INTRODUCTION 4

Definition 4

Structure 4Distinctive Characteristics 5Brilmayer: Is there a Normative Framework? 5

Relationship with Public International Law 5

Sources of Conflicts Rules 5

CL Historical Background 6Story: the Principle of Territoriality 6Dicey: Comity 7Beale: Vested Rights 7Cook: the Local Law Theory 7Currie: Governmental Interest Analysis 7

JURISDICTION 8

Jurisdiction over the Plaintiff 8Success International (1995) ON GD 8Bumper Development (1991) ENG CA 9International Assoc of Science and Technology 9

Jurisdiction over the Defendant – within the Province 9Maharanee of Baroda v. Wildenstein (1972) ENG CA 10Corporations 10

Jurisdiction over the Defendant – outside the Province 10Morguard Investments (1990) SCC 11Moran v. Pyle (1973) SCC 11Furlan v. Shell Oil (2000) BC CA 11Muscutt v. Courcelles (2002) ON CA 12Oakley v. Barry 13AG Armeno Mines v. PT Pukuafu Indah (2000) BC CA 13Rhodes 13Strukoff v. Syncrude Canada (2000) BC CA 14Craig Broadcasting v. Magid Association (1998) MAN CA 14Spar Aerospace v. American Mobile Satellite (2002) SCC 14US Satellite Broadcasting v. WIC TV (2001) AB CA 15Strukoff (2000) BC CA 15Jordan v. Shets (2000) BC CA 16Harrington v. Dow Corning (2000) BC CA 16

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Discretion to Decline Jurisdiction (FNC) 17Historical Approach 17Characteristics of the Test 17Airbus v. Patel (1999) HoL 18Spiliada Maritime v. Cansulex (1987) HoL 18Amchem v. BC Workers Comp (1993) SCC 19Bushnell (1992) BC CA 19472900 BC Ltd. v. Thrifty Canada (1998) BC CA 19Westec Aerospace v. Raytheon (1999) BC CA 20Sydney Steel v. CNR (1998) 20

Jurisdiction Selecting and Arbitration Clauses 21Oulton Agencies (1988) PEI AC 21International Commercial Arbitration Act 22Foreign Arbitral Awards Act 22BVW Investments v. Saskferco Products (1994) Sask CA 22

Anti-Suit Injunctions 23Aerospatiale (1987) PC 23Airbus v. Patel (1999) HoL 24Amchem v. BC Workers Comp SCC 24Hudon v. Geos Langauge (1997) ON Div CT 25Gentra Canada v. Lehndorff (1995) AB CA 26

CHOICE OF LAW 26

When is Foreign Law Applied? 27

Which Foreign Law Is Applied? 27Problems With the Connecting factor approach 28US Process rejected in Tolofson 28

What is the Foreign Law? 28Mercury Bell (1986) Fed CA 30Hunt (1993) SCC 30Limitation Periods – Tolofson v. Jensen (1994) SCC 30Legal Status – International Assn. of Science and Technology (1995) AB CA 31Damages and Awards 31Evidence 32

Public Policy and Public Law Claims 33Ivey (1995) ON CA 33Kuwait Airlines (2002) HoL 33Lloyds (2001) ON CA 34Beales (2003) 35Wende BC SC: 35Boardwalk Regency (1992) ON CA 35

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Public Policy in an Interprovincial Context 36Penal Laws 36Huntington (1893) PC 37Harden (1963) 37Toronto Dominion Bank (1989) 37Stringam v. Dubois (1992) AB CA 37Re: Sefel Geophysical (1989) AB QB 38Revenue Laws 38Weir (1967) Man QB 38

Connecting Factor: Torts 38Historical Approach (UK) 38US Approach to Torts 40Canadian Approach 40Products Liability 41Fraudulent or Negligent Misrep 41Economic Torts 41Nuisance and Environmental Damage 41Defamation 42Statutory Tort Claims 42Particular Issues in Tort Cases 42

Connecting Factor: Contracts 43Vita Foods v. Unus Shipping (1939) PC 44The “Star Texas” (1993) ENG CA 44Imperial Life Assurance v. Colemenares (1976) 45Amin Rasheed Shipping (1984) HoL 45Contract Formation Issues 47

RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENTS 48

General Points 48

Enforcement at CL 49Nouvion v. Freemen (1889) HoL 49NEC Corp v. Stendron (1985) ON HC 49Jurisdiction of the foreign court in an international sense 49Defences 52

Recognition and Enforcement under Statute 54BC Court Order Enforcement Act 54Central Guaranty Trust v. Deluca (1995) NW Terr SC 55Moss v. Brown (1997) 55TD Hospitality v. Browne 56

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INTRODUCTIONprivate international law, conflicts of law, or “advanced civil procedure that may influence courts”

Definition

Castelles: The branch of law of each province or territory (including federal law) which in a case involving at least one legally relevant foreign element connecting it with more than one legal unit determines before the courts of which unit the suit should be brought and by the law of which unit each issue should be decided.

The branch of law of each province or territory – can vary from province to province, will definitely vary between countries; there is NO global law or international understanding.

including federal law – NOTE: while you can have conflicts of law issue bw BC and Alberta, cannot have one bw BC and Feds (bc then is a constitutional issue)

which in a case – this course deals with civil litigation, criminal litigation is dealt with under statute – conflict resolved by statute or public international law

involving at least one legally relevant foreign element connecting it with more than one legal unit – has to be some foreign element!

determines before the courts of which unit the suit should be brought – determines whether the province’s civil procedure rules apply

and by the law of which unit each issue should be decided – which law should apply

Structureconflicts is a set of rules (or series of argumentative propositions) that overarch or parallel our regular domestic law system – procedural rather than substantive law

1. Which forum has jurisdiction over a particular dispute and should hear the matter? Two parts: does the court have the authority to hear the suit? Is it the most appropriate forum?

2. whose law applies? THIS IS WHERE CONFLICT ARISES (where there is a difference or inconsistency in the laws of the forum and foreign states).

3. Where can the judgement be enforced? Two parts: (1) litigation strategy – no sense getting a judgement if you can’t enforce it where the money is; (2) Beales

Note: not really any “brightline” principles; although SCC tried to create such principles in Tolofson

and Beales, has lead to unfair judgements, so now trying to balance fairness and predictability. goal is to coordinate legal units (e.g. within Canada) but… there is no body or institutions that has

a mandate to harmonize national laws, or even the conflicts laws themselves (exception: Hague Conferences, Uniform Law Conference of Canada attempts to harmonize laws across the country)

tension between value of predictive/system and social justice/fairness

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Cause of ActionLex fori Suit – JS (over parties and subject matter)

Lex fori Jurisdiction Challenge (court’s discretion to exercise jurisdiction – fnc, anti-suit injunctions)

Choice of law – jurisdictional categories and connecting factors tort = lex loci delectiK =proper law of k

Recognition and enforcement of the judgement

Distinctive Characteristics deductive method of reasoning comes from the courts’ understanding of the nature of the subject

o treated as a distinct set of rules that assigned legislative and judicial competence over broad legal subjects to various political units

o apart from the dispositive law that applied to any particular social issue o more immutable, isolated from changing social conditions o rules limited in number o practice: trying to fit new problems into a limited and closed list of principles

influence of positivism and analytical jurisprudence o identified with the municipal law, rather than being considered a branch of public

international law

Brilmayer: Is there a Normative Framework? is the choice bw the laws of one state and another (1) external or (2) internal?

o internal: perspective of one of the alternatives states, namely that one now charged with deciding the case

o external/objective: based on methods or rules that are in some measure independent of the preferences of the particular alternatives states whose laws might be chosen?

do not have same commitment to the ideal of judicial neutrality (as compared to domestic law)o judge is in the public services of one of the contending states – wouldn’t she have a duty

to follow the preferences of the people and elected representatives of her state? two possible answers:

o (1) there is an external normative system (largely rejected!)o (2) choice of law issue turns of the forum state’s local law problem: trivializes the

issue of choice of law bc inherent assumption for the forum state. Also, provides no basis for critical commentary or normative recommendations

Relationship with Public International Law pil deals with international rules that are designed to deal with states whereas conflicts rules are

domestic court rules that regulate private individuals in cases with an international element there are attempts to unify areas of private law (lesser need for conflicts) Canada recently adopted/implemented number of international conventions – Hague conference

on Private international law (international flavour of Canadian private international law). il issues in conflicts: theoretical debate (super-national or global set of principles v. evolution as

the state sees fit – see B above)

Sources of Conflicts Rules statutes: (be wary of this one) can have conflicts of laws aspects (telling you whose laws to apply

in a particular fact situation or asserting jurisdiction). generally map onto those sources of pil outlined in the Vienna Convention:

o international treaties: although not binding in Canada, may be national policy and legislation based on them. Also, governments want courts to follow general principles of such arrangements (e.g. child abduction, inter-country adoption etc.)

o CL: most significant source (English) o leading scholarly writings (e.g. Castelles) – especially given the complexity, unlike the

courts can try and bring the cases together to find some sort of cohesive principle

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CL Historical Background “country” = territory subject to one body of law

o for most purposes, each province/territory is separate country in private il in CL jurisdiction, the principles of private il have traditionally been developed by the judges

with very little statutory intervention although Canadian principles are derived from English, there has been a divergence recently, due

to constitutional and social differences as well as the UK’s membership in the European Community

o doesn’t really make sense for us to use English origin because it is a unitary state (whereas Canada is federal)

o result: strong reliance on English cases, but only a handful of US cases o now Canadian Court striking out on our own more (drawing more on the thinking, if not

the decisions, in the States) principles that apply interprovincially are different than those that will apply on the truly

international field o

US 2nd restatement of law on conflicts suggests the following factors: o needs of the interstate system (comity)o policy of the forum (local government) o relevant policies of the other units in question – balance interests in the issue o justified expectations i.e. vested rights o basic policy underlying a field of law (e.g. property, ks) o certainty, predictability, uniformity of result o ease in application (often given more weight than it deserves) o which state or unit has the most real and substantial relationship/connection with the

matter – either with the subject matter, the parties, or the event. Important with the location, choice of law and recognition of enforcement of judgements. (Ted) no real test though!

factors in the development of this branch of CL: youth, fundamental dependence on basic principles of public il, heavy borrowing of civil law doctrine, reliance on academic authorities, penchant for deductive reasoning

Story: the Principle of Territoriality “Commentaries on the Conflict of Laws” published 1834 – although conflicts first considered by

the courts in a significant way in the US, rather than England (is unique in this respect) there is NO special treatment of American judgements (i.e. as persuasive or authoritative)

GR: every nation possess as exclusive sovereignty and jurisdiction within its own territory o effect: rules of the state are binding on all property, people, and contracts made within its

territory (specific geographic location) – problem (Canada): may be overlapping between federal, provincial, and First Nations

but.. no state can directly affect or bind property beyond its territory, or non-residents (can be supreme within BC, but problem if try to move outside of BC)

o can a BC court provide for service ex juris on an Alberta resident? o if you have a BC Statute that has as its pith and substance interference with the legislative

authority of Alberta, then it is unconstitutional how to reconcile territoriality and the application of foreign law: (Ted says none really work)

o comity – may apply it (oblesse noblige), foundation of il: do justice in order that justice may be done to us in return

o vested rights (American, rejected in Canada but sometimes raised heartstrings argument)

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o local law – foreign law isn’t really being applied bc it becomes the law of the forumo government interest analysis – problem: requires the court to look at the policy in the

legal units (evaluating competing government interests) – courts are always going to understand the local policy better than the foreign and so likely to win.

whatever force and obligations the laws of one country have in another depends solely upon the laws and municipal regulations of the latter (need express or tacit consent)

Dicey: Comity Dicey’s treatise published 1896 – rules considered as equally authoritative as local statutes or

judicial precedent GR: recognition of foreign law depends on comity the law of no country can have effect as

law beyond it’s own territory unless by permission of another state application of foreign law is not a matter of caprice or option (i.e. will not apply foreign law

merely out of consideration for another state). o flows out of the impossibility of otherwise determining whole classes of cases without

gross inconvenience and injustice to litigants comity: deference to foreign laws seen as an attempt to promote international harmony by

accommodating the views of a foreign sovereign in the expectation of receiving reciprocal treatment (pple of enlightened self-interest)

Story used this line of reasoning, but was criticized by Dicey and Beale as too vague and discretionary to explain the mandatory application of foreign law

o LHD promoted this theory – not so much out of generosity, as out of necessity (bc of amount of international relations)

Beale: Vested Rights all rights must be created by some law (are political rather than social creations) a right having been created by the appropriate law, the recognition of its existence should follow

everywhere (where the right arose, this should follow the individual around) there is no exception from territorial law, instead local law simply recognizes that a right has

become vested in an individual under the foreign law at the time when the individual was subject to the foreign law.

emphasized the individual’s entitlement to his vested right rather than the courts’ politeness or concession to foreign sovereigns

widely adopted in the early 20th c

Cook: the Local Law Theory the forum incorporates foreign law, and is then able to apply it as domestic law allows the conclusion that the court only enforces rights created by its own law – what you are

really doing isn’t applying foreign law, just making domestic law like foreign law

Currie: Governmental Interest Analysis argues that we would be better off without choice of law rules suggest a method to follow: normally apply domestic law (even where there is s foreign element),

consider the policy of the domestic and foreign laws, apply the foreign law where the forum state has no interest in the application of its policy by te foreign state does. Where both states have an interest (or the foreign state has no interest), should apply the law of the forum state.

will not result in the unchecked pursuit of self-interest bc (1) state action is constrained (2) possibility of rational altruism (3) room for restraint and enlightenment in the determination of what state policy is and where state interests lie.

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in line with modern theories that see conflict of laws as having to do with the familiar CL task of deciding the appropriate scope of any rule given its underlying rationale or purpose

o courts consider whether the local law, which has been developed to respond to local situations, ought to be modified in light of a foreign element

o courts should consider the underlying policy or purpose the law is meant to serve and then ask whether the law should be applied

JURISDICTIONcourt where the suit is raised (lex fori) decides whether or not it has jurisdiction

jurisdiction in rem (things): rules that apply to property; as a generality, jurisdiction over immovable things rests with the court that has jurisdiction over the land where the property is. At a min will have jurisdiction simpliciter.

jurisdiction in personam – civil suits (money) – there are some persons whose status prohibits them from bringing an action and there are some whose status confers immunity

Jurisdiction over the Plaintiff

individuals: if you are IN BC you can sue hereo even if a mere visitoro some exceptions (e.g. minors, standing issues, enemy aliens) o subject to statutory rules

corporations/societies: if ESTABLISHED pursuant to BC legislation, then can sue here o Ted says federal companies also able to sue in BC o extraprovincial companies have to meet registration requirement when carrying

on business in the province (s.297 BC Company Act) o extraprovincial company that is not registered as required is NOT able to maintain

an action in a BC Court. Does NOT extend to torts (strictly on a k) (s.312 BCCA)

Success International (1995) ON GD FACTS: NY Company entered into k with ON company to purchase used tire

manufacturing equipment, arbitration clause, seeking judicial enforcement of the award ISSUE: Success has not complied with the extra-provincial corporations act (similar to

s.312 BCCA) are they therefore disentitled from seeking access to the Ontario courts? company argued that the k was a single/isolated transaction that took place in ON – this

failed bc of magnitude and duration of the transaction (several month project, Kitchener office location, staff on site, etc.)

HELD: cannot maintain the application bc not registered in ON note: there are some BC cases that go in a different direction (are not in text)

o found that able to enforce commercial arbitration, despite being unregistered (Pan specific Specialties) Also, court said it was just recognition of a foreign arbitral award, not about the enforcement of a k (v. here court said was really about the k)

in BC, if you subsequently register you can revive the case

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Bumper Development (1991) ENG CA FACTS: bronze statute discovered in India was stolen and resold, similar one confiscated

from Bumper in England. Decided at trial (and the CA agreed) that the confiscated and stolen statutes were the same. Question was whether any group, other than Bumper, had a superior claim to the statute.

foreign law is treated as a matter of fact that must be proven in evidenceo court will not conduct its own researches into the foreign law o if the evidence of several expert witnesses conflicts, the court is must look at the

sources themselves in order to decide between conflicting testimony o but… may be reviewed more readily than other findings of fact

ISSUE: can a foreign legal person which would not be recognised as a legal person in English law sue in the English courts?

o temple was a physical place (represented by an individual, rather than a group) o under Hindu law the temple is a legal person such that it can sue for recovery of

the statute – vested rights type of argument o when dealing with natural persons or foreign legal individuals that would be

recognized as such under English law, generally no problem o analogy to RC Church (in other countries might be able to bring case for

protection, although normally not able to do this under English law), need for comity among nations

o no policy reason not to assert jurisdiction HELD: appeal dismissed (temple recognized as a party) note: temple sought award in UK partly bc statute was present, also both Canada and

India are parties to UNESCO cultural property treaty – Bumper would have been entitled to compensation bc was a bona fide purchaser for value

International Assoc of Science and Technology similar outcome to Bumper registered in Switzerland, not in Can AB looked at whether they could bring the action in Switzerland, if they could show this

then would also have legal status in Alberta

CONCLUDE: there is a degree of discretion as to whether these odd entities have legal status to bring suit

Jurisdiction over the Defendant – within the Province

territoriality (at CL) provinces have jurisdiction over any person within their territory o jurisdiction as of right (js) where a writ can be served on a person in the provinceo exception: pg.194 restrictions on people that you can sue (immunities)

but… note corollary: absence of power to regulate with respect to persons in other jurisdictions because that would constitute an interference with the sovereignty of the other jurisdiction

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Maharanee of Baroda v. Wildenstein (1972) ENG CA FACTS: both parties live in France but are occasionally in England, M bought a painting

from W in France, it was subsequently discovered to be a fake. ISSUE: does the English court have jurisdiction over the foreign def? writ was properly served on W while he was in England – therefore valid (irrelevant that

the plf and def are foreigners, as long as both in England at time action commenced) HELD: fleeting presence is sufficient note: may be a defence if you are present only by reason of serious fraud (more than mere

inducement)

Corporations BC Rule 11(2)(b): look for the agent of the company extraprovincial companies are registered

o pursuant to the act, are supposed to have an attorney of record (that is who you serve).

o if you have a non-BC company, not carrying on business in BC, then is not subject to service in BC

where a corporation has not registered extraprovincially, question to be resolved by the procedure of the forum

Jurisdiction over the Defendant – outside the Province

CL: parties could only be served within England – extended jurisdiction introduced by statute in 1852 (limited application)

o CL doesn’t really allow for service ex juriso statutorily based authority have to fit within the statutes (civil procedure rules)

Original English process: o ex parte hearing – need to apply to the courts for leave bc territorial problem of

extraterritorial jurisdiction. o granted if plf establishes (1) there is a good arguable case on the merits (2) there

is a sufficient connection to the jurisdiction and (3) is the appropriate forum o NS and PEI have departed most radically from this model – no leave required if

party you seek to serve is within Canada or the US BC Rules:

o Rule 13 Service outside of BC – (1) service outside BC without order - note (g), (h), (m), (o), and (q); if you fit within the Rule 13(1) then js has been met – basically establishes the real and substantial connection. If you don’t fit within 13(1) then 13(3) allows service ex juris. (8) k containing terms for service.

o note: difference bw asking the court to grant leave (bc real and substantial connection is there) and asking them to exercise discretion (fairness)

o Rule 14 – (6) where writ was issued improperly under 13(1) or the facts do not support jurisdiction. Onus is on the plf to show that it fits within 13(1).

o if def appears at court (other than to challenge js or fnc under the rules – see 14(6)(4)) deemed to attorn to the court’s authority

o structural point: def can challenge the jurisdiction simpliciter of the court without conceding jurisdiction

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cases fit into three categories:

o about the wording of 13(1): Moran (h), Strukoff (g), Rhodes (g) o provide directions on the arguments that might be used for 13(3): Muscutt, Spar

Aerospace, US Satelliteo talk about the nature of the burden on the plf: Furlan, Armeno

Morguard Investments (1990) SCC imposed a constitutional standard on the assumption of jurisdiction

o real and substantial connection bw the province and the action is required o question is asked twice… once at the jurisdiction simpliciter stage and then again

at the discretionary stage of the processo although second stage requires a closer degree of connection, judges will consider

the same factors

Moran v. Pyle (1973) SCC FACTS: M fatally injured while removing light bulb in Sask. Light bulb was

manufactured by P – who does not carry on business in Saskatchewan. Assembly takes place in ON and parts may be manufactured in he US. Action cannot be brought for a tort committed outside of the province (except with leave of the court). Brought action under the Fatal Accidents Act of Sask.

ISSUE: what is the situs of the tort, for the purpose of deciding js (NOT choice of law!) Chambers judge found that tort occurred in ON, ordered that service be allowed there.

But… was set aside bc provision intended to decline jurisdiction when shown that an action could be conveniently tried in another forum, NOT intended to confer jurisdiction.

fact that the death occurred in Sask is not sufficient to give jurisdiction o assume that intention is to legislate only within the province – infer that the

wrongful act must also have occurred in Saskatchewan exception to requirement that jurisdiction depends on presence or voluntary submission:

torts committed within the territorial jurisdiction of the court possible ways of determining where the tort took place:

o “place of acting” theory: where act of def which caused final damage occurred. Problematic where different elements may have occurred in different provinces

o where the last event which completes the cause of action occurred o all elements must have occurred within the jurisdiction (too draconian, ruled out) o test: real and substantial connection bw the cause of action and the jurisdiction

note para 217: too arbitrary and inflexible… application to the case: manufacturer who knew or ought to have known of possibility of

harm will be subject to the jurisdiction of any place which he ought to have had in reasonable contemplation when he tendered his goods Saskatchewan has jurisdiction

HELD: appeal allowed (Sask has js)

Furlan v. Shell Oil (2000) BC CA extends js principles

FACTS: defective plumbing, def supplied resins to manufacturers without warning that they were unfit. Plfs relied on rule 13(1)(h) and (o) to serve ex juris, without leave –

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proceeding founded on a tort committed in BC, claim arises out of a goods or merchandise sold or delivered in BC.

ISSUE: what is the correct interpretation of the requirements for js?o GWL Properties: asbestos in buildings, tort committed in BC, immaterial whether

the facts were pleaded or supported by evidence (def did not contest the facts) o Bushell: obiter statement that “it is an intellectual exercise not involving any

discretion” whether the action as pleaded falls into a Rule 13 categoryo conclusion: pleadings alone are sufficient, there is no requirement for evidentiary

support (i.e. affidavit) there may be a limited variety of situations where evidence is needed: where the

pleadings do not disclose sufficiently the relevant facts, or where the claim is founded on alimony or k requiring that the def have assets in the jurisdiction

may also be residual category of cases where evidence required when plf has advanced extremely tenuous claim concern as to whether there is ANY evidence to support

o if the def can establish that the plf cannot make a good arguable case on any material fact that is crucial to the case, jurisdiction should be refused (otherwise risk abuse of process)

if the damage from the manufactured product occurred in BC, then will have jurisdiction even if the product was manufactured elsewhere

o defs do not deny that their resins ended up in BC, they just say that if this happened, it was as the result of a sale outside of BC – this is not an answer to claims founded on a tort within he jurisdiction as alleged!

HELD: appeal dismissed (service ex juris was ok)

Muscutt v. Courcelles (2002) ON CA FACTS: mva in AB, injured plf returned home to ON, one of the defs has since moved to

ON (all were AB residents at the time of the accident). Plf brought action in ON ISSUE: does the ON court have jurisdiction over the AB defs? jurisdiction may be asserted against an out of province def in three ways: (1) def is

physically present (2) def consents to court’s authority, (3) assumed jurisdiction (initiated by service of the court’s process out of the jurisdiction pursuant to Rule 17)

o (1) and (2) provide a basis for recognition and enforcement, (3) does not distinction bw assumed jurisdiction and forum non conveniens

o fnc: where there is more than one forum capable of assuming jurisdiction, court may decline jurisdiction on this basis that there is another forum more appropriate to entertain the action

o fnc is an application of the court’s residual discretion, NOT the real and substantial connection test

o real and substantial connection test is a fact-specific inquiry, but it rests on legal principles of general application

o in contrast, forum non conveniens focuses on the specific parties and the case whether the forum should assert jurisdiction

the real and substantial connections test must be flexible o has been suggested that the connection must be with the def, the subject matter of

the cause of action, or the damages suffered by the plf two approaches suggested by Blom: (1) personal subjection (2) administration of justice

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personal subjection: narrowero jurisdiction legit if the def lived or carried on business in the province, or

voluntarily did something that related to the province so as to make it reasonable to contemplate that he might be sued in the province

administration of justice: broadero forum need only meet min standard of suitability, under which it must be fair for

the case to be heard in the province bc the province is a reasonable place for the action to take place

relevant factors in considering the appropriate forum: connection bw the forum and the plf’s case, connection bw the forum and the def, unfairness to the def in assuming jurisdiction, unfairness to the plf in non assuming jurisdiction, involvement of other parties to the suit, the court’s willingness to recognize and enforce extraprovincial judgement rendered on the same jurisdictional basis, whether the case is interprovincial or international in nature, comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere

Oakley v. Barry

AG Armeno Mines v. PT Pukuafu Indah (2000) BC CA FACTS: agreement to acquire share in proposed mining development in Indonesia not

carried out, allegedly bc of pressure exerted by N, sough to add N as a def (Armeno submitted that BC court has jurisdiction under rule 13(1)(h) – tort committed within BC, includes breach of k). Chambers judge set aside the ex juris service bc no jurisdiction over the def.

pleadings stage reach the Moran v. Pyle test: plf alleged to be “substantially affected” within the jurisdiction, k was made in BC

where tenuous claim, can’t decide on pleadings alone, will have to look to evidence to make out a good arguable case

o tenuous = evidence introduced by the foreign def contradicts material facts pleaded by the plf, or otherwise proves fatal to the plf’s claim

o good arguable case = serious question to be tried, genuine issue, or with some chance of success not a high evidentiary threshold, plf does not have to tender evidence about issues that the def’s evidence has not put at issue

o here, N alleges that the k could not have been performed, even if there hadn’t been a tortious breach of k bc Indonesian government would have refused transfer to a non-Indonesian person and transfer would have required consent of the NTP partnership (of which N was a majority partner)

o def can establish that plf’s case likely to fail – doesn’t matter if on jurisdictional or other facts

Armeno failed to challenge N’s evidence – failed to prove that they had an arguable case HELD: although Armeno made a case for js on the pleadings alone, refused jurisdiction

on the grounds that they had failed to make a good arguable case on the evidence Rhodes

FACTS: BC makes k with California company to do work in Alberta, k concluded in BC, breach of k, plf wanted to sue in BC – service ex juris

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def argued that there was no breach in BCo a letter setting out a breach of k is held to occur where the letter originates

(affirmed in Strukoff) – applied this to phone call – originated in California, so didn’t fit within (g)

HELD: breach did not occur in BC (no js)

Strukoff v. Syncrude Canada (2000) BC CA FACTS: plf was employed by S, disabled bc of workplace exposure to chemicals,

wrongfully terminated (breach of employment k), company is in AB, but letter terminating employment was addressed and sent to the plf in BC

alleged breach occurs at the point of mailing (AB) NOT receipt use the “real and substantial connection” test only where situation does not fall into any

one of the rule 13(1) categories for service ex juris o plf was medically treated in BC, much of the evidence will involve BC doctors

(as S. contests the plf’s disability) – there is a real and substantial connection o further, there is a claim for deceit and fraudulent and negligent misrep against a S.

doctor in Kelowna – would be a tort committed in BC limitation period not relevant (but IS relevant to consideration of fnc) HELD: appeal dismissed (BC had js)

Craig Broadcasting v. Magid Association (1998) MAN CA note that there are different civ pro rules – allows js where k in whole or in part in Man,

damages occurring in Man (regardless of where the breach occurred) FACTS: k for marketing services bw Craig (Man) and Magid (Iowa), Craig established

AB company to advance license application, application did not succeed, subsequently discovered that Magid had helped two competitors (in violation of the k), launched action in Man. Magid applied for a stay of proceedings, was dismissed, appealed.

judge considered the residence of Craig and witnesses it would call, where loss was sustained, where terms of k were negotiated, on-site visits bw Magid and Craig in Man

any real and substantial connection will be adequate to establish js (deal with strength of the connection when considering fnc)

o looked at the connection with subject matter (rather than the def)o doesn’t have to be the most real and substantial connection (Tolofson)

HELD: there was a real and substantial connection, js established note: highly unlikely that BC would reach the same decision – breach occurred in Alberta

(so wouldn’t fall within (g) although could make a 13(3) argument

Spar Aerospace v. American Mobile Satellite (2002) SCC FACTS: plf commenced action in QUE alleging that signals from ground station to

satellite led to severe damages, holds the def responsible for improper calibration, inadequate surveillance, lack of communication bw companies in the US. Claim that the Que plant is going to suffer (distinct from ON headquarters)

fault occurring in, damages suffered in, k to be performed in, etc. gives the Quebec court jurisdiction

rejected def argument that you had to fit within the wording AND additional requirement of real and substantial connection

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o meeting the statute satisfied the real and substantial connection o this is NOT a two step test

relationship bw real and substantial connection test and principles of comity o def argument that there is a constitutional limitation – jurisdiction only where

there is a real and substantial connectiono pg. 233 LeBel: specific findings cannot easily be extended (ref to M.) but… goes

on to look at order and fairness, finds that there is a sufficient connection (damage suffered within)

o Ted says there is a limitation, which operates in inter-provincial cases o constitutional imperative that Canadian courts can only assert jurisdiction where

there is a real and substantial connection existing o previous cases decided as interprovincial disputes – difficult to extend them

beyond this (i.e. can’t use them to broaden principle of reciprocity or comity) QUE statute is to be “read as a coherent whole, in light of the principals of comity, order,

and fairness” wording captures the real and substantial connection criterion HELD: appeal dismissed (plfs can made pf case that QUE court able to assert

jurisdiction, so was correct to reject fnc plea by defs)

US Satellite Broadcasting v. WIC TV (2001) AB CA FACTS: action by AB satellite tv provider against US satellite companies that allegedly

also supply satellite tv to Canada (in breach of WPC’s exclusive right to do so, copyright infringement). Federal US district court essentially on a determination of fnc – court said they would not take jurisdiction – injury from alleged torts took place in Canada, so should be court in Canada. Also said that defs must attorn to the jurisdiction in Canada

ISSUE: application to the facts; no challenge to real and substantial connection test on the facts: this case is about the tentacles of business activity

o USSB – connected damages o Echostar – can’t connect damages, Ted says really about the court’s ability to

manage cases (rather than having WPT sue in BC and Alberta), conflicts reasoning suspect

o Warren – sold equipment to dealers and received orders for service and directed them (tied to USSB)

HELD: js established (ex juris service ok)

Strukoff (2000) BC CA see pg. 13 for facts

ISSUE: was there a real and substantial connection established? (court didn’t rest decision on (g) – went on to look at 13(3))

o essence of the issue was whether or not plf was disabled – would require BC medical info

why did they want to litigate in Alberta? o limitations of action – in AB Syncrude could have relied on a limitation defence o court noted that issue of limitations is major part of civil litigation procedure –

existence of limitation is NOT valid consideration in js (but… a big issue in fnc)

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Jordan v. Shets (2000) BC CA FACTS: car accident took place in AB, BC plf commenced action in BC – doesn’t follow

ex juris procedure by sends it off anyways and the lawyer for the Sask def accepts the doc. Writ expired and the plf applied for service ex juris on the second one – need leave bc falling under 13(3).

ISSUE: does the BC court have js? (limitation period expired in Sask and AB) Chambers judge issued the writ bc agreed that def had attorned to BC by accepting docs CA held that accepting service not amounting to attornment for extra-provincial

o practical argument: if showing up doesn’t amount to attornment, then neither should opening the mail

test: real and substantial connection o bare residency NOT enough (mere fact that the plf lived in BC) o issue of a limitation period not an issue for js

HELD: no real and substantial connection, no js

Harrington v. Dow Corning (2000) BC CA FACTS: rep plf in class action re: silicon breast implants, Dow seeks to have class

restricted to plfs with a real and substantial connection with BC. Counter: wants to have the test restated as a real and substantial connection with the litigation already before the court (to allow all potential plf’s to join the litigation as class members)

ISSUE: does the Class Proceedings Act permit the court to take wider jurisdiction than it otherwise would? If yes, it is unconstitutional?

o allows a non-resident to opt into a class action lawsuit – CA said could apply to people who were disconnected from BC in any real way

o says that Act is procedural, not seeking to expend limits o you have to have js first

anchored in fundamental values of fairness o orderly decision making o comity

might it have been different if dealing with an “opt-out” act at para 96 (pg.260): convenience of the plf is not sufficient, but the existence of a

certified class action may be enough to justify connection. Consider the interests of the def under fnc.

practical concern where allegedly defective product was marketed and available across Canada – must have anticipated being “hauled into” any provincial court

o focussed on case management on an international case (convenience for the courts and litigants)

HELD: appeal dismissed, existence of a common issue is enough to found the jurisdiction

CONCLUDE: threshold for js is low in BC, lax in Alberta. in BC, you have to try to get into 13(1) first – which is trickier than in other jurisdictions in international, also consider fairness, order, comity focus is not on the connection bw the court and the def, as it is about the subject matter of

the cause of action, and the connection with the plf.

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Discretion to Decline Jurisdiction (FNC)

BC Rule 14(6)(1): party may apply for a stay of proceedings where there is another forum that would be more appropriate

note: this is AFTER js established they are separate determinations, although might consider some of the same factors not about the “convenient” forum, is about the “appropriate” forum

Anti-suit injunction is NOT telling a foreign court to stop doing something rather, directed to litigants – cannot “hop” to another court (if you do.. contempt of court)

Historical Approach was rare to stay English proceedings (would have to show that that oppressive, vexatious)

o as in St. Pierre o consistent with view that the English court system was inherently superior

1974: The Atlantic Star landmark decision that non-English legal systems worthy of greater respect and deference than courts had been showing, discretion to stay English proceedings in favour of foreign proceedings should be exercised more frequently

Characteristics of the Test TEST: what is clearly the more appropriate forum? historically: (1) more convenient forum (2) deprived of juridical advantage (McShannon)

o now, juridical advantage is just another factor (NOT a separate consideration that has to be met) – Spilidia approach adopted in Amchem

burden of proof: o services in juris def must clearly establish that a more appropriate forum exists

somewhere else. If able to establish that there is another court that is pf the appropriate forum then burden shifts to plf to show justice requires that the trial should take place in the original country. Deference to the plf knocked out where there is forum shopping or fleeting presence (can be def fleeting presence)

o service ex juris plf has some burden to show that forum chosen is appropriate. Same burden on def, but will be easier to show. Comity will be a bigger factor.

Factors to Consider – compiled by Justice Low (BC SC)o where each party resideso where each party carries on businesso where the cause of action aroseo where the loss or damage occurredo any juridical advantage to the plf in this particular jurisdiction, to the defo potential witnesses – convenience or inconvenienceo costs of conducting the litigation, cost to the litigants, perhaps court costs as well o whose law is going to be applied – applicable substantive law o difficulty/cost of proving foreign law o parallel proceedings o forum shopping

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o service ex juris or in jurisAirbus v. Patel (1999) HoL Lord Geoff (pg 270-72) explains why discretion (fnc) is so important for CL countries

there is a jungle of separate, broadly based jurisdictions all over the world comparison to European decision to allocate Brussels Statute use device of fnc to curtail the “potential excesses of the system”

o tends to ensure that as bw CL jurisdictions, cases will only be brought in a jurisdiction where is appropriate for their resolution

does NOT aim to prevent all clashed bw jurisdictions o imperfect weapon o dependent on the voluntary adoption of the principle by the state

jurisdiction to grant an anti-suit injunction o origin: English Court of Chancery used common injunctions to prevent

proceedings in the English Courts of CL o underlying principle: jurisdiction is to be exercised when the ends of justice

require it (may occur where foreign proceedings are vexatious or oppressive) but… with regard to comity

each jurisdiction is independent, can use the tools of (1) stay (2) anti-suit injunction but cannot force another court to do or not do anything!

Spiliada Maritime v. Cansulex (1987) HoL Leading Case

FACTS: ship owners and ship are Liberian, managers are in Greece, some part of the management takes place in England, carry on business in BC. Chartered vessel to an Indian company (MMTC), k had a London arbitration clause. C loaded sulphur and damaged ship. Owners brought an action against MMTC in English courts, sought to include C (but… there is no k bw them specifying law). Leave to serve ex juris granted under terms of the k (bills of lading)

note: reason for wanting UK court is that arguably time barred in BC fnc: NOT a question of practical convenience, but of appropriateness of choice of forum how the principle is applied in a stay of proceedings

o GR: stay will only be granted on the ground of fnc where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial action

o preference for the plf’s choice of forum (more important in a federal state like Canada than a unitary state like England) – places a significant burden on the def

o court will look to where the most real and substantial connection is distinction bw service ex juris and in the jurisdiction – goes to the burden (?) juridical advantage takes a much lesser role than in earlier cases; court should not be

deterred from granting a stay where the plf might be deprived of an advantage o time bars as a juridical advantage consistent with the idea that they are

procedural rather than substantial law (but… Ted thinks this is a question mark, as also says sometimes won’t apply – i.e. when forum shopping)

o consider practical justice, reasonableness of plf not acting to commence case pg. 283: underlying principle of fnc requires that regard must be had to all of the parties

and the ends of justice, and may lead to a different conclusion in other cases

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o courts don’t want to be used for abuse of process (forum shopping) in this case, the location of certain experts was in England, there was a related action bw

the ship owner and charter party proceeding in England, there was a previous case on the same matter (Cambridgeshire factor – all the work and learning on the topic), common insurers all located in England, k choice of law was England

HELD: declined to stay proceedings (also said that if stay was granted, would be on the condition that the def waived the BC limitation – is this justifiable?)

Amchem v. BC Workers Comp (1993) SCC fnc remarks obiter; really dealing with anti-suit

forum shopping is not to be encouraged fnc to be used taking into consideration comity – comity definition adopted from

Morguard (at pg 306) – in bw being an obligation, and mere courtesy remarks on the confused state of the Canadian law on fnc

o suggested GR: def will have to clearly establish the existence of a more appropriate forum to displace that selected by the plf (deference to plf choice)

o there is no general distinction bw service in/out of jurisdiction but… may matter for the burden of proof for fnc depending on the rules of court (where plf has burden for js)

o wrt juridical advantage – not considered as a distinct issue, but are another factor in determining the appropriate forum (adopts Spilida approach)

o weight given to juridical advantage depends on the plf’s connection to the jurisdiction – trying to deal with forum shopping

provides general approach, but not particularly helpful bc not attached to any facts! note: “just outcome” always a factor in the British cases, but is not specifically noted here

Bushnell (1992) BC CA decided before Anchem was handed down but still survives

FACTS: asbestos case involving a QUE company, asked the court to decline discretion, plfs would have been statute-barred if forced to take action in QUE,

court purports to follow Spilidea, but… says different test where service ex juris!o service in juris – def has full burden of proving another, more appropriate forum;

plfs choice not easily disturbedo service ex juris – plf has to show that BC has some degree of being the

appropriate forum HELD: BC had jurisdiction, no stay granted note that the ON CA held the same in Frymer

472900 BC Ltd. v. Thrifty Canada (1998) BC CA leading BC case

FACTS: dispute bw Thrify car rental (ON) and 472 (a BC Company with franchise at the Van International Airport). Thrifty commenced an action in ON for money owed, 472 commenced an action in BC claiming false reps had induced entry in to the k – parallel proceedings. K had a clause saying that the parties agree to attorn to the jurisdiction of ON (so no dispute that has js). Thrifty won in ON, wanted BC to stop proceedings.

Esson reviewed cases –comity, esp important where possibility of parallel proceedings

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o as bw the provinces, there is a higher level of comity to be expected than with foreign jurisdictions (lesser burden on the def to knock it out)

application to stay should be granted unless the opposing party presents cogent evidence (more than just apprehension) that there will be a loss of juridical advantage if another forum takes on the case

o right of the plf to sue in his forum of choice no longer significant factoro purpose of fnc is to avoid two actions (bc risk of conflicting decisions) – applied

even where the other proceeding hasn’t been launched yet. o is this consideration resticted to cases of parallel proceedings? maybe…o really comes down to case management – want one judge to hear the case

HELD: stay allowed (ON had denied a stay of proceedings. In this case, proceeding in ON and BC arose from the same subject matter and raise the same issues. But… could have argued different issues – threshold argument).

Westec Aerospace v. Raytheon (1999) BC CA FACTS: BC Company (Westec) and Kansas company (Raytheon) – k ends, Westec

alleges that R has not returned source codes, which amounts to a breach of k in BC. During settlement discussions, R sought declaration in Kansas court to say hadn’t broken the k. No settlement, Westec commences suit in BC – R seeks a stay on the basis that Kansas was the appropriate grounds.

big issue is race to the courthouse o comity would result in the second court always deferring to the first court

(wherever js effectively established) o inherent and unavoidable policy decisions o rule which permitted parallel proceedings would avoid a race to file, but only to

substitute a race to judgement (so long as the forum where won was an appropriate forum)

both Kansas and BC are appropriate forums loss of juridical advantage not significant, unless would cause injustice

o stringent approach consistent with comity (not dislodged merely by a difference in court rules)

o quick trials are a juridical advantage, but not having it does not create an injustice (just a difference in civ pro)

HELD: stay granted

Sydney Steel v. CNR (1998) parallel proceedings might not be enough!

FACTS: plf SS sold steel rails to CNR, k was governed by the law of QUE, plf brought action in NS and def was served there. CNR started a second case in QUE for breach of k. SS goes to QUE to have the court decline jurisdiction. QUE holds that it is not an inappropriate forum, as QUE law was to be applied. CNR then wanted to knock out the NS action. Chambers and NC CA said action should not be stayed.

def had not shown that Que was a more appropriate forum than NSo action was started in NS firsto plf might lose discovery rules – juridical advantage

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noted that QUE court’s decision not to decline jurisdiction is NOT binding on the NS – was not a final decision on the merits

o all it did was hold that on the balance of convenience, there was equality decided they were differently framed actions HELD: stay denied (NS action to proceed)

Jurisdiction Selecting and Arbitration Clauses

contracting parties may agree to the applicable law and forum for dispute resolutiono choice of forum clause – BC Rule 13(8) provides that parties to a k can agree that

a BC court is to hear a case (provides js) without real and substantial connectiono choice of law clause – does not preclude domestic law from finding js (will just

apply the agreed upon law) poorly drafted choice of form clauses problems!

o clause doesn’t deal with the subject matter in dispute (i.e. where you have a tort before the court, and the clause only deals with contractual disputes – what was intended to be covered?)

o clause may not be exclusive (as in Thrifty) – ambiguous bc doesn’t say that other courts might have jurisdiction as well

court may stay local proceedings in deference to an agreement to arbitrateo authority rests on (1) inherent discretion of the court to control its own process (2)

fed and prov legislation that bestows jurisdiction to stay public policy favours such clauses bc courts like enforcing ks!

o domestic courts in Canada showing increasing deference to such clauses o but not absolute retain discretion as to whether or not to accept the clauses

Oulton Agencies (1988) PEI AC FACTS: k said QUE law would apply and any legal action regarding the agreement

would be in QUE. Party commenced an action in PEI, other side applied for dismissal but was denied on the grounds that PEI was the most appropriate forum.

ISSUES: (1) contracts (what happens to the written k where the time has expired? court held that k terms continued to govern the relationship bw the parties) (2) choice of forum clause – should it govern?

courts will uphold a properly framed contractual choice unless the balance of convenience massively favours the opposite conclusion will be an even heavier burden, higher threshold than fnc!

cites earlier case: o court is not bound to grant that stay; no obligation on the court to recognize the

choice of forum clause – there is a discretion, inherent jurisdiction of the court o deference to the contractual clause – will need a strong case o burden is on the party that is trying to overturn the ko court should take into account all the relevant circs of the case, most importantly

the expectations of the parties (only thing that really differs from fnc. Would appear that should expect k to apply, otherwise why put it into the k!)

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o lays out a series of things to look at: where is the evidence, expense, whether the law of the forum court applies, forum shopping, prejudice of having to sue in the foreign court

effect: although courts able to ignore the contractual terms, are unlikely to do so HELD: parties should honour the k (QUE is most appropriate forum)

International Commercial Arbitration Act adopts the UNSAL (?) agreement applies to international disputes only – for interprovincial see BC Commercial

Arbitration Act (basically the same) court MUST order a stay unless it finds that the arbitration agreement is null and void,

inoperative, or incapable of being performed; arbitration may be commenced or continued even where the issue is before the court

as a statutory provision, it overrides or at least restricts the courts ability to deal with its own processes

o changes the testo maybe changes the burden a little bit

you are not knocking the clause out – what you would have to do is knock out the agreement in its entirety

Foreign Arbitral Awards Act only applies to international disputes article 2 directs a stay where an agreement provides for arbitration (same as s.8 ICA) why have two pieces of legislation that deal with the same thing – developed at different

time periods (are only the same on this point, say other stuff too) burden appears to be even higher than where you have a choice of law clause but.. the clause itself has to be iron-tight (otherwise can try and knock out the clause)

BVW Investments v. Saskferco Products (1994) Sask CA FACTS: German project contractor U had a sub k with B (Toronto) to construct a

nitrogen fertilizer plant in Sask for S. Contained an arbitration and choice of law clause. Term in k that Swiss law to be applied, arbitration to be in Zurich. B claims owed money, also claim under the Builders Lien Act. U argues that action should be stayed, and the matter should be arbitrated in Switzerland (based on the Sask. ICA).

ISSUE: how does the arbitration legislation interact with the Builders Lien legislation? court looks at practice in other jurisdictions (England, France, US) and finds increasing

deference to commercial arbitration agreements starting point: respect freedom of k (bc public policy)

o give effect to the intentions of the parties o facilitate predictability in dispute resolution, commercial activity internationality o consistency bw jurisdictions in dispute resolution o encourage international commercial activity

found that they were bound to defer to the k, unless agreement was void or inoperative purpose of the BLA (to make sure owner doesn’t receive the benefit without paying) does

NOT suggest that this is the only way of determining the quantum in ks where disputes have arisen – nothing to stop parties from “opting-out” of the BLA

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note: court showing tremendous deference, interpreting domestic legislation even in the face of contrary evidence – going to be a really high burden to go after an arbitration clause, even where looks that you have conflicting legislation

HELD: proceedings stayed, pending the decision of arbitration

Anti-Suit Injunctions

definition: injunction granted in one jurisdiction to prevent party from proceeding with an action in a second jurisdiction (restraint exercised over the litigants, NOT over the foreign court!)

o if they proceed in B, will be in contempt of a court order in A o see defn at pg. 254o within the equitable jurisdiction of the court o operates in personam o rarely granted

likely only allowed where there is a real and substantial connection to the forum o otherwise – problems of enforcement outside of your jurisdiction (want to make

sure that you have some leverage) o need party to be in the jurisdiction, subject to the contempt order

principles: o granted where the ends of justice require it o injunction is directed at the individuals, not the foreign courto will only be granted where the party seeking it is amenable to the jurisdiction of

the court granting it (i.e. only going to issue where it can be effective)

Aerospatiale (1987) PC leading UK case

FACTS: helicopter manufactured by A (in France) crashed in Brunei, killing Yong Joon San. Helicopter company was English, but the helicopter was operated by Bristow Malaysia (accused of negligence in maintaining). Proceedings started in Brunei, France, and Texas. French proceedings discontinued. US proceedings advanced under wrongful death act, even though the deceased had no connection with Texas. Only connection was that sold to one of its subsidiaries there. Settled with other defs. Texas refused to dismiss on fnc, so S seeks an anti-suit injunction from the Brunei court.

Texas wrongful death act – able to bring an action where party carries on business in Texas. Plfs like bc: favourable products liability laws, potential for higher damages.

categories: o to be to protect your own jurisdiction o where you have parallel proceedings – really using injunction to “quiet”

proceedings – will only issue if vexatious or oppressive injunction may be granted on the grounds of vexation or oppression

o utterly absurd, seeking some sort of fanciful advantage (Peruvian Guano Case)o no presumption that a multiplicity of proceedings is vexatious (might be good

reasons… i.e. where assets in another jurisdiction)

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o might be oppressive to try and proceed in another country where concerned only with increasing punitive damages

o if foreign court takes jurisdiction where it shouldn’t, this may be oppressive o not vexatious just bc they are brought in an inconvenient place

to justify the grant of an injunction, the def must show (1) that the English court is the natural forum and (2) allowing proceedings in a foreign court would be unjust – must be shown to be vexatious or oppressive

o look at injustice to the plf (if inj granted) and to def (if inj not granted) o special comity (see pg. 298) beyond fnc comity injunction granted only if there

is an injustice HELD: injunction granted

Airbus v. Patel (1999) HoL FACTS: English residents were plfs in an Indian action commenced as a result of a plane

crash in India. Indian court had granted an anti-suit injunction prohibiting them from proceeding in Texas – they ignored it. English action seeking enforcement of the Indian injunction (refused at trial) or an English anti-suit injunction. No relevant connection bw jurisdiction and proceedings other than that the appellants were English residents (so could be restrained by an injunction)

before granting injunction, court has to be satisfied that it has sufficient connection o limits imposed by comity o would be inconsistent to grant injunction where they have no interest

interference is NOT justified solely on the grounds that a third foreign country cannot enforce (in this case, India) – really suspicious about using the UK courts to accomplish what the foreign courts cannot accomplish

note that this case doesn’t really give any principles, just based on the facts (essentially forum-shopping for an anti-suit injunction)

HELD: no anti-suit injunction Amchem v. BC Workers Comp SCC

FACTS: plfs injured by exposure to asbestos commenced action in Texas, in all but 40 cases BC Workers Comp has subrogated interest. Most claimants were residents of BC when injured. None of the asbestos companies carried on business in BC, most carry on business in Texas (although not incorporated there).

o Texas court found jurisdiction on the basis that the companies had failed to discharge the onus of showing that they did not carry on business in Texas. Action commenced and motion to dismiss on fnc was denied.

o asbestos companies brought an application to the BC court seeking an anti-suit injunction to prevent continuance of the Texas action. Ex parte injunction was granted and the non-BC residents filed an anti-anti-suit injunction in Texas to prevent the companies getting an injunction against them from BC too

principles applicable to an anti-suit injunction are NOT the same as those applicable to a stay of domestic proceedings

SCC said there is no consistent approach – should be granted with caution o says Aerospatiale should be followed, but we need a workable test

four principles are set out, but not really followed in subsequent cases (pg. 311)

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o procedural: domestic court should not entertain the application unless (a) foreign process pending and (b) party seeking injunction sought a stay in the foreign court. Effect: avoid pre-emptive attacks.

o effectivity: domestic court must have js and argument that it is an appropriate forum (this is where Airbus failed)

o comity: consider whether foreign court assumed jurisdiction on a basis that is inconsistent with principles relating to fnc (as understood by the domestic court). Foreign court doesn’t have to use the specific doctrine, as long as they consider the principles.

o juridical disadvantage tied with unjust result: consider loss of juridical advantage, extent of connection to the forum, loss of personal advantage (see quote on pg. 312)

when foreign court assumes jurisdiction on a basis that generally conforms to our rule of law on fnc, that decision will be respected. Corollary: court which hasn’t observed comity cannot expect to have its decision respected bc of comity.

in this case, BC SC erred in 3 ways in awarding the anti suit injunctiono Texas was an appropriate forum o def failed to show that would be deprived of a legit juridical advantage if the

matter proceeded in Texas o trial judge didn’t consider Constitutional 14th amendment – due process

requirements satisfies sufficient connection for fnc HELD: appeal allowed (anti-suit injunction in BC overturned)

Hudon v. Geos Langauge (1997) ON Div CT FACTS: H employed by Geos in Japan. Injured on a vacation in China, brought an action

in ON (claimed that they had promised/represented that they would provide medical coverage for this type of accident), Geos sought declaration in Japanese court, was denied a stay in ON. K says Japanese law applies. Plf was treated in ON, was not physically well enough to travel to Japan to defend herself there.

can seek anti-suit even though Japanese action was only declaratory (so not relevant to damages) – would have prevented her from maintaining an action.

procedural issue – when the plf moved to restrain the Japanese action she didn’t amend the statement of claim

o GR: interlocutory injunction available only where permanent injunction claimedo but… from Amchem, this rule does not apply to anti-suit injunctions (even if it

did, remains open to amend statement of claim, which would remove problem) although it is preferable for an applicant to first bring proceedings to try and stay the

foreign proceedings, it is NOT necessary and will not be sufficient grounds for setting aside an application for an anti-suit injunction

applying the test:o ON is an appropriate forum – evidence relating to the assessment of damages can

only be given by ON witnesses, Japanese witnesses can come if required, but their evidence will not be as essential or controversial as that of the ON witnesses. Important, but not conclusive that the ON court had already said this is an appropriate forum

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o weighing injustice – Geos will be able to prove the relevant law of Japan if the case is tried in ON, has failed to show that it will suffer any legitimate advantage v. plf’s physical disabilities mean she would suffer large personal disadvantage by having to travel to Japan for trial.

HELD: appeal dismissed (ON to hear the case) indicates that the Amchem principles, although carefully laid out by Sop, are actually

fluid. Ted says this is not an abuse; just not strict application. Result is not unfair.

Gentra Canada v. Lehndorff (1995) AB CA FACTS: action brought by G in AB for enforcement of security on mall owned by plfs in

AB – L attorns to AB by filing a defence. Def brought an action for specific performance of the k in ON, plf’s claim to stay the ON proceedings was dismissed bc couldn’t prove that AB was a more appropriate forum. Parties were in ON, k concluded in ON, etc. Only thing in AB was the asset.. AB chambers judge granted anti-suit injunction

ISSUE: did the ON court use an inappropriate fnc test? failed to consider crucial aspect: Appellants incorporated the Ontario lawsuit into the

Alberta foreclosure action by pleading it in its Defence and Counterclaim filed in the Alberta action AB is the most and the ONLY appropriate forum

said ON court decision was “unreasonable”o there is no injustice to the defs in proceeding thereo there is injustice to the Respondent in forcing it to proceed with the same action in

two jurisdictions or, at least, in forcing it, in effect, to stay its foreclosure action while the Ontario action proceeds

o dissent would have allowed the appeal – give greater importance to judicial comity (doesn’t think that the ON decision is so inadequate as to be unreasonable)

HELD: AB CA upholds the injunction note: this is illustrative of how difficult it is to resolve problems of concurrent jurisdiction

with the current tools of broad discretion. Left with two actions proceeding seems to promote defensive use of anti-suit injunction (race to the finish), incompatible with comity

CHOICE OF LAWwhich law applies?

not necessarily the law of the forum (i.e. not determined by js or fnc) despite territorialityo provides to the domestic court legal rules as to when foreign law is appropriately

applied to a case before the court choice of law serves a necessary practical purpose (without it, rights and obligations

obtained under foreign law would be erased by entering into the forum jurisdiction) basis: territoriality v. independent sovereignty why apply foreign law at all?

o may be in a ko may be more consonant with justice (pg. 475) o comity – it’s expected, courteous, etc.

Questions that arise: 1. when is foreign law to be applied?

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2. which foreign law is to apply? 3. what is the foreign law?

When is Foreign Law Applied? only becomes an issue in a BC Court if a party pleads it before the court!

o court itself is not going to seek out foreign law only makes sense to seek to apply foreign law if it differs from the domestic law (will

make a difference to the case as a matter of substance) some areas of private law do not need choice of law rules – e.g. bc court’s jurisdiction is

such to exclude certain matters that are closely linked to another country’s law. This is the case for divorce (if you meet the ordinarily resident requirement, then divorce proceedings subject to Canadian law, will not apply foreign law)

choice of law may also be excluded where the law is fairly uniform multilateral treaty o usually the case in commercial law

sometimes lawyers don’t want to deal with foreign law bc either they don’t recognize that it is an issue, of bc it is too complicated

Which Foreign Law Is Applied? classic rules: particular type of legal issue is to be determined according to the internal

law of a country (e.g. the formal validity of a marriage is governed by the law of the country in which the marriage is celebrated).

rule of alternative reference: party able to invoke any one of several systems of law in order to resolve the issue in a particular way (e.g. disposition of a will)

cumulative reference: claim must satisfy the rules of both systems – e.g. old rule that could only claim for a tort committed outside the forum country where (a) actionable as a tort under forum law and (b) actionable under the law of the foreign jurisdiction where committed

categorical approach – connecting factor determines choice of law

supposed to direct you to the choice of law, without evaluating the substance of the law

o but… forum court is still keeping evaluation in the back of their minds, bc not going to apply law that is contrary to public policy

provides a degree of predictability (but note: may be changed by statute e.g. divorce)o choice of law rules may be trumped by: (1) legislation (2) choice of law clauses in

a K (3) public policy considerations – won’t apply foreign tax or penal laws Categorization is determined by the lex fori court!

o arbitrarily created categories may interpret same facts to fit into different categories

o there is no such thing as an international accepted system of choice of law – may be decided differently if arising in a CL or civil law court; each country has its own regime as to classification and connecting factors

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Step 1: Characterizationdecided by the forum court

Step 2: Connecting Factor Contract: proper law of the k Tort: lex loci delecti

choice of law only applies to matter of substance, and not procedure renvoi: court follows its own choice of law rules to X and then follows X’s choice of law

rules back to the forum or to a third jurisdiction

Problems With the Connecting factor approach arbitrariness – use of artificial constructs (such as the locus of a tort), ability to

recharacterize an issue to reach a desired result no account taken o f real conflict of interests bw states (not true to assume that the state

where the tort takes place necessarily has the greater interest) no systematic account taken of international policies (want efficient ordering of

multinational interactions) alternatives:

o issue particularized rather than categorized breaking down to single choice of law issues (e.g. instead of “tort,” look at standard of care, duty owed, etc.)

o proper law (k) approach – look to the real and substantial connection o government interests – look to the conflict of state interests, if a true conflict then

chose to apply the forum law o the better law – consider what will lead to a substantively just result, looking at

the parties expectations, the basic policies underlying the area of law, and the certainty and predictability impact of the result.

o substantive rules for multi-state cases

US Process rejected in Tolofson US approach: evaluate substantive law – choice based on social policy, justice to litigants

o trade-off bw predictability and common-sense o trend that judges will want to apply own law o criticized for being too fluid and flexible

Tolofson – LaForest decisive and unanimous rejection of the newer tendencies of the American courts, in favour of classical application

o favours predictability of result (certainty)o also claims easier to apply (Ted says this is nonsense though) o in the areas of torts, also meets the expectations of the parties – ordinarily, people

expect activities to be governed by the place where they happen to be o government of that place is the only one able to deal with regulating activitieso may also prevent forum shopping

What is the Foreign Law?

foreign law is an issue of fact o burden of pleading and proving the law falls on party wishing to have it applied o neither party is under an obligation to plead foreign law (may chose not to for a

variety of reasons) statement of claim – have to indicate what you are going to do (plead foreign law) but

don’t have to give the evidence you are using

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o Nova Scotia: only have to give notice in pleadings or otherwise in writing at least ten days before the trial or hearing (more liberal – other jurisdictions require that be included in formal pleadings)

CL: foreign law must be proved as a matter of fact by the evidence of persons who are experts in that law

o written sources are only support for experts o experts = those who have practised or applied the relevant foreign law as lawyers

or judges, law teachers and others whose office required them to have a working knowledge of the relevant foreign law (e.g. police officers, government officials)

o court may submit a question for an opinion from the foreign court (rarely done)o expert simply provides evidence on which the court will make the findings – they

do NOT make the decision (the court retains discretion to make the final call) note: bc a question of fact, may be difficult to appeal

o may avoid calling expert testimony by agreeing to submit written materials on the foreign law for interpretation and application by the court but.. the court may refuse this task is the issues are too complicated for the materials do not clearly evidence the relevant foreign law

some statutes provide for the entering into the court records the statutes of other provinces, without the need of an expert

o s.25 BC EA – authorize the production of provincial statutes of other provinces without expert intervention

o judicial notice of statutes of foreign states – but… this provision is under-utilized bc don’t know what “judicial notice” means – does the court carry the burden of determining foreign law, how is the law determined in lieu of formal proof?

o effect of judicial notice is that you don’t have to plead or prove it foreign law does NOT need to be proved if the parties agree on its legal affect – done by

an agreed statement of facts submitted prior to trial full faith and credit doctrine: constitutional requirement that the courts recognize and

give effect to the statutes and law of their sister jurisdictions o full faith and credit (article 4 US, article 118 Australia) o Canada does not have such a clause but… La Forest tried to create a in a series of

cases (ted says not clear to what extent this was successful) o significant resonance in the enforcement of judgements (i.e. from other provinces) o don’t have to prove in the Federal or SCC – presumed to know the law of Canada

procedural v. substantive: o CL jurisdictions: will always apply own procedural laws, irrespective of the law

to which the court is directed (i.e. the substantive law)o test (be careful!): procedure relates to remedies, substance relates to rightso determination is made by the forum court (although may be influenced by the

foreign court characterization)o list of procedural on pg. 535 (basically civ pro rules)o substantive: secured creditor’s remedies, claims by unlicensed real estate agents,

no-fault auto insurance legislation, vicarious liability rules

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Mercury Bell (1986) Fed CA FACTS: sailors hired in Manila to work on Liberian vessel, there was collective

agreement that provided higher wages. Sued for the difference in a Canadian court. statutory law directed that any matter not explicitly covered under the shipping act was to

be covered by the flag state law didn’t have to plead the foreign law being applicable (bc legislation already directs the court to look at Liberian law)

o but… absent proof of the law, apply the forum law ISSUE: does the law of Canada include statutory and CL? distinction bw CL and statute artificial, better to differentiate bw the general law of the

forum and those aspects that were intended to have only local application HELD: Canadian Labour Code should apply to the extent that the collective agreement

took precedence over the individual context. o common practice – similar provisions found in other countrieso but… provisions dealing with the procedures under the Canadian labour relations

board not applicable – too local note: professional responsibility may choose not to invoke the foreign law where (1) it

would be pointless to do so (2) where the time and expense required to prove the foreign law would outweigh any advantage to be obtained by its application (3) application of the foreign law would have an unpredictable outcome

Hunt (1993) SCC FACTS: QUE blocking legislation prevented business docs from leaving province

(prevented discovery). BC Court applied the QUE law, but found that the statute was unconstitutional and so not applicable

HELD: constitutionality of the law that was to be applied was a question of fact o may plead the QUE law, and then argue that it was not valid, on the basis of

unconstitutionality follows that the validity of the statute is material o unconstitutional bc does not comply with requirement to give full faith and credit

to judgements rendered by a court in a sister province inapplicable to proceedings in another province (ultra vires)

jurisdiction of superior court of a province includes decision as to constitutionalityo but… power limited, must be real and substantial connection to the forum

note argument: claimed that Quebec blocking statute was a lawful excuse for non-compliance with a BC order

Limitation Periods – Tolofson v. Jensen (1994) SCC Substantive v. Procedural distinction

FACTS: plf injured in mva, father driving. Accident occurred in Sask, T and father were BC residents, car registered there. On reaching majority T brought and action in BC against father and Jensen (resident in Sask). Sask limitation period had expired.

CL test respecting limitation periods turned on the phraseology of the statute o if the statute only barred the remedy – procedural o if the substantive right was extinguished – substantiveo problems: artificial distinction, turning on bizarre words trying to determine what

was meant, if limitations are procedural will lead to forum shopping

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La Forest: continental opinion that all limitation periods are substantive bc they extinguish substantive rights – finds this more persuasive than the CL approach

o notes BC CA case (Mallard) that did away with the rights/remedy distinction o purpose of the classification is determine which rules will make the machinery of

the forum court run smoothly as opposed to those that relate to substantive rightso if there is doubt as to whether substantive or procedural, then you should err on

the side of proceduralo when dealing with internal Canadian issues – limitations periods are substantive

BC Limitation Act s.9: limitation periods considered to be substantive (effect of a limitation period is to extinguish the cause of action, not the remedy) but.. doesn’t say how BC court is to interpret foreign limitations

o s.13: where the foreign law is the lex causi (supposed to apply), and the foreign law is procedural (such that it won’t apply) BC Courts have a choice: can apply the BC limitation OR the foreign limitation, depending on which achieves the most just result – Tolofson nullifies this almost entirely

Clark (NB Case): medical treatment was given in NS, there was a one year limitation period, plf sued in NB. Court says that the one year period applies regardless of whether it is procedural or not. State interest argument (but… doesn’t really apply in Tolofson bc BC resident suing another BC resident – what is the state interest of Sask?)

HELD: law of the place of the tort governs the choice of law and that the Sask limitation period was substantive plf’s claim barred.

Note: CL distinction (remedy v. rights) although somewhat discredited by Tolofson, is still applicable and being used in several areas e.g. seizure and sue legislation (debtor-creditor) are substantive even though go to dealing with rights rather than remedies; no fault insurance (considered substantive in BC and when drawing it in from another jurisdiction); maritime liens

Legal Status – International Assn. of Science and Technology (1995) AB CA Substantive v. Procedural distinction

FACTS: matrimonial property action, def moved to strike out on the basis that the plfs lacked the legal status to sue in AB. Although the plfs were registered in Switzerland, were recognized entities under Swiss law, were not under Canadian law.

conflicts rules: foreign individuals can sue, provided they are not enemy aliens Corporations Act – unregistered foreign corps cannot sue regarding ks carried out in AB law tends to support granting status where the entity in question is recognized as a legal

or judicial person by the laws of its home jurisdiction o looked back to status within Switzerland o supported by comity

GR: lex fori determines the status but… status in the foreign jurisdiction is relevant, may determine whether you can sue

Damages and Awards early rule: measure of damages in an action for reparation in respect of a tort in a foreign

country is not a matter or procedure, but of substance or liability today: often distinguish bw substantive rules relating to which heads of loss are

recoverable and procedural rules relating to the assessment or quantification of damages

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rules that limit the max amount recoverable or restrict the claimant’s remedies in principle are substantive

issues relating to costs are procedural but… pre-judgement interest is substantive (policy: prevent forum-shopping, use of pre-judgement interest to compel settlement)

creditor’s priorities: both the creation and ranking of claims are determined by the forum (PC overruling SCC decision that would have required that the creation determined by the foreign court be respected by the forum court and ranked accordingly – as if created by the forum court)

Somers v. Fournier (2002) ON CA costs are a procedural matter governed by the lex fori

o deter abuse of egal system, ensure smooth functioning of machinery of the court pre-judgement interest is a substantive matter governed by the choice of law

o statute confers a substantive right, as shown by the limited discretion the courts have in deciding to reduce or withhold interest

cap on non-pecuniary damages is procedural o functions to retrain quantity of damages, not to determine entitlement to damages

Evidence in CL Canada rules governing the admissibly of evidence and the competence and

compellability of witnesses are proceduralo GR: means of proving of a fact are procedural, what facts have to be proven

is part of substantive lawo oddity: standard of proof (e.g. as in Tolofson, where used the Sask standard)

re: Cohen: mother and daughter killed in air raid in England, but were German nationals. Difference in English and German law as to presumptions of who died first (important for disposition of will).

o statutes that established presumptions went to what facts must be proven substantive

cannot compel attendance of witness or docs where outside of the court’s jurisdiction o legislation fairly universal across the CL to overcome this – reciprocating

provinces will accept certificate compelling witness or production of docs outside of Canada

o need help from judiciary in the foreign jurisdiction, or the other state o Letters Rogatory – asks the other court to be of assistance (see rule 38) cannot be

a “fishing expedition”o conventions wrt taking of evidence abroad, etc. but Canada is not a partyo Ed Millar (1988) AB CA: although in Canada, says that it will be in breach of

Bahamian law if compelled to testify – SCC held that although comity of nations important, and shouldn’t lightly disrespect foreign law, the court retains ability to compel testimony

Canadian courts are very reluctant to allow foreign rules to dictate production of docs – not likely to let foreign laws prevent them from ordering disclosure (see Hunt)

o possible argument: ok not to comply with the foreigners, bc yielding the evidence would be inconsistent with Canada’s public policy (opposed to the extraterritorial enforcement of US anti-trust laws – Gulf Canada)

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Public Policy and Public Law Claims

forum court will not apply foreign law that is (1) inconsistent with the public policy of the forum (2) penal, or tax law

public policy does not create the choice of law rules (has NO impact on it), is not about subverting the choice of law, is a corrective that where the choice of law leads you may result in the application of foreign law that is inconsistent with the public policy of the from (so, it’s a defence)

in light of the relative universality of taxation laws and their economic significance in the modern state, the revenue exclusion has been criticized

o just a way of letting people escape their obligations rationales for the exemption (and reasons why it will be difficult to change judicially –

likely need legislative intervention) o revenue laws have historically been used to perpetuate discrimination, social

policies which may be abhorrent to the domestic government or dangerous to their security

impossible for courts to bargain the reciprocal enforcement of forum tax claims in the requesting country

Ivey (1995) ON CA FACTS: civil action case coming out of Michigan; federal US statute allowed authorities

to recover expenses for environmental clean-up. there is almost no Canadian law on what is “other public law” for the purposes of non-

enforcement of a judgement. Possible common thread: will not allow enforcement where involving government exercises of authority over property beyond its territory

comity US enforces similar judgements (reciprocity) other grounds raised: natural justice court held that rules of liability and burden of

proof are matters for the foreign jurisdiction, there is no authority for non-enforcement of a judgement merely bc it is rendered on the basis of strict statutory liability.

o requires a fundamental deviation from forum natural justice values it is insufficient to show simply that the forum and foreign procedures diverge

public policy argument: the US legislation is more strict than the ON EPA o but, in fact, comparison with the EPA strengthens the case for enforcement bc

draws attention to similar policy goals of the Acts o it is not enough that the local law on the same point differs from the foreign law,

fundamental values must be at stake (more than just a mere difference in policy) court said this wasn’t a penalty, just a reimbursement for clean-up costs HELD: enforcement allowed

Kuwait Airlines (2002) HoL FACTS: Kuwait airplanes expropriated by Iraqi government, under the then-existing-

choice of law rules, two part connector where event took place outside of UK: cause of action had to be actionable in the UK, had to be a tort in the place where it occurred (here, was valid in Iraq bc resolution for expropriation)

Iraq argued that should only disregard on the basis of public policy where there has been a gross violation of human rights – HoL did not accept this limitation

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also argued that national law that is in violation of il is not per say a foreign law that should not be applied for public policy – merely bc government expropriates, may not be enough to knock it out on the basis of public policy (even where inconsistent with il) – in this case there were additional factors (universal condemnation of Iraq’s invasion)

“exceptionally and rarely, a provision of foreign law will be disregarded where it would lead to a result wholly alien to the fundamental requirements of justice as administered by an English court.”

o the court will exclude the foreign decree only when it “would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.”

note: a substantial similarity in the legal policies of the forum and foreign court defeats any possible application of the public policy exception but… a substantial dissimilarity is NOT a sufficient condition for its invocation!

Lloyds (2001) ON CA FACTS: ON investors, choice of law and choice of forum court specified England,

English court ruled that they were required to support a reinsurance scheme, Lloyds applied to have the judgements recognized in ON

problem is not that the case is complex, but that it is multi-faceted – cases going on at the same time around the world

argument: enforcement should be denied as it would indirectly violate the ON public policy as expressed in the Security Act (seeking to expand the public policy argument beyond situations which are contrary to essential morality)

court reviews cases trend of jurisprudence is that the public policy exception is to be narrowly construed and rarely applies

o this does involve fundamental values o goes beyond morality o refers to Morguard and Tolofson: public policy left to be a safety valve, to be

available for more use than previously had been (broadening of defences) public policy may not turn exclusively on repugnance for the fundamental values

represented by the underlying legal basis for the judgement, but on whether the forum courts are prepared to enforce a foreign judgement when an action on the same cause, had it been litigated in the forum, would not have been entertained

would have concluded that contrary to public policy but…o previous case where Lloyds had been successful in getting a stay in ON – by

refusing to hear the action, courts had contemplated that the result might not be in accordance with the Act (if they had been concerned about enforcing the public policy than this consideration would have trumped and they would have heard the case) Don’t want to undermine the credibility of their own courts.

o international comity – Lloyds is getting judgements in England against names all around the world, courts elsewhere have recognized the English court’s authority to hear these cases and had been enforcing the judgements. If ON wanted to act weirdly, would cause unfairness, economic turmoil, etc.

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Beales (2003) FACTS: default judgement in Florida, alleged cause of action was a modest/minor error

that was corrected in the purchase agreement, damage award was almost 1 million. argued that it should be put aside as inconsistent with the public policy of Canada

o the land was only worth $8000!o dissent latched onto the natural justice argument (only for enforcement, not

applicable to the application of foreign law) Binnie (on this there was no dissent) – amount of the award alone was not, in and of

itself, sufficient to shock Canadians. Nothing in the evidence of how they got to the 1 mill total that would offend Canada’s concept of justice. Defence turns on whether the foreign law is contrary to our view of basic morality (para 71). Two parts: (1) law, not outcome that we are concerned with and (2) back to morality!

o not a remedy to be used lightly, is to have a narrow focus o not for perceived injustices, only for those that offend our sense of morality o not to be used in a claim in a foreign jurisdiction where that claim yields damages

that are different and greater than those that would have been awarded in Canada LeBel (dissent – but agrees with the result of the majority): indicates that it is not the

judgement that is the problem, it is the foreign law upon which that judgement is basedo foreign law, not repugnant facts that you are dealing with o defence associated with the condemnation of a foreign nation’s law o maybe time for the public policy defence to have a greater scope – should not be

reserved for shockingly immoral laws; should apply to laws that offend basic tenets of our justice system – issues of essential fairness

o e.g. civil damages only awarded when the def is responsible for the harm o suggested rationale: given that the category of judgements that are now

enforceable in light of international comity, time to broaden out defences. note: this is something that Castelle and Walker anticipated as coming out of Morguard

Wende BC SC: FACTS: Johanna died intestate, niece petitioned that she was lawful heir, administrator

wanted to get clarified. Problem: by adoption had disconnected from her original family – adopted in Germany at age 43 by an 84 yr old man she had been living with as her husband. Context: marriage prohibited where there were certain age differences, adoptions were means of legalizing the life-partnerships of an aristocrat

BC: if the adoption is legal in the place where it took place, then it will be considered a legal adoption in BC – statutory choice of law

did say that very rare that a foreign adoption will not be recognized in BC HELD: adoption denied recognition on the ground of public policy – not intended to

establish a parent-child relationship but rather to manage estate

Boardwalk Regency (1992) ON CA FACTS: casino obtained default judgement for gambling debt incurred in NJ, sought to

enforce in ON, def argued that would be contrary to public policy as expressed in the Gaming Act (which made wagering ks void)

court preferred the narrow construction of public policy

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said that the proper law of the K was NJ, said that statute did not have an extra-territorial effect (only applied to gambling in ON)

common ground for public policy is essential morality o more than the morality of a single person

Public Policy in an Interprovincial Context NOT going to be looking to raise a public policy argument against another province – bc

of full faith and credit supposed to be given to the laws of the rest of the county (even if there are policy differences!)

Depecage: technique by which a particular legal issue is hived off from the generally applicable lex causae and subjected to its own discrete choice of law rule

o sometimes used to reach results similar to those achieved by a more general public policy doctrine

o e.g. Quebec Civil Code: consumer ks and employment ks

Penal Laws no court will execute the penal laws of another jurisdiction

o exception: prosecute person deemed to have commit offence under Canadian law while in a foreign jurisdiction

o basis: core exercise of sovereignty issues (criminal power being one of them) avoids having one court engage in difficult value judgements about the fairness and

wisdom of a foreign country’s criminal justice or policies essentially an a priori application of the general public policy exception s.6(2) CC: Canadian courts have authority to hear any case that bears a real and

substantial connection to this country, whether or not territorial jurisdiction is also available in another state

o penal exception is limited to denying a foreign sovereign the power to enforce its criminal laws outside the territory of their enactment. It does not preclude forum recognition of the relevant law in other contexts

o Canadian courts may be under a positive statutory obligation to penalize indirectly a breach of foreign law – e.g. s.465(3) CC charge of conspiracy involving a breach of for foreign criminal law

where there is an extradition treaty, Canada will indirectly assist enforcement by ordering the return of the person charged with breaking the criminal law of a foreign legal system

o note: treaties usually contain qualification clauses to avoid any conflict with fundamental forum policy (e.g. commonly a condition that the foreign crime for which the extradition is sought is also a crime in the forum)

o problem: punishment imposed by the foreign states is disproportionate to the forum sanction for the same offence (e.g. death penalty) Ministerial discretion to seek assurances that the death penalty will not be imposed or carried out

highly unlikely that BC court would enforce a k that was illegal in the place that the k was made

note: punitive damages in a civil law remedy are not considered penal (bc not from a criminal statute)? This is arguable though.

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Huntington (1893) PC FACTS: New York statute provided that any material misrep officers who have signed

are jointly and severally liable for debts incurred. Judgement for H in New York, brought an action in ON for enforcement.

Def argued that not recoverable bc NY judgement based on a foreign penal law characterization of the law in the foreign jurisdiction is not determinative! GR: no proceeding with has object of punishment ought to be admitted for enforcement

by the courts of another country o applies to prosecutions as well as recovery of pecuniary penalties

HELD: provisions were protective and remedial not penal able to enforce recall Ivey: court said that this was not a matter of penal law, merely reimbursement

Harden (1963) referred to at pg 108

FACTS: action in BC to recover taxes due in California GR: the forum court will not enforce foreign revenue laws– territorially based (improper

extension of the taxing state’s authority) given the generality, what it encourages, is the idea of tax havens

argued that there was a distinction bw action to recover the taxes themselves and having obtained a judgement in the US, that they were recognizing and enforcing it in BC

o court held that rule so well established that it could not be circumvented by enforcing a judgement based on such debts (idea appears again in Stringam)

Toronto Dominion Bank (1989) note that probably wouldn’t be decided this way now, bc of tax treaties

FACTS: ON guy has money in his account (parents probably guilty), IRS has judgement to seize all his assets from the US and Canada. Guy couldn’t get his money from the bank – TD cited the US freezing orders. Vested interest – if they released the money, under US law they would be subject to a 200% fine.

bank lost – court held that the IRS seizure order (wasn’t even a US court decision, was just the IRS) was an indirect enforcement of US revenue laws. Able to access money in Canadian accounts (but couldn’t move money from the US).

although the court was sympathetic to the bank, this was a cost of doing business

Stringam v. Dubois (1992) A B CA FACTS: testator died in the US, left farm to niece in AB, executor wanted sale of the

farm to pay Arizona estate tax ISSUE: whether the rule against courts enforcing a tax claim of a foreign jurisdiction

applies so as to allow transfer of the Canadian realty to the devisee, rather than requiring that the property be sold and the proceeds used firstly to pay the US estate taxes

Harden rule applicable even where there is no direct involvement by the foreign state Reed – BC estate case where the CA had not applied Harden.

o limited to its facts: treasury of the foreign state was going to be directly enriched, foreign state was directly involved in the action to get the money

o What you can’t do directly, you really can’t do indirectly!

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HELD: farm not sold (bc would be an indirect enforcement of Arizona revenue laws) problem: fairly strict rule that doesn’t seem to make sense (bc people moving all around

the world, essentially allowing tax havens)o Harden has been criticized as too narrow, too bold, doesn’t take into account

comity (decided before Morguard), way of business has changed o niece is actually an American resident – bank or executor had recourse against her

is there was non-payment may distinguish this case on the factso AB CA suggests that SCC may want to re-examine this rule!

Re: Sefel Geophysical (1989) AB QB FACTS: trustee of a bankrupt company applied for advice as to the appropriate

distribution among creditors of the proceeds of sale of the bankrupt estate ISSUE: were revenue claims from the US and the UK barred by the tax exclusion? Forsyth basically ignored cases that revenue claims in a bankruptcy are not enforceable bc of international comity, not satisfied that the old English case is applicable anymore

suggestion that some foreign tax claims should be recognized accords with the general concepts of fairness and decency but… exception is restricted to liquidation proceedings (i.e. very narrow)

Revenue Laws there are statutes and treaties which impact collection and enforcement of taxes provinces: recognize tax claims from other provinces (may require court order)

o legislative and full faith and credit recognition (deference within the inter-provincial world to what is happening in other provinces)

who gets to determine whether it is a revenue law or not? – Lex Forio recall Ivey – even though an academic argued that the clean up cost was a tax the

court said no, it was up to them to decide, and it wasn’t

Weir (1967) Man QB FACTS: car accident of Sask resident in Manitoba ISSUE: could the plf seek recovery where the Sask government had paid (i.e. had been

reimbursed) argued that this was an attempt to use Man revenue law but… court said this was not a

revenue debt, up to Sask to decide how they would deal with these things o really about reimbursement rather then revenue creation o AND… even if it was a revenue claim, they wouldn’t have precluded it (bc a

sister province)

Connecting Factor: Torts

Historical Approach (UK) modern choice of law rules (connecting factors) – goes back to 1868 Halley: collision of two ships in Belgian waters, action brought in the UK (bc in British

law no liability for a tort committed by a pilot) o lex fori is the law that is to be applied, irrespective of where the tort occurso no case, bc not actionable in the UK

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two part test developed in Phillips and refined in Machadoo requires (1) actionable in the UK and (2) action in question is not innocent in the

foreign jurisdiction redefined as the double actionability rule in Chaplin v. Boys NOTE: UK 1971 change to tort law – not picked up by the SCC bc no SCC case dealing

with tort law until 1994 arguably the law in Canada (even after Tolofson) where lld doesn’t apply. Statute abolishes the double actionability rule and the flexible exception for a lld rule (with a flexible exception).

Philips v. Eyre (1870) Ex. Ct. FACTS: P was arrested and unlawfully detained in Jamaica as part of uprisings there.

Travelled to England and attempted to bring suit against the Jamaican governor, but… meanwhile there is a Jamaican statute passed that grants retrospective immunity to the governor for conduct in quelling the uprisings (so he couldn’t be sued in Jamaica)

beginning of the two part test where torts are committed in a foreign jurisdiction: (1) actionable in the UK and (2) action in question is not justifiable in the foreign jurisdiction

o in this case was justifiable in the foreign country (bc the law in J had changed so not able to bring the action)

Machado v. Fontes (1897) QB CA gloss on the two step approach FACTS: libel action in England for defamation for a publication in Brazil; in Brazil,

defamation doesn’t give rise to a civil remedy, but is criminal (can be thrown in jail) the court read “not justifiable” to read “not innocent”

o effect: so easy to get past the second part (will always be “not innocent” to somebody) that basically changed the choice of law rule to a forum law rule

Chaplin v. Boys (1971) HoL FACTS: motorcycle accident in Malta, two British servicemen involved, under Maltese

law plf could not recover for general damages, English you could recover both general and compensatory damages

court looked at the cases they had been applying and said that for almost 100 yrs judges had been misunderstanding those cases – what they really said was that, in order to bring a tort action in the UK, there had to be double actionability: (1) actionable in the UK and (2) actionable in the foreign jurisdiction.

so… double actionability is the connecting factor to get to the foreign law. If you don’t meet it, then you apply the forum law.

o exception: if the application of the rule created an injustice (no explanation as to what this means) then you can look for different connecting factors. Arguably this is what the court did in Tolofson (making an exception where dealing with car accidents in Canada)

in this case, there was no connection to Malta (other than the site of the accident) – hard to see that Malta had any interest

American approach to torts accepted for the exception in the Chaplin

US Approach to Torts up to 1963, the general approach was lld

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Babcock v. Jackson (1963) NY CA FACTS: two NYers, car accident in ON – at the time gratuitous passengers couldn’t sue

in ON but could recover under NY law lld approach failed to consider the policies of the states – here, you have two injured NY

residents back in NY. ON has no interest, whereas NY has an interest in protecting them connecting factor is a balancing test

o relative interests of states, context bw parties, states and various jurisdictions o referred to as the proper law of tort (analogy to the proper law of k)o centre of gravity of the action, justice, fairness, best practical resulto which jurisdiction would have the most intimate concern with the outcome o general: largest set of connection, largest policy concerns

advantages: fair, flexible disadvantages: hugely unpredictable, highly litigational (could fight about it forever) criticised in Canada as undisciplined, too free a hand to the judge, really does make a

difference as to where you go first (problems with conflicting court cases, anti-suit injunctions etc) – encourages a certain degree of forum shopping esp within the US

Canadian Approach

McLean v. Pettigrew (1945) SCCleading case prior to Tolofson

FACTS: QUE friends driving in ON, plf sued in Que, gratuitous passenger rule in ON would not allow liability (but would be liable in Que)

adopts Machado?? breach of the MVA was sufficient to get by the “not justifiable” test note: didn’t matter that the driver was charged and acquitted under the ON legislation

Tolofson v. Jensen (1994) SCC FACTS: plf (passenger) and driver were BC residents, travelling in a BC registered and

insured vehicle. Were injured in a mva in Saskatchewan. GR: the law to be applied is that of the place where the tort occurred – lex loci delicti

o axiomatic bc flows logically from the general principle that a state has exclusive jurisdiction within its own territory, which other states must respect as part of international comity

o possible suggestion that this is not the rule where the act/consequences are in different states or where the wrong arises directly out of some trans-national or interprovincial activity?

advantages of this rule: certainty, ease of application, predictability, meets normal expectations (people expect activities to be governed by the place where they are when engaging in the activities)

court considers whether there should be an exception to the strict ruleo differences bw provinces are less and less o arguable that any benefit to the province would be offset by losses, or if not is

evened out by the national healthcare system o would introduce greater uncertainty at the outset

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o could encourage frivolous cross-claims or joinders to get a third party from another jurisdiction with more favourable law

HELD: referred back to be decided on Sask law, as that was where the accident occurred note: possible that Tolofson confined to its facts (only car accident cases); there is a

foreign exception that LaForest talks about – picked up in subsequent cases

Somers v. Fournier (2002) ON CA FACTS: ON residents in mva in NY, other car was driven by a NYer plf argued for an exception where application of the lld rule would cause a serious

injustice – court rejected this (very restrictive approach taken to the international exception presented in Tolofson)

o mere difference in policy is not sufficient (Wong v. Lee – pg. 616) o no actual prejudice shown – Somers chose to apply for ON no-fault benefits and

to sue in that jurisdiction o cannot assume that substantive law of ON would have applied, but for Tolofson o although there are multiple cases, this does not create a serious procedural

problem re: assessment etc such that the lld rule should not apply

Products Liability tort can have more than one locus for the purposes of deciding js (Moran v. Pyle)

o but.. the locus in the context of js is a separate issue from the locus for determining the choice of law

Hague Convention governs for many European countries – place of injury (as long as one party is resident or carries on business there)

Fraudulent or Negligent Misrep usually deemed to be committed in the country where misrep was received and acted on rationale: that is the country that is substantially affected by the wrong and the law of that

country ought to have been in contemplation of the wrongdoer

Economic Torts inducing breach of k: acts done outside province with aim of inducing an out-of-province

party to break a k with a party in the province can be a tort committed in the province conspiracy: determined by whether province was substantially affected by the conspiracy

(usually bc a substantial part of the damages were suffered there) and whether the law of that province was within the reasonable contemplation of the alleged wrong-doer

passing off: doesn’t really pose as much of a problem, bc the tort is effectively localized in a country. Claim is for damage to the goodwill attaching to the plf’s products in a particular market – law will be that of the market (even where another country has js).

Nuisance and Environmental Damage GR: court has no jurisdiction to hear a claim for tortious damage to immovable property

outside the province not many cases arising under conflicts! nuisance actions usually have to be brought in the province where the land is situated,

and it would be very rare for the court to apply foreign law

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question: can the forum court impose liability for damages done outside the province? (e.g. river pollutants)

Defamation in theory, each publication of the defamatory material constitutes a separate tort publication in the province tort was committed in the province for jurisdictional

purposes raises fnc issues

Statutory Tort Claims e.g. Fatal Accident Act damages recovery – can’t sue bc dependent’s claim is derivative

from the wrong done to the family member, which is governed by the lld rule

Particular Issues in Tort Cases whether to characterize as a tort or something else…

Tort Claims Connected to K how to determine whether tort liability has been validly excluded by a provision in a k?

o law governing torts (lld) o proper law of ks

depends on the characterization of the issueo if the bar to the tort action is an express question of liability in the k, then

proper law of k first: is the exclusion of liability permissible as a matter of contract law? second: is the exclusion permissible as a matter of tort law?

o if the exclusion arises not out of a specific provision in the k, but out of the existence of a particular kind of relationship (e.g. employment) tort law

Contributory Negligence and Multiple Tortfeasors extent to which the plf’s right of recovery is limited by his own negligence is a matter of

substantive law governed by lld where multiple tortfeasors, the right of one def to contribution from the others is a

restitutionary right (not a tort right) and under the proper law of restitutionary obligation probably also governed by lld (if the torts were committed in the same country)

Interspousal Immunity should it be characterized as an aspect of the marriage relationship rather than a tort

defence? o if yes, then apply the law of the parties’ domicile

Subrogated Claims actually an issue of transfer of an interest in intangible movable property (chose in action) private matter bw the victim and the compensating party – characterized as contractual in

nature, to be governed by the proper law of the insurance k

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Connecting Factor: Contracts

note: can argue there are subsets within “ks” (based on nature, subject matter) possible connections: (1) place where the k was made – physical location (2) where the k

will be performed (3) domicile of the parties, or main place of doing business (4) where the subject matter of the k is located (5) law of the forum

o Canadian courts haven’t given answer re: particular one way to respond – may be any one of the five in any given fact pattern

courts have tried to put into a framework o obvious preference on choice of law – want to uphold ks! (so not going to go out

of their way to try and find some way to undo them) o high degree of deference to party autonomyo courts like certainty! (goes to the upholding of the k) driven by desire to foster

economic development, rather than hinder it. CL jurisdictions: choice of law in k is determined by judge-made rules but… beware

when dealing with certain types of ks! o immovables land o Warsaw Convention (air carriage), Hague-Visby rules (marine carriage), UN

Convention on ks for the International Sale of Goodso excluded: arbitration agreements, matrimonial property rights, wills, etc.

internationally uniform choice of law rules (next best thing to uniform rules) o Rome Convention on the Law Applicable to K’l Obligations: applies to any case

brought before a court of a state party, whether or not the other country associated with the case is also a party to the convention, as long as there is a contractual obligation involving a choice of law issue

o OAS Convention: expressly limited to use bw contracting parties, but the law chosen can be that of a non-contracting party

are arbitrators bound by the same choice of law rules as the courts? o international arbitrations no bc Model Law article 28(2) says that the

arbitration tribunal should apply the laws determined by the conflict of law rules it thinks are applicable

o there is no provision for inter-provincial arbitration arguably have to conform with domestic choice of law rules

connecting factor = proper law of k o definition (Castelle, based on Dicey and Morris): system of law by which parties

intended k to be governed or, where intention is neither express nor to be inferred from circs, the system of law with which k has closest and most real connection.

Approach: 1. look to see if there is express agreement (i.e. choice of law clause in the k)2. if not, can the parties can be seen to have impliedly agreed to a choice of law? 3. if not, look to what the k is about (and to some extent also to the people involved) and

decide where the most real connection lies.

Vita Foods v. Unus Shipping (1939) PC (on appeal from the NS CA)

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FACTS: NY plf entered into k with the NS company (def). Sued in NS for tactical reasons bc this is where the company’s assets were. Loss admittedly due to captain’s negligence in navigation but… issue as to the law governing the contractual relationship. Bills of lading was signed in Nfld. said that the carrier would not be liable for negligence. Any disputes arising were to be governed by English law. But… there was a Nfld statute that required that the Hague Rules be incorporated in Bills of Lading – by accident the wrong bill was issue – was the k still valid?

ISSUE: does the choice of law provision in a k apply to determine the validity of the K? looked at the express intention of the parties to find that British laws applied

o want to respect to foster economic activity exceptions: (1) lack of bona fides in the choice (2) contrary to forum public policy

o although it isnot necessary for the law chosen by the parties to have any connection – Ted suggests that the more oddball the law, may be stronger bona fides argument (in this case connection: British underwriters)

o e.g. deliberate attempt to circumvent/avoid local laws English law applies – to determine the effect of the failure to comply with the Nfld statute

will have to look to British choice of law rules. o what effect in English law does a foreign statute have – not much o as a matter of policy, can’t be overly concerned with foreign statuteso decided that wasn’t illegal – interpreted Nfld statute as directory rather than

mandatory, so the k itself wasn’t invalid. Doesn’t matter if the Nfld court itself would have found it was illegal.

see pg. 653 – “all the reasons seem to justify the conclusion…” HELD: English law applies note: be wary about wording.. express choice of law clause may cover only some (not all)

issues that could arise under the k

The “Star Texas” (1993) ENG CA stands for the proposition that if you have an arbitration clause or choice of forum clause

that takes you a particular state, there is an inference that it carries with it a choice of law. (even though this is what they didn’t do in this case)

FACTS: English company chartered a ship to Chinese company, chemicals leaked and the ship was damaged. Sued in England. Charter party contained an arbitration clause referring to Beijing or London, at the def’s option (whoever is getting sued gets to chose)

ISSUE: does a choice of forum raise implied agreement on choice of law?o court said yeso arguments as to whether the k was void for uncertainty o parties probably never considered the choice of law at all o under English law, can’t have a floating choice of law clause o no implied intention that could be drawn here bc choice of forum was a split

use the most real and substantial connection test (chose the England)

Imperial Life Assurance v. Colemenares (1976) leading case on the proper law of k in Canada (no subsequent case that has looked at this

stuff directly) – what to do when there is no agreement on choice of law

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FACTS: plf is Cuban national with life insurance policies in Cuba through ON def company, plf then moves to US, wants the cash value, ON refuses on basis that Cuban law prohibits paying off on a policy when in the US, no express choice of law in the k

plf argued: ks were prepared in ON, written in standard ON form, payable in US $, if you wanted the cash value you had to surrender it in an ON office

counter: k drafted in Spanish, only effective when Cuban national had possession, to be valid in Cuba had to be notarized in Cuba

court found that k formed where plf’s irrevocable offer was received (ON) but… the place of the making of the k is not determinative as to the proper law of the k

o look at all circs and determine where the most real and substantial connection is o in this case factors to be considered: place of k, the language of the k, the place of

performance, place of residence or business of the parties, nature of the subject matter, the standard form k drafted in ON in accordance with ON law, decision to accept the risk actually occurred in ON

note: Castelle – says that this case means where you don’t have an express choice of law clause you can skip past the implied question and move to real and substantial connection. Ted not sure about this, but a possibility. The last two steps blend together.

Amin Rasheed Shipping (1984) HoL FACTS: company incorporated in Libya, carries on business in Dubai, seeking to sue

Kuwaiti insurers in an English court use English conflicts laws difficult to use place of k formation as the connecting factor bc tricky to determine given

new communications technology Kuwait didn’t have a marine insurance code so…

Limits on the Parties’ Freedom to Choose the Proper Law statutory: court is bound by any statute of the forum that dictates what the law of k is to

be or that invalidates parties’ agreement as to the governing law (as set out in Vita Foods) o usually don’t invalidate choice of law altogether, but instead require a certain

particular substantive rule to be applied to the k irrespective of the proper law directed by the parties

fact that the k is valid or is drafted appropriately for one system of law but is invalid or improperly drafter under another system can be considered an indicator as to the most close and substantial connection

usually, rules of the lex fori apply to the k only where they are procedural o but… legislature can override this and require that a substantive law be applied,

even to a foreign k o may be argued that even where the legislature has not expressed its wish to have

the rule apply to foreign ks, this should be inferred from the terms of the statute where k can be performed without doing anything illegal, but the parties actual intention

is to perform in a way that contravenes the law of the state (i.e. smuggling) – the illegal purpose has been held to make the k unenforceable on ground of public policy

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Nike Infomatic v. Avac Systems (1979) FACTS: Nike (BC), k with Avac (AB), provision that the law of BC is to apply unless

any provision contravenes the law of the place where the k is to be performed – in which case the provision is deemed not part of the k

argued: express intention should be overridden (i.e. AB law should apply) bc the k was signed in AB, performed there, and was an “AB k” that should be governed by their law

o court rejects this argument – will apply the express choice of law as long as it is bona fide, legal, and not against public policy.

immaterial that the parties/k have a connection with the chosen law (although here they do, as the plf is incorporated in BC)

Golden Acres v. Queensland Estates (1969) Australia – QL SC FACTS: Hong Kong company made a claim for commission of the sale of land in

Queensland. K had provision that deemed it to have been made in HK. Company argued that this amounted to an express choice of law.

court held that the choice of law was ineffective o choice of the parties had to be bona fide – attempt to invoke the HK law was for

express purpose of attempting to avoid the application of QL law

Avenue Properties v. First City (1986) BC CA FACTS: Ave brought properties in ON from join venture (ON and AL companies), ks

had express provision that were to be governed by ON law. Ave didn’t complete k bc they argued BC Real Estate Act hadn’t been complied with. Vendors sued in ON for specific performance or damages. Ave sued in BC to have the k declared unenforceable.

where the legislation cannot be characterized as a “choice of law rule” the court may still apply a provision of local law in preference to the foreign proper law of the k where it is satisfied that it would be contrary to public policy to do otherwise

court says there is a reasonable possibility that s.62 of the BC Real Estate Act is substantive and is intended to apply as a choice of law rule

BC law is made expressly applicable to solicitations within BC for the sale of land outside the province

Gillespie Management v. Terrace Properties (1989) BC CA FACTS: k made in BC for BC company to manage Washington company’s apartment

building in Washington. Brought a claim to recover commissions due, but… regulatory provisions of the Washington code apply to non-resident brokers carrying on business within the state (i.e. needed a license).

at trial the judge found that most of the business was carried out in BC (making phone calls to arrange payment), k was enforceable

but… the CA held that illegality of performance in Washington makes the claim unenforceable in BC compensation denied

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Contract Formation Issues conflicting case law

by whose law do you determine whether a k has been validly formed or not? three options:

o law of the place where the k is attempted to be made o forum law o putative proper law (law that would apply if the k were valid)

Albeko Shuhmaschien v. K. Shoes (1961) FACTS: Swiss company mailed back acceptance, English company never received ISSUE: is agreement formed if acceptance is posted but not received?

o the two countries involved, England and Switzerland, had different rules about this (UK – acceptance at time of mailing, Swiss – at time of receipt)

case really resolved on the fact that there was no evidence of the Swiss company ever having mailed the letter

but judge went on to say that would have applied Swiss law bc it was the proper law of the k (that was NOT formed, in this case!)

court notes that all of the factors point to Switzerland in determining the proper law of the k (made in Switzerland, etc.)

Mackender v. Felida (1967) QB CA FACTS: Italian diamond merchants covered by Lloyds. Provision in k that was to be

governed by Belgian law (nws that k completed in England). After a loss in Naples, became clear that the merchants were engaged in smuggling. Lloyds rejected the claim.

Lloyds argued that choice of law clause is only applicable where the k is truly formed (here, there was non-disclosure of smuggling activities, so there was no k)

ISSUE: is English or Belgian law applied to determining whether a k was formed? Denning – non-disclosure doesn’t automatically void the k, just makes it unenforceable,

so the choice of law clause stands and Belgian law applies o but… ref to void and voidable – seems to be using English law

Diplock – options are (1) putative and (2) forum o putative proper law is English o but here… the k was formed Belgian law applies

suggests that the formation of k may fall to the lex fori (counter to earlier case!) – neither case is particularly strong or convincing, but hadn’t really come up again.

HELD: eave to serve ex juris denied

Capacity: Charron v. Montreal Trust (1958) ON CA FACTS: couple married in ON, lived in ON, separation agreement signed in ON, then

husband returned to Que, defaulted on payments, died. Executor argued that separation agreement not valid bc husband was domiciled in Que for all the relevant times

under QUE law, the husband lacked capacity to enter into the agreement referred to putative proper law of k (not the one expressly agreed to) k was valid looked at connecting factors – all lead to ON HELD: dispute to be settled by ON law

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Complying with Formalities: Greenshields v. Johnston (1981) AB CA FACTS: Greenshields carries on business in ON and AB, Johnston is an AB company,

plf claiming debt against the def (debt acknowledged, but issue is wrt personal guarantee). Choice of law clause for ON, signed in AB.

J argued that guarantee given was void bc not compliant with requirements of the AB legislation – had to be done before a notary

o counter: complied with the laws of ON and the k says that it should be construed in accordance with ON law

o law to deal with formalities set out in other k cases, basically law recognizes choice: k will be formally valid if the formalities in question are met where the k was made or the proper law of the k. Rule established to ensure that ks are not unduly avoided based on technicalities.

attacking the express choice of law clause: o lack of bona fides here there is a connection to ON (head office located there),

clause was not inserted for the purpose of evading the AB statuteo contrary to law and policy should only be invoked where there is substantial and

incontestable harm to the public at the AB CA, raised another type of argument

o guarantor legislation was procedural – should apply AB law (lost on this too) o if they had won, Greenshields would have sued in ON (bc res judicata doesn’t

work the same way in civil actions as in criminal, know that won’t be procedural in ON bc is the proper law of the k)

claim allowed

RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENTS

General Points there are two routes, which are not mutually exclusive

o register judgement –comply with legislation (BC Court Order Enforcement Act, Enforcement of Canadian Judgements Act – not yet proclaimed)

o through CL starting point: territorial jurisdiction

o exclusive territorial sovereignty of the state prevent judgements of another country’s courts landing in BC and being directly enforced

o the only law that matters is the forum law reciprocity is important, but is not massively determinative

o graft on comity, international commerce and movement o want to avoid having to re-litigate in different jurisdictions to get result

different when you have in rem judgments against immovable property (such as divorce decrees); different rules on injunctions and sp

o injunctions – rule is that forum court will not recognize or enforce but… this is going to the SCC Pro Swing v. Elta Golf (Trademark infringement case). US Consent Agreement including an injunction. ON Trial judge allowed enforcement of the US injunction, in part bc it was consensual. ON CA overturned this. CA might have followed the trial judge, but for ambiguity in the agreement (v. fine which can be easily determined).

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Enforcement at CL two basic requirements: (1) judgement you are seeking to enforce must be final and

conclusive (2) foreign court had to have jurisdiction in the international sense to decide the matter (keep in mind this is determined by the forum court!)

res judicata does not apply may be possible for the plf to sue again on the original cause of action, if the foreign judgement is not recognisable by the forum

o although not an abuse to re-litigate if you won somewhere else, will be an abuse if you lost (but… could argue different grounds)

“final and conclusive”o test: can the court order be changed by the same court that announced it?o has to be res judicata as bw the parties o matrimonial support orders, although constantly changing are somehow ok o Court Act prevents registration while appeal is ongoing or possible (so have to

wait until the appeal period is dead) although note: SC Rules 54 (a) allows the court to make an order where appeal is pending. By s. 54(9) def can apply for a stay where there is an appeal pending, or the time for an appeal has not expired.

historically, viewed as an action in debt, debt having been created by foreign judgement – so… subject to same limitation of a domestic action in debt (regardless of the limitation period attached to the enforcement of the judgement in the originating jurisdiction).

o NOW: viewed as judgements, rather than contract debts before the court

Nouvion v. Freemen (1889) HoL FACTS: suit in England, court order from Spain that debt is owing same matter could be litigated by same parties before same court not conclusive/final test: can the court order be changed by the same court that announced it?

o distinguish court of appeal HELD: English court wouldn’t enforce Spanish judgement, note: plf could have re-litigated in England but… here the time had expired

NEC Corp v. Stendron (1985) ON HC FACTS: judgement in BC, registered court order under ON Act, appeal was filed in BC,

notice of the appeal was provided into ON (which stopped the recognition and enforcement of judgement process)

meanwhile… went to court to get a Marevea injunction to prevent assets from leaving ON – denied in this case bc of peculiarities of the legislation in ON (bc case stopped, was determined to be no case pending, need case to attach to)

so… tried to go under the CL court held that it is not either/or you can do both (Ted says this is the case in BC too)

Jurisdiction of the foreign court in an international sense concern: court doesn’t want to enforce judgement unless foreign court had jurisdiction NOT the same thing as js (although similar)

o used to be completely different but this is changed in Canada historically, had to show (1) def had been present in the foreign jurisdiction when the

action was commenced OR (2) def attorns to the jurisdiction o made it difficult to get recognition and enforcement of judgements

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these first two are still valid… but now have(3) if there was a real and substantial connection to the foreign court exercising jurisdiction, this will be sufficient

o determined by the forum courto Morguard – foreign means Canada makes it impossible for a provincial court

not to recognize a judgement coming from another provincial Canadian court, unless they have been really massively negligent

o Beales –may in some, although not all cases, be extended beyond Canada

Morguard (1990) SCC FACTS: AB mortgages fell into default, want to claim against mortgagor who resides in

BC. Served ex juris in BC (according to the AB rules of court), did not appear or defend the action in AB, so M obtained judgement. Deficiency – sold the property, but wasn’t enough to pay the mortgage. Sought to enforce the order in BC Court.

ISSUE: can a personal judgement validly given in AB against an absent def be enforced in BC where he now resides?

o note: AB clearly has jurisdiction to entertain the action and enforce it within AB LaForest goes back to look at the English rules

o based on the concept of territoriality o see pg. 37o English law based on a unitary state system – maybe not appropriate for Canada o lack of comity in the old cases – reflection of the “old world order” o defn of comity: neither matter of absolute obligation, nor of mere courtesy

possibly obiter – discussion of the constitutional issues that underline the need for a different approach to sister province judgements

o English rules, esp if applied bw provinces, fly in the face of the intention to create a single country – s.121 CA 87 – integration of the economies

o considerations of comity have even greater force as bw sister provinces; judicial structure suggests greater deference as bw judges, lawyers bc all part of the same system, etc. should be a full faith and credit clause, anchors this in POGG

o in this case not necessary to decide the case on constitutional grounds, but raises them (and they are picked up in subsequent cases)

also: justice, necessity, and convenience o prevent unfairness (def able to avoid judgement simply by moving to another

province, plf compelled to bring the case in forum where the def nor resides) introduces a new option: court can exercise jurisdiction over a def in another jurisdiction

where there is a real and substantial connection to the originating jurisdiction o in this case, hard to imagine a more appropriate forum than AB (k was there,

property was there…) contrast: LaF concerned about the plf being able to bring the case, LeBel concerned with

the def being able to defend the case

Braintech (1999) BC CA FACTS: default judgement in Texas for libel, action for enforcement in BC

o note: although default judgements are technically no different than other judgement, in conflicts they do have an “aura” more reluctant to enforce?

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Texas court based its js on its civil procedure rules (as it is required to do!) – court has js over non-residents who are doing business in Texas (and “doing business” by statutory definition includes committing a tort!)

o there is no real and substantial connection bw the injury alleged and Texas (as the choice of forum)

o BC CA says that Texas had accepted that there was a connection bc of the nature of the alleged industry (happened in Texas)

reference to Zippo – when does court have jurisdiction over a non-resident Internet user o passive website is NOT groundso interactive website – user exchanges info with the host – look at nature and extento finds that there the BC resident falls into the passive website category

BC is the natural forum Texas court has exceeded its jurisdiction and the Texas statute was unconstitutional in US law

HELD: not enforceable in BC note: don’t actually talk much about the real and substantial connection (even thought

this is what they came around to in their judgement)

Beales (2003) SCC majority (Major), dissent (LeBel) – richer, better articulation of the issues so referred to

re: considerations in enforcing a foreign judgement FACTS: significant discrepancies of the facts bw the judgements!

o the only thing they agree on is that the whole thing took place in Florida o following the majority: land sale in Florida, honest error made by Canadian

sellers, agent claimed damages and accused the sellers of fraud (opened up to jury determination of damages, treble damages), no evidence on how the jury got to their damages award. Beals’ lawyer told them not to litigate

ISSUE: whether Morguard was restricted to sister provinces or extended to foreign agreement on the real and substantial connection test, as applied to international cases

o lawyers didn’t argue real and substantial connection (both sides agreed that there was a connection, issue was defences, not the basic principles under Morguard)

o court asked for written briefs on whether and in what cases M should apply majority says yes, judgement should be enforced bc of reciprocity

o not reciprocity as in “if you enforce our judgements we’ll enforce yours” – ON would have exercised jurisdiction if the facts has arisen in ON instead of Florida

what is real and substantial connection for jurisdiction in the international sense? o Major – litigants and/or subject matter, something of significance, actively

involved, a fleeting or relatively unimportant connection is not sufficient, the connection must be a substantial one

o LeBel – agrees with the majority, but thinks the test should be changed where applied to provinces, factor in hardship for the Canadian def. Looks at the context of Morguard (distinguished – constitutional imperative for full faith and credit, not present in international cases). Wants a “context-sensitive” jurisdiction test. cannot live in splendid isolation, but are not a borderless global village. While the traditional rules impeded international commerce (difficult for judgement creditors to achieve remedies) an excessively generous test would be unduly burdensome on defs and would discourage persons with assets in Canada from

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entering into transactions internationally. Connection strong enough to make it reasonable for the def to be expected to litigate there, even though may entail extra expense. The more burdensome, the stronger the connection has to be. READ 184-185 for discussion on real and substantial connection. Burdens that are of concern: expense and convenience of travel, need for legal advice in the foreign jurisdiction, unfamiliar legal system/weird procedural rules, possibility for corruption and bias. Para 204 – court to retain discretion – reciprocity is not THE test (just a background issue).

Binnie: there is a distinction bw the international and inter-provincial cases (doesn’t say very much about what/why the distinction is)

Defences contrary to public policy of the forum – refer to previous discussion; cannot be based on

foreign penal or revenue laws judgement obtained by fraud judgement obtained in breach of natural justice (both dissents in Beales) NOT a defence to say that the foreign court erred in law (bc forum court is not a CA!) all these defences predate Morguard but… they still apply

Beales ISSUE: if you are going to open up recognition and enforcement to more judgements,

then do you need to open up the defences too? o LeBel says yes, Major doesn’t really deal with this

Major (para 41) the existing defences are narrow in their application o but they are not exhaustive (usual situations may require creation of a new

defence but not on the facts of this case) – possibility is still open o no need to reinterpret the old defences

fraud –don’t want to enforce a fraudulent judgement, but don’t want to make it so open that allowing to re-litigate

o two types of fraud: extrinsic (goes to the jurisdiction of the original court) and intrinsic (goes to the merits of the decision – somehow fraudulently perpetrated)

conflicting whether fraud on the merits results in providing a defence to the foreign award. Major now says is a defence to recognition and enforcement

o fraud on the merits: requires that there be new facts that were not available, not raised, or mis-raised in the foreign court – burden is on the def to show that they exercised reasonable diligence (no fraud was discovered at the time)

o para 53: where proceedings not inherently unfair, failing to defend is and then subsequently trying to say “I didn’t know about that evidence” is NOT fraud but… still have the due diligence test

o here, there is no evidence of fraud on the record, no misleading of the jury on the record (although when you read the facts this seems likely)

LeBel comes to same conclusion, but in a different way o direct relationship bw opening up recognition and enforcement and need to open

up defences, esp public policy o talks about an unnamed residual category o but agrees that in this case fraud cannot be made out (nothing on the records)

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Natural Justice defence – where the two dissents find a defence (would have applied it such that the judgement would not be enforced in Canada). Major found no breach here.

o not clear whether looking at the same things! Major: min standards of fairness (of process, in a particular system) – focus on process

o para 65: major elements of natural justice: (1) adequate notice of proceedings and (2) opportunity to defend

o ON residents argued insufficient notice, such that they didn’t know extent of their financial liability

o Major didn’t accept the argument. No inadequacy of the Florida proceedings, even though the notice of motion etc. received by the Canadians didn’t indicate the jeopardy, this didn’t determine the issue.

o Also… bought land in FL, knew that FL would have jurisdiction, is up to them to inform themselves as to the law (can’t run back to Canada and claim ignorance)

LeBel – looks more closely at the context, less at the process o accepts argument of Canadian litigants – notice requirement should have included

amount of money being sought (so that able to know of their potential liability) o concludes that the amount would shock the conscience of Canadians (puts the

public policy in with natural justice)

Leaton Leather (1997) BC SC (Chambers) FACTS: original case in Hong Kong involving personal guarantor. Guarantors show up

in court in HK without a lawyer, missed deadline for filing material, all the docs are in English (which they don’t speak), they have docs but aren’t allowed to put them in. Trial was not suspended. Judgement rendered, appeal period expired.

held that natural justice defence available here denial of natural justice an “odious taint” that will permit the court to decline to enforce un-represented litigant, had docs that weren’t allowed to be show, court would not

suspend, were unaware of the appeal period, docs and process all in English HELD: HK judgement not enforceable

Old North State (1999) BC CAnote: Ted says this case adds an odd defence…how to slip out in particular set of facts

FACTS: k went bad, default judgement in North Carolina court, company sought enforcement in BC. Damages treble, punitive damages and costs. K bw the parties identified BC as the governing law, and said that the parties would attorn to the jurisdiction of BC courts

ISSUE: how do you deal with the choice of law (BC) and attornment to the BC Court? there is no question of a real and substantial connection to NC – PO executed, goods

delivered, reps sent to carry out repairs, etc. – but could it be displaced by an exclusive jurisdiction clause in a k

argued that the clause indicated that there was no js in the NC court and therefore, the NC court was without jurisdiction in the international sense, by reason of the k

para 34 (ref to Oceanic case) – YES – a clause of exclusivity can displace a clearly existing real and substantial connection (but.. the facts here didn’t fit that jurisdiction bc didn’t confer exclusive jurisdiction)

in the absence of the word “exclusive” there is only concurrent jurisdiction

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o requires clear and express language (ambiguous language) onus was on the BC company, once served, to argue that BC law was the applicable

choice of law. Failing this, the NC court has no obligation to make its own inquiries and attempt to apply BC law

o problems: did not appear to defend the NC action, no attempt to set judgement aside, no appeal was taken, no effort to obtain an anti-suit injunction in BC

o even if this was an error, it is not of the type that would lead to failure to enforce! (not sufficient to overturn the judgement)

enforcement of treble damage awards is not contrary to the public policy of Canada o note: AG has discretion to declare treble damages (in awards dealing with anti-

trust laws) unenforceable – fact that there is a law allowing this indicates that there is a need (i.e. not contrary to the pp)

Recognition and Enforcement under Statute

the statutory mode = conversion by registration goal: more convenient than bringing an action in the forum court for recognition

o harder to meet the thresholds, but once you are in it is easier and quicker acts incorporate the traditional CL basis for recognition and enforcement but… since they

pre-date Morguard note: statute says there are exceptions for conflicts of laws!

o recall: do not replace the CL enforcement of judgements – see s.38

BC Court Order Enforcement Act what types of judgements will be enforced: see s.28(1) – (1) has to be a money judgement

and (2) has to originate from a state listed in the regulations as being a reciprocating state o excluded: alimony and maintenance o BC reciprocates with all Canadian provinces, except Quebec

application process is set out in 29(1) and (2) o can apply within 6 years of the original judgment o certified copy (in English) filed o can be ex parte

29(6) directs that an order for registration MUST NOT be made if BC court is satisfied that… (i.e. going to be registered unless you can convince the court to the contrary)

o a –original court lacked jurisdiction under the BC conflicts of law rules (whether the foreign jurisdiction did not have “jurisdiction in the international sense” – i.e. no real and substantial connection) OR the original court lacked jurisdiction under its own rules (if it didn’t have js pursuant to its rules)

o b – debtor did not appear to submit to the foreign court (i.e. did not attorn) even if had actually been served). This defence only works if you weren’t ordinarily resident or carrying on business in the foreign jurisdiction. (so, just being served isn’t enough).

o c – haven’t been served and haven’t attorned – doesn’t matter whether you are resident or not. This is the “wide open” one.

o d – judgement obtained by fraud

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o e – appeal pending, time is not yet to expire o f – contrary to public policy o g – debtor would have a good defence if an action was brought on the judgement.

Does not mean on the merits of the judgement, but on the recognition and enforcement of the judgement – i.e. natural justice type arguments, fraud that doesn’t fit within d, unusual circs yet to be defined.

Central Guaranty Trust v. Deluca (1995) NW Terr SC FACTS: default judgement in ON, foreclosure of mortgage on ON property, def served in

ON and NW Territories facts very similar to Morguard, with the exception that this is under the Act (whereas M was CL) application to set aside the order was not filed until past the one month time limit imposed by the statute

ex-parte registration. plf did not serve notice of the judgement on the def as required in legislation but the court used discretion to extend that part of the time limit.

eventually the def was notified of the judgement, but didn’t act within 30 days to set aside the registration.

court took the view that there was no ability to use discretion to extend the 30 day period. o note: it is difficult to apply under the civil procedure rules for an extension of

statutory time limits o strict application of the legislation – even though there may have been defences,

def argued that the judgement shouldn’t have been registered in the first place bc hadn’t been personally served in the originating jurisdiction

o act interpreted that “personal service” is not required to be within the originating jurisdiction… includes service ex juris

o note: BC section defines in legislation as both personal service in and ex juris. also argued that the plf’s lawyers had not brought to the attention of the court the cases

that actually favoured the def but… court said that is not enough to decide on merits of this particular fact pattern

recall: statute does NOT displace or replace the CL, is just an alternate route o Morguard – more judgements should be enforced, rather than less principles o

gave the court no reason to read into the legislation a limit that would otherwise not exist! would frustrate the overall approach

HELD: application dismissed (past the time limit to apply to have it set aside)

Moss v. Brown (1997) FACTS: legal services by California lawyer to a BC client for bungy-jumping business,

notice of suit sent to BC, plf from California sought to register in BC ISSUE: was the carrying on business in California for the purpose of the legislation? carrying on business = at the time the suit commences (not when cause of action arose) court did say that even if it was wrong in this, could rely on (c) – personal service hadn’t

actually taken place while Morguard may have changed the CL, there is nothing that is directly relevant to the

phrase “dually served” – the statute itself remains unchanged, although the interpretation may be changed.

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TD Hospitality v. Browne FACTS: plfs in Alberta hired band (Elvis, Elvis, Elvis), k with band’s agent who worked

on the phone, band didn’t show, Plfs sued in AB and went to MAN for enforcement def in Man argued that judgement couldn’t be enforced under the statute bc no carrying

on business within the original jurisdiction and there was no attornmento plf countered that legislation had to be interpreted in light of Morguard – manager

had solicited business in Alberta, therefore was a real and substantial connection, which should qualify as doing business

def denied that M had anything to do with the carrying on business criteria – if you interpret this in such a way, incredibly liberally, then all judgements are going to be automatically registered, so what is the point of the “hoop”

court looks as the cases regarding the concept of carrying on business. In this case, the facts just don’t fit. Browne had never been to Alberta, no fixed place of operation, no regular involvement of a AB agent, didn’t advertise in AB, business addresses, phone numbers etc. listed Man address.

Morguard applies only in the CL – has an influence on the statute, but does not replace ito does not mean that province in barred from enacting legislation that may have

some effect on the recognition and enforcement of judgements from other provinces.

HELD: no enforcement note that the plf can still: (a) enforce at CL or (b) sue in MAN

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