Beruflich Dokumente
Kultur Dokumente
Spring 2004
INTRODUCTION
[CHAPTER 1: pages 3-5]
Conflict of laws is the area of law that resolves disputes containing a foreign
element.
Nature of this area
- International in a sense that it is dealing with rules when one state or one unit
that prescribes law can take jurisdiction to a case. And, when it does take
that jurisdiction, what law should it apply
- Has to be contrasted with public IL where there is a considerable body law
that is independent of particular jurisdictions (customary IL, treaty IL, body of
conventions creating IL area that is above all jurisdictions)
- In COL dont have this separate transnational, international body of law
have territorial determinations that take account of the foreign element of the
case. How is this foreign element resolved.
e.g. Family law context - Questions of marriage
- Will state A recog marriage performed in state B
- What are the rules that will determine this recognition
- What if the law or policy in state B is not applicable in state A
- To what extent can this issue be dealt with, to what extent can state As local
law be used
- Same sex marriages significant COL issues not only provincially, but
internationally.
i.e. Emphasises the TERRITORIAL nature
It is international as it involves things that occur in more than one state.
Add to this the distinction between formal and informal relationships
- To what extent will one state recog an informal relationship
- What rules would be applicable to a de facto marriage in some judicial units,
they are treated the same, but not for all purposes (matrimonial ppty)
- This difference is of greater significance when looking internationally in this
context
- Recognition of divorce and nullity
Find a generally accepted principle:
- formal marriages
- informal law relating to the domicile of the parties
Where should it be taught? Under conflict of laws or under family laws? Relevant
Jurisdiction simpliciter
The authority for a court to accept jurisdiction
Determined by legislation or Rules of Court or forum
Largely a Q of civil procedure: Does the court of the particular jurisdiction
have auth to deal with the subject matter
Does it fall within the civil procedure rules
Looking to an interpretation of the rules of Ct to see if it falls within the
jurisdiction of the court
of law in the last 10 years (starting with series of constitutional cases) has been
departed from. The trend has changed from one of non-recognition, to one of
full faith and credit where judgments of foreign courts (in particular US) is
to give recognition. Now it is bad advice for example to stay away from Texas
maybe need to go there and defend that case. Therefore is a signficant
developing area in this context.
Area of public policy
Whereby courts can decline to enforce a foreign judgment When and under
what circumstances should that be done.
Interesting NZ case involving return of indigenous items of culture - attempt to
legislate extra-territorially
- Item of culture happened to be in the UK and a judgment was given against
the party to return the item.
- Went before Eng courts and said the NZ judgment could not be enforced. It
was really a public policy reasoning that the legislature was exercising extraterritorially.
- Infringed too greatly on traditional areas of law
- i.e. goes to what TYPE of judgment
Is an environmental measure an intent to legislate extra-territorially, an attempt to
impose tax, or a matter relating to restitutional property Categorisation of the
case is important but sometimes difficult
3) CHOICE OF LAW
If decide that there is juridiction, and secondly decide that the forum is the most
appropriate jurisdiction, then need to decide WHAT law is to be applied.
In this course, focus mainly on the areas of tort, ppty and contract.
Options:
a) Lex fori: law of the forum (where the case is being decided)
b) Lex loci delicti: law of the place of the wrong or infringement
c) Lex situs: law of the location of the subject matter (not so easy for things
such as copyrights)
Used to solve Substantive or Procedural issues
- Procedural matter is usually lex fori but the difficult thing is what is
procedural matter
CONSTITUTIONAL QUESTIONS
7) THEORETICAL CONSIDERATIONS
THEORY
[Chapter 2: pages 7-26]
Fair to say that in Canadian and Commonwealth terms, there has been a
reluctance to give a theoretical basis to COL more so a conceptual, analytical
approach. However, this may be changing. Real and substantial connection
has been increasingly used. Has been a greater emphasis in US courts of the
theory.
Have a conceptual difficulty in saying we are dealing with an international/interprov or state, that relate to how far one unit can deal with matters that deal with
units of a different jurisdiction. Yet there is no general body of law (unlike public
IL) when dealing with international matters US theorists (and Dicey) have
been trying to resolve this issue.
1) Comity Enlightened self-interest/reciprocality
- Best represents the view of Canada
- Can use comity to find some sort of international harmony or accomodation
between these jurisdictional units in the expectaion of receiving reciprocal
treatment
- Some say it is politeness, one sovereign state is polite to another, but is more
than that, it is an enlightened self-interest
- Dicey in England and Beale in US found this doctrine too vague and
discretionary to explain the mandatory application of foreign law
2) Vested Rights Theory foreign created rights
- Explanation for how foreign law became part of local law
- Local municipal law recognised a right that had become vested in an
individual under the foreign law at a time when the individual was subject to
foreign law
- Better than comity as it explained the mandatory nature of the COLs Cts
had no discretion in recognising vested rights
- Emphasized the individuals entitlement to his or her VR cf Cts politeness or
concession to foreign sovereigns
- Was criticised Only the local courts who would determine the VRs and
doesnt explain why some foreign rights became vested while some did not
3) Local law Theory
- Attempt to explain the national or local character of the COL
- But subject seemed to resemble the allocation of legislative and judicial
authority similar to that of a federal state
4) Government Interest Analysis
- Not simply dealing with rules for assigning legislative/judicial competence or a
conceptual analysis
- Courts consider whether the local law ought to be modified in light of any
Looking at a federation we need to ask whether and how rules relate to the whole
- Is there a role for federal legislation? Is there an overriding role?
CASE 1: Churchill Falls (Labrador) Corp. Ltd. V AG of Newfoundland (1984)
The leading constitutional case dealing with extraterritoriality: Looks at ability of
provincial govt to legislate on matters that may be within the province but might
also have consequence external of the province.
Case was held in substance to be legislation in relation to civil rights (even
though in form it was legislation in reln to ppty all of which was situated in the
province) Question was then as to the LOCATION of those civil rights
Facts
Contractual arrangement in relation to the Churchill Falls river, development of
hydroelectric facility by Hydro Quebec through subsidiaries, to produce cheaper
electricity for popn. Quebec found it didnt need all the electrical supply units and
decided to sell excess off to US at higher price. Said no, they wanted a 61-year
term (till 2030)
Did the derogation of civil rights outside of the province mean the enactment was
ultra vires?
Appellants:
1) Argued that while all that would be taken under the Act is physically situated
within the province of NFL, the effect would be to destroy lawfully acquired
civil rights outside the province any provincial legislation that has
extraterritorial effect is ultra vires
2) Argued the Reversion Act was aimed at the destruction of the rights of HQ
under the power K, rights that were situated outside of NFL. The true
purpose and intent of the legislation its pith and substance, governs the
issue of territorial limitation just as it does in other consitutional cases
involving division of powers.
The Act is beyond the legislative competence of the province of NFL
Territorial limitation on provincial legislative competence is contained in
Constitution Act 1867 s92: auth over ppty and civil rights in the province
Court looked at precedents
Was disagreement in case authorities as to the test which should be applied in
determining the constitutional validity of a provincial statue of ET effect
1) Royal Bank case (1913)
- Facts: Proceeds of a bond issue made by a railway co were held by the
appellant bank. Railway co made default in payment of int and in
construction of the railway line. Alberta govt which had guaranteed the bonds
enacted a statute requiring payment of the $ from the bank into Revenue
Fund of the province. Funds held by the bank in a Montreal account. Bank
refused to pay on grounds that the right to the $ upon default of the railway co
revested in the bondholders and this right was a right outside Alberta.
Held that any prov enactment which is not wholly confined in its effect
to that province would be therefore ultra vires
- No differentiation between statutes which are directed at extra-provincial
rights and statutes which only incidentally affect those rights.
Where the P&S of the provincial enactment is in reln to matters which fall within
the field of provincial legislative competence, incidental or consequential effects
on extra-provincial rights will not render the enactment ultra vires
Where the P&S of the enactment is the derogation from or elimination of extraprovincial rights the, even if cloaked in proper const form, it will be ultra vires
Lord Atkin a colourable device will not avail.
HELD: The Reversion Act is a colourable attempt to interfere with the
power K and thus to derogate from the rights of HQ to receive an agreed
amount of power at an agreed price
It was more than an incidental or consequential impact (prima facie ultra vires).
However also held that although it effects extra-provincial secured creditors, it is
incidental in nature, and in accordance w Ladore, would not be grounds for
declaring the Act ultra vires.
Finding the Act was aimed at the rights of HQ, must also show the K rights
attacked are in Quebec, beyond the jurisdiction of the legislature of NFL
i.e. Next issue is determining where the rights are situated in the contract
-
More difficult Q in general terms. Easy in this case bc K itself stipulated that
rights under the K would be situated within the juris of Quebec and choice of
law clause said it would be Cts of Quebec that would adjudicate any disputes
General rule: Rights under Ks are situate in the province of the country
where the action may be brought
Problem: The chq came from the Federal Crown (Ministry of Employment), so if
apply conflicts rules analogy (of debtor paying salary) in interpreting the Indian
Act, location is not on the Reserve no immunity under s8 of Indian Act
Q for Ct was whether they were to apply the conflicts rule to this case
- Cautionary word to tell us that the Ct today may not always be willing to take
advantage of set COL rules, when in a different context.
- Is reasonable for the general purposes of conflicts of laws, however had to
enquire as to the utility for the purposes underlying the exemption from
taxation in the Indian Act
- Ct also said were dealing with a different context which will nec bring about
diff policy considerations that dont come up with debtors or even employers.
Should not be bound by this.
- If use too widely, may have consequence that have to use this in a set way
(cant change the conflict rule for fear of upsetting other areas of law)
conflict law will be locked in
Comment by Prof Howell: One needs to look at sitn which is illustrated in
Churchill and Williams.
- Churchill was also very focussed on location of rights (have to look at COL
rules in this case).
- Williams was a little more removed from the regular conflicts situation
CASE 3: Morguard Investments Ltd v De Savoye (1990)
SC employed federalism principles to create new rule for recognition and
enforcement of judgments interprovincially. The rule was expressly stated to be
a CL rule as the case was not argued in constitutional terms, but the nature of the
discussion was such that it provoked speculation as to its const status.
Facts:
Concerns the recognition to be given by courts in one province to a judgment of
courts in another province, in a personal action brought to the latter province at a
time when the D did not live there.
Morguard Investments was mortgagee of lands in Alberta. Appellant who was a
resident of Alberta was the mortgagor, and subseqently moved to BC.
Mortgages fell into default and Morguard brought actions in Alberta. Appellant
took no steps to appear or defend the action. Mortgaged properties were sold but
werent enough to cover the full amount.
Issue: Could judgment of Cts in Alberta be enforced against the appellant in BC?
Also:
- Biggest downfall in the Churchill - to what extent were they talking ET?
- How far should the principle in Morguard be applied in a truly intl situation?
Interprovincial matters
Obvious intention of the Const is to create a single country one of the
central features of the Const Act 1867 was the creation of a common market.
Promotion of mobliity, common citizenship, social and economic stabilty.
i.e. Need for cooperation between provincial courts in terms of enforcement of
judgments
Various const and sub-const arrangements and practices make
unnecessary a full faith and credit clause that is used in US and Aust where
each state will give full faith and credit to the judgment of another:
1) Judges are federally appointed and federally paid. Therefore is little risk
that one judge would be more qualified than another (quality and
consistency of judgments)
2) SCC as final court controls all provinces within their respective units
3) Canadian lawyers all adhere to the same code of ethics
4) Proliferation of interprovincial law firms
Morguard corrected this posn (wasnt inherent until then)
Speculation by La Forest that there is legislative provincial power under s 91(2)
the POGG clause which gives federal Parl powers to deal with interprovincial
activities
Ability for federal legislative intervention to deal with this Q of conflicts
issues between the provinces of Canada.
The rules of comity or PIL as they apply between the provinces must be
shaped to conform to the federal structure of the Const.
Where other areas of law are looked at, in particular a case where there is an
injunction to move assets to another province to avoid jurisdiction, rules should
recognise that they are entities within a whole and functions should not be
defeated by the fact that they can turn to another jurisdiction.
A person should not be allowed to avoid legal obligations arising in one province
simply by moving to another province.
La Forest says there some limitations and qualifies full faith and credit
- Has to be weighed against fairness to the defendant
- Courts in one province should give full faith and credit to judgments given by
a Ct in another province so long as that Ct has properly or appropriately
exercised jurisdiction in the action.
- Meet demands of order and fairness to recognise a judgment given in a
jurisdiction that had the greatest or at least significant contacts with the
subject-matter of the action
- Proceedings may have been brought where has no relation to the situation at
hand and here a qualificatio has to be made
The jurisdiction must have some significant context or relevance to the
dispute, and if it doesnt then the jurisdiction hasnt been properly taken
therefore enforcement doesnt need to be made
Ct also takes note of the fair process but every province has a fair process
(only look at this if an international case)
TEST:
Whether there is a real and substantial connection between the petitioner and
the country/territory exercising jurisdiction
Applying the RSC test to this case:
- Reasonable place for the action for the deficiencies to take place in Alberta.
Land in Alberta = very substantial connection, lived in Alberta and was in
business in Alberta
- RSC connection between the damages suffered and the juridiction
- Proper that Alberta Ct had jurisdiction, enforcement of judgment in BC is reqd
Forum shopping is prevented against by this test.
Constitutional element
Even if civil procedure rules give jurisdiction, if rules are worded too broadly and
can be read where there is no RSC, then will not be allowed constitutionally.
E.g. BC Rules of Court 13(1): Specific circumstances for servicing documents.
Rule 13(3): leave to service outside jurisdiction
Applying Morguard to these principles, if Ct exercises discretion to give exservice jurisdiction, then this exercise of discretion is then ultra vires (as there
is no real or substantial connection).
In the case of service outside of the issuing province, service ex juris must
measure up to consitutional rules (ie RSC).
Recent Development: Beals v Saldanha [2003]
- 6/3 majority, dissent very strong
- Issue: Whether RSC test for enforcing interprocincial judgments should be
extended to foreign judgments (Florida judgment to be enforced in Ontario)
- Held: Judgment of Florida court should be enforced RSC between the
Florida jurisdiction, the subject matter of the action and the defendants
- Dissent: Need to modify RSC test significantly when applied to judgments
originating outside Canadian federation.
- Provincial legislature and federal initiative could change what the
majority was stipulating in relation to a foreign judgment (POGG)
- Uncertainty after Morguard: did La Forest really mean it to be constitutional?
- Historically, regard whole area as judge-made CL, in Beals it wasnt decided
constitutionally, but with Hunt it became clear it was constitutional
- Legislative rules, like in Churchill and Hunt, didnt meet constitutional
requirement (involved legislation for ultra vires action)
Other discretionary techniques used by Cts to refuse granting jurisdiction to Ps
whose contact with the jurisdiction is tenuous:
- forum non conveniens (test in conflicts thats been around for years vs. RSC)
- power of Ct to prevent an abuse of its process
TWO PART PROCESS
1) Determine RSC for jurisdiction
2) Second test of jurisdiction is the forum conveniens test (we have
jurisdiction, ought we do so in this particular case)
If there is a better forum elsewhere, what weight do you give to the discretionary
jurisdiction? It seems after Beals, that there should not be much. Last
paragraph: There maybe other disc techniques of refusing to grant jurisdiction
Dealt with incidentally. Beals doesnt deal with it either.
What if foreign ct had RSC but another ct in another juris had a better RSC?
Or was more appropriate in terms of forum conveniens?
How much is this to be taken into account?
-
Some say RSC is all consuming: if have RSC then will be the most
appropriate court
In Beals the Ct says RSC has to be SUBSTANTIAL (emphasis on this fact,
ie it encompasses forum conveniens)
Historically, FC gives more weight to the convenience of the parties and is
focussed on particulars of case
Possibility raised in Mortguard La Forest POGG could cover this where fed
legislation and inter-prov and arguably intl context
- Applying reg constitutional principle: supremacy to the FEDERAL law
Another possibility left open is the due process s 7 of charter effect on
jurisdiction. No development of this. In US const, the due process clause is
used in such a way that need overriding test of connection to be met.
Suggests application of const will extend from inter-prov to the intl context
SUMMARY OF CHAPTER
1) CONSTITUTIONAL DIMENSION
Morguard (1990)
- Is a question mark
- RSC requirement in terms of enforcement interprovincially
Hunt (1993):
- Provincial legn constitutionally inapplicable in the interprovincial context
- Didnt extend to the international context
- Internationally a province can legislate, whereas in a interprovincial case they
cannot
- Cant pass legn that would impinge upon the rule stipulated in the Morguard
case interprovincially a judgment of a province is enforceable in another
province if there is a RSC.
- After Hunt more considerations have to be made as to order and fairness
2) NO CONSTITUTIONAL DIMENSION
Beals v Saldanha (2003)
-
Uncertainty as to how far these series of cases, esp Mortguard, were to apply
to cases of intl context If they were to apply, what was the const dimension
On Dec 18, the majority (Major J) RSC and the principles of Mortguard are to
apply to truly intl context
Enforcement of Florida, Miami case in Ontario
Dissenting judge: 3 of them, divided up into Binney, Ecabuchi no problem
with applying RSC test internationally, BUT defence of failure to meet
principle of natural justice and LeBel
LeBel J provided an interesting perspective said if we are to liberalise the
rules of enforcement by extending Mortguard to cover truly intl sitns, then we
must firstly modify the RSC test to give due weight to protection of Canadian
defendents specify the restrictions in a foreign context in addition, need to
build up defences natural justice etc.
Need a more real RSC. More careful and stronger defences to that. Majority
didnt change any of the defences
Should we legislatively build up the defences (2 ties interprovincial and intl)
J Lebel thought this was essential
Legislatures may deal with this if they wish
Potential use of Charter s7 has been left open in Morguard and Beals (only
that it would not be a shield to protect from enforcement of financial judgment
of a foreign jurisdiction)
All these judgments emphasise comity and as such, the underlying theory in
COL in Canada
Found the measure of recovery was the same amt expended in the clean-up
In characterising the environmental statute, wouldnt categorise as penal law
only used to reimburse and compensate for what the co. had an obligation
to do (clean up), not a punishment or directly designed as a deterrent
2) Revenue law
- Ct again said it wasnt hadnt precisely been defined, but was not made to
raise money for govt, was for the reimbursement
3) Other Public law
- Murky area, est in some measure in certain jurisdictions but hasnt got full
recogition (not mentioned specifically in the Beals case)
Oritz case: NZ AG seeking to enforce in UK a statute that was designed to
prevent cultural items from being taken. UK did not have to enforce the judgment
- Lord Denning in Eng CA considered this sort of legislation to recover ppty ET
by extending NZ political public policy ETly outside of their jurisdiction
- Like Churchill falls type of case, is ultra vires
- Lord Ackner said no residual category HOL decided on other grounds and
didnt comment on Dennings formulation
- Not enforced as seen as an attempt by a foreign state to assert its
sovereignty within the territory of another state
- Saying it is a novel scenario seen outside of normal ppty law situation
- If it was a chattel based on normal ppty law, would be based on normal ppty
law principles. Said it was a declaration by NZ govt of their policy through
their legislation
- Didnt want to enforce the public law of another jurisdiction
Heinemann Publishers Spycatcher case: Australian case argued as military
and security breach (larger public interest). Not enforceable as private interest of
a foreign state (govt interest). If it was a case of trade secret then it would have
been enforced.
Q in Ivey: Extend the public law defence OR treat it as enforceable?
- Prima facie would say its not traditional, a new method of doing things and
hence should not be enforced.
HELD: Enforceable because:
1) It didnt deprive persons of ppty held (as in Oritz), was simply a restitution for
clean-up
2) Was not a national security issue (envtl issue not like in Spycatcher)
- Bolstered this by finding that the type of law that was before it was the same
type of law that Ontario and other parts of Canada had.
- Ct looked at comity and reciprocity: was in interest of governance that this
type of law should be enforced. US courts were enforcing same cases when
envtl damage was occurring outside of their borders
Why should we have this other category, shouldnt it be wrapped into public
policy?
1) NATURAL JUSTICE
- NJ head relates to procedural issues not prepared to extend the principle
to matters that had occurred prior to the court (earlier proceeding in nuisance)
- Ct said this would not be looked at in terms of NJ offence. Indications were
that the US court had looked at this issue, and at best might be categorised
as US court making an error but Ct said error of law was not a ground for
refusal of enforcement
- NJ only concerns procedure before and during the foreign courts judgment,
not matters that preceded this judgment
Debate over extent to which, when looking at public policy, we should take into
account intl stds OR should there be a focus on national standards
e.g. Civil Code of Quebec standard is: manifestly inconsistent with public order
as understood in international relns
CASE 2: Kuwait Airlines Corp v Iraqi Airways Co [2002]
Iraqis seized Kuwaiti airplanes and flew them back to Bhagdad
Brought proceedings in UK against Iraq carrier
A number of issues:
- Property rule of lex situs, law of the country where the movable was
situated at the time of the transfer - was situated in Iraqi apply Iraq law
- Double actionability rule was in force in UK needed to be conversion in
UK and Iraq, which there wasnt
- Focussed on upon obligation of UK court to enforce Iraq law as stated in
IRCs resolution
- Issue: Whether they could say they disregarded the IRCs resolution,
even if it was lawful decision in Iraq, due to PP of Eng
- Took account of intl law and resolutions of the Sec Council, as well as
customary intl law (under which Iraqs actions were illegal)
- Could extend PP to take the international law regime into account
- HELD: The resolution wouldnt be given account to
- Reasoning: Very clear international standard - wrongful invasion, contrary to
many intl conventions. As a member of UN, Britain was bound by obligations
to the UN Charter which was internalised in their PP.
- Had to move with the times thinking back to Ivey, other public laws is a
feature of modern public society
- Intl law can be looked for PP at BUT only if it is part of the PP in that country
i.e. it incorporates these dimensions of the intl law in that domestic regime
External criteria can be utilised as long as it can be demonstrated that
-
these elements are part of the forums jurisdictional policy of the law
Abstract or Relative Standard?
Liberalisation of recognition for enforcement of foreign judgments, should mean
more concern with the public policy reasonings (LeBel in Beals)
CASE 3: Society of Lloyds case (p74)
Facts:
Lloyds has unlimited liability and gets contributions from Names who guarantee
to underwrite. Were large claims due to envrionmental asbestos cases and
Lloyds were forced to call upon contributors for more money. Eng could make
new rules that would bind contributors (all around the world) to the Society the
contributors knew all this upfront K stated would be Eng jurisdiction.
Enforcement was to be made in Ontario. But was it contrary to Ontario law? Or
unenforceable as contributors not given adequate info.
-
to Canadians.
HELD Judgment was enforceable - Reasoning:
- Even the most fundamental forum policy (protecting citizens from solicitation
without investment information) must give way to overriding private and public
interests (protection of the intl insurance mkt)
Tolofson: Forest placed order above fairness as guiding principles of PIL
- Although it was against PP of Ontario, and even though it was fundamental
different, was distinguished bc of the nature of lawyers
- Prospectus requirements are there to protect general members of the public,
not really the sort of people who are named contributors to Lloyds (very well
off, likely to be a very well-informed person).
- Contributors are likely to have access to good accounting and legal advice,
know what is going wrong and is able to assess the risks adequately
An abstract or relative standard
- Look at policy in the context of the particular case
- Can also add the connection with the jurisdiction of judgment
- Here there was a substantial connection with England - had to travel to Eng
to execute K and had a clause stating the jurisdiction to be UK
1) Enforcing forum may have a mandatory rule, so despite any choice of law
rules, a particular enforcing forum may stipulate that legn may apply to all Ks
or proceedings as a prereq to enforcement
e.g. Applies to all shipments in a Canadian port
Q: Is this constitutional? (taking into consideration Morguard and Hunt).
- Hunt said btwn provinces, Quebec rules couldnt be enforced on other
provinces. But could be possible in foreign case.
- In Beals, Ct was saying that it is subject to any federal laws
2) Mandatory rule which states that a specific foreign law, which bears a
special connection has to apply
Public policy operates positively so as to support the recognition or application of
an otherwise inapplicable foreign law positive invocation of puclic policy
Gillespie Management Corp v Terrace Properties
According to Washington law, non-resident broker had to have a licence to act as
real estate broker. K called for perfomance of acts in Washington - law of the
place at which the obligation is to be performed claim unenforceable
Southin J had different reasoning:
- Said the ct should give effect to a foreign public policy analogous to own
domestic policy
Extension of foreign sovereignty: no other country has the right to execute the
penal laws of another.
Some states claim a territorial auth to regulate the same events or activities,
as in the case of transnational crimes conflicts criminal jurisdiction
Canadian Criminal Code: Cts have auth over any crime that bears a RSC to
Canada, whether or not territorial jurisdiction is also available in another state.
(Similar to Morguard test)
Characterisation & Enforcement Aspects
Ivey: View of punishing the party responsible (not restituionary). The fine went to
the state, ie penal, but state was getting money as reimbursement of the amount
they had spent
Huntington v Attrill [1893] - Definition of penal law
- Concerned a NY statute: certificate or report made by offices of corporation
that is false in any material representation
- Huntington brought an action on the NY judgment in the Ontario HC where
Attril resided Attril argued was based on foreign penal law
- In order to come within the scope of the rule, the proceeding must be in
the nature of a suit in favour of the state whose law has been infringed.
(Didnt matter in Ivey as it was restitutory)
- Here, the money didnt go to the state was distinguished as it went to the
individual creditors (provisions protective and remedial in nature). Constituted
an implied term of very K between corp an its creditors
- In Ivey, it was the state seeking recovery, and in this sense one of the factors
from Huntington was modified in Ivey
Whether it is penal in nature: Is the wrong sought to be addressed is a
wrong to the public or to the individual?
Whether it is a penal law in an international sense: Is its purpose is to
punish an offence against the public justice of the state, or to afford a
Indirect enforcement
Stringham v Dubois
- Deceased was resident and domicile in Arizona
- Strong finding that she was a resident and domicile (strong desire to live in
Arizona) real and substantial connection to Arizona
- Had an US executor, US levies estate duties
- Left an Alberta farm to her niece, total value $9.4m
- Executor was apportioning US state tax and wanted to take tax - $149,000
apportioned contribution to state tax
- HELD: Not allowed, would be indirect enforcement of US tax
- Not distinguished bc it was a piece of land in Alberta, was a matter of policy.
- Strong argument for enforcement: becomes a double windfall for niece, and
other beneficiaries/trustee are burdened with more of the share of the tax
- Tax was estate duty of a person domiciled in Arizona. Alberta farm was tax
Facts:
- Died in Vancouver, 2 children challenged validity of will alleging testamentary
incapacity and undue influence Alberta & BC both have jurisdiction, so
need to look at domicile
- Chose to reside in Vancouver, but kept penthouse in Calgary, lived in both
places where was the most appropriate place, forum conveniens?
- Had links to both cities
Test: Domicile is defined as a persons permanent home which requires the
act of residence and the intention to remain there permanently
- You cant have domicile in more than one place
- Have a concept of domicile of origin and a domicile of choice
- Was accepted that their DOO and previous DOC was Alberta but was it
superceded by DOC in BC?
HELD: Alberta was the appropriate forum
- Looking at factual context, current domicile at the RELEVANT TIME Ct said
it was the date of death (rule in terms of immovable ppty) most say when
the will is made
Considerations:
- Ordinarily medical treatment is focussed on your place of residency
- Also important are relationships, where business is carried out
- A difficult question to decide either way weighting of factors
- Evidence as to what he said to people
Interesting legal question if was brought before a BC court divergence of rules
questions of domcile should be determined lex fori ie rules of BC
- Domicile of choice, until abandoned factually (Abandonment rule)
CASE 2: Re Urquhart Estate (1990)
Facts
- Frequent flyer case: Left NZ bc of breakup of 1 st marriage (NB reason can be
important), travelled the seas, journalist in Vancouver, NZ embassy in States,
moved to Ottawa, son born, separated but went back and forwards from
Quebec (but were regional excursions and not relevant in this context)
- Although he lived and worked in a no. of places, he had a room where he
kept his things and was his mailing address
- Met Taylor and lived in her apartment in Ottawa, went to Washington with her
for work, he was transferred to Florida and died there
HELD: Domiciled in Ontario
Reasoning: Ct looked for some intent to stay permanently or indefinitely
1) Florida, Washington location was focussed on his job, NY wanted to
move there but had no green card extension
2) Quebec only recreational excursions
2) RESIDENCE
- Is the connection more substantial than that exists in any other country?
- Did the person have roots here, visits or return?
HELD: Despite acquisition of formal indicia (drivers license etc) quality of
residence in Canada is NOT more substantial than the quality in HK
- Context, in this case was very important in reaching this conclusion
Domicile of Corporations
CASE 3: Natural Trust Co. Ltd v Ebro Irrigation and Power Co. Ltd
Place of incorporation, is where governance issues are to be determined
Also where the co. is carrying on business (distinguished from internal
governance issues) is a connecting factor when determining when an
extraprovincial corporation is subject to local regulation
Recap:
Remembering earlier principles esp in relation to:
- Consitutional validity on an inter-provincial basis
- Beals: Internationally, constitutional issues are not of concern
- depended on absence of provincial or federal legislation under s91
residual auth POGG
- consistent with Hunt (Quebec code was inapplicable, not ultra vires)
The chapter is clear that it is not dealing with jurisdiction in rem.
Have to be careful that it is LAND not just incidental to a contract involving land
- In administrative law, when dealing with a Q of breach of admin law, you will
be dealing with a governmental body
- Comity has said it will be left to the jurisdiction of that bodys country
- Seen as a sovereignty issue
JURISDICTION IN PERSONAM
Juris simpliciter
The existence of jurisdiction
Can the court take jurisdiction under:
- Provincial/rules
- Common law (RSC)
- Inter provincial/Constitutional element (RSC)
If there is jurisdiction:
1) Should jurisdiction be taken - principle of forum non-conveniens
(Anti-suit injunction)
2) Is the party a jurisdic entity
a) JURISDIC ENTITY
Incorporated entities
Corporation sole Crown, Bishop
Corporation company
Unincorporated bodies/institutions Look to the members more individually
Other jurisdictions have taken a broader meaning of legal personality for
Court can questions or raise issues with experts, cannot conduct and rely on
its own researches into foreign law
In the absence of any contrary evidence, assumed same as English law
If there is concliting evidence, Ct is bound to look at sources to decide
HELD: Under Hindu law the temple was a juristic entity and the third
claimant had the right to sue and be sued on behalf of the temple
Eng law would not usually recognise corporations as having legal personality.
BUT Eng Cts would recognise in this case according to principles of comity
Application to interprovincial cases
This principle has never been applied with such strictness in cases of
interprovinciality. Hunt suggests courts can rule over laws if applied strictly, it
would apply interprovincially
CASE 3: Re Indian Residential schools [2001]
- Evidence relied on by claiming Ct was a tape put out by the Catholic church
- Alberta court didnt rely on the church
- Doesnt mean they would rely on them
CASE 4: International Assn of Science & Tech for Devt v Hamza (1995)
When you have a website and are selling material outside of Canada, are you
carrying on business in Texas if:
a) Website is accessible from Texas
b) Have interactive conversation from Texas
c) Actually sell an item to someone form Texas
- US authorities said you would be subject to Texan jurisdiction for allbut then
realised that this was silly!
- Now just say if you have sold something into Texas, then they are subject
to Texan consumer protection laws (same in Manitoba)
- What is more difficult is being interactive because there is not sale, it will
come up as something like defamation
- HC of Australia enabled jurisdiction for one of its citizens defamation in New
Jersey Dow Jones argued it was uploaded in NJ, but HC said the impact
was in the state of Victoria, Australia have jurisdiction
HISTORY
(i)
England
- Eng legislation let courts have ex juris powers to assume jurisdiction even
when the D could not be found in England and served there
- Subject to some limits - link between cause of action or parties and Eng
COMMON LAW TEST FOR EX JURIS
1)
Establish there is a good arguable case/serious issue to be tried on the
merits
2)
Case has a connection as defined under Rules of Court
3)
As a matter of discretion that it is forum conveniens
(ii)
Canada
- Same position in BC and Ontario and Alberta
- Most provinces have used Eng rules AND Morguard case
Interpretation of Morguard
1)
2)
3)
Taking this approach, would favour a D on the receiving end of the action
Arguably, closer to personal subjection approach cf admin of justice approach
2) Muscutt case
- Didnt take away from traditional grounds, but saw RSC as more supplanting
the traditional focus
- Would acknowledge that RSC is a limitation but utilised it in an expansive way
- Conclude that it would benefit the plaintiff (continuing harm was a RSC)
- Whether looking at:
1)
Administration of justice perspective: At jurisdiction simpliciter level, is it a
reasonable place to litigate
2)
Between the parties approach (similar to US due process clause): Where
would a P reasonably contemplate whether he or she would be sued
RSC is not defined and has to be interpreted flexibly. However there is a need
for some sort of clarity and certainty which has to be balanced against flexibility.
FACTORS PROVIDING CERTAINTY (under the admin of justice approach)
1) The connection between forum and Ps claim
- Important interest a state has in injuries suffered within its territory
- Stretches Moran case which looked at the contemplation of the parties (if you
produce products that are defective, you should contemplate it would cause
injury in a number of places)
- Close to personal subjection case consequential, continuing injury after time
of impact (Strong P-focussed connection)
- P reqd extensive medical attention in Ontario significant connection
2) The connection between the forum and the D
- If D has done anything within that jurisdiction that bears upon the claim
advanced by the P, then case for jurisdiction would be stronger
- In this case, D had no connection with Ontario
3) Unfairness to the D in assuming jurisdiction
- One of the key points that persuaded the court (esp re interprov and intl)
- Ct empasised fact that it was the insurance industry that was involved in this
litigation. Risk fell on insurer of D personally no unfairness in this regard.
- Were engaged in activity outside of the province (driving outside of Ontario)
- Uniformity in terms of insurance prospect of this going interprovincially. Not
at the intl level insurance schemes would not necessarily be similar.
4) Unfairness to the P in assuming jurisdiction
- Ps access to Cts of home jurisdiction P would be compelled to litigate in
Albera which would be inconvenient given the injuries sustained
- Inconsistency in 3 and 4? No unfairness since insurance covers you but
then you are looking at Ps position P doesnt have benefit of an insurer
Furlan
- Relationship between pleadings and evidence was a little bit confused
- Are we simply accepting a Ps pleadings that a situation occurred in BC, or
putting it more broadly, that it occurred within rule 13(1) or jurisprudence
under 13(4). Or evidence be considered to what standard of inquiry should
we be focussed on.
- Normally facts for jurisdiction simpliciter will be pleaded and the issue
is just an intellectual exercise BUT there is an exception where material
before the Ct establishes that the Ps claim is tenuous
CASE 7: US Satellite Broadcasting Co v WIC Premium TV Ltd case [2001]
- Good arguable case but evidence wasnt as compelling
- CRTC had given WIC exclusive license to broadcast programs
- USSB satellite signals were also coming into territory in which WTP has
exclusive rights, supplied decoders to Canadian residents
- WPT established good and arguable case, and a RSC in the subject matter,
therefore can sue US company in BC jurisdiction
CASE 8: AG Armeno Mines and Minerals Inc v Newmont Gold Co (2000)
- Agreement to acquire interest to a proposed mining devt, made in BC, to be
governed by BC law Armeno alleged Ds (Dutch Co.) induced breach of K
- HELD it had no jurisdiction in BC, as hadnt made out a good and arguable
case on the evidence - hadnt established causation from inducement
- Reqd participation by someone and shareholder withheld consent
therefore K couldn't have succeeded SO couldn't have been any causative
intentional inducement
- Armeno was reqd to make some evidentiary response to Ds affidavits
sufficient to raise a triable issue couldnt rely on pleadings alone.
Summary of good arguable case:
1) Armeno case
- Clear cut example, that nws complaince with 13.1 or 13.3, the case couldn't
succeed
2) Furlan case
- Damage caused by resin in plumbing systems negligent in the manufacture
of resins for that purpose
- Affidavit evidence was insufficent to say conclusively that there couldn't be a
case and there was no jurisdiction
3) WIC
- No direct sales into Canada, US broadcasters had corporate policies to not
encourage sales in Canada but evidence not conclusive
in other ppl would be incidental. but if no pls from BC, then can't be said that
non-bc ppl are incidental.
H
HISTORY OF FNC
European Union
Brussels convention which takes account of objectives and aspirations of EU
Principle object is to avoid disputes between member states
Rules drawn in detailed and rigid manner that predetermined most things
little room for discretion, possibly productive of injustice.
2) Common Law
- Jurisdiction is founded on the presence of the D within the jurisdiction and in
certain specified circumstances on a power to serve the D with process
outside the jurisdiction. However this is limited by principle of FNC
- Principle is directed against cases being brought in inappropriate jurisdictions,
does not aim to avoid all clashes like in EU
- Flexible, responsive to particular cases and responsive to finding best soln in
terms of the most appropriate place for proceeding to be heard
- Dependant on all Cts applying the same broad rules and using the same 2
weapons:
1) Stay of proceedings (by the Forum Ct itself)
2) Anti-suit injunctions (One forum saying persons over which it has
control should not file elsewhere)
Must take into account convenience of parties, but must realise its not just
pure and simple convenience by itself: look at appropriateness for the
parties in this case
Burden of Proof
General position: burden is on the defendant
In the context of P asking for Ct to take jurisdiction simpliciter, and the D
asking for a stay of proceedings
Equitable remedy
should only be subjected to someone is ammenble to the court
Matters of comity are applied
Ref to a settings of catgories that principles are applied to, however should
never be confined to these
Court says its too narrow. Emphasises the notion of ASI is related to a Stay
of proceedings, but in effect the St Pierre case is applicable
Issue: Whether Eng Ct would grant an ASI in circumstances where there was no
relevant connection between the Eng jurisdiction and the proceedings in Q, other
than the appellants who were resident in Eng, were subject to the jursidiction and
could effectively be restrained by an injunction branted by an Eng Ct
Held: Refused to grant an Eng ASI prohibiting continuation of the Texas action
Reasoning: There is no connection or amenability to the parties
- Comity requires that the Eng forum should have a sufficient interest in, or
connection with the matter in W to justify the indirect interference w the
foreign Ct which an ASI entails
1) Aerospatiale natural forum test: closest connection with the action and parties
2) Modified for conform with FNC test: forum that is more appropriate
3) Aerospatiale test 2nd step: injunction on ground that ends of justice require it
India is the natural forum for the dispute, but is unable to grant injunction on
Texas as Airbus are outside the jurisdiction of the Indian Cts. Airbus is therefore
seeking the aid of the Eng Cts to prevent proceedings.
- Inconsistent with comity for Eng courts to exercise power without direct
reliance on Indian Cts decision
- Only the Cts of an interested jurisdiction can act, if they are powerless to do
so (Indian Cts), that will not of itself be enouch to justify the Cts of another
jurisdiction to act in their place
Parallel proceedings general rule: Ought to be avoided but if proceedings have
already been launched in a place that is appropriate, should stay it in the
domestic forum (if all there is, is a mere difference of assessment)
ASI does not work if parties are not amenable to courts jurisdiction
e.g. India and UK
- No injunction, unless they have assets, or pass through or travel within the
country that issues the injunction
- If the country is off the beaten path e.g. NZ, the country has to be careful
about issuing injunctions
MODERN CANADIAN POSITION
- Broadening position in Spiliada and Societe Nationale
- Same as St Pierre for ASI has to show oppression, abuse of process,
vexation, attn given to juridical advantage of the P
- Eng: Is Eng a natural forum, and secondly does the result require a more
neutral position?
CASE: Amchem Products Inc v BC Workers Compensation Board (1993)
First Step: Is the domestic forum the natural forum?
Second Step: Does it have the closest connection?
- Under this test ct must determine if there is another court which is MORE
appropriate
Parallel proceedings
Should be respected, but if all you have is simply a genuine disagreement
and nothing more then you should not proceed with the case (should stay
proceedings)
Only if foreign juris hasnt applied FNC properly then the 1 st step is met
Passage quoted by the English Court in Airbus
Interpreted by Lord Goff that Sopinka was saying this 1st step would be met
simply if the Ct that is hearing the matter has not properly applied the FNC
principle.
This then would leave the possibility that in an Airbus sitn, a Canadian court
would be more ready to intervene.
Not nec this interpretation Canadian court would have to be a NATURAL
jurisdiction as well.
General discussion on FNC
In the Eng situation, following St Pierre need to show opression, vexation and
will have personal and juridical position protected
In both those cases, Ct indicating that the reference to opression, vexation
ought not to be emphasised in justice.
Ct indicates those terms were never satisfactorily defined but these terms
emphasise a degree of seriousness difficult as Sopinka states to find a
defn but could just be a test of severity
Loss of personal and juridical advantage
Court in Amchem says simply one factor that must be considered among
others
FNC and other discussions in reln to ASI
Could say that in Canada after Amchem, have a greater similarity in terms of
stayed proceedings and the ASI
Lord Goff: noted the Q of a loss of juridicial advantage should not be treated
as a distinct, second stage of the inquiry as it is under Eng law
Whereas the Eng has moved FNC in a broad and non-formal way
- BUT in terms of ASI, they have retained link with St Pierre case.
Having said this, there are comments in Amchem that suggest a different
test for ASIs. A question of severity in there.
Should courts in Eng have given a remedy in that case to the parties
that wanted to enforce injuction of the Indian courts?
- Should Ct give weight to asking itself if it is an appropriate jurisdiction
- OR saying it is unfair to charge Texas
- OR wash its hands of it
Impact for comity and system of justice as weve seen in Mortguard and
Beals
Should the Eng courts have issued an injunction?
- might be different in provincial situation
- the fact of residency in England gave
- general fabric of private intl law --- preserve intl order?
Canada: Stay of proceedings and ASI similarity
Bushell
- If brought ex parte, under s13(3) jurisdiction simpliciter, it can spill over into
FNC and burden falls on P
- Burden of proof shouldnt provide a significant role as it only applies in cases
where judge cannot come to a determinate decision on the basis of the
material presented by the parties - more significant onus if it is ex parte
Tortel
- Manitoba case
- D had assets in Manitoba, had no other connection with the proceeding
would not contemplate the proceeding bc of the lack of connection
Westec Aerospace v Raytheon Aircraft Co (1999)
- Another eg of parallel proceedings (Whether BC juris should have been
stayed while parallel proceedings going on in Kansas)
- According to Amchem the applicable guiding principle in Canada when an
application is made to set aside service ex juris or when a stay is sought is
now FNC
- Kansas was an appropriate forum as Westec failed to est that it would lose a
juridical advantage such that an injustice would resolt if a stay were not
granted
IN REM JUDGMENTS
[CHAPTER 8: page 353]
RECOGNITION
Soveriegnty vs comity
- Former says no direct enforcement of judgment of other jursdiction, while
latter says that sometimes there should be rules of converting foreign
judgment into domestic/local judgment.
- These comity rules are correlated with taking of jursdiction into prov or intly.
- Prior to Morguard, there were fixed rules of soveriengty and comity
JUDGMENTS IN REM
Judgments that are focused on status of either a person (usu in rules re:
parternity, adotion, marriage) or more ordinarily a thing (usu where judgment in
rem arises) judgment = determination re: disposition of pty.
1) Immovables (land): If judgment from place other than where immovable is,
then won't be enforced
2) Movables (chattels/choses in action): Difficulty in determining exactly
where are; but if in territory of forum at time of commencement of
proceedings, then that judgment will be recognized + enforced in Canadian
Cts provided other rules of enforcement of judgments are met
Issue here is where is situs
- where is located?
- patent is a grant by state location of patent is where patent is granted.
Same with trademark. But get by creating literary work.
JUDGMENTS IN PERSONAM
1) Injunctive
- Injunctions usu aren't enforced by another jurisdiction as they are a sovereign
command via Cts to command someone to do something.
- Interprov const issues after Morguard + Hunt, in interprov context there
may be room for argument that provinces in Canada are not to be treated
between each other as sovereign independent countries
At common law
If elect not to proceed on reciprocal laws (choose not to sue on cause itself
but on judgment) it is regarded as action in debt (foreign judgment)
Presence
Voluntary Submission
and the jurisdiction simplicter requirement for RSC (interprov and intl)
In the intl context (e.g. Braintech), considerable emphasis is placed on FNC.
POST-MORGUARD CASES
CASE 1: Moses v Shore Boat Builders (1994) BCCA
p392
Facts:
- Contract to build boat, boat was alleged to be defect
- Boat supplied from Alaska and P sued in Alaska
- D said had good defence (4 yrs post-Morguard) on merits but was not going
to go up to Alaska (as it could then be enforced against him in BC)
Default judgment against D
- Morguard makes Alaska judgment enforceable
- No enforcement prior to Morguard, but now would say there is enforcement.
- Stay of 60 days of BCCA to let D go to Alaska to sort it out there
- Ct applied RSC test to Alaska
- Case in which Alaska is not acting like Texas
- Clear justification that Alaska was connected to this damage suffered in
Alaska
- K signed in Alberta
- D lived in Al at time of K
- Boat in Alaska.
Alaska had jurisdiction and was properly entitled to hear the case
BC Ct applying Morguard
- Morguard only applies interprov strictly speaking only obiter for truly
foreign entities or foreign jurisdictions
- BC replies that obiter comment by SCC whether made by the whole Ct or
majority should be treated as ratio decidendi.
- Also looked at comity in modern system
- Moran case in tort law: Takes approach that in tort law there are no fixed
rules but one would look to see if one could reasonably anticipate harm
- Applying to the case: Boat was made in Alaska specifically for shipping
- Test is RSC from perspective of jurisdiction simpliciter because it commented
that FNC might be relevant but didn't develop too much
- On the other hand, have Moses simply applying Morguard and not giving any
weight to FNC
p405
Facts:
- Internet and tort of defamation case
- Website where ppl can make comments
- Run by Kostiuk living in BC
- Braintec with corporate HQ in Vancouver
- Some R&D in Austin, Texas, but not emphasized in judgment
- Had connections w/ other states in US.
HELD: No sufficient connection with Texas
- BCCA looked directly at the Amchem case (forum non conveniens
principle) and said that applying this test, it was not a natural forum
- Texas had abolished a FNC test and therefore a futher reason for not
enforcing the judgment
- BCCA applied FNC that BC is more natural forum than Texas
- Stated FNC puts flesh on the bones of real and subs connection
Internet scenario in Canada
- This issue has been faced by many US Cts
- Constitutional limitations on US Ct jurisdiction
- due process clause = ultimate const limit on ability to take jurisdiction
- minimum contacts must be completed
- complaints must arise out of the min contacts
- US Cts developed internet scenario by saying that merely putting something
on internet so accessible from 1 of 50 states, that you need more significant
connection (other end of spectrum... doing business)
Emphasis on personal subjection by BC Ct following US situation (not
admin of justice like in Muscutt)
Reaching decision on facts
- All Kostiuk did was put up passive website
- Texas hand't properly exercised jurisdiction
- It hadn't looked at jurisdiction in restrained way
- If Texas hadn't applied constitutional due process limitation
- FNC = Texas not natural jurisdiction (was BC)
This case applies US law (personal subjection) and FNC
Look for the most or more appropriate jurisdiction
applies that by saying that no jurisdiction in Texas
Recent Aust HC case: Dow Jones
- Defamation posted in New Jersey but defamed person in Australia.
- Dow Jones said appropriate law was place of uploading - where harm
caused.
Ct uses it here but how do we deal with FNC when move Morguard RSC test
internationally. FNC can't just be flicked off map so easily, was used in Braintech
Clearly there is big difference between FNC and JS
FNC is looking for most or more natural jurisdiction
JS simply asks if there was any connection
Beals (2003)
1)
-
AND
2)
-
Defences
Binnie and Iacobucci go with majoirty in applying RSC in restrained way
BUT said on defences, the judgment shouldn't be enforced
LeBel said that if its going to be used liberally on an intl bases, then need to
boost defences. Internal safeguards of cdn system may not exist int'lly)
In Beals, LeBel said that in an enforcing situation, would not look at FNC
but the BC court looked at it in Braintech
In Moses case, BCCA notes that while primarily addressing Alaska and BC,
relationship with FNC is rather unclear. In previous cases, court has applied
the RSC test however, court didnt state whether it was addressing JS or
conducting a forum conveniens analysis
While we have noted for some time that the relationship between JS and
FNC post-Mortguard is murky few courts have addressed it.
Muscutt
- Ontario focusses on JS in an interprovincial context
- The presence and existence of FNC would help in expanding the jurisdiction
of JS because when it comes to discretion, it can always cut back on that
consequence of a broader JS
- If you are broad with JS, any adverse consequence of this is that you can be
pulled back under FNC
Pre-Beals
- Teja emphasis on supplementary rules
- Muscutt emphasis on RSC taking over these situations
Braintech
- Court was dealing with internet context where there is no Canadian law
- Looked at US law US const due process requirement
- Ds are given a measure of const protection in that it must generally be
forseeable or within ones reasonable contemplation, that you would
be sued in the state within the state in which you were sued
- Forum in which suit is brought, is one which parties would have
contemplated
NB Similar in effect to principle in SCC Moran case for tort liability
NB Also that the Ct in BC did look at the question of whether the Texas court
correctly applied this principle. Is it the function of the enforcing court to get so
deeply in the law of the court that brought the suit.
Moses defence
- Ct states that in BC, a D may raise defence that there is a manifest error on
the face of the record in the foreign judgment
- Legitimacy is dubious, but in any event, its reach should not be extended.
- Ct states that if BC rules find that Alaska has sufficient jurisdiction, then
judgment could be enforced. Although technicially the Alaskan Courts may
not have followed their own rules
under the due process clause under the US const. Canadas s7 doesnt
directly protect ppty D doesnt have this protection.
LeBel says our court has gone out infront and asks why has this been done
- does it fail to give adequate protection to Canadian Ds
- does it prevent them from participating in foreign intl trade
- Ct should have left it to the legislature to make this change
Dissent
Binney and Iacobucci decision:
[Diplomatically put, both Major J and LeBel J acknowledge with varying degrees
of enthusiasm that greater flexibility be used different considerations will
apply]
LeBel dissent
Refers to the need to be more liberal than the traditional categories, but not as
liberal as the case for interprovincial jurisdictions. Have a RSC test, but it needs
to be more particularly fashioned to have regard to foreign Ps and protect
Canadian Ds.
In terms of looking at connections which the maj never defined, nor did
Binney, need to ask if it was appropriate for orginating forums to take
jurisdiction. Is it expected and fair for D to go to the originating jurisdiction.
Strongest connection is where there is link between forum and the D (such as
in the Moran case where selling items that contemplate would flow into
another jurisdiction)
In the US the Ds do have protection under the const that they wont be
deprived of ppty where no due process. Whereas under Canadian s7, are
only secured to life, liberty and security of the person. This leaves them w/o
Mortguard was the root of everything good or the root of all evil, depending on
your stance.
Loose discussion should it be a judicial decision to extend it internationally,
where not taking into account what other coys are doing.
Result: situations where still working under old rule, but subject to new rule.
Private intl law dealing with other systems Ds are caught out.
No political incentive for legislature to deal with it but should the courts have
taken it into their own hands???
Another option is to give D get same protection as in US
Due process clause: could the D have reasonably contemplated a suit in that
jurisdiction.
Adopt their defendant protection of property clause into the common law.
Because of commercial patterns of trading in NA, could look more favourably
Court cautions against using the defences (esp public policy) on basis that
although not directly a criticism of the law of the ct of decision, it is indirectly a
criticism of the policy of that country.
On the other hand, LeBel J says it is the price you pay for extending the
enforcement law. In both these situations you have a good argument on both
sides.
The maj seem to think that excessive damages are not in itself a defence.
Difficult point for some time (e.g. US jury produces irrational awards). BUT
says if damages are ARBITRARY then it is possible ie. It is left open as we
dont know the test for arbitrariness.
- A good test for arbitrariness:
Is this award out of line of the type of awards given in this area in this
jurisdiction?
(more than the sniff test relating it to cases of this type in the jurisdiction)
- Perhaps link it back to NJ was there evidence here that this judgment
was excessive or in someways directed to the fact that it was a foreign
litigant?
Moses found that only in BC can D raise defence there is manifest error in the
judgment. Court indicated this status of rule is suspect and doesnt want to
extend it to being a rule legitimacy is dubious and reach not to be
extended
Old North State Brewing case [1999]
- A number of issues that led into the choice of law area
- Supply of equipment to N Carolina.
- Court acknowledged N Carolina had a RSC with this case
- Equipment didnt work
- Choice of law clause: BC law should be applied but no express choice of
FORUM clause
- State of N Carolina could take jurisdiction, given it had a RSC and would
decide on BC law.
- But they didnt decide on BC law - Ct said wasnt a problem as when you are
talking about conflicts, in CL systems, it is a Q of fact.
- You have to plead the foreign law and bring evidence to foreign law as you
would any Q of fact
- Parties can control this: If they dont plead and bring evidence, there is no
duty on court to apply this foreign law. In absence, they are entitled to assume
the foreign law is the same as the forum law.
- Also raises the Q of public policy
- Treble damages (work out how much you have lost and then you triple it)
- And punitive (deterent) damages
- US has more dealing with treble damages. Only one e.g. in Canada
- Is this contrary to public policy Court says we have it too, in our
competition law therefore not contrary to Canadian concept of justice
To sue on the original cause need to est jurisdiction simpliciter/FNC
Sue to enforce the foreign judgment (debt) - have CL private intl law rules and
statutory mechanism]
1) Proceed at common law
- Nouvion and NEC Corporation cases: it is final in the court that gave it
- Have access to pre-judgment relief even if enforcement is stayed (appeal)
2) Or you can register under Enforcement of Foreign Judgments (EFJ)
Legislation
- Once appeal has been filed you cant register
- Doesnt change private IL, just provides more efficient way to procedure
(convenient supplementary procedure - shortcut)
In post-Mortguard times, how has this been affected?
- Hasnt been affected in an overt sense, in that the Mortguard principles are
designed to be dealing with this CL aspect
- And from const point of view, having the statutory part (2) doesnt infringe the
constitutional part.
Unavoidable because you have different jurisdictions that form a composite in the
intl community
Can only avoid if:
1) Have uniformity of law, e.g. est by treaty
2) System that provides an alternative to the CL PIL COL principles
e.g. law between coys under the Berne Convention, each resident is
protected in every coy to the extent set out by the coy concerned where the
infringement takes place. Linked to the national treatment rule.
3) Mandatory rule of the forum (forum might stipulate COL forum)
- COL principle that might excl from COL theory, national reg laws or other
public laws (eg Ivey and Oritz) that gives discretion where law concerns
public policy.
If you dont fall within these categories, it is whos law in deciding whos law to
apply. It is the law of the law of the forum choice of law which choice of law to
apply.
Canada takes a classical approach to Choice of Law (apart from Contract cases)
1) Nature of the Choice-of-Law Rule
- Identify what type of legal issue it is, and hence what legal principle is applied
(e.g. domicile)
- Rules as to choice of law are to the forum of the court
- Court will determine what its choice of law rule is
- The categorisation of the event is also in accordance with the laws of the
forum.
- The interpretational meaning to be given to the connecting event (eg domicile
or citizenship) is also with the law of the forum
These preliminary enquiries, characterisation and meaning, is all the law of forum
The choice of law rules sometimes indicate one place e.g. Tort law where it
occurred.
Leaves open to the forum court what it means by occurred
Sometimes it will give a couple of choices for where it may have occurred and
court will have to find a combination of both.
e.g. Questions of access and custody of children
- COL rule may say have to consider law of parent and law of child meet an
arrangement that suits both laws.
Or it might say in the situation before us, the laws of 2 countries must be
applicable to 1 party (usually in tort). Prior to Tolofson, there was a double
accountability (Chaplin and Boyes). Could only recover if it was a wrong in
the place it occurred and if it would have occurred in the forum.
Classic case b/c situation of a statue in Quebec which wasnt discovered for
long time. Litigation was brought in BC for recovery of documents Quebec
Statute blocked it
Issue: whether the statute is UV or whether it is constitutionally
inapplicable to a judicial proceeding in another province
Rule: No reason why judge cant deal with constitutional issue that
incidentallly arises in the ordinary course of litigation
- The BC Courts were excessivly cautious in refusing to consider
constitutionality at the potential price of injustice to the P
courts were in error in believing that the rules of conflicts law prevented
consideration of the consitutionality of the laws of another jurisdiction
- Hard to rationalise looking at where constitution was made
-
Relevent language
Procedural issues were also brought up
Matter of statutory law NZCL reluctant to do so
C
LAW OF PROCEDURE
Chapter 11: page 535
Characterisation
Different approaches:
Wong v Lee [2002]
- Transition decision
- International litigation arising from an car accident in NY involving Ontario
residents. If the NY law applied, the D insurance co. would be exposed to L
for pecuniary damages without a deductible, if Ontario not
- Maj of Ct concluded it was not an injustice, the Ds increased L exposure
was the necessary effect of applying the LLD rule
REMEDIES
DAMAGES
PARTIES
1) Law of forum is applied to see if the forum has jurisdiction to hear a particular
party
2) That law will ask is that person a legal person in the forum, if a natural
person, corporation or incorporated organisation then can act. If not a legal
person, can ask if the person is one under the foreign law of that person. If
they are a juristic entity in the foreign jurisdiction, will grant that person
standing
3) There maybe a mandatory rule of the forum to say something about standing
where certain codns have to be met. If they are not registered in the forum,
have no right to sue as P for any conduct in the course of carrying on
business
-
In making the determination, can be qualified under forum law or foreign law
of that foreign person
Unless there are mandatory rules as to certain conditions
CHOICE OF LAW
Hunt
- Canadian const issues
- Dealing with jurisdiction of the judges in Canada to deal with constitutional
validity of legn even though that legn is of another prov.
- In Hunt, BCCA exercised restraint
- SCC said it was commendable but misplaced in assessing Quebecs legn.
Quebecs legn couldn't be challenged internally.
Consequence of Hunt
- All of Cts in Canada can deal with constitutionality of legn in Canada, even
from another prov
- Consequence is superior Ct record in each prov can take probably judicial
notice of law of other provs without that law having to be proved as fact.
- SCC and Fed Cts had already asserted that.
- Can interpret Canada and Provincial Evidence Acts permit that to be done;
Quebec civil code lets that be done too.
PROCEDURAL SUBSTANCE
- Procedure is always lex fori (law of forum).
- When apply choice of law principle, may be applying law from another
jurisdiction. Difficult ?, what is subjstance + what is proceudre.
- Look at precedents + historically Engl precedents, see significant emphasis
on lex fori (for various reasons) and often led Cts to find things procedural
when that classification in fact was questionable or less obvious.
- Engl law has been amended by legn
- Diff b/t Engl + Canadian law is not acute b/c of amendments in UK.
- Some changes to bring UK in line w/ EU req'ments.
- some idea of things determined to procedural vs. substance + idea of
inquiry/mechanism to determine that issue.
Tolofson v. Jensen
- leading case re: tort + conflict of laws
- p536 focuses on issue on substance + procedure. looking particularly at
limitation period.
- Pls = residents of BC + car registered in BC. Df = residents of SK. MVA in SK. 1
yr limitation period had expired. SK legn didn't let gratuitous ppl collect if
willful/wanton ???( stnd of obligation w.r.t. certain ppersons in certain contexts).
- Df was suing in BC. ? of jurisdiction. choice of law = what law is oging to apply?
= substantive/principle issue in Tolofson case. decided lex loci delecti for
interprov matters. also established rule int'lly but in int'l context, left open
exception where justice would be req'd, law of forum wouuld apply. BUt no
exception in interprov context.
- having decided that change in private int'l law in cdda. ? = how to deal w/
situation here if applying SK law .. what are these aspects of SK law (esp
limitation period .. are these periods procedural or substantive). If procedural,
then BC would apply not SK.
- crt in Tolofson looks back at hxcal position. common law Cts in UUK/US =
limitation is procedural. Civil law EU = limitation was substantive. speculation of
why common law took firm position in UK + US = foreign litigants shouldn't get
adv over forum litigants. Where did event occur + should that law apply?
- UK preferred lex fori .. but ??
- Common law had theory that rights would last forever but limitation would
remove ability to enforce right through the Cts. That is thought to be discredited.
if can think of situations where hxcal theory would work, eg. in relation to land. it
may be that if have right of entry on failed condition subsequent ... grantor loses
right of entry after 6 yrs. BUT if move to determinable fee, no need for that to be
exercised. After 6 yrs have expired, if its a determinable fee, land is yours in law
but can't use Cts to get it but if get another way (eg. ppl absent from land + you
move in), they would come back + have to get you out. Distinctions b/t rights +
remedies wasn't wholly illusory. there were situations where couuld claim benefit
of legal right even though not in position for Cts to enforce that for you.
- How to deal w/ in Canada ..
= UK legn 1984 changed limitation period from prcoeduural to substantive
= crt provided test = does the particular law make the machinery of forum
run smoothly. if yes, then procedural. OR does the particular law reflect more the
determination of rights b/t particular parties? then substantive
= limitation period has some significant aspects that relate to rights b/t
parties. concerns Df right to plead .. affects obligation at law b/t parties. BUT if
wanted to justify this as procedural, not impossible to do that .. just say that
limiation period designed to make machinery of forum smoothly... machinery
can't run smoothly after period of time that memories worse, parties at disadv
(can't work when things are stale). BUT these are rights b/t parties. SO it has
elements of both. so boils down to policy choice. making it substantive is okay.. in
line to civil law + UK law countries. amendments for change in US too. BUT 1
shouldn't regard it as so obvious + could smirk .. reflects modernizing of law...
need some measure of harmonization.
= so limiation = substantive in Canada via tolofson. consistent w/ civil law
system.
Somers v. Furrier
- MVA in NY. Summers resident in ON. Furrier resident in NY.
- no ? of jurisdiction b/c Df attoned to ON.
- but ? of substantive law of NY applying or not --> yes after Tolofson
- this case interesting b/c the submission on p615 that this being a foriegn
situation, exception to gen rule Tolfson was avail to be argued. serious injustice
latest word w/ Wong v Lee 2002 = on exception to lex loci delicti (tolofson int'l
no excpetion for interprov matters
might argue interprov matters have const dimesion (howell not absolutely
convinced).
PART 5: TORTS
A
Phillips v Eyre rule retained, but focus on lex loci delecti was strengthened
b/c rule on justification changed to "would there be civil accountability
where event occurred"
From that situation, rule of double accountability focus on whether it was a
civil wrong to would there be civil accountability?
Ct would have discretion to apply lex loci delecti in any situation appropariate.
So it narrowed down rule in engl terms to look at civil accountability
HL also carved out discretion to apply lex fori or lex loci deleicti as saw fit.
LaForest puts great deal weight on fact that a Ct will take jurisdiction
only if RSC
Thinks that will provide answer to most questions
Linking w FNC, if the law of forum isn't appropriate law to apply, then answer
provided by FNC - case should go off to be heard by jurisdiction that applies.
Connection between choice of laws + FNC
If going to apply law of other jurisdiction, then may be that other jurisdiction is
more appropriate forum than yours to hear case
- BUT this is unclear, questionable re: relationship between JS + FNC.
RSC test for JS. established on grounds it has a (not most) substantial
connection.
Prof Howell doesn't think this idea of LaForest will pan out.
b)
-
Interprovincially, any attempt to legislate rule, proper rule of tort, would run into
const difficulties on being extraterritorial
- But rules do exist on proper law of contract.
- Quebec situation potentially could be okay, but doesn't find favour with
LaForest led Ct.
Seen in Beals, related context of jurisdiction
- Ct did enivsage that legislature could legislate something diff.
- may cross over here
Wong v Lee - All parties were from forum but doesn't mean exercise of discretion
in intl context.
PARTICULAR TORTS
[CHAPTER 12: page 624-642]
PART 6: CONTRACTS
A
INTRODUCTION
[CHAPTER 13: page 643]
b) Implied Agreements
Star Texas case [1993]
- Beijing or China, London? Depends on what D chooses.
2 issues raised:
1) Was the clause void for uncertainty court said no
2) Uncertain who the defendant was, therefore what does the 1 st party have to
do not to be seen as the defendant, but the plaintiff.
Who could choose where to arbitrate?
- D could be any D in any legal proceedings OR it could be regarded that any
litigation that follows as litigation, any could be seen as a D
- Carelessly drawn clause in terms of who is a D. Should have had more of a
defn in terms of giving one party the right to choose - words such as who has
a claim against such a party (not using the word D)
What were the parties intending a floating proper law?
- The CL has never recognised a floating law as a proper law of K
- Has always required that a K have a set and proper law, it not, then it is not a
K. If you detach a K from a body of law, then it does not exist
- Court said if you have a proper law, can certainly have a clause that chooses
a situs for arbitration.
- In interpreting a single choice for arbitration, ct will weight it as saying if you
choose Beijing as single place for arbitration, then the choice of law will
also be that of China.
- When you have a dual situs, will lose any implication that you can get from a
single situs. Brings you more into the floating area and hence is a less
strong factor.
- Third situation where you simply say arbitration can take place under intl arb
rules, then cant say wherever those rules allow those arbitrations to take
place, then this is the law of the K. Not only dual, but multiple places.
Will not put weight on place of arbitration if there is a choice between 2. But,
once you have determined proper law of the K, then you can have choice as to
where you want to litigate the matter. The Ct called this the floating curial law
i.e. a floating place to litigate. Nothing wrong with having a floating place to
litigate, but have to have a proper law to start with. The floating aspect cant
relate to the law, it can only refer to where the case is to be heard (which court).
HELD: Proper law was Eng law in this case and the D as they defined, could
choose to have the Eng law applied by Eng OR Chinese court.
p 665
Fact that can't have floating proper law of K but can have floating curial law of
K or floating forum (place where something is decided)
To be K, must be recognised by a body of law as K. lots of obj assessment
Although looking at what Ct decides on what parties insist on proper law, lots
of attn on what parties might have contemplated
So suggestion that 2 categories aren't too far apart.
HELD: Look at factors normally regarded as relevant when the proper law is
being searched for, including the anture of the policy itself, look for the system
of law which has closes and most real connection
- English law was found to be the proper law
doesn't have rule and then provide for jurisdiction to be in that forum as well
But Ct may sometimes contemplate that parties choice not bona fide choice
(sole purpose is to forum shop + avoid particular mandatory rule)
If there is no bona fide reason for choosing another law to apply and the place
that would normally be the proper law has a mandatory law sought to be avoided,
Cts say this might be a restriction on parties ability to choose particular law.
Ct will ask if there is some good reason for choosing particular law beyond
forum shopping
- Vita foods: common to choose UK law to govern maritime acts. parties
wanted to take adv of body of law that had developed.
- It wasn't done substantially - could've chosen NY law which would've been
more bona fide (b/c choosing where delivery would be made)
Golden Acres case
- Sale of land in Queensland, which was natural forum, place where
proceedings brought Claimant was a co. from HK
- Exclusive world wide fanchise agreement entered to in HK
- Queensland statute said real estate agent not entitled to sue unless licensed
under the Act no commission had to be paid for violation of agreement
- Ct found that clause was mandatory (as in Gillespie), Queensland Act applied
- Trying to get around the license system: attempted selection of HK law was
for no other purpose than to avoid the operation of the Queensland law
Greenshields Inc Case (1981)
- Involved Toronto investment dealer that was working in no. of cities across
Canada. Had entered into agreement in Alberta whereby a guarantee was
taken by Albertan resident
- Albertan law provided by statute for certain formalities that have to be
complied with in order for guarantee incl requirement for signing of obligation
before public notary
- Ontario law never had such a provision was this simply an attempt to get
around AB law requiring as matter of consumer protection for notary public
- Looked at facts: Co. was in Ontario and doing business across Canada so
enough to say it wasnt an arrangement to defeat the mandatory rule of
Alberta dealing with guarantors in Alberta
If both parties were resident and doing business in Alberta, but said Ontario law
applies, then would be caught on lack of bona fides.
a) Formation
Mackender demonstrates how this area of law is tricky
Mackender v Feldia AG [1967]
- Involved Lloyds underwriting for diamond industry
- Lloyds wanted to get into insurance business re: diamonds but diamond
industry has large connection with Belgium more familiar with law in Belg
and civil systm Lloyds had to agree to Belgian law
- Lots of illegality in diamond industry - Lloyds took position that didn't know
about that
- Claim came up re diamond smuggling
- Claim was brought to underwirters who took 2 positions:
1) There has been smuggling going on here (not when diamonds taken from
body of broker but there had been antecedent smuggling involved) so
question of illegallity;
2) Insurance law question - process of crossing borders w diamonds without
declaring hadn't been disclosed to Lloyds (insurance K require utmost good
faith, if don't disclose what could affect risk then policy is voidable at the
discretion of insurer)
Insurers brought proceedings in UK and wished to have proceedings declare K
against public policy and hence void
- If K fails, with it falls the choice of law clause and excl jurisdiction clause in
Belgium
- Therefore an attempt to deprive Belgium of jurisdiction
Non-disclosure
Problem is the nondisclosure didn't present situation of immediate invalidity
(ab initio), it produced only situation where K is voidable (cf void)
So insurer could elect the K void from this point in time but not earlier.
Wouldn't give ground for total nullity
UK Ct held you can't say that K doesn' exist, K says belg jurisdiction excl.
Illegality
Nothing on facts arose in any activity re: smuggling.
Smuggling was in background.
If this were UK law, could argue that antecedent illegality taints the whole K
If taints whole of K, then K is unenforceable (not voided).
K still exists but unenforceable in UK law But Belgian law has no
equivalency of tainting for some general anticedent illegality.
Deprived of opportunity of saying that K void from beginning.
Put insurers in position of having to ask Ct in UK to proceed in matter where
Contractual Capacity
What if parties never had capacity to K
Capacity issue is determined by a law other than proper law
Proper law is therefore the objective proper law of the K, not the proper law
chosen by the parrties
Whether agreement on what proper law should be is a valid agreement.
needs something that takes out validity of proper law itself.
c) Formalities
- Certain formalities are needed re: licenses for engaging in certain operations
e.g. real estate agent
- Comes down to where you are bringing the particular action
Greenshields case
- If in jurisdiction where not bound by that rule, you look at the proper law
- If no such requirement (Ontario) from formality perspective, then there
is no application of that
d) Mandatory Rules of Legal Systems Other than the Proper Law
PART 7: PROPERTY
A
TRANSFERS OF IMMOVABLES
[CHAPTER 14: page 723]
Not categorising as real (land or certain types of things associated with land
e.g. easements) or personal
There will be a difference depending on whether it is movable due to law of
situs of that ppty
1) Preliminary Question: FORUM state for which lex fori has to answer
Where is an item situated
War Eagle Mining Co
- Mineral claims Ct concluded mineral claims were situated with land to
which claims were associated/related (Sask)
- BC Ct said it should be linked like stocks and shares to where transfer docs
originated
2) Law of situs will govern as to whether they are immovable or movable
- If law of jurisdiction says it is immovable then will mean law of situs will prevail
- If it says it is movable another law may prevail
Hogg case
- Series of questions as to tax focussed on by Sask Commission
- Could only tax if there was devolution under the law of the province
- Succession law had to be law of Sask
- Were the mortgages immovable or movable
- If they sere located in BC, if BC law said they were immovable, BC law would
apply
- If movable then sask law would apply
- HELD: they were immovable therefore BC succession law applied and would
devolve as personal ppty
i.e. relevant law for devolution was BC, the law of situs
1st enquiry: Where are they located?
2nd enquiry: Applying law of situs, are they movable or immovable
Granting of patent
- Government grant and applies only in territory
- Fixed into jurisdiction that grants it
- Very similar to land (suggested distinction issues going to validity and title
cf issues going to infringement)
- A lot more formalities (application for grant)
Copyright
- Broad international treaty basis, protected in all countries under the WTO
- Any country belonging to the WTO is able to take jurisdiction
- Transitory ppty right/issue has no situs of itself
- In effect it is the ultimate of immovability
- Little scope to challenge the validity of copyright (no formalities)
- Need skill and judgment for copyright
If talking about infringement in jurisdictions other than where it was granted,
should be allowed to enforce where the infringement took place (applying laws of
the granting jurisdiction) cf validity/title always situs of grant
Discussion comparable to title/possession of land cf disputes between parties
relating to or concerning land (Mocambique).
damage to chattels.
- Howell thinks it seems a sensible result in this context.
- One might ask where was expectation of parties that they would be
proceeding agianst? Arguably, in courts in Florida where condos were. How
much emphasis should be on fact that both parties in Ontario?
- Can you argue combo of subst damages to moveables (pg 739)
- both residents of Ontario-case should be regarded as odd case or could it be
seen as a foothold for saying that principle of convenient forum should be
primary factor that should be looked at and ordinarily questions of damage
to land, no need to insist on same strictness that it should be lex situs courts
(same as title/possession)
Similar to patent law: suggested that issues which challenge validity of patent
which can be granted only by sovereign power of particular juris.
- No reason why ques of infringement that dont challenge title or validity of
patent couldnt be litigated in some other court.
- Hague-says they can be split, e.g., issue of validity could be determined by
state, and ques of whether infringement could be answered in any court.
Ward v Coffin
-
If impossible for D to comply with order, e.g., D says I went to Quebec and
attempted to transfer property to P but bc of formalities werent entered into
wrt property, Quebec wont accept docs.
If performance is impossible, in personam wont work. If D makes bona
fide attempt, but unable bc of lex situs law, then no consequence to D.
TRANSFER OF MOVABLES
[CHAPTER 15: page 763]
Moveables
- Very difficult
- Similar btwn situs and ancillary issues are applied to moveables.
- BUT Moveables move, usually intangible moveable
- These follow person wherever person goes.
e.g. copyright
- Where would you find situs for copyright?
- Place of registration?
- But you can register it several places at one time
Like Tort case of defamation
- Diff icult to find bc not naturally situated
- BUT if you can find situation, even if it is involuntarily so
Cammel v Sewell (1860)
-
Major problem:
- Immovable analysis is tied up with focus on situs and authority always to
give to situs.
- With Moveables there is a problem with finding where they are. How do find
situs to apply? Can you even say that some are located in certain position?
EXAM REVISION
Beals:
- Traditional rules not enough to ground jurisdiction they are a part of the
factors considered for RSC
- RSC is the overriding factor which clearly doesnt rule out the traditional
context, it is encompassed within the RSC test
- Therefore more in line with Muscutt
[Need to go beyond traditional test]
Muscutt:
- Is focussed narrowly not a case where suffered damage in Ontario.
- Damage really was suffered in Alberta BUT the continuing effects were
felt while in Ontario
Policy advantages:
- Within Canada it may well be a sensible position to wait the province where
the bulk of the medical costs were met.
- The province that has to take care of the victim in the case of torts where
physical injury were.
Questionable whether Muscutt applies where was some other sort of damage
such as to reputation (non-pecuniary damage)
Muscutt wouldnt work well in an intl context
- Works well interprovincially but in an international context, Muscutt would fall
short
- Cant be sure intl judges necessarily have the same degree of professional
ability or safeguards or consolidating influence of SCC, or that judges are
appointed from same place, insurance cos not coordinated internationally.
ANTI JUNCTION
Enforcement of judgments
Not talking about injunctions
Airbus case
1) Courts of India will you enforce our injunctions in Eng
- RULE: pre-emptry judgment like injunctions or specific perf not allowed, only
in personam judgments like monetary judgments and debts
2) If interprovincial, maybe after Morguard and Hunt they should enforce
-
Only orders in rem that cant be enforced are orders of the Ct in the location of
the ppty
If land is in Florida, decision of Florida court might be enforced in BC if it had
to be.
If a court in Alabama made order in reln to Florida ppty, it would not be
enforced. In a Canadian context, might be arguable a judgment in another
province, it could be enforced Morguard argument