Conflict of Laws Study Guide
Constitutional
The province can extend their jurisdiction if there is a real and substantial connection, using the principle of comity, to give full faith a credit to judgments interprovincially. (Morguard)
Hunt affirmed Morguard (gave constitutional significance) but also said it could be non-pecuniary
Tolofson for choice of law look at which jurisdiction has the most connection, lex loci delecti is the standard for interprovincial torts and the presumptive standard internationally
Public Policy
Canadian court can enforce a foreign judgment that violates Canadian law as long as it does not violate our principles of fundamental justice (Llyods, Old North State)
If in pith and substance it is penal or tax it will not be enforced by a Canadian court
The more analogous a judgment is to our public policy the more likely it is to be enforced (Gillespie)
Domicile
Domicile is important for marriage and succession issues
Subjective intention of person is important factor in determination, future intention more important than present intention in domicile. (Urquhart)
Court will also look to the holistic life patterns of a person (Agulian)
In Canada domicile of choice is more important than domicile of origin, thus intention to adopt is more important than abandonment. (Foote)
Residence
Main difference from domicile is in residence do not look at prospective intent, look to present intent. Habitual residence is key, duration not as important as the overall quality of the residence (Adderson)
Evidence of settled mode of living important, a matter of degree (Quigley)
Determination of residence is context specific (for purposes of election, interpreted broadly) (Haig)
Two tests, body and mind (look at actual presence of person and also what their intention was) (Wall)
Juristic Entity
Parties present in the forum – lex fori
o Humans - YES, but capacity issues
o Corporations - YES, but must meet qualifying rules (Success)
o Special statutory situations – YES, such as ecclesiastical body (Re Indian Residential Schools)
o Unincorporated associations – NO (Re Indian Residential Schools)
· Parties outside the forum jurisdiction – conflict of laws rules of lex fori
o Substantive issues – apply regular conflict of law rules
o Procedure – lex fori
o Human – YES, but for capacity issues
o Corporation – YES, as long as it meets the qualifying rules in the foreign jurisdiction
o Unincorporated groups or objects – apply conflict of laws rules of lex fori—Has to be plead and proven (Bumper; Hanza)
§ If legal entity in the foreign jurisdiction, YES
§ If not legal entity in the foreign jurisdiction, NO
Jurisdiction Simpliciter
BC analysis:
-Traditional factors (Service, Attornment, Consent) (Maharanee)—In Forbes fleeting presence was enough
-Traditional factors adopted in the CJPT Act, section 3 codifies these rules except ordinarily resident is required under 3(d) so fleeting presence probably not enough
-If any of the factors under Section 3 a-d then there is territorial competence, if not then go to 3(e) and see if there is a real and substantial connection under the factors given in Section 10
-Even if one of the factors under 3 a-d is met, you would still likely want to look at the Section 10 factors to see if there is a real and substantial connection (in Beals even though there was attornment a lack of real and substantial connection was not enough)
-If none of the section 3 or section 10 factors look at the residual discretion under Section 6 (basically a justice clause that allows jurisdiction if person cannot get a judgment in another jurisdiction)
Non-BC analysis:
--Traditional factors (Service, Attornment, Consent) (Maharanee)—In Forbes fleeting presence was enough
-In Beals attornment wasn’t enough so have to look at whether there is a real and substantial connection under Van Breda
-Van Breda factors for establishing a R+S connection are (defendant focused connections): carrying on business in forum, tort, residence/domicile, or a connected contract)
-Factors from Van Breda is not closed and these are not the only connecting factors, so an argument can be made to include another factor
Forum Non-Conveniens
BC analysis:
-Section 11 of the CJPT Act and look to circumstances relevant to the proceeding laid out in 11(2)
-These factors are not exhaustive so can argue other factors not listed if they are relevant to the proceedings (Probably includes jurisdiction selecting clauses)
-In Teck Comico SCC affirms that Section 11 of the act overrides principle of comity or common law
-Principle of first filing not the standard internationally (although in obiter SCC says possibly the standard interprovincially)
Non-BC analysis:
-In Amchem case the SCC adopts UK case Spliliada for stay of proceedings
- In Spiliada court says you must use a neutral assessment of factors between the plaintiff and defendant in determining the appropriateness of the forum, no juridical advantage to the plaintiff
- Must consider all circumstances, including the other litigation (if there are parallel proceedings)—must be linked to connecting factors (but real and substantial connection not used here…or in Sec.11 of CJTP Act)
-Standard from Anchem is that another forum is clearly more appropriate
Anti-Suit Injunctions
-Goal is to prevent the continuance of an action not the commencement of an action (there must be a parallel proceeding)
-From Anchem, SCC says must seek stay of proceedings in place where suit filed before seeking an anti-suit injunction, but this was not followed in Hudon case (so possibly not a threshold if you have a good reason for doing so—in Hudon she was badly injured)
-From Anchem, SCC says to issue an anti-suit injunction there are two steps:
(1) whether the domestic court is the “natural forum” (is there another more clearly appropriate forum?)
(2) whether there is serious injustice in the foreign proceeding
Jurisdiction Selecting Clauses
-The clause has to be clear and certain (Preymann)
-Under CJTP s.3(c) if you have jurisdiction than no need to look at forum non conveniens
-However, the courts are not totally bound by the clause if the balance of convenience suggests another jurisdiction is more appropriate, there would be a burden on the party who wants to displace the clause
-Forum selecting clauses exist outside of s.11, if forum selection clause it should be enforced over s.11-unless serious cause by defendant for not doing this (possible prejudice, very close connection to foreign jurisdiction, unenforceable, etc) (Preymann)
-BUT in Laxton court found Europe better forum even though unlikely to be enforced
Class Actions
-Section 12 of the CJTP says that if another Canadian act conflicts with this one than it takes precedence (so class action as long as its constitutional would take precedence over CJTP Act)
-In Morguard SCC mentions that potential class action legislation would likely be constitutional
Recognition and Enforcement
Enforcement of Canadian Judgments and Decrees Act
-In recognition and enforcement of foreign judgments, can use statutes or the common law
-In BC you can register a judgment from another province under the ECJD Act
-The ECJD Act does not require the judgment to be final and conclusive (2(1)) (unless it is monetary) and does not require that proper jurisdiction be taken (6(3)(a))
-ECJD Act takes Morguard to logical conclusion by providing blind enforcement and full faith and credit to interprovincial judgments, also extends Pro-Swing as it recognizes both monetary and non-monetary judgments
-Only defence available under this act is that it is contrary to public policy
Court Order Enforcement Act
-Recognition of international, original monetary judgments from listed states (can be used interprovincially but likely you would use ECJD as this statute is pre-Morguard)
-Australia, some parts of Europe, and some states in the US are listed in the Act
-This act is pre-Morguard so you don’t use a real and substantial connection test (Central Guarantee)
Common Law-Enforcement of Pecuniary Judgments
-Two tests:
1) “Final and Conclusive”- If it can be modified it is not final and conclusive (Nouvion), can still be final and conclusive if appeal is pending (NEC)
2) “Jurisdiction in the International Sense”- three possible ways to establish this:
i) Presence in the foreign jurisdiction (fleeting presence is ok-Forbes-but not under statute)
ii) Submission or Attornment (must be voluntary)-First National Bank says it is objective test for submission…a response to the suit is not a submission but a response based on the merits is submission (Clinton)
iii) Real and Substantial Connection—between enforcing jurisdiction and the defendant (Morguard)—If international judgment, connection needs to be significant and R+S connection is overriding factor for determining jurisdiction (Beals)
Common Law-Enforcement of Non-Pecuniary Judgments
-In Pro-Swing the SCC opened the door for enforcement of non-pecuniary international judgments, an extension of Morguard principles
-But, in these cases should look behind the judgment to the merits of the case, giving less weight to the other jurisdictions law—enforcing based on Canadian law
-Non-monetary decision being enforced must be final and conclusive, and limited and precise (‘clear and ‘specific’)
Common Law Defences
-Even if judgment is final and conclusive and the foreign court is found to have jurisdiction in the international sense defendant can still raise defences to void recognition and enforcement (from Beals)
1) Exclusionary Rules (penal, revenue, any public law)
2) Fraud—to foreign court, to the merits of case--defendant has to have due diligence (can’t claim fraud on something previously adjudicated)
3) Breach of Natural Justice-SCC has heightened scrutiny to Canadian notions of fundamental justice (Beals)
4) Contrary to Public Policy—Used sparingly, effectively condemns the foreign law
-Godard (no error of law defence—not an appeal court for foreign judgments)
-Old North State (treble damages not penal and not contrary to public policy)
Choice of Law
Invoking and Determining Foreign Law
-Before any foreign law can be applied it must be pleaded and proven by one of the parties, if foreign law is not plead or proven then the default is the law of the forum-lex fori (Bumper)
-Choice of law only applies to substance, procedure is lex forum (Tolofson)—Limitation periods are usually procedural (but in Tolofson said it could be substantive)
-First step is to characterize they type of law that you are dealing with (tort, contract, property?)
Torts
-Traditional UK rule from Phillips v. Eyre was double accountability, use lex loci delicti but also needed to be actionable in the domestic forum
-This rule was adopted in Canada in McLean but has since been abolished in UK and McLean has been overruled by the SCC in Tolofson
-US position is to look at underlying policy reasons before using lex loci delicti
-In Canada currently under Tolofson the SCC ruled that the rule interprovincially was lex loci delicti with NO exceptions (they stated this complied with the constitution) and that the presumptive rule internationally is lex loci delicti (with some narrow exceptions—in Lee the court said there needed to be a significant injustice to apply lex fori—done in Wei because California law had no cap on damages and both parties were from BC)
Contracts
There are three ways to find the proper law of the contract. Subjectively by looking at express agreement in contract or implied agreement in contract and objectively if there is no agreement by the parties.
-A express choice of law provision is given great weight in finding the proper law of the contract (Vita Foods)
-Find the proper law of a contract by looking at the body/terms of the contract subjectively to see what is implied in the terms of the contract (Richardson)
-If there is no subjective intention of the parties then court can objectively ascertain proper law by looking at closest and most real connection (Imperial)
-One of the connecting factors would be where the parties bring the suit (Star Shipping)
-Choice of law must be a bona fide choice (can’t be for avoidance) (Nike Infomatic)
-No proper law of contract if voided for capacity or based on a mandatory rule, but the contract does not have to be valid where they are made, as long as they are valid under the law chosen by the parties
Property
-Characterization is important, must determine if it is a movable or an immovable, first determine where the property is, and then determine how that jurisdiction would characterize it (In Hogg Sask. court determined mortgage was in BC and applied BC’s characterization of a mortgage as an immovable)
- A Canadian court won’t take jurisdiction with regard to a foreign immovable (Mocambique)
-In Godley a negligence claim was made so Mocambique rule didn’t apply (no need to determine title to immovable in negligence claim—only in trespass or nuisance)
-Hesperides-UK court said Mocambique rule doesn’t apply to movables
-Foreign judgment won’t be enforced in relation to land in domestic forum (Duke)
-If transferring movables, have to look to situs of movable (where it is)
Intangibles
-Intangibles are granted by domestic country to have effect only in that sovereign state
-In Pro Swing US trademark only applied in US—SCC majority did not want to give effect to an American trademark outside of the US
-Similar to Mocambique and land – physically present in the territory and cannot be taken out
-Copyright does not need to be enforced, automatically under WTO—enforced under each countries own copyright laws
-Lucas Film –UK wouldn’t enforce US copyright judgment, instead applied their law under choice of law BUT in Canada likely that after Beals and Pro-Swing
Morguard- Full faith and credit interprovincially if real and substantial connection
Hunt- Gave constitutional significance to Morgaurd and expands it to non-pecuniary
Beals- Extends Morgaurd internationally (pecuniary)
Pro-Swing-Opens door for Morgaurd for non-pecuniary cases (but look behind judgment)