LAW 454 – CONFLICT OF LAWSCASES AND NOTES SUMMARIES

Compiled and Edited by AnonymousBased on the Lecture and Materials of Prof. Annalise Acorn

September – December 2016

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TABLE OF CONTENTSCHAPTER 1: CHARACTERISATION....................................................................................................................7

GENERAL..............................................................................................................................................................7

Hogg v Provincial Tax Commissioner................................................................................8

Pouliot v Cloutier..............................................................................................................8

PROCEDURAL RULES AND SUBSTANTIVE LAW........................................................................................9

Leroux v Brown.................................................................................................................9

Horseshoe Club Operating Co v Bath..............................................................................10

Tolofson v Jensen............................................................................................................11

Castillo v Castillo............................................................................................................11

Castillo v Castillo............................................................................................................12

Vogler v Szendroi............................................................................................................12

TD Bank v Martin............................................................................................................13

Re Cohn..........................................................................................................................14

Phrantzes v Argenti........................................................................................................14

Khalij Commercial Bank Ltd. v Woods.............................................................................15

Somers et al v Fournier et al...........................................................................................16

CHAPTER 2: DOMICILE.......................................................................................................................................16

DOMICILE OF ORIGIN......................................................................................................................................16

Udny v Udny...................................................................................................................16

DOMICILE OF DEPENDENCE.........................................................................................................................17

Davies v Davies..............................................................................................................17

DOMICILE OF CHOICE.....................................................................................................................................18

White v Tennant.............................................................................................................18

Puttick v Attorney General..............................................................................................19

Mark v Mark....................................................................................................................19

Z,B v C............................................................................................................................20

Re Fuld (No 3).................................................................................................................21

Ramsay v Liverpool Royal Infirmary...............................................................................21

Gunn v Gunn...................................................................................................................22

Osvath-Latkoczy v Osvath-Latkoczy...............................................................................22

David v Foote Estate.......................................................................................................23

CHAPTER 3: DOMESTIC RELATIONS..............................................................................................................24

VALIDITY OF MARRIAGE.................................................................................................................................24

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Berthiaume v Destous....................................................................................................25

Apt v Apt.........................................................................................................................25

Hassan v Hassan............................................................................................................26

Essay on the Conflict of Laws.........................................................................................26

Brook v Brook.................................................................................................................26

Frew v Reed....................................................................................................................27

Canada v Narwal............................................................................................................27

Wilkinson v Kitzinger......................................................................................................28

Bill C-32, An Act to Amend the Civil Marriage Act...........................................................29

Hincks v Gallardo............................................................................................................29

RECOGNITION OF MARRIAGES....................................................................................................................30

Hyde v Hyde...................................................................................................................30

Cheni v Cheni.................................................................................................................30

Re Quon..........................................................................................................................31

Azam v Jan......................................................................................................................31

DIVORCE.............................................................................................................................................................32

Engle v Carswell.............................................................................................................33

Alexiou v Alexiou............................................................................................................33

Schwebel v Ungar...........................................................................................................34

Indyka v Indyka..............................................................................................................35

Kish v Director of Vital Statistics.....................................................................................36

Bate v Bate.....................................................................................................................36

Keresztessy v Keresztessy..............................................................................................37

Edwards v Edwards Estate..............................................................................................37

Powell v Cockburn..........................................................................................................38

Zhang v Lin.....................................................................................................................38

CUSTODY............................................................................................................................................................39

The Hague Convention on the Civil Aspects of International Child Abduction as implemented in the Alberta International Child Abduction Act.......................................40

Extra-Provincial Enforcement of Custody Orders Act......................................................40

Thomson v Thomson.......................................................................................................41

Knight v Knight...............................................................................................................42

KJS v MT..........................................................................................................................43

PP v VV...........................................................................................................................43

Naibkhil v Qaderi............................................................................................................44

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MATRIMONIAL PROPERTY.............................................................................................................................45

Tezcan v Tezcan.............................................................................................................46

CHAPTER 4: CONTRACTS..................................................................................................................................46

EXPRESS SELECTION OF PROPER LAW....................................................................................................47

Vita Food Products v Unus Shipping Co..........................................................................47

Golden Acres v Queensland Estates...............................................................................47

BHP Petroleum Pty Ltd v Oil Basins Ltd...........................................................................48

NO EXPRESS SELECTION OF PROPER LAW.............................................................................................48

Imperial Life Assurance v Colmenares............................................................................48

Lilydale Cooperative Ltd v Meyn Canada Inc..................................................................49

Offshore International v Banco Central...........................................................................50

STATUTORY CHOICE OF LAW RULES.........................................................................................................50

Canada Life Assurance Company v Canadian Imperial Bank of Commerce....................50

ILLEGALITY.........................................................................................................................................................51

Ross v McMullen.............................................................................................................51

Block Bros v Mollard.......................................................................................................52

Boardwalk Regency Corporation v Maalouf....................................................................52

Ralli Brothers v Compania Naviera.................................................................................53

Gillespie Management Corporation v Terrace Properties................................................53

CAPACITY TO CONTRACT..............................................................................................................................54

Charron v Montreal Trust................................................................................................54

FORMAL VALIDITY............................................................................................................................................55

Kenton Natural Resources Corp v Burkinshaw................................................................55

CHAPTER 5: TORTS.............................................................................................................................................55

CHOICE OF LAWS.............................................................................................................................................55

Tolofson v Jensen............................................................................................................55

Hanlan v Sernesky..........................................................................................................56

Wong v Lee.....................................................................................................................57

Somers et al v Fournier et al...........................................................................................57

Brill v Korpaach Estate....................................................................................................57

Bezan v Vander Hooft.....................................................................................................58

PLACE OF THE TORT.......................................................................................................................................58

Moran v Pyle National.....................................................................................................58

Banro Corp v Editions Ecosociete Inc..............................................................................59

Gulevich v Miller.............................................................................................................59

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OTHER CAUSES OF ACTION.........................................................................................................................60

Schroen Estate v Wawanesa Mutual Insurance Co..........................................................60

Thai v Dao......................................................................................................................61

Herman v Alberta (Public Trustee)..................................................................................61

CHAPTER 6: SUCCESSION.................................................................................................................................61

TESTATE SUCCESSION...................................................................................................................................61

Re Berchtold...................................................................................................................61

Wills and Succession Act................................................................................................62

Allison Estate v Allison....................................................................................................62

Re Canada Trust Co and Sachs.......................................................................................63

Davies v Collins..............................................................................................................63

INTESTATE SUCCESSION...............................................................................................................................64

Re Collens.......................................................................................................................64

Sinclair v Brown..............................................................................................................64

Thom Estate v Thom.......................................................................................................65

Vak Estate v Dukelow.....................................................................................................65

CHAPTER 7: PROOF OF FOREIGN LAW.........................................................................................................66

The Mercury Bell.............................................................................................................66

CHAPTER 8: REFUSAL TO APPLY FOREIGN LAW........................................................................................66

Huntington v Attril..........................................................................................................66

CHAPTER 9: JURISDICTION OF THE LEX FORI.............................................................................................67

PERSONAL SERVICE........................................................................................................................................67

Butkovsky v Donahue.....................................................................................................68

Charron v La Banque Provincial du Canada....................................................................68

Kroetsch v Domnik..........................................................................................................69

The Uniform Jurisdiction Proceedings and Transfer Act...................................................69

SERVICE EX JURIS............................................................................................................................................70

Lieu v Nazarec................................................................................................................70

Van Breda v Village Resorts Ltd......................................................................................70

Lapointe Rosenstein Marchand Melançon v Cassels Brock & Blackwell LLP....................71

Gulevich v Miller.............................................................................................................73

JURISDICTION BY SUBMISSION....................................................................................................................73

Norex Petroleum Ltd. v Chubb Insurance Co. of Canada.................................................73

Henry v Geoprosco International....................................................................................74

Roglass Consultants v Kennedy......................................................................................74

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Fulford v Reid.................................................................................................................74

Esdale v Bank of Ottawa.................................................................................................75

Catalyst Research v Medtronic.......................................................................................75

Becker v Peers................................................................................................................75

SUBMISSION BY AGREEMENT......................................................................................................................76

Gyonyor v Sanjenko........................................................................................................76

Z.I. Pompey Industrie v Ecu-Line NV...............................................................................76

Douez v Facebook Inc.....................................................................................................77

FORUM NON CONVENIENS...........................................................................................................................77

Amchem Products Inc v British Columbia (WCB).............................................................77

Banro Corp v Editions Ecosociete Inc..............................................................................78

Black v Breeden..............................................................................................................79

CHAPTER 10: ENFORCEMENT OF FOREIGN JUDGMENTS.......................................................................80

COMMON LAW..................................................................................................................................................80

Morguard Investments Ltd v De Savoye.........................................................................80

Beals v Saldanha............................................................................................................80

Chevron Corp v Yaiguaje................................................................................................81

STATUTE.............................................................................................................................................................82

Reciprocal Enforcement of Judgments Act......................................................................82

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CHAPTER 1: CHARACTERISATIONGENERAL

“Choice of Law Rule”A rule that tells the court which law to apply given the nature of the subject matter. Courts determine which law should apply by characterization of the issue.

lex fori: law of the forum hearing the caselex causae: law of the cause, law to apply once followed the choice of law rulelex situs: law of the place where the property is situatedlex loci delicti: law of the place where the tort was committed (tricky when it comes to defamation and especially when considering the internet)lex loci celebrationis: law of the place where a marriage is celebratedlex loci contractus: law of the place where a contract was madelex domicilii: law of the place where a party is domiciled

There are 7 choice of law rules:1. torts governed by the place where the tort committed (lex loci delictii)

2. contracts governed by the law the parties intended

3. formalities of marriage are governed by the law of the place where the marriage was celebrated (lex loci celebrationis or lex loci contractus)

-once applied with the requirements of getting married then the marriage is recognized in other jurisdictions

4. intrinsic validity of marriage is governed by the ante-nuptial domicile of the parties -ante = before the wedding where did you reside

-cannot live in a place that doesn’t recognize same sex marriage and then elope to get a valid marriage

5. succession to movable property is governed by the law of the place where the deceased was domiciled (lex domicilii)

6. succession to immovable property is governed by the law of the place where property is situated (lex situs)

7. matrimonial property is governed by the law of the matrimonial domicile: the law of the place where the parties set up their matrimonial home after marrying ( lex domicilii)

Characterisation:This question refers to the process whereby we decide which choice of law rule ought to be applied. This is always done on the basis of the law of the forum ( lex fori). The only exception is for movable or immovable property where the rule is always lex situs.

HOGG V PROVINCIAL TAX COMMISSIONER1941 SKCA

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FACTS: Deceased was domiciled in SK at the time of her death, she owned the rights of various mortgages on land which was situated in BC The SK Succession Duties Act stated that any property devolving under the law of SK, estate taxes would be owed; Provincial Tax Commission of SK felt that the mortgages constituted property devolving under the law of SK and therefore they were owed taxes

ISSUE: Whether the mortgages are to be classed as “movables” or “immovables”. If movables, they devolve upon the beneficiaries under the law of SK pursuant to the classic rule lex domicilii. If not, they will devolve upon the persons entitled to take them according to the law of British Columbia.

RESULT: Once you decide mortgages are immoveable property, then they devolve under the law of lex situs and therefore, BC law is applied; In BC, the tax commissioner is not able to tax estates. Therefore, SK was not entitled to the estate tax.

REASONS: Look to the lex situs to determine how the rule is applied. The decision was based on the laws of evidence in B.C. which does not make a distinction between moveable and immoveable property but rather there is a real and personal distinction. However, the immoveable/moveable distinction is a creature of conflicts law, and so it doesn’t matter how BC characterizes property. The court concluded in this situation that mortgages are considered immoveable.

Just because something is defined as moveable property in domestic law, doesn’t mean that it will be characterized as moveable property for the purposes of conflicts of laws. Money coming out of land has historically been classified as immoveable and therefore mortgages would be classified as immoveable.

POULIOT V CLOUTIER1994 SCC

FACTS: Couple married in 1936 in New Hampshire. They moved to Quebec, domicile of choice in Quebec, and Husband made out a will leaving all property to his brother. Husband dies, and Wife discovers she’s been disinherited. New Hampshire law entitled her to ½ of Husband’s estate. No such provision existed in Quebec. In Quebec once someone marries, property becomes part of a community regime where the property each spouse owns independently, they now share equally with their spouse.

ISSUE: How to characterise this issue?

RESULT: This is a false conflict which deals with succession of movable property on death. A false conflict is a result that could not have happened in either jurisdiction if there was no conflict.

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REASONS: If the issue is characterized as relating to matrimonial property, then New Hampshire law applies. If the issue is instead characterized as a matter of succession of moveable property, then you must look to the domicile at the time of death and Quebec law would apply in that case.

In New Hampshire, you are not allowed to cut your spouse out of your will. You must give at least ½ to your spouse. However, in Quebec, there is no such statute, but rather there is a regime of communal property. When the spouses are married (under Quebec marriage laws), they immediately own 50% interest in all of the property.

The Court said that the Succession Act of New Hampshire has more to do with wills and what you can and cannot do in a will, we will characterize it as succession of moveable property which is governed by the laws of Quebec. Hence, under Quebec law, all of the property can be given away since they were not married there.

The result here is something that could not have taken place in either system if there was no conflict: In New Hampshire the wife would have gotten at least ½ of the estate, and if they got married in Quebec, she would have gotten 50% interest.

THIS IS NOT THE BEST RESULT CONSIDERING THE PRINCIPLES BELOW. The result would have been better to characterize this as a matrimonial property issue.

3 Principles of Proper Characterization:

(1) Characterize the issue at its highest possible level of abstraction- not particular statute or rule in question.- forget about possible legal solutions in each jurisdiction

(2) apply the whole of the legal system that the choice of law rule directs you to- do not apply only selective provisions. - look at the big picture

(3) Consider matters of fairness when making the characterization - is one of the parties trying to avoid obligations which would be enforced under both competing legal systems?

PROCEDURAL RULES AND SUBSTANTIVE LAW

There are two reasons why a court never “sits as a foreign court.” First, there is the philosophical reason of a court staying true to its own institutional identity. But there is also a practical reason in that you do not want to have to learn an entirely new legal system. There is also an issue with the fact that if you must become a court governed by the lex causae, but the lex causae is in contention, then choosing one of the lex causae in contention would be predjudicial? It’s best to operate under the lex fori. Think of the lex causae as a houseguest.

LEROUX V BROWN(1852) 12 CB 801

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FACTS: Oral agreement for employment between individuals residing at different locations. Oral agreement was made in France. Laws of France do not have a Statue of Frauds, so does not have to be in writing, but the laws of England say such an agreement has to be in writing.

ISSUE: Is the Statute of Frauds procedural legislation or substantive domestic law?

RESULT: It is procedural legislation (?!)

REASONS: This case is the source of much confusion about the distinction between substance and procedure. The court characterised the Statute of Frauds as a piece of procedural legislation regarding the creation of contracts. They essentially looked at the wording of the statute saying that “no action can be brought unless there is a memorandum of writing.” The Court said that “no action shall be brought” is the denial of a remedy which is a matter of procedural law. BUT, this procedure is part of the substantive domestic law and it makes more sense to think about is as substantive law. The Court should have framed this question at a higher level of abstraction. They should have asked what is required to make an enforceable contract instead of focusing on the Statute of Frauds. In this way, it sounds less procedural.

The most compelling argument to characterise it as procedure is that the Statute of Frauds is akin to a rule of evidence whereby proof of a contract required writing as per English courts.

NOTE: During this time, the English Courts believed that justice was not done to their degree of excellence in other jurisdictions. So they did not like applying the laws of different jurisdictions. If you just characterise everything as procedural, then you get to keep your own laws.

HORSESHOE CLUB OPERATING CO V BATH [1998] 3 WWR 128 (BCSC)

FACTS: The BC Gaming Act says that “no suit can be brought” to recover money lent for the purposes of gambling, but there is no such provision in Nevada. Bath goes to Nevada, gambles, borrows money, racks up an enormous gambling debt and returns to BC. He does not repay and the Casino sues him in BC because that is where he is, along with his assets. However, the lex causae is Nevada and the contract says that the debt was to be governed by Nevada law.

ISSUE: Is this a substantive or procedural issue?

RESULT: This is a substantive issue, and the lex causae is Nevada, so the BC Gambling Act provision is of no effect.

REASONS: Everything took place in Nevada where there is no provision like the BC Gaming Act. Bath tried to say that “no action shall be brought” should eliminate the BC court’s jurisdiction despite any substantive Nevada law. That is, while the wording looks like an action cannot be brought in BC, it does not mean that no action exists, just that cannot get a remedy for it in BC.

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The legislation certainly appears to me to be substantive. It provides that all gaming contracts are null and void and, accordingly, relates primarily to a right, not a remedy. The preclusion of an action does not of itself invariably render legislation procedural and where there is any doubt, it is to be resolved in favour of permitting an action to be pursued in this court.

TOLOFSON V JENSEN1994 SCC

FACTS: Car accident is Saskatchewan, but plaintiff and defendant lived in BC. The limitations period expired in Saskatchewan but was still running in BC and plaintiff sues defendant in BC.

ISSUE: Is the limitations period a substantive issue?

RESULT: Limitation periods are substantive issues as limitations strongly impact the rights of parties. Saskatchewan limitation period applies and so plaintiff is out of time.

REASONS: Doesn’t make sense to say your action still exists and you just don’t have a remedy – this is a full on rights issue, no longer viewed as procedural (as in the past).

But, does it really make sense to understand limitation periods as substantive? At the outset of the litigation, you don’t know what the lex causae is. It was contested as to what it would be. As a practical matter, the plaintiff should be able to rely on limitation period on place where they are brining the action because they don’t know what the lex causae will be. However this may facilitate forum shopping.

There was argument that in the past, limitations had always been viewed as procedural. The Court said that limitations periods were conceptualised in the same way as the Statute of Frauds. They didn’t like this, hence it should be characterised as substantive. But if you look behind the rationalisation, you cannot rely on the lex causae before it is determined.

NOTE: Alberta tries to overrule this decision via s. 12 of the Limitations Act: “The Limitations law of [Alberta] shall be applied whenever a remedial order is sought in [Alberta] notwithstanding that, in accordance with conflict of law rules, the claim will be adjudicated under the substantive law of another jurisdiction.” This means the Alberta limitation period is used even if the lex causae is different from Alberta.

CASTILLO V CASTILLO2004 ABCA

FACTS: Car accident in California. Husband and Wife are both from AB and insured in Alberta. Plaintiff brings action in Alberta. California law says limitation period has expired (1 year), while Alberta period is still running (2 years).

ISSUE: What is the correct limitation period?

RESULT: ABCA said that the combined effect of s. 12 and Tolofson was that both limitations periods applied and that the plaintiff had to have brought her

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action in time in both jurisdictions in order to be able to sue in the Alberta court.

REASONS: Except in so far as they are clearly and unambiguously intended to do so, statutes should not be construed so as to make any alteration in the common law or to change any established principle of law. This is a principle of statutory interpretation. However, the legislation was in response to the SCC overturning a well-established common law rule.

The section does not indicate that it alters the choice of law rule as set out in Tolofson, that is, that the limitations law of the place of the tort is to be applied. In a case with facts like Tolofson, therefore, the foreign law barring recovery on the basis of the limitations law of the place of the tort will apply to the action; the tort is not actionable. There is no ambiguity or uncertainty; s. 12 of the Limitations Act does not alter that aspect of the common law as set out in Tolofson.

In this case, if the California law affords a defence because of a one year limitation, it remains available to the defendant to raise as a defence. Section 12 has no application as a defence on these facts. However, if the California law had provided a three year limitation period, s. 12 would apply to provide a defence in this forum, namely, that the two year Alberta limitation applied notwithstanding the three year limit in California.

This is a bad decision as the clear intention of the legislature was to overrule the common law of Tolofson.

CASTILLO V CASTILLO2005 SCC

FACTS: As above…

ISSUE: As above…

RESULT: Upheld reasoning of ABCA.

REASONS: Legislation does not breathe life into actions that are statute barred in the lex causae.

There is a dissenting opinion by Bastarache, J. that the provision was ultra vires. He made a weird constitutional argument that this would have an extraterritorial effect.

NOTE: The Alberta Limitations Act was again amended: “where a proceeding … would be determined in accordance with the law of another jurisdiction if it were to proceed, and the limitations law of that jurisdiction provides a shorter limitation period than the limitation period provided by the law of Alberta, the shorter limitation period applies.” This is weird because it legislates the reason in Castillo even though this is the exact opposite of what was originally intended.

VOGLER V SZENDROI2008 NSCA 18

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FACTS: Plaintiff in early twenties was in motor vehicle accident while travelling home from Buddhist studies in Wyoming. He instituted proceedings in Nova Scotia. It took six years after the accident to serve one respondent in California, and the other respondent in Quebec had yet to be served. In Wyoming, an action must be commenced within four years of the accident (s. 3(a) which is definitely substantive) and commencement is determined at time of service when not served in 60 days (s. 3(b), the substance of which is in question). However, in Nova Scotia, an action is commenced simply upon filing.

All parties acknowledge Wyoming to be the lex causae, and acknowledge limitation periods as substantive law. The Plaintiff argues that how you commence an action is procedural, but the Defendant says you cannot separate how you commence an action from limitations periods.

ISSUE: Is the rule in Wyoming that commencement of an action does not take place until service substantive or procedural law? If it is substantive, then the action is statute barred. If it is procedural, then only section 3(a) applies and the action is fine since it was filed within four years.

RESULT: The provision is procedural.

REASONS: Nova Scotia jurisprudence governs the analysis as to whether or not rule 3(b) is procedural or substantive. Thus, we should ask: If such a provision existed in Nova Scotia, applying Nova Scotia's jurisprudence, would it be considered substantive or procedural?

If the provision concerns when (timing) an action is to be commenced, that is substantive, but if it concerns the manner (methodology) in which it much be commenced, then it is procedural. However, this distinction is without any actual content.

The trial judge wrote: “[Section 3(b)] is … integral to the Statute of Limitations in Wyoming since it provides the means for determining whether a proceeding has been commenced within the time limitations provided in the statute or is subject to being struck, because it was not commenced within the statutory provisions.” However, we do not care how it is applied in Wyoming. We must determine how it would be applied in Nova Scotia.

Rule 3(b) is not about how long you have to file a claim (substantive); it is about how a plaintiff commences a claim (procedural). This is not an exercise in characterisation in abstraction. They focused too singularly on rule 3(b) whereas the trial judge decided the issue based in a larger context.

NOTE: However, notwithstanding all of this, there are still service rules in Nova Scotia. Specifically, rule 4.04(1) of the Nova Scotia rules says that a notice of action expires one year after the day it is filed. Further, an application for renewal of a notice must be filed within 14 months after the day the notice of action is filed. The lawyers for the defendant’s should have brought this up.

TD BANK V MARTIN [1985] 4 WWR 557 (Sask QB)

FACTS: Martin was in BC and takes out a mortgage with TD who are also in BC. He then goes to Saskatchewan and defaults on the loan. TD forecloses and wants

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to sue on the convenant to pay. They sue in Saskatchewan. Section 3 of the Saskatchewan Land Contracts (Actions) Act says “…no action shall be commenced without leave of the Court”; s. 2 of the Saskatchewan Limitation of Civil Rights Act says “…no action shall lie on the covenant to pay…”.

The lex causea is BC as per the lex situs rule. The lex fori is Saskatchewan.

ISSUE: Are sections 3 and 2 procedural or substantive.

RESULT: The Land Contracts (Actions) Act and the Limitation of Civil Rights Act did not apply to actions on covenants in foreign mortgages securing the purchase price of foreign land (i.e. they are not procedural).

REASONS: The Land Contracts (Actions) Act, which in s. 3 provides that a mortgage action commenced without leave of the court is a nullity, may be characterized as procedural within Saskatchewan, but not for the purpose of conflict of laws. In fact and effect s. 3 is substantive for the purpose of conflict of laws because it affects the obligation of the mortgage, altering it in one of its essential elements, and such right must be ascertained in accordance with the place of contracting.

However, even if the section were characterized as procedural, on the basis of its construction it would not apply to an action on a foreign subject matter. It was not the legislature's intention to subject the mortgagee in a foreign mortgage to the process of seeking leave, particularly when at the time of the mortgage the mortgagor was a resident of the foreign jurisdiction. Section 3(6), which requires the application for leave to be made at the judicial centre nearest to the location of the land, supports this conclusion, since it infers that the contract must involve land within Saskatchewan.

Section 2 of the Limitation of Civil Rights Act states that a mortgagee's right to recover an unpaid balance due is restricted to the land, with no action lying on the covenant, where the mortgage is collateral security for part of the land's purchase price. This is a rule of substance rather than a rule of procedure since it takes away a right of action; it is in no way concerned with procedural rules for the enforcement of a right.

NOTE: It might have been argued that leave to bring an application is more about methodology and hence procedural (in light of Vogler v Szendroi). But this point was never argued.

RE COHN [1945] Ch 5 (Eng Ct Ch Div)

FACTS: A mother and daughter were both killed in the same air raid in London. The mother has a will in which she leaves everything to her daughter, and the daughter has a will in which she leaves everything to her husband, but the mother also has a provision in the will which says that if her daughter predeceases her that everything will go to her sisters children (nephews/nieces). The mother/daughter were domiciled in Germany and died in England, and the action was heard in the English courts. German law (lex causae) presumes they die at the same time while English law (lex fori) presumes that the older person dies first

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ISSUE: Do we apply the German presumption as part of the substantive law of the lex causae?

RESULT: Yes.

REASONS: Rules of evidence (procedural law) are applied in order to come up with the relevant facts. The fact in this is case we are trying to prove is the uncertainty at the time of death. Once the uncertainty is proved, the presumption of order of death tells us what is to be done after the uncertainty is proved. These rules tell us what to do after proving the uncertainty, not how to go about proving the uncertainty. We therefore look to the lex causae which tells us they died at the same time.

PHRANTZES V ARGENTI[1960] 2 QB 19 (Eng Ct QB)

RATIO: Where substantive rights of the lex causae can only be enforced by remedies that are completely unknown to the forum, the action cannot be maintained in that forum.

FACTS: Plaintiff and Defendant are nationals of the Kingdom of Greece residing in England. The plaintiff married in England according to the rites and ceremonies of the Eastern Orthodox Greek Church. The Defendant, under Greek law, became by virtue of his relationship to the plaintiff obliged to provide a dowry for her. He has failed to do so and she seeks to enforce that obligation by contract (which is done in Greece).

ISSUE: Is the daughter seeking the enforcement of a right or a remedy?

RESULT: The law of Greece is so intertwined, that you cannot recognize the daughter’s right without participating in the remedy. Since a court will not sit as a foreign court, the right cannot be recognized. Even if the Court determined the dowry amount, there is no power for the Court to direct a person (the defendant) to enter into a contract (with a person who is not even a party to the action) for that amount of money.

KHALIJ COMMERCIAL BANK LTD. V WOODS (1985) 50 OR (2d) 446 (HC)

FACTS: The defendant was in Dubai and racks up a large debt in favour of the plaintiff bank. A personal covenant was entered into for the defendant debtor to pay the debt with 14% interest. This covenant contained a provision that it should be construed by the laws of Dubai. The defendant fled fearing prejudgment imprisonment (which was possible under the laws of Dubai). Dubai bank sues in Ontario. Defendant claims that the covenant clause ousts the jurisdiction of Ontario court.

ISSUE: Does the Ontario court have the jurisdiction to hear the matter? Is the right (substance) so intertwined with the remedy (procedure) so that the Court cannot hear the case?

RESULT: Judgement for the Plaintiff.

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REASONS: The question of jurisdiction is distinct from the question of what law is applicable in the matter. The covenant provision does not give exclusive jurisdiction to the Civil Court of Dubai. Rather, it grants concurrent jurisdiction to any other court in which the matter is otherwise properly brought. Therefore, this case is properly before this court.

Where the remedy required by a foreign substantive right is so radically different from remedies available in the lex fori, the forum court may refuse to grant the foreign substantive right.

Dubai has a separate judgment enforcement execution court where litigation can be commenced, and there is often broad discretion in changing the amount of the judgment. The defendant submits that this broad discretion brings us into the Phrantzes situation.

However, the defendant has shown no evidence that the Dubai Execution Court would use its discretion to change the judgment value. In all likelihood, the amount would remain the same.

SOMERS ET AL V FOURNIER ET AL[2002] OR (3d) (CA)

FACTS: Somers is injured in car accident in New York, but is domiciled in Ontario and sues in Ontario. The defendant submits to the jurisdiction of the Ontario court because damages in the US are always higher, whereas in Ontario there are caps on non-pecuniary damages.

ISSUE: Is the law relating to costs, prejudgment interest, quantum of damages and damages caps, substantive or procedural? Was this case an appropriate case to make an exception to lex loci delictii in that there was an injustice?

RESULT: Costs are procedural and so Ontario rules should apply. However, pre-judgment interest law is substantial and so does not apply (New York doesn’t have pre-judgment interest, so the plaintiff wouldn’t get anything anyways).

REASONS: Costs are both a discretionary indemnification device and a mechanism by which abuses of the court’s processes may be deterred and penalized. Costs are a defining part of our civil litigation process. They are appropriately characterized as procedural since with the discretion granted, particularly to trial courts, the “machinery” of the Court can be enabled to work effectively.

Entitlement to an award of pre-judgment interest is not absolute, even where an order for the payment of money is made. Section 130(1) of the Act authorizes a court, in its discretion and where it considers it just to do so, to disallow pre-judgment interest, allow it at a rate higher or lower than that provided in s. 128, or allow it for a period other than that provided in s. 128. However, the discretion of the court concerning prejudgment interest relates to the denial or reduction, as distinct from the granting, of a right.

The cap is a judicially imposed limit or restriction on liability for non-pecuniary damages. It is a device developed in Canada to avoid excessive and unpredictable damages awards concerning non-pecuniary losses and the corresponding burden on society which follows from such awards. In my view,

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the policy considerations which support the goal of avoiding such awards favour characterization of the cap as a matter of procedural law.

CHAPTER 2: DOMICILEThe notion of domicile has both a psychological aspect and a technical aspect. The psychological aspect has to do with the person's sense of home. The technical aspect involves looking at a set of complex legal rules. The more you are seen as an autonomous individual the more the court will look to your sense of home to determine your domicile. The more you are seen as a dependant or appendage of another more autonomous person, the more the court will apply technical rules to determine your domicile.

The propositus is the person whose domicile we are trying to figure out. The domicile of the propositus is determined based on the lex fori.

DOMICILE OF ORIGIN

UDNY V UDNY (1869) LR 1 Sc & Div 441 (HL)

FACTS: Legitimacy was then governed by the father’s domicile at the time of the birth of the child. Scottish law says that the father’s subsequent marriage retroactively legitimates a child. French and English law says that if a child is born out of wedlock they are irretrievably illegitimate.

A man is born in Scotland but unequivocally acquires a domicile of choice in England. He then goes to France after being unsure if he wants to go back to England and meets a woman who gives birth but they are not married. He then later marries her and they have a second child together. The will says “to my eldest legitimate son.” The brothers quarrel. First born argues that Scotland law applies and he was legitimised retroactively, and the second born argues that French law applies and so there is no retroactivity.

RESULT: When the father met the mother, he was wandering around France without really knowing whether or not he would stay. Hence, there was no animus and the domicile of origin was revived. Hence, Scotland law applied.

RATIO: No man shall be without a domicile. The law attributes on every person who is born the domicile of his father, if the child is legitimate, and the domicile of the mother if the child is illegitimate. This is the domicile of origin and is involuntary.

Should a person acquire a domicile of dependence or a domicile of choice, the link will be removed, but not destroyed; rather it will be held at readiness to reattach him instantly to the original system of law should his domicile of dependence cease or his domicile of choice be abandoned.

DOMICILE OF DEPENDENCE

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In the old case of Cook v AG (Alberta) a man left his wife and travelled to Australia, but there was no way to get into contract with him. She tried to bring a divorce action in Alberta, but the Court said she is not domiciled here since her domicile has become Australia. This was a terrible injustice.

The Alberta Family Law Act section 104 says that “a person has a legal personality that is independent, separate and distinct from that of the person’s spouse.” This section operates to remove any domicile of dependence attributed to a female on marriage to a male.

In the Alberta Child, Youth and Family Enhancement Act, an adopted child with obtain the domicile of dependence as the adopting parents.

DAVIES V DAVIES(1985) 64 AR 73 (QB)

RATIO: Marriage was celebrated in Ontario, and until the separation in 1984, they lived together in Ontario where both were domiciled. The wife moved to Alberta and applied for divorce there.

In this case, the Judge did not deal with the issue directly. He characterised the issue as “intrinsic validity of marriage” which is governed by the ante nuptial domicile (Ontario) of the parties and not an issue with nullity. The effect of the Ontario Family Law Act provision about legal personality differentiation is that a wife’s domicile is no longer depended automatically on that of the husband.

Therefore, when the wife moved to Alberta and intended it to be her permanent home, she acquired domicile in Alberta.

What the judge should have done was that the common law rule that married woman do not have their own domicile is contrary to the Charter of Rights and Freedoms. However, the issue with this is that Dolphin Delivery precluded Charter applications between private parties. The counter argument is that the state is so involved with marriage that marriage should not be construed as a matter between private parties.

DOMICILE OF CHOICE

There must be an Animus manendi and well as a Factum to prove that a domicile of choice has been acquired. That is, there must be an intention, as well as an abandonment of the original jurisdiction.

The doctrine of reverter says that in any situation of ambiguity that your domicile of origin revives.

WHITE V TENNANT(1888) 8 SE 596 (W Va Ct App)

FACTS: A family farm straddled the borders of Pennsylvania and West Virginia. There was a mansion-house in which the father resided was located on the West Virginia side of the farm, and there was also a dwelling-house generally

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occupied by tenants on the Pennsylvania part of the farm. While the deceased lived in the mansion-house his whole life, he spent the last days of his life moving things to the dwelling-house where he intended to reside for the foreseeable future.

ISSUE: If you have intention to remain, how much presence in the jurisdiction is required to have the domicile of choice take effect? Did they acquire domicile of choice in Pennsylvania?

RESULT: The deceased was domiciled in Pennsylvania.

REASONS: In this case the domicile is important since the succession to movable property is governed by the lex domicilii.

According to the authorities herein-before cited, if it is shown that a person has entirely abandoned his former domicile in one state with the intention of making his home at a fixed place in another state, with no intention of returning to his former domicile (animus), and then established a residence in the new place for any period of time, however brief, that will be in law a change of domicile, and the latter will remain his domicile until changed in like manner (factum). All he needed to do was cross the border. The length of a stay is not a necessary element one way or the other, though it may be evidence.

The facts in this case conclusively prove that Michael White, the decedent, abandoned his residence in West Virginia (by selling it making it impossible to return) with the intention and purpose not only of not returning to it, but for the expressed purpose of making a fixed place in the state of Pennsylvania his home for an indefinite time (including moving all his personal property to that home). This fact is shown by all the circumstances, as well as by his declarations and acts.

PUTTICK V ATTORNEY GENERAL[1979] 3 All ER 463 (Eng Ct Fam D)

FACTS: Petitioner seeks declaration of valid marriage, but can only seek a declaration if they are a British subject. You can only be a “British subject” if you are domiciled in England. The petitioner was a notorious member of a gang in West Germany in 1970s who escaped prison and got a fake passport and moved to England, married and Englishman, and wants to establish she is domiciled in England.

ISSUE: Was the petitioner domiciled in England?

RESULT: She was not domiciled in England.

REASONS: This was a marriage of convenience. I find that the purpose of the marriage was to be able to remain in the United Kingdom and subsequently to obtain citizenship. This marriage lacked all the purposes and intentions of a genuine and generally accepted union, namely mutual love, support and comfort; cohabitation in the matrimonial home as husband and wife; a union for life and the production of children. Therefore, this marriage does not have the same evidentiary persuasion as other marriages with respect to the animus.

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She was on the run, and I find that if she felt that there was no danger of returning to Germany she would have. Her intention to remain in England, for whose laws she has shown contempt, and for whose institutions and way of life she has never, so far as I know, expressed any admiration, was a secondary intention forced on her only as necessary to achieve her primary object. Her primary objective/intention/desire was to avoid detection.

Another way of looking at domicile of choice is if it is unilateral. You cannot have a domicile when your presence is not accepted in the country. Hence, “it has been held that domicile of choice cannot be acquired by illegal residence because you cannot allow a person to acquire a domicile in defiance of the law which the court itself administers.”

MARK V MARK[2005] UKHL 42 (HL)

FACTS: The parties were part of a polygamous marriage that occurred in Nigeria. They moved to England and had all children in England. Husband goes into exile in England and gets a visa allowing him to remain until a certain period, whereas the Wife gets multiple visas to allow her to stay. Both overstay their visas but the Husband eventually returns to Nigeria leaving the Wife in England who expresses desire to live forever in England. She is now applying for divorce and the courts will only hear a divorce if applicant is domiciled in England.

ISSUE: Is it possible to get a domicile of choice in a place where you are an illegal alien?

RESULT: Yes, you can be domiciled in a place where you are an illegal alien, and the obiter reasoning in Puttick regarding legality did not apply.

REASONS: If a person has chosen to make his home in a new country for an indefinite period of time, it is appropriate that he should be connected to that country’s system of law for the kind of purposes for which domicile is relevant. Legality is not a necessary element. English law requires only that the intention be bona fide, in the sense of being genuine and not pretended for some other purpose, such as getting a divorce to which one would not be entitled by the law of the true domicile.

This is not to say that the legality of a person’s presence here is completely irrelevant. As in the precarious residence cases, it may well be relevant to whether or not she had formed the required animus manendi.

Z,B V C[2011] EWHC 3181 (HCJ Fam)

FACTS: Children born at surrogate clinic in India through a surrogacy agency based in Israel. The surrogate mother is Indian, one of the applicants is the biological father and the egg donor originated from South Africa. The applicants apply for a parental order. However, the Act under which they apply requires them to be domiciled in England at time of application.

ISSUE: Was the applicant domiciled in England at the time the parenting application was made?

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RESULT: I find that Z had an English domicile on arrival here, consequently he was domiciled here at the time the application for a parental order was issued and this court has jurisdiction.

REASONS: Applicants were originally from Israel but emigrated to England with the intention of staying due to the fact that there are strong family links in the UK. Further, his family in Israel asked him to leave when they learned that they were carrying on a same-sex relationship. They also wanted to leave Israel before they became parents because they did not want their children to be raised with a sense of fear and danger.

It is a fact that they resigned from their jobs, informed relevant tax authorities, planned to sell their flat, but decided to rent it out due to housing situations, purchased all their furniture in the UK, set up their own businesses in the UK, and made inquiries about surrogacy immediately after entering the UK.

In determining whether a person intends to reside permanently or indefinitely, the court may have regard to the motive for which residence was taken up, the fact that residence was not freely chosen, and the fact that residence was precarious. However, a person who has formed the intention of leaving a country does not cease to have his home in it until he acts according to that intention. When a domicile of choice is abandoned, a new domicile of choice may be acquired, but if it is not acquired, the domicile of origin revives.

The burden of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice is upon the person asserting the change. The standard of proof is the balance of probability.

It is accepted that the making of a parental order can provide the applicants' children with an immigration benefit. However, the parental order application is genuine and not contrived or constructed to seek such immigration advantage otherwise not available to the parties.

RE FULD (NO 3)[1968] P 675 (Eng Ct Pro D)

FACTS: Testator fled Germany from the Nazi’s to Canada where he went to law school, but later moved to England. However, throughout this, he maintained a residence in Frankfurt and was very proud of that residence. There was a feud with the mother and the testator said he would move back once his mother died, however he died in England in 1965.

ISSUE: Where was the deceased domiciled? England or Germany?

RESULT: He was domiciled in Germany and never acquired a domicile of choice in England.

REASONS: The domicile is a combination of residence and intention. In Udny v. Udny Lord Westbury emphasised that the intention must be formed free of external constraining factors.

The law, so far as relevant to my task, may be stated as follows: (1) The domicile of origin adheres - unless displaced by satisfactory evidence of the

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acquisition and continuance of a domicile of choice: (2) a domicile of choice is acquired only if it be affirmatively shown that the propositus is resident within a territory subject to a distinctive legal system with the intention, formed independently of external pressures, of residing there indefinitely. (3) It follows that, though a man has left the territory of his domicile of origin with the intention of never returning, though he be resident in a new territory, yet if his mind be not made up or evidence be lacking or unsatisfactory as to what is his state of mind, his domicile of origin adheres.

This case also stands for the proposition that the standard of proof is on a balance of probabilities.

RAMSAY V LIVERPOOL ROYAL INFIRMARY[1930] AC 588 (HL)

FACTS: The testator was born and grew up in Scotland and remained there until he was 45. He then left Scotland to England and remained there for 37 years. He makes an unattested holographic will which is valid in Scotland but not in England. Since succession of movable property is governed by the lex domicilii, we must determine where the deceased was domiciled.

ISSUE: Was the deceased domiciled in England or Scotland?

RESULT: He remained domiciled in Scotland. This case is probably best characterised as a results oriented judgment.

REASONS: He mostly left Scotland to be with his family. While it is proved that he refused to go to Scotland when his sister Isabella desired to remain there, said he never wished to set foot in Glasgow again, and said he arranged for his burial in Liverpool beside his brother and sisters, on the other hand he referred to himself as a Glasgow man both during his life and in his will. There would be little doubt that he would have returned if his family returned.

As his family died, the continued residence of the deceased in England appears more probably attributable to his own lack of initiative and the disinclination of a man sixty-nine years of age to change his mode of life than to an intention to change his domicile.

GUNN V GUNN(1956) 18 WWR 85 (Sask CA)

FACTS: Wife is petitioning for divorce, but must establish that the domicile of the Husband was Saskatchewan at the time the action is brought. The Husband was born in Manitoba where he resided for his whole life, and was only recently offered a promotion if he moved to Saskatchewan. He has resided in Saskatchewan for the last 4 years. He admits that he would leave elsewhere if he got a better job.

ISSUE: Has the Husband acquired a domicile of choice notwithstanding he would leave this province for another if offered a better job?

RESULT: He has obtained a domicile of choice.

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REASONS: That place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special and temporary purpose, but with a present intention of making it his permanent home, unless and until something (which is unexpected, or the happening of which is uncertain) shall occur to induce him to adopt some other permanent home.

Just because someone would leave their jurisdiction based on great opportunity does not preclude one from acquiring a domicile of choice. If we hold the propositous to a high standard of acquiring a new domicile of choice, then the doctrine of reverter may kick in and the domicile of origin might perpetually adhere in the face of employment opportunities.

OSVATH-LATKOCZY V OSVATH-LATKOCZY[1959] SCR 751

FACTS: Marriage took place in Hungary. Husband and Wife left as refugees and later travelled to Canada. They separate at the refugee camp in Canada and have not lived together since. It was clear that the Husband intended on staying in Canada permanently which is strongly supported by the fact that he secured work. The trial judge was content on finding that a domicile was not established in Canada on the basis that the Husband would return to Hungary if the political situation changed. However, the Husband had no hope or expectation that would ever happen.

ISSUE: Did the trial judge err in not considering the fact that the Husband had no hope or expectation of returning notwithstanding he would if the political situation changed?

RESULT: The trial judge erred in law and the Husband had acquired a domicile of choice in Canada.

REASONS: In spite of the circumstances in which this man left his native land, there is a preponderance of evidence in this case that he came here as an immigrant intending to settle. Even if the answer does amount to a declaration of intention to return to Hungary for permanent residence, of which I have serious doubt in view of qualifications subsequently made, the contingency of his return was, in his opinion, so remote and uncertain that it should not prevent the Court from declaring that he had acquired a domicile of choice in Ontario.

QUESTION: How can we assess whether something is a pipedream or a probable event?

DAVID V FOOTE ESTATE[1959] SCR 751

FACTS: Family of deceased argue that deceased was domiciled in Alberta or BC at time of death. Executor and main beneficiaries argue he was domiciled in Norfolk Island at time of death.

ISSUE: Where was the deceased domiciled at the time of death? Could the law of a jurisdiction other than the lex fori be applied in certain circumstances?

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RESULT: There is no pressing public policy need to change the application of the lex fori to matters of domicile. As a result, I conclude that where any case-law that suggests that the laws of another jurisdiction may be considered in determining questions of domicile, that case-law does not reflect the law of Alberta and I decline to follow that jurisprudence.

REASONS: 1. The lex fori is to be applied in domicile cases. Reference to the laws of jurisdictions other than the lex fori, to see if domicile there has been abandoned or lost, is inappropriate.

2. The civil onus - the balance of probabilities - is the correct standard to apply in domicile cases. There is no intermediate or quasi-criminal standard to prove the displacement of the domicile of origin. To the extent that the domicile of origin is “difficult to replace”, that difficulty must be determined in accordance with the normal civil standard on the party seeking to establish that the domicile of origin has been replaced. Similarly, whether a change of domicile involves a relocation within or between countries is irrelevant, as are the language, climate, ethnic, cultural or religious characteristics of the different possible domiciles.

3. Any analysis of domicile in the 21st century must reflect the “global village” reality of modern life. Domicile now has much more to do with the economic realities of one’s life than it does with sentiment or loyalty to one’s place of origin.

4. Requiring an intention that a domicile of choice be the place where one intends to reside for the rest of one’s life, or to end one’s days there, overstates the necessary intention. Rather, the intention is accurately described in Udny v. Udny: “not for a limited period”. There is a key difference between “indefinite” and “permanent”, and indefinite residence is sufficient to establish domicile.

5. A period of residence is indefinite unless that period of residence has either a pre-determined end point, or the resident has clear and identified criteria on which that residency will end.

6. Where one has multiple residences, domicile will be found to be at the “chief” or “principal” residence. Identification of the “chief” or “principal” residence is best conducted by reference to tangible factors including economic considerations, rather than on sentiment. Relevant factors include:a) whether the residence is used for business, holiday or vacation purposes,b) the relative amounts of time spent in each residence,c) the scale and the presence of personal property,d) the presence of family members, particularly spouses and dependants,e) a pattern of return to that residence,f) the economic linkage of the person to that residence,g) legal relationships to a jurisdiction,h) official identification and documentation,i) whether the residence is the contact point for a person, andj) by a person’s social integration with the community in which the residence is located.

7. A common-law judge has a residual authority to depart from the revival of the domicile of origin to avoid an absurd result.

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EXAMPLE: Mary is born in England, of English domiciled parents. Her domicile of origin is England. She does not like England, and decides to leave, never to return. She emigrates to Alberta, buys property here, becomes a permanent resident of Alberta, without becoming a Canadian citizen, and works here for 35 years. She becomes domiciled in Alberta, displacing her English domicile of origin. When Mary retires from work, she becomes disillusioned with Canada’s winters, and decides to retire to Provence. She sells all of her possessions in Canada, intent on going to France, buying property there and spending the rest of her days there. Mary leaves Alberta, planning to never return. She flies to Frankfurt, but has a heart attack in Frankfurt airport before her flight to Nice departs. She dies in hospital in Frankfurt, without having ever spent a night in France. Where was Mary domiciled on her death? The common-law would say England, even though Mary had left England never to return. She had abandoned her Canadian domicile (a domicile of choice) by leaving with the intent to not return. Despite her intent to establish her new permanent residence in France, she died before she got there. She could not acquire a new domicile of choice merely by intent. She needed to actually begin to reside in France before she could establish a domicile of choice there. So her domicile of origin, England, revived.

CHAPTER 3: DOMESTIC RELATIONS

VALIDITY OF MARRIAGE

In order to determine the validity of marriages with jurisdictional issues, the courts have separated the question of validity into two different considerations:

1. Formality validity (how you get married) is governed by the lex loci celebratonis. This choice of law rule is related to what kinds of forms need to be filled out, who can perform the marriage, and the words you have to say. Under the Constitution Act 1867, s. 92(12) places the solemnisation of marriage within the province under the provincial authority. This means that formal validity is governed by the laws of the province.

2. Essential validity (who can marry who) is governed by the ante-nuptual domicile of the parties. As per section 91(26) of the Constitution Act 1867 marriage and divorce and placed under Federal jurisdiction. This means the elements of intrinsic/essential validity (also known as capacity to marry) are governed by the law of Canada. For example, when Alberta tried to only allow marriage between a man and a woman through the Marriage Act, RSA 2000, this was outside of their provincial power and therefore ultra vires. However, when the federal Civil Marriage Act was amended to allow for same-sex marriages, this was within the federal jurisdiction through section 91(26) of the Constitution Act 1867.

This distinction was created to prevent the phenomenon known as “limping marriages.” That is, there should be international uniformity in defining a person's marital status so that people will not be treated as married under the law of one state, but not married under the law of another.

Unsurprisingly, one of the major issues that will arise is characterisation of the issue as relating either to formal or essential validity.

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BERTHIAUME V DESTOUS(1930) AC 79 (PC)

FACTS: 17yo Canadian girl marries a Canadian in Paris. After infidelity is discovered, she applied for divorce in Paris. The certificate that was issued in Britain turned out not to be a marriage certificate, but a notice of marriage. She applied to the Courts to recognize the marriage anyways so she could access the civil benefits. The husband denied the jurisdiction claiming he still has his Canadian domicile.

ISSUE: Were they married? Is the marriage valid all over the world?

RESULT: They were not married because they did not meet the required French prerequisites of marriage.

REASONS: Marriage that is valid in the lex loci is valid anywhere in the world. Marriage that if invalid in the lex loci is invalid everywhere else.

NOTE: There are remedies by statute nowadays to prevent this kind of result. That is, even if some statutorily required provision is not complied with, if the parties relied on the marriage, the courts may find a marriage notwithstanding the defect. See section 23 of the Alberta Marriage Act.

APT V APT(1947) 2 All ER 677 (Eng CA)

FACTS: Wife is domiciled in England and Husband in Argentina. The wife exercises a power of attorney naming a representative that goes to Argentina and enters into a marriage for her by proxy. Argentinian law allows this.

ISSUE: Was the marriage valid? Should this issue be characterised as going to formal or essential validity?

RESULT: Yes, the marriage was valid.

REASONS: The issue of marriage by proxy goes to formality. This is governed by the lex loci celebratonis which is Argentina. This is not really a question about who can marry whom. Those issues are more akin to whether you can you marry your cousin, a person of the opposite sex, etc. Hence, since it was a legal marriage in Argentina, it was a legal marriage everywhere else.

NOTE: This is a live issue in immigration law. For example, Montana, California, Colorado, Texas, Mexico, and Paraguay all allow for proxy marriages in certain circumstances. These kinds of marriages are recognised by the Department of Immigration as valid marriages. For example, you are a Canadian that meets a Dutch citizen online. If each of you send a proxy to Montana, you could get a valid marriage there.

HASSAN V HASSAN2006 ABQB 544

FACTS: An Islamic marriage is performed in Carstairs, Alberta. The Husband appeared over phone, but the officiant was in Alberta. The Husband eventually travels to

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Canada and goes to get a marriage certificate, but can’t get one in Alberta. Instead, they go to Pakistan to get a certificate saying that the marriage was performed in Alberta. Husband eventually files for divorce but wife claims they were never married.

ISSUE: Was the marriage valid under Alberta law?

RESULT: No, the marriage was not valid.

REASONS: The formal validity of a marriage is determined by the lex loci celebrationis. There is no dispute that the parties did not comply with many of the provisions of the Marriage Act of Alberta, including the requirement to obtain a licence and the requirement to register the marriage after its solemnization. They clearly violated the Alberta prohibition against marriage by proxy: section 9(1) of the Marriage Act.

While Ms. Hassan is correct that conflict law supports her submission that there was no valid marriage, this is a troubling conclusion in this case where the parties clearly intended to contract a valid marriage and lived together for many years representing their status as married to various government authorities in Canada and elsewhere where they resided. They took great effort to have the marriage recognized.

However, it appears that a marriage that does not comply with the lex loci celebrationis in terms of formality may be recognized as a valid common law marriage only where: “(a) it is impossible to conform to the local form of marriage, or (b) the parties have not submitted to the local law.” These cases do not apply on the evidence.

There was an argument that the parties intended for the laws of Pakistan to apply to the formality of the marriage. This argument essentially tried to equate marriage laws with contract laws. The court says that this is not possible.

ESSAY ON THE CONFLICT OF LAWSFalconbridge (2nd ed, 1954)

In Ogden v Ogden the marriage celebrated in England of a woman domiciled in England to a man domiciled in France was held to be valid in England, although the marriage was voidable in France and was annulled there because the man, 19 years of age, had not obtained his parents consent to the marriage as required by French law. The case seemed to be authority for three propositions, namely, (1) that a requirement as to parental consent to marriage is to be characterized as part of the formalities of celebration of marriage, (2) that even capacity to marry is governed by the lex loci celebrationis, and (3) that the French decree of nullity was not entitled in the circumstances to be recognized as valid in England.

BROOK V BROOK(1891) 11 ER 703 (HL)

FACTS: An Act was passed in 1857 that changed English law to allow a man to marry his deceased wife’s sister. In this case, the couple were domiciled in England and married in Denmark in 1850 before the Act is passed because you are allowed to marry there. They return to England and set up home and a Divorce

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action is eventually brought after 1857 when the marriage would have been considered legal.

ISSUE: Was the marriage valid?

RESULT: No, the marriage was not valid.

REASONS: While the forms of entering into the contract of marriage are to be regulated the lex loci contractus, the law of the country in which it is celebrated, the essentials of the contract depend upon the lex domicilii, the law of the country in which the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated.

No civilised state can allow its domiciled subjects or citizens, by making a temporary visit to a foreign country to enter into a contract to be performed on the place of domicile, if the contract is forbidden by the law of the place domicile as contrary to religion, or morality, or to any of its fundamental institutions.

FREW V REED(1969) 69 WWR 327 (BCSC)

FACTS: A boy and girl wanted to get married in BC, but needed parental consent since they were under the age of 18. They instead go to Washington and get married there. However, Washington does not allow first cousins to marry, of which the boy and girl were.

ISSUE: Was the marriage valid?

RESULT: Yes, it was valid.

REASONS: Consent to marriage is a matter of formal validity as per Ogden v. Ogden as above. Hence, you must look to the lex loci celebrationas. In Washington, you don’t need the consent of the parents so the formalities are valid. Then, look to the essentiality of the marriage which is governed by the ante-nuptual domiciles which is BC where you can marry first cousins. Hence, the marriage is valid.

This is a FALSE CONFLICT because it is a result that wouldn’t have occurred within the ambit of either jurisdiction.

CANADA V NARWAL(1990) 111 NR 316 (FCA)

RATIO: Moving towards a “real and substantial” connection test. Where is the centre of gravity of the marriage, and we look to that law for the essential validity of the marriage.

FACTS: Canada immigration is trying to deny a marriage that parties want to confirm. They marry in India, come to Canada, make a home there, and then divorce. The wife establishes a domicile of choice in Canada and decides to marry her ex-husband’s brother who is domiciled in India. The couple met in England and married there. Wife returns to Canada and tries to sponsor new husband to

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come. Canada is denying the marriage because Indian law prohibits this type of marriage, even though Canada law allows it.

ISSUE: Is this a valid marriage? How do we determine the essential validity when the ante-nuptial domiciles of the parties are not the same?

RESULT: When there is a conflict between 2 ante-nuptial domiciles, if one domicile and the matrimonial domicile would the allow the marriage, just because the other domicile does not allow the marriage does not tip the balance to disallowance.

REASONS: As per the case of Sottomeyer, if the lex loci celebrationis, the lex fori, the matrimonial domicile and one ante-nuptial domicile are the same, then the marriage will be valid. The court decides to expand this rule a bit.

The intention of both parties was to be in Canada. There is no reason that the Husband is not in Canada except that we won’t let him in. Even though his domicile is currently India, we can confidently say that the matrimonial domicile is Canada notwithstanding the fact that he is not here.

WILKINSON V KITZINGER[2006] EWHC 2022 (HCJ Fam D)

FACTS: The parties are both women and professors in England. They come to BC, are married there in 2003 and return to England. Even though they could not have gotten married in England, they could have gotten a civil partnership (which was essentially an identical legal institution, just without the magic word “marriage”).

ISSUE: Is the marriage valid?

RESULT: No, the marriage is not valid.

REASONS: This is a matter of essential validity and is governed by the ante-nuptial domiciles. The matrimonial home is England and they did not have the capacity to marry there.

The form of marriage (subject to certain minor and immaterial exceptions) is governed by the local law of the place of celebration, the capacity of the parties to marry is generally governed by the law of each party’s ante-nuptial domicile. It is thus clear, that, on any ordinary application of the rules of private international law, their capacity to marry is governed by the law of England.

However, the Civil Partnership Act from England says that certain overseas relationships including those the subject of a ceremony of marriage, are to be treated as civil partnerships. The Petitioner’s marriage under Canadian law is an overseas relationship which is treated as a civil partnership. Hence, the marriage transmuted into a civil partnership.

NOTE: If the Canadian court was deciding this case on the basis of the common law, they would have come to the same conclusion. The choice of law rule that the couple brought with them to Canada prohibits same-sex marriage. That is, there was no essentially validity.

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NOTE: This common law rule was altered by statute. See below. Essentially, the amendment makes the lex loci celebrationis to be the choice of law for the essential validity of the marriage, if the lex loci celebrationis is Canada. Note that this may result in limping marriages and violates the notion of comity. Our conflict of laws rules are built on the notion of comity that recognises the authority and sovereignty of other jurisdictions. The amendment kind of does away with this.

BILL C-32, AN ACT TO AMEND THE CIVIL MARRIAGE ACT41st Parl, 1st Sess, 2011-2012

This enactment amends the Civil Marriage Act in order to provide that all marriages performed in Canada between non-residents, whether they are of the same sex or of the opposite sex, that would be valid in Canada if the spouses were domiciled in Canada are valid for the purposes of Canadian law even if one or both of the non-residents do not, at the time of the marriage, have the capacity to enter into it under the law of their respective state of domicile. It also establishes a new divorce process that allows a Canadian court to grant a divorce to non-resident spouses who reside in a state where a divorce cannot be granted to them because that state does not recognize the validity of their marriage.

HINCKS V GALLARDO2014 ONCA 494

RATIO: A relationship can transmute (transmogrify) from a civil partnership to marriage if a domicile is established in the new country.

FACTS: Couple entered into a same-sex union in England. A short time after entering into their civil partnership, the parties moved to Ontario. A year later, they separated.

ISSUE: Was the couple “married” and “spouses” under the Canadian Divorce and Family Law Acts?

RESULT: They were married.

REASONS: In Canada, the case of Halpern found that the gender specific definition of marriage was contrary to public policy and the Charter. The gender neutral reformulation was later codified in the Civil Marriage Act. To the contrary, the UK does not permit gay people to marry. They only have a civil union system. This was confirmed in the case of Wilkinson.

After considering these distinct marriage regimes, the motion judge concluded that to do anything other than recognize the parties' civil partnership as a marriage would "run contrary to the express values of Canadian society, expressed in both case law, and the statute itself and would constitute impermissible discrimination."

At its essence, this case is one of statutory interpretation. Under the FLA, parties to relationships that are both formally and functionally equivalent to marriage may be considered spouses under s.1 of the Act. Parties who have undergone a marriage ceremony or event in good faith but did not have the capacity to enter into the marriage (e.g. by reason of prohibited degrees of consanguinity) may still be considered spouses for the purposes of the FLA.

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There was an argument that one of the individuals consciously entered into a civil partnership and says you cannot impose the fact of a marriage on me because I chose a civil partnership over a marriage. Further, this would invalidate all of the provincial family law legislation since it would create a situation where those acts were enacted under the federal marriage power of the Constitution Act. The court kind of dances around this, saying that here is a difference between the civil partnership act in England and the provincial acts. Specifically, the English act is set up only for same-sex couples, but provincial acts do not contemplate gender of individuals.

RECOGNITION OF MARRIAGES

Even if the essential and formal elements of the marriage are valid, a marriage may not necessarily be recognised in a foreign jurisdiction.

HYDE V HYDE(1866) LR 1 P&D 130 (Eng Divorce Ct)

RATIO: Marriage, as understood in Christendom, may for this purpose be defined as the “voluntary union for life of one man and one woman, to the exclusion of all others.”

FACTS: Husband was a Mormon and was married to multiple wives under the laws and traditions of Utah (i.e. formally and essentially valid). The parties move to England where the husband then asks for a divorce from one of the wives.

ISSUE: Was the polygamous marriage valid in England?

RESULT: The marriage could not be dissolved because the Court does not recognise the marriage.

RESULT: Citing Warrender v. Warrender Lord Penzance found that institutions in foreign countries (including marriage) cannot be considered as valid under English law, unless they resemble the equivalent English institution. With respect to marriage, English law could therefore not recognize either polygamy or concubinage as marriage. Similarly, he found that cultural traditions of which the court had no knowledge could not form the basis for a court decision.

NOTE: Even in the 19th century, just because the courts would not recognise a marriage for the purpose of divorce, the courts might still be willing to extend some incidences of marriage for the purposes of other remedies such as property distribution and child custody.

CHENI V CHENI(1965) P 85 (Eng Divorce Ct)

RATIO: If the Hyde definition is satisfied and a civilized society recognizes the marriage then we should as well.

FACTS: The parties, who were uncle and niece, were married in Egypt where they were both domiciled. The marriage was valid according to Egyptian law. The parties subsequently acquired a domicile in England. The wife petitioned the

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English courts to have the marriage declared void on the ground of consanguinity.

RESULT: The marriage was valid and recognised.

REASONS: In deciding that question the court will seek to exercise common sense, good manners and a reasonable tolerance. In my view it would be altogether too queasy a judicial conscience which would recoil from a marriage acceptable to many peoples of deep religious convictions, lofty ethical standards and high civilisation.

On the contrary, I must have regard to this particular marriage, which valid by the religious law of the parties’ common faith and by the municipal law of their common domicile, has stood unquestioned for 35 years.

RE QUON(1969) 4 DLR (3d) 702 (Alta SC)

FACTS: Husband was domiciled and married in China. The marriage was formally and essentially valid. He later comes to Alberta and gets a domicile of choice here as well as another wife but doesn’t tell each wife about each other. Only when he dies do they discover the existence of the other.

ISSUE: Which wife will receive the disposition of property? Can we recognise the Chinese marriage?

RESULT: While the marriage situation did not satisfy Hyde, as per the case of Ali v Ali, the acquisition by the husband of an English domicile of choice during the continuance of his potentially polygamous marriage had the effect of converting his potentially polygamous marriage into a monogamous union (transmogrification). On the basis of the decisions referred to above I am of the opinion that the Chinese marriage is valid in Canada and the marriage to the new wife after he obtained domicile in Canada is not valid.

What’s weird about this case is that the first wife never came to Canada at all. Transmogrification only really applies when the spouses come to the foreign jurisdiction together. Further, transmogrification only applies where there is no subsequent marriage. Here, there was a subsequent marriage.

The reason the case was decided this way was because if status was awarded to the Canadian wife, the Chinese wife would be left out in the cold. However, if the status was awarded to the Chinese wife, then the Canadian wife could still apply for relief under the Dependents Act. Hence, both wives got something rather than one getting everything.

AZAM V JAN2013 ABQB 301

FACTS: Jan at all material times was married to Naz. Jan and Naz resided in Calgary (and had obtained a domicile of choice there). Jan also married Azam in a polygamous marriage in Pakistan. Polygamy was legal in Pakistan. Jan brought Azam to Canada. Subsequently, Azam sought a divorce. Jan sought a declaration that the marriage to Azam was void ab initio in Canada and an annulment.

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ISSUE: Was the marriage void?

RESULT: I take jurisdiction on public policy grounds (Hyde is outdated). The Azam/Jan marriage is not recognized as valid under Canadian conflict of law rules because polygamy is not legal in Canada. Recognition of this foreign marriage cannot be forthcoming because Ms. Azam cannot prove the "essential validity" of it (since pre-nuptial domicile is Canada).

REASONS: If followed strictly, Hyde means that any marriage conducted in Pakistan, even one that remains actually monogamous, is potentially polygamous in Canadian law, and a Court is therefore barred from granting any relief.

However, in Re Hassan and Hassan, the court held that a potentially polygamous marriage could be converted into a recognized monogamous marriage if the parties actually lived monogamously and changed their domicile to a country where polygamy is outlawed. The evidence in this case does not support this option. There is no evidence that Mr. Jan and Ms. Azam lived in a monogamous relationship once they arrived in Calgary.

However, I find that in all the circumstances, and in the interests of public policy, this Court should take jurisdiction over valid and invalid foreign polygamous marriages. The Hyde decision of 1866, is outdated and no longer reflects Canadian realities.

To assess the capacity of parties to marry as required for "essential validity", the Court must consider the "dual domicile doctrine" and the "intended matrimonial home doctrine". The dual domicile doctrine requires each party to have capacity to marry in the country in which they were domiciled at the point of marriage. The "intended matrimonial home doctrine" recognizes the community in which the parties plan to live together as husband and wife as the one primarily interested in the validity of their marriage.

Since Mr. Jan was clearly resident in Calgary and intended to remain here on November 24, 2007, his pre-nuptial domicile was certainly Canada, not Pakistan. Accordingly, Mr. Jan lacked the legal capacity for his 2007 marriage by virtue of his previous subsisting marriage. Polygamy is illegal in Canada.

NOTE: The Court never considered the first marriage to Naz. If the marriage to Naz that was contracted in Pakistan was a potentially polygamous marriage, you have to decide about the validity of that marriage. On the basis of Canada being the ante-nuptial domicile, the marriage might not be valid since polygamy is not legal in Canada. But we might also consider any transmogrification when he was actively looking for another partner on a dating site.

NOTE: It seems like our commitment to this cultural idea of monogamy prevents people from accessing certain rights.

DIVORCE

It is important to remember the three important questions of conflict of laws: (1) will the court take jurisdiction? (2) What law will the court apply? (3) Will the judgment be enforced

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by other jurisdictions? In the case of divorce, since the court will always apply their own law once they take jurisdiction, we do not have to be concerned about the second question.

The philosophical question of jurisdiction and recognition has to do with the party’s membership in the community of the jurisdiction granting the divorce. That is, the parties should be divorced in the jurisdiction of the community in which they belong. Initially, and historically (at least prior to the Divorce Act 1968), the parties had to have been domiciled in the place where they are asking for a divorce. This was an issue, however, when a wife retained the domicile of her husband even when the husband deserted. Eventually, the use of domicile as the “community standard” transformed into something more palatable.

In the original Divorce Act, court in a province has the jurisdiction to hear a divorce if either spouse has been ordinarily resident in the province for at least one year and actually resident for 10 months and also did away with the domicile of dependence. There was a problem here too, because a person would have to stay for at least 10 months to access the Divorce Act. This was later amended in 1985 that did away with domicile as the basis and retained the ordinary residence test.

Note, however, that a court in a province has jurisdiction to hear and determine a corollary relief proceeding if either former spouse is ordinarily resident at the commencement of proceedings, or if both spouses accept the jurisdiction of the court.

Section 7 of the Act to Amend the Civil Marriage Act says that the court of a province may grant spouses a divorce if there is a breakdown of the marriage and neither spouse resides in Canada at the time of application but were resided for at least one year in a state where a divorce cannot be granted. However, the spouses must agree or there must be an order of the court from the place where they are residing that says consent cannot be given by reason of mental disability, cannot be found, or are being unreasonable with the withholding of consent. For these people, however, section 8 of the Amendment says that the Divorce Act does not apply to the divorce granted, meaning that there will not be any corollary relief.

ENGLE V CARSWELL[1992] WDFL 1330 (SC)

RATIO: The petitioner has the burden to prove that either spouse are ordinarily resident in the jurisdiction where a divorce is being sought.

FACTS: Wife argues that husband was not ordinarily resident in NWT for a period of one year.

ISSUE: Was the husband ordinarily resident in NWT?

RESULT: Evidence establishes that although Husband sojourns in California and BC for lengthy periods of time, during the relevant period he was ordinarily resident in NWT.

REASONS: The difference between one who is “ordinarily resident” and one who “sojourns” cannot be stated in precise and definite terms, but each case must be determined after all of the relevant factors are taken into consideration.

In this case, the Husband is a very well-known figure in NWT. Wife characterises this as historical. He did spend up to 5 months away from NWT, but the SCC has told us that the length of stay is not the determinative factor. Further, his children live in California, but they are not the only driving value in

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his life. He also has never owned a home in California and only rented. He has, however, owned a home in Yellowknife. It is in that house that he displays many pieces of works close to his heart. His connection to NWT is emotional and visceral. All of his community activities take place in NWT. He has significant financial and business ties to NWT as well.

ALEXIOU V ALEXIOU(1996) 188 AR 149 (QB)

RATIO: The following factors are relevant in determining the forum conveniens for a divorce proceedings involving collateral issues: (a) the location of witnesses, such as friends, doctors, teachers, (2) the location where the parties have lived and worked the majority of their lives, and (3) the location where the evidence will be readily available to bring the matter to a quick and final determination.

FACTS: Husband obtained a three-year leave of absence from Greece to work in Canada. Wife remained in Greece with children. He returned to Greece to pick up family and move them to Canada with the intention to immigrate and live and work in Canada. They sold their car to produce the necessary funds. Neither spouse have a source of income or financial resources in Canada and are being maintained by friends. They have retained a home in Greece, however. Wife wishes to return to Greece, but Husband wants to stay in Canada.

ISSUE: Has the husband established that he was ordinarily resident in Canada for a period of one year? If he was, should the Court decline to accept jurisdiction on the basis of forum conveniens (that forum which is the more suitable for the ends of justice)?

RESULT: I am satisfied that the Husband intended to make Canada their home. However, while the Alberta Courts have jurisdiction, the matter should be dealt with in Greece as Greece is the forum conveniens.

REASONS: The quality of residence is chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interest, and conveniences at or in the place in question.

The person’s state of mind may properly be taken into consideration for the limited purpose as to whether he was at the material time within the jurisdiction as a mere visitor. Further, ordinary residence involves consideration of whether a person has established a home, employment and a social life.

The case of Trotter says that even if you do not have landed immigrant status, you may still be ordinarily resident. However, the case of Huang says that having a visitor’s VISA is directly opposite of being a resident. However, the latter case should not apply here.

Wife argues that Greece is the more convenient forum. The Courts have an inherent jurisdiction to stay a local action if some other forum is more convenient in the sense of more suitable for the ends of justice. The onus is on the petitioner to prove. However, the welfare of children must be taken into

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consideration. The place where the child is ordinarily resident is usually the fairest and most suitable. In this case, all the evidence points to Greece as the forum conveniens.

SCHWEBEL V UNGAR[1964] 1 OR 430 (CA)

RATIO: This case is often cited for the proposition that a divorce can be recognised if it is recognised by the law of the place where the parties are domiciled immediately after the granting of the divorce. This is not the ratio, but may work on some arguments.

FACTS: The domicile at the time of marriage was Hungary. They were refugees in several countries and eventually obtained a “gett” from a Rabbinical Court in Italy. They went to Israel, obtained domicile there, and obtained a certificate acknowledging the divorce in Italy. Wife goes to Toronto and marries while still domiciled in Israel. The Canadian husband claims they were never legally married because she was never divorced because the “gett” is not recognised in Canada.

ISSUE: Can Canada recognise the divorce on these facts?

RESULT: In the present case, the defendant at the time of her divorce in Italy acquired no legal rights recognised by our law, but on arrival in Israel she did acquire legal rights in Israel by reason of the law of Israel regarding the divorce as being valid and binding on the parties, and by acquiring a domicile in Israel she was entitled on coming to Ontario to retain the status of a single person accorded to her by the law of Israel.

REASONS: The court shifted the characterisation of the issue as a petition for nullity so the issue would be capacity to marry. This is governed by the ante-nuptual domicile which is Israel which allowed divorces of this kind.

The question that is often asked in recognition cases is whether the forum court could have taken jurisdiction under similar circumstances. Section 22 of the Divorce Act sets out this principle of reciprocity: A divorce will be recognised in Canada if either former spouse was ordinarily resident in that country for at least one year immediately preceding the commencement of the foreign proceedings for the divorce. Note that section 22(2) freezes the reciprocity principle to divorces of certain persons granted after July 1, 1968. This section is probably unconstitutional. Finally, section 23 preserves the common law with respect to recognition of divorces.

The common law rules for recognition are set out in LeMesurier which says that a court will recognise a divorce granted by the courts of the place where the husband was domiciled at the time of the petition. Armitage says that the courts will recognise a divorce if it is recognised by the courts of the place where the husband is domiciled. Travers v Holley is the core principle that courts will recognise a divorce if the court would have taken jurisdiction under similar circumstances (principle of comity). Robinson-Scott v Robinson-Scott says that the courts are concerned with the factual circumstances under which the foreign court took jurisdiction not the legal basis on which they took jurisdiction. Finally, Indyka says that courts will recognise a divorce if there was a real and substantial connection between the parties and the jurisdiction in which the petition was granted.

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INDYKA V INDYKA[1969] 1 AC 33 (HL)

RATIO: The common law rule is overturned and if there is a real and substantial connection between the parties and the courts of the jurisdiction granting the divorce, the English courts will recognise that divorce.

FACTS: Husband and wife were domiciled in Czechoslovakia. The matrimonial home is there and wife never leaves there. The wife later throws the husband out and he goes to England where he acquires a domicile of choice. The wife petitions for divorce in Czechoslovakia in 1949 and the divorce is granted. Three months later, the English law changes to allow a court to take jurisdiction based on wife’s domicile of the previous 3 years. The husband remarries in 1959 and the case is heard in 1969.

The common law says that a wife’s domicile is her husband’s domicile, and English law only recognised a foreign divorce if it was petitioned under the husband’s domicile prior to the amendment.

ISSUE: Is the remarriage valid or was the first marriage still intact?

RESULT: The divorce was recognised because of the amendment to the English law about recognition (we look at the law of the present date, not the law of the date of divorce), but the Court also enunciated the real and substantial connection test.

KISH V DIRECTOR OF VITAL STATISTICS[1973] 2 WWR 678 (Alta SC)

FACTS: Marriage took place in Hungary. Husband left Hungary without wife and entered Canada, later becoming a Canadian citizen. Husband later applied for divorce in Hungary which was granted. He later applied for a marriage license with a new woman but was refused on the ground that the Hungarian decree of divorce is not recognised in Canada.

ISSUE: Should we, in Alberta, recognise the decree granted by the Court in Hungary.

RESULT: The Hungarian decree is valid and should be given recognition here.

REASONS: I am satisfied that this Court has inherent power to give recognition in foreign decrees, granted in situations where strict adherence to rules of domicile would dictate otherwise (i.e. wife has the domicile of her husband). The Court must be satisfied that there is some real connection with the country whose court has granted the decree.

There was in fact a real connection with Hungary, the wife still being there. The marriage was performed there while both parties were domiciled there.

BATE V BATE(1978) 1 RFL (2d) 298 (Ont H Ct J)

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FACTS: Petitioner was married in 1950 in Ontario. A divorce was granted in Nevada in 1957. In 1958 she remarries but is later divorced in 1963 in Sweden. Her third marriage took place in 1969 in Nevada. Both parties were residing in Ontario and returned there after the marriage. It is the divorce of the first marriage that is in question.

ISSUE: The issue to be determined by this court is whether the parties are presently married under the laws of this jurisdiction. This will depend on whether this court recognizes the 1957 Nevada divorce purporting to dissolve the marriage between the petitioner and her first husband, as a valid and effective divorce in Ontario.

RESULT: The wife was precluded from relying on section 22(2) of the Divorce Act as well as at common law.

REASONS: Once evidence is presented in support of the foreign divorce, which was done by filing the decree of divorce, then there is a presumption of the validity of the foreign divorce decree. The burden then shifts to the respondent to prove his allegations of the invalidity of the marriage and the foreign divorce on the balance of probabilities.

Section 22(2) of the Divorce Act only allows recognition of foreign divorces after 1968. Since the divorce in question happened in 1957, we must turn to common law rules for recognition.

Four principles: (1) recognition will be afforded to a jurisdiction at the commencement of the proceedings for divorce, (2) a foreign divorce will be recognized if it is accepted as valid by the law of the jurisdiction of the parties’ domicile, (3) recognition is based on reciprocity, and (4) foreign divorce will be recognized where there exists some real and substantial connection between the petitioner or the respondent and the granting jurisdiction.

Wife is claiming that she was domiciled in Nevada but the court did not believe her. Even if she was domiciled there, section 22(2) is prospective, so she could not rely on it. Indyka is her only hope, but the court found that she did not have a real and substantial connection with Nevada, so no recognition of divorce at common law.

KERESZTESSY V KERESZTESSY(1976) 14 OR (2d) 255 (H Ct J)

RATIO: The relevant time period for assessing a real and substantial connection is when the petition is made.

FACTS: Parties validly married in Hungary. Immigrated to Canada. Defendant applied to Hungarian courts (by mail) for a divorce without mentioning that he had become a Canadian citizen. Ontario later grants him a remarriage on the basis that there is a letter from a lawyer saying he and former wife were domiciled in Hungary at time divorce was granted so divorce decree is okay.

ISSUE: Can the divorce granted in the Hungarian courts be recognised in Ontario?

RESULT: Court refused to recognise the divorce.

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REASONS: As per Indyka, an English Court should recognize a foreign decree whenever a real and substantial connection is shown between the petitioner and the country or territory exercising jurisdiction. The real and substantial connection may be with either or the parties and not merely with the petitioner alone.

The opinion letter was not conclusion, and while there was no allegation of fraud, it is curious why the petition in Hungary didn’t mention that the parties were Canadian citizens.

NOTE: This case is not in contradiction of Kish because in that case, the wife was still domiciled in Hungary, and both were domiciled there at the time the divorce was granted.

EDWARDS V EDWARDS ESTATE1985 SKCA

RATIO: We can apply the real and substantial connection test retroactively to recognize a foreign divorce that was granted on the basis of a real and substantial connection to the jurisdiction prior to the decision in Indycka.

FACTS: Couple were married in 1957 in Saskatchewan. Husband dies and wife makes application under Dependents Relief Act to be given the entire estate. Daughter shows up and says wife is not actually wife because previous marriage was not properly divorced in California because husband was not domiciled there despite previous wife being domiciled there.

ISSUE: Can the divorce be recognised?

RESULT: Not under the Divorce Act (prior to 1968) but yes on Indyka.

REASONS: The Divorce Act cannot be relied upon because the divorce was granted prior to 1968 in California which was not the husband’s domicile (and the old common law rule required a divorce to be granted in the jurisdiction of the husband’s domicile).

However, there was a real and substantial connection of the Husband to California. His domicile of origin was California, he had family members there, the wife was domiciled there at time of petition. However, the daughter argues that Indyka came out in 1969 so it is barred in the same limitation period kind of way that the Divorce Act is barred.

The court says that there is no “change/overruling” in the common law, but instead judges “discover” the common law, so it exists in all its “pristine perfect beauty” from time immemorial (very “natural law”-esque).

This may seem to contradict the rule of law which stands for the principle that the law should always be ascertainable. Academics have said that it is almost universally accepted that the view that judges merely declare existing law rather than create new law is outmoded and wrong. And yet Tofolson was a “discovering” of the law that limitation periods were substantive rather than procedural law, and therefore giving this issue a retrospective effect. Perhaps

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our sensitivities to the rule of law are heightened in criminal cases since we do not want to find criminal liability when such liability didn’t “exist” at the time a crime was committed. In the civil law, we are more lenient on the retroactivity of the common law.

POWELL V COCKBURN[1977] 2 SCR 218

RATIO: A court will not recognise a divorce where the foreign court was fraudulently persuaded to take jurisdiction. Further, a court will also be concerned if the opposing party did not get notice of the proceedings. However, the court will not be concerned about fraud going to the merits of the divorce, but only fraud related to jurisdiction.

ZHANG V LIN2010 ABQB 420

FACTS: Parties married in 1986 in China and separated in 2008 with one child. In 2008 husband moved to Texas for work and filed for divorce there. Texas law says you must have been a resident of Texas for 6 months prior to filing for divorce, which the husband was not, but he did not lie about this. He instead lied about not having any children and the amount of matrimonial property and was granted a divorce without spousal support or child support.

ISSUE: Can the Texas divorce be recognised in Alberta?

RESULT: Despite not defrauding the Texas court with respect to jurisdictional issues, the divorce cannot be recognised as it is contrary to public policy.

REASONS: Section 22(1) cannot be relied on since no one was ordinarily resident in Texas for a period of one year prior to the petition. However, there are possible common law grounds for recognising a divorce. He failed on 5 out of 6 of the potential common law bases for recognising a divorce as enunciated by Payne.

However, the husband had substantial connection with Texas as he had chosen to move, live and become employed there. Moreover, husband had not defrauded Texas court with respect to jurisdiction (the Texas court just didn’t do the math). Husband's petition made it clear that he had filed it outside permitted time frame, and while he had misinformed court about value of matrimonial property, this was not jurisdictional issue.

However, the Texas divorce cannot be recognised as its implications were contrary to public policy. Clear differences between Texas law and Canadian law in their treatment of support of adult children and former spouses justified non-recognition of Texas divorce in circumstances of case.

NOTE: If we changed the facts of this case where they lived in Texas this whole time instead of being in Alberta, and Texas took jurisdiction based on 6 months but no spousal support or child support, and then the matter came to the Alberta court, would we have rejected the divorce? No. It would have been a much better decision if there was no substantial connection.

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Section 22(1) and 22(2) says “having jurisdiction to do so…” meaning that the foreign court has to have had jurisdiction on the basis of their own rules for us to recognise the divorce in Canada. The argument is that the Texas court did not have jurisdiction since the husband was not resident in Texas for at least 6 months.

QUESTION: Will other countries recognise Canadian divorces granted to same sex couples who were married in Canada but who never lived in Canada?

CUSTODY

In custody issues, the whole idea of comity and recognition is complicated by the fact that we are not dealing with something that happened in the past. In matters of custody, we are talking about an ongoing and dynamic situation. We also have overlapping legislation in this area that further complicates this area of private international law.

Recall our three main conflicts of law questions: (1) Jurisdiction (2) Choice of Law (3) Recognition. The question of jurisdiction is complicated by the fact when a vulnerable young person is in danger, the Court is going to step in regardless of other issues. As with divorce, the choice of law is the law of the court that took jurisdiction. In our law, all rights are derivative of the best interest of the child (even though this standard is pretty uniform over most anglo countries). The issue of recognition and comity is, as mentioned, complicated.

Six provinces and all territories (but not Alberta) have enacted the Uniform Custody Jurisdiction and Enforcement Act which sets out that (1) if the child is habitually resident in a jurisdiction, then the court can take jurisdiction, (2) or if they are not habitually resident and 6 factors must be met then the court can take jurisdiction, and (3) if the child would otherwise suffer serious harm if the court does not step in, then the court can take jurisdiction.

In Alberta, there are two relevant legislative schemes: The Hague Convention on the Civil Aspects of International Child Abduction as implemented in the Alberta International Child Abduction Act and the Extra-Provincial Enforcement of Custody Orders Act. What tends to happen in that the legislations duel against each other.

THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION AS IMPLEMENTED IN THE ALBERTA INTERNATIONAL CHILD ABDUCTION ACTRSA 2000, c I-4

The legislation allows for you to make an application for the return of a child who was “wrongfully removed.” In order for the removal to be wrongful, Article 3 says that it must be in breach of custody (held by an individual or institution) and not merely in breach of access rights, those custody rights must have been exercised at the time of removal (you must not have abandoned the child in a permanent way), and the custody rights must have some sort of source from which the rights are derived.

Article 5 says that rights of custody are primarily related to the right to determine the child’s place of residence. Hence, if the court order lets you choose the child’s place of residence, you have custody rights. However, this precise definition of custody means that sometimes an access parent will have rights of custody within the meaning of the Convention, and sometimes they won’t.

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When the Court finds that the child has been wrongfully removed, they must order that the child be returned, with exceptions (that are not related to the best interests of the child). The exceptions include when too much time has passed (less than one year is a mandatory return, but over one year is mandatory except when the child has settled into their new environment) (Article 12), when there has been consent to the removal or retention (Article 13(a)), there would be a grave risk of harm (Article 13(b)), the child is mature and doesn’t want to go (Article 13(b)), and there would be a breach of the fundamental principles relating to human rights (Article 20).

Note that Alberta does not accept Article 25 of the Convention which requires the State to provide the applicant with legal aid as though they were resident of the province.

Finally, Article 16 says that the court does not have the power to decide on the merits of the custody dispute unless it comes to the conclusion that there is no obligation to return the child under the convention. Hence, you cannot engage with the best interests of the child unless there is no obligation to return the child.

EXTRA-PROVINCIAL ENFORCEMENT OF CUSTODY ORDERS ACTRSA 2000, c E-14

Section 2 says that the court should enforce all extra-provincial custody orders as long as there was a real and substantial connection between the child and jurisdiction granting the order. This is a real Indyka sort of provision.

However, Section 3 says that a court may vary an extra-provincial order if the child no longer has a real and substantial connection to the jurisdiction that originally granted the order, and so long as a real and substantial connection has been established in Alberta. However, if the child would be exposed to serious harm if a variation is not made, then Section 4 of the Act allows a court to vary that order regardless of real and substantial connections.

THOMSON V THOMSON[1994] 3 SCR 551

FACTS: Wife goes to Scotland where she meets Husband. They have a child together and live with Husband’s parents. They split up, and get in a custody battle. The wife wins interim custody, but there is a non-removal order, meaning she can not take the child outside of Scotland until the custody issue is finalised. She leaves and goes back to Canada. Husband follows and brings an application to return the child to Scotland under the Hague Convention.

ISSUE: Does the Hague Convention apply? Has the child been wrongfully removed from Scotland, and would the return of the child cause harm to the child sufficient within the terms of the Convention?

RESULT: There was a wrongful removal, and there was no grave risk of harm to prevent the return of the child.

REASONS: Under the Convention the removal of a child is wrongful if it is in breach of "custody [rights] attributed to a person, an institution or any other body . . . under the law of the State in which the child was habitually resident immediately before the removal or retention." However, the courts of the requested state shall not decide on the merits of custody until they have

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determined that a child is not to be sent back under the Convention (i.e. cannot use the standard of the best interest of the child).

In this case, there are three interpretations put forward about wrongful removal:

(1) A removal in breach of a non-removal clause is contrary to the terms of the Convention because such a removal is in breach of the custodial parent’s own right of custody.

(2) The right to determine the child’s place of residence is a custody right divisible from the right to care for the person of the child, and by virtue of a non-removal clause, this right vests in the access parent.

(3) The right to determine the child’s place of residence is a custody right divisible from the right to care for the person of the child, and by virtue of a non-removal clause, this right vests in the court.

The SCC preferred a variation on the third approach: It seems to me that when a court has before it the issue of who shall be accorded custody of a child, and awards interim custody to one of the parents in the course of dealing with that issue, it has rights relating to the care and control of the child and, in particular, the right to determine the child’s place of residence. The appellant’s removal of the child therefore constituted a breach of the custody right of the Scottish court within the meaning of Article 3 of the Convention.

This is a creative interpretation and was probably not what was intended by the drafters when they said an “institution” can have custody rights.

Having determined that the child was wrongfully removed under the terms of the Convention, Article 12 of the Convention mandates this Court to order his return “forthwith” unless his case fits into one of the exceptions set forth in Articles 12, 13 and 20. The only exception raised here is there would be a grave risk of harm to the child if he is returned. In the case at bar, there is no doubt that the child would suffer some psychological harm in being torn from his mother’s custody and thrust into that of his father. However, you need to show an intolerable situation, and not just some harm.

The Court did find, however, that they were able to order remedies with the intention to prevent trauma to the child upon the return to the place of habitual residence.

Finally, the Court expressed the view that the two legislative schemes should be kept separate. You either make an application under one or the other.

NOTE: This case has been criticised on the basis that other countries have held that any removal of a child in violation of a non-removal order made by the Courts of the child’s habitual residence is a wrongful removal.

KNIGHT V KNIGHT1998 ABQB

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RATIO: If an application to have a child returned for wrongful removal is made before the right to visitation is expired then there is no wrongful retention.

FACTS: Couple married in the US and one child born in Oregon. They later separate. The wife moves to Alberta with the child and the husband came to visit the child. Husband eventually gets custody in Alabama with yearly visits to mom. On one of those visits, the husband said she can keep child for a little longer than the ordered amount of time (because he is moving to a new state), but the mother makes an application in Alberta for a custody order. The Husband then applies to strike and a return of the child under The Hague Convention.

ISSUE: Is there a wrongful removal/retention under the convention? Can the Court take jurisdiction?

RESULT: No, because the mother was still within the normally ordered period of time of the agreed access visit. The Court can take jurisdiction because there was no longer a real and substantial connection to the jurisdiction that originally granted the custody order.

REASONS: There was no violation of the Convention and therefore no wrongful retention because the father gave the permission to the mother.

Pursuant to section 2 of the EPECO Act, an Alberta court shall enforce and give effect to an order for custody of an extra-provincial tribunal unless it is satisfied on evidence adduced that the child affected by that custody order did not, at the time the custody order was made, have a real and substantial connection with the province, state or country in which the custody order was made. In this case, there is no longer a real and substantial connection to Alabama since all the parties have moved from there. Hence, the court can take jurisdiction and vary the order. But then they don’t really vary the order at all…

NOTE: On appeal, this decision was upheld on the basis that “real and substantial connection” is a question of fact that can not be overturned easily on appeal, but there was a dissent. The dissent says that it would be folly to prefer the situs where the child just happens to be because the non-custodial parent, in exercising access in the jurisdiction in which she resides, seizes the moment to bring a motion there to coincide with the custodial parent’s move from one jurisdiction to another.

KJS V MT[1999] NSJ No 488 (Fam Ct)

FACTS: Husband and Wife were living together in Nunavut. The Husband left for Nova Scotia and was not aware that Wife was pregnant. After child is born, the father and child don’t interact much. When child is 7, mother and father agree that the child can to go to Nova Scotia for one year, but mother stipulates she is not giving up rights of custody and not agreeing to any period in excess of the year period. The child goes to Nova Scotia and the father applies for a custody order. This is a situation where there is no pre-existing custody order in place.

ISSUE: Can the Nova Scotia court take jurisdiction?

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RESULT: Yes.

REASONS: Note that the Extra-Provincial Custody Order Act does not apply because there is no original custody order in place, and so we must turn to common law principles. The common law grounds for jurisdiction in custody is based on parens partriae: ordinary residence of the child, domicile, residence or presence of person with control of the child, presence of the child, or agreement of the parties. The only two that apply in this case are the presence pf the child and the presence of a person with control of the child. If YES to the common law principles, the next question is should we take jurisdiction? On the “should we” analysis, you should look at the things you would normally look at under forum conveniens such as the place of best evidence, but also harm to the child that would pre-empt the rest of the analysis.

The court must consider the circumstance of the parties and those surrounding the move from one jurisdiction to another as well as the availability of witness and other evidence, the circumstances under which the child currently resides, and if the child requires action from the court to protect him or her.

In this case, the child is physically present in Nova Scotia and has settled in with school and friends. He is doing better here in school than he was in Nunavut and his family circumstances are better. Further, at the present time it can be argued that he is presently ordinarily resident in Nova Scotia.

NOTE: The Court here really stopped thinking about jurisdiction, and just made all these findings about the terribleness of the situation in Nunavut (which might be relevant in terms of jurisdiction when there is serious harm and the Court has to act to prevent this harm, but they didn’t frame it like it). They should have separated the best interests of the child analysis from the jurisdiction analysis. In jurisdiction issues, absent a grave risk of harm, you still have to do a jurisdictional analysis on the basis of the common law grounds.

PP V VV2010 QCCS 1573

FACTS: No pre-existing custody order. However, the law in Texas, as in Quebec provides that both parents have legal custody of their children. Therefore, one parent who removes the children from their residence without the consent of the other acts in violation of the custody rights of the other parent. The mother took the kids from Texas to Quebec.

ISSUE: The Court must decide whether LaPorte, Texas, was the «habitual residence» of the children so that this move constituted an illicit removal.

RESULT: The Court is satisfied that, although the children have resided in Quebec until August 2009, Texas U.S.A. had become the «habitual residence» of the children. They lived there with their parents. That is where they went to school. That is where they engaged in their normal activities. Therefore, the Convention and the law apply here. There is no exception that should apply.

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REASONS: Pursuant to their provisions, this is a case where the Court should order the immediate return of the children unless it is satisfied that it is appropriate to give effect to one of the exceptions recognized by the legislation.

There is no evidence of acquiescence of behalf of the father, since he took immediate steps when he learned of the mother taking the kids.

Obviously, if the Court decides to return the children to Texas, this will have an impact of the children who are already troubled by all this. The two children were emotional when they testified. They do not wish to go back so they will certainly be perturbed. However, these children are intelligent and capable of coping. They are not being returned to a place where they will be in danger. The USA and the State of Texas provide a civilised environment. The children will be returned to a court system that is fully capable of dealing with the issues. There was no evidence of «a grave» risk. The father is not perfect, but he is a good father on the evidence.

NOTE: After the child are returned to Texas, a different judge in Quebec takes jurisdiction and gives the wife custody and grants an order directing the Texas police to help return the children to Quebec. The Father and children go into hiding, and in the process of trying to apprehend him, the Father shoots and kills the son and severely harms the daughter.

QUESTION: Is habitual residence a threshold question? The Preamble of the Convention says that the interests of children are of paramount importance, and procedures have to be established to facilitate their return. But there is nothing in the Convention that the place they want them sent back to has to be their place of habitual residence. But proper interpretation would suggest that the place where the children are to be returned to must be their place of habitual residence.

NAIBKHIL V QADERI2013 BCSC 1433

FACTS: Mother attended in Calgary and obtained an interim parenting order granting her sole custody and providing that she and the child reside in Calgary with the father having supervised visits. Upon learning that the mother had removed the child from the jurisdiction, the father commenced a proceeding in British Columbia resulting in an interim order being made by the British Columbia court granting him care and custody of the child and providing a police officer assist clause to return the child to British Columbia. The B.C. order has been stayed on several occasions as the parties attempt to address the jurisdictional issue.

ISSUE: Which court should assume jurisdiction over the custody dispute which has resulted from the parties' separation?

RESULT: We find that the proper jurisdiction in which the trial of this matter should take place to determine custody and parenting arrangements with respect to the child is B.C.

REASONS: The parties resided in B.C. at the time of the birth of the child and B.C. was their habitual residence throughout the course of their marriage until the

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mother's removal of M. The removal was without the permission of the father and is premised upon disputed facts.

Pending the trial of this matter in B.C., which will be set on an expedited basis, M. will remain in the day-to-day care of the mother in Alberta. The father will have reasonable access to M. in Alberta as agreed between the parties or, failing agreement, as determined upon application in the Supreme Court of British Columbia.

NOTE: The Canadian Judicial Council has established a network of superior court contact judges to address extra-provincial custody jurisdiction issues. “Shared decisions” like the one in this case are the result.

MATRIMONIAL PROPERTY

COMMON LAW

In sorting through the difficult mess of legislation it is helpful to have the common law rules related to matrimonial property as a backdrop. Jurisdiction is based on: (a) presence of the defendant in the jurisdiction, (b) real and substantive connection between the parties and the jurisdiction, and (c) situs of immovable property. Note that these factors remain subject to the court’s discretion under forum non-conveniens.

Recall that the division of movable matrimonial property is governed by the law of the matrimonial domicile. Division of immovable matrimonial property is governed by the law of the place where the property is situated (the lex situs). But, in a contract express or implied made between the parties, then the division of property may be governed by some other law.

Generally, our courts will enforce the judgements of other courts with respect to division of movable matrimonial property as long as there was a real and substantial connection to the place that granted the judgment.

THE MATRIMONIAL PROPERTY ACT

Section 3(1) says that you may apply for an order related to matrimonial property if the last joint habitual residence was Alberta, or if their current habitual residence is Alberta. However, a court can also take jurisdiction if they have taken jurisdiction of a divorce matter. Does Section 3 completely oust the common law such that the Alberta Court will never hear a claim for division of matrimonial property unless the criteria in section 3 are met? Probably not. There may still be some circumstances in which you can get the court to take jurisdiction over a defendant on the basis of the common law rules.

FOR EXAMPLE: What happens if the matrimonial property dispute is over immovable property situated in Alberta but the parties have no connections to Alberta? Will the Alberta Court take jurisdiction?

Section 9(1) pre-empts problems of extra provincial enforcement of orders under the Act because it only gives the court the power to make an order in relation to property already situated in Alberta. However, when will the Alberta court enforce a matrimonial property order of a foreign court in relation to property situated in Alberta?

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TEZCAN V TEZCAN(1992) 87 DLR (4th) 503 (BCCA)

FACTS: Three properties purchased in BC. Properties were also purchased in Turkey. On separation, no agreement was reached about the disposition of the property. The appellant seeks to persuade this court that the law of Turkey should be the law applicable for determining the disposition of the matrimonial assets of the marriage. According to the Turkish regime, married persons would be deemed to hold separate assets and, therefore, the respondent would not be entitled to any portion of the husband’s property. The respondent submits that the law of British Columbia is the law applicable for determination of division of matrimonial assets.

ISSUE: What is the choice of law rule for the division of matrimonial property? Is it the lex loci domicilii or the lex situs?

RESULT: The lex causae should be the lex situs which is BC. There was no implied contract between the parties to change this rule, despite the fact that matrimonial contracts are governed by the law of the matrimonial domicile which was Turkey.

REASONS: Claims to movable property are governed by the lex domicilii and claims to immovable property and governed by the lex situs. There can be a contract between parties that changes these rules, however. The Husband suggests it is movable because it is within a partnership. However, in this case, the Family Relations Act says that upon dissolution of the marriage, the Act operates to vest a proprietary interest in land in the non-titled spouse which would be recognized in the land titles system and affect title in respect of all persons. This should be characterised as immovable property.

However, the appellant argues that by not expressly contracting out of this separation of assets regime, the parties are to be taken as having impliedly contracted into this relationship as a result of the Turkish Code. The conflict of laws rules tells us that the validity of a matrimonial contract depends on the proper law of the contract which is the law of the matrimonial domicile. In this case, the matrimonial domicile is Turkey, but Turkey law says that there would be no implied contract.

CHAPTER 4: CONTRACTSThe law around choice of law in contract is still buffeted about between two competing philosophical conceptions of contract: (1) One which holds that contractual obligations are created by the free and autonomous actions of the parties. This view of course wants to hold express choice of law clauses sacrosanct, and (2) another which takes the view that exchange relations have an internal notion of fairness to them and that parties should not be able to use conflict of laws to escape regulation of commercial relations in the jurisdiction in which they are doing business.

ROADMAP: Did the parties expressly state their intention? Did the parties impliedly express their intention? Is the express and implied intention are limited by bona fides, legality, and public policy? What would reasonable parties have intended in all the circumstances of the case?

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EXPRESS SELECTION OF PROPER LAW

Note that there is a difference between a choice of forum clause and a choice of law clause. The choice of forum specifies the procedural rules, but you cannot force a court to take jurisdiction since it is always a matter for the discretion of the court, but it does prevent the parties from objecting to the forum. Choice of law specifies the substantive law. Note that you can have different choice of law and choice of forum clause.

VITA FOOD PRODUCTS V UNUS SHIPPING CO[1939] 1 WWR 433 (PC)

RATIO: Where the parties expressly stipulate that the contract shall be governed by a particular law, it has been held that that law will be the proper law of the contract provided the selection is bona fide and that there is no infringement of public policy.

FACTS: A contract is entered into to ship a cargo of herring from Newfoundland to New York. The defendant is a carrier that is incorporated in Nova Scotia, and the contract was made in Newfoundland. The herring was picked up in Newfoundland by the defendant and was being taken to New York when an accident occurred and the herring were damaged. In Newfoundland there is a law saying that any contract exempting a carrier from liability in negligence is void, and a provision like this was in the contract at issue. However, the contract also said that the contract was to be governed by the laws of England which says it is okay to exempt from negligence.

ISSUE: Which law governs?

RESULT: The English law governs, so the exclusion of liability clause is okay.

REASONS: The only time you should override the intent of the parties (as per the terms of the contract in this case) is when the choice of law was not bona fide, was illegal, or violated public policy and court is not prepared to enforce. In this case, none of these applied so the Court respected the parties’ intentions.

GOLDEN ACRES V QUEENSLAND ESTATES[1969] Qd R 378 (Australia SC Queensland)

FACTS: Landowners hire a real estate agent in Hong Kong to negotiate some deals to buy condo developments. The hiring contract said that the laws of Hong Kong would apply because this would avoid a licensing requirement. The developers then stiff the realtors.

ISSUE: Does Hong Kong law apply, or Queensland, Australia?

RESULT: Queensland law applies since the Hong Kong choice of law is vitiated by not being bona fides.

REASONS: In order to pass the Vita Foods test, you need some legitimate reason for choosing the other legal system other than the sole reason of avoiding the legal ramifications. The only reason HK was chosen to avoid the QL real estate license requirement. This is not enough. It certainly could be

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contrary to the public interest if the operation of the statute as a whole could be circumvented by the simple device of agreeing that some other law will apply to a contract which would otherwise be subject to the restrictions imposed by the Act.

NOTE: This is a Queensland case and is not binding on Canadian courts.

BHP PETROLEUM PTY LTD V OIL BASINS LTD[1985] VR 725 (Aust SC Victoria)

RATIO: If you choose a place with a sophisticated law in relation to the contract, this may constitute a bona fides express selection of governing law.

FACTS: The contract at issue said: “shall be interpreted and applied in accordance with the New York laws.” However, there was little, if any connection to New York at all.

ISSUE: How much connection to a jurisdiction is required to pass the bona fides test?

RESULT: There must be some evidence of a relationship between a jurisdiction and the contract.

REASONS: We don’t look at strongest connection and why they didn’t pick it. Instead, we ask is there some legitimate reason why they picked where they did, if so don’t overturn it. In this case, we are dealing with a complicated finance contract and the sophistication of New York law in relation to these kinds of contracts counts as a bona fides reason to choose that system.

NO EXPRESS SELECTION OF PROPER LAW

IMPERIAL LIFE ASSURANCE V COLMENARES[1967] SCR 443

RATIO: If there is no express or implied intention you must look to the real and substantial connection of the contract.

FACTS: Colmenares was a resident and domiciled in Cuba and approached Imperial Life Assurance which was a Canadian insurance company operating in Cuba. The application forms were sent to Ontario which was later accepted and the policy was sent back to Cuba. Colmenares later leaves Cuba and establishes a residence and new domicile of choice in United States. Under the terms of the contract he is entitled the face value of the policy at any time. He surrenders the policy and asks for cash. Under Cuba law it is an offence to turn the cash value of insurance policy to a US resident, but under the law of Ontario, there is no such preclusion.

ISSUE: Whether the proper law of the contracts of life insurance is the law of Ontario or the law of Cuba.

RESULT: Ontario law applies.

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REASONS: The present circumstances are not relevant to determining the proper law of the contract. We must look at the situation at the time of the formation of the contract in order to make a judgment about the proper law. The process of divining the proper law of the contract is an amalgam of asking whether there is any evidence of implied intention and weighing the points of contact of the contract with the competing jurisdictions.

The factors in favour of Cuba are the insured’s domicile and residence, the application being filled out there, the forms being in the Cuban language, the premiums being paid in Cuban currency, and the contract not coming into effect until the approved contract arrived back in Cuba.

However, any underwriting decision was to be made in Ontario, the forms were Ontario forms drafted by Ontario lawyers and which were merely translated to Spanish. Further, the head of company was in Ontario.

NOTE: As per Cheshire: The court must take into account, for instance, the following matters: the domicile and even the residence of the parties; the national character of a corporation and the place where its principal place of business is situated; the place where the contract is made and the place where it is to be performed; the style in which the contract is drafted, as, for instance, whether the language is appropriate to one system of law, but inappropriate to another; the fact that a certain stipulation is valid under one law but void under another ... the economic connexion of the contract with some other transaction ... the nature of the subject-matter or its situs; the head office of an insurance company, whose activities range over many countries; and, in short, any other fact which serves to localize the contract.

LILYDALE COOPERATIVE LTD V MEYN CANADA INC2015 ONCA 281

FACTS: Alberta plaintiff purchased a fryer from an Ontario business. The fryer caught fire one day and plaintiff sued the defendant for negligence. At issue was whether the motion judge erred in finding that Ontario law, rather than Alberta law, governed a contract between the. There was no choice of law clause in the contract. The motion judge considered the four criteria typically used to assess the closest and most real connection: the nature and subject matter of the contract; the place of performance of the contract; the place of contracting; and the residence and domicile of the parties. She held that the first two criteria favoured Ontario, and that the last two criteria were neutral. She therefore concluded that Ontario law governed Lilydale's claim for breach of contract. Thus, the action was not barred by a limitation period (10 years in Alberta vs 15 years in Ontario) (which is substantive law).

REASONS: The parties agreed that the contract was not simply for the sale of a good; it was a contract for the design and sale of a fryer and oven system. The ordering of the components and the design was done in Ontario. Hence, most of the obligations were occurring in Ontario. The motion judge's finding that the nature and subject matter of the contract was more closely connected to Ontario was a reasonable finding.

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On the final argument that finding the lex causase to be Ontario law would be inconsistent with the principles of order fairness and comity, the Court says that if a choice of law rule was put in the contract by Meyn, they would have chosen Ontario anyways, so they can’t argue unfairness.

NOTE: There is a strategic element in bringing an action in the jurisdiction where you want the substantive law to apply. A court might be more comfortable in finding for their substantive law if they are the jurisdiction where the action is brought.

NOTE: While the lex causea is Ontario for the contract issue, the lex causae for the tort action is the lex loci delicti which is the place where the tort occurred, which is Alberta. Lilydale did not appeal this part of the decision since it was clear that the tort action was statute barred since the choice of law is Alberta.

OFFSHORE INTERNATIONAL V BANCO CENTRAL2015 ONCA 281

RATIO: The law which best facilitates the intended effects of a letter of credit is the best place to govern that letter. Usually that is the place where the confirming bank is situated since that facilitates the commercial transactions.

FACTS: Offshore International is incorporated in Panama but doing business in the United States. A contract was entered into with a construction company and a letter of credit is issued by a confirming bank in New York. A dispute then arises with respect to that letter of credit.

ISSUE: Which law governs the letter of credit?

RESULTS: New York.

REASONS: The Court favored New York since that was the place where the document had to be presented, and where funds were to be paid out. The overriding fact in the case stems from considering what the point of a letter of credit was (person absolutely assured that they are immediately paid the money). This means that the confirming bank is the one that’s supposed to pay out and that confirming bank should be able to rely on their own legal system. It would be very cumbersome if the confirming bank had to rely on different legal system, when the intention of a letter of credit is to immediately pay out the money.

STATUTORY CHOICE OF LAW RULES

CANADA LIFE ASSURANCE COMPANY V CANADIAN IMPERIAL BANK OF COMMERCE[1979] 2 SCR 669

RATIO: A statute can override the common law approach.

FACTS: There is a branch office of a bank in New York. An employee in that branch office conducts a fraudulent scheme. He is forging signatures of policy holders in New York which are sent to Toronto where the head office then issues cheques to the branch office and the employee then cashes those cheques

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with CIBC. A fight ensues because Canadian law says that the bank must indemnify the insurance company for the fraud, but under New York law the bank does not have to indemnify since the fraud originated within the company itself.

ISSUE: Which law applies?

RESULTS: The CIBC New York branch was resident in New York, so there was no inland bill, and hence the New York law applied and the bank was not liable.

REASONS: The common law approach is bypassed in this case because there is legislation in the lex fori (Toronto) that sets out a statutory choice of law rule as per the Bill of Exchange Act. That is, if you have a cheque that is written in Canada and cashed somewhere else, the law governing that cheque is the place where it is cashed. The exception is for an inland bill in which the choice of law will be Canada. An inland bill is a bill that purports to be drawn and payable in Canada. Hence, if the bank that paid out the cheque is located in Canada, then Canada law would apply. The question is then whether the branch office can be considered resident in Canada, and therefore there was an inland bill.

NOTE: The U.N. Convention on Contracts for the International Sale of Goods is an international convention that has been implemented in Alberta (and most the rest of the first world) by the International Conventions Implementation Act which is intended to facilitate international trade. However, section 2(3) of the Act allows parties to contract out of this convention if there is an express provision providing the contract to be interpreted by domestic law, and that the Convention does not apply.

The convention will otherwise apply when there is a contract for the commercial sale of goods between parties whose places of business are in different states and those states are contracting states, or when the rules of private international law lead to the application of the law of a contracting state. For example, just saying that the law of Alberta applies, since Alberta law implements the Convention, then the Convention also applies.

There is some hesitancy with parties wanting this Convention to apply, and the international courts have interpreted it inconsistently, despite the fact that it was supposed to create a sort of consistency. But, you may want the Convention to apply in cases where there is a stalemate related to a choice of law provision in a contract. It can operate as a sort of compromise.

ILLEGALITY

ROSS V MCMULLEN(1971) 21 DLR (3d) 228 (Alta SC)

FACTS: Ross and McMullen are real estate agents operating in Ontario and who are trying to lease a building in Calgary. In order to look for a tenant, McMullen moves to Calgary and an agreement is negotiated to split the commission 30/70. Eventually McMullen wants 100% of the commission and refuses to give any money to Ross. Ross then sues McMullen in Alberta, but Alberta law

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precludes suing for commission unless the realtor is licensed in Alberta which Ross is not.

ISSUE: What law applies?

RESULTS: Alberta law applies, thereby precluding Ross from suing McMullen since Ross is not licensed.

REASONS: The Court says that the fact that Ross sued McMullen in Alberta is a factor weighing in favour that the proper law of the contract is Alberta (this is a wrong since we are concerned about what facts exist at the time the contract was made and the state of mind at that point).

Further, section 28 of the Real Estate Agents’ Licensing Act says that no licensed agent shall pay a commission to an unlicensed person. Hence, if McMullen paid Ross, that would in fact be illegal.

However, the Court goes on to say that if the Ontario law was the law of the contract, they would apply public policy (à la Zhang v Lin or Golden Acres) to prevent the enforcement of the contract.

BLOCK BROS V MOLLARD(1981) 122 DLR (3d) 323 (BCCA)

FACTS: Defendants own land in BC and listed it with the plaintiff who was a licensed real estate agent in Alberta. The land was sold, but the defendants refused to pay commission. Action was commenced in BC for recovery of those funds. Section 37 of the BC Real Estate Act says that a person shall not maintain an action for any act done by an agent without proving that he was duly licensed as an agent.

ISSUE: What is the proper law of the contract? If the law of contract is Alberta, is Section 37 substantive law, in which case it will not apply because the lex causae is Alberta, or is it procedural law, in which case it will apply because the lex fori is BC?

RESULTS: Section 37 of the Real Estate Act was categorized as being substantive in nature and not procedural. The proper law is Alberta, and public policy does not apply.

REASONS: The legislation should be categorized as procedural only if the question was beyond any doubt. Where there was doubt, such doubt should be resolved by holding that the legislation was substantive.

There was cogent evidence to infer that the parties intended the law of Alberta to govern the contract. . Other than the fact that the land was in BC, there was not connection of the contract to BC: it was created and executed in Alberta. Hence, while the lex fori is BC, the lex causae is Alberta.

An action should be barred on grounds of public policy only where it would be contrary to essential public or moral interest, or contrary to conceptions of essential justice and morality. The substantive law must be morally repugnant and cannot just be a law that is different from the law of the forum.

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NOTE: This case is essentially completely at odds with Ross v McMullen. While public policy was applied in Ross, public policy was rejected in this case. The only way to distinguish them is based on the equities of the case. In Ross, Ross did most of the work and deserved the full commission, and in Block Bros, the landowners are just trying to get out of paying the commission.

BOARDWALK REGENCY CORPORATION V MAALOUF(1992) 6 OR (3d) 737 (CA)

RATIO:

FACTS: The defendant goes to New Jersey and borrows money at a casino to finance gambling. The contract created had no choice of law clause. He doesn’t pay the money back, returns to Ontario and is then sued by Boardwalk in Ontario because that is where he is for collection purposes. The defendant argues that they cannot sue in Ontario because contracts of these kind are morally reprehensible in Canada.

ISSUE: What is the proper law to apply?

RESULTS: The New Jersey law applies.

REASONS: There are really no connections to Ontario. The contract was created in New Jersey, and just because the guy absconded to Ontario afterwards does not affect the intention at the time.

English authorities say that a gambling debt can be enforced if the game was legal where the debt was contracted, irrespective if the game is illegal in the country where proceedings were brought. Further, there is no rock solid revulsion of gambling in Canada anyways. Hence, the very high standard of public policy should not be applied in this case. Only something so pernicious such as the corruption of children will invoke the wrath of public policy.

RALLI BROTHERS V COMPANIA NAVIERA[1920] 2 KB 287 (Eng CA)

RATIO: A contract ... is, in general, invalid in so far as ... the performance of it is unlawful by the law of the country where the contract is to be performed (the lex loci solutionis)...

FACTS: There was a charter for the carriage of a cargo of jute from Calcutta to Spain. Law came into effect in Spain about the maximum freights payable on jute imported. That is, it became illegal in Spain to pay or receive a higher freight than the maximum fixed by law. The contract entered into contemplated for more to be paid.

RESULTS: The lex loci solutionis makes the contract illegal, so it will not be enforced in the lex fori.

REASONS: I think the clauses as to place of payment constitute part of the obligation to pay, and are not merely instructions. The contract and obligation therefore are to pay on delivery in Spain in cash, that is. The simultaneous acts of delivery and payment are both to be performed in Spain, and the shipowners are a

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Spanish company. Therefore, the performance of the contract was illegal by the law of the place of its performance.

Even if everything is governed by English law, it doesn’t matter because a court will not use their authority to coerce a party to violate the laws of another jurisdiction. If Spanish law had said something like “no action shall be brought…” or “K unenforceable” then it would be irrelevant (unenforceable) but making it illegal is a different scenario.

GILLESPIE MANAGEMENT CORPORATION V TERRACE PROPERTIES(1989) 62 DLR (4th) 221 (BCCA)

RATIO: If it is illegal to perform a contract as required in the lex loci solutionis, then the contract is unenforceable.

FACTS: The plaintiff is a property management company in British Columbia and enters into a contract with the defendant company in Washington. The contract contemplates for the plaintiff to manage the property in Washington though the plaintiff would not be in charge of the day-to-day operations. They were only supposed to find renters and most of the work is done over the phone, though weekly visits to Washington were made. Washington law says that to be in rental business, you have to have a Washington license, which the plaintiffs did not have. Otherwise, it is “illegal.” The defendant terminated the contract and refused to pay.

ISSUE: Does the defendant have a defence on the basis that the plaintiff’s do not have a license to do what they did? What law applies?

RESULTS: BC is the proper law of the contract, but the contract is nevertheless unenforceable.

REASONS: Usually, when a court determines that BC is the proper law of the contact, the Washington provisions would not apply and the plaintiff would be fine. However, the defendant is arguing Ralli Brothers and is suggesting that this is a case of illegality. On the other hand, the plaintiff is countering with Block Brothers. The Washington Code said “it is unlawful to act as an agent without a license…” but the penalty seemed to be unenforceability instead of a fine or imprisonment. Further, the performance of the contract was already completed. So, to enforce the payment is not forcing the illegality, though it does operate as a sort of condonation. However, Block Brothers was distinguished because in that case everything that the plaintiff relators did was done in Alberta, whereas here the plaintiff was visiting Washington regularly to perform the contract. In the end, the contract should not be enforced in British Columbia because the respondent relied upon illegal acts.

CAPACITY TO CONTRACT

CHARRON V MONTREAL TRUST[1958] OR 597 (CA)

RATIO: The capacity to contract is governed by the proper law of the contract and not the law of the domiciles of the contracting parties.

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FACTS: Husband was born in Quebec and was posted to Ontario by working for the RCMP, so his domicile remained Quebec because his relocation was not on his own accord. The Husband and Wife marry in Ontario, live in Ontario and enter into a contract of separation in Ontario. However, under the law of Quebec, married persons could not enter into contracts with each other. So, the separation agreement would be unenforceable in Quebec, but enforceable in Ontario.

ISSUE: Is the contract enforceable?

RESULTS: The contract is enforceable under Ontario law because there is a capacity to contract there.

REASONS: The old rule that the capacity to contract is dependent on a person’s domicile is no longer the rule. The new rule is that the capacity to contract is governed by the proper law of the contract and is the law of the place where the contract has its most real and substantial connection.

FORMAL VALIDITY

A commercial contract is valid if it complies with the formal requirements of either the lex loci contractus or of its proper law.

KENTON NATURAL RESOURCES CORP V BURKINSHAW (1983) 47 AR 321 (QB)

FACTS: One party was buying mineral rights located in Tennessee. The buyer had to put up a $50,000 deposit which is refundable if the seller does not come through with the transfer of title. To make sure that they will get their money back if the deal fell through, they contract with a guarantor and create a guarantee. The Alberta Guarantees Acknowledgement Act says that a guarantee is not valid unless the guarantor has had independent legal advice and a certificate has been signed attesting to receiving advice. Here, no independent legal advice was received, so the guarantor argues that the guarantee is no good.

ISSUE: Is the guarantee valid?

RESULTS: The contract was valid and enforceable.

REASONS: You have to look at the proper law of the guarantee as well as the surrounding context of the guarantee. The proper law of the contract is Tennessee in this case even though the lex loci contractus was Alberta. Because a commercial contract is valid if it complies with the formal requirements of either the lex loci contractus or the proper law, then because Tennessee does not have corresponding legislation to the Guarantees Acknowledgement Act, the contract is valid and enforceable.

CHAPTER 5: TORTSPrior to Tolofson v Jensen, the leading case was the English case of Phillips v Eyre from 1870. In order to bring a tort action the claimant must satisfy two requirements. First, the alleged

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conduct must "be of such a character that it would have been actionable if it had been committed" in the local jurisdiction. Second, "the act must not have been justifiable by the law of the place where it was done." That is, it must be non-justifiable (i.e. “wrongful”) at the lex loci delictii. This case was followed in the Canadian case of McLean v Pettigrew where it was held that the proper law to apply would always be the lex fori, the local law of the court, irrespective of the connection with the jurisdiction.

CHOICE OF LAWS

TOLOFSON V JENSEN[1994] 3 SCR 1022

RATIO: The old rule in McLeans v Pettigrew is replaced with a strict lex loci delicti rule for inter-provincial conflict of law issues. In the international context, there is a presumption of the lex loci delicti that can be rebutted if application of this rule would lead to an injustice.

FACTS: A father and son from British Columbia are driving in Saskatchewan and are in a motor vehicle accident with Leroy Jensen, a resident of Saskatchewan. The son sues both Jensen and his father. Under Saskatchewan law the claimant must prove gross negligence in order for a gratuitous passenger to recover and the limitation period is 12 months. Kim did not sue for six years once he became 18 years old.

ISSUE: What is the choice of law?

RESULTS: The lex loci delicti, the place where the tort took place. In this case, Saskatchewan.

REASONS: The rule of private international law that should generally be applied in torts is the law of the place where the activity occurred -- the lex loci delicti. No compelling reason exists for following the lex fori. The nature of Canada's constitutional arrangements -- a single country with different provinces exercising territorial legislative jurisdiction -- supports a rule that is certain and that ensures that an act committed in one part of this country will be given the same legal effect throughout the country. This militates strongly in favour of the lex loci delicti rule.

On the international level, the rule that the wrong must be actionable under Canadian law is not really necessary, since the jurisdiction of Canadian courts is confined to matters where a real and substantial connection with the forum jurisdiction exists.  The fact that a wrong would not be actionable within the territorial jurisdiction of the forum if committed there might be a factor better weighed in considering the issue of forum non conveniens or whether entertaining the action would violate the public policy of the forum jurisdiction. 

HANLAN V SERNESKY(1997), 35 OR (3d) 603 (SC Gen Div)

FACTS: Plaintiff and defendant are from Ontario and the car crash occurs in Minnesota. The plaintiff brings an action in Ontario (the lex fori). Under Ontario law it was possible for relatives of the injured party to have a cause of action

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against the defendant for losses due to the primary plaintiff’s injuries. This allowance does not exist in Minnesota.

ISSUE: Which law applies?

RESULTS: Ontario law (the lex fori).

REASONS: If the lex loci delicti applied then the plaintiff who has a cause of action in Ontario will be deprived of compensation for their secondary loses. Hence, it makes sense to make an exception in this case. The ruling in Tolofson sets out a possibility of an exception in the international context where there would be an injustice. This possibility is used in this case.

NOTE: Is it really an injustice when the law in Ontario is just better for the plaintiff’s than the law of Minnesota? Perhaps the better thing to be saying is that it is not injustice, but it just makes more sense to bring it in Ontario since all the parties are located there. It’s basically just an application of the Convention.

WONG V LEE(2002) 58 OR (3d) 398 (CA)

FACTS: The plaintiff and defendant are from Ontario and are driving in New York. The car goes off the road and the plaintiff is injured. The insured is in Ontario as well as the insurer, so nothing is really connected to New York at all other than the fact that the accident took place there. The Ontario law precluded the plaintiff from suing for pecuniary loss, but in New York you can. Further, in Ontario, non-pecuniary loses had to meet a threshold test (like catastrophic injuries) in order to be recoverable in excess of the set statutory rate, recovery subject to a statutory deductible, none of these limitations were in NY law. The plaintiff obviously wants to sue in New York so he can get more.

ISSUE: Which law applies?

RESULTS: New York law applies (the lex loci delicti).

REASONS(Majority): Quantum under the heads of damages were found to be substantive law

(without any real justification à la limitations periods in Tolofson). The exception carved out in Tolofson is very narrow, only to be in circumstances where there is an international case that would create a clear injustice. If the lex causae favours one party or another this does not constitute an injustice. Hence, there is no grounds on which to make an exception to the rule in Tolofson.

REASONS(Dissent): Notion of judicial discretion means that there are a range of options for the

court, all of which are lawful, where there is no discretion then the court makes a lawful decision or an unlawful decision. When discretion exists the court has wiggle room, power to decide from among a number of options, all of which are lawful. Tolofson creates a discretion in the international context. Once the court makes that decision it is not subject to being overturned on appeal.

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SOMERS ET AL V FOURNIER ET AL[2002] OR (3d) 225 (CA)

REPRISE: Recall that Somers is injured in car accident in New York, but is domiciled in Ontario and sues in Ontario. The defendant submits to the jurisdiction of the Ontario court because damages in the US are always higher, whereas in Ontario there are caps on non-pecuniary damages. The plaintiff wanted Ontario law to apply because the New York limitation period was up. The Court referred back to Wong v Lee and Tolofson and explained that the cases were essentially the same as the case here, so no exception should be made.

BRILL V KORPAACH ESTATE(1997) 200 AR 161 (CA)

FACTS: The plaintiff is from Alberta, the defendant from Saskatchewan. The lex loci delicti is Saskatchewan and the lex fori is Alberta. The limitation period has expired in Saskatchewan but is still running in Alberta. At the time the statement of claim is filed Tolofson hadn’t been decided, so everyone assumes that limitation periods were procedural. After it is decided, the statement of defence is amended to include the limitation issue. The plaintiff argues an exception based on injustice because everyone thought that limitation periods were procedural. Alternatively, they argue that the “damage” manifested after the car accident in Alberta.

ISSUE: Is there injustice here such that an exception from Tolofson should be allowed? Did the damage occur in Alberta after the accident in Saskatchewan?

RESULTS: The exception in Tolofson does not apply. Damage occurs at place of accident and cannot manifest later.

REASONS: This is not even in the exceptions that are set out in Tolofson. There is no international element. So there is no possibility for us to extend this exception in this situation. Further, damage in a car accident happens on impact, irrespective of the continuous suffering.

With respect to the retroactivity of Tolofson, the Court said that if the Supreme Court of Canada decided that there was to be no equitable relief against a retrospective application, then how can we give an equitable relief?

BEZAN V VANDER HOOFT2004 ABCA 44

FACTS: Plaintiff is flown to Alberta after an accident in Saskatchewan and dies the next day from the injuries. The plaintiff is from Alberta, but the defendant is from Saskatchewan. The Saskatchewan has a no fault scheme but Alberta has a fault scheme whereby recovery under the Fatal Accident Act is going to be greater in Alberta than it would be in Saskatchewan.

ISSUE: Is this a case where there should be an exception.

RESULTS: No exception.

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REASONS: Damage occurs where the accident happens. Just because the plaintiff came immediately to Alberta after the accident does not matter. The tort did not take place in Alberta.

PLACE OF THE TORT

MORAN V PYLE NATIONAL[1975] 1 SCR 393

RATIO: The tort occurs where a person is harmed notwithstanding the fact that the cause of that harm was the result of negligent manufacturing that occurred elsewhere.

FACTS: The deceased was working in Saskatchewan when he was killed in workplace accident. Estate sues the company he was working for, but they only have assets in Ontario. The equipment that caused the injury was manufactured in Ontario.

ISSUE: Where did the tort occur?

RESULTS: Saskatchewan.

REASONS: I have great difficulty in believing that a careless act of manufacture is anything more than a careless act of manufacture. A plaintiff does not sue somebody because somebody has manufactured something carelessly. He sues because he had been hurt.

BANRO CORP V EDITIONS ECOSOCIETE INC2012 SCC 18

FACTS: A Corporation in Ontario brought action against an author who wrote a book they claim is libellous to the company. The publisher is a corporation based in Quebec and most of the books are distributed in Quebec with only a few in Ontario. The plaintiff’s sue in Ontario, however, because the law there related to defamation offers more protection than Quebec. Trial judge ruled that Ontario had jurisdiction because there was a real and substantive connection between the forum and the action.

ISSUE: Does Ontario have jurisdiction to hear this matter? What is the choice of law rule for defamation?

RESULTS: Ontario has jurisdiction.

REASONS: There are two approaches: The law of the place where any publication happens, or the law of the place where only the substantial publication happens. The Court rejects the most substantial publication alternative on the basis that the plaintiff would not know where the defendant is going to publish the article most substantively (i.e. they would have to wait after the defamation occurred to determine the place of most substantial publication). Hence, the alleged tort of defamation occurred in Ontario, as the book was distributed in Ontario.  At this stage of the proceedings, a plaintiff need not

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show evidence of harm or that the book was read; he or she need only allege publication and its allegations should be accepted as pleaded unless contradicted by evidence adduced by the defendant. The commission of a tort in Ontario is a recognized presumptive connecting factor that prima facie entitles the Ontario court to assume jurisdiction over the dispute. As the appellants in this case have not shown that only a minor element of the tort of defamation occurred in Ontario, they have not displaced the presumption of jurisdiction that arises. 

As the elements of a tort such as defamation potentially vary from one jurisdiction to another, a plaintiff might make a strategic decision and sue in a jurisdiction in which he or she enjoys the greatest juridical advantage.  This is the well-known problem of “forum shopping” or “libel tourism”.  Restricting the available choice of laws might be a way to curb forum shopping.  Lex loci delicti, or the place where the tort occurred, has been established as a general principle for determining choice of law for torts, however, room has been left for the creation of exceptions to the general rule for torts such as defamation. One possible alternative to the lex loci delicti as the choice of law rule in defamation cases may be the place of most substantial harm to reputation, though this issue need not be addressed in this case, because the lex loci delicti and the place of most substantial harm is both Ontario.

GULEVICH V MILLER2015 ABCA 411

RATIO: In order to determine the place where the tort was committed, the Court may still be informed by the location “most substantially affected by the defendant’s activities or its consequences”.

FACTS: Patient had CT scans in Ontario, but nothing was diagnosed. Patient moved to Alberta where he was diagnosed with brain tumor. Action was commenced in Alberta claiming negligence. The plaintiff tries to argue Moran in that the damage (through surgery) occurred in Alberta. The chambers judge instead found that the tort was committed in Ontario at the moment she received negligent medical advice and so Ontario had jurisdiction.

ISSUE: Which court has jurisdiction?

RESULTS: The Alberta court had jurisdiction over the action.

REASONS(Majority): The injury suffered by the patient was not the defendant's breach of the duty

of care. The injury occurred and the cause of action crystallized when the patient would have elected to have a craniotomy, had she been diagnosed properly. This occurred in Alberta. There could be no presumptive jurisdiction when a plaintiff had suffered an injury, left the jurisdiction and pain and inconvenience accumulated elsewhere. The court declined to adopt a bright-line rule that arbitrarily located the tort in the place where the negligent conduct occurred.

REASONS(Concurring): Alberta could take jurisdiction over the claim, however, this conclusion should

be based on the fact that a real and substantial connection existed between

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Alberta and the facts upon which the claim was based. The court ought to have focused on the real and substantial connection between Alberta and the facts upon which the claim was based.

NOTE: Survival of Actions Act says that a cause of action survives the death of the plaintiff and lives on for the estate. The Fatal Accidents Act says that a defendant who would have been liable for damages in negligence for injuring a plaintiff remains liable if the plaintiff dies from the injuries caused by the negligence.

OTHER CAUSES OF ACTION

SCHROEN ESTATE V WAWANESA MUTUAL INSURANCE CO(1996) 179 AR 68 (QB)

FACTS: A pedestrian is killed in Louisiana and the estate is awarded damages. The driver’s insurance company goes into receivership during proceedings so the estate tries to collect under the pedestrian’s own insurance under the underinsured motorist clause. The policy states that liability is to be governed by where the accident happened, but quantum is governed by the place where the policy was issued. The insurer is prepared to indemnify for damage caused by an underinsured motorist outside the province as determined by the lex loci delicti, however, they don’t want to get stuck with a huge U.S. damage award.

ISSUE: Does the lex fori or the lex loci delicti govern?

RESULTS: When determining the amount payable under policy, and Arbitrator is not required to use the damages as awarded in the judgment obtained in the State of Louisiana. The amount should be calculated based on an amount as if the quantum of damages the alleged claimants would be entitled to recover from the inadequately insured motorist had been determined according to Alberta law.

THAI V DAO(1998) 39 OR (3d) 791 (SC Gen Div)

FACTS: Plaintiff and Defendant are from Ontario with Dao driving Thai’s car. An accident is caused in Quebec. Ontario law states that all insurance contracts must provide that the insurance company will pay for everything that the insured would be able to recover from an unidentified insured motorist, and so Thai argues that the insurance company owed the amount in damages that would have been recoverable under Ontario law.

ISSUE: Does the insurer pay under the lex loci delicti or the lex fori?

RESULTS: Recovery of damages for torts are governed by the lex loci deliciti, so Quebec law applies.

HERMAN V ALBERTA (PUBLIC TRUSTEE)2002 ABQB 255

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FACTS: Three plaintiffs enter into a contract to charter a plane from Alberta to Saskatchewan. Three other plaintiffs were guests and not privy to the contract. The plane crashes in Saskatchewan.

ISSUE: What law governs the contract? What law governs the tort?

RESULTS: Alberta law governs the contract but Saskatchewan law governs the tort.

REASONS: The passengers that were resident in Alberta were domiciled in Alberta, the contract was made in Alberta and the fact that they were taken into Saskatchewan did not tip the balance to make the contract’s real and substantial connection Saskatchewan, so the court found that the plaintiffs who were privy to the contract could sue on Alberta law (if they so choose). The other plaintiffs had to sue in Saskatchewan because they were not privy to the contract.

CHAPTER 6: SUCCESSIONTESTATE SUCCESSION

RE BERCHTOLD[1923] 1 Ch D 192 (Eng Ct Ch Div)

RATIO: Money payable out of the sale of land is immovable property.

FACTS: The Testator is domiciled and dies in Hungary. As per the will, land owned in England is to be sold with the proceeds to go to the son, but the son dies intestate in Hungary. Hungarian law says that the son’s sisters are entitled to the fee simple, subject to a life estate awarded to the widow. English law says that the widow is entitled to the fee simple.

ISSUE: How is the property to be characterised? Which law applies?

RESULTS: The property is to be characterised as immovable property, and so the lex situs, which is England, applies.

REASONS: The property is characterized by the law of the lex situs which is England, and English law held that immovables include leasehold interests, rent charges, mortgage debt secured by land, interest in the proceeds of sale of real estate subject to a trust.

The sisters argue that the proceeds are eventually going to end up in Hungary so the situs should be properly characterized as Hungary. The Court did not buy this reasoning and they said that the situs is the location where the property is located, not where it might end up.

WILLS AND SUCCESSION ACTSA 2010, c W12.2

Section 41(1) of the Act codifies the moveable vs. “interest in land” property distinction. They use this new name of “interest in land” for immoveable property. Section 41(2) says

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that the formal and essential validity of a will that contemplates an interest in land are governed by the lex situs. Section 41(3) says that the formal and essential validity of a will that contemplates movable property are governed by the domicile of the testator at the time of the death.

Section 42 isolates the notion of formalities. A will will be formally valid in Alberta if it is valid in the place where the will was made, where the testator was domiciled when the will was made, or where the testator had the testator’s domicile of origin.

Formalities include number of witnesses, signatures, etc. Intrinsic/essential validity includes the rules that determine what you can give away and how much of it you can give away.

Recall the case of Ramsay v Liverpool Infirmary where the testator died in England after following his family there from Scotland. If the Alberta law applied, the Court could have relied on the testator’s domicile or origin. This would have prevented the artificial conclusion that the Court reached when they decided he was still domiciled in Scotland notwithstanding the fact that he had lived in England for half his life.

Section 43 says that a will cannot go from being formally valid to being formally invalid as a result of a change in domicile.

Section 44 says that the construction of the will is presumed to be governed by the law of the place where the testator was domiciled at the time of the making of the will.

Division 3 of the Act says that if there is a foreign or interprovincial element, you can designate you will to be an international will, which will be governed by the Convention Providing a Uniform Law on the Form of an International Will. Lots of continental Europe are not signatories, however.

ALLISON ESTATE V ALLISON[1999] 3 WWR 438 (BCSC)

RATIO: Change in domicile will not invalidate a will that was previously valid under the matrimonial domicile.

FACTS: The Testator was domiciled in Quebec and the will was executed in Quebec. The Testator married and later moved to BC and acquired a domicile of choice there. The entire estate at the time of death was moveable property. Quebec law says that marriage does not revoke a will, but BC law says that when you get married, your will is automatically revoked.

ISSUE: Do we apply the law of the domicile at the time of death or at the time the will was drafted?

RESULTS: The law that applies is the law of the domicile of the testator when the will was drafted.

REASONS: The question of whether a marriage revokes a will is determined by the testator's domicile at the time of the marriage.

RE CANADA TRUST CO AND SACHS(1990) 72 OR (2d) 409 (SC Gen Div)

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FACTS: A man is married in 1960 and creates a will in 1968 that gives all of his property to his wife. In 1974 he divorces the wife, but affirms his will to give all property to his now ex-wife. While all events took place in Quebec with most movable an immovable property in Quebec, there was land in Ontario as well. In 1977 the law in Ontario changes such that wills are invalidated by divorce. In 1986 the man dies. The Quebec court was reluctant to make a determination related to immoveable property situated in another jurisdiction. The action then moved to Ontario.

ISSUE: Is the will invalidated by the Ontario law?

RESULTS: Yes.

REASONS: The formal and essential validity of a will is governed by the situs of the immovable property. The ex-wife argues that at the time of the divorce, the law was such that the will was not invalidated. However, the Court construes the law as having retrospective application. Hence, the property was disposed of under the Intestate Succession Act and the ex-wife is unable to recover.

NOTE: Section 23 of the Wills and Succession Act says that neither marriage nor the entering into of an adult interdependent relationship revokes a will. However, section 25 of the Act says that both marriage and the termination of an adult interdependent relationship revoke a bequest to a former spouse or an appointment of a former spouse as executor.

DAVIES V COLLINS2011 NSCA 79

FACTS: Parties were married in the United Kingdom, moved to Canada where the husband executed a will making his wife the principal beneficiary. They later divorced. Two days before the ex-husband’s death, he married a lover in Trinidad through in extremis which is a type of marriage that is not recognised in Canada. The law in Nova Scotia, where the testator was still domiciled, said that a marriage will revoke a will. Trinidad law, however, would not revoke a will by in extremis marriage.

ISSUE: Whether a foreign marriage, whose form would not be recognised in Nova Scotia, has the effect of revoking a Canadian will?

REASONS: The Nova Scotia court found the marriage to be both formally and essentially valid under Trinidadian law (there might have been an argument to be made that, notwithstanding the validity of the marriage, that it could not be recognised because you are not talking about the same legal creature). The Court then said that the marriage revoked the will because that was the law of Nova Scotia which is where the will was created.

This case is a classic FALSE CONFLICT. The result could not have happened if everything happened in Trinidad, because there would not have been an automatic revocation of the will by law. If they got “married” in Nova Scotia, such a truncated marriage would not be recognised as it was in Trinidad due to the lack of formalities.

INTESTATE SUCCESSION

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The biggest bone of contention in the area of intestate succession arises where the estate contains immovable property outside of the jurisdiction where the deceased was domiciled. This is because the spouse gets two preferential shares — or gets to "double dip."

Section 61(1)(a) of the Alberta Wills and Succession Act says that where an intestate dies with a partner and children and those children are all the children of the couple the spouse/partner gets the whole of the intestate estate. Section 61(1)(b) says that where the deceased dies leaving a partner and children and not all of those children are children of the couple the partner gets either 50% or $150,000.00 whichever is greater. All the children share in the residue.

RE COLLENS[1986] 1 All ER 611 (Eng Ct Ch Div)

FACTS: The deceased was domiciled in Trinidad and buys immoveable and movable property in Trinidad, moveable property in Barbados, and immovable property in England. There is fighting between the children and the interloping widow, and a settlement is reach in Trinidad for one millions pounds.

ISSUE: Is the widow entitled to her share out of the English portion of the estate, notwithstanding that she settled for one million pounds in Trinidad?

RESULTS: Yes, she can, but not without some regret. We have no power to do anything outside of the statute. There is some illogicality of requiring English immovable assets to be regulated for the purposes of succession by the lex situs rather than by the law of the domicile.

REASONS: The law in England is such that on the death of a person intestate, the surviving wife shall take $5,000 off the top, and the residuary of the estate (meaning the immovables) shall be distributed one-half to the surviving wife, and one-half to the issues (the children).

SINCLAIR V BROWN(1898) 29 OR 370 (SC Gen Div)

FACTS: Husband dies intestate in Illinois with immovable and movable property located there. There is also immovable property located in Ontario. There is a surviving wife, no kids, but 2 sisters. Illinois law says that widows are given $833 from the estate with the residue disposed of equally between the widow and the sisters. In Ontario, the widow gets $1000. The sisters try and argue that the widow should only get one preferential share (i.e. only $833 or $1000 but not $1833).

ISSUE: Can the widow get both preferential shares?

RESULTS: Yes. She can double-dip.

REASONS: The Ontario law is clear and it does not matter what the law of the place where other property is located is. This is the exact same reasoning as in Re Collens.

THOM ESTATE V THOM

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[1987] 5 WWR 667 (Man QB)

FACTS: The deceased dies intestate in Saskatchewan where he has movable and immovable property. However, he also has immovable property in Manitoba. The widow would get a preferential share of $40,000 and 1/3 of the residue in Saskatchewan. In Manitoba, she would get a share of $50,000 and ½ of the residue.

ISSUE: Is the widow entitled to both preferential shares?

RESULTS: No. She gets $40,000 from Saskatchewan, and $10,000 from Manitoba.

REASONS: The Court decides to simply top up the difference. The purpose of intestate laws is to provide for the equitable distribution of the estate. If I accept the widow’s position, an equitable distribution would not occur.

VAK ESTATE V DUKELOW(1994) 20 OR (3d) 378 (SC)

FACTS: The intestate dies in Manitoba with some immovable property in Ontario. The preferential share in Manitoba is $50,000 and in Ontario is $75,000. The deceased had an estranged husband but they were never divorced. Further, there was a son from a previous marriage. By the time of the trial, the husband had also died intestate, so anything he might receive from the wife’s estate would go to his brothers and sisters.

ISSUE: Can the estranged husband’s estate receive 2 preferential shares?

RESULTS: No, the estate can receive at most $75,000.

REASONS: The Court follows the case of Thom.

NOTE: Are the Thom and Black decisions right? The conflicts scholar Vaughan Black suggests that the Court should have just gotten rid of the lex situs rule and resort to domiciliary law to all of the property. However, the lex situs grounds the sense that a Court is to have jurisdiction over the land it governs. In Alberta, the law is very protective of the spouse (they get the whole thing), so what might’ve been the result here? You cannot even apply Thom because there is no way to top up so that the spouse would get everything.

CHAPTER 7: PROOF OF FOREIGN LAWOnce you determine what the lex causae is, you have to bring in expert evidence to attest to the proper law of the lex causae for the Court of the lex fori to determine what the appropriate outcome would be.

If there is no evidence called as to the substance of the foreign law, the substance of the lex causae is presumed to be the same as the substance of the lex fori.

Interprovincially, by section 12 of the Judicature Act, the Alberta Court can take judicial notice of the law of any province or territory in Canada. That is, you don’t need an expert. The Court will just deal with the statutes and case law as if it was in Alberta.

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THE MERCURY BELL(1986) 27 DLR (4th) 641 (FCA)

FACTS: There was a labour dispute with respect to wages by crew members of a Liberian ship. However, the substance of Liberian law was not pleaded and no expert evidence was adduced.

ISSUE: What law applies? Can we presume the law is the same as the lex fori?

RESULTS: Liberian law applies and we presume that to be the law of the lex fori less administrative provisions. That is, you can only take the presumption so far. Only those provisions that can be imagined to apply in an international context will apply.

REASONS: The law of Liberia is the law which is applicable here. We have no proof of that law so we must presume that it is similar to our law but only in so far as the substantial provisions thereof are concerned. Some of the Canadian Labour Code provisions are fundamental and have a potential degree of universality, but other provisions are linked to uniquely Canadian circumstances and purposes. Those uniquely Canadian administrative positions should not be applied.

CHAPTER 8: REFUSAL TO APPLY FOREIGN LAWCourts do not ever apply or enforce foreign penal law and they do not take jurisdiction over matters involving foreign penal law. There is only one situation in particular that should be read as a qualifier. In situations of crimes against humanity there is international jurisdiction, meaning that any court can take jurisdiction. Extradition proceedings also deal with some interjurisdictional penal law issues.

The big question in Private International Law is how we characterise something as penal or private.

HUNTINGTON V ATTRIL[1893] AC 150 (PC)

FACTS: There is a provision in the New York Code essentially criminalising the making of false statements in a prospectus with a fine to be levied against the directors and paid to the creditors.

ISSUE: Is this penal law, or because it provides only for a compensation mechanism to the creditors does it have a sufficient private law element to permit enforcement?

RESULTS: This is not a penal law and is a matter of compensation.

REASONS: If the law is truly a penal law, then the fine would be paid to the state. Here, the plaintiff had the right to pursue the action themselves, and the basic underlying aim is compensation not penalisation, so it is more akin to a private law action.

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In foreign revenue law, the general principle is that our Courts will not take jurisdiction over, apply, or enforce foreign tax law. However, this is becoming less and less true because we are increasingly becoming governed by international tax treaties. Also, provinces are empowered to enforce tax judgments of other provinces.

Courts will not enforce foreign law if to do so would offend against our fundamental understanding of public policy. The Court will not compromise their integrity by enforcing the foreign law.

CHAPTER 9: JURISDICTION OF THE LEX FORIRecall the three fundamental questions of conflict of laws: Do we have jurisdiction? What law to apply? Can it be enforced?

The decision about whether to take jurisdiction over a case is a two part test: (1) Do we have jurisdiction at law? (2) Should be exercise our discretion to take jurisdiction or is there another forum that is more suitable. In other words, is the court forum non conveniens?

The first question is now answered with reference to the notion of real and substantial connection. If there is a real and substantial connection between the litigation and the jurisdiction then the court has jurisdiction as a matter of law. The best way to analyze this is to ask: Does this court have a legitimate claim to moral authority over this defendant? Ultimately what the court is being asked to do is to exercise coercive control over the defendant – by way of damages or other order – and therefore in analyzing real and substantial connection we should be preoccupied with the connection to the defendant.

In analyzing the question of forum non conveniens the court should look to the logistics of bringing the claim here. Usually the main thing we are concerned with is the location of the evidence. But we are basically asking is it going to be way easier and fairer to the defendant to bring the action somewhere else.

For all of these questions, we should always be less concerned with the plaintiff in answering these questions because the plaintiff by bringing the action in that court has consented to the jurisdiction of the court.

PERSONAL SERVICE

Where the defendant is within the territorial borders of our jurisdiction it has long been presumed that our courts do have a legitimate claim to authority over the defendant and that, therefore, service of the defendant within the jurisdiction gives the court jurisdiction as of right (However, this rule may be ripe to be overruled either legislatively or by judicial decision).

There are three circumstances where our courts may take jurisdiction even though the defendant is not within our border: (1) Where there is a real and substantial connection between the litigation and the jurisdiction pursuant to section 11.25 of the Alberta Rules of Court; (2) A defendant who is not present in the jurisdiction may also be seen to have submitted to the court's jurisdiction by conduct (where he or she has attorned to the courts jurisdiction). In such a case our court may also proceed to hear the case – again even though the defendant has not been served within our borders; (3) Where the defendant has expressly agreed to be bound by the decisions of our court, the court may also take jurisdiction – again even though the defendant has not been served here.

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BUTKOVSKY V DONAHUE(1984) 52 BCLR 278 (SC)

FACTS: A car accident occurs in Oregon (lex loci deliciti) caused by the defendant’s negligence. Plaintiff is domiciled in BC and the defendant is domiciled in California. The car was insured by a BC company and the plaintiff brings action in BC. The plaintiff essentially asks the defendant to come up to BC to be served so they can access insurance. The defendant wilfully comes up and gets served. Obviously the insurance company does not like this very much.

ISSUE: Can the court take jurisdiction?

RESULTS: Yes.

REASONS: It seems clear on the authorities that at common law the plaintiff, having properly served the defendant within the jurisdictions, is prima facie entitled to continue the proceedings in this jurisdiction. After a court decides that they can take jurisdiction, the next step is to consider whether or not they should take jurisdiction or not through forum non conveniens. In this case, the plaintiff is in BC, the insurance company is in BC, and the defendant can easily come up to give testimony, so the BC court is not forum non conveniens.

CHARRON V LA BANQUE PROVINCIAL DU CANADA[1936] OWN 315 (H Ct J)

FACTS: The plaintiff is suing the bank in negligence. She was domiciled in Quebec, with the negligent bank office in Quebec. However, she later moves to Ontario and brings the action in Ontario. She serves the documents on the branch office in Ontario and the Bank contests the jurisdiction saying that the service isn’t good and that the bank is not resident in Ontario for the purposes of service.

ISSUE: Does the court have jurisdiction? Is there proper service?

RESULTS: Yes.

REASONS: Service to the branch constituted service to the bank. The defendant is within the borders of Ontario and the court did not view itself as a forum non conveniens.

KROETSCH V DOMNIK(1985) 60 AR 69 (QB)

RATIO: Service for an unregistered company can be affected on an agent or employee.

FACTS: Plaintiff is suing a company in Alberta for wrongful dismissal. The company is not registered in Alberta and claims that it doesn’t do business in Alberta. The employment contract was made in Toronto and the company only had an agent/manager in Alberta who solicited orders and sent them to Ontario. The plaintiff served the agent in his basement in Calgary.

ISSUE: Did this constitute good enough service?

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RESULTS: Yes. There was no other way to serve the corporation.

REASONS: While there are rules for how to serve a corporation, the defendant was doing business in Alberta but was not registered in Alberta. There are no rules for these types of companies, since the corporation was operating outside the ABCA and the court said that service on the agent was sufficient (it is perfectly alright for the plaintiff to get a little creative). The moral authority arises from the fact that since you are doing business in our backyard, we have jurisdiction over you. The court did not view itself as forum non conveniens because it would be equally hard for the plaintiff or defendant to relocate.

Courts are beginning to think that there are constitutional limitations to the personal service rule. The Alberta Law Reform Institute and the Canadian Uniform Law Conference have both taken the view that a real and substantial connection between the litigation and the jurisdiction is required for the court to take jurisdiction and therefore that mere service of the defendant within the territorial boundaries of the jurisdiction is not sufficient.

The Uniform Law Conference of Canada has recommended that a court should only be seen as having territorial competence where a) Consent or submission of the parties; b) Ordinary residence of the defendant; c) A real and substantial connection between the jurisdiction and the action.

THE UNIFORM JURISDICTION PROCEEDINGS AND TRANSFER ACTIn force in British Columbia, Saskatchewan, and Nova Scotia.

3.  A court has territorial competence in a proceeding that is brought against a person only if:   

(a)  that person is the plaintiff in another proceeding in the court to which the proceeding in question is a counterclaim;   (b)  during the course of the proceeding that person submits to the court’s jurisdiction;  (c)  there is an agreement between the plaintiff and that person to the effect that the court has jurisdiction in the proceeding;   (d)  that person is ordinarily resident in [enacting province or territory] at the time of the commencement of the proceeding; or   (e)  there is a real and substantial connection between [enacting province or territory] and the facts on which the proceeding against that person is based.   

SERVICE EX JURIS

Rule 11.25 of the Alberta Rules of Court says that a commencement document may be served outside of Alberta in Canada only if a real and substantial connection exists between Alberta and the facts on which a claim in the action is based.

As per Rule 11.25(3), there is a presumption of real and substantial connection for claims related to land in Alberta; for claims that relate to a contract performed or breached in Alberta; for claims that are governed by the law of Alberta; for claims relating to a tort committed in Alberta; for claims related to the enforcement of a security against property;

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for claims related to an injunction in which a person is to do or to refrain from doing something in Alberta; for claims where the defendant is resident in Alberta; for claims related to the administration of an estate and the deceased died while ordinarily resident in Alberta; for claims where the defendant is outside of Alberta, but is a proper party to an action brought against another person who was served in Alberta; for claims brought against a trustee where the trust assets include property in Alberta, the trustee is ordinarily resident in Alberta, or where the trust is governed by the law of Alberta.

Note that a judgment in Ontario found the presumption bolded above to be unconstitutional and has been repealed in Ontario, though the same presumption is still in the Alberta Rules of Court. Can you piggyback or not?

LIEU V NAZAREC2006 ABQB 421

FACTS: There is a car accident in Ontario with the plaintiff’s domiciled and resident in Alberta and the defendant driver from Ontario. The plaintiff brings an action in Alberta but needs a service ex juris order because the defendant is in Ontario.

ISSUE: Will the court grant an order ex jursis?

RESULTS: No. No real and substantial connection to Alberta.

REASONS: While there is a real connection of this case to Alberta, the most real and substantial connection is to Ontario. There are more connections to Ontario than there are to Alberta and the majority of possible third parties are also in Ontario. Have concluded therefore that Alberta should decline jurisdiction and allow the matter to proceed in Ontario. As I understand it, the Plaintiffs have also started a claim in Ontario. In my view that is the proper jurisdiction for this lawsuit. The court may have confused the question of whether the case fell under section 11.25 with the question of forum non conveniens.

VAN BREDA V VILLAGE RESORTS LTD2012 SCC 17

RATIO: Foreign companies that reside, conduct business or enter into agreements in a Canadian province will be subject to its jurisdiction, unless they can rebut the presumption of a real and substantial connection to the Canadian jurisdiction, or include exclusive forum or arbitration clauses in their contracts.

FACTS: In separate cases, two individuals were injured while on vacation outside of Canada. Actions were brought in Ontario against Club Resorts Ltd., a company incorporated in the Cayman Islands, that managed the two hotels where the accidents occurred. Club Resorts sought to block those proceedings, arguing that: The Ontario courts lacked jurisdiction because the company was not in any way connected to Ontario, and, in the alternative, a Cuban court would be a more appropriate forum on the basis of the doctrine of forum non conveniens.

ISSUE: The case concerned the elaboration of the real and substantial connection test as an appropriate common law conflicts rule for the assumption of jurisdiction.

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REASONS: The Supreme Court of Canada takes the view that the jurisdiction of the superior courts in the provinces is limited by constitutional constraints and that there is some constitutional principles related in some way to section 92 of the Constitution Act 1867. They don’t identify the constitutional provision explicitly, but it is probably section 92(14).

Jurisdiction must be established primarily on the basis of objective factors that connect the legal situation or the subject matter of the litigation with the forum. In a case concerning a tort, the following factors are presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute: the defendant is domiciled or resident in the province; the defendant carries on business in the province; the tort was committed in the province; and a contract connected with the dispute was made in the province. But what does this last factor even mean? This last factor was key to deciding jurisdiction in this case, but it was not discussed or analysed anywhere in the judgment. There is no explanation of why a contract connected with the dispute being made in the province should give the court moral authority over a defendant where neither plaintiff nor the defendant are privy to that contract. The Court does say that the list is not exhaustive.

A clear distinction must be drawn between the existence and the exercise of jurisdiction. Once jurisdiction is established, if the defendant does not raise further objections, the litigation proceeds before the court of the forum. The court cannot decline to exercise its jurisdiction unless the defendant invokes forum non conveniens. The decision to raise this doctrine rests with the parties, not with the court seized of the claim. If a defendant raises an issue of forum non conveniens, the burden is on him or her to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff. Ultimately, the decision falls within the reasoned discretion of the trial court. This exercise of discretion will be entitled to deference from higher courts, absent an error of law or a clear and serious error in the determination of relevant facts which takes place at an interlocutory or preliminary stage.

LAPOINTE ROSENSTEIN MARCHAND MELANÇON V CASSELS BROCK & BLACKWELL LLP2016 SCC 30

FACTS: The government bailed out General Motors of Canada during 2008 financial crisis. Part of the bail out required GM to shut down many dealerships so they entered into “Wind-Down” agreements. Proposed class action was commenced on behalf of the dealers against the law firm CCB LLP for allegedly failing to provide appropriate legal advice to the dealers in connection with the Wind-Down Agreements. CBB added law firms across Canada that provided independent legal advice to the dealers, as third-party defendants. Those firms challenged the jurisdiction of Ontario’s courts and denied that any real and substantial connection between the third-party claims and Ontario existed. CBB responded that the fourth presumptive connecting factor from Van Breda was engaged: contracts connected with the dispute (the Wind-Down Agreements) had been made in Ontario.

RESULT: The Wind-Down Agreements were enough to bring the third-party claims within the scope of the fourth presumptive connecting factor. Law firms from across Canada could thus be properly included in the Ontario class action.

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REASONS(Majority): The SCC wrote that “all that is required is a connection between the claim and

a contract that was made in the province where jurisdiction is sought to be assumed”. The SCC did not accept that the third-party law firms had to be parties to the contracts. Nor did they accept that the alleged liability had to flow from their contractual obligations. In their view, such restrictive glosses on the fourth presumptive connecting factor would “unduly narrow the scope of Van Breda” and undermine “the flexibility required in private international law”.

Where the contracting parties are located in different jurisdictions, the contract will be formed in the jurisdiction where the last essential act of contract formation, such as acceptance, took place. Here, the contracts were formed in Ontario. However, if we understand the decision of GM to go ahead with the Wind-Down Agreements to be acceptance, our general rules related to contract law says that acceptance is only at the time that acceptance is communicated. Acceptance must be communicated for an agreement ad idem to be made. A further complication is that there are many parties across Canada that need to be informed. There is no real analysis about these aspects. All of this really shows us that this 4th factor does not make much sense. In many ways, the place of contract formation does not create the kind of real and substantial connection that is required for the jurisdictional issue.

Then, the majority says that we can look to contextual factors to determine where the contract was made. The contract said that disputes are to be submitted to the Courts of Ontario. But should that really tell us where the contract is made? The contract is made where it is made. This is akin to a Colmenares analysis.

The majority of the SCC also did not think that Ontario was forum non conveniens in all of the circumstances.

REASONS(Minority): Justice Côté tries to theorise the 4th factor and the notion of connection of the

contract to the dispute. She says that the contract has to be connected to the dispute in the sense that the defendant’s liability in tort is derivative in their liability in contract. That is, the tort is springing from the contract. Maybe this is true, but we didn’t have enough information in Van Breda to make this kind of claim.

She says that the contract was not made in Ontario because there was no communication. The last essential act of communication was not completed in this case. Communication happened in Quebec instead of Ontario.

With respect to forum non conveniens, Côté says that if these claims were heard in Ontario, the lawyers and witnesses involved, who are all residents of Quebec, would all have to travel to testify, incurring significant costs. Furthermore, since Quebec law will govern the claims against the national law firms with offices in Quebec, additional costs would be incurred to provide an Ontario court with expertise on Quebec law.

GULEVICH V MILLER2014 ABQB 377

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FACTS: Patient had CT scans in Ontario, but nothing was diagnosed. Patient moved to Alberta where he was diagnosed with brain tumor. Action was commenced in Alberta claiming negligence. The plaintiff tries to argue Moran in that the damage (through surgery) occurred in Alberta. The chambers judge instead found that the tort was committed in Ontario at the moment she received negligent medical advice and so Ontario had jurisdiction.

ISSUE: Whether the requirements for service ex juris under the Alberta Rules of Court Rule 11.25 were met.

RESULT: The Plaintiffs failed to establish an arguable case that their cause of action was sufficiently connected to Alberta for the Court to assume jurisdiction. Accordingly, the Court lacked jurisdiction to entertain the Plaintiffs’ Action, and the Court set aside the service ex juris of the Statement of Claim pursuant to Rule 11.31(1)(a).

NOTE: This case was overturned, as above.

JURISDICTION BY SUBMISSION

Showing up and defending an action on the merits constitutes submission by conduct. That is, unless you show up and only argue jurisdiction, then you are recognising the jurisdiction of the Court.

The cases that deal with jurisdiction by submission arise in the context of enforcement of foreign judgments.

NOREX PETROLEUM LTD. V CHUBB INSURANCE CO. OF CANADA2008 ABQB 442

FACTS: Norex is incorporated in Cyprus but has an office in Calgary. They are having a dispute with another party in which the other party sent their thugs to break up some of Norex’s drilling equipment. Norex is now trying to collect on their insurance policy from Chubb Insurance. The Court found that there was no real and substantial connection, but the issue was whether Chubb Insurance submitted to their jurisdiction by filing a statement of defence.

ISSUE: Did Chubb Insurance attorn to the jurisdiction by filing a statement of defence? Should a Court that has jurisdiction by submission take jurisdiction, or should they rely on forum non conveniens?

RESULT: It is your conduct not your intention that is important. Hence, the court has jurisdiction notwithstanding that Chubb Insurance did not realise that filing a statement of defence operated as submission to the jurisdiction.

With respect to the juridical advantage of the Plaintiff, they bring in a whole bunch of evidence about how corrupt the Russian judges are. Hence, even though everything is happening in Russia, because the Russian courts are so corrupt, there is no way for the Plaintiff to get a proper judgment there.

This is pretty short sighted because you still have to take the judgment to Russia, who are probably not going to be very happy with being called corrupt. If they really wanted to help the Plaintiff, they probably shouldn’t talked about

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the corruption so much. As a matter of commity, are the Russian courts going to respect our courts when we express concern about the corruption about their courts?

HENRY V GEOPROSCO INTERNATIONAL[1976] QB 726 (Eng CA)

FACTS: The plaintiff sues in Alberta, gets a service ex juris and the defendant shows up in Alberta argues forum non conveniens, loses, and then disappears. The Alberta Court then renders a default judgment. The plaintiff is now taking that judgment to the England to try to have it enforced there. Again, the issue of enforceability is hinging on whether the forum court had jurisdiction. In this case, Alberta had jurisdicition if the defendant attorned to the jurisdiction.

RESULTS: The fact that they showed up at all was evidence of attornment.

NOTE: This is obviously a dumb rule, so it was overruled by Rule 11.31 of the Alberta Rules of Court which says that a defendant may apply to the Court to set aside the service of a commencement document only before the defendant files a statement of defence. An application made under this rule is not an acknowledgment by the defendant that the Court has jurisdiction with respect to a claim of which the application is filed.

ROGLASS CONSULTANTS V KENNEDY(1984) 65 BCLR 393 (CA)

FACTS: Plaintiff is in Ontario and brings action there. Defendant is in BC. A service ex juris is issued and the defendant sends a letter to the clerk of the court in Ontario saying that they intend to defend the action and attach a “statement of defence.” The defendant is a self-rep who doesn’t know what he is doing, so the statement of defence is rejected and default judgment is issued.

ISSUE: Did sending the letter that says he intended to defend the action operate as submission by conduct?

REASONS: The defendant has engaged the process of the court even though he did not file a statement of defence properly. Therefore, the plaintiff could register the Ontario judgment in British Columbia.

FULFORD V REID[1997] 1 WWR 112 (Man QB)

FACTS: Reid says a bunch of nasty things about Minister Fulford in the press. Fulford sues Reid in defamation in Ontario. Reid does not do anything in the Ontario court. He sends a letter to the Minister saying that they are not liable but includes a statement of defence. However, they do not file it in the courts. Fulford argues that they meant to file it and takes it to the Ontario court and files it “for him.” Reid does nothing, judgment is granted.

ISSUE: Did Reid attorn?

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RESULTS: No. He did not in any way to engage with the Ontario court. There was no attornment, so the judgment could not be enforced. They also reprimanded Fulford for what is obviously unethical practice.

ESDALE V BANK OF OTTAWA(1920) 51 DLR 485 (Alta SC (App Div))

FACTS: Plaintiff sues in Ontario, gets an order for service ex juris in Alberta. Default is judgment because there was no reply, but the defendant later makes an application to set aside the default judgment and to be given leave to defend. The Ontario court says yes, but first he must pay into Court the full amount of the default judgment. If it turns out you win, you get the money back, but if you lose then the judgment goes to the Plainitff. The defendant does nothing more.

ISSUE: Does the application for setting aside the default judgment and application for leave constitute attornment?

RESULT: Does not constitute attornment.

REASONS: It is only after the default judgment is entered is the defendant doing anything. They say you cannot have retroactive attornment. However, by asking for leave to defend is that not really submitting to the jurisdiction?

CATALYST RESEARCH V MEDTRONIC(1982) 131 DLR (3d) 767 (FCA)

FACTS: Plaintiff sues the defendant and gets a service ex juris. The defendant applies for a security for costs. That is, they want the Plaintiff to pay money into court in case the Plaintiff loses and costs are awarded against the Plaintiff. However, they also apply for an order setting aside the service ex juris. Hence, they are both engaging in the process, but also protesting the jurisdiction.

REASONS: The Court found that the defendant had attorned to the jurisdiction of the Court. You absolutely cannot do anything else besides protesting the jurisdiction unless you will have been taken to attorned.

BECKER V PEERS(1990) 106 AR 127 (QB)

FACTS: A piece of land is bought in Hawaii, comes back to Alberta and does not follow through with the transaction. The vendors sue them in Hawaii because he does not show up so they get default judgment which they try to register in Alberta.

REASONS: There was no jurisdiction because he did not attorn and there was no service … contract in relation to immovable property situated in Hawaii…so the Court made a mistake. Hawaii did have jurisdiction. It was not necessary to serve the defendant within the territorial jurisdiction or if the defendant attorned.

SUBMISSION BY AGREEMENT

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GYONYOR V SANJENKO[1971] 23 DLR (3d) 695 (Alta SC)

FACTS: Plaintiff is suing defendant, from Alberta, in Montana over an accident that happened in Montana. The defendant says that he is happy to come back to Montana to deal with the legal ramifications and give evidence. He goes back to Alberta, an order for service ex juris was granted in Montana and the defendant does not show up.

ISSUE: Did the defendant agree to the jurisdiction?

RESULT: No. This is not sufficient.

REASONS: You need to explicitly agree. You cannot infer that someone agrees to the jurisdiction without express words. Usually submission by agreement will be governed by a choice of forum clause in a contract.

NOTE: As per Toronto-Dominion Bank v Tymchak a clause in a contract that says a judgment will be binding is express enough for submission by agreement.

Z.I. POMPEY INDUSTRIE V ECU-LINE NV[2003] 1 SCR 450

FACTS: A contract that is for the transportation of some equipment that is to go from Belgium to Seattle. It had to go by sea because that would cause least trauma to the equipment. An agreement says that the choice of forum will be the Belgium courts and that the Belgium courts are the only courts that can hear legal matters. In Montreal, the equipment was transferred to train and everything was damaged on its was to Seattle. The plaintiff wants to sue in the Federal Courts of Canada, and the defendants want the exclusive choice of forum clause to be upheld.

ISSUE: Are courts always going to defer to the wishes of parties on the question of jurisdiction?

RESULT: An exclusive choice of forum clause ought to be enforced unless the defendant can show strong cause why they should not enforce the choice of forum clause.

REASONS: The Prothonotary says that the decision to put the equipment on the train was a fundamental breach of the contract. Therefore, the entire contract was overridden and so the choice of forum clause was no longer to be relied on by the defendants.

At the Supreme Court of Canada, the court says that the strong cause test was the appropriate standard for deciding whether a court should take jurisdiction over a contract dispute in spite of an exclusive choice of forum clause in favour of another jurisdiction.

In this case there was not a strong cause to refuse a stay of proceedings and let the exclusive choice of forum clause apply.

DOUEZ V FACEBOOK INC

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2015 BCCA 279

FACTS: A woman in British Columbia gets a Facebook page which requires you clicking a box saying you agree to the terms of use. In these terms, there is an exclusive choice of forum clause that says issues are to be dealt with in the California courts. She argues that the BC privacy law is breached because sometimes people’s names will be attached to advertisements. However, the Privacy Act says that any action must be heard by the BC Supreme Court. Hence, we have a statutory tort with an exclusive forum provision.

ISSUE: Can the plaintiff show strong cause such that she can bring the action in the BC court rather than brining it under the California courts as per the Terms of Use? On what basis could the BC court take jurisdiction if they refuse to enforce the exclusive choice of forum clause?

REASONS: The lower court decided that the California Court did not have jurisdiction over the claim under the BC Privacy Act because of s. 4. They were of the view that in essence section 4 overrides the exclusive choice of forum clause. The plaintiff ought to have problematized whether or not the exclusive choice of forum applied to this particular tort.

The Court of Appeal had a different interpretation. They interpreted section 4 as meaning that if the action is brought in BC that the Supreme Court and not any lower court or tribunal must hear the action. That is, this is a section 96 Constitution Act issue. This means that you must turn to a strong cause test. Only after the strong test is applied can you turn to section 11(1) of the Court Jurisdiction Proceeding and Transfer Act which is essentially a codification of the forum non conveniens analysis. However, in this case, the plaintiff failed to show strong cause.

The plaintiff would have to show that the violation of privacy tort was committed in BC (i.e. her friends who live in BC are the one’s seeing her name attached to advertisements), and on the basis of that thinking, that is how the BC law will apply.

FORUM NON CONVENIENS

This is a situation where a court has decided that they jurisdiction through either real or substantial connection, agreement, or submission, but now the court must decide whether or not they should take jurisdiction.

AMCHEM PRODUCTS INC V BRITISH COLUMBIA (WCB)[1993] 1 SCR 897

FACTS: An action is brought by plaintiffs in Texas. They are 194 people who were harmed by asbestos. The WCB paid out, and the WCB wants to be reimbursed by the negligent company that caused the asbestos. They bring the action in Texas because the materials were manufactured in Texas (Van Breda issue here), but also because the company is located in Texas. Further, Texas court is going to give higher damages, Texas law will probably be more favourable, and there won’t be an issue in judgment enforcement. The Texas company are trying to stop the plaintiffs from suing in Texas by an anti-suit injunction.

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REASONS: The anti-suit injunction is an extraordinary remedy because you are essentially telling a foreign court that they have to prevent people in their jurisdiction from suing us in our jurisdiction. The plaintiffs argue that there are significant connections to Texas, so they should be allowed to sue there. The defendant company says that there are more connections in British Columbia and the Texas connections were incidental.

The Supreme Court of Canada says that you can grant an anti-suit injunction where the foreign court took jurisdiction that is inconsistent with our idea of forum non conveniens and an injustice will result. The defendant says we win because Texas did not apply a forum non conveniens analysis, but the SCC says you don’t have to actually call it forum non conveniens. You just have to look at what the foreign court did and compare that to how we do things.

In this case, the American approach under the 14th Amendment is much more rigorous and they are less likely to take jurisdiction. Hence, there is a different framework, but it militates against finding convenient jurisdiction.

Therefore, the Texas court took jurisdiction in a way that is analogous with our forum non conveniens analysis and no injustice will result so no anti-suit injunction will be granted.

BANRO CORP V EDITIONS ECOSOCIETE INC2012 SCC 18

FACTS: A Corporation in Ontario brought action against an author who wrote a book they claim is libellous to the company. The publisher is a corporation based in Quebec and most of the books are distributed in Quebec with only a few in Ontario. The plaintiff’s sue in Ontario, however, because the law there related to defamation offers more protection than Quebec. Trial judge ruled that Ontario had jurisdiction because there was a real and substantive connection between the forum and the action.

ISSUE: As before, jurisdiction was found because publication took place there, but should the Ontario courts take jurisdiction, or are they forum non conveniens?

RESULT: Ontario is forum non conveniens.

REASONS: The trial judge held that the defendants had not satisfied their onus of proving that Quebec was clearly a more appropriate forum.

The Supreme Court of Canada took the view that once the court has decided that it has a real and substantial connection upon which to take jurisdiction that it is the defendant who has the onus of proving forum non conveniens that there is a clearly more appropriate forum elsewhere.

Under forum non conveniens the defendant’s first argument here was that the action in Ontario burdened the defendant with excessive expense: that the cost of proceedings were disproportionate to the amount that would be recovered in Ontario given the small extent of publication in Ontario. The Court says that there was significant damage to reputation in Ontario and it does not matter that most books are being sold in Quebec.

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The defendant’s second argument was that there were parallel proceedings in Quebec and that it would be more appropriate in the interests of justice to consolidate the two actions as they relate to the same evidence and same allegations. The Court said that the claims were related to different defamatory statements, so there was no replication of the litigation, and so the differences in any outcome would be as a result of the different claims.

The third argument was that the dispute is governed by Quebec law. That is, they argued the centre of gravity of the tort was Quebec, but as discussed before, the tort takes place where there is publication and not where there is most publication.

The last argument was that Ontario should be seen as forum non conveniens because to try the case in Ontario would deprive the defendant of a legitimate juridical advantage. This was because of the Quebec Anti-SLAPP provisions where SLAPP stands for “Strategic Lawsuit Against Public Participation.”

NOTE: Recall that the Uniform Court Jurisdiction Proceedings and Transfer Act (which has not been enacted in Alberta) sets out factors the court should consider in deciding forum non conveniens. These factors include comparative convenience and expense, the law to be applied, the avoidance of multiplicity of proceedings, the desirability of avoiding conflicting decision, the enforcement of an eventual judgment, and the fair working of the Canadian legal system as a whole.

BLACK V BREEDEN2012 SCC 19

FACTS: Conrad Black is involved in dirty dealings for which he eventually ends up in jail in the United States. The company that Black used to be part of is suing him for a number of the illegal things he did. The actual substance of the allegations in the defamation case if based on what is being pleaded by the company who is suing Black.

ISSUE: Did the court have jurisdiction as a matter of law? Is the court forum non conveniens?

RESULT: The Court found that they were forum conveniens.

REASONS: There is a much more stringent defamation test in the United States that comes out of the seminal case of New York Times Co v Sullivan. Hence, there was a juridical advantage to sue in Canada since they did not have to prove the elements from the Sullivan case.

Considering convenience, Illinois is favoured because most of the evidence is located there, and Black cannot even come to Canada because he is in jail and no longer has Canadian citizenship. Hence, the balance of convenience favours Illinois.

With respect to the difficulty of applying a foreign law, the Court says there is no problem, because based on the reasoning of Banro, the tort was committed in Ontario, so Ontario law applies. But, it would not be the case that an Illinois court would apply Ontario law.

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For avoidance of multiple proceedings, Black had undertaken not to bring proceedings anywhere else, and only brought an action in Ontario.

Finally, with respect to the enforceability of the judgment elsewhere, the judgment will only be enforceable against only one of the 10 defendants. Because of this, the Illinois court might be more appropriate.

However, with respect to fairness to the parties, the importance of permitting a plaintiff to sue for defamation in the locality where he enjoys his reputation has long been recognized in Canadian defamation law. Given the importance of his reputation in Ontario, this factor weighs heavily in favour of Lord Black.

CHAPTER 10: ENFORCEMENT OF FOREIGN JUDGMENTSCOMMON LAW

If there is a real and substantial connection between the parties and the forum court, then our courts will enforce a judgment granted by that foreign court. That is, if the foreign court had moral authority over the matter, then we will enforce their judgment. We defer to you, we will get behind you, because we think you had the jurisdiction to hear this matter.

MORGUARD INVESTMENTS LTD V DE SAVOYE[1990] 3 SCR 1077

FACTS: The defendant defaults on a mortgage after he absconds to British Columbia. Default judgment is granted in Alberta when the defendant does not show up despite being served ex juris. However, this judgment had to do with property situated in Alberta.

ISSUE: Can the judgment be enforced in British Columbia notwithstanding this is an issue related to immovable property situated in another jurisdiction?

RESULT: Where there is a real and substantial connection with the foreign court and the parties, enforcement will be allowed.

REASONS: The Supreme Court said this 19th century kind of thinking about attornment and service ex juris is not serving the community. There must be some reformation. We must continue with the trend started in Indycka. Where a foreign court clearly had jurisdiction and there was a real and substantial connection, then a forum court should defer to the judgment of the foreign court and enforce that judgment.

NOTE: This case led to a question about whether or not this case had application in an international context as opposed to just an interprovincial context. This issue was dealt with in the case of Beals v Saldanha.

BEALS V SALDANHA2003 SCC 72

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FACTS: Ontario parties bought a piece of land in Florida. There is some mixed up about the properties and they end up purchasing the wrong piece of property, and they start building on the wrong property. They bring an action in Florida related to the negligence in the mix-up. The Ontario defendants do not show up to Florida when they are served with the claim. In Florida, there must be a sort of ex parte trial to prove damages notwithstanding the defendant did not show up (i.e. there is no right to default judgment). Judgment is then granted in Florida with post-judgment interest. By the time the Plaintiffs are trying to enforce the judgment in Ontario, the interest is several hundreds of thousands of dollars.

ISSUE: Does the logic in Moguard also apply in the international context?

RESULT: The case of Morguard also applies internationally. That is, if an international foreign court had a real and substantial connection to the action, our courts will take jurisdiction.

REASONS: There is a real and substantial connection to Florida, and hence it is enforceable in Ontario.

NOTE: This case also deals with defences to enforcement of a foreign judgment. The first defence discussed is related to fraud. Recall the case of Powell v Cockburn which says that fraud in a divorce case will only be considered when it is fraud to jurisdiction (instrinsic fraud). This is a violation of res judicata and comity.

In this case, the defendants argue that the damages were not proper. However, they had opportunity to defend themselves if they showed up. Further, the Florida court went through a trial of the quantum which would not have been done in a Canadian court since only a default judgment would have been issued.

The next argument was that the conscious of Canadians would be shocked if a foreign Court can just ordered a judgment and come to Canada and get the judgment enforced. But you cannot argue public policy where you are so manifestly the result of the wrongdoing.

Finally, they said that enforcement of the judgment would be to violate section 7 of the Charter of Rights and Freedoms in that they would be deprived of life, liberty, and freedom because they would go bankrupt. The Court says that bankruptcy happens all the time, but even if it is a violation, it is in accordance with the principles of fundamental justice (i.e. upheld under section 1).

CHEVRON CORP V YAIGUAJE2015 SCC 42

FACTS: Chevron was extracting oil in Ecuador and doing a lot of environmental damage. The Ecuadorians try to avoid problems of enforcement by suing in New York on the basis of the defendant’s presence in the jurisdiction, but the New York, based on their more rigorous 14th amendment due process test, that they are forum non conveniens. The Ecuadorian court had moral authority over the matter instead, and a judgment was issued there for about 9.4 billion

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(!) dollars. Chevron tries to argue an intrinsic fraud defence in the United States when an enforceability proceeding is brought in the United States. However, they also try to get enforcement in Canada. Chevron argues that in order for the Canadian court to have jurisdiction to hear the enforcement application, there must be a real and substantial connection between the Canadian court and the litigation.

ISSUE: Is it necessary that the Canadian court must have a real and substantial connection to the litigation to grant and enforcement of a foreign judgment application? Do they at least need assets in Canada?

RESULT: The Supreme Court of Canada says that you are only enforcing an existing obligation from a foreign court that had a real and substantial connection, so there is no need for another real and substantial connection for enforceability competence. The court’s concern in cases of enforcement is with the moral authority of the foreign court over the primary litigation. The court therefore needs only to decide whether there was a real and substantial connection between the foreign court and the subject matter of the litigation.

The SCC held that the defendant Chevron did not need to have assets in Ontario for the Ontario Court to have jurisdiction over the plaintiff’s action on the judgment. You decide the enforcement on the principled basis, and not on whether the defendant has assets in the jurisdiction.

NOTE: In Ontario, their rule for service ex juris, is that you can serve whoever ex juris if you have a judgment from a foreign court. This is a bit more complicated in Alberta, because Rule 11.25 says that you can get an ex juris service order when there is a real and substantial connection, but there is no explicit allowance based on a foreign judgment.

STATUTE

RECIPROCAL ENFORCEMENT OF JUDGMENTS ACTRSA 2000 c R-6

When a judgment has been given in a court in a reciprocating jurisdiction, (see regulations) the judgment creditor may apply to the Court of Queen’s Bench within 6 years after the date of the judgment to have the judgment registered in the Court, and on the application the Court may order the judgment to be registered accordingly.

An order for registration under this Act may be made ex parte  in any case in which the judgment debtor(a) was personally served with process in the original action, or (b) though not personally served, appeared or defended, or attorned or otherwise submitted to the jurisdiction of the original court, and in which, under the law of the country of the original court, the time within which an appeal may be made against the judgment has expired and no appeal is pending or an appeal has been made and has been dismissed.

No order for registration shall be made if it is shown by the judgment debtor to the Court that

(a) the original court acted either(i) without jurisdiction under the conflict of laws rules of the Court, (this means our

Court of Queen’s Bench) or

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(ii)without authority under the law of the original court to adjudicate concerning the cause of action or subject matter that resulted in the alleged judgment or concerning the person of the alleged judgment debtor, or without that jurisdiction and without that authority,

(b) the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit during the proceedings to the jurisdiction of that court,

(c) the judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court and did not appear notwithstanding that the judgment debtor was ordinarily resident or was carrying on business within the jurisdiction of that court or agreed to submit to the jurisdiction of that court.

(d) the judgment was obtained by fraud,(e) an appeal is pending or the time within which an appeal may be taken has not

expired,(f) the judgment was in respect of a cause of action that for reasons of public policy or

for some similar reason would not have been entertained by the Court, or(g) the judgment debtor would have a good defence if an action were brought on the

original judgment.  

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