Conflicts – Text Notes - DOC

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					                                               Law 325 – Conflicts
                                             Prof. Edinger, Fall 2004

                         [#] = page number in text; LE = Prof. Edinger’s comment on case

                                          PART I      INTRODUCTION


Conflicts can be divided into three distinct but related parts:
 ?? of jurisdiction over parties, subj matter, exercise of discr to decline juris if action more approp heard
 ?? of recognition & enforcement of judgmts & orders (things like divorce decrees are orders)
 ?? of choice of law: where forum law differs fm law of other relevant juris differ, whose rules apply & how do
   you choose?

Litigator asks: where can  sue? where shd  sue? what law can that forum apply? what law shd that forum apply?
where can  get judgmt enforced? Virtually all fora able/willing to apply non-forum law but never assume partic
forum has rules re matter of suit or that its rules on subject are same as your home forum; =ly never assume conflict
inevitable. Identifying & bringing conflict to ct’s att’n is strategic choice arising fm client interests.

 Sources of law of conflicts: Engl & Cdn CL (divergence b/c of EEC law vs Ch); US CL; civil law; statutes;
  treaties & conventions (Can has only signed about 3 of 30 int’l instruments incl kidnapping & trusts, diffic b/c
  most treaties address matters w/in prov juris but prov’s can’t sign int’l treaties . . .)
 Atypical method of reasoning in conflicts: deductive priori applic of closed set of rules (more akin to civil law
 [11] Basic conundrums of conflicts: since there is no external/objective/authoritative source for conflicts
  (“brooding omnipresence in sky”), how to reconcile choices being both internal (at least in part) & neutral? Is
  neutrality red herring since judges by def are agents of state?
 Conflict btw characteriz’n of these rules as local law & practical result of assigning legis/judic competence over
  legal subjects to diff political-legal units
 Conflict btw territoriality (public int’l law concept: state has excl rt affect/bind persons&ppty w/in borders &
  no rt to directly affect/bind beyond [14]) & rules allowing ct to depart fm territoriality – we know that this
  happens, but how do we fit this deference into “single normative order” (i.e. local positive law)? How do we
  reconcile w/UN-style respect for all legal/political systems?
 Three basic approaches in chrono order; keep in mind you can never deduce content of choice of law rule from
  knowing which approach ct employs, but you can deduce ct’s approach fm how they artic choice of law rule

1. comity: another public int’l law concept, we defer to foreign law in expect’n of reciprocity – promotes int’l
   harmony, most dominant view mid-18th/early 19th C (Story’s moral necessity & utility [15]; LaF’s justice,
   necessity, convenience [85])
   › crit for being vague, discretionary, inadequate to explain mandatory applic of rules (Dicey [15])
2. vested rights theory: strong links to nat law school; foreign law not applied directly; local law recognizes “as
   fact” rt that became vested in individ under foreign law when individ was subj to foreign law; explains
   mandatoriness (vested rts “shd everywhere be recognized” [16]; dominant in US 19th C, still implicit in some
   › crit fm legal realism school for inadeq explan of why some foreign rts vested, others not; still doesn’t
       explain why we recog existence of rt created by law other than our own; over-emph on logic vs precedent
3. local law theory: strong link to legal realists; rt is only hypostasis of prophecy (OW Homes [21]); always apply
   local law but may adopt laws apparently identical/very similar in scope (not necess content) to foreign laws.
   Applic of non-forum law is spl branch of local law in which foreign law becomes “fact” subj to proof & is
   given weight according to rules of local law applicable in that situation (conflicts rules)

Conflicts Cans 1 of 26
     ›   crit for ??-begging (already prefers local law), so doesn’t explain how ct comes to concl that diff rules may
         apply to non-locals; tough to characterize as positive law; still can’t point to foundation/principles
     ›   problem of “scope” – party pleading foreign law may do so precisely b/c of scope; if use local law to
         characterize are eliminating neutral consider’n of all possibilities
     ›   note that foreign rule selected is one that foreign ct wd apply not to actual facts but to domesticated facts
         (o/wise you are into renvoi)
     ›   note that even if loc law theory not explicitly invoked, it persists insofar as any contemp Cdn judgmt is not
         explicitly applying foreign law, but applying our local conflicts rules to allow appropr rules fm another
         juris to be applied (analogous to CL method of determining approp scope of CL rule by looking at its

    Contemp theorists move away fm central notion that priv int’l law embodies set of rules for allocating
     judic/legis authority; simply describe/explain methods of applic’n of foreign law:

1. Jurisdiction Selecting Method: legal problems divided into small, probably finite, juridical categories (e.g.
   formal validity of marriage; law of torts). Then choose neutral rule that relies on connecting factor that (in
   theory) will be determinable in this type of case all of time (e.g. LLC for formal validity of marriage – someone
   shd always be able to say where marriage was celebrated). Choice of law rule links connecting factor to
   jurisdiction for that juridical category.

2. Governmental interest method (aka rule selecting method): mostly only used in US to decide inter-state
   conflicts; akin to CL method of reasoning; look at purp/policy u/lying forum & foreign law, decide which
   provides most legit basis for applic’n. Two main variations: trad view sez foreign only appl if forum has no
   interest in appl of its policy (tough test to meet); like LL theory, crit for ??-begging as it takes choice almost
   entirely out of picture, but adv of simplicity/certainty (Currie [22]); 2nd attempts to balance purp of local law
   w/principles of restraint arising fm practical pursuit of int’l goals, focus on “true conflicts”; uses various
   approaches (“better law,” “comparative impairment,” “most signif rel”).

                                   PART II      GENERAL CONSIDERATIONS

Three general considerations apply to all litigator’s questions (where to sue, etc.): rules of exclusion, process of
characterization, & concepts of domicile/residence.

  Think of as residual ∆ against applic’n of foreign law or enforcement of foreign judgmt
  U/lying principle is protection of terr sov of forum
  Excl rules applied rule by rule or case by case, not state by state (you will never find judgmt saying “we are
   applying excl rule to all laws of Tasmania b/c they are contrary to public policy”).
Forum will not apply any foreign law or recog any foreign judgmt based on 1) penal law, 2) revenue law, 3)
any other public law, or 4) law contrary to public policy of forum.

Penal Law [99] Huntington v. Attrill: (1893 PC fm Ont.)  sued ∆ officer of corp in NY b/c stat makes officers
personally liable; ∆ w/assets in Ont argues NY judgmt unenforcbl in Ont b/c based on foreign penal law. Nope.
 Confirms penal law exception as long-standing public int’l law rule; “penal” ≠ any $$ penalty!
 Lex fori determines what is penal, not lex causae (policy – internal consistency in enforcement); ev of how lc
    characterizes is admiss, relev, not determintv; not every viol of statute is penal unless brought by/on behalf of
    state w/penalty recoverable by state or by agent on state’s behalf (poss of actio popularis, suit being brought by
    mbr of public/NGO in public interest or legis designed to give incentives to private s e.g. U.S. statute giving
    damages x3 in successful anti-trust suit
 Note even if gov’t agency bringing claim, if penalty is essentially compensatory (disgorge profits & return to
    victims; punitive damages etc.) it’s likely to be enforced in Can

Conflicts Cans 2 of 26
Tax Law [105] Stringam v. Dubois [Estate] (1992 Alta CA): does rule against enforcing tax claim of foreign juris
apply to prevent indirect enforcement ( seeking order req Alta farm, devised to her in aunt’s will, conveyed to her
while ∆ executor wants to sell farm to satisfy Ariz estate tax)? Yup.
 Cts won’t allow action brought by individ which indirectly enforces foreign rev laws
 Despite crit of this “old” rule, CA sez still law in Can
 Irrelev whether trustee/exec has 1st paid tax, now seeking reimbursement
 Policy for rule: terr sov; cts not competent to adjudicate whether foreign state’s public laws accord w/local
    public laws
 Note “tax law” interpreted strictly; claims arising fm operations of welfare state don’t count [110]
 Note Constitutionaliz’n of FFC principle applies inter-state & inter-provincially; also several reciprocal
    enforcement treaties

Public Policy: Foreign law rarely characterized offensive to public policy in abstract; cts typically consider
connection of parties & events to forum, & outcome in partic case. Possible that ct cd find entire subst content of
foreign law “morally repugnant” & reject [73-4]. ?? whether such finding by SCC wd be binding.

[74] Lloyd’s v. Meinzer (2001 Ont. CA): Does “contary to public policy” as ∆ to enforcemt/applic’n of foreign
judgmt/law incl any conduct by  that breached forum statute? Nope.
 public policy is relative - means basic moral values of juris (fraud, prostitution); mere statutory difference
    insufficient; & narrow - claim rarely successful in Can [76]
 has to relate to essential public interest, not residual categ for “unfairness to ∆” (damages x3 etc.)
 If wrong not actionable in forum at all, may find enforcemt contrary to PP
 Even if purp of breached stat is fundam value (as here, protection of investing public), must weigh contextual
    factors of entire case [80]:
    › previous actions in same case (may foreclose ∆ to enforcement arguments; here, OCA aff’d stay b/c of
        choice of forum clause;  cd not have considered breach of stat contrary to PP [83])
    › decisions in other juris regarding same parties/issue (conflicting decisions re Lloyd’s situation wd lead to
        chaos in int’l insurance market [86])
    › competing public policy (Comity principle u/lies narrow interp; broadest possible interp of PP ∆ wd mean
        unlimited reach of domestic law to int’l commerce)
    › sophistication of parties, access to legal advice [86]

[57] USA v. Ivey (Ont. 1995, aff’d OCA, SCC ref lv to app): scope of applic in Can of “other public law” ∆ to
applic/enforcmt of foreign law/judgmt (US env stat permits recov of env cleanup $$ through civil proc; ∆ did not ∆,
US took default & sum judgmts)
 Insuffic personal juris? ∆’s ownership & active engagement in business suffic RSC in Morguard sense
 Penal law? Stat compensatory (reimbursement for actual cost of cleanup)
 Revenue law? Same response, rejects “ungrounded rhetoric” of commentary calling it “taxation system”
 Public policy? Same reasoning as Lloyd’s; also, though mere diff btw local & foreign law insuff to ground pub
    policy except’n, fact that local law substantially similar in Ont. defeats it
    › LE: Attenuation of pub policy except’n in Can combined w/Morguard & Hunt makes it v unlikely inter-
         provincial claim wd succeed; not avail for US inter-state claim
 Other public law? Categ still exists in Can, but not defined. Other CL nations vary – gen’ly ltd to those public
    stats that aren’t revenue or penal but are “political”, “gov’tl interest,” or involve exercise by gov’t of sov author
    over ppty beyond terr borders [60-1] (e.g. nat’l security, nationaliz’n, expropr’n, confisc’n of priv ppty)
    › Mere presence of pub purp doesn’t defeat enforcmt, o/wise all stats wd be unenforcbl [63]
    › Policy interest: CL largely supplanted by stat/reg regimes to address modern mischief like envir harm
         where both harm & its source are int’l – comity demands reciproc/FFC (follows Morguard, Amchem,
 Breach of NJ? Can’t be raised as ∆ to foreign enforcmt unless offends fund justice ([67] Beals); appealbl
    locally (had been denied lv to app summ judgmt & didn’t ∆ other proc); res judicata & issue estoppel apply;
    error of fact/law not avail ∆ to enforcmt of foreign judgmt [64]

Conflicts Cans 3 of 26

For purpose of selecting juris, only your forum rules apply, but when you get to deciding case on merits or dealing
w/enforcmt, you have to consider foreign subst law. Forum procedural rules always apply no matter whose
substantive law is being applied (admin necessity), but may have int’l elements (like diff rules for service of parties
o/side forum).
 Applying forum proc rules & foreign subst rules requires rules to be characterized; forum does its own
    characterization of both LF & LC (achieves greater internal consistency) but can consider what other juris wd
    say about own law & may find conclusive (Huntington [100])
 Four possibilities for characterization:

         Characterization                                            Result
         We characterize LF rule as proc, LC as proc                 LF applies
         We characterize LF rule as subst, LC as subst               LC applies
         We characterize LF rule as subst, LC as proc                “neither” applies
         We characterize LF rule as proc, LC as subst                “both” apply

   Obviously, last two are problematic – if we end up here, shd recharacterize; gen’ly reclassify both LF & LC as
    subst to get coherent result
   Even if LF rule considered proc in domestic cases, ct can classify differently in conflicts case
   Trad UK CL interp proc broadly, proc rules relate to remedy while subst rules relate to right; strict textualism,
    so “no action may be brought” is subst while “no action may be maintained” is proc
   s forum shop to get favourable proc rules such as limit’n periods which were trad construed as proc
   Each forum’s limit’n rules characterized individ; might be subst in BC but proc in Italy (B.C. Limit’n Act s. 9
    actually extinguishes cause of action  subst (but s. 13 allows for applic of either limit’n period if foreign
    limit’n rule is proc; here wdn’t have helped as SCC sez Sask limit’n rule subst)

[536] Tolofson v. Jensen: (1994 SCC): What is choice of law rule for torts & is limit’n rule proc (goes with forum)
or subst (goes w/COL rule)? BC minor pass in veh, Sask MVA, BC limit’n favourable, Sask not, Sask doesn’t
allow action by gratuitous pass
 SCC changed existing COL rule for torts (law of forum applies to merits) to LLD, so Sask subst law applied;
    obvious that gratuitous pass rule applied but found Sask limit’n rule subst so it applies too
 U/lying principle: how far can forum ct apply foreign rules w/o unduly hindering/inconveniencing self? [538]
 If in doubt, resolve by finding subst so that LC applies (characteriz’n is flexible, purposive) [538]
 Trad UK approach reflects persistence of pref for LF even where LC has to be applied to merits; contemp
    approach: if COL rule tells ct to apply “some” foreign law; shd  apply broadly so that “product” [537] similar
    to Sask domestic case even if “machinery” isn’t (this is not renvoi b/c you’re not applying Sask conflicts rules)

[548] IASTD v. Hamza (Alta 1995): Is standing to sue governed by LF or LC? Foreign  is an unincorp society
w/legal status to sue at home but not here. LC applies.
 Trad position that standing is proc, hence if not legal entity under LF then can’t be party
 U/lying policy: there must be legal entity which ct can subj to costs, directions, judgmts etc. [550]
 Concl turns not on whether entity incorp or unincorp in home juris, but whether home juris recognizes it as
    legal entity – claiming party must prove & likely has to prove before any other subst matter
 Fact that this may result in foreign unincorp entity having status to sue advantage over local unincorp entity is
    already recog in local conflicts rule (differential treatment for non-local parties)


   D & R are factors connect’g legal matter to legal system & justify’g applic’n of its subst law through
    characteriz’n of party’s “personal law”; necess in trad conflicts law, less relev now w/rules like LLD

Conflicts Cans 4 of 26
   Still important as basis for in personam jurisdiction for many juridical categs (marriage, succession) & in non-
    conflicts applicat’ns (access to social benefits, voting)
   Physical presence insuffic due to transience, mobility, ease of physically removing self fm juris
   CL systems use dom as connect’g factor (prob: subj element of intent hard to prove, disputatious)
   Civil law systems use nationality (objective, but doesn’t work in fed system as one wd only be attached to
    “Canada,” not to single prov legal system

Domicile: 3 forms apply chronologically to individ lifetime:
Domicile of origin – where your dad was dom @moment of your birth, if legit. Never disappears, revives if you
lose dom of choice
Domicile of dependency – dad’s dom till age of majority, husband’s dom for wives till he dies, dad’s dom for
mentally incompetent for lifetime.
Domicile of choice – dom acquired after age of maj)
How do you establish/leave domicile?
 Cts have to figure out which one to use as stat always just says “dom”
 Requires both actual res & intention to remain i.e. you cd have intent to live in NZ but don’t acquire dom till
    you set foot there – but once you set foot there w/intent, you immed acquire it. Conversely, even if you’ve lived
    in NZ from age of maj till 60, if you have never had settled intent to remain there you are not dom there
 Intent: more diffic to establish, has changed. Trad def: where person intends to die; contemp def: to stay
    s/where indefinitely w/o positive intent’n to leave absent some clearly foreseen & reasnbly antic contingency.
 LE: “anything goes” as ev of intent [Gillespie]
 Abandonment of dom of ch req both physically leaving & intent to relinquish as dom [Bell]
 Dom of origin always threatens to revive: you may be w/o dom of choice if you have abandoned dom of ch (or
    reached age of maj w/o forming intent to remain in dom of dep) but not acquired new dom of choice [Bell,
 Context of issue may change def of dom – always ask “in what context” or “for what purpose” is dom being
    considered; another way of thinking is to look at u/lying tendencies of cts in diff contexts (e.g. benefit of doubt
    to taxpayer in tax case; find will valid in wills case etc. [146-7] In US where fund civil rights (voting) attached
    to dom, relaxed approach to finding intent b/c o/wise wd deprive of rts
 RSC advoc by some as more efficient & accurate method of determ in personam juris esp in light of Morguard
    etc. – figure out what party’s person law is based on juris to which s/he’s most substantiall connected for purp
    of issue under litig
 Stat reform: women no longer have dom of depend (BC LAE Act, etc.) but not abolished federally!;
    illegitimacy no longer problem for dom of origin (child’s dom is dom of parent they live with – obvious diffic
    in joint custody/custody disp); presumpt’n of intent, abolish revival of dom of origin [138] thus dom of ch is
    last remaining dom until new dom of ch acquired; US CL rejects revival, Cdn CL posit’n not clear (see
 ?? whether stat wd apply retroactively? Proc stats are retroactive. Try arguing by analogy that since LF
    determines dom, rules applying to dom must be proc since LF rules applied are proc . . .

Why was domicile concept criticized?
[not in text] Bell v. Kennedy (HL 1868): Old man Bell born in Jamaica, studied in Scotland, married & raised
family in Jamaica, left Jamaica “never to return” when slaves emancipated, living in Scotland when wife died, but
hadn’t decided where to live till end of days. Whose laws govern intestate succession?
 Wife’s dom of dependence was where husband domiciled
 He’d formed intent & left Jam, but had he formed intent to stay in Scotland suffic to make that his new dom of
    choice & hence her new dom of depend?
 Ct found b/c he hadn’t formed intent, dom of origin revived, her dom of depend is same, so Jamaican law
 Perverse result that person cd be subj to law of juris they’d renounced (wdn’t happen in civil law system)

[not in text] Ramsey v. Liverpool Infirmary (1930 HL): Validity of will where feckless Bowie left entire estate to ∆;
born & raised in Glasgow, lived in L-puddle rest of life, pre-arranged burial there
Conflicts Cans 5 of 26
   S/how HL finds he never acquired dom of choice in UK b/c essentially sponged off bro, incl pre-arranged
    burial, wd have moved back to Scotland if money ran out
   Found his dom in Scotland
   Context w/in which dom issue arises: ct tendency to want to uphold will/K; here, if dom in Engl will wd have
    been invalid

[121] Gillespie v. Grant (1992 Alta): validity of will where Grant born in Ont, lived & raised family in Alta, moved
to BC, cohab w/new partner & died there. Dom an issue b/c of diff rules on incapacity & succession of movables
 LE: sets out old (wrong) def of dom (permanence); proper def is intent to remain indefinitely
 Determ of dom is done by LF [125](makes sense since other juris might have rule like “only citizens are
    considered domiciled here”)
 Burden of proving change of dom lies w/party asserting it [125]
 Matter at issue defines time for determ of dom [122-3] (here, incapac determined by dom @time of making
    will while succession of movables governed by dom @time of death)
 Dom often matter for trial rather than applic or sum judgmt [127] – ev-heavy determination, all facts are
    “in” to determ intent, intent can be inferred not express; here, ref to stay Alta proc & directed trial on dom –
    which, depending on outcome, cd req parties to argue over forum conveniens due to diff in juris over
    immovable ppty in Alta [127]

[127] Re Urquhart Estate (1990 Ont): c/law spouse seeks dependent’s relief applic’n fm deceased’s estate, where
dec was peripatetic. What is test for abandonment of dom of ch?
 Correct def of domicile (intention to remain indefinitely + res)
 Abandonment = physically depart w/intent never to return or w/o intent to return (diffic to prove as absence of
    intent. BOP is always on party claiming change of dom
 2 diff poss: abandon dom of ch, dom of origin revives (Bell scenario); dom of ch remains until new dom
    acquired [130] but see stat interventions above

[not in text] Harrison v. Harrison (UK 1935 or 53): divorce case, revival of dom of origin
 Dom of origin was UK, then when dad moved to Austr his dom of depend was there even tho he never lived
    there; kid moves to NZ, marries, then moves to UK, all while still minor, but his intent was to move back to
    NZ. Divorce in UK after age of maj.
 Dom of origin revived b/c dom of depend lost once he reached age of maj, no dom of ch b/c while living in UK
    had intent to move back to NZ
 Dicey & Morris: dom of origin can not be lost by mere abandonment, only by acquis’n of dom of ch. Dom of
    ch can be lost by abandonment; if it is, & new dom of ch not simultaneously acquired, dom of origin fills gap

Residence: has largely supplanted dom in CL provs esp in stats; probably due to adoption of “habitual res” as
compromise btw dom & nat’lty for int’l conventions & dissatisfaction w/crusty old dom rules
 3 types of res (no bright lines): actual, habitual, ordinary. Adv is can establish more objectively than dom;
   disadv that takes time to acquire, hard to disting btw “tourist” & “res”
 now used in Can as connect’g for divorce, child custody, matrim ppty, debtor, formal validity of will, voting rt,
   tax, no-fault MVA benefits, access to social services/benefits, citizenship [149]
 May also be used as supplementary connect’g factor or except’n to primary connect’g factor for COL rule for
   other juridical categs (as part of RSC argument)
 Dicey & Morris say req s/thing more than phys presence, they’re just not sure what [131] – definitely excl
   tourist, casual visitor
 Easier to apply than dom b/c no intent req but in some cases harder as min duration may be req by stat (e.g.
   Divorce Act, 1 yr), whereas dom of ch can be acq instantly – poss to have acq dom of ch b4 res
 Stat reqs subj to const scrutiny either on extra-terr application objection or br Ch s. 6

[157] Adderson v. Adderson (1987 Alta CA): meaning of habitual res in matrimonial ppty stat
 habitual res req “physical presence that endures for some time” & state of mind, but “weaker animus” than in
    dom [158]
Conflicts Cans 6 of 26
   midpoint btw ordinary res & dom; wd apply to univ students, those res “for settled purposes” [159]
   or think of it as evidence/presumption: longer continuous res is stronger ev of present int’n [159]
   LE: hab res = where you are making your home for time being
   Here, tho lived in Hawaii prior to final sep, rather spotty & short presence esp of hubby  TJ found last joint
    hab res in Alta

Corporations: dom = country of incorp
[169] National Trust v. Ebro Irrigation (1954 Ont): Corp’s dom analogous to person’s dom or origin
 Can’t be abandoned or acq dom of choice (unless dissolves & reincorps)
 May have no RSC w/actual enterprise  many prov stats use carrying on business as connect’g factor
 Corp carries law of dom w/it & may also be subj to laws of any juris in which it operates if that stat is clearly
    intended to govern extra-terr corps e.g. by use of “carrying on business” factor [171]
 Corp can also have ordinary or fiscal res distinct fm dom; determ by de facto not de jure control; poss tho rare
    corp cd have multiple res [171-2]


 Forum can only apply FL in recog & enforcement
 Once final judgmt issued, orig cause of action expires; there is no necessary merger into foreign recog – u/lying
   policy of terr sov – sov can’t directly enforce orders & judgmts o/side own terr
 Waiver of terr sov for certain class of judgmts quite common (family maintenance – no need to register OR sue
   in debt
 This may affect your client’s strategy of where to sue in 1st place
 In rem judgments have own weird rules & u/k whether subj to Morguard.
 Two ways to have pecuniary, in personam judgment enforced in foreign juris: CL action on foreign judgment:
   is an action in debt (i.e. not treated same as enforcmt of domestic judgmt) w/same limit’n as domestic action in
   debt, regardless of limit’n in juris that issued foreign judgmt
 Registr’n under domestic stat (BC Foreign Judgements Act; Can Reciprocal Enforcement Judgement Act, both
   w/6 yr limit’n. All Cdn CL provs reciprocal, limited int’l reciprocity (Austr, Germany, Austria, UK, WA, AK,
   CA, OR, CO, ID (but not TX)
 Two CL req: final & concl judgmt + foreign ct had juris in int’l sense


[355] Nouvion v. Freeman (HL 1889): test for “final & conclusive”  foreign judgmt creditor of dec, now seeks
domestic order for admin of estate to satisfy debt
 If ∆ can go back to same court & get judgmt altered, not final (e.g. family awards)
 Peculiar kind of trial de novo avail in Spain such that HL said this was not final judgmt
 Where ct of competent juris has given adjudic’n which can only be app to higher ct, it is final
 Although appeal pending (or still in time), it is final & concl for purp of R&E - ∆ can apply for stay
 Losing creditor can still sue in UK on cause of action – not res judicata in domestic ct

NEC v. Steintron (1985 Ont): Party who registers not precluded fm CL action on foreign judgmt
  got judgmt BC, registered in Ont, ∆ filed app in BC,  files Mareva applic’n to freeze ∆’s assets in Ont, but
   Act precludes registr’n where app filed,  then files full action in Ont
 Recip Enforcmt of Judgmts Act does not create an “either-or” situation
  entitled to switch horses when ∆ makes debt unrecoverable through registr’n


Nothing fancy, just means “court of competent juris” (did foreign ct take juris properly, according to LF?)
Conflicts Cans 7 of 26
   Principle: foreign ct has juris over matter & person, not over other cts; domestic ct is not bound by foreign
    judgmt but person is, & domestic ct will enforce judgmt if  comes & asks them to
   Two traditional ways to get juris: presence of ∆ in juris @time action commenced (Forbes), or ∆ voluntarily
    submitted to juris
   New method: real & substantial connection (Morguard) – creates quandary for counsel.
    › Pre-Morguard cd advise client to ignore action if they had not assets, were not present in juris
        @commencement, hasn’t been served, sends no letters – ct can’t take juris (assets signif as  cd get default
        judgmt & then you’d be all over trying to get it set aside
    › Post-Morguard, run risk that client cd be found to have RSC w/foreign juris,   cd have foreign judgmt
        reg in BC on basis of RSC w/o ever having been present or submitting
    › Policy – complexity of int’l commerce, RSC encourages submission, settlement. Downside: “litigation
        blackmail” esp in juris like TX w/soft rules for product liab, astronomical damages

i. Presence
** Keep in mind it’s according to LF rules – so if LF doesn’t allow fleeting presence juris, won’t enforce judgmt of
juris which allows for it **

[368] Forbes v. Simmons (1914 Alta): fleeting presence w/o submiss suffic for ct to take juris
 Alta ∆ visits sick wife in BC hosp, served there, argues didn’t voluntarily submit
 Ct seems to find presence for service means same thing as presence when action begun [369]
 Options for litigants: contest juris of ct where you were served (be ready to ∆ on merits if you lose) or req ct
    exer juris to stay if you think there is another poss juris w/advantage for you

[371] Moore v. Mercator (1978 NS) corporate presence = carrying on business
 6 req for cob finding – see [371] – here, was through agent but agent had power to carry out sales K

ii. Submission

[372] 1st National Bk of Houston v. Houston E & C (1990 BCCA) appearing w/o protest = submission
 ∆ had not expressly instr Tx attorney to attorn to Tx juris, filed appear &  took quick default judgmt
 CA finds submission following test in Henry v. Geopresco (1976 UK) “appear w/o protest”
 Even if has erroneous advice as to what appearance signifies, has still submitted – remedy is against bad
    lawyer’s advice, not ∆ to enforcmt
 Policy: not up to  to prove ∆ voluntary submission & authority of ∆ counsel!
 If ∆ cd prove counsel had not author to even appear for them, might have been different

[377] Clinton v. Ford (1982 Ont CA) ∆ on merits to avoid asset seizure doesn’t render submiss invol
 , assets & action in SA, ∆ in Ont, served there, filed SOD which ∆ on merits w/o contesting SA juris or
    validity of pre-judgmt seizure of real ppty in SA
 Does not render submiss involuntary – cd have contested validity of seizure &/or juris w/o submitting
 Cd also have ignored whole thing – SA judgmt wd not have been enforcbl in Ont but wd have lost his ppty
 See Henry v. Geopresco rule: if appearing before foreign ct solely to preserve assets domestic ct will not
    enforce [379]
 Same principle applies whether pre or post judgment seizure

Mid-Ohio Imported Car v. Tri-K Investments (1995 BCCA) unsuccessful obj to foreign ct’s juris/req for
discretion does not amount to vol submiss but can’t add any other arguments
 ∆ counsel unsuccess contests submiss, forum conveniens & technical arguments in Ohio;  got judgmt in Ohio,
    BC TJ accepted ∆ to enforcmt on grounds of no submiss, no RSC; on app,  argue that making technical
    arguments in conflicts case is arguing merits,  attorning to juris
 BCCA: Henry v. Geopresco ratio (∆ appearing solely to contest juris ≠ vol submiss) is narrow except’n to CL
    rule that any appear is vol submiss (absent duress, itself ltd to seizure of assets in foreign juris: Clinton) [385]
Conflicts Cans 8 of 26
      Interprets H. v. G. as saying any further argument, whether prelim, technical, fact or law constitutes submiss
       even if (as here) allowed by foreign ct rules to be attached to juris challenge; H. v. G. crit & applied variably,
       but in BC CL settled by BCSC Rule 14(8) [386] & is same as BCCA’s interp
      Note some juris incl BC used to disting btw obj to juris simpliciter under Rules & forum conveniens argument
       on theory that arguing for ct to exercise discr is submitting to that ct’s juris, but R. 14(6) explicitly states “or . . .
       shd decline juris”
      Here, adding technical argument to juris challenge constitutef vol submiss, no need to consider RSC
      Litigator’s ??: what are R&E rules in juris where ∆’s assets are – cd be deemed to have vol submitted even if
       ct where issue was tried appears to allow argument w/o submiss

iii.       Real & Substantial Connection

[35] Morguard Investments v. De Savoye (1990 SCC): judgmt can be enforced btw provinces w/o presence or
submission if RSC btw ∆ & orig juris
 extends CL rule for R&E btw provs in Can: previously if ∆ was not served/present w/in juris when suit
    launched & didn’t submit,  cd get default judgmt fm foreign juris but local forum wd not R&E
 History of CL rule offends modern sensibility; trad UK (unitary state) view of comity as “deference & respect”
    misapprehended, parochial, evinces exaggerated concern re quality of justice abroad [37]; prefers stronger US
    (fed state) formul’n as necessity stopping short of absolute oblig’n, arising fm int’l commerce [38]
 However comity is construed, mistake to transpose rules for int’l R&E to prov; confounds obvious Const
    intention to create single country w/unified citizenship, mobility, trade/commerce (s 91 power, s 121 removed
    inter-prov tariffs) [39]
 Other fed systems (US&Austr) have full faith & credit clauses in const; we don’t need that b/c we’re Can &
    like our const stuff to remain implicit; no need to go so far as to read in FFC clause [40]
 Other than trad grounds (presence, submission) what is limit to ct exercising juris over party o/side prov (can’t
    just follow XJ as v. broad grounds esp in NS & PEI [42])?
 Limit is RSC (not novel; after all what is conn factor in in rem actions like divorce decree but RSC?); here
    obvious as case concerned mtg on real ppty in Alta – but gen’ly must balance fairness to parties
 What is RS? Connection “of kind which makes it reasnbl to infer ∆ has voluntarily submitted himself to
    risk of litigation in cts of forum prov” [44]
 Note infer here that RSC is const restr on prov legis power & cd apply to XJ [43] but no need to pronounce on
    that here
 Note does not disturb discr of ct to decline (FNC) or trad ∆s to enforcement [44]
 Note Beals explanation of Morguard appears to elevate RSC over trad rules re presence, submission

[44] Hunt v. T&N (1993 SCC) LaF’s 2nd round: R&E by RSC is const imperative
 Priv int’l & const law share u/lying princ: balance diversity & uniformity in manner fair to all litigants
 Is Que stat prohibiting removal of docs of Que businesses pursuant to non-Que ct order ultra vires? Can ∆ in
    action o/side Que use Que statute as “lawful excuse” to disclosure?
 Que sez s 92 allows it to legis ct admin rules & civil proc, which entails legis to prevent R&E of o/side orders
    that relate to ppty (docs) inside Que
 SCC: legis affects ct admin & proc o/side Que; pith & substance not ppty in Que but impeding litig o/side Que;
    since pith & substance is extra-territorial effect then ultra vires [46]
 Const imperative of FFC set out in Morguard applies =ly to legis as to cts  legis can’t enact stats that fly
    in face of it [48], but can enact legis that outlines proc for R&E or has some effect on litig in other provs
 Won’t set out list of contacts/conn factors or even advocate broad/narrow approach to RSC [49]
 Confirms fed gov likely has power to legis re R&E, provs can legis on R&E w/in their powers [50]

[392] Moses v. Shore Boat Builders (1994 BCCA) extends Morguard to US judgmt
 BC co’s K executed in AK to build boat for AK res who sues in AK & gets default when ∆ did not appear; BC
    TJ orders R&E in BC following Morguard; only issue was whether RSC found [394]; here, several “contacts”

Conflicts Cans 9 of 26
      CA upholds; TJ correctly followed Morguard obiter in finding only issue whether ct properly acted through fair
       process & “w/properly restrained juris” [bit of question begging here] [398]
      If only contact is ’s res, likely won’t find RSC [402]
      Applies Moran v. Pyle “stream of commerce” argument; here although action on K not tort, same principle
       applies esp where boat mfg specifically to US standards for AK client use
      Basically, if foreign ct took juris on same basis that BC ct wd, it wd be “odd indeed” for us not to enforce
       [402];  since RSC is now part of LF rules for R&E interprovincially, most logical to apply it
       extraprovincially, congruent w/basic conflicts rule that juris in int’l sense decided by LF rules see also Beals at
      Manifest error: seems paradoxical that if order void by its own law due to some error, we wd R&E it; but
       competent juris in conflicts means only ct’s terr competence over subject matter & ∆, no ∆ of error as long as
       no substantial injustice to ∆ according to LF [404]
      Note: still don’t know what RSC is beyond “minimal” (e.g. in Mid-Ohio only conn was one K [381]
      SCC ref lv to app – best ∆ strategy is to appear in foreign ct to contest juris or ask ct to exercise discr to
       decline juris or contest on merits – don’t sit back & claim absence of presence/submiss

[405] Braintech v. Kostiuk (1999 BCCA) cob basis for RSC must be active not passive
 NV  cob in BC gets default judgmt in TX for defam, BC TJ R&E’s in BC; CA o/turns
 V fact specific: conn w/TX was internet defam, where public’n deems him by TX law to have done business in
 Applying Amchem ratio in context of anti-suit inj to context of R&E: whether or not foreign juris has FNC
    doctrine (TX keeps going back & forth), consider whether foreign ct departs from our own test of FNC to such
    extent as to justify us refusing to respect assumpt’n of juris by foreign ct [411]
 Satisfaction of FNC test req satisfaction of RSC; looks at US “minimum contacts” test for exercise of in pers
    juris over non-res ∆; ∆ must have purposively reached out & estab contacts in foreign state [412] (element of
    foreseeability echoes LaF in Morguard re infer that party has voluntarily submitted to risk of litig in that juris)
 LE thinks problematic if accepting US test as saying juris improperly taken under TX law; I don’t thin that is at
    all what CA sez – they just like articul’n of US test, are still applying LF
 For Internet, sliding scale of connect’n based on how active/passive activity was; here, passive
 Improper service claim: if true, then it’s TX ct’s problem, not BC (manifest error) – what is rel is if service
    breached US const standard, we wd consider that substantial injustice by our standards [414]


      These are final ∆s avail when ct has already found final & concl judgmt of ct w/proper juris
      Narrow at CL, still narrow after Beals –but likely will get more consider’n along LeBel’s lines
i.     Argue standard exclusions (penal, revenue or other public law; contrary to forum public policy)
ii.    fraud
iii.   breach of natural justice

[415] Godard v. Grey (1870 QB) error of law/manifest error not ∆ to enforcmt
 Fr court interp Eng K made in Eng wrongly; Engl ct enforces judgmt
 Local ct can’t be used as appeal ct for foreign ct, whether it was applying foreign or local law
 Note BC doctrine of “manifest error” is departure fm CL & should be restrained: Moses [404]
 Policy: if proc by which foreign ct came to judgmt was examinable for error of law, then wd be examinable for
    error of fact & essentially re-examinable on all aspects; local juris wd have to u/take trial de novo which wd
    negate point of R&E [417]

[441] Stanton v. Gulbrandson (1999 BCSC) fraud going to juris or newly discov fraud ∆ to enforcmt
 ∆ hubby had RSC w/Utah ct which issued divorce decree & maintenance order (had lived there, wife remained
  obtained huge maintenance by fraudulently claiming ∆ able bodied professional; ∆ ignored proc
Conflicts Cans 10 of 26
   Ct regretfully unable to accept fraud ∆ as was intrinsic & avail to ∆ at time of Utah judgmt, but did exercise its
    discr under s. 48(2) Ct Order Enforcmt Act to suspend execution of judgmt

[431] Old North Brewing v. Newlands (1999 BCCA) public policy ∆ narrow
 BC ∆ appeal enforcmt of judgmt fm NC ct awarding treble & punitive damages at damages trial after default
    judgmt on liab under K which had BC COL cl; ∆ hadn’t attorned or appeared at either trial
 TJ found COL clause not excl but concurrent w/any other proper juris; ∆’s failure to plead BC law meant NC ct
    had to apply NC law [438]
 RSC found (follows Moses re product liab even where arises fm K) [436]
 COL cl must be clear & express to be found excl; burden on party claiming [436]
 Treble/punitive damages not penal but compensatory [Huntington]; construes fed statute re unenforcbl anti-
    trust treble damages as permitting them in other circs  not contrary to PP [440]
 Note even if NC applied BC law, poss quantum wd have been char as proc law, esp if treble damages
    mandatory under trade practices stat; heads of dam substantive but BC law allows for punitive anyway

[not in text] Pro-Swing v. ELTA Golf (2004 Ont CA): can enforce non-$$ judgmt if unambiguous
  sued for trademark enforcement, settled, got consent decree in OH where ∆ agreed to cease
 ∆ started up again,  gets OH ct to issue contempt order w/several conditions, ∆ ignores, Ont TJ issues
    enforcmt order (where ∆ is)
 CA sets aside b/c some terms ambiguous, but agrees w/TJ that Morguard principles call for relaxation of req
    that judgmt be for fixed sum
 says in principle non-$$ orders can be enforced if terms clear enough that local ct doesn’t have to hear
    argument about what it means, & esp if order expressly says it will have extra-terr effect

[not in text] Beals v. Saldanha (2003 SCC): Morguard applies o/side Can; NJ ∆ narrow
 Morguard applies to truly foreign judgmts (¶19, 28); RSC subsumes CL rules: see “participation” in juris [¶32]
    but cf ¶34: attornment, of ∆ irrespective of RSC analy wd have given Fla juris
 2 principles underlying R&E: order & fairness, & RSC ¶21
 RSC doesn’t have to apply to both subj matter & ∆; one is suffic [¶23]
 ¶29 unless gov’t legislates, domestic ct shd R&E foreign judgmt where foreign ct assumed juris on same basis
    domestic ct would (e.g. on RSC)
 although fairness is w/lying issue, no reason on facts here to disting btw default judgmts & trial [¶31]
 ¶59 ∆ of NJ: ∆ must prove on BOP that foreign proc contrary to Cdn notions of fund just; solely proc, not
    merits or outcome (here ∆ claimed not made aware of extent of financial jeopardy – failure to specify face
    amount on claim doesn’t amt to br, especially when heads of damage were spec & include pun dam Note: Maj
    & dissents err here in thinking all Cdn cts req specified amounts)
 ¶37 confusing: states RSC = o/riding factor, then states attornment, presence etc. “bolsters” RSC, then says
    parties free to choose juris by attornment!
 Trad ∆s to enforcmt survive; reamin narrow; poss of new ∆s in future ¶42
 ¶50 fraud ∆ applies only where it made foreign ct take juris improperly, or fraud newly discovered & not
    discoverable by due diligence, & PLEASE stop using intrinsic & extrinsic!!
 Policy same: domestic ct can’t sit as appeal ct on merits of foreign ct judgmt
 ¶71 public policy ∆: aimed at repugnant law, not repugnant facts (fm Castel & Walker)
 s 7 (if applies at all) doesn’t shield Cdn’s fm bankruptcy in Cdn proc, so can’t in foreign proc [¶78]
 Iaco & Binnie dissent on facts on NJ
 LeBel dissent on facts & theory of NJ; seems to think balance should favour Cdn ∆ in foreign juris but doesn’
    address converse (will all Cdn ’s have to instruct/advise foreign ∆?)
 ¶185 wd shift burden to  to prove foreign juris fair & legit (!) w/poss of judic notice
 ¶195 disagrees w/maj analy that if loc ct wd take juris for same reasons foreign ct took juris we shd enforce
    judgmt (he’s right insofar as reason for taking juris ≠ fair proc . . . .but he doesn’t explain why he thinks necess
    to take this into account at juris analy stage instead of leaving as trad ∆

Conflicts Cans 11 of 26
   ¶215 – 218 Morguard expansion makes enforcmt easier for foreign  in Can, so ∆s shd be relaxed to prevent
    litig flood/blackmail (maj sez up to legis) – on whole, harks back to UK isolationism
   ¶241 NJ has substantive element not just proc ¶ 217 residual categ of “shock conscience”

Statutory Reform & Arbitral Awards
 If order registered, ∆ can still claim ’s lack of compliance w/stat but that may have been affected by Morguard
 Big advantage ex parte applic & just has to be delivered to ∆, no need to serve; short limit’n dates for debtor to
   plead ∆, BC stat adds ∆ not avail at CL (31(6)(a)(ii) - foreign ct lacks juris under own rules)
 reciprocating juris must be named (in BC handful of US & Eur states)
 Enforcmt of Cdn Judgmts Act is Morguard-compatible, only proc in BC & PEI, blind FFC clause [469]
 Draft Enforcmt of Foreign Judgmts Act not enacted; some Hague Convention negot’s for multi-lat treaty
 LE thinks Morguard was SCC’s hint to fed gov to legislate – same in Beals
 Inter-juris Support Orders Act – fills lacuna for family law judgmts which aren’t final & concl
 Note  still has option to launch CL enforcmt action or sue in domestic ct on same cause of action
 What drives stat reform? Dissonance btw civil law approach (narrow, certain, occasionally unjust) & CL
   approach (broad, flexible, but o/lapping); not as much to do w/helping s collect as one wd think
 Arbitral awards: fed & prov legis [444]; no req for reciprocity; some ∆s & conditions avail.
 Enforcbl @CL if has been converted to judgmt in originating juris under that juris law, but essentially legis
   o/rides distinct’n & ct will enforce under Act either way

                                 PART II          JURISDICTION IN PERSONAM

   In personam means regular civil suit for damages; diff rules for assuming juris in matrimonial, wills, title to
    real ppty cases
   Of all poss juris to bring action in, what are rules for getting ct there to take juris for case itself, not R&E?
   Source: CL rules mod by stat, plus final discr to decline or to enjoin fm foreign action

 Enemy alien can’t sue
 Extra-provincial co can either be req to register to litigate, or can be fined for non-reg (stat rule built on CL
 Note consider poss of Crown or state immunities, usually covered by stat [194]
 Civil model rigid juris rules, dictate single excl juris & everyone else must R&E judgmt (some exceptions e.g.
   Warsaw Convention/Carriage by Air) w/very little judicial discr
 CL model “jungle” of multiple juris w/non-excl rules but lots of jud discr – parallel actions OK
 Effect of Morguard: RSC test for R&E extends correlatively so that judgmt will be enforced if foreign ct
   properly took juris, which in turn is defined by RSC
 CL nations differ on approach to transitory presence of ∆ (tag juris) – SCC in Morguard frowns, UK & US
   mostly think it’s fine

Success Int’l v. Environmental Export (1995 Ont) def of “cob” for purp of stat
  NY corp, ∆ Ont co,  seeking NY arb order enforced, ∆ sez  not standing as not reg under statute
 Arbitral award flowed fm K dispute  is “in respect of”
 Single isolated trans can constitute cob if activities, staff, premises, etc. have some duration in Ont [183]
  loses here but can simply register, then bring action again
 Note Wording in BC stat – only K’s in BC
 Note Can foreign legal entity which wd not be recog as legal person by LF nonetheless have standing in LF?
   Question of foreign law is treated as ?? of fact, has no precedential value, is quite reviewable on appeal, & if
   not proved is assumed to be same as LF (Hamza [548], Bumper [192-3]

Conflicts Cans 12 of 26

∆ w/in juris: juris assumed as of right (trad CL rule arising purely fm terr sov)

   [194] Maharanee of Baroda v. Wildenstein (1972 Eng CA): fleeting presence OK for assuming juris
    Maharanee sneaks up to cheating art dealer at races, serves him in UK – bad form, not abuse of process
   only way to set aside writ in case like this (where both parties w/in juris & no parallel actions) is if  brings
    meritless suit [196]
   cts very reluctant to stay where juris taken as of right

∆ o/side juris:  req leave of ct to serve XJ (CL Proc Act 1852 (UK), Order 11) [197]
 Ex parte applic,  must prove 1) good arguable case on merits (essentially serious issue to be tried); 2) Circs
   fall w/in one of list defined by Order 11; 3) Eng most approp place for action (discr factor)
 ∆ can appear to argue any/all elements. (if action w/in EEC follow civil model req by treaty)
 BC Ont & Alta have order 11 model; NS & PEI allow service w/o leave if ∆ is anywhere in Can or US, w/leave
   anywhere else in world
 Post-Morguard, 3-stage analy in disarray (don’t forget, two const aspects to Morguard/Hunt: RSC req or prov
   wd be acting extra-territorially & inter-provincial R&E req by fed arrangements). Cts have resolved by doing
   RSC analy at step 2 circs & at step 3 discr to decline [198]

Duncan v. Neptunia (2001 Ont):
 Ont rules (as most provs) allow ∆ to challenge juris simp & FNC under diff rules but criteria for determining JS
   & most convenient forum similar, entwined [198]
 If Morguard has changed stat rules such that list of circs provided in stat do not meet RSC, legis shd modify
   rules either by defining RSC in stat or by reinstituting leave req [199]
 If  meets circs in rules minimally, then ct should find for  on JS & go straight to FNC
 See TJ’s summary 200-201

Statutory Reform: BC Rule 13(1) allows XJ w/o leave [202]
 Since 1976, leave not req; greater onus on ∆ to step in & challenge
 LE: cts had to “rediscover” disc after statutes permitted service w/o leave & provided for in 13(3) where  can
   get leave if circs don’t fit list
 13(8) parties can contract out of stat
 As writ is just notice, it’s not extra-territorial (?) but it summonses person to reply/appear?
 Fed Ct has no 13(1) so you have to get leave

[204] Teja v. Rai (2002 BCCA): RSC analy applies to JS for torts despite Moran rule re loc of tort
 s seek decl fm BC that it wd not have juris over fatal MVA in WA (all parties BC res); sued in WA b/c more
    favourable heads of dam, WA ct req this decl. Weird & made ct uncomfortable b/c no applic for leave to serve
    XJ & no writ filed in BC so no partics – has to go by WA writ
 Traditionally, ∆ willingly attorning (as here, she said she wd) wd end matter
 /app argues Morguard princ supplants CL, req juris to be exercised constitutionally (i.e. through RSC which
    Chambers J was in error in finding) [207]
 CA disagrees w/interps of Morguard that say RSC has to be btw subj matter & juris & that trad methods of
    exercising juris over person have been o/ruled: “at no point did [LaF] resile fm view that presence of ∆ in terr
    of ct cd itself ground juris of that ct” [208]
 Basically, ’s prob is w/WA ct which clearly wants to decline juris, not w/BC cts or ∆! [209]

[209] Moran v. Pyle (1973 SCC): forum where  suffered damage in careless mfg case can assume JS
  (survivors of light-bulb-electrocuted electrician) successfully sought lv for XJ b/c all (incl Chambers J)
    assumed tort occ o/side SK (likely in ON where bulb mfg); ∆ successfully appeals service
Conflicts Cans 13 of 26
   SCC: tort occurred in SK; this does not mean SK is only place that can assume juris
   Policy: resolve ambiguity in “place of tort” btw loc of duty, loc of br, & loc of harm by saying loc of tort can be
    any of these places (only other logical choice is “none” which is unacceptable, or picking 1 of 3, which is
    arbitrary & poss unfair to one of parties [211])
   Extensive rev of conflicting authorities, resulting in nascent RSC test: search for most approp ct to try action &
    degree of connect’n btw cause of action & country concerned shd be dterminative [216]
   Moran rule mid-217

[218] Furlan v. Shell Oil (2000 BCCA)
 pleadings alone suffice for analy of JS unless ∆ puts facts essential to finding JS in issue; then  may be req to
    provide ev for those facts [221]
 JA analy is basically “intellectual exercise not involving any discr” [221]
 Ev may be req where pleadings insufficiently particularized to determine JS (e.g. under 13(1) (m) alimony
    claim req ∆ to have assets in BC which wdn’t form part of pleadings as irrelevant to cause of action, but need to
    be provided by affidavit for ct to do JS exercise
 Obviously “jurisdictional facts” wd need to be put in ev for leave under 13(3)
 Resid categ of “tenuous cases” where claim itself tenuously meets good arguable case & ct wants to make sure
    JS can be well-established (“practical substitute” for 1st br of leave req in trad Order 11 [222]) see also Armeno

[224] Muscutt v. Courcelles (2002 Ont. CA)
 Applic’n of Moran, Morguard where harm takes while to be caused & resolved (MVA o/side of Ont but all
    pain & suff, medical care, loss of income etc. in Ont)
 Novel categ of Morguard principle as “assumed juris” vs “presence juris” & “consent juris” [225]
 Distinction btw assumed juris & FNC analy (∆s appealed on both): former is rule, latter is discr [226] (poss
    agrees w/McEachern quoted in Furlan [220] that JS, using RSC test, is threshold test prior to FNC)
 Morguard allowed for two views: personal subjection appr (akin to US minimum contacts) vs admin of justice
    appr; Sharpe JA prefers broader admin of justice appr (personal subj approach works well for mass torts but not
    so good for MVA’s) [227]) although cd argue MVA compuls insurance, duty of care ot all on road, inter-
    provincial defence req all estab personal subjection)
 But what he actually argues for is an either/or analy at JS stage, with fairly low threshold for finding JS [228],
    followed by FNC analy looking at circs as whole, where policy “admin of justice” issues may be weighted
    more heavily
 compare Syncrude

[232] Spar Aerospace v. Mobile Satellite (2002 SCC)
 where  meets test set out by Que stat for Que ct taking juris, does not have to meet separate RSC test  making
    out prima facie case on any one of contacts in stat wd meet RSC test for purp of JS

[235] Armeno Mines v Newmont Gold (2000 BCCA)
  app fm Chambers J setting aside XJ
  pleadings make out case for JS (K in BC & damage in BC) but ∆ brought ev challenging facts essential to 
    having arguable case
 following Furlan, once ∆ introduces ev that puts in question facts essential to ’s case, burden on  to satisfy ct
    there is arguable case, but only on facts ∆ has put in issue [240]
 can do this by further affidavit, or cross-ex ∆ on affidavit, or demand production of docs supporting affidavit –
    here, did nothing to challenge ∆’s contrary ev

[246] Strukoff v. Syncrude (2000 BCCA)
 ∆ appeals Chambers J dismissal of applic for decl that BCSC has no juris/shd decline juris
 XJ under 13(1) (g) (breach of K w/in BC)

Conflicts Cans 14 of 26
    somewhat tortous finding that issue is cause for dismissal & that factual nexus for that is in BC, sufficient
     connection for service XJ under 13(3) [248] compare Muscutt – u/lying tendency to assist disabled ’s, power

[253] Harrington v. Dow Corning (2000 BCCA)
 ∆ applied to have mbrs of class restr to those whose claims had RSC to BC
 statute itself permits non-resident sub classes (∆ made not const challenge to provision itself) [255]
 nature & purpose of class action permits common issue for resolution to be conn factor btw all mbrs of class &
 ∆ accepts that BC has juris over subj matter; this in itself meets JS for all women currently res in BC who
    suffered harm, whether or not implant was done in BC [258]
 hazy policy discussion re comity & constitutional limits [258], likely distinction btw opting-in (doesn’t extend
    juris beyond const limits) & opting-out
 no unfairness to ∆ to req submiss to judgmt in any Cdn prov – ct seems to be trying to say that u/lying purposes
    of RSC analy (order & fairness) are bolstered by CA proc [261]
 3:2 CA dec’n

    has not decreased in importance despite increased scrutiny of JS since Morguard
    have to do both stages of analy (JS then discr) & many cases decided on discr
    two forms: self restraint by staying proc; restrain  by anti-suit injunction
    Note discr only arises in CL forums where more than one poss forum, parallel actions
    Anti-suit inj will only work if ∆ agrees to submit to issuing juris
    Anti suit inj won’t necessarily be enforced by other juris b/c not final concl judgmt but interloc motion

[270, 299] Airbus Industrie v. Patel (1998 HL) only natural forum can issue anti-suit inj
 ∆ gets anti-suit inj in India against parallel suit in TX following crash (maj of s were fm India & Eng)
 Eng s ignore inj, ∆ seeks new anti-suit inj in Engl
 HL: we cannot be policemen for world; fact that parties are w/in our juris isn’t enough, we must be natural
    forum (implies we must have juris over subj matter, not just parties)
 Note TJ here said ct can’t enforce anti-suit inj, ∆ didn’t appeal but tried for new inj, HL didn’t address whether
    ct can enforce – LE thinks that wd now be option

i.   English Principles
    Trad Eng position: v rarely stay local action where ∆ personally served in Engl (∆ must prove abuse of process
     to pursue in Engl & that stay not unjust to )
    Freq stay local action where XJ service: ∆ just has to raise possib of other approp juris, then BOP on  to estab
     that Engl more approp, any doubt resolved in favour of ∆
    1974 Atlantic Star: HL sez non-Engl systems need little respect, tests are same but shd be more liberally
     applied (Goff was counsel)

[272] Spiliada v. Cansulex (1987HL): principles for stay of local actions, status of FNC doctrine
 Goff is now Lord Goff so gets to update Atlantic Star
 ∆ Cdn corp sued in Engl & served in BC w/leave under Order 11, applic to have leave set aside refused, CA
    o/turns (so leave is set aside),  appeals successfully to HL, so finally action allowed to continue
 FNC (Scottish principle) replaces trad UK position (where juris taken by Engl ct as of right, v. high bar to have
    ct exercise self restraint)
 FNC issue not relative convenience of parties but most approp forum to serve ends of justice [281]; FNC & FC
    mean same thing, diff is BOP (on ∆ for FNC, on  for FC) & whether service pers or XJ
    › ct must be satisfied that other juris is competent & more appropr forum [275]
    › initial BOP on ∆ to prove but once estab prima facie case for other juris, shifts to  [277]

Conflicts Cans 15 of 26
    ›   Fact that ∆ served in local forum (juris as of right) not determinative in favour of  but one of factors
        (“fleeting presence” ∆ may easily be able to estab FNC [278] vs ∆ living o/side forum merely for tax haven
        [282] (Can differs)
    › Ct’s 1st step: look @factors pointing to other forum (connecting factors establishing most RSC)
    › No other competent, or competent & more approp forum: no stay granted
    › Competent & more approp forum avail: grant stay unless special circs. BOP shifts to , here ct considers
        MacShannon v. Rockware Glass (1978 HL) princ of legit personal/juridical adv [279] i.e. linear process –
        if doesn’t meet more approp forum test you never get to balancing part
   Change from prior cases: less emph on ’s juridical adv – it’s part of, not sep & = to, FNC test
   Where service XJ: Amin Rasheed (1983 HL) confused everyone b/c of 2 formul’ns 1) XJ so exorbitant that cts
    shd exercise it circumspectly in 1st place w/BOP on  to prove wdn’t get justice if had to sue in foreign ct [280]
    vs 2) XJ pretty routine, ’s BOP just to prove service permissible & proper
   Goff: diff btw XJ analy & FNC analy is who has BOP; XJ is more exorbitant juris b/c it’s exercised on party
    o/side forum whereas FNC is exercise of ct’s self-restraint [281]
   Legit personal/juridical adv to : can’t be determinative
    › FNC not convenience of parties.  will always sue where they have adv.
    › Fact that  deprived of rt to sue not determintv e.g. if twiddled thumbs, failed to sue in obviously more
        approp forum, then lost out on limit’n, then start action in Engl, ct cd properly stay [284]; but if other juris
        gives no cause of action at all where Engl law does, ct cd properly decline to stay.
    › Point is  acting reasonably & practical justice [284]
    › Ct can grant stay w/cond that ∆ waives limit’n or submits to favourable discov rules etc. [285]

[288] Aerospatiale v. Lee Kui (1987 PC): anti-suit inj still requires element of oppression
 ∆/app Aero appeals Brunei CA dismissal of applic for anti-suit inj for TX action; TX ct refused stay
 Goff: re-articulates trad rule as “ends of justice” appr (but vexation & oppression still necess [296]
 Multiplicity of suits is not in itself vexatious [296]
 Anti-suit inj doesn’t offend terr sov as order is against parties who are amenable to ct where inj will be issued
    (i.e. by starting suit there); must be used cautiously as indirectly affects foreign ct [294]
 Ct issuing must determine FNC & find injustice btw parties, not grant inj on FNC alone [297]
 Mistake arose in Castanho 1980 following MacShannon 1978 dictum that simply transposed FNC approach
    from stay to injunction scenario [297]
 Stages: 1) is issuing juris natural forum? 2) is continuing action in other forum vexatious/oppressive 3) will it
    be unjust to deprive  of action in other juris?
 Injustice btw parties may be balanced by inj w/u/takings fm ∆ that give  same adv as other juris [298] as here,
    inj granted
 LE: perverse result: Brunei CA used wrong test (too lax acc to PC) but didn’t grant inj; PC uses stricter test, but
    grants inj!

ii. Canadian Principles

[302] Amchem v. BC WCB (1993 SCC) Inj not granted unless ∆ failed to get stay in foreign ct
 Gen’l principle: “when foreign ct assumes juris on basis gen’ly conforming to our FNC rule, we will respect
    that dec & not purport to make dec’n for foreign ct. (comity) but if foreign ct assumes juris on basis
    inconsistent w/our rules of priv int’l law & this results in injustice to litig/potential litig w/in our juris, foreign
    ct’s assumption of juris is inequitable & party invoking it can be restrained” [313]
 in general (i.e. not hard/fast rule), inj shd only be applied for after foreign proc commenced
 party shd ask foreign ct to restrain itself 1st, apply for inj only if unsuccess
 apply FNC analy fm stay applic’n: where no one forum clearly most appropriate, domestic forum wins out by
    default provided it is an appropriate forum, shdn’t stay itself [311]
 no need for action actually being commenced in issuing juris
 vexatiousness/oppressiveness not required

Conflicts Cans 16 of 26
   Analysis: 1) did foreign ct reasnbly come to concl not to grant stay? 2) If not, assess all factors at once (appropr
    forum, personal & juridical factors, balance of injustice btw parties)
   BC CL pre-Amchem: BOP on  to prove FC for XJ service; not nec changed by Amchem [313]
   Note stat intervention – BC Rule 13 copies Engl Order 11
   Is Cdn approach more flexible, more respectful of comity than Engl? In Engl you ask if Engl natural forum, so
    you’re not deferring to other ct’s finding at all. In Can, you ask whether foreign ct cd reasnbly find it was FC,
    not whether you wd have come to same concl. Only then do you consider other factors.
   In Can, less likely to get to 2nd stage but more likely once you get there to get an inj than in Engl
   LE: Can probably grants too easily – in Austr this approach is seen as less respectful of comity b/c Cdn ct
    passing judgmt on foreign ct’s stay dec’n, not simply on parties’ arguments; also poses prob when foreign
    forum has no FNC doctrine (e.g. TX where it keeps coming & going)
   Factors to be considered at 2nd stage: Where are parties residing? Where are they carrying on business? Where
    did cause of action arise? Where did loss or damage arise? Juridical advantage for ? For ∆? Convenience of
    witnesses & evidence? What law is court going to have to apply? Difficulty of proving foreign law? Cost &
    efficiency of conducting litig itself? Is there another action pending elsewhere?
   Here, o/turns BC ct granting of inj v BC residents continuing action in TX agains ∆/app asbestos co b/c co
    didn’t prove either step
   Note process for BC litigators: ∆ gets served under 13(1), wants to be sued @home or not at all. Challenge JS
    of BC ct & ask them to decline (set aside service) under 13(10) & under 14 (6). You want ct to decline juris as
    order setting aside service or writ will just delay, not stop, 

[313] Hudon v. Geos (1997 Ont.)
 Ont res (/resp) got anti-suit inj restraining ∆/app Geos fm continuing w/applic for decl that ∆ not liable for
    contract/tort damages for MVA in Japan under Japanese contract law
  hadn’t applied for stay in Japan – ct here says failure to do so insuffic to set aside anti-suit inj
 ∆ can’t argue Ont FNC b/c had previously unsuccessfully applied for stay of ’s Ont action [318]
 now we have two approp fora – how to choose? Here, personal inconv to disabled  outweighs litig’n
    inconvenience to ∆ [320]
 LE: hard cases, bad law: Amchem principles cd/shd have applied differently – considering 1st branch of test req
    consideration of foreign ct’s applic of FNC doctrine!

[320] Westec Aerospace v. Raytheon (1999 BCCA): ordinary remedy for parallel actions is stay
 Last of trilogy: Avenue Properties decided fairly shortly after BC decided to use MacShannon test (after service
    in BC, ’s choice of juris shd not lightly be disturbed)
 Thrifty Canada: 5-judge CA panel: reviews FNC doctrine, concludes McL over-emphasized ’s choice instead
    of comity principle
 Westec:  BC corp K w/ KN co w/COL cl for BC; inevitably K dispute; ∆ starts KN action for decl that they’re
    not liable under K;  defends in KN & doesn’t contest juris, & starts action on K in BC; ∆ seeks stay in BC,
    loses, goes to CA
 Current BC procedure for stay: 1) are there parallel proc in other juris? 2) If so, is other juris an approp
    forum? 3) If so, has  established objectively, by cogent evidence, some personal/juridical adv avail only in
    BC, & so important that wd be unjust to deprive them of it? [327]
 Factors: TJ said US jury trial disadv & 18A adv in BC weighed for granting stay; Westec sez nature of proc in
    BC will fully determine matter unlike KN applic; CA not impressed (see [200] for long list
 CA stays BC action, lv to app to SCC granted (LE thinks b/c McL now on SCC – I think more likely b/c not
    consistent w/Amchem [319]), but by time it got to SCC KN had already issued final concl judgmt & everyone
    went home.
 Note case does not mean 1st party to file gets to keep action in their juris but see [325]


Conflicts Cans 17 of 26
   Very important clarity & avoidance mechanism! Parties can select juris, choice of law, or both, but won’t be
    considered excl unless express inK
   Trad CL: void as contrary to PP; now in most CL juris, cts give great weight & threshold to get ct not to apply
    v. high
   In all Cdn CL juris, stat makes arb clauses effective – ct must give effect, meaning that once K specifies place
    of arb, they are bound by that juris arbitral stat & ct will make them follow its proc but o/s ?? is whether arb
    will address COL issue by “normal” conflicts rules or whether arb stat specifies substantive law to be applied
   Cts ask 3 ??: 1) is clause valid? 2) what is its effect? 3) will we give effect to it?
   Arb cl differs fm juris cl b/c juris sel cl does not oust ct’s discr; arb is statute-bases so does oust

[329] Oulton Agencies v. Knolloffice (1988) (PEISCAD 1988)
 K limits juris to Que, /resp brings action in PEI, ∆/app objects but K has exp
 Does K apply at all? Does juris sel clause oust FNC doctrine?
 Differing onus:  has BOP to litig in juris other than K selected but ∆ has onus if challenging on basis of FNC
 Parties continued to follow terms of K after it expired; shd be upheld unless  can establish balance of
    convenience “massively favours” opposite concl [332]

[334] BWV Investments v. Saskferco (1994 Sask CA): if arb cl valid acc to LF, ct must apply arb stat
 Parties agreed in K to int’l arb law; if this arb clause valid then ct must enforce it
  sez clause invalid as it conflicts w/SK Builder’s Lien Act; CA interprets BLA purposively & as non-exclusive
    if parties choose other method of arbitration [346]
 Since K & BLA not inconsistent, arb cl stands, ct stays action
 Since sub sub K’s involved, ct can stay third party actions pending outcome of this arb [348]

ECU Line v Z.I. Pompey (2003 SCC) if K fundamentally breached, whole K incl clause falls
 Forum sel cl survives fundamental br – otherwise, wd find many such cl illusory since one of parties in K
  dispute usually argues K void or voidable
 Use law chosen by parties in K to detrmine whether K still binds parties
 If K valid then cl valid & stay shd be granted unless  shows “strong cause” that it wd be unreasnbl or unjust to
  hold parties to cl – this is Eng CL test fm Oulton [331]
 Strong cause relates to balance of convenience, fairness, interests of justice – not substantive issues
 Note still open to ct to find juris sel cl is not exclusive

                                          PART IV: CHOICE OF LAW

   Choice of law = what subst law shd apply to this problem, in whatever juris is deemed appropr?
   Litigs actually fight more over juris now than COL
   Basically COL rules are settled, look up in Dicey & Morris or similar, but can invite ct to modify

Choice of law steps

   Do circs of this case permit substantive law of another forum to be applied? If not, not conflicts case!
   If neither counsel raises it (conspiracy of silence) it is not conflicts case!
   Is any of that other law worth applying for this client? (If not, conspiracy of silence)
   If it is, convince this forum to apply another forum’s law
   ** do not forget this step on exam! Must give ct (LE) reason (COL rule) to apply foreign law
   Plead & prove foreign law (o/wise ct will apply own law/assume foreign law is same – there is no jud notice
    for content of foreign law)

Conflicts Cans 18 of 26
   Juridical category = category of legal issues in which any matter in that categ must be decided according to law
    of particular forum designated by means of “connecting factor.”
   Connecting factor (can look up in conflicts book once you’ve characterized) may be single (formal
    validity=LLC) or multiple (essential validity
   e.g. category of legal issues = formal validity of marriage; connecting factor = LLC
   You must explain to court how connecting factor indicates law of partic forum you’re claiming
   Apply law of partic forum indicated by COL rule
   COL rule won’t be applied if: 1) can characterize issue more specifically such that diff COL rule w/I different
    result applies; 2) law indicated by COL rule is revenue or penal law
   COL problems: renvoi, incidental question, time element (law changes & not clear whether apply current law
    or law applic at time of issue being litig – see Tolofson for harsh result
   Incidental question: COL rule for main issue depends on incidental issue that itself raises COL issues. Do you
    apply conflicts rules or forum rules to incidental issue? Only becomes problem if answer to that question will
    give you different results on incidental question.


[511] Amosin [Fernandez] v. Mercury Bell (1986 FCA)
 Foreign law presumed to be forum law unless pleaded & proven [see 517 n.1 re implied waiver by not pleading
    it]; can be proved by expert ev, affidavit, admission/agreement, production of stats, appeal cts in Can may have
    to take jud not of stat law of provs [519-523]
 Liberian ship, crew wants ITF union coll agreement to supersede their individ Ks
 This will work under Can Labour Code, but whose law applies to ship?
 Canada Shipping Act codifies CL conflicts rule that sez law of flag applies to ships,  Liberian law shd apply
    but parties didn’t plead & prove so ct assumed Liberian law same as Cdn
 Statute law or CL? assumption that CL applies, but here s want statute (CLC) to apply
 Ct sez, can apply provisions of stat which represent “general & fundamental” law, esp when stat law appears to
    codify CL not abrogate or modify it
 FCA didn’t relate to Ch values but cd easily use those to bolster what’s “general & fundamental”
 Note forum CL & stat both designed for local scenarios, not foreign parties. Proper response is to domesticate


   In most Cdn CL provs, CL rules still in force; COL rules quite certain but still litigatable
   Marriage is K that creates status (action on marriage is in rem action) but K w/special rules
   policy concerns: certainty, fulfil parties’ expectations, enforce social/moral order
   Cdn problem: 91(26) (marriage & divorce) vs. 92(12) (solemniz’n of marriage)
   ?? of validity of marriage arises directly (nullity, divorce) & indirectly (tax, immig, estate litig, certain torts)
   Trad CL conflicts rules: formal & essential validity both determined by LLC
   Other possible fora: forum, domicile of either or both parties, matrimonial home, LLC, nationality
   Possible defects: Notices, Witnesses, Licenses, Registration, Civil & Religious Ceremonies (is one required,
    both?),Consent & Parental Consent, all formal; Capacity (age, consanguinity, affinity, marital status,
    impotence) all essential
   In Can, formal validity provincial juris, essential validity federal juris (practical rather than sound theoretical
    distinction [877])

[877] Brook v. Brook (1891 HL) conn factor for essential validity is matrimonial domicile
 widower went forum shopping to Denmark so he cd marry his widow’s sister
 Much to his surprise, HL said disting btw formal validity (how you entered into marriage) & essential validity
    (nature of marriage K itself).

Conflicts Cans 19 of 26
   1st still gov by LLC, but 2nd gov by matrimonial domicile (HL did not have to consider variations in domicile as
    both parties lived in Eng before & after marriage

Dual Domicile, Intended Matrimonial Home
 Dual Domicile: Essential validity of marriage governed by law of ante-nuptial domicile of parties @ moment
   before they went through ceremony.
 discourages forum shopping; ante-nuptial dom can act “protectively” to prevent exploitation; problem w/now
   two sets of law to apply (e.g. each party has to have capac acc to laws of both dom [880] but this arguable [882]
 Intended Matrimonial Home: easier to apply, fact based, no poss of two competing rules; serves interest of state
   where parties will live
 LE: ct only applies int matr home when it wants to uphold marriage (e.g. Narwal)
 Consent generally held to be formal (poss arguable) on analogy w/regular K: if you didn’t consent, K is void ab
   initio [881]. Poss argue diff conn factors shd apply for different types of defect e.g. consent vitiated by duress
   prior to, in which case LLC might make sense vs consent based on inducement (in which case intended matr
   home might make more sense)

Incidental Question
[not in text] Vervaeke v. Smith (1982 HL)
 1937 marriage btw Smith & Russian woman, who then goes to US in 40’s & gets divorce in NV
 Meantime, Belgian prostitute pays Smith to marry her in 1954 to avoid getting deported fm Engl, then retires &
    marries Eugenio her pimp in 1965, (Smith has f’d off to S. Africa) but he dies on wedding night leaving real
    ppty in Engl
 She wants to inherit but isn’t validly married to him if she was validly married to Smith, so she argues no
    consent (marriage of convenience), or, maybe Smith was never divorced fm Russian woman, so he had no
 Incidental question is recog of divorce performed in NV (question that has conflicts element & depending on
    outcome of conflicts question, cd have two diff results that affect main question, was Smith validly married to
    Belgian prostitute?
 Eugenio’s brothers get $$ as HL sez, 1) Smith’s 1st marriage validly ended by NV divorce (there was some
    evidence even tho they cdn’t find Russian woman); 2) feigned marriage ≠ lack of consent; 3)  Smith’s 2nd
    marriage valid, no divorce fm him, 4) no valid marriage to rich Eugenio

[924] Schwebel v. Ungar (1965 SCC): Incidental question – see headnote at 924
 there are no subsidiary rules to tell you whether to apply law of forum of LC to incidental question
 note up to you whether you tackle incidental question or come up w/another solution e.g. here if ct used
    intended matr home wd have avoided issue

 [not in text] Szechter v. Szechter (Polish marriage case):
 Applic for decree of nullity due to duress where Jewish girl in Polish prison married her adoptive dad who had
    divorced his wife for purpose, married her to save her fm prison
 All end up safely in UK, can they pls get marriage nullified so man can remarry his wife
 UK sez, COL rule governed by dual domicile, both parties Polish; but Polish expert not avail,  apply UK law
    of duress, parties succeed

[not in text] 2nd Polish marriage case: partial renvoi [487]
 During WWII, parties in transit tried to comply w/Italian law but goofed so not formally valid acc to LLC.
 Common law marriage exception (no access to local law, exchange vows in presence of each other), expressly
    designed for WWII upheaval, doesn’t apply if parties instead follow local law!
 Here, ct sez, but wait! COL rule for formal validity is: LLC, or any law recog by LLC, so we cd apply whatever
    law other juris wd apply (i.e. we’ll look at Italian conflicts rules, which say look at nationality, so let’s see if
    Polish law sez they are married). It worked.
 Conflicts rule of forum chosen by conn factor takes you to third forum = transmission
Conflicts Cans 20 of 26
   LE likes partial renvoi as general alternative rule which can be used in any COL situation where you think ct
    really wants to find your result but needs rule to hang it on.
   Renvoi = instead of domesticating facts (usual COL application), you apply other forum’s COL rule
   Only worth doing if gives you different & desired result & only happens when other forum uses diff conflicts
    rules, so usually arises btw civil & CL fora
   You are limited to single reference o/wise full renvoi ends up in feedback loop. In practice, doesn’t happen
    much as usually end up fairly quickly at civil law juris which only uses partial renvoi
   Renvoi does not apply in contract, may apply in torts
   Can apply in marriage & succession & usually will only be accepted by ct if it helps uphold validity of will or
   Collyer v. Rivas (partial renvoi in testamentary succession): testator dies in Belgium, will has 4 codicils, UK ct
    to determ if will & codicils valid. Characterization: ppty/succession/testamentary/ moveables; conn factor =
    domicile; COL rule: law of testator’s last domicile. Problem: Belgian domestic law makes codicils invalid.
    Solution: ct sez, “what wd Belgian ct do?” In Belgium, testator wd not be considered domiciled, wd go by
    nationality, wd remit matter back to UK, by whose domestic law codicils wd be found valid. Yay!
   Total renvoi = foreign ct theory: UK law says apply Belgian conflicts law; Belgian conflicts law says “use
    renvoi” which takes you back to UK . . .

Canada v. Narwal (1990 FCA): essential validity determined by law of intended matr home
 intended matrimonial home making headway in Can, can apply even where parties haven’t yet established
 Indian citizens dom in India married in England, but wife landed imm in Can & Can is intended matr home
 Immig dept needs to establish validity because of problem w/consanguinity (in India wd have not had capacity
   b/c of consanguinity)
 Ct applies purpose u/lying intended matrimonial home test (state w/most interest in essential validity of
   marriage gets its laws applied)

[941] Sangha v. Mander, (1985 BC): COL rules for marriage in BC
 Provides us with good discussion of various choice of law rules (connecting factors) that BC Court was
    apparently prepared to apply in appropriate cases. There is range of possible connections. case involved an
    action for nullity. defect which was asserted to allow wife to get decree of nullity was her husband’s
    impotence. He didn’t show up for proceeding. law of forum was applied because no one pleaded & proved
    law of any other jurisdiction.

[883] Re Hassan & Hassan (1972 Ont) Polyg is ability to take more than 1 wife whether/not actual
 Is matter of capacity,  essential validity,  gov by law of domicile (Cdns cd not go to Egypt & enter polyg
    marriage as LLD forbids; but cd argue valid if intended matr home was Egypt)
 remember forum characterizes, so even if LLC wouldn’t call it polyg, if we wd, it is
 Eng CL recognizes polyg marriage as valid (practical – dominant form of marriage o/side West) except for in
    action for matrimonial relief (divorce & spousal support, possibly child support, possibly succession – question
    still open): Hyde v. Hyde (1866 HL [875]
 To vitiate harshness of CL, now can recog polyg marriage being converted by acquis of dom in monog juris
 Note polyg marriage can be challenged on grounds of formal & essential validity
 Capacity to enter into polyg marriage governed by law of intended matr home (Radwan v. Radwan)

[87] Tolofson v. Jensen (1994 SCC): conn factor for torts is location of tort, COL rule is LLD
 justification: certainty, order, avoid forum shopping
 doesn’t deal w/Moran v. Pyle type of problem – does SCC mean location of tort means two diff things for JS &
    for COL rule?
 Eng law says LLD can be displace by another law “when substantially more approp” [587] but Tolofson
    doesn’t allow for this (long discussion [600-604]
 Proc vs substance (see notes above) [536], [587]
Conflicts Cans 21 of 26
   Note high threshold for injustice [601-2] – here, Kim Tolofson denied remedy altogether
   LaF still on his federalism kick per Morguard
   Definitely law in Can, leaves door open for int’l differences, treaties

[609] Somers v. Fournier (2000 Ont CA) COL rule in international tort action
  tried to get best benefit by characterizing some aspects as subst instead of proc, since COL clearly NY after
    Tolofson; wanted NY advantage (no cap on pecs, ability to get pre judgmt interest which you can’t in Ont)
 OCA sez, cap on pecs is proc so Ont rules apply
 Pre-judgmt interest is substantive so NY rules apply
 Costs are procedural so Ont rules apply

[628] ABC v. Waterhouse (1991 New S. Wales CA): LLD for defamation or LF in Australia?
 See Restatement on COL rules [632-3]
 Comes up w/newish rule: ’s residence, construed as their most permanent connection w/particular juris [633]
 Cd argue this shd be applied in Canada since SCC has yet to pronounce or cd argue Moran principle shd apply
    to COL rule as much as to JS (BCCA accepted this in tobacco litig)
 See also [634 note]: Dow Jones v. Gutnick (2002 Austr HC) confirms.


1. Proper Law
 Double barrelled test: proper law of K is either law actually (express or implied) chosen by parties or
   objectively ascertainable & imputed to parties by ct by normal methods of K construction in absence of 1st
 Parties’ choice has usual restrictions, bona fide & not contrary to PP
 Imputing process involves subj considerations (what parties wd have done, said was to be done under K, subj
   matter of K, refs to juris or law) & obj considerations (what reasnbl parties wd have done)
 Fact that K incorporates stat does not mean that law will governs K for COL purposes
 PLK governs most issues: validity of terms, available defences, heads of damage

[646] Vita Foods (1939 PC) Leading case on COL Rules for K
 NY co K w/NS co. to carry goods from Nfld to NY. Nfld not province yet. NY co brings action in NS where ∆
    is, even thos NS has nothing to do w/K problem.
 Bills of lading issued in Nfld didn’t contain wording req by Nfld stat that incorps Hague Convention rules &
    wd relieve ∆ of liab;  wants to find bills (K) void so as to find ∆ liable
 At trial ∆ agrees K gov by Nfld law, but bills say Engl law applies
 PC finds actual expressed law (proper law) is Engl, bills valid
 Ct must give effect to express lang of K as long as those are bona fide, legal & not contrary to PP
 PLK = that which parties intended to apply, is objectively ascertained by parties expression or by presumption
    fm lang of K
 Bona fides & legal means parties not free to select random bogus LC to avoid obvious public law of any
    relevant juris (LE only know of 1 case)
 K can incorp law of US, Can as term of K but that doesn’t affect PLK
 (Difficulty w/time of applic of incorporated law – parties often use “as amended from time to time”
 Illegality: Just because Nfld provision incorp into K was violated, doesn’t void K (see below)

[669] Amin Rasheed (1984 HL) COL analy may get tangled up w/juris analy
 Action in rem: boat jailed for smuggling, owner (Liberian shipping co) claims under insurance in London,
    insurance co ∆ is Kuwait co cob in Dubai
 K in English, paid in Sterling, LLC is Kuwait
 If  can estab that PLK is Engl, it will help their claim that Eng ct shd take juris
 Hard to tell here if ct objascertaining in absence of express intention, or inferring parties’ intention

Conflicts Cans 22 of 26
   Factors ct considered: terminology, language, arb clause, currency, type of K
   signif here as “marine insurance K” where Kuwait has no indigenous marine law – so look to 2nd level of K to
    see if it gets you to “possible” conflicts element to get to preferred LC to get to juris!!!
   No renvoi in K conflicts law [673]
   In result, PLK is Engl but stayed in favour of Kuwait as FNC –  may not get what they want
   See [672] re: Bonython formula

[665] Imperial Life v. Colmenares (1967 SCR):
 leading SCC case on contract CLR
 If parties haven’t agreed then PLK is law of state that K has closest connection to (see Star Texas)
 Insurance co wants Cuba law to govern as K wd be illegal, Colmenares wants Ont law
 Life insurance K where Colm executed in Cuba but K was addressed to TO office
 LLC is not determinative; as in Amin looks to type of K to find PLK is Ont [668]
 Poss that u/lying intent of ct was to uphold ins K, power rel btw parties
 See also Eastern Power v. Azienda (Ont. CA) [697] re letterbox rule, when & where K concluded

[660] Star Texas (1993 Eng CA): implied COL
 K provided for 2 locations for arb – how to interpret ambiguous term pointing to 2 diff LC?
 Parties seemed to intend on floating PLK – can’t be permitted in Engl CL
 Where arb cl allows no definite inference, go back to system of law w/which K has closest & most real

ii. Contract formation – may call for other than PLK
 Has K come into existence at all?
 Apply law of forum putative proper law, law that would have been proper law if K is in existence.

[690] Mackender v. Feldia (1967 HL) LF governs formation
 Stolen diamonds, insurance K said Belgium law wd apply
 Lloyd’s applies ex parte to have diamond loser served XJ re action to have K decl void for non-disclosure as
    want it tried in Engl under Engl law
 HL: K neg in Engl so fits w/in Order 11 discretion but ct shd decline as non-compliance does not void K but
    makes it voidable under English law (didn’t even ask selves if shd look at Belgian Law)
 See [695] re confusion over “putative proper law” (even if K has COL &/or juris cl, if dispute is over actual
    formation, law in clause may not be ascertained to be PLK
 Possible also to find one K (main K) exists & 2nd K (COL cl) can stand even if 1st one falls

[not in text] Parouth (1982 Eng CA):
 Another juris case where  wants juris in Engl, needs leave to get XJ service, likely can only get this if PLK is
 ∆ argues non est factum, there is no K, just bundle of telexes, one of which talks about an arb cl
 Ct found putative proper law was Engl w/out having to find whether K existed (since determ was for purp of
    juris, as for Mackender
 ∆ can still argue no K at trial on merits

iii. Formalities & Capacity to K – may call for other than PLK

Formalities (signature, seal etc.) not very signif these days.
Use either LF or LLC

[699] Greenshields v. Johnson: (1981 Alta CA)
 Action on debt; Alta K has COL clause in Ont but Alta stat requires party guaranteeing debt to appear IFO
    notary; ∆ says I didn’t comply w/stat so my guarantee is void

Conflicts Cans 23 of 26
   Did parties choose Ont law (which has no such req) to avoid local law (mala fides)? No, so ∆ loses
   Not contrary to PP either – no essential public/moral interest
   Note Alta CA characterizes this stat as subst rather than proc (bit of stretch, frankly); o/wise stat wd apply since
    LF proc statutes apply even where Ont subst law applies
   Here PLK trumped LLC but LLC can be used esp where it will uphold K
   ∆ here didn’t use illegality argument (we’re not sure why – see below)

Capacity to K: really not much an issue, only minors; ascertained by PLK, then apply that LC’s capacity rules
(mainly rules for prot of vulnerable groups)

iv. Laws of Mandatory Application

   COL Rules defer to statutes that regulate K activities, ∆ may uses these as ∆.
   Ct has to ask: what is connection btw parties to K & law they’re seeking to apply? What is proper applic of that
    stat & what is its effect on K
   Ct will always consider statute fm PLK
   Ct may consider statute fm LF (if diff fm PLK) esp if it is also LLC or LLS
   Ct will not consider statute fm LLC if being LLC is only conn to parties & K: Vita Foods; but LLC is legit
    factor to determ PLK & in some juris is default PLK if not objectively determinable
   Ct may consider statute fm LLS even if diff fm PLK: Gillespie

[705] Avenue Properties v. First City Dev. (1986 BCCA)
  purchases units in Ont development, K governed by Ont law,  decides not to complete b/c Alta vendors cob
    in BC didn’t deliver prospectus which renders K unenforceable under BC Real Estate Act
 ∆ sues in Ont, which  defends, then  sues in BC for decl that Ks unenforceable, ∆’s seek stay of BC action
    for FNC, TJ allows, CA o/turns
 Main reason is that ∆ didn’t meet burden that Ont is more appropr forum, but also accepted  argument that
    complete ∆ afforded by BC stat is legitimate juridical advantage
 McL sez this can be done – apply LF subst rule – when LF rule is mandatory, is COL rule, or for PP reason
    (which applies here)
 Ct says we have to do it this way b/c if stayed in BC, Ont wd apply Ont subst & proc law (quite properly); also,
    wdn’t work to try characterizing this as proc law as gives party complete ∆ (substantive)
 Signif that stat expressly applies to land o/side BC
 Case shows  bias that Westech o/ruled

[708] Gillespie Management v. Terrace Prop. (1989 BCCA) can consider LLS statutes
 /resp BC co enters K to manage WA ppty of ∆/app BC res & mbr of WA LLPartnership
 LLC is BC, LLS is WA
 BC & WA law both say that agent has to be licenced as real estate brokers in their juris
  sues ∆ for termination of K, ∆ argues that LLS should be applied instead of PLK (BC) b/c BC law doesn’t
    say that  has to be lic in WA, while WA law does
 CA agrees & o/turns TJ, saying we should give effect when we have similar law ourselves (Southin) or on
    principle of reciprocity & that party can’t undertake in K to do something illegal [712] (Cumming)
 Make sure you find out consequence of illegality under stat – it might not render K unenforceable
 note [714] – this case goes quite far in giving effect to LLS substantive law

v. Claims in Restitution

[716] Christopher v. Zimmerman (2000 BCCA)
 /app seeks constructive trust decl for her former cohab, wants it governed by BC rather than Hawaii law
 no conflicts rules as these are not K claims but claims in equity for trust accounting or unjust enrichment

Conflicts Cans 24 of 26
    COL approach here similar to that in K: proper law is law of place where enrichment occurred (will be v
     debatable in many situations)
    TJ used domicile rule, CA sez incorrect – must choose law on basis of what claim is, which is claim in equity,
     not marital ppty
    Dicey & Morris elimination rule: If no real ppty or K involved, go by location of enrichment [718]
    Here, BCCA didn’t have sufficient facts – remit for trial


1. Characterization
 Property must be characterized for all branches: Juris, R&E, COL
 Characterize as movable or immovable (doesn’t precisely match CL terms); immovable is land & interest in
   land (so includes mtg, charges etc.). Concern re terr sov.
 LF decides where ppty is located, then characterize according to lex situs, not LF

[723] Hogg v. Provincial Tax Commission (1941Sask CA)
 Intestate succession in SK w/mtgs on BC ppty – are they taxable?
 In SK, movable ppty devolves acc to law of testator’s last domicile (& will be taxable under SK Succession
    Duty Act) but immovable devolves by LS
 LF (SK) sez interest in land is located where land is  BC law (LS) applies for characterization; BC expert
    testifies that under BC law mtgs are immoveables,  not taxable . . . under SK law (we no longer care what BC
    law wd say about taxability, just about characterization) Whew!!
 Rules won’t help us much if intangible ppty

ii. Immovables

Mocambique rule [727, 733] says forum won’t take juris over immoveables if action is over title, possession, or

Hesperides Hotels v. Muftizade: (1979 HL)
 Hotel is an immovable filled w/movables
  knows it can’t get Eng ct to take juris if title action, so sues for conspiracy to trespass, TJ allows
 CA sets aside for diff reasons,  appeals.
 HL: declines to reconsider Mocambique rule, sez you can’t do indirectly (through conspiracy claim) what we
   can’t let you do directly [735]
 Note this rule does not prevent action on K for sale of land or action in equity

[745] Duke v. Andler: (1932 SCC)
 action on K for sale of land in BC, all parties CA res, vendors sued in CA & ct ordered purchaser to reconvey
    to vendors, vendors then petition BC court for decl of title
 While this is matter for R&E, SCC says that CA action though appears to be an in personam judgmt purports to
    adjudicate title which it can’t do for land o/side its juris; won’t be enforced in BC

[737] Godley v. Coles (1988 Ont) – restrictive applic of Mocambique rule
 damage to condo by water leaking from other condo – wd cause arbitrary distinction btw damage to
    immovables vs movables
 absolutely no issue of title, & concept of trespass needs to be applied practically

[740] Ward v. Coffin (1972 NBCA) – exception based on K or equity
 ct will enforce K for sale of land & will order conveyance (then enforcement becomes issue: Duke)


Conflicts Cans 25 of 26
Lex domicili: law of district where person domiciled
Lex personalis: (generally) law where person lives
Lex patriae: law of country to which person owes allegiance
Corpore et animo, neque per se animo domicile est:
Mobilia sequuntur personam: movables follow person
Lex loci celebrationis: law of district where marriage celebrated
Lex loci actus: law of district where act takes place
Lex loci contractus: law of district where K made
Lex loci solutionis: law of district where K to be performed/paid
Lex monetae: law of district in which currency of debt incurred or obligation expressed
Lex validitis: law of district giving validity to act or transaction
Lex situs: law of district where thing situated
Lex fori: law of district where action brought
Lex fori rei: law of forum of ∆
Lex loci concursus: type of lex fori where several competing claims dealt w/simultaneously
Lex causae: law which (according to conflicts law of forum) is applicable to given case
Lex conveniens: most appropriate law
Forum non conveniens: ct’s discretion to decline to exercise juris where action may be more appropriately tried
Lex loci delicti: law of district where wrong committed
Actor regit actum: law of district conferring power on person to act in official capacity, governs formal validity of

Conflicts Cans 26 of 26

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