LAW 363 | Conflict of Lawsfinal outline | 2014-2015

John Bullock

TABLE OF CONTENTS

Introduction.........................................................................................................................................8Jurisdiction.................................................................................................................................................................................... 8Choice of Law................................................................................................................................................................................ 8Recognition and Enforcement of Decisions of Extra-Territorial Courts............................................................8Areas of Law Present Particular Dimensions.................................................................................................................8Common Law/Civil Law..........................................................................................................................................................9

Theory.................................................................................................................................................9Intellectual History.................................................................................................................................................................... 9Territoriality................................................................................................................................................................................. 9Comity.............................................................................................................................................................................................. 9Theories.......................................................................................................................................................................................... 9

“Vested Rights” – “Foreign Created Rights”.................................................................................................................... 9“Local Law Theory”................................................................................................................................................................. 10“Governmental Interest Analysis”..................................................................................................................................... 10

“Most Closely Connected” Proper Law (Hague Conference, 1984)............................................................................10“Principles of Restraint” on Local Law to Further Intl. Goals........................................................................................10

Conflicts and the Constitution............................................................................................................11Common Law Basis/Civil Code (Quebec)......................................................................................................................11S. 129, Constitution Act, 1867..............................................................................................................................................11S. 92, Constitution Act, 1867, Provincial Jurisdiction................................................................................................11

The King v. National Trust Co., [1933] SCR 670.................................................................................................................. 11Churchill Falls (Labrador) Corp. Ltd. v. AG of Newfoundland, (1984), 8 DLR (4th) 1 (SCC).............................11Morguard Investments Ltd. v. De Savoye (1990), 76 DLR (4th) 256 (SCC)...............................................................12Hunt v. T&N Plc (1993), 109 DLR (4th) 16 (SCC)................................................................................................................. 14Tolofson v. Jensen (1994), 120 DLR (4th) 289 (SCC).......................................................................................................... 14British Columbia v. Imperial Tobacco Canada, Ltd. [2005] 2 SCR 473.....................................................................15

Introductory Commentary on Class Actions and s. 92(13)....................................................................................15

Public Policy, Public Law Claims..........................................................................................................15General.......................................................................................................................................................................................... 15

United States v. Ivey (1995), 26 OR 533; 130 DLR (4th)................................................................................................... 16Attorney General of New Zealand v. Ortiz, [1984] AC 1(House of Lords)................................................................16

Public Policy............................................................................................................................................................................... 17Natural Justice.......................................................................................................................................................................... 17Fraud............................................................................................................................................................................................. 17Public Policy............................................................................................................................................................................... 17

Boardwalk Regency Corp. v. Maalouf, [1992] OJ No 26................................................................................................... 18Kuwait Airlines Corp. v. Iraqi Airways Co. [2002] 2 AC 883 (HL)................................................................................18Old North State Brewing Co. v. Newlands Services Inc., [1999] 4 WWR 573 (BCCA).........................................18Society of Lloyd’s v. Meinzer (2001), 55 OR (3d) 688 (CA).............................................................................................19

Mandatory Rule.................................................................................................................................................................................19Agro Co. of Canada Ltd. v. The "Regal Scout" (1983), 148 D.L.R. (3d) 412 (F.C.T.D.).........................................19Avenue Properties Ltd. v. First City Development Corp. (1986), 32 DLR (4th) 40 (BCCA)...............................19Gillespie Management Corp. v. Terrace Properties (1989), 39 BCLR (2d) 337.....................................................20Beals v. Saldanha [2003] 3 SCR 416......................................................................................................................................... 20Pro Swing Inc. v. Elta Golf Inc. [2006] 2 SCR 612............................................................................................................... 20

Penal Laws.................................................................................................................................................................................. 21Huntington v. Attrill, [1893] AC 150 (PC) (Ont.)................................................................................................................. 21

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Tax Laws...................................................................................................................................................................................... 21General......................................................................................................................................................................................... 21

United States of America v. Harden, [1963] SCR 366....................................................................................................... 22Ivey, supra............................................................................................................................................................................................ 22

Indirect Enforcement............................................................................................................................................................. 22Stringam v. Dubois (1992), 135 Alta. R. 64 (CA)................................................................................................................. 22

Characterization...................................................................................................................................................................... 23Re Sefel Geophysical Ltd. [1989] 1 WWR 251 (Alta. QB).................................................................................................23Re Matol Botanical International Ltd. [2001] RJQ 2333 (CS).......................................................................................23

Other Public Laws.................................................................................................................................................................... 24

Domicile and Residence.....................................................................................................................24General.......................................................................................................................................................................................... 24Domicile....................................................................................................................................................................................... 24

Domicile of Choice................................................................................................................................................................... 25Agulian & Anr v. Gyganik [2006] EWCA Civ. 129................................................................................................................ 26Re Urquhart Estate (1990), 74 OR (2d) 42 (HC) aff’d (1991), 3 OR (3d) 699 (Div. Ct.).....................................26Gillespie v. Grant (1992), 4 Alta. LR (3d) 122 (Surr. Ct.).................................................................................................27Foote Estate (Re), 2011 ABCA 1 (not assigned, but discussed)....................................................................................27

Residence.....................................................................................................................................................................................28Habitual Residence................................................................................................................................................................. 28

Adderson v. Adderson (1987), 36 DLR (4th) 631 (Alta. CA)............................................................................................28Ordinary Residence................................................................................................................................................................. 29

Quigley v. Willmore (2008), 264 NSR (2d) 293 (CA)......................................................................................................... 29Residence..................................................................................................................................................................................... 29

Canada v. Wall (2005), 271 FTR 146....................................................................................................................................... 30Haig v. Canada, [1993] SCR 995................................................................................................................................................ 30

Summary..................................................................................................................................................................................... 31Statutory Modification.......................................................................................................................................................... 31

National Trust Company Ltd. v. Ebro Immigration and Power Company Ltd., [1954] OR 463 (HC)...........32

Parties to an Action (“Standing to Sue”).............................................................................................33A “Juristic Entity”..................................................................................................................................................................... 33

Business Corporation Act, SBC 2002, c. 57, ss. 375 and 378..........................................................................................33Success International Inc. v. Environmental Export International of Canada Inc. (1995), 123 DLR (4 th) 147 (Ont. GD)..................................................................................................................................................................................... 34Bumper Development Corp. Ltd. v. Commissioner of Police of the Metropolis, [1991] 4 All ER 638 (CA). 35International Association of Science and Technology for Development v. Hamza (1995), 28 Alta. LR 125 (CA)......................................................................................................................................................................................................... 35Re Indian Residential Schools, [2001] AJ No. 1127............................................................................................................ 36

Assumption of Jurisdiction: The Existence of Jurisdiction or Jurisdiction Simpliciter............................36Parties Within the Jurisdiction...........................................................................................................................................36

Maharanee of Baroda v. Wildenstein, [1972] 2 All ER 689 (CA)..................................................................................36Locating a Corporation......................................................................................................................................................... 37

Parties Outside the Jurisdiction.........................................................................................................................................37Constitutional Issues.............................................................................................................................................................. 37

Morguard Investments Ltd. v. De Savoye (1990), 76 DLR (4th) 256 (SCC)...............................................................37Constitutional Issues in Morguard............................................................................................................................................38Post-Morguard Gaps........................................................................................................................................................................38

Procedural Enactments (for ex juris service).............................................................................................................. 38Court Jurisdiction and Proceedings Transfer Act, SBC 2003, c. 28, ss. 2,3...............................................................38Moran v. Pyle National (Canada) Ltd. (1973), 43 DLR (3d) 239 (SCC)....................................................................40Breeden v. Black, 2012 SCC 19; Les Editions Ecosociete Inc. v. Banro Corp., 2012 SCC 18...............................40

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Teja v. Rai (2002), 209 DLR (4th) 148 (BCCA)...................................................................................................................... 41Muscutt v. Courcelles (2002), 213 DLR (4th) (Ont. CA)..................................................................................................... 41Stanway v. Wyeth Pharmaceuticals Inc. 2009 BCCA 592...............................................................................................42Club Resorts Ltd. v. Van Breda 2012 SCC 17......................................................................................................................... 42Laxton v. Anstalt 2011 BCCA 212.............................................................................................................................................. 43Josephson v. Balfour Rec. Commission 2010 BCSC 603.................................................................................................... 44Dembroski v. Rhainds 2011 BCCA 185.................................................................................................................................... 44Aleong v. Aleong (2013), 55 BCLR (5th) 364.......................................................................................................................... 45Supreme Court Civil Rules, Rule 21-8 – Jurisdictional Disputes...................................................................................46Spar Aerospace Ltd. v. American Mobile Satellite Corp. (2002), 220 DLR (4th) 54 (SCC).................................47AG Armeno Mines and Minerals Inc. v. PT Pukuafu Indah (2000), 77 BCLR (3d) 1.............................................47MTU Maintenance Canada Ltd. v. Kuehne & Nagel International Ltd. 2007 BCCA 552....................................48Right Business Ltd. v. Affluent Public Ltd. (2012), 37 BCLR (5th) 101 (BCCA).......................................................48Environmental Packaging Technologies Ltd. v. Rudjuk, (2012) 36 BCLR (5th) 103 BCCA................................49Harrington v. Dow Corning Corp. (2000), 193 DLR (4th) 67 (BCCA)..........................................................................49Ward v. Canada 2007 MBCA 123.............................................................................................................................................. 50Muzak Corporation v. Composers, Authors & Publishers Association of Canada Ltd., [1953] 2 SCR 182. .50

Forum Non Conveniens: Discretion to Decline Jurisdiction..................................................................50English Position in Transition............................................................................................................................................51

Spiliada Maritime Corp. v. Cansulex Ltd., [1987] AC 460 (HL).....................................................................................51Société Nationale Industrielle Aérospatiale v. Lee Kui Jak, [1987] 3 WLR 59 (PC).............................................52

Modern Canadian Position...................................................................................................................................................53Court Jurisdiction and Proceedings Transfer Act, SBC 2003 c. 28, s. 11...................................................................53Amchem Products Inc. v. British Columbia (WCB) (1993), 102 DLR (4th) 96 SCC................................................54Wenngatz v. 371431 Alberta Ltd., 2013 BCCA 225........................................................................................................... 55Bushell v. T&N Plc (1992), 67 BCLR (2d) 330 (CA)............................................................................................................ 56Westec Aerospace Inc. v. Raytheon Aircraft Co. (1999), 173 DLR (4th) 498 (BCCA)............................................56

Parallel Proceedings............................................................................................................................................................... 57Wang v. Sun (2014), 60 BCLR (5th) 420.................................................................................................................................. 57Laxton v. Anstalt 2011 BCCA 212.............................................................................................................................................. 58Teck Cominco Metals Ltd. v. Lloyds Underwriters, 2009 SCC 11, 303 DLR (4th) 385...........................................58

Class Actions.............................................................................................................................................................................. 59Canada Post Corporation v. Lepine 2009 SCC 16............................................................................................................... 59

The Recent English Position................................................................................................................................................60Airbus Industrie GIE v. Patel, [1999] 1 AC 119 (HL)......................................................................................................... 60

U.S. Position................................................................................................................................................................................ 61Oakley v. Barry (1998), 158 DLR (4th) 679 (NSCA)............................................................................................................ 61

Anti-Suit Injunctions: Restraint of Foreign Proceedings......................................................................62The English Position............................................................................................................................................................... 62

Société Nationale, supra................................................................................................................................................................ 62Airbus, supra...................................................................................................................................................................................... 62

The Canadian Position........................................................................................................................................................... 62Amchem Products Inc. v. British Columbia (WCB), supra...............................................................................................62Hudon v. Geos Language Corp. (1997), 34 OR (3d) 14..................................................................................................... 63

Jurisdiction Selecting Clauses.............................................................................................................63Overview......................................................................................................................................................................................63Exclusive Jurisdiction Clauses............................................................................................................................................64

Z.I. Pompey Industries v. Ecu-ine N.V. 2003 SCC 27........................................................................................................... 64Preymann v. Ayus Technology Corp. (2012), 12 BCLR (5th) 391 (BCCA)..................................................................64

Non-Exclusive “Agreement to Attorn” Clauses...........................................................................................................65Old North State Brewing (BCCA)............................................................................................................................................... 65

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Overview...........................................................................................................................................66

In Rem Judgments..............................................................................................................................66

Personal Status Judgments.................................................................................................................67

In Personam Judgments.....................................................................................................................67Pecuniary/Monetary.............................................................................................................................................................. 67Non-Pecuniary/Non-Monetary..........................................................................................................................................68

At Common Law – Pre Morguard..................................................................................................................................... 68“Final and Conclusive”....................................................................................................................................................................68

Nouvion v. Freeman, 15 App. Cas. 1 (HL)............................................................................................................................... 68NEC Corp. v. Steintron International Electronics Ltd. (1985), 5 CPC (2d) 187 (Ont. HC).................................69

“Jurisdiction of the Foreign Court in an International Sense”.......................................................................................69Forbes v. Simmons (1914), 20 DLR 100 (Alta. SC)............................................................................................................. 69Re Carrick Estates Ltd. (1987), 43 DLR (4th) (Sask. CA)..................................................................................................69First National Bank of Houston v. Houston E & C Inc., [1900] 5 WWR 719 (BCCA)............................................69Clinton v. Ford (1982), 137 DLR (3d) 281 (Ont. CA)......................................................................................................... 70Henry v. Geoprosco International Ltd., [1976] 1 QB 726 (CA)......................................................................................70Wang v. Sun (2014), 60 BCLR (5th) 420.................................................................................................................................. 70

The Morguard Rule................................................................................................................................................................. 70Extension of Morguard to Foreign Judgments............................................................................................................ 71

Beals v. Saldanha, supra................................................................................................................................................................ 71Issues of Multinational Companies and Canadian Subsidiaries..........................................................................72

Yaiguaje v. Chevron Corporation, 2013 ONCA 758 (under appeal to SCC).............................................................72Post Beals Developments re: In Personam Non-Monetary Judgments.............................................................72

Pro Swing Inc. v. Elta Golf Inc., supra...................................................................................................................................... 72Common Law “Defences” to Enforcement of Foreign Judgments.......................................................................73

Braintech Inc. v. Kostiuk (1999), 171 DLR (4th) 46 (BCCA)..........................................................................................73Canada Post Corp. v. Lepine, supra........................................................................................................................................... 74Antim Capital Inc. v. Appliance Recycling Centers of America, 2014 ONCA 62.....................................................74

Legislation providing for Reciprocal Enforcement of Judgments.......................................................................75Central Guaranty Trust Co. v. Deluca, [1995] NWTR 200 (SC).....................................................................................75Re Carrick Estates Ltd. and Young (1987), 43 DLR (4th) 161 (Sask CA)...................................................................75Owen v. Rocketinfo, Inc., 2008 BCCA 502............................................................................................................................... 75Hunt v. T&N Plc, [1993] 4 SCR 289; 109 DLR (4th) 16 (SCC)..........................................................................................76Nystrom v. Tarnava, (1996) 44 Alta. LR (3d) 355 QB...................................................................................................... 76

Choice of Law Methodology...............................................................................................................77Practical Function of Choice of law:.................................................................................................................................77Choice of Law as an Expression of Theories in Private intl. Law........................................................................77The Standard Approach........................................................................................................................................................ 78

Components of the Rule........................................................................................................................................................ 78Multilateral or Unilateral Choice of Law Rules....................................................................................................................78Rules of Alternative Reference:..................................................................................................................................................78Ambiguities in the Application of a Choice of Law Rule..................................................................................................78

Neilson v. Overseas Projects Corp, 2005 (Australia)......................................................................................................... 79The Process................................................................................................................................................................................. 79

Invoking and Determining Foreign Law...............................................................................................80Applicability of Foreign Law...............................................................................................................................................80

Fact or Law................................................................................................................................................................................ 80Effect of Omission to Plead or Prove Foreign Law....................................................................................................81

Old North State Brewing Co. v. Newlands Services Inc.................................................................................................... 81Fernandez v. The Ship “Mercury Bell” (1986), 3 FC 454 (FCA).....................................................................................81

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Pleading and Proving Foreign Law..................................................................................................................................82Bumper Development Corp. Ltd. v. Commissioner of Police of the Metropolis [1991] 1 WLR 1362 (CA). .82

Canadian Issues........................................................................................................................................................................ 83Hunt v. T&N Plc, [1993] 4 SCR 289........................................................................................................................................... 83Pettkus v. Becker [1980] 2 SCR 838.......................................................................................................................................... 83Nystrom v. Tarnava, supra........................................................................................................................................................... 84

Law of Procedure...............................................................................................................................84Substance/Procedure Distinction....................................................................................................................................84

Procedure.................................................................................................................................................................................... 84Substantive................................................................................................................................................................................. 84Mandatory Rule by Legislation of the Location..........................................................................................................85

Tolofson v. Jensen, [1994] 3 SCR 1022..................................................................................................................................... 85Somers v. Fournier (2002), 60 OR (3d) 225 (CA)................................................................................................................ 86

Remedies..................................................................................................................................................................................... 86Wong v. Wei, 1999 BCSC 6635.................................................................................................................................................... 86

Parties........................................................................................................................................................................................... 87International Assn. of Science and Technology for Development v. Hamza (1995), 28 Alta. LR (3d) 125 (CA)......................................................................................................................................................................................................... 87

Evidence....................................................................................................................................................................................... 87Ed Millar Sales & Rentals Ltd. v. Caterpillar Tractor Co. (1988), 90 Alta. R. 323 (CA)......................................87

General/Historical..............................................................................................................................89The Rule in Phillips v. Eyre (“Double Accountability”).............................................................................................89

Phillips v. Eyre (1870), LR 6 QB 1 (Ex. Ct.)............................................................................................................................. 89Machado v. Fontes, [1987] 2 QB 231........................................................................................................................................ 89McLean v. Pettigrew, [1945] DLR 65 (SCC)........................................................................................................................... 89Chaplin v. Boys, [1971] AC 356 (HL)........................................................................................................................................ 90

Post-Chaplin v. Boys................................................................................................................................................................ 90Trends in the United States.................................................................................................................................................90

Babcock v. Jackson, 191 NE 2d (NY Ct. Apps. 1963).......................................................................................................... 90Schultz v. Boy Scouts of America Inc., 480 NE 2d 679 (NY Ct. Apps. 1985).............................................................91Gilbert v. Seton Hall University, 332 F. 3d 105 (2d Cir. 2003).......................................................................................91

The Current Position – Canada...........................................................................................................91A New Direction........................................................................................................................................................................91

Tolofson v. Jensen, [1994] 3 SCR 1022..................................................................................................................................... 92Somers v. Fournier, supra............................................................................................................................................................. 92Josephson v. Balfour Rec. Commission, 2010 BCSC 603................................................................................................... 93

Concurrent Tort and Contract............................................................................................................................................93Herman v. Alberta (Public Trustee), [2002] A.J. No. 308 (QB)......................................................................................93

Particular Torts..................................................................................................................................94Defamation..................................................................................................................................................................................94

Waterhouse Case, Australia (not assigned, but discussed)............................................................................................94Dow Jones (not assigned, but discussed)................................................................................................................................ 95Crookes v. Wikimedia, 2011 SCC 47.......................................................................................................................................... 95

Conversion and Breach of Trust........................................................................................................................................95Laxton v. Anstalt 2011 BCCA 212.............................................................................................................................................. 95

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Introduction.......................................................................................................................................96Contracts Subject to Uniform Rules.................................................................................................................................96Arbitration.................................................................................................................................................................................. 96Historical Approach................................................................................................................................................................ 96

The Proper Law..................................................................................................................................96Mandatory Rule of the Forum that Must Be Followed.............................................................................................96No Mandatory Rule................................................................................................................................................................. 97

Express Agreement by the Parties.................................................................................................................................... 97Vita Food Products Inc. v. Unus Shipping Co., [1939] AC 277 (PC).............................................................................97The Torni Ship Case (1932) (not assigned, but discussed).............................................................................................97Re Pope & Talbot Ltd., 2009 BCSC 1552................................................................................................................................. 98

No Agreement by the Parties: Implied............................................................................................................................ 98Imperial Life Assurance Co. of Canada v. Colmenares, [1967] SCR 443...................................................................98Richardson International, Ltd. v. Mys Chikhacheva (The) [2002] 4 FC 80..............................................................99Amin Rasheed Shipping Corp. v. Kuwait Insurance Co., [1984] AC 50 (HL)............................................................99Star Shipping AS v. China National Foreign Trade Transportation Corp., [1993] 2 Lloyd’s Rep. 445 (Eng. CA)........................................................................................................................................................................................................ 100

No Agreement by the Parties: Determined by Court..............................................................................................100Limits on Parties’ Choice of Law..................................................................................................................................... 101

Nike Infomatic Systems Ltd. v. Avac Systems Ltd. (1979), 105 DLR (3d) 455.....................................................101Golden Acres (contrast with Nike)......................................................................................................................................... 101

Law Other Than the Proper Law.......................................................................................................101Formation................................................................................................................................................................................. 101

Mackender v. Feldia AG, [1967] 2 QB 590 (CA)................................................................................................................ 102Capacity..................................................................................................................................................................................... 102

Cherron Case (not assigned, but discussed)....................................................................................................................... 102Formalities............................................................................................................................................................................... 102

Greenshields Inc. v. Johnston (1981), 119 DLR (3d) 714 (Alta. QB).........................................................................103Mandatory Rules of Legal Systems Other Than the Proper Law......................................................................103

Avenue Properties Ltd. v. First City Development Corp. (1986), 32 DLR (4th) 40 (BCCA)...............................103Gillespie Management Corp. v. Terrace Properties (1989), 62 DLR (4th) 221 (BCCA).....................................104

Transfers of Immovables..................................................................................................................105Characterization – Movable or Immovable................................................................................................................105

Hogg v. Provincial Tax Commission, [1941] 3 WWR 605 (Sask. CA).......................................................................105Foreign Immovables (Jurisdiction)...............................................................................................................................105

British South Africa Co. v. Companhia de Moçambique, [1893] AC 602 (HL).....................................................105Hesperides Hotel Ltd. v. Muftizade, [1979] AC 508 (HL)..............................................................................................106Godley v. Coles (1988), 39 CPC (2d) 162 (Ont. DC).......................................................................................................... 106Aleong v. Aleong (2013), 55 BCLR (5th) 364....................................................................................................................... 107

Foreign Immovables & Contract..................................................................................................................................... 107Ward v. Coffin (1972), 27 DLR (3d) 58 (NBSC AD)......................................................................................................... 107Lee v. Li, [2002] BCJ No. 780 (BCCA)..................................................................................................................................... 108Catania v. Giannattasio (1999), 174 DLR (4th) 170 (Ont. CA)....................................................................................108Wheatland Industrial Park Inc. (2013), 42 BCLR (5th)..................................................................................................109Wang v. Sun (2014), 60 BCLR (5th) 420 (BCSC) (not assigned, but discussed)...................................................109

Foreign Judgments re: Land in Forum.........................................................................................................................109Duke v. Andler, [1932] 4 DLR 529 (SCC).............................................................................................................................. 109Chapman Estate v. O’Hara, [1988] 2 WWR 275 (Sask. CA).........................................................................................110

So What Has Morguard Done?........................................................................................................................................ 110Choice of Law Issues............................................................................................................................................................ 111

Capacity.................................................................................................................................................................................... 111

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Bank of Africa v. Cohen, [1909] 2 Ch. 129 (CA)................................................................................................................. 111

Transfers of Movables......................................................................................................................111

Intangibles.......................................................................................................................................111Intellectual Property/Information Technology.......................................................................................................111

Three Categories of IP......................................................................................................................................................... 111Statutory/Territorially Focused..............................................................................................................................................111Copyright........................................................................................................................................................................................... 112Common Law (or Civil Code in QC)........................................................................................................................................112

Howell, “Relevance of National Regulation in an Age of Borderless Transmission”................................113Ortiz (NZ case, not assigned).................................................................................................................................................... 114Pro Swing, supra............................................................................................................................................................................ 114Lucasfilm Ltd. v. Ainsworth [2011] UKSC 39..................................................................................................................... 114Itar-Tass Russian News Agency v. Russian Kurier Inc., 153 F. 3d 82.......................................................................115

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Part One: GeneralINTRODUCTION

Subject can be divided into three areas: Jurisdiction Choice of Law Recognition and Enforcement

JURISDICTION

Jurisdiction Simpliciter The authority for a court to accept jurisdiction Determined by legislation or Rules of Court of forum

BC – Court Jurisdiction and Proceedings Transfer Act (JPTA) Can BC take jurisdiction? (s. 3, s. 10)

ON – Common law rules of court. Forum Non-Conveniens

Should the court take jurisdiction? S. 11. Discretion, anti-suit injunction Over the parties of the dispute Over the subject matter of the dispute

CHOICE OF LAW

When we look at who did what and when Which jurisdiction’s law will be applied to resolve substantive and procedural issues

Principal Options Lex fori – law of the forum Lex loci delicti – law of the place of the wrong or infringement Lex situs – law of the situs or location of the subject matter

Used to solve substantive or procedural issues Procedural matter is usually lex fori – but the difficult thing is determining what is a

procedural matter.

RECOGNITION AND ENFORCEMENT OF DECISIONS OF EXTRA-TERRITORIAL COURTS

Based on domicile/residence

AREAS OF LAW PRESENT PARTICULAR DIMENSIONS

Private law Tort, contract, property, trusts, wills and successions

Public law Extra-territorial grants, penal law/criminal law, administrative law/labour, revenue law,

social policy

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COMMON LAW/CIVIL LAW

Common law – judge made law, English law basis A recent divergence between Canada and England US Comparison

Restatement (First) of Conflict of Laws (1934) Restatement (Second) of Conflict of Laws (1971)

Constitutional dimensions Civil Law (QC) comparisons

THEORY

INTELLECTUAL HISTORY

First considered in a significant way in the US. England only had to consider after its union with Scotland, but not much actual history. Canada didn’t necessarily adopt American jurisprudence despite similarities in governmental

structure and social aspects.

TERRITORIALITY

Literature tends to focus on choice of law – why would a court use laws of a different land?

COMITY

“Enlightened self-interest”/reciprocity – this theory is most often applied contextually within a “jurisdictional” analysis

Best represents the view in Canada Instances of deference to foreign law were seen as an attempt to promote international

harmony by accommodating the views of a foreign sovereign in the expectation of receiving reciprocal treatment.

From Story, Commentaries on the Conflict of Laws (1834) The true foundation on which the administration of international law must rest is, that the

rules which are to govern are those which arise from mutual interest and utility, from a sense of the inconveniences which would result from a contrary doctrine, and form a sort of moral necessity to do justice in order that justice may be done to us in return.

From Dicey, The Conflict of Laws (1896) The application of foreign law is not a matter of caprice or option, nor out of courtesy, it

flows from the impossibility of otherwise determining whole classes of cases without gross inconvenience and injustice to litigants, whether natives or foreigners.

THEORIES

“VESTED RIGHTS” – “FOREIGN CREATED RIGHTS”

Local municipal law recognised a right that had become vested in an individual under the foreign law at a time when the individual was subject to foreign law

This recognition of foreign law does so under the pretence that certain rights had been afforded to someone in a foreign state, and those rights travelled with them to the current jurisdiction.

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Better than “comity” as it explained the mandatory nature of the conflict of laws Courts had no discretion in recognising vested rights

Emphasized the individual’s entitlement to his or her vested rights compared to court’s politeness or concession to foreign sovereigns

From Beale, Selections from a Treatise on the Conflict of Laws (1935) When a right has been created by law it becomes fact. A right may be changed by the law

that created it, or by any other law having power over it. If no law having power to do so has changed a right, the existing right should everywhere be recognized; since to do so is merely to recognize the existence of fact.

Was criticised as only the local courts who would determine the vested rights and doesn’t explain why some foreign rights became vested while some did not

“LOCAL LAW THEORY”

Attempt to explain the national or local character of the conflict of law But, subject seemed to resemble the allocation of legislative and judicial authority similar to

that of a federal state

“GOVERNMENTAL INTEREST ANALYSIS”

Not simply dealing with rules for assigning legislative/judicial competence or a conceptual analysis

Courts consider whether the local law ought to be modified in light of any foreign element, looking at the purpose or policy of the law

Looking for the impact of the rule and asking who would this impact upon in your particular state

Criticized as it seeks to avoid objective rules between particular units of jurisdiction (conceptual analysis would give this objectivity)

Critics also say it doesn’t place enough emphasis on need for international cooperation or harmony

“MOST CLOSELY CONNECTED” PROPER LAW (HAGUE CONFERENCE, 1984)

Approach that continues to see the choice of law as a separate set of rules, but rules that are open-textured or indeterminate

Almost all the formal rules look the same since each legal category is said to be governed by its proper law. However in determining the proper law to govern a particular issue, courts are urged to choose the law with which the issue is most closely connected

i.e. similarity between proper law and governmental interest analysis Approach has been adopted in international conventions (Hague Conference on PIL, 1984)

“PRINCIPLES OF RESTRAINT” ON LOCAL LAW TO FURTHER INTL. GOALS

Composed of various attempts to combine an analysis of the purposes of domestic laws with some principles of restraint intended to further international goals E.g. international pressure of the need to live in the world ensures a high degree of

similarity among the many territorial systems of private international law.

Judges often fall back on comity – conceptual analysis doesn’t significantly take into account government interests. Real emphasis on limits in terms of rules that one can apply.

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CONFLICTS AND THE CONSTITUTION

COMMON LAW BASIS/CIVIL CODE (QUEBEC)

In CL provinces, conflicts rules remain, for the most part, a product of judicial decision. QC – codified.

S. 129, CONSTITUTION ACT, 1867

Continued in force all laws in the colony at the time of joining confederation until such time that they should be repealed, abolished, or altered by the appropriate legislature under the new federal system of government. Inherent jurisdiction for the superior court of each province – all the powers of the English

CL courts, and chancery, inherent jurisdiction to hear everything. Contrasts with the position of the Federal Court.

Federal Court has limited capacity, statute court. Three tests – s. 91, must be federal legislation enacted in relation to that constitutional federal power, express statutory allocation for jurisdiction. Federal court is not a court of inherent or general jurisdiction.

Often, conflicts rules were co-opted by the courts for employment as the constitutional test for determining the validity of provincial legislation challenged on grounds of extraterritoriality.

S. 92, CONSTITUTION ACT, 1867, PROVINCIAL JURISDICTION

The King v. National Trust Co., [1933] SCR 670

One situs in Canada. Property could have only one location in Canada for the purposes of the imposition of direct

taxation by provincial legislatures.

Churchill Falls (Labrador) Corp. Ltd. v. AG of Newfoundland, (1984), 8 DLR (4 th) 1 (SCC)

Leading case dealing with extra-territoriality. Limitations on a province in exercising a jurisdiction that has some impact outside of the

province. Still the leading case with respect to the proper approach to the issue of extraterritoriality

(but BC v. Imperial Tobacco replaced the conflicts rules used in the alternative in Churchill with a version of the new Morguard rule).

Facts: Supply of electricity from a hydro facility to QC but was located in NL. The deal was to provide QC with electricity for a set price for a set period of years. QC takes the electricity and sells the electricity they didn’t use to NY.

NL didn’t like that. Legislation was enacted in NL, the Reversion Act, which expropriated the facilities for hydro.

Issue: Was the legislation ultra vires of the province? The physical facilities were all in NL, but there were certain contracts and the contracts

related to the supply of electricity to QC and the question focused on those contracts. Were they intangible? Were they within the province?

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Findings: Two lines of authority:

Royal Bank – to qualify in terms of s. 92(13) analysis, everything had to be within the province, there could be no extra-territorial impact at all. Applied to this case: Reversion Act in pith and substance was aimed at the Hydro QC

facility, so the effect was to destroy civil and property rights outside of the province. Ladore v. Bennett – pith and substance of the subject matter had to be within the control

of the province, collateral extra-territorial effect, without invalidating the act that had been made under s. 92(13) providing that, in pith and substance, it was within the province. Applied to this case: Reversion Act is a colourable attempt to interfere with the

power contract and to derogate from the rights of Hydro Quebec to receive agreed amount of power at an agreed price.

Pith and substance – adopted – that benefited NL in this enactment of the Reversion Act, however the question becomes the relationship between the physical plant and the contracts. Where was the pith and substance? Court says it was aimed at the electricity supply

contracts, not simply at the physical plant that was clearly within the province. Question then became: where are those contracts located? Conflicts. Are they in NL or QC?

Court notes that the electricity is to be delivered in QC. If this is not enough to say that the contracts are located in QC then the court said, we

look at the question of who has the right to determine the right of interpretation of the contracts.

They are to be interpreted exclusively by the court of QC. Held:

The legislation was ultra vires – an attempt to deal with property and civil rights outside of NL.

Approach: Pith and substance, then conflict of laws. Here, the electricity contracts – where are those located?

QC, therefore all of this was occurring in QC. If the rights were located within NL, even though the province affected was extra-

territorial, then enactment would not be ultra vires.

Morguard Investments Ltd. v. De Savoye (1990), 76 DLR (4 th) 256 (SCC)

Most important case in Canadian conflict of laws. The SCC (in a recognition and enforcement context) employed federalism principles to

create a new rule for recognition and enforcement of judgments interprovincially. The rule was expressly stated to be a common law rule, the case not having been argued in

constitutional terms, but the nature of the discussion was such that it provoked speculation about the constitutional status of the rule.

Any new rules, whether common law or statutory, may be challenged for failing to meet the constitutional standards set out in Morguard.

Facts: The defendant (appellant) resided in BC, but the defendant had previously resided in AB. During his residency in AB he had guaranteed and laid certain mortgages, because he was a

mortgagor of certain properties. These properties fell into default, action was brought in AB, but at this point defendant was living in BC.

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Defendant was served in BC by registered mail, as provided for in the AB Rules of Court, no steps were taken by the appellant to appear in AB, he stayed in BC.

Findings: Looked at the traditional law in BC, which asks in the circumstance will a 2 nd jurisdiction

enforce a judgment of another jurisdiction (AB). Three things to think about: Had there been service in AB or the foreign jurisdiction?

No, defendant was not in AB at the time he was served. Was there consent by the defendant to the AB jurisdiction?

Clause in the mortgage, nope. Had defendant attorned to AB?

No he had not gone near AB. Under the traditional (pre-1990) approach, the defendant would have been quite safe as

long as he remained outside of AB. The SCC notes that within the constitution we do not have a full faith and credit clause like

the US and the Aussies – that each state/province has to respect the judgment of other provinces. Had been using basic rule of private international law (the three things above). If you met one of those criteria then the judgment of another province would be enforced.

New basis for jurisdiction: Canada had to be seen as one country, had to be reflected in conflict of laws. Broader

basis/test with respect to recognition and enforcement of judgments of other provinces. SCC writes in the full faith and credit clause (from the perspective of private international law – not until Hunt does it take on a constitutional dimension).

Real and Substantial Connection (R&SC): Did AB have an R&SC with the defendant in this case? Predicated on another notion of order

and fairness, which is also predicated on comity. Correlation between the taking of jurisdiction (AB) and the recognition and

enforcement (BC). If AB had a R&S connection then it took jurisdiction, and if another jurisdiction has

promptly taken jurisdiction, then another province must recognize and enforce that jurisdiction.

Taking of jurisdiction by the foreign court, then the recognition and enforcement of that judgment where the defendant is located.

Howell note: The content of the taking of jurisdiction is not defined in this case, which led to great

difficulty. Van Breda (2012) SCC – was not until this case that a certain amount of order was

brought to the notion of R&S connection. In the meantime many jurisdictions enacted legislation – CJPT Act BC (s. 3, 10) (came

into effect in 2006) – brought some order for the R&SC. ON stays at CL – so the Van Breda case. Now there is a good similarity between the legislation and the CL.

Further discussion: Decisions that followed Morguard tended to mush jurisdiction simpliciter and forum non

conveniens together until the legislation in 2006. Passages in Morguard talk about international things, like world commerce, so although it is

primarily an interprovincial case, there is enough to cause certain lower courts to apply the Morguard principle internationally. Subsequently, in 2003, the SCC applies the principle internationally too.

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Also reference to federal legislation in this context, the reference in Morguard, under the POGG power – however, this case was not argued on any such basis. Thrown out in Morguard. But when we come to Hunt and Tolofson, Laforest goes back to this.

Hunt v. T&N Plc (1993), 109 DLR (4 th) 16 (SCC)

Court ended the speculation of Morguard by expressly confirming the constitutional status of Morguard principles. Ignored the doctrine of extraterritoriality as argued by appellants. Instead, held a QC statute constitutionally inapplicable to actions in other provinces

because it refused pre-emptively to give full faith and credit to a BC court’s order for discovery of documents.

Facts: Litigation in BC, defendant was a corporation that was in QC. BC makes order for discovery, must comply with order for discovery unless lawful excuse –

defendant says that there is in fact a blocking statute. Defendant from QC being sued in BC, but can’t get documents in discovery because there is

a statute that says don’t remove the documents from the province. Issue:

Does this statute fly in the face of Morguard? Does that mean that defendants can only be sued in QC/ON?

Morguard wasn’t decided on a constitutional basis but it was a constitutional decision – the real and substantial connection is a principle of constitutional dimension and that this can’t be removed by provincial legislation. Provincial legislation can develop it – like the CJPT Act. The SCC looks at the QC legislation, and asks if this is aimed at the administration of

justice in QC. Nope of course not, its whole impact is extra-territorial. Based on what is happening outside the province – here this was constitutionally

inapplicable vis-à-vis another province. Left the door open internationally. Leaves open the federal power to legislate extra-territorially.

As mentioned in Morguard – the federal Parliament has power to legislate respecting the recognition and enforcement of judgments – issue ultimately related to the rights of the citizen, trade and commerce and other federal legislative powers, including that encompassed in the POGG clause. Again provinces can legislate, subject to the principles in Morguard.

Held: The blocking statute offends the principle of comity interprovincially.

Tolofson v. Jensen (1994), 120 DLR (4 th) 289 (SCC)

Choice of law rule in tort was reviewed and changed in deference to the constitutional principles even though it was not argued in constitutional terms. The rule is of unquestionable constitutional correctness. With respect to tort, the rule of choice of law is lex loci delicti – the place where the tort

occurred. Discussion:

Lex loci delicti – the law of the place where the tort occurred. Stipulated as a matter of common law conflict of laws in this case.

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LaForest muses about the constitutional dimension – not argued on that basis but he still talks about it. The Latin principle is of unquestionable conformity with the constitution. If the provinces legislate to seek control of things that happened elsewhere, that may be

unconstitutional, but if you apply the law of the place where the wrong occurred you will be good to go.

There may be an exception where all the parties are from your province. LaForest says there is a POGG power, speculates about the courts being superior to the

federal government regarding conflicts, but he retracts after some light flirting. Howell’s Note:

Suggestion that you may choose a different option legislatively at your peril. A strong indication that, within choice of law, particularly in the interprovincial aspect, that

the Tolofson principle is a constitutional requirement. Except for maybe situations where all of the parties are from the same province.

British Columbia v. Imperial Tobacco Canada, Ltd. [2005] 2 SCR 473

More recent example in which s. 92(13) is looked at. Facts:

Focused on tobacco products and health care issues from the use of tobacco products, and the recovery of health care expenses by the BC government.

Findings: Constitutionality aspect was upheld. Court found that, in pith and substance, it was connected with BC health care system in

which money was expended by the BC government. Legislation in this instance did not go into extra-territorial matters, no breach of duty, etc.,

or things of that nature. Those matters were left to ordinary tort legislation.

INTRODUCTORY COMMENTARY ON CLASS ACTIONS AND S. 92(13)

Theory that you should avoid multiple lawsuits – it’s not efficient to have litigation in multiple provinces for the same matter. How do you meet s. 92(13) when you are not only covering people from BC, but also AB, SK,

MB, etc., within your class action? Courts like the idea of class actions as it avoids expense and duplication. Basically, while you

have a core of people within your province, then those outside can be treated as incidental because the pith and substance because the pith and substance is within the province.

PUBLIC POLICY, PUBLIC LAW CLAIMS

GENERAL

In terms of local law theory, we are saying that in certain contexts that involve a foreign element, the foreign can exercise discretion to not apply the foreign element.

Two contexts: Province is asked to recognize/enforce a judgment from elsewhere. Asked on a choice of law to apply the law of somewhere else.

In these contexts the court has certain discretion to decline to do so. When we look at this area we can really make a broad division into two halves:

Looking at certain categories of law (Public Law – ought not to be projected extra-territorially):

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United States v. Ivey (1995), 26 OR 533; 130 DLR (4 th)

Facts: Defendant caused an environmental concern in MI, required clean up. US government said defendant polluted and needed to clean it up, or they would have to

and then take the defendant to court to recover the costs. US government got ruling in MI, tried to bring it to ON.

Discussion: Was it a penal law applied when the US entered and cleaned up an environmental site, then

sought to recover from a defendant that lived in ON? Regarding the jurisdictional issue, MI had a real and substantial connection to support the

exercise of personal jurisdiction over the ON defendants (due to Morguard). Defences:

Penal Relates to situations where a state is legislating in a way that would seek to bind extra-

territorial persons if it were applied extra-territorially (to extend jurisdiction beyond borders).

So is this a penal law? Given that one state will not enforce another state’s penal laws. So not characterized as a penal law:

Only to reimburse and compensate for what the company had an obligation to do (the clean up), not a punishment or directly designed as a deterrent.

Revenue Law Court again said it wasn’t – hadn’t precisely been defined, but was not made to raise

money for the government; it was just for the reimbursement of something that had already been expended.

Other Public Law Murky area, the ONCA isn’t keen on this category existing. Looks at the Ortiz case a bit – NZ case where they tried to stop exportation of certain

items of historical or cultural value from NZ. Argued here that it was too political for the US government to try to recover in Canada. But, US government isn’t depriving the defendants of any property rights in Canada, not

trying to take back any property. Seems like environmental law has become universal now, like IP.

As cultural rights expand, maybe that won’t be seen as so political (like Ortiz).

Attorney General of New Zealand v. Ortiz, [1984] AC 1(House of Lords)

Facts: New Zealand seeking to enforce, in the UK, a statute designed to prevent cultural items from

being taken. UK didn’t have to enforce the judgment.

Findings: Lord Denning considered this sort of legislation to recover property extra-territorial by

extending NZ political public policy extra-territorially. Found to be ultra vires NZ jurisdiction. Not enforced, as it was seen as an attempt to assert sovereignty across borders.

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PUBLIC POLICY

Tends to be case specific: (three categories as below)

NATURAL JUSTICE

Recognition and enforcement, a violation of natural justice? Tribunal may not have given adequate notice, or an appropriate right to be heard. Issues dealt with in administrative law deal with the idea of fair process.

In broad terms, basically looks at the procedure - the procedural process that was engaged. In the Ivey case, we did not see the breach of any procedure.

It was an argument that looked at the environmental clean up. The grounds that you would ordinarily apply in review didn’t apply there.

FRAUD

Considered in Beals. Labels given to the two categories: intrinsic and extrinsic. In Beals, the SCC says we need to move away from using those words.

Court goes with the ON idea that recognized both intrinsic and extrinsic fraud, BC only looked at extrinsic fraud.

Intrinsic fraud goes to the merits of the case. New facts in the case – could not have been brought at the time of the hearing, particularly if the new facts were obscured.

Extrinsic fraud is if there was fraud in persuading the foreign court to give a certain judgment.

PUBLIC POLICY

Essentially asking is this a choice of law issue, or one of recognition and enforcement? Does the matter offend the fundamental values of Canadian society? Does it deeply affect the morality in terms of Canadian morality?

May be that Canadian law is different, but being different is not enough. Whole idea of choice of law is that laws will be different.

If the law is similar, and in Ivey that was the case, then the public policy issue is removed. Similarity raises the issue of similar public policy, but dissimilarity is not, in itself, a ground

to say that it will not be recognized, enforced, or applied – it must go beyond that. There was a French judgment re: trading of Nazi paraphernalia, said it could not be done.

Tried to apply this in the US, but said that it couldn’t be applied because free speech was fundamental in US.

This issue hasn’t directly come up in Canada. With regard to the above and the ruling in Boardwalk (below), on one hand, we could say that

these are prime examples of a local law theory, we won’t recognize and enforce because it offends the policy of the local enforcing jurisdiction. However, in reference to the QC Civil Code 3081, this principle is expressed differently.

Must be “something manifestly inconsistent with public order as understood in international relations”.

This is slightly different from saying contrary to public order as understood in international relations.

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Boardwalk Regency Corp. v. Maalouf, [1992] OJ No 26

ONCA held that the enforcement of foreign default judgments regarding gambling debts is not contrary to public policy.

Facts: Defendant gambled with money that was borrowed from the casino.

Findings: Recovery allowed, despite there being a law in ON at the time that prevented recovery of

money that was lent for the purpose of gambling.

Kuwait Airlines Corp. v. Iraqi Airways Co. [2002] 2 AC 883 (HL)

Interplay between international norms and local policy – focus is on the tort of conversion. Facts:

Kuwaiti Airlines taking action in England on the tort of conversion. 10 airplanes that were on the runway when Iraq forces took them during the first gulf war

and merged them into Iraqi airlines. In order to succeed with tort of conversion, must be able to prove you owned the item(s) at

the time. Iraq law dissolved Kuwaiti airlines and transferred the property to Iraq, so does this mean

they weren’t owned at the relevant time? Findings:

Court says issue of double accountability comes up (don’t have to worry about this in Canada), but at the time, when dealing with tort, issue must be actionable in the place where the wrong occurred as well as where the proceedings are brought.

Iraqi airlines argued that you shouldn’t judge the actions of a foreign sovereign. English court said shut it; we can apply international law in situations where the foreign

sovereign has breached international law. Decided it wasn’t contrary to English policy.

Old North State Brewing Co. v. Newlands Services Inc., [1999] 4 WWR 573 (BCCA)

Facts: Defendant was a supplier of equipment for brewing beer. Supplied equipment to the plaintiff in NC. Something went wrong with the supply of the

equipment. Defendant required the cost of the equipment to be paid 100% upfront before delivery. Defendant went down to try to help, but equipment still didn’t work. Plaintiff filed in NC, default judgment was given, as defendant didn’t go near. NC judgment was brought to BC to enforce. Two relevant clauses in the contract:

Choice of law to be applied would be the law of BC Choice of forum – the parties will attorn to the jurisdiction of BC courts.

Defendant argued there was an express choice of law and jurisdiction. Court found this was not an exclusive forum in the second clause. NC had many connections, equipment was there, delivered there, no question the state

had jurisdiction. Findings:

Re the choice of law clause – in a common law jurisdiction the law must be pleaded as fact. In civil law, it can be taken as judicial notice.

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One of the parties had to plead foreign law, but the defendant didn’t go to NC to do so. So, NC court could make the decision – either defendant didn’t plead the law because it’s

the same, or more likely, the domestic law is applied because that’s what the court is capable of applying and it didn’t have evidence of the foreign law.

Policy issue: NC court introduced treble damages.

Was that contrary to public policy? Court said no, process in Canada under competition where treble damages exist.

If there is an error of law, the BC court couldn’t look at it. Can’t overrule in that regard, would have to take it back to the original court.

Society of Lloyd’s v. Meinzer (2001), 55 OR (3d) 688 (CA)

Facts: Group insurance where wealthy people make huge returns. Due to asbestos issues, there was a huge insurance claim. ON people (70 out of 35,000 worldwide) said that if you’re soliciting money, you must abide

by prospectus requirements. Findings:

Court said yes, prospectus requirements are of fundamental importance to ON, but there was a global interest in the insurance market. ON people had benefitted greatly in the past, and they had agreed to an exclusive choice

of law and forum which was English. Didn’t trump, but a strong factor.

Had previously tried to get ON court to take jurisdiction and it declined, so that means the court should likely enforce UK judgment here. Identified 20 points of contact with England in this scenario.

Relied also on comity, names all over the world were being proceeded against and other countries were allowing it.

MANDATORY RULE

If there is a legislative mandatory rule then the courts of the jurisdiction where the rule exists have to give effect to that rule (expressly, or by other interpretation stipulating a mandatory principle). When legislation has mandated the rule, the courts of the forum have to give affect to it.

Agro Co. of Canada Ltd. v. The "Regal Scout" (1983), 148 D.L.R. (3d) 412 (F.C.T.D.).

When legislature has mandated the rule, the courts of that forum must give affect to it. Facts:

Party tried to argue that foreign law should be applied. BUT, Canada Shipping Act expressly stipulated that it would apply to all shipments from a

port in Canada.

Avenue Properties Ltd. v. First City Development Corp. (1986), 32 DLR (4th) 40 (BCCA)

If the way in which the statute was worded could be seen as stipulating a mandatory rule, court cannot use discretion and must apply the rule.

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Gillespie Management Corp. v. Terrace Properties (1989), 39 BCLR (2d) 337

Question of a mandatory rule, but the legislation was from WA, and the court was BC. Facts:

Rule stipulated that in WA it would be unlawful for an organization to recover any commissions in relation to a contract to manage an apartment building unless the appropriate license from the state were obtained.

Particular contract involved a BC company; the proper law of the contract would probably have been BC law.

Findings: The legislation is not directly binding on BC, but BC had to respond to that law because the

contract envisioned the performance to be in WA. BCCA took two approaches:

Howell prefers: BC law applies – it is the proper law of the contract (where one assesses the jurisdiction with which the contract has the greatest number of connections, or there is an express/applied choice). But, the contract includes significant performance in WA – BC public policy had to

take into account the mandatory nature of the law. Didn’t apply directly, but they acknowledged and gave affect to the law.

Two other members of the Court of Appeal said choice of law is in general BC law, but in relation to its mode of performance in WA, it should be WA state law.

Beals v. Saldanha [2003] 3 SCR 416

Deals with enforcement of an international monetary in personam judgment. Thrust is that no further public policy defences needed to be considered in the context of

this case. Extends the Morguard principle to the international context for non-Canadian judgments. Findings:

Majority left the door open to consider further defences, but decided not to. Applied Morguard principle of full faith and credit to international as well as interprovincial.

Said that presence and attornment can strengthen the real and substantial connection factors, but they are just parts.

Saw it as a debt judgment. Dissent:

Sought to expand the defences – said if you are going to expand the recognition and enforcement, you must also expand the defences.

Pro Swing Inc. v. Elta Golf Inc. [2006] 2 SCR 612

Pro Swing extends recognition and enforcement to non-monetary judgments. Deals with a non-monetary judgment in personam in the nature of injunctive

relief/contempt of court orders. Found it very problematic that a non-monetary judgment would be enforced.

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PENAL LAWS

Excluded as a category from the subject of conflict laws. Are focused on criminal law at their core.

When you have a foreign element in criminal law, you look at extradition. Criminal law comparison with conflict laws is extradition law.

Reason for this: When you talk of penal law, you’re talking about a state reflecting its public policy and

criminal law is directly reflective of its public, social, or economic policy. Argued that these laws ought not to be projected extraterritorially.

Certain exceptions: war crimes, crimes against humanity, etc. Federal parliament has authority to legislate extraterritorially against its own citizens

(like child pornography, sexual tourism, etc.) See Ivey, supra, where US government tried to bring judgment to ON.

Court found that it was not punishment, merely bringing a debt to cover the cost of environmental clean up.

Huntington v. Attrill, [1893] AC 150 (PC) (Ont.)

Definition of “penal law”. Facts:

Concerned a NY statute: if you sign a document for a corporation that is seriously misleading then you can be jointly and severally liable for damages.

Suit in NY against the director, it was successful. Huntington brought an action on the NY judgment in ON where Attrill resided.

Attrill argued was based on foreign penal law. Findings:

Forum court determines if something is penal. The opinion of the foreign court will be persuasive but not determinative.

Key question: is it a wrong to the public or an individual. So, if to the public, then penal, if to an individual, then civil. Distinguishes laws that create protective/remedial civil remedies vs. punishment

provisions. Here, the NY statute created an implied term of contract – not penal, civil enforcement.

TAX LAWS

GENERAL

Seen as reflecting public, social and economic policy. As a category, these laws are excluded.

Revenue of a foreign sovereign is not to be enforced in Canada – the reason for this is that the tax law very closely follows social, economic, political objectives of a foreign sovereign.

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United States of America v. Harden, [1963] SCR 366

Facts: US argued that they knew there was an exception in relation to taxing extra-territorially,

that they couldn’t sue directly in BC to recover their tax. So, US government brought a suit in the US and tried to bring the judgment to BC to enforce

here. Findings:

Rejected on the basis that the US was seeking to achieve indirectly what it could not accomplish directly.

Still the leading case on this matter.

Ivey, supra

Asked if the US government was levying a site-specific tax. Court says no, the government cleaned up the site and asking for money back for that, not a tax.

INDIRECT ENFORCEMENT

Stringam v. Dubois (1992), 135 Alta. R. 64 (CA)

Facts: Deceased was resident and domiciled in AZ - strong finding that she was resident and

domiciled there (strong desire to live there). Therefore a real and substantial connection to AZ.

Had a US executor, and the US levies estate duties. Left an AB farm to her niece, valued at $430k. Executor was apportioning US state tax and wanted to take $150k in tax. Strong argument for enforcement as it became a double windfall for the niece, and other

beneficiaries/trustees are burdened with more of the share of the tax. Looked at Reid case, which dealt with a UK judgment for similar situation.

If executor pays out without paying tax to UK government, as with US, then the trustee can be personally liable to the government.

Already gave the farm, then executor found they needed to be reimbursed for tax by beneficiary of the trust in BC. Argued it was reimbursement of a trustee for expenses in the administration of a trust. Pragmatic, but the court declined to follow Reid.

Finding: Not allowed, would be indirect enforcement of US tax.

Cited the Harden case. Not distinguished – it was a piece of land in AB, it was a matter of policy.

Found that tax was estate duty of a person domiciled in AZ, AB farm was tax-free from US state tax.

Reid was able to do something similar by utilizing a pragmatic approach, said it was a reimbursement rather than indirect taxation.

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CHARACTERIZATION

Bankruptcy, international insolvency, money owed to a foreign government seen simply as money owed to a creditor. In pragmatic terms it is tax nonetheless.

Movement to say that we are in an environment of cross-border international business with multinational companies, so when things go wrong there has to be a solution across borders regarding the debts that are there. As long as there is a notion of reciprocity, we are good to go.

Re Sefel Geophysical Ltd. [1989] 1 WWR 251 (Alta. QB)

Looks at question of bankruptcy: current comity principles suggest that some foreign tax claims should be recognized in a Canadian liquidation setting.

Money may be recovered in situations where the “tax” can be classified differently in a bankruptcy setting. Looking at a context where the court characterized the nature of the case as basically

bankruptcy and insolvency rather than tax collection. Facts:

Internationally agreed plan of arrangement in relation to the solvency of a cross-border international entity.

Question then, whether the foreign company should recover in the bankruptcy or whether they should get priority (Revenue Canada gets priority).

Even if a foreign sovereign could claim a tax in bankruptcy, some priority was given to US tax but this was a special case in relation to concerted action that had preserved US assets.

A move to liberalize the exception to say that in a bankruptcy, perhaps there should be some sharing or participation by a foreign sovereign.

Bankruptcy exception: Look more generally and say that if the question of tax comes up is a relatively incidental

question focused on the particular parties, compare with an assertion of tax for purposes of foreign sovereign. One looks at the primary objective and find some sort of distinction.

If the US were to say that any US citizen is required to pay state duty on any property transaction anywhere in the world, including the sale of Canadian property, and then the claim is brought from US authorities in Canada, this may be a situation more closely related to the assertion of other public law or territory. Still up to Canadian authority to enforce this.

So, is “tax” an assertion extra-territorially of a foreign sovereign, or is it merely an incidental effect of an activity?

Re Matol Botanical International Ltd. [2001] RJQ 2333 (CS)

Involved scheme of arrangement in relation to insolvency of a cross-border international entity. So long as there is a notion of reciprocity between the governments, and so long as the

government doesn’t try to claim any sort of priority, then government may be seen as a creditor. This is a bit of a fallacy, and fudges the principle, as it is a tax, and the tax probably reflected

something of a public policy. Reciprocity and comity are emphasized, though primarily as bankruptcy and insolvency.

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Classified as money owed to a creditor, this time in insolvency.

OTHER PUBLIC LAWS

Consider two cases: Attorney General of New Zealand v. Ortiz, supra

The NZ statute was trying to declare public ownership, which is, in a sense, no different from what a statute normally could do regarding property.

In this context, it was seen as too political, or as expropriation, as a matter of public policy or political action.

United States v. Ivey Courts aren’t keen on this category existing. Again, a notion of the state getting involved in a matter that the state has not been

involved in before. Is this something too far beyond the traditional realms of private international law?

DOMICILE AND RESIDENCE

GENERAL

Area that seeks to find, for individuals in certain circumstances, a law that is relevant to that individual. The law that determines the rights of persons, sometimes this is focused on where that

person is domiciled. Generally this comes up in the wills and trusts, (succession); the capacity to make a will is

the law of the country/province where the person is domiciled. However, in relation to land, it is the law in which the land is situated, that determines the

capacity. Depends on jurisdiction, but if you want to use the Wills Variation Act in BC, you must be

domiciled in BC. Howell gem: “we are all born in a place, unless you are an extra-terrestrial” To compare Domicile with Residency:

Residency can be divided into: Domicile > Habitual Residency > Ordinary Residency > Residency (in order of strength) Complicated further in that stipulations of residency are normally statutory.

If it’s a voting statute, that asks if you are ordinarily resident here, then that shouldn’t deprive people of the right to vote. Therefore becomes context relevant.

Domicile doesn’t take into account the factual context – a standalone area of law without regard to a substantive context. Doesn’t matter where you’re paying bills, etc., or where you intend.

DOMICILE

Domicile of origin is seen as residual domicile and is given significant weight. If you make a choice to change, that may displace, but the evidence needs to be strongly

established that by choosing a different place, you’ve changed. To look if you’ve displaced the domicile of origin, it’s quite strict:

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Have you adopted a new domicile of choice? Then you start looking at facts as to whether you’ve simply adopted a new place as opposed to displacing an old place.

Domicile is inherent and always has been in conflict of laws. Mainly common law jurisdictions, civil law jurisdictions frequently look at citizenship. Statute has often moved to residence, and has addressed habitual residence, ordinary

residence, and simply residence. One of the reasons why legislation has moved to residence (from domicile) is the difficulty from

a factual point of view in deciding domicile (because of the subjective intent). Domicile involves a requirement that the person concerned subjectively, but determined

objectively, (because normally that person is dead), that that person intended to remain in that jurisdiction permanently or indefinitely. The future element is what makes domicile problematic.

Domicile is determined lex fori (the law of the forum determines the domicile). A person can only have one domicile at any one time.

Domicile of origin is largely where you were born, frequently referred to as a residual location. If you don’t have another location, the residual location kicks in.

Sometimes referred to as revival of domicile of origin. (MB has removed this).

DOMICILE OF CHOICE

Have you abandoned the domicile (of origin; of first choice)? Have you adopted the domicile (of first choice; of second choice)? If you’re talking about abandonment or adoption, it’s more difficult to conclude on the facts,

that there has been an abandonment than it is to conclude on the facts that a new place has been adopted. Depending on what you’re trying to prove, you may get a different result. It’s relatively easy to find that a person has maintained some links with their previous place.

Emphasizing abandonment: focus on the links. Emphasizing adoption: look at facts that connect to new place.

Consider what you’re trying to prove? Canada vs. other state?

Domicile in Canada. Province vs. other province?

Domicile in province. Intent is difficult – focus on permanently or indefinitely?

Do you have a plan to move somewhere else at some point? Intent must be more than a vague possibility or wistful thinking.

“If I win the lottery I’m moving to London!” = wistful. “I really want to die in my native country!” = wistful/sentimental, not too serious.

Most places have de-emphasized legal vs. illegal immigrant status. Though could be used against?

Citizenship can be a factor, but also, where is your family? Do you go back to visit frequently? How do you regard your relationship with the country where your parents are?

Employment Permanent job with good prospects, then you could say you’re here indefinitely. If clearly for a limited period of time, or type of employment that you are only there

because you hold a position in Canada, then it’s not relevant to say that you’re domiciled in that place.

Other factors

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Future financial arrangements – where are your pension plans? In Canada? Then if you leave, you may be just visiting. If it’s in your place and origin and you’re still contributing that’s a factor.

Healthcare Here or there?

De-emphasize what is said in Agulian (below) case. Silly comments like “Greeks are very attached to their homeland”. “A Greek Cypriot in Cyprus is less attached to his homeland as a Greek on the mainland.”

Infants Generally look at the domicile of their parents.

Historically, if married, look to domicile of the father. Unmarried – to the mother.

Today, focus is on the parent of the child with which the child habitually resides, or which country does the child spent more time in.

Much more factually based today than historically.

Agulian & Anr v. Gyganik [2006] EWCA Civ. 129

Courts will look to the holistic life patterns of a person. Facts:

Born in Cyprus, resided nearly all of adult life in England (19+), but maintained strong ties to Cyprus.

Daughter sent to Cyprus for education, sent money to Cyprus, bought property there, prospective business interest there.

Died at 63, had a string of short term relationships before death, but for the two years before dying was engaged to be married but hadn’t actually married.

Trial court gave weight to personal relationship, indicating a domicile of choice in England. Mainly due to relationship, even though woman was there illegally

Findings: Appeal said too much emphasis on relationship. Have to look at entirety of his residency in England. Court accepted that he was habitually resident in England, but couldn’t come to view that he

was domiciled there. Required evidence that you had abandoned or adopted.

But, would this have been different if they were married? Standard of proof was the civil standard, but had to prove clearly and unequivocally that

there was intent to change the domicile of origin. British courts say you must clearly demonstrate intent to accept a new or abandon

previous. What if it came to BC? – Divergence of rules.

Questions of domicile must be determined lex fori. Domicile of choice, until abandoned factually (abandonment rule).

Re Urquhart Estate (1990), 74 OR (2d) 42 (HC) aff’d (1991), 3 OR (3d) 699 (Div. Ct.)

Facts: Left NZ because of breakup of first marriage.

Reason can be important.

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Travelled around, journalist in Vancouver, NZ embassy in US, moved to Ottawa, son was born, separated but went back and forth from QC (but were “regional excursions which are not relevant in this context”).

Although he lived and worked in a number of places, he had a room where he kept his things and was his mailing address.

Met Taylor and lived in her apartment in Ottawa, went to DC with her for work, and then transferred to FL and died there.

Findings: Domiciled in ON. Court looked for some intent to stay permanently or indefinitely.

FL, DC – location was focused on his job NY – wanted to move there, but had not green card extension QC – only recreational excursions NZ – domicile of origin, only visited, no intention to go back ON – maintenance of his room was a strong element in the chain of evidence

Otherwise it would have been difficult to prove

Gillespie v. Grant (1992), 4 Alta. LR (3d) 122 (Surr. Ct.)

Facts: Born in ON, 1922, moved to AB, 1939, married in AB, 1949, business in AB, four kids, stayed

until 1970s, then bought hotels in BC. In 1979 separated from wife in AB, expanded business in BC. Moved to BC, but maintained a penthouse suite in one of his hotels in Calgary. In 1983, entered into same sex relationship in BC, expanded business in BC, bought more

hotels, but very close to his family in Calgary and still had his mail addressed to the Calgary penthouse – basically maintained both residences.

Most of his personal effects were in Calgary, had an AB licence, healthcare in both, dental in AB, passport had Calgary address, filed taxes in AB, but received homeowner’s grant in BC, for which one needs to focus on the principle residence which was BC.

Received medical treatment in BC, entered into joint-ownership in BC, spent most of his time here, but made visits back to Calgary.

Died in 1991 in BC hospital. Court said it needed to go to trial. Domicile is “a person’s permanent home which requires the act of residence and the

intention to remain there permanently”.

Foote Estate (Re), 2011 ABCA 1 (not assigned, but discussed)

Facts: $230MM estate. Domicile of origin was AB, stayed there until 1967. Went to Australia, then to Europe, then to Japan. First marriage ended during this period. Married again, went to Norfolk Island off the coast of Australia, built a large homestead

there. Maintained this estate until his death and never abandoned it.

From 1999-2001 acquired condos in BC, stayed for three years in Victoria. From 2001-2003 stayed in Victoria during the summers, then to AB for treatment for

cancer.

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Went to a clinic in AB, talked about returning to AB but never gave up his home on Norfolk Island, and perhaps it was unlikely he would leave the island without first selling his house, and he made no move to do so.

Some suggestion that he intended to live permanently in Victoria, but he moved quickly in the end because of his adverse medical diagnosis and thought he would get back to AB. Why? Treatment? Likely.

If this was decided in England, that move back to origin would have been given significant weight.

Left most of his money to AB charities. Findings:

Can rule out Victoria, Japan, Europe. Left with Norfolk Island and AB. Said move must be voluntary, not dictated by business or health. Court thought maybe he would have liked to move back at one point, but hadn’t yet

displaced NI and had shown no intent to do so. When looking at abandonment, consider “what have you done?” When looking at adoption, consider “what have you done to adopt?” Did he return to AB because he wanted to or because they had a good clinic that could help

him?

RESIDENCE

More of a spot test. Avoids the domicile limitation of one place. Problem of domicile is determining where domicile of origin stops and domicile of choice

begins is difficult. Revival of Domicile is used in the UK, minimum authority in Canada, and rejected in the US. You can have different levels and features of residency.

Comes from the Hague Conference on Private International Law. Residency is statutorily based. Influence of the context/facts is greater than with domicile (due to no subjective intent).

E.g. tourists and visitors are not residents.

HABITUAL RESIDENCE

Almost the same as domicile except it doesn’t have the prospective focus on subjective intent to stay permanently (other than that, same as domicile). Still looking for some enduring qualitative feature as to the residency of a place.

Adderson v. Adderson (1987), 36 DLR (4 th) 631 (Alta. CA)

Facts: Looking at the last habitual residence. Matrimonial property case. Wife was American, had acquired Canadian citizenship. Husband was Canadian. Married in Calgary in 1970, lived there until 1982. Wife moved to HI, came back, lived until 1984 in Calgary. Husband and wife moved in 1984.

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She went first, got a job; husband came but couldn’t find work, came back to AB, then went to CA.

Divorce filed in HI, but claim for property was filed in AB. If dealing with immovable property, it is the place where the immovable property is.

Findings: “Last Joint Habitual Residence” Came into Canadian law from Hague Convention. Looking at a present intention, similar to domicile but no need to have a subjective intent of

permanent or indefinite – but still a strong test. So was it HI or AB?

The fact that it spoke of “joint” made it easier, court was able to say that husband never adopted HI.

So it was AB.

ORDINARY RESIDENCE

Quigley references 12 months for ordinary residence. Ordinary residence may be for a limited term, but must be for more than just a short period of

time. You need to move your home.

Quigley v. Willmore (2008), 264 NSR (2d) 293 (CA)

Facts: NS statute, wife filed for divorce in NS, husband in TX. Was there ordinary residence?

Immediately resident for a year for NS filing. Court looked at:

She had a law practice in NS. Maintained membership in NS bar. Bank and insurance in NS. She intended to move back to NS if the parties were unable to reside as a family together

in TX. She didn’t have a fixed address in TX, but her son was attending school there, and his

primary caregiver went with them to TX. A number of her horses and an attendant to look after her horses went with her from NS

to TX as well. Findings:

Court came to view that move to TX wasn’t simply a visit, and she was ordinarily resident there.

The fact that she intended to return to NS if they couldn’t live in TX would be important for a domicile point of view.

Test was simply ordinarily resident: Where is the customary place of abode? Moved to TX and took a bunch of crap (including people and horses) with her. Therefore, ordinary residence is TX.

RESIDENCE

Key difficulty with domicile is the subjective intent that must be determined objectively. Residence removes the subjective intent, otherwise pretty much the same as domicile.

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The term “habitual” arose from the Hague Conference on Private International Law. Intended as a concept to avoid difficulty inherent in domicile.

No prospective intent. Line between habitual residence and ordinary residence is not so clear.

We know there is one, though; because the courts have said habitual residence is more than ordinary residence.

Habitual residence needs to focus on something otherwise than for a known limited term. If there’s a limited term, in Howell’s view, though the cases aren’t altogether clear, then you start to slip into ordinary residence from habitual residence.

Citizenship Requirement Residence required for three of four years immediately before you seek citizenship. Given that it’s statutory, the inquiry is focused on substantive content.

Courts have said, that for a citizenship context, there are two tests: One is body One is mind

If you are physically present for 3 of 4 years, then your residence is Canada For the mind test, you are looking for a place where there is your centralized mode of living.

Canada v. Wall (2005), 271 FTR 146

Facts: US citizen who had attended from 1983-1987 a bible college in Canada. From 1987-1991 was a resident in Canada, but immediately before application had gone to

New Guinea. Family were missionaries, basically operated for 10 years in NG. Family was with her in NG. Organization they worked with had a system where you would go home for a year and

then spend 4 years abroad. Looked like most of the time from 1992-2002 they were in NG. In 4 years, only 38 days were in Canada.

Findings: In terms of mind, where was her headquarters?

Came to no conclusion here, sent it back to citizenship board to do a better job of sorting the facts.

What was her centralized abode? Court discusses ordinary residence and habitual, says the expressions differ.

Ordinary is of a slightly lesser qualitative basis than habitual residence. Woman paid her taxes in Canada, so for revenue purposes, in her mind it was probably

Canada, and her children were sent back to Canada. Her organization spanned Canada and US, and she was a US citizen, but had done her

training in Canada. So in that context, one would say that the residency requirement would probably be met.

Haig v. Canada, [1993] SCR 995

Facts: For voting for the Charlottetown Accord. Person from ON moved to QC for four months. QC statute said you have to be domiciled in QC to vote in QC referendum. Hadn’t established domicile to vote in QC, so could he vote in ON?

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ON legislation said he had to be ordinarily resident in the place outside of QC in which you were going to vote.

Findings: He had moved, just like the NS woman above.

Ordinary residence was now QC. Couldn’t vote in QC, didn’t meet domicile, couldn’t in ON, wasn’t ordinarily resident in ON. Said that’s crappy, but that’s what it is.

Dissent: Justice Corrie gave a compelling argument that policy should be applied to facilitate a vote,

and this person shouldn’t have fallen through the cracks, but for now he did. Ordinary resident isn’t a tough test to meet, and he was now ordinarily resident in QC.

SUMMARY

Difficulty between residence and ordinarily resident comes in when you try to articulate what is more than ordinary when cases deal with being in a place for health, education, work, etc. – could all apply to ordinary.

Line between habitual residence and ordinary residence is not so clear. We know there is one though, because the courts have said habitual residence is more than

ordinary residence. Habitual residence needs to focus on something otherwise than for a known limited term. If

there’s a limited term, in Howell’s view, though the cases aren’t altogether clear, then you start to slip into ordinary residence from habitual residence.

Saw ordinary residence in Quigley with reference to 12 months ordinary residence for filing for divorce. In that case, the court was looking at the relationship between ordinary residence and simply a more limited type of visit like residence. The court noted that ordinary residence was less than habitual residence, but went on to say that the dividing line between ordinary and just residence - ordinary residence must be more than casual and more than a sojourn, more than a deviatory stop. On the facts of this particular case, court emphasized that the person had moved aspects of her life such as horses and trainer, family and caregiver for family, had all moved to TX – therefore not a casual period in Texas, despite being for a limited time. It was however, not casual or short-term, or a visit.

When looking at ordinary residence, may be for a limited term, but must be more than for just a short period of time. Must have to move your home.

For residence, we saw residence in the Wall case, and also saw in the Haig case, ordinary residence, but in both of those cases a significant influence in terms of the substantive statutory subject area with which the inquiry was involved. In the Haig case it was voting, J Corrie, saying that when one looks at an expression that involves residence, one should take account of the context, particularly the right-to-vote context. If you follow Corrie, you would accept less of a presence than what you might in another context to constitute ordinary residence.

In Wall, that spoke strictly of residence, but in a context of gaining citizenship, the court seems to want more than what you would normally find in just residence. The court looks to body and mind, and looks to a place of saying where is your centralized place of living, are you returning home to Canada or simply visiting Canada? Those types of test would not ordinarily relate to residence because that’s simply where

you are. In the context of citizenship, more was sought for residency. In Haig, more was wanted but

statutory context was emphasized and perhaps required less.

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STATUTORY MODIFICATION

QC – Civil Code Article 75-83 (plaintiff.141) Defines domicile with reference to one’s “principal establishment” – one’s actual residence

plus an intent to make it one’s principal establishment Allows a party to make an election in advance as to the party’s domicile for particular

circumstances MB (plaintiff.143) has enacted legislation that has removed the common law on domicile and

has brought together domicile and habitual residence into a merged test Apply the statute as a mandatory law of forum – then looks for both domicile and habitual

residence at one’s “principal home plus an intent to reside there” Presumed to reside indefinitely at the place of principle home.

National Trust Company Ltd. v. Ebro Immigration and Power Company Ltd., [1954] OR 463 (HC)

Says domicile of corporation in relation to its constitutional establishment is the place where the corporation was incorporated.

Can be resident in many places, but where domiciled? Place of incorporation.

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Part Two: JurisdictionPARTIES TO AN ACTION (“STANDING TO SUE”)

A “JURISTIC ENTITY”

Parties must be a “juristic entity” No issue if a party is a human, but may be some issues where a party is a corporation In BC, corporations have standing to sue and be sued even if they are not registered under the

BC BCA In other jurisdictions (such as ON), a corporation can’t be a plaintiff in any contract they

have made if they are an extra-provincial territory and haven’t fulfilled formal requirements of registering or notifying presence in the extra territory.

Looking at International Association of Science, in that case, in discussion that took place in AB with references to SK cases, the court said, alright the statute covered that, but for other aspects then an extra-territorial company will be recognized if it is incorporated elsewhere. Yes, recognized, and a corporation is recognized if it is a defendant

In general terms, an unincorporated domestic entity is not a juristic entity. Must find a statute that recognizes you as an entity, or whether a statute has required some sort of registration. But if an entity doesn’t fit within these categories, then it is not a juristic entity.

When you’re extra-territorial, the first rule is that you look at the forums conflict of laws. This usually says that if it is a juristic entity at the place of origin, it will be here.

Business Corporation Act, SBC 2002, c. 57, ss. 375 and 378

Foreign entities required to be registered375  (1) A foreign entity must register as an extraprovincial company in accordance with this Act within 2 months after the foreign entity begins to carry on business in British Columbia.(2) For the purposes of this Act and subject to subsection (3), a foreign entity is deemed to carry on business in British Columbia if

(a) its name, or any name under which it carries on business, is listed in a telephone directory(i)   for any part of British Columbia, and(ii)   in which an address or telephone number in British Columbia is given for the foreign entity,

(b) its name, or any name under which it carries on business, appears or is announced in any advertisement in which an address or telephone number in British Columbia is given for the foreign entity,(c) it has, in British Columbia,

(i)   a resident agent, or(ii)   a warehouse, office or place of business, or

(d) it otherwise carries on business in British Columbia.(3) A foreign entity does not carry on business in British Columbia

(a) if it is a bank,(b) if its only business in British Columbia is constructing and operating a railway, or(c) merely because it has an interest as a limited partner in a limited partnership carrying on business in British Columbia.

(4) A foreign entity need not be registered under this Act or comply with this Part other than subsection (5) of this section, and may carry on business in British Columbia as if it were registered under this Act, if

(a) the principal business of the foreign entity consists of the operation of one or more ships, and(b) the foreign entity does not maintain in British Columbia a warehouse, office or place of business under its own control or under the control of a person on behalf of the foreign entity.

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(5) Every person who is a resident agent or representative of a foreign entity referred to in subsection (4) must file with the registrar

(a) a notice of agency in the form established by the registrar stating(i)   the name of the foreign entity,(ii)   the chief place of business of the foreign entity outside British Columbia, and(iii)   particulars of the person's agency, and

(b) a notice of change of agency in the form established by the registrar identifying any change in that name, chief place of business or agency.

(6) Sections 27 (1), 384 and 385 apply to a foreign entity referred to in subsection (4) as if it were an extraprovincial company.

Effect of registration378  (1) Whether or not the requirements precedent and incidental to registration of a foreign entity as an extraprovincial company have been complied with, a notation in the corporate register that a foreign entity has been registered as an extraprovincial company is conclusive evidence for the purposes of this Act and for all other purposes that the foreign entity has been duly registered as an extraprovincial company on the date shown and the time, if any, shown in the corporate register.(2) Subject to the provisions of this Act, to the laws of British Columbia and to the laws of any other jurisdiction that are or may be applicable to it, an extraprovincial company may, for the purpose of carrying on business in British Columbia, exercise in British Columbia the powers contained in or permitted by its charter or similar record.(3) Registration of a foreign entity as an extraprovincial company does not entitle the foreign entity to do either of the following:

(a) carry on any business or exercise any power that its charter or similar record restricts it from carrying on or exercising;(b) exercise any of its powers in a manner inconsistent with those restrictions in its charter or similar record.

(4) No act of a foreign entity that carries on business in British Columbia, including a transfer of property, rights or interests to it or by it, is invalid merely because

(a) the act contravenes subsection (3) or section 422 (7), or(b) the foreign entity was not, at the time of that act, registered as an extraprovincial company.

Success International Inc. v. Environmental Export International of Canada Inc. (1995), 123 DLR (4 th) 147 (Ont. GD)

Facts: Success (NY Corp) & EEI (ON) had commercial contract to purchase tire manufacturing

equip. Included arbitration clause. Success got an arbitration award, tried to enforce in ON but was not in compliance with the licensing requirement for extra-provincial corps seeking access to ON courts.

In ON and other provinces (MB, SK), a corporation cannot be a plaintiff with respect to maintaining any action or other proceeding in any court or tribunal in respect of any contract made by it unless it is registered or filed as an extra-provincial company.

Issue: Does foreign NY corporation have standing to be plaintiff in ON?

Decision: Success was doing business in ON and therefore cannot maintain the application until

properly registered Assessment of whether the requirements are met:

Is the corporation doing business in the province? If so, is it registered or entered as an extra-provincial company?

If not, it cannot sue or maintain any action until registered.

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Success was arguing they weren’t doing business in ON because it was one big single transaction. Court found they were doing business – magnitude of the activity was significant (working with another company, large staff, team approach, contract is long-term, both parties devoted lots of time). Must interpret contract to promote sensible commercial result.

Note: It could be said that this is a mandatory rule of the forum – it’s passed by the legislature.

Bumper Development Corp. Ltd. v. Commissioner of Police of the Metropolis, [1991] 4 All ER 638 (CA)

Facts: Bronzed Hindu idol discovered by farmers in India and put on sale in England. Seized by police. Suit brought against police for conversion by the owner, Government of India, government

of a state government (Tamil Nadu), and a temple. The law in Tamil Nadu recognized that the temple as a juristic entity, even though it had

ceased to exist. Issue:

Did the temple have standing to sue? Decision:

Yes. The English court applied forum choice of law – the temple is a juristic entity in its place of origin, and therefore is a juristic entity in England.

Compare with Ortiz – recall that in that case, the NZ government was seeking to recover Maori artefacts. The court said it was too political for courts to intervene in.

In Bumper, the court was not dealing with a substantive issue but on the preliminary issue of whether the temple had standing.

International Association of Science and Technology for Development v. Hamza (1995), 28 Alta. LR 125 (CA)

Facts: Property action in a matrimonial dispute between Mr. and Mrs. Hamza. The Association was asking for a declaration regarding some assets that the Association had

an interest in. Mrs. Hamza was seeking to strike out the claim on the basis the Association lacked any

standing to sue in AB because they were unincorporated. Recall that if you are unincorporated under domestic law, then you must find a provision

that lets you proceed as a juristic entity. The Association was registered in Switzerland as a Society, and therefore was a recognized

entity under Swiss law. Swiss associations were asking for a declaration that said, regardless of the divorce, neither

person has any standing for the particular assets. Issue:

Does the Swiss International Association of Science have standing in AB? Decision:

Yes, they have standing and can maintain an action. Recognizes that an extraterritorial entity will be recognized if they can be juristic entities in

their place of origin. The position under AB law would have been that they lacked standing.

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But this was an international entity, so look to conflict of laws, which says that if unincorporated entities are permitted to be juristic entities in their place of origin, then they can be one here in AB.

Summary process: First look to the forum’s conflict of laws, and that directs you to the law of the other

jurisdiction. If they can be a juristic entity there, they can be here (to find their origin, probably look to headquarters)

Re Indian Residential Schools, [2001] AJ No. 1127

Facts: A suit was brought in relation to some of the abuse in residential schools against the Roman

Catholic church. Within domestic law, the Roman Catholic church is not a juristic entity.

Argument was made that the Roman Catholic Church was a foreign organization and therefore, should conflict of laws be applied to ask whether the Roman Catholic Church is a juristic entity in its place of origin? (That is, the Vatican)

Decision: Court said the parties have not advanced sufficient evidence to suggest that the Catholic

church is a juristic entity under foreign law. Matter not proceeded with.

ASSUMPTION OF JURISDICTION: THE EXISTENCE OF JURISDICTION OR JURISDICTION SIMPLICITER

PARTIES WITHIN THE JURISDICTION

The traditional test for recognition and enforcement and allowing jurisdiction to be taken: Service within the jurisdiction where the litigation occurred

This is significant because at common law, it could be a fleeting presence and just passing through a jurisdiction (Maharanee)

Consent to foreign laws (generally by way of choice of forum clause in a contract) Attornment

Maharanee of Baroda v. Wildenstein, [1972] 2 All ER 689 (CA)

Facts: Maharanee of Baroda purchases a painting in Paris, allegedly done by a noted artist. Brings it to England to auction, doesn’t sell, suspects it’s fake. Wants money back. Artist lived in Paris. When he was visiting London, documents were served on him, even though it was a

temporary visit and not in a typical situation for service. Issue:

Is fleeting presence sufficient to serve a defendant under English rules? Decision:

Yes – fleeting presence is sufficient to establish jurisdiction as of right. Note: cannot lure/trick defendant into jurisdiction Court indicated that it was very poor manners to serve proceedings on him there, but it was

still regarded as an effective service.

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Traditionally, the common law had focused on whether a person was physically present in the jurisdiction at the time the service of documentation and process was made on them (Forbes v. Simmons). So even fleeting presence was enough.

LOCATING A CORPORATION

See Success International, supra

PARTIES OUTSIDE THE JURISDICTION

CONSTITUTIONAL ISSUES

There is conflicting commentary regarding the traditional grounds: One is that the “real and substantial test” from Morguard doesn’t affect the traditional

grounds There is also commentary that indicates it might affect the traditional grounds, for example

in Van Breda. Therefore, some aspects may have to be rethought, such as the fleeting presence (which is reflected in the CJPTA)

Morguard Investments Ltd. v. De Savoye (1990), 76 DLR (4 th) 256 (SCC)

Facts: Morguard Investments were mortgagees of an AB property. The defendant, De Savoye assumed the mortgage in AB. The mortgage fell into default but at this point the defendant lived in BC. An action was brought in AB, but by this stage, the defendant lived in BC. Notice of AB proceedings was served by registered mail on the defendant in BC. No steps were taken by the defendant to appear in AB. AB court ordered properties to be sold to Morguard. Action in BC to enforce judgments.

Issue: Can a personal judgment validly given in AB against an absent defendant, be enforced in BC

where he lives? Decision:

Yes – BC can recognize and enforce judgments on the basis of a real and substantial connection between the action and the forum.

Recognition and enforcement of foreign judgments: clash between territoriality (common law) and comity (private international law) Territoriality: state has exclusive jurisdiction in own territory only Comity: deference and respect for legitimate state actions and court judgments within

territory; recognizes global, integrated world order. There is a linkage between the taking of jurisdiction and recognition/enforcement – based

on fairness, comity, if a jurisdiction has been properly taken, then the foreign jurisdiction should give full faith and credit to judgment and it should be enforced

Appropriately exercising jurisdiction: 2 situations If in personam: defendant in jurisdiction at time of action or submits to judgment

(agrees or attorns) If defendant outside court’s jurisdiction, served ex juris: need limits on jurisdiction – real

and substantial connection between subject matter and forum so reasonable to infer defendant voluntarily submitted to risk of litigation

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CONSTITUTIONAL ISSUES IN MORGUARD

Recall that Hunt gave constitutional dimension to the real and substantial connection test – this cannot be removed by provincial legislation.

In Beals, the principles of Morguard were applied internationally in relation to jurisdiction and recognition and enforcement. But Beals internationally hadn’t been given constitutional dimension, as the court in Beals

left it to provinces, as they wished, to legislate. (Howell: any provincial legislation has to meet 92(13) property and civil rights)

This should be distinguished from the principle of reciprocity where states must “sign up” to – reciprocity due to various jurisdictions signing on for something. Discussed by Court of Appeal in Morguard and discussed without disapproval by LaForest

in SCC judgment (will be discussed more with Beals) If British Columbia or an enforcing jurisdiction would itself, in similar circumstances, have

taken jurisdiction, then the foreign jurisdiction that took jurisdiction ought to be seen as properly taking jurisdiction

Reciprocity is putting an enforcing court in the shoes of the foreign court: “If this were to happen here, and we would take jurisdiction, then we should recognize the jurisdiction taken by that foreign court” = reciprocity

POST-MORGUARD GAPS

Is Morguard limited to interprovincial issues? In Spar Aerospace (SCC, 2002), the SCC said yes it is limited. But appeal courts have not limited it, and in 2003, the SCC applied Morguard internationally

in Beals How do we define “real and substantial connection”?

This caused a lot of difficulty – lead to the Van Breda case Two theories:

Personal subjection – defendant focused Adopted by the CJPTA

Administration of justice – plaintiff and defendant focused Adopted in ON, kind of

PROCEDURAL ENACTMENTS (FOR EX JURIS SERVICE)

The common law, as developed in Muscutt, emphasized an administration of justice theory. On the other hand, the CJPTA emphasizes the personal subjection theory – defendant focused Look at section 3 of the CJPTA – an example of the personal subjection theory because it is

defendant-focused – i.e. against a person/defendant So provinces which follow the CJPTA apply the connecting factors of the real and substantial

connection to the defendant only, whereas those who follow the common law apply the factors to both the defendant and plaintiff

Court Jurisdiction and Proceedings Transfer Act, SBC 2003, c. 28, ss. 2,3

Section 2 – “In this part, “court” means a court of British Columbia. The territorial competence of a court is to be determined solely by reference to Part 2. Territorial competence is defined in section 1 as: “aspects of a court’s jurisdiction that

depend on a connection between

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(a) the territory or legal system of the state in which the court is established, and (b) a party to a proceeding in the court or the facts on which the proceeding is based”

Section 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,

[attornment] (c) there is an agreement between the plaintiff and that person to the effect that the court

has jurisdiction in the proceeding, [consent] (d) that person is ordinarily resident [more than a fleeting presence] in British Columbia

at the time of the commencement of the proceeding, or (e) there is a real and substantial connection between British Columbia and the facts on

which the proceeding against that person is based. [residual clause] Section 10 – real and substantial connection (equivalent to jurisdiction simpliciter)

This section addresses the question, can the province take jurisdiction? Short answer: if it is an enumerated category, then yes. If not, need leave of court

A real and substantial connection is presumed if the enumerated categories exist If a matter falls within the enumerated categories of s. 10 of CJPTA, then an originating

pleading or petitioner of a document may be served ex juris (outside BC) without leave (Rule 4-5(1) of Supreme Court Civil Rules)

If a matter does not fall within an enumerated category, then it cannot be served ex juris without leave of the court (Rule 4-5(3))

Section 11 – forum non conveniens Once you’ve served your process, then that process may be challenged either on the basis

that you don’t fall within an enumerated category, or that there’s no real and substantial connection. Court may exercise discretion to decline jurisdiction.

Real and substantial connection10  Without limiting the right of the plaintiff to prove other circumstances that constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based, a real and substantial connection between British Columbia and those facts is presumed to exist if the proceeding

(a) is brought to enforce, assert, declare or determine proprietary or possessory rights or a security interest in property in British Columbia that is immovable or movable property,(b) concerns the administration of the estate of a deceased person in relation to

(i)   immovable property in British Columbia of the deceased person, or(ii)   movable property anywhere of the deceased person if at the time of death he or she was ordinarily resident in British Columbia,

(c) is brought to interpret, rectify, set aside or enforce any deed, will, contract or other instrument in relation to

(i)   property in British Columbia that is immovable or movable property, or(ii)   movable property anywhere of a deceased person who at the time of death was ordinarily resident in British Columbia,

(d) is brought against a trustee in relation to the carrying out of a trust in any of the following circumstances:

(i)   the trust assets include property in British Columbia that is immovable or movable property and the relief claimed is only as to that property;(ii)   that trustee is ordinarily resident in British Columbia;(iii)   the administration of the trust is principally carried on in British Columbia;(iv)   by the express terms of a trust document, the trust is governed by the law of British Columbia,

(e) concerns contractual obligations, and

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(i)   the contractual obligations, to a substantial extent, were to be performed in British Columbia,(ii)   by its express terms, the contract is governed by the law of British Columbia, or(iii)   the contract

(A)  is for the purchase of property, services or both, for use other than in the course of the purchaser's trade or profession, and(B)  resulted from a solicitation of business in British Columbia by or on behalf of the seller,

(f) concerns restitutionary obligations that, to a substantial extent, arose in British Columbia,(g) concerns a tort committed in British Columbia,(h) concerns a business carried on in British Columbia,(i) is a claim for an injunction ordering a party to do or refrain from doing anything

(i)   in British Columbia, or(ii)   in relation to property in British Columbia that is immovable or movable property,

(j) is for a determination of the personal status or capacity of a person who is ordinarily resident in British Columbia,(k) is for enforcement of a judgment of a court made in or outside British Columbia or an arbitral award made in or outside British Columbia, or(l) is for the recovery of taxes or other indebtedness and is brought by the government of British Columbia or by a local authority in British Columbia.

Moran v. Pyle National (Canada) Ltd. (1973), 43 DLR (3d) 239 (SCC)

This case was acknowledged in 2012 by the BCCA to be the leading case re: products liability.

Facts: A person in SK was changing a light bulb and was electrocuted and killed. Light bulb was manufactured and assembled in ON.

Issue: What is the location of the tort? Who has jurisdiction, ON or SK?

Decision: SK has jurisdiction to entertain the action. Lower courts found that no tort had occurred in SK, because the wrongful act occurred in

ON. SCC reverses For jurisdiction purposes only, tort can be committed in 1+ jurisdictions (result: can sue in

ON or SK) Test for place of commission: any country substantially affected by defendant’s activities or

its consequences and the law of which is likely to have been in reasonable contemplation of parties Products liability version : Forum has jurisdiction where foreign defendant carelessly

manufactures product in foreign jurisdiction that enters into normal channels of trade and he knows/ought to know both that because of his carelessness a consumer may be injured and it is reasonably foreseeable that product would be used or consumed where the plaintiff did.

Note that this case is pre-Morguard and pre-CJPTA. Contrast this with Muscutt

Breeden v. Black, 2012 SCC 19; Les Editions Ecosociete Inc. v. Banro Corp., 2012 SCC 18

Regarding non-physical torts. The SCC gave judgment in these two defamation cases finding the tort to have occurred in ON

by publication in ON.

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Teja v. Rai (2002), 209 DLR (4 th) 148 (BCCA)

Not assigned. Facts:

MVA in WA where both defendant and plaintiffs were from British Columbia. Before the commencement of the proceedings, defendant had moved to WA.

Action filed in WA. Issue:

What was the basis for jurisdiction? Decision:

WA sent it back to BC courts – adjourned the proceedings Note that this case is pre-CJPTA, but section 3(d) of CJPTA says “the person is ordinarily

resident in BC at the time of the commencement of the proceedings” The CJPTA was not in effect, so the court said, we can build up the case – car was registered

in BC, insurance in BC, they all travelled from BC. What would we do under our Act now?

Could say, under s. 3(b), that during the course of proceedings, the person submits to the court’s jurisdiction (defendant had talked to the province)

If he hadn’t talked to the province, would’ve had to go to residual clause re: real and substantial connection under s. 10

Muscutt v. Courcelles (2002), 213 DLR (4 th) (Ont. CA)

Has been of fundamental importance in the past, but no longer assigned. Comments from this case regarding Club Resorts Ltd. v. Van Breda.

Facts: ON resident injured in MVA in AB. Defendants lived in AB. Plaintiff returned to ON, sued

defendants from ON. AB defendants applied to stay action for want of jurisdiction. ON Rule 17.02(h) was repealed last year. It said that ON could take jurisdiction in respect of damage sustained in ON arising from a

tort and other situations wherever committed Issue:

Should ON courts assume jurisdiction over out of province defendants in claims for damage sustained in ON as result of tort committed elsewhere?

Decision: Jurisdiction assumed – real and substantial connection test met. Court preferred the administration of justice approach over the personal subjection

approach (so defendant and plaintiff focused – i.e. looks at real and substantial connections with ON and the defendant and with ON and the plaintiff) Plaintiff had a lot of connection with ON = ON is the best place Compare Moran with Muscutt – in Muscutt, the MVA and all the damage happened in AB,

but the consequential suffering (i.e. the damage) happened in ON. Court listed 8 factors for jurisdiction simpliciter:

Connection between forum and plaintiff’s claim Connection between forum and defendant Unfairness to defendant in assuming jurisdiction Unfairness to plaintiff in not assuming jurisdiction Involvement of other parties to suit Court’s willingness to recognize and enforce an extra-provincial judgment rendered on

the same jurisdictional basis

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Whether the case is interprovincial or international Comity and standards of jurisdiction, R&E prevailing elsewhere

These factors became the gold standard, but this didn’t last. The Uniform Law Commission drafted the CJPTA and chose the personal subjection approach.

Fatal flaw of this case – merged jurisdiction simpliciter and forum non conveniens (this was not corrected until the CJPTA and Van Breda)

SCC overturned this decision in Van Breda.

Stanway v. Wyeth Pharmaceuticals Inc. 2009 BCCA 592

Facts: Plaintiff, a BC resident, develops breast cancer, allegedly from taking defendant’s drugs.

Bought and used drugs in BC. Defendants had to be served ex juris – US corporations argued no presence in BC, no

jurisdiction under CJPTA. Plaintiff argued US/Canadian defendants were engaged in joint enterprise and alleged wrongful conduct caused her damage.

Motions judge looked at s. 3(e) and Muscutt. Issue:

Do the facts establish a real and substantial connection under the CJPTA? Decision:

BCCA upholds jurisdiction found at trial (but not reasoning). Sections 10(g) and (h) of CJPTA satisfied real and substantial connection is presumed

The correct approach would have been to first look at the enumerated categories in section 10 of the CJPTA. These are rebuttable but mandatory presumptions

Here, it is met in s. 10(g) – “a tort in BC”. This is a typical products liability case All of the defendants knew or ought to have known that their product would’ve been

used in BC (including the US companies because working with a Canadian distributor) – s. 10(g) satisfied

Section 10(h) also made out in that the argument that was made by the US companies (that they were not carrying on business in BC) was rejected on the basis that they were in a joint marketing enterprise with the Canadian company 

No further evidence required to justify if connection under a factor is strong enough. Tort of negligent manufacture located where damage occurred.

This case illustrates that Muscutt must not be used to determine real and substantial connection

Club Resorts Ltd. v. Van Breda 2012 SCC 17

Facts: ON person went to Ottawa travel agency, booked and went on a trip to Cuba. Defendant who owned the resort was in the Cayman Islands and had no office in ON. Plaintiff injured at resort. Action brought in ON.

But defendant had no connection to ON, and the wrong occurred in Cuba. The only connection to ON is that the plaintiff was from ON and the contract with travel

agency took place in ON. Issue:

Which place takes jurisdiction? What is proper approach to jurisdiction simpliciter? Decision:

Jurisdiction is taken by ON

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If this had happened in BC, under the CJPTA, it is unlikely that jurisdiction would have been given to BC. But in ON, based on connections to both the plaintiff and defendant, jurisdiction is taken

but the court by this stage is aware that Muscutt is now subject to heavy criticism. The Court really wanted to keep part of the administration of justice theory – explicitly

rejects personal subjection approach. Move very close to the CJPTA approach but not quite.

The case here is on global tourism. Compare this with a light bulb – with global tourism, you’re not going to be injured in

your home province, will definitely be injured somewhere else. SCC decision – Highlights (see handout)

Approached the topic independently of Muscutt. Presence of the plaintiff in the forum is not on its own a sufficient connection.

SCC emphasizes defendant’s connection to the forum. For claims in tort, the following are presumptive connecting factors (similar to s. 10 in

CJPTA): Carrying on business in forum – actual, not only virtual, presence in the jurisdiction

Does the person regularly visit ON? Is there a physical office? Is there an agent? Will look for greater connection – that is even wider than our s. 10(e) but may come

within residual clause The situs of the tort in the jurisdiction or the tort was committed in the province The defendant is domiciled or resident in the province/forum A contract connected with the dispute was made in the province/forum

The above list of presumptive connecting factors is not exhaustive – new factors can be developed (note the difference with the CJPTA: there is nothing in the CJPTA that allows for common law creation of new presumptive connecting factors, this would need to be done by legislative amendment)

Relevant considerations for new presumptive factors include: Similarity of the connecting factor with the recognized presumptive connecting factors Treatment of the connecting factor in the case law Treatment of the connecting factor in statute law Treatment of the connecting factor in the private international law of other legal

systems with a shared commitment to order, fairness and comity The remaining factors of Muscutt are of no relevance in finding connections

Muscutt no longer of any significance Decision does not discuss personal subjection or administration of justice theories

Traditional grounds of jurisdiction (pre-real and substantial connection) are preserved.

Laxton v. Anstalt 2011 BCCA 212

Facts: Funds were supposed to be subject to a trust for a party in divorce proceedings. Funds sent from BC to Liechtenstein

Issue: Whether BC court had jurisdiction

Decision: Yes – real and substantial connection based on ss. 10(f) and (g) When dealing with the tort of conversion, conversion occurs at the point where the funds

are taken, not the place to which the funds are sent. Therefore, look to the place where the funds were taken out.

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An arguable case existed that alleged tort occurred in BC statutory presumption in s. 10(g) was triggered

Also, s. 10(f) – breach of trust, moneys were taken in BC and restitution arose in BC Common law factors in Muscutt could not be used to rebut the presumption of real and

substantial connection established under s. 10 of the Act

Josephson v. Balfour Rec. Commission 2010 BCSC 603

Facts: Plaintiff ID resident sustained personal injuries when thrown from golf cart driven on golf

course in BC by defendant ID resident. Plaintiff received medical treatment in BC and ID. Plaintiff brought action in BC alleging negligence against defendant. Defendant brought 3P claim in medical negligence against ID medical centre on basis that

they contributed to plaintiff’s injuries. ID 3P applied to dismiss 3P proceedings against them on basis that BC court had no

jurisdiction over them. Issue:

Can ID hospital be subjected to the BC courts? Is there a tort in BC? Initial tort was in BC, but ID hospital had nothing to do with the initial tort If allegation is that the hospital was negligent, then that tort occurred in ID, not BC.

ID hospital was not carrying on business in BC. Decision:

BC courts have jurisdiction – section 6(b) of CJPTA applicable. Presumption of real and substantial connection does not apply here because facts

underpinning 3P claim concerned the tort committed in ID third parties in ID. No territorial competence under s. 3 of CJPTA but should exercise discretion under

s. 6 to hear 3P claim ID law does not recognize ability of defendant who is not patient to bring cause of action for

contribution or indemnity – defendant could not sue in ID Could have looked at residual category in s. 10 using Muscutt factors, but chose to use s.  6 Section 6 seeks to provide a forum when there is no other forum

Section 6(b): “A court that under s. 3 lacks territorial competence in a proceeding may hear the proceeding despite that section if it considers that the commencement of the proceeding in a court outside BC cannot reasonably be required”

Side note: what is the constitutionality of BC enacting this section, which, on its face, could be used to deal with a factual scenario that has nothing to do with property and civil rights in BC? Has not been considered by courts yet.

Third party claim factual matrix was very closely connected to plaintiff’s claim initiated in BC – only practical approach was for one court to hear all matters relating to cause of plaintiff’s injuries

Dembroski v. Rhainds 2011 BCCA 185

Re residence of the plaintiff per se. Facts:

Plaintiff was resident of BC who drove to AB to do 10 days of employment. Plaintiff injured in MVA with defendants in AB. Plaintiff commenced personal injury action against defendants in BC.

Issue:

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Was the Chambers judge correct that the BC court did not have territorial jurisdiction? Decision:

Yes – appeal dismissed. No real and substantial connection between BC and facts on which the plaintiff’s action

was based. Jurisdiction is AB.

Mere residence in BC of a plaintiff, or mere fact that plaintiff was suffering damage in BC, will not support the taking of jurisdiction by BC BC does not have a provision that focuses on damage in BC, not like Rule 17.02 in ON

(now repealed) Plaintiff tried to argue under s. 10(h) that she was doing business in BC – not a strong

argument – injury had nothing to do with her business in BC. If it had, case might’ve been decided differently

Aleong v. Aleong (2013), 55 BCLR (5 th) 364

Facts: Parties born and raised in Trinidad. Moved to BC in 1970 where they were married. In 1994, parties moved back to Trinidad. In 2001, wife began spending more time in BC. In 2005, wife moved back to BC. Parties had properties in Trinidad, discretionary trusts based in Barbados. Wife brought family law action in BC. Wife sought order granting her leave to serve husband in Trinidad, husband sought order

that action be dismissed or stayed based on lack of jurisdiction. Issue:

Does the BC court have jurisdiction? On what basis? Decision:

No – husband’s application to have order dismissed is granted No enumerated category for family law – family law must fit within the categories that are

there Wife could bring herself within presumption in s. 10(a) (enforce, assert, declare, or

determine property rights in property in BC) but amount of property in BC was miniscule in comparison to the total assets of the couple

Most of the focus in the judgment is on residual clause in s. 10: Plaintiff argues that s. 10 gives wide-ranging ability to establish jurisdiction on residual clause. Court rejects this – looks to Van Breda which says courts should restrain themselves

from finding jurisdiction “on the fly” without regard to some underlying objective principles.

Court considers whether some new presumptive connective factors should be added in BC but ultimately decides no – it would have to be on some solid objective ground like “last common habitual residence of the couple” as opposed to deciding on the fly

Can’t simply re-write s. 10. CJPTA is basically a code. The only place that you would see a court developing new presumptive connective clauses would be with respect to residual clause or possibly with respect to interpretive development of an existing enumerated factor

Court says there must be significant links re: real and substantial connection and jurisdiction simpliciter

Court says when looking at real and substantial connection under residual or enumerated clause, barrier can’t be too low.

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Indicates it is not good practice to have a low barrier and leave everything to forum non conveniens – must have a real and substantial connection

Differs from Van Breda because there the court says there may be instances where barrier is quite low. But in agreement that you can’t do things on the fly without there being a more substantial connection.

Note that this case demonstrates the willingness of BC courts to consider and take into account Van Breda – noting things that are consistent between the CJPTA and the common law as per Van Breda

Supreme Court Civil Rules, Rule 21-8 – Jurisdictional Disputes

Rule 21-8(1) go to jurisdiction simpliciter in section 10 of CJPTA. Rule 21-8(2) goes to forum non conveniens under s. 11 of the CJPTA These Rules basically state that a party that has been served with an originating pleading in a

jurisdiction, may apply to strike out or dismiss or stay the proceeding on the ground that court does not have proper jurisdiction

This is a mechanism for a defendant to respond to a proceeding and challenge that it fits within the jurisdiction. If not, invites the court to decline jurisdiction because there is a more appropriate forum (under (2))

Procedure: Plaintiff starts with a statement of claim and affidavits Defendant responds. Burden is on defendant. If the defendant raises queries that are significant enough to challenge the jurisdiction or

challenge that a good arguable case has been made out, then the plaintiff is obliged to respond to what the defendant has submitted

Disputed jurisdiction

21-8(1) A party who has been served with an originating pleading or petition in a proceeding, whether that service was effected in or outside British Columbia, may, after filing a jurisdictional response in Form 108,

(a) apply to strike out the notice of civil claim, counterclaim, third party notice or petition or to dismiss or stay the proceeding on the ground that the notice of civil claim, counterclaim, third party notice or petition does not allege facts that, if true, would establish that the court has jurisdiction over that party in respect of the claim made against that party in the proceeding,

(b) apply to dismiss or stay the proceeding on the ground that the court does not have jurisdiction over that party in respect of the claim made against that party in the proceeding, or

(c) allege in a pleading or in a response to petition that the court does not have jurisdiction over that party in respect of the claim made against that party in the proceeding.

Order declining jurisdiction may be sought

(2)Whether or not a party referred to in subrule (1) applies or makes an allegation under that subrule, the party may apply to court for a stay of the proceeding on the ground that the court ought to decline to exercise jurisdiction over that party in respect of the claim made against that party in the proceeding.

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Spar Aerospace Ltd. v. American Mobile Satellite Corp. (2002), 220 DLR (4 th) 54 (SCC)

Facts: M contracted with H for the construction of a satellite. H subcontracted with SA in QC to build the communications payload for the satellite, which

was installed in the satellite. Satellite disintegrates during testing. H refuses to pay S. S sues the owner of the satellite.

Issue: Owner wasn’t doing business in QC – was there a tort committed in the jurisdiction?

Decision: Yes – real and substantial connection with QC Focused on section 3148(3) of the Civil Code – damage suffered in QC.

Same provision as s. 17.02(h) in ON. Court asked:

Was the owner carrying on business in QC? No – nothing to do with S. H was not party to the litigation.

Was there a tort committed in the jurisdiction? No. Was the defendant domiciled, resident, or ordinarily resident in QC? No. Was there a contract connected with the dispute that was made in the province?

There was a contract, but it wasn’t made by the satellite owner, it was made by H who was not a party to the litigation

So what was the basis? Damage happened in QC. Note that in BC, this result would not be reached, as we don’t have a “damage in BC” clause

unless we go to the residual clause S. 6 says the court can take jurisdiction regardless, even where no real and substantial

connection, if there is no other forum that could properly take jurisdiction. LeBel comments in this case that Morguard cannot be extended beyond interprovincial – but in

2003, the majority says yes we can

AG Armeno Mines and Minerals Inc. v. PT Pukuafu Indah (2000), 77 BCLR (3d) 1

Facts: Indonesian defendants breached agreement with plaintiff giving plaintiff option to buy

interest in mining project. Agreement made in BC, governed by BC law. Plaintiff claims that the defendant induced the breach of that agreement and inducing the

breach of contract is a tort – plaintiff argues that the tort occurs in BC. Arguments:

Defendant argued that the contract that would allow the plaintiff to acquire the interest is going nowhere because the government has to approve (and it is unlikely they will) and the acquisition has to involve the consent of the defendants

Defendant also argues that even if they have induced a breach of contract as a tort in BC, there is no causation because even if he hadn’t induced the breach they would not have approved it Therefore no good arguable case

Decision: Defendant successful – Plaintiff failed to make a good arguable case Defendant submitted affidavit evidence that requires plaintiff to make some evidentiary

response as to whether the defendant’s assertions are true or not – plaintiff did not do so

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Defendant was successful in saying that, even if there was a tort in BC of inducement of a party to breach a contract, the case cannot be won by the plaintiff

Ratio: Jurisdiction simpliciter typically decided on pleadings, but if material shows that plaintiff’s

claim is tenuous (defendant’s burden), plaintiff has to establish “good arguable case”. Low threshold = serious question to be tried

MTU Maintenance Canada Ltd. v. Kuehne & Nagel International Ltd. 2007 BCCA 552

Facts: Plaintiff maintains aircraft engines, NB corp. but registered in BC. Sometimes imports/exports parts into US. Plaintiff entered into contract with Canadian defendant to look after customs clearances. Defendant subcontracted to US defendant. Plaintiff alleges defendant didn’t fully and effectively mitigate or eliminate US customs

liability. Pleaded under s. 10 of CJPTA.

Issue: What evidence is needed to establish jurisdiction? A submission was made that a misrepresentation was made – where was it made?

Decision: Court record doesn’t support action – no case Negligent misrepresentation occurs in jurisdiction where advice is received but location

was not alleged in statement of claim. Affidavits did not say the misrepresentation had been made in BC, nor was it clear that the defendant was carrying on business in BC; affidavit simply said that the company had been registered in BC

Statement of counsel – plaintiff’s counsel had stood up and said “these facts are true.” Court of Appeal said this is not good enough, can’t rely on counsel’s statements for facts, this is not sworn evidence. Submissions for jurisdiction must be submitted as sworn evidence

Howell: interesting that the court comments that the BC record has to be a good, accurate record, because if it were taken elsewhere to be enforced, a court may look through the record. They will usually not go “behind the face of the judgment”

Ratio: For jurisdiction, need facts pleaded in writ of summons or statement of claim or in

supplementary affidavits Take-home point re: burden of proof from Armeno and MTU: for jurisdiction simpliciter,

plaintiff seeking ex juris service needs to have a good arguable case. Under the rules, when a defendant challenges and presents evidence which ordinarily is by way of affidavit, sworn evidence, that a plaintiff has to answer that. If the plaintiff doesn’t, the defendant is likely to succeed in showing that there is not a good arguable case

Right Business Ltd. v. Affluent Public Ltd. (2012), 37 BCLR (5 th) 101 (BCCA)

Re substantial connection, good arguable case, ordinary residence Facts:

Chinese company wishes to buy a potash company but the government does not approve. So company entered into a series of arrangements with other parties who would purchase

on their behalf. Went to Hong Kong firm, who went to Right Business who provided the money from the

Virgin Islands to Affluent Public, who was to purchase the company.

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Money flowed through a bank in Richmond. Decision:

BC jurisdiction! Court was able to find a 10(d), breach of trust in BC, and 10(g) – conversion or conspiracy to

convert money in BC Also, company had an agent in BC, fixed with agency in BC subject to BC jurisdiction

Company had an agent in BC – action is subject to BC

Environmental Packaging Technologies Ltd. v. Rudjuk, (2012) 36 BCLR (5 th) 103 BCCA

Note the distinction between establishing jurisdiction and deciding the merits. Facts:

Russian company associated with an HK company, engaged with a TX company. Contract entered into by Rudjuk in relation to this deal.

Findings: Rudjuk operated through a BC company and got his salary paid to him by BC, and that gave

rise to jurisdiction of BC through various heads in s. 10 Court cautions that the proceedings at this stage are only preliminary proceedings

Defendant argues the trial court did not establish firmly that there was a tort/business carried on in BC or a fiduciary arrangement.

Court says don’t need to decide merits at this stage – all you are looking for is a good arguable case based on affidavits and sworn statements and statements of claim and defense.

Harrington v. Dow Corning Corp. (2000), 193 DLR (4 th) 67 (BCCA)

Facts: Pre-CJPTA case. Class action brought in BC against defendant (breast implants) in product liability and

failure to warn. Defendant not a BC corp. Problem: some plaintiffs didn’t have any connection to BC, just wanted to opt-in.

Issue: Can a court take jurisdiction over plaintiffs with zero presence in jurisdiction on the basis of

common issues? Decision:

Yes – common issue of fact is sufficient connection for jurisdiction simpliciter Class action is useful to illustrate s. 92(13)

Generally everyone finds class actions desirable – saves scarce resources How do you bring it within 92(13) – dealing with provincial courts and saying this

judgment from the court in BC will also encompass people from ON – what is their connection to BC? In BC, section 16(2) of CPA states a person who was not resident of BC may opt in to

the class. ON also has an opt-out option – i.e. its judgment binds unless members opt out

(slightly more problematic) Is there a difference between opting out and in? Yes, but here it’s not the defendant who is

opting in Given that there are a significant number of women that were resident or implanted in BC,

could say there were enough of those that others could be lumped in through pith and

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substance. However, if there were a minimal number in BC and substantial in ON, that would make the argument harder.

Where the traditional rules don’t ensure order/fairness, consider nature of subject matter of action.

Jurisdiction simpliciter is not a rigid concept, the rules are functional. Dow’s product was marketed in all of Canada. Excluding these residents would be

contrary to order/fairness.

Ward v. Canada 2007 MBCA 123

Facts: Class action commenced in MB against NB Crown for exposure to herbicides while working

in NB in 1950s. A plaintiff was now a MB resident suffering from illness attributed to the exposure

Issue: Did MB have jurisdiction?

Decision: Yes – federal Crown is resident in every province so MB has jurisdiction

Muzak Corporation v. Composers, Authors & Publishers Association of Canada Ltd., [1953] 2 SCR 182

Facts: Copyright case dealing with the “authorization right” (like having a photocopier at

university and allowing students to photocopy entire books). Machine supplied to play music, supplier was in NY, music played in ON. Plaintiff brought action for infringement of copyright. Plaintiff obtained an order of the

Exchequer Court giving it leave to issue a notice of the statement of claim for service out of the jurisdiction against the appellant.

Issue: Is it a breach of copyright in Canada by having the machine and the discs to be played?

(supplier is in NY and Exchequer Court served ex juris to the NY court) Decision:

In the context of supplying a machine with the discs, there would not be an authorization SCC applied a narrow English test to that alleged authorization Howell: what the court should have done is, say yes you can serve it ex juris, there’s a good

arguable case, then left the matter for trial at the Exchequer Court to decide on the merits but the SCC decided it all there.

FORUM NON CONVENIENS : DISCRETION TO DECLINE JURISDICTION

A court may decline to take jurisdiction if it finds a court in another jurisdiction is more appropriate (not necessarily “most” appropriate) Relevant circumstances: comparative convenience and expense; choice of law; parallel

litigation (avoid conflicting rules in different courts); enforcement of the parallel judgment Cases have looked at forum non conveniens in terms of recognition and enforcement (and

therefore forum non conveniens not restricted to jurisdiction simpliciter), but in Canada Post Corporation, the SCC, in interpreting the QC civil code, declined and did not permit the looking at the equivalent provisions in the QC civil code to forum non conveniens

English law was slow in utilizing forum non conveniens and finally recognized it in Spiliada

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St. Pierre was an early case (1935) that focused on tests that could displace a plaintiff’s choice of forum. Starts off with the proposition that the plaintiff can choose the location where there is a juridical advantage to the plaintiff. This will be displaced in two contexts (must have personal jurisdiction over the plaintiff, e.g. plaintiff is resident in England and files in Texas): Stay of proceedings – where proceedings are stayed because it isn’t the suitable place to file

them Anti-suit injunction – where a plaintiff files in a foreign state. If the court has personal

jurisdiction over the plaintiff, then the English court can issue an injunction over the plaintiff stating that they cannot file in the foreign jurisdiction (e.g. Texas)

The court in St. Pierre utilized the test of “vexatious or oppressive” as the basis for displacing a plaintiff’s juridical advantage in choosing a forum. This comes after jurisdiction simpliciter and is predicated upon the requirement that the court can take jurisdiction.

ENGLISH POSITION IN TRANSITION

Spiliada Maritime Corp. v. Cansulex Ltd., [1987] AC 460 (HL)

HOL completes its move to adopt principle of forum non conveniens, which it attributed to the Scottish Court. In context of a stay, contains no mention of “vexatious or oppressive” and focuses upon

both or all parties without emphasizing a plaintiff’s juridical advantage. Looks to the “suitability of the forum” and the “ends of justice” in terms of efficiency of

hearing the particular case. Now look primarily to s. 11 of the CJPTA, which largely reflects this case.

Facts: Ship – bulk carrier – was Liberian registered. Chartered to an Indian company, which was using the boat to transfer sulphur from

Vancouver to India. Wet sulphur was loaded onto two ships in BC causing damage to them. Action brought in England against Liberian owners of the Spiliada for the damage to the

ship against the sulphur exporter. Issue: should the English courts stay the proceedings in the Spiliada case?

Questions of law were whether the limitation period had expired, and whether the defendant was in a contract with the owner.

Federal Court in Canada ruled the defendant wasn’t in a contract with the owner and therefore not subject to arbitration/mediation in London, and English court took stance that they were in a contractual relationship

Decision: No – England is the appropriate forum Court considers “connecting factors” – includes factors affecting convenience or expense

(e.g. availability of witnesses), law governing the relevant transaction, and the places where the parties reside or carry on business

For our purposes, we look at these factors but primarily at s. 11 of the CJPTA, which largely reflects the Spiliada case Section 11(2) of CJPTA – A court, in deciding the question of whether it or a court

outside BC is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including: (a) The comparative convenience and expense for the parties to the proceeding and

for their witnesses, in litigating in the court or in any alternative forum (b) The law to be applied to issues in the proceeding

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(c) The desirability of avoiding multiplicity of legal proceedings (d) The desirability of avoiding conflicting decisions in different courts (e) The enforcement of an eventual judgment, and (f) The fair and efficient working of the Canadian legal system as a whole

Notes/Implications of Spiliada: English courts adopt fully the forum non conveniens principle in this case. A judge may decline to take a case where there is another jurisdiction that is more suitable

for the parties. “A stay will only be granted on the ground of forum non conveniens where the court is

satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which case the case may be tried more suitably for the interests of all the parties and the ends of justice” Court emphasizes suitability of forum, and ends of justice in terms of the efficiency

of hearing the particular case The burden is on the party that asserts there is a more appropriate forum elsewhere

Moves away from St. Pierre ruling Prior to this case, a court could only grant a stay of proceedings on the grounds that a

suit was “oppressive, vexatious or an abuse of process” and that “the stay would not cause an injustice to the plaintiff. Here, court makes no mention of “vexatious” or “oppressive”

Legitimate personal or juridical advantage Historical position at common law was the plaintiff’s juridical advantage and a theory

that the plaintiff should rarely be disturbed in the choice of forum This advantage used to be greater but must be more neutral now. Can’t have favour for

plaintiff for relative convenience. In this case, Court focuses on both or all parties without emphasizing a plaintiff’s

juridical advantage

Société Nationale Industrielle Aérospatiale v. Lee Kui Jak, [1987] 3 WLR 59 (PC)

Anti-suit injunction case, Privy Council decided that it would not depart from the St. Pierre test for an anti-suit injunction. Emphasized that the issue of an anti-suit injunction has a more significant process than

a stay. A stay is an example of self-restraint by a forum whereas with an anti-suit

injunction, although not directed to the foreign forum, is a more aggressive move. Greater emphasis is focused on not disturbing a plaintiff’s choice unless it is a very

important reason to intervene in that way. Facts:

Helicopter crash in Brunei. Passenger was a resident and carrying on business there. Manufacturing, ownership, operation all by different companies. Widow commences actions in Brunei, France, Texas (Texas law is more favourable for

product liability). Application to Texas court to stay proceeding. Application in Brunei for anti-suit injunction (to prohibit plaintiff from continuing action

against US in Texas). Issue:

What are principles governing anti-suit injunctions? Decision:

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Injunction granted. Plaintiff’s conduct in continuing in Texas is oppressive – no objection on basis of justice Privy Council decided to not depart from the St. Pierre case for an anti-suit injunction and

applies the “vexatious or oppressive” test. Vexatious – frivolous, useless, proceedings so absurd they can’t possibly succeed;

perhaps objective is to annoy or harass; no real advantage to the plaintiff Oppressive focuses on the lack of connections with the jurisdiction that the plaintiff had

sought to bring the proceeding Privy Council considers Spiliada and decides they will not follow that in the context of an

anti-suit injunction. In this context, a stronger test must be followed (i.e. vexatious or oppressive) because this is a more significant process than a stay. A stay is an example of self-restraint by a forum, whereas an anti-suit injunction,

although not directed to a foreign forum, is directed to the party, nevertheless it is a more aggressive move. Also, it doesn’t directly affect the jurisdiction itself, but rather indicates that the jurisdiction is not appropriate

Note that Texas doesn’t have a law on forum non conveniens Take-home point:

Will not apply forum non conveniens test for anti-suit injunctions. A greater emphasis is placed on not disturbing a plaintiff’s choice of forum with an anti-suit injunction unless it is very important/necessary to intervene

MODERN CANADIAN POSITION

Court Jurisdiction and Proceedings Transfer Act, SBC 2003 c. 28, s. 11

Note that the definition of territorial competence is wide enough to capture what is set out in Section 11 – “a party to a proceeding in the court or the facts on which the proceeding is based”

In sections 3 and 10, focus has been on the facts. In section 11, the focus is on the parties. When challenging jurisdiction, no need to have challenged under s. 11(1) – can go directly to

11(2) What is not referred to in section 11?

An anti-suit injunction The language of section 11(1) is focused on a stay – “a court may decline to exercise…” But there is a similarity between forum non conveniens and an anti-suit injunction.

Anything expressly concerning jurisdictions selection clauses E.g. Old North State – clause was worded to not be exclusive. But if one had an exclusive

choice of forum clause, what impact should that have. No enumerated category unless you look at (c) – avoiding multiplicity of legal

proceedings Two ways of treating this:

One either treats it totally separately and says s. 11 does not include an express exclusive forum – then look to Pompey (this tends to be the position in BC

Alternative way is saying it’s part of the circumstances relevant to the proceeding and therefore it should come within s. 11(2) (SK court seems to have done that; Preymann seems to say it doesn’t matter which way you went)

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Discretion as to the exercise of territorial competence11  (1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.(2) A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including

(a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum,(b) the law to be applied to issues in the proceeding,(c) the desirability of avoiding multiplicity of legal proceedings,(d) the desirability of avoiding conflicting decisions in different courts,(e) the enforcement of an eventual judgment, and

(f) the fair and efficient working of the Canadian legal system as a whole.

Amchem Products Inc. v. British Columbia (WCB) (1993), 102 DLR (4 th) 96 SCC

When in context of an anti-suit injunction, we are looking at this case. Follows Spiliada, Sopinka doesn’t use real and substantial connection” wording, noting

those words probably aren’t appropriate now to forum non conveniens and s. 11 does not use those words either.

Recall that after SCC decision in Morguard that jurisdiction simpliciter and forum non conveniens analysis sort of ran together.

Facts: BC workers injured via asbestos exposure. WCB brings tort action in TX to recover money

paid to workers. Defendants are granted an anti-suit injunction in BC at the trial court and court of appeal.

Issue: On what grounds can BC grant an ASI where there is no action ongoing in BC?

Decision: Anti-suit injunction set aside – Texas action can continue There are two remedies to control the choice of forum:

(1) a stay of proceedings, which enables the court of the forum chosen by the plaintiff to stay the action at the defendant’s request if the case should be tried somewhere else

(2) an anti-suit injunction, which is granted by the domestic court at the request of a defendant in a foreign suit These raise serious issues of comity, as the domestic court is in effect determining

the matter of jurisdiction for the foreign court Comity requires that Canadian courts respect foreign court’s assumption of

jurisdiction where foreign court acting on basis consistent with our rules An anti-suit injunction should only be granted when a foreign court has departed

from our own test of “inconvenient forum” to an extent which justifies our courts refusing to respect its assumption of jurisdiction because of the serious injustice occasioned

Stay of proceedings Court follows Spiliada in relation to a stay Sopinka notes that the Spiliada case does not deal with oppressive or vexatious

Anti-suit injunction For ASIs, the principles in Société Nationale should be the foundation. Step 1:

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As a general rule, the domestic court should not entertain an application for an injunction if there is no foreign proceeding pending. Foreign proceeding should be filed first. ASI will not be granted on an anticipatory basis.

The court notes that it is preferable for the party to have sought a stay in the foreign proceeding (in the foreign forum) first.

If a stay/dismissal is granted, problem solved! No injunction necessary. If refused, and decision was unreasonable, go to step 2

Step 2: Only if the foreign court refuses to stay or dismiss the action there (i.e. they accept jurisdiction even if it doesn’t satisfy our forum non conveniens test), should the domestic court entertain the application for an injunction but only if it is alleged to be the more appropriate forum and is potentially an appropriate forum (based on relevant factors – closest connection with actions and parties) Standard for granting ASI is injustice – Sopinka prefers the terms “injustice” or

“the ends of justice” instead of “oppressive and vexatious” – this is now a watered down approach. Requires domestic court to ask if foreign court could’ve reasonably concluded it was the most natural forum. Howell: the watering down of the terms vexatious or oppressive might make it

difficult to distinguish the process of an anti-suit to that of a stay, but the court did indicate that a deeper inquiry had to be made for an ASI – these two processes remain separate and distinguished

If you’re asking domestic court to issue ASI, then you should have commenced proceedings, which would be parallel proceedings in the domestic court. This reflects the fact that the domestic court must be seen as the more appropriate jurisdiction.

The court that issues the ASI must have personal jurisdiction over the plaintiff otherwise it’s a waste of time

Burden of proof In Spiliada, the House of Lords said the burden is on the defendant to show that (a)

England is not the natural or appropriate forum for the trial and (b) to establish that there is another available forum which is clearly or distinctively more appropriate

Sopinka follows Spiliada but does not formally put the burden on the defendant, but comes pretty close – “the burden of proof should not play a significant role in these matters, as they only apply in cases where a judge cannot come to a determinate decision on the basis of material presented”

BC and ON have generally kept the burden on the plaintiff – requiring the plaintiff to answer, on the balance of evidence, what the defendant has presented. Amchem uses equivocal language and doesn’t speak specifically of a burden on the defendant.

Note: Remember that s. 11 of CJPTA is only concerned with a stay – there is nothing in s. 11 that deals with anti-suit injunctions, so with these, we’re looking at case law, not the CJPTA!

Wenngatz v. 371431 Alberta Ltd., 2013 BCCA 225

Appeal arguing that the trial judge placed excessive reliance on the plaintiff’s forum: “A plaintiff’s choice of forum should not be lightly denied. It is his right to have ready access to the courts of his jurisdiction and not be required to travel outside his jurisdiction to present his case.”

The Court of Appeal finds that the trial judge overweighed the importance of the plaintiff’s choice of forum and that provided the basis on which they could interfere with the order. Court makes it clear that in the context of a stay, we do not deal with any notion of a juridical advantage of a plaintiff, and the assertion that a plaintiff’s choice shouldn’t be lightly denied is

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no longer relevant after Amchem. We now look to the “interests of the parties and the ends of justice” and comity.

Also noted that a deeper inquiry had to be made for an anti-suit injunction than simply a stay.

Bushell v. T&N Plc (1992), 67 BCLR (2d) 330 (CA)

Good starting point for burden of proof issues in forum non conveniens Bushell was decided right before Amchem. Court found that the burden of proof remained on the

plaintiff in service ex juris cases. The plaintiff had to establish that there was a good arguable case, that there was jurisdiction simpliciter, and that BC was the forum non conveniens. The decision survives Amchem and the CJPTA.

Howell: For jurisdiction simpliciter: in Ameno and MTU, the court required the plaintiff seeking an ex

juris service to have a good arguable case for any proceeding, not just ex juris. Recall that under the Rules, where a defendant challenges and presents evidence by way of affidavit, the plaintiff has to answer.

For forum non conveniens, the law is a little muddier because of Spiliada, followed by Amchem, which said the burden is on defendant to show England is not the appropriate forum and that there is another more appropriate forum

With forum non conveniens, the burden is balanced out between the plaintiff and defendant. There is no longer a juridical advantage in assessing relative convenience. This is reflected in section 11 – “after considering the interests of the parties to a proceeding” – refers to both parties

Westec Aerospace Inc. v. Raytheon Aircraft Co. (1999), 173 DLR (4 th) 498 (BCCA)

Facts: Defendant carries on business in KS, no business or residence/assets in BC. Plaintiff was a BC company, which carries on business in BC. Parties entered into a contract where plaintiff delivered software to defendant in KS for use

in KS. Dispute re: source code, Westec makes settlement offer.

With one hour to go before settlement, defendant filed in KS saying there had been no breach of contract and no damage had been suffered.

Said formation of contract did not point clearly to either KS or BC, licence had been extended by phone from BC and accepted by phone in KS.

Issue: Is KS the appropriate forum for the resolution of the dispute?

Decision: Plaintiff loses for choice of forum – KS it is

The formation of the contract did not point clearly to one jurisdiction or the other. The governing law of the contract was BC. The license that had been extended by phone in BC had been accepted by phone in KS.

There were more witnesses in KS. A filing had taken place in KS. KS was found to be an appropriate forum to adjudicate the dispute – close connection with

the subject matter and may be regarded as an appropriate forum for the resolution of the dispute

Once we move away from talking about a plaintiff’s juridical advantage, then the question becomes a more generalized balancing question, as to whether one jurisdiction is more

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appropriate than another and court is required to consider the interests of both or all parties

Note: In the BCCA decision of Teck Cominco, the court notes that this case must be regarded as an

example where neither BC nor KS was more appropriate than the other

PARALLEL PROCEEDINGS

A proceeding filed in two or more jurisdictions – i.e. where there is a lawsuit about a particular subject matter between a plaintiff and defendant, and that suit has been filed in two or more places by one or other of the parties.

Section 11(2) of CJPTA – one of the relevant circumstances a court must consider is (c) the desirability of avoiding multiplicity of legal proceedings and (d) the desirability of avoiding conflicting decisions in different courts.

Comity is another consideration here – if another jurisdiction had allowed the proceedings to exist, comity requires that a second jurisdiction stay second or subsequent proceedings (although note that Teck Cominco disposes of comity as an overriding principle)

Wang v. Sun (2014), 60 BCLR (5 th) 420

Facts: Plaintiff alleged he provided consulting services to defendant re: sale of property in China.

Claimed he was owed $3.4 million as commission. Defendants submitted BC court should decline jurisdiction, applied for stay of proceeding. A second proceeding was launched in China by the defendant against a realty company

regarding the validity of the contract of sale. Issue:

Does the BC court have jurisdiction? Were there parallel proceedings? Decision:

Yes BC is the appropriate forum. Defendants did not establish that there is another forum clearly more appropriate for the

determination of the claim so as to displace the plaintiff’s prima facie right to the forum of his choice

Court started with the proposition that a plaintiff has a right to proceed in his or her chosen forum and the defendant asking the court to exercise its discretion to decline jurisdiction has a significant onus to meet Howell: This is a suspect statement – there is no longer any issue about juridical

advantage Court refers to proposition from Van Breda that if the defendant raises forum non

conveniens, 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 In Van Breda, SCC chose the language that the defendant has to show an alternate forum

is “more appropriate” (like in s. 11), not “clearly more appropriate”. SCC is inclined to say that a burden of proof lies on the defendant

Howell: Sopinka is probably correct in saying that in most cases, the burden isn’t going to be relevant. A formal determination of whose burden it is likely only relevant when the evidence submitted is equal, and then the court can’t reach a decision. And this won’t come up terribly much

Parallel proceeding

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Court found that the Chinese proceeding was not a parallel proceeding and allowing the plaintiff to proceed in BC would not be inviting a multiplicity of proceedings or possible inconsistent outcomes.

The dispute in BC was whether or not a commission would be paid to a person who helped in the transaction (i.e. the plaintiff). The person seeking commission was not a party to the proceedings in China.

Laxton v. Anstalt 2011 BCCA 212

Recall this case – funds were supposed to be subject to a trust for a party in divorce proceedings. Funds sent from BC to Liechtenstein. Conversion occurs when funds taken.

Case raised a question re: whether a BC judgment would be enforced in Liechtenstein. The enforcement of a judgment is one of the enumerated grounds (s. 11(e) – regard to

eventual enforcement of the eventual judgment). It was indicated Lichtenstein would probably not enforce the judgment, but the BC court said it

wasn’t going to use that ground as a basis for rejecting its jurisdiction.

Teck Cominco Metals Ltd. v. Lloyds Underwriters, 2009 SCC 11, 303 DLR (4 th) 385

Facts: Teck faced with a WA lawsuit for discharge flowing from BC to WA, causing environmental

damage. A claim for environmental damage was proceeding in WA in the federal court and other

proceedings at the state level as well. Second issue involving insurance coverage.

WA proceedings filed 9 hours before BC proceedings – WA is first to file. BCCA decision gives a useful discussion of comity and comparing interprovincial comity

with international comity. BCCA indicates that comity is much stronger or “more powerful” between provinces

than is the case internationally Issue:

Does the first to file principle plus comity mean that the BC proceedings should be stayed? Should forum automatically stay an action if a foreign court has determined it is the forum conveniens?

Decision: Jurisdiction issue – does CJPTA apply where prior assertion of jurisdiction?

It was argued that section 11 of the CJPTA does not apply when a foreign court has asserted its jurisdiction. Counsel was submitting to the court that s. 11 must give way to the principle of comity. Alternatively, if s. 11 does apply, the assertion of jurisdiction by the foreign court was overriding and determinative under the s. 11 analysis Rejected! Section 11 applies! Section 11 is a complete codification of the common

law test for forum non conveniens, no exceptions. Comity does not equal an automatic deferral. Must consider circumstances under

11(2). Even though the CJPTA is a code, it has an open-ended feature – “court must

consider the circumstances relevant to a proceeding”. But the SCC is clear that you cannot introduce exceptions to s. 11

Prior assertion of jurisdiction is not an overwhelming factor in determining forum conveniens – it is just one factor of many.

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Blind acceptance of a foreign court’s prior acceptance of jurisdiction carries the risk of declining jurisdiction in favour of the jurisdiction that is not more appropriate. Otherwise, this would be bad policy – if first to file was given overwhelming weight, this would determine jurisdiction, rather than the inquiry of ascertaining which jurisdiction is the most appropriate

Insurance issue U.S. courts said the insurance issue was part and parcel with the environmental issue

(Howell says it probably was not – people who were injured environmentally have no claim under the insurance policy)

Parallel proceedings: Court notes that the insurance coverage has nothing to do with Washington state. WA wouldn’t stay the proceedings, but held off while the Canadian proceedings went through the court, and now the SCC said that the BC proceedings weren’t to be stayed either. Now for parallel proceedings in an insurance context, we have disposed of first-to-

file as an overriding factor, but have we replaced it with “the first to give judgment”? A hypothetical question is raised: what if Washington gives judgment against the

insurers in interpreting the insurance policy as to whether liability can be seen as property damage under the insurance policy – what if that judgment is given first and is brought to BC for enforcement?

SCC said we’ll cross this bridge when we come to it! We have three options: (1) first to judgment is the one enforced; (2) would give absolute preference to the local proceedings (this is the position under the QC Civil code); or (3) some middle ground – enforce the first judgment, but could add additional defences or qualifications. But left that point open.

Take-home point: Case confirms that s. 11 is the place to go for forum non conveniens analysis and parallel

action/prior assertion of jurisdiction is just one factor, not a trump

CLASS ACTIONS

Recall earlier cases Harrington and Ward v. Canada re: class actions. Some plaintiffs did not reside in BC) and Ward v. Canada (class action against NB Crown

for exposure to herbicides) Both cases raised the desirability of class actions Even though class actions have their own legislative provisions and are not dependent on

general legislative provisions, 92(13) can arise. In Harrington, a reference to the Class Proceedings Act – court talks about what that Act

allows but qualifies it by saying “in an absence to a challenge of the constitutionality of that legislation”

Canada Post Corporation v. Lepine 2009 SCC 16

Facts: Case involved Canada Post saying they were offering free internet service that would last a

lifetime, actually lasted 9 months. On February 6, 2002, the Lepine action was filed in QC. On March 2002, the McArthur action was filed in ON. On May 27, 2002, the Chen action

was filed in BC. In December 2002, there was an action filed in AB under the AB Fair Trading Act.

LeBel noted that the relevant date is when proceedings are commenced (i.e. when the motions are filed for a class action), not when a class action is certified.

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Issue: In December 2003, the ONSC certified and approved the class action, and gave out a

judgment approving the settlement. The approval of the settlement operated on an opt-out basis, so it binds everyone in Canada

except BC where a settlement was reached in 2004. This approval by the ONSC was not recognized in QC. Canada Post applies to court.

Decision: QC doesn’t have to enforce the judgment The judgment rendered by the ONSC created unavoidable conflict.

The QC proceedings were ongoing, and they could not be stayed. To break the impasse, Canada Post applied to the QC Superior Court to enforce the ON judgment.

This raised the issue that was left open in Teck Cominco – QC would not stay its proceedings, and ON had given a judgment – how will this work?

Civil Code 3155 stipulates that there will be recognition and enforcement of any judgment from outside QC except:1. When there is no jurisdiction in the forum of the judgment; 2. When the judgment of the forum is not a final judgment (not applicable here – the ON

judgment was a final judgment); 3. When there is a contravention of procedure;4. Dispute between same parties, same facts, same object, given rise to a decision already

given in QC or decision pending in QC;5. Inconsistent with public order as understood in international proceedings;6. Taxation.

The QC Sup Ct cited 3155(3) and refused to enforce the ONSC judgment. Upheld by Court of Appeal and SCC.

The ON judgment was worded in a confusing and ambiguous way for any person resident in QC. Residents of QC would know that they have their own proceedings and what is this

business about binding everyone in Canada. So on that procedural ground, the court said it wasn’t clear to residents of QC, therefore

it had a procedural defect. In interpreting the Civil Code, the SCC said you take into account only jurisdiction simpliciter

when interpreting 3155(1) and not forum non conveniens Implications of case:

This case is clearly an interprovincial case. Many commentators have said that the principles in Canada Post should be either limited to

the QC Civil Code or to interprovincial matters and not affect common law international cases.

THE RECENT ENGLISH POSITION

Airbus Industrie GIE v. Patel, [1999] 1 AC 119 (HL)

Facts: Plane assembled in France, crashes in India. Two families killed/injured are of Indian descent, Brit citizenship and resident in England.

Action in India. Plaintiff and survivors of 3 US passengers also start action in Texas. Defendants in India obtain an anti-suit injunction, prohibiting continuance in Texas. Plaintiffs ignore this.

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Defendants go to England, request recognition and enforcement of ASI against parties resident in England (or alternatively, ask court to issue ASI)

Issue: Should court recognize or issue ASI? Is the UK a more appropriate jurisdiction or natural forum for this to be heard?

Decision: No ASI, and UK is not appropriate forum Recall that if a court has personal jurisdiction over the plaintiff, then a court can issue an

injunction prohibiting the plaintiff from continuing in another jurisdiction (e.g. Plaintiff is resident in England then files in Texas, then English court can say they cannot continue their action in Texas)

Issue arose, is the UK a more appropriate jurisdiction or natural forum for this to be heard? Is it more appropriate than Texas? It had nothing to do with the UK either, but that might be better than Texas. Court didn’t find that UK was appropriate to hear the case, so that was another basis for not becoming involved. There was also an issue with comity, the UK was in a position of having to respect comity with India and Texas

U.S. POSITION

In the United States the Constitution’s due process clause (14th amendment) requires “minimum contacts” between the defendant and the state, which seeks to exercise jurisdiction. This is known as the “personal subjection approach.” Basically, it requires that the defendant’s conduct and connection with the forum court be

such that he should reasonably anticipate being brought before the forum court. This means that even if the defendant would suffer minimal or no inconvenience from being

forced to litigate before the court of another state, even if the forum state has a strong interest in applying its law to the controversy, even if the forum state is the most convenient, the due process clause can kick in to divest the forum of its jurisdiction.

This doesn’t exist in Canada. It doesn’t exist because Morguard and Hunt require a more co-operative spirit in recognition and enforcement of judgments by sister provinces. This is partly because Canada has a unitary structure of the judicial system with the SCC at its apex. There is no unitary structure in the USA.

Further, the due process guarantee in the USA protects property rights. Our constitution (i.e., the Charter) does not.

As explained in Muscutt, the fairness emphasized in Morguard and Hunt concerns not only the defendant but also the plaintiff. A plaintiff ought to be able to sue in his home jurisdiction out of necessity for instance. There can be a RSC despite a lack of contact or connection that amounts to personal subjection by the defendant.

Per Muscutt, “While the defendant’s contact with the jurisdiction is an important factor, it is not a necessary factor. In my view, to hold otherwise would be contrary to the SCC’s direction that the real and substantial connection test be flexible.”

Oakley v. Barry (1998), 158 DLR (4 th) 679 (NSCA)

Facts: Woman gets biopsy, treated for hepatitis in NB, moves to NS and falls ill. NS hospital establishes that she did not have hepatitis C, sues in NS.

Held: Real and substantial connection made out in NS. NS financial interest in providing her care, action brought out of necessity.

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Therefore not forum shopping. Note:

US focuses only on interests of the defendant through due process. Explicit rejection of more rigid personal subjection approach and due process standard in

US. Do not need to satisfy enumerated connections to the letter to satisfy real and substantial

connection. In Canada, focus on fairness to both defendant and plaintiff, can find real and

substantial connection despite lack of personal subjection by defendant - important, but not a necessary factor.

ANTI-SUIT INJUNCTIONS: RESTRAINT OF FOREIGN PROCEEDINGS

THE ENGLISH POSITION

Société Nationale, supra

Privy Council decision for anti-suit injunction. Looks at what happened in Spiliada under a stay and decides that they’re not going to follow

that in the context of an anti-suit injunction. In this context, the PC says we have to apply the stronger test of vexatious or oppressive.

Won’t apply a forum non conveniens test when they come to an anti-suit injunction. “Vexatious and oppressive”

Proceedings that are absolutely absurd and cannot possibly proceed, perhaps the objective is to annoy or harass, but even if the objective is not, it probably looks to some fanciful advantage – will probably involve a multiplicity of proceedings, and may be in an inconvenient place.

After considering the interests of both parties, allowed no appeal, refused to stay, and there’s no law for forum non conveniens.

Airbus, supra

Recall this decision above.

THE CANADIAN POSITION

Amchem Products Inc. v. British Columbia (WCB), supra

Findings: Discusses both the stay in Spiliada and the anti-suit injunction from Société Nationale. Followed Spiliada after looking for a broad consensus among common law jurisdictions, and

followed the HOL. Sopinka noted the western provinces were already well in line with this approach and ON

was a bit behind. Sopinka thought we should adopt SN, but didn’t like “vexatious or oppressive” wording

so went with “the ends of justice”. Steps:

1. The court that issued the anti-suit injunction must have personal jurisdiction over the plaintiff otherwise it’s a waste of time and the court looks foolish.

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2. Look for injustice. For anti-suit injunctions, look primarily to Amchem, but look at discussion here and in

Société Nationale – court was fine with it, aside from “vexatious and oppressive”.

Hudon v. Geos Language Corp. (1997), 34 OR (3d) 14

Facts: Plaintiff entered into employment contract with organization in Toronto to teach English in

Japan. In the contract, organization said she was covered by insurance. Plaintiff was injured while vacationing to China. Issue arose re: scope of insurance coverage.

Plaintiff came back to Toronto and filed proceedings in ON. Defendant moved for a stay but was denied. Defendant filed in Japan for a declaration that it was not liable. So now, two proceedings – one in ON and one in Japan.

Issue: Can an anti-suit injunction be claimed against the defendant in ON?

Decision: ASI issued without requiring the defendant to seek a stay in Japan! (as kind of required by

Amchem) ON court indicates that its interpretation of Amchem is that it is not mandatory for a stay to

be sought in the foreign jurisdiction (i.e. Japan). It is only a process that ought to be considered as a factor in whether or not an ASI

should be issued Court notes that Sopinka said a stay “should be sought in the foreign court” (however, in

other parts of the judgment, Sopinka is quite definitive that a stay needs to be sought first in the foreign jurisdiction)

Court found it would be unjust and oppressive to require plaintiff to seek a stay in Japan due to two factors: Plaintiff was not engaged in forum shopping. Filing made in her home province. Defendant had already asked ON court to stay proceedings and it was denied. Court took

the view that the earlier proceeding that the court had declined to issue the stay was conclusive of all matters as to the convenience of the forum

JURISDICTION SELECTING CLAUSES

OVERVIEW

Express choice of forum This is covered under jurisdiction simpliciter under s. 3(c) of the CJPTA – “A court has

territorial competence in a proceeding that is brought against a person only if…(c) there is an agreement between the plaintiff and that person to the effect that the court has jurisdiction in the proceeding”

There is nothing in section 11 about express choice of forum clauses. Should express choice of forum clauses be seen something like anti-suit injunctions as being outside of section 11? Two ways of looking at it:

One, it does not fall under s. 11, and therefore it falls outside of s. 11 and reliance is placed on Pompey.

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Two, it falls under the general clause in s. 11, considering all circumstances relevant to the proceeding

It’s more difficult to say they fall outside of s. 11 – here, you are seeking a stay, whereas with the ASI, you are not seeking a stay.

In Preyman, the BCCA seems to suggest that express choice of forum clauses are external to section 11. However, two decisions of the SKCA (who has a similar provision to section 11) have taken the view that they fall within section 11. SK would put them in the broad phrase, “the circumstances relevant to the proceeding, including…”

Preference is BC approach, i.e. the clauses fall outside of s. 11. By not including it in s. 11, it suggests that it’s better to seek it alongside of s. 11 rather than

as part of s. 11 Whether it’s inside or outside of s. 11, it will prevail as an important factor

Summary: Choice of forum clause will prevail on the policy that parties should be held to their bargain

unless there’s a serious case to be made against that. Burden is on party who wishes to displace the choice of forum clause

Cases favour the burden being on the defendant – but notwithstanding, it’s on the person who wishes to displace it

EXCLUSIVE JURISDICTION CLAUSES

Z.I. Pompey Industries v. Ecu-ine N.V. 2003 SCC 27

Issue: Whether there was a jurisdiction selecting clause (note that this was decided prior to the CJPTA )

Decision: SCC finds that an express choice of forum clause ought to be given effect to on the policy of

holding parties to the bargain that they have struck unless there is a serious/strong reason or cause that would justify taking proceedings notwithstanding an express choice of forum clause “Strong cause test” applies – once court is satisfied a valid contract binds the parties,

court must grant stay unless plaintiff can show sufficiently strong reasons why it wouldn’t be reasonable or just in the circumstances to require plaintiff to adhere to terms.

Express forum selection clause is separate from a general forum non conveniens inquiry Common law approach for forum selection clauses still in place: clause is a weighty, but not

conclusive, factor in the forum non conveniens analysis. Starting point – hold parties to their bargain

Ratio: Upholds common law “strong cause test”, asserted by plaintiff who breached forum

selecting clause, to show it wouldn’t be just or reasonable in the circumstances. Clause is weighty, but not conclusive factor in forum non conveniens analysis.

Preymann v. Ayus Technology Corp. (2012), 12 BCLR (5 th) 391 (BCCA)

Facts: Parties entered into agreement for loan of €1MM. Agreement contained arbitration clause referring to Austria as the proper forum for settling

dispute.

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Plaintiff brought action in BC for repayment of loan. Defendants’ application for stay of proceedings was granted – BC was proper jurisdiction

but the arbitration clause in contract should be followed. Plaintiff appealed.

Decision: Appeal dismissed – Austrian law governs. Plaintiff failed to show evidence why forum clause should not be enforced Section 11 codifies test for forum conveniens, but consideration of choice of forum clause is

a separate consideration Court notes that the SKCA incorporates it within their section, but comes to the view

that that doesn’t matter Party attempting to oust valid choice of forum clause must provide reason it should not be

followed Court referred to s. 11(2)(f) (fair and efficient working of the Canadian legal system as a

whole) as an option Take-home point:

Court keeps it aside from s. 11, makes more sense than putting it within a general position

NON-EXCLUSIVE “AGREEMENT TO ATTORN” CLAUSES

Old North State Brewing (BCCA)

The above cases concerned exclusive jurisdiction clauses. Old North State Brewing concerned a non-exclusive “agreement to attorn” clause.

Case indicates that an agreement to attorn is to be distinguished from an agreement to grant exclusive jurisdiction, and given lesser weight When parties enter into a contract and choose wording of greater or lesser strength, their

choice should be respected

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Part Three: Recognition and Enforcement of Extra-Territorial JudgmentsOVERVIEW

Recognition Simply relates to a matter where a finding has already been found, and that it can’t be raised

again. If a plaintiff brings in a different jurisdiction and loses, the defendant can ask that it not be

brought up again because of the principle of res judicata – matter has been decided. If the plaintiff wins in a different jurisdiction and wins, can bring judgment in other place or

bring case. Enforcement

Another matter, it is a “booming” area for legal practice. We need to make a distinction between movables and immovables (land or interests that are treated like land – mineral rights for example).

Sovereignty vs. Comity Former says no direct enforcement of judgments of other jurisdictions, while latter says

that sometimes there should be rules of converting foreign judgments into domestic/local judgments.

IN REM JUDGMENTS

Focused on status of either a person (usually in rulings with paternity, adoption, marriage, etc.) or more ordinarily, a thing (usually where judgment in rem arises), such as a judgment for a determination regarding disposition of property. Immovables (land):

If judgment from place other than where immovable is, then it won’t be enforced. Movables (chattels/choses in action):

Difficulty in determining exactly where they are, but if in territory of forum at time of commencement of proceedings, then that judgment will be recognized and enforced in Canadian courts provided other rules of enforcement of judgments are met.

Issue here is where is the situs. In rem order – relates to the title of an item of property, largely land or immovable objects.

Special rules apply in relation to recognition and enforcement, basically the judgment that has been given in relation to a title issue can only be given by the courts in the place where the land is located and the law in the place where the land is located.

Exclusive jurisdiction in that context in relation to immovables. Basically land, or certain interests that are treated like land (like mineral rights). Features that are treated like land, come to edge where courts may differ on opinion on what is immovable.

It’s a nice question as to whether Morguard has altered the law for in rem orders interprovincially. In rem judgments are subject to their own special laws, it is a nice question of Canadian

Constitutional law as to whether those special rules are also subject to scrutiny under the Morguard principle.

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Howell’s view tends toward saying, if they are not within that principle (doesn’t think they are yet), they ought to be.

Looking at Enforcement of Canadian Judgments and Decrees Act , and you look at definition of Canadian judgment s.1(1), under (a), referring to monetary, under (b), a non-monetary judgment (a person being required to do or not to do something), and under (c), reference to rights, obligations or status (this subsection 1(1)(c) includes judgments that refer to rights, obligations or status in relation to a person or thing – what does thing include, Howell asks? Land? Commonly one wouldn’t refer to land as a thing.)

PERSONAL STATUS JUDGMENTS

In BC reference to legitimacy was removed in 80s, but other jurisdictions may not have. Legitimation – situation where someone was born outside of wedlock but the parents

married subsequent to that. Could apply to areas where there is some question as to the status of a person (adoption, etc.) – generally fall under some conflict of law provisions.

Section 14.11(c), chapter 11.

IN PERSONAM JUDGMENTS

PECUNIARY/MONETARY

Legislation providing for reciprocal enforcement of judgments Procedural process of statutory mechanism

Gives option to either sue on original cause or on foreign judgment. When suing on foreign judgment, it is focused on system whereby judgment is treated

as if it were judgment of jurisdiction in which registration (of foreign judgment) under statute is made.

Once registered, it has the same effect and force as if it had been judgment in the registering court, though there are certain limits to this.

If you elect procedure under statutory law, you don’t necessarily lose the right to proceed under the common law.

Major differences in how statute deals with filing of appeal in origin jurisdiction compared to the common law. One appeal is filed, statute says registration can’t take effect or is de-registered, so you

would have to wait until the appeal is done. At Common Law

If you elect not to proceed on reciprocal laws (chose not to sue on cause itself but on judgment), then it is regarded as an action in debt (foreign judgment).

Court Order Enforcement Act Part II – The reciprocal enforcement of Court Orders (or Reciprocal Enforcement of Foreign

Judgments) Look at three things, 1) Common Law, 2) COE Act, specifically part 2, and 3) Enforcement of

Canadian Judgments and Decrees Act (interprovincial application) Doesn’t equate with the Morguard case, has been around for a long time.

Doesn’t provide an issue of constitutional nullity because of Morguard – because it is seen as a short cut. If you come within the COE Act, then you can register your judgment under the COE Act.

Narrower than Morguard - doesn’t seek to alter the common law, just sits alongside and offers a shortcut if you sit within its terms.

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Act concerns only monetary judgments and it only applies between reciprocating states (states that have signed an enactment). In Canada, basically all provinces except QC. In Aus, includes a bunch of territories as well as NSW, etc., except Western Australia. In US, a few states. In EU, basically Austria and Germany. In UK, in a limited way.

NON-PECUNIARY/NON-MONETARY

Injunctive Usually aren’t enforced by another jurisdiction as they are a sovereign command via the

courts to command someone to do something. Interprovincial constitutional issues:

After Morguard and Hunt, in interprovincial context there may be room for the argument that provinces in Canada are not to be treated as a sovereign international state in relation to one another. I.e., perhaps an injunction by one province should be enforced by other provinces.

AT COMMON LAW – PRE MORGUARD

When you can sue on judgment: Looking for presence in the jurisdiction of origin of judgment.

OR for some other form of consent to the judgment (e.g. choice of forum clause) OR submission/attornment to particular court

Some uncertainty on what “presence in jurisdiction” means. Could be set by some residency (permanent or temporary), or simply being present at

time of commencement. When looking at submission, there was always a situation where court of origin would

service ex juris but ordinarily that wouldn’t be enforced (because not connected to nor will ever go to that jurisdiction).

“FINAL AND CONCLUSIVE”

Nouvion v. Freeman, 15 App. Cas. 1 (HL)

A judgment is considered “final and conclusive” for purposes of recognition and enforcement even if there is still time to appeal the originating judgment, and even if that judgment is under appeal.

Facts: Debt is the theoretical basis for enforcing judgment Case involved land in Spain Executive judgment of debt was given but what did it amount to? Was it absolutely

conclusive? Findings:

The type of judicial instrument wasn’t final and conclusive because the same court could still raise or rehear or make changes.

At common law, the fact there was appeal to higher court didn’t prevent judgment from being seen as final and conclusive.

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BUT has to be final and conclusive in the court that made the decision, as that specific court didn’t have a process to reopen that case. I.e., it’s not an interlocutory decision.

At common law, even though an appeal is filed, you can still use the decision. Important distinction between common law and statutory law.

If you sue on judgment in common law, then the defendant can move to stay enforcement pending the appeal. An action may be commenced even though the court may be vested with jurisdiction to

stay the proceedings, so the plaintiff can issue a prejudgment order for remedy.

NEC Corp. v. Steintron International Electronics Ltd. (1985), 5 CPC (2d) 187 (Ont. HC)

Initial filing under reciprocal enforcement legislation, then appeal was made. Court said cannot stay under the Act because there is an appeal,

BUT can go back to common law: So the registration under the Act was struck out, but judgment party could enforce

judgment at common law as well, and thereby gain access to certain procedures such as Mareva Injunction (to freeze assets) and garnishing orders.

“JURISDICTION OF THE FOREIGN COURT IN AN INTERNATIONAL SENSE”

Allows for service in the jurisdiction, even if it’s fleeting.

Forbes v. Simmons (1914), 20 DLR 100 (Alta. SC)

Facts: Action brought in BC. Defendant domiciled in AB, and was served on casual visit to BC. Defendant made no appearance/refused to submit to BC.

Findings: Territorial jurisdiction attaches upon all persons either permanent or temporary resident

within territory while they are within in, but it doesn’t follow them after they have withdrawn from it.

Essence of jurisdiction is presence.

Re Carrick Estates Ltd. (1987), 43 DLR (4 th) (Sask. CA)

Findings: Under statutory law (see s. 3(d) of CJPTA), casual presence in foreign jurisdiction, absent

attornment, is insufficient for purposes of enforcement (though it may suffice for taking jurisdiction).

First National Bank of Houston v. Houston E & C Inc., [1900] 5 WWR 719 (BCCA)

Facts: Action in TX, counsel appeared for defendant in TX judgment. Default judgment issued, BC defendants challenge recognition and enforcement by saying

they did not submit. Findings:

To appear without protest in foreign court is voluntary submission.

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No express instructions to attorn here but defendant’s counsel mounted defences, so that’s attornment.

Clinton v. Ford (1982), 137 DLR (3d) 281 (Ont. CA)

Compare with below. Facts:

Contract action arising in South Africa. Defendant moved to ON. Plaintiff served defendant ex juris. Defendant did not object to the jurisdiction, filed notice of defence on the merits of the case.

Findings: Where you get into the merits of the case by challenging the order, that’s attornment.

Even where motivated by wanting to prevent seizure of assets. Discussion:

This sticks the defendant between a rock and a hard place, want to protect their property because the decision of the foreign court will seize their assets. But then, if that property isn’t enough to cover the judgment, you have submitted on the

merits to protect the property, and that would likely now be enforceable in home courts.

Henry v. Geoprosco International Ltd., [1976] 1 QB 726 (CA)

English courts won’t enforce judgment of foreign court against defendant who has assets within that jurisdiction and appears before that court solely to preserve those assets which have been seized by that court.

Wang v. Sun (2014), 60 BCLR (5 th) 420

Re attornment. Findings:

Plaintiff has prima facie right to chosen forum (controversial statement). Defendant has significant onus to meet to show there’s a more appropriate forum.

Where defendant raises forum non conveniens, burden is to show another jurisdiction is “clearly more appropriate Therefore, forum non conveniens is not comparable to flipping a coin. Not just equally appropriate, must be clearly the more appropriate forum.

Shifts burden from the plaintiff to the defendant, at least regarding forum non conveniens. Note:

Also says that s. 11(2)(f) of the CJPTA is not applicable when other potential forum is outside of Canada.

THE MORGUARD RULE

Morguard established third alternative for establishing jurisdiction in an international sense within Canada: Using the real and substantial connection.

Extended in Beals v. Saldanha to non-Canadian judgments. Real and substantial connection overriding factor, though traditional indicia may bolster the

claim. Pro Swing extends recognition and enforcement to non-monetary judgments.

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EXTENSION OF MORGUARD TO FOREIGN JUDGMENTS

Expanded context (post-Morguard period) 1990 – SCC in Morguard effected radical change to common law rules, creating a new basis

for recognition – service ex juris where there is a real and substantial connection. Rule was said to be only another common law rule and applicable only within Canada, but

subsequently held to be constitutional rule and extended internationally (confirmed with Beals).

Rule is so broad and imprecise that it is to replace the traditional common law (that the foreign judgment is final and conclusive and foreign court has jurisdiction)

Certain rules have to be met: The judgment being enforced must be:

Final and conclusive; For a fixed sum of money (because if suing on judgment then suing on debt); and No reconsideration on merits (also in line with debt notion – once judgment is made,

then the debt sits in fact).

Beals v. Saldanha, supra

Along with Pro Swing – major cases. Substantial disagreement at the SCC. Howell says this disagreement will continue because if you look at Pro Swing, which

was a 4-3 decision and you look at the judges involved in it, all but two have since retired.

Findings: No doubt that the FL decision has a real and substantial connection, involved a transaction

involving land in FL. Probably no other court has a better jurisdiction than FL in the context of the facts. Problem was that an $8000 decision escalated to a $1MM judgment.

Legal problem, do you tell your clients to go? Says Morguard did not decide whether real and substantial connection applied to foreign

judgments, though some appeal courts had done so (including the BCCA). Compelling reasons to do so, no principled reason not to.

Howell says advising clients is challenging for la in this context because the law is in flux.

Should we take compelling reasons of international trade and economic policy? Majority makes it clear that what it is stipulating is subject to the legislature adopting an

alternative approach (though this has not yet been done). Applies the Morguard principle, order and fairness, real and substantial connection

with jurisdiction simpliciter to international judgments. Held:

Foreign judgments were enforceable in Canada where there was a real and substantial connection between the foreign jurisdiction and the subject matter giving rise to the claim.

So does the real and substantial connection test apply internationally? Majority says yes. Binnie and Iaccobucci said yes, with some doubts. LeBel said no, not without substantial revision. Defences

Binnie and Iacobucci go with the majority in applying real and substantial connection in a restrained way.

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BUT, said on defences, the judgment shouldn’t be enforced. LeBel said that if it’s going to be used liberally on an international basis, then need to

boost the defences too. Internal safeguards of Canadian system may not exist internationally.

Three themes: Unfairness in the assumption of jurisdiction – though it’s not exactly clear what Lebel is

getting at here. Reciprocity. Third, most important, expands basis for recognition and enforcement.

Need to look at reviewing the scope of the defences. Majority expressly rejects these two arguments:

That the plaintiff has to show that the legal system of the other jurisdiction is fair (rejected, though the majority did say the enforcing court must be sure that the procedure followed was fair)

That the plaintiff should detail the legal steps to be taken or the consequences that would follow if they were not followed by the defendant (also rejected).

ISSUES OF MULTINATIONAL COMPANIES AND CANADIAN SUBSIDIARIES

Yaiguaje v. Chevron Corporation, 2013 ONCA 758 (under appeal to SCC)

Facts: Chevron’s head office is subject to a judgment of the Ecuadorian courts. The trial court had awarded $18B and the final appellate court reduced this to $9.5B. There were difficulties of enforcing this judgment against Chevron in the US. Brought to Canada and sought to be enforced against Chevron Canada.

Issues: Chevron Canada has nothing to do with the proceedings, but the ONCA looked at the

situation and in a passage suggested that, because Chevron is a major corporation and would be in a position of guaranteeing the debts of its wholly owned subsidiary, so enforcement of a judgment against Chevron could proceed against Chevron Canada. No authority cited for this though. Howell thinks this should be reversed, it’s judicial activism.

POST BEALS DEVELOPMENTS RE: IN PERSONAM NON-MONETARY JUDGMENTS

Pro Swing Inc. v. Elta Golf Inc., supra

Facts: Dealing with US registered trademark, has effect only in the US, same as with Canada,

they’re strictly territorially focused. Plaintiff is in OH, defendant in ON. Alleged to be a breach of the trademark by virtue of sale of golf clubs. Settlement agreement is reached and then that is incorporated into a consent decree in a US

district court. There was no territorial limit specified in the relief, so one could contemplate (as the

majority did), that this injunction and the order made by the OH court would be to relate to purchasing, marketing, selling wherever.

BUT, US trademark law doesn’t provide for exclusive rights everywhere, only within US. Findings:

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Keep in mind the third point from Beals above: “ unfairness” Lebel now in the majority (only Abella and McLachlin remain from before). Contempt also issued in US, in that the decree was not complied with. TJ was prepared to enforce judgments, but CoA set aside. Non-monetary order, was breaking new ground. Members of the court were prepared to contemplate such a move, but the majority said not

in this instance. Needed to have extra-scrutiny in a non-monetary context.

Interprovincially, after Morguard and Hunt, we can say yes, we’re moving into that context. But left here for “another day”.

Normally the theory is that you need to look behind the judgment in some way, as they are discretionary orders. Will follow-up be required? Whose follow-up? Not answered here. Court notes that Canadian residents should not be made vulnerable to unforeseen

consequences of an unknown forum. Cost of supervision must be proportionate of the importance of the order.

So must fit with Canadian principles, rather than the systems of a foreign jurisdiction. Severance? Allow parts to be severed. Howell doesn’t think it was possible in this case, but

in international context, it has happened. Say there’s a trademark dispute, and there’s infringement of the US trademark in Canada?

We won’t enforce that, but what if a $100k judgment is issued, would we enforce that as a debt?

Could it be argued this is a jurisdictional issue? An error of law that we can’t look into? International non-monetary orders:

Court has indicated that it is happy to get into enforcement of international non-monetary orders, but majority is saying more detailed, more in-depth care will be required for looking into the merits of the judgment that is brought forward.

Howell says there is a comparison to be drawn in non-monetary context with that was said by Wilson about monetary judgments in Beals case.

COMMON LAW “DEFENCES” TO ENFORCEMENT OF FOREIGN JUDGMENTS

Defences include: Penal laws Tax laws Public policy Failure to meet natural justice Judgment obtained by fraud Other public laws

Braintech Inc. v. Kostiuk (1999), 171 DLR (4 th) 46 (BCCA)

Early case involving Internet defamation. Facts:

Both defendant and plaintiff were residents of BC. Defendant placed info online that potentially was defamatory. In defamation, you can defame a corporation so long as it is limited to its business activities. Braintech gets default judgment in TX. Defendant is not resident and has no place of business, but they did commit the tort there. Real and substantial connection alleged is libel which affected interests of TX residents.

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Filed in TX, judgment in TX. Would BC enforce? Findings:

Looked to Amchem, “has TX departed from our own test of forum non conveniens so as to justify our court’s refusal to respect the assumption of jurisdiction?” Yes, could be used to deny. Said natural jurisdiction was BC.

Both parties link with BC, link was a R&D office there, but link was minimal. Where defendant has simply posted info on website, which is accessible to users in foreign

jurisdictions, it is not grounds for exercise of personal jurisdiction over non-residents. Howell thinks this is a fairly strong case, but weakened by the fact that it was decided at a time

when jurisdiction simpliciter and forum non conveniens were basically rolled into one. Since here Van Breda at common law and the CJPTA have separated the inquiries as

distinct. Nevertheless, it’s BCCA and an authority.

Canada Post Corp. v. Lepine, supra

Interprovincial application. Court said Canadian proceedings would not be stayed either.

Get to end of the judgment, what do we do with recognition and enforcement? CJ left that point open.

Applied QC Civil Code, said priority to local proceedings. Says the principles of forum non conveniens are not to be considered if it was appropriate to

take the jurisdiction. Interprovincially, there may be a reason why one should focus only on jurisdiction

simpliciter. Two principle points of focus, then the third point, which is to look at the parallel proceedings

context, parallel proceedings are essentially forum non conveniens. Ordinarily both, or all, jurisdictions have jurisdiction simpliciter but one is more appropriate

than the other. Problem:

Either we engage in a first to judgment race, or we give absolute priority to local proceedings, or we enforce the foreign judgment with certain enhanced defences. Left that open.

Take away: No need to apply parallel proceedings, as you can just look at QC Civil Code.

Antim Capital Inc. v. Appliance Recycling Centers of America, 2014 ONCA 62

Parallel proceedings in an international context. Recognition and enforcement case where forum non conveniens is applied.

Facts: Declaration from US that there was no more money owed under the contract.

Means that the US entity has no more obligations under the contract. Brought this ruling to ON.

But the ON court would not stay the ON proceedings. Now have a first to judgment by way of a declaration in the US brought here for recognition

and enforcement. Findings:

ONCA said unlike Westec, it was not an even balance between the two courts. Here the services were provided in ON and Antim had not contracted with MN.

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So ON law has to apply. Basically engaged in an forum non conveniens inquiry, weighting the MN judgment as one

factor in an overall inquiry.

LEGISLATION PROVIDING FOR RECIPROCAL ENFORCEMENT OF JUDGMENTS

Central Guaranty Trust Co. v. Deluca, [1995] NWTR 200 (SC)

Significant case in respect of its interpretation. Facts:

Dealt with how Morguard would affect the Reciprocal Enforcements and Judgments Act in regard to foreign judgments.

Subject was a matrimonial home in ON. Service was made ex juris in the NWT. Plaintiff wanted to register a judgment in ON under the Act. Defendant submits that the basic statutory requirements for an application to be made ex

parte have not been met. Finding:

The court looked at s. 29(2)(a), the judgment was personally served in the original jurisdiction. What meaning was to be given to “personally served”? Did that mean it had to be served

in ON, or how else could it be interpreted? Court said that the act didn’t define “personally served”, so it looked at the common law

meaning, which had evolved with Morguard to include ex juris. If a phrase isn’t defined in the Act, then it refers to common law.

Therefore, the new common law meaning from Morguard can be given to a phrase that is not otherwise expressly stipulated as more narrow.

Second issue in this case: the court makes it clear that there is nothing invalid about the Reciprocal Enforcement of Judgments Act – it’s something that is alongside of the common law, not something that conflicts with Morguard.

Re Carrick Estates Ltd. and Young (1987), 43 DLR (4 th) 161 (Sask CA)

Under statutory law in this province, casual presence in the foreign jurisdiction, absent attornment, is insufficient for the purposes of enforcement.

Facts: Looking to set aside a judgment under the Reciprocal Enforcement of Judgments Act. S. (3)(d) requires ordinary residence in BC, and s. 10(k) is focused on enforcement of that

extra-territorial judgment. Findings:

The court notes that in terms of the Court Order Enforcement Act, per s. 29(6)(d), “ordinarily resident” is the requirement, so a “fleeting presence” is not enough.

Clear that default judgment is considered final and conclusive. The business had an office in the province so that was good enough for “presence”.

Owen v. Rocketinfo, Inc., 2008 BCCA 502

Regarding the Court Order Enforcement Act – different states can sign up for reciprocal agreement. All provinces except QC, various states such as California, but not Nevada.

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Facts: Judgment in NV, but NV entered their judgment in CA. Then attempted to bring judgment from CA to BC.

Findings: Rejected this attempt. Legislation was not intended to allow this “indirect” participation. Specifically, interprets the word “judgment” in s. 28(1) as being the judgment that actually

made the money payable, which was the NV judgment, and NV is not a reciprocating state.

Hunt v. T&N Plc, [1993] 4 SCR 289; 109 DLR (4 th) 16 (SCC)

SCC indicated that superior courts of any province could rule on the constitutionality of legislation of another province, subject to the suitability of the forum to make that ruling.

Howell thinks that you don’t need to plead and prove law from other provinces as fact Thinks that each province now takes judicial note of other provinces’ laws.

Nystrom v. Tarnava, (1996) 44 Alta. LR (3d) 355 QB

Facts: Defendant had been involved in an accident in SK. Plaintiff sued in AB. The SK limitation period had expired but the AB limitation period had not. Defendant attached, as an affidavit, what was described as true copies of the SK limitation

legislation. Findings:

Would the court take notice of the SK limitation period? Court declined to do so.

Pointed out that it had the discretion under AB law to take note of the SK law, but wanted “more authentic documentation” to be presented. Talked of having the copying of the SK legislation endorsed or certified by appropriate

government authorities – basically didn’t want to accept photocopies.

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Part Four: Choice of LawCHOICE OF LAW METHODOLOGY

Key points to remember on invoking and determining foreign law: Choice of law is separate from jurisdiction. You first decide jurisdiction, THEN question

becomes “What law do we apply?” Need to separate out what your talking about – tort, property, contract.

Before any foreign law can be applied, it must be pleaded and proven by one of the parties. If a foreign law is not pled or proved then the default law is lex fori (Bumper)

Choice of law only applies to substance, procedure is lex fori (Tolofson). First step is to characterize the type of law that you are dealing with (tort, contract,

property).

PRACTICAL FUNCTION OF CHOICE OF LAW:

Legal rules for choice of law: where people’s rights and obligations can be determined by reference to a law other than that of the forum. Sometimes, choice of law rules don’t apply, such as with divorce. Divorce is seen not as a

right that vests in individuals like with property or contracts – if you want a divorce, you need to seek recourse from the forum court (as a Canadian, you can’t seek a divorce in Mexico)

CHOICE OF LAW AS AN EXPRESSION OF THEORIES IN PRIVATE INTL. LAW

Theories about how choice of law rules should be applied are connected with ideas about why courts should apply any law other than their own. It is difficult to have a rigid set of rules regarding when to apply foreign courts law because of concerns about territorial sovereignty.

The judges who have basically created the field of choice of law have worked with little legislative guidance – the case law is small and the result has been a set of rules that has been shaped directly by the judges’ view of the way in which the legal systems of different countries, in principle, to relate to one another*.

Historically: Theory by German scholar Savigny – the idea that every “legal relation” has a natural “seat”

in a particular territory and was therefore subject to the law of that territory. Territoriality of law (Dutch scholars of 17th c) – the sovereign right of the state to have its

courts apply whatever law it pleased. Each sovereign state chose to respect the laws of other states and apply them in cases where that was appropriate, and expected other states to do the same in return; this was neither a matter of obligation nor logical imperative, but of enlightened self-interest of a state in promoting a viable private international legal order. *This was key because once it was accepted that applying foreign law was a matter of

sovereign free choice, choice of law theory no longer had to justify itself by reference to legal first principles – in other words, choice of law can now be based on pragmatic rather than doctrinal grounds.

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THE STANDARD APPROACH

COMPONENTS OF THE RULE

A particular type of legal issue is to be determined according to the internal law of a country with which the case has a defined connection. Ex. Formal validity of a marriage is governed by the law of the country in which the

marriage is celebrated. Each choice of law rule identifies a category of legal issue (ex above – formal validity of

marriage) and says that an issue falling under that category generally comes down to a “connecting factor” (ex. place of celebration of marriage, domicile, place of commission of tort) – the key thing that anchors you to one place over another. Note: choice of law only comes into play if a party to the legal dispute (1) pleads that an

issue should be decided by a law other than that of the forum; AND (2) proves, as a fact, that the outcome of the issue is different under the foreign law than it is under the law of the forum (the lex fori). If no party to the dispute raises a choice of law issue, the court simply decides according to their own law because that is all they’re competent to apply. Same is true if a party does rely on a foreign legal rule but fails to prove what it is or

how it relates to the facts. In Civil law, choice of law is a question of law (judge can take judicial notice of a foreign

law and simply apply it as a matter of law) (more control to judiciary). In CL, we treat C of L as a question of fact that MUST be pleaded and then proved by

expert witnesses or some other approved method (more control to the parties) QC is a hybrid – foreign law must be pleaded but once pleaded, doesn’t have to be

proven as a fact. Court can take judicial notice.

MULTILATERAL OR UNILATERAL CHOICE OF LAW RULES

Choice of law rules are sometimes described a “multilateral” in the sense that they determine the respective fields of application of the lex fori and of foreign legal systems. ** “they function as an umpire, giving the nod to a rule of the lex fori or a rule of foreign law based on the legal systems to which the connecting factor points.”

Distinguished from “unilateral” choice of law, which indicate only when one country’s (usually forum) internal legal rule should apply to a particular issue, without saying anything about when any other country’s internal legal rule should be applied.

RULES OF ALTERNATIVE REFERENCE:

Not all choice of law rules relegate a category of issue exclusively to one defined system. A party may invoke any one of several systems of law in order to resolve the issue in a particular way – ex. domicile when dead

Converse of this is “cumulative reference”: used much less when two systems are read together and you must satisfy both.

AMBIGUITIES IN THE APPLICATION OF A CHOICE OF LAW RULE

Renvoi (French for “looking back”) is a controversial aspect of the classical choice of law method. It stems from an ambiguity in the type of conflicts rule that says “Issue x is governed by the law of y.” What is meant by applying the “law of y”? It could mean applying the “domestic” law of y – that is, the rules of law that a y court would apply to a case where there was no

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foreign element. Or it could mean applying the “whole” law of y, including the conflicts rules that a y court would apply to the actual case, which does involve elements foreign to y.

In other words (when Howell drew that cyclical stuff on the board) Juris A says – Conflict of laws – choice of law – apply law of Juris B. Juris B says – look at domestic law. Says there’s conflict of laws. Looking at Juris B

conflict of laws, it says apply Juris of A. so reflected back. The only way to break this is to say when you apply Juris B, you ONLY apply

domestic law, not conflict of laws (we are applying the rules that a court of Juris B would apply if there was no foreign element).

Neilson v. Overseas Projects Corp, 2005 (Australia)

Facts: Couple domiciled in Aus, employed in China. While living in China, one person fell down and a suit was brought by the Australian injured

party against overseas project in Aus. You apply lex loci delicti (where wrong occurred) – so Chinese law. Chinese civil law said great – unless both parties are nationals of the same country or

domiciled of the same country, then that law should apply. (issue) Held:

High court of Aus said Aus law would apply and only the domestic law, not the conflict of laws.

THE PROCESS

1. First, characterize the issuea. is it within a category of issues to which the rule applies?

2. Then, follow the connecting factor to a particular legal systema. what is the country of the place of celebration, domicile, or other relevant factor?

3. Finally, apply the law that you find in the country with the connecting factor

In order to trigger this process, a party Renvoi must ask a court to decide an issue by applying a foreign legal rule. In order to do that, the party must (aside from proving the content of the rule) persuade the court:

a. That there is a choice of law rule, as the party says;b. That the choice of law rule does embrace, by the category of issues to which it refers, the

foreign legal rule that party relies on (characterization)c. That the choice of law rule, via its connecting factor, does point to the foreign country in

questions; andd. That the choice of law rule should be applied so as to make the foreign legal rule

operate, as the party says, to establish the party’s claim or right.

The above 4 broken down 1. Establishing the choice of law rule

a. anyone that relies on a foreign legal rule must justify its application by invoking a choice of law rule. Different legal systems use different approaches for choice of law – ex. CL jurisdictions in deciding issues relating to personal status apply the law of the person’s domicile.

b. In CL juris’, the source of choice of law is mostly CL. 2. Characterization*

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a. A choice of law issue arises when one party says, “The court should apply this particular rule of the law of country x because that is what the choice of law rule requires,” and the other party opposes the application of that rule of law.

b. The choice of law will be framed in terms of a category like “formal validity of a testamentary disposition” or “liability in tort”. So an essential link in the party’s argument is that the particular rule of x law that the party wants the court to apply is indeed a rule relating to the formal validity of a testamentary disposition, liability in tort, or whatever the terms of the choice of law rules are.

c. Characterization is the decision as to how to categorize a particular rule of internal law (whether a rule of the lex fori or the law of a foreign country) for the purpose of applying the court’s choice of law rules.

d. Most are easy – a rule that a marriage must be solemnized in a civil ceremony is a rule of formal validity of marriage. However, what about – is a rule that you cannot sue for breach of contract more than 6 years after the breach a rule of contractual liability or a rule of procedure?

3. Connecting factora. The conflict law of the forum must supply the meaning of the connecting factor b. Most cases present no difficulty – especially true when connecting factor is based

totally on a physical fact, such as the location of property or the place where a discernable event happened

c. The more the connecting factor is a legal construct, the more room there is for argument – ex. where someone was domiciled at a particular moment because it turns on intentions. Even where a tort was committed can be tricky based on harm/damage.

Exceptions to the application of the choice of law rule: Two forms:

The existence of a more specific choice of law rule that mandates a different result. Usually, this takes the form of a statutory directive of the lex fori.

The foreign rule of law may be barred from application by being a rule of penal law, a rule of tax law, or against the public policy of the forum

INVOKING AND DETERMINING FOREIGN LAW

APPLICABILITY OF FOREIGN LAW

FACT OR LAW

In common law courts, the parties have primary responsibility for establishing the facts; law is ascertained by the judge, and how it applies to the fact (this is not an absolute distinction)

However, in common law, the primary responsibility for introducing foreign law has been allocated to the parties and not the court: “Foreign law is a kind of fact.” The foreign law in question will only apply if counsel decide it is in the interests of their clients’ case to seek to persuade the court that it should apply by reason of the relevant choice of law rules, and to show the court he way the application of that law affected the issues to be determined.

As foreign laws are facts: they are beyond the scope of judicial notice, unknown and unknowable to the judge; they must be formally proved, generally by expert evidence, for a judge is unaware of their

content; foreign laws are subject to such principles of pleading as govern other facts;

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if foreign law is not pleaded, or is pleaded but inadequately proved, a court will apply (lex fori) instead, presuming foreign law to be the same.

Potential essay things to think about: To what extent is this approach dictated by the logistical challenges of understanding the law in foreign legal systems? To what extent is this approach a tradition that is sound in principle and should not be revisited? (pg. 555)

This idea of foreign law as fact is by no means universal – Europe and Latin America treat foreign law as law.

EFFECT OF OMISSION TO PLEAD OR PROVE FOREIGN LAW

Where must the court apply foreign law? Although foreign law is usually considered to be part of the claims and defences that the

parties are free to raise or not as they choose, this is not always the case. In some areas of law, statutes provide for the application of a particular law. Of course, no issue arises where the parties duly plead and prove the law of the place identified in the statute, but what if they do not? Enter Mercury Bell where a statute (Canada Shipping Act) called for the matter to be governed by Liberian law, but that law was not pleaded or proved.

Old North State Brewing Co. v. Newlands Services Inc.

Facts: Contract between BC and NC companies. Choice of law clause says apply BC law and parties attorn to the jurisdiction. Contract goes sour; NC company sues for breach in NC. Default judgment against BC. NC legislation allows treble damages against BC company and punitive. Seeks recognition and enforcement in BC.

Findings: Real and substantial connection to NC, but could be overridden by exclusive choice of law

clause. Foreign law is a question of fact to be proved, but BC company doesn’t show up to argue it

so the NC court entitled to assume it was the same as their law. Public policy defence rejected. Held that the NC judgment was to be enforced. Also because most of the contract was in NC.

Fernandez v. The Ship “Mercury Bell” (1986), 3 FC 454 (FCA)

Facts: Sailors hired in Philippines and signed individual employment contracts. Once hired, found out about collective agreement on the vessel requiring higher rate of pay. Vessel arrives in Canada and they sue for the difference in wages.

Vessel was registered in Liberia. Findings:

Law of the ship’s flag governs the contract. So Liberian law.

BUT, in absence of proof of foreign law, cannot be applied. SO, assume it to be the same as our own (including common law and statute)

Canada Labour Code applied and collective agreement won out

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Differentiate between general law of forum versus law intended to have only local application

Discussion: In civil context, the judge is entitled to take judicial notice of the foreign law in light of a

view to public order. In common law, not so. If the parties wilfully or inadvertently fail to bring expert evidence

of the foreign law, the court will act as if the foreign law is the same as its own law, and will apply lex fori.

This is not a rejection of conflict of laws – the court is not repudiating the premise that the case is governed by and has to be decided on the basis of the foreign law, but simply says that insofar as it is formally aware, the foreign law is similar to its own law.

The law of Liberia is the applicable law, but as we have no proof of that law, we must presume it is similar to our law, but only insofar as the substantial provisions thereof are concerned. The court discusses the scope of the lex fori (Canadian) law that is applied in a case like

this. Some precedents argue that you apply only the common law, not any statutes (links back to England). However, in this case, the court will apply both common law and statute as long as the law of the forum is basically relevant or of a general application*.

PLEADING AND PROVING FOREIGN LAW

Pleading Foreign Law: Under the classic common law, if the decision is made to rely on foreign law, it must be

pleaded or the relevant evidence will not be admitted at trial; “otherwise there is no opportunity for the person against whom the issue is raised to prepare to meet it.”

Proving Foreign Law Through Expert Evidence: Under common law foreign law must be proved as a matter of fact by the evidence of

persons who are experts in that law. In the absence of agreement or statutory authority, it is insufficient simply to place the text of the relevant foreign statute, judicial decision, or other authority before the court.

2 classes of expert witnesses: Those who have practiced or applied the relevant foreign law as lawyers of judges; Law teachers or others whose office or position requires them to have a working

knowledge of the relevant foreign law. expert evidence does not always need to be oral testimony (where impractical,

costly) The court is NOT required to accept at face value the evidence of the parties’ experts on

foreign law. Witness may be found to lack necessary credentials.

Bumper Development Corp. Ltd. v. Commissioner of Police of the Metropolis [1991] 1 WLR 1362 (CA)

Facts: Bronze Hindu idol was discovered by some farmers in India.

Made its way to England somehow. Put on sale in England. Intervention by English police. Suit against the police for conversion by the person who claimed to own the idol. People came forward, including Indian governments, as well as the temple itself.

Findings:

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Looked at the forum’s laws and said that if it was a juristic entity there, then it would be here. Temple was an entity there, so it would be in UK.

Court held that the TJ was not entitled to reject the evidence of the experts or to rely on his own research without having the assistance of the expert witnesses and the submissions of counsel.

Can’t just do his own reading and rely on that, it would lead to unreliable results.

CANADIAN ISSUES

How does the above apply interprovincially in Canada? How far do we apply the CL requirement of pleading and proving other provincial law as a

matter of fact? Or have we gone more the civil code way and each province basically takes judicial notice of another province’s law? More so the latter.

In QC Civil Code it is express: article 2808 – enables the court to take judicial notice of other provincial law and foreign law once a law has been pleaded.

Provincially: each province has evidence acts. In AB – discretionary to take judicial notice.

Hunt v. T&N Plc, [1993] 4 SCR 289

Interprovincially, courts are basically taking judicial notice of the laws of other provinces now at the SCC, but maybe not in provinces? Howell thinks we’re past having to plead and prove the law between provinces.

Facts: Case where the SCC indicated that the superior courts of any province could rule on the

constitutionality of legislation of another province, subject to the suitability of that forum to make that ruling.

Findings: Laws of a province no longer required to be proven as fact at SCC.

Can apply all laws of Canada. Generally, other provinces will not take judicial notice of other provincial laws unless

pleaded. QC Civil Code has provision allowing for law to be pleaded, then JN can be taken.

All courts in Canada are capable of interpreting constitutionality, BUT, must restrict to issues where there is real interest in your province. Here, BC was forum non conveniens so could deal with constitutional question.

Pettkus v. Becker [1980] 2 SCR 838

SCC Can apply whatever law it has competence over (all provincial law). References there indicating that the federal court can take judicial notice of all provincial

and federal law that is relevant to its jurisdiction. Evidence Acts in most provinces say it’s mandatory to take judicial notice of another

province’s law. Discretionary in AB.

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Nystrom v. Tarnava, supra

Facts: A car accident in SK where the plaintiff was rear-ended. The plaintiff sued in AB. The SK limitation period had expired but the AB limitation period had not. The defendant moved for summary judgment on the basis that the law of SK including its

limitation period applied. The defendant gave the court her affidavit to which she attached true copies of the SK

limitation legislation. Issue:

Would the court take judicial notice of SK limitation period here? Held:

No. defendant’s claim would have succeeded if the court was satisfied that the substantive law of Sask applies to this action in AB (this part succeeded); that a limitation of action provision in a provincial statute is substantive law, and not procedural; and that the limitation of action provision pleaded by the defendant has been proved or can be otherwise judicially noticed to have been in effect when the plaintiff commenced her action (where it failed).

LAW OF PROCEDURE

SUBSTANCE/PROCEDURE DISTINCTION

Choice of Law The substantive rights of the parties to an action may be governed by a foreign law, but all

matters pertaining to procedure are governed exclusively by the law of the forum. (Tolofson)

PROCEDURE

Always lex fori Why?

Practical – the rules that form the machinery of justice are an integrated whole and so it makes sense when justice is being administered by a court in x, to follow x judicial procedures rather than substitute a y procedure that may not fit will into the x judicial mechanism.

In England, there is a much broader statutory exception to apply lex fori. Primarily prescribing the mechanism to achieve a right. The machinery to get something done,

whereas substance is the product itself that reflects the rights of the party.

SUBSTANTIVE

Big debate was the limitation period. CL always regarded limitation periods as procedural. Civil law= substantive. Tolofson (decided substantive).

Definition: if something is talking about giving or taking rights between parties = substantive Random: When we look at substantive law of another juris, we should note:

Juristic entity – did the person have standing in the place of their location/origin – Bumper

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Tort – lex loci delicti (the place of the wrong) Tolofson. Inter-provincially, the court in Tolofson indicated there is no exception to that. Informational dated torts of libel (this is wrong) – perhaps Tolofson isn’t sufficient to deal

with these torts. Property – lex situs (the place of the location of the property). This is particularly important in

relation to property that is like land, is immovable. Contracts – a system that “finds the proper law” of the contract. The proper law of the contract

may be established by 1. express choice; 2. or it may be found to be implied; 3. or it may be imposed, if its not express – and its imposed based on the place that has the most connections with the contract. Similar with where we’ve gone with real and substantial connections. Problem: where does proper law begin and end? Ex the question of capacity to contract

(whether a minor, mental incapacity, intoxicated). Is it the law of the contract or is the lex contractus (the law of the place where the contract was purported to be made).

What about where sexual assault occurs across the state?

MANDATORY RULE BY LEGISLATION OF THE LOCATION

Will stipulate what law has to apply. Ex. shipping thing – Canadian law had to apply to the ships, provided the law is

constitutional. In pith and substance it has to relate to something in the province.

Tolofson v. Jensen, [1994] 3 SCR 1022

Torts as a juridical category – relevant connecting factor, so lex loci delicti (where the wrong occurred). Usually considered to apply to all torts and all elements of tort. Where action in one place but consequences in another, tort likely arises where

consequences of the action are felt. Facts:

Plaintiff was a passenger in a car driven by her father in collision in SK. Defendant resided in SK. The proceedings were statute-barred in SK, but they could be filed in BC. Also a question that was relevant in SK, of the rule of a gratuitous passenger being unable to

claim against a driver – this didn’t exist in BC either. The question of limitation was the bigger question.

If treated as substantive, lex loci delicti, then SK law applies. If treated as procedure, then lex fori, BC law would apply. Historically, again the Civil Law systems had looked at limitation as being substantive, but

the common law of EN and US had focused on limitation as procedural. Canadian law had focused on limitation as procedural.

Findings: Laforest said foreign litigants shouldn’t be granted advantages that weren’t available to

local litigants. Said limitation would be a matter of substance. Therefore, lex loci delicti.

Caused a flurry of actions in the provinces back to the procedural rule. Relating, in pith and substance, to property and civil rights in the province or out?

General rule of lex loci delicti, supported with practical considerations: Certainty, ease of application, predictability

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No exceptions in internal Canadian context, but possible rare/limited international exception.

Somers v. Fournier (2002), 60 OR (3d) 225 (CA)

Facts: Recall earlier, action in ON from motor vehicle accident in NY.

Findings: Argument for exception to lex loci delicti in international context was rejected. Costs and non-pecuniary are procedural. Prejudgment interest was substantive, went by lex loci delicti so NY. Costs are procedural simply because costs are more of a tool that the court can use to

encourage settlement, penalize for outrageous conduct, as deterrence. Even though they do have a compensatory element, they are more so a discretionary tool.

Prejudgment interest: also discretionary – also might not be awarded if the party has dragged out the proceedings or conduct has adversely affected the progress of the litigation. To this extent, it is like costs HOWEVER the court says when we look at PJI we are primarily looking at compensating for “lost investment interest” or the “changing value of money awaiting a determination by the court”. Therefore, PJI is primarily a compensatory concept.

Non-pecuniary general damage: What components of loss can be distinguished as procedural and substantive? Entitlement or remoteness of damage - substance. Quantification/calculation – procedure. If it is merely quantified, its procedure. Canada has put a cap on non-pecuniary.

The EU and Aus have moved away from this and said that the assessment of damages is substantive and should follow the law of the cause.

Distinguish: Wong v. Lee where car accident in NY but all parties from ON, car registered in ON, and

insurers in ON. Connection with foreign jurisdiction was minimal.

REMEDIES

In some ways, remedies are still largely procedural – primarily because the lex fori controls the means of executing a judgment. However, remedies are often so tied up with substantive rights and liabilities that the distinction can become meaningless.

Measure of damages/what can be recovered = substantive. Assessment/quantification – procedural What about caps on monetary awards in tort?

Wong v. Wei, 1999 BCSC 6635

Court classified the Canadian limit (cap on non-pecuniary damages) as substantive law and thus seemingly inapplicable, but then held that that the limit should nonetheless be upheld through the narrow exception in Tolofson and allow the cap to be dealt with under the lex fori.

Internationally there is a narrow discretion to apply lex fori in an appropriate case if necessary to avoid injustice.

If we have to, we’ll find it procedural.

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PARTIES

The wide scope of comity – In Bumper legal standing was given to a Hindu temple because it was a legal person under the law of the Indian state. The court reasoned that comity compels that parties that have legal standing under foreign law be given standing in the forum to enforce their rights.

Necessity for proof of foreign status – Indian Residential Schools – relied on Hamza to say that the Roman Catholic Church, alleged to be a foreign entity recognized as a juridical person, could be sued in AB. Court distinguished Hamza on the basis that the parties had no actually asserted or advanced evidence on the church’s juridical status under any foreign law.

Enforcement of assigned obligations – the question whether a foreign legal entity can sue or be sued in forum proceedings is distinct from the question whether suit must be brought in the name of the assignor or the assignee in actions to enforce an assigned obligation.

International Assn. of Science and Technology for Development v. Hamza (1995), 28 Alta. LR (3d) 125 (CA)

Facts: Parties A and B were registered as societies and were legal persons in Switzerland, but were

not registered in Canada and had no standing to sue in AB. Held:

The status to sue is often considered procedural. The right for a party to sue will be determined by AB law.

In AB, unincorporated associations and clubs are NOT legal entities capable of suing or being sued.

However, as a general rule, a foreign corporation duly incorporated under the laws of a recognized foreign state and give the power to sue, may sue in a common law province in its corporate name.

The question of status should be decided by the law of the place of formation. Here they are legal person under Swiss law and the AB court should honour this is a

matter of comity.

EVIDENCE

Evidence is too complex to be capable of a priori categorical characterization as substance or procedure; instead issue by issue approach. Under the Civil Code, all evidence is a matter of procedure. BUT, in the CL, the distinction is treated differently. There is often a distinction drawn between the mode of proving a relevant fact, including the admissibility of evidence (procedure) and a question of what facts must be proved and their effect once proved (substantive).

Ed Millar Sales & Rentals Ltd. v. Caterpillar Tractor Co. (1988), 90 Alta. R. 323 (CA)

Facts: Plaintiff alleges that defendant breaches the Combines Act. He seeks production of records

from a US proceeding that was investigated on similar grounds. The US courts had granted a confidentiality order – the Canadian court ordered production

of the records here notwithstanding the confidentiality order. Held:

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The Canadian court was allowed to make this order. (procedural?). Production of documents is a mode of proving a relevant fact.

The confidentiality was of their own designation – the court did not agree that a party can prevent production of a relevant document, otherwise subject to production, in a Canadian court by its own action in another jurisdiction.

In most cases to date, the courts have ordered discovery and production of documents, notwithstanding that disclosure was contrary to foreign law.

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Part Five: TortsGENERAL/HISTORICAL

THE RULE IN PHILLIPS V. EYRE (“DOUBLE ACCOUNTABILITY”)

General Rule: (now overruled) Two-Prong test for determining whether a tort occurring outside the court’s jurisdiction

can be actionable: 1. The alleged conduct must be of such a character that it would have been actionable if

committed in the local jurisdiction; and 2. The act must not have been justifiable by the law of the place where it was

committed.

Phillips v. Eyre (1870), LR 6 QB 1 (Ex. Ct.)

Facts: Eyre was governor of Jamaica and ordered the arrest and detention of many Jamaicans. At end of his terms governor he passed an act prohibiting any legal actions from being taken

against him for his actions as governor. When he returned to England, several Jamaicans sued him in tort in English Courts.

Findings: Eyre could not be sued in England for his conduct in Jamaica - law enacted by Eyre prior to

leaving made his actions “justifiable by law of Jamaica” and not actionable in England. Court emphasized prima facie rule of lex loci delicti in context of torts but also developed

two-prong test for determining whether a tort occurring outside court’s jurisdiction can be actionable (“double accountability”).

In order to bring action, claimant must satisfy the test as in section above.

Machado v. Fontes, [1987] 2 QB 231

Followed Phillips but with some misinterpretation. Findings:

Held that you can recover in tort law in England, provided it is not justifiable in the place where it occurred.

Court interpreted “justifiable” as “not unlawful” meaning that if something was illegal in the place where it occurred, even a violation of a highway code, it wouldn’t be justifiable and you wouldn’t be able to recover in England.

Moved from prima facie lex fori unless justifiable lex loci delicti.

McLean v. Pettigrew, [1945] DLR 65 (SCC)

Facts: Defendant and plaintiff were QC residents, involved in car accident in ON. ON law did not allow civil recovery for gratuitous passengers.

Findings: Court adopted position in Machado and looked at whether the accident was unlawful in ON

under highway/penal provisions.

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Chaplin v. Boys, [1971] AC 356 (HL)

See the handout re: the position in England compared with Canada. Facts:

Plaintiff, motorcycle passenger, was injured through the negligence of the defendant whose car had hit the motorcycle.

Plaintiff and defendant were British soldiers stationed in Malta. Findings:

Court modified test in Phillips on whether a court can assume jurisdiction over a tort that occurred in another country by requiring “double actionability”.

Court rejected Machado (and McLean) and interpreted “not justifiable” as “civilly liable” [discarded references to penal provisions].

Originally, subject matter had to be actionable in both the foreign and local jurisdiction. However, in this case HL stated that it only had to be civilly actionable under the law of the

forum (lex fori); where the lex fori had a much closer connection with the dispute, the lex loci delicti limb of the “double actionability” rule could be dis-applied.

POST-CHAPLIN V. BOYS

UK legislation came into force that emphasized lex loci delicti and abolished double accountability.

The Act gives a flexible and wide discretion to apply lex fori (similar to Tolofson).

TRENDS IN THE UNITED STATES

Courts moved away from lex loci delicti and rather look to the place where the tort has the most connections, e.g., domicile of parties, surrounding circumstances of matter, policy considerations etc.

US courts have found that having one rule about determining conflicts [i.e., lex loci delicti] is too blunt and cannot take account of competing policy interests.

Babcock v. Jackson, 191 NE 2d (NY Ct. Apps. 1963)

Facts: MV accident in ON. Passengers from NY, car registered in NY and NY insurance. In ON rule against civil recovery for gratuitous passengers against driver [therefore, per lex

loci delicti, there could be no suit against driver]. NY legislature had rejected adopting gratuitous passenger rule in NY. Passenger sued driver.

Findings: NY court described ON as having “minimal interest” in the matter: it was pure chance that

the passengers were in ON, no compelling interest for ON as to whether parties received insurance compensation or not, etc.

Court held that NY had greater and more direct effect. Therefore, NY is the court that has the most connections so NY law applies.

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Schultz v. Boy Scouts of America Inc., 480 NE 2d 679 (NY Ct. Apps. 1985)

Facts: Schulz family suing NJ school in relation to 2 sons who suffered sexual abuse by a teacher at

NJ school. The NJ school has headquarters in Ohio [i.e., domicile of the school]. The abuse itself, however, occurred at summer camp run by the school in NY. However, in NJ and Ohio charitable immunity rule that prevents individuals from suing

school for wrongs. Family brought action in NY.

Findings: NY court said it had no compelling interest in the matter, just happenstance that abuse

occurred there. Court recommended the case be dealt with in NJ (parties lived there, school there, etc.).

Gilbert v. Seton Hall University, 332 F. 3d 105 (2d Cir. 2003)

Facts: Student domiciled in CT but attending university in NJ. Student was injured while attending school-sponsored extracurricular in NY. NJ law has charitable immunity rule, which prevents action from being brought in NJ [policy

rationale for law: universities can charge lower tuition rates, encourages development of charities].

Findings: NY court has minimal interest in outcome, accident just occurred there. No interest in bringing matter in CT - place of domicile has importance but not as important

as NJ. Place of most connection is NJ.

THE CURRENT POSITION – CANADA

A NEW DIRECTION

Rule in Canada: lex loci delicti i.e., the place where the tort occurred shall be the primary determinant in resolving conflicts

issues. Rationale:

Creates certainty, predictability and ease of application for parties (Tolofson).

Exceptions: Inter-provincially: no discretion or exceptions to this rule in interprovincial context. Internationally: some narrow discretion in international context to not apply lex loci delicti

where there may be an injustice or where both parties are domiciled in the forum. In those cases, lex fori applies.

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Tolofson v. Jensen, [1994] 3 SCR 1022

Interprovincial, International Facts:

Father and son (age 12), BC residents, involved in car accident in SK with SK resident. SK law imposed a 1 year limitation period on an action arising from the accident, whether

or not plaintiff was an infant. SK law also provided that a driver had to be grossly negligent before a gratuitous passenger

could recover damages. In 1987, son sued father and SK driver in BC. BCCA held that the law of the forum should apply.

Appealed. Findings:

Appeal allowed. A state has exclusive jurisdiction within its own territories and other states must, under

principles of comity, respect the exercise of that jurisdiction. The substantive law to be applied in torts is lex loci delicti, the law of the place where the

tort occurred. Rationale:

Rule has advantage of certainty, ease of application and predictability. Only rare exceptions. No provincial exceptions - need to prevent forum shopping.

However, some narrow exceptions in international context where injustice would occur.

Somers v. Fournier, supra

Facts: Plaintiffs, ON residents, involved in MV accident in NY with defendant, NY resident. Plaintiffs brought action in ON and defendants attorned to jurisdiction of ON court. Defendant brought motion for declaration that substantive law of NY applied to plaintiff’s

action. Motion granted. Motions judge further concluded that procedural law of ON applied to action and that

procedural law of ON governed prejudgment interest, cost and cap of non-pecuniary damages. Defendants appealed.

Findings: Appeal allowed in part. Motions judge did not err in concluding that substantive law of NY applied to action. Fact that plaintiff was no longer able to pursue accident benefits in NY or additional or

different benefits from her own insurer in ON did not support exception to lex loci delicti rule.

No actual prejudice to plaintiff was demonstrated as consequence of her voluntary decision to sue in ON and her voluntary election to apply for and accept ON no-fault benefits.

Denial of opportunity to claim damages by reason of expiration of limitation period did not constitute injustice sufficient to support exception to lex loci delicti rule.

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Josephson v. Balfour Rec. Commission, 2010 BCSC 603

Didn’t review this in class, covered in Part 2. Facts:

ID resident, sustained personal injuries when thrown from a golf cart driven on golf course in BC by defendant, ID resident.

Plaintiff received medical treatment in BC and then later moved to ID medical centre. Plaintiff’s condition rapidly declined when moved to ID.

Plaintiff brought action in BC alleging negligence against defendant. Defendant brought 3P claim in medical negligence against ID medical centre and ID treating

physicians on basis that one or more 3Ps caused or contributed to serious consequences of Plaintiff’s injuries.

ID 3Ps applied to dismiss 3P proceedings against them on basis that BC court has no jurisdiction over them.

Findings: Application dismissed. BCSC does not have territorial competence under s. 3 of CJPTA to hear 3P claim but should

exercise discretion under s.6 of CJPTA to hear it. ID law does not recognize the ability of a defendant who is not a patient to bring a cause of

action for contribution or indemnity and ID law has abolished joint and several liability in most tort actions, including medical malpractice.

Here, factual matrix of the 3P claim was very closely connected to clam initiated in BC by plaintiff- only practical approach was for one court to hear all matters relating to cause of plaintiff’s injuries.

Commentary: Looks like an exception to Tolofson: 2nd tort that occurred in a foreign jurisdiction but is

related to 1st tort occurring in BC being dealt with under BC law?

CONCURRENT TORT AND CONTRACT

General Rule Proper law of contract and proper law of tort may differ dispute involving the same parties. The location of injury, while relevant to the proper law of the tort, cannot affect the law that

is meant to govern the contract, as this would allow the proper law to shift over time (Herman v. Alberta).

Herman v. Alberta (Public Trustee), [2002] A.J. No. 308 (QB)

Facts: Aircraft chartered to fly members of plaintiff family from AB to SK. Aircraft crashed in SK and two family members killed. Plaintiffs brought action for damages, either for own injuries or through estates of deceased.

Defendant aircraft co. and Public Trustee, on behalf of deceased pilot, brought application for preliminary determination of issues as to proper law governing the action.

Sales receipt for the flight was the only documentary evidence of a contract between the parties - this contract is silent as to the proper law.

Parties agreed that AB was convenient forum and that SK was proper substantive law for tort action as place of injury.

Issue:

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What is the proper law of the contract to apply? AB/SK? Findings:

No express choice of law in contract, therefore Court must find an implied choice of law/determine it based on connections.

Court finds that a consideration of the various factors surrounding the contract leads to conclusion that the contract is governed by AB law: contract made in AB, was for transport of passengers from AB-SK, 2/3 performance of contract occurred in AB, parties had obligation, etc.

Finds that the location of the injury, while relevant to proper law of the tort, cannot affect the law that is meant to govern the contract, as this would allow the proper law to shift over time.

PARTICULAR TORTS

Issues applying lex loci delicti in context of particular torts.

DEFAMATION

Slander versus Libel In case of slander, must prove damages, because just oral without record. Essentially, where the damage occurs is where the slander occurs (lex loci delicti). However, where defamation occurs on TV/internet it is libel. For libel, do not need to prove damage; rather damage occurs merely upon publication of

libellous statement, there is a record. For libel, can be challenging to determine where the wrong occurred, if TV/internet >

everywhere? Note:

UK law still retains double accountability for defamation.

Waterhouse Case, Australia (not assigned, but discussed)

Facts: Publication of defamatory statement occurred in 8 jurisdictions in Australia (6 states, 2

territories) because aired on national TV - published everywhere. Issue is that it is not published until it is accessed - need evidence of this, but potentially its

been accessed everywhere. Rule of lex loci delicti won’t work if it has been accessed “everywhere”.

Findings: Court disapproved of having lex loci delicti as the only rule in cases like the present where

there is national publication. Court posited that we either have to re-define libel, need to consolidate the actions, or come

up with a conflicts rule for these situations. Court identified two other rules that are developing, especially in US:

(1) Single publication rule: treats the multiplicity of places of receipt as in effect being one unit. Looks to the origin of the communication (i.e., where it was broadcast/uploaded).

(2) Choice of law rule: would be based on something other than place of publication, e.g., by redefining the nature of the harm, e.g., by imposing damages requirement for libel or to focus on domicile of individual harmed.

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Dow Jones (not assigned, but discussed)

Facts: Defamatory content initially uploaded in NJ. Australian High Court hearing the matter. Court has decided what rule to adopt: single publication, substance of the cause of action?

Findings: Court was most concerned with damage to reputation and said it ought to be looking at the

place where the most damage occurred. Howell thinks we should be focusing on the substance of an individual’s connections to a place.

Crookes v. Wikimedia, 2011 SCC 47

Facts: N owns and operates website in BC containing commentary about various issues, including

free speech and the Internet. One article he posted contained hyperlinks to other websites, which contained information

about C. C sued N on the basis that two of the hyperlinks he created connected to defamatory

material and that by using those hyperlinks, N was publishing defamatory material. Findings:

Issue is what does “publication” mean in this context? To prove the publication element of defamation, a plaintiff must establish that the

defendant has, by any act, conveyed defamatory meaning to a 3P who has received it. Applying this traditional rule to hyperlinks would have effect of creating a presumption of

liability for all hyper-linkers. This would seriously restrict flow in info on the Internet and ultimately free expression.

Ultimately holds that the placement of hyperlinks on a website does not constitute publication of material that hyperlink relates to.

Note: not conflict case per se but illustrates how information technology issues could present conflict of law issues in a future transnational proceeding.

CONVERSION AND BREACH OF TRUST

Laxton v. Anstalt 2011 BCCA 212

Facts: Issue involving transfer of money and tort of conversion. Appellants are companies incorporated in Lichtenstein. Their company sets up and administers companies, foundations and trusts. All of their

activities are conducted under Lichtenstein law. In the underlying action, Laxton claims that the appellants are liable to her in respect of an

alleged transfer of $2M from BC to Lichtenstein that were impressed with a trust for her benefit.

Issue: What forum should hear the litigation: BC or Liechtenstein?

Findings: Conversion occurs at the point the money is taken, not at the point it is received. Money in question was transferred from BC with the apparent knowledge of the person

who was the operating mind of the appellants and a company who had knowledge of the litigation.

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Part Six: ContractsINTRODUCTION

CONTRACTS SUBJECT TO UNIFORM RULES

Contracts are subject to uniform rules that are determined by conventions implemented in Canada, e.g., Sale of Goods Treaty, Marine Liability Treaty, etc.

There are some regional entities that have stipulated uniform choice of law: e.g., EU by Treaty of Rome. We won’t be dealing with these but they’re good to know about.

ARBITRATION

In most Canadian jurisdictions, arbitrators can apply the rules of law that it considers most appropriate given all the circumstances surrounding the dispute. Quite flexible.

HISTORICAL APPROACH

Prior to proper law approach, court would consider two things to decide what law applied: Lex loci contractus :

The law of the place where the contract was made would govern the structure of the contract, its validity and execution

Place of Performance: The law of the place where the contract was to be performed would be the choice of law.

THE PROPER LAW

General rule: In contracts, general rule is to apply the proper law of the contract.

“Proper law of the contract is the substantive law of the country which the parties have chosen as that by which their mutually legally enforceable rights are to be ascertained, but excluding any Renvoi, whether of remission or transmission, that the courts of that country might themselves apply if the matter were litigated before them”.

Proper law of the contract seeks to integrate everything about a contract into the law of one place - it is focused on connections. Determining the proper law involves several considerations:

MANDATORY RULE OF THE FORUM THAT MUST BE FOLLOWED

General Rule: Contracts may be subject to mandatory rules of the forum that the court of that forum must

follow, i.e., legislated rules that bind the courts of the forum. Exception:

Mandatory rules do not bind courts from other forums, but, as a matter of public policy, these foreign courts may decide to give effect to that mandatory rule (see: Gillespie).

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NO MANDATORY RULE

General Rule: If there is an express choice of law, so long as that choice of law is bona fide, the choice of

law is to be given effect to (Vita Foods). This rule supports important policy considerations, such as giving effect to the intent of the

parties and the bargain that they agreed to. Note that Renvoi is excluded from the proper law of the contract.

EXPRESS AGREEMENT BY THE PARTIES

Vita Food Products Inc. v. Unus Shipping Co., [1939] AC 277 (PC)

Facts: Shipment of herrings from NL to NY in 1933. Ship ran ashore on coast of NS and didn’t make it to NY. At this time, NL was not part of

Canada yet and, instead of following Canadian law, it had adopted the Hague Rules of shipping.

This legislation stipulated that bills of lading Ks must contain an express statement: “subject to the provisions of the Hague Rules”.

If the contract did not contain this shipment it may be void or illegal. Issue:

Main issue before NS courts (and then to Privy Council) was determining what effect should be given to the NL legislation?

Findings: Proper approach for the NS court (and PC) is to apply the express choice of law clause

between the parties. The NL legislation contained in the contract is a mandatory rule of the forum that must be

followed by NL courts but does not bind NS courts. Fundamental rule coming out of this case is that if there is an express choice of law, so long

as that choice of law is bona fide, the choice of law is to be given effect to.

The Torni Ship Case (1932) (not assigned, but discussed)

Facts: Similar Bill of lading to Vita Foods case from what was then Palestine. Bill of Lading was subject to a British Mandate (same legislation at NL).

Findings: English Court of Appeal held that the contract was illegal in Palestine. PC disagreed, held that the contract was not illegal in any event; Palestine legislation would

only bind Palestine, as it didn’t have extra-territorial effect. Recall: Gillespie - discretion of foreign courts to apply a mandatory rule of another forum.

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Re Pope & Talbot Ltd., 2009 BCSC 1552

Facts: 3 insurers issued directors and officers liability insurance policies. Plaintiff Ltd sought declaration that policies provided coverage for claims made pursuant to

s. 119 of CBCA for unpaid vacation pay and other things. Insurers brought preliminary application for order staying application brought by plaintiff

on basis of jurisdiction and forum non conveniens. None of the policies contain choice of forum clauses or clauses stipulating the proper law of

the Ks. Issue:

What is the proper law of the policies? Findings:

Application dismissed. BC held to be the most convenient forum + does not decide proper law.

No express choice of law in the Ks > must try to infer proper law from circumstances or determine which law has the closest and most real connection with the subject matter. Many factors to consider (listed below).

Court ultimately finds that it is not satisfied that it has all of the evidence necessary to determine the proper law issue. However, notes that although proper law of the contract is a factor, it is not essential to determining whether jurisdiction exists or should be declined.

NO AGREEMENT BY THE PARTIES: IMPLIED

If no express agreement, is there an implied choice of law? To determine implied choice of law: must look for the parties’ intent. Can take into

consideration many factors, including: nature of the transaction, the circumstances of the contract, history of the area of law, business practices, type of documentation, etc.

Choice of Law & Jurisdiction: Court may utilize an express choice of law clause in the contract to determine the

appropriate forum (Amin Rasheed). Additionally, the court may utilize a choice of forum clause in the contract as a presumption

of the parties’ choice of law where one is not expressed in the contract (Star Shipping). Where the choice of forum in the contract is “floating”, this presumption is weakened and

the court may have to determine the choice of law on the basis of the jurisdiction with the most connections (Star shipping).

Imperial Life Assurance Co. of Canada v. Colmenares, [1967] SCR 443

Facts: Life insurance policies taken out when Colmenares was resident and domiciled in Cuba. Policy of insurance contract was written in Spanish, was to be delivered by Cuban

companies to a Cuban national, was applied for in Cuba and the relevant documents had to be authenticated by a Cuban public notary.

However, applications for insurance where addressed to Toronto insurance co. The policies in question were in conformity with ON laws and were based off standard-form

Ks written in Toronto. Under these policies, any surrender of value or any amounts paid out would be paid in US

dollars drawn out of a NY bank but the premiums were to be paid in Cuban pesos.

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Issue: Payment of the surrender value of the policies. Payment depends on the proper law of the insurers: ON or Cuba? If Cuba, payout would

need permission of National Bank of Cuba (unlikely to get) vs. if ON, surrender value could be paid out easily.

Held: ON is proper law of the contract. Court considered “all the circumstances” and decided to apply the law, which had the

closest and most substantial connection. Findings:

Held that the most important factor in insurance context was who takes on the risk: Toronto.

Richardson International, Ltd. v. Mys Chikhacheva (The) [2002] 4 FC 80

Facts: Plaintiff US corporation (WA) loaned Russian fishing collective $4M to refit a fishing vessel

for processing fish products in exchange for an exclusive right to market those fish products.

Parties entered an agreement which provided for an assignment of all products produced by three owned by the collective to the plaintiff as security for the refit loan.

Fishing collective began selling product from vessels to 3Ps in violation of marketing agreement and notified plaintiff of termination of agreement.

Ship previously owned by the collective registered to Defendant B Ltd was arrested in Nanaimo, BC.

Plaintiff sought to enforce US law remedy of Maritime lien for necessaries - this law provided that a party that refits and supplies “necessaries” to a ship has an automatic lien on it.

Canadian law provides no such lien (must be expressly stipulated in the contract). Issue:

What is the proper law to apply? US, Canadian or Russian? Findings:

Upheld TJ’s decision. TJ properly considered totality of contractual relationship between plaintiff and fishing

collective. Looked beyond just the single contract and considered a “series of inter-related components”.

Marketing contract provided no express choice of law but contained an arbitration clause from which implicit intention to have US law apply could be construed.

Court also held that the question of proper law is a question of mixed law and fact - effect is to provide more scope for an appeal court to determine what is appropriate choice of law.

Note: Russian law not plead or proved - does not apply.

Amin Rasheed Shipping Corp. v. Kuwait Insurance Co., [1984] AC 50 (HL)

Facts: Plaintiff, a Liberian incorporated company carrying on business from Dubai, insured their

shipping vessel with defendant, a Kuwaiti company. The policy was based on Lloyd’s standard form contract, and in English, but provided that

Kuwait was the place of issue and the place where claims were payable.

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The policy was silent as to the law governing the contract and there was no indigenous law of marine insurance in Kuwait. Defendant had no office in England.

Plaintiff’s ship was lost and plaintiff sought to claim insurance for losses. Plaintiff seeks to litigate in the UK.

Issue: Whether England has jurisdiction simpliciter, and if so, whether as a matter of discretion

(forum non conveniens) they courts should hear the case? And what is the proper law of the contract?

Findings: Considering the provisions of the policy as a whole, the parties’ intention was that their

mutual rights and obligations under it should be determined under English law and English law was the proper law of the contract.

Choice of law was looked at for the basis for determining jurisdiction simpliciter in this case.

Star Shipping AS v. China National Foreign Trade Transportation Corp., [1993] 2 Lloyd’s Rep. 445 (Eng. CA)

Facts: C chartered a ship from S for a time charter trip. Disputes arose and were referred to arbitration. The arbitration clause provided for dispute

to be “referred to arbitration in Beijing or London in the defendant’s option”. S argued that the clause was null and void as it provided for a “floating proper law” which

causes a contract to be invalid in English law OR for uncertainty in that it was unclear who was the defendant.

Issue: What is the proper law of the contract?

Findings: (1) The parties had never intended by the clause to adopt a floating proper law. The

contract has a floating forum, which is OK (i.e., either Beijing or London); it simply means that the presumption in favour of choosing a law by implication from the forum is weakened. Will have to determine choice of law on basis of third category by determining which

jurisdiction has the most connections with the contract. (2) The clause was not uncertain since it gave an option to the defendant in legal

proceedings or the respondent in arbitration proceedings. Court uses choice of forum clause as a means of determining choice of law where an express

choice of law was not made in the contract (opposite of Rasheed)

NO AGREEMENT BY THE PARTIES: DETERMINED BY COURT

If no express/implied choice of law, can one be determined by the court? General Rule:

Where no express choice of law is made, courts may determine if the proper law can be inferred from the circumstances, or failing this, determine the system of law which has the closest and most real connections with the subject matter (Imperial Life Assurance)

This analysis is inherently fact-specific and contextual. Must consider the contract as a whole in light of all of the circumstances which surround it, including: (Re: Pope & Talbot) domicile/residence of the parties, national character of the corporation involve, place where contract is made and place where it is to be performed,

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style in which contract is drafted, fact that a certain stipulation is valid under one law but not another, the nature of the subject matter or situs, etc.

Implied vs. Determined: Distinction can be blurry sometimes; difference is that with implied choice of law you are

seeking to uncover the parties’ intent vs. with determining choice of law, if you cannot uncover intent, you use look to connections with the contract.

LIMITS ON PARTIES’ CHOICE OF LAW

An express choice of law must be a bona fide choice.

Nike Infomatic Systems Ltd. v. Avac Systems Ltd. (1979), 105 DLR (3d) 455

Facts: BC corporation that leased audiovisual equipment and franchises across Canada (mostly the

western provinces). Signed franchise agreement with defendant in AB. Contract stipulated that BC was the

proper law of the contract. AB had specific laws about franchising and the contract violated several AB laws (but did

not violate BC law). Defendant argued that the choice of law was not bona fide because business was occurring

in AB. Findings:

Court held that proper law of the contract was bona fide – plaintiff was located in BC and fact that plaintiff was involved in business across the country was not significant.

Golden Acres (contrast with Nike)

Facts: Contract dealt with marketing real estate in an estate complex in Queensland, Aus. Contract stipulated that the marketing be completed by a HK company and that HK laws

applied to the contract. Australian law held that no commission in real estate is to be paid unless the agent is

licensed in Queensland. Findings:

Court found that the choice of law in the contract was not bona fide. The contract was specifically focused on Queensland so HK law was not a bona fide choice -

intention of contract was to avoid Queensland law. Note: if contract involves land, the law where the land is situated is usually going to be the

law that should apply.

LAW OTHER THAN THE PROPER LAW

In certain circumstances, there is a “fuzziness” between the proper law of the contract and the features of the case where we may find that a law other than the proper law should apply.

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FORMATION

Issues arise with respect to formalities imposed by statute that must be followed for a contract to be valid.

Mackender v. Feldia AG, [1967] 2 QB 590 (CA)

Facts: Diamond merchants smuggling diamonds into Italy and some of the diamonds are stolen -

insurance claimed for the stolen goods. Merchants had not disclosed to insurance company that they were smugglers. The insurance contract was affected in UK but contract expressly stipulated that it was to

apply Belgium law and Belgium was exclusive form. Lloyds (insurer) wanted the matter heard in England. Trial Court found that matter should

be heard in England because contract was made there. Appealed.

Findings: CA stayed the English proceedings. Held that the matter should be resolved on the basis of Belgium law and by Belgium courts. Court notes that what had happened re: non-disclosure of smuggling did not affect the

meeting of the minds when the contract was created and therefore didn’t affect the parties’ express choice of law.

The non-disclosure of information may render the contract voidable but not void. Note: there is dicter here to say that if what had occurred was such to prevent the contract

from being made (i.e., no meeting of minds), then it might have been a matter of English law to be dealt with in English courts.

CAPACITY

Issues arise where a party does not have capacity, mental or otherwise, to enter the contract. Unresolved issue and competing viewpoints: lex loci contractus, lex domicili, law with the most

connections?

Cherron Case (not assigned, but discussed)

Facts: Couple married in 1908 in ON and lived in ON, separated in 1920 in ON. Husband died in war. Post-war proceedings brought to recover spousal arrears owing. Argument brought by estate that husband was domiciled in QC at time of death and QC law

prohibited separation agreements and therefore there was not valid separation agreement/contract.

Findings: Court seeks to resolve the matter by looking at capacity. Said capacity should be governed by the proper law of the contract. In this case, the “putative proper law”, i.e., the law that would have been chosen if one had

the capacity to choose” would apply, i.e., ON law. However, Howell notes that it should’ve dealt with case via basic invalidity under

general law as the parties, in a personal sense, had capacity to enter the contract. Howell thinks that either lex domicili or the place where the contract is made (provided the

parties had some substantial connection to that place) should govern capacity issues.

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FORMALITIES

Deals with issues where a law directs that certain formalities in the formation of the contract must be complied with.

Greenshields Inc. v. Johnston (1981), 119 DLR (3d) 714 (Alta. QB)

Facts: Plaintiff is investment dealer across Canada (esp. ON and AB). Johnston was principal officer of RH Johnson & Ass. J gave a guarantee for the company’s financial obligations in an investment. G makes claim of $14K against J personally when company falls through. Contract between parties was made in AB but stipulated ON as choice of law. AB law required a signature from a notary for making guarantees; ON law did not require

this. Matter was before the AB courts – issue was what law to apply?

Findings: AB court held that there are two choices in this context:

(1) Lex loci contractus - if so, then formalities of contract weren’t complied with and invalid contract; or

(2) Proper law of contract (i.e., ON). Nothing in the contract to preclude meeting of the minds (like Belgium Diamonds)

and this choice is bona fide because contract has substantial connections to ON. Court finds that it does not offend AB public policy to apply ON law in this case: simply

failing to get notary to sign something does not go to “moral turpitude”.

MANDATORY RULES OF LEGAL SYSTEMS OTHER THAN THE PROPER LAW

Mandatory rules of legal systems may require that a law, other than the proper law, apply to govern the execution of the contract.

Avenue Properties Ltd. v. First City Development Corp. (1986), 32 DLR (4 th) 40 (BCCA)

Facts: Defendant vendor of property in ON soliciting plaintiff purchaser in BC. Purchase agreement provided ON as choice of law. Plaintiff decided not to complete purchase. Defendant commencing action in ON for specific performance of agreement. Plaintiff bringing action in BC for declaration that the agreement is not enforceable due to

Defendant’s failure to comply with BC Real Estate Act. Issue:

Whether parties express choice of law applies, or whether BC law is mandatory rule that must be followed?

Findings: Holds that a party’s choice of forum should not be lightly denied. Court held that BC law applied to transactions inside of BC and outside of BC if it was

solicited outside BC. Court did not issue a stay of the proceedings for a declaration inside of BC, but held that it

would later issue a declaration if necessary, because found that the rule was mandatory.

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Unlikely that ON courts would take into consideration the BC law because not mandatory in their forum, however, it is possible that ON courts would invoke ON public policy (like Gillespie) and apply mandatory rule because contract concerned land in BC.

Gillespie Management Corp. v. Terrace Properties (1989), 62 DLR (4 th) 221 (BCCA)

Recall from earlier: Courts bound by mandatory rules of their forum, however, courts not bound by mandatory

rules of other forums. May exercise discretion in favour of public policy and apply another forum’s mandatory rule.

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Part Seven: PropertyTRANSFERS OF IMMOVABLES

CHARACTERIZATION – MOVABLE OR IMMOVABLE

Property must be characterized as moveable vs. immovable: (vs. real/personal property) General Rule:

Look to the place where the property is situated and determine whether the law of that place treats/characterizes the property as moveable vs. immovable. (a) Best example of movable = chattel (b) Best example of immovable = land (c) Things in the middle, e.g., interests in land, that are more difficult to characterize

Hogg v. Provincial Tax Commission, [1941] 3 WWR 605 (Sask. CA)

Facts: Estate tax in SK was levied on assets that devolved in an estate under the law of SK. The assets included moveables and immovables. Included in the assets were mortgagee interests in 37 mortgages on land in BC.

Issue: Whether these assets are subject to tax?

Findings: Court held that in order to know whether these assets are subject to estate tax, we have to

characterize them as moveable or immovable. Characterization of property as moveable vs. immovable is made according to the law of the

place where the property is situated (this is quite circular reasoning). In this case, must go to the place that the land is situated and ask how does that place (BC)

treat these interests that are not land but rather tied to the land (i.e., fixtures, servitudes, interests, mortgages)? Court looked to BC law and found that these interests are treated as immovables. SK must accept that characterization.

FOREIGN IMMOVABLES (JURISDICTION)

General Rule: Issues concerning immovables have to be determined by the law and the courts of the situs

of the land (Moçambique). This rule has almost universal application across common law jurisdictions.

British South Africa Co. v. Companhia de Moçambique, [1893] AC 602 (HL)

Facts: Plaintiff was in possession and occupation of land in South Africa. Defendant broke into land, took possession and ejected plaintiff from the land. Plaintiff went to the UK to seek a declaration that plaintiff was the lawful occupier, an

injunction to restrain the Ds from continuing to occupy the land and damages.

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Findings: No declaration or injunction granted. Question of damages went up to HL. Court held that issues concerning immovables have to be determined by the law and the

courts of the situs of the land. In this case, that meant only South African courts and law could be applied. HL refused to award in personam damages because this required making determination of

who was titleholder of land.

Hesperides Hotel Ltd. v. Muftizade, [1979] AC 508 (HL)

Facts: Cypriot plaintiffs owned hotels situated in the part of Cyprus occupied by Turks in the

invasion of 1974. After the plaintiff’s evacuation the hotels were operating by Turkish Cypriots who

circulated in England a brochure advertising holidays in such hotels. The plaintiffs issued proceedings against an English travel agent and a London

representative of the “Turkish Federated State of Cyprus” (the publishers of the brochure) alleging conspiracy to trespass.

Findings: (Court has opportunity to reconsider Moçambique) The English courts have no jurisdiction to entertain an action for trespass or conspiracy to

trespass upon land situated abroad but may entertain a claim relating to chattels outside the jurisdiction.

Although no issues of title were presented before the court, in order for the plaintiffs to prove their claims in trespass, they must prove the right to possess and occupy the land. This requires making a determination about title.

Court affirms Moçambique does not grant relief re: trespass or conspiracy to trespass. Court notes that an action may be successful respect to the tourists sitting in the Greeks’ chairs, etc. in trespass to chattels as Moçambique did not cover this.

Godley v. Coles (1988), 39 CPC (2d) 162 (Ont. DC)

Compare with Aleong re: declining to take jurisdiction over foreign real property (immovable) despite having jurisdiction over forum personal property (movable).

Facts: Ps brought an action for damages when water leaked into their condo from the toilet tank

located in the condo above it. The two condos were located in FL but their owners were all residents of ON. The Ds moved for an order declaring that the ON court had no jurisdiction to award

damages for injuries suffered by immovable property outside ON. Findings:

While ON court lacked jurisdiction to adjudicate cases involving disputes as to the title of foreign land, negligence claim for damages to immovable property does not require the Ps to prove occupation or possession and therefore does not bar an action being brought in ON.

Themes: (1) Maybe we should allow in personam actions in tort, e.g., in negligence, where the interest

in land is of secondary importance.

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(2) Is it sensible for the court to take jurisdiction over immovables if it has jurisdiction over movables without having to split jurisdiction between two forums?

Aleong v. Aleong (2013), 55 BCLR (5 th) 364

Moçambique and jurisdiction. Facts:

Parties born and raised in Trinidad. Moved to BC together in 1970 and got married. Moved back to Trinidad in 1994. Wife returned to live in BC in 2005. Getting separated. Property worth millions of dollars at issue - most of it located outside of BC (Trinidad,

Barbados, BC etc.). Wife sought order granting her leave to serve husband in Trinidad - relies on 10(a) of CJPTA

to establish jurisdiction. Husband sought order that action be dismissed/stayed because lack of jurisdiction -

presumption in 10(a) has little to do with the subject matter of the litigation, i.e. assets located outside of BC (including Real property in Trinidad).

Findings: Court declines to take jurisdiction over foreign real property (immovable) despite having

jurisdiction over forum personal property (moveable). No question that BC court would have jurisdiction if claims were limited to moveable

property in BC. Husband has brought sufficient evidence to rebut presumption of real and substantial

connection based on movable property in BC. Value of property located in BC is dwarfed by value of assets (including immovables)

located outside of BC - therefore only weak connection between BC and property claims at issue between the parties.

BC court does not have jurisdiction over claims without a real and substantial connection to BC merely because those claims are advanced together with claims where there is undoubtedly a real and substantial connection Therefore, having jurisdiction over some claims is not sufficient to give the court

jurisdiction over all claims.

FOREIGN IMMOVABLES & CONTRACT

Note: Line of authority predates Moçambique.

Ward v. Coffin (1972), 27 DLR (3d) 58 (NBSC AD)

Facts: Parties located in NB - dispute over land located in QC. Court ordered one party to transfer the property to the other. Issue arose with respect to the validity of the contract

Issue: At issue was a question of formality in relation to the place where the contract was made.

Findings: Court applied the NB law as the proper law of the contract.

Case is example of order being made by the courts in NB in relation to specific performance in land in QC.

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Lee v. Li, [2002] BCJ No. 780 (BCCA)

See para 14 – distinguishing issues concerning extraterritorial land from issues of fraud with respect to that land.

Facts: Deceased owned property in Taiwan. Deceased had 7 surviving children, including defendant son and 3 plaintiff daughters. After deceased’s death, son and defendant daughter in-law produced holograph wills

allegedly written by the deceased and re-confirmed before a notary. One alleged will devolved valuable Taiwanese property to the son. Daughters brought

action for declaration that the wills were fraudulently made and for damages. Son and daughter-in-law’s motion for declaration that BC was not appropriate forum was

dismissed and they began probate proceedings in Taiwan. Action allowed.

TJ found that son and daughter in law had committed fraud, and ordered determination of damages be adjourned pending finding of Taiwanese authorities.

TJ had found that there is a distinction between land elsewhere, in rem in Taiwan, and fraud that happens in BC that is in relation to land in Taiwan.

TJ pointed out that if you can make an order in relation to fraud, then of course you can make judgment for damages for the fraud.

They appealed. Findings:

Appeal allowed. TJ erred by exercising discretion to take jurisdiction. Taiwan was only jurisdiction to determine all issues. TJ’s declaration was inappropriate as no evidence existed that declaration would affect

resolution of estate in Taiwan.

Catania v. Giannattasio (1999), 174 DLR (4 th) 170 (Ont. CA)

Facts: Testator transferred property in Italy to 2 daughters. Deed was written in Italian and signed in ON by testator. Son applied to have deed declared null and void on ground that testator was mentally

incompetent when he signed the transfer. ON court held that it had jurisdiction to deal with application. Daughters appealed.

Issue: Whether validity of deed could be dealt with in ON in personam or whether Italian courts

must decide. Findings:

Appeal allowed. ON Court required 4 prerequisites for in personam jurisdiction:

(1) Court must have in personam jurisdiction over the defendant: here it did. (2) Must be some personal obligation running between the parties: not met - deed did

not create any contractual/legal obligation between son and daughters - son is a “stranger” to the deed.

(3) The jurisdiction cannot be exercised if the local court cannot supervise execution of judgment:

(4) Court will not exercise jurisdiction if the order would be of not effect in the situs. Canadian court did not have jurisdiction to determine title to foreign land.

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Wheatland Industrial Park Inc. (2013), 42 BCLR (5 th)

Facts: BC residents S and W (“marketers”) created and marketed a joint venture, which acquired

investment realty situated in AB with pro rata beneficial title ownership under a bare trust. Most joint venture members resided in BC. Marketers allegedly encumbered land in AB in violation of the joint venture agreement and

placed the joint venture assets at risk. Joint venture members brought petition in BCSC for appointment of judicial trustee over AB

lands to wind things up. Findings:

Petition dismissed - Court found that the foreign immovable rule is subject to in personam exception for causes of action not impacting title to extra-jurisdictional lands.

However, in the present case, petition for appointment of judicial trustee would directly impact title to AB lands.

Trustee would be involved in taking possession and control over the land, instituting proceedings in respect of the property, power to sell/convey the property etc.

Court held that these functions can be carried out only if trustee has proprietary power over land, therefore AB courts would have to deal with it.

Wang v. Sun (2014), 60 BCLR (5 th) 420 (BCSC) (not assigned, but discussed)

Case involved land in China. The issue before BCSC was not the title to the land but rather the question of payment of

commissions. Court considered this issue of commissions could be dealt with in BC despite not dealing with

title issue.

FOREIGN JUDGMENTS RE: LAND IN FORUM

Duke v. Andler, [1932] 4 DLR 529 (SCC)

Issues dealing with title can only be dealt with by the courts of the country. Facts:

A contract is signed in CA for land in Victoria. All parties to the contract were resident in CA. Contract dispute went to court in CA, court said the plaintiff should get the land, and that

the defendant should re-convey the land. Defendant refused to do so, so judgment was brought to BC.

Findings: BC court declined to enforce the CA ruling, said that to do so would blur the difference

between an in personam right and an in rem right (something that goes to the change of the title itself).

BC property must be dealt with by Canadian courts. Could likely have done this if the original issue had been done in BC court. Not dealing with an in personam judgment, so we do not need to follow the CA case.

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Chapman Estate v. O’Hara, [1988] 2 WWR 275 (Sask. CA)

How far should we try to argue that Moçambique affects in rem rights? Morguard is not seen as affecting in rem rights to this point.

Facts: Deceased’s estate being administered in MB. O’Hara (claimant) brings an issue to the court regarding deceased’s land located in SK. Alleged that he had a certain right to the land because of a trust interest that had been

created. MB court declined him. The title is held in the name of the administrator so he could continue on. O’Hara now files in SK, so land has lis pendens from suit in SK.

Abuse of due process? Findings:

Majority found it was an abuse of process, so the claim was struck out in SK, and that meant there was no longer any lis pending on the title in SK. Distinguished from Duke because it dealt with people who had no acceptable

jurisdiction, nor any ability to enforce, but here SK is basically allowing MB to do this? Dissent:

Takes the view that the majority is finding an abuse of process by taking account of the MB proceedings. It’s only an abuse of process if you acknowledge that MB has decided this. If you take away the MB judgment, there’s no abuse of process.

Presents the issue as being within the administration of the estate, and in personam in a sense, but it concerned the title to land in SK, and while it would have all rolled through without inquiry, but once O’Hara filed in SK, the court must decide what the status of Moçambique is interprovincially. MB also issued a contempt order against O’Hara to try to prevent him from doing this,

so supposedly he didn’t go back to MB to avoid this.

SO WHAT HAS MORGUARD DONE?

Nothing at the moment, so how should we interpret it? Questions remain unanswered.

The Enforcement of Canadian Judgments and Decrees Act discusses this, but Howell doesn’t think you can bring in rem into this yet.

S. 6(3) reduces the ability of a Canadian court to challenge jurisdiction of another province’s court in Canada. But that’s not to say that if another jurisdiction made an in rem order, s. 6(3) would apply to

that, because it must fall under the definition of a Canadian judgment. Howell thinks this points to a notion that we’re one country, as Morguard alluded to.

We don’t want private international law disputes going on as though each province is foreign to one another.

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CHOICE OF LAW ISSUES

CAPACITY

The courts tend to apply, as a universal rule, the law of the situs to govern all questions relating to one party’s capacity to transfer immovables.

Bank of Africa v. Cohen, [1909] 2 Ch. 129 (CA)

Issue of capacity to enter contracts. Facts:

Married woman from England executed a deed in England, by which she agreed to mortgage to the plaintiff bank, carrying on business in England and Transvaal, land in Transvaal to secure loans.

Defendant argued that a married woman was incapable of entering into such a contract due to the law in Transvaal.

Law in Transvaal was Roman-Dutch law – said a married woman cannot enter into such contracts.

Findings: Specific performance was impossible because the law of the lex situs deals with capacity as

well. No capacity, no contract. Standard for interest in land is lower.

If you register an interest that is not valid under law of country X, but is under country Y, and Y is the proper law of the contract, it can be enforced.

An interest doesn’t go to title or capacity, but must be careful to determine what the interest is.

TRANSFERS OF MOVABLES

The choice of law rules applicable to the transfer of movable inter vivos are underdeveloped. They start with the general idea that the governing law is that of the situs of the property.

INTANGIBLES

INTELLECTUAL PROPERTY/INFORMATION TECHNOLOGY

IP is becoming of immense importance. In broad terms, to fit within conflict of laws, IP infringement is tort.

THREE CATEGORIES OF IP

STATUTORY/TERRITORIALLY FOCUSED

Three types: Patent Registered Industrial Design

Not mechanical sense, but pleasing to the eye

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Limited to a territory, sovereign/governmental grant, there has been an administrative process that has preceded the grant.

Application has been made to a government for a patent, for a registered trademark, for an industrial design.

After that administrative process has been gone through, the government has made a grant of exclusivity, economic monopoly, etc. but limited to the territory of the sovereign.

One of the principle defences is to challenge the validity of the grant. Raises a Moçambique issue – one of which was a sovereignty issue.

The same thing applies here, a sovereign grant. If you’re challenging the validity of a patent or industrial design, you’re directly

challenging what a sovereign has done. Immediately comes to issues of comity, and a notion of state.

COPYRIGHT

How does it protect, what it protects? Statutory

It protects that because of a treaty system, because there is no grant. Exists merely upon creation. There’s no admin process, no need to register.

Though you can register it. Importantly, automatically you have protection in all treaty countries. Nature of the protection in different countries is referred to as a principle of “National

Treatment” Howell says: That is to say, I’ve created something, a literary work; it automatically has

copyright here in Canada, automatically protected in all treaty countries, (flows from the Berne convention).

Today, Berne has basically gone into all world trade organization countries. Protection based on the law of the place of infringement, lex loci delicti. Done in the courts of the country if infringement. The copyright is protected in that place, according to the law of that place, and by the courts

of that place – always existed under the principle of national treatment. We can say, with copyright, while patents and registered trademarks were territorially

focused, this brings a measure of universality to copyright, which doesn’t exist for the other types of intellectual property that we’ve looked at.

COMMON LAW (OR CIVIL CODE IN QC)

Tort of passing off, which is unregistered trademarks. Form of trademark protection that is not within the statute

Trade secrets (confidential information) Progresses like any common law tort would. Contract Equity (Imported the secret)

Given the nature of copyright, can be said that it’s movable, because you don’t have to register it everywhere, or that it’s everywhere where it is capable of being infringed. Goes wherever the owner goes, or everywhere within a treaty system, only matter is what

law is applied and who applies that law.

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HOWELL, “RELEVANCE OF NATIONAL REGULATION IN AN AGE OF BORDERLESS TRANSMISSION”

The future of copyright enforcement in the world and the use of administrative tribunals. IP, patent and copyright do not come up that often. WE are dealing with territorially enforced

statutory regimes. Infringement is only remedial within its border. Copyright might be different because there is no real situs for copyrighted materials. Copyright

is routinely exempt from the statutory treaties covering patents and trademarks. USA copyright law has been read to apply within US borders. But, this leaves open the

possibility of suit for acts of infringement uploading within the USA and being subsequently accessed outside of the forum. So, it is partially still within US borders. USA law may also be taken as the choice of law

since it is the lex loci delicti of the uploading of an offence committed elsewhere. However, UK authorities have explicitly rejected the logic of the Moçambique rule and it being

applied to copyright. In Canada we have no direct authority on point. But, we have a constitutional enforcement

issue. Would the Federal Court take issue or is this a provincial court matter? The Federal Courts lack an inherent jurisdiction to take over Copyright issues. The Copyright Act explicitly mentions the laws of Canada.

Other issues? Tolofson v. Jensen where the lex loci delicti is favoured in Canada. Creates some issue when enforcing things like moral rights etc. However, what do we do with something that lacks a situs and is transitory in nature?

Recognition may have been granted some ease on the basis of Beals and later Pro Swing. With an expansion of the enforcement of foreign orders in Canada, problems of registration

in multiple jurisdictions for copyright might be curved. Would an international tribunal system be valid to enforce copyright law? What if the Copyright board of Canada put tariffs on re-transmitted goods in Canada? Via the

Internet. The US might apply its own law in this case, if it has jurisdiction over the offender as being

the party who committed the original act. The transmission of the information. Even though a penalty would come under Canadian law.

Licences from Canada? Here we get an explicit grant via Canada, Canadian copyright law would be the applicable law in this instance. We are moving into the realm of administrative regulation by an Act of State.

Tribunals? Well if the foreign state has a similar system in place they might enforce out copyright law. However, issues of tariff's or levies might be subject to “public law” defences. If we created a

de facto uniform body to deal with transitory information we would in essence get a collective choice of law rule.

Lex situs, which is difficult to follow, would be unimportant to a large degree. Why not just private enforcement?

This would pretty much lead to an opt-in system for some people and would hamper enforcement universally.

As it stands various countrywide regimes dealing with these things don't have any international scope of any kind.

Or at difficult and questionable applicability. So, something more international might be required.

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Ortiz (NZ case, not assigned)

Legislative attempts to provide some monopoly for artefacts. Met with a notion that NZ was seeking to expand its political power beyond NZ.

Pro Swing, supra

In general terms, the economic monopoly based upon statute has a limit. In this case, where the SCC was looking at enforcement of a non-monetary order, greater

scrutiny was given. Found that one of the facts that the court stipulated, in not enforcing the US judgment, was that

it purported to enforce a statutory right beyond the territorial limits of the US. The result would be utilizing conflict of law to give global significance to a US trademark in that

case.

Lucasfilm Ltd. v. Ainsworth [2011] UKSC 39

The UK SC reversed the Court of Appeal. The CoA said copyright should be subject to the Moçambique principal.

Even if an English court had personal jurisdiction over the defendant, it should/could not apply the law of another sovereign in copyright against the defendant in the case because Moçambique would apply and say that it’s only the courts of the place where the copyright is, and it’s only the law of that place that applies.

Facts: UK defendant was reproducing artefacts from the Star Wars films and selling them in the

UK. Also sold in the US, and the US found it was an infringement of US law and gave $20MM

judgment. Findings:

Judgment was brought to UK, punitive amounts were removed so it dropped to $10MM. UK declined to follow the expansion, declined to adopt the real and substantial connection

test. UK SC said they were keeping the traditional enforcement criteria:

Service in the jurisdiction or attornment to the jurisdiction. UK court decided to apply choice of law and applied US copyright laws.

Note: For Canada, why would we bother to apply choice of law in other contexts? We have real and substantial connection test, so why don’t we just leave it to the foreign

court to deal with IP and we can just enforce the judgment? Seems to be more efficient that if you have one trial in the UK dealing with UK and US

infringement, then it looks similar to the single publication rue from the Australian defamation case.

Example: A and B are resident in the US. A is a trademark holder of US trademark rights and of Canadian trademark rights. B infringes both US and Canadian infringement. If A sues B in the US, it should deal with both US and Canadian infringement.

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Itar-Tass Russian News Agency v. Russian Kurier Inc., 153 F. 3d 82

Distinguish circumstances of infringement from circumstances of Recognition of Scope of Copyright.

Facts: Reproduction of Russian news for Russian immigrants in NYC. Infringed the copyright that originated in Russia. But who owned the copyright? The newspaper, reporter, gather agency? Question of ownership and scope had to go back to a situs.

Place where it all originated. In a sense, there’s an immovable nature to copyright.

You may need to go to the place of origin if you want to find out an issue that is relevant to copyright, but is not an infringement issue per se – it relates to something else.

Ownership, priority in securities, etc., could be anything like that where you have to go back to where it was created.

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