Constitutionalizing Private International
Law — The Canadian Experience
Joost Blom
Peter A. Allard School of Law
University of British Columbia, Vancouver
Preliminary outline — not for citation or attribution
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Introduction
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Where legal systems locate PrIL in their hierarchy of norms
 Status that distinguishes them from other rules of civil law?
Practical implications:
 Who can change the rules and subject to what constraints?
 In federal states, the same two questions can be asked in
relation to interstate cases as distinct from international cases
Constitutionalizing Private International Law —
The Canadian Experience
Codified systems
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Codified systems have the option of placing rules of PrIL
 as a partial collection of rules in the civil code (as in the
Code Napoléon)
 as a comprehensive set of rules within the civil code (e.g.
Québec)
 as a comprehensive set of rules in a separate code (as in the
German EGBGB or the Swiss Law on PrIL)
If codified, status is distinct from other civil law, while still
being under the control of the legislature
Constitutionalizing Private International Law —
The Canadian Experience
European Union
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Effectively has a set of supra-national PrIL codes in the form of
regulations enacted through the European legislative system and
interpreted by the ECJ
 Brussels I Recast (jurisdiction and foreign judgments in civil
and commercial matters)
 Brussels II (jurisdiction and foreign judgment in matrimonial
matters and parental responsibility)
 Rome I (law applicable to contractual obligations)
 Rome II (law applicable to non-contractual obligations)
Change in the rules is out of the reach of national legislatures
but the rules are not constitutionally entrenched
Constitutionalizing Private International Law —
The Canadian Experience
Canada and three other common law countries
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England
 common law rules (and some old statutes) are the historical
source of PrIL of the Canadian common law jurisdictions
United States
 Constitution (1789) says something about PrIL
 More importantly, the courts have extrapolated from the
Constitutional provisions to find constraints on PrIL rules
Australia
 Constitution (1900) has quite a bit to say on PrIL
Canada
 Constitution (1867) says nothing about PrIL
Constitutionalizing Private International Law —
The Canadian Experience
England (leaving aside European law)
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Nothing formally to distinguish private international rules from
other rules of civil law
 Large parts of law of jurisdiction contained in procedural rules
 Enforcement of judgments was by way of assimilation to debts
 Choice of law left mostly to the judges, with foreign law
assimilated to a fact
UK has been a multi-jurisdictional but not a federal state
 judges treated intra-UK conflicts on the same basis as
international ones
 In 19th and 20th centuries, international cases tended to
dominate
Constitutionalizing Private International Law —
The Canadian Experience
Legacy of English PrIL
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Legacies to Canadian (common law) private international law
 Jurisdiction seen as matter of procedure rather than legal
principle
 Foreign judgments treated the same regardless of whether
they originated within or outside Canada
 Conditions for enforcement, based on the debt theory,
not seen by judges in terms of a system of interjurisdictional cooperation
 Little legislative interest in choice of law
Québec private international law markedly different
Constitutionalizing Private International Law —
The Canadian Experience
United States
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US Constitution did say something about private international
law
 Art 4, s 1 “Full faith and credit shall be given in each State
to the public Acts, Records, and judicial Proceedings of
every other State . . . .”
 Congress has legislative authority to make “general
laws” prescribing the effect of other states’ acts,
proceedings, etc., in each state but has practically not
exercised it
 5th Amendment (1791) and 14th (1868) — people not to be
deprived “of life, liberty, or property, without due process of
law”
Constitutionalizing Private International Law —
The Canadian Experience
United States, cont’d
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Jurisdiction of courts of the states invalid unless the case has
minimum contacts with the state
 Limitations on jurisdiction originally seen as a territorial
criterion implicit in full faith and credit, but later also as a
due process requirement (“fair play and substantial justice”)
Recognition of sister state judgments (based on valid
jurisdictional grounds) a constitutional obligation
Choice of law also subject to constitutional constraint of
“significant contacts” with the state’s legal system, also linked
both to full faith and credit and to due process
Full faith and credit is an interstate matter, due process is not
strictly so — international rules largely coincide with interstate
Constitutionalizing Private International Law —
The Canadian Experience
Australia
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Australian Constitution expressly vests large part of PrIL
legislative power in the Commonwealth
 Can invest any court of a state with federal jurisdiction
(Constitution, s 77(iii), Cross-Vesting Act of 1987)
 Can legislate on service and execution throughout the
Commonwealth of civil and commercial process and the
judgments of state courts (s 51(xxiv)), and
 Can legislate on recognition throughout the Commonwealth
of the laws, etc., and judicial proceedings of the states (s
51(xxv))
 Only choice of law is not constitutionally within federal
authority
Constitutionalizing Private International Law —
The Canadian Experience
Australia, cont’d
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Constitution creates a federal power to impose a more or less
uniform PrIL in interstate cases as far as jurisdiction and foreign
judgments are concerned, and the Commonwealth has done so
Although actual differences in the laws of the states in most
civil matters are relatively few . . .
. . . a desire to achieve similar uniformity in choice of law has
been felt by
 High Court of Australia (e.g. some of the Aust HC in
Breavington v Godleman, 1988 – to be referred to again
later)
 Australian Law Reform Commission (Report on Choice of
Law, 1992)
Constitutionalizing Private International Law —
The Canadian Experience
Canada — the constitutional framework
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No express provision on full faith and credit, due process, or
federal power to make uniform the provinces’ jurisdiction and
foreign judgment rules
Charter of Rights (1982) introduced a right not to be deprived of
“life, liberty and security of the person” except in accordance
with the principles of fundamental justice” (s 7) — not property
Implicit territorial limits on the legislative authority of the
provinces in relation to
 “Property and civil rights in the province” (Constitution Act
1867, s 92(13))
 “Administration of justice in the province” (s 92(14))
Constitutionalizing Private International Law —
The Canadian Experience
Canadian constitution and PrIL
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Before 1990, only link drawn between the constitution and
private international law was a poorly defined doctrine as to
when provincial legislation was ultra vires as extraterritorial
 Based on assigning a situs to the “civil right” being affected
by the legislation
 E.g. Newfoundland’s termination of water rights of an
electric power utility in Labrador was invalid because
Hydro-Québec had a long-term contractual right to buy the
power and its “civil right”, which was the target of the
legislation, was situated outside the province of
Newfoundland (Upper Churchill Falls Water Rights
Reference, 1984 SCC)
Constitutionalizing Private International Law —
The Canadian Experience
Canada — the Morguard revolution
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Decisive turn was taken in Morguard Investments Ltd v De
Savoye (1990 SCC)
 Enforcement of Alberta default judgment in BC on “real and
substantial connection” of litigation with Alberta
 Common law foreign judgment rules changed because out of
keeping with
 underlying purpose of rules of PrIL “to facilitate the flow
of wealth, skills and people across state lines in a fair and
orderly manner”
 demands of inter-jurisdictional comity that, as between
the provinces, is tantamount to an obligation of full faith
and credit
Constitutionalizing Private International Law —
The Canadian Experience
Morguard revolution (2)
And jurisdiction of the courts of a province extends only to
cases with a real and substantial connection with the
province
 Declared as part of the recast relationship of the
provincial legal systems inter se in PrIL
 but also linked to the constitution — the incapacity of a
province to legislate extraterritorially
Both the “real and substantial connection” that defines courts’
territorial jurisdiction and the obligation to recognize and
enforce other provinces’ judgments were subsequently declared
to be “constitutional imperatives” (Hunt v T & N plc, 1993
SCC)
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Constitutionalizing Private International Law —
The Canadian Experience
Responses to Morguard -- jurisdiction
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To Morguard’s reconfiguration of the law of jurisdiction
 Legislative: Uniform Law Conference of Canada (ULCC)’s
Court Jurisdiction and Proceedings Transfer Act (1994),
adopted by British Columbia, Saskatchewan and Nova
Scotia
 Judicial: In other provinces, jurisdiction must now be based,
not on a real and substantial connection test, but a
presumptive connecting factor (PCF) test: Club Resorts Ltd v
Van Breda (2012 SCC)
Both try to address the indeterminacy problem inherent in using,
as a rule of decision, a test (real and substantial connection)
designed for constitutional use
Constitutionalizing Private International Law —
The Canadian Experience
Responses to Morguard – jurisdiction (2)
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Imposing a constitutional matrix on the law of jurisdiction in the
provinces’ courts has reduced the diversity between the
provinces’ jurisdictional rules but (rightly) not eliminated it
 Quebec rules quite different (and constitutionally approved
by Spar Aerospace Ltd v American Mobile Satellite Corp
(2002 SCC))
 CJPTA rules different in important respects from PCF rules
introduced by Van Breda
 Both Quebec and CJPTA include forum of necessity
provisions, whose constitutional validity is an open question,
as is the concept of forum of necessity at common law
Because linked to extraterritorial incapacity, jurisdiction rules
identical in interprovincial and international cases
Constitutionalizing Private International Law —
The Canadian Experience
Responses to Morguard – foreign judgments
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Judicial response to Morguard’s reconfiguration of the law of
foreign undefended judgments
 Common law test for when an international judgment is
recognized or enforced is identical to the test applied to a
judgment from within Canada, and so (until now) are the
defences: Beals v Saldanha (2003 SCC)
 Effect of Van Breda is probably to require a PCF in relation
to jurisdiction of a foreign court, not just a (multi-factorial)
real and substantial connection
 Enforcement is no longer limited to monetary awards but,
with qualifications, extends to any other type of order: Pro
Swing Inc v Elta Golf Inc (2006 SCC) (both Canadian and
international judgments)
Constitutionalizing Private International Law —
The Canadian Experience
Responses to Morguard – foreign judgments (2)
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Legislative response to Morguard’s reconfiguration of the law
of foreign judgments
 Legislative reduction of range of recognized judgments from
other provinces is now impossible
 Registration statute in 7 provinces removed any
jurisdictional test for Canadian judgments: ULCC’s
Enforcement of Canadian Judgments and Decrees Act
(1997) — and the act includes non-monetary awards
 Saskatchewan has codified the rules for international
judgments, based on ULCC Enforcement of Foreign
Judgments Act (consol. 2011), which expands common law
defences re excessive damage awards — and the act includes
non-monetary awards
Constitutionalizing Private International Law —
The Canadian Experience
Responses to Morguard -- choice of law
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Only one SCC decision directly on choice of law: Tolofson v
Jensen (1994 SCC) (motor vehicle accident outside the
province)
 Adopted strict lex loci delicti rule with no “flexible
exception”
 Only leeway is for torts not readily localized, such as libel
 Rationale was principle of territoriality as an international
law, not constitutional, principle
 Dictum that constitutional parameters may imliedly mandate
such a solution in the name of uniformity (taking cue from
Breavington in Aust HC)
Constitutionalizing Private International Law —
The Canadian Experience
Responses to Morguard -- choice of law (2)
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A type of unilateral choice of law rule has emerged in the shape
of a constitutional doctrine — based on extraterritoriality — that
the law of a province may be within provincial competence and
validly applicable to some circumstances but not others
Inapplicable to circumstances in which it would
 deny operation to the law of another province so as to violate
comity / full faith and credit (Hunt)
 create rights and liabilities in relation to facts that lack a
“meaningful connection” with the province (Unifund,
Imperial Tobacco)
Constitutionalizing Private International Law —
The Canadian Experience
Conclusion — questions
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Why did the SCC decide to construct (starting with Morguard in
1990) a constitutional framework for PrIL?
Was the constitutional route necessary or could the goals have
been attained by other means?
Has the constitutionalizing project, on balance, been a good
thing?
Constitutionalizing Private International Law —
The Canadian Experience
Conclusion — why SCC undertook the constitutionalizing
project
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Why did the SCC decide to construct (starting with Morguard in
1990) a constitutional framework for PrIL?
 Revitalize PrIL — bolster the content of “comity” —
recognize that rules of PrIL form a constitutive part of the
national legal order and should be subject to parameters
from that perspective
 Affirm national standards for certain aspects of PrIL
(jurisdiction, full faith and credit, some choice of law)
 Integrate PrIL with existing constitutional doctrine of
provincial incapacity to legislate extraterritorially
These ideas appear in the cases, though not consistently
Constitutionalizing Private International Law —
The Canadian Experience
Conclusion — was the constitutionalizing necessary?
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Nothing actually in the constitution required it
Most of the ends that have been achieved could have been
achieved by other means
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To the extent that the purpose was to revitalize PrIL, it could have been
done by altering the judge-made PrIL without the constitutional
“imperatives”
 As, for instance, the SCC did in applying the same test for
recognizing truly foreign judgments as for Canadian judgments
To the extent that the aim was to develop national standards, the
constitutional standards are very loose and actual uniformity among
provinces no longer seems to attract the SCC (see Van Breda)
To the extent that the aim was to integrate PrIL with the constitutional
concept of extraterritoriality, the integration has not really taken place
(tests are still different)
Constitutionalizing Private International Law —
The Canadian Experience
Conclusion — has the constitutionalizing been a good
thing?
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I think the benefits of the last 25 years have been:
 The links forged with the constitution have helped to
stimulate judicial and legislative rethinking of the
foundations of PrIL
 The law of jurisdiction is now in somewhat better shape than
before Morguard
 The law for enforcing undefended foreign judgments is
better but is now too liberal in international cases
 Choice of law rules as such have not yet been directly
affected by the constitutional developments but there is new
(highly uncertain) law on extraterritorial effects of provincial
statutes
Constitutionalizing Private International Law —
The Canadian Experience
Conclusion — has the constitutionalizing been a good
thing? (2)
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But:
 The improvements are due as much to judicial and
legislative initiatives to manage the consequences (mainly
uncertainty) of the new constitutional principles, as they are
to the principles themselves
 PrIL in some respects has been put out of the reach of any
provincial legislature to change, e.g.:
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Recognizing Canadian judgments — including non-monetary
awards — is now mandatory, no exceptions
Whether it’s open to a court to take jurisdiction as a forum of
necessity either by statute (Quebec Civil Code, CJPTA) or at
common law depends on whether it’s consistent with
constitutional requirements (not yet clear)
Constitutionalizing Private International Law —
The Canadian Experience
Conclusion — means did not really suit the ends
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Part of the reason for the mixed result is that the project to give
PrIL constitutional underpinnings really needed better
instruments than the Canadian constitution offered
 The 1867 Constitution Act does not protect property
rights, so can’t connect PrIL to constitutional standards
of civil justice (cf due process in US)
Constitutionalizing Private International Law —
The Canadian Experience
Conclusion — means did not really suit the ends (2)
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All that’s available is
 (a) concept of extraterritoriality as limit on provincial
legislative authority and
 (b) the concepts seen to inhere in the obligation of “comity”
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Extraterrioriality is not a well developed concept — has
produced unclear outer limits on jurisdiction (real and
substantial connection) and ability to legislate for crossborder situations (pith and substance must be intra-territorial,
extraterritorial application requires a meaningful connection)
Comity, so far as it’s a constitutional obligation, applies only
between provinces (so it’s no help in international PrIL) and
says little about when comity is owed (or not owed) to
another province’s law
Constitutionalizing Private International Law —
The Canadian Experience
Conclusion — lessons on constitutions and PrIL
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Others have written on how the structuring role of PrIL,
internationally, gives it a function analogous to a national
constitutional one
That is true, but the Canadian experience shows that actually
embedding PrIL in a national constitution is a complex question,
the pluses and minuses of which depend to a large extent on the
instruments that the constitution places — expressly or, as in
Canada, impliedly — at the courts’ disposal
Constitutionalizing Private International Law —
The Canadian Experience