enforcing court’s system. Most non-monetary judgments, or at least
many of them, will be equitable judgments, (injunction) and as such,
discretionary judgments. If our courts themselves were issuing, there would be a
good deal of discretion involved in them.
Do we need finality in a non-monetary context?
 As we go through Pro Swing, we see that the courts have left that “for
another day” pg 454. Court instead has talked in terms of (451) the nonmonetary order being clear and specific. CJ dissenting compares clear and
specific with final and conclusive. Court links this with the question of followup if there is non-performance. If there is follow up for non-monetary, where
does that go?
 How does one deal with this type of situation?
 The Pro Swing case indicates that one has to get into the detail of the case
to a significant extent (for non-monetary), which is contrary to accepted
theory for monetary judgments which is that you don’t look behind the
judgment. In a non-monetary judgment you’re very definitely looking
behind the judgment. Enforcing through your discretion a non-monetary
order. Page 151 the majority talk about commentators and their
commentary on the Beals case, and this is one area normally academic
commentators when it starts to be activist.
Pg 452 – this is a matter of discretion, specific circumstances relevant to the
particular case, will follow-up be necessary? Whose? – Not answered.
Pg 453, court notes that Canadian residents should not be made vulnerable to
unforeseen consequences in a forum unknown.
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453 – looks at cost of supervision, must be proportionate to the importance of
the order. Basically saying that the Canadian taxpayer will be paying for the cost
of the order, should be an order that fits our systems rather than the systems of
another foreign jurisdiction.
454-55 Majority notes that comity does not require receiving courts to extend
greater judicial assistance to foreign courts than to domestic courts in a
domestic situation, also a need to incorporate the flexibility that goes with
equity. In particular, the court noted that there was a contempt order, now the
court notes that in the US there can be criminal contempt orders and there can
be civil contempt orders (basically monetary in the nature of restitution), court
notes that in Canada contempt is criminal. As such, that gets into the
characterization of penal.
Question of severance arises. Portions of the judgment should not be severed.
Says you can embark on severance. Howell doesn’t think it was possible in this
case, but the international trend studies have focused on severance and have
approved a notion of severance. CJ’s view of severance is well-made, but perhaps
not in this case because it is such a convoluted case. To sever, would have to get
very deeply into the merits of the case.
Most significantly is the trademark, the court majority notes that the subject of
conflict of laws ought not to be utilized to give universal effect to a territorially
based property right. When you get into IP you get into rights that are given
(economic monopoly rights) on a territorial basis, or perhaps more than
territorial (if looking at copyright), but here we’re dealing with a clear territorial
right. An economic monopoly that can exist as a monopoly only within the
territory of the US. Yet, if you enforced the order, which by its terms extended
into activities that were alleged to infringe into ON and elsewhere outside of the
US, you’re giving extra-territorial effect to something that can only be territorial.
Which is very much looking behind a judgment. The dissent said, well you don’t
look behind the judgment, but if it’s extended extra-territorially then it’s an error
of law, and up to the issuing court to fix.
Hypothetical, suppose a trademark, US, and the order that is given relates to
infringement in the US, but then the order goes on and says infringement of the
US trademark in Canada. Can’t do that in Canada. But instead of a non-monetary
order, the US court has said $100k damages for infringement in both US and
Canada, what would we do? Would we say, this is a non-monetary order, it’s a
debt, we don’t look behind the judgment, a debt does not go deeply into our
system.
 Other point of view, this is jurisdictional, should we make a distinction
between an error of law and an error of law that is more of a jurisdictional
nature.
Court has indicated that it is happy to get into enforcement of international nonmonetary orders, but majority is saying more detailed, more in-depth care will
be required for looking into the merits of the judgment that is brought forward.
Howell says there is a comparison to be drawn in non-monetary context with
that was said by Wilson about monetary judgments in Beals case.
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 Subject of the Ecuadorean courts, trial court had awarded $18B and the final appellate
court had reduced that to $9.5BB. Difficulties of enforcing that judgment against
Chevron in the US, the judgment is brought to ON and is sought to be enforced against
Chevron Canada. Chevron Canada had nothing to do with Ecuador. The ONCA looked at
the situation and in a passage without citing authority stated that because Chevron, a
major company, would be in a position of guaranteeing the debts of its wholly-owned
subsidiary. (Chevron Canada was about 7th down the line), that enforcement could
proceed against Chevron Canada.
 So, another example of judicial activism, currently before the Supreme Court.
 Howell thinks ONCA should be reversed.
 Other interesting point with this case, is the jurisdiction to enforce. This issue really
comes up because normally the judgment is brought to a jurisdiction for
enforcement, the dft is resident (ordinarily) in the jurisdiction and therefore there is
jurisdiction to enforce. Here, what was the connection with Ontario?
 Chevron Canada head office was in AB, as such it was not ordinarily resident in
ON. However, Chevron Canada did have a place in ON, and the ONCA looked to
the ON rules, and found that it could take jurisdiction under rule 1602(1)(c),
which spoke of simply, you look at the rules, simply speaks of serving and
processing documents on a corporation that has business in ON, and Chevron
Canada did have a business connection in ON. Re: ordinary residence, head office
was in AB.
 Might say that, ON court was on thin ground on that point as well, but did have a
business there.
 Put into BC context, look at s. 3(d) of the CJPTA, that the company was ordinarily
resident in BC and you go down to s. 7(c) and it states in the case of a
corporation it is ordinarily resident in BC if it has a place of business in BC.
(Lines up with ONCA reasons).
 Final point about this case is, if one picks up the statements of McPherson
towards the end of the judgment where he talks about the need for the
Ecuadorean Indians to have a place to enforce the judgment. Apart from pure
policy statements, if you’re looking for some hard law, perhaps look to s. 6 of act,
jurisdiction of last resort. Area hasn’t been evaluated very much, but if door is
opened there, probably exists at CL, though not developed, that if there is no
where else to go, if you might be a court of last resort, as such you may fit within
that type of scenario.
 Recognition and Enforcement
 To what extend can/should an enforcing court take into account jurisdiction simpliciter,
but also forum non conveniens.
 Braintec case
 Early case involving internet defamation, both the dft and plf were residents of
BC. The dft, Kosteuk? Placed on the internet information that was potentially
defamatory of Braintec and, in defamation, you can defame a corporate entity as
long as the defamation is limited to its business activities.
 Filed in TX, judgment was given in TX.
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Would BC enforce the judgment? Language that is used is drawn by the BCCA
from the SCC judgment in Amchem. Amchem involved should a stay be issued or
ASI?
 The court in BC quotes from Amchem “has TX departed from our own test of
forum non conveniens so as to justify our court’s refusal to respect the
assumption of jurisdiction?”
 Came to view that it could be used and natural jurisdiction was BC, both
parties were BC, link with TX was some passages in the judgment didn’t exist,
the link there was a research and development office was there, but linkage
was minimal. Judgment was very much focused on forum non conveniens
and used by a BC court in recognition and enforcement saying we won’t
recognize because we are the natural jurisdiction. That was at a time where
jurisdiction simpliciter and forum non conveniens were largely talked about
in the same breath. Van Breda has since separated these inquiries.
Canada Post
 Court said Canadian proceedings would not be stayed either.
 Get to end of judgment, what do we do when we get to recognition and
enforcement, CJ said well we are leaving that point open. Either we engage in a
first to judgment race, or we give absolute priority to local proceedings, or we
enforce the foreign judgment with certain enhanced defences. But we leave that
question open. That open question involves forum non conveniens, because the
whole of parallel proceedings is a whole forum non conveniens inquiry.
 3155(4) in the Civil Code gives priority to local proceedings.
Review of Last Class
Braintec looked at forum non conveniens principles and jurisdiction simplicter and
cited from Amchem (ASIs) that was a case that discussed a stay, and the focus of
Amchem was forum non conveniens (with ASI on the side).
Braintec is a fairly strong case (per Howell), but weakened by the fact that it was
decided at a time when jurisdiction simpliciter and forum non conveniens were
basically rolled into one inquiry.
 Since then, with Van Breda at CL and the CJPTA, the two inquiries are separate
and distinct.
 Howell thinks that weakens the Braintec case to some extent.
 Nevertheless, it’s BCCA and an authority.
On the other hand, we have the Canada Post case, which is interprovincial.
 Did a number of things, one that the SCC is quite explicit of, is the interpretation
of the QC Civil Code, that principles of forum non conveniens are not to be
considered if it was appropriate to take the jurisdiction.
 Interprovincially, there may be a reason why one should focus only on
jurisdiction simpliciter.
 Two principle points of focus, then the third point, which is to look at the parallel
proceedings context, parallel proceedings are essentially forum non conveniens.
Ordinarily both, or all, jurisdictions have jurisdiction simpliciter but one is more
appropriate than the other.
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Very much a forum non conveniens context. In this context the SCC, in Teck
Cominco, deals with the issues that are antecedent to recognition and
enforcement, namely the question of a stay – and declines to stay the BC
proceedings in the insurance context on the basis that BC is the more convenient
forum in relation to the insurance question in Teck Cominco.
 The court recognizes right at the end that there’s a problem down the road when
it comes to R&E should the American court go ahead with a ruling.
 Poses three situations to consider:
 Is the principle going to be first to judgment?
 Is the principle going to be absolute preference for the local forum?
 Will it be a first to judgment principle mixed in with some elaboration
with the defences?
 Now we come to Amtim Capital, 2014, leave to appeal to SCC was denied on May
29, 2014.
 This was a parallel proceedings case in an international context.
 Recognition and enforcement case, and a case where forum non conveniens is
applied.
 Essentially this case is similar to the Westec case, where contractual
arrangements were made between a Canadian and American firm and the
Canadian firm is the natural plf, but the US firm moves, in MN, to get a
declaration to the effect that there’s no more money being owed under the
contract, that the method of calculation of payments is an appropriate method
(under the K), and that means that the US entity had no further obligation under
the K.
 That judgment is brought for recognition and enforcement in ON, but the ON
courts would not stay the ON proceedings.
 So, the question that has to be answered (or was answered by ONCA), is the very
question that the SCC left open in Teck Cominco.
 Here we have a situation where ON proceedings are not stayed, yet we have a
first to judgment by way of a declaration in the US brought to ON for recognition
and enforcement.
 And the ON court essentially applies forum non conveniens.
 It finds in effect that the presence of the US decision is just one factor to be taken
into account. And it elaborates by saying that unlike the Westec case, it was not
an even balance between the two courts. Here the court notes the services were
provided in ON, and Amtim really had no contract with MN, ON law was to be
applied, and it is therefore more appropriate to be in ON. Also suggested that MN
court may not even have had jurisdiction simpliciter, though the ONCA accepted
that MN had jurisdiction simpliciter (though it had been debated).
 If we stand back from that, it deals with the point left open in Westec, but deals
without using any of the three options the SCC posed in Teck Cominco (as above).
 It engaged in a forum non conveniens inquiry weighting the MN judgment as one
factor in an overall inquiry.
 That’s an international case.
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Could say, Canada Post was parallel proceedings, why was it not necessary for CP
to engage in some sort of analysis.
 Answer is quite clear (to Howell) there was no need in CP to engage in any such
inquiry because article 3155(4) of the QCCC, statutory mandate, had basically
decided that when it comes to R&E there is priority for a decision that has been
made or a decision that is pending in QC, same parties, same issues, or decision
pending.
 Though it was parallel proceedings, it wasn’t necessary to get into, because it
was dealt with statutorily by the QCCC.
 Secondly, it was interprovincial, and as we will see, when dealing
interprovincially, it may well be that this type of issue between provinces is not
so significant, because it could all end up in the SCC anyway.
 So, you have the Amtim case, and ONCA and it engages in a forum non
conveniens analysis and when faced with the situation from before, takes a
different approach than the three the SCC had articulated before.
 To wrap up a few points:
 One significant point Howell wants to discuss, enforcement of Canadian
Judgments and Decrees Act, which by statute has gotten into non-monetary
orders. We will look at this statute to see the infrastructure that was put in place
by the statute to deal with, not only monetary judgments, but also non-monetary
judgments in a context where interprovincially it is pretty clear that nonmonetary judgments are enforceable. (ie Hunt’s case).
 Nevertheless, as we go through the statute we will see that quite an elaborate
structure was put in place.
 When looking at Pro Swing internationally, the court contemplates that it will
happen internationally but doesn’t deal with it in that case.
 So how is it going to be effected? Very well to say they will recognize it, but how
will they do it?
 Definition of a Canadian Judgment:
 Order to pay money.
 Here we should note s. 2(2), order to pay money has to be a final and
conclusive order.
 Doesn’t address any question as to whether or not any appeal is made,
presumably a common law interpretation of a final order.
 Order of a tribunal is included, so long as the legislation that establishes the
tribunal says those orders are enforceable as orders of a SC would be.
 In other words, a superior court of record with inherent jurisdiction..
something something.
 Secondly, going back to definition of Canadian Judgment, point B says “order
under which a person is required to do or not to do an act or thing”.
 Looking at 2.1, Canadian Judgment non-monetary order - whether or not it’s
final, but 2.2, if it’s money, has to be final.
 In many respects, when dealing with non-monetary orders, interlocutory
orders are very important (order for discovery). When dealing with nonmonetary orders, it’s important to look at interlocutory orders.
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 2.1 whether or not final, interlocutory is included.
 2.2, if it includes money, must be final.
Then we go back to definition of Canadian Judgment, C, order that declares rights
obligations or status in relation to a person or thing, mentioned earlier, this
particular clause has potential to get into in rem orders. Particularly its reference
to status, because a declaration of status is akin to an in rem order, yet it doesn’t
seem to contemplate an order in relation to land, because it speaks of a person
or thing. Thing can include a moveable chattel, but would we interpret thing as
including land? Probably not. If you wanted to include land, given the
significance of the rule, then it has to be the courts and the jurisdiction of the
land that decides. Howell says unlikely to include land, but there is a reference to
status that gets it into an in rem area.
Looking at s. 2(3), Canadian judgment that contains provisions for relief that
may not be enforced under this act may be registered under this act except in
relation to those provisions.
Section 5, questions there related to money, and the time period is stipulated as
being the time period of the place of issue subject to 10 years, 5(2) discusses
equitable doctrines.
Looking at s. 6, the Act addresses situations where the court of the issuing
jurisdiction can provide directions as to the enforcement.
Reading through these sections – find that they’re quite detailed, can be modified
to be in conformity with local practice, can stipulate the procedure, can stay or
limit the enforcement of the judgment, various things specified in s. 6. All very
sensible things to think about.
What we do at common law in relation to Pro Swing, we don’t have this type of
“how to do it”-infrastructure.
Is it going to be something that we just roll along heavily into, waiting for the
next decision to come along from the SCC? Very likely.
Ought that to be so, given the nature of this area, go back to question from Beals,
if you are asked “do I go to FL or go home?” as a lawyer you, as a lawyer, only
have yes or no as answers. These are the types of questions that come up in
relation to Pro Swing. Court stipulated that a non-monetary order had to be clear
and specific, with the question of finality being left to another day.
 Dissenting judge spoke of clarity, which is closely related to finality (Howell
doesn’t know what that means). But it was said, so we have that to think
about.
 Secondly, how do we actually do this?
 With non-monetary orders contempt is a significant thing to take into
account.
 Court considered the cost of enforcement, contemplated some sort of role as
to supervision, but we’re not told how it will be done.
 One of the problems also in Pro Swing was the order that required the
Canadian dft to provide all credit card receipts, accounts receivable and Ks
with third parties. The majority noted that was a significant intrusion on the
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parties that were party to the credit card transactions. Where are they to be
provided to if they are going to be provided? To Canada? US? Iraq?
 We see there is a need for infrastructure for non-monetary judgments. Who is
going to provide that, who is going to think about it?
 Howell thinks the courts have been far too activist. That aside, they’ve done
it, but we now need legislation to deal with this, but there doesn’t seem to be
any in the pipeline at the moment.
 Lots of talk, various law reform agencies, but it may be perceived by the
uniform law conference as being too early to deal with. Seems to me that
there needs to be something looked at here. Is it a matter for provincial rules
committees to look at?
 If we move around enforcement of Canadian judgments and decrees act, and look
back at COEAct, looking at Central Guarantee case.
 Significant case in respect of its interpretation.
 Application to file under the reciprocal enforcements and judgments statute in
the NWT, the subject matter was a matrimonial home in ON, service had been
made ex juris in the NWT.
 Looked at 29(2)(a), the judgment was personally served in the original
judgment.
 What meaning was to be given to personally served, was that phrase to be
interpreted as meaning personally served in the traditional way, that is to say,
served in ON, or how else was that to be interpreted.
 Court said, the act doesn’t define personally served, act is referring to common
law meaning of personally served and refers to a common law that has evolved
with the Morguard case, to include ex juris. Phrase that is not defined in the act, if
it refers to common law and the common law has changed, then the new
common law meaning can be given to a phrase that is not otherwise expressly
stipulated as more narrow. And it wasn’t expressly stated as more narrow in the
act.
 Second issue in the case, pg 481, court makes it clear that there is nothing invalid
about the reciprocal enforcement of judgments act, it is something that is
alongside of the common law, not something that conflicts with the Morguard
case, and as such, there is no challenge to the constitutionality of the COE Act.
 Re Carrick
 Court notes that in terms of the COE Act, s. 29(6)(d), ordinarily resident is the
requirement, so fleeting presence doesn’t work under the COE Act, says the
provisions may still be okay for fleeting presence under common law, or it may
not, in that context may look at Van Breda case, handout chart, court in Van
Breda said that the traditional grounds are not ousted by the real and substantial
connection, but that some of the traditional rules of jurisprudence may need to
be re-cast but they are a good place to start.
 S. 3(d) requires ordinary residence in BC, and s. 10(k) is focused on enforcement
of that extra-territorial judgment.
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Owen v. Rocketinfo, Inc.
 Under COE Act, act where states from different areas can sign up.
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Last time Howell checked all provinces except QC were party, and various US
states, one of which is CA.
 One that is not, is NV.
 Here, judgment in NV, but NV entered their judgment in CA, so it was listed in CA,
then it was sought to be brought in BC because it was in CA.
 Gets rejected on two grounds, one, generally there was no intent in the
legislation to allow such indirect participation, but specifically the court
interprets the word “judgment” in s. 28(1) as being the judgment that made
money payable, and the judgment that made money payable was the NV
judgment, and NV is not a reciprocating state.
All that one needs to say on recognition and enforcement.
Choice of Law
When Howell studied in NZ, 90-99% of the course was focused on choice of law.
Weren’t look worried about jurisdiction because it was a unitary state and
jurisdiction wasn’t so significant.
When looking at choice of law, need to consider procedure, it’s always lex fori.
It’s a difficult question, what is procedure, and what is not?
The other is substantive.
The big debate at the time, we’ll look at in the Tollefson case.
Common law had always considered limitation as procedural, civil law said
substantive.
Tollefson case decided it would be substantive.
 A number of provinces brought in legislation immediately saying one or the
other.
 Clearly something that some provinces did not like.
 So, what they can do about it – wait and see.
Procedure is always lex fori. We’ll be looking at a couple of cases, but it’s very
difficult to say what is procedure and what is substantive.
 Generally, something that is declaring rights or giving or taking rights from
parties, court said that is substantive.
 If something is primarily prescribing the mechanism to get a right, that is
procedural.
 That is very difficult to come to one or the other.
When looking at substantive law, of another jurisdiction, should also note (already
discussed), a juristic entity.
 The juristic entity, you have standing as a juristic entity, when you originated
from a foreign place, apply conflict of laws, did the person have standing in the
place of their origin or location. The Bumper case, an example of that, with the
Indian temple.
 When looking at substance, various things to consider, in relation to tort, we are
applying lex loci delicti (the place of the wrong).
 Also from Tollefson, and we will see that interprovincially, the court in
Tollefson has indicated there is no exception to that.
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
We have also been looking at some recent developments that have occurred
in informational based courts, in particular defamation, libel, and perhaps
Tollefson is not adequate to deal with those torts. We will get to that later.
 But, basically, lex loci delicti, internationally, there is a narrow discretion in
Canadian law to apply lex fori.
 In England there is a much broader statutory discretion to apply lex fori.
 For property, lex situs (the place or the location of the property), that is
particularly important in relation to property that is, like land, immovable. As we
know already, when talking about property we classify things as movable or
immovable.
 In contract, we have a different system – finds the proper law of the contract.
 The proper law of the K has its difficulties, may be established by express
choice, or it may be found to be implied, or it may be imposed (imposed on
the basis that it has the most connections with the K – similar to real and
substantial connection). Some of the problems, where does proper law begin
and where does it end? Some of these areas do not have a lot of authorities.
 Such as capacity – a minor, or subject to a mental incapacity, or
intoxicated. Is it the law of the K, or is it lex contractus, the law of the
place where the contract is reported to be made. These boundary issues
are there, but once you get past the boundary issues, the primary focus is
on the proper law of the K.
 Will also examine an American trend, when asked what is the appropriate
law to apply in a tort context, the Americans have moved away from
simply saying lex loci delicti, and can (though 50 jurisdictions, but
speaking generally) and will often apply a proper law approach – which
place has the most connections?
 Various other laws that can be considered, lex loci domicili (where domiciled), or
lex loci celebration(?) where a marriage was celebrated.
 One we haven’t yet popped in, sometimes there will be a mandatory rule by
legislation of the location, legislation will stipulate. Example that no longer
exists, Canada Shipping Act.
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How do we treat choice of law, should we treat it as law? Or see it as fact?
 The civil law jurisdictions have treated the issue of choice of law as a question of law
that the court can take its own initiative on, that the judge can take judicial notice of
the foreign law, and the judge can apply the foreign law, simply as a matter of law.
 The common law, however, has treated foreign law as a question of fact, and has
said the fact of foreign law must be pleaded, and then must be proved. Must be
proved by expert witnesses or some other approved method.
 That, in itself, gives rise to a question in Canada in that interprovincially of
course you don’t get a lot of interprovincial law being established by expert
witnesses. The courts are gradually moving to say that a judge in one province
and apply law from another province, but that journey is not yet complete.
 Internationally you have to establish, plead and prove the law. Looking at QC,
2089, QC has come down in the middle, has followed common law by saying
foreign law has to be pleaded before it can be taken into account, but once it has
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been pleaded, QC courts can apply the civil approach of taking notice of the law.
A bit of a halfway decision in that regard.
 One of the important questions, is which is the more appropriate for this to be done.
If you require the parties to plead and then prove, or even just to plea, then you are
giving control of the proceedings to the parties (some like, think that’s what it’s
about, adversary system). Whereas civil approach, more administrative, and the
courts are more actively involved in seeking to establish what the more appropriate
position, as opposed to simply being in the centre of an adversarial process.
 If something is not pleaded and proved, then the forum goes by its own law, either
because that’s all it’s competent to apply, or on a presumption that because it hasn’t
been pleaded and proved, the parties must presume the law is the same.
 Review from last class
 Last class we looked at questions of procedure being distinguished from substantive
law
 We noted that procedure is always lex fore (law of the forum)
 As to the substantive law, we noted various lex causi (law of the cause): can be
either lex loci delicti (law of the palce of the wrong) lex situs (in relation to
property) lex domicile (in relation to domicile)
 we also noted the juristic entity, which we covered earlier
 also noted mandatory law of the forum, usually legislation
 Choice of law
 In CL countries, it is necessary for the law to be pleaded and proved as a fact
 In Civil law countries, court can take judicial notice of foreign law and is in some
cases obliged to do so
 In common law, focus on adversary process, which emphasizes roles of the parties
and leaves it for parties to raise the issue of forum law; if not raised in a pleading
than there cannot be an application of forum law
 In Quebec: the position is a sort of hybrid; forum law must be pleaded but once
pleaded does not need to the pleaded as a fact, the court can take judicial notice of it
 Fernandez v Mercury Bell
 Facts: Ship docked in montreal, crew from Philippines employed under special
agreement; in the meantime, while they had been at sea, the international union for
the crew had bargained a CA which had certain provisions in it concerning a
minimum wage; so when crew docked they went to fed court and sought order to
have CA apply to their jobs on the ship; registry of the ship was Liberian; Liberian
law was the relevant law BUT Liberian law not pleaded and not proven
 p. 561: Discussion of the civil law and CL systems (enter John with coffee)
 Interesting discussion in this case as to whether one should use test that Canadian
law applies b/c presumed to be same as Liberian law and that is why it was not
pleaded and proven
 Court also discusses how much Canadian law is applied in a case like this – refuses
to adopt distinction between common law and statute law – rather the court will
apply both as long as the law of the forum is basically relevant/of general
application
 In this case regulatory issues in labour law, were seen as being basically limited to a
Canadian context
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 Court finds we should apply so much of Canadian law as is necessary to answer the
question
 Reference to various precedent, what it means when you apply the law is Common
Law but no statutes. Links back in history to England, where common law was
common among the whole kingdom.
 Will apply both so long as the law of the forum is basically relevant, or of general
application.
 In this case, with regulatory issues in labour law, were seen as being basically
limited to a Canadian context.
 But broad principles such as collective agreements replacing individual agreements
seen to be general laws, even though statytory and that was still applied.
 On pg 564 court says, we should apply so much of Canadian law as is necessary to
answer the question.
 Useful case to give you the fictional theory, the forum laws apply because they are
presumed to be the same as the foreign law.
 It maintains the fabric of some sort of rational structure to the law in general,
whereas really it’s saying the parties will do as they wish and if they don’t plead it
and prove it it’s not something the court can take account of.
 Choice of law
 Page 517 – Reference to mandatory choice.
 When talking about an express choice of law, should be thinking in terms of
jurisdiction, because in CJPTA s. 3(c), we have territorial competence over a
person if that person has agreed or consented.
 Hunt
 Case where SCC indicated that the superior courts of any province could rule on the
constitutionality of legislation of another province, subject to the suitability of the
forum to make that ruling. Would be difficult to say one province could rule on
constitutionality of something if it was wholly within the other province.
 Here, dealing legislatively with things that were occurring outside of QC.
 Leads us to an area of asking, how far in Canada, interprovincially, do we apply the
common law rule of pleading and proving other provincial law as a matter of fact?
 Or have we got past that?
 Now interprovincially, each province is basically taking judicial note of another
province’s law.
 Howell thinks the answer is yes, we have got past the pure common law position of
pleading and proving between provinces, in QC there’s article 2809 which enables
the court, once the law has been pleaded, to take judicial notice of other province’s
law and foreign law.
 We have the SCC in Pettkus v. Becker?? That it can apply whatever law it has
competence over (all provincial law). References there indicating that the federal
court can take judicial notice of all provincial and federal law that is relevant to its
jurisdiction.
 Come to look at each province and see what each province can do as a province, visà-vis other provincial laws.
 There are evidence act enacted by most provinces, you’ll see BC, MB, SK, it’s
mandatory to take JN of other provinces’ law. Discretionary in AB. A bit of a mixture.
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 Look at page 580, the Nystrom v. Tarnava
 Dft had been involved in an accident in SK. Rear-ended the plf, and the plf sued in
AB.
 The SK limitation period had expired but the AB limitation period had not.
 The dft did was to give to the court her affidavit to which she attached what was
described as true copies of SK limitation legislation.
 The question was, would the court take notice of the limitation period of SK?
 Court declined, pointed out that it had discretion under AB legislation but it
basically wanted a more authentic documentation to be presented.
 Talked of having the copying of the SK legislation endorsed or certified by
appropriate government authorities – basically didn’t want to accept the
photocopy.
 Pg 53, 54
 The constitutionality of choice of law in Canada.
 As we talked about, and will see, in Tollefson, the SCC said that lex loci delicti is the
principle that is applied.
 Recall that he noted that the case Tollefson and Jensen had not been argued before
the court as a constitutional case. However, he did note, that s. 92(13) (property and
civil rights in the province) was a restricting factor upon a provincial legislature to
create a statutory provision that would be different to what the court declared lex
loci delicti, and he notes that what has been declared is of unquestionable
conformity with the constitution. In other words, lex loci delicti is in unquestionable
conformity with s. 92(13). If a province wanted to do otherwise, notes that the risk
of a constitutional challenge is there.
 In other words, if a province is doing otherwise, it might well in P&S be legislating
upon a matter that has occurred outside of the province rather than in the province.
 Does note that there may be some capacity for a province to do that, in the context
of where all the parties are from the province. That feature may be sufficient to
provide a pith and substance determination that the province is legislating property
and civil rights in the province as opposed to outside.
 Looked at that briefly before, but relevant to here.
 Another reference that the Morguard case may also be seen as providing a basis for
judicial notice interprovincially by removing the notion that the provinces are
“foreign” vis-à-vis each other.
 A reference by comparison is Australia, the courts there have used that to take JN of
other states’ laws in Aus.
 Page 523
 A reference to Renvoi
 Minimal authority in Canada in relation to Renvoi, there’re a couple of reference but
not many.
 Comes up in choice of law, but hasn’t come up in Canada often.
 You have jurisdiction A, and the conflict of laws choice of laws says apply the law of
jurisdiction B.
 When you get there, apply domestic law, then look at conflict of laws.
 When you look at jurisdiction B’s conflict of laws it will tell you apply the law of
jurisdiction A.
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 So reflected back, but A says apply B.
 Then says apply only the domestic law, not the conflict of laws. (for juris B) or if it
comes back, you don’t send it back.
 Not assigned, but came up in the Nielson case in Aus.
 Aus domiciled couple that were employed by overseas projects corporation to
work on a project in Huhan, China.
 While living there, one of the couple fell down the stairs in the apartment that
was provided to them.
 Lawsuit was brought by injured party against the overseas project corporation
in Aus.
 Chinese civil law provided that lex loci delicti was to be applied.
 Said unless both parties were from same country or domiciled in same country,
then the law of that country should apply.
LAW OF PROCEDURE – CHAPTER 11
 Substance/Procedure Distinction
 Substance we apply to choice of law
 Procedure to Law of Forum
 Replicated in QC, Civil Code 3132.
 A difficult question to characterize.
 We have tests to say that procedure is like the machinery that gets something done,
whereas substance is the product itself that reflects the rights between the parties.
 So often procedure affects the rights between the parties as well, and there’s no
greater case than Beals to illustrate how procedure can affect the parties.
 $8k to $1MM due to procedure.
 Not easy to characterize these situations.
 Somers v. Fournier
 Here we’re dealing with three things:
 Costs
 Pre-judgment interest
 Non-pecuniary cap
 Question was raised, are these things procedural or substantive?
 Both the trial court and the appeal court in ON said that costs were procedure.
 Trial court said pre-judgment interest and non-pecuniary cap were both
procedure.
 CoA said pre-judgment interest was substantive and non-pecuniary cap was
procedure.
 In looking at this, the court said they see costs as being procedure simply because
costs are more of a tool that the court can use.
 The court can use costs to encourage settlement, to penalize parties that are
engaged in conduct that is outrageous or conduct that can be prejudicial, or
scandalous, and costs can be used to deter that sort of activity during a trial.
 Court said even though costs have a compensatory element, they are also a tool.
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With pre-judgment interest, could say that is still discretionary. Might not be
awarded if the party has dragged out the proceedings, if conduct has adversely
affected the progress of the litigation.
 So to that extent, it’s like costs – but the court said when we look at prejudgment interest we are primarily looking at compensating for lost investment
interest or the changing value of money awaiting a determination by the court.
 Therefore, pre-judgment interest is primarily a compensatory concept.
 Yes, it’s discretionary too, and if the party has dragged out the case, can be
exercised against the party.
 Different between costs and pre-judgment interest is slender, but there is a
different there.
 Costs are probably more of a tool, but still compensatory.
 Pg 606, the Rome Treaty stipulates that in matters dealing with EU, the assessment
of damage is substantive.
 In Aus, Australia used to apply traditional English principle that we still do, but
in 2000, Aus moved away from that and said a cap on damages was substantive
and should be determined by the lex causii.
 So important to Canada, Howell doesn’t see us moving away from that.
 LOOK UP AN OUTLINE FOR INFO HERE. (this whole section.
 Another way of approaching this, when Tolofson was decided, lex loci delicti, the
majority said this was absolute throughout Canada/interprovincially and there was
no exception.
 Court then went on to say, internationally, it applies too, but there is a narrow
discretion to apply lex forii in an appropriate case if necessary to avoid injustice,
and only when it is compelling and exceptional to do so.
 In this context here, pg 607, Wong and Wei, BC 1999, Court didn’t say cap on
non-pecuniary was substantive, but said narrow exception from Tolofson to
apply lex forii should be applied here, and thought the cap should be applied lex
forii.
 Court said if they had to, would find it to be procedural.
 Obviously wanted lex forii to apply here.
 Tolofson
 Plf was a passenger in a car driven by his father, in a collision in SK.
 Dft resided in SK.
 The proceedings were statute-barred in SK, but they could be filed in BC.
 Also a question that was relevant in SK, of the rule of a gratuitous passenger being
unable to claim against a driver – this didn’t exist in BC either.
 The question of limitation was the bigger question.
 If treated as substantive, lex loci delicti, then SK law applies.
 If treated as procedure, then lex forii, BC law would apply.
 Historically, again the Civil Law systems had looked at limitation as being
substantive, but the common law of EN and US had focused on limitation as
procedural.
 Canadian law had focused on limitation as procedural.
 Laforest said foreign litigants shouldn’t be granted advantages that weren’t
available to local litigants.

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Decision of the court in the first part is to decide that limitation would be a
matter of substance.
 Therefore, once classified as substance, lex loci delicti.
 Notes that the English law has been swept away by English legislation.
 Then notes that it’s not necessary for us to wait for legislation.
 This wasn’t welcomed, and a flurry of action happened in the provinces.
 Some went back to procedure, others came up with more innovative solutions.
 What was interesting, was how far they could legislate contrary to such a
determination by the court.
 To put that another way, if a province legislates back to procedure, does that
meet a constitutional test under 92(13), would that, under P&S relate to
property and civil rights under the province, or something outside of the
province.
 There’s a case there, 2005 SCC, (not assigned), the Castillo case, focused on AB
limitation act, that to be applied by the AB courts has to be the limitation set out
in the statutes.
 Purporting to be a mandatory rule of the forum, any limitation period has to
be the one in the AB limitation act.
 Involved an automobile case in CA, were able to duck the law because CA law
gave 1 year whereas AB gave 2.
 Majority said the AB legislation ought not to be interpreted as reviving as
cause that had been lost lex loci delictii.
 Majority said you lost it in CA, not going to interpret the AB legislation as
reviving a course of action for you.
 May have been substantial connections because the injured parties came
from AB, but that wasn’t discussed.
 Bastarache said conflicts of laws, choice of law, and seeking to legislate a
contrary position and it doesn’t stipulate sufficient limitation to situations
connected to AB. Expressly covers matters where the lex causii is elsewhere,
although that in itself was an interpretation, but he would strike it down
under s. 92(13).
 Phillips v. Eyre
 Introduced double accountability.
 If it was a tort in England, also had to be a tort where it occurred.
 Emphasis was lex loci delicti, but if you’re suing in England, also has to be a tort in
England.
 Courts that followed emphasized English law, said that you can recover in tort law
in England, provided it is not justifiable in the place where it occurred.
 If something was illegal in the place where it occurred, even a violation of a
highway code, then it wouldn’t be justifiable, and you wouldn’t be able to
recover in England.
 Followed in Canada in McLean v. Pettigrew.
 Parties were from QC.
 Accident occurred in ON, due to gratuitous passenger rule.
 If the parties had sued in ON, they could not have recovered.

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Question was, was it lawful in ON, was it legal there?
Question that should have been asked, can there be a civil recovery in
Ontario – that was the double accountability.
 The question that was looked at was simply was it unlawful.
Chaplin v. Boys
 Retained double accountability but used the words “civilly liable” instead. Said you
had to be civilly liable where it occurred, and lex forii in the jurisdiction where the
suit was.
 HoL applied discretion to apply lex forii in any event.
 May have screwed this up.
Then UK legislation emphasizes lex loci delicti, gives flexible and wide discretion to
apply lex forii.
 Basically, our Tolofson is similar to England now, except discretion to apply lex forii
is very narrow under Tolofson. Under English legislation it’s very wide. England has
kept double accountability for certain torts, like defamation.
 Reached point where we have Tolofson, lexi loci delicti – no discretion to apply lex
forii interprovincially. Internationally, very narrow ability to apply lex forii.
Review
 Looks at various sources of law in Canada, common law, civil code, arbitration (not
much time, but need to be appear that there is, in Canada, BC particularly, under the
BC International Commerce Arbitration Act, considerable flexibility).
 Looked at question of Renvoi.
 Looked at questions of Canadian interprovincial developments in judicial notice, the
Hunt case, federal court, QC 2809, and what do the provinces do vis-à-vis each other.
 Found that, for many provinces, they have to give judicial notice by virtue of
Evidence Acts, but there are provinces that will refer to judicial notice or give a
discretion to the courts.
 Looked at substance and procedure question. Lex causii, whatever choice of law we
follow is the law of the cause. Noted procedure as lex forii, Civil Code 4142 to that
effect.
 Looks at Sommers case, costs, pre-judgment interest and cap on non-pecuniary.
 The particular one in question was non-pecuniary, found to be procedure in Wong v.
Wei, originally found procedure. (I think)
 Interesting because it’s predicated upon the rule that, when dealing with
damages, the type/head of damage, remoteness of damage, is substantive to
follow lex causii, but the calculation is procedural (lex forii). Whereas,
internationally, EU and Aus, that has changed. The focus is to say is substantive
and should follow the law of the cause.
Trends in the US – missed this part
Babcock
 Single motor vehicle accident in ON.
 Single driver and passenger in car, all from NY, car was registered in NY, insurance
was held in NY under US insurance companies.
 Drove into ON, basically hit a stone wall.
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 Passenger stole the driver, in ON there was the gratuitous passenger rule (driver
shouldn’t be able to be sued by the passenger).
 Reason was to reduce insurance fraud.
 Insurance argued lex loci delicti, law of ON, no suit is permitted against the driver.
 All came from NY, insured there, and according to the case, NY legislature had
rejected time and time again the adoption of such a gratuitous passenger rule there.
 Court said, well what law do we apply here? Do we take the old approach of lex loci
delicti which has an advantage of certainty, but which does not respond to
underlying policy considerations. Or do we adopt an approach that looks for which
is the jurisdiction that has most of the connections here.
 Page 634, looking at that, court came to the view that ON had no compelling interest
in the case, it just happened to be the place where the car hit the stone wall.
 Noted that, for determining a standard of conduct, then ON rules about the road,
highway rules, speed, not obeying signs when going around a corner – that was
all relevant. Apart from that, ON had no interest.
 NY court therefore said that ON had no interest, pure happenstance that the parties
happened to be in ON.
 Gilbert
 Here, you have a student who is domiciled in the state of CT.
 The student has gone to university in the state of NJ.
 While participating in a extra-curricular sporting activity that the school had
permitted or sponsored, became significantly injured, seriously injured, but that
injury occurred in NY.
 Domiciled in CT, attending uni in NJ, extra curricular activity in NY causing injury.
 Court here asked, what do we do in this situation?
 NJ has the charitable injury rule. State interest to promote the protection of charities
by giving an immunity to charities from lawsuit by injury.
 That way, the state of NJ, encourages charities.
 Plf sued in NJ, or if NJ law is applied, then there is no recovery.
 Suit is brought in NY.
 Looks at series of rules dealing with the proper law of tort.
 Applicable rule here, where the parties reside in different jurisdictions and the
alleged tortious conduct occurs in a third location, then we have to start off by
saying lex loci delicti, but then must look to whether we wish to displace lex loci
delicti.
 Lex loci delicti has the advantage of certainty, but may not further the policies of the
states of the participants.
 Court begins to look at the states’ interests.
 Has NY any interest in this matter? No. Little policy interest in NY.
 The injury simply occurred in NY.
 NY has minimal interest in the outcome.
 Looked at NJ, said there’s big interest here.
 Noted external, out of state students, while encourage to come to NJ, for NJ to have a
diversity of students from many states, they also get a break in terms of the
university fees, and the notion that once you have received a benefit of that nature,
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you also have the bear the burden that goes with that (having got lower fees, ought
to have known you couldn’t sue the university).
 Court said, where’s the most context? Came up with NJ.
 In addition, dft was domiciled in NJ.
 NJ has huge slate of compelling state policy – substantive reasons, which the NY
court said they would take account of.
 To CT, only interest is that the plf is domiciled in CT.
 Schultz
 NJ family suing a NJ school. Charitable immunity, can’t sue the school, but the sexual
abuse occurred at summer camp in NY.
 NY said it had no compelling interest in this matter. Civil matter.
 The Franciscan brothers were headquartered in the state of OH.
 OH did have an interest in this, because it was the domicile through the
headquarters of the Franciscan order that operated the school in NJ.
 OH also had a charitable immunity rule – didn’t differ from NJ.
 Ultimately followed NJ law.
 One rule, although certain, is too blunt and cannot take account of certain policies.
 Information-based torts (defamation, privacy, copyright infringement)
 In the case of slander, damage but be proved – so where the damages occurs is
where the slander occurs – lex loci delicti.
 If it occurs on tv or internet, then it’s libel. (when written or permanent nature)
 Libel occurs merely upon publication of libellous statement.
 Waterhouse case, pg 686
 Publication occurred in the 8 jurisdictions of Aus, 6 states, 2 territories, because
it went on national TV throughout Aus – so published everywhere.
 Little different in one sense, has to have some evidence of it being accessed. Not
published until it’s accessed, but potentially it’s everywhere.
 Court has said merely giving a hyper-text link isn’t publication.
 Lex loci delicti – everywhere.
 What do we do?
 Have to either re-define libel, maybe impose a requirement of damage, in
addition to publication, or we need to consolidate the actions, or we need to
come up with a conflicts rule that has been described as the single publications
rule, which in effect looks at the place of origin (internet terms, place of
uploading), and applies the law of the place of uploading, or in broadcast, the
place of broadcast (where it originated).
 Or, over to class-action type situation, but then the law of defamation or libel, in
Aus or Canada, has different dimensions in different provinces. (Different levels
of proof and different defences)
 How might we consolidate?
 One way, not to go from one inflexible rule (lex loci delicti) to another (single
publication rule).
 Maybe it’s to engage in a proper law of tort analysis.
 If you’re simply applying BC law externally, big problem under 92(13), but if
you’re saying we would have applied CA law that’s the place where it occurred,
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but all of these parties were from somewhere else, so why not go somewhere
else?
 Somewhere else there was greater damage because the person who was
defamed had a business somewhere else.
 One you move away from lex loci delicti, you get into forum shopping. Have to
have a system, that also protects against forum shopping.
 Review of last class
 Focused on the question of lex loci delicti as the rule flowing from the Tolofson case.
The notion that flows from T that there is one rule for tort and that is lex loci delicti.
Interprovincially, there is no exception to that, internationally there is a narrow
exception of lex forii.
 Went on to look at the question that we see in the US cases, in the context of the
proper law of tort, the Babcock, Jackson, Schultz cases.
 In looking at those cases we noted the context as being that the American
jurisprudence has moved away from a central of lex loci delicti, which did exist if
you look at first restatement of conflict of laws setting out the US law, but in the
second restatement the courts move away from that, and the law moves away from
that.
 We saw in those cases that we were looking at the question of identifying which
jurisdiction ought to be the appropriate jurisdiction that should have its law apply
to events that occur.
 In those cases we saw the courts would look at the location of the parties, the
activities that the parties were doing in the particular state, the circumstances
relating to the college or charities, etc., court would also look at the domicile of the
parties, and also look at the place where the tort occurred. In addition to that, when
the courts looking at what is in effect a policy evaluation, the court applies the
theory that we saw at the beginning of the year, in the early chapter of, what is the
government interest analysis as applied to a local law theory.
 Lex loci delicti is more in the context of a vested right theory, local law theory is
more in the context of the court saying which law do we, as the forum here, want to
apply here? What is the govt interest analysis of all of the states that are represented
by the parties to the dispute.
 In that context we saw the proper law approach being taken in those examples,
which is set out in second restatement, focus of most US analysis.
 Then came on to look at the question of defamation.
 When we looked, we were just starting in at page 686-687 looking at the
Waterhouse case.
 Defamation is raised – we also should not forget when we look at this that there
is still perhaps an option of approach of looking at double accountability.
 We note that under English legislation that DA is retained for defamation as
sort of a safe guard in relation to defamation.
 Don’t have that here anymore, but that’s an option we may consider if we’re
thinking about how the law should develop.
 Also the option of developing the law in this context of using lex forii.
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 What is the problem when one looks at defamation. Same as when one looks at
privacy and in relation to copyright infringement.
 Each of these three situations we’re dealing with a tort that is focused on the
transmission of information, transmission of some non-physical material, and it
can be everywhere at the same time.
 All flowing from, in effect, one transaction.
 On transaction – ends everywhere.
 So where is the place of the wrong? Everywhere, but that may depend on how we
define the wrong.
 Tolofson said one applies lex loci delicti.
 But what constitutes the wrong in these cases?
 In product liability, happens where damage occurred (Moran).
 Also indicated that one has to be flexible when looking at tort law when
deciding just where a tort occurs.
 Tolofson says you apply the law of the place of the wrong.
 BUT look at Moran, where is the wrong? Where does it actually happen?
 Waterhouse
 TV broadcast throughout all of Australia.
 On which there was a defamatory statement, made on TV it would be libel.
 In terms of the definition of libel, the tort technically is complete once there is a
publication.
 If one is talking about slander, which is just oral without a record being kept,
then you do have to prove damage.
 So that is similar to what we’ve seen with products’ liability.
 When dealing with libel, information in a recorded way, there’s no need to prove
damage.
 The tort is constituted as soon as there is a publication, and everywhere there is
a publication.
 Network broadcast throughout AUS, 6 states, 2 territories.
 Damage everywhere, all flowing from one event.
 Now we also need to bear in mind, the law of defamation itself has been subject
to statutory amendments and judicial interpretation in every jurisdiction.
 One very major difference that exists between commonwealth countries and the
US, NY Times and Sullivan ruled to the effect that, created by SC, to say that if you
are a public figure, if someone defames you, you can’t recover unless you
establish actual malice.
 Decided by SC to make sure that newspapers could comment on officials in
states that still were not complying with civil rights.
 That has been expressly rejected in Canada by the SCC.
 Big difference between what the law is in US and in commonwealth.
 So what do you do when there is publication in 8 jurisdictions from 1 event?
 The Australians adopted Tolofson in Brevrington?
 Pg 687, Court in this case, court disapproved of having lex loci delicti as being
the only rule in cases where there is a national defamation.
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
Tolofson was designed to prevent forum shopping, so you would be limited
to the place where the tort occurred as a set and certain rule.
 The inquiry became, well what do we do, now said we disapprove of lex loci
delicti as the only rule in cases such as the present, do we look to the double
accountability as a vehicle that can help us in this case?
 There you would at least have the amelioration if something was justified or
legal in the place where it occurred, or do you apply the law from
everywhere in some sort of consolidation.
 Pg 688, court notes that it is impossible to draw a plausible analogy… Emma
sneezed.
 Court also looks to US cases that look to the interest of the state – the govt
interest analysis that we saw last time.
 Looked to see if there were ways to avoid a multiplicity of proceedings.
 Court looks at two rules in the US
 Single publication rule
 Basically treats the multiplicity of places of receipt as in effect being one
unit, and looks to the origin of the communication.
 In effect where broadcast came from originally, or in the internet context,
where information was uploaded and made available.
 Second approach: did you develop a choice of law rule which is based on
criteria other than the place of publication.
 In effect, what the second rule does is to redefine the nature of the harm
that is sought to be prevented.
 When looking at tradition defamation definition, one is liable based on
publication, but if you tinker with that and say are you really concerned
with publication per se? Historically, yes, but today are we? Or are we
concerned with the damage that flows from the publication.
 To stand back from that, beginning to re-write libel in a multijurisdictional way to read in a factor of damage.
 Then asked, well where was the place where the most significant damage
occurred?
 In the multi-state context, one often will look to the place of the domicile
or the ordinary residence.
 First place to say, it’s likely the most damage (to reputation) would occur
at the place where the plf is domiciled or is ordinarily resident.
 At the time of the wrong, the plf may have moved in the meantime, but
looking at the time of the wrong, where was that person resident?
 The place of uploading, or the place of initial transmission, focused on the single
publication rule, has a great deal of support.
 On the other hand, criticism of that is it ignores the fact that the real complaint,
apart from the technicalities of libel, the real complaint is damage to reputation,
and we should address the real complaint, which would be at a place elsewhere,
than the place of origin of the transmission.
 Dow Jones
 International case.
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Place where the intial uploading occurred was NJ.
So, should the court which was the Aus high court, apply single publication rule
and look to place of initial origin (NJ)?
 Or should the court look at the alternative to say, what is the substance of the
cause of action, and where was the substance of the cause of action felt?
 Or does one look at the question of damage?
 The court in this context here, said we’re really concerned with damage to
reputation so we ought to be looking at the place where the most damage
occurred.
 Notice said “most”, may occur in a number of places, and that was acknowledged
here.
 May have a place here or be working at a distance at a law firm in Toronto,
perhaps.
 Domiciled in Vic, etc., but extensive interests in Toronto.
 So maybe in Toronto?
 In effect, where we’ve gotten..
 Howell suggests we need to look at connections, not just the number, but the
substance of the connections.
 If court thinks the person is just forum shopping, court may find the best place is
elsewhere, if the court thinks there aren’t enough connections with that place.
 Canadian Cases
 We don’t have a case at the SCC that is as detailed on our particular inquiry as the
two Australian cases that are in the materials.
 There have been a number of cases though
 Crookes v. Wikimedia
 What does “publication” mean?
 In particular, the court determined that hyperlinks (by placing them on a
website), the placement of hyperlinks themselves would not constitute a
publication of the material to which the hyperlink linked to.
 By simply placing a hyperlink, there was no publication, nor presumption that
the person who placed the hyperlink ought to be linked up with the content of
the place to which the link takes the person.
 If you link to another website automatically, so that the accessor is not having to
click anything, if it comes up automatically, you’re fixed with that.
 Simply placing a link that has to be clicked isn’t an infringement in itself.
 This case discusses these points, the views of 6 justices.
 Two justices, McLachlin and Fish, wanted to look more specifically and say
generally yes they agree, but sometimes when you read something in context,
someone is themselves, with knowledge of what’s on the site to which the link
goes, someone presents it in such a way that they are endorsing that content
from that other site, adoption or endorsement, and these two justices were of
the view that, to simply give a blanket exclusion, (no publication by simply
posting a link), would not allow fine-tuning to be done, hosting a link would
simply be rounding out what the hostor had already regarded.. these two
justices thought that ought to be considered. Deschamps was also of that view,
thinking the blanket exclusion to be unwarranted.
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 Black
 Defamation and publication, involving Lord Black who had been chair of an
operation that operated publically in the US, and was a publicly traded US
corporation.
 There was some concern that certain payments had been made to Lord Black
that ought to not have been made. The company formed a committee to
investigate the matter, and reached the conclusion that an unauthorized
payment(s) had been made and published that finding on the website.
 Lord Black filed in ON, the question, the company said ON had no real or
substantial connection, then as a matter of forum non conveniens, IL or NY is a
more appropriate forum.
 However, courts refused to stay the action in ON, and in terms of why the action
was declined to be stayed, the court looked at the fact that Lord Black had a
significant reputation in ON, and although he was no longer ordinarily resident
in ON, the connections in ON in terms of his reputation were significant.
 So, as a matter of jurisdiction, the matter was not struck or stayed in ON.
 Para 32, the court talks about choice of law in a very brief way, the court looks at
lex loci delicti and asks should it be abandoned in favour of an approach based
on the location of the most harm suffered to reputation?
 Then indicates that it’s not going to discuss the matter.
 It does raise, at para 32, choice of law, and openly questions and asks whether
lex loci delicti should be abandoned, in favour of an approach based on the
location of where the most harm is, but says they’re not going to look further at
that.
 Good summary of the NY Times case here, but rejected in Hill v. The Church of
Scientology.
 If the US law were applied, Lord Black, as a prominent public figure, would
have to show that the company was motivated by actual malice by posting
the results.
 Purpose of the NY Times and Sullivan rule was to prevent public figures and
officials from bringing defamation action to stop newspapers which were
largely located in northern states from making statements as to what they
were doing. Officials were making defamation cases to silence the
newspapers during the civil rights era.
 Third case: Eco Society Inc.
 Also on the list (not assigned), nor now.
 SCC 2012
 In this case, there was a suit filed in ON, to say that an ON based company had
been engaged in the exploration and development in the DRC looking for
minerals.
 The Eco Society were alleged to have defamed the company by claiming the
company was engaged in Human Rights offenses there.
 Society was based in QC, published 5000 copies, of which 93 copies were
obtained in ON, with the rest in QC. The book was in French.
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The dft said no real and substantial connection in ON, and if there is, forum non
conveniens should be applied and it should proceed in QC.
 The court said no, tort occurred in ON, publication is all you need for libel, the
fact of publication, and in terms of forum non conveniens the court declined to
apply that.
 The court did discuss choice of law by indicating that lex loci delicti may well, as
a general principle, be fine for torts generally, however there needs to be room
to create an exception to lex loci delicti for torts such as defamation.
 Again, without deciding, the court said one possible alternative is to focus on the
place where the most substantial harm has occurred to the reputation, and it
was an ON-based company.
 Even though only 93 copies were circulating in ON, the ON-based company may
have had more damage in ON.
 Tort is complete everywhere upon publication everywhere there is a
publication, but courts think that you should look where the most substantial
harm has occurred.
 Courts question whether they are re-writing the tort of libel? No, based on
publication.
 Are we re-writing the rules based on lex loci delicti? Likely yes. How? Maybe we
are applying a proper law of tort approach, at least in a limited way, of looking
for damage.
 CONTRACT
 When we talk about choice of law and contracts, have a look at pg 701-703.
 First, there are various contexts in which, by treaties, uniform laws exist.
 Not looking at those areas, but be aware that they exist (Carriage by Air, Marine
Liability, International Sale of Goods, etc.)
 Some regional entities that have instituted uniform choice of law rules.
 Look at the common law rules in relation to choice of law and contract.
 Looking here for the proper law of K, well-established as the choice of law in
contract.
 Many years ago, one would look at two types of law, lex loci contractus, (where the
K was made – as the law that would govern the structure of the K and its validity),
and the law in the place of performance, for where the contract was to be performed
as in the Gillespie case where two judges were prepared to split the choice of law or
apply the diversage (slicing up of the choice of law).
 Justice Southen kept the common law and simply applied BC public policy to say
BC would take account of the fact that it had to be performed in WA, and its
performance was illegal there, so looked at it as BC public policy.
 The common law is one single law that seeks to integrate everything about a
contract into one place, and focused on connections.
 There are fringe areas that we will see that are not so clear, for example, can you
have a proper law of a K if you haven’t got a K?
 So if a person has got no capacity to enter a K because they’re an infant, mentally
unwell, intoxicated, etc., can you say there’s a proper law of a K when arguably
there’s no K at all.
 Looking at the Proper Year, we need to make a couple of points:
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Firstly, always have to be on the look out for a mandatory rule of the forum.
 Is legislative, basically, and being legislation it binds the courts of that forum.
 Doesn’t necessarily bind courts of other forums, though other forums may, as
a matter of public policy, give effect to that mandatory rule, and in the
Gillespie case, madame justice Southen did that.
 If there is no mandatory rule…
Look to see if there is an Express Choice of Law?
 If there’s an express choice, there is a very strong policy to say that the
express choice has to be given effect to, because it’s part of the bargain
between the parties.
 May also be relevant in establishing jurisdiction.
 S. 10(e)(ii) of CJPTA, stipulated as a presumed real and substantial connect
whereby its express terms, the K is governed by the law of BC.
 We will see, next time, that at common law, particularly in the Rashid case, in
the common law, jurisdiction may also be established from an implied choice
of law. But under our CJPTA, it is express that it has to be by its express
terms.
 So although there are cases at common law where jurisdiction has been
found on the basis of an implied choice of law, that would seem to be
precluded under our CJPTA because we are looking at an express choice of
law not an implied choice of law.
 Also, distinguish what we’re not talking about, not talking about choice of
forum, that section 3(c) is a choice of forum. (jurisdiction)
 Not talking about that, talking about choice of law.
 If there is no express, then we can ask well, is there an implied choice of law?
 Focuses on the transaction, the circumstances, the history in the area of
law, the business practice, the type of documentation, and the general
context, looking for the parties’ intent.
 If you are looking at “no express”, “no implied”, then you are looking at a
choice of law that is imposed on the parties, or is determined by the court.
 Here one looks at connections.
 There have been some judges that have said the area between express
and implied, in a contractual situation, is a pretty amorphous sort of
boundary between the two, because when you are looking at connections,
you’re looking at what the parties have said and done, you’re looking at
the circs of the transaction, the history, the type of documentation – some
would say that’s pretty similar to what they’re doing at implied choice of
law.
 793-795, good to know that sometimes you can run into a question that is
perhaps circular.
 When you have an express choice of law, it must be a bona fide choice of
law.
 May be engaged in a business that operates across all of western Canada,
and your business may be located in BC, and it may be that your activities
do not infringe your law here, in SK or MB, but they do in AB. Your
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business operates across all of the western provinces and you live here,
so you say well BC is to be the law.
 That’s a bona fide choice, not specifically focused on AB.
 Review of Contracts and Proper Law
 The other two categories – which we’ll go over today:
 If there are no express terms, look for an implied choice of law.
 Here we focus on a wide variety, transactions, circumstances, history,
type of documentation, and the context. Also look for intent.
 Determined or imposed choice of law
 Where the parties have no indicated sufficiently to say that X
jurisdiction provides the choice of law, here we’re looking at
connections, to see which jurisdiction has the most connections or is
most substantially linked with the contract.
 As we went over last time, there’s a lot of imprecision between the
category of implied and the category of determined/imposed.
 Sometimes because of the K, even when the court is applying an
assessment as to which jurisdiction has the most connections, even
though the court is determining that, the court frequently talks about
implied simply because it’s a contract and you’re necessarily looking
at what the parties’ intent was.
 Howell thinks you shouldn’t try to keep them separate as a
separate point of focus, but that said, given that you’re dealing
with K, it’s very difficult to move away from what the parties may
have intended when you inquire from a third category point of
view as to which place has the greatest number of connections
with the K.
 Express choice
 Must be bona fide choice, will find with Nike case (and Golden Acres)
 The leading case in relation to express is the Vita Food case.
 Vita Food
 Privy council, 1939.
 Involves shipment of earrings from NL (didn’t join until March 31, 1949)
 The ship, called the Hurrion, didn’t go fast enough from NL to NY, ran ashore in
bad weather on the coast of NS.
 The question that was relevant in this case was certain legislation in NL that
stipulated that the contract through the bill of lading had to specify in the K,
must contain an express statement that is to have a…. subject to the Hague rules
as express in the NL act.
 NL, as its own company, signed up to the Hague act, and stipulated that bills of
lading must have a statement that it would have effect subject to the Hague rules.
 If it didn’t, there would be a question of, is there an illegality? Or would this
just allow a party to negate the K?
 What effect should be given to the NL legislation?
 When the ship has run aground on the coast of NS, and the shipping K has a
clause, choosing as the proper law of the K, English Law.
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Question becomes: what law do we give effect to in this situation?
 Is the court of NS, ultimately to the Privy Council, does it have to take note of
the NL legislation?
 Answer is no.
 Courts of NL would have to apply the NL legislation, as far as they are
concerned the legislation is a mandatory rule of the forum.
 However, in NS, and the Privy Council, the proper approach for a Canadian
court would be to apply the express choice of law between the parties. The
NL legislation does not bind courts outside of NL.
 The court looked at the question of whether it was, under the legislation,
illegal? Or did it simply produce an option of voiding the K?
 The court found it didn’t produce an illegality or a nullity in any way, but
even if it did, it wouldn’t be binding on the NS court.
 This is the classic case.
 Similar case, Torni ship.
 Similar bill of lading from what was then Palestine, which was then subject to a
British mandate, and had the same legislation that NL had.
 The English CoA had said it was illegal in Palestine, and the PC said they
disagreed, it wasn’t illegal and in any event, Palestine legislation would only bind
in Palestine as it didn’t have extra-territorial effect.
 Says if there is an express choice of law, so long as it is a bona fide choice of
law, the choice of law is to be given effect to, even if there is legislation in a
jurisdiction that is connected with it that would seek to impose a
mandatory rule, that mandatory rule is binding only on the courts of that
jurisdiction.
 Remember that the court has an option, as in Gillespie, if a K is to be performed
in a particular location, then the law of that location, where it is to actually be
performed, stipulates in a manner that would make the K illegal in some way, the
court can, as a matter of policy, take that into account – but this is a discretionary
matter.
 Pg 715 – reference to the phrase, to be construed in accordance with English law,
PC said they interpreted it in the same way as “shall be governed under English
Law”.
 In proper law contract, Renvoi is excluded from the proper law. Renvoi, looked at
in principle, where a choice of law says you apply this country’s law and when
you look at the law of that country, you apply the law of the country where you
came from? (He literally just said this. I don’t know what that means)
 Pope & Talbot
 Long and miserable, don’t want to get into the intricacies of insurance law.
 Paras 39-53 and 98-109.
 Imperial Life Assurance of Canada v. Colmenares
 SCC 1967
 You have an interesting question about life insurance, policies taken out in 1942
and 1947 when the respondent was resident and domiciled in Cuba.
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Question re: surrender value of the policies, and the payment depended on the
proper law of the insurance.
Was the proper law ON or Cuba?
 If Cuba, then any payout would need the permission of the National Bank of
Cuba.
 If the proper law was ON, then the surrender value payout could be made
without referring the matter back to Cuba.
In looking at this policy, written in Spanish, it was to be delivered in Cuba by the
company’s Cuban agent, and delivered to a Cuban national.
The application for the insurance was made in Cuba, had to be authenticated
before delivery by a public notary in Cuba.
All those factors seem to point toward Cuba as being the jurisdiction of the
choice of law, BUT
 The applications were addressed to the insurance company in Toronto.
 The policies, though in Spanish, were prepared on the basis of standard
forms in Toronto.
 The policies were in conformity with the law of ON.
 The policies also stipulated that it could not be varied unless attested to by
head office executives.
 Under the policy, and surrender or value paid out would be done in US
dollars drawn on a US bank, but the premiums were to be paid in Cuban
Pesos.
The company is claiming it is Cuba, but the court came to the view that it was
ON.
The significant features that brought the court there, pg 725, the policy was
mailed from Toronto, and even though it was not to take effect until it was
delivered in Cuba, it didn’t alter the fact that it had been made in Toronto.
In any event, even if it hadn’t been made in Toronto, the court said the place
where the K is made is simply one factor.
Here the court is purposefully moving away from the 1930s type of scenario, or
before then, where you’re looking at the lex loci contractus as the primary focus,
the court is now saying we’re looking at the proper law, express, implied or most
connections, and one of such connections is where it’s made, but we’re not
exclusively focused on the place where it is made.
Page 726, the court said what we see here is the key fact, we have to consider the
K as a whole, in light of all circumstances, and need to apply the law as what
appears to us as having the closest and most substantial connection.
 No express choice, either talking about implied, determined, or imposed.
 The court cites certain factors on page 726, the domicile, residence of the
parties, the national character of the corporation, where was its principle
place of business, where is the K made, where is it to be performed, and the
style of drafting.
 Is language appropriate to one jurisdiction and not to the other?
 Court looks at nature of subject matter and the situs of the subject matter.
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Most important factor was that it’s insurance – key decision is: will the risk
be undertaken, or “the decision to go the risk”, the essence of every insurance
policy, when and who makes the decision to take on the risk?
 Made in Toronto, and could not have been made in Cuba because the
company’s policies and practice were set up that the decision to take the
risk, at the heart of every insurance policy, was made in Toronto.
 The implication there was that it was ON.
 Court rejected an alternative argument, that said you should look at a specific
clause (surrender clause), must look at the whole of the K.
 Court doesn’t address a different area, what if you have two or more Ks?
 A K and a collateral K?
 Richardson looks at collateral K
 Not a lot of authority on this point
 Howell thinks it depends on the nature of the collateral K.
 May be something that is entered into at a considerable time later and may
be seen as a new K that varies the terms of the earlier K, then it should be
seen as a separate K.
 But, if it’s all part & parcel of a single transaction, then we can look at the
Richardson case in that regard.
 Amin Rasheed Shipping Corp. v. Kuwait Insurance Co.
 Looks at jurisdiction.
 Question was whether the English courts had jurisdiction simpliciter, and if they
did, whether as a matter of discretion (forum non conveniens) the courts should
hear the case?
 Basically a jurisdiction case, but it looks at choice of law simply because of the
English provisions of civil procedure, and a common law principle, that indicates
a jurisdiction simpliciter may be established by the terms of the K, or by
implication, it is to be governed by English law.
 As in BC, 10(e)(ii), by express terms (no case on these points), but in Howell’s
view, 10(e)(ii) rules out any implication – focused on express.
 Choice of law was looked at for the basis of seeking jurisdiction simpliciter, went
on to discretionary question.
 Case is concerned with the style of drafting and the context, and the linkage that
flows from terms used in a K.
 You have a shipping co. incorporated in Liberia but the head office is in Dubai,
carries on business in the Arabian Gulf.
 Cargo vessel and it was lost in the Arabian Gulf.
 The question of insurance was looked at and the plf seeks to litigate in the UK.
 The insurance was issued in Kuwait, and the insurer was headquartered in
Kuwait, and had no office in England, though it does seem that certain policies
were issued through another company within the Rasheed Group that was
located in England and went through a broker (so the application was made for
the insurance through a broker in England) but issued itself in Kuwait and
payable in Kuwait.
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Policy itself was written in English, on a sanded printed form, and it followed the
Lloyd’s policy form very closely except it had been modified to give time
coverage because this ship was timed (pick up here and there) rather than a
single voyage.
 Used terminology that was reflective of English legislation, particularly the 1908
Act.
 Indeed, it was said by Lord Diplock that it would be difficult to understand the
terms of the K if you didn’t follow definitions for certain terms through English
legislation.
 Ultimately, the choice of law was deemed to be English common law, but it’s
interesting to look at it in the way it was reasoned.
 Page 730-731, you see a reference to Lord Diplock who divides the three
categories into two categories, but in this case makes a classification on the
categories below, and bases on intent. Says the third category (closest and most
real connection, excluding Renvoi) is not really focused on an intent. The
interesting comparison, when looking at Lord Wilberforce, looks at 1. Express, 2.
Implied, 3. Imposed. Combines 2 and 3 together as non-express, whereas
Diplock links 1 and 2 below as intent, and non-intent.
 First – express
 Second – implied
 Third – imposed/determined
 Broker in London, issued in Kuwait.
 No Kuwaiti law for marine insurance, there was the Kuwaiti commercial code,
but no marine insurance code.
 That led Diplock to the conclusion that English law applied.
 It wasn’t quite so easy for Lord Wilburforce to reach that conclusion, points out
that these documents of marine insurers, by their historical usage, had become
the norm, firstly throughout the commonwealth, but also in the marine
insurance industry world wide, but that didn’t mean it was all to be determined
by English law.
 Wilburforce makes the comment that they had become internationalized, but
couldn’t exist in a vacuum.
 Therefore it had to be linked to England as English law.
 With regard to law in a vacuum, that does cause a problem.
 Star Shipping – note on page 723,
 Dealing with a rather obscure point, it was looking the opposite way to which
the Rasheed case was looking.
 The Rasheed case was determining if there was jurisdiction simpliciter. In the
Star Shipping case, we’re looking the other way. Looking at a choice of forum
clause, and saying from that choice of forum, we can, in the absence of an
express choice of law, if there is a choice of forum clause, we can presume from
the choice of forum, that the choice of law, will be the law of the forum that has
been chosen. (EXACTLY WHAT HE SAID)
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Suitability of the forum, the law of the proceedings to be applied, the difficulty
that was facing the court in this case, was that the choice of forum, focused on an
arbitration clause, it shall be in Beijing or London, in the dft’s option.
 Can have a floating forum, no real problem here, forum may be floating (and it
was, either Beijing or London).
 Choice of forum can be a floating forum, or can be more than one forum.
 Simply means that the presumption in favour of choosing a law by implication
from the forum, is simply weakened if there is more than one choice, or a
floating forum.
 Says you can go to the third category and decide what the proper category is,
by seeing what jurisdiction it has the most connections with.
 Richardson
 Trawler, arrested in Nanaimo.
 Refitted and refurbished by an American company, and the trawler was Russian,
and the K had been signed in Russia.
 The owners of the trawler, factors on 718, said they’d been arrested in Canada.
 Said in their view, Russian law, should be applied, but they haven’t pleaded
that, so lex forii, Canadian law, is the law that should be applied (not US law).
 Key difference was that under US maritime law, an entity that refits and
refurbishes and “supplies necessaries” to a ship has automatically under US
maritime law has an automatic lien on the ship.
 In Canadian law, there is no automatic lien on the ship. It has to be expressly
added.
 Looking at the K that supplied necessities to the ship, in the K there was no
express choice of law.
 But, the process of refurbishing the ship by the American co. out of Seattle not
only involved a K for the necessities, but also a promissory note, and a chattel
mortgage on the ship.
 Chattel mortgage had an express choice of US law in the mortgage on the ship.
 The question that was before the Canadian court was, should we look strictly
and in a limited way at the K for the supplier of the necessities (under US law a
lien was linked), or look at whole package, the whole “security package”, of
which resupply of necessaries was a key part.
 Looking simply at the K alone, and then the court ruled that the relevant time to
look at this is the time of the K. pg 722, part of the package included parole
evidence. A question of proper law is a mixture of law and fact. If it was strictly
fact then an appeal court is limited on what it can do – it’s mixture.
 Nike
 Choice of law has to be bona fide.
 Located in BC, stipulated BC law as the proper law of the K.
 However, it had signed a franchise and supply agreement with the dft in AB.
 Under AB law, AB law has very detailed law about franchising.
 We may well be getting that type of law as well in BC.
 It was thought to be argued, because business was done in AB, that it wasn’t
bona fide.
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Court decided it was, because plf was located in BC, despite doing business in
AB, also doing business across the whole country.
 Court therefore said choice of law was a bona fide choice.
 Said it was voidable, as opposed to void.
 Compare to Golden Acres case in Queensland, in this case court found it was not a
bona fide choice of law.
 It concerned the marketing of real estate in an estate complex in Queensland.
 Stipulated that it be done by a Hong Kong co and HK law applied.
 Aus law said no commission was to be paid unless the agent was registered
there, HK didn’t say that.
 Said the only object was to avoid Queensland law, therefore not bona fide.
 To argue the other way, it was the intent of the parties that the people who
would buy these interests in the realty were people in Asia.
 Therefore it was focused on the Asian market.
 If one looks at it like that, one might say, well, if you’re focusing sale of
certain interests on a particular market, then maybe HK is the more
appropriate place to use as your proper law without getting into the business
of arguing that it’s not bona fide.
 On the other hand, it did involve land, and once something involves land,
even if not directly focused on title, then we have a very strong conclusion
that it should be the law of the place where the land is located.
 Review
 Contracts then property
 Got through the classification of express, implied, or imposed. Declared, or
determined.
 Also looked at relationship between choice of forum and choice of law, if one
chooses a forum then presumptively that may lead to a fact, choice of law/forum.
(huh?)
 Various agreements related to overall transaction from which court may find a
choice of law (Richardson case).
 Ended looking at question of express choice of law, but that express choice of law
have to be bona fide choice, that is to say, that it will not be bona fide if the law of
another place is chosen in order to evade the mandatory provisions of the legal
system with which the contract has the most substantial connections.
 Proper law
 There may be mandatory laws of the particular forum, usually from legislation
that is directed and states that in a particular situation this will be the law in
relation to certain legal situations.
 The now-repealed Canada Shipping Act said that if the ship left from Canada,
they were bound to that law.
 If the legislation, in constitutional terms, is within the constitutional dimension
of the enacting body.
 Avenue Properties
 Mandatory rule being applied – a failure in this case to comply with BC
legislation concerning certain notices and prospectuses in relation to the seeking
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of investment for real property outside of the province, and the BC law applied
to both in and outside of the province.
 Through here, the court will admit it was not going to stay the proceedings for a
declaration inside of BC, would not issue a stay, would issue a declaration if it
came to that, because of this law which the court saw as mandatory
 Pg 765, submitted that the ON courts will take into account the mandatory
nature of BC law, and the BCCA said they didn’t think they would.
 They would not very likely take account of that, because the chosen law was
the law of ON as an express choice. ON would not be bound by any
mandatory law in BC.
 Performance was concerning land in ON, so one couldn’t say performance of
the K was in BC, therefore ON courts would likely invoke ON public policy
like in the Gillespie case.
 An example of mandatory law of the forum dealing with particular subject
matter.
 Mackender
 Diamond merchants from Switzerland, Belgium and Germany.
 Contract was made in England, but was to use Belgian law, was express in
choosing Belgium as the forum.
 Certain thefts happened, but it was found that the diamond merchants and
dealers were in fact smuggling diamonds into Italy, so there was a taint of
illegality because the merchants themselves were smugglers.
 Secondly, it wasn’t disclosed by the smugglers to the insurance company.
 Two issues, non-disclosure of info relevant to a policy, and insurance policies are
usually on the basis of good faith to disclose all things that are relevant.
 If this matter had been in terms of English law, and Lloyd’s wanted the matter
heard in England.
 Trial court said yes, because K was made in England.
 As a matter of English law, would either be illegal or voidable in relation to the
non-disclosure, or due to taint from the smuggling.
 The CoA looked at it and said, well should it be heard by an English court, should
it be on the basis of English law?
 Came to view that it ought not.
 They issued a stay of the English proceedings, said the question has to be
resolved on the basis of Belgian law, and by Belgian courts.
 Interesting that the court comments that what had happened, in terms of nondisclosure and smuggling, did not effect the fact that there was a meeting of the
minds to say that this policy of insurance would be determined by Belgian courts
and law.
 The events that occurred, the smuggling and non-disclosure, didn’t go to the
point of saying there’s no contract at all.
 The non-disclosure would simply amount to a voidable, rather than void,
scenario.
 The question of smuggling was not relevant to the formation of the K.
101

The court said the meeting of the minds, Belgian law and forum, that at edem
between the parties is not effected.
 The non-disclosure/smuggling is not relevant to the fact that the parties
reached a decision.
 Dicter says, if what had occurred was such as to prevent a contract from being
made, then it might have been a matter of English law/courts, because the
matter was dealt with in terms of setting up the K in England, but that was not
the case.
 The issues that came up did not effect the formation itself, as such, said no, this is
something… either voidable through non-disclosure, and any illegality does not
go to the agreement itself or the creation of the agreement.
 Non est factum – not my deed – found some issue that prevented a contract from
being formed, then that might have been equivalent to saying it’s English law
and forum, given that it was created in England.
 What if party doesn’t have capacity?
 Well, capacity is determined by the law of the place of the contract lex loci
contractus.
 Or, the law is determined by the lex domicile? The domicile of the place of the
party claiming lack of capacity.
 Or, do we say it should be determined by “the putative proper law”, aka the law
that was chosen by the parties who did not have capacity to choose.
 Sharon?
 Not really a capacity case, about validity according to the law of QC.
 It wasn’t directed at capacity per se.
 The situation involved two parties who the court assumes that they were
domiciled in the province of QC.
 Nevertheless, married in 1908 in ON, and lived for many years in cohabitation in
ON.
 Separated in ON in 1920, whereupon they entered into a separation agreement
in 1920 in ON.
 Nothing more came up until after the war when the husband died and he had
been in arrears in terms of payment under the agreement.
 Proceedings were brought to recover arrears from estate.
 Argument that husband was domiciled in QC and at the time QC law precluded
making of separation agreement.
 Court seeks to resolve this by talking about capacity, whereas it should have
been basic invalidity under the general law.
 Court said question of capacity is to be governed by the proper law of the
particular contract, but how can you have a proper law if you have no capacity to
contract? Hence the expression the “putative proper law”, which in this case was
ON (under ON law, agreement was valid).
 Should you be looking at place of domicile in a K of this nature, or should you be
looking at the place where the K is made?
102
Another question, court found the proper law by the third method, (imposing the
proper law on the basis of the place where the parties had the most
connections).
 What if the parties had chosen ON as choice of law, simply to avoid the law of the
place where they were domiciled?
 That would not be a case involving a lack of bona fides, because the contract
would be said to have the most substantial contact with ON, not seeking to
avoid ON law. Therefore wouldn’t fall under lack of bona fides.
 Would be seeking to avoid the place where they were domiciled.
 Howell thinks you should draw a line, either place of domicile or where the
contract is made. Then there’s a policy choice of, which one is it?
 Howell thinks it should be where the contract is made, provided the parties have
some sort of substantial connection to that place.
 If there’s a law directed to the creation of the contract itself that stipulates certain
formalities that must be followed.
 In a sense, it’s a mandatory law, but it’s directed more to how to do the contract
itself, not really substantive about the contract.
 Greenshields Inc. v. Johnston
 Defendant, Johnston, more importantly the principle officer that gave a guarantee of
his company’s financial obligation in an investment situation.
 Claim was being made for $14k against Johnston personally against his guarantee
for his company in this transaction.
 The issue was that the K was made in AB, but stipulated as being ON law as choice of
law.
 AB law said, for Ks that are guarantees, must have a signature of a public notary.
 ON didn’t have these requirements.
 If the matter had been before the ON courts, ON would simply say ON law prevails,
this K is most substantially concerned with ON, investment in land in ON, therefore
the choice of law was a bona fide choice of law, and therefore we will simply apply
that choice of law (ON).
 However, the matter was before the AB courts, and here the AB courts said, well
what do we do with this?
 It could have been looked at, on the basis of a mandatory rule of forum, and
binding on AB courts, but mandatory rules of forum generally relate to the
substance or rule of law.
 This was just, how do you do the K? A formality about how you go about contracting.
 So the AB court said, well in this context here, we really have two choices.
 Lex loci contractus – where made, in AB, therefore not complied with and
therefore not valid.
 OR proper law of contract, which was chosen to be ON.
 If we stand back and look back to Belgian Diamonds case, when the parties entered
into the K in AB, there was a meeting of the minds. They agreed on the investment
and they agreed on the choice of law. To that extent, it’s quite consistent with the
Belgian diamonds case.

103
 So there was nothing that occurred that took away from the meeting of the minds to
have ON law as the governing law. Also quite bona fide, because place of substantial
connection was ON, so not designed to avoid the law of the place of where the K was
most substantially connected.
 Mandatory law, maybe, but only involved the formality of how to contract.
 AB courts said, in this situation (followed pattern that academics suggested), said
can choose place of contract, or the proper law.
 Said if they choose the proper law, as a matter of choice of law, we have to ask,
does this offend AB public policy?
 Courts, making that interpretation, did not see rule as a mandatory rule of the
forum.
 Said no, public policy has to be of a moral turpitude nature.
 Simply getting a notary to sign off doesn’t go to moral turpitude.
 In another way, much like Belgian case, a meeting of the minds, just a formality not
complied with, interpreted only as a formality and not to the substance of the
transaction (and not of moral turpitude).
 Property
 Must engage in a characterization. Is it a movable, or immovable?
 Conflict of laws itself has no conceptual formal focus on personal property and real
property, as characterizations.
 It’s movable, or immovable.
 That said, land is the example of the immovable, and a chattel is the example of a
movable.
 In between, you get various interests, which are not land, but they nevertheless
relate in some way to land.
 Law of fixtures, mortgage interests.. how are these intangible features to be
treated? Should they be characterized as movables or immovables.
 Hogg v. Provincial Tax Commission
 Characterization is done in a circuitous way.
 Tax in SK was levied on assets that devolved in an estate under the law of SK.
 That included movables, chattels, in SK, but if one’s talking about an immovable,
and here it was thought to be talking about an immovable (as it was found,
ultimately), the immovables would devolve under the law under the situs.
 37 mortgages on land in BC.
 Court said, in order to know if these are subject to estate tax, we have to know if
they are movables or immovables.
 So where do we go to find out if it’s movable or immovable?
 Common Law follows exactly what QC Civil Code sets out, the characterization of
property is made according to the law of the place where it is located.
 Go to the place where the land is situated, then ask “how does that place treat
these interests such as fixtures, easements, how does BC treat them?”
 If BC treats them as immovable along with the land, then that binds SK.
 One witness said they need to look at the nature of the items.
 In BC, mortgages devolve as personal property.
104
Court said they may devolve as personal property, but what is their nature, not
how do they devolve. Said expert had answered the wrong question.
 Foreign Immovables (Jurisdiction)
 British South Africa Co. v. Companhia de Mocambique
 Company held land in South Africa, dfts came in and took the land and ejected
the plfs from the land.
 Plfs went to UK and initially sought a declaration, plus an injunction. A
declaration that the plf company was the lawful occupier, plus an injunction to
restrain the dfts from continuing to occupy the land.
 The first two matters, neither was given.
 Third question, was damages.
 This was the only issue that went to the HoL, the question of damages.
 Plf is arguing that, to the British courts, you can award damages in personam,
against the people that took the land, even if you do not wish to declare that
we are still the title holders of the land.
 Even though you can’t enforce an injunction down there, you can give
damages in personam.
 HoL said no, from this case comes the foundation rule that issues
concerning immovables have to be determined by the law and the courts
of the situs of the land.
 Only SA courts and law could be applied to the case.
 The reason for this, one could say, could be a number of reasons, but one
particular is the sovereignty issue here, and the ability to enforce an issue
that relates to title.
 If we look at damages, the first thing we might look at is trespass. But the
problem with a trespass action, even for damages, it still depends, Plf must
still be the lawful occupier, so to award damages for trespass, necessarily
must be the case that the plf is the lawful occupier.
 Court would be making a statement about the plf’s right to be on the land.
 Likewise, if we were to look at damages for nuisance, again, to sue in
nuisance, you have to be lawfully entitled to occupation.
 In negligence, no issue as to title.
 In contract, there is a line of cases that seeks to allow courts to make awards
in personam even though background issue of title to land, question of how
far these arrangements can go.
 There has been a little fuzziness in that regard, may have come across
Motherwell case? In AB.
 Case where a spouse, who was not the title owner, was found to be a
substantial de facto occupier, a rather deranged relative would call 200
times per day, and sued in nuisance that these telephone calls were a
nuisance.
 Duke v. Andler
 Missed the beginning of this case,
 Parties in CA had transaction in relation to land in Victoria, BC. CA court made
order saying Party A was to transfer BC land to Party B, party A said no.

105
Said no, because it is in regards to foreign land in domestic court? THIS ISN’T
RIGHT. CORRECT THIS.
 Review
 Mocambique
 Damages, questions came up in lower courts were dismissed, but turned on
declaration or injunction, but that’s not what got to the HoL.
 Remaining question was damages, related to damages for trespass.
 Trespass – key features is one has to be the lawful occupier of the land.
 Term occupier is concerned with the right to possess the land, and ordinarily
links with title, and with the right to possess.
 When talking about nuisance, we are talking about the same thing – occupier.
 If there’s more than one, courts likely looks to the one with the title – but
moving away from this a bit.
 When talking about damages for trespass and nuisance, necessarily having to, as
an element of the tort, either determine or accept that one of the elements is met
and that is that you are dealing with someone who is an occupier of the
land/someone who has the right to possess the land.
 So element in negligence that requires any reference to title or right to occupy.
 May be, in order to constitute your negligence claim, if you’re claiming there’s
been a flood in your apartment, it may be that you have to be the owner of the
condo to claim that – but it’s not an element in the tort of negligence, only in the
background.
 At the bottom of concerns, the contract or related in personam actions.
 For negligence and contract/in personam issues, court isn’t required to make a
ruling on title or right to occupy.
 Long line of precedence for this.
 Duke and Handler pg 17
 Important, points out a pragmatic boundary.
 All of the parties were in the US state of CA.
 There was a dispute between them as to vendors and purchasers of land, but the
land was situated in Victoria, BC.
 The court in CA made an order whereby one of the parties was required to affect
a change in the land title.
 The buyers were required to reconvey to the previous owners and the CA court
ordered the buyer to do so.
 The buyer did not.
 In CA, as any other jurisdiction, there is contempt.
 The buyer has refused to follow the order of the court, the court can take
contempt action against that person, including criminal contempt.
 That doesn’t achieve the result, it just means that someone is locked up.
 CA had a process whereby the commissioner of the court, or a county registrar,
would in the case of land would execute a conveyance that would achieve the
purpose of the court.
 SCC said no, to enforce this order would be to blur the difference between an in
personam right and an in rem right. (Something that goes to the change of the
title itself).

106
Court discusses the fact that in personam actions are only monetary actions (at
this time), but now, from Pro Swing, we do enforce under terms/circumstances
set out in Pro Swing (but yet to be really firmly articulated), in personam but
non-monetary judgments.
 Had not done this for in rem judgments.
 Court says, to do this for in rem would be to blur that distinction.
 That’s where this ended for these parties up here.
 Said in personam judgments have a limit to their effectiveness, when dealing
with an immovable such as land, there has to be some sort of formality that has
to be gone through with regard to the registry of titles in whichever jurisdiction
it’s in.
 From an opposite perspective, if the action had been brought in BC, BC would
probably have jurisdiction under 10(a) property in BC, possibly as well under
10(c) (enforce any deed, etc.)
 Could likely look under 10(e)(i) as well, re conveyance of land.
 So, procedure would be available if the parties had come to BC.
 If you did it in BC, would have to plead and prove BC law.
 Is it efficiency to come to the place where the land is situated and have the
question of Mocambique resolved and have the court apply a choice of law test?
 Or is it more sensible to say all the parties are external to this, so if it’s just
the formality of re-registering the property, maybe we should find a way to
relax the Mocambique rule.
 DOUBLE CHECK THIS LAST BIT WITH SOMEONE ELSE.
 Chapman Estate v. O’Hara
 Asks indirectly, how far should we try to argue that the Morguard case affects in
rem rights.
 The decision to date is that step has not been taken. Morguard is not seen as
affecting in rem rights.
 The editors of the casebook noted that it was a nice question (EXAM
QUESTION) to see where it could be taken.
 Case is regarded as lasting through over 20 years of litigation dispute.
 Deceased’s estate being administered in MB.
 Claimant (O’Hara) brings an issue to the court regarding the land of the deceased
that is in SK.
 WRT this land, it is alleged that he has a certain right to the land because of a
trust interest that had been created.
 The courts in MB
 Doesn’t have to transfer anything, unlike with Duke v. Handler.
 The title is held in the name of the administrator of the estate, so the
administrator of the estate could go right ahead and get on with administering
the estate and do whatever transfer he wanted to make (because O’Hara wasn’t
on the title as having any title interest)
 But O’Hara files now in SK to re-litigate the issue. Is this an abuse of due process?

107

At the SKCA, majority found it was an abuse of process, so the claim was
struck out in SK, and that will necessarily mean there was no longer any lis
pending on the title in SK.
 The dissenting judge at the SKCA takes the view that what is happening here, is
the majority is allowing (by finding an abuse of process)/taking account of the
MB proceedings.
 If you say MB should never have heard the case, then you remove, from the
inquiry, the MB proceedings and it’s no longer an abuse of process.
 Only an abuse of process if you say MB has decided this.
 Take that away, and there is no abuse of process.
 Dissenting judge says because the majority says it’s an abuse of process, then
they are giving credit to MB.
 In practical terms, there is no need to worry about getting the party to do
anything because administrator’s name is listed on the title.
 The issue is then, as presented by the dissenting judge, that yes it was within the
administration of the estate, was in personam in a sense, but it concerned the
title to the land in SK, and while it would have all rolled through without any
inquiry, once O’Hara files in SK, the court must decide what the status of
Mocambique is inter-provincially.
 This is because, in practical terms, this is allowing the judgment of MB.
 MB also issued a contempt order against O’Hara to try to prevent him from doing
this, so supposedly he didn’t go back to MB to avoid this.
 So what has Morguard done?
 Nothing at the moment, so how should we interpret Morguard?
 Is there room interprovincially for a Mocambique rule? Is it sensible?
 Those questions remain unanswered, though raised.
 The ECJDA (enforcement of Canadian judgments and decrees act) discusses this,
but Howell doesn’t think you can bring in rem into that.
 There have been some amendments to the Act, but they don’t concern us.
 Look at s. 6(3), reduces the ability of a Canadian court to challenge jurisdiction of
another province’s court in Canada.
 Not to say that if other jurisdiction made an in rem order, s. 6(3) would apply
to that because it must fall under the definition of a Canadian judgment.
 Howell thinks that it points to a notion that we’re one country, as Morguard
alluded to.
 We don’t want private international law disputes going on as though each
province is foreign to one another.
 Before looking at the question in relation to Contracts, and things of that nature,
there are a couple of cases to look at first, one is the
 Hesperides
 HoL in 1979, an opportunity to reconsider the Mocambique case, involved the
island of Cyprus, there’s a dispute between Turkish and Greek Cypriots.
 Turkey, in support of Turkish Cypriots, invaded northern Cyprus, and certain
Greek Cypriots that were in the north, had to move to the south because of the
military action/occupation that was happening in the north.
108
The Greeks, who owned hotels in the north but had to leave, sought to sue in the
UK on the basis of damages or an injunction for trespass by tour groups as things
started to calm down in Cyprus. Tour groups started going back into Cyprus.
Claimed the British tour groups were trespassing.
 The issue of Mocambique was presented again in the context of a military
dispute.
 Mocambique was founded in the context of the Dutch Boers in British South
Africa.
 Argued before the court that no issues of title were presented.
 The court said they still need to establish, if talking about trespass, that there is a
right to possess and a right to occupy by the person who is claiming trespass.
 A tort of conspiracy was also brought, court said they couldn’t work on
conspiracy to trespass, as it’s only a conspiracy if there is a trespass, and that
also involves determining the right to possession.
 Mocambique was re-affirmed, and one of the reasons was because the court said,
Mocambique has been applied in various areas, but has almost universal
application throughout the common law.
 US doesn’t apply issues of land between states, has their own
implementation of the Mocambique principle between states.
 Issue of comity, prevention of forum shopping, HoL said there’s been no real
change in the situation since Mocambique was decided.
 HoL did note that an action could be brought in relation to tourists who were
sitting in the Greeks’ chairs, etc., as it was trespass to chattels as Mocambique
did not cover movable chattels.
 Leads into issue presented in the Godley v. Coles
 Involves the tort of negligence, dfts lived in St. Catherines, ON, but the building
was in FL.
 Some water leaked from above to unit below and damaged a mixture of
movables and immovables.
 Also brought up a question about fixtures (if it can’t be moved, it becomes
part of the immovable).
 No evidence in tort that you must be an occupier or have the right to possess, so
land is in the background but the interest in the land is of secondary importance.
 Primary importance is a defective water containment in the piping/etc. system
of the upper condominium.
 One thing to take from here, in personam ought to be allowed where there’s no
element in the tort that looks specifically to having an interest in land, simply an
issue in the background of fact.
 Second thing, looks to movables. We noted in Hesperides case that the HoL said
you could sue in Britain for trespass to movables.
 Here we note that a substantial part of the damage was to movables.
 Comments that an introduction of minute, or only some damage, to
immovables cause the Mocambique case to be raised to prevent an action in
ON?

109

Formulation is saying there’s been substantial damage to movables, if we can
take jurisdiction for movables, then it’s sensible for us to also deal with
immovable damage without splitting the jurisdiction between ON and FL.
 Third dicter, no dispute as to title in this case. Was relevant, had to be the
owners, but pretty irrelevant to the action itself.
 Before leaving these themes, looking at Aleung from 2013, from paras 93-100, this
was a situation which was not directly raising the Mocambique principle, but a
question about jurisdiction (was it simpliciter?), the Mocam principle came up in the
background, as both parties to marriage had been born and raised in Trinidad, came
to BC in late 1970s, went back to Trinidad in 1994.
 In 2005, Mrs. A moved back to BC, Mr. A did as well, but the separated.
 $1 million was involved in the separation, including immovable land in Trinidad,
and there was also land in BC.
 S. 6(a) was looked at, court said although s. 10(a) had been met prima facie,
despite there being some immovable property in BC, there was more outside, so
the presumption of 10(a) was successfully rebutted by the husband, saying the
quantity of property here was very small compared to elsewhere.
 Contract
 Line of authority predates Mocambique,
 In personam was relevant in Duke v. Handler and in Chapman
 Ward
 Both parties in NB, matter related to land in QC, order was made for the parties
to transfer the land, question involved a formality in relation to place where the
contract is made, and contract is made in NB so formalities were valid there.
 What if party left NB and said no way?
 Duke v. Handler would have come up and applied interprovincially.
 Lee v. Li
 Said there is a distinction between land elsewhere, in rem in Taiwan, and fraud
that happened in BC that is relevant to that land in Taiwan.
 Trial judge points out that if you make an order in relation to fraud, then of
course you can make judgment for damages for the fraud.
 This is correct, but case was overturned on the basis that there was no sufficient
evidence in relation to the fraud, no basis for even assessing what damages
might be, would require much documentation from Taiwan that they didn’t have.
 Wang v. Sun
 Also involves land, this time in China. The issue before BC was not the title to
that land, but rather the question of payment of commissions, which the court
considered could be dealt with in BC.
 Catania v. Giannattasio
 Classic case in which the in personam theory is explained, you have both the
appellants and the respondents living in ON, they are families of Italian origin,
families involved children of Catania, father did two things in a holograph will
(valid in ON but not in BC), signed by testator but not witnessed.
 Gave certain property in Italy to the appellants.
110
Died in 1993, but it was found that in 1990, father had made an inter vivos
disposition of that land directly to the appellants.
 Would have got it in the will, but got it early.
 What was the difference? Related to the terms of the will, the will, in giving the
land to the appellants, also had reserved a right of way across the land for the
other children to other land, and had given the respondents a right of first
refusal in the event that the land given to the appellants was going to be sold by
the appellants.
 In terms of the will, the land went to the appellants, but a right of way was to be
preserved for the other children, and the respondents were given a right of first
refusal in the event of sale. Those two situations were missing from the deed of
1990.
 In the background there was the allegation that the father, by 1990, was
suffering from a mental incapacity, and therefore could not effectively
understand what he was executing when he executed the deed.
 The question that came up re the validity of the deed be something that could be
dealt with in ON in personam, or would it have to be for the courts in Italy to
decide.
 The court said they have 4 criteria that they use, the court must have personal
jurisdiction over the dft (it did), there must be some personal obligation
between the parties (which there was not), because the respondent children
were not party to the deed, the deed was simply between the father and the
appellant children.
 Third criteria, local court must be able to supervise the execution of the
judgment (ON court would have to be able to supervise, not possible here)
 Judgment would have to be able to have effect for it to be given.
 Focus on lack of mental capacity would have to be dealt with by the courts in
Italy.
 Wheatland 2013 BC
 This was a joint venture to develop and market certain parcels of land located in
AB.
 There were 50 members of the JV and most of 50 were located in BC.
 Each owned some beneficial interest in the property in AB through the JV.
 A significant number of these JV people asked the court to appoint a receiver to
deal with, or to perhaps wind up, the JV.
 The court looked at the type of powers that were sought to be given to the
receiver or a trustee in dealing with the JV, which was apparently going off the
rails, and the court said, well what we see in the draft of what the trustee is to be
given the power to do, (take possession and exercise control over the land,
power to protect the property, institute proceedings in respect of the property,
power to sell/convey or cause the sale/conveyance of the property).
 Court said these matters are functions that can be carried out only if the
trustee is given a proprietary power over the land, and the land is in AB so
it’s up to the AB courts to decide if a trustee can be appointed.

111
Notwithstanding that overwhelmingly most of the participants of the JV were
in BC.
 Review
 Howell will make available a copy that we’ve already been issued (Enforcement of
Canadian Judgments and Decrees Act) – some of the enactments in the new Act
haven’t been put into force yet.
 IP
 Background:
 IP has, itself, become of immense importance.
 IP tied up with commerce, technology, communications, world trade, etc.
 As a result, IP comes up with conflict of laws frequently.
 Infringement of IP is a tort. Classic definition of “tort” is a civil wrong other than
a breach of contract or a breach of trust or fiduciary relationship.
 In broad terms, to fit within conflict of laws, IP is within tort.
 Substantially statutory law, and federal in constitutional allocation.
 Either specifically, under copyright, or trademark jurisdiction, etc.
 Because it’s statutory, we’re alerted to the significance of the government within
the realm of IP.
 If we stand back, we are looking at a government granted, in some cases,
economic monopoly. In that regard, the area that comes to mind is other public
law. In that context, we might find there are issues that we have to think about in
terms of conflict of laws when dealing with the subject that is statutorily based
and which provides, in general terms, an economic monopoly with respect to
certain intangible items.
 This brings us into an area that is not a traditional conflict of laws area.
 Ortiz
 Legislative attempts to provide some monopoly for artefacts, etc, was met with a
notion that NZ was seeking to extend its political power beyond the territory of
NZ.
 ProSwing
 In general terms, the economic monopoly based upon statute, necessarily has a
limit and in this case, where the SCC was looking at enforcement of a nonmonetary order, which meant that greater scrutiny was being given, we found
that one of the facts that the court stipulated in not enforcing the US judgment,
was that it purported to enforce a statutory right beyond the territorial limits of
the US and the result would be utilizing conflict of law to give global significance
to a US trademark in that case.
 To focus on our purposes
 Three categories of IP
 1. Statutory/territorially focused – three types
 Patent
 Registered
 Industrial Design
 Not mechanical sense, but pleasing to the eye
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Limited to a territory, sovereign/governmental grant, there has been an
administrative process that has preceded the grant.
 Application has been made to a government for a patent, for a registered
trademark, for an industrial design.
 After that administrative process has been gone through, the government has
made a grant of exclusivity, economic monopoly, etc. but limited to the territory
of the sovereign.
 One of the principle defences is to challenge the validity of the grant.
 Raises a Mocambique issue – one of which was a sovereignty issue.
 The same thing applies here, a sovereign grant.
 If you’re challenging the validity of a patent or industrial design, you’re
directly challenging what a sovereign has done.
 Immediately comes to issues of comity, and a notion of state.
 2. Copyright
 How does it protect, what it protects?
 It’s statutory, federal..
 It protects that because of a treaty system because there is no grant.
 Exists merely upon creation.
 There’s no admin process, no need to register.
 Can register it.
 Importantly, automatically you have protection in all treaty countries.
 Nature of the protection in different countries is referred to as a principle of
“National Treatment”
 H: That is to say, I’ve created something, a literary work, it automatically has
copyright here in Canada, automatically protected in all treaty countries,
(flows from the Berne convention).
 Today, Berne has basically gone into all world trade organization countries.
 Protection based on the law of the place of infringement, lex loci delicti.
 Done in the courts of the country if infringement.
 The copyright is protected in that place, according to the law of that place,
and by the courts of that place – always existed under the principle of
national treatment.
 We can say, with copyright, while patents and registered trademarks were
territorially focused, this brings a measure of universality to copyright, which
doesn’t exist for the other types of intellectual property that we’ve looked at.
 3. Common Law (or Civil Code in QC)
 Tort of passing off, which is unregistered trademarks.
 Form of trademark protection that is not within the statute
 Trade secrets (confidential information)
 Progresses like any common law tort would.
 Contract
 Equity (Imported the secret)
 Given the nature of copyright, we’d say it’s movable because you don’t have to
register it everywhere, or that it’s everywhere - where it is capable of being
infringed.

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Goes wherever the owner goes, or everywhere within a treaty system, only
matter is what law is applied and who applies that law.
 May draw an analogy with defamation, or privacy.
 In terms of the relationship between IP rights and private international law,
we’re dealing with a very recent connection, in that Howell wrote a piece in
1997 that really went beyond where the law was, thinks it’s fair to say that most
private international law lawyers and academics would have looked at it and
thought Howell was crazy.
 Lucas Film
 The UK SC reversed the CoA
 A seed was growing re: copyright, didn’t want to limit it.
 Why not involve the other areas of IP in addition to copyright?
 When we do that, we meet Mocambique.
 In Lucas Film the CoA said copyright should be subject to the Mocambique
principle.
 That an English court, even if it had personal jurisdiction over the defendant,
the English court should not, could not apply the law of another sovereign in
copyright against the defendant in the case because Mocambique would
apply and say that it’s only the courts of the place where the copyright is, and
it’s only the law of that place that applies.
 This case involved a dft in the UK, that defendant was reproducing artefacts from
the Star Wars film, and selling them in the UK.
 Courts examined the copyright law of the UK and said there was no copyright
infringement in the UK.
 Dft also sold in the US, and the US court found it was an infringement of US law.
 US court came down with a judgment of around $20 million.
 Judgment was brought to UK, but the punitive aspects were taken out (down to
$10 million now).
 UK case declined to follow the expansion, declined to adopt the real and
substantial connection test.
 UK SC said they were keeping the traditional enforcement criteria, service in the
jurisdiction, or attornment to jurisdiction.
 Court said RSC wouldn’t be a bad idea, but basically said it was for the legislature
to think about not for the judge to decide.
 UK court said no, won’t adopt Beals (? I think)
 UK court said they will apply a choice of law and will apply US copyright law.
 Pure quantum is procedure.
 Case law has only moved to enforce other judgments, not to apply choice of law
in other contexts.
 For Canada: why should we bother given that we have real and substantial
connection test, why don’t we just leave it to foreign court to deal with IP and we
will just enforce the judgment?
 Does not preclude efficiency of judicial resources, seems to be more efficient
if you are going to have one trial about UK infringement relating to one
activity to cover both UK/US infringement; if you do that then you are

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looking at something that looks similar to single publication rule (recall from
the defamation case in Australia)
 Could have both A/B resident in US. A is trademark holder of US trademark
rights and of Canadian trademark rights. B infringes both US and UK
infringement. If A sues B in the US, should deal with both US and Canada
infringement.
 Itar
 Reproduction of Russian work, news from Russia for the Russian immigrants in
NY.
 Infringed the copyright that had originated in Russia.
 Who owned the copyright? The newspaper? Reporter? Gathering agency?
 Question of ownership and scope had to go back to a situs.
 Place where it all originated.
 In a sense, an immovable nature to copyright, not immovable, but sometimes
you have to go to the place of origin if you want to find out an issue that is
relevant to copyright, but is not an infringement issue per se, it relates to
something else. Ownership, priority in securities, could be anything like that
where you have to go back to where it was created.
 May be the same as the question of looking at validity of other things.

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