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CONFLICTS – PAGE 1 GENERAL  Forum non conveniens is about whether a court should take jurisdiction Introduction  Perhaps there is a more convenient forum  Conflicts is about how national (domestic) law will elsewhere to hear the case because of the location of respond to a foreign element, or whose domestic law will witnesses, etc. apply  This is about self-restraint – more than one  Domestic courts do not determine the validity of a jurisdiction may have a real and substantial connection to foreign sovereign’s action the subject matter of the claim  Territoriality  Territoriality is a key feature of conflicts  Anti-suit injunctions  Each territory has control over its own jurisdiction  An anti-suit injunction is where a person asks a court  Territory limited in what it can prescribe to in the plaintiff’s home jurisdiction to enter an injunction extraterritorially restraining the plaintiff from continuing or initiating the  Territory need not take notice of what happens lawsuit in the foreign jurisdiction extraterritorially  These indicate a breakdown in comity

Theories of Conflicts Enforcement of Foreign Judgments  Comity  Traditional principle of territoriality was that foreign  Respect another sovereign jurisdiction judgments would not be enforced, unless subject to a  This is done out of self-interest for reciprocity statutory reciprocal arrangement with the particular foreign  Approved by the Supreme Court of Canada in jurisdiction Moran  Person would have to file a new proceeding in the  Vested Rights Theory forum asking the court to enforce the decision  Apply the domestic law and observe what has  This was the case interprovincially until after happened in the foreign jurisdiction (external source of Morguard (constitutional requirement) rights)  Standard has changed internationally after Beals  If something is given by the foreign law, it will be recognized as a fact Choice of Law  No conflict with domestic law because the foreign  After taking jurisdiction, there may be a question law is brought in as a right about which law applies  Local Law Theory  Domestic court may apply foreign law in some  Forum applies its own law and will decide as a contexts matter of forum law when the law applied is to be that of  Choice of law is about deciding what the appropriate another state (similar to vested rights, but look to it from a lex causi is, the law of the court that will be applied point of view of law and not fact, internal source)  Choices are:  Governmental Interest Theory - lex fori – law of the domestic forum  Not required to recognize a foreign right - lex loci delicti – place of the wrong or infringement  Apply the law that best fits within the local policy - lex situs – law of the situs or location of the subject  Discretion to recognize or not recognize foreign matter (location of the land or movable) elements  Procedural law is always lex fori - sometimes difficult distinction between substance and Jurisdiction procedure  (1) Jurisdiction simpliciter  Foreign law is a fact that must be pleaded by the  Jurisdiction simpliciter is about whether a court can parties and proven by expert witnesses take jurisdiction - no obligation on the other side to do this  Jurisdiction simpliciter is determined by the forum - technically it applies between provinces, but because of law, whether its Rules of Court or legislation allows the the unifying feature of the SCC, courts do look to other court to take jurisdiction provincial laws and interpret them  Jurisdiction simpliciter is easily established when something occurs inside the jurisdiction, but when Constitutional Considerations something outside the jurisdiction occurs, there are ex  Provincial legislation that had an extraterritorial juris detailed rules that cover many types of situations effect was traditionally struck down as ultra vires  If the rules do not cover the situation, look to the  Modernly, if the pith and substance of legislation is broader principle of “real and substantial” connection – this intra vires then its incidental extraterritorial effects are is where the case law is focused allowed  Constitutional considerations  Churchill Falls, 1984 SCC  When dealing interprovincially there are special - NFLD passes law to create interest in water resources constitutional considerations that were the subject matter of contracts with Hydro  (2) Forum non conveniens Quebec - SCC found that the contract was enforceable in Quebec CONFLICTS – PAGE 2 - SCC held that its pith and substance was regulating the - lex loci delicti is also the presumptive rule internationally, contract and was therefore ultra vires with discretion to use lex fori if it was appropriate  Williams, 1992 SCC  Mere presence of a defendant is not normally - chose in action, the situs is the province of the debtor enough to meet the R&S connection – should be - conflict laws should not be applied under the Indian Act connection with the subject matter  Atena Financial, SCC - federal corporation can move its assets out of the Public Policy, Public Law Claims jurisdiction because it is entitled to carry on business  Arises in two ways: anywhere in Canada (1) applying a foreign law - decision hints at interprovincial enforcement of judgments (2) enforcing a judgment from another jurisdiction  Morguard Investments, 1990 SCC Public Policy - mortgage claim, R&S connection with Alberta, both  Kuwait Airlines, 2002 HL parties resided there, no issue about jurisdiction - international and domestic standard cannot be reconciled - mortgagee later moved to BC, did not defend action - choice between foreign or domestic standard must be - normally you would have to be present in the jurisdiction applied or attorn for a judgment from another province to be  Old North State Brewing, 1999 BCCA enforced - enforcement of a NC judgment with big damages - holding: - BC corporation never went to NC to defend - more generous rules for enforcement between sister - quantum not a sufficient reason to refuse enforcement provinces - easy to find R&S connection with NC, contract was to - comity has a greater force between units of a single supply equipment to NC country - by omitting the word “exclusive”, the choice of law clause - mobility of people, wealth, skills, common citizenship, was interpreted to incorporate both BC & NC law economic integration, all indicative of this - in any event, the NC court never considered this because - uniformity of the common law: federal appointments, unifying presence of the Supreme Court of Canada foreign law is a fact that must be raised and proven by - standard ethical code for lawyers the parties, since the BC company never defended, it - full faith and credit clause unnecessary because the US never came up Supreme Court is limited in what it can decide for state - treble & punitive damages are not completely foreign in matters BC law so they are not contrary to public policy - hints that there may be a role for federal government to - statutory trebling of damages was not penal because it play under POGG power was a civil claim between two litigants - interprovincial enforcement should depend on order and fairness  Society of Lloyds - judgment must be issued by a court acting through a fair - UK judgment was given asking persons to pay amounts process - subscribers brought an action to stay the judgment - court must be properly restrained in its jurisdiction, there because the amounts were contrary to Ontario securities must be a real and substantial connection to the forum law - R&S connection, forum non conveniens, policy factors to - Ontario court refused and entered a stay to prevent the ensure the forum properly takes jurisdiction subscribers from challenging the other judgment - R&S connection is consistent with s. 92, property and - even though this was contrary to the fundamental values civil rights in the province of the Ontario market, it was an international transaction - court leaves open possible s. 7 due process arguments and the investors had profited from the system - unclear if forum non conveniens should be applied by  Mandatory Rules enforcing court, but seems that there is this implication  Two situations: - application of law to the facts:  (1) Should a state give effect to a mandatory law of a - AB had a R&S connection foreign state? - the judgment must therefore be enforced in BC  (2) If the proceeding is in the forum and the  Hunt, 1993 SCC proceeding happens there, the court has to give effect to - confirmed Morguard principles were constitutional the mandatory rule - QC statute blocked extraterritorial document discovery  Agro – court must give effect to a mandatory rule of - pith and substance of the statute was directed at the forum, even if the choice of law and forum selection proceedings outside the province, therefore it was held to clauses in a contract say otherwise  Gillespie be “constitutionally inapplicable” to other provinces - contract to manage apartment building in WA state  Tolofson, 1994 SCC - WA was the proper law of the contract - principles in this case conform to the constitution - proceedings brought in BC that no commissions were - lex loci delicti is the rule for interprovincial torts paid, was illegal to manage without a license in WA - could be some room for changing this by legislation, but - BC company did not have a WA license the rule may not meet constitutional muster – probably - court ducked the issue and dissected the law of the OK if the law is limited in scope to residents of the contract (generally not done) province - the performance part of the contract was WA state, and CONFLICTS – PAGE 3 therefore the mandatory rule applied in the law (flexible but less certain), not necessarily where - dissent found the proper law of the contract and then that person is resident applied the mandatory rule because of similar  Civil law countries go more on nationality and rules in BC citizenship (provides certainty but is inflexible)  Interprovincial Context  Key feature of domicile is subjective intent  Likely that public policy does not exist as a defence  You can only have one domicile for interprovincial judgments after Morguard and Hunt  Gillespie - domicile question between AB and BC Penal Laws - BC was the intent of the person, he kept everything going  Federal parliament can elect extraterritorial laws  Penal laws not enforced outside of their jurisdiction in AB for privacy reasons because of his same-sex  Huntington – penal includes crimes and relationship misdemeanors, also includes lawsuits in favour of the state  Re Urquhart Estate 1990 Ont. Div. Ct. for penalties are for the injury to the state or people and - moved all over the place vindication rests with the state itself - temporary employment not generally seen as establishing intent Tax Laws  Intent generally has to be freely chosen  Tax laws generally not enforced - what about refugees who do not intent to stay?  Tax is very close to the public policy of another state - courts will take this into consideration  Unclear about indirect enforcement of tax laws  Within a federation you can have a domicile for (Stringam) different subject matters, such as divorce (federal) but for  Re Sefel, 1989 Alta. QB succession (provincial) - tax claims by foreign governments could participate in  Validity of a Marriage depends on domicile (as in the bankruptcy proceedings but would not get priority formal requirements), but the essential validity is usually - would share simply as a creditor based on domicile - this recognizes tax as a debt - US couple can’t visit Canada to get a same sex marriage,  Howell thinks that tax is a debt and should be treated as such go back to their state and have it recognized - no major room for policy if tax structures similar - while the marriage is valid in Canada its ‘essentially - more close to civil debt than penal validity’ depends on where you had domicile which would

Other Public Laws not be in Canada  Action by the state, similar to tax  Residence  Different from penal in that the State acts in a civil  Very contextually specific, used under statutes (tax, context citizenship, provincial services, etc.)  Some question about whether the category exists,  For residency you do not have to show a futuristic not mentioned in Beals intent to stay in the place, unlike domicile  Exercise of state sovereignty – question about  Re Koo, 1993 FCTD whether an external jurisdiction should assist - person must be resident in Canada for 3 years prior to  Universal recognition is key for enforcing a public becoming a citizen law - does not have to be 1,095 days, but must be a place where the person regularly, normally or customarily lives  Unlikely to be used as a defence interprovincially  Adderson, 1987 Alta CA  AG New Zealand v. Ortiz 1984 HL - essential validity of marriage based on domicile - NZ law recovered artifacts for aboriginal peoples in NZ - formal validity of marriage based on last joint habitual - not enforced extraterritorially residence - if recovering artifacts became universally recognized it - habitual residence refers to the quality of the residence likely would be enforced - likely had a habitual residence in the US because they  Ivey, 1995 Ont. Gen. Div. had intent to live there - civil liability for environmental damage  Haig, 1993 SCC - liability enforced extraterritorially - referendum problem, voter was in QC which had a 6 - environmental responsibility is universally recognized month domicile rule before you could vote - “other public law” category suspect - for electoral considerations you should interpret the  Howell’s Article on Borderless Transmission residency requirements as broadly as possible - would blank tape levy be enforced extraterritorially?  National Trust Company, 1954 Ont. - depends on whether it has wide acceptance - jurisdiction of origin of the corporation will govern the corporation’s internal management Domicile & Residence  Domicile JURISDICTION  Domicile is traditional common law concept of an individual’s personal law, relating to an individual’s status Parties to an Action (Standing) CONFLICTS – PAGE 4

 Does the entity have a right to sue or be sued?  Re Indian Residential Schools, 2001 Alta. C.A.  The entity must have recognition by the law to be - argument that unincorporated church could be sued capable of enjoying legal possession, title, and suing and - church was present in Canada, and therefore the lex fori being sued in respect to that object or action applies, the church has no legal standing  Human parties is not an issue unless there is - this case illustrates the difference between an incapacity unrecognized group or association present in the forum  Non-human parties are more complex and a foreign association - if it is incorporated inside the forum, its ok - there is no need to go to the conflict of laws law here - corporations incorporated outside the forum are usually because the group is domestic ok as long as they complied with the formalities of the foreign jurisdiction Overview of Juristic Entity - difficulties for entities not incorporated, in common law  Parties present in the forum – lex fori they are not recognized – will we recognize a foreign o Humans - YES, but capacity issues entity that not recognized in the forum? o Corporations - YES, but must meet  Success International 1995 Ont G.D. qualifying rules (Success) - NY company operated in Canada with Ontario supplier o Special statutory situations – YES, such as - arbitration clause, arbitrator gave an award ecclesiastical body - could this award be enforced against the supplier in o Crown, YES Ontario? o Unincorporated associations – NO (Re - Ontario law that no extraprovincial company could carry Indian Residential Schools) on a business in the province without registering  Parties outside the forum jurisdiction – conflict of - the NY company under Ontario law was not capable of laws rules of lex fori making a contract or enforcing its terms in Ontario o Substantive issues – apply regular conflict of - holding: law rules - award was from the contract, not merely enforcement o Procedure – lex fori - NY company could not enforce the arbitrator’s award o Human – YES, but for capacity issues against the Ontario company Corporation – YES, as long as it meets the - “carrying on business” is a question of fact, NY company o argued it was a single transaction, this argument is qualifying rules in the foreign jurisdiction rejected by the court because it was an ongoing o Unincorporated groups or objects – apply relationship conflict of laws rules of lex fori - this case is an example of a formality that a foreign state . If legal entity in the foreign has imposed to a non-human entity jurisdiction, YES - corporation can be a party but there is a formality to meet . If not legal entity in the foreign  Bumper, 1991 English C.A. jurisdiction, NO - artifact found near a temple, sold in London - seized by London Police to be returned to India Jurisdiction Simpliciter - actions brought by the temple and a person claiming to  Parties within the jurisdiction be the personification of a person who dedicated the  Person can be served within the jurisdiction temple  What does it mean to be “within the jurisdiction”? - English conflict of law rules said look to the foreign  Maharanee, 1972 English C.A. jurisdiction – if the party is a legal entity there it will be - both parties domiciled in France recognized - art deal went bad, fake painting sold - Indian law recognized that the temple itself and its - plaintiff initiated action in UK and served the writ on the representative would have legal standing defendant at the Ascot races - therefore the temple had legal standing for the action in - UK court found that this was legitimate because he was the UK, although such temples in the UK would not have physically present in the jurisdiction legal standing  Corporation that carries on business in a province is - court emphasized comity deemed to be present there (Success) - CA noted that the trial judge should not have examined  Parties outside the jurisdiction Indian law on his own, it is a fact that has to be proven by  Constitutional issues expert witnesses called by one of the parties  Must go through the process of serving the defendant ex juris  Hamza, 1995 Alta. C.A. - unincorporated group from Switzerland  Constitutional issues interprovincially, ex juris - the Alberta court gave them standing because they could service qualifies under an incidental effect to having the pith and substance of property and civil rights in the sue and be sued in Switzerland province - presumably enforcement would take place in their home - if a provinces ex juris law was in its pith and substance country so this is why you need to look to see if they are directed externally, it would be constitutionally suspect entities in their home country so that any judgment could  Procedural enactments for ex juris service be enforced there CONFLICTS – PAGE 5

 BC Rules of Court establish where ex juris service of justice in a federal context will be granted without leave, in any other case you can - under forum non conveniens, you are looking for the apply to the court for permission most suitable forum as a matter of discretion - Rule 13(1) – specifies rules for ex juris service without - the presence of forum non conveniens allows a broader leave, presumably these all meet the R&S connection interpretation of jurisdiction simpliciter test for jurisdiction - overlap between jurisdiction simpliciter and forum non - Rule 13(3) – if you do not fit within (1), then you can conveniens, many of the same factors are considered apply ex parte for an order of ex juris service - overlapping considerations include the connection of the - Rule 13(10) – person receiving ex juris service can apply forum to the plaintiff and defendant, fairness to plaintiff for it to be set aside and defendant - Rule 13(12) – service must be in accordance with rules of - asking two separate questions: (1) jurisdiction simpliciter – is the minimum threshold service in BC or procedural rules for service in the there? jurisdiction you are serving in (2) forum non conveniens – is this is the most suitable  Teja v. Rai, 2002 B.C.C.A. place? - bad MVA in WA state, 2 dead 3 injured - assumption of jurisdiction more justified in interprovincial - all persons involved were from BC, but the driver cases as opposed to international cases because of the subsequently moved to WA state context of the Canadian federation and sister provinces - injured plaintiff sued driver in BC, families of deceased - automobile insurers are national companies that can sued in WA because of an extra head of damages handle the litigation anywhere in Canada available  Spar Aerospace, 2002 S.C.C. - court in WA stayed the proceedings, saying it should be - Morguard and Hunt are decided interprovincially and brought in BC – but if the BC court would not hear it, then cannot be extended easily to the international context - action brought in QC against a US company for damage come back to a satellite - driver was prepared to attorn to BC, was this a R&S - holding: connection? - courts can only assume jurisdiction where R&S - holding: connection exist - the R&S connection test was not designed to replace the - Civil Code includes the jurisdiction simpliciter R&S traditional rules, but it incorporates them as a starting connection test and forum non conveniens point - Forum non conveniens acts as a counterweight to a - the R&S test therefore encompasses the presence and broader jurisdiction simpliciter attornment principles to establish jurisdiction - in the EU they read jurisdiction simpliciter more narrowly,  Moran, 1973 SCC they are more hesitant to take jurisdiction because they - defective bulb manufactured in Ontario killed man in don’t have the forum non conveniens principle Sask - choice of law analysis also provides a safeguard, - normally one would have sued in Ontario, that is where because the foreign law may be applied the breach of the standard of care occurred and where - application of the law to the facts: the judgment could be enforced - jurisdiction can be taken here - SCC takes a flexible approach, any place where you can  Merits of the case – “good arguable case” find a substantial effect, or where the manufacturer ought  Plaintiff serves defendant ex juris, is there a good arguable case? to have reasonably foreseen that his product may be  Furlan v. Shell Oil, 2002 B.C.C.A. used through the normal channels of trade - a case does not have to be made out on the evidence - the forum where the plaintiff suffered damage occurred where the facts of the pleadings are not challenged where it should have been reasonably contemplated of - if the defendant does challenge the pleadings, with occurring evidence, the plaintiff must respond with evidence - jurisdiction can be found in any place with a substantial - if the defendant counters by affidavit evidence, there is effect where the person ought to have reasonably an obligation on the plaintiff to provide evidence to foreseen defending an action counter or explain the defendant’s affidavit - flexibility for connections to the forum - where plaintiff puts forward an extremely tenuous claim,  Muscutt, 2002 Ont. C.A. affidavit evidence would be needed to support it, this - employee sent to work in Alberta from Ontario would be necessary where application is made for ex - was injured and returned to Ontario for long-term juris service and the claim is extremely tenuous treatment, lawsuit brought in Ontario  Armeno Mines and Minerals, 2000 B.C.C.A. - issue: - claim for tort with damage that occurred in BC - did Ontario have jurisdiction? - affidavit evidence killed the cause of action - holding:  WIC Premium Television, 2001 Alta. C.A. - under jurisdiction simpliciter, you are not looking for the - WIC had exclusive right for Canadian satellite service most convenient forum, just the minimum standards of - US companies provided decoders to Canadians whether R&S has been met – this is for the administration - WIC sued the US companies for interfering with its statutory exclusive right to provide satellite service CONFLICTS – PAGE 6 - defendants provided affidavit evidence that when they - historically forum non conveniens was weighted in favour learned they were providing the signal to a Canadian they of the plaintiff would cut it off - forum non conveniens is about convenience and - court held that this was not sufficient to answer the appropriateness and is the test for a stay plaintiff’s claim and would not strike it out - onus is on the defendant because it is applying for a stay  Strukoff v. Syncrude, 2000 B.C.C.A. - if defendant provides evidence that would support a stay, - employer entered employment contract - employee was injured and moved from AB to BC plaintiff has obligation to respond - the employer sent a termination letter to BC - must be a more neutral assessment of factors between - where did the termination occur? the plaintiff and defendant in determining the - medical treatment was in BC and this was sufficient for appropriateness of the forum, eliminate the plaintiff’s BC to take jurisdiction (note this is not about choice of advantage law at this stage, just jurisdiction) - must consider all circumstances, including the other  Craig Broadcasting Systems, 1998 Man. C.A. litigation - contract signed in Iowa  Societe Nationale Industrielle Aerospatiale, 1987 - MB could take jurisdiction because there was a lot of P.C. connecting factors - helicopter crash in Brunei, manufactured in France,  Harrington v. Dow Corning, 2000 B.C.C.A. owned by a UK company - BC residents purchased implants in BC - proceedings initiated in Texas - non-residents were include in a class action - forum non conveniens abolished in Texas for wrongful - national and international commerce, follows Moran death claim about reasonable foresight of the products moving in the - the only link was that SNIA did unrelated business in normal distributive channels of trade Texas which was enough to satisfy Texas’ jurisdiction - forum non conveniens is available to deal with an requirements individual case in which a different forum is thought to be - application made for an anti-suit injunction more appropriate (i.e. person in extremely cold climate - holding: that has unique problems because of the temperature) - the test for a stay and an anti-suit injunction is not the  Muzak Corportation, 1953 S.C.C. same - dissent: once there is a good arguable case, the court - anti-suit injunctions can only be issued where the should issue an ex juris order proceedings were vexatious, oppressive and contrary to - majority: convinced that as a matter of law, there was no the ends of justice copyright infringement - forum non conveniens only applies to a stay of - the majority is wrong, because they essentially decided proceedings, not to an anti-suit injunction because of the merits of the case instead of the low threshold of comity (heightened sensitivity to comity for anti-suits) “good arguable case” - anti-suit injunctions speak indirectly to a foreign court  Canadian Position  Amchem Products, 1993 S.C.C. - to issue an anti-suit injunction there are two steps: Forum Non Conveniens (1) whether the domestic court is the “natural forum” (2) whether there is serious injustice in the foreign  English Position in Transition proceeding  Spiliada, 1987 H.L. - facts: - action by the defendant for a stay of proceedings - plaintiffs in BC sue US companies in Texas - facts: - it is preferable that the foreign court stay its own - BC exporter loaded sulfur onto a ship that corroded it proceedings to avoid anti-suit injunctions - term of the contract required UK arbitration - Refer to handout - action commenced in the UK  Tortel Communications, 1994 Man. C.A. - difference between UK and Canada law relating to the bill - the mere assets of the defendant was not sufficient to establish jurisdiction in Manitoba of lading - a judgment could be brought to Manitoba for enforcement - issue: - difference in substantive law goes to the choice of law but not an action – not sufficient to establish jurisdiction analysis, should not affect jurisdiction simpliciter - primary issue is the weight that should be given to  Westec Aerospace, 1999 B.C.C.A. proceedings by the insurers against a different defendant - R sued W in Kansas for interpretation of a contract in a different jurisdiction - R was sued by W in BC for breach of contract - holding: - R moved for to set aside BC proceedings under Rule - historically a defendant could quash proceedings by 13(10) but was denied satisfying the court that there was a more appropriate - holding: forum, but not to deprive the plaintiff of a juridical - parallel proceedings are inefficient and wasteful advantage - BC law was to be applied but could be applied in Kansas CONFLICTS – PAGE 7

- W submitted that R wanted to preempt the lawsuit and  Problem about universal jurisdiction on the Internet if that it could not get a fair trial in Kansas because R was a any place that can access the material can find jurisdiction  Usually something more is required than just a big employer in the region passive display on a screen - this was not considered and the BC proceedings were  A spectrum has developed for what more is required stayed for a state to take jurisdiction  Injunctions would likely be enforced interprovincially  Entering into a contract for the sale of something after Morguard (although not internationally) would be sufficient  Modern English position  The more interactive it is the more likely jurisdiction  Airbus Industrie, 1999 H.L. can be established - forum non conveniens does not exist in the EU because of very detailed jurisdiction simpliciter rules which normally dispose of the matter Anti-Suit Injunctions - UK plaintiffs sue in Texas for an injury that occurred in  More serious issue because comity is involved India  You are asking the court of one jurisdiction to - the natural forum is India prevent proceedings from occurring in another jurisdiction - Indian courts issue an anti-suit injunction to restrain the  The forum in which you request an anti-suit plaintiffs from proceeding in Texas injunction is always the home forum of the plaintiff so that - plaintiffs ignore the Indian injunction it has personal jurisdiction and can be enforced - two proceedings brought in the UK:  Anti-suit injunctions trump because of their personal (1) enforce the Indian injunction jurisdiction over the plaintiff (2) issue an Indian injunction  May not be possible interprovincially after Morguard - for (1), this is denied at trial because foreign injunctions and Hunt – because it is really not nice to do this within the are not normally enforced context of a federation (i.e. you trust the other forum to - for (2), the answer was no take jurisdiction where appropriate and exercise forum non - holding: conveniens) - the UK was not the natural forum so no anti-suit  English Position injunction would be issued  Societe Nationale Industrielle Aerospatiale, 1987 - comity requires the UK court to have a sufficient interest P.C. to the matter in question – the residence of the plaintiffs - helicopter crash in Brunei, manufactured in France, was not sufficient owned by a UK company - HOL did not address whether comity should be extended - proceedings initiated in Texas to a jurisdiction that does not have any forum non - forum non conveniens abolished in Texas for wrongful conveniens, or other limits on assuming jurisdiction death claim  Personal juridical advantages would include: - the only link was that SNIA did unrelated business in - higher damages Texas which was enough to satisfy Texas’ jurisdiction - more complete discovery requirements - easier discovery - application made for an anti-suit injunction - higher interest awards - holding: - longer time limits (but this is now considered procedural - the test for a stay and an anti-suit injunction is not the not substantive) same  US Position - anti-suit injunctions can only be issued where the  Oakley v. Barry, 1998 N.S.C.A. proceedings were vexatious, oppressive and contrary to - patient in NB diagnosed, went to NS for treatment the ends of justice - original doctor in NB was negligent - forum non conveniens only applies to a stay of - plaintiff sued in NS proceedings, not to an anti-suit injunction because of - NS court found that it was the appropriate jurisdiction comity (heightened sensitivity to comity for anti-suits) - US position comparison - anti-suit injunctions speak indirectly to a foreign court - due process suggests that this lawsuit would have been  Airbus Industrie, 1999 H.L. beyond the contemplation of the defendant - forum non conveniens does not exist in the EU because - but in Canada there are broader jurisdiction rules of very detailed jurisdiction simpliciter rules which - US has more of a focus on the defendant losing property normally dispose of the matter - holding: - UK plaintiffs sue in Texas for an injury that occurred in - crossover between jurisdiction simpliciter and forum non India conveniens - the natural forum is India - same factors can be used in both - Indian courts issue an anti-suit injunction to restrain the - implies that if you would find another jurisdiction more plaintiffs from proceeding in Texas appropriate under forum non conveniens you would not - plaintiffs ignore the Indian injunction find a R&S connection – interesting approach but has not - two proceedings brought in the UK: (1) enforce the Indian injunction been the trend (2) issue an Indian injunction  Internet Related Issues - for (1), this is denied at trial because foreign injunctions CONFLICTS – PAGE 8 are not normally enforced but other possibilities are left open - for (2), the answer was no - facts: - holding: - plaintiffs in BC sue US companies in Texas - the UK was not the natural forum so no anti-suit - it is preferable that the foreign court stay its own injunction would be issued proceedings to avoid anti-suit injunctions - comity requires the UK court to have a sufficient interest  Perhaps the first part of the test should be modified to the matter in question – the residence of the plaintiffs for practical purposes, so that a court with jurisdiction over was not sufficient the plaintiffs can enforce the forum non conveniens - HOL did not address whether comity should be extended principle to a jurisdiction that does not have any forum non  Hudon v. Geos, 1997 Ont. Gen. Div. conveniens, or other limits on assuming jurisdiction - person employed to teach English in Japan by Ontario  Canadian Position company  Amchem Products, 1993 S.C.C. - went on trip to China where she was injured - for comity it is preferred for the foreign court to stay its - she came back to Ontario for treatment own proceedings to prevent the foreign court from - the formation of the contract took place in Ontario, its preempting the foreign court through an anti-suit governing law was Japanese injunction - plaintiff filed in Ontario and the defendant moved for a - proceedings should normally be launched first in the stay which was denied foreign court and the applicant should have tried to seek - defendant applied in Japan for a declaration of how the a stay from the foreign court contract was to be interpreted, and the plaintiff applied for - the domestic court should be the most appropriate forum - an action should be commenced in the domestic forum an anti-suit injunction in Ontario before an application is made for an anti-suit injunction - analysis: first step of Amchem : - injunction should only be issued of the restrained party is - Amchem – preferable for the person seeking an anti-suit under the personal jurisdiction of the court (not injunction to ask the foreign courts for a stay first mentioned explicitly in Amchem but is from SNIA) - this had not happened here, but that it is not a strict - an anti-suit injunction indirectly speaks to the foreign requirement to obtaining an anti-suit injunction (strongly court, so granting them must be exercised with caution preferable but not an absolute requirement) - the test in Spiliada for stays of proceedings is not used - plaintiff could not travel to Japan because she was for anti-suit injunctions injured, this was not a strong factor, she could instruct - to issue an anti-suit injunction there are two steps: counsel in Japan (1) whether the domestic court is the “natural forum” - overall she satisfied the first step (2) whether there is serious injustice in the foreign - analysis: second step of Amchem : proceeding - normal procedural requirements that to get an - first step: interlocutory injunction you must be seeking a permanent - is the domestic court the natural forum, does it have the closest connection with the action and the parties? injunction do not apply for anti-suit injunctions - is there another forum that is clearly more appropriate? - bringing the action in Ontario would not deprive the - if not, then the anti-suit injunction is rejected defendant of any legitimate juridical advantage and - if a foreign court takes jurisdiction, comity requires it to be therefore the injunction should be granted

respected – ordinarily the domestic court would stay parallel proceedings or reject the anti-suit injunction, Jurisdiction Selecting Clauses however the foreign court must have applied principles  Normally they are enforced in a contract if raised by consistent with forum non conveniens one of the parties and if framed properly - if the foreign court fails to apply forum non conveniens  However, the courts are not totally bound by the where it would not reasonably vest jurisdiction in the clause if the balance of convenience suggests another foreign court then the foreign court may not be the jurisdiction is more appropriate, there would be a burden appropriate forum on the party who wants to displace the clause - should be an action initiated in the domestic forum unless  This could be viewed as an exception to a R&S connection – a jurisdiction which does not meet this the applicant contents that the action should have been requirement may be selected by the contract commenced there as the more appropriate place of trial  Old North State Brewing, 1994 B.C.C.A. and it is potentially appropriate - contractual clause chose BC as the jurisdiction and also - second step: BC law - take account of injustice to the defendant and plaintiff - provision interpreted as incorporated the laws of both - must not unjustly deprive the plaintiff of some personal or states, it was not “exclusive” juridical advantage available in the foreign forum RECOGNITITION & ENFORCEMENT OF - loss of personal advantage was seen as the consequence of requiring the plaintiff to litigate in a EXTRATERRITORIAL JUDGMENTS distant forum with which the plaintiff had not connection, CONFLICTS – PAGE 9

 Contest between creditors of judgments, security of  Common law (traditional) international transactions versus sovereignty of a state,  Regarded as a matter of debt protecting its citizens from intrusion and potentially unfair  Traditional rule for enforcement in three situations: justice systems (1) you had presence in the foreign jurisdiction, could be  First, look to whether jurisdiction has been fleeting presence appropriately taken in the foreign jurisdiction (depends on (2) attorned to the jurisdiction, voluntary submission the conflict of laws rules in the enforcing jurisdiction) (3) consent, such as a jurisdiction clause  Interprovincially  Courts not concerned about forum non conveniens - does not seem to be a big issue because of the three rules - underlying policy factor of the administration of justice in  If you were served ex juris there was no a federal state enforcement - unifying SCC, federal appointments, same legal systems,  Common law (post- Morguard )  Incorporates the traditional common law test, which same ethics (Morguard) is assumed to meet the R&S connection test (Teja)  Internationally  Service ex juris will be enforced if there is a R&S - little focus on whether the foreign court was able, under connection to the foreign forum its domestic law, to hear the case (because Texas is allowed to hear pretty much anything) In Personam Judgments (pecuniary) Pre- Morguard - more focus given to forum non conveniens, whether the  Common law requirements for enforcement forum was the natural or most appropriate forum (1) final and conclusive - given that R&S connection is used in the forum non (2) certain sum of money (debt theory) conveniens test Canadian courts may begin utilizing a (3) no consideration on the merits in the domestic forum broader test of R&S connection to examine forum non  (1) Final and Conclusive conveniens internationally  Nouvion v. Freeman, 1889 H.L.  Choice of forum clauses - enforcement of Spanish judgment denied - likely the interpretation of a forum selection clause should - judgment must meet the res judicata principle - a right of appeal or an appeal proceeding is does not go to jurisdiction as opposed to the merits of the case prevent the judgment from being final and conclusive - enforcing court could then decide the matter, merits are - inquiry is focused on the court that made it not able to be reexamined by the enforcing court, even if - if there was a process that allowed the person to come there was a mistake of fact or law back to re-argue the case, it is not final and conclusive - this would also allow a person to defend a proceeding by  (2) Debt theory arguing the forum selection clause without attorning  Judgment was prima facie evidence of debt, not debt (defending on the merits is equivalent to attornment) itself  Policy issues:  Two ways to enforce the debt: - tax (1) sue on (a) the judgment as a foreign debt, or (b) the - penal original cause under common law, (b) likely extinct - public policy after Morguard - other public law (2) register the judgment under the legislation - fraud on the court granting the judgment – such as misleading the court on jurisdiction or new decisive  If you register the judgment and there is an appeal in evidence on jurisdiction the foreign court, your registration is incomplete and you cannot access injunctions, must wait until the time for  In Rem Judgments appeals has been exhausted - status of a person or thing, such as title to land - court that has jurisdiction to determine title to land is the  If you use the common law approach you can sue on jurisdiction of the location of the land the judgment as a foreign debt immediately, this will allow - movables is the jurisdiction of where the movable is (lex you to prevent the removal of assets through access to situs) Mareva injunctions – do not have to wait for the appeal - marriage, validity is the location of the ceremony, time to be exhausted, the judgment must just be “final and essential validity is the domicile conclusive”  In Personam Judgments (equitable)  NEC Corporation, 1985 Ont. H.C. - non-money judgments not enforced at common law - judgment issued in BC, registered in Ontario - interprovincially the answer may be yes because of - defendant emptying assets in Ontario constitutional principles - plaintiff could not get Mareva injunction under the statute - may also be a statutory arrangement for such because the time for appeal had not elapsed enforcement - court found that the plaintiff could withdraw from under the statute and instead proceed at common law to have In Personam Judgments (pecuniary) access to the prejudgment procedures  Court Order Enforcement Act – provides for  Best to use the common law approach to gain registration of foreign judgments access to prejudgment procedures, you can later withdraw the action and file under the statute after the appeal period  New statutory provisions for interprovincial has passed enforcement not yet in effect CONFLICTS – PAGE 10

 Jurisdiction of the Foreign Court Internationally under forum non conveniens) is attornment because it  Schibsby v. Westenholz, 1870 Q.B. asks the court to exercise its discretion - action in the UK to enforce a French judgment  Clinton v. Ford, 1982 Ont. C.A. - plaintiff resided in France, defendant resided in UK - two residents of South Africa (SA) - traditional categories for enforcement set out: - one moved to ON after deal for Land Rover (1) residency in the jurisdiction or carrying on business in - problem with the deal, plaintiff asked the court to hold the the jurisdiction (2) attornment to the jurisdiction defendant’s SA land (3) consent or selection of the jurisdiction - defendant was served ex juris in Ontario (not enforceable  Forbes v. Simmons, 1914 Alta. S.C. - defendant domiciled in AB, visited his wife in BC and was under traditional rules), but his assets were in SA so they would be subject to the court there served - defendant entered appearance by mail - court found this was sufficient for residency in the - plaintiff got sought summary trial jurisdiction even though it was a casual visit - defendant adduced affidavit outlining defence  Re Carrick Estates, 1987 Sask C.A. - holding: - mere presence in the jurisdiction was enough under - defendant defended on the merits by filing an affidavit common law, but not under the statute (see note below - defendant could have ignored SA proceeding, no about BC’s similar statute) ON enforcement under the old rules (but would lose the  Moore v. Mercator, 1978 N.S.C.C. land) - application to enforce ON judgment in NS - differs from the UK position in that asking for a stay is not - defendant argued that they were not carrying out a business in ON attorning, the distinction is between contesting the - this is question of fact, an agent is not enough, but an jurisdiction and the merits agent to conclude contracts is sufficient for presence  Exceptions to the casual visit: requirements - diplomatic presence in an embassy  Attornment - airport, possibly  First National Bank of Houston, 1900 B.C.C.A.  Could be an argument post-Morguard that the - question as to whether defendant submitted to Texas “fleeting presence” does not amount to a R&S connection - defendant filed an answer to the claim and the petitioned with the jurisdiction for a review challenging the judgment, which was denied - BC’s Court Order and Enforcement Act would not allow - defendant did not show up for trial registration where there is a fleeting presence, order for - default judgment entered registration must not be made where debtor is neither - court held that filing an answer, defending on the merits, carrying on a business nor ordinarily resident in the was attornment foreign jurisdiction – note this only applies to the - likely the petition for a review was also attornment registration of judgments, not to the common law  Henry v. Geoprosco, 1976 C.A. approach - plaintiff resided in AB, defendant in UK  The Morguard Rule - defendant hired and fired the plaintiff under a contract  Morguard, 1990 S.C.C. with arbitration clause - R&S connection approach incorporates the traditional - plaintiff filed in AB for wrongful dismissal saying that the approach arbitration clause was not binding because of - forum non conveniens acts as a counterweight to fundamental breach jurisdiction simpliciter – but it has not been applied - defendant asked the AB court to stay the proceedings, interprovincially on three grounds: (1) affidavit of the plaintiff was - may be a role for the federal government under POGG deficient, (2) AB was not forum non conveniens, (3) for interprovincial conflicts rules arbitration clause should be upheld  Braintech, Inc (1999) B.C.C.A. - after losing in the Court of Appeal, the UK defendant - forum non conveniens abolished in Texas withdrew, default judgment was issued - conceptually it does not matter as long as there is an - issue: equivalent doctrine that restrains jurisdiction where it is - would the UK courts enforce the AB default judgment? not convenient, appropriate - holding: - forum non conveniens puts the flesh on the bones of - the UK law applies to determine attornment R&S connection – it is about fairness to the parties - defendant argues that it did not contest the merits of the - Texas did not have an R&S connection, nor would it be ultimate issue, whether dismissal was wrongful the appropriate jurisdiction under forum non conveniens - the plaintiff asking the court to exercise its discretion on - nothing happened in Texas, just the possibility that forum non conveniens was attornment and the judgment someone saw the alleged defamation online was enforced (ground #2)  Common Law “Defences” to Enforcement - the third ground was likely even stronger  Beals, 2003 S.C.C. - case also implies that contesting jurisdiction is not - facts: defending on the merits, however asking for a stay (even - land worth $8,000 sold by Ontario defendants - dispute rose to more than $1m judgment brought to CONFLICTS – PAGE 11 Ontario for enforcement needs to be modified to accommodate hardships of - every time an amendment was made to the statement of litigating in a foreign jurisdiction claim, defendants had to re-file their defence - FLA took proper jurisdiction here - defendants only filed one response and did not continue - litigants are presumed to know local law, but this should because of the expense in hiring a FLA lawyer not be expected internationally - R&S connection with FLA because the land was there - no constitutional obligation internationally like there is - majority on R&S connection (Major J.) interprovincially - this is not a constitutional case, new rules can be - comity should be applied in a context sensitive way legislated - defendant may have difficulty defending in foreign - Morguard provides appropriate basis for enforcement of jurisdiction, quality of justice may differ from Canadian foreign judgments standards, radically different value systems - R&S connection test should apply to foreign judgments - liberalizing enforcement may deter Canadian - old rules based on territoriality, sovereignty, attornment international investment, need to balance protecting are outmoded Canadians with recognizing foreign interests - comity is important - should be a prima facie burden on plaintiff to show that - transfer of wealth, skills and people across state lines foreign system was fair - there are two principles at play: - if defendant has links, it is very strong for jurisdiction (1) order and fairness - if defendant has no links, jurisdiction can still be made (2) R&S connection out as by fairness between plaintiff and defendant, the - if properly exercised jurisdiction occurs and there is a administration of justice, or connection to the subject R&S connection to the subject matter, foreign judgments matter should be enforced - if hardship is great, stronger connection required - look to Moran, yes it was reasonable for the parties to - if hardship is minimal, less connection required have had FLA in their contemplation - emphasizes protection of the defendant - comity must evolve with international business, cross- - majority on forum non conveniens (Major J.) border transactions - para 35: forum non conveniens referenced in the context - order and fairness: security of transactions, reliability of of Ontario defences, would seem that it is available to transactions argue against a foreign judgment - reciprocity can mean: - dissent on forum non conveniens (Le Bel J.): (1) we will enforce if you enforce ours - majority’s position requires forum non conveniens to be (2) we will enforce if jurisdiction properly taken argued in the foreign jurisdiction (3) we will enforce if jurisdiction would have been taken - his jurisdiction test may overlap with forum non here in similar circumstances conveniens - adopts #2, we will enforce if foreign jurisdiction properly - defendant should not have the opportunity to argue it taken and the R&S connection domestically if they had a chance to argue it in the foreign - discusses a “significant connection”, unclear what this means – interprovincially R&S connection has been a low court but chose not to do so - defences: (1) natural justice threshold - majority (Major J.): - fleeting or relatively unimportant connections are not - defendant’s problem was not retaining FLA counsel sufficient – does this eliminate the traditional presence - persons presumed to know the law of the foreign ground of the common law enforcement requirement, for jurisdiction a fleeing presence (such as the Ascot races?) - restricted to the form of the foreign procedure and does - dissent on R&S connection (Binnie J. & Iacobucci J.): not relate to the merits of the case - Morguard provides appropriate basis for enforcement of - dissent (Binnie & Iacobucci): foreign judgments - persons cannot be presumed to know the law of the - however, significant differences between interprovincial foreign jurisdiction and international - FLA rule requiring the re-filing of a defence was unfair - greater need for comity interprovincially because of the - lack of notice unfair integrating character of our federation, should not dilute - this case violated natural justice, defendants did not the importance of that distinction bother to defend because they thought it was a claim - R&S connection provides a framework, but don’t be over $8000 overly rigid stating possible defences - dissent (Le Bel J.): - stay close to the facts on this particular case - natural justice means the opportunity to present one’s - time will come when reexamination of defences is case, right to be heard, adequate notice (procedural) necessary - it also has substantive principles, including damages - no need to do this now, falls within traditional defence of - defences: (2) fraud natural justice - majority (Major J.): - dissent on R&S connection (Le Bel J.): - any judgment obtained by fraud is not enforceable - Canadians now forced to participate in frivolous foreign - this defence must not be used as a tool to re-litigate lawsuits - narrow defence - R&S connection should be extended internationally, but - can be used where there is new evidence discovered that CONFLICTS – PAGE 12 be “personal service in the originating jurisdiction” could not have been brought to the attention of the - Morguard will not invalidate terms of the statute because foreign court it is just a shortcut method to the common law (which - fraud going to jurisdiction, making the court think it had runs side-by-side) jurisdiction also qualifies  James Bennett, 1991 Man. Q.B. - defences: (3) public policy - rules of court give judges discretion to extend time limits - majority (Major J.): - this discretion only applies to limits within the rules of - prevents enforcement of judgments contrary to Canadian court, not other statutes (such as the registration statute)  Enforcement of Canadian Judgments & Decrees Act concepts of justice - not yet in force - whether the foreign law is contrary to our basic morality - attempt to make interprovincial conflicts rule align with - also protects against corrupt or biased foreign court Morguard  United Laboratories, 2004 O.C.A. - judgment would include judgment, decree or order - ON defendant did not defend in IL state - injunction and declaratory injunction included - provision that disputes would go to ON arbitration - requires registration - IL judge ignored these provisions because the defendant - not included are orders for the care of a minor, order for did not defend in IL maintenance or support, payment of money as a penalty - OCA held that these issues should have been raised in IL or fine for committing the offence - defendant could have raised various issues, including - police can give effect to a judgment without registration forum non conveniens in IL, failing to do so means he for restraining orders cannot now raise them in ON - time limit is the time for enforcement in the originating  Moses, 1994 B.C.C.A. province or 10 years, whichever is later - court allowed defendant to go back to Alaska to see if the - there cannot be an order staying or limiting the enforcement of a judgment solely on the grounds that the court would consider forum non conveniens  Pro Swing – O.C.A. originating court lacked jurisdiction under private - foreign non-pecuniary order not enforced in ON international law or its domestic law (would exclude  Legislation providing reciprocal enforcement consideration of forum non conveniens for interprovincial  Court Order Enforcement Act – provides for enforcement) registration of foreign judgments - s. 29, if judgment is from a court in a reciprocating state CHOICE OF LAW the judgment can be registered ex parte, limitation period of 6 years Methodology - if ex parte, must show person was personally served  How domestic law responds to foreign elements originally, or else the defendant must have appeared,  Historically conflict of laws was all about choice of defended, attorned or submitted law - appeal time must be exhausted  Determined by the domestic forum’s conflict of laws - s. 29(6), order not made if foreign court acted without rules jurisdiction under BC’s conflict of rules (forum non  Statute, common law, constitutional or treaty conveniens), or acted without authority in the foreign sources of conflicts rules state (jurisdiction simpliciter)  Can be national treatment of a particular area of law, - this is unique because the common law is not concerned such as copyright about looking at the civil procedure of the foreign state  Choice of law: - s. 29(6)(b) – excludes fleeting presence (1) uniform law, such as treaty for air carriers - s. 29(6)(c) – defendant must have been properly served (2) national treatment, treaties establish the framework, - s. 29(6)(d) – excludes fraud such as copyright - s. 29(6)(e) – time for appeal must be exhausted (3) choice of law on a case-by-case basis - s. 29(6)(f) – judgments contrary to public policy won’t be registered Theories - s. 29(6)(g) – common law defences can be raise  Courts engage in choice of law analysis for reasons - s. 29(8) – only for pecuniary judgments of order, fairness and comity - s. 33 – registration has the same effect as a local  Three major theories in terms of rationalizing how a judgment domestic court deals with a foreign element - s. 34 - must wait one month before seizing property if  (1) Vested Rights Theory registered ex parte - s. 38 – Act does not deprive common law rights to bring  The foreign law gave the individual appearing before action (on the cause or on the judgment) a domestic forum certain vested rights (external source)  Central Guaranty Trust, 1995 N.W.T.S.C.  These rights have to be proven like a fact - Morguard does not invalidate terms of the registration  (2) Local Law Theory legislation, but would not allow common law  Forum applies its own law and will decide as a developments on interpretation to narrow its application, matter of forum law when the law applied is to be that of such as reading the requirement for “personal service” to another state CONFLICTS – PAGE 13

 Similar to vested rights, but look to it from a point of - these rules would tell the court that in a particular view of domestic law and not fact (internal source) situation, a foreign law must be applied  (3) Governmental Interest Theory - but the court cannot inquire about the foreign law unless  Not required to recognize a foreign right raised and proven as a fact by one of the parties  Judicial decisions are always linked to policy - court can only rely on expert evidence about the foreign  Apply the law that best fits within the local policy law  Discretion to recognize or not recognize foreign  If no party proves the foreign law as a fact, a default elements rule applies that the court applies the domestic law (lex fori) Approaches to Applying to Foreign Law  Two theories explain the default rule:  Two major approaches to applying foreign law:  (1) Convenience theory  (1) Classical Approach - court applies lex fori as a matter of convenience because  Used in most places, including Canada the party concerned has waived the opportunity to prove  Utilizes dissection by categorizing the various legal foreign law issues that arise  (2) Presumption theory  For example: - foreign law is presumed to be the same as the lex fori - tort – apply the lex loci delicti - this theory is consistent with the idea that the domestic - land – apply the lex situs court is entitled to take judicial notice of the conflicts rules - movable property – apply the lex situs - divorce – apply lex fori if the person is a resident that require foreign law to apply  (2) Alternative Approach - foreign party must displace this presumption by proving  Try to find an overarching law the foreign law as a fact  For example: - this theory has difficulty where the judge obviously knows - contract – do not dissect the transaction, find the proper law of the contract that the foreign law is quite different  Renvoi  SCC has ability to take judicial notice of all Canadian  Infinite looping problem when A’s law says adopt B’s law law (which includes general law and the conflict of laws  QC Civil Code (civilian tradition) law), but B’s conflict rules say to adopt A’s law - judge can take judicial notice of foreign law  Need to make a choice and ignore one of the conflict  Common law provinces of laws rules - general rule that courts decline to take judicial notice of  You can do one of two things: foreign law (including provincial law) absent statutory (1) ignore B’s conflict rules, just adopt the general authorization law to resolve the issue - Hunt likely provides a basis to take interprovincial judicial (2) get bounced back to A and ignore a subsequent notice application of A’s conflict rules  Common law jurisdictions used to have relatively similar laws, but not necessarily anymore Invoking & Determining Foreign Law  Parties can agree on a joint statement of the foreign  Applicability of Foreign Law law, but a judge is not bound to accept it and can require  Fernandez, 1986 F.C.A. expert evidence - seamen entered employment contracts with company in  Considerations: Australia, ship set sail - should foreign law be left up to the parties to plead? - by the time the ship arrived in Canada, the union had - rigid rules preventing the courts from examining foreign entered a collective agreement with the company law can lead to strange results - Canadian statute provided that the collective agreement - if judge’s opinion of foreign law conflicts with experts, superseded the individual contracts should likely defer to the experts - holding:  Those qualified to prove foreign law include: - at common law, forum court not entitled to take judicial (1) practicing judges and teachers (best evidence) notice of foreign law nor inquire on its own account of the (2) law teachers and other professionals in a more content or substance of foreign law specialized area - two types of statutes:  Types of foreign law not to be applied include: (1) general character, fundamental matter or principle (1) penal law (2) local character, could ignore these they are only (2) tax law relating to local matters and not fundamental (3) laws contrary to public policy - court noted fundamental nature of unions and applied the (4) other public law (uncertain category)  Canadian Constitutional Issues Canadian law  Hunt, 1993 S.C.C.  Pleading and Proving Foreign Law - every provincial court could rule on the constitutionality of  Tricky part is that a court is able to apply domestic foreign law, which includes the conflict of law rules another province’s legislation CONFLICTS – PAGE 14 - does not expressly allow provincial courts to take judicial was only a measure of the loss recovery notice of the laws of other provinces, but this is a - this decision is correct analytically, but may not accord reasonable position with Tolofson because the cap did not cause any inconvenience for the court  Wong v. Wei, 1999 B.C.S.C. Law of Procedure - MVA in California involved all Canadians  Universal rule that procedure is lex fori (law of the - no cap on damages in California forum) - court avoids substantive/procedural distinction  Policy: - goes to Tolofson tort rule that the law to be applied is lex - convenience because the forum court knows what it is loci delicti interprovincially but internationally there is a - procedure designed to suit the operation of the forum small discretion to apply lex fori court - court exercises the discretion and applies lex fori, so no  Substance/Procedure Distinction need to decide the cap issue  If characterized as procedure, lex fori law will be - applying California law would burden defendant with applied unlimited damages for non-pecuniary loss  Tolofson, 1994 S.C.C. - BC is the only jurisdiction of persons involved - in BC the action was not statute barred, but in SK it was  Considerations - common law position - if you decide lex loci delicti applies, the court should go - the ability to pursue a right has been seen in the as far as possible in applying the foreign rules without common law as procedural (as opposed to the right itself inconveniencing itself (Tolofson) which is substantive – it is considered remedial) - this would suggest that the cap is substance and that the - this is because of the historical rationale that foreign lex loci delicti rule would apply litigants in the UK ought not to have an advantage that - however, exercising the discretion may be preferable other people don’t have where all parties are from the forum - also because common law looked at a substantive right - this is better than characterizing the cap as procedure as existing forever, but your ability to utilize the court which does not accord with Tolofson system to enforce it is limited by statute  Examples: - civil law position - secured creditors remedies are substantive - civil law is the opposite, views ability to pursue a remedy - workers compensation and no-fault statutory schemes as substantive are substantive even though they quantify recovery - a limitation destroyed the substantive right  Parties - analysis for choosing between substantive/procedural - see above - there are degrees, not just about remedies/rights - if lex loci delicti will be the substantive law, you should give preference to finding the rule as substantive TORTS - if lex fori will govern, should err toward procedure General & Historical - pragmatic approach  Rule in Phillips v. Eyre - the rule of procedure is about convenience for the forum  The rule of double accountability developed from - limitation period in this case was substantive Phillips v. Eyre - test is: how far can the court go in applying the foreign rules without inconveniencing itself?  Phillips v. Eyre, 1870 Ex. Ct. - tort committed in Jamaica, action brought in England  Somers v. Fournier, 2002 O.C.A. - choice of law in tort is primarily was lex loci delicti - MVA in NY state, everyone involved is from Ontario or - restrictions on when the proceeding could be brought in has attorned England: - what aspects of the proceeding are substantive or (1) the wrong must be of such a character that if it was procedural? committed in England it would be actionable here - costs: procedural (2) act must not be “justifiable” under the law of the place - relate to the machinery and remedy as opposed to the where the act occurred right itself - even though it affects parties, more focused on operating  What constitutes justification under (2), does it refer to civil liability or more than that? the system (efficiency, incentives) and it is discretionary  McLean v. Pettigrew, 1945 S.C.C. - pre & post judgment interest: substance - MVA in ON, both parties lived in QC - presumptive right to this, even though it is not absolute - action brought in QC, was statute barred in ON but was - primarily compensatory tool as opposed to costs which contrary to highway laws are about operating the system - is the act justifiable in ON? - cap on non-pecuniary loss: procedural - holding: - a head of damage goes to substance, but the quantum or - court adopts double accountability - second part of the test looks beyond whether there is a measuring the damage it is procedure right to civil recovery in the lex loci delicti - the cap was not a bar to the non-pecuniary damages, but - the emphasis restored to lex fori and the “justification” is interpreted broadly CONFLICTS – PAGE 15

 Chaplin v. Boys, 1971 H.L.  The court in Tolofson stated that the lex loci delicti - accident in Malta involving two British military persons rule for torts enjoys conformity with the constitution, but - English law allowed head of damage, Malta did not leaves open the possibility for legislation - head of damage is substance  Legislation narrowly tailored to capture only - holding: residents of that province may be possible - double accountability retained  Tolofson does not state that the constitution requires - “justifiable” means civil accountability a rule of lex loci delicti interprovincially, but rather that this - favours lex loci delicti, but discretion to apply lex fori principle is constitutional - there was civil responsibility in Malta, therefore it was not  Somers v. Fournier, 2002 O.C.A. justifiable in Malta - cap on damages was regarded as procedural and lex fori - however, court applied lex fori for head of damage by exercising the discretion was applied  UK has now abolished double accountability by - court limits the discretion to apply lex fori to cases that statute, default rule is lex loci delicti provided it is would cause “serious injustice”, not a mere difference in appropriate public policy  Trends in the US  Concurrent Tort and Contract  First restatement preferred lex loci delicti, second  Herman v. Alberta, 2002 Alta. Q.B. preferred lex fori - find both the proper law of the contract and the tort  Babcock - if you are within the contract, it governs - residents of NY injured in ON - if the contract is invalid or void, tort applies - ON law did not allow for this type of action, NY law did - very different in terms of policy Particular Torts - action brought in NY - holding:  Determining where a tort occurs can be complex - vested rights theory does not take account of policy  Look to the place where the last feature occurred - need to find the ‘best’ forum for the tort and applies NY that gives rise to the injury, then it is the place where the law injury occurred - NB: the court still used ON law to determine the standard  If a product is widely distributed, there can be many places where the tort occurs of care, such as the speed limit, highway code, etc.  Parties to a class action would normally agree on the  Schultz choice of law - two students sent to school in NJ, went to camp in NY  For a tort that induces something, the focus has - tort occurred in NY been on the location of the inducement, except for - lawsuits brought against the Franciscan Order in NJ copyright which is the place of the infringement - NJ law had restrictions on suing charities  Passing Off Action - Order headquartered in OH  Usually the location of the company’s products or - lex loci delicti would be NY, but the court displaces it to services, but should be a focus on the location of where NJ law because that’s the law that the parents would the goodwill exists (location of products/services and have expected to apply reputation)  US Courts not locked into any particular theory  Defamation  Is constituted upon publication Current Position – Canada  Generally look to the place where reputation adversely affected – could be a number of places  Tolofson v. Jensen, 1994 S.C.C. - double accountability rule was alive to international  Could be damage in different places, should be issues and expressed a preference for lex loci delicti where the “most” injury occurs - general rule for torts should be lex loci delicti  For the internet, it normally where the injury to - tort can occur in several locations (Moran – in most reputation occurred instead of the location of uploading cases you look to where injury was sustained)  Other torts - lex loci delicti is appropriate for torts because the parties  Trespass, nuisance, certain rights granted by a would normally feel that they would be liable there sovereign (trademark) can exist and only be infringed in - rejects McLean and Chaplin v. Boys the jurisdiction of the location or grant - room for narrow exception in the international context – but the emphasis should be on lex loci delicti CONTRACTS - example of an exception would be where all of the parties Introduction are from the same state and the tort occurred in a foreign  Two approaches to determining the proper law of the contract: state  (1) Classic Approach - interprovincially there is no exception to lex loci delicti in  Set rules and dissect the transaction the common law  (2) Alternative Approach  Constitutional Analysis of Lex Loci Delicti Rule  Find the proper law of the contract CONFLICTS – PAGE 16

 Finding the center of gravity: (2) Implied Agreements – Subjective ( agreement - place with the most connections implicita )  Must draw boundaries at some point  This situation occurs where there is a choice of - capacity issues, may be antecedent to the contract and jurisdiction but not law – this is not sufficient to have the be determined by another law, uncertain law of the jurisdiction apply on its own - some things will require the classic approach  Look to all the circumstances surrounding the  Three ways to find the proper law of the contract: contract  (1) Express agreement by the parties - subjective  If you made the forum selection clause “exclusive”  (2) Implied agreement by the parties - subjective may be more evidence that you want their law to apply  (3) No agreement by the parties - objective  Star Shipping, 1993 Eng. C.A. - implied agreement described as “floating proper law” - NB: was really a floating forum selection clause The Proper Law - court dislikes floating proper law because if the proper law is floating, you don’t know what it is because there is (1) Express Agreement - Subjective no proper law – so no contract  Parties express their intention through the contract - NB: a floating forum should be ok because you are  This makes that location connected in a significant saying that you have a proper law, but you are just not way sure where it will be exercised  Two theories on express agreement: (1) Proper law of the contract, discrete concept of the (3) No Agreement By the Parties – Objective parties choice  Don’t consider intention, determine as a matter of (2) Incorporate and give weight to the choice of law in the law what the proper law of the contract is, completely proper law analysis objective inquiry  Vita Foods, 1939 P.C.  Imperial Life Assurance, 1967 S.C.C. - clause said no recovery for negligence - find the closest and most real connection - choice of law is UK law which allowed this type of clause - facts: - the place the ship departed and the place it was going to - insurance policies issued in ON were under Hague rules which did not allow it - plaintiff was domiciled in Cuba - holding: - claim on the insurance required payment to a US citizen - proper law is focused on the intention of the parties - Cuban law prevents payment to US citizens - if it is express, it is conclusive - holding: - if not, look to other things to find the intent of the parties - application form filled out in Spanish - in this case it was English law, even if there were no - policy in Spanish, addressed to ON office other connections it would still be applied - standard form contract complying with ON laws - NFLD statute requiring the bill of lading to comply with - could not be varied except by ON executives the Hague rules was found not to invalidate the entire bill - policy amounts were in US dollars of lading, so the choice of law clause still applied (likely - where the contract was made is not necessarily would not have if case was brought in NFLD, mandatory conclusive of the proper law of the contract rule of the forum) - contract here was made at the point of mailing the policy  Gillespie in ON, not where it was received - BC court gave effect to WA mandatory rule - factors considered were the domicile of the parties,  Sometimes court will give effect to a foreign principal place of business for the company, where the mandatory rule, sometimes they won’t, depends on policy contract was made, style of drafting, language of the  If your choice of law is not a bona fide exercise of contract, economic connection of the contract with other choice of law, it won’t be given effect by the court transactions, nature of the subject matter  Interpretation of Express Agreements - the result was that the “closets and most real connection”  Need to be careful to state clearly that the substantive law will be the law of the particular jurisdiction, was Ontario – deciding factor was where the risk decision and needs to be exclusive (Old North State Brewing)  Party needs to plead and prove the foreign law, was taken, this was done in ON court will not do this on its own  Amin Rasheed, 1984 H.L.  Not possible to have a choice of law for procedure - form of contract followed Lloyd’s model and was in  Parties may be able to chose no law, and go to English arbitration or set their own rules (but may be ousting the - head offices of company in Kuwait, branches in other jurisdiction of the court if no judicial review) locations  Parties can change the choice of law by mutual - Rome Convention: law of the contract is the place to agreement which it is most closely connected, presumptions for  Concern about renvoi – if you chose the law of A, certain types of contracts does that mean A’s conflict of law rules? Likely means that you want the laws of A minus the conflicts rules Law Other than the Proper Law CONFLICTS – PAGE 17

 (1) Mandatory law of the forum  Distinction in conflicts between movables and - mandatory rule in the forum will be given effect immovables - People’s – legislation required the contract to be  Immovables is basically land, but what is included in governed by the place where the insurance was taken land? out  Hogg, 1941 Sask C.A. - Argo – Canadian court declined to give effect to choice of - SK statute applied tax to a property transfer - if the transfer happened under SK law the levy would be forum clause that was contrary to a mandatory rule applied - court may give effect to a foreign mandatory rule - focused on mortgages, was it immovable or movable? (Gillespie) - if it was immovable, then it would be under BC law  (2) Bona fide intention - if it was movable, the mortgage followed the person to  Choice of law must be a bona fide choice SK  If a contract seeks to avoid a mandatory rule in the - holding: jurisdiction which the contract has the most connections, it - to determine whether something is movable or can be murky – may still be enforced because it is the immovable, look to its location (situs) intentions of the party, only not enforced where there is - NB: this is circular logic because finding the location mala fide means you have to know already what you are talking  Nike Infomatic, 1979 B.C.S.C. about - agreement was to be governed by BC law - look to the location of the land, see if the mortgage is part - clause that if any provision was invalid in the place where of the land, if so then the location will be the situs it was to be performed, the provision was severed - the mortgage was linked to the land and BC law was - clause was found to be honest and was upheld applied  (3) Boundary of the proper law - land includes fixtures, easements and charges (such as a  Formation of the contract overlaps with mandatory rules mortgage)  Mackender:  Gets murky because the mortgage could also be - (1) void – no agreement at all viewed as a contract, and some laws relate to land and - (2) voidable - illegal some relate to contract – which is it? - (3) non-enforceable  Both mortgages and leases are seen as being part - the contract was not destroyed because part of it was of land and are immovables voidable, therefore the choice of law clause was still valid  Agreement for sale and purchase (i.e. rent to own) is similar to a mortgage and would be an immovable and Belgian law applied  A simple transaction for purchase of land would  Capacity or malem in se (totally void) involve both the contract and the land transfer, would be - there is no proper law because you do not have a considered more contractual contract  War Eagle - traditional view that capacity is outside the proper law - mineral claim found to be immovable - alternative view that capacity is just another contractual issue and should be dealt with in the proper law of the Foreign Immovables (Jurisdiction) contract  Mocambique, 1893 H.L. leading authority  (3) Formalities & Mandatory Rules - facts:  Gets into the procedure/substance debate - proceedings brought in England  UK position – formalities are more procedure - plaintiff had occupied lands and minerals in South Africa  Canadian position – court should try as much as - defendant broke in, entered, took possession and ejected possible to use lex loci delicti (in tort context) without inconveniencing itself the plaintiff  Greenshields, 1981 Alta. Q.B. - plaintiff was seeking a declaration that it was lawfully - formalities were considered substance entitled to possession and an injunction against the - contract do not have to be valid where they are made, as defendant long as they are valid under the law chosen by the parties - holding: - NB: could have been argued that the forum’s formalities - injunction related to possessory title and needs to be were mandatory rules of the forum that the court had to brought to the place and location of the land follow, difficult to determine when a rule becomes a - policy reasons the court does not want to deal with the “mandatory rule of the forum” trespass damages:  Lots of interpretation about mandatory rules (1) possession element (2) concern of double recovery - person could get damages, then go back to SA and PROPERTY get possession Transfers of Immovables  A claim for trespass can be decided without dealing with if title is acknowledged by both parties, but otherwise CONFLICTS – PAGE 18 the action must be brought in the situs because it deals the parties in NB (in personam) with title to the land, a sovereign grant - the transfer would have to take place in QC (conveyance)  A claim for nuisance is the same as trespass  Both trespass and nuisance incorporate legal - if there was something illegal about this, it should be possession taken into consideration, should not force someone to do  A claim for negligence does not require legal something they cannot do possession, simply dealing with a situation where damage  Where both parties in the same jurisdiction, there is has occurred a middle ground in that the courts may not split the  Possession requirements in law, from strongest to movable from the immovable weakest: (1) TRESPASS – very strong Foreign Judgments re: Land in the Forum - requires proof of title and the right to possess  Court can only enforce judgments where it has (2) NUISANCE – strong jurisdiction over the parties (in personam) - requires proof of the right to possess  Duke v. Andler, 1932 S.C.C. (3) NEGLIGENCE – weak - all parties from CA, - does not require proof of the right to possess - CA court granted a conveyance of land in BC  Albert v. Fraser, 1937 N.B.S.C. - holding: - both parties resident in NB - this was not recognized as enforceable in Canada - plaintiff owned land in QC - UK authority that if the judgment has to go to a foreign - defendant negligently caused damage to the property system for enforcement, two issues come up: - action brought in NB for damages and injunction (1) recognition – could it be relitigated? - holding: (2) enforcement – in personam and in rem = no for land - majority held that NB had no jurisdiction, even for the  Chapman Estate, 1988 Sask. C.A. negligence action - proceedings in personam took place in MB - dissent held that NB could not determine title, but that - trust relating to SK land Mocambique should be inapplicable between Canadian - MB court found that he was not entitled to be a provinces and should decide the negligence claim beneficiary  Hesperides Hotel, 1979 H.L. - the person then went to SK to relitigate the case - hotels in Cyprus taken over - the MB court would hold him in contempt if he came back - proceedings brought in England for trespass and - issue: conspiracy to trespass - should the SK court hear the case? - holding: - holding: - Mocambique rule should be upheld for consistency - court would not enforce the in personam judgment - potential conflict with foreign jurisdictions - relitigating it would lead to an abuse of process - would have to look at consequential damages - res judicata – matter has already been decided - conspiracy requires intention to trespass, must be an  Summary ability to effect trespass, this requires you to look at the  If you have to go somewhere else to have a foreign right of possession and the court cannot do this judgment enforced re: land enforced, the other court will - no distinction between conspiracy to trespass and not enforce it trespass itself  The other court will also not let you relitigate it if it is - for the chattels in the hotel, an action for conversion the same issue could be successfully brought  Likely the Mocambique rule should be limited to Choice of Law Issues where you are dealing with a situation that does not  Bank of Africa, 1909 C.A. involve a determination of the right of possession - UK woman exercised a deed giving a mortgage and  Godley v. Coles, 1988 Ont. D.C. assurance to a bank over foreign land - plaintiffs and defendants domiciled in ON, own condos - bank’s request for specific performance was denied in FLA - the law of the situs did not allow a woman to give land - one condo leaked onto another condo damaging  Two ways to look at this case: movables and the condo itself  (1) Proper Law of the Contract – questions of - negligence action brought in ON capacity are outside the proper law - holding:  (2) Capacity should be resolved according to the - do not split between movables/immovables, more proper law convenient to have one trial in ON  Perhaps the court did not want to order the woman  Ward v. Coffin, 1972 N.B.S.C. to do something that would be illegal for her to do - agreement made in NB by plaintiff and defendant - was for the purchase & sale of land in QC - action brought in NB Transfers of Movables - holding:  General rule: what is the situs of the movable - action could be brought in NB  Generally the context deals with the situation, such - specific performance could be ordered and enforced over as testamentary dispositions, or an inter vivos transfer under a contract – you apply the proper law of the contract CONFLICTS – PAGE 19

 Don’t need to ask the situs of the movable, because  May be significant basis for lex fori for internet the specific conflicts rule dispose of the issue communications  Chattels cases not covered in notes - hard to separate the downloading of copyrighted material  Deal with property sold to a third party under the jurisdiction of a country’s legislation, will it be recognized? from the uploading of it  Generally the answer is yes  (2) Applying foreign copyright law - lex loci delicti  Very little authority  The forum court will apply the law of the place where Intangibles the infringement occurred  London Films – rejected this  Law is very vague - UK plaintiff, US defendant, infringement in Chile  General rule: what is the situs of the movable - copyright is transitory, has no situs and follows you  This is not always easy to determine - no conflict with foreign jurisdiction because there is no  If a person is in wrongful possession, you may have foreign grant some other law apply that you don’t want  ITSI TV – rejected this  Assignment case not covered in notes - judge rejected applying Mexico copyright law, too  Security interests PPS not covered in notes complex  Intellectual Property – Sovereign Grants  Summary  Similar to Mocambique and land – physically present  Two major approaches in the US in the territory and cannot be taken out  UK - conflicting cases, most recently first approach  Patent, industrial design, registered trademark are  Canadian – not decided, Tolofson indicates support grants of a sovereign of exclusivity of enjoyment for the second position  State grant can only apply territorially, for example a  Howell’s Borderless Transmission article - situs patent only applies in Canada  Itar-Tess, NY  They are intangible immovables - infringement occurred in US  Hague conference approach – can litigate in foreign - question about who owned the copyright countries applying the law of the patent-granting country - these issues were determined lex situs - still need to set out the scope of the patent claim - court used Russian law - not simply a matter of finding out the law of patents, must  Could be a situs for copyright in terms of ownership determine its scope, more similar to trespass and nuisance issues, person claiming ownership of the copyright (where and the Mocambique rule the work originated)  Intellectual Property – Common Law  Other Issues  Trade secrets or passing off are judge-made  Levy for blank tapes or CDs – will it be enforced common law outside of Canada?  These are tort actions, similar to negligence (location  Copyright Board of Canada is a tribunal – will its of infringement) decisions be recognized?  Intellectual Property – Copyright  Tariff 22  Derived from common law, now statutory - communication is where it has a R&S connection with  No grant of copyright by the sovereign Canada  It exists automatically upon creation of material  It is territorial but universal within treaty countries  Copyright is a hybrid: R&S connection – what connections examined? Subject - one copyright protected song in Canada matter, defendant, plaintiff? - if you steal it in Canada, Canadian law applies - if you steal it in French, French law applies How much connection do you need for R&S? Connection to  Don’t have to register it the defendant and/or subject matter? What about to the  Potential problems with registration of copyright, plaintiff? Go over Phillips v. Eyre, why would someone even may provide a “situs” for it (even though the Hague want to sue in UK as opposed to Jamaica? Convenience? conference says nothing will happen) Better procedure? You are applying J’s law anyway.  Howell’s IP article – infringement of copyright  Electronic communication, two approaches in US: Go through course outline, find topics not covered  (1) Applying domestic copyright law - lex fori  Although copyright is territorial, if there is a sufficient infringement in the US then US law can apply  The forum court will apply its own law, even if the infringement occurred elsewhere  Sheldon - film negatives infringed in the US even though performance was abroad - this enabled infringements to be remedial in the US

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