Professional Documents
Culture Documents
Substantive law - The part of the law that creates, defines, and regulates the rights,
duties, and powers of parties. Cf. PROCEDURAL LAW. "So far as the administration of
justice is concerned with the application of remedies to violated rights, we may say that
the substantive law defines the remedy and the right, while the law of procedure defines
the modes and conditions of the application of the one to the other."
Procedural law - The rules that prescribe the steps for having a right or duty judicially
enforced, as opposed to the law that defines the specific rights or duties themselves. --
Also termed adjective law. Cf. SUBSTANTIVE LAW
Forum non conveniens [Latin "an unsuitable court"] Civil procedure. The doctrine that
an appropriate forum -- even though competent under the law -- may divest itself of
jurisdiction if, for the convenience of the litigants and the witnesses, it appears that the
action should proceed in another forum in which the action might also have been properly
brought in the first place. -- "Forum non conveniens allows a court to exercise its
discretion to avoid the oppression or vexation that might result from automatically
honoring plaintiff's forum choice. However, dismissal on the basis of forum non
conveniens also requires that there be an alternative forum in which the suit can be
prosecuted. It must appear that jurisdiction over all parties can be secured and that
complete relief can be obtained in the supposedly more convenient court. Further, in at
least some states, it has been held that the doctrine cannot be successfully invoked when
the plaintiff is resident of the forum state since, effectively, one of the functions of the
state courts is to provide a tribunal in which their residents can obtain an adjudication of
their grievances. But in most instances a balancing of the convenience to all the parties
will be considered and no one factor will preclude a forum non coveniens dismissal, as
long as another forum is available." Jack H. Friedenthal et al., Civil Procedure §§ 2.17, at
87-88 (2d ed. 1993).
Lex fori - The law of the forum; the law of the jurisdiction where the case is pending <the
lex fori governs whether the death penalty is a possible punishment for a first-degree-
murder conviction>. -- Also termed lex ordinandi. Cf. LEX LOCI (1).
lex loci - [Latin] 1. The law of the place; local law. Cf. LEX FORI. 2. LEX LOCI
CONTRACTUS.
Lex loci actus - The law of the place where an act is done or a transaction is completed.
-- Often shortened to lex actus.
Lex loci contractus - The law of the place where a contract is executed or to be
performed. • Lex loci contractus is often the proper law by which to decide contractual
disputes. -- Often shortened to lex loci; lex contractus. "The lex loci contractus controls
the nature, construction, and validity of the contract; and on this broad foundation the law
of contracts, founded on necessity and commercial convenience, is said to have been
originally established. If the rule were otherwise, the citizens of one country could not
safely contract, or carry on commerce, in the territories of another."
Lex loci delicti - The law of the place where the tort or other wrong was committed. --
Often shortened to lex delicti. -- Also termed lex loci delictus; lex loci delicti commissi;
place-of-wrong rule; place-of-wrong law. Cf. LOCUS DELICTI.
Lex loci solutionis - Latin "law of the place of solution", The law of the place where a
contract is to be performed (esp. by payment). -- Often shortened to lex solutionis.
Conflict of laws; it is the court of NB looking at its own conflict of laws rules, whether
its dispute should be decided based on the substantive law of Ontario or not.
“Domestic Rule of Decision”: indicates the rule that would be applied by the court if
there were no relevant foreign facts of any kind –as if the matter had arisen within
exclusively local facts.
The proper law of the contract is whatever the parties intended or could be
presumed to intend.
In seeking to ascertain the intention of the parties as to the proper
law of the contract, in the absence of expressed intention it should be
determined as the one with which the transaction has its closest and
most real connection.
- both parties present in Austria
- contract entered into in Austria
- Performed substantial part of contract there
P owned cargo on board the Assunzione which they had chartered. It sunk
due to negligence of D, who owned the ship.
I: Which law should be applied to the contract? French law (P’s nationality)
or Italian law (D’s nationality)?
Vita Food Products Inc v. Unus Shipping Col Ltd. – Privy Council (1939)
Leading case on exclusive c.o.l. clause in contract
Give effect to a choice of law clause if it’s bona fide legal and doesn’t
offend public policy
- all that a choice of law clause can do is to indicate the background legal
system against which the contract was drafted/made
o can’t expand or limit the parties freedom to make deals on their
own terms
- choice of law clause would not avoid the following problems
o fundamental breach
o enforcement of penalties
o fiduciary obligations (agent-principal)
o mistake/frustration
o assignability
- these potential problems are requirements along the line of ‘if bona fide
legal and doesn’t offend public policy’
o some restrictions on ability to choose ‘governing law’
I: Must decide whether to give effect to the part of the contract that
says it’s governed by the law of Ont. The land and negotiations and
sale and performance were in AB, but contract was made in Ont.
H: AB law applies:
It is the lex fori and is a matter of public policy.
First court says it doesn’t think the parties actually meant for the
law of Ontario to govern (not a bona fide choice), but even if they
did mean it, they can’t do that b/c it goes against a mandatory law.
Licensing real estate agents: there is a policy reason for the rule that if
you’re not licensed, you can’t sue for a commission. Thus you don’t
want people to be able to say their real estate agency contracts are
governed by the law of some other country w. no rules about licensing,
thereby entirely defeating the domestic law requiring real estate agents
to be licensed.
Facts: Charron died and his former wife sues D, the executor of his
estate, for back payments of alimony under a separation agreement
made in Ontario. Quebec law doesn’t recognize separation
agreements as valid contracts. D claims law of domicile should
apply (husband’s permanent domicile was always Quebec) and P
says law of place of contract should apply.
o real issue: which party should bear the risk of loss for this event?
o Requires more than just choosing a proper law
This case doesn’t fit into traditional jurisdiction selection rule, but
has been used to stand for the position that issues of mode of
performance are governed by place of performance.
Part I – Choice of Law
Chapter 3 – Choice of Law in Torts – pp. 81-142
1. Introduction
- in contracts, rules across jurisdictions are nearly the same
o have to be, because of prevelance of international commercial contracts
- in tort, the differences among jurisdictions are more significant
o i.e. fault-based vs. no-fault
- theoretical issues that arise in torts
o criminal element
historically, criminal element to torts
• intentional torts
o Fault vs. no-fault
Negligence
Vicarious liability = no-fault (strict liability)
Defectively manufactured goods – strict liability in some
jurisdictions
o Social policy
Tort law is influenced by social policy and is used to achieve social
objectives
This doesn’t represent the law of Canada, and never has. It shows
England’s departure from Phillips v. Eyre, and shows the pros and cons of
each rule.
Wilberforce:
Asks if Philips v. Eyre rule is satisfactory and canvases other options:
Place of tort: Two disadvantages: first is the difficulty of
domestic courts trying to apply foreign law; second the place
where the wrong occurred can be fortuitous: place of the tort
can be a fluke. Also there’s the problem of having to decide
where the tort occurred.
Contact/Interest Principle (Proper Law of the Tort): Looks at the
US where they look at all the factors and the policies that
underlie them. Wilberforce’s criticism of this is that there is too
much uncertainty: the search for relevant contacts and of
weighing them qualitatively against each other leads to
uncertainty and dissent. It’s also difficult to agree on the issue of
the underlying policy.
o Wilberforce says that the Phillips rule applies unless there is a reason
to ignore the foreign law. Basically within the double barreled
approach, you can’t derogate from the law of the forum, but you can
derogate from the l.l.d.: in this case, the Maltese government probably
doesn’t care whether or not their law prohibits two foreigners from not
being liable for, or able to recover, compensatory damages. Because
the two parties were British and lived in Britain etc., the Maltese
limitation could be ignored.
Decision:
Court quotes Dicey rule stated in Philips:
An act done in a foreign country is a tort, and actionable as such in
England, if it is both
i) Non-justifiable according to the law of the foreign country where is
was done;
ii) Actionable as a tort, according to English law, i.e. an act which, if
done in England, would be a tort.
In Ontario, this wasn’t actionable, but the court gets around this by finding
that D’s actions were contrary to a provision stating that drivers must use
reasonable consideration for other persons using the highway: therefore
non-justifiable.
Chaplin v. Boys rejected the “gloss” of non-justifiability, i.e. it held that the
action must have civil liability in both places, but in Canada we bought
Phillips.
Held: For D.
In this case, civil liability would arise for this in Ontario (satisfies first part
of old test). This injury isn’t actionable in Quebec though (fails on second
part of Philips test)
However, court ignores choice of law rules and looks at the scope of
the law: Ont. can’t impose strict liability on people who aren’t in or
from Ontario. If they did create a statute that extends the scope of the
law to all people, no matter where they’re from, who have their
automobiles in Ontario, the statute might not be constitutionally valid.
o court could simply have decided that statute was not intended to apply to
Quebec residents
defendant never became subject to the act
o trying to determine which of the innocent parties should suffer the loss +
geographically complex facts
very difficult
o no-fault compensation re motor vehicle accidents caused a shift in the law
no causes of action under no-fault
applying traditional rules, Quebec residents (no-fault) could be
found liable in Ont. for Quebec accidents with Ont. residents
provinces respond with legislation, but courts say people can still
bring action in their own province for accidents in Quebec
Decision:
Distinguishes MacLean. We only want MacLean v. Pettigrew reading to
apply when the parties are from the same province.
Looks at many factors, including what’s fair between the parties.
Applying the Ontario legislation instead of the Quebec legislation
would be “officious intermeddling with the legal concerns of a sister
province.”
Place of the tort rule applies. Some courts have tried to get around this
rule since, but the SCC doesn’t leave much room for that.
Facts: P is injured son of driver, who sues driver and other driver for an
accident that occurred in Sask. Sask. had a law at the time that required
gross negligence to be proved in order for a gratuitous passenger to
recover. Sask. also required actions to be brought w/in 12 months; here
the boy brought the case 6 years later, at age 18.
Lower court in Gagnon basically applied the Grimes v. Cloutier test to find
that Quebec driver can get the benefit of Quebec’s no-fault scheme.
Courts have found ways around Tolofson when not happy with the result it
would give
Facts: Passenger sues driver for accident that occurred in New York. Both
were residents of Ontario, and suit was brought in Ontario.
Decision:
Place of tort should still apply.
Just because the foreign law differs somewhat from the domestic law
doesn’t mean there is an injustice. The exception to Tolofson should
be very narrow.
Insurance Context
o car insurance policies and Insurance Act offer a different approach to
‘inter-provincial torts’
o partial legislative reversal of Phillips; doesn’t require actionability by the
forum
Part 1 – Choice Of Law
Chapter 4 – Escape Devices – pp. 143-182
1. Introduction
- whole structure of choice of law process depends on characterization
- courts will sometimes manipulate characterization to achieve the result they want
- four principal methods to get to the result that the court wants
o substance/procedure distinction
o renvoi
o choosing between competing characterizations
o public policy doctrine
Another Sask. court said the provision is procedural. The court in this
case says that the context is different: they used the word “procedure”,
but that doesn’t really effect whether or not it is actually procedural for
the purposes of this case.
The court sees the purpose of the statute as being related to
substantive contractual rights.
Must consider the purpose of the statute
Decision:
D says the governing law of the chattel mortgage is the proper law; must
take BC procedure, so can only seize or sue. The BCCA buys this
argument, b/c they say that it speaks to the method of enforcement. If the
statute said D’s rights were only X, it would have been substantive, but
here since it says how they are to be enforced, the provision is procedural.
Black thinks that this is a bad result b/c if you enact consumer protection
legislation as BC did here, lenders will make adjustments for it (e.g. ask
for a greater down payment or charge more interest). The Alberta lenders
aren’t limited by such legislation so they wouldn’t do that. In this case, the
Alberta lenders are suffering b/c they are being treated the same as BC
lenders, and D is gaining through the protections afforded by the BC
statute: really there is no market adjustment occurring so it’s unfair to the
AB lenders. Probably the court wasn’t really thinking about conflict of laws
issues at all.
J.D. Almeida Araujo v. Sir Frederic Becker & Co. – Eng. QB (1953) – p. 159
Facts: buyer didn’t pay for goods, seller gets to claim loss on contract, but
b/c buyer didn’t pay, the seller couldn’t buy from his upstream supplier.
Seller’s contract w. upstream supplier had a penalty clause, so now seller
seeks to recover value of contract from the buyer along with the amount of
the penalty clause. The proper law of contract is law of Portugal, but
English court’s rules say that recovery for the penalty clause is too remote.
So D wants English law of remoteness to be procedural so that it will
apply.
- the more rigid the choice of law rule that is used, the greater the need for
escape devices
o for this reason, more applicable in tort cases – rigid rule in
Tolofson
Leave to appeal to SCC has been granted. Black is guessing the SCC will
reverse the interpretations that have been applied up until now, and say
that the statute means not even foreign substantive law will apply.
3. Renvoi
- characterization has occurred, choice of law rule has been applied, governing law
has been selected
- should we ever look at the conflicts law of the foreign law selected?
o Renvoi = making reference to the conflicts rules of foreign law selected
through the choice of law process
o Eventually one court applies a set of contract rules, exclusive of any
contract rules – noone really knows when it stops
Partial renovoi – over and back once (civil law)
Total renvoi – three times over (English)
- Renvoi is never used in contracts cases
Facts: British woman dies in France w. will valid under English law. There is
no limit to testation in English law, but there is in French law: must give a
certain amount of your estate to your children. English law says the law of the
will is governed by the domicile of the testatrix at her death: French law
governs, and is therefore subject to limitation on testation. However, French
choice of law rules say freedom of testation is limited, but only for French
citizens.
Issue: English COL rules point to France, but French COL rules point to
England. Which COL rules should apply?
Decision:
Court applies renvoi w/o really discussing why it is adopted in succession
even though it doesn’t apply in contract or tort.
Court applies domestic law + conflicts rules including renvoi rules.
English court pretending to be the French court looks at English law and
then decides that English law would bounce the question back to French
law, and stops there.
Black thinks this decision is questionable b/c France only wants to apply their
testation law to its citizens; they’d let England apply their domestic law. But
then the English domestic law goes and uses French law that never really
was intended to apply to English citizens.
4. Characterization
- bright line distinctions between different areas of law do not exist
- traditional rules assume characterization is possible and consistent
- courts have lots of freedom to decide whether to call something torts of contract
- use characterization to avoid a choice of law rule they don’t want to apply
Judicial use of characterization to avoid choice of law rules that lead to unwanted
results
WI has spousal immunity rule at this time: spouses can’t sue each other for
torts. Tort law says that l.l.d. applies, and the accident here occurred in CA. D
argues that this isn’t a tort case, it’s a family law case, so WI’s spousal
immunity rule should kick in.
Connecticut has law where the rental company would be responsible for torts
caused by the operation of its vehicles. Mass. doesn’t have those rules. Is
this a torts case or a contracts case? The court calls this a contracts case.
For these cases Black is saying that we are not really equipped to properly
answer questions of characterization, so it’s pretty much a crap shoot. The
message I’m getting is that if you get this on an exam, you can’t go wrong.
Castel, p. 204 – likes the traditional approach of characterization, and
defends it against the view that we shouldn’t characterize, we should just
look at policy.
5. Public Policy
- if the lex causae – the result selected by the c.o.l. process – is found to be
repugnant, then its application can be declared contrary to public policy
and the court can refuse to apply it
- comes up in the context of enforcement
Part II – Recognition and Enforcement
Chapter 5 – Recognition and Enforcement of Foreign Judgements – pp. 183-308
1. Introduction
- a party who has obtained a judgment in a foreign jurisdiction may be able to have
that judgement given effect in another jurisdiction
- recognition = process by which the foreign judgment is regarded as validly
determining a dispute between the parties
o relevant if the sole issue is the conclusiveness of the foreign judgment
o recognition alone is in issue where foreign judgment is in favour of the
defendant
- enforcement = process by which the foreign judgment is transformed into a
judgment of the forum
- common law - England: foreign judgment creates a debt, you can bring an action
for that debt in the English courts
o criticism of this analysis
o Ont. CA – bring an action on the judgment not the debt; subsequently
rejected in favour of traditional view
o Treated like a contract debt
- Rules re preclusiveness (finality) of foreign decisions are similar to the rules of
res judicata in relation to domestic judgments
- Foreign judgment can be enforced through motion for summary judgment
- Even more efficient mechanisms for enforcement through Reciprocal
Enforcement of Judgments Act
o Common law basis for enforcement remains the same
- Morguard - important case re enforcement of foreign judgments
You have to have submitted on the merits. The question then is how far
you have to have acted in a given jurisdiction before you are deemed to
have addressed the charge on its merits.
The English court, when deciding whether or not they will enforce the
judgment, finds that D submitted enough to AB jurisdiction even though he
never argued the case substantively. Even arguing an arbitration clause
can count as fighting the case on the merits.
Facts: Foreign court rules in favour of D. P wants to now sue in NS, and D
wants NS courts to recognize foreign ruling and not allow P to sue again in
NS.
Issue: When using a foreign judgment as a defence you’re talking issue
estoppel, b/c the foreign judgment can’t be regarded as res judicata.
There is no certainty that when a court finds in favour of a defendant that
the case has been decided on its merits. On the one hand, a court could
fully adjudicate a case on its merits and then dismiss the action, but on the
other hand a court could dismiss an action based on a technical issue,
such as deciding it is not the proper forum to deal with the cause of action.
Discussion:
In this case the German court dismissed the cause of action b/c it was
barred by limitation period. Is this a sufficient reason to not allow P to sue
again? Ger. has short limitation period, but views limitation periods as
being substantive. German law does the renvoi and says that English
limitation period should apply; English law says limitation period is
procedural and bounces back to Germany (I don’t even know if I put this
down right).
H: P gets to pursue the claim b/c it wasn’t decided on the merits before
The single most important case of this course – rewrites the rules of
enforcement in Canada
This is the single most important case we’ll look at; has consequences for
a lot of other stuff.
Decision:
Under the old rules (presence, submission) this would not have been
enforceable
Court broadens the old rules using the concept of reciprocity.
This can mean two things: (1) we’ll enforce your judgments if you
enforce ours; or (2) how domestic jurisprudential practice works: would
we take jurisdiction in like circumstances: e.g. if the same thing
happened in BC, would they do ex juris service and hold D
responsible. Another possible basis for jurisdiction is nationality, but
that’s not good law and it doesn’t really apply any more (bottom of p.
224).
SCC thinks the conception of comity that underlies the traditional
enforcement of foreign judgments needs to be adjusted in light of a
changing world order: we should have ready enforcement of
judgments across borders; this is necessary to facilitate trade:
“accommodating the flow of wealth, skills and people across state lines
has now become imperative.”
More importantly though, it was a mistake right from the beginning to
transpose 19th century rules applying to judgments from foreign states
into rules enforcing judgments from sister-provinces. The
considerations underlying comity apply w. more force btw. the
units of a federal state.
There are a number of things that make the federal interprovincial
scene different from the international scene:
o Charter, s. 6: mobility rights – people can move, so should
judgments
o Constitution Act, 1867, s. 121 - Common Market
o Constitution Act, 1867, s. 91(2) - federal Trade & Commerce
Power
o Federal POGG power
o Superior court judges are appointed by federal authorities
For these reasons Canada doesn’t need a “full faith and credit” clause
in the Constitution like the US does, which requires that all states
enforce each other’s judgments. The Australian Constitution gives the
federal government power to address the issue of inter-state judgment
enforcement, which it has done. The EC has also moved towards
automatic judgment enforcement: because they have a common
market, they have also decided that there is no defence to a judgment
of an Italian court sought to be enforced in England.
There should still be a jurisdictional test though:
o Order and fairness - requires that a person not be able to avoid
obligations just by moving to another province (fairness to Plaintiff)
o Real and substantial connection – the court giving judgment
must have properly exercised jurisdiction (fairness to Defendant: P
can’t go to any court to sue).
So you can no longer do the flip that the defendant attempted in this
case: if AB has a real and substantial connection with the cause of
action the judgment can be enforced. This adds a huge option:
presence and submission are still options, but now also a real
and substantial connection is as well – assumed jurisdiction
The US has its full faith and credit clause, but it doesn’t have the authority
to enforce broad service ex juris: there are limits on long-arm jurisdiction.
Similarly in Australia, there are no bars to judgment enforcement, but
there are limits to service ex juris so that provinces can’t just bring
anybody before their courts. The Brussels Convention (EC) also sets out
the maximum service ex juris rules.
Note:
Morguard left it open as to whether the real and substantial connection
rule also applies to extra-national judgments. La Forest pretty much builds
his arguments based on interprovincial reasons. But certain cases have
held that Morguard does apply to foreign judgments. (see note for cases)
Note:
The substantial connection test is unclear as to what there must be a
connection between:
o subject matter of the action and the territory in which it’s
brought
o damages suffered and the jurisdiction which rendered the
original judgment
o the rendering jurisdiction and the defendant
o sufficient “contacts the rendering jurisdiction may have to the
defendant or the subject matter of the suit”
Note:
After Morguard most defendants raise a defence at the jurisdiction stage.
There are two options for battling a suit commenced in another
jurisdiction:
i) Go to the other jurisdiction and say the court has no jurisdiction
to hear it
ii) Wait until judgment is issued against D, and then when P comes
to D’s province to enforce it, say there was no real and
substantial connection
Decision:
BCCA finds that there was no real and substantial connection between
the cause of action and Texas, so they won’t enforce the judgment.
D hadn’t even shown that anyone in Texas had even read the
defamation.
An argument for thinking this holding is correct is that if you allow a
court to take jurisdiction just b/c the web site w. the defamation is
available online in Texas, then any court worldwide could take
jurisdiction. There should be a more substantial connection than that.
Dubious argument: mode of service.
Decision:
After Morguard we shouldn’t change our concept of
impeachment defences
Fraud: Narrow
If you allow a broad defence of fraud it will be troublesome
Fraud going to jurisdiction can always be raised as a defence
The merits of a foreign judgment can only be challenged for
fraud only where the allegations are new and not the subject of
prior adjudication
Evidence of fraud has to be new and material, undetectable by
foreign court.
Dissent:
There is particular concern w/r/t default judgments…
Natural Justice:
If foreign procedure is different enough to result in an excessive
judgment against D, there should be an obligation on P to
educate D on differences that may give rise to the harsh result.
Public Policy
LeBel suggests we shouldn’t enforce US punitive damages
awards in cases where we wouldn’t enforce them. We don’t
know on the facts whether the Fla court bought the argument
that the Beals were malicious and high handed etc.
Maybe Cdn. courts should enforce the judgment but trim down
the amount of punitive damages.
The majority didn’t really address public policy on the punitive
damages.
Held:
The standard of recovery wasn’t a fine. The measure was the harm to
creditors (i.e. plaintiff’s loss), not the government, so this isn’t a claim “in
the nature of a suit in favour of the state whose law has been infringed.”
Facts: Ps and Ds both lived in CA. Ps sold BC land to Ds, who breached
agreement of purchase and sale. P sued to get land back and CA court
ordered a reconveyance back to P. Ds refused to convey, so P brought
suit in BC.
Held:
- Can’t enforce foreign judgments dealing w. title to land in
province.
- Parties in CA would have to come to BC and relitigate.
- SCC says even if they knew CA had applied BC law they still wouldn’t
enforce the judgment
- The rule here is also that money judgments based on title to land
shouldn’t be enforced either. It’s not just in rem rulings aren’t
enforced, it’s that anything involving a foreign finding of title isn’t
enforced.
This doesn’t arise in Canada b/c, e.g. NS won’t take jurisdiction to give
title to land in NB.
This is out of synch w. Morguard. The next statute accounts for that:
This is fishy b/c it lacks the “real and substantial” connection from
Morguard.
It’s not a reason for an NS court that passes the statute to make an order
limiting another province’s judgment on the grounds that the other
province doesn’t have jurisdiction…
Drafters of the statute thought that it’s not a good policy to allow
defendants to lay low when the case takes place elsewhere and then
fight it when judgment creditor comes to defendant’s jurisdiction to
enforce the judgment on the grounds that there’s no substantial
connection. Allowing people to do that is bad policy b/c it could cause a lot
of wasted time and money if P is successful in foreign jurisdiction but then
cannot get another jurisdiction to enforce it. 6(1) essentially requires
someone to show up in the foreign jurisdiction at the jurisdiction
stage rather than waiting for the enforcement stage.
Discussion:
- Bouzari has no real and substantial connection to Canada (Tolofson rule),
but court doesn’t rely on that fact in dismissing his case.
- State Immunity Act
o Doesn’t apply to crimes; P argued that his case was penal in
nature, but court disagreed: still a civil suit therefore not criminal
proceeding.
o S. 6 exception to commercial activity: P argues that b/c he had to
pay bribes in relation to an oil deal, Iran’s actions were commercial
Nature: police and prison activity not commercial in nature at
all
Purpose: sort of commercial
Although the SCC, has previously held that both nature and
purpose can be considered, here the acts of Iran weren’t even
close to being commercial when all things are considered.
o S. 5 exception to torts: this applies only to torts committed in
Canada
- w/r/t/ P’s argument that exception should be read into State Immunity Act,
SCC has held that you can look to int’l norms to resolve ambiguities in a
statute: court looks to state practice, and finds that no other courts in the
world had ignored state immunity in order to allow civil suits in torture
cases.
- Charter argument doesn’t fly either…
- A decision on excluding immunity for torture was left to the legislature
Arguments by P:
o This isn’t trespass, it’s conspiracy to trespass
o There should be an exception where there is no dispute as to claim
of title. H.L. finds that there is no such exception: the original rule
generalized and didn’t allow room for distinguishing cases where
there is no dispute so that can’t be an exception to the rule
o There are exceptions to this subject matter exclusion: you can sue
a ship that runs into land and damages it.
In Godley v. Coles (1989) Ont. Dist. Ct. the judge decided not to apply the
Mocambique Rule. This is pretty exceptional, and it was done because to
apply Mocambique just wouldn’t make sense.
- Mocambique rule
o No jurisdiction re:
Determination of title to foreign land
Trespass on foreign land
o Exceptions
Court has jurisdiction in personam due to contract, trust or
partnership
• Case where action for unjust enrichment met the in
personam exception – Minera Aquiline Argentina v. IMA
Exploration – BC SC (2006)
Administering an estate or trust that includes property in Canada,
as well as foreign land
Jurisdiction in rem against a ship
o Lower courts are sometimes reluctant to apply Mocambique strictly
o Potential for analogy between case dealing with land and copyright cases
F: Norwich insured Collins, a US air force pilot serving in UK. Collins killed
Moreno, so Mrs. Moreno sues Collins, who is found liable in Illinois court
and so assigns his interest in insurance policy to her. Norwich won’t pay
under policy (says Collins drunk), so M sues Norwich in Ont., who claims
the Ont. court is Forum Non-Conveniens (FNC) b/c action brought by
parties who live in US arising out of MVA that happened in UK involving
an insurance policy to be interpreted under law of UK would be unjust and
an abuse of court’s process.
FNC in Canada
F: P’s ships were damaged in BC, and owners of the Spiladia were
Liberian, managed partly in Greece and partly in England. P obtained
leave for service ex juris; suit brought in UK. D argues FNC, but P says
they’d lose a big juridical advantage by not being able to sue in UK b/c suit
in BC would be statute-barred.
H:
• P must first have founded jurisdiction as of right in the country where
the action is brought.
o Burden of Proof:
On D to persuade the court to exercise its discretion to
grant a stay
If D establishes prima facie that another forum is more
appropriate, BOP is on P to show special circumstances
that justice requires trial should still take place in the forum in
which he brought the claim.
Facts: contract to ship goods from Europe to Seattle said not to ship by rail
and included exclusive jurisdiction clause in favour of Antwerp. Shipper
shipped by rail, breached contract. Action was started in Cdn. fed. court,
which decided to exercise discretion and not grant a stay based on the
exclusive jurisdiction clause, using the same tripartite test that is used when a
court is asked to issue an interlocutory injunction.
Decision:
SCC overturned fed. court, confirming the “strong cause” test in
Eleftheria. Discretion still exists, but should only be used in extreme
circumstances.
Parties need contractual certainty
Lower court used fundamental breach as an excuse for ignoring the
exclusive jurisdiction clause
Black:
Why not make the rule not discretionary, but rather have a rule that an
exclusive jurisdiction clause can only be ignored for a reason already
recognized in contract law that allows courts to ignore a clause in a contract
(e.g. unconscionability, duress, fraud).
Even the things taken into account in the test don’t necessarily relate to
freedom of contract, e.g. why would the court take into account where the
witnesses are? The parties may well have known or taken into account the
place of the witnesses when they made the contract.
4. Service Ex Juris
- aka ‘long-arm’ jurisdiction
- significant change to common law jurisdiction
- first introduced so that leave had to be obtained for any service ex juris
o convince the court this is a proper case to authorize this exceptional power
o courts will be exceedingly careful
- recent expansion in the court’s powers: three types of rules
o narrowest: service ex juris only if it fits into a specified category (Alb. &
NL)
o similar to the first, but with a catch-all provision giving discretionary
power in instances where specific categories aren’t met
o Nova Scotia – service without leave anywhere in Canada or US; service
outside Canada or US only with leave
Facts: D was Ont. company that made light bulbs. P lives in Sask., where
D’s negligently manufactured bulb killed P’s husband.
Decision:
o All constituent elements of the tort must occur in the forum in order
for an action to lie. The court considers whether the tort occurred in
Ont. or Sask. Approaches:
Place of acting
Place of injury
SCC likes Distillers Co. v. Thompson where the P.C. hints
at a real and substantial connection test. It rejected a
mechanical application of “last event” theory in favour of a
more flexible qualitative and quantitative test. It held the tort
had occurred in Australia b/c there had been a failure to
warn of possible damage. This failure was a continuing act
that had been made in Australia, and that combined w. the
damage in Australia ended up w. finding for P.
The defendant’s act which gives the P his cause of
complaint must have occurred w/in the jurisdiction.
There can be no liability until the damage has been
done.
o SCC concludes: for the purposes of servis ex juris rules, a tort
occurring anywhere that D could reasonably foresee it is fair
game. If you can anticipate harm occurring there, you can
have committed the tort there.
o Although this test is pretty broad, it doesn’t mean that, e.g. every
damage that occurs in Sask. will allow for an action.
o You can see Morguard as a constitutionalization of Moran v. Pyle:
it’s reasonable for Sask. to take jurisdiction here; how could you
then say the judgment isn’t enforceable? Of course, Morguard took
place 15 years after Moran.
5. Anti-Suit Injunctions
- a form of ‘offensive’ forum non conveniens
o enjoins someone from starting or continuing an action in another
jurisdiction
- became common in the last few years
3rd out of 4 big cases in 1990s (Tolofson and Morguard are first two we
covered)
Issues:
Is Texas an appropriate place to sue, since there isn’t an obvious home state
for the companies? Is it appropriate for BC to issue an anti-suit injunction
against BC Plaintiffs?
Decision:
Texas took jurisdiction b/c it was as good as any forum to hear the case.
Texas doesn’t have forum non conveniens (that changed after this case –
FNC is allowed); can take jurisdiction over any defendant who does
business in Texas. It is limited only by the due process clause of the 14th
Amendment of US Constitution.
Lower Court: found that b/c Texas doesn’t have forum non conveniens
they were an inappropriate forum: P’s action there is oppressive or
vexatious. Issued anti-suit injunction
Spiliada forum non-conveniens test:
o Identify more appropriate forum. If it is elsewhere,
o Stay proceedings unless it deprives X of significant juridical
advantage
Sopinka modifies Spiladia for ASI purpose:
o Consider Both Steps Together: juridical advantage should be
weighed with other factors in determining which forum is more
appropriate.
o Burden of Proof from Spiladia:
When service is as of right (i.e. service w/in jurisdiction)
onus is on defendant to prove forum non-conveniens;
When service is ex juris, onus is on plaintiff to prove no
FNC (in UK P has to bring motion to get court’s permission
to do service ex juris). Canada has service ex-juris as of
right;
Sopinka decides that the rules of court dictate who has
onus: if rules of court of a province allow service ex
juris then onus is on D to prove FNC.
Anti-Suit Injunctions:
o Initially fairly lax: Bushby v. Munday (1821)
o Later it was determined to be the flip side of forum non-conveniens
test: Castanho v. Brown and Root
o SNI realized that ASI was not the flip side of FNC, because it
effectively interferes w. foreign jurisdiction. Held that anti-suit
injunction should only be issued when foreign proceedings were
vexatious or oppressive.
In this case asbestos cos. don’t pass first step of the test: just b/c Texas
didn’t use FNC doesn’t mean they wrongly took jurisdiction. Many
jurisdictions don’t use FNC, and Texas is limited by provision in 14th
Amendment in US Constitution – look at the decision, not the process
used to reach the decision
Recent HL case held that ASI should only be issued to protect domestic
jurisdiction. They declined to issue one when India was argued to be natural
forum and Ds wanted vexatious proceedings to be stopped in Texas. UK
didn’t want to get involved.
6. Mareva Injunctions
- Lister v. Stubbs – plaintiff may not get an interlocutory injunctions before
trial that would prevent defendant from dealing with its property in a way
that might deprive plaintiff of an effective remedy
- Mareva is an exception to this general rule
Mareva Compania Naviera v. International Bulkcarriers – Eng. CA (1975) – p.
450
P must show:
1. Reasonable cause of action (don’t have to show an indisputable claim)
2. Real likelihood that D will take money out of the jurisdiction (don’t
necessarily have to show that D has done so in the past)
Considerations:
D does not have to be outside of the jurisdiction for a Mareva injunction to
be issued.
Injunctions are effective against 3rd parties with notice: e.g. if D disobeys
Mareva injunction and then skips town so that he is out of reach of court,
the injunction binds not only D but also other parties that have notice (e.g.
banks).
Injunction can also apply when there is fear of dissipating assets rather
than moving assets out of jurisdiction
Mareva is an exceptional remedy b/c of danger of its abuse (tying up
assets of D to pressure to settle etc.)
F: Aetna had office in Toronto and head office in Montreal; had an office in
MB. Feigelman went into default under some debentures held by Aetna so
they appointed a receiver for them. F now wants a Mareva injunction to keep
Aetna from transferring assets to its offices outside MB.
Issues: (i) Is Quebec’s statute ultra vires its powers in ss. 92(13), (14) & (16)
of the Constitution Act? (ii) Does Morguard make the Quebec statute
constitutionally inapplicable?
Decision:.
Morguard requires more recognition and enforcement of judgments of
sister provinces due to the integrating character of our constitutional
arrangements. A province isn’t prohibited from enacting legislation that
has an effect on litigation in other provinces, but it must meet minimum
standards of order and fairness.
This case confirms that there are constitutional limits on service ex juris.
This case and Morguard invent “constitutional inapplicability”.
Obiter: It may be the case that the federal government has the power to
legislate w/r/t enforcement of judgments nationally (476).
This decision tries to give content to the R&S test while being mindful La
Forest’s statement that it may be impossible to define it with much certainty.
Ont. C.A. adopts broader approach. There is a textual basis for this
approach. US approach based in constitutional provision that they
can’t lose property w/o due process of law; logic is that losing a suit in
another state would deprive one of due process of law. We don’t have
that, but we have all the constitutional principles from Morguard:
mobility rights, common market, common citizenship, etc.
Spar Aerospace
Chapter 8
“The claim of this part of the materials is that traditional conflicts doctrine is
fundamentally incapable of faithfulness to the demands of the process of
adjudication and, hence, to the requirements of justice.