private international law – prof - mcgill...

PRIVATE INTERNATIONAL LAW – PROF. WALSH - SUMMER 2005by Martin Doe and Miguel Bernal-Castillero

Introduction.......................................................................................................................................................................3What is the conflict of laws?.....................................................................................................................................3Do we need it?...........................................................................................................................................................3Terminology..............................................................................................................................................................3Law Units within Canada..........................................................................................................................................4Interprovincial choice of law.....................................................................................................................................4Basic Definitions.......................................................................................................................................................4

Part One – Adjudicatory Jurisdiction................................................................................................................................5Scope of Jurisdiction.................................................................................................................................................5

A. Basic areas of jurisdiction.........................................................................................................................................61. Where the parties are within the province............................................................................................................62. Voluntary submission of the defendant...............................................................................................................63. Subject matter connection....................................................................................................................................7

B. Exceptions and Specific Jurisdiction........................................................................................................................71. Consumer, Employment and Insurance contract matters......................................................................................72. Declining jurisdiction............................................................................................................................................73. Exceptional jurisdiction.........................................................................................................................................84. Supplementary or Incidental Jurisdiction..............................................................................................................8

C. Case Law...................................................................................................................................................................8CVL – Spar Aerospace Ltd. v. American Mobile Satellite Corp. [2002] 4 S.C.R. 205............................................8CVL – Worthington Corp. c. Atlas Turner Inc. [2004] IIJCan 21370 (Qc C.A.)...................................................10Insurance Corp of British Columbia v. Unifund Insurance Company [2003] 2 S.C.R. 63.....................................12

D. Reform Legislation.................................................................................................................................................13Part Two – Foreign Judgments........................................................................................................................................15

Parameters of Forum of Inquiry..............................................................................................................................152 Conditions for Recognition of Foreign Judgments..................................................................................................15

1. Jurisdiction of Foreign Authorities......................................................................................................................152. Finality Requirement...........................................................................................................................................17

Defenses Against Recognition....................................................................................................................................171. Procedural Fairness Requirement.......................................................................................................................172. Taxation Exception.............................................................................................................................................17

Other ways of Revoking..............................................................................................................................................181. Public Order........................................................................................................................................................182. Conflicting Judgments........................................................................................................................................18

Traditional Common Law Rules.................................................................................................................................18Case Law.....................................................................................................................................................................19

Morguard Investments Ltd. v. De Savoye [1990] 3 SCR 1077...............................................................................19Hunt v. Lac d’Amiante and T&N [1993] 4 SCR 289..............................................................................................21Beals v. Saldanha [2003] 3 SCR 416......................................................................................................................22Parsons v McDonald’s [2005] Ont CA...................................................................................................................24

Reform Legislation......................................................................................................................................................27Uniform Enforcement of Canadian Judgments and Decrees Act............................................................................27Uniform Enforcement of Foreign Judgments Act...................................................................................................28

Part Three – Choice of Applicable Law..........................................................................................................................30A. Choice of Law Methodology..................................................................................................................................30

Characterization.......................................................................................................................................................30Renvoi......................................................................................................................................................................31Procedure.................................................................................................................................................................32

B. Contractual Obligations..........................................................................................................................................32General Rules..........................................................................................................................................................32

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Form........................................................................................................................................................................33Capacity...................................................................................................................................................................33Special Contracts.....................................................................................................................................................34Roy v North American Leisure Group Inc., [2004] Ont C.A. 246 DLR (4th) 306..................................................36

C. Extra-Contractual Obligations / Torts.....................................................................................................................37Tolofson v. Jensen [1994] 3 SCR 1022 – lex loci delicti........................................................................................38Somers v. Fournier [2002] Ont C.A. 214 D.L.R. (4th) 611....................................................................................41

D. Domestic Relations (en passant).............................................................................................................................44Jahangiri-Mavaneh v. Taheri-Zengekani [2003] Ont Superior Court 39 RFL (5th)...............................................45

E. Property (en passant)...............................................................................................................................................46F. Exceptions...............................................................................................................................................................46

1. Public Policy/Public Order..................................................................................................................................462. Proximity Principle..............................................................................................................................................473. (International) Mandatory Rules.........................................................................................................................47Society of Lloyd’s v. Saunders [2002] ILR 1-4047 – strict public policy grounds for non-enforcement..............47Muscutt v. Courcelles [2002] Ont C.A....................................................................................................................52Bangoura v. Washington Post case.........................................................................................................................53

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Introduction Private Intl Law, sometimes called the ‘conflict of laws’ is that part of a domestic legal system which comes into

operation whenever a legal situation with a ‘foreign’ or extra-jurisdictional element arises. Generally sub-divided into 3 basic parts:

1- Adjudicatory jurisdiction : when will a court assume the authority to adjudicate disputes involving parties or events located wholly or partly outside the borders of their jurisdiction – i.e. a foreign element? Concerned about the cross boundary areas of the law. E.g. a Quebec company doing business with a US carrier delivering goods to Mozambique. Which courts can or should deal with this relationship?

2- Recognition and enforcement of Foreign Judgments : On what basis do local authorities give effect to judgments and orders issued by foreign courts and tribunals? It is an appeal to be able to depend on the local enforcement mechanisms.

3- Choice of Law : What rules or principles determine whether a dispute should be governed by local law or by law of some legal system to which the dispute is factually connected? Which laws will the courts draw upon? If tort happens here, will take laws from here, e.g.

What is the conflict of laws? “Conflict of laws” implies conflict bt laws and need to make choice bt them. It is necessarily pluralistic and national can differ from legal system to the next, at least in absence of any

positive super laws such as treaties and constitutions. This can be bt States (w. would be Public Intl Law) but also among territorial or community units w/in state. Hence PrIL has special practical importance in federal states such as Canada. In Public Intl Law the actors are sovereign states and the focus is on intl law from high level of interstate

relations. PrIL concerned w/ private law and private individuals and the implications that we are mobile population and

things can happen to us when we travel that give rise to legal implications – from family relationships to commercial ones.

Must know the different ways in which diff legal systems may answers certain questions (such as ECO). Main sources Book X of CCQ and case law from Can CML provinces. Also intl conventions that aim to achieve uniformity amongst intl, natl and provincial laws.

Do we need it? Uniform intl or multilateral rules would reduce uncertainty and complexity and avoid conflicting results. Aim is to reduce forum shopping. This has taken more importance w/ globalization of markets and trade. We’re concerned mainly w/ private law conflicts. In Canada these are prov power (as per BNA Act 1867) For most areas of private law it is just as possible to have conflict of laws btwn Ontario and Qc as btwn Qc and

France. In federal system you have potential for conflict of laws issues to be addressed both btwn and among particular units of the federation as btwn prov units and other countries.

Terminology Lex Loci delicti: where the tort occurred. Very important in CML Common domicile exception: if both parties share a common domicile, then those are the rules that will apply

and not where the injury occurred. Is important in CVL (though lex loci delicti is also a general rule) The Forum: the place where the dispute is litigated. It’s the Pl’s choice, so he can do forum shopping. Lex fori: the law of the forum Lex loci contractus: law of the place of the contract (where it came into being or where it stipulates it is to be

governed) Lex rei sitae law of the place of the thing, where it is located. Lex loci celebratius: law of the place where the ritual was celebrated (ie marriage) Lex domicili: law of domicile of corporation or individual. Forum non conveniens: inappropriate forum

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Law Units within Canada By virtue of Federal composition of Can, there are diff legal issues are subject to legislative jurisdiction at the

provincial or territorial level and there is corresponding need that there will be choice of law.

Is uniformity of outcome a desirable or achievable aim? Issue of autonomy of state. Conflict of law strives to have solution to be the same regardless of where the proceedings take place. The goal is for there not to be forum shopping

Interprovincial choice of law There is territorial limit placed by the constitution on the courts We’ll be looking in choice of law rules. Provinces have overriding statutory regimes for certain areas – e.g. securities.

3077. Where a country comprises several territorial units having different legislative jurisdictions, each territorial unit is regarded as a country.Where a country comprises several legal systems applicable to different categories of persons, any reference to a law of that country is a reference to the legal system prescribed by the rules in force in that country; in the absence of such rules, any such reference is a reference to the legal system most closely connected with the situation.

This is article that tells us that in certain context territorial unit implies a country or a province or a state. Para 2 relates to successions, family, religious affiliation, etc. This goes according to membership in a

community, not necessarily by territory. Within Canada, Para 2 would have application in aboriginal communities where they are considered to have self-

govt with specific rules based on membership. These rules do not depend on where you live, but who you are and what community you are a part of

Basic Definitions Comity – “the recognition which one nation allows within its territory to the legislative, executive or judicial acts

of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.” (from Hilton v. Guyot, 159 U.S. 113 (1895), referred to in Morguard and Spar)

Order – Fairness –

HE Yntema, The Historical Bases of Private International Law and http://www.mcgill.ca/maritimelaw/conflicts/canprivtintl/ can provide a good overview.

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http://www.mcgill.ca/maritimelaw/conflicts/canprivtintl/

Part One – Adjudicatory Jurisdiction

Scope of Jurisdiction

State immunity is recognized generally. It is not absolute, but it is recognized through the State Immunity Act (don’t have to know it all, but be aware of it).

Matters subject to Treaty, such as the Carriage by Air Act, ss. 28,29 (below)

Article 28(1) An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High

Contracting Parties, either before the Court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the Court having jurisdiction at the place of destination.

(2) Questions of procedure shall be governed by the law of the Court seized of the case.

Article 29(1) The right to damages shall be extinguished if an action is not brought within two years, reckoned from

the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

(2) The method of calculating the period of limitation shall be determined by the law of the Court seized of the case.

Exclusive Jurisdiction can also be taken by courts for certain processes.

3129. The application of the rules of this Code is imperative in matters of civil liability for damage suffered in or outside Québec as a result of exposure to or the use of raw materials, whether processed or not, originating in Québec.

3151. A Québec authority has exclusive jurisdiction to hear in first instance all actions founded on liability under article 3129.

Jurisdiction is term that carries a lot of meaning in law, often being synonymous w/ competence and power. Jurisdiction is established by law and it is given in the same way that it is limited (by constitution, legislation e.g.) Jurisdictional issues are not limited to PrIL. E.g. Contracts, for example, have divided jurisdiction in Quebec

based on the value of the case: under $8000 small claims, upto $70,000 Court of Quebec, over $70,000 Superior Court.

In Qc, source of jurisdictional authority is the CCQ, read w/ CCP and Constitution Acts Do we need rules establishing what factors are sufficient to give jurisdiction to a specific court? If we didn’t have

these rules, there would be problems of sovereignty and comity. PrIL likes to think that it is separate from Public International Law, but it is still concerned with these fundamentally public concepts that have to do with the proper division of power.

Sovereignty = Idea that each state has power over the things and people within its own border and conversely does not have power over things and events that fall within the purview of some other sovereign.

Idea behind PrIL is that there should be limitations on our courts (which are delegations of sovereign powers). Constraint of exercise is that there should be a legitimate nexus/connection to a particular court. That idea is

necessary and practical. There is self-interest in exercising self-restraint in jurisdiction. If states purported to exert exorbitant jurisdiction,

its judgments would not be respected, nor its courts, and, ultimately, nor would the state. Ultimately, this is disrespectful to sovereignty.

Voluntary consent has no bearing w/ jurisdiction. i.e. If both parties agree on Qc, then that’s ok. But more often they’ll agree to arbitration.

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Question: In the absence of any rules (such as those in the CCQ), is there anything inherently objectionable to two foreign nationals asking a Quebec court to adjudicate a completely foreign jurisdiction? Maybe not, but… Sovereignty is challenged by asserting that power over that area without adequate reason. Legitimacy is challenged when trying to apply that judgment in the supposed original jurisdiction. Do Quebec Courts (or Quebec society/taxpayers) have any interest in foreign dispute resolution?

Jurisdiction originally arose from the idea of physical power over an individual person. It was extremely territorial.

This idea led to the traditional CML basis of jurisdiction (also manifested in Quebec Civil law to a certain extent) - presence of the Df w/in your borders (but this allowed fleeing!)

This rule was devised by UK courts to protect Eng debtors from the effects of foreign judgments. However, it also harmed Eng creditors whose creditors fled other countries. So jurisdiction expanded to include subject-matter provision (i.e. Eng court could have their orders served abroad).

This changed w/ devts in intl law as mobility and complexity of commerce was taken into account, but slowly.Rule Jurisdiction of parties is not what’s most relevant. What’s actually imp. is that Df be w/in jurisdiction.

A. Basic areas of jurisdiction1. Where the parties are within the province

3134. In the absence of any special provision, the Québec authorities have jurisdiction when the defendant is domiciled in Québec.

No need for subject-matter connection here or in 3148. This is very general rule “in the absence of any special provision…” that can include actions in K, ECO, etc. This kind of provision ensures that there is always one court where you can sue someone in. For ships it depends on what nation’s waters the ship is on. Rule 3134 is the general rule. Everything thereafter moves to specificities.

3141. A Québec authority has jurisdiction to hear personal actions of an extrapatrimonial and family nature when one of the persons concerned is domiciled in Québec.

Within personal actions we are divided to extra-patrimonial and family, and patrimonial personal actions. Here the big thing is that it only requires one of the persons concerned to be domiciled in Qc. 3142 and ss deal w/ family issues such as filiation. [We’ll look a bit at divorce at the end]

3148. In personal actions of a patrimonial nature, a Québec authority has jurisdiction where 1) the defendant has his domicile or his residence in Québec; 2) the defendant is a legal person, is not domiciled in Québec but has an establishment in Québec, and

the dispute relates to its activities in Québec; (…) In 3148, the first sentence is in distinction to that provided in 3141. Notice it says a residence and not the residence. Under 3148 (2) more specifics are given. It’s not necessary for jurisdiction to have your head offices here, but it’s

enough if you have branch offices here and if the disputes regard the actions of that branch in Qc.

2. Voluntary submission of the defendant

3148. In personal actions of a patrimonial nature, a Québec authority has jurisdiction where (…)4) the parties have by agreement submitted to it all existing or future disputes between themselves arising

out of a specified legal relationship;5) the defendant submits to its jurisdiction.

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However, a Québec authority has no jurisdiction where the parties, by agreement, have chosen to submit all existing or future disputes between themselves relating to a specified legal relationship to a foreign authority or to an arbitrator, unless the defendant submits to the jurisdiction of the Québec authority.

Relatively straight forward and not a matter of much debate (not even in Hague convention) Rule explores two possibilities where .

1. by agreements in contract (ie when buying online) 2. by being attorned (ie Df submits to jurisdiction by showing up or responding to action)

Last para. important bc it means courts will hold you up to it if you’ve voluntarily relinquished Qc jurisdiction.

3. Subject matter connection

3148. In personal actions of a patrimonial nature, a Québec authority has jurisdiction where (…)3) a fault was committed in Québec, damage was suffered in Québec, an injurious act occurred in Québec

or one of the obligations arising from a contract was to be performed in Québec (…) 3148 (3) deals w/ property, torts and contracts. First 3 conditions have more resonance in area of extra contractual liability. “Injurious act occurred in Qc” refers to strict-liability regimes (e.g. no-fault insurance, vicarious liability, contract

breach). (Lebel in Spar) “Damage was suffered in Qc” similar to Ontario and other CML rules of procedure.

o Damage suffered really broadens the jurisdiction because of the temporal distance or exaggerated geographical distance that can exist between the fault/act and the damage (e.g. pain and suffering following a car accident overseas, damage from contract breach overseas).

B. Exceptions and Specific Jurisdiction1. Consumer, Employment and Insurance contract matters

3149. A Québec authority also has jurisdiction to hear an action involving a consumer contract or a contract of employment if the consumer or worker has his domicile or residence in Québec; the waiver of such jurisdiction by the consumer or worker may not be set up against him.

3150. A Québec authority has jurisdiction to hear an action based on a contract of insurance where the holder, the insured or the beneficiary of the contract is domiciled or resident in Québec, the contract is related to an insurable interest situated in Québec or the loss took place in Québec.

This follows the general provision of 3148. 3149 is aimed at protecting the vulnerable parties (consumers, employees). It ensures that party setting up interest

or directing itself at Qc market does not escape Qc jurisdiction by putting some ‘escape of jurisdiction’ clause. 3150 ensures that if what’s being insured is in Qc, there’s Qc jur’n.

2. Declining jurisdiction Remember 3148 last para. where if parties voluntarily relinquish right to go to Qc courts, they’ll be held to it.

3135. Even though a Québec authority has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another country are in a better position to decide.

3135 is new to CCQ and derives from doctrine of forum non conveniens. The rule empowers, but does not oblige, Qc courts to defer jurisdiction if there is an objection and if it considers

that authorities elsewhere can better decide the case. This is a way of recognizing other courts’ better jurisdiction for something. It limits forum shopping and even protects Df. Only used exceptionally, but does provide an escape valve that gives discretion and flexibility to the courts.

However, it also creates some uncertainty. This article is at center of Spar Aerospace.

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Under Brussels convention, eg, there is no such discretion. Court can’t just pass the buck to another jurisdiction.

3137. On the application of a party, a Québec authority may stay its ruling on an action brought before it if another action, between the same parties, based on the same facts and having the same object is pending before a foreign authority, provided that the latter action can result in a decision which may be recognized in Québec, or if such a decision has already been rendered by a foreign authority.

3137 addresses similar but slightly diff problem called lis alibi pendens. It kicks in when there’s an action already going on somewhere else bt same parties on the same subject matter.

E.g. K case where breach is contested and Df in Ontario countersues in Qc as Pl. This is a way of preventing risk of 2 courts coming out with conflicting judgments (that would otherwise be

entitled to enforcement in the other jurisdiction). Here there is no qualification (i.e. not an ‘exceptional’ recourse) nor does it require Qc to stipulate which court

has better jur’n. The resulting judgment must be enforceable in Qc, however. This creates a race to the courts as a way to choose jurisdiction. This rule is not repeated in CML.

3. Exceptional jurisdiction

3136. Even though a Québec authority has no jurisdiction to hear a dispute, it may hear it, if the dispute has a sufficient connection with Québec, where proceedings cannot possibly be instituted outside Québec or where the institution of such proceedings outside Québec cannot reasonably be required.

3140. In cases of emergency or serious inconvenience, Québec authorities may also take such measures as they consider necessary for the protection of the person or property of a person present in Québec.

These are very rarely used provisions and are there just in case something’s not covered by 3148. Aim is to not leave a Pl w/ a legitimate cause of action to be left unable to do anything. If there is connection w/ Qc it is Qc court’s responsibility to hear it if no one else will.

4. Supplementary or Incidental Jurisdiction

3138. A Québec authority may order provisional or conservatory measures even if it has no jurisdiction over the merits of the dispute.

3139. Where a Québec authority has jurisdiction to rule on the principal demand, it also has jurisdiction to rule on an incidental demand or a cross demand.

These are also exceptional. Particularly 3138 which is very controversial internationally. The caveat is that, to implement this, parties must have exhausted other avenues. 3139 gives derivative jurisdiction…even in case where principal demand is dropped. E.g. I sue seller for defects and damages, but seller wants indemnity from manufacturer. So principal demand is

action by buyer against seller. I only have to show that there is this principal part to give courts jur’n over other parties brought in legitimately. (think: Sperry Rand Can, Sperry Rand USA, etc)

C. Case Law

CVL – Spar Aerospace Ltd. v. American Mobile Satellite Corp. [2002] 4 S.C.R. 205Facts- American Mobile (M) entered into K w/ Hughes Aircraft (HA) for construction of a satellite.- HA subcontracted w/ Spar for manufacture of communication payload of satellite @ its Ste-Anne-de-Bellevue plant- Other (US) appellants (Hughes Comm and others) conducted ground station testing to monitor + control satellite’s

performance once in orbit.

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- During the testing, serious damage occurs to satellite, so HA refuses to pay Spar performance incentives in K.- Spar (whose HQ is in Ont) sues in Qc alleging it was other appellant companies’ actions during testing that caused

the severe damage and wants damages for loss of future profits (due to loss of reputation), loss of performance incentives, and expenses incurred in investigations.

- Appeal based on challenge to Qc court’s jurisdiction and the doctrine of forum non conveniens in CCQ 3135.Issue (1) Do Qc courts have jurisdiction? (2) Can forum non conveniens be invoked?Holding (1) YES (2) NO (Spar wins)Reasoning Lebel J.- Principles of comity, order and fairness guide the determination of PrIL issues: jurisdiction simpliciter, forum non

conveniens, choice of law and recognition of foreign judgments. In Qc these are codified in CCQ.- When Qc court deals w/ issue of PrIL, it must 1st interpret rule by looking at wording of CCQ provisions and then

matching their interpretation w/ PrIL principles that underlie these rules.- PrIL principles are not binding rules, but inspire interpretation of PrIL rules and reinforce their inter-connectedness.- CCQ 3148(3) shows where Qc courts can assume jurisdiction and Spar showed that it suffered damage in Qc based

on fact that facilities are in Qc and damages in reputation were not suffered by HQ in Ont, but by Qc plant. This damage meets the “damage” requirement of 3148(3) and need not be direct.

- There is no need for the application of an additional “real and substantial connection” test to validate Qc jurisdiction since the grounds of actions in 3148 (fault, injurious act, damage, contract) all provide for a “real and substantial connection” bt Qc and the action.

- Forum non conveniens doctrine in art 3135 is the counterweight to and the justification for allowing the breadth of 3148. It is where juridical advantage, directness, size of the claim, and other questions of forum will be dealt with.

- FNC doctrine depends generally on order and fairness. Order takes into account certainty and efficiency. Fairness takes into account the context of the individual parties and the appropriateness of any given forum.

- More specifically, in Amchem, the SCC set out FNC criteria, “none of which are individually determinant”:

1) The parties' residence, that of witnesses and experts; 2) the location of the material evidence; 3) the place where the contract was negotiated and executed; 4) the existence of proceedings pending between the parties in another jurisdiction; 5) the location of Defendant's assets; 6) the applicable law; 7) advantages conferred upon Plaintiff by its choice of forum, if any; 8) the interest of justice; 9) the interest of the parties; 10) the need to have the judgment recognized in another jurisdiction.

- FNC requires that the defendant show that the desired forum to be deferred to is “clearly better suited to decide the case” by these and other relevant criteria. (Note: The word “clearly” does not appear in art 3135. It seems to be imported from the broader doctrine and the CML.)

- Here the discretionary decision of the motions judge does not need to be disturbed and the appellants did not establish conditions to do so.

Ratio(1) If damage is linked to Qc, then Qc courts have jurisdiction. This includes damages to reputation. Onus on

Pl.(2) Damage requirement is enough to prove ‘real and substantial connection’(3) CCQ 3135 is counterweight to broad jurisdiction basis set out in 3148 – but it must be used exceptionally,

with discretion and there is high onus of proof.Class Comments- Case hinges on meaning of “damages suffered in Qc” since this is what gave Qc jurisdiction. (ie define 3148(3))- Plant in Ste-Anne-de-Bellevue had been shut down, so proving future loses here (and ^^ damages in Qc) is a stretch

and is what makes this case controversial.- Damages sought for loss of future profit (and the link to Qc) was only $50K – a minimal fraction of the total claim.

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- Strong legal argument put fwd that this minimalist connection interpretation is no longer permissible given recent SCC decisions – such as Morguard v De Savoye and Hunt v T7N plc. (and Beals v Saldhana) – where LaForest (and Major) stated that in order for Can court to have jurisdiction there must be ‘real and substantial connection’ btwn the subject matter of the dispute and the forum of adjudication.

- Decision questions LaForest’s idea that there must be a ‘real and direct connection’ requirement. Sometimes the connections are not tangible, like here where the satellite is in space and the losses are pecuniary.

- Lebel says that “real and substantial connection” is already incorporated in the scheme of jurisdiction that appears in Book Ten of the CCQ and while it is a constraint and criterion of jurisdiction, it is not additional to those of CCQ. To do this he focuses on 3135 as threshold to 3148 (makes distinction w/ European approach)

- Unlike Europe we have discretion at forum non conveniens level to decline to hear the case and decline jur’n.

- What is the reason for Qc court to exercise more self restraint? Bc otherwise it would increase likelihood that each province would assume jurisdiction, render judgments and the other prov would be forced to give effect to those judgments.

- Irony is that internationally you are sovereign, but interprovincially you have to be careful w/ overlap.- Jurisdiction simpliciter is lowest threshhold (art 3148) and in order to retain that jurisdiction the court must be

prepared to find that under doctrine of FNC it is also the appropriate court to hear the case. - Thus there is 2 step approach (1) do you have jurisdiction simpliciter? (2) court looks at FNC and determine

whether Qc is an appropriate forum for the case.- Hard to disagree w/ Lebel at this stage of the reasoning. There is no place that jumps out as the clear place of

jurisdiction. In the absence of this, then Df has not met burden of proof and Qc can hear the case.- As application of forum non conveniens this is ok. The problem is at first part of Lebel’s arg that jurisdiction

simpliciter rules were met.

- SCC reflects policy perspective so we must identify what policy considerations were put forth. Normally this means looking at implications of contrary ruling. These could be:

(1) Saying that there was no damage in Qc bc claim was really for loss of $$ which would be payable in Ont. This would mean that you can just put your HQ where laws are lax and can’t sue elsewhere. This can have bad effects on local economies.

(2) Contrary ruling would also have to focus on the fact that Qc damages were the smaller part of the claim, but this would also cause many pbms (think of lawyers putting in larger $$$ amounts suffered elsewhere just to change the jurisdiction)

- So, SCC may have thought of alternative and gotten scared.- FNC is adaptation from Eng CML but note that the case law Lebel cites (incl Amchem) comes from CML and from

maritime law. This choice shows that court is intending to have a unitary theory of FNC and not to let doctrine develop differently under CCQ than in CML provinces.

CVL – Worthington Corp. c. Atlas Turner Inc. [2004] IIJCan 21370 (Qc C.A.)Facts- Both parties were condemned by NY Court to pay hefty indemnity to the succession of Mr. Ronsini- W paid entirety of it, even though Atlas should have paid 52% as per NY judgment- W now wants the enforcement of that judgment in Qc since Atlas had its assets there.- Superior Court refused to recognize the NY court’s judgment on basis of PrIL of Qc which gives Qc exclusive jur’n

over civil liability from Qc raw materials (CCQ 3129, 3151). - Atlas argues that Qc should continue to refuse to recognize NY decision based on 3129 and 3151, but also on the

violation of the rules of natural justice (procedure) - W argues that NY judgment was properly given (in accordance with natural justice) and that 3129 and 3151 are

inapplicable, either because Atlas attorned or because 3129 and 3151 are unconstitutional.Issue (1) Do Qc courts have jurisdicition? (2) Are articles 3129 and 3151 unconstitutional?Holding (1) NO. (2) NO (Atlas wins)Reasoning- The NY could be found to violate the rule of natural justice (in procedure), however, this point is subsidiary to the

deciding factor of whether or not 3129 and 3151 apply.

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- In principle, Qc will recognize decisions rendered with proper jurisdiction (as according to the CCQ). This is stated explicitly in 3155 and 3164.

- Articles 3129 and 3151 give exclusive jur’n to Qc for civil liability resulting from its raw materials. - But exclusivity of jur’n could be set aside in favour of theory of reciprocal recognition if judgment is not contrary

to the rules of public intl order. Reciprocity in art 3164 is to be given priority application and read alongside art. 3134-3140 re: FNC and forum of necessity. This would suggest that exclusive jur’n may be taken by Qc courts when case is firstly tried in Qc, but it can’t be used to take away jur’n from another competent court.

- However, this theory can lead to unreasonable and unpredictable results and is therefore rejected as against principles of the Qc legal system and public order as understood in international relations.

- The intention of the legislator is clear. Exclusive jurisdiction was clearly meant to displace foreign law and jurisdiction. Thus, 3129 and 3151 necessarily apply when Quebec courts are being appealed to.

- Although Beals speaks to “real and substantial connection” being sufficient to give enforcement to foreign decisions, this case is not a constitutional question but a true conflict of laws in the private international sense.

- Reconciling this case with Beals requires taking the approach described by Lebel J in Spar. One must read the CCQ for its wording and then see if the interpretation given accords with the dual principles or order and fairness.

- Order speaks to comity which operates to seek recognition of foreign judgments, but comity is not binding upon any sovereign state. The law is also not against fairness given that it does not preclude a proceeding from being successfully pursued in Quebec.

- Furthermore, this legislation deals specifically with PrIL which as a subject-matter is precisely concerned with domestic protection from and the effect to be given to foreign rights and claims. Thus, it would be paradoxical to question the validity of PrIL for its extra-territorial effects, since those speak to its very purpose.

- In enacting the law, Qc is thus acting w/in its constitutional jurisdiction and this law can validly take exclusive jurisdiction for these matters as far Quebec and the Quebec courts are engaged.

Ratio(1) Foreign judgments recognized in Qc if rendered by competent tribunal that followed Quebec PrIL dispositions in CCQ.(2) Criteria of real and substantial connection is applicable to the recognition and execution of foreign judgments. But, in Quebec, real and substantial connection is established by interpreting the provisions of the CCQ in accordance with the double principles of order and fairness. (3) Given that comity is not binding and fairness is respected, any sovereign state is within its rights to legislate in the area of PrIL to establish exclusive jurisdiction with regards to a given subject matter. Comments- Leave to appeal was refused by the SCC.- Can also belong in part 2 of course “effects of foreign judgments”Class Comments- Ronsini died of cancer caused by asbestos that came from Qc but exposure occurred in NY.- Bc provenance of asbestos was Qc, that brought into play exclusive jurisdiction (art. 3129 + 3151)- But court finds there’s stronger connection w/ NY. Plus, that’s where the 1st action was taken.- W relies on 3164 and theory of necessity (where there’s R&S connection to place and Pl cant take actions anywhere

else, then court will take jurisdiction). This means that we should recognize NY courts had jur’n on something that would otherwise be exclusive jur’n of Qc bc Ronsini couldn’t go to Qc, forcing jur’n on NY.

- This is an ingenious arg on emergency jurisdiction, but court rejects it since parties went ahead w/ NY as jur’n.- Arg w/ potential was that Qc couldn’t enact articles 3129 and 3151 constitutionally. Arg was that Qc legislature

shouldnt have authority to say that Qc courts are the only ones w/ jur’n on asbestos (and other natural resources) that originate in Qc.

- Seems like a will to legislate things beyond Qc, when in fact laws are actually dealing w/ jurisdiction of Qc courts. - They are not denying effects of NY court’s judgment, but that the impact of that judgment on property in Qc will

not be recognized since Qc is the one with exclusive jurisdiction on that.- Test has been focused on whether legislation has extra-territorial effect and does it purport to have effects on

property beyond its own territories. That was not the case here, so court upholds the constitutionality of the articles.- Distinction w/ Morguard and Hunt is that those dealt w/ interprovincial matters, here it is intl one.

Insurance Corp of British Columbia v. Unifund Insurance Company [2003] 2 S.C.R. 63

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Facts- The Bs, Ontario residents, were injured when their rental car was struck by tractor-trailer in BC- They received substantial statutory accident benefits (SABs) under their Ontario policy (with Unifund).- They also received substantial damages in lawsuit in BC against truck driver, paid for by ICBC.- Following BC Statute, ICBC deducted the no-fault benefits paid to the Bs from award damages in BC.- Under s.275 of Ontario Insurance Act, Unifund, as payor of SABs, is entitled to seek indemnification from insurer

of heavy commercial vehicle involved in accident.- Unifund asked for arbitrator to determine q’n of indemnification. ICBC cross-appealed for stay of proceedings on

basis that Ontario insurance regulation could not apply to them.Issue (1) Can s.275 of Ontario Insurance Act apply to ICBC? (2) Does arbitrator have a place in this?Holding (1) NO. (2) NO (ICBC wins)Reasoning Binnie (4-3 majority)- s.275 cannot constitutionally apply to ICBC bc its application would not respec territorial limits on prov jur’n.- Territorial jur’n is a fundamental part of federalism in which each prov is obliged to respect other’s sovereignty:

“Ordinarily people expect their activities to be governed by the law of the place where they happen to be and expect that concomitant legal benefits and responsibilities will be defined accordingly. The government of that place is the only one with power to deal with these activities. The same expectation is ordinarily shared by other states and by people outside the place where an activity occurs. If other states routinely applied their laws to activities taking place elsewhere, confusion would be the result. In our modern world of easy travel and with the emergence of a global economic order, chaotic situations would often result if the principle of territorial jurisdiction were not, at least generally, respected.” (LaForest in Tolofson) s. 92 of the Constitution Act, 1867: "In each Province the Legislature may exclusively make Laws in relation to" s. 92(13): "Property and Civil Rights in the Province"

- Here, even if there is a real and substantial connection that allows Ont to take jur’n, there is not a sufficient connection to make Ontario law applicable. This is consistent with the ideas of choice of law that can allow a court having taken proper jurisdiction to apply laws that are more closely connected to the dispute than those of the forum.

- What constitutes “sufficient” connection depends on the relationships among the enacting jurisdiction, the subject matter of the legislation and the individual or entity sought to be regulated by it.

- The applicability of an otherwise competent provincial regulatory scheme to an out-of-province Df is conditioned by req’s of order and fairness that underlie Can federalism.

- Here, ICBC cannot sell insurance in Ont, accidents occurred in BC w/ BC cars and ICBC benefited from deduction of SABs by BC legislation, not Ont act.

- If Unifund were correct, Ont could attach whatever benefits it liked to out-of-prov accident and require ICBC to come to Ont to reimburse Ont insurer regardless of what BC law permitted.

- This would violate BC’s sovereignty. - Since Ont statute doesnt apply to ICBC, Unifund no longer has a cause of action and issue of FNC is moot.

Bastarache (dissent)- A link w/ subject matter of claim is sufficient to establish jurisdiction simpliciter of forum and allow court to

appoint arbitrator- By signing insurer’s convention on power of attorney (w. majority saw as irrelevant), the parties have recognized

interrelationship of insurance regimes across Can and accepted that insurers in one prov can be sued in another. - Bc of this, ICBC is notionally an insurer in Ont and ^^ subject to Ont regulatory scheme.- It’s unreasonable, when deciding jurisdiction simpliciter, to enter piecemeal interpretation of regime providing for

integration of insurance protection across Can and to establish distinctions bt benefits payable to insured and indemnification of their insurers.

- FNC decided early on by asking whether there’s more appropriate forum than one chosen by Pl. Where no, the domestic forum wins by default.

- Given R&S connection to Ont, Unifund has legitimate claim to take adv of interinsurer scheme of Ont legislation- ICBC did not provide evidence that BC was clearly the more appropriate forum.- Valid prov laws can affect matters w. are sufficiently connected to prov. Unifund proved it here, so Ont has valid

jur’n and Ontario act applies.

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Ratio(1) The territorial limits on the scope of provincial legislative authority prevent the application of the law of a province to matters not sufficiently connected to it;(2) What constitutes a "sufficient" connection depends on the relationship among the enacting jurisdiction, the subject matter of the legislation and the individual or entity sought to be regulated by it;(3) The applicability of an otherwise competent provincial legislation to out-of-province defendants is conditioned by the requirements of order and fairness that underlie our federal arrangements;(4) The principles of order and fairness, being purposive, are applied flexibly according to the subject matter of the legislation.

Comments- “There is much to be said for the view that the current state of the [U.S.] Supreme Court's personal jurisdiction and

choice-of-law doctrines is precisely backwards. It is easy for a state to apply its law (which is by definition outcome-determinative) to a case, but relatively difficult for it to obtain jurisdiction over a dispute, even though jurisdiction is never directly outcome-determinative. Jurisdictional issues are unpredictable and endlessly litigated; choice-of-law matters are largely unregulated.” (L. H. Tribe, American Constitutional Law (3rd ed. 2000), vol. 1, at p. 1292). This is an interesting comment quoted in para 74 that could also be applied to Canadian law prior to Unifund.

- Unifund is Ont company, ICBC is prov corporation.Class Comments- Case based on statutory provisions not conflict of laws. It’s not priv law, tort, K or some restitutionary measure.- In underlying tort action, in BC, the truck driver (insured under ICBC) was found negligent and made to pay. His

insurance paid damage award and under BC act they were entitled to deduct the benefits that victims had claimed from their own insurance company. This statute existed to prevent double recovery. Normally the rule is that tortfeasor should not benefit from victim having insurance, but insurance company can subrogate or work it out w/ victim.

- Here the approach is for it all to be resolved at tort case level.- This scheme is actually in place in both BC and Ont but w/ exception for commercial drivers, such as truck drivers.- Here Ont insurer takes right given by Ont statute to go after BC insurer for accident and award occurring in BC- ICBC argues that statute is overreaching. SCC accepts this argument and says legislation is ultra vires in its effects.- Ont legislation was attempting to give a cause of action to an Ont resident against a BC resident w/ respect to a tort

having occurred in BC – this is extraterritorial (not incidental) effect

- Dissent draws line bt idea of jur’n simpliciter and FNC. Says the first is legal basis for legislation and the second is merely a discretion and the two are distinct aspects of jur’nal inquiry.

- Says real and substantial connection test is related to juri’al simplicter part of case and not at FNC level. - Spar interpreted (not q’d) by dissent as requiring jur’n simplicter test to be passed for there to be R+S connection.- Dissent also creates debate: in Morguard, court said that for jur’n to exist in CML there must be a R+S connection

bt subject matter and the forum. It looked at whether there was connection bt Df and forum. - Subsequent cases in CML provinces say that there must be both connection bt Df and Forum and R+S. Here court

says that either of the two connection suffices. It is reasonable to think that whole court thinks this.

D. Reform LegislationUniform Court Jurisdiction and Proceedings Transfer ActClass Comments- Sets down jurisdictional rules for Can Courts.- Uniform Enforcement of Canadian Judgments Act obliges Can court to give affect to any judgment obtained to any province

part of the UCJPTA- Provides mechanism for transfering proceedings from one court to another court in another province. Inspired by US Act to the

same effect.- Order and fairness another important aspect to claiming jurisdiction on someone based on simple physical presence.- This rule substitutes more lax rules and bases it on ordinary residence.- In broad structure the uniform act does follow the structure of the Civl Code and divides structure into three basis.

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(1) defendant connection sets it as ordinary residence(2) consent-based jurisdiction voluntary or prior agrmt(3) subject matter connection this is broadly compatible w/ CCQ which like-wise looks at subject matter connection as alternative to defendant or consent based jurisdiction.- Basic jur’nal rules are set out in proceedings in personam. (section 3)- Section 3 has 5 bases of jur’n. First three fall under rubric of consent based jur’n. Fourth is the ordinary resident defendant

connection. Fifth is the subject-matter connection.- This basis of consent based jur’n is in its substantive effect any diff from the CCQ in art 3148. But why come up w/ 3 rules

instead of 2 as in CCQ? Why insist on this diff in drafting technique? CML seems to need more precise definition. There’s CML psychological trait that everything has to be stipulated, unlike CVL where there’s more confidence in drafting of general principles.

- Ordinary residence rule is of some interest bc of diff in which ordinary residence has been defined. Section 7 defines it for corporations. In Qc it’s habitual residence. What gives?

- Section says that corporation is ord res only if corporation has a registered office in that prov, pursuant to law it has registered address in that prov, it has place of business in that prov or its central management is exercised in that prov. So there are 4 ways in which you can become ordinary resident as corporation. So, any of Can banks is rodinary res in all provinces! Diff w/ CCQ is that it says it’s domicile, defined in art. 75 by reference to registry office, unless action (subject matter) relates to a specific branch. So CCQ is more principled

- For indiv Uniform act is more restrictive towards ordinary residence, whereas for corporation it’s more expansive.- Article 3: sets subject matter connection as basis for jurisdiction. In Article 10 says theres presumption that real and substantial

connection exist if the ennumerated conditions are met. But not a conclusive/exhaustive pressumption.- Act has chosen general standard with some rebuttal guides for the purposes what constitutes subject matter relation. - Look at connections in section 10 for personal actions of patrimonial nature. For contractual obs if substantial portion of K is

meant to be performed in the prov. Compare to CCQ 3148 where it is just one of K’al obligations and here it is ‘to a substantial extent’!

- In tort, however, only pressumption that is R&S is where action concerns tort committed in the jurisdiction, whereas in CCQ fault or damage suffered in Qc is enough.

- If q’n is jurisdiction, any place that has substantial connection by way of damage or by way of fault, the courts there can exercise jurisdiction.

- If we look at bare wording of s.10, it suggests that there can only be one jurisdcition for tort in subject matter. Whereas Qc allows for choice by virtue of theory of damage or fault.

- Consumer contracts and employment contracts: no where in Uniform Act that has basis for jurisdiction like in CCQ. But in s.10(3) we see pressumption that R&S connection exists if contract is for purchase of prop, services or both and for personal purposes (ie consumer) that result in profit in prov by seller. So it’s consumer contract that is result of seller outside prov in side prov then courts have jurisdiction.

- This is aimed at same objectives as the consumer contract rule in the CCQ but crafted differently saying that if it’s consumer contract the rules of r&S connection are enough if there’s solicitation.

Think: Would Spar be decided differently under Uniform Act than under CCQ bc of R&S test? - R&S test applies not just to actions of patrimonial nature but also extends to family actions – however, commentary to s. 10

says that territorial competence for family law is generally governed by special statutes and these statutes will normally have priority over the general rules in Uniform Act.

- New aspect of act is that one of the express grounds of jurisdiction is collection of tax. So it’s subject matter of its own to owe money to govt, so where tax money is owed has jurisdiciton. (ie absence of person from a given jur’n does not make them immune from litigation to recover the $$ owed).Not quite as dramatic as one would initially think bc juri’n necessarily depends on connection to the country. This assumes connection bt indiv and territory

- Whereas CCQ allows court to decline jurisdiction for perding litigation elsewhere, there is nothing in the statute that allows this. This reflects diff btw CML + Europe. In CML the fact that there is pending litigation is not treated as anything special. It still looks at forum non conveniens and asks if the first forum where case is being tried is more appropriate forum. If no, it has no problem going ahead.

- Alternatively, court can find one of actions as vexatious.- Qc rule minimizes potential for conflicting judgments, on the other hand it makes it hard on someone where in first forum there

is no substantial cause of action.- There is no 2 separate tests in CML like there is in Qc w/ jurisdiction simpliciter and then forum non conveniens. CML has one

test for both situations.- What makes little sense is that you can have one action go one way, second in the other and have them wipe each other out

and, bc of Uniform Act, you have to make both enforceable. - CML attitutde is that they wont stop exercising jur’n bc someone else has jur’n too. It’s a big Who cares??

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Part Two – Foreign Judgments Parameters of Forum of Inquiry Idea of territorial sovereignty means (1) foreign judgments have no authority prima facie outside the jurisdiction

in which they were rendered and (2) respect for the sovereignty of other countries

3157. Recognition or enforcement may not be refused on the sole ground that the original authority applied a law different from the law that would be applicable under the rules contained in this Book.

3158. A Québec authority confines itself to verifying whether the decision in respect of which recognition or enforcement is sought meets the requirements prescribed in this Title, without entering into any examination of the merits of the decision.

However, in the appropriate circumstances, where that jurisdiction was properly exercised, other countries should provide a mechanism whereby judgments can be recognized and enforced within their own borders.

This enhances flexibility, consistency, and reduces what would be exorbitant costs of litigating an issue in every relevant jurisdiction.

Respect for the rule of law and avoiding duplicitous litigation and double jeopardy, are generally accepted. There is also reciprocal self-interest on the part of all states – their judgments are more likely to be respected and

enforced abroad – promotes 2 goals at the level of the individual citizen:o Legal remedies will be effective even if one of the parties lives in another jurisdiction or after the fact

moves to another jurisdiction; protect a weaker party who may not have the resources to litigate the merits of the claim in a multitude of jurisdictions

o Promote the federal character of a country and the national economy that does not have barriers set up that prevent the circulation of persons and products – the constitution’s goals include an economic union with free trade across borders

First point that CCQ makes on the enforcement of foreign judgments is that when someone comes to QC to have a foreign judgment recognized and enforced they have to do resort to the CCQ rules

3157 and 3158 say that Quebec courts don’t take an action to enforce a foreign judgment as an appeal. They evaluate only the rules on foreign judgments. This means that the court does not question the difference in law (3157) or even the difference in outcome (3158) from its own law and reasoning. The foreign court’s own criteria of justice should be respected unless there is a good reason.

This avoids duplication of litigation and once again deals with sovereignty. Dissatisfaction with the outcome should be dealt with by an appeal in the original jurisdiction.

What’s the difference between recognition and enforcement? All cases require recognition; not all cases require enforcement – if a decision on adoption is recognized it does not need to be enforced

How are foreign judgments recognized? Foreign court had jurisdiction The decision is final and conclusive

2 Conditions for Recognition of Foreign Judgments

1. Jurisdiction of Foreign Authorities

3155. A Québec authority recognizes and, where applicable, declares enforceable any decision rendered outside Québec except in the following cases:

1) the authority of the country where the decision was rendered had no jurisdiction under the provisions of this Title; (…)

The judgment must comply with the jurisdictional rules of Québec – the country where recognition is being sought – otherwise there would be no barriers. If they only had to satisfy their own rules they could set things up so that they would have exorbitant jurisdiction over anything and always be recognized.

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3164. The jurisdiction of foreign authorities is established in accordance with the rules on jurisdiction applicable to Québec authorities under Title Three of this Book, to the extent that the dispute is substantially connected with the country whose authority is seised of the case.

This one’s the general rule for foreign jurisdiction

3165. The jurisdiction of a foreign authority is not recognized by Québec authorities in the following cases: 1) where, by reason of the subject matter or an agreement between the parties, Québec law grants

exclusive jurisdiction to its authorities to hear the action which gave rise to the foreign decision; 2) where, by reason of the subject matter or an agreement between the parties, Québec law recognizes

the exclusive jurisdiction of another foreign authority; 3) where Québec law recognizes an agreement by which exclusive jurisdiction has been conferred upon

an arbitrator.

This article explicitly preserves the possibilities for exclusive jurisdiction or choice of forum to be respected so that these cannot just be circumvented by obtaining a judgment where they don’t recognize these and then transferring it back to Quebec.

3168. In personal actions of a patrimonial nature, the jurisdiction of a foreign authority is recognized only in the following cases:

1) the defendant was domiciled in the country where the decision was rendered; 2) the defendant possessed an establishment in the country where the decision was rendered and the

dispute relates to its activities in that country; 3) a prejudice was suffered in the country where the decision was rendered and it resulted from a fault

which was committed in that country or from an injurious act which took place in that country; 4) the obligations arising from a contract were to be performed in that country; 5) the parties have submitted to the foreign authority disputes which have arisen or which may arise

between them in respect of a specific legal relationship; however, renunciation by a consumer or a worker of the jurisdiction of the authority of his place of domicile may not be set up against him;

6) the defendant has recognized the jurisdiction of the foreign authority.

Establishes an exclusive rule “is recognized only in the following cases…” Sub paras 1 and 2 relate to location Sub paras 3 and 4 provide for subject matter connection Sub paras 5 and 6 deal with voluntary submission. This is the same ground for recognition and enforcement as for

Qc courts themselves. Only criticism is that wording is not parallel even if intent is. In particular it says “recognized” and not “submitted to”. This could be interpreted differently even if a diff is hard to see.

Compare 3168 with 3148. 3148 is for Qc jur’n so this is the parallel for foreign jur’n Note that 3148 gives broader grounds to Quebec courts to assert jurisdiction than 3168 gives credit to foreign

jurisdiction. 3168 only recognizes foreign judgments with subject matter connections where connection is all in one place. E.g. for 3148 it is enough that one of obligations of K need to be performed in Qc. For foreign judgments all obligations have to be performed there.

This is rationalized (by Lebel in Spar) by the doctrine of forum non conveniens. Quebec courts will decline jurisdiction given by 3148 if there is not enough connection. This discretion is opposed to the mandatory nature of 3168 but is meant to provide a parallel. However, this exposes the flaw that under subject matter connections (i.e. 3168(2) and (3)) you could potentially never have a foreign judgment recognized. Instead, you must resort to 3168(1), the defendant connection. This drastically limits the forum.

Can a Quebec court likewise refuse to recognize foreign judgment on basis that it was not convenient forum? No. There is no room for Qc court to do so. If the 2 criteria above are satisfied, Qc court must recognize the ruling.

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2. Finality Requirement

3155. A Québec authority recognizes and, where applicable, declares enforceable any decision rendered outside Québec except in the following cases: (…)

2) the decision is subject to ordinary remedy or is not final or enforceable at the place where it was rendered; (…)

This is second condition to recognize foreign judgment. What does final and enforceable mean? There must be no more recourses or remedies open to either party (i.e. no

appeals, no revocation, etc.). This is opposed to the CML rule where it is recognizable even if an appeal is possible until and unless the

prospective appellant brings evidence of an intent to appeal (in which case they would stay the proceedings). The main difference then is one of onus. CML places onus on Df to go show that he has filed appeal. This is more favourable to the plaintiff and has a procedural advantage of allowing provisional measures during

the appeal to protect the claimant (e.g. from the absconding of the assets sought). Balance is that under both rules the concern is that appeal process could make Pl become Df and now have to

respond in other jur’n’s courts. CML then shifts onus to the losing party.

Defenses Against Recognition1. Procedural Fairness Requirement


3) the decision was rendered in contravention of the fundamental principles of procedure; (…) 3155(3) underscored by fundamental ideas of fair procedure such as right to be served notice of proceeding, or Df

not allowed to present defense. This translates to a broader fundamental right to be heard and present a case.

3156. A decision rendered by default may not be recognized or declared enforceable unless the plaintiff proves that the act of procedure initiating the proceedings was duly served on the defaulting party in accordance with the law of the place where the decision was rendered.

However, the authority may refuse recognition or enforcement if the defaulting party proves that, owing to the circumstances, he was unable to learn of the act of procedure initiating the proceedings or was not given sufficient time to offer his defence.

What about procedures that allow default judgment? Is that in violation of fundamental principles of procedure. Art 3156 clarifies this. So judgment in default is ok as long as you were notified of proceedings. Can’t throw notice in garbage and then say that your fundamental principles of procedure were violated.

Caveat in para 2that explains what is meant by being truly notified.

2. Taxation Exception


6) the decision enforces obligations arising from the taxation laws of a foreign country. Fairly universal exception. CML equivalent is broader. It encompasses not only taxation laws, but also penal laws which include criminal law

and regulatory fines/offences. Instead, taxation issues are dealt with at an administrative and executive level through bilateral agreements and

criminal offences are dealt with by extradition.

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Criminal law is another procedure and is authorities of state that apply to legal system for enforcement. Plus, under Can federation, Crim is federal.

Why tax and penal laws? Foreign tax and penal laws are not recognized because they largely reflect public policy of another state. What is misbehaviour in one place may be acceptable somewhere else.

So the CML idea was that they wanted to avoid open public policy debate about taxation and penal laws of another state. This has potential for diplomatic incident. Hence the a priori rule.

If in particular case there is problem from public policy perspective of accepting then Qc uses 3155(5)

Other ways of Revoking1. Public Order


5) the outcome of a foreign decision is manifestly inconsistent with public order as understood in international relations; (…)

Manifestly inconsistent is something we can’t possibly agree with. Public policy understood in the context of international relations.

This is Quebec’s response to broader problems of the public policy substance of foreign laws. Public order well understood and accepted. Can’t be at level of we don’t like what you do and in our society we

don’t live like that but it has to be at very fundamental level (e.g. human rights are protected, gambling is no longer considered “manifestly inconsistent” even though it is illegal in Canada).

2. Conflicting Judgments


4) a dispute between the same parties, based on the same facts and having the same object has given rise to a decision rendered in Québec, whether it has acquired the authority of a final judgment (res judicata) or not, or is pending before a Québec authority, in first instance, or has been decided in a third country and the decision meets the necessary conditions for recognition in Québec; (…)

Counterpart to Jurisdictional Rules Aim is to prevent recognition of conflicting judgments. So 3155 says that Qc authority does not give effect to

judgment that could contradict the Qc judgment (or Qc recognized judgment). For example, if there are Qc proceedings pending and someone comes with Ont judgment, Qc wont hear it. Same

thing if court says there’s decision on 3rd country. [For third countries, is it the first to be rendered? Or recognized?]

Traditional Common Law Rules The same CML rules were in effect for over 100 yrs until Morguard decision. These rules were simple: Judgments from another province or country would be recognized on two bases:

1- Presence or residence of defendant in foreign court territory when served w/ notice2- Voluntary submission whether by way of choice of court agreement or showing up (attornment).

Morguard speaks to more recent legislation that essentially had codified the previous rules. Leading up to Morguard, other recent legislation on the procedural Rules of Court in the different provinces began to allow a plaintiff to serve a defendant outside the province under certain circumstances. These are really still, even now, just procedural rules, but they have been applied in such a way that it is assumed that if one can serve the defendant under these rules, then the court had competence to assume jurisdiction. In that way, Morguard responded to the situation where courts were assuming broader jurisdiction but refusing to recognize any sister province judgments.

Morguard has now provided for a third, broader, and “constitutionally imperative” basis for recognition of sister province judgments – that is the subject matter criterion of “real and substantial connection”.

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Case Law Traditional CML basis for foreign court recognition were

(1) presence or residence in foreign jur’n when served with process and (2) submission to choice of court by contract or attornment.

Morguard adds third basis: (3) real and substantial connection to the foreign jurisdiction. Within Can it’s setttled that courts have to, based on Constitutional imperative, give full faith and credit to sister

province’s judgment. This is first put in Morguard, then affirmed in Hunt and most recently in Beals. Expansion in doctrine of recgonition goes beyond sister province recognition but extends to US, European courts,

etc. This is expansion of CML doctrine of intl comity and idea that Can should be open to respecting foreign judgments – provided there’s significant connection and other basis is met.

BUT we’re left w/ uncertainty w/ regards to the actual meaning of the connection.

Morguard Investments Ltd. v. De Savoye [1990] 3 SCR 1077Facts De Savoye mortgaged lands from Morguard when he lived in AB. Then moved to BC. Mortgages fell into default and Morguard took action in AB De Savoye did not respond to actions (no attornment nor defense). Mortgage K did not specify jurisdiction. In De Savoye’s absence, Morguard got property back and got judgments against DS for difference btwn value of

property and the amount owing on the mortgages. M then brought separate action in BC SC to enforce AB judgment. It was granted and reinforced in Court of Appeal Issue: Can BC court recognize AB decision in a personal action brought in AB when DS did not live there?Holding YES (Morguard wins)Reasoning “Modern states cannot live in splendid isolation…The content of comity therefore must be adjusted in the

light of a changing world order.” Bc jur’n is territorial, a state’s law has no binding effect outside it’s jur’n. But modern states cannot live in

isolation and do give effect to judgments given in other countries in certain circumstances. This is the basis for comity.

Comity is based on respect for foreign sovereign, justice, necessity, and convenience. It must be adjusted as times change.

Definition of comity:“‘Comity’ in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.” (Hilton v. Guyot, 159 U.S. 113 (1895))

The principles of order and fairness must underlie a modern system of private international law. Courts made serious error in transposing rules developed for enforcement of foreign international judgments to

enforcement of judgments of sister provinces. They contradict Constitution’s intentions to create single country w/ common market and citizenship

“The considerations underlying the rules of comity apply with much greater force between the units of a federal state… the 19th Century English rules seem to fly in the face of the obvious intention of the Constitution to create a single country.”

This goal speaks to a strong need to enforce throughout the country the judgments given in one province. Cannot argue for differential quality of justice among provinces since all judges are federally appointed and

subject to review by the SCC, which determines when jur’n is overstepped and when to recognize judgments of one prov.

“The courts in one province should give full faith and credit, to use the language of the United States Constitution, to the judgments given by a court in another province or a territory, so long as that courts has properly, or appropriately, exercised jurisdiction in the action.”

“There does not see to be any compelling reason against recognizing a jurisdiction which the forum itself claims.” (JG Castel, “Recognition and Enforcement of Judgments…” McGill LJ (1971))

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“If it is fair and reasonable for the courts of one province to exercise jurisdiction over a subject-matter, it should as a general principle be reasonable for the courts of another province to enforce the resultant judgment.”

Given proper jurisdiction, a judgment can be recognized or enforced in another province…but this presumption must still be weighed against fairness to the Df.

Order and fairness necessarily implies finding a connection btwn jur’n, Df and subject-matter of the suit. Thus, in broadening the recognition and enforcement of judgments from other provinces there must be restraint to

the exercise of jurisdiction. That limit is found in the real and substantial connection of the prov w/ the action. There can also be other discretionary techniques that can be used by courts to refuse jurisdiction where contact

with the jurisdiction is tenuous or where entertaining the proceedings would create injustice. These are notably the doctrine of forum non conveniens and the power of a court to prevent an abuse of its process

There may also be other remedies available to the defendant in the recognizing court such as fraud or conflict with the law or public policy of the recognizing jurisdiction. There may also be room for the operation of s. 7 of the Charter.

Here, action was in AB and rightly so, so there was R&S connection btwn the damages suffered and the jur’n. Bc AB had proper jur’n, its judgment should be recognized and enforced in BC.Ratio The principles of order and fairness underlie modern Private International Law. They serve to ensure

justice through the balance of the security of transactions and fairness to the parties involved. It is anarchic and unfair that a person should be able to avoid legal obligations in one province by moving

to another. Considerations underlying rules of comity apply with greater force between the units of federal state (i.e.

between sister provinces and territories). The obvious intention of the Constitution was to create a single country with a common market and

common citizenship. It is a constitutional imperative that courts in one province give “full faith and credit” to judgments of the

courts of other provinces so long as those courts have properly or appropriately exercised jurisdiction in the action. If it is reasonable to support the exercise of jurisdiction in one province, then it is reasonable that the judgment be recognized in other provinces.

But proper jurisdiction demands that there be a real and substantial connection between the damages and the jurisdiction or the Df and the jurisdiction. This is the only requirement then for recognition and enforceability of sister province judgments.

Nonetheless, several defenses remain that could be invoked to refuse to recognize a sister province judgment. These are notably,

1. the doctrine of forum non conveniens, 2. the power of a court to prevent an abuse of its process, 3. fraud, 4. conflict with the law or public policy of the recognizing jurisdiction, or 5. possibly s. 7 of the Charter.

Class Comments This is clear case of recognizing sister province’s judgment. There are no foreign elements except that the debtor

had moved to BC by the time that the process was served and the judgment made. Mortgage taken at time when there was boom in real estate mkt. Followed by chilling crash. So Bank unable to

recover its loan when it resold the repossessed land. So it sued to recover the resulting deficiency to satisfy the debt. By this point, Df had moved to BC, so lender need BC courts to give effect to AB judgmt to get his $$$. Traditional CML doctrine, if applied to the facts, would not allow BC courts to recognize the AB judgment. Lender could not rely on residence or presence, nor had there been submission (by K or attornment) of served order Lender had not thought to put a choice of court agreement in the mortgage K (now they do!) If there was ever case crying out for expansion in CML doctrine this was it! If recognition was refused, the result would be that by moving to very next province one could leave behind debts.

This would be difficult policy result.

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BC courts had made previous murmurings that they were prepared to look for weakness in CML doctrine. Hence council for lender willing to go ahead with case. LaForest follows the lead of BC courts.

Broad policy thinking that goes thru LaForest’s decision is one we can be sympathetic to particularly w/ these facts Talks of how judges are appointed federally, how constitution and other legislation that all point to idea of justice. But leaves a lot of qns unanswered.

Initial view coming out of Morguard was that R&S connection (bt foreign jur’n and subject matter of the claim) was third basis for recognition, added to the previous two rules. That structure is more or less reflected in the CCQ.

Overarching idea of R&S connection is one of order and fairness. This makes us re-evaluate idea of physical presence as sufficient. Particularly transient physical presence (e.g. the

plane going over Arkansas). So we must have a more rigorous requirement than mere physical presence.

Beals and Parsons cases have different interpretation of jurisdictional approach. They result in there being 2 over-arching principles: (1) order and fairness and (2) real and substantial connection Question is if they are complimentary or self-sufficient.

Hunt v. Lac d’Amiante and T&N [1993] 4 SCR 289Facts Hunt works in BC and suffers from cancer he alleges was caused by asbestos originating in Qc and sold by Df Hunt sued Qc companies in BC for damages. In doing so, he req’d docs relating to the action. Docs were in Qc. Qc Business Concerns Records Act prohibits removal from prov of docs relating to business concern in Qc pursuant

to requirement of judicial authority outside the province. So Df did not hand over any documents Hunt served demands for discovery of docs under Rule 26(1) of BC Rules of Court. Df said Qc Act prevented

compliance. Hunt insisted but BC courts allowed such “lawful excuse” to not comply w/ judicial demands. BC courts acted on basis that Qc Act was valid and BC courts had no jur’n over constitutional validity of Qc statuteIssue Is Qc statute ultra vires and therefore constitutionally inapplicable to other provinces? Holding YES (Hunt gets access to docs)Reasoning LaForest J. Courts should have considered constitutional validity of Act. Conflict of laws doesn’t prevent questioning

constitutionality of the laws of another jurisdiction. The issue of what is foreign law is a matter of fact to be determined by the trial court. Determining constitutionality

falls within this determination of material facts. That other jur’n is another Can prov abiding by same constitution only reinforces this idea.

However, courts should only hear constitutionality challenges to legislation of other province when it’s incidental to the litigation and only where there’s real interest affected in their province. Otherwise, forum non conveniens would militate against jurisdiction over the constitutional dispute.

The SCC is also not bound by the powers of the court from which it receives an appeal. It may exercise its plenary jurisdiction and powers in hearing a case, no matter where it originates.

Recognition and enforcement of other province’s judgments should be taken in light of Canadian legal interdependence

“The old CML rules relating to recognition and enforcement were rooted in an outmoded conception of the world that emphasized sovereignty and independence, often at the cost of unfairness.”

Greater comity is req’d in our modern era when intl transactions involve constant flow of products, wealth and ppl Plus, inherent in Can federation that courts in e/ prov should give “full faith and credit” to judgments of other provs Prov can enact laws that affect litigation in other prov but it must respect minimum standards of order and fairness. This statute’s purpose is not to keep docs in prov but to impede successful litigation in other jur’ns by refusing

recognition and compliance with orders issued there. This runs counter to comity! Since courts are constitutionally constrained to take jurisdiction only where there are real and substantial

connections to that place, the Qc Act is an anachronism that is inimical to interprovincial litigation if applied on interprovincial level.

At practical level this statute impedes courts from assuming full jurisdiction even when there are real and substantial connections.

Ratio

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Courts can determine the constitutionality of foreign laws, but only when it is incidental to the litigation and there is a real interest affected in their province.

Guiding element in determination of an appropriate forum must be principles of order and fairness. Comity (i.e. minimum standards of order and fairness) must be respected when enacting legislation that

affects litigation in other provinces.Comments Qc Act constitutionally inapplicable to other provinces and to this case. This is because full faith and credit

supposedly extends to the court order to furnish evidence in BC. This case reinforces several of the principles put forward in Morguard:

1. Canadian courts are constitutionally required to give full faith and credit to other provinces’ judgments.2. Order and fairness underpin all questions of PrIL, including jur’n and effect of foreign judgments.3. Real and substantial connection is constitutionally required in order to assume jurisdiction. 4. Forum non conveniens operates as a further limit on real and substantial connection.

Hunt also seemed to state that unfairness of process would not be a defense to recognizing interprovincial judgments. At least, it suggest that those issues are to be addressed in an appeal in the original province’s courts.

It is also noted that the powers of the SCC are plenary no matter how the court is invoked. There is also an interesting aside about how the federal government should be able to legislate in the area of PrIL

under trade and commerce, citizenship, other headings, and POGG.

Beals v. Saldanha [2003] 3 SCR 416Facts Saldanha is resident of Ont. He sold vacant lot in Fla to Beals. In ’86, B sued S in Fla. Case underwent many amendments. S filed original defense but did not respond to amendments and wasn’t notified of the amendments. In Florida law,

these amendments required the refilling of a defense. Jury awarded awarded B >US$200K by default judgment. Ont lawyer advised S that foreign judgment could not be enforced in Ont. So S took no steps to contest or appeal in

Florida. Damages weren’t paid and B started an action in Ont to enforce Fla judgment. Bc of interest and other amendments,

damages now at approx. US$800KIssue Is the Florida judgment to be enforced in Ontario?Holding YES (6-3 decision) (Beals wins)Reasoning Major (McLachlin, Gonthier, Bastarache, Arbour, Deschamps concurring) “Subject to the legislatures adopting a different approach, the “real and substantial connection” test, which

has until now only been applied to interprovincial judgments, should apply equally to the recognition and enforcement of foreign judgments.”

Thus, foreign judgments are enforceable if significant R+S connection exists bt cause of action + foreign court. Here such a connection exists bt Fla jur’n, subject matter of action and the Df. Since Fla court properly took jur’n its judgment must be recognized and enforced by domestic court unless there’s a

defense that bars enforcement. There are 3 such defenses: (1) fraud (2) natural justice (3) public policy

(1) Fraud: can only be used where allegations are new and not the subject of prior adjudication (i.e. new evidence not available or discoverable at time of trial). Here the defense of fraud not made out since they could’ve found and presented evidence in the Fla action.

(2) Natural justice: restricted to form of the foreign procedure and to due process. This does not relate to merits of the case. Had the procedure not been in accordance w/ Can’s concept of natural justice, judgment would have been rejected. S did not raise reasonable apprehension of unfairness. S was given fair opportunity to respond to Fla action but chose not to because of negligent legal advice. That negligence cannot preclude enforcement of B’s judgment.

(3) Public policy: depends on whether foreign law is contrary to our view of basic morality. Award of damages by Fla jury does not violate our principles of morality so as to shock reasonable Canadian. This defence is not

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meant to bar enforcement of judgment of foreign court that met R&S connection test simply bc claim in foreign jur’n would not yield similar result (i.e. comparable damages) in Canada.

s. 7 was rejected as a possible defense against the financial effects of a judgment, whether domestic or foreign.

Binnie (w/ Iacobucci in dissent) Agree that R&S connection test is appropriate conceptual basis for enforcement of final foreign judgments Here, Fla did have jur’n, but important q’n is whether S were sufficiently informed to determine if they should

participate in it or let it go by default. Natural justice defense applies bc B’s complaint didn’t adequately convey to S importance of decision to be made

and the case was subsequently transformed by the amendments. Cumulatively, events show an unfair procedure which in this case failed to meet standards of natural justice. Fla

court did not take adequate steps to inform S what default of pleading entailed and this is heart of the appeal. Canadian resident cannot be presumed to know the law of another jur’n. S also not told that B settled w/ other parties in Fla and had other recourses to object to headings of liability (e.g.

punitive damages), leaving S as sole target at damages trial.

LeBel in dissent R&S connection test needs modification when applied to judgments outside Canadian federation. Propriety of foreign court’s jur’n should be carried out in way that acknowledges additional hardship put on Df

who is required to litigate in foreign country. Purposive, principled framework should also not be confined questions of jurisdiction

“Liberalizing the jurisdiction side of the analysis while retaining narrow, strictly formulated categories on the defence side is not a coherent approach.”

Jur’n test itself should be applied so assumption of jur’n won’t be recognized if unfair to the Df. Comity as obligation bt sovereign nations not same as bt prov. Bc of contextual and purposive approach, rules

of recognition and enforcement of foreign country judgments should carefully reflect realities of intl context and calibrated w/ objective of faciliting intl interactions. However, This does not mean that they should be as liberal as the interprovincial rule.

Hence there is a need for necessary connections to be applied more strictly, in way that gives due weight to protection of Can Df w/out disregarding legitimate interests of foreign claimants.

“This approach is consistent with both the flexible nature of international comity as a principle of enlightened self-interest rather than an absolute obligation, and the practical differences between the international and interprovincial contexts.”

Sway rests on connection being strong enough to make it reasonable for Df to be expected to litigate there. The greater the burden on the defendant to litigate in the foreign jurisdiction, the stronger the connection must be. To treat foreign judgmt equally to one from another prov fails to account for differences bt interprovincial and intl

contexts and does not reflect diff bt assuming jur’n and enforcing foreign judgment. Accordingly, the defences to effects of foreign judgments should also be made more generous – e.g. fraud could

still be pleaded even if it was previously discoverable if the default of the defendant was demonstrably reasonable. In this case, even the more generous public policy and fraud defences are not made out, but natural justice defence

is bc S was not given sufficient notice of extent and nature of claims against him. Has policy concern that enforcement of this judgment would shock conscience of Canadians, since Fla Pl appears

to have taken adv of S’s difficult position to pursue interests as aggressively as possible and secure sizeable damage awards. Implication of majority is that Can Dfs are now obliged to participate in foreign lawsuits no matter how meritless, on pain of potentially devastating consequences from w. Can courts will be powerless to defend them

Ratio “R&S connection” test should apply equally to recognition and enforcement of foreign judgments. Test

requires that significant connection exist btwn cause of action and the foreign court. (Not necessarily defendant and foreign court.)

3 defenses to recognition of foreign judgment when the R&S connection test met: (1) fraud, (2) natural justice and (3) public policy. All carry high burden of proof.

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Binnie Dissent: judgment based on inadequate notice is violative of natural justice and default judgment that rests on such an unfair foundation should not be enforced.

LeBel Dissent: R&S connection test must be applied + strictly in foreign judgment cases. To not do so fails to account for differences bt interprovincial and intl contexts and does not reflect diff bt assuming jur’n and enforcing foreign judgment.

Comments Binnie’s dissent puts extra pressure on foreign court to ensure non-resident is aware of laws. Is this buden too high? LeBel’s dissent makes R&S connection test very flaky and malleable for foreign judgments. “Subject to the legislatures adopting a different approach” probably tries to leave the door open to CCQ’s

differences from CML jurisdictions or the enactment of reform legislation. In international sphere, sovereignty still applies and trumps comity.

Class Comments For testing jur’n of foreign courts, we must apply R&S connection test. The test is satisfied in a variety of ways:

residence of Df, subject matter connection, and even consent or submission¶29 (Major) “in absence of a diff statutory approach, it is reasonable that a domestic court recognize and enforce

a foreign judgment where the foreign court assumed jur’n on the same basis as the domestic court would, for example, on the basis of the ‘real and substantial connection’ test.”

¶37 (Major) “A real and substantial connection is the overriding factor in the determination of jur’n. The presence of more traditional indicia of jur’n (attornment, agreement to submit, residence and presence in the foreign jur’n) will serve to bolster the real and substantial connection to the action of the parties.”

This leaves it unclear whether R&S connection is sufficient on its own or whether it needs to be complemented. It also makes unclear whether there are other factors that suffice (w/out R&S connection) such as presence, attornment or K.

Even more important in this judgment is, going back to ¶29, that R&S connection test for domestic jur’n is same as test for permissible basis for foreign country jur’n.

This means Can will recognize foreign judgment if, based on same facts, our courts would take jur’n. Goes w/ idea of reciprocity.

But, this is a misuse of “reciprocity”. True reciprocity would be if foreign courts also used R+S to recognize Can judgments.

LeBel’s dissent objects to this idea. Concerned bc CCQ claims far more expansive jur’n for Qc courts than it is willing to concede for foreign courts.

LeBel additional reason for concern: that test for jur’n should also be same for domestic as for intl contexts. Thinks there should be higher threshold for recognizing intl judgment than for domestic/interprovincial ones.

Parsons v McDonald’s [2005] Ont CAFacts Class action suit brought first in IL bc of fraud in McDonald’s promo game. Suit included non-resident Canadians IL court directed notice of class action to Canadians by given on ads in Mclean’s and 3 Qc newspapers. Currie did not participate in IL proceedings. Parsons challenged IL settlement. Both represented by same law firm. Boland judgment in IL gave settlement in the US. If accepted in Ont, Currie’s proposed class action is precluded. Extra info came out after settlement on how McD ordered for high value prizes not be awarded in Can. Parsons action dismissed bc he had attorned to IL jur’n. Trial judge would not dismiss nor stay Currie action bc, though IL court had jur’n over non-resident, non-attorned

Pl class members, adequate notice given was so inadequate it violated rules of natural justice. So Boland not recognized and enforced so as to bind Currie’s class action.Issues(1) Should Ont courts recognize and enforce Boland judgment against Currie and non-attorning Can class members?(2) Did notice to Can class members satisfy the requirements of natural justice?(3) Is Currie precluded by doctrines of res judicata or abuse of process from prosecuting his claim in Ont?Holding (1) NO (2) NO (3) NO (Currie wins and can file class action)Reasoning Sharpe J.(1) Recognition of Boland

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Recognizing and enforcing IL judgment approving settlement turns upon application of Morguard’s 2 principles for assessment of propriety of conflict of laws jur’n: “order and fairness” and “real and substantial connection”

Fairness to the party against whom enforcement is sought requires that judgment be issued by court acting through fair process and w/ properly restrained jur’n.

R&S connection test serves to control assertion of jur’n. It is flexible and there’s no strict or rigid test to be applied. Beals adapts Morguard to intl judgments. Test used as the overriding factor in determination of jur’n; it requires a

significant connection bt cause of action and the foreign court. The connection to foreign jur’n must be substantial. The novel point raised in this appeal is application of R&S connection test and principle of order and fairness to

unnamed, non-resident plaintiffs in intl class actions. (ouish! This is narrow!) Importance of recognition of intl class action is to have claims finally resolved in one jur’n. Ont court that asserts

jur’n in proper manner wants to be recognized and enforced. Comity requires that Ont law do same to foreign class action judgmts.

“Before enforcing a foreign (class action) judgment … [the court] should ensure that the foreign court had a proper basis for the assertion of jur’n and that interests of Ont residents were adequately protected” (i.e. R+S connection and order and fairness).

“To determine whether the assumption of jurisdiction satisfies the R&S connection test and the principles of order and fairness it is necessary to consider the situation from the perspective of party against whom enforcement is sought.” (here the unnamed, non-resident class members).

The reasonable expectations of the party against whom enforcement is sought should be considered. The particular dynamics of class actions can also come into play. This forces upon the court a duty to ensure

interest of Pl class members are adequately represented and protected. IL court had jur’n and meets R&S connection test. But principles of order and fairness are not met bc Currie Pl did nothing that could provide basis for assertion of IL

jur’n, while McD Canada invited jur’n of Ont courts by carrying business there. ^^ recognizing IL jur’n would be unfair to ordinary McD customer in Ont unless IL court respected procedural

rights, including adequacy of representation, adequacy of notice and right to opt out, to alleviate these concerns

(1) Adequacy of representation speaks to possibility of quasi-fraud. For example, accepting sharply discounted recovery rate for non-resident class members.

(2) Adequacy of notice speaks to “if it were clearly brought home to them that their rights could be affected in the foreign proceedings if they failed to take appropriate steps.”

(3) Right to opt out is a particular requirement of class actions where there are unnamed parties. In order to be meaningful, it implicates the adequacy of notice as to the opt out. Given adequate notice, however, the failure to opt out is “a form of passive attornment”.

Notice issue does bear upon jur’n and no adequate notice was given. Ont courts should not recognize and enforce Boland judgment against Currie, but it can still impact class action suit

by principle of no double recovery.

(2) Notice to Canadian class members Agrees w/ trial judge that dissemination in Can was so woefully inadequate that IL decision offends rules of natural

justice. This (and a lack of understandability) also took away right to opt out. The domestic standard (as put forward in legislation) is irrelevant. What matters is the fundamental principles of

justice themselves, not the letter of the rules in either system that are designed to give effect to those principles. US and Can class members had similar interests at stake and there was no relevant basis upon w. IL court could

have concluded that one standard of procedural fairness was appropriate for US class and another for Canadian. “Natural justice surely requires that similarly situated litigants be accorded equal (although not necessarily

identical) treatment.”

(3) Res judicata as precluding claim

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That it was same law firm for Parsons and for Currie is not important. The financial stake of the class as a whole exceeds that of the law firm and the legal rights being advanced are of the class members, not the law firm. Furthermore, Parsons would have no authority to submit their rights to the IL jurisdiction.

Res judicata has no bearing here. Parsons and Currie are not privies and doctrine of abuse of process is not applicable here.

Ratio “To determine whether the assumption of jur’n by foreign court satisfies the R&S connection test and the

principles of order and fairness, it is necessary to consider the situation from perspective of party against whom enforcement is sought.”

Court needs to take steps to protect procedural rights of Pl class. This includes: (1) adequacy of representation (2) adequacy of notice (3) right to opt out.

IF (a) there’s R&S connection linking cause of action to foreign jur’n, (b) rights of non-residents are adequately represented and (c) non-residents are accorded procedural fairness, THEN it may be appropriate to attach jur’n consequences to unnamed Pl’s failure to opt out. This w/ caveat that no test can be too rigidly applied and that it may be easier to justify assumption of jur’n in interprovincial cases than in intl cases.

Natural justice requires similarly situated litigants to be accorded equal (not necessarily identical) treatmentClass Comments Sharpe J is one of leading judges on PrIL Starts w/ order and fairness: compels us to think level of order preserving security of transactions. Stability of legal

rights and their effectiveness created by that transaction. This means that we should be prepared to recognize and to give effect to a judgment rendered by another court and preserve the security of transactions.

Fairness, he says, means that we should be open to preserving security of transactions, this should only be done if rendered by court w/ proper jur’n.

Under this formulation order is a value of transaction and allows foreign judgment recognition. Fairness is viewed in light of Df, meaning there should be jur’nal restraint by foreign courts.

At this 2nd (fairness) level R&S connection test plays role in controlling expansion of jur’n. Treats connection w/ jur’n as either informing defendant connection or subject matter connection. Says nothing

about submission and that’s helpful bc to extent majority in Beals talks about submission and choice of court as one of factors of R&S connection it is plainly wrong if there’s choice of law agreement. Helpful that he narrows it to defendant, subject matter or both.

His emphasis is on the test as being a flexible one and not yet fully defined or rigid. Important for Sharpe to set that discussion in that way bc he does something unusual in his ultimate ruling: he talks of foreign country judgments in class action and adds new element that can be taken into consideration.

Can there be class action in Ontario, based on something that’s already been settled in US? Df says that Pl wants to sue twice in same class action and if this is recognized it undermine US judgment.

Qn becomes class action involving unnamed palintiffs from another country, Canada. In Canada, if you want to bring class action in province X, with defendant whose injuries have affected residents

throughout Canada, what do you do? Should you be able to consolidate them in one province? Well, yes, or you’d have 13 diff proceedings and the bigger the class, the greater the benefits and savings for the Plaintiffs.

Should we allow US courts to be recognized deciding class action cases that involve Canadian victims? If principle is one of efficiency, then yes. But procedural safeties must be taken

Sharpe says that test should apply equally to class action as to any other type of proceeding, so we won’t recognize class action emanating from US unless R&S connection and order and fairness principles are both met.

Ont was HQ of McD Canada, so residence connection is satisfied, though Sharpe J recognizes it’s weak one. Looks at how interests were not appropriately protected bc judgment came from settlement agreement. So what is new is the test that Sharpe devises in context of this test: provided there’s R&S connection to foreign

jur’n, provided that rights of non-resident class members are respected, and provided that there’s procedural fairness, including adequate notice, then judgment can be recognized.

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What’s novel about this approach is that for purposes of testing the jur’n of foreign court first you have to show R&S connection but secondly there must be level of procedural fairness to the decision or to the process leading up to the decision. There has to be adequate protection of Pl’s rights.

Test for adequacy of jur’n is composed of traditional elements of R&S test and in addition seeks procedural fairness in sense of adequacy of representation of interests, adequacy of notice and right to opt out.

First one of adequacies is more difficult to treat under rubric of procedural fairness standing alone. He’s using jur’nal rubric to expand the defenses and recast them in a way that does not put the parties affected by class action in position of having to overcome the burden of proof.

This case raised the issue of notice. However, some Canadian jurisdictions (including Ontario) don’t require notice in many cases. Sharpe reasons that the US courts did not follow rules of fundamental justice by not applying their own rules of notice to the Canadian plaintiffs. So, even though our rules don’t apply that standard, they did not follow their own rules in the US. However, this case shows that class actions are just not as simple as normal actions because policy creates specific procedures.

It seems then that you can rely on the best of both worlds. Whichever standard is higher might prevail.

Reform Legislation

Uniform Enforcement of Canadian Judgments and Decrees Act

Class Comments: Enforcement proceedure that is contemplated is an application for registration of foreign judgemnt so that it appears

as if it were rendered by the local courts. This gives recourse to all mechanisms of enforcement. Section 3 (6)(a) Court cant refuse solely on grounds of jur’n under rules of PrIL. Very dramatic but the Court Jur’n

Proceedings transfer act plays down jur’nal criteria for determining when Canadian courts can take jur’n. Idea then of uniform enforcement act is to work in tandem with the jur’n and proceedings act. If you want to object of jur’n of canadian court you must go to initial proceeding in foreign court and make the challenge there. Wanna make argument that court lacks competence? You gotta go to first place where proceedings started.

Practical reality is that if you don’t object in first place, then you cant go to second place and complain. All of challenge to jur’n, to recognition and all proceedings have to take place in the initial jur’n.

Finality requirement: carried fwd in section 2(2) of Act. Allows enforcement of judgments nationally, and not only the ones relating to $$. Can extend to injunctions, eg.

Defenses in section 6 Finality means in contrext of CCQ extends to non enforcement in Qc if an appeal is pending. Time for appeal or

other types of relief have not expired, then Qc court wont recognize or give effect. CML did not have such a philosphy for CML finality is met if judgment is final and conclusivein court in which it was rendered even if appeal is possible.

If you go to section 6(2)(c)(ii) you can see how enforcing court has to wait until appeal period in first jur’n has to wait.

Diff with Qc is that appeal has to exist only in theory, here it requires Df to say that not just is appeal is possible but that he intends to take it or is taking it. Longer dealy period the longer df unwilling to pay to make himself unable to pay by making assets disappear.

This preserves CML rule and adds provission that something real has to be going on and it’s not just theoretical.

Defenses: principle that procedural fairness must have existed (there in Parsons and Beals) continue. The Act treats idea of procedural fairness in section 6(3)(c) . Says nothwithstanding 6(2) the court shoould not make an order staying or limiting the enforcement of a registered Canadian judgment solely on the grounds that other Court acted in breach of principles of natural justice or fairness. Even if you can show 1st court was flagrant in that regard, it’s not a defense to enforcement in 2nd court. What’s recourse if court denied you natrual justice? Go to court of appeal.

There may well be less civilized systems of justice where ideas of fairness don’t correspond to Canadian norms, but assumptions is that we cant assume that everybody’s got Charter that protects guarantees of due process, etc, etc BUT in Canadian context you CAN make that assumption. That you will not be in position to claim breach of one tribunal in another. There may well be breach but remedy exists with a superior court.

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So at first this rule, then, seems shocking. But it’s not bc assumption is that you can have remedy in original jur’n and then that brings in section 6(2) (ie an appeal) and that halts the process of recognition in second place.

Taxation: CML had general rule against both taxation and criminal and regulatory violations where penalties where fines. That exclusions has been carried forward to this legislation in Section 1(e).

Other exclusions are a bit odd in section 1 such as support obligations for child support. But there is other special legislation that provides for interprovincial enforcement of support orders for childern, etc. There are also intl conventions on family law, etc.

Under amendment act, this has been expanded to not just court judgments but also includes administrative tribunals in exercise of judicial function. (CCQ phrases court as Qc legitimate legal authority so this expansion has same effect as that)

One exception that’s still there is section 6(2)(c)(iv) that you can argue that enforcement should not be received bc judgment is contrary to public policy in enacting province (BC in example…ie the second place)

Uniform Enforcement of Foreign Judgments Act For Foreign country judgments the same assumptions are made bc foreign country courts are not bound by

Morguard principles, not subject to a known jur’nal standards comparable to those of Canada. So tehre is a test: the foreign court must have jur’n in canadian sense. This is in section 4(a)

Sections 8 and 9 set out the conditions that must be bet. 8(a) and(e) relate to defendant, 8(a) and (b) to voluntary submission, 8 (f) speaks to real and substantial connection.

8(f) is expanded for non default judgments in section 9. Concern w/ r&s connection arises w/ default judgment Both section 8 have to be read in light of section 10. It says that foreign judgment may not be enforced if there was

no real and substnatial connection and it was clearly inappropriate for that state of origin to take jur’n. What does this mean? Df is relying on voluntary submission or pure defendant basis. So section 8 gives basis for jur’n but if that’s all you’re relying on, and court agrees that it was clearly inapropriate to take jur’n then the court will not enforce the judgment.

When would Can court find that only connection to forum is that Df had ordinary residence? When you argue forum non conveniens and say there is clearly more appropriate forum where case should be taken.

So this is saying that we in Can we don’t exercise our jur’n on cases on basis of df based jur’n except in cases of giving up jur’n, if there is a better forum so the same to apply to others who take jur’n when there was another better place to give jur’n.

Commentary goes to CCQ 3164. We recognize your jurn based on our rules which include domicile or residence in state subject to requirement for a connection bt dispute and the state.

Finality req’t approached here by definition in section 2: final decision made by court or adjudicative body. Same

wording as Enforcement of Canadian judgements Act. So does it mean that all appeal possibilities have been refused or is when appeal is still possible. Answer is in section 4 (c)

Other defenses found in 4(e) and 4(f). Fraud and procedural fairness and natural justice. Consistent w/ conventioanl views. Exclusion of enforceability of foreign jud’ts based on taxation laws is carried forth in section 3(a)

Public policy in 4(g) 4(h) has big civil law influence. It relates to pending proceedings. Beals and Saldanha’s influence is shown in fraud defense in 4(e). Fraud defense not part of civil law tradition. It is

an english CML invention. Beals finally creates some rigour about scope of defense. English view was + continues to be that fraud will be a defense that can be reargued in new place. In Beals called intrinsic fraud w. is rephrased as fraud that went to the merits. Using fraud as defense goes against idea that enforcing court is not a court of appeal to the initial court. Beals establishes that fraud trumps and means you deserve a second hearing on merits only if fraud goes to merits where allegation didn’t get argued in first court bc based on new evidence that only emerged after judgment was rendered and could not reasonably have evidence in time. That can of fraud goes to mertis but CAN provide basis for defense bc it doesn’t offend principle that second court does not sit as court of appeal.

Element of fraud extrinsic to merits but goes to jur’n of court – would be covered by procedural fairness and public policy.

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Biggest change by enacted of this act is found in section 6: ability of enforcing court to give effect of judgment but not necessarily to its full effect. “It shall limit award of damages” to comparable sum that would be awarded in Canadian court. This applies for punitive, non-compensatory damages so Andrews trilogy limits come in in section 6(2) which talks of excessive compensatory damages and allows for limiting of damages. Gives no guidance to court and legislature is thus inviting court to write some principle.

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Part Three – Choice of Applicable Law A. Choice of Law MethodologyCharacterization Choice of law is the exercise of determining what the applicable law is to the case at hand.

Historically, the western legal tradition has had choice of law provisions since medieval Italian times. It came from trade between nearby city-states with significant variations in law. The Statutists (in France) then came up with the classification of laws into real rules and personal rules. Real rules dealt with property. Personal rules related to the status and rights of persons.

For Real rules, the law of the territory within which the property happened to be was applicable. For Personal rules, the applicable law was that of the sovereign to which that person owed allegiance. The citizens of another country carry their own (personal) laws with them. This had a lot to do with states’ rights and reciprocal respect of these. Obviously, the distinctions have never been clear cut. A contract between persons for services, for example, involves real and personal elements. It was also never intended to be a permanent, workable system.

This system evolved into the vested rights theory. This is still related to territoriality and sovereignty. It came about from an idea of trying to find the appropriate “seat” for adjudication. This involved classifying the dispute. If it was delictual, then it was the place of the fault that mattered. So, the challenge was to devise a methodology to choose the “seat” and send the dispute to be tried there. This failed as well.

Out of this came the idea of comity. This is reciprocal respect that allows and expects one state to be willing to apply another’s rules as appropriate to the situation or choice of the parties. Comity, as prerequisite as it is to choice of law, does nothing to decide how the applicable law should be chosen. This is instead done through justice, both substantive and procedural. International order also plays into the justice query. Should each country have its own choice of law rules? In some cases, following a workable compromise is part of the justice sought.

Tort seems to be the exception to the general trend to uniformity in choice of law internationally.

In each area of law we are looking for a particular “connecting factor” that leads to a particular legal system on the particular facts. Usually, there might still be different laws that could be applied from the connector. However, some are specifically geared to only one system (e.g. domicile). There are also alternative reference rules (sometimes called “validating” rules). They give several connecting factors and therefore chances for something to be validated

E.g. Marriage - CCQ1) essential validity domicile (sole connecting factor)2) formal validity place of solemnization, domicile, or nationality (alternative “validating factors).

§ 2. — Marriage

3088. Marriage is governed with respect to its essential validity by the law applicable to the status of each of the intended spouses.

With respect to its formal validity, it is governed by the law of the place of its solemnization or by the law of the country of domicile or of nationality of one of the spouses.

3089. The effects of marriage, particularly, those which are binding on all spouses regardless of their matrimonial regime, are subject to the law of the domicile of the spouses.

Where the spouses are domiciled in different countries, the applicable law is the law of their common residence or, failing that, the law of their last common residence or, failing that, the law of the place of solemnization of the marriage.

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So, what is left to decide is when we use formal vs. essential validity.

For example, can I give consent to marriage through a proxy stand-in at the ceremony? This would be a question of form. Whether or not the consent was valid (i.e. not duress) would be an issue of essential validity.

Historically, there was only one choice of law for marriage, the place of celebration. The CCQ preserves this for civil unions, but no longer for marriage. There used to be two categories in family law, blood relation and spousal relation. Blood relation led to incapacity to marry. In England there were also laws that prohibited marrying a deceased spouse’s relative. People in England then just went to Scotland to get married and then came back. The House of Lords eventually responded by changing the essential validity rule to domicile (much like the CCQ) to preserve its own order.

Characterization is made according to your own legal categories. It is the law of the forum of adjudication (lex forum). CCQ 3078

3078. Characterization is made according to the legal system of the court seised of the matter; however, characterization of property as movable or immovable is made according to the law of the place where it is situated.

Where a legal institution is unknown to the court or known to it under a different designation or with a different content, foreign law may be taken into account.

Example: A mobile home in Texas is to be inherited. Is it the law of the forum? Maybe, but the result will depend on whether it is moveable or immoveable. Moveable use Arkansas law where the inheritor is domiciled. Immoveable use Texas law where the mobile home is situated.

Example: A marriage was, by Quebec CCQ, governed by the law of Ruritania where the age of capacity is 21 years and the parties are only 17 years old. However, Ruritania refers marriages to the law of nationality. These are Swiss parties where the age requirement is 16. This subsequent reference to the law of a third (or fourth, or fifth…) country is referred to as renvoi.

Renvoi

3080. Where, under the provisions of this Book, the law of a foreign country applies, the law in question is the internal law of that country, but not its rules governing conflict of laws.

Quebec does not generally accept renvoi. It will not have a reference to a foreign set of laws redirected due to the other country’s choice of law rules.

Quebec courts could use a renvoi approach if they took their redirecting laws as internal and not necessarily “conflict of laws” rules. However, there are problems with this that have led them to avoid renvoi. 1) Renvoi can lead to recursive redirection. Ruritania could direct by nationality to Switzerland and Switzerland

could direct it straight back to Ruritania. In order to figure this out (let alone solve it) you would have to also know whether Ruritania and Switzerland have renvoi or just internal law referencing. If everyone uses renvoi, we then will often get this international ping-pong situation. So, instead, most countries have rejected renvoi.

2) Renvoi amounts to an abdication of the policy that led to the choice of connecting factor in the law. Quebec had chosen domicile as the connecting factor. If renvoi switches the factor to nationality, the policy has also been chosen against and made meaningless.

Why would you prefer domicile over nationality? Practically speaking, domicile is more likely to supply the appropriate connection.

In order for the rules of choice of law to be engaged in a CML court, the parties must plead the applicability of foreign law (and provide evidence and experts as to the content and interpretation of foreign law). This is true even between provinces.

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Procedure

3132. Procedure is governed by the law of the court seised of the matter. Procedure does not generally transfer along with the foreign law. Just because a Quebec court is seized with a NY

tort law action does not mean that Quebec will convoke a jury. This then leads to the question of what is substance vs. procedure.

3131. Prescription is governed by the law applicable to the merits of the dispute. Prescription has been fuzzy in this respect, but now it is generally thought of as substantive.3130. Evidence is governed by the law applicable to the merits of the dispute, subject to any rules of the

court seised of the matter which are more favourable to the establishment of evidence. Evidence is treated in a hybrid fashion. Why? The traditional English CML position is that you need to plead and prove foreign law to rely on it. This

means that if local evidence law is restrictive, you might not be able to satisfy the burden of proof of applicability of foreign law that you just proved. So, some sort of exception is needed not to wind up in this paradox.

This traditional English CML position that you prove foreign law applicability in order to rely on it also leads to the option not to apply foreign law if it isn’t pleaded (as opposed to the more mandatory CVL approach). This might be done because it is not in the best interests of the client to have the foreign law applied. The foreign law might also be the same (or lead to the same result) or close enough that it is not worth the effort and expense involved in pleading it. The foreign law might yet also be unpredictable because of conflicting decisions and therefore worth avoiding.

The issue of cost is less important in the continental European system because the court can itself order the evidence and experts instead of leaving that burden on the parties.

The one exception to the CML adversarial approach in Canada was the Federal Court in an admiralty law matter. However, this was more recently declared contrary to the Charter by the SCC (Yep, the entire continental European approach was declared contrary to fundamental justice, go figure!).

The CML thus also makes the same distinction as CVL for procedure (lex fora). Evidence is in this circumstance considered procedure and lex forum applies.

B. Contractual ObligationsGeneral Rules

3111. A juridical act, whether or not it contains any foreign element, is governed by the law expressly designated in the act or the designation of which may be inferred with certainty from the terms of the act.A juridical act containing no foreign element remains, nevertheless, subject to the mandatory provisions of the law of the country which would apply if none were designated.The law of a country may be expressly designated as applicable to the whole or a part only of a juridical act.

The essence of contract is based on consent. “Having taken on this promise, I must fulfill my obligation.” This idea is reflected in the choice of law rule for contract. Autonomy is respected in the creation and recognition of contract. The parties may determine the law applicable as well as the content of the contract. This stands in contrast to the quasi-objective criteria of domicile or nationality.

In contract, there is also no need to have any connection to the chosen law or even have a foreign element. Generally, law internationally respects this autonomy principle and therefore both parties will be able to rely on

this choice of law. However, this is choice of law, not jurisdiction, and therefore where you are is irrelevant once a court respecting autonomy has taken jurisdiction.

The proper law of the contract can be multiple for different aspects of the contract. For example, one single contract may govern obligations to be performed in several different places and have the local law applied in each case. The only risk you take is that many laws might apply or of making the choice clear.

The second part of 3111 allows the choice to be “inferred” (although it must be “with certainty”). If there’s no designation + no inference, or if choice of law invalidates the K, then a proximity principle applies

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3112. If no law is designated in the act or if the law designated invalidates the juridical act, the courts apply the law of the country with which the act is most closely connected, in view of its nature and the attendant circumstances.

3113. A juridical act is presumed to be most closely connected with the law of the country where the party who is to perform the prestation which is characteristic of the act has his residence or, if the act is made in the ordinary course of business of an enterprise, his establishment.

Generally, the courts will infer that the parties will not create a contract which defeats itself because of a choice of law. The courts will imply that ignorance led to this situation. This idea came about from situations where currency regulation defeated some unrelated contracts.

Otherwise, the facts will lead to a common sense proximity determination (e.g. currency used, domicile, place of contract formation). To assist in this exercise there is a presumption in favour of the law of the residence of the party carrying out the most “characteristic performance” of the contract. This comes from the Swiss PIL and came into being elsewhere in Europe through the Rome convention.

Example: In a contract of sale of moveables there is a payment by the buyer and delivery of the goods by the seller. Which is characteristic? The delivery of goods is because the payment is not specific to this contract versus any type of sale or even other types of contracts.

The Swiss approach goes further to codify some specific situations. However, it still fails for being too simplistic. It helps, but doesn’t necessarily produce any more certainty. It does little for the impossible task of defining the proximity test. This is why most jur’ns have chosen the expressly designated choice of law as the preferred rule.

Form

3109. The form of a juridical act is governed by the law of the place where it is made.A juridical act is nevertheless valid if it is made in the form prescribed by the law applicable to the content of the act, by the law of the place where the property which is the object of the act is situated when it is made or by the law of the domicile of one of the parties when the act is made(…)

3110. An act may be made outside Québec before a Québec notary if it pertains to a real right the object of which is situated in Québec or if one of the parties is domiciled in Québec.

There are two other issues where a foreign law might apply1) Form of the contract in general is governed by the place it was made and form of the contract as to validity can be governed by different laws. There are 4 validating factors for issues of form. Why? This is because the requirements of form also go to the

intent of parties to form a contract. The general direction of contract law in almost all jurisdictions is to remove formal requirements for the validity of a contract. Instead, the courts are more worried about parties getting out on a formal technicality. They try to avoid vitiating the contract by mere defects in form.

Capacity 3086. A party to a juridical act who is incapable under the law of the country of his domicile may not invoke

his incapacity if he was capable under the law of the country in which the other party was domiciled when the act was formed in that country, unless the other party was or should have been aware of the incapacity.

3087. A legal person who is a party to a juridical act may not invoke restrictions upon the power of representation of the persons acting for it if the restrictions did not exist under the law of the country in which the other party was domiciled when the act was formed in that country, unless the other party was or should have been aware of the restrictions by virtue of his position with or relationship to the party invoking them.

2) Capacity works in almost the opposite way. As a general rule capacity is governed by the law of your domicile. However, this could introduce uncertainty. So, 3086 adds an awareness element to the inquiry. Example: Swiss comes to Qc and contracts. He cannot then use his incapacity against the Quebecer unless the

latter was or should have been aware of the Swiss incapacity

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Special Contracts

3114. If no law is designated by the parties, the sale of a corporeal movable is governed by the law of the country where the seller had his residence or, if the sale is made in the ordinary course of business of an enterprise, his establishment, at the time of formation of the contract. However, the sale is governed by the law of the country in which the buyer had his residence or his establishment at the time of formation of the contract in any of the following cases:

1) negotiations have taken place and the contract has been formed in that country;2) the contract provides expressly that delivery shall be made in that country;

3) the contract is formed on terms determined mainly by the buyer, in response to a call for tenders.If no law is designated by the parties, the sale of immovable property is governed by the law of the country where it is situated.

3115. Failing any designation by the parties, a sale by auction or on a stock exchange is governed by the law of the country where the auction takes place or the exchange is situated.

3116. The existence and scope of the powers of a representative in his relations with a third person and the conditions under which his personal liability or that of the person he represents may be incurred are governed by the law expressly designated by the person represented and the third person or, where none is designated, by the law of the country in which the representative acted if the person he represents or the third person has his domicile or residence in that country.

Capacity has generally been attached to domicile. However, this rule, unqualified, could result in a fair degree of uncertainty when parties contract abroad.

Could then two parties from country X choose the law of capacity from country Y? Yes in theory, but it might be met by public policy considerations that would limit this ability.

You can choose the law you want, but the mandatory rules of the other country still apply. These are rules of public order that are not waivable by the person subject to the rule. It is not subject to chosen against.

3117. The choice by the parties of the law applicable to a consumer contract does not result in depriving the consumer of the protection to which he is entitled under the mandatory provisions of the law of the country where he has his residence if the formation of the contract was preceded by a special offer or an advertisement in that country and the consumer took all the necessary steps for the formation of the contract in that country or if the order was received from the consumer in that country.

The same rule also applies where the consumer was induced by the other contracting party to travel to a foreign country for the purpose of forming the contract.

If no law is designated by the parties, the law of the place where the consumer has his residence is, in the same circumstances, applicable to the consumer contract.

Consumer protection laws are an example of mandatory law protected in private international law.

The protection requires one of two requirements to be met:1) offer or advertisement AND steps necessary to the formation in the country of residence2) order received from the consumer in the country of residence

This is coupled with protections in the jurisdiction rules that say that a choice of law or arbitration cannot be set up against a consumer. Otherwise, a consumer could not get into court to vindicate their rights.

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3149. A Québec authority also has jurisdiction to hear an action involving a consumer contract or a contract ofemployment if the consumer or worker has his domicile or residence in Québec; the waiver of such jurisdiction by the consumer or worker may not be set up against him.

3118. The designation by the parties of the law applicable to a contract of employment does not result in depriving the worker of the protection to which he is entitled under the mandatory provisions of the law of the country where the worker habitually carries on his work, even if he is on temporary assignment in another country or, if the worker does not habitually carry on his work in any one country, the mandatory provisions of the law of the country where his employer has his domicile or establishment.

If no law is designated by the parties, the law of the country where the worker habitually carries on his work or the law of the country where his employer has his domicile or establishment is, in the same circumstances, applicable to the contract of employment.

Employment law is also mandatory in nature and protected. This is so even when the employee travels.

This prevents taking advantage of flags of convenience and just establishing oneself in such a jurisdiction that has the minimum labour standards. (www.flagsofconvenience.com)

3119. Notwithstanding any agreement to the contrary, a contract of insurance respecting property or an interest situated in Québec or subscribed in Québec by a person resident in Québec is governed by the law of Québec if the policyholder applies therefor in Québec or the insurer signs or delivers the policy in Québec.

Similarly, a contract of group insurance of persons is governed by the law of Québec where the participant has his residence in Québec at the time he becomes a participant.Any sum due under a contract of insurance governed by the law of Québec is payable in Québec.

Insurance is a gross exception to this rule of autonomy. This is because in many jurisdictions, the entire contract of insurance is mandatory: the form, the content, and the method of performance. This has implications for both parties. There are also fraud situations on the side of the insured. It also exists because if insurance contracts were different for every insurer, they are already complex enough that that would make most of them inaccessible and hard to compare and shop. This ensures that there is some level of equality bt insurer and insured

3120. The assignability of a claim and relations between the assignee and the assigned debtor are governed by the law governing relations between the assigned debtor and the assignor.

So legislature has specifically addressed possibilities where law of contracts may have left a void.

Does the existence of these specific rules weaken the residual rules on mandatory provisions overriding a choice of law agreement? No. The residual rules are clear enough in their intent and therefore in their interpretation. The special rules simply remove from the need for interpretation the most common situations of mandatory law.

One of three residual mandatory rules is article 3111, para 2 this provisions means you can have entirely domestic fact patterns and the parties chose laws of anywhere else but then para 2 brings the exception that K still subject to law of country which would apply if none were designated. Which brings us to gen rule of 3112.

3112 expressly says that if I have entirely domestic contract, the most closely connected law is Quebec.

Example: If you have a Quebec fact situation, you can still choose a foreign law. Otherwise, if there is no choice of law agreement, Quebec is obviously the law most closely connected (CCQ 3112). However, if an Ontario fact pattern has a Quebec choice of law, then Ontario mandatory rules are likely still to apply regardless of the choice.

In this way, 3111 is informed by 3112. You must determine 1) the (3112) most closely connected country in order to determine the mandatory provisions and then 2) the (3111) expressly designated law

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http://www.flagsofconvenience.com/

3076 and 3079 apply to preserve the continued application of Quebec mandatory rules even where there are international elements. 3079 provides for preservation for mandatory rules of a third country.

Mandatory rules does not mean the same thing in article 3111 para 2 as it does in articles 3076 and 3079. Not every rules that qualifies as mandatory rule in purely domestic context qualifies under 3076 or 3079. Where Qc legislatures have said rules cannot be waived, then domestic rules apply.

CCQ 3076, 3077 also provide for residual mandatory law. They are preservation rules. Ideally the legislation that wishes to take advantage of this scheme will be explicit. However, in other cases, it can be obvious.

3076. The rules contained in this Book apply subject to those rules of law in force in Québec which are applicable by reason of their particular object.

3077. Where a country comprises several territorial units having different legislative jurisdictions, each territorial unit is regarded as a country.

Where a country comprises several legal systems applicable to different categories of persons, any reference to a law of that country is a reference to the legal system prescribed by the rules in force in that country; in the absence of such rules, any such reference is a reference to the legal system most closely connected with the situation.

Example: I want to sublet to someone from Ontario and choose Ontario law. However, the Regie prescribes a specific form for a contract of sublet. Can we sublet according to Ontario law by including a choice of law clause? No. 3109 provides for form in Quebec. The choice of law would override this, but then 3076 would preserve the Regie legislation because its object is clearly to provide a uniform scheme for sublet.

Roy v North American Leisure Group Inc., [2004] Ont C.A. 246 DLR (4th) 306Facts Appeal by Airtours that Ont law was applicable law. Roy went on vacation, got virus bc of alleged unsafe conditions and failure to warn about these conditions. Roy waited until more 3 years afterwards to sue. R sued NAm Leisure Grp and Airtours in K and tort. NAm accepted Ont law. Airtours says law of England applied. English law would preclude action against Airtours as per 2-year limitation period. Vacation literature indicated English law applied to Airtours. Trial judge said Ont law applied to both Df. bc of

R&S connection and bc to apply law of Eng to preclude Roy action against Airtours would be an injustice.Issue Does Ontario law apply to Airtours?Holding: NO, the law of England applies to Airtours (Airtours wins)Reasoning Lang J. Jurisprudence (Tolofson in particular) sets as general rule in tort the choice of substantive law was law of jur’n

where activty occurred (lex loci delicti). It provides 3 adv to parties: certainty, ease of application and predictability That Roy would suffer injustice by operation of limitation period does not justify exception to principle informing

the choice of law. Tolofson (and Somers) already determined limitation period not to be such an exceptional case. That diff laws needed to be applied to diff Df (Ont law to NAm and Eng law to Airtours) does not justify an

exception either. K stipulated law of Eng. That Roy didn’t read that term was not determinative of result. Reasonable measures were

taken to draw any unusually onerous terms to their attention. Ratio Rule for choice of law in tort is lex loci delicti (even in international actions). Exceptions to lex loci delicti rule needs to go beyond mere injustice and prescription is not injustice. It is possible to apply diff laws to diff Defendants.Comments I think this may be overturned by SCC. Interesting to research if they heard the case.Comments in Class Action before Ontario Courts but issue of which prescription period applies depends on whether Ont law applies

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3 contending laws here for choice of law: law of England (law of K), law of Ontario or law of Bahamas (lex loci) Cruise ship operator had choice of law clause stipulating English law as applicable law. Only under Ontario law is the action not barred by the period of extinctive prescription. Two contractual relationships exist (tour operator, cruise ship operator and owner, each with K to vacationer) The action is brought against the owner and operator. Had lex loci delicti been applied, law of Bahamas would’ve taken precedence. So far as contract choice of law is concerned, consumers (Pl) wanted exception since they didn’t read or understand

the clause. Court agreed with this in principle, saying that in certain situations exceptions can be made given so consumer is

not bound by onerous and abusive provisions, but that application of English law is neither. Court raised technical issues informed by policy decisions. Explore these by doing comparison w/ CCQ approach to

torts (ie 3127) But this is consumer contract. So in Qc they could invoke 3117: can chose foreign law but it cant deprive consumer

of protection he’s entitled under mandatory provisions of law of country where he resides. CCQ provision says you are agreeing to choice of law provision that may be unknown and hold you to it but make

sure that whatever rules in place of residence will continue to protect consumers. Had this case been brought in Qc court, then Qc court would have applied Qc choice of law rules and said applicable laws included Qc protections and 3 yr prescription would’ve been preserved.

Walsh big fan of Qc Civil Code bc it protects consumers in clear and enforceable way. Debate on special consumer protection laws is kind of debate that happens in all PrIL negotiations that ends the

negotiations. US, eg, would never agree to this special protection to consumer being preserved.

C. Extra-Contractual Obligations / Torts3126. The obligation to make reparation for injury caused to another is governed by the law of the country

where the injurious act occurred. However, if the injury appeared in another country, the law of the latter country is applicable if the person who committed the injurious act should have foreseen that the damage would occur.

In any case where the person who committed the injurious act and the victim have their domiciles or residences in the same country, the law of that country applies.

3127. Where an obligation to make reparation for injury arises from nonperformance of a contractual obligation, claims based on the nonperformance are governed by the law applicable to the contract.

3128. The liability of the manufacturer of a movable, whatever the source thereof, is governed, at the choice of the victim,

1) by the law of the country where the manufacturer has his establishment or, failing that, his residence, or 2) by the law of the country where the movable was acquired.

3129. The application of the rules of this Code is imperative in matters of civil liability for damage suffered in or outside Québec as a result of exposure to or the use of raw materials, whether processed or not, originating in Québec.

3127 addresses situation where you have nonperfomance of contract leading to a tort. Says law applicable is that of K.

Tolofson v. Jensen [1994] 3 SCR 1022 – lex loci delictiFacts (2 separate cases decided in one) Tolofson and Jensen got into a car accident in Sask, and Tolofson was seriously injured. Tolofson was a BC

resident, while Jensen was from Sask. 8 years later, Tolofson brought an action in BC b/c:1. The prescription period for filing in Saskatchewan had already elapsed.

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2. Tolofson was actually a child passenger in the car driven by his father. Compared to BC law, Sask law was not very favourable to gratuitous passengers.

J brought motion to either have BC declared a forum non conveniens or to decide whether Sask law was applicable First instance: denied, claimed choice of law was inextricably bound up with jur’n and forum conveniens. Appeal

court: law of the forum applied.

Gagnon and family were Ontario residents. They were in a car accident in Quebec with Lavoie, a Quebec resident. Mrs. Gagnon exhausted the benefits she was entitled to under Quebec’s no-fault insurance plan, so she sued in

Ontario to get additional damages. Ont CA ruled that a Qc resident’s liability was governed by Qc law, so Gagnon dropped her case against Lavoie. But Mr. Gagnon continued a separate cross-claim against Lavoie in Ontario to get further compensation. Ont court of first instance ruled that Ontario had and should accept jurisdiction and that Ontario law should apply. CA ruled that actions against Gagnon could be heard under Ontario law, but that any claim against Lavoie had to be

under Quebec law since he was a resident of Quebec and the accident happened in Quebec.Issues: Both cases are about “choice of law” rules – specifically, which law should govern in cases of

automobile accidents involving residents of different provinces.Held: Appeals allowed in both cases.Reasoning LaForest J The general rule for torts is the lex loci delicti – the law of the place where the activity occurred. This is a response

to 1) territoriality (both in international order and federal regime) and 2) several practical considerations in that it “is certain, easy to apply and predictable and meets normal expectations in that ordinary people expect their activities to be governed by the law of the place where they happen to be.”

Where the tort takes place may be uncertain, however, in situations, notably where an act occurs in one place but the consequences are directly felt elsewhere (the consequences could be held to constitute the wrong) or where the wrong directly arises out of some (inherently) transnational or interprovincial activity.

The old British rule of lex fori, from McLean v. Pettigrew, was that generally, a court should apply its own law even when adjudicating on things that happened elsewhere (subject to local justification). This rule cannot be supported anymore. In allowing courts to decide on the nature and consequences of acts that were committed elsewhere, we go against the principle of territoriality (where different jurisdictions may have different responses to the same actions) and we also invite forum shopping. It was too plaintiff-oriented. Regarding different provinces within the same federal body (ex: Canada), forum shopping would be even easier and constitutional problems would be greater. Besides, making proof of the content of foreign law is much easier these days, so the foreign law should be relatively easy to apply.

If we look at just the facts from Tolofson, we see that the results of applying the old rule would be unfair b/c if we applied the lex fori, B.C. law, this would:

1. Violate reasonable expectations of the parties: If a defendant neither lives nor acts in BC, he never expects that he will somehow come under its laws.

2. Violate constitutional considerations: BC can’t make a law that says its residents are always covered by BC law for torts they commit or suffer anywhere in the world b/c there is a territorial limitation on provinces’ exercise of jurisdiction.

The fact that Canada has many different provinces, each exercising its own territorial legislative jurisdiction, makes it necessary that we have certainty regarding which rules will apply. We have to know that an act committed anywhere in the country will have the same effect no matter where it goes to court.

Now the rule for inter-provincial torts is lex locus delicti. This hasn’t played out perfectly in reality, but it responds to the constitutional concerns, as well as to the issues of protecting parties’ expectations, promoting certainty, ensuring uniformity of results (no forum shopping) and avoiding potential conflicts b/w provincial laws that could cover the same situations. The rule for international torts is the same, but with more room for exceptions b/c we aren’t concerned about constitutional issues.

The old rule that the tort must be actionable in the forum that it is brought is also no longer necessary. It speaks more to jurisdiction and a reason to decline jurisdiction (by FNC or policy) than to choice of law.

“The underlying principles of private international law are order and fairness, but order comes first for it is a precondition to justice.”

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Since a rigid rule on the international level could give rise to injustice, there are discretionary situations that could justify exceptions to the rule of lex loci delicti.

It has been argued that exceptions could possibly be made where,1) Close relationship between the parties – by a common nationality, residence, or domicile, or 2) Public policy – where the forum or a foreign state has a much greater interest in its laws being applied.

Public policy exceptions seem to simply reflect that one jurisdiction disapproves of the laws of another. This goes against territoriality with little justification. The visitor has accepted the laws of the place they visit.

Commonality between the parties has been more broadly accepted in the CCQ and international conventions. However, since any exception adds an element of uncertainty, these exceptions should be kept to a very limited

role where there is some timely and close relationship between the parties.

Characterization of rules as substance vs. procedure is crucial because lex fora applies to procedure. Prescription is substantive because it reflects a policy balance between permitting an action and securing the peace.

Concurring Major J: Choice of law agreements should be recognized as exceptions to the rule of lex loci delicti.

Ratio The rule of lex loci delicti should be applied to interprovincial and international choice of law. The rule should not be so rigid as to cause injustice to the parties, but exceptions should be very limited. Prescription is substantive and governed by the lex loci delicti. Choice of law agreements should be recognized as exceptions to the rule of lex loci delicti. (Major concurring)

Comments T. v. J. and L. v. G. have been criticized quite a bit, for 2 main reasons:

1. Other than with car accidents, it is often hard to determine what the lex locus delicti is, especially in cases of economic torts and product liability claims. As this is such a limited rule, it makes little sense that it should be the main rule for inter-provincial torts.

2. Even with car accidents, it’s not a great rule. What if the parties involved both have a common domicile elsewhere? Then you are just forcing both of them to be inconvenienced if you make them stick to where the accident happened. The CCQ makes an exception for such cases, but this can lead to even more conflicts.

Walsh still likes this as a rule for car accidents, though, as it seems to be more fair than the old rule. Class Comments SCC decision in McLean v. Pettigrew based on English decision (Phillips v Eyre) gives choice of law regime in Qc

before Code. Phillips Easily qualifies as the most criticized CML decision ever rendered. Imprisonment ordered by the governors (Eyre) of Jamaica for rebellion. Loci delicti is Jamaica.

False imprisonment is cause of action brought before English courts. The governor subsequently passes a law to legalise his actions Rule emerging from the case: in order to found a suit in Eng for a foreign wrong, two conditions must be met: (1)

wrong must be of such a character that it would have been actionable if committed in England, and (2) the act must not have been justifiable by the law of the place where it was done.

Action in English court for damage caused by English vessel in Belgian waters by negligence from Belgian operators. This case gave first part of rule.

Second part of rule: that act must not have been justifiable under lex locii delicti comes from facts of Phillips v Eyre. Here it was justified action under Jamaican law.

This “Phillips” rule survived in Canada until Tolofson. Phillips and Eyre also went through other interpretation in Machado v Fontes.Machado is peculiar case bc it is Brazilian case that involves action in defamation btwn 2 Brazilian resident from something published in Brazil. Ends up in English courts. Why? Bc under Brazilian law at the time said defamation did not allow for civil liability or compensation, only penal punishment. UK law did give civil remedy and this case filled the Phillips and Eyre test.

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Law of forum governs and is the applicable law for civil liability (tort committed) somewhere else. This is the general choice of law rule that comes from Philips and Machado cases. So, forum governs the law applicable provided you can show it is 1) actionable and b) not justifiable.

In McLean v Pettigrew (1945) the forum was Qc, the Plaintiff and Df were both from Qc but Lex Loci Delicti was Ontario. It’s an action against a driver In some cases it was barred to have any cause of action by passenger (in Ontario), but this was not so in Qc. Or

there is a cause of action with a lower standard of care (willful and wanton misconduct – intentional). These statutes were passed to prevent collussion bt drivers and passengers (insurance fraud). These case have provided a contribution to Choice of Law jurisprudence. At the SCC 2 q’s: 1) Actionable Yes 2) Is it a wrong? Yes (eventhough driver acquitted of negligent driving) This remained law until Jensen. Why so long? Almost all cases of choice of law involving auto accidents involve common domicile bt Pl and Df. So courts decided that lex locii delicti was applicable jur’n. In 80s there was expansion of jur’n of courts. Bf only time you could sue Df outside of lex locii delicti was when Df had domicile elsewhere. Qc passed statute w/ No fault compensation scheme for accidents suffered on the road. Only exclusive no fault

compensation scheme in NAm bc it completely eliminates right of injured party to sue for damages under tort. Only place you can get some is through Regie of Auto Insurance. Doesn’t matter if you are Qc resident or not. If accident happens in Qc that’s only source of remedy.

Diff bt 2 systems is that Qc one is universal so you don’t burden welfare system. Trade off is limit is far below for damage and payment of suffering. Other limit is amount given for loss income.

Law of place of tort governs and there is no excpetion to that rule. That’s how it stands today. The fact that Pl and Df may be from same plce does not change the outcome.

What are the benefits of this rule? Simple and predictable but mainly only for motor vehicle accidents since it is single damage-causing event. It discourages forum shopping since there is only one possible outcome: law of where the tort occurred applies. Promotes admin of justice and discourages frivolous claims (normally cross claims) against persons who may have been involved but who’s local resident and changes law so you may get search of local Df.

SCC says lex locii delicti is rule for all CML provinces and the same had already been said for Qc. LaForest argues it is cleearly constitutionally appropriate for province to legislate over what happens within their borders (such as motor vehicle accidents) (see para 72). Problem is then that provinces can legislate out of this.

Lex loci delicti ule has virute that it keeps us in clear constitutional territory. LaForest raises q’n addressed in jurisprudence: we know that Ont can’t pass statute legislating on accident that occurs in Qc. But effect of Phillips and Eyre and Machado v pettigrew rules means Ont tort law applies for civil liability for something that occurs in Qc.

Qn then is: are judges subject in choice of law formula, to the same constrains as the legislature. Can you have consitutionally permissible to have choice of law rule that does indirectly what the forum legislature couldn’t do directly?

Resulf of old PvE formula was samething as if Ont had passed such a statute. LaForest doesn’t say that same constitutional scrutiny should apply. He’s saying that PvE is unconstitutional choice of law rule.

Internationally what is the rule? (before this it was interprovincially) Para 15 shows how approach is not that different. LaForest accepts exeption in interest of justice, but sees no reason why does exceptions cannot be confined. Ie, the should really be excemptions.

Says maybe we can do something other than lex loci delicti, but does not open door very wide. Must show something unjust to have something else apply.

In Somers, the Ont C of Appeal reinforces exemption in int; context as indeed very narrow and not enough that the laws be different.

A couple of mistakes in judgment which show there is something wrong with this decision. Para 29 has reference to House of Lords decision in which English courts overrule common choice of law and allow cumulation of rules. LaForest sees rule almost as perverse as Philips vs Eyre. Says if we can apply law of forum exclusive where all consideration make that the right choice, LaForest says court did not apply the exception but they DID. It’s not accurate represenation.

Later on in judgment in para 56 it is acknoledged that there was diff. This is direct contraction with para 29.

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Para 29 also talks of red sea insurance case in which HoLords says double accionability gives rise to exception. LaForest says privy council is dealing with Contract under law where contract was made rather than where tort was committed. But this is not a contract case! This may seem too detailed an analysis but it is important to notice errors since it fuels lack of confidence in this case.

Somers v. Fournier [2002] Ont C.A. 214 D.L.R. (4th) 611.Facts Somers, resident of Ont, got into car accident in NY w/ NY residents. Brought action in Ont. Df attorned Df moved to have NY law apply. Motions judge accepted NY law w/ Ont jur’n. Appeal is on judge’s decision that pre-judgment interest, costs and Ont ‘cap’ on non-pecuniary general damages are

procedural in nature and therefore governed in the action by law of Ont. Fourniers wants this to pay less $$$.Issue Is cap procedural and governed by Ont law?Holding: YES, cap and costs are procedural (Fournier wins) but note pre-judgment interests are substantive law.Reasoning Cronk J Substantive law creates rights and obligations and is concerned w/ ends w. administrastion of justice seeks to attain.

It determines conduct of court and litigants in respect of the matters litigated. Procedural law is the vehicle providing the means and instruments by which those ends are attained. It regulates

conduct of courts and litigants in respect of litigation itself. Costs used by Ont courts to reward or sanction conduct of parties prior to and during litigation. Costs are means by which the ends of justice are attained. Therefore incidental to determination of rights of parties. Costs not part of the lis between the litigants and so are procedural matter governed by the lex fori (ie Ont) Pre-judgment interests are at court’s discretion in relation to denial/reduction (not granting) of a right. The character

of this discretion makes it qualitative diff from wide discretion to grant or deny costs. So it’s substantive law. Discretion to apply lex fori in intl litigation where necessary to avoid injustice is limited and to be exercised

only in compelling and exceptional circumstances. Pl opted to claim no-fault benefits of Ont scheme. Cannot complain now of consequences of this decision. Denial of opportunity to claim damages by reason of expiration of a limitation period does not constitute injustice

sufficient to support an exception to lex loci delicti [same as Tolofson and Roy]. Operation of limit on liability by reason of no-fault tort compensation regime doesn’t meet req’t for demonstration

of injustice sufficient to depart from lex loci delicti rule. Remoteness and heads of damages are questions of substance governed by the lex loci delicti. Quantification or measurement of damages is question of procedure governed by lex fori. Ont cap does not bar claim for damages for pain. It assumes liability is susceptible of assessment, but directs court

to impose an upper limit on quantum. So in essence cap is judicially imposed limit or restriction on liability for non-pecuniary damages.

Cap is device devp to avoid excessive and unpredictable damages awards and is social policy consideration. This makes the cap a matter of procedural law.

Class Comments Represents one of few cases that show characterization of law Gen idea in US is that you have right to go to court and if we were to require cost of one party to be put on the other

this would discourage ppl from going to court. Often cited as explanation for higher rate of litigation in the US. Reflects cultural difference re: access to justice.

Important issue bc if rule of cost was to be set aside, then law of NY governed and unsuccessful party would pay only his own lawyer. But Ont is law of forum so this is diff.

2 possible theories: 1) what’s purpose of rule that says that procedure is governed by law of forum. Answer is practical: it’s not practically feasible for court to run according to somebody else’s ideas of procedure. Q’n of administrative convenience. Qn would then be is the rule one that if we apply the foreign rule we can interfere w/ procedural machine or is it feasible to apply without interference? 2) Also about admin feasibility. But goes further: says look at purpose of the rule, nevermind feasibility of applying foreign rule, but classify rule accroding to whether it has something to do with substantive area or with local administration of justice.

Not inconvenient for Ont to say we have cost rule and NY doesn’t. Not hard to understand. But in next step of whether rule has something to do with gen admin of justice. Yes it does cuz cost rule is designed to structure and control the access to courts and ^^ admin of justice as a whole. So it’s procedural rule.

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Judgment also about the award. Again Canadian law typically provides right for Pl complain to state damage award prior to judgment. Canadian law concludes w/ damage award desgined to represent interests btwn when I set actionand when I got judgment. So it allows for diff btwn the 2, ie interests. It’s there bc time period can vary greatly. Also bc sometimes other party is using delay tactics. So idea of awarding in judgment interests is to compensate Pl for the delay and loss of access to the $$ and also to recognize that thru no fault of Pl the time period can be arbitrary.

US law awards no pre-judgment interests. So again, does this go to merits of claim or to admin of justice. Here conclusion is that it goes to both. Clearly it is compensatory and part of damage awards, but there is element of admin of justice bc court has discretion to not award it or to chage the rate according to conduct of litigants (ie if Pl delays to get more in interests).

Similar to qn of costs. Despite that discretion it was qualified as substantive issue. Also issue of cap of damages of injuries in the Andrews Triology was matter of procedure or whether it was

governed by NY law that imposes no such limits. Court concludes it’s procedural. This is initially shocking. Surely there’s nothing more substantive than diff btwn $1 million and $5 million in damages. Surely dollar value of recovery is substantive. Cant say it’s mere matter of procedural machinery? Doctrinal rule pulled out by court is that there’s distinction in this area btwn heads of damages and quantification of each of those heads of damages. Here concerned w/ damages for pain and suffering (non pecuniary loss) and this is governed by lex locii delicti bc it’s substantive and not procedural. But once we decide the kind of claim is compensable, the dollar value is gonna be determined by the laws of the land, and so it is procedural as it goes to quantification of damages.

Rule of quantification applied by lex loci delicti may not be won if local court is capable of setting damage awards. Diff to US where juries can set damage award.

There’s a sense that if it’s Can court givin Can justice there has to be Can connection and from policy point of view Can standards must apply.

Keep in mind that this is for non-pecuniary losses (ie non quantifiable losses).

Beyond Motor Vehicle Accidents:Decision not quite as rigid as made out to be. Yes, it’s rigid to have lex loci delicti. But it’s not worse rule either. Area where insurance coverage is possible universally. For other kinds of tort action it’s not bad rule bc it doesn’t tell us anything and only asks question of what is the applicable rule. It makes us asks what the lex locii delicti is. 2 common case: defamation and liability for product defects. In Tolofson there is one part in judgment that says that for defamation appropriate rule was to apply rules of place where the effects are felt. At another point of decision (para 43) territorial analysis is starting point but not the end point. May have situations where injurious activities take place in one jur’n and effects are felt somewhere else. There it miught be more appropriate to regard tort as taking place where effects are felt. Other case is where the tort happens internationally (ie crossing borders) and it’s better not to think in strict territorial terms. Ie so in every other area from car accident, the rule isnt rigid by terms of the decision itself. Court says you have to look at context. Ironic that rigid rule sought is only easy to apply in accident cases.Think of negligent misrepresentation where info comes from England, distributed to 4 countries and it’s relied on so damages happen in all four places. What should be applicable law? There isnt obvious abstract answer.CCQ didn’t want to leave this to court so it has Article 3126: where negligence is carried out is where obligation is incurred. Unless injury appeared in another country and it was reasonably foreseeable. Allows for law of one country if that country is residence of both Pl and Df.Products liability dealt with in 3128. Interesting collusion. May be of grave difficulty. If we didn’t have 3128, 3126 would apply for products liability and then law of place of manufacturer would apply unless manufacturer foresaw another place where product causes injry.But drafters did something different. Says liability of manufacturer is governed at choice of victim! The choice is bt where manufacturer has establishment (or, if N/A, residence) or law where product was acquired.Gives Pl control of applicable law from the outset. But with Limited choice. So drafters device choice of law rule that gives Pl choice as opposed to court set rule which tend not to have choices.

Babcock v. Jackson

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NY residents in an Ontario court were trying to recover damages from a driver for negligence in driving. They were up in Ontario for a weekend. However, Ontario statute prevented a claim against a driver for gratuitous passengers.

Until Babcock, the US CML had consistently used lex loci delicti. Here the court opted to move away from jurisdiction-selecting choice of law rules towards issue-selecting. Here it was single issue: the liability of a driver to a passenger for negligence. Under this approach you could have Ontario rule apply to one issue, NY rule to another. Secondly, NY court moves towards a ‘proper law of the tort’ approach. This approach asks which jurisdiction has the closest connection to the issue at hand. This is linked to an idea put forward by Brainerd Currie of governmental interest analysis. In light of the connections in the case, would the law of a particular implicated state be impaired by its non-application. Or, looking at the particular law and underlying policy, perhaps these connections are such that the govt doesn’t have interest in how law is applied?

Here it played out in favor of NY law. Here prohibition of passenger suing driver in was to protect Ontario insurance companies from collusive insurance fraud by Ontarians. However, here we have no Ontarian insurer or party. So, presumably Ontario’s interests in their law are not affected. However, NY has an interest in their law being applied since they have specifically chosen to allow this liability. NY has a strong interest in having its liability rules apply where victim is NY resident and NY is clearly interested in compensation issue.

This leads us to the same domicile result of the CCQ, but through a choice of law analysis.

However, this approach has its disadvantages:1) Statutory interpretation is required to decipher the policy behind the law.2) It is unpredictable.

Is it possible for court to always say that it’s one thing or another always? Problematic also bc connections change and this means you need to go into whole new analysis and makes PrIL very unpredictable.

In Tolofson, LaForest says how NY court took different approach while majority of other states maintained the lex locii delicti rule. This is not true! Most have adapted it and molded it.

Rules of choice of law are quite stable and not just for will of the party and most significant connection in K.

Their was a subsequent attempt to make more complicated rules to decide these issues.

However, these became to cumbersome.

Some years after Babcock, the NY court had to retreat in area of motor vehicle accidents. Now, they are 5-6 different approaches (in NY courts):

1) Apply the “better” law.2) Focus on the needs of the interstate system3) Follow the reasonable expectations of the parties. 4) Etc.

This whole series of developments was called the American Revolution in conflict of laws.

DefamationIn a minor aside in the context of another discussion, La Forest says that he would assume that lex loci delicti would apply to defamation.

The internet has complicated this issue since information is spread rapidly to many places. Further, Defamation laws vary radically from one place to the next. It is very specific and even cultural. UK is very protective of reputation and has a low threshold for defamation. US is on the other side of the spectrum with a very strict, high standard for defamation so as to protect freedom of speech. Thus, what constitutes defamatory publication in one jurisdiction may not in another place.

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Example: ABC company has HQ in Toronto and has four offices in different countries. A disgruntled employee creates a website with allegations of corruption by the company and its officers. So, ABC wants to bring an action in defamation against this employee. The first issue will be jurisdiction. Then comes choice of law.

From the defendant’s point of view, you would want the applicable law to be the law of where the server/publisher exists. This allows them to have a certain amount of control. They can locate the server in a jurisdiction that has lax defamation standards. However, this is precisely what creates a problem with this approach.

From the plaintiff, lex loci delicti is preferable. The damage to reputation occurs in the place of domicile/business. This makes sense given that the reputation that is damaged only exists in the place of business of the plaintiff.

Now the law allows claims based on the law of where they are claimed with some reservations. This, of course, brings along with it the obligation to bring forward separate claims for each jurisdiction (all at the same court if desired) as well as prove the existence and loss of reputation and the fault in each jurisdiction. There is no single governing law theory. So, you would have to section out your loss by the jurisdictions in which you can claim.

Products Liability CCQ gives victim choice between two sets of laws (see above) Idea of choice is fair bc it holds manufacturers to highest standards. But problem arises when injury occurs somewhere different from where product was bought. If injury occurs to other person other than me who had nothing to do with acquisition of product then they are

bound by law of where product was purchased and not where damaged was suffered. This is downside of Qc rule. Maybe courts would find way to go back to general rule in such a fact pattern In CML, not many cases, but general interpretation (Tolofson) is that it is where damage was suffered, not place

of residency or place of manufacturer. Nobody has argued for applying CCQ in CML.

D. Domestic Relations (en passant)3088. Marriage is governed with respect to its essential validity by the law applicable to the status of each

of the intended spouses.With respect to its formal validity, it is governed by the law of the place of its solemnization or by the law of the country of domicile or of nationality of one of the spouses.

3089. The effects of marriage, particularly, those which are binding on all spouses regardless of their matrimonial regime, are subject to the law of the domicile of the spouses.Where the spouses are domiciled in different countries, the applicable law is the law of their common residence or, failing that, the law of their last common residence or, failing that, the law of the place of solemnization of the marriage.

3090.1. A civil union is governed with respect to its essential and formal validity by the law of the place of its solemnization.That law also applies to the effects of a civil union, except those binding all spouses regardless of the civil union regime, which are subject to the law of the country of domicile of the spouses.

3090.2. The dissolution of a civil union is governed by the law of the country of domicile of the spouses or by the law of the place of its solemnization. The effects of the dissolution are subject to the law governing the dissolution.

3090.3. Where the spouses are domiciled in different countries, the applicable law is the law of their common place of residence or, failing that, the law of their last common place of residence or, failing that, the law of the place of solemnization of the civil union or the law of the court seized of the application for dissolution, as the case may be.

Marriage

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Formal validity rules governed by law of domicile. Issue of who can marry is issue of formality of marriage. How consent is given: issue that goes to formal validity of marriage Issue of essential validity is for cases of prohibition of marriage: ie polygamy, or bt blood relatives. Depends on

domicile of intending spouses. Marriage cannot be valid for one and invalid for another so you need validity of both places for it to be valid. For formal validity drafters didn’t think it went to central issues such as capacity but how celebration is done. Not

so much a public policy issue if somebody’s formality laws are respected. The issue of marriage and choice of law creates debate. Basically, CML agrees w/ CVL that domicile is important, but case law in CML suggests that domicile of

intended matrimonial home can apply. Even if you lack capacity and move to where marriage is allowed then latter jur’n applies.

Apply law of each of intended spouses. On formality side CML says it’s law of place of celebration. One and only one applies. Marriage must be vlaid in

place where celebration takes place. Qc CVL says that as long as person presiding ceremony is from Qc it’s ok if you all go to Hawaii to perform marriage.

So marriage restrcited to issues of statutes. Effects of marriage (3089) subject to laws of domicile of spouses. But in case of separate residences, law of last

common residence or failing that law of place where marriage was solemnized. Dissolution (3089.2) refers to proceedings of nullification of marriage. This is non-divorce sense of word. Ie

nullification bc there never really was a true marriage. Ie for lack of consent, lack of consumation. For divorce (ie there was valid marriage) from PrIL and substantial law point of view we look at Federal Divorce

Act. Does not have traditional choice of law rule for divorce. Approach taken in area of divorce the jur’n and choice of law are considered as one question. So if Can court has

jur’n to grant divorce then applicable law is Canadian court’s law. This is a universal approach (ie in all countries) What are jur’nal rules for Can divorce: residence of either spouse in prov where divorce petitioned is made for at

least one year preceding the divorce (gives Can courts to grant divorce under Divorce Act). If both petition in diff provinces, Divorce Act says it goes to wherever divroce was filed first. If on same date then

goes to federal court. These jur’n rules are also in effect the choice of law rules. Recognition of validity of divorce gratned by courts of another country: divorce act here has 2 sets of rules: first is

reciprocal recognition rule. If request done by party who is ordinarily rsident of other place for at least one year, then Can court accepts the foreign divorce as valid and recognized. But Divorce act also preserves CML rules on recognition of forieng divorce which say any real and substantial connection will be sufficient for courts to recognize the foreign divorce.

So rules have evolved so that as long as process is similar to Can’s then Can courts will accept them.

Jahangiri-Mavaneh v. Taheri-Zengekani [2003] Ont Superior Court 39 RFL (5th) Facts Parties married under Iranian law. Some evidence of marriage K. Lived together in Ont 4-5 months before returning to Iran J-M claimed that T-Z sent her back to Iran against her wishes. Parties divorced under Iranian law in 2001. J-M claims she didn’t want divorce and signed under duress J-M applying for spousal support under Divorce Act or under Family Law Act but does not make divorce claim T-Z responds court has no jur’n under either Act as parties arent spouses and were divorced in foreign jur’n and J-

M is not making divorce claim. T-Z claims he paid J-M as required by marriage K.Issue Does Ont court have jur’n to grant $$$ support?Holding NO (T-Z wins)Reasoning Campbell J.

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Divorce Act requires applicant to have been resident in Iran for 1-yr prior to divorce to have it recognized in Can Intention alone does not determine issue of ordinary residence. J-M in Iran for 3-yrs before Iranian divorce. So foreign divorce should be recognized for purposes of determining parties’ marital status. Court had no authority to grant corollary relief under Divorce Act unless parties were divorced in Canada, nor can

Can court vary a foreign divorce order Only in rare circumstances can foreign divorce obtained pursuant to laws of jur’n not be recognized as being valid Whether J-M reluctant to participate in Iranian divorce proceeding or whether she felt duress, she did participate

(^^ attorned) and accepted monetary settlement. There was no basis for refusing to recognize Iranian divorce as valid. Under Family Law Act spousal support denied for 2 reasons: (1) application exceeds 2-yr limitation period and (2)

a divorced person cannot make claim for spousal support under Family Law Act. Marriage K outside Ont is valid and enforceable in Ont if entered in accordance w/ Ont law. J-M did not show evidence Iranian marriage K was entered in accordance w/ Ont law. Class Comments About Iranian marriage. Wife wanted marriage to not be recognized bc she wanted to claim benefit of divorce

proceeding but also bc she wanted support for proceedings from abroad. Only place to get benefit of relief was to persuade court that she needed divorce bc iranian divorce could not be recognized.

Many connections to iran so Can courts found that they could not exercise court order jur’n bc that’s reserved for Can court decisions.

E. Property (en passant)3152. A Québec authority has jurisdiction over a real action if the property in dispute is situated in Québec.

3097. Real rights and their publication are governed by the law of the place where the property concerned is situated.

However, real rights on property in transit are governed by the law of the country of their place of destination.

Property Choice of law decision in property disputes is decided by stare decisis

F. Exceptions1. Public Policy/Public Order

3081. The provisions of the law of a foreign country do not apply if their application would be manifestly inconsistent with public order as understood in international relations.

This is an exception to the practice of the courts not to look at the merits of a judgment. Public order defense will look at the underlying cause of action. If the underlying applicable law is incompatible with public order, then the judgment will not be recognized nor enforced. Foreign law will receive application.

The public order exception at this level of enforcement and at the level of choice of applicable law does not succeed very often. There’s is a discussion of this defense in Beals, with respect to enforcement

Defense of public policy to exclude foreign law is a very narrow set of circumstances. So narrow that you only get text book examples. Not possible to find case in last 30-40 yrs in which public policy has operated as a defense.

Tolofson completely eliminates Philips and Eyre. Procedural fairness: in Beals case, the role council were attempting to give to public policy was argument of

procedural fairness and this, not public policy, was what dissent relied on. Public policy argument was over amount of damages.

Courts also attempt to control the need to resort to public policy through rules of jur’n. Courts try not to take jur’n over case for themselves if connection is elsewhere. In that way, if cause of action is one we have never heard of, law can hear it and apply foreign law but if court feels case will raise touchy q’n, they can use forum non

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conveniens and not hear the case and send it elsewhere. Same with effects of foreign judgments: wont accept the foreign judgment if it doesn’t fit w/ public policy.

Can control public policy in a way at level of hearing and at level of affects by not hearing them or not enforcing if there’s no jurisdictional link.

2. Proximity Principle

3082. Exceptionally, the law designated by this Book is not applicable if, in the light of all attendant circumstances, it is clear that the situation is only remotely connected with that law and is much more closely connected with the law of another country. This provision does not apply where the law is designated in a juridical act.

Drafters trying to craft choice of law rules that respect principles of connecting factors (place of tort, etc that show close connection idea). But know that there may be cases that may lead to choice of law rules that are not as clear, so they put in this safety valve that may not respect proximity principles, but fills in the gap.

Asks q’n of closest connection as one w/ closest interest. Gives court discretion to apply law that it sees most fit.

3. (International) Mandatory Rules

3076. The rules contained in this Book apply subject to those rules of law in force in Québec which are applicable by reason of their particular object.

3079. Where legitimate and manifestly preponderant interests so require, effect may be given to a mandatory provision of the law of another country with which the situation is closely connected.In deciding whether to do so, consideration is given to the purpose of the provision and the consequences of its application.

Provision does not apply to applicable law that is voluntarily and selectively accepted. So law in contract situation, you are free to choose rules of law you want. Even those which have nothing to do

with contract conditions. Can choose rules in this book to apply subject to those rules of Qc if their particular object is clear that they were

meant to apply to this contract or situation 3079 differently cast: it is in effect preserving the mandatory rules of Qc law. These are by definition the ones

informed by public policy considerations. Says Qc rules override contract rules if that is what legislator wanted. Go back to article 3111 para 2:

o You’ve got domestic contracts that have all domestic mandatory rules apply. Cant escape them 3076 applies in situation not covered by domestic K. It is available in theory, to more than K but any choice of

law q’n. But 3076 and 3079 are generally raised in contractual setting They are broaderbut mostly find being raised as exception to application of law voluntarily chosen by parties? Why bc that is situation in which you are out to get righted a wrong.

For 3rd country situation, you can get the same mandatory rules provisions sending it back there.

Society of Lloyd’s v. Saunders [2002] ILR 1-4047 – strict public policy grounds for non-enforcementFacts Appellants are Names of Lloyd’s (ppl who agree to be personally liable to pay out claims to insured if Lloyd’s

cannot cover its claims, in exchange for participation in Lloyd’s profits if and when they exist) who claim that Lloyd’s acted fraudulently and against Cdn securities legislation.

The Names initially brought motion for injunction in Ontario to prevent Lloyd’s from drawing on letters of credit and banks from paying out on letters of credit.

Lloyd’s successfully moved to stay the action on basis of forum non conveniens. Proper forum was determined to be Eng courts b/c choice of jur’n clause and more substantial connection with UK. Series of judgments were pronounced in favour of Lloyd’s, who sought to register them for enforcement in Ontario

under the Reciprocal Enforcement of Judgments (U.K.) Act, which incorporates Can-UK convention.

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Art. IV(1)(e) of convention provides that registration of judgment shall be refused or set aside if enforcement of judgment would be contrary to public policy in territory of registering court.

Appellants submit that judgments are against public policy b/c (1) there was denial of natural justice: allegations of fraud against Lloyd’s were not litigated and (2) Lloyd’s contravened Ont Securities Act by not filing prospectus; contravening the act is against public policy of Ontario.

Held: Judgements are enforceable.Reasoning Natural justice ground for non-enforcement does not appear in UK-Can convention. Based on Common Law (Four

Embarcadero), and for purposes of analysis, it was assumed that denial of natural justice is included in public policy ground for non-enforcement contained in convention b/w UK and Can. Natural justice means notice and right to be heard. Here, there was no denial of natural justice in English court b/c court gave full consideration to the fraud defence by assuming the appellants would be able to prove the frauds they alleged.

Public policy means fundamental principles of law and justice in substantive and procedural respects- includes fraud, bribery, coercion, incontestable harm to public (Lord Atkin in Fender) etc. Connotes more than local policy in internal affairs; fundamental values must be at stake. Public policy has been construed narrowly in Common Law provinces, and has seldom been invoked with success for non-enforcement (in the name of comity - Morguard and Tolofson).

Taken on its own, to condone a breach of the full, true and plain disclosure obligations and the anti-fraud measures contained in securities legislation would be contrary to public policy of Ontario.

It is not against public policy to register and enforce these judgments in this situation b/c (1) proper forum was England (confirmed by Ont CA). This is equivalent to a decision that if England did not determine Ontario law to be the proper law, the judgment cannot be contrary to Ontario’s public policy; (2) the public policy of enforcing the rules of comity where justice, necessity and convenience all favour enforcement, outweighs the concerns that might otherwise exist where there was a breach of the prospectus requirements. Non-enforcement of UK judgments would create economic chaos, unfairness, and affect the viability of this very important worldwide insurance market.

Comments SCC denied leave for appealComments in class Ont investors were induced to invest in Lloyd’s of London. London company comes to Ont and makes presentation that induces Ont customers to invest but were made to be

sacrificial investor’s for upcoming loss at Lloyd’s. They went to colonies to bear loss of their scheme. Choice of law clause gave exclusive jur’n to english courts and rules exclusively by english law. The background came with sentencing of first Can, US and Australian defendants. Lloyd’s came to sue them for

their investment. Canadian defendants applied to Can court to sue for fraud. Lloyd’s sued back saying English courts had exclusive jur’n. Df didn’t want that bc there was law that prohibited accusing Lloyd’s for fraud. English courts offered no substantive remedies.

Could foresee that to protect Lloyd’s and up to 40% of English economy with it there was settlement agreement that took away day in court and did not allow accusing of fraud. People at Lloyd’s who ringed fraud were long gone. But for investors it was still Lloyds and its same structure. To protect it, the English courts took away private remedies and disallowed fraud.

So English court would not apply the Ontario securities act that says that if investment contract doesn’t apply with rules of land then it’s not valid. Statute was breached and going to English courts would let that all slip.

Where does public policy defense fit in all this? Most important part of case for our purposes. Cant enforce this foreign judgment bc it would be undermining Ontario Securites requirements by giving effect to the judgment. A Quebec lawyer at that will say that it’s not public policy but mandatory rules (3076) that says that choice of applicable rules can be overwritten. Securities laws would then be applicable.

Relationship bt public poilcy and mandatroy rules? Public policy argument is one that inderectly corresponds to 3076 (shouldn’t give effect to foreign judgment bc it ignores Ont rules that make act illegal)

In Lloyd’s judgment aspect of security violation was treated as defense in public policy vein. Mandatory rules at end bc it’s hard.

Policy in code (3081) is drafted as exclusion of foreign law that would otherwise be applicable.

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3155 denies effect to foreign judgment if they at outcome all circumstance would be against public order understood internationally.

Mandatory rules in 3111 it’s for domestic K. So if Qc K, the parties chose rules X under general applicable rules and X rules are now applicable rules for the K. But 3111 says choice is subject to mandatory rules under law of Qc. In way same as public policy insofar as it excludes those rules of X that are inconsistent with mandatory rules of forum (here Qc). This all cast in affirmative terms in how mandatory rules of Qc overrride those of K.

In securities (investment protection) law example: done in public policy interest by encouraging investment trying to have everyone playing on equal footing, and at the same time protecting investors. The investment I enter into has K that says our agreement is governed by law of country X. If the investor is located in Qc and vendor is located in Qc and their investment activity is also in Qc we have entirely domestic contract. So under 3111 our choice of X laws is subject to mandatory laws of Qc securities law. Lets suppose laws of X doesn’t recognize market and allows to engage in normal K without positive obligations. The system on mandatory rules says that X laws apply subject to domestic rules. If we applied public policy analysis we wouldn’t get the same result. Without 3111 we’d have to rely on 3081 and it would say we’re not allowing chosing law that doesn’t have investor protection provisions in it that are at least similar to them. It would have to be something fundamentally worng with system that makes us reject X laws (mainly in moral sesne). This would be particularly hard to do in economic transactions such as this one. In public policy argument only morally repugnant systemic problems would allow rejection of choice of law. This is where mandatroy rules provisions come into effect. They do so by saying “our rules overrule your rules” and does not say “it’s morally repugnant that you don’t protect investors.” BIG difference in language and quite possibly in results.

Say you had intl contract bc you had foreign vendor of investment. Also have foreign investment activity and then local investor. 3111 para 2 is not going to apply bc there is foreign element present. Then we have to go to either (1) art 3076 (says that rules enforced in Qc by reason of their particular object) and have result in courts of country X where securities laws of Qc or any jur’n intended to apply even when you’ve got foreign vendor? Qc securities commission entitled to regulate English companies when they solicit investments in Qc. They are entering this market and ^^ securtities lws intended to apply to this activity.

All this to say Qc court would not react very differently than Ont courts did. Does this mean that priovate K’s entered into by Qc investors with foreign vendors have attached to themn all

these private law remedies? Would Qc court say all those rules override party’s choice of law? Not so sure bc there body of lit saying there ways of interpreting of intl mandatory rules that respect intl contracts, too. WE’re talkin of rules of priv law spehere thast affect ordinary contractual terms. Be careful not to quikcly conclude that mandatory rules once int; element enters picture are intended to override all other decisions.

Going back to reasoning: if giving effect to this judgment court would be overriding Ont securities laws. This would be against Ont public policy. Court says maybe they are giving result that wont enforce Ont law. But this is bc of choice of jur’n clause and creating conflict of jur’prudence if they didn’t accept ruling. Also bc they say this is intl contract as investors solicited all over the world. If court applies particular laws of Ont, then investors everywhere else would be given securities laws of Ont and they are not so sure Ont laws are so perfect and the effects oculd be to disencourage intl investment. Another reason is third party victims. Investment liabilities (ie monies investors being asked to pay up) is being asked to pay out loss and if they didn’t pay $$ those who lose are the innocent insurers who didn’t participate in this lack of disclosure that resulted in such economic disaster. We’ll protect you by invoking Ont securities laws, indirectly to protect these other ppl. Besides, original culprits already long gone. In other words, they’re givin indirecty the choice of law clause effect. That analysis would have resonance in Qc bc in applying 3076 (and it has yet to be applied successfully to override choice of foreign law) it’s completely new approach taken. First have to decide that Qc legislator intended this to apply, notwithstanding the foreign element. In deciding this you don’t just look at what legislature would ideally want but if it would push to disrupt markets beyohnd Qc and have repercussions to 3rd parties outside of Qc. Much narrower sphere than it looks like.

Third category of Qc laws in 3079 has even less hope. It imagines situation where aprties have chosen laws of X, for some reason the litigation is being heard in Qc (maybe cuz of investment activities) but investors are from US and investors comet o Qc courts and ask not to enforce X laws bc under US laws the vendor violated their securties norms under their laws and want contract to be voided. 3079 says that to win that argument there would have to be legitimate and manisfestly preponderant interests and this is really high hurdle that no one will clear. Para 2: Would mean giving effect to public order of another country. What if ours are not as stringent as theirs? Idea behind all of this is right in principle by preventing party attornment to limit party autonomy and have

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demands of globalisation leading to release of public policy aspirations at least at level of contracts. Mandatory rules situation tries to give regulation at private law level but this may not be feasible aspiration.

Public policy does a lot more work for CML than for CVL which has refined categories to great extent. Saunders captures public policy as basis of positive evocation of mandatory rules. Just that they have in CML another langauge for it. They talk of public policy when what they really are doing is talking of mandatory rules of Ont securities provisions.

Adjudicatory Jurisdiction General Jurisdiction

o Under code we find that under domcile of Df (art 3138) is always basis of jur’n even if nothing else is based in Qc (bc Qc courts have authority over you)

o Contractual/extra-contractual dispute: voluntary submission and/or agreement Subject-Matter jur’n

o Concerned w/ art 3148(3) based on fault, damage, injuries act or action of someone under contractual obligation

Compare how common law does this

General Jur’no Instead of asking for real and subtantial nexus, the CML says that physical presence is (historically) the rule

and is enough to bring upon an actiono Voluntary submission is also enough in CML

(NOTE: can wipe out vountary submission from prbm area cuz it’s same in both systems)

Subject-Matter Jur’no Up until 1975 (as per Sharpe J) there was focus on subject matter connection but then focus of rules changed

and shifted to Pl’s conditions and courts took on more role in interpreting the subject matter connection leading to expansion of rules to allow for even most limited of subject-matter connections to be sufficient. This included damaged suffered.

Now have situation where CML when from limited interpretation to one where subject matter connection is widened. All this now understood at time of Morguard decisiono Here LaForest made it clear that what he had to say also applied to jur’n underpinning Canadian courts. He

says there had to be real and substantial connection in the forum for a Canadian court to exercise jur’n. At level of adjudicatory jur’n! Not so much basis for jur’n as limit to jur’n and having a negative role. This was already there in courts as they were taking subject matter connection as basis for taking jur’n from one prov in another. What he did was create R&S connection as basis for adjudicatory jur’n

CML said that for purpose of recognizing ju’n of foreign courts, physical presence or voluntary submission are only acceptable ways of recognizing jur’n. Otherwise, wont recognize judgments.

Morguard expands adjudiactory jur’n saying we will recognize judg’mt emanating from other provs if there is a real and substantial connection to that province. And same idea and criterion will be expanded to intl judgments.

So from CML viewpoint can see diff in role that R&S connection playing in context. This is bc rules of jur’n for foreign courts were diff at CML than rules for forum courts (domestic) jur’n.

R&S connection provides basis for expansion of adjudicatory jur’n.

Back to Qc Continue to have in Qc a lopsided view of permissible basis for jur’n as bt Qc courts and other courts. For Qc

courts we know under 3148(3) what’s enough for Qc court to assume jur’n. B ut for courts of Qc to recognize foreign court’s jur’n the rules are a bit more stringent.

3168 must show prejudice was suffered, etc, etc. Stronger nexus is needed. This point aside the Qc rules still follow the same basic format for their jur’n and for foreign basis jur’n. Domicile and submission and there’s also subject amtter jur’n. When you go to CML you experience in the case a law a copuple of real difficiulties with understanding concept of R&S connection. Reasons include that historical basis for jur’n shows difficulties in

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working those concepts into idea of R&S connection. If we compare it w/ CVL approach we can start understanding them better.

CML has (1) presence (2) agreement/submission (3) Subject-Matter Does there have to be R&S connection bt the Df and the province or a R&S connection bt Df and event/subject

even if he has done nothing to submit to it?o In CML Under what would be Sub-Matter jur’n in CCQ, you are getting fusion of what CVL says gen’l jur’n

and subject-matter jur’n. Why this messiness? Bc presence not based on real connection bt Df and territory. It’s very diff from basis of jur’n that in effect says that in chosing to live somewhere you’re submitting to jur’n. So in CML what looks like a parallel, isnt really one since there’s diff bt presence there and domicle.

So when R&S connection came about q’n arose of whether it applied to connection bt Df and place or bt place and action that occurred there. That’s why CML case law is so confusing.

It can be both things for CML courts. Courts saying that if Df does something/purposeful activity or dispute arises from activities carried on there, then we’ll call that a R&S connection. Not necessarty for Df to do action there.

CML more confused idea than in CCQ. Best way to analyize it? Rely on idea that is reflectedin CVL of domeicle or residence in a place being a basis for jur’n while continuing to separate analuticially this from subject-matter jur’n and defend that on basis that courts have said that R&S connection bt forum and Df and then under subject-matter connection also a R&S connection but btwn act and Df

Presence still seems to exist as basis for jur’n. So is residence or domicile an additioanl bassi? No, presence should be replaced by idea of gen jur’n based on Df domicile in place and having R&S assists us in detrermining all this.

This is analytical structure adopted by Uniform Legislation. In terms of how legislative drafters are seeing how analysis should work, it’s same as CCQ and only crossover

that we see is for commerces and branch offices as basis for jur’n as well. Activities w/in territory that have impact are also basis for adjudicatory jur’n. For CML R&S is a limit on jur’n of courts otherwise already assumed. For intl judgments it’s basis for taking jur.

o Test satisfied by residence or domicile of Df (Beals) and includes independently of any durable presence a fault or damage (subject amtter) that occurs within territorual borders.

o Is this abstract test applied regardless of context? NO two types ofapproached come into play. First if it’s inter-prov’l or intl problem. R&S connection and streght needed according to Ont Court of Appeal in Porcel case a less of a connection is needed interprovincially than internationally. One of issues in Porcel asks if we’re dealng w/ Can Df or foreign Df. If canadian Df then cant be as demanding, If dealing w/ intl Df, we need more stringent apporach why? Bc hardship on Df is greater in intl context and bc we’re not dealing w/ a federal integrated judicial netowrk as we are in Can context.

o In SCC decision in Spar and Lebel’s reasoning tempts us to come to opposite conclusion. Court took jur’n on basis of very basic nexus and court went on to imply that bc it’s intl he’s prepared to take static view of what R&S connection is. Can two judgments sit side by side now? No. If Df from aborad we require a stonger connectio to prov or the other way around? Porcel syas out of country must show stronger and Lebel believes opposite and that within Can we must have more stringent view than if we are dealing w/ another country.

o Which should it be? Major in Beals says there should be no diff bt intl and interprov. R&S means the same whether you are talking of foreign decision or a Can court jur’n. Same idea operates for both and should not construe nature of rules to be diff in two contexts. His is the last statement of SCC on the q’n of new context but full of difficulty open to criticism and must question if we can rely on it.

o Probably most difficult para is para 37. He says, unclearly and confusingly, that enforcing court must have R&S cnnection and that this is overriding factor, bolstered by attornment or agreement and even presence. So far as agreement and attornment concerned we are saved by last part of para. But there is at least one Ont case where court refused to assume jur’n on basis on not being R&S connection and used ¶37 to show attornment etc were indicia to take into consideration in absence of R&S connection. This is wrong. There’s no scholar or court that would say choice of court agreements are not valid in absence of R&S connection. What court in Ont said can be thrown/argued back by last sentence of para 37, too.

o So Beals has caused confusion in lower courts and difficult to point any part that gives clear guidance. That para may still be useful bc maybe what was intended was to point that when it comes to physical presence as sufficient basis there the R&S connection should be attached as conditional basis.

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o Presence as condition remains as matter of controversy. Para 37 gives basis to scratch presnece as no longer sufficient. Virtue of removing presence from equation is to take us back to better structure (one that looks at domicile or residence) as most statutory approach have.

Idea that we shouldn’t be focusing as CCQ drafters did on particular events in the abstract in discussing ideas of what is appropriate jur’n. Sharpe J (in Muscott) lists a whole series of considerations that court is expected to apply in deciding whether there’s real and substantial connection. Very diff approach from anything that we see in any other of the cases. Damage may be enough in one case, but change some of circumstance and it may be not enough. Contrast with approach in Spar. Sharpe would ask to look at other factors of case and decided whether it’s enough. They include interprovincial or intl context, or unfair to Df in this particualr type of action, is it Can Df or foreign Df, etc, etc. His approach (w he insists is ) is very close to what most appropraite forum and taking into account all diff factors. This permeates class action decision where he looks at issues of procedure and fairness at that level. Very context-specific exercise.

What is disadvantage of this kind of approach? Lack of predictability. There are 8 diff elements!! Are they really helpful? Having to go through such an exericse is way to handle ideas about jur’n.

If you are representing someone, you wanna get the jur’n right or else client will be pretty pissed off (and broke). This creates demand of predictability. But also leads to not testing waters by going somewhere else.

It’s not easy to tie together basic cirteria for courts deicing accepting intl judgments. Ppl can agree on choice of courts and on voluntary submission and residence/domicile and subject matter connection as enough. So general parameters are there so difficulties are in structure and pciking apart these. Also policy based and once past gen criteria and once you focus in on something you face reality of globalization and world where events do not just happen in one place and can have ripple effect on other places and other events.

Muscutt v. Courcelles [2002] Ont C.A. Facts M was passenger in car owned by Df S and driven by Df D-G. M injured when struck by car owned by Df C and

owned by Df GA. Accident happened in AB. M suffered serious spinal injury, returned to ON and got further care At time of accident all Df resided in AB. After accident Df D-G moved to ON. M was in AB working for ON empoyer. M was preparing to move to AB when accident occurred. M sued Dfs claiming damages in respect of damage sustained in ON arising from a tort. Dfs S and D-G moved to set aside service out of jur’n and to stay the action. Argued Civil Procedure rule ultra vires Superior Court dismissed motion. Dfs appealedHeld: Appeal dismissedReasoning Sharpe J. Qn of assumed jur’n by Ont. As per Morguard Pl who sustains damage in Ont may sue in Ont if there is R&S connection w/ Ont. Must still distinguish btwn R&S test from discretionary forum non conveniens doctrine 1st q’n is whether forum should assert jur’n given the relationship bt case, forum, and parties in the suit of

the particular Pl against particular Df. 2nd court considers discretionary doctrine of FNC, w. recognizes that there may be more than one forum

capable of assuming jur’n. Court can decline jur’n on ground that there’s more appropriate forum Discretion provides control on assumed jur’n and rationale for lowering threshold for R&S connection test. Civil Procedure rule not ultra vires of Ont bc it’s procedural in nature and does not by itself confer jur’n R&S connection test is flexible and supports broad approach to determine if forum is reasonable place to hear suit. Nature of Df’s connection w/ forum is an imp factor to be weighed alongside others. No factor is determinative.

Relevant factors include:1. Connection btwn forum and Pl’s claim (bc forum has interest in protecting legal rights of its residents)2. Connection btwn forum and Df (occurs where reasonably foreseeable that Df’s actions would have result in

harm or where Df has done something w/in jur’n that bears upon Pl’s claim)3. Unfairness to Df in assuming jur’n4. Unfairness to Pl in not assuming jur’n5. Involvement of other parties to suit (incl avoiding multiplicity of proceedings and risk of inconsistent results)

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6. Court’s willingness to recognize and enforce extra-prov judgment rendered on same jur’nal basis7. Nature of case (interprovincial or intl) – bc assumption of jur’n easier to identify in interprovincial cases8. Comity and standards of jur’n, recognition and enforcement prevailing elsewhere.

Here, factors favour assumption of jur’n against out-of-prov Defendants. As for step 2. FNC discretion, Ont should not decline jur’n as factors taken into account (location of parties,

location of key witnesses and evidence, and applicable law) don’t create clearly better place.

Bangoura v. Washington Post caseFacts Motion by Df Washington Post for order staying action and setting aside service of claim. Post claims Ont has no jur’n as there was no R&S connection btwn action or the Post and Ontario. Claims Ont is

not the most convenient forum and most witnesses outside of Ont. Pl Bangoura sought order requiring Post to cease and desist from publishing false communications re: B on website B also sought damages for intentional infliction of mental anguish, etc. B resident of Can for 2 yrs. Articles in Post website refer to his work for UN in Kenya in ’97 and still on site.Held Motion dismissed (Bangoura wins, Ont can claim jur’n)Reasoning Pitt J. Df did not prove there was clearly more appropriate forum. Problems would exist if action tried in Ont or in DC or anywhere for that matter since not all parties in either jur’n Publication in DC but reputation affected in Ont – so either appropriate forum Service properly effected respecting Ont Civil Procedure since damage arising from tort sustained in Ont.Class Comments Qn if Ont courts have jurn and its appropriateness So far as jur’n is concerend in defamation action we know that rules of tort in Ont in addition to giving jur’n if

tort occurs in Ont, or if damage is suffered in Ont arising out of a tort wherever it may have been committed. Case law that says that for purpose of jurn in case of defamantion: as long as there is defamation in prov the tort is

committed in prov and therefore serves ex juris is satisfied. So far as dfamage is suffered in Ont, the damage here is reputation. As long as one has reputation in jurn that

satisfy requmt that damage be suffered w/in jurn. This is to decide whether there is pressumption that courts will exercise jurn here. In Ont you have 2 heads of claim: tort in Ont (publication in Ont) and damage in Ont (loss of reputation in Ont) However there has to be real and substnatial connection shown…ie not only satisfying these general headings. Then go on to apply Courcelle case criteria Ultimately, yes Ont court has jurn bc this is where Pl resides. Even if publication is not widespread in Ont, it is

enough that there is loss of reputation in Ont. Plus Washington Post is widely read around the world with global reputaiton. Not disputed that there is publication in Ont just that it’s not widespread but though this standing is not enough, there still is loss of reputation in Ont and this is enough.

So this is jurn. Not choice of law.

Judge decides not to answer question of choice of law. We need to look at lex loci delicti rule (so place of publication) as appropriate rule to look at. This would be DC Or we look at place of residence This is underdeveloped analysis that doesn’t even look at Australian dcisions that case looks at. These cases say

that we have 4 possibilities.1) Place of publication. This has not received great deal of support, not even in Australia.2) Place of residence or principal establishment. Less the publication that’s at issue andm ore the harm so must take into account idea that harm is to reputaiton and what you’re seeking in defamation is not damages in $$ sense but vindication. This may be more appropriate choice of law rule for cases of defamation.

2 problems: What if place of residence is not place of defamation. Can we really apply law of home state of victim is case where no publication has occurred there. This may depend on nature of publication. If coming out of multi-natl type of publisher it does not matter that tehre is no publication in that particualr location. So focus is whehter impact is felt on place of residence. So now need multi jur’nal publisher if going to apply

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residence and not place of publication. If you don’t have this, go back to lex loci delicti (place of publication). So now depend on to what extend you have reputation in that place as opposed to your place of residence.

3) Multi-national reputation: wanna claim damage for reputation being lost in a number of fora. Then can have each publication give rise to separate tort, so different law depending on where each publication is located. Suing in one place for defamation that has occurred in a number of different states and want that court to take into account ALL place where defamation occurred (can show damage of reputation if publication occurred in diff places even if not resident in all). Problem since its appropriate to treat place of residence as appropriate choice of law but if you go to secondary place of is it appropriate for Df to be exposed to defamation under laws of all these different places? If go to separte tort publisher cant place themselve in place where there is no defamation liability. On other hand, entitlted to protection of law of place of publication to extend that it will protect them. Qn of assessing civil liability as publisher. Law of civil liability will be determined in place where publication takes place. So instead of taking place of publication or taking place of residence: gotta show loss of reputation and loss of reputaiton intlly so that there are several applicable, separate torts with separate applicable choice of law rules. As practical matter this is being handled so that litigants are claiming loss of reputation for only one jurn and for damages suffered only in that jurn so only one choice of law.and that gets most defamation victims what they need so they get what they need: vindication. In order to avoid difficult choice of law issue you do this…allyou really need is to find civil liability under one system so if in your place of residence then you’re set and don’t need to go through trouble of choice of law and demonstrating losses under all diff systems.

4) No publication in place of residence, but somewhere else, but there is harm felt in place of residence then here again you apply laws of place of residence. How well does this square up. CCQ 3126 says that in extra-contractual civil liability its governed by laws of place injurious act occurred, unless person who makes damages could have reasonably foreseen that injury would occur there. So if place of publication and of residence are diff but can show that it showed harm in place of residence, then second sentence of 3126 works since there was foreseeability. Same with lex loci delicti, it is laws of place where damage was felt (LaForest in some case)

Parallel proceedings: in discussion of Air Canada mock case, what if different Pl want to sue in diff places and you have 2 actions by 2 diff plaintiffs w/ same facts. How would the Ont and Qc courts deal? For the Ont court it would be factor in FNC analysis that there is proceeding going on in Qc w/ other Qc plaintiffs and if Ont refuses jurn that would result in consolidation in Qc. So far as Qc is concerned, Qc has diff approach. It treats it separately than FNC. But 3137 deals w/ this if there are same parties, so not applicable here since parties are not the same. Qc wouldn’t do same as Ont an thus would not apply FNC.

3137 applies if Pl suing Df in Ont and then Df suing P in Qc with same dispute and same facts. Here there is difference in Qc and Ont apporaches. Qc in 3137 says that Qc authority may stay its ruling if it can be shown that other decision could be recognized and enforced in Qc. This discretion is more routine and not dealt w/ as exception as it is in 3135(I think).

Ont case faced with action in Qc would treat it under FNC analysis. In CML courts can claim in-suit injunction where Pl applies to other crt to order Ont Df to withdraw it’s Qc suit.

No lis alibi pendans but can deal w/ it by having injunction to order party to withdraw its case in the other court. Rule in Ont says (Bangoura ¶26) that burden is on Pl to show forum is appropriate if Df questions it. But SCC

does not agree: if there is foreign element the question is if another jurn is more appropriate and test if there is more convenient place: clearly more appropriate test. Nonetheless that Pl has burdened, in practice the assessmenet of relevant factors is the make it or break it. So result wil be the same. In Qc the burden is wholly on Df. Ont lower courts decision is not consistent with normal rules. Bc if Pl established jurn it shouldn’t have to go on to also proof that it’s best jurn. Some of burden should fall on Df if Df is challenging jurn

Spar test shows that only way of displacing jurn once taken is if you show there’s other better place and it’s Df who has to do this.

Qns: in Worthington, would decision be same if it was Ont and Qc would have to give full faith and credit? Full faith and credit based on diff constitutional issues. To answer this look at Hunt which christalized the whole full faith and creidt issue. Tort est’d in BC and BC courts had jurn. Qc Dfs ordered to produce certain business records but there was Qc Act that said you cant be bound to produce business records if est’d in Qc. Df says cant

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show docs bc then they’d be breaking Qc rule. SCC had 2 theories on which to shot down Qc legislation to prevent disclosure of evidence. Couldve siad it was unconstitutional bc it undermined civil rights in another province. But instead went full faith and credit route. Bc of FF&C cant pass legislation to prevent judgment of other province to be followed. FF&C gives positive obligation to produce docs.

Worthington diff bc it says Qc laws were consitutional since they only touch civil rights in Qc and not civil rights elsewhere.

What worthington doesn’t address is that diff in interprovincial context was that we are dealing with another constitutional doctrine: the one that poses positive obligation to give full faith and credit on sister province’s judgment. Didn’t have to bc it was intl jurn question. No obligationto give full faith and credit to foreign judgmt.

Worthington that its not in opwer of QC to pass such priovisions bc It affects civil rights in Qc only. What it doesn’t decide is whether full faith and credit can have exceptions. Perhaps can aruge that matter of provincial soverignty can carve out exceptions to full faith and credit.

Domicile or residence of DF is always basis of jurn (3138, 3148) in cases of patrimonial nature. Domicile defined as ordinary or habitual residence which oimplies intention to make Qc your principal home. Supported by principle of moral persons..it’s single place. Under 3148 don’t need to go all the way that saying Qc is habitual residence, only ordinary residence which includes a second home. This is to exclude transient presence.

In context of 3134 there is only one place of domicile Since 3148 says both domicile and residence, tehre’s implication that domicile may be only in one place while residence may be multiple.

For CML Beals majority says presence is part of what goes into R&S connection, but no definitibe case that says presence isnt enough. (yet)

LeBel suggesting more restrictive test for intl cases while Sharpe says more relaxed test for interprovincial. Problem 2 and how Ont court assuming it exercised jurn we’d have Ont judgment: would it be recongnized in Qc?

Ont damages and Qc fault. Would Qc court recognize Ont judgment. CCQ would sya no bc of 3168 that has more demanding test for recognition of foreign courts than it has for itself in 3148. So it would not recognize default judgment bc Qc requires fault and damage in foreign jurn. BUT there’s full faith and credit. Does this mean 3168 too demanding in that it demands more than constitutional test would require so then interprovincially it would go against constitutional imperative. So interprovincially it would have to be looked at criticaly and would not apply. Except in cases where public policy argument applies (ie Worthington hypothetical above).

Maybe provinces shhould not take jurn unless both fault and damage in their jurn if Qc is other place ohterwise their decision might end up as constitutional crisis :p

This summary was graciously provided by:

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private international law – prof - mcgill...

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