conflicts cans

8/8/2019 Conflicts Cans

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Issue Estoppel1. The binding effect of a judgment as to matters actually litigated and

determined in one action on later controversies between the parties involving a different

claim from that on which the original judgment was based. 2. A doctrine barring a partyfrom relitigating an issue determined against that party in an earlier action, even if the

second action differs significantly from the first one.

Substantive law- The part of the law that creates, defines, and regulates the rights,

duties, and powers of parties. Cf. PROCEDURAL LAW. "So far as the administration of

justice is concerned with the application of remedies to violated rights, we may say thatthe substantive law defines the remedy and the right, while the law of procedure defines

the modes and conditions of the application of the one to the other."Procedural law- The rules that prescribe the steps for having a right or duty judicially

enforced, as opposed to the law that defines the specific rights or duties themselves. --Also termed adjective law. Cf. SUBSTANTIVE LAW

Forum non conveniens [Latin "an unsuitable court"] Civil procedure. The doctrine that

an appropriate forum -- even though competent under the law -- may divest itself ofjurisdiction if, for the convenience of the litigants and the witnesses, it appears that the

action should proceed in another forum in which the action might also have been properlybrought in the first place. -- "Forum non conveniens allows a court to exercise its

discretion to avoid the oppression or vexation that might result from automatically

honoring plaintiff's forum choice. However, dismissal on the basis of forum non

conveniens also requires that there be an alternative forum in which the suit can beprosecuted. It must appear that jurisdiction over all parties can be secured and that

complete relief can be obtained in the supposedly more convenient court. Further, in at

least some states, it has been held that the doctrine cannot be successfully invoked whenthe plaintiff is resident of the forum state since, effectively, one of the functions of the

state courts is to provide a tribunal in which their residents can obtain an adjudication oftheir grievances. But in most instances a balancing of the convenience to all the partieswill be considered and no one factor will preclude a forum non coveniens dismissal, as

long as another forum is available." Jack H. Friedenthal et al., Civil Procedure 2.17, at

87-88 (2d ed. 1993).

In personam [Latin "against a person"] 1. Involving or determining the personal rights

and obligations of the parties. 2. (Of a legal action) brought against a person rather than

property. Cf. IN REM. in personam,adv. "An action is said to be in personam when itsobject is to determine the rights and interests of the parties themselves in the subject-

matter of the action, however the action may arise, and the effect of a judgment in such

an action is merely to bind the parties to it. A normal action brought by one personagainst another for breach of contract is a common example of an action in personam."

Lex fori - The law of the forum; the law of the jurisdiction where the case is pending . -- Also termed lex ordinandi. Cf. LEX LOCI (1).


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lex loci - [Latin] 1. The law of the place; local law. Cf. LEX FORI. 2. LEX LOCI

CONTRACTUS.

Lex loci actus - The law of the place where an act is done or a transaction is completed.

-- Often shortened to lex actus.

Lex causae - The legal system that governs a dispute.

Lex loci contractus -The law of the place where a contract is executed or to beperformed. Lex loci contractus is often the proper law by which to decide contractual

disputes. -- Often shortened to lex loci; lex contractus."The lex loci contractus controls

the nature, construction, and validity of the contract; and on this broad foundation the law

of contracts, founded on necessity and commercial convenience, is said to have beenoriginally established. If the rule were otherwise, the citizens of one country could not

safely contract, or carry on commerce, in the territories of another."

Lex loci delicti- The law of the place where the tort or other wrong was committed. --Often shortened to lex delicti. -- Also termed lex loci delictus; lex loci delicti commissi;place-of-wrong rule;place-of-wrong law. Cf. LOCUS DELICTI.

Lex loci solutionis - Latin "law of the place of solution", The law of the place where a

contract is to be performed (esp. by payment). -- Often shortened to lex solutionis.

Conflict of laws;it is the court of NB looking at its own conflict of laws rules, whether

its dispute should be decided based on the substantive law of Ontario or not.

Substantive Referenceis theNB looking at its own conflicts rules to determine if it

is going to use the substantive laws of another place or that of NB.

Domestic Rule of Decision: indicates the rule that would be applied by the court if

there were no relevant foreign facts of any kind as if the matter had arisen within

exclusively local facts.

INTRODUCTION pp. 1-17

1. Questions Central to the conflict of Laws

- where there are relevant facts that have occurred outside the province, the rules

and principles of Conflict of Laws are used to reach a solution

- Conflict of Laws is concerned with cases where there are geographically complexfacts

- Three problems

o When should the court take jurisdiction in cases with geographically

complex facts?

o When should the court recognize/enforce a foreign judgement?

o When should the court use foreign law to help decide the issue?

- Generally, Conflicts deals with private law


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- Some statute, some common law rules

- conflict of laws vs. private international law

o Common law vs. civil tradition

o Private international law is a better descriptive term

2. Note on the Materials

3. The Purpose of the Materials- two goals

o understanding conventional organization of the law

o examining those rules to see if they are useful predictors of the court

decisions that apply them

- traditional method of analysis English- modern approach incorporates new features and concerns

o fairness to individual parties

o predictively useful rules

o faithfulness to constitutional principles in a federal state (i.e.

interprovincial context in Canada)

- dual focus result in the individual case & development of set of rules over time- Four main areas for conflicts problems

o Substantive law of tort & contract

o Procedural Issues of jurisdiction

o Recognition & Enforcement of foreign judgements

4. Note on Uniform Laws

- international uniform law has been developed in some areas

- this resolves conflicts problems before they arise- despite this advance, common law rules will remain important

5. What is a Conflicts problem?- conflicts case = any case with geographically complex facts

- must allege geographically complex facts in pleadings, plead foreign law

- once it is determined that there are geographically complex facts, you then moveto the analysis of conflicts issues

- fundamental difference between establishing foreign law and establishing the law

of the forum

o call expert for evidence of foreign law

o judicial notice of forum law no evidence

- contents of the foreign law: matter of fact, expert evidence- relevance of foreign law: decided by using the forums jurisdiction laws

o plaintiff argues that foreign law is relevant, how does the court respond?

o Choice of law rules


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Part 1 Choice of Law

Chapter 1 Process and Analysis pp. 18-24

1. Introduction

- jurisdiction; recognition & enforcement; choice of law

- choice of law most important and most difficult of the questions

2. Choice of Law Process- issue raised by choice of law questions: if a Canadian court does exercise

jurisdiction, and it is alleged that foreign law is relevant, what rule of decision

does it apply?

o Forum law vs. foreign law

o Can involve multiple jurisdictions

- domestic rule of decision

o Rule that a court would apply in case with geographically complex

facts

- In some cases a more just decision will be reached by applying a different

jurisdictions domestic rule of decision

- Choice of law process = justifying the decision to apply someone elsesdomestic rule of decision

3. Structure of Conflicts Analysis

- pleadings/preliminary matters

o existence of foreign facts alleged and found by the court as fact

o content of foreign law alleged and proved properly

- if these conditions are met, court proceeds to determining to apply (or not

apply) foreign law

o Is the foreign law relevant to the issues before the court?

- How to analyze the relevance of foreign law to the case before the court

o Characterization

What type of case is it?o Choice of Law Rule

What is the rule for that category of cases

o E.g. contracts = proper law of the contract

o Determining proper law relies on local law question of law, not

fact

- Focus of the dispute = determine which of the competing laws is the proper

law- Tests for proper law of the contract

o Implied Intention Test

What law would the parties have chosen?

Look at connecting factors to the jurisdictions

use connecting factors to determine governing law for the

dispute

forum law vs. foreign law- If foreign law is chosen, it will displace the domestic rule of the forum in

favour of the foreign countrys domestic rule


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- Characterization is very important because it determines what choice of law

rule will be applied

- Goal of the process: predictability and uniformity

o Precisely defined rules help predict the outcome in future cases

o Uniformity result shouldnt depend on the place where the action is

brought


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Part 1 Choice of Law

Chapter 2 Choice of Law in Contract pp. 25-80

1. A Note on Historical Development

- modern development 19th century to today

- based on the idea of legal formalism (law as a science), that has been largely

rejected in all other areas- earliest formulation of contract choice of law rule

o the place where the contract was made l.l.c.

o governing law covers validity, enforceability, and entitlement to

damages re contract

o focus on a single connecting factor

o should lead to uniformity

o this rule has declined in importance, but still one of the connecting

factors that is looked at

o place where contract is made = offer & acceptance

where the last act necessary to make the contract occurs

when the offeror receives notice of acceptance postal exception

- this rule was replaced by will theory of contracts

o intention of the parties

- potential choice of law rules in contracts

o law of the parties domicile

o place of performance

o law implicitly chosen by parties

o law explicitly chosen by parties

o forum law

o

law with the closest and most real connection to the contract- closest and most real connection

o Most modern formuliation of the choice of law rule

Etler v. Kertesz OCA (1960) p. 29P lent money to D in Austria in US$. D was to repay the loan by havingsister in Switzerland give P the amount in US$. Loan not paid, partieswent to Ont. And P sues on the loan. The transaction would be void underAustrian law.

I: Is proper law of contract Austria (place of contract) or Switzerland (placeof performance)?

H: For D: proper law is Austrian.

The proper law of the contract is whatever the parties intended or could bepresumed to intend.


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In seeking to ascertain the intention of the parties as to the properlaw of the contract, in the absence of expressed intention it should bedetermined as the one with which the transaction has its closest andmost real connection.- both parties present in Austria

- contract entered into in Austria- Performed substantial part of contract there

The Assunzione England CA (1954) p. 35A caricature of the traditional approach

P owned cargo on board the Assunzione which they had chartered. It sunkdue to negligence of D, who owned the ship.

I: Which law should be applied to the contract? French law (Ps nationality)or Italian law (Ds nationality)?

H: court does a mechanical counting of connections to find the proper law;does not discuss the contracts issue being contested. This caserepresents a move away from the intention approach; it relies on anobjective approach.

Amin Rasheed Shsipping Corporation v. Kuwait Insurance Co. House of Lords

(1984) p. 40

Good illustration of the traditional c.o.l. process. Diplock says:- Intent: First see what intentions of the parties are: freedom ofcontract, so their intentions should prevail

- Real & Substantial Connection: If there is nothing to indicatewhat the intentions of the parties were, use the real and substantialconnection test: to what transaction is there the most real andsubstantial connection?

No renvoi in contract law

There is no international law of contract (not sure if this casestands for that but it discusses it)

- Summary of the traditional method for solving choice of law problems in

contract

o proper law of the contract

System which the parties intended, express or implied

If not, closest and most real connection

o Formation is governed by proper law

o Capacity is governed by closest connection or domicile/residence


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o Formal validity is governed by place where contract is made or

proper law

o Material/essential validity is governed by proper law

o Interpretation is governed by proper law

o Right and obligations of parties are governed by proper law

o Mode of performance is governed by place of performanceo Discharge of a contract is governed by proper law

2. The Effect of an Express Choice of Law Clause

- standard for contracts to contain a governing law clause

Vita Food Products Inc v. Unus Shipping Col Ltd. Privy Council (1939)

Leading case on exclusive c.o.l. clause in contract

Herring shipped from Nfld. to NY arrived damaged due to negligent

shipper. Buyer wants to sue. Hague rules would limit amt. of damages.Nfld. statute says all bills of lading must have a clause saying Nfld. lawapplies, and P argues that bills of lading were illegal under Nfld. law andso not caught by Hague rules. D says even though bills of lading didntcomply w. Nfld. statute they said law of England governs, and law ofEngland is party to Hague rules so they apply.

H: Court gives effect to c.o.l. clause saying law of England applies.

Give effect to a choice of law clause if its bona fide legal and doesntoffend public policy

- all that a choice of law clause can do is to indicate the background legal

system against which the contract was drafted/made

o cant expand or limit the parties freedom to make deals on their

own terms

- choice of law clause would not avoid the following problems

o fundamental breach

o enforcement of penalties

o fiduciary obligations (agent-principal)

o mistake/frustration

o assignability

- these potential problems are requirements along the line of if bona fide

legal and doesnt offend public policy

o some restrictions on ability to choose governing law

3. Some Further Problems of Choice of Law in Contracts

- limits on the parties implied or express choice of law

- following cases are not good examples of how to deal with these problems


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Ross v. McMullen Alberta SC (1971) p. 59

Relation Between choice of law issues and Rules of the forum

Two Ont. real estate agents go to Calgary to develop property w.agreement to split commission 70/30. P leaves AB after a few months.Sale goes through, theres commission, and D doesnt split it w/ P, whobrings suit for it in AB. Both are bound by another contract sayingdisputes are governed by law of Ont. AB law says you have to be alicensed R/E agent in order to sue for commission.

I: Must decide whether to give effect to the part of the contract thatsays its governed by the law of Ont. The land and negotiations andsale and performance were in AB, but contract was made in Ont.

H: AB law applies: It is the lex fori and is a matter of public policy.

First court says it doesnt think the parties actually meant for thelaw of Ontario to govern (not a bona fide choice), but even if theydid mean it, they cant do that b/c it goes against a mandatory law.

Licensing real estate agents: there is a policy reason for the rule that ifyoure not licensed, you cant sue for a commission. Thus you dontwant people to be able to say their real estate agency contracts aregoverned by the law of some other country w. no rules about licensing,thereby entirely defeating the domestic law requiring real estate agents

to be licensed.

Decide whether a law is mandatory or facilitative. If merelyfacilitative, then it is possible to contract out of it (e.g. SOG Act applies unless contracted out of).

If you cant do something expressly, you probably cant do itindirectly by a choice of law clause

A contract illegal under the lex foriis unenforceable there. To decidewhether a given law of the forum can be contracted out of, determine ifits mandatory or facilitative.

4. Review and Further Examination of Typical Cases

- outline of the choice of law process

o characterization determines if contracts choice of law rule applies

o contracts cases governed by proper law of the contract

various potential choices

closest and most real connection


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o Express choice of law will be given effect if it is bona fide and

legal and not contrary to public policy

o If no express choice, closest and most real connection

Consider all aspects of the contract

o Governed = all aspects of the contract are decided with reference

to the proper lawo Contracts must be localized in one system of law; no unlocalized

or international system of law

Bondholders v. Manville Sask. CA (1933) p. 67

Unenforcability under a foreign law; relation betweenunenforcability and choice of law issues

Facts: D was Sask. woman who signed a promissory note to buy

land in Fla. Later when she was sued on the note by a bondholder,she claimed that she wasnt bound by it b/c women cant makepromissory notes under Fla. law.

I: Whats the purpose of Fla.s incapacitation of women, and howshould that be applied to this case?

Decision: Promissory note not valid.The court looks at policy and purpose behind the Fla. statute: is itaimed at married women? All women?The default position is freedom of contract. The Fla. statute is an

exception to that, but it may not apply.The court finds here that it does apply: at least in the case ofmercantile contracts not prohibited by the lex fori, the weight ofauthority is to the effect that the capacity or incapacity of aperson to contract must be determined by the law of thecountry where the contract arises.

There is a debate about whether or not we can abandonAssunzione and look at the policy and purpose of a statute.

o same choice of law process with a different rule

Charron v. Montreal Trust Ont. CA (1958) p. 69

Facts: Charron died and his former wife sues D, the executor of hisestate, for back payments of alimony under a separation agreementmade in Ontario. Quebec law doesnt recognize separationagreements as valid contracts. D claims law of domicile should


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apply (husbands permanent domicile was always Quebec) and Psays law of place of contract should apply.

Decision: Expert evidence of Quebec law says the contract wouldbe unenforceable. Court decides that the law governing the

contract is the proper law and that is Ont. law: The parties weremarried there and lived there a long time

Imperial Life Assurance v. Colmenares SCC (1967) p. 72

A suit for a cash surrender value in life insurance policy. D entersinto contract w. P while in Cuba. Cuban revolution comes along andfreezes the assets of all the banks and institutions. Colmenares cango back to Cuba and get his $8000 claim, but if he did that as soonas he took it out the Cuban govt will seize it. He wants to get his

money from Toronto, P says to go back Cuba and make his claimthere.

Court uses real and substantial connections test: consider thecontract as a whole in light of all the circumstances which surroundit and apply the law with which it has the closest and mostsubstantial connection.

What court uses in its decision:i) form and languageii) Head office is in Ont.iii) Payment in US dollars mostlyiv) Place of making

Court manipulates the rules a bit.Payment could be made in Ontario.This is really a claim about an unallocated risk in a contract. Sowhat difference does it make what the proper law of the contract is?You could have the proper law be that of Cuba, with the partiesallocating the risk one way, or the proper law be Ontarios w. theparties allocating the risk the other way.

o real issue: which party should bear the risk of loss for this event?

o Requires more than just choosing a proper law

Rail Brothers v. Compania Naviera Sota Eng. CA (1920) p. 78

English P chartered ship to carry cargo from India to Spain


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Just because its an English contract doesnt prevent the court fromlooking at a statute in force in the place of performance. [confirmsthe Dicey rule?] This is similar to Southin J. in Gillespie.

This case doesnt fit into traditional jurisdiction selection rule, but

has been used to stand for the position that issues of mode ofperformance are governed by place of performance.


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Part I Choice of Law

Chapter 3 Choice of Law in Torts pp. 81-142

1. Introduction

- in contracts, rules across jurisdictions are nearly the same

o have to be, because of prevelance of international commercial contracts

- in tort, the differences among jurisdictions are more significanto i.e. fault-based vs. no-fault

- theoretical issues that arise in torts

o criminal element

historically, criminal element to torts

intentional torts

o Fault vs. no-fault

Negligence

Vicarious liability = no-fault (strict liability)

Defectively manufactured goods strict liability in some

jurisdictions

o Social policy

Tort law is influenced by social policy and is used to achieve socialobjectives

2. Summary of the Development of Modern Tort Choice of Law Rules

- major judgement in 1994 SCC- four potential choice of law rules in tort

o place where the tort was committed l.l.d.

generally easy to ascertain, but can be difficult

place of commission is generally held to be the place where injury

occurso place where the act giving rise to injury occurred l.l.a.

most cases, l.l.d. and l.l.a are the same

e.g. not the same in case of negligent manufacture

o proper law of the tort

closest and most real connection

Importing the contracts rule

o Law of the forum lex fori

- Prior to SCC restatement in 1994, Canada employed a double-barrelled rule

o Two conditions

Wrong would have been actionable if committed in the forum (lex

fori)

Act must not have been justifiable in the place where it was done

(l.l.a.)

o Considerable criticism of this rule


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Chaplin v. Boys House of Lords (1971) p. 86

This doesnt represent the law of Canada, and never has. It shows

Englands departure from Phillips v. Eyre, and shows the pros and cons ofeach rule.

Facts: Two Englishmen get into an automobile accident in Malta. Malteselaw wouldnt allow recovery for pain and suffering, so Chaplin sues inEngland.

Wilberforce:

Asks ifPhilips v. Eyre rule is satisfactory and canvases other options:

Place of tort: Two disadvantages: first is the difficulty ofdomestic courts trying to apply foreign law; second the place

where the wrong occurred can be fortuitous: place of the tortcan be a fluke. Also theres the problem of having to decidewhere the tort occurred.

Contact/Interest Principle (Proper Law of the Tort): Looks at theUS where they look at all the factors and the policies thatunderlie them. Wilberforces criticism of this is that there is toomuch uncertainty: the search for relevant contacts and ofweighing them qualitatively against each other leads touncertainty and dissent. Its also difficult to agree on the issue ofthe underlying policy.

o Wilberforce says that the Phillips rule applies unless there is a reasonto ignore the foreign law. Basically within the double barreledapproach, you cant derogate from the law of the forum, but you canderogate from the l.l.d.: in this case, the Maltese government probablydoesnt care whether or not their law prohibits two foreigners from notbeing liable for, or able to recover, compensatory damages. Becausethe two parties were British and lived in Britain etc., the Malteselimitation could be ignored.

o traditional Phillips v. Eyrerule is forum centred

forum rules are almost entirely determinative

can lead to forum-shoppingo UK now has a statutory test for choice of law in tort

l.l.d. subject to exceptions

McLean v. Pettigrew SCC (1945) p. 97

Canadian approach until Tolofson (1945-1994)


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Facts: P is passenger in car. D is driver. They get into a single-caraccident in Ontario, and P brings suit in Quebec. S. 42 of OntariosHighway Traffic Actsays drivers arent liable to gratuitous passengers; Ptherefore wants the law of Quebec to apply, b/c it doesnt have any such

law. P wants to invoke contractual liability of D, but court doesnt buy that.

Decision:Court quotes Dicey rule stated in Philips:An act done in a foreign country is a tort, and actionable as such inEngland, if it is bothi) Non-justifiable according to the law of the foreign country where is

was done;ii) Actionable as a tort, according to English law, i.e. an act which, if

done in England, would be a tort.

In Ontario, this wasnt actionable, but the court gets around this by findingthat Ds actions were contrary to a provision stating that drivers must usereasonable consideration for other persons using the highway: thereforenon-justifiable.

Chaplin v. Boys rejected the gloss of non-justifiability, i.e. it held that theaction must have civil liability in both places, but in Canada we boughtPhillips.

o SCC can take judicial notice of the laws of all provinces

OConnor v. Wray SCC (1930) p. 101

Facts: D is Quebecois owner of car who lent it to the driver, whonegligently struck two women walking on the road in Ont., killing one andinjuring the other. P is husband of the killed woman, he relies onprovisions of Ont. Highway Traffic Actstating that the owner of a vehicle isresponsible for any violation of the Act; there is no such provision inQuebec.

Held: For D.In this case, civil liability would arise for this in Ontario (satisfies first partof old test). This injury isnt actionable in Quebec though (fails on secondpart ofPhilips test)

However, court ignores choice of law rules and looks at the scope ofthe law: Ont. cant impose strict liability on people who arent in orfrom Ontario. If they did create a statute that extends the scope of the


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law to all people, no matter where theyre from, who have theirautomobiles in Ontario, the statute might not be constitutionally valid.

o court could simply have decided that statute was not intended to apply to

Quebec residents

defendant never became subject to the act

o trying to determine which of the innocent parties should suffer the loss +geographically complex facts

very difficult

o no-fault compensation re motor vehicle accidents caused a shift in the law

no causes of action under no-fault

applying traditional rules, Quebec residents (no-fault) could be

found liable in Ont. for Quebec accidents with Ont. residents

provinces respond with legislation, but courts say people can still

bring action in their own province for accidents in Quebec

Grimes v. Cloutier Ont. CA (1989) p. 109

Facts : P is Ont. Resident injured in MVA in PQ by car driven by D.

Decision:Distinguishes MacLean. We only want MacLean v. Pettigrewreading toapply when the parties are from the same province.Looks at many factors, including whats fair between the parties.Applying the Ontario legislation instead of the Quebec legislationwould be officious intermeddling with the legal concerns of a sisterprovince.

o applyPhillips unless it leads to an unjust or unreasonable result

o Phillips ignores important factors

Residence of parties

Insurance background

o These factors become relevant under the Grimes approach

Tolofson v. Jensen; Lucas v. Gagnon SCC (1994) p. 116

Place of the tort rule applies. Some courts have tried to get around thisrule since, but the SCC doesnt leave much room for that.

Facts: P is injured son of driver, who sues driver and other driver for anaccident that occurred in Sask. Sask. had a law at the time that requiredgross negligence to be proved in order for a gratuitous passenger torecover. Sask. also required actions to be brought w/in 12 months; herethe boy brought the case 6 years later, at age 18.


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Lower court in Gagnon basically applied the Grimes v. Cloutiertest to findthat Quebec driver can get the benefit of Quebecs no-fault scheme.

La Forest wipes the slate clean:

Begin thinking about things on the basic level: nation to nation. The

principle on which this is based is territoriality sovereign states get tolay down the law in their territory.

States generally try to accommodate judgments and rules of otherstates: comity. States arent required to be comitous, but usually are.

From the general principle that a state has exclusive jurisdiction w/inits own territories and that other states must under principles of comityrespect the exercise of its jurisdiction w/in its own territory, it seemsaxiomatic to me that as a general rule the law to be applied intorts is the law of the place where the activity occurred, i.e. lex locidelicti.

One exception to this is when a wrong comes from an

interprovincial or transnational activity. In such cases it is uncertainwhat the choice of law rule is.

The challenge then becomes to figure out which torts fall into thecategory with the clear rule set out by La Forest here and which areinterprovincial or transnational.

The other exception to the clear rule here is if the l.l.d. would giverise to injustice; in those cases the court can retain discretion to applyCanadian law to deal w. those circumstances. La Forest says thesecases would be very rare.

Court refers to the Constitution and notes that although this choice oflaw rule isnt dictated by it, and isnt the only one that fits with it, this

rule does have the virtue of fitting with it. VB thinks this is a terrible decision: the purpose of not allowing

gratuitous passengers to sue drivers is to prevent fraud guestpassengers and friend drivers could collude to prove negligence in ano-fault system even where there was no negligence. In this case, theBC govt. doesnt want to heighten the bar so doesnt have anylegislation protecting their govt. insurance co. (ICBC) from beingdefrauded. Sask. doesnt really care about limiting claims againstICBC, so there is no real reason to apply Sask.s limitation as betweena BC resident driver, and his son, a gratuitous passenger in his BCregistered automobile.

Ratio: Within Canada, as long as it is possible to determine the placeof the tort, the law of the place of the tort applies.

Courts have found ways around Tolofson when not happy with the result itwould give

- Tolofson is a rejection of the Grimes approach


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Wong v. Lee Ont. CA (2002) p. 136

Exceptions to l.l.d. rule should be v. narrow

Facts: Passenger sues driver for accident that occurred in New York. Bothwere residents of Ontario, and suit was brought in Ontario.

Decision:

Place of tort should still apply.

Just because the foreign law differs somewhat from the domestic lawdoesnt mean there is an injustice. The exception to Tolofson shouldbe very narrow.

Shuts down exceptions to Tolofson unless the foreign law amounts

to an injustice. Injustice is interpreted narrowly.

Insurance Context

o car insurance policies andInsurance Actoffer a different approach to

inter-provincial torts

o partial legislative reversal ofPhillips; doesnt require actionability by the

forum


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Part 1 Choice Of Law

Chapter 4 Escape Devices pp. 143-182

1. Introduction

- whole structure of choice of law process depends on characterization

- courts will sometimes manipulate characterization to achieve the result they want

- four principal methods to get to the result that the court wantso substance/procedure distinction

o renvoi

o choosing between competing characterizations

o public policy doctrine

2. The Substance/Procedure Distinction

- Canadian court will never apply foreign procedural law

- Only foreign substantive law is applied

o Foreign substantive does not displace the forums procedural rules

- Anytime foreign law is found to apply, the substance/procedure distinction must

be madeo then characterized on the basis of contracts/torts, etc. if question of

substantive law

o or, law of the forum applies if question of procedural law

- procedural differences shouldnt influence the eventual outcome- categorizing laws as procedural negates the actual choice of law exercise

- example of procedural matters

o costs

o who may be a party to a legal action

o remedies in some instances

vested rights principle

o limitation periods

historically, procedural

civil law, substantive

move towards substantive

TD Bank v. Martin Estate Sask. QB(1985) p. 146

D trying to escape liability by trying to characterize parts of forum law asprocedural functional approach

P suing on mortgage made in BC for land in BC, where D resided. Now Dlives in Sask., and Sask. Land Contracts Actsays no action can becommenced w/o leave of court. D says its a procedural law, and if P suesin Sask. court it has to use Sask. procedure.

Another Sask. court said the provision is procedural. The court in thiscase says that the context is different: they used the word procedure,


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but that doesnt really effect whether or not it is actually procedural forthe purposes of this case.

The court sees the purpose of the statute as being related tosubstantive contractual rights.

Must consider the purpose of the statute

Alberta Treasury Branches v. Granoff BC CA (1984) p. 149

D trying to escape liability by trying to characterize parts of forum law asprocedural mechanical/formalistic approach

Facts: D executed chattel mortgage in AB, then went to BC. BC statutelimits the rights of mortgagee to exercise contractual rights. Mortgageecan sue on debt, or seize property and sell it and if there is a deficiencysue under the debt, but only one or the other. So if they seize it and sell it,theyve lost their right to sue for a deficiency. AB doesnt have that

provision.

Decision:D says the governing law of the chattel mortgage is the proper law; musttake BC procedure, so can only seize or sue. The BCCA buys thisargument, b/c they say that it speaks to the method of enforcement. If thestatute said Ds rights were only X, it would have been substantive, buthere since it says how they are to be enforced, the provision is procedural.

Black thinks that this is a bad result b/c if you enact consumer protectionlegislation as BC did here, lenders will make adjustments for it (e.g. ask

for a greater down payment or charge more interest). The Alberta lendersarent limited by such legislation so they wouldnt do that. In this case, theAlberta lenders are suffering b/c they are being treated the same as BClenders, and D is gaining through the protections afforded by the BCstatute: really there is no market adjustment occurring so its unfair to theAB lenders. Probably the court wasnt really thinking about conflict of lawsissues at all.

Block Bros. Realty v. Mollard and Deltra Holdings BC CA (1981) p. 152

P is licensed R/E broker in AB claiming commission for land sold in BC.BC law says a person may not maintain an action in any court unlesslicensed in BC. P isnt licensed in BC, but brings a suit.

Court says law is substantive.

Consider the consequences of characterization: if prosecution isprevented by a procedural rule of the law of the forum, then you cant


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even look to the law of another jurisdiction so any c.o.l. rule saying thatthe substantive law of another jurisdiction applies will be frustrated.

A court should not characterize a rule of law of the forum asprocedural just b/c it is characterized as procedural for somedomestic purpose.

Court also says that legislation should be categorized asprocedural only if the question is beyond any doubt if it couldgo either way, err on the side of substantive.

When thinking about substance/procedure distinction also consider whatthe purpose of procedural rules are.

J.D. Almeida Araujo v. Sir Frederic Becker & Co. Eng. QB (1953) p. 159

Facts: buyer didnt pay for goods, seller gets to claim loss on contract, but

b/c buyer didnt pay, the seller couldnt buy from his upstream supplier.Sellers contract w. upstream supplier had a penalty clause, so now sellerseeks to recover value of contract from the buyer along with the amount ofthe penalty clause. The proper law of contract is law of Portugal, butEnglish courts rules say that recovery for the penalty clause is too remote.So D wants English law of remoteness to be procedural so that it willapply.

H: remoteness is substantive (i.e. governed by proper law of contract)Court says that some questions of damages might be procedural, butremoteness isnt. Dicey says liability for contractual obligations is

determined by proper law, but measure of damages is governed by law offorum. This makes it so that a party could be deprived of damages hewould have gotten under proper law, just b/c he was lucky enough to getUK court to take jurisdiction. This harsh effect can me mitigated if theconcept of remoteness is separated from quantification of damages.

- the more rigid the choice of law rule that is used, the greater the need forescape devices

o for this reason, more applicable in tort cases rigid rule in

Tolofson

Castillo v. Castillo SCC (2005) p. 168

Alberta has legislatively reversed Tolofson:Limitations Act, R.S.A. 2000, c. L-12, s. 12.

One-car crash in California, w. 2 Albertans in the car. CA has shortlimitation period, AB has longer one. Suit is brought in AB, over a year


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after the crash. Section 12 ofLimitations Actsays that ABs law shouldalways be applied, but you never get to ABs longer period b/c Tolofsonsays limitation period is substantive and by applying CAs substantive law,the shorter limitation period applies. Only AB procedure is used underTolofson.This is probably not what the AB legislature intended.

Leave to appeal to SCC has been granted. Black is guessing the SCC willreverse the interpretations that have been applied up until now, and saythat the statute means not even foreign substantive law will apply.

3. Renvoi

- characterization has occurred, choice of law rule has been applied, governing lawhas been selected

- should we ever look at the conflicts law of the foreign law selected?

o Renvoi = making reference to the conflicts rules of foreign law selected

through the choice of law processo Eventually one court applies a set of contract rules, exclusive of any

contract rules noone really knows when it stops

Partial renovoi over and back once (civil law)

Total renvoi three times over (English)

- Renvoi is never used in contracts cases

Re Annesley Chancery D. (1926) p. 172

Example of renvoi being applied

Facts: British woman dies in France w. will valid under English law. There isno limit to testation in English law, but there is in French law: must give acertain amount of your estate to your children. English law says the law of thewill is governed by the domicile of the testatrix at her death: French lawgoverns, and is therefore subject to limitation on testation. However, Frenchchoice of law rules say freedom of testation is limited, but only for Frenchcitizens.

Issue: English COL rules point to France, but French COL rules point toEngland. Which COL rules should apply?

Decision: Court applies renvoi w/o really discussing why it is adopted in succession

even though it doesnt apply in contract or tort.

Court applies domestic law + conflicts rules including renvoi rules.

English court pretending to be the French court looks at English law andthen decides that English law would bounce the question back to Frenchlaw, and stops there.


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Black thinks this decision is questionable b/c France only wants to apply theirtestation law to its citizens; theyd let England apply their domestic law. Butthen the English domestic law goes and uses French law that never reallywas intended to apply to English citizens.

- Renvoi can be useful in certain situations

- exceptions where renvoi may be applicable

o bequests

o title to foreign land

o some cases involving title to movables

o marriage

- applied to make a bequest/marriage valid not invalid

- general view: renvoi does not apply to tort cases

o Australia has gone the other way

4. Characterization- bright line distinctions between different areas of law do not exist

- traditional rules assume characterization is possible and consistent- courts have lots of freedom to decide whether to call something torts of contract

- use characterization to avoid a choice of law rule they dont want to apply

Haumschild v. Continental Casualty Company Wisc. SC (1959) p. 176

Judicial use of characterization to avoid choice of law rules that lead to unwantedresults

WI has spousal immunity rule at this time: spouses cant sue each other fortorts. Tort law says that l.l.d. applies, and the accident here occurred in CA. Dargues that this isnt a tort case, its a family law case, so WIs spousalimmunity rule should kick in.

Court applies law of the domicile characterizes it as an issue of incapacity based

upon family relationship family law instead of tort

Levy v. Daniels U-Drive Auto Renting Conn. SC (1928) p. 178

Connecticut has law where the rental company would be responsible for torts

caused by the operation of its vehicles. Mass. doesnt have those rules. Isthis a torts case or a contracts case? The court calls this a contracts case.

For these cases Black is saying that we are not really equipped to properlyanswer questions of characterization, so its pretty much a crap shoot. Themessage Im getting is that if you get this on an exam, you cant go wrong.


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Castel, p. 204 likes the traditional approach of characterization, anddefends it against the view that we shouldnt characterize, we should justlook at policy.

5. Public Policy

- if the lex causae the result selected by the c.o.l. process is found to berepugnant, then its application can be declared contrary to public policyand the court can refuse to apply it

- comes up in the context of enforcement


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Part II Recognition and Enforcement

Chapter 5 Recognition and Enforcement of Foreign Judgements pp. 183-308

1. Introduction

- a party who has obtained a judgment in a foreign jurisdiction may be able to have

that judgement given effect in another jurisdiction

- recognition = process by which the foreign judgment is regarded as validlydetermining a dispute between the parties

o relevant if the sole issue is the conclusiveness of the foreign judgment

o recognition alone is in issue where foreign judgment is in favour of the

defendant

- enforcement = process by which the foreign judgment is transformed into a

judgment of the forum

- common law - England: foreign judgment creates a debt, you can bring an action

for that debt in the English courts

o criticism of this analysis

o Ont. CA bring an action on the judgment not the debt; subsequently

rejected in favour of traditional viewo Treated like a contract debt

- Rules re preclusiveness (finality) of foreign decisions are similar to the rules ofres judicata in relation to domestic judgments

- Foreign judgment can be enforced through motion for summary judgment

- Even more efficient mechanisms for enforcement throughReciprocal

Enforcement of Judgments Act

o Common law basis for enforcement remains the same

- Morguard - important case re enforcement of foreign judgments

2. Recognition and Enforcement: Common Law Rules

- common law rules re enforcement of foreign judgments were unchanged from 19thcentury until 1990

- 1990: Morguardrewrites the rules

- Not clear ifMorguardreplaces old rules in every situation

- Old rule

o Rendering court must have had jurisdiction in accordance with the rules of

the enforcing court

Personal survice in the jurisdiction

Defendant submitted to the jurisdiction

Unconditional appearance

Submission of a defence

Agreement to submit

Choice of the forum

o Avoid relitigation, promote fairness & justice but clearly not every

foreign judgment should be enforced

- Bases for not recognizing/enforcing the foreign judgment

o Asserted jurisdiction in an unfair manner

Forum non conveniens


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Arbitrary arrest/detention

o Unfair proceedings

Lack of notice

No opportunity to present answer to the claim

Corrupt decision-maker

o Decision was wrong on the merits Applied the wrong conflicts law

Applied the wrong rule of decision

- Canadian approach to recognition/enforcement is narrow

o Did the foreign court have jurisdiction in accordance with our rules?

o The reasoning of the foreign court in taking jurisdiction is not relevant

o Compare the decision reached with our rules compatible?

Henry v. Geoprosco International Eng. CA (1976) p. 192

You have to have submitted on the merits. The question then is how faryou have to have acted in a given jurisdiction before you are deemed tohave addressed the charge on its merits.

F: P says D wrongly dismissed him.Ds arguments:- that AB doesnt have jurisdiction- that AB has discretion and should decline to take jurisdiction forum

non conveniens- this contract has an arbitration clause in it; the whole case should go to

the arbitrator.Canadian court rejects these arguments and enters judgment against D.

The English court, when deciding whether or not they will enforce thejudgment, finds that D submitted enough to AB jurisdiction even though henever argued the case substantively. Even arguing an arbitration clausecan count as fighting the case on the merits.

The standard is not whether or not a party intends to submit, itswhether or not the lawyer did enough to count as submitting.

Black-Clawson Intl v. Papierwerke Waldhof - House of Lords (1975) p. 195

Use of a foreign judgment as a defence to an action brought in anotherjurisdiction issue estoppel recognition only

Facts: Foreign court rules in favour of D. P wants to now sue in NS, and Dwants NS courts to recognize foreign ruling and not allow P to sue again inNS.


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Issue: When using a foreign judgment as a defence youre talking issueestoppel, b/c the foreign judgment cant be regarded as res judicata.There is no certainty that when a court finds in favour of a defendant thatthe case has been decided on its merits. On the one hand, a court could

fully adjudicate a case on its merits and then dismiss the action, but on theother hand a court could dismiss an action based on a technical issue,such as deciding it is not the proper forum to deal with the cause of action.

Discussion:In this case the German court dismissed the cause of action b/c it wasbarred by limitation period. Is this a sufficient reason to not allow P to sueagain? Ger. has short limitation period, but views limitation periods asbeing substantive. German law does the renvoi and says that Englishlimitation period should apply; English law says limitation period isprocedural and bounces back to Germany (I dont even know if I put this

down right).

H: P gets to pursue the claim b/c it wasnt decided on the merits before

De Savoye v. Morguard Investments Ltd. SCC (1990) p. 198

The single most important case of this course rewrites the rules ofenforcement in Canada

Facts: D gets mortgage on house, Calgary housing market takes a dive,and D walks away from the house. P sells it, but there is a deficiency, sobank sues on deficiency judgment. Bank serves D in BC, where hemoved. D ignores service: hadnt submitted in any way, and he wasntpresent in AB when served. [the judgment would always be enforceable inAB, so D can never really go back there, but D is OK in BC]. The SCCsays this is BS.

This is the single most important case well look at; has consequences fora lot of other stuff.

Decision:

Under the old rules (presence, submission) this would not have beenenforceable

Court broadens the old rules using the concept of reciprocity.This can mean two things: (1) well enforce your judgments if youenforce ours; or (2) how domestic jurisprudential practice works: wouldwe take jurisdiction in like circumstances: e.g. if the same thinghappened in BC, would they do ex juris service and hold Dresponsible. Another possible basis for jurisdiction is nationality, but


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thats not good law and it doesnt really apply any more (bottom of p.224).

SCC thinks the conception ofcomity that underlies the traditionalenforcement of foreign judgments needs to be adjusted in light of achanging world order: we should have ready enforcement of

judgments across borders; this is necessary to facilitate trade:accommodating the flow of wealth, skills and people across state lineshas now become imperative.

More importantly though, it was a mistake right from the beginning totranspose 19th century rules applying to judgments from foreign statesinto rules enforcing judgments from sister-provinces. Theconsiderations underlying comity apply w. more force btw. theunits of a federal state.

There are a number of things that make the federal interprovincialscene different from the international scene:o Charter, s. 6: mobility rights people can move, so should

judgmentso Constitution Act, 1867, s. 121 - Common Market

o Constitution Act, 1867, s. 91(2) - federalTrade & CommercePower

o Federal POGG power

o Superior courtjudges are appointed by federal authorities

For these reasons Canada doesnt need a full faith and credit clausein the Constitution like the US does, which requires that all statesenforce each others judgments. The Australian Constitution gives thefederal government power to address the issue of inter-state judgmentenforcement, which it has done. The EC has also moved towards

automatic judgment enforcement: because they have a commonmarket, they have also decided that there is no defence to a judgmentof an Italian court sought to be enforced in England.

There should still be a jurisdictional test though:o Order and fairness - requires that a person not be able to avoid

obligations just by moving to another province (fairness to Plaintiff)o Real and substantial connection the court giving judgment

must have properly exercised jurisdiction (fairness to Defendant: Pcant go to any court to sue).

So you can no longer do the flip that the defendant attempted in thiscase: if AB has a real and substantial connection with the cause ofaction the judgment can be enforced. This adds a huge option:presence and submission are still options, but now also a realand substantial connection is as well assumed jurisdiction

Important Obiter: Service Ex JurisLa Forest also says we should consider using the Constitution to limitprovincial service ex juris rules. If the courts of one province are expected


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to give effect to judgments given in another province, there must be somelimits to the exercise of jurisdiction against persons outside the province.

The US has its full faith and credit clause, but it doesnt have the authorityto enforce broad service ex juris: there are limits on long-arm jurisdiction.

Similarly in Australia, there are no bars to judgment enforcement, butthere are limits to service ex juris so that provinces cant just bringanybody before their courts. The Brussels Convention (EC) also sets outthe maximum service ex juris rules.

If you have enforcement, provinces cant take jurisdiction overforeign defendants in any instance they want: theres a relationshipbetween the original assertion of jurisdiction and then enforcement offoreign judgments.

So La Forest in Morguardmakes the very important argument that not

only should we allow more enforcement of judgments,constitutionally we should limit the legislation that purports to giveoriginal jurisdiction to hear cases in the first place.

Note:Morguardleft it open as to whether the real and substantial connectionrule also applies to extra-national judgments. La Forest pretty much buildshis arguments based on interprovincial reasons. But certain cases haveheld that Morguarddoes apply to foreign judgments. (see note for cases)

Minkler and Kirschbaum v. Sheppard BCSC (1991) p. 213

Applying Morguardto intl judgment;judgment could have been a lotdifferent if rendered in Canada.

Note:The substantial connection test is unclear as to what there must be aconnection between:

o subject matter of the action and the territory in which itsbrought

o damages suffered and the jurisdiction which rendered theoriginal judgment

o

the rendering jurisdiction and the defendanto sufficient contacts the rendering jurisdiction may have to the

defendant or the subject matter of the suit

Note:AfterMorguardmost defendants raise a defence at the jurisdiction stage.There are two options for battling a suit commenced in another

jurisdiction:


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i) Go to the other jurisdiction and say the court has no jurisdictionto hear it

ii) Wait until judgment is issued against D, and then when P comesto Ds province to enforce it, say there was no real andsubstantial connection

Braintech v. Kostiuk BCCA (1999)

R&S connection test not satisfied in online defamatn

Facts: One of the first internet cases in Canada. Braintech is in Texas orsomething, Kostiuk is in BC, and he posts something online that B findsdefamatory. B sues K in Texas, and then tries to get the Texas judgmentenforced in BC.

Decision:

BCCA finds that there was no real and substantial connection betweenthe cause of action and Texas, so they wont enforce the judgment.

D hadnt even shown that anyone in Texas had even read thedefamation.

An argument for thinking this holding is correct is that if you allow acourt to take jurisdiction just b/c the web site w. the defamation isavailable online in Texas, then any court worldwide could take

jurisdiction. There should be a more substantial connection than that. Dubious argument: mode of service.

Provinces can legislate away from Morguardre: internationaljudgments.Sask. and NB have statutes that require pre-Morguardrules toenforcement of international judgments. These dont apply w/in Canadab/c they wouldnt be constitutional. Quebec also has tougher standards.

- Morguard recognition that conflicts cases raise constitutional concerns

o Increased ability to bring in non-resident defendants

- If the assertion of jurisdiction was approved by the Supreme Court, then a

province would have a hard time arguing that it shouldnt be enforceable

3. Judgments that will be Refused Enforcement- old rules: additional bars to enforcement besides jurisdictional issue

- uncertain to what extent these are applicable post-Morguard

(a) Public Policy

- court has the power to exclude offensive claims in order to prevent an abuse

of its process


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o refuse to listen to argument or give a remedy on the basis of public

policy

o impeachment defence

Boardwalk Regency Corp. v. Maalouf Ont. CA (1992) p. 227

At c/l a foreign judgment wont be recognized or enforce in Canadaif it would be contrary to public policy to do so.

Not every legal prohibition raises a public policy defence. Issue inthis case is whether the language of the Gaming Act, apart from itsimpact on domestic contracts, is an expression of public policy suchthat it would be offensive for a court to participate in enforcement offoreign judgment.

Ontarios law against enforcing gambling debts is not based on

public standards of morality and therefore a gambling debt arisingout of a contract in NJ is not unenforceable in Ontario on thegrounds of Public Policy.

Beals v. Saldanha SCC (2003) p. 230

substantial connection test applies to foreign country judgments;status of public policy defence

Possible arguments about impeachment defences:

i) Morguarddoesnt effect impeachment defences:jurisdictional requirement and impeachment concerns areunrelated separate matters in a case.

ii) We should trim back impeachments defences even more,b/c Morguardemphasizes the importance of allowing foreign

judgments to be enforced in the name of comity andreciprocity

iii) We should broaden impeachment defences: we shouldrethink the whole package; weve never really defined theimpeachment defences, and should do so in light of the factthat since before Morguardthe defences were construed

narrowly, now that enforcement has been broadened, weshould broaden defences as well.

Facts: Ds defend one action and are successful, they defend asecond action, but dont defend subsequent amendments, whichare required in order to maintain defence. Eventually judgment isissued in Fla. to the tune of $270,000, at which point they consult alawyer, who tells them to ignore it b/c they havent attorned to the


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jurisdiction (even though this is one year afterMorguardso the realand substantial connection applies). Sideline here is that b/c of thelawyers negligence it is his insurance company that is onSaldanhas side (?) taking this all the way to the SCC.

Decision: AfterMorguardwe shouldnt change our concept of

impeachment defences

Fraud: Narrow

If you allow a broad defence of fraud it will be troublesome

Fraud going to jurisdiction can always be raised as a defence

The merits of a foreign judgment can only be challenged forfraud only where the allegations are new and not the subject ofprior adjudication

Evidence of fraud has to be new and material, undetectable by

foreign court.

Natural Justice: Unfair Procedure

Enforcing court must ensure D was granted a fair process: Fla.judgment fell below Ont. standards, but how different does ithave to be?

Fla. claim didnt say the amount, only in excess of $5000 noindication that it could involve treble damages, punitives, etc. toamount to over $270,000 to account for Ps claim that the modelhome they were going to build on the lot was going to makethem a lot of money

Ds didnt realize that they had to put in a new defence for eachamended statement of claim

Majority holds that you cant put on Ps the obligation to educateDs about differences in procedure

Public Policy: Unfair Law

This defence should be applied narrowly: only injusticesthat offend our sense of morality

The high damages awarded by a Fla. jury, while high, dontoffend our sense of morality.

Dissent:

There is particular concern w/r/t default judgmentsNatural Justice:

If foreign procedure is different enough to result in an excessivejudgment against D, there should be an obligation on P toeducate D on differences that may give rise to the harsh result.

Public Policy


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LeBel suggests we shouldnt enforce US punitive damagesawards in cases where we wouldnt enforce them. We dontknow on the facts whether the Fla court bought the argumentthat the Beals were malicious and high handed etc.

Maybe Cdn. courts should enforce the judgment but trim down

the amount of punitive damages. The majority didnt really address public policy on the punitive

damages.

(b) Foreign Tax Claims

- foreign tax claims wont be enforced and courts will refuse to take jurisdiction revenue rule

- many countries have bilateral tax treaties that provide for reciprocal cross-

border enforcement though

(c) Foreign Penal Claims

- foreign judgment for a fine will not be enforced- area of corporate legislation brings borderline issues civil or penal?

Huntington v. Attrill Privy Council (1893) p. 264

Facts: H lent money to NY company of which Atrill was director. Under NYlaw, any misrepresentation signed by officers of a company made theofficers jointly and severally liable for any damage coming from themisrepresentation.

Held:

The standard of recovery wasnt a fine. The measure was the harm tocreditors (i.e. plaintiffs loss), not the government, so this isnt a claim inthe nature of a suit in favour of the state whose law has been infringed.

(d) Foreign Judgments Concerning Land

- Canadian courts may not enforce a foreign judgment dealing with Canadian

land

Duke v. Andler SCC (1932) p. 267

Facts: Ps and Ds both lived in CA. Ps sold BC land to Ds, who breached

agreement of purchase and sale. P sued to get land back and CA courtordered a reconveyance back to P. Ds refused to convey, so P broughtsuit in BC.

Held:- Cant enforce foreign judgments dealing w. title to land in

province.- Parties in CA would have to come to BC and relitigate.


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- SCC says even if they knew CA had applied BC law they still wouldntenforce the judgment

- The rule here is also that money judgments based on title to landshouldnt be enforced either. Its not just in rem rulings arentenforced, its that anything involving a foreign finding of title isnt

enforced.

This doesnt arise in Canada b/c, e.g. NS wont take jurisdiction to givetitle to land in NB.

4. Enforcement of Non-Monetary Awards

- how should we deal with foreign non-money judgments?

o Declarations

o Injunctions

o Specific performance of a contract

Pro Swing Inc. v. Elta Golf Inc. SCC (2006) p. 270

- sets out rules re foreign non-money judgments

- balance national identity and jurisdiction vs. globalization & increasedmobility of people/assets

- court was asked to change the common law

o common law: prevents enforcement of non-money judgments

o changes must be made cautiously

o we need a new rule, but this is not the case to implement it

- the court recognizes the need to change the rule, but because of problems withthe particular orders in this case they dont do it here

o order is quasi-criminal, etc.

- Dissent

o Similar principle to majority, but different result

o They would enforce the judgment

5. Statutory Provisions and International Agreements

(a) Provincial Statutes

- provincial jurisdiction to legislate re enforcement of foreign judgments:

Property and Civil Rights in the Province

(i) Reciprocal Enforcement Legislation

In force in all the provinces

Product of Uniform Law Conference

The statutes provide a cheaper, quicker way of enforcing judgmentsthat could already be enforced at c/l but not allow for judgments thatwouldnt be enforced at c/l:


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2(1) the judgment creditor can apply to a court for an order for thejudgment to be registered. So the Act just helps save the time andexpense of having to bring an action

The Act contains all the pre-Morguarddefences though:

3 The judgment wont be enforced if:(b) The judgment debtor wasnt carrying on business or residingw/in jurisdiction of original court and didnt voluntarily appear orotherwise submit to proceedings(c) The judgment debtor wasnt duly served and didnt appear orotherwise submit to jurisdiction of the court(d) Obtained by fraud(e) An appeal is pending or judgment debtor intends to appeal (atc/l the judgment has to be final)(f) Public policy says it shouldnt be enforced(g) The judgment debtor would have had a good defence if an

action were brought on the original judgment

This is out of synch w. Morguard. The next statute accounts for that:

The drafters intentionally stayed on the conservative side.

Uniform Enforcement of Canadian Judgments Act

Doesnt depend on reciprocity one province that enacts it will have toenforce judgments of another province even if that other provincehasnt enacted it.

judgment is a final judgment of a Canadian court

Morguarddrew lines between Canadian judgments and otherjudgments; and this Act follows that decision

Only defences are in 6(1):Court can stay or limit enforcement of a registered Canadian judgment if:a) An order could be made by superior court under its rules or

enactment of enacting province relating to creditors remedies andenforcement of judgments

b) Appeal: the judgment debtor brings or intends to bring aproceeding to set aside or vary the original judgment

c) An order staying or limiting judgment is in effect wherejudgment was maded) Judgment is contrary to public policy

This is fishy b/c it lacks the real and substantial connection fromMorguard.


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Its not a reason for an NS court that passes the statute to make an orderlimiting another provinces judgment on the grounds that the otherprovince doesnt have jurisdiction

Drafters of the statute thought that its not a good policy to allow

defendants to lay low when the case takes place elsewhere and thenfight it when judgment creditor comes to defendants jurisdiction toenforce the judgment on the grounds that theres no substantialconnection. Allowing people to do that is bad policy b/c it could cause a lotof wasted time and money if P is successful in foreign jurisdiction but thencannot get another jurisdiction to enforce it. 6(1) essentially requiressomeone to show up in the foreign jurisdiction at the jurisdictionstage rather than waiting for the enforcement stage.

There might be an argument that, b/c Morguardbrought the constitutioninto play, this law if enacted would be unconstitutional b/c it takes away a

defendants right to stay at home. IfMorguardsays that a BC court canthear a case if there is no real and substantial connection, it would beunconstitutional to require a Nova Scotian to go to BC to fight a suit there.The argument is that 6(1) should make reference to real andsubstantial connection

(ii) Arbitration Awards

- arbitration awards are enforceable underReciprocal Enforcement Actin the

same manner as a court judgment

- international arbitration requires minimal state interference- United Nations Convention

o Attempt to balance states domestic interests with the need for neutral

enforcement of arbitration awards

o Implemented in Canada by federal/provincial governments

Schreter v. Gasmac Inc. Ont. GD (1992) p. 296

Application to enforce a foreign arbitration award in Ont. under theInternational Commercial Arbitration Act

H: Ont. court recognized it.

(iii) Other Provincial Legislation- Motor Vehicle Acts provide for extraterritorial application of a license

suspension

- Insurance Acts: attempts to alleviate the strictness of pre-Morguardenforcement

(b) Canadian Statutes and International Agreements

- Federal Court established by Federal legislation enforceable across Canada


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o Court has very limited jurisdiction

- Discussion ofForeign Extraterritorial Measures Act

o in response to broad American assertions of jurisdiction. Givescapacity to AG to make an order that a foreign judgment not beenforced where the recognition or enforcement of it would

significantly interfere w. significant trade and commerce orCanadian sovereignty (s. 8). Also s. 5 allows AG to prohibit aCanadian from complying w. a foreign order; e.g. US legislationtries to tell US companies to get their subsidiaries to not dobusiness w. Cuba, so AG says ignore it.


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Part III Jurisdiction

Chapter 7 Jurisdiction of the Provincial Courts pp. 355-523

1. Introduction

- in any proceeding, the defendant can argue that the court lack jurisdiction to hear

the case

- rules re jurisdictiono statutes

i.e. Divorce Act

o common law

rules re contract, tort and property

more complex

deal mostly with judgments in personam, and not in rem

- courts of general jurisdiction original common law courts in each province

o defendant has to show that the court should not hear the case

- other courts have limited jurisdiction

o plaintiff has to convince the court to hear the case (i.e. leave to appeal to

SCC)- close relationship between jurisdiction and choice of law

o the fact that courts take jurisdiction in geographically complex cases is

what necessitates choice of law rules

o underlying factors should be essentially the same

- all jurisdictions are limited geographically; laws were designed for application

inside the jurisdiction no geographically complex facts

- focus on the criteria considered by the court

- basic position: jurisdiction of any court is territorial

o idea of sovereign ordering someone to appear, have to be subject to the

sovereign sovereignty traditionally seen as territorial

o citizenship was developed later

- anyone who is served in accordance with theRules of Civil Procedure is subjectto jurisdiction

o generally requires personal service

o corporations present unique problems

- four general problems created by geographically complex facts

o are the rules that disable from hearing the case?

o Should the court refuse to hear a case where the defendant is properly

served as a matter of justice/fairness?

o When is a court justified in hearing a case with a defendant outside its

borders?o When will a court enjoing the parties from continuing proceedings in a

foreign court?

2. Rules Excluding the Jurisdiction of the Courts

(a) Personal Exclusions

- principal exclusion: sovereign immunity

o cannot assert jurisdiction over foreign sovereigns


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o applies to jurisdiction & enforcement

- legislation: State Ammunity Act(federal), also provincial

- leading case on sovereign immunity:Re Canada Labour Code

Bouzari v. Iran Ont. Sup. Ct. Jus. (2002) p. 359

Facts: Bouzari used to be a consultant to oil and gas companies, helpingthem get lucrative oil deals w. the Iranian government. He refused to give abribe to an Iranian official, so he was imprisoned and tortured. After payingabout $3 million in fines he was dumped, blindfolded, in the middle of a trafficcircle in Iran. Now hes in Canada

Discussion:- Bouzari has no real and substantial connection to Canada (Tolofson rule),

but court doesnt rely on that fact in dismissing his case.

- State Immunity Acto Doesnt apply to crimes; P argued that his case was penal in

nature, but court disagreed: still a civil suit therefore not criminalproceeding.

o S. 6 exception to commercial activity: P argues that b/c he had topay bribes in relation to an oil deal, Irans actions were commercial

Nature: police and prison activity not commercial in nature atall

Purpose: sort of commercialAlthough the SCC, has previously held that both nature andpurpose can be considered, here the acts of Iran werent even

close to being commercial when all things are considered.o S. 5 exception to torts: this applies only to torts committed in

Canada- w/r/t/ Ps argument that exception should be read into State Immunity Act,

SCC has held that you can look to intl norms to resolve ambiguities in astatute: court looks to state practice, and finds that no other courts in theworld had ignored state immunity in order to allow civil suits in torturecases.

- Charter argument doesnt fly either- A decision on excluding immunity for torture was left to the legislature

(b) Subject Matter Exclusions- power of provincial courts to hear cases is limited by a number of factors

o historically, some provinces couldnt issue divorce

solved by federal Divorce Acto federal legislation may give another court jurisdiction

i.e. Federal Court re admiralty, federal taxation, etc.o cant hear a claim regarding foreign land

may not apply inter-provincially


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Hesperides Hotels Ltd. v. Muftizade House of Lords (1979) p. 378

Arguments by P:o

This isnt trespass, its conspiracy to trespasso There should be an exception where there is no dispute as to claim

of title. H.L. finds that there is no such exception: the original rulegeneralized and didnt allow room for distinguishing cases wherethere is no dispute so that cant be an exception to the rule

o There are exceptions to this subject matter exclusion: you can suea ship that runs into land and damages it.

In Godley v. Coles (1989) Ont. Dist. Ct. the judge decided not to apply theMocambique Rule. This is pretty exceptional, and it was done because toapply Mocambique just wouldnt make sense.

AfterMorguardthere is an argument that Mocambique shouldnt applyinterprovincially, but this argument hasnt won any cases yet.

- Mocambique rule

o No jurisdiction re:

Determination of title to foreign land

Trespass on foreign land

o Exceptions

Court has jurisdiction in personam due to contract, trust or

partnership

Case where action for unjust enrichment met the inpersonam exception Minera Aquiline Argentina v. IMAExploration BC SC (2006)

Administering an estate or trust that includes property in Canada,

as well as foreign land

Jurisdiction in rem against a ship

o Lower courts are sometimes reluctant to apply Mocambique strictly

o Potential for analogy between case dealing with land and copyright cases

3. Other Restrictions on Taking Jurisdiction

(a) Forum Non Conveniens

- serious concerns about forum shopping- this a rule that limits the plaintiffs freedom to choose the forum

o courts will control an unfair exercise of this freedom abuse of process

o basis for interference has been expanded in recent years

- principal issue: should the court be plaintiff or defendant-oriented

o initial position: defendant has to show that the choice of forum was

vexations and an abuse of the courts process


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Moreno v. Norwich Union Fire Insurance Society Ont. HCJ (1971) p. 390

Example of Traditional Forum Non-Conveniens

F: Norwich insured Collins, a US air force pilot serving in UK. Collins killedMoreno, so Mrs. Moreno sues Collins, who is found liable in Illinois courtand so assigns his interest in insurance policy to her. Norwich wont payunder policy (says Collins drunk), so M sues Norwich in Ont., who claimsthe Ont. court is Forum Non-Conveniens (FNC) b/c action brought byparties who live in US arising out of MVA that happened in UK involvingan insurance policy to be interpreted under law of UK would be unjust andan abuse of courts process.

H: Ont. Court is FNC

R: Although a court will not lightly interfere w. a plaintiffs chosenjurisdiction, if the inconvenience of trying a case in a certain jurisdictionwould be a serious injustice to defendant and be vexatious then thecourt can use its discretion to decline to hear the case.

o this restritive test has been relaxed in recent English cases

balance of convenience test

Spiliada Maritime Corp. v. Cansulex Ltd. House of Lords (1986) p. 394

FNC in Canada

F: Ps ships were damaged in BC, and owners of the Spiladia wereLiberian, managed partly in Greece and partly in England. P obtainedleave for service ex juris; suit brought in UK. D argues FNC, but P saystheyd lose a big juridical advantage by not being able to sue in UK b/c suitin BC would be statute-barred.

H:

P must first have founded jurisdiction as of right in the country where

the action is brought.

In order to justify a stay two conditions must be satisfied (one positive,one negative)i) The defendant must satisfy the court that there is another

forum to whose jurisdiction he is amendable in which justicecan be done at substantially less inconvenience orexpense.


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ii) The stay must not deprive the P of a legitimate personal orjuridical advantage which would be available to him if heinvoked the jurisdiction of the forum in which he brought theclaim.

Court distinguishes between jurisdiction as of right and serviceex juris the standard for finding FNC is lower for service exjuris. For (i) above, effect is that in service ex juris cases, despite theBOP (below) the P will have to show that its not an inconvenient forumb/c there will be so much expense and inconvenience to D.

o Burden of Proof:

On D to persuade the court to exercise its discretion togrant a stay

If D establishes prima facie that another forum is moreappropriate, BOP is on P to show special circumstances

that justice requires trial should still take place in the forum inwhich he brought the claim.

o Losing Juridical Advantage: the fact that lower damages wouldbe awarded in the more convenient jurisdiction doesnt count acourt should not be deterred from granting FNC as long assubstantial justice can be done tin the more appropriate forum.

o Note: this case closely connected toAmchem

o This case has been approved by SCC may be differentinterprovincially

(b) Contractual Limits on Forum Selection- international contracts will usually specify a governing law and choose a

forum for litigation/arbitration- two kinds of forum clauses

o agree to submit to a particular jurisdiction but dont specify that this

is an exclusive jurisdictiono confer exclusive jurisdiction on a specified court

- non-exclusive clauseo makes the court competent to hear

o makes judgment enforceable pretty much anywhere

- exclusive clauseo courts dont like it

o wont enforce an exclusive clause in an unfair contract

o otherwise, theyre stuck with it

- courts discretion in controlling forum selection clauses common law -Eftheria

o court is not bound to grant a stay, discretionary power to do so


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o stay should be granted unless there is strong reason not to

o take into account all the circumstances in the case

location of evidence

applicable law, connections between the parties and thejurisdictions

are the defendants just seeking procedural advantages? Would the plaintiffs be prejudiced by having to sue in the

foreign court?o Common law rules were unpredictable and unsatisfactory litigants

need to know the relevant criteria a court will apply- Canadian courts usually give effect to choice of jurisdiction clauses

Z.I. Pompey Industrie v. ECU Line N.V. SCC (2003)

Appeal from Federal Court judgment refusing to give effect to choice ofjurisdiction clause

Facts: contract to ship goods from Europe to Seattle said not to ship by railand included exclusive jurisdiction clause in favour of Antwerp. Shippershipped by rail, breached contract. Action was started in Cdn. fed. court,which decided to exercise discretion and not grant a stay based on theexclusive jurisdiction clause, using the same tripartite test that is used when acourt is asked to issue an interlocutory injunction.

Decision:

SCC overturned fed. court, confirming the strong cause test inEleftheria. Discretion still exists, but should only be used in extreme

circumstances. Parties need contractual certainty

Lower court used fundamental breach as an excuse for ignoring theexclusive jurisdiction clause

Courts have discretion to ignore exclusive jurisdiction clauses incontracts, but should use it only in extreme circumstances. The StrongCause test from Eleftheria applies.

Black:Why not make the rule not discretionary, but rather have a rule that anexclusive jurisdiction clause can only be ignored for a reason alreadyrecognized in contract law that allows courts to ignore a clause in a contract(e.g. unconscionability, duress, fraud).

Even the things taken into account in the test dont necessarily relate tofreedom of contract, e.g. why would the court take into account where the


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witnesses are? The parties may well have known or taken into account theplace of the witnesses when they made the contract.

4. ServiceEx Juris

- aka long-arm jurisdiction

- significant change to common law jurisdiction- first introduced so that leave had to be obtained for any service ex juris

o convince the court this is a proper case to authorize this exceptional power

o courts will be exceedingly careful

- recent expansion in the courts powers: three types of rules

o narrowest: service ex juris only if it fits into a specified category (Alb. &

NL)

o similar to the first, but with a catch-all provision giving discretionary

power in instances where specific categories arent met

o Nova Scotia service without leave anywhere in Canada or US; service

outside Canada or US only with leave

Moran v. Pyle National (Canada) Ltd. SCC (1975) p. 422

Deciding where a tort occurs for purposes of service ex juris rules.

Facts: D was Ont. company that made light bulbs. P lives in Sask., whereDs negligently manufactured bulb killed Ps husband.

Issue: is service actually authorized by the rules?

Decision:

o All constituent elements of the tort must occur in the forum in orderfor an action to lie. The court considers whether the tort occurred inOnt. or Sask. Approaches:

Place of acting

Place of injury

SCC likes Distillers Co. v. Thompson where the P.C. hintsat a real and substantial connection test. It rejected amechanical application of last event theory in favour of amore flexible qualitative and quantitative test. It held the torthad occurred in Australia b/c there had been a failure towarn of possible damage. This failure was a continuing act

that had been made in Australia, and that combined w. thedamage in Australia ended up w. finding for P.

The defendants act which gives the P his cause ofcomplaint must have occurred w/in the jurisdiction.There can be no liability until the damage has beendone.

o SCC concludes: for the purposes of servis ex juris rules, a tort

occurring anywhere that D could reasonably foresee it is fair


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game. If you can anticipate harm occurring there, you canhave committed the tort there.

o Although this test is pretty broad, it doesnt mean that, e.g. everydamage that occurs in Sask. will allow for an action.

o You can see Morguardas a constitutionalization ofMoran v. Pyle:

its reasonable for Sask. to take jurisdiction here; how could youthen say the judgment isnt enforceable? Of course, Morguardtookplace 15 years afterMoran.

Where a foreign defendant carelessly manufactures a product in aforeign jurisdiction which enters into the normal channels of trade andhe knows or ought to know both that as a result of hiscarelessness a consumer may well be injured and it is reasonablyforeseeable that the product would be used or consumed wherethe P used or consumed it, then the forum in which the P suffereddamage is entitled to exercise judicial jurisdiction over that foreign

Defendant.

Robinson v. Warren NS SC Appeal (1982) p. 429

NS service ex juris rules allow service anywhere in North America soissues like the ones in Moran v. Pyle dont arise. Forum Non-Conveniensbecomes much more important though:

P was passenger in Ds car, injured in accident in AB. P returned to NSand served D in AB. D said Ps claim should be struck out on FNC

grounds.

H: For P: Ps action in NS not frivolous or vexatious to D. P lives in NS andthats where medical experts are. Appeal dismissed. Long quote fromCatels Conflict of Laws is pretty good. Things might be different now thatconstitutional considerations are more prevalent (Morguard R&Sconnection)

Note on Actions and JudgementsIn Rem

- in rem: binds the parties to the legal relation established in the judgment and also

binds third parties

o admiraltyo divorce

o any proceeding that decides title

5. Anti-Suit Injunctions

- a form of offensiveforum non conveniens

o enjoins someone from starting or continuing an action in another

jurisdiction


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- bec

conflicts cans

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