PIL by opzroyikiwizik



Leora Aster (leoraaster@hotmail.com)
Fall term, 1999
Professor P. Glenn
                     Private International Law,
     The Resolution of Multi-Jurisdictional, Private Law Disputes

1.   Intro & NAFTA………………………………………………………………………………………………5
2.   Legal Professions [I] ……………………………………………………………………………………….6

3. Costs & Fees [II] …………………………………………………………………………………………11
3.1. Scheme of costs & fees
3.2. Types of fees: Contingent fees & Class actions……………………………………………………14

4.   Choosing an appropriate forum: Intro…………………………………………………………………16

4.1. Subject matter jurisdiction: Court Structures [III]

4.2. Territorial (Can) /Personal (US) Jdctn [IV] ……………………………………………………………22

4.2.1. Domestic Jdctn Grounds of Jdctn
        Tag jdctn [Ont]
        Real and substantial connection = Morguard [Canada]
        Due process [US]
        Minimum contact = Int'l Shoe [US] Territorial jdctn & Transborder Collective Claims [ie. Class action, bankruptcy]…………………26
          General jdctn + Special jdctn…….………………………………………………………………………..…27 Def's challenges to jdctn……………………………………………………………………………….28
        Special appearance/ Motion to dismiss
        Interlocutory appeal
        Anti-suit injunction
        Submit and defend/ Default
        Declaratory judgement = pre-emptive suit……………………………………………………………………30
        Forum non conveniens

4.2.2. Foreign Jmnts…………………………………………………………………………………………..31 Standards for recognizing foreign jmnts, in general
        Real and substantial connection = Morguard [Canada]
        Blocking statutes and Hunt
        Full faith blocking clause Standards for recognizing Foreign Jmnts: Class Actions………………………………………….36 Standards for recognizing Foreign Jmnts: Bankruptcy……………………………………………37

5.   Provisional (Pre-Jmnt) Remedies [V]
5.1. Local seizure
5.2. ( World-Wide) Mireva injunctions…………………………………………………………………...…38

6.   Pleading & Discovery: How a suit proceeds [VI]…………………………………………………...39

7.   The Role of Foreign Law = What triggers the choice of law process [VII] .……………………45
7.1. Attitude of dif jdctns to wh the choice of law rule has to be applied……………………………46

       Attitude of dif jdctns to choice of law, and judicial notice of foreign law……………………………………………47
7.2. Choice of law: process…………………………………………………………………………………..48

8.   Choice of Law: Methodology [VIII]……………………………………………………………………..49
8.1. Definition of choice of law rules……………………………………………………………………….50
             Legal relations
             Connecting factors
             Governing laws
8.2. Definition of choice of law methods [Consider the intent = Interest Analysis]...……………..51
8.3. Example of choice of law rules
             The proximaty principle [Que, a.3082]

9.      Direct Regulation of Foreign Activity [IX] ……………………………………………………………53
             Limitations + Control

10. Tort & Delict [X] …………………………………………...…………………………………………...…55
             Lex fori rule = your choice of forum law applies to the merits of the case.
10.1. Tort: No rules approach = Interest Analysis (Choice of law methods)……………………..56
             3 sits: Injury in your own jdctn, Common domicile, Product liability
             Second restatement test: Most sig rel = Another way of reformulating interest analysis……………………………..59
10.2. Interplay btw PIL, tort cases, and constitutional law
10.3. How to know what is a prob of tortious / delictual liability

11. Contract [XI] ……………………………………………………………………………………………….61
11.1. General Principles: Subjective + Objctive views of party autonomy
             Proximaty principle
11.2. Limitations on subjective and objective views…………………………………………………….64
11.3. What are the constititutional limits of states on party aut?………………………………………66
11.4. Knowing what is a K prob/ Determining the domain of the law governing K………………….67

12. Security on Movable Property [XII] ……………………………………………………………………68

- 3 Qs. 2 problems, and 1 essay. Can do 2 of the 3 qs.
- Essay is very open ended - relates to NAFTA objectives.
- 2 probs are very general, large - large litigation phenom. Must canvas the areas of law we've looked at from the perspective of a N Am law firm.
- 3 hours; open bk.

- Each prov is treated as foreign in Canada. In Can, provs ARE foreign.
  In the US, foreign means outside US. In US, states are NOT foreign.

1. Jurisdiction:

1.1. Subject matter jdctn - Solve this by looking at the rules of the crt.
               Is the subject constitutional/ maritime [Can]/ diversity [US] - > Fed ct
               General jdctn or special jdctn?

1.2. Territorial/ personal jdctn - Solve this by looking at the rules of the crt.

a) Domestic jdctn: How courts assume jdctn over a case - what standards they must apply
to determine if they're allowed to take jdctn.

b) Foreign jmnts: Can another court accept the jmnt of the first court? What are the
standards for recognizing foreign jmnts?

2. Choice of law rules (Can) OR methods (US) - Solve this by looking at the rules/ methods.

      Class      Forum non      Tag       Anti-suit       Full faith and    Blocking       LOCAL             Pre-Trial
      Actions    conveniens    jdctn      injunctn       credit [and        statutes       seizure           Discovery
                               ie.        ie. def        thus,              ie. to block   before jmnt/
                               Serving    asks for       transformative     discovery      WORLD
                               on a def   inj to         jmnts.]            in another     WIDE
                               who's      prevent                           jdctn
                               temp in    pltf from                         [ie. that no
                                                                                           Mireva injs
                               the        suing him                         docs can
                               jdctn.     in jdctn x.                       be
                                          Must                              removed to
                                          prove                             another
                                          abuse of                          jdctn] OR
                                          def's right.                      anti-

US    Yes        Yes           Yes        Yes            Yes                No             Yes - but only
                                                                                           seizure, ie.
                                                                                           only if gds are
                                                                                           in that jdctn
CL    Only in    Yes           Yes (in    Yes            Yes, due to        Yes, only      Yes; through      Yes
Can   BC, Ont,                 Ont)                      Hunt               in Ont         WORLD WIDE
      Que                                                                   [and           Mireva
                                                                            Que], to       injunctns
                                                                            prevent US
                                                                            into Can.
Que   Yes        Yes, a.3135   No         Yes            Yes, due to        Yes, re        Yes, used to      Yes
                                                         Hunt               discovery      be "saizie
                                                                            and re         conservatoire";
                                                                            asbestos.      now thru
                                                                                           WORLD WIDE
                                                                                           Mireva injctns
Mx    None;      No                       No             Yes, ie. similar   No             Yes, LOCAL        No
      Don't                                              to US full faith                  seizure -
      exist                                                                                "embargo"

- The US position is dif than Can position b/c:

1) b/c of validity of the tests [minimum contact, purposive activity]
                  [Thus prof would not expect Can defs to succeed as Asahi did on the reasonableness test]
2) b/c of the notion of gen jdctn based on intense business activity - this doesn't exist in Can.

[From just above Oct 4]: Can sue anywhere you want in US.
In US, intense bus activity gives rise to gen jdctn. This is non-existent elsewhere.
That does not mean that that state's law applies. - That is 2nd half of the course.
You get to forum shop in US in ways you don't get to do in Canada.

In US: Due process attaches to jdctn; Full faith attaches to execution.

                                         Pre-Trial Discovery                        Trial
Eng                                      NO
US                                       - Need notice pleadings; ie. notificatn
                                         - After notice, can discover any
                                         relevant material pre-trial. Not much
                                         left for trial.
                                         - Imp of fact pleading. Must get all
                                         facts in at discovery, b/c can't raise
                                         new things at trial.                       - Lawyers know Qs they'll ask at
                                         - Thus, lawyers know Qs they'll ask        trial.
                                         at trial.
CanCL                                    Controlled trial: Discovery is limited     Controlled trial: Trial is limited by
                                         by pleadings                               discovery. After pre-trial discovery,
                                                                                    you're limited to what you can raise
                                                                                    in trial.
Que                                      Yes, "interogatoire prealable".
Mx                                       NO discovery.                              NO trial. Rather, fact-pleading.
                                                                                    Lawyers only tell judges the facts;
                                                                                    judges interpret the law.
                                                                                    ie. Js must investigate the facts to ensure the
                                                                                    law is being properly applied.

International judicial collaboration re discovery in N Am:

        To what extent does each country           This goes under procedure:                To what extent is each
        provide for their own foreign              Hague convention [of 1968] on getting     country willing to aid litigation
        investigation, ie. investigation           evidence abroad = Signatories agree to    abroad? = Local assistance.
                                                   give effect to other signatories'
        abroad? Procedure.                         requests for discovery/ ev.
                                                   US + Mx are signatories; Can is not!

CL      So Canada is not that aggressive; it       Not signatory.                            - Canada uses blocking
Can     doesn't seek to use its direct                                                       statutes.
        discovery techniques against                                                         - Canada still uses
        witnesses.                                                                           discretionary authorization.

Que     Can have pre-trial extra-territorial       Not signatory.
US      - Direct discovery; blocked by             Yes, signatory.                           Discoverability test; NOT
        Blocking stats in Canada if used in                                                  reciprocity.
        - Also, can't do direct discovery of
        witnesses abroad; must use letters
        rogatory/ the Hague convention.
Mx      - No discovery. Rather, taking of          Yes, signatory.                           - No blocking statutes
        evidence from the party thru judicial                                                - Adheres to Hague Convntn.
        - Letters rogatory for witnesses.

                      Choice of law: Process
Can    Choice of law rules - neutral looking and bilateral.
       eg. in tort, either the law where the tort occured forum/ local law. But sometimes you
       also use methods.
Que    - There are over 100 articles in the CCQ stating choice of law rules in Bk 10. Includes
       connecting factors.
       - But the rules are subject to interest analysis (Choice of law methods), acc to a.3076
US     - Choice of law methods, in principle.
       The control is 1) diversity, and 2) constitution
       - But look in large measure to rules.
Mx     - Resistant to the application of foreign law, tho they're supposed to be applying it,
       given NAFTA.
       - Until now, choice of law methods. Since NAFTA, choice of law rules are more
       appropriate. But no one knows what sit in Mx is now.

Choice of law method = to consider the intent of the legislator.
                     - in the US, this is called Govt Interest Analysis.

It's inaccurate to think that each jdctn only uses one "method".
In both US and Can you really use both methods.
In US, use interest analysis (method) more frequently.
US - in principle int analysis, but look in large measure to rules.

- Choice of law looms large today: which law will guide the issue in a particular case.
- 3 areas of choice of law process as ex: 1) Tort & Delict
                                          2) Contract
                                          3) Security on Movable Property.

- Lex fori rule = your choice of forum law applies to the merits of the case. [Under Tort.]

                          Tort & Delict
CL Canada       - Radical (strict) LLD rule that applies to all tort sits.

Que             - LLD rule, subject to exceptions. [a.3126, 3128]
                - Also, no-fault regime, no matter where accident occurred.

US              - Interest analysis, except NY.
                - NY has Neumyder rules = apply LLD except in certain circs.

Mx              - Vague LLD rule: don't know if they've ever taken jdctn over a foreign ct and applied law
                other than their own [the law of the forum.]

- Almost all N Am jdctns end up applying the lex loci delicti in international
litigation. So when the case is an int'l case, only b/c of the foreign domicile of one of the
parties, that single personal attachment of one of the parties to the lawsuit does not seem to
impress courts that they can apply the law other than the lex loci delicti.


- It's harder to change your domicile than your residence.
- When you're born, a domicile immediately attaches to you - that of the parent w/which you
are living. This stays w/you til age of maj. Then your domicile may change if you move, w/the
intention of living there - that is the domicile then.

- NAFTA necessitated legislative changes. PIL had to be accommodating to dif
jdctns and try to arrive at harmonization of N Am law.

1. Introduction: PIL, harmonization of law, & NAFTA:                                           Sept 1

- PIL = re resolution of multi-jdctnal, private law disputes.

- PIL requires us to look at three primary issues:

       1) Issues of jdctn - Where to launch suit? Subject matter jdctn AND Territorial/
personal jdctn.

        2) Choice of law - dealt with in CCQ bk 10
                         - as applicable to case resolution (Conflicts of law), by
                a) rules
                b) methods - this is what the US uses, by interpreting domestic law.
                             US does not use choice of law rules; only ch of law methods.

        3) Recognition of foreign jmnts

- We look at these 3 Qs/ issues, and PIL generally, from a N. Am. perspective (ie. from the
perspective of a multi-jdctnal NAFTA law firm) b/c a global perspective is too broad.

- Course objectives:
    1) to think like a N. Am lawyer re litigation in N. Am.
    2) to address the theoretical questions on how much common law [small 'c'] is required
       to harmonize N.Am. common law.
       Can you have an efficient common market in a nation with diverse laws?

- Today, there is harmonization of law in the world. Law firms are increasingly multi-national.
Lawyers must thus often deal with the law of multiple jurisdictions, especially since NAFTA.

- To what extent do the 3 countries work tog to harmonize their laws?
  Prof thinks there’s been a great process of informal harmonization in N. Am – Huge
change in Canada and Mexico to accommodate NAFTA.

 But technically, NAFTA = a very skeletal common market.

                NAFTA: 1991                                                   EU:

- Freedom of mvmnt for gds and investment:       - Freedom of mvmnt, gds, investmnt,
Presumes you can have a common market            services.
for gds and investment.
- No provision for free flow of persons over      This includes fr of mobility of professional
the two boundaries [except termporary visas      services.
& commercial activity. But no immigration        ie. A lawyer from any EU country can move anywhere in
                                                 the EU and work immediately. After 3 y there, he can
policy, as there is in the EU.]
                                                 become a lawyer there w/o any exams.

- Nothing on harmonization of domestic law       - Yes harmonization of domestic law: Thru
                                                 European directives.

- No harmonization of rules re jdctn and jmnt    - Yes harmonization of rules re jdctn and
                                                 jmnt. Brussels convention created uniform jdctnal laws.
                                                          Rome convention created some harmonization of choice
                                                 of law. States that law applicable to Kual obs is uniform in EU.

                                                 - Great formal harmonization and unification

- Little formal harmonization in NAFTA.                        in Eur. Some Europeans say you can’t have
  Much informal harmoniztn, esp in Can + Mx.                   a common market.

- To make the N Am common market function, N Am lawyers must learn the jdctnal rules of
our 3 countries, and work w/them. [See Terr jdctn section - rules?]
- There are far more jdctns in N Am than in the EU.

2. The Legal Professions in Canada and the US:                                          Sept 8

- We study this because:

1) Procedure is governed by the lex fora = law of the forum = jdctn where the litigation occurs.
   Thus, the courts have control over the legal profession.

2) The rule in N. Am. is that of diversity of professions, and not harmonization (NAFTA
doesn't really affect the professions) so you have to know the rules governing local
professions. When firms have cross-jdctn cases, they have to work with local counsel.

Terms for lawyers in North America:

- Canada - barrister & solicitor (Most lawyers are both.)
- Que   - avocat OR notary (The notary is an open, liberal profession.)
- US    - attorney
- Mex   - abogado OR notario (The notary is a closed profession.)

NB: The Mexican notarial profession is dif than in Que, in terms of openness, but they
perform similar functions in both places.

There are two models of legal professions in the world:

1) European model - monopolistic, paternalistic, deontological (ethical)
                  - regulates the profession by way of monopoly, whose purpose is to
                       a) maintain high standards, and
                       b) enforce professional or deontological standards: The monopoly
              allows regulators to inspect offices and regulate conditns of entry + practice.

2) Liberal model - unregulated profession; no monopoly.
    - lets everyone in; if you're a bad lawyer, you will get sued and won't survive.
    - all you have to do is survive in the marketplace
    - Prof thinks the US used to rep this model, but now this model is really moreso Mexican.
    Developing countries are not in the position of being able to function with model #1. Don’t
    have the structures to support regulating Bars.

- Rule in the world is more of model #2 – liberal.

- US is in the middle of the two models, tho in some states, it is also model #2 - see below.
- Mx is very liberal. Developing countries can't function in a Monopolistic model.

Entry into the legal profession:

- Canada - university degree 3-4 y
            - law school - 3-4 y
            - bar school - 8 mos in Que; 4.5 mos in Ont
            - articles - 6 mos in Que; up to 1 y in other places.
            - Total = 8-9 y.

- US - in some states, no uni is required. Only articles + bar.

      - in some states, you DON’T have to belong to a bar at all!!!
      - Thus, in some US states, there is the model #2 – very liberal, open.
      - Most states – uni degree [4 y] + law school [+ 3y] + bar exam.
      - Total = 0-7 y.

- Mexico - reps the model in most of the world.
         - need only law degree. (4y) Then you are a licensiado. Then, to become an abogado, you
request a permit to practice from the ministry. This is usually granted.
            - has a voluntary bar assoc; there is no obligatory bar association there.

- Some countries have many bar associations; no single bar exercising control over its
members; the bars compete with one another.

- 900,000 lawyers in US
  300,000 lawyers in Mx
  60,000 lawyers in Canada. [Sarna says 35,000.]

Professional structures:

- In Mx and Eur, there are certain incompatibilities in the legal profession (=boundaries that
certain professions can't cross), which keep people out of certain kind of difficulties and which
have deontological objectives:

1) The profession is divided btw lawyers (avocats) and notaries. Can only be one or the other.
This is characteristic of the monopolistic profession. No advocate can get into the trouble that
a notary gets into, and v.v. Thus, the division is also a deontological division.

2) Professional v. non-professional incompatibility: ie. in some jdctns, don’t need professional
qualifications. In most jdctns, you do.

- In Que, these incompatibilities are much diffused.

- The only incompatibilities in N Am that the prof knows of are:
a) Que Code of Ethics, a.4.01.01
b) CBA, Code, Chpt 7 – if you do engage in another profession, can’t allow it to jeopardize
your professional confidence.

- N Am - there are no rules of incompatibility really.
          ie. there is no rule in N.Am from preventing lawyers from doing what they want to do.
        - there are only general rules stating that lawyers can't do anything that will jeopardize
their professional practice, ie. must act ethically.

- Conc: - The ethical burden rests on the indiv lawyer in Can and the US.
        - No one prevents a lawyer from engaging in other forms of commercial activity (as is
the case in the UK). eg. Can practice as both a doctor + a lawyer.
        - Thus, when a lawyer gets into difficulty, they individually bear the burden.

- So: What sanctions/disciplinary methods are there against a lawyer who is free to do what
he wants? -> See below.

Professional Liability:

Q - What if a lawyer you have hired in another jdctn messes up. To what extent can you sue
them for malpractice, and to what amount?

A - Lawyers have unlimited personal liability. Can sue them to any extent, for any amnt.
Lawyers are liable for the extent of dmg caused.

- Liability can be - joint = each lawyer is liable for his share, or
                   - several = can sue any lawyer (in the Pship) for the entire sum.

                 - joint and several liability = several. Ie. "liabilities are shared collectively and
                 also individually = all may be sued together and any one may be required to
                 pay full damages to the injured party." [Spetz]

- If a lawyer functions in a partnership, and his partner is liable, both partners (ie. all partners)
have unlimited personal liability. Full resp of lawyer for all dmg caused. This is classic law
in all 3 jdctns.

 But re liability, procedure and quantum is governed by the lex fori, and this varies greatly in
N. Am.

- In US, awards are often larger, b/c are decided by juries and jury awards are larger.

- Dmg awards in Mx are related to the cost of living there. So although technically in Mx there
is unlimited pers liability, dmg awards in Mx are really lmtd by amnt of dmg awards given in
Mx. [This is a tautology.]

- Both LLPs and LLCs (limited liability corps) exist in the US.
  In Canada, only Ont so far has LLPs.

 LLP does not change the rule of unlimited personal liability. The lawyer that acts wrongly is
personally liable still. But partners will not be liable.

  So, what pltfs do now is sue the other partners directly for failing to adequately supervise the
lawyer who acted wrongly. So, not clear yet how much LLPs really help protect liability.

- Thus, must be concerned w/availability of insurance!!


- In Canada, lawyers have obligatory insurance. In Que, pay 500$/ y. In other provs, v.
expensive. Some people go on non-practicing lists, b/c can’t afford. It.
In some of provs, self-insurance.

- Must know ins rules – imp. It impacts on lawyers suing other lawyers.

- In US, insurance reqs depend on the State. Varies. Most states don’t make insurance
Must ask counsel, when engaging them, what their limits of insurance are.

- In Mexico - varies, but usually no insurance is required. Lawyers don’t have ins in Mx b/c
people don’t have ins, generally, in Mx.
  Furthermore, Mx lawyers are an open, liberal profession. No one can impose requirement of
ins on Mxican lawyers. Thus, like in US, when engaging a Mxican lawyer, should ask them to
what extent they’re insured. [Prob none.]

Discipline/ Sanctions:

- If the liability rules are ineffective, to what extent can you call on a disciplinary agency to do
smthng about your lawyer?


- CBA Code = Code of ethics on the lawyer's role.

- CBA Code of professional conduct (csbk p.2) . See chpt 1 & 2.

 There’s a great deal of criticism of the CBA code, b/c people say that this doesn’t tell lawyers
what to do; it’s just platitudes.

 Prof – true; it doesn’t tell you what to do, b/c ethical codes aren’t supposed to tell you what
to do. Laws tell you what to do. Ethical codes tell you how to act “and what to be.” From
this, you are expected to figure out what to do.

- There is institutionalized discipline enforcement machinery in Canada. This exists as part of
the monopolistic, deontological bar.

- Canada is one of the only jdctns that allows for non-triggered inspections of lawyers’ offices.


- No longer uses code of ethics which defines the lawyer's role
  Now the ABA actually describes in written form exactly how lawyers must act in a legislation-
style code, which lays down exact rules. [This is since 1980s.]

- It is for courts to enforce the ethical obligations of their officers; not legal assocs. Prof: This
is a non-efficient means to decide matters of ethical conduct.

- US – Rules but weak enforcement. Opposite of Canadian sit.
  Can – Strong enforcement, but no rules.

- The sit in Calif now presents a problem in the US. Many say now that Calif should enforce
the rules.


- has no code of ethics comparable to the ABA. But has voluntary code re the role of the
voluntary bar assoc.

= no codes, and no enforcement = characteristic of an open, liberal profession.

Practice units, especially Partnerships:        [Sept 13]

- In N. Am., have full range of possible legal practice units:
     - sole practices
     - partnerships
     - corporations - but incorp of law firms is only allowed in some states and provs.
                    - only allowed for tax purposes; doesn't affect lawyer's personal liability.

- None of these forms affect a lawyer's personal liability, but can also have LLPs or LLCs.

- Mx has smaller firms (& Ps) (biggest is 70 lawyers), so smaller and fewer (litigation) probs.
  Can and US have bigger firms (& Ps), thus more problems.

- In Mx, loyalties of lawyers are with you. Probs of conflicts of int are v. rare.
  In Can and US, lawyers have divided loyalties. There is a big prob of confl of int. eg. re dif
lawyers w/in the same firm representing dif clients.

- Solution: Martin v. Gray solution.
  Now - harmonized law in Can and US.

Martin v. Gray [MacDonald Estate]: [SCC, 1990]

FACTS: Lawyer in firm 1 acts for pltf. Moves to firm 2, which acts for the def.
       Move for disqualification.

HELD: Where lawyer had knowledge of file, she is "tainted lawyer".
      Disqual is nec. in order to ensure fairness. Disqual here was automatic.

  Point: The more you know, the more you're tainted. Limit your knowledge.

  Test used here: "Possibility of mischief" in the eyes of the objective party = the US test.
This is a Draconian measure.
  Old Brit test = "Probability of mischief".

- Solution in Can + US - creation of Chinese walls = Cones of silence (Canadian term) =
create a barrier to isolate a new lawyer to prevent communication of info.

- CBA guidelines for 'cones of silence' = sep code wrds for computer access, sep offices, etc.
  Guidelines don't exist in the US [b/c no bar to do this there].

- Confl of interest - not a big prob in Mx; yes a big prob in Can and US.

Multi-Disciplinary Partnerships:

- eg. lawyers working for accountants.

- prohibited in every N Am jdctn except in Washington, DC.

- standard practice in Eur. Used to be forbidden. Now allowed, b/c Eur wanted to resist the
arrival of US law firms in Eur. Thus, small Eur firms didn't get big. Thus the US accounting
firms moved in and hired huge #s of lawyers.

- Some argue that in N Am, must maintain the prohibition b/c lawyers aren't accountants.

- There is now a move to develop multi-jurisdictional law firms so as to be able to resist
takeovers by accounting firms.

Corruption in N. Am.:

- Low-level corruption is widespread in Mx. and other developing countries. But lawyers are
more concerned w/higher level corruption and bribery.

- Int'l Convention on Bribery of Public Officials - by OECK.
                                                  - Concluded in 1997.
                                                  - Can, US, Mx all ratified it.
   Means that it's a criminal offense in to bribe a public official of a NAFTA country.

Effect of NAFTA on all that? Not v. much. [See Glenn's article in csbk.]

- Can: Canada does not permit big US firms from moving into Can; if they do, they will be
sued by law society for illegal practice of law.
  US: There is a de facto practice of foreign law firms moving in and testing the water. No
bar forbids this.

Burbrower v. Sup Ct: [949 P 2d 1 ] [Cal.SC, 1998]:
FACTS: NY firm practiced in Cal w/o authorization. Thus Cal client refused to pay. So NY
firm sued.
HELD: Client does not need to pay fees to NY firm which was practicing in Cal w/o

- Hardest to move into Can w/o authorization.
  Easier to move into US w/o authorization.
  Easiest to move into Mx w/o authorization.

- What does NAFTA do to provide legitimacy to mvmnt of lawyers w/in NAFTA countries? Not
much. BUT:

1) Citizenship:
 In Can and US, citizenship is NOT req to practice law in those countries.
 In Mx, citizenship IS req to practice law in Mx, but this is contrary to Mx constitution.     So
people challenge this by taking proceedings called ampero in Mx.

Ampero jmnts - always for INDIV. May find illegal discrimination.

2) NAFTA countries allow for creation of FLCs - foreign legal consultants = provide advice re
their home jdctn in a foreign jdctn. Eg. US firm providing advice re US in TO. = Harris Beach
& Wilcox ad - cartoon in Globe of today - can provide advice on foreign (US) law, but not on
Canadian law (obviously).

3) Firms - Q - to what extent can foreign firms enter another jdctns and practice the law of the
home jdctn? eg. Coudert Bros in Mtl.
           A - still unclear. Que law officially doesn't allow it, but hasn't yet sued Coudert.

3. Costs and Fees: Financing of Litigation:                              Sept 15

- Can, US, Mx all have dif rules re financing of litigation

- Can stands out for its regulated, institutionalized attitude re the financing of litigatn.
  US & Mx are vastly less regulated than Can re this.

- Relations/ probs btw pltfs and defs:
1) Costs: shift from one side of lawsuit to another.
2) Fees

3.1. Scheme of costs and fees:

- US rule - US is the only jdctn that adheres to this.
      = the cost of litigation is borne by each of the parties to litigation.
        ie. each side bears its own costs. The guilty party has no resp to pay the costs to the
person who wins the litigation.
        ie. the cost of the litigation is disconnected from the merits of the lawsuit/ underlying
justice of the case.

- Rule of the rest of the world = rule of shifting of costs to losers. [Ont, Que, Mx]
     = cost of litigation should follow the merits of the lawsuit, and thus guilty/ liable party
should compensate the other party.

- US didn't adopt rule of rest of wrld in order to encourage people to affirm their basic rights. -
ie. go ahead and sue, and don't worry about losing, b/c even if you lose, won't have to pay
other party's costs. ie. Provides incentive to pltf to 'access justice.'

- BUT exceptions to US rule: ie. ways US pltfs succeed in compensating themselves w/o the
compensation under the jmnt being diminished:

a) loser can ask, by motion, for costs to be shifted to winner.
    - [All the loser will get out of w/this is court fees, obviously.]
     - [Even rule 54 in the fed crt rules of civil procedure goes no further than this.]

b) statutory exceptions (100+ of them now in the US) which call for shifting costs in favor
of winning PLTFs:

    - This is called: "One way costs shifting." It only operates one way. It's only winning
PLTFs that get the costs, b/c giving winning defs their costs is exactly the type of thing the US
rule is designed to overcome.

    - REASON: We favor winning pltfs in certain circs by giving them costs b/c in some circs,
pltf acts not for himself only, but for a larger interest.
     eg. Where pltf vindicates a heroic case - eg. vindicated the protection of the envir - then that $ should go to
____, and the def should compensate me for the costs.

c) Punitive dmgs: Can: Not allowed
                     Mx: Not allowed.
                     US: Widely used a means of effecting occult shifting of fees. These are
dmgs over and above cost of comp to pltf. Can't forget about punitive dmgs if you're a pltf,
b/c this amnt will cover lawyers fees, and the full amnt of the dmg award will still be available
to you.


- Rule re fees is simple in the US: you pay your lawyer what he bills you. It is a K.

- In the US, if you think your lawyer is charging you too much $, you don't pay your lawyer.   Then your lawyer will sue you. Thus,
the primary means of resolution of fees disputes in the US is a civil action.                                 The lawyer needs another
lawyer, and you need another lawyer.
  Many clients are unhappy about this. But there is no institutional response to this in US. It is a v.
liberal unregulated litigation environment.

- Local bar assoc in US, tho, are now beginning to offer arbitration. In all states it is
consensual: Requires the agreement of both the lawyer and the client.
  [[In Que, it's an oblig process.]]

- So, US:
Costs - we don't shift them
Fees - we don't do anything about this until parties institute lawsuit.

- Thus, in US, liberal mode of judicial control over what lawyers do and charge.

US Rule 11:

- Thus, must be aware of rule 11 in federal rules of civil procedure: the signature of a
lawyer on a crt doc is ev that the lawyer has read the pleading/ motion/ etc.

- If there's a violation of Rule 11, monetary sanctions are imposed on the lawyer. The $ from
these sanctions goes to the court/ govt. ie. the general funding of the state. There is such a rule
b/c there is no other financial pressure placed by the crt on the lawyers.

- BUT courts are v. reluctant to invoke rule 11. Courts use the sanctions in a v. limited way.

- Some argue this rule should be abolished.

- Thus, the independence of the legal profession is carried over into the financing of litigation.

- R.11 is imp b/c:

  a) it discourages lawyers from signing something inappropriately, generally.

    b) it was created b/c pleadings rules in US don't req pltf's lawyer to find out much about
case. Thus, designed to put the burden on lawyers to investigate facts of case encourage
lawyers to take resp in taking procedural steps in initiation of the case. Thus, it discourages
lawyers from improperly starting litigation. Lawyers will only sign proceedings initiating
litigation if they believe the litigation is justified.


- Re costs, follows the Rule of the Rest of the Wrld = rule of shifting of costs to losers =
cost of litigation should follow the merits of the lawsuit, and thus guilty/ liable party should
compensate the other party. ie. Loser will have to pay costs of other side, in addition to his
own costs.
  This rule is codified in a. 532 of the Mx code of civil procedure.

- The costs are set out in the official tariff of costs [similar to Que./Ont tariff of costs] which tell you to
give so much money for doing things. But in Mx don't tell you how much $ this is. In Mx, formulated in terms of
cuotas. ie. X = 18 cuotas. Cuota = Calculated on basis of day's minimum wage.

- Tariff rarely goes beyond 50% of what lawyers charge in usual circs.

- There is no lawyer resp for costs; no r. 11.                Contestation of lawyer's fees are subj only to
civil action.

- Thus, v. close to US, but dif is that 50% of costs are shifted. Ie. Tariffs give only about 50%
of what lawyers would regularly charge in that jdctn for that type of work.

- So, for a cost shifting jdctn, Mx is v. liberal. All else - left up to parties.

- There is no institutionalized remedy to client to have lawyer's fees checked/ assessed in some kind of
simple way. If you're not happy w/what lawyer charges, don't pay, and lawyer will sue you.


- Follows the rule of the rest of the world: Canada shifts costs according to tariffs of
costs. Loser pays winner's costs. = cost of litigation should follow the merits of the
lawsuit, and thus guilty/ liable party should compensate the other party. = party-party costs.

 These tariffs are kept militantly up to date compared to rest of world. So historically,
Canadian cost tariffs give more than 50% of what lawyers would regularly charge in that jdctn
for that type of work.

 But re cost shifting, court has discretion: can decide not to follow usual rule that loser
pays if the way lawyers have run the case justifies this. eg. Can decide that if the winner won
in an abusive, expensive, time consuming, vicious way, then winner must pay his own costs.
[This is dif than US; there court can't do this.]
  Thus, create ways of controlling lawyer conduct.

- Can also punish losers by awarding solicitor-client costs - ie. loser must pay cost of
winner's lawyers and court costs, not according to the tariff of costs, but acc to:
  a) the solicitor-client cost scale = the lawyer's fees; not the market cost.
  b) There is also "solicitor own client costs". Loser must pay actually legal bill of the lawyer
that the winner hired. No limits on reasonableness.

 [Solicitor-client costs cannot be awarded in Mx. ]
 Solicitor-client costs are party-party costs.

- Thus, party-party costs (shifting) = loser pays
        solicitor-client costs (discretion) = market value.

- So the Canadian position starts from costs shifting, and adds discretion (punish winner/

- In Canada, there is the position of lawyer liability. This is why we have no r.11 in Can - we
don't need it. If a Canadian lawyer acts in a way that would attract r.11 in the US, (ie. signs
doc "inappropriately"), the solution is to hold lawyer personally liable for costs of what lawyer
has done.


- Que is different within Canada.

- Canada - to challenge fees, you can move for taxation / assessment of the lawyers bill.
This is unique in N. Am. to Canada. Taxing officer determines to what extent the lawyer's bill
is reasonable.

Solicitor-client fee evaluation determines solicitor-client costs.
     FEE             ->                     COST.

Prof: Solicitor-client costs COMES FROM solicitor-client fee evaluation.

- Que is dif b/c Que doesn't have concept of solicitor client costs/ solicitor own client
costs. [I think this is right. Double-Check.@]

- Que created a bar-operated system of arbitration of lawyer-client fee disputes.
  It is province-wide and it's OBLIGATORY, if either lawyer/ client requested it.
  It displaced civil litigation over lawyer's bill. It's a v. effective institutional means of
controlling the level of cost awards made in Que.
Not taxing/ assessment

- Q - extent to which Que will raise level of costs being shifted.

3.2. Types of fees: Contingent fees & Class actions:

- Contingent fee = a fee payable to the lawyer contingent on the outcome of the case.
Usually, zero is payable to lawyer if case is unsuccessful, and a stipulated % is payable to
lawyer in case of success.

- Contingency fee - embedded in K at outset. It is a prior K.
  Palmerian fee - like contingency, but decided after.
- Cont fee = pacta in quota litis.

- Opinions re cont fees:

1) Cont fees are opposed by those who say it biases the lawyer - he has a financial int in the
outcome of the litigation.
   Thus, cont fees were trad outlawed in CL, + in CivL in Can.

2) US: cont fees give access to justice to those who would otherwise not have it.

- Cont fees - available in all provs in Can and states in US except ONT and MX.

- Cont fees are permitted in Que even tho the CCQ prohibits them, b/c those provisions have

- Cont fee - used often in US, but it is not widespread in Canada. Haven't been used in
Can in about 10 y. Prof thinks this is b/c it's rel to Canadian costs rule: if you lose, you have
to pay the costs of the def. Who does def seek to recover costs against if its cont fee?

- Cont fee - usually in personal injury type cases.


- now exist in all US states, Que, Ont, & BC.
- no class actions in 7 Canadian provinces and Mexico.

- [class action = amparo collectivo]
- In Mx, people are now talking about how you can use class actn to protect groups of people
in addition to indivs.

- US: class actions are usually funded by the lawyer, who is funded thru:
        - TP financing
        - lawyer takes risk, and does work on contingency fee - Most common.
        - bank financing [= discrete form of TP financing; no ads taken in paper]

- CAN: Has syndicates of law firms. Kual arrangement are made btw members of syndicate
as to how they will share costs of class actions.

In can, people are reluctant to be a class representative, b/c of their vulnerability to potentially
huge costs. - and Canadian cost rule - loser pays costs.

So, need supplementary financing in Can to take class actions.

- QUE & US: There's a class action fund which removes the pltf's liability for costs!!

- QUE: In Que, the class action fund is done thru governmental money. In US, not thru gov't

Que class action fund - successful device to make class actions operative in Que.
Win-win sit.

- ONT:
Less money in fund for class action. Provides contingency fee. Also provides coverage for
costs. Prob w/Ont fee - no $ for lawyers fees in class actions.
Thus, most Ont class actions have to run on contingency fee basis.

- BC:
- no fund.
- instead, say, in class actions, no cost shifting [?], and there's a contingent fee. Ie. US
solution for class action.

- So, in N Am, to institute a class action, must pick what jdctn will be most advantageous.
Que is prob the most advantageous jdctn for class actions in all of N Am!!

4. Choosing an appropriate forum:                               Sept 20

- Must ask: 1) where in N Am are you going to launch your lawsuit?
            2) where are you going to defend your lawsuit?

- Choosing an appropriate forum to sue in depends on 2 sets of rules:
1) Subject matter jdctn (Can/US) = rationae materiae (Que)
                                = what level of crt should deal w/that subject matter.
                                - rules are not consensual but of PO

2) Personal jctn (US) = Territorial jdctn (Can) = rationae personae (Que)
                     = In what forum/ territorial jdctn should the case be brought, (given the
                       subject matter)? Must consider the territory over which a crt has jdctn.
                     - Consensual based (not of PO) = agree where to sue on merits of the
                      case. Consent can be explicit or implicit - depends on parites' conduct.

- Ex: Bre-X case: Involves Canadian defendants, most of which are based in Ontario. Class-
members in investors scattered thru-out Canada and USA. Have some defs in NY, Tx, and
pltf class reps in Tx. [McNamara v. Bre-X [32 F.Supp. 2d 920]; Tx: www.brexclass.com; Ont: www.brexcanact.com]
      Thus far, the class action suits have been served on the Canadian defs by both
Canadian and US pltfs. One action - is taking place in Ont Sup Crt, and
                           the other action - is taking place in the Tx District Crt (Eastern Div).

NB: Choice of law = What laws will that territorial jdctn apply?

4.1. Subject matter jurisdiction: Court structures:

- UNITARY court system of general jurisdiction -> it is a European court structure of a unitary
state -> adapted here b/c of difference in state structure.

- In the US, there is a concept of Federal law and State law.
 In Canada, there's no separate Federal law and State law. There's just general Canadian law.


- BINARY system of courts.
- There are 2 kinds of matters: Federal and State.

  FEDERAL COURTS: - resp for fed law.

  13 Circuit Courts [A few states per circuit: #1-11 (geog), DC (geog), and Federal (topically defined: IP)]
  91 District Courts [Most often, 1 state = 1 circuit, except NY and CA]

- Thus, District courts = courts of first instance = s.91 but for USA.
        Circuit courts = courts of appeal.
        USSC = ultimate CA; but not automatic. Must go on certiorari, ie. SC agrees to hear.

   STATE COURTS: = courts of general jurisdiction
                - responsible in principle for state law, ie. Tort, K, criminal.
                - elected judges.

    State Supreme Ct - Can decide state AND federal law, unless matter is exclusive to fed ct.
      Crt of Appeal - responsible for state law.
        Trial Ct - responsible for state law.

- Thus, in ever state there are three levels of courts.
- One can appeal from the State Supreme Court to USSC, but only if - get certiorari
                                                                         - it's on a constitutional Q.
  If so, they are constitutionalizing state law on a matter referred by state court.

- Judges to State Courts (the 3 levels) in the USA are elected by local people.
  Thus, they are suspected of having an inherent institutional bias in favour of local people =>
US constitution recognizes this and provides remedies, re Diversity, below.

- Fed ct system is equal if not more imp than state ct system.

When do the federal courts have jdctn? ie. When is fed law applicable?:                            Sept 22

1) Constitutional issues - ie. when there are questions re the US constitution + Bill of Rights.

2) Federal statutes and treaties, including some common law:
     - most common law is State law, eg. private K law
     - criminal law is State law, except where it's been constitutionalized, as is often the case.
     - Even tho a matter is not officially a Federal matter, Fed courts can sometimes claim
      jdctn over the matter through CL. But this is controversial.

3) Diversity: = when US citizens are domiciled in different states
     - Fed cts have jdctn if a) the suit is for more than $50,000, and
                             b) there is complete diversity = can not have even one local pltf
and one local defendant among many foreign pltfs and/or many foreign defs.
     - The reason for Fed jdctn is that state judges are elected by local people, and so they
are suspected of being biased against non-local litigants.
    - Div is imp in US b/c since there are so many states, there is alot of cross-border litigatn.
    - [In principal, the matter these cases deal with are State law cases.]

4) Def's removal power if there is diversity:

      - State cts are pltf oriented because juries sit in them [*], so pltfs want cases tried in
them; Also b/c judges are more favorable to a local pltf, b/c judges are elected by the State.
        Thus, if a pltf decides to sue in a State court, then the def has the power to remove
the case to the Federal court on any of the above grounds, given the fear about jury bias. ie.
They can make a Federal case out of it.

- A def can remove, from State to Federal court, in cases of
1) diversity, and
2) fed matter. But - How can a pltf sue in State court when it's a Federal matter? [*]
  The case can be in State court if Pltf has chosen state court, b/c its more favorable to local

- Thus, in US, the basic attitude toward fed law is v. generous, b/c even common law is seen as attached to fed law.
[Expansive notion of what federal law is.]

- Diversity jdctn assumes even greater importance in Canada [b/c a j will be more biased to a Canadian party] and re
- Diversity jdctn is imp re NAFTA b/c there are so many states, so more inter-state litigation, and js will
be biased to foreigners.

What law is applicable in a Fed ct re a State law matter?:

- Swift v. Tyson = historical basis for Fed courts ruling over state private law in div cases.
                 - said that Fed courts must apply general common law and are not bound by
State rules of common law. Fed courts must apply Federal common law of their own making
even in diversity cases, which in principle are really state law matters. This was OVERRULED
in Erie RR.

- Erie RR: [USSC]: Overturned the whole philosophy of the US court structure. Held that sit
has gone too far.
                    Held: Can't apply Fed common law in diversity sits in purely state private
law cases. Rather, in Diversity cases re private law, Fed court must decide according
to conflict of law rules. eg. [[In tort cases - here it was a tort case]], Fed crt must guide
itself by the law of the state where the action was initiated.

- Commentators in US say - outside diversity, notion of fed common law is alive and well.
Fed crts in US have developed jurisprudential common law in many fields.

Practical examples as consequence of Erie:

Eg: Ont def and NY pltf. I am lawyer for Ont def.

1) Subj matter: - Where do you want to be sued if you have to be sued in the US? If def is
sued in state court, he will want to get out of there, by instructing local counsel to remove, on
grounds of diversity. He will succeed b/c of complete diversity. So def is now in Fed ct.

2) Personal (territorial) jdctn: As btw NY and Ont, the case must be sufficiently connected to
either state to be heard there. Damage had to be suffered there, etc. [Must decide "venue".]

3) Choice of law: Which law must be applied to this case?
  How do you know which law to apply when it is a multi-jdctnal case?
  Apply choice of law rules (in Can)/ methods (in US).
[[In multi-jdctnal case, if US law applies, it's US law.
But what if one party is from Ont and one is from NY? So either NY State or Ont law?
In federal court, NY law that would be applied if ? in NY case. But it is not in this case.
- In this case, 3 choice of laws can be applied:
                   a) federal
                   b) state
                   c) provincial.

Prob of procedure = fed
Prob of substantive law = state]]

- Klaxon Electric = the logical consequ of Erie
              = Principle: In Federal Crt, in a Diversity case, State choice of law applies.
                NOT Fed law re choice of law rules/ methods.
              = in choice of law cases re Diversity, apply State law (choice of law rules + substantive state law) .

- Thus, Klaxon Electric has broadened the Erie definition of state law.

4) Need proof and application of applicable law - ie. affidavits and testimony by Canadian
lawyers filed in NY crt to tell NY lawyers what Canadian law is. Default rule is that NY law
applies if not stipulated.

5) Execution of the jmnt:- ie. registration. Depends on where you sued in the first place.
Ie. foreign decisions respected -> 1996. Can applied and recognized US jmnts, whereas
before 1991, they did not. Respecting foreign jmnts.

If Ont law is applicaple, a valid argument for def is that Ont jdctn is applicable, not NY -> an
inconvenient forum. So def would decline NY has the convenient forum that Ont law applies.

Bre-X ex:
Class members throughout Can & US.
Texas class rep.
US defs in NY.
Can defs in Ont.

All of the big Can banks and investment houses are sued in Tx. Motion is for authorization of N Am class.
How is this case to be decided on jdctn?
Class actions and jmnts cannot be extra-territorial in principle.

What are the grounds for fed ct jdctn in these circs?
1) Constitution and bill of rights?
2) Diversity. - The actn is dismissed against the Can def w/no discussion of the diversity issue at all. Why doesn't diversity exist in
these circs? B/c there is not complete diversity. Why? B/c there's a Tx rep and a Tx def.
State court would not be biased here. Loyalties on the part of the judge are equally divided. There is not complete diversity in the
case. Need complete diversity.
Thus diversity cannot be est in these circs.

So, the law applicable is NOT state law.

Federal law dealing w/ subject matter was federal. Federal US security law does not apply to Canadian investors w/relation to
Canadian defendants. Federal Securities regulation is meant to protect US investors and market -> does not apply extra-territorial,
but only to US.

The Q of territoriality of law in the US also is re subj matter.

Review of above:
NAFTA/ Bre-X prob: We discussed subj matter jdctn in N Am.
Prof's prob w/Bre-X: Why is this a diversity case?
Last class prof said best ans is: B/c not complete diversity, b/c in addition to Tx class rep, also Tx Def.
Why is there not diversity in Bre-X?
Actually, a better answer might be b/c of what's going on in Canada. Completely foreign pltfs v. completely foreign defs. Entirely
foreign commonality.
All of parties in this dispute were Canadian parties.

Main Q we have been/ are looking at: Subj matter - does it deal w/state or fed cts?


- [Mex has 32 states.]
- Mx has a FEDERAL, BINARY crt system b/c it’s a federation. V. similar to the US model.

Fed cts:
- Supreme Court
- Court of appeal
- Distrinct court

State cts:
- Superior court = CA court
- Trial court = court of general jdctn.

- Difs btw Mx + US:
a) The main dif: No elected js in Mx. This tells us smthng about how system operates.
   The state judges are appointed by state legislatures.
b) No diversity in Mx
c) No removal jdctn in Mx.
d) No intermediary state appeal courts in Mx.

- NB: State courts can decide on state AND federal matters. [**]

- What are the grounds of jdctn of fed cts in Mx?

1) Constitution & Mx bill of rights

2) Fed law - consists of legislation, treaties, and fed common law in Mx.
NB: There is a codified federal common law in Mx.
[Mx is a Civil law system; We are referring to small 'c' common law. There are also state

3) No diversity because in Mx there are no elected judges.

4) No removal. Rather, removal is part of gen jdctn of state ct. [What does this mean?*]
State courts can decide on state and on fed matters. [??**]

- Even tho these are appointed js, and therefore we don't create diversity jdctn, there is great
distrust in Mx of state js.

- There's no formal supervision in Mx, so the system creates forms of supervision. ie. ampero.
 In Mx, something close to diversity had to be invented jdctnally, so "Ampero" was invented.

  If you want to sue smone in Mx on a state law matter in state crt, the def hasn't got diversity/
removal as a way of getting out of state crt, which is bad news. [This is big dif from US.] This
led to the development of Direct/ Single Instance ampero.


= remedy/ relief. It is the general remedy available in Mx law.

- You can ONLY initiate ampero AFTER you have gone thru the state courts, ie. the
State Trial court -> the State Superior (CA) court. THEN you can apply for ampero to the
Fed District Court. [ie. Must exhaust local remedies.]
  Prof: This is a big waste of time. In the US, a def can remove directly to the Fed ct.

- are two kinds:

1) ampero you can initiate in fed district courts = Indirect / double instance ampero
                                a) initiated in habeas corpus proceedings.
                                b) in constitutional / bill of rights qs/ sits.
                                                  [[There is constit review in Mx, but it's on a case by case basis.]]

        - The cases are decided on a case by case basis: If a law is federally
unconstitutional, it's only unconstitutional as applied to you. It doesn't strike down the law.
Thus, there is constitutional protection of rights only on an "individual" basis.

2) ampero you can bring directly to the Supreme court = Direct /single instance ampero:

         - If lose in state Trial court, then appeal to state Superior court (ie. CA). If you lost
there, then can get Ampero directly to the Supreme court.

           - this is ampero against violations committed in definitive judgments
           - this is tried in a single instance in the Supreme court.

         - "occurred because of complex social and political factors pressuring the
SupremeCrt to accept an extremely controversial interpretation of article 14 of the 1857
Constitution." [Zamudio, 41]

           - allows you to go a) from state superior ct to Fed Supreme ct OR
                              b) cassation ampero cases go to Fed CA. [**? I think this is wrong.]

- SO in Mx, Ampero is a remedy to the weakness of the state courts in the same way that
     In US, Diversity is a remedy for weakness of the state courts

- Result - get 2 levels of opinion. 1) TC-> State sup C;
                                    2) State sup C to Fed CA. [** Does he mean Fed Sup C?]
  Same in US, but dif is that in Mx, the second level of appeal is into the fed ct system.

- Ampero is simple to describe; very complex in operation.

CANADA: Sept 27

- UNITARY court system. There is only one level of court, unlike the US and Mx.

- The Can Fed Ct is antithetical to the crt structure we have in principle in Can,which is not

- Rather, although we have a fed govt in Can, we have a CONfederal ct system (from word
confederation). ie. In principle, in each prov, there's a provincial superior ct, which is the
only court which is competent in principle in provincial and federal matters.

- Each legislator does not get a ct charged w/its legislation.
  It's presumed that the cts interpret the laws of any legislative authority.

- A confederal ct structure means that each element of the confederacy has kept their own
cts, which are competent in federal and provincial matters.

- Our state (prov) courts have federally appointed judges (appointed by the fed govt).

- SCC is a supreme court which is completely dif from USSC. It's competent in fed
matters, but also competent in provincial/ private law matters, unlike USSC.

- Thus, it's a unitary ct structure in which there's an imp federal element.


  FCTrial Div
  FC of Appeal - only since 1970; before was only the Exchequer ct.

Plus provincial (inferior) cts - eg. Ct of Que, Ct of Ont.
We have such provincial cts b/c in order to have proper interpr of prov laws, legislators
wanted prov cts.

- Thus, in Can, we have three ct structures!!!! Provincial courts, Federal courts, and the SCC.
This is b/c we have a federal court structure within a federal jurisdiction.

- Our ct structure is hard to describe, but v. simple in operation.
We call the cts "inferior" b/c means you only have jdctn over special areas, carved away from
fed ct jdctn. Who controls the bounds of the specific jdctn? The superior ct.

Constitutional origins of all this:

- Prov side: s.96. of Constit - Appntmnt power for js of sup ct is in the fed executive.
           That means that provs cannot appoint js that exercise superior ct functions.

- Fed side: s.101 - Fed govt can create cts for "the better admin of the laws of Canada".
          So, if you're going to have a fed ct, it will have jdctn over fed law.

Grounds of Fed jctn in Can: [compared to US/Mx]:

1) ALMOST NO fed CL in Canada. [See Que North Shore, below.]
  The only exceptions are: - Maritime law
                           - Crown law which is applicable to Aboriginal people.

 Fed law is defined narrowly in in Canada b/c fed law is not attached to a legislative jdctn.
 So federal common law is not jdctn specific.

2) Fed jdctn is NOT re constitution + Bill of Rights. The provs have residual jdctn over this.
3) NO diversity in Canada.
4) NO provision for removal to fed cts. Don't need to, b/c the judges are already federally

- Que North Shore: [Fed Ct] = equiv of Erie RR in US: Answers why you need a fed CL.:
Principle: Fed Ct of Appeal says: For fed court, have to show fed law applies. There's no fed
common law (re eg. private K common law) in Canada at all. So the definition is much more
narrow than the def widely accepted ev. else in N Am.

4.2. Territorial (Personal) Jdctn and Foreign Jmnts:                                   Sept 29

a) Domestic jdctn: How courts assume jdctn over a case - what standards they must apply
to determine if they're allowed to take jdctn.

b) Foreign jmnts: Can another court accept the jmnt of the first court? What are the
standards for recognizing foreign jmnts?

4.2.1. Territorial jdctn in N Am: Domestic Jdctn: Grounds of jdctn:
There are four ways to deal w/the prob of terr jdctn in N Am:

1) Provide stipulated grounds of jdctn. [= way they deal w/it in EU.]
2) General clauses = result of people giving up on stipulated grounds of jdctn.
3) General clauses which are constitutional in character.
   [Constitution is fed ct jdctn.]
   Constitution gen cl is dif from reg gen cl b/c legislature can't deviate from it.
4) Combinations of the above.

1) Stipulated grounds of jdctn: - Tells parties that in these sits only, the courts of x will rule.
                                - 2 jdctns in N Am follow this: Que and Mx.

a) Mx starts w/the classic rule of domicile of the defendant. Pltf should have to go to the
defs' domicile. Why? B/c if pltf wins jmnt, he doesn't have to go anywhere else to execute it.
Def's assets are there. This reason favors the pltf.

b) Prorogation: adding to the jdctn of a court. This is possible in Mx. [NB: It's another Q wh
you can take jdctn away from a court.]

c) Performance of a K Have this in Mx.

d) Place of a tort. Have this in Mx.

These are the only ways Mx js have to found jdctn in their own cts.


- A kind of modern, civil law, more pltf-oriented set of rules.
- To know this, must look at CCQ.

a.3134 - Pltf goes to def's domicile. - Same rule as Mx.
                 - It doesn't matter what claim is made against the def.

                     - You can sue a Que domiciled def about something that happens anywhere
                     else in the world. [= Principle from recent case of Investors Group v. Hudson]

                      - Def of domicile at a.75: A person can only have ONE DOMICILE but many
                     residences. Everyone has a domicile.

a.3148 par 1: In pers actns of a patrimonial (eg. not fam law) nature (K / delict), Que ct has
       jdctn if:

            (1) def has his domicile /residence in Que [repeats a.3134, but specifically for pat regimes]

            (2) def is a legal person (co),
                            a) not domiciled in Que but has an establishment in Que, AND
                            b) the dispute relates to its activities in Que.
            ie. a foreign co, eg. in NY, Mx, Ont, but must have an establishment here.
            [US calls this "special jdctn".]

           (3) fault/ dmg/ injurious act/ Kual oblig was to be performed in Que
                     - [Codification of def of "cause of action".]
                - v. pltf friendly. A Que pltf has only to show that ONE element of the case
        took place in Que.
                  - Best ex of this = Wabasso. What happened in Que = the fire. Pa.
        Manufacturers did not notify the Que workers of how to maintain the washing
                         - What happens if a person is injured in NY, and comes back to Que and continues to suffer from the dmg? Is that a place
        where it can be said the dmg occurs in Que? We don't know the answer. No jprudence on this.

            (4) parties have agreed to submit dispute to Que ct, ie. Pos consent; prior to event.
                  - Same attitude of Mx. Prorogation - adding to jdctn is acceptable.
          (5) def submits to its jdctn. Passive pos consent; if def accepts merits of the case,
        he is immediately considered to consent.

a.3148 par 2: But if parties agree to a foreign jdctn, Que crt does not have authrity. Dif in Ont!

a.3149 - consumer, employment K cases
a.3150 - ins K cases.

a.3152: For a real actn, Que crt has jdctn if the prop in dispute is situated in Que.

a.3135: Forum non conveniens.
        Even if Que crt has jdctn, it may, on application by a party, decline jdctn if it
considers that the auths of another country are in a better position to decide. [Like a.3148 par2]

a.3136: Forum of necessity.
        Even if Que crt has NO jdctn, it may hear case if
               a) the dispute has a sufficient connection with Que AND
               b) where proceedings outside Que can't be reasonably required.
       ie. where it's impossible to sue elsewhere, Que has jdctn.
       Meant to be of v. limited application.

a.3129: re dmg suffered from exposure to raw materials: Designed to protect Que cos from
             being sued in US re asbestos that originated in Que

a.3138: a Que crt may order provisional measures even if it has no jdctn over the dispute

a.3139: where a Que crt has jdctn re principal demand, it also has jdctn re cross/incidental

- For Real actns (ie. to assert a real right eg to recover prop) - a.3152
  For Pers actions (ie. re tort/delict) or mixed actions - a.3134, 3148, 3149, 3150

- Que looks like Mx philosophically, but has progressed further than Mx in providing
options for Territorial jdctn.
  In Que, no "tag" jdctn - ie. A person from outside of Que is not vulnerable from coming
outside of Que and being served here. [Does this exist in Mx? *]

- Everywhere else in N Am apart from Que there is a combination: Most Can CL provs and
US states function this way.

2) Stipulated grounds of jdctn and general clause:


- Rule 17 in Ont sets out a list of stipulated grounds of jdctn.

- Ont: Basic principle is v. dif: Here, Jdctn is based on service (in/out of jdctn, w/ w/o leave).
ie. If you can personally serve initial doc on def w/in Ont, crts of Ont have jdctn. Doesn't
matter if def was in Ont temporarily = TAG Jdctn! ["Tag jdctn" is US language]
        But can't trick def into entering Ont to serve him. [JICP]

- Carrying on business in Ont is suff to est jdctn. You don't have to have an establishment or
ordinary residence in Ont or have the action relate to Ont, as you do in Que.

- Where Ont distinguishes itself from Que and gets closer to US is in rule 17.03.
  r. 17.03 it says that the stipulated grounds of jdctn are not exhausted.

 r. 17.03: = You can seek leave of the court to serve outside Ont on a foreign defendant.
           = ex parte motn = in absence of other party.
(1) where r.17.02 doesn't apply, crt may grant leave to serve outside Ont
(2) a motion for leave to serve outside Ont may be made w/o notice
Must explain why you want to serve outside the court. [This is not in r.17.03]

 You can do this if there's a REAL + SUBSTANTIAL CONNECTION to the case in Ont.

This language comes from the Morguard constititutional law case:
Dealt w/enforcement of judgements. SCC held: The jmnt from one prov will be
enforced in another if there's a real and substantial connection to that prov.

What's a real and substantial connection? "No one knows".

3) General clauses:

- There are general clauses that are not consitutional in nature, that stand by themselves, that
give territorial jurisdiction: In Can: PEI, NS.
                               In US: Calif.

These jdctns will accept jdctn for a matter arising anywhere in the world = TAG model.

- How do these jdctns control the exercise of exhorbitant jdctn?
They have to be reasonable in their expectations of enforcement, b/c otherwise they run the
risk of getting an unenforceable jmnt.
May not be able to exercise jmnt against assets in another prov. [S]

- There is a constitutional control over such clauses in Canada - s.92(13) [Prop + civil rights].
But a constitutional challenge has never happened in Canada b/c the judges in these cases
are federally appointed judges.
Thus, there have been v. few territorial excesses in Can jurisprudence.

4) Constitutional General cls: General clauses which are Constitutional in character:

- This exists when the constitution must be made explicit or enforced.
- If there's territorial jdctnal excess, the limit = Fed court's jdctn over constitutional matters.


- The applicable constitutional general provision = a.14 = the DUE PROCESS clause.
  This provision is very imp. It matters to territorial jdctn.

- Int'l Shoe [USSC, 1944]: For a state to assert jdctn territorially, it had to show
"MINIMUM CONTACT" w/the state. It interpreted a.14 this way.

 What does "Minimum Contact" mean?:

 All this tells us is that there are limits, and you better not go beyond this. Other than that,
this language tells us very little.

 The USSC has allowed a great deal of liberty to indiv states to decide what they want to do.

 More specifically, this term means:

1) Having assets/prop w/in a jdctn is NOT a minimum contact. [Sheffer [1970 US]]

  Prof doubts that any CL judge in Can would say that prop constitutes a real and substantial

2) Tag jdctn IS still a minimum contact. ie. If Def comes to US, even temporarily, CAN serve
him; this is suff grounds for territorial jdctn. [Varatzic]
   Varatzic [NY]: FACTS: Bosnian serb leader came to NY, was served writ in NY for violation of the US Alien Tort Act.
                  HELD: Service in NY on Varatzic was suff grounds for personal and territorial jdctn.

3) A def's INTENSE Corporate activity in the state = a basis of "generl" territorial jdctn in US.
  If the activity is less than intense, it can be a basis of "special" territorial jdctn.
  [This rule re intense activity does not exist outside the US.]

4) Where there is "Single act jdctn". This is best discussed in Asahi [csbk p.57: Good sum.].

  Asahi: Principle: If a manufacturer is sued in the jdctn where dmg caused by his product
occurred, it is unreasonable to ask him to litigate there if he has to come from v. far away.
[eg. Jap manufacturer sued in Calif for dmg in Calif.] It would be a violation of the due
process clause.

             Holding is good news for foreign defs re their treatment in foreign crts.
FACTS: Jap manufacturer sells motorcycle valves to Taiwan. Motorcycle is used in Calif. Damaged. Sues in Calif State court. Cal
        court served jdctn.
ISSUE: Does what happened here satisfy the minimum contact test of Int'l Shoe, so as to allow the bringing of the Jap manufacturer
       to Cal State court?

HELD: BASIC HOLDING: Its unreasonable to ask a def to come from so far away as Japan and litigate in a Cal ct, when it had done
                  nothing itself in terms of bringing the product to Calif.

    The court was divided: 4 v. 4.

   4 judges (O'Connor): For there to be min contacts, there must be purposive activity
of the def directed to the forum state. Was there a purposive activity here? No.
"The mere placement of a product into the stream of commerce is not such an act."

   The other 4 judges: It's not enough that there's purposive activity. Must put products into
stream of commerce where foreseeable it would reach the def.

Thus, advice we must give: If you want to protect yourself against assertion of US jdctn,
must put people btw yourself and potential pltf.

 Connaught Laboratories: [793 F. Supp 1040 (District Ct of Kansas, 1992)]:
FACTS: Connaught is the Ont def manufacturer of vaccine, given to a person in Alaska. He has a reaction, goes
home to Kansas, and sues Connaught in Kansas, in Fed Court b/c of diversity.
       In Federal Court, in a Diversity case, the law of the State applies. [Klaxon Electric.]
       So then need to apply pts 3-4 above: Intense Corp activity, and Single Act jdctn.
HELD: No jdctn - neither general OR special, b/c
                   a) no intense activity on the part of Connaught.
                   b) no less intense activity on the part of the parent co.
                   c) no single act.

- Prof would not expect Can defs to succeed as Asahi did on the reasonableness test.
- Tests [minimum contact, purposive activity] are very fluid.

- The US position is dif than Can position b/c:
1) b/c of validity of the tests [minimum contact, purposive activity]
                    [Thus prof would not expect Can defs to succeed as Asahi did on the reasonableness test]
2) b/c of the notion of gen jdctn based on intense business activity - this doesn't exist in Can. Territorial jdctn & Transborder Collective Claims [ie. Class
action, bankruptcy]:                    Oct 4

- How to deal w/ transborder collective claims is an imp Q in a common market b/c many people transcend political
boundaries/ borders…
- But there's nothing that tell s crts about territorial jdctn in collective procedures.
- Right now, it's almost all a q of decisions of 1st instance - ie. little j-prudence on this.

Class actions:

- if the pltfs win, they will agree with the disposition, and thus be bound to it. Thus, jdctn
over the class action members will be solved thru the consensual nature of the jmnt; ie. it's
self-executing b/c pltfs agree w/a disposition that's in their favour.

- if the pltfs lose, those outside the jdctn will say they're not bound by the jmnt, even tho a
class action jmnt has effect re the whole class. Those outside the jdctn will fight the jmnt.

- Do courts agree with the losing pltfs who don't want to be bound?
  We don't know; this is what we're trying to find out.

- Usually, a fund is set up from which successful class action members can claim. If they
claim, it means they consent to the jdctn.

- Res judicata = a pltf can't sue in the same jdctn again. But pltfs will often try to sue again in
their own jdctn, unless courts hold that the foreign class action suit applies extraterritorially.

Bankruptcy proceedings:
- Bankruptcy means that creditors get, eg. 20 cents on the dollar.
  It also precludes suits against the bankrupt for the full amnt, ie. protects the bankrupt.
- So, there are bounds. In Can and US, only have to worry about federal bounds.

- Rule in Can + US: Bankruptcy is territorial. Judgments are limited to national boundaries.
So no int'l collaboration re bankruptcy, and so border is a source of disruption - ie. can claim assets in other country; the bankrupt is
not protected.

- Creditors thus try to proceed where assets are available, ie. US if Can or vv.
  ie. if assets are located outside the jdctn where bankruptcy is declared, and this foreign jdctn
does not recognize the bankruptcy, the creditors will rush and sue for assets in the foreign
jdctn. [First come, first served]. [P]

 Thus bankruptcy does not have the effect it should b/c it gives advantage to the fastest
 Thus, companies should go bankrupt re all their assets, not just those in a particular jdctn.

Issue: Will the jmnt of place x be recognized re the assets in place y? ie. it's an extra-
territoriality issue.

      To determine this, for BOTH bankruptcy AND class actions, must go thru 2 steps:

1) will the foreign court accept jdctn?:
       In Bankruptcy this is easy b/c fed Bankruptcy Acts in Can + US say when there's jdctn.
       Class action sit is harder b/c the cl act legislation doesn't tell you when you have jcnt
over a international class - it's only re domestic classes.

2) preclusion of wrong/ recognition of wrong
Today we are talking about point 1).
On Wednesday, we will talk about point 2). - But we don't.

1) The foreign court will accept jdctn over a trans-border sits in two situations:

a) when you assert "GENERAL JDCTN" [a US term]. The grounds for this are:

 In CL Can +Que: domicile of the defendant. Not service. If the def is domiciled here, can
sue the def for any claim re any issue re any person. The jdctn is not dispute -dependant.

  In Ont: i) service on the defendant [rule 17] PLUS
         ii) permanent residence (domicile) of the def in Ont. - ie. now 2 grounds in Ont.

  In US: i) intense business activity OR ii) domicile OR iii) service.
         ie. the US has more grounds of gen jdctn than anywhere in Canada.

- If a general ground of jdctn is found, all pltfs in that class can sue in the foreign place.
Conclusion for theire being a ground for gen jdctn re jdctn over cross border transaction:
Means that when there is jdctn over the def, there is jdctn over all of these claims.
Ie. no basis for jdctnal objection.

b) When only ground of jdctn you can assert is special jdctn, ie. dispute dependency jdctn:
= jdctn which exists because the parties were involved in a tort/ delict/ K in that jdctn.
       - Such jdctn only exists re the parties involved.
             - Such jdctn is much narrower than general jdctn.
             - eg. There is special jdctn where dmg was caused by pacemakers to Ont defs.
     - To determine if there's special jdctn, must determine whether there is MINIMUM
CONTACT. [Paola]

- Pltf lawyers look for these 2 types of jdtn to convince court that jdctn runs beyond particular

- Easy to start a Class Action in US, b/c gen jdctn exists everywhere for intense bus activity.
  Harder to start in Can in non class action provinces.

Class actions only exist, in Can, in BC, Ont, and Que.

- Now we stop thinking like pltfs and start thinking like defs. Def's challenges to jdctn:                                      Oct 6

- As a def in N Am, must be aware of poss that you can be sued where you don't want to be
sued, b/c such great possibility for forum shopping in N Am.
  Thus, given the great choice avail to pltfs re forum in N Am, what methods are available to
defs to challenge pltfs' choice.

- There are 2 things we have to worry about:

1) how (where and when) def raises challenges to the pltfs' jdctn.

2) all of the specific grounds for challenge. What can you actually say to a court that will
result in the jdctn you don't like being rejected as a jdctn?

1) How (where and when) defs can raise challenge to the jdctn the pltf chose:
ie. When you are / are about to be sued in a State/ Federal court is - How can I object in that forum to the suit continuing against me?
   [This has become complicated for Can lawyers since Morguard, 1990 and since new CCQ.]

- OLD ANSWER = Nothing - this was the answer of Can lawyers to Can clients sued in US until 1990 in CL provs, or till 1994 in Que.

Why could Canadian courts do this?
Until then, Can courts said there will be recognition of US jmnts in Can ONLY when the def has been served in the US/ when the def
has agreed that can be in US.

Now, however, rules have been changed.
Can no longer say to client "do nothing" b/c now a v serious lilkelihood that US jmnt will be recognized here.

- TODAY there is a v. serious likelihood that a foreign (US) jmnt will be recognized in Canada.
So, if def objects to jdctn he's sued in:

[[- If nec, def can go to US and and effect removal from State court to Federal court. But that
is a Q of subject matter jdctn. [Do this by a motion to dismiss.]]] [NB: There is a danger of
submission, thus must make it clear that you are ONLY there to contest jdctn and not to defend on the merits.]

Step a) Def can challenge the territorial jdctn by a special appearance in State court or a
motion to dismiss in a Federal court. [NB: There is a danger of submission, thus must make clear that
you're only contesting jctn, not defending on the merits.]

If you lose, what happens?

Step b) Can appeal by interlocutory appeal [in most states. Not all states have interloc
appeals on jdcntal Qs. But if you have it, you should use it if you want to challenge jdctn.]
If you don't use this appeal, you must submit to the jdctn.

What if you lose the interloc appeal? Is there anything else you can do [after you have
exhausted all local remedies - incl challenge in the foreign jdctn]?

Step c) Launch an anti-suit injunction to prevent the action from continuing in the jdctn in
which the pltf is suing you. Do this in the pltf's jdctn, b/c equity acts in personam, ie. on person's conscience.

What if you don't get the injunction?
If you lost all the appeals and exhausted all options, what can you do?

Step d) There are 2 things you can do:

i) Submit and defend - ie. you have no basis remaining for objecting to the jdctn and
execution of the jmnt. This means automatic recognition and execution. Can't object to the
court having taken jdctn to you anymore, b/c you submitted and defended on the merits.

ii Default - I am not going to submit and defend; let the jmnt go against me, and abandon
your defense on the merits and rest everything on the same arguments you made above, ie.
no basis for this territorial jdctn - let default jmnt go against me; then you say to the Canadian
court: they made a mistake against me - surely you don't recognize this (default) foreign jmnt.

 Thus, the question will be whether Canadian court will recognize the jmnt.
 Since 1990, grounds for recognition of foreign jmnts have been expanded widely; so
there is a greater chance foreign jmnts will be recognized in Can.

  So defauting and giving up your defense is increasingly dangerous in Can - there is
likelihood that Can will recognize the jmnt.

    So best choice, in the NAFTA age, may be to defend once you've exhausted all other rems.

-  In Eur - says foreign jmnts shall be recognized everywhere in Eur if the law exists in Eur.
NAFTA did't say anything about recognition of foreign jmnts. So we have a common market w/no way of regulating recognition of
foreign jmnts btw the jdctns.

- What if you've lost everything so far? Default/ defend?
  You only know which is best if you know what the rules on recognition of foreign jmnts are.
[We discuss this after 2). ie. Oct 13, below.]

2) Specific grounds of law for a def's challenging the jdctn the pltf chose:
-   [All of the grounds of objection to jdctn have increased greatly in recent years.]

a) Challenge the jdctn on the ground of local law.
Say that tort was not committed there "in whole"/ that K was not made there in whole.
Go thru argument about localization of legal events in space - ie. object.

b) Challenge the jdctn on the ground of the local constitution.
  ie. Plead that the constit is against the jdctn.
  ie. In US: Use the ground of the US Constitution 14th amendment = the due process
clause. Use the Intl' Shoe min contact test. Say that min contact has not been met, and if not
met, having x as the jdctn is in violation of the due process clause of the US constitution.

        In Can - use s.92(13) - provinces have jdctn over property & civil rights.

        In Mx - argue the constitution's extra-territoriality provision.

c) Challenge the jdctn on the ground of Choice of forum clauses:

- You can have a cl conferring jdctn [prorogation]. But as defense counsel, you want to have
a cl which precludes jdctn. You can't really write down all the places you don't want to be
sued in the world; so write down place you do want to be sued. Write down exclusive jdctn cl.
[Many cos have such a standard choice of forum cl.]

- In N Am, has been great change in attitude toward choice of forum clauses:

 Most notably in Que: Pre-1994, CCP a.68 said: Not w/standing any provision in a K, the
courts of Que will have jdctn. Parties could not detract from this.

                     Now, since 1994, the public policy clause [ie. above, a.68] has
essentially been abandoned b/c of CCQ a.3148 par 2: Que courts have no jdctn where the
parties by K have conferred jdctn on another jdctn in the world (except for consumers and
employees, who cannot K away their ability to sue in their own jdctn, b/c of PO [a.3149]).

 In CL Can: Such cl are now recognized as well; they are regarded as Ks, tho there is a
residual discretion on part of court not to enforce them if they are abusive/ fraudulent.

 In US: Brendan v. Zapata: [USSC]: German-US case: Parties' K to have exclusive jdctn
outside US divests US courts of their jdctn. [Same as Que sit.]

          Carnival Cruise: [USSC]: Crt upheld the choice of forum clause. X bought cruise
ticket to Alaska; the back of it stated that all suits to the cruise co must be brought in Fla.
                                      This was seen as height of choice of forum cl.

 In Mx: Calvo cl said can't take jdctn away from local authorities.        This was abandoned.   Now it's positive law in Mx. that
choice of forum cl will be respected.

- THUS: Parties should chose a jdctn most favorable to them a priori, and make this a term of
the K.

- Also, today parties can make arbitration a term of the K.                                        Removes jdctn from court and gives it to arbitrators. Now,
every jdctn in N Am recognizes the validity of arbitration cl; there has been spontaneous unilateral adherence to making arb more effective. [This was not
always the case; formerly, you could not divest courts w/jdctn in favor of arbitration.]   Choice of forum clauses are also
recognized in arbitration situations.

d) Challenge the jdctn on the ground of Pre-emptive suit = Declaratory jmnting [DJ'ing]:
= Pre-empt the pltf, if you know he wants to sue you where you don't want to be sued, eg.
b/c you have done dmg to them, etc, so they will likely sue.

This is accepted throughout N Am by courts.

Def DJs by suing the pltf in the def's jdctn (where def is) [if there is territorial competence].
Def states that he hasn't done anything wrong.
So when pltf does begin action in jdctn def wanted to avoid, def goes to him and says: It's
already being litigated - ie. lis pendes. Or can state forum non conveniens.

Airospace v. x aircraft: [BCCA 173 DLR 498]: = First case to accept DJ'ing in Canada.
Kansas co and BC co disputed, were in mid of settlement negs when Kansas co DJs. The BC co then initiates action in BC. Kansas
co says: We DJ'ed. Lis pendes. Held: DJ'ing was successful. BC court did not allow BC co to bring their action.

e) Challenge the jdctn on the ground of forum non-conveniens = a court or tribunal which
legally has jurisdiction, has discretionary power to decline to exercise that jurisdiction over an
action "when it believes that the interests of justice will be better served" if the action is tried
elsewhere. ie. the forum is inconvenient and should thus be set aside.

- This is accepted in US and Canada, but NOT in Mx. Codified in Que in a.3135 CCQ.

- Piper Aircraft [see csbk]: Victims of a Scottish crash of a US piper aircraft plane sued in Cal. State removed to
Penn. Penn court then held forum non conveniens.

- This has become extremely controversial. The criticism is that it's now used to allow def corps to
escape jdctn of their own corp headquarters for their conduct elsewhere in the world.
ie. It's being used to eliminate suits against the def in their own territory. This radically affects corp resp
in the world.

- Only NY has provisions to override forum non conveniens. NY says - regardless of wh forum is
"convienient", NY courts have jctn re suits over 1 milion. Won't accept forum non conveniens as
excuse/ exemption in this sit.

f) Challenge the jdctn on the ground of an Anti-suit injunction. - Very difficult to get.

Ask to restrain pltf from suing me abusively in jdctn x. Must show it's an abuse of def's right to
allow suit to go forward in foreign jdctn. [Amchem, SCC, 1993, p.65: Only in most drastic circs
will anti-suit injs be allowed.]
  No anti-suit injunction in Mx.!! But avail everywhere else in N Am.

- What if you've lost everything so far? Default/ defend?
  You only know which is best if you know the rules on recognition of foreign jmnts.

4.2.2. Territorial jdctn in N Am: Foreign Judgments:                                                                                     Oct 13

- ISSUE: Can another court accept the jmnt of the first court? What are
the standards for recognizing foreign jmnts?
- NAFTA says nothing about recognition of foreign jdgmnts, but there is a move to uniformity.
Slow process of harmonization of foreign jmnts. Standards for recognizing foreign jmnts, in general:


- Each prov is treated as foreign in Canada. In the US, foreign means outside the US.

1) Re jmnts going from State to State:

- The dominant US institutional device re this is: Article 4, s.1 of US Constitution = Full faith
and credit provision = States shall give "full faith credit" to jmnts of other US states.
Means that legislators cannot act contrary to full faith.
ie. Cal can't say we won't recognize NY jmnts.

ie. Once a crt of one state recognizes a jmnt, it is (should be) recognizable in all other states.

- But there are conditions for "full faith" recognition:
a) Can only recognize jmnts given by a "competent court"; ie. jmnt can't be given by a court
which lacks jdctn. [A competent crt = one that meets the Minimum Contact test of Int'l Shoe.]
b) Cannot be violation of due process; i.e. approp notice must have been given to def.
c) Cannot be fraud. If there was fraud, jmnt should not be accepted in next State.

2) Foreign Jmnts:

- Hilton v. Guyot: [1895]: USSC decided on conditions for recognition of foreign jmnts:

     a) Full faith, with all three conditions (above) should apply to foreign jmnts. Int'l commity
requires recognition of foreign jmnts provided certain conditions are   met: [There is a reading into this process of full faith req.]
   b) Reciprocity: We will recognize the jmnts of that place if they recognize our jmnts.
[We won't examine the case on its merits as they used to in France, and before '94 in Que.
This was called "revision au fond". Rather, just direct reciprocity.]

 Thus, foreign (incl. Can) jmnts have been recognizable in the US since 1895 [Hilton], if the
jmnt was given by a competent court, there was no violation of due process, and no fraud.

- Hilton was applied in Ritcher/ Ritchie [?] v. McMullen [159 US 235]. Held: Reciprocity.

- Biggest prob Can lawyers face when dealing w/US courts when wanting to seek execution of Can jmnts in US: In
which court to seek execution of jmnt you obtained? Fed or State?

 There is diversity jdctn for both recognition and execution, and for both Americans in the US and Canadians who
want to have a Canadian jmnt executed in the US.

 You want to be before a fed'ly appointed judge and not a state appointed judge.
Can get into a fed court a) on diversity grounds
                         b) on other grounds if it's a federal matter.

 But if your issue fits neither of these cats, must go to State court!

- Once a foreign jmnt is accepted by the US court [State/ Federal] , it has been
transformed into a state/ US jmnt. Thus, there's always full faith and credit, and you
will be able to execute the jmnt (ie. get the assets) anywhere in the US, provided the full
faith conditions are met (competent court, no violation of due process, no fraud).

- Same sit in Mx and Canada as well.
- The US has held this since 1895. It's an open market.

- What law will a US State court apply in terms of recognition of foreign jmnts? State law.
  What law will a US Fed court, sitting in diversity, apply in recognition of a foreign jmnt? State
law!! [Erie RR, Klaxton]


- Mexico is next historically in opening up.

- Until 1988, Mx had no operative rules for PIL in its courts.
  Mx was radically territorial in terms of choice of law. ie. No foreign law was applied; no foreign jmnts
were ever recognized in Mx. It was an "import substitution economy."

- Mx then decided to begin negotiating a common market treaty - NAFTA. Then realized it
can't be radically territorial anymore in the application of law if it wants to be a common
market. So, to prepare itself for NAFTA, Mx started to discuss this issue in 1985.

 In 1988, the Mx Fed Code of Civil Procedure was amended: Discussed unilateral (ie.
Mexican) harmonization measures.

 Mx FCCP allows for recognition of foreign jmnts since 1988 on conditions similar to
those req for full faith and recognition of foreign jmnts in US:

a) competent court
b) it must be a final jmnt which is requested to be applied
c) no fraud
d) personal service on the def - Not by mail.

- Which court in Mx will be the court in which you seek recognition of the foreign jmnt?
  Federal court. Why? For reasons ampero was developed.

 There is NO diversity jdtn in Mx. So, your ability to get into Mx Fed Court is limited to Mx
federal matters.
 If you can't get ampero (which is a federal remedy), must go to Mx State court.
[State supreme court would not accept an application of appeal from a state court.]

- If you do get recognition in a Mx Fed court, procedure used is to exort the other state court
to give recognition of jmnt to this state court.
 Once you get into (Mx) state court system, you're in, and must just apply to be recognized in
other state courts. Same as in US.

- What law will state apply to rec of foreign jmtn? State law.
  What law will fed court apply to rec of foreign jmnt? Fed law - found in the Fed civil code,
and the Fed code of civil procedure.


- Most reluctant in N Am to amend its rules re rec of for jmnt; but eventually did.

- Prior to 1990, almost no US jmnts were enforced in Canada, b/c the rule was very restrictve.
  Officially Canada recognized foreign jmnts, but the prob was the Canadian definition of a
competent court. Can defined competence as where a) there was service on the def
                                                      b) def agreed or submitted.

- Post 1990, Morguard and Hunt allowed for greater recognition of foreign jmnts in Can.

- There is reciprocity btw Can CL courts and US courts, but only since 1990 Morguard.

- Morguard [1990, SCC]:              Facts: Alta mortgage creditor sues to recover on his debt in Alta after effecting service ex juris on def in BC.
Alta jmnt against BC def who had been served outside Alta, and had not consented to Alta jdctn.
  Issue: Is Alta jmnt recognizable in BC?
  Held: Yes.
 Ratio: Times have changed; commerce flows across borders, the law must be changed to
reflect the new reality of the world; NAFTA will soon be signed; Pre-1990 rules can no longer
be justified.
         Thus, we'll est a test: the REAL + SUBSTANTIAL CONNECTION test. [They
borrow Eng case law of 1950 for this test.]
         There was a real and substantial test that case was in Alta.

PRINCIPLE: If the case at issue has a real and substantial connection w/the foreign
jdctn [eg. US court (state/ fed)] - NOT min contacts - then Canadian court will recognize the
jmnt of that foreign jdctn [the US court].

- In Canada, there is no full faith and credit cl b/c its not a federation; Canada is a
CONfederation - Not everything is centralized as in a federation.

- So step 2 of the Canadian process is the Hunt case.

- Hunt: [1993 SCC]:

This case addresses the full faith question and interprovincial relations, specifically.

FACTS: BC pltf, who is dying of asbestos-related injuries, sues in BC the Que def asbestos manfcturer.
         BC court orders the discovery of the Que def corp - did it know of likelihood that asbestos could
cause these injuries?
        Que, however, has a blocking statute, and still has this. [So does Ont.] Both provs have
these statutes to prevent US discovery running into Canada. Here, the blocking statutes say that no
corp docs can be removed/ copied and removed outside of Que against another Canadian court .

ISSUE: What is the Canadian law re recognition of the BC jmnt in Que?
       Is the Quebec blocking statute applicable to the BC court? NO.
       [If its simply the rule that it's one of real and substantial connection, the rule would
normally run. But the prob is that it's legsialtion, and if leg would not operate, must be b/c of a
superior prov norm. ]

HELD: The only way you can strike at a prov blocking statue is to use a higher norm. eg. a
full faith and credit cl. But this doesn't exist in Canada.
          So the SCC has to invent a full faith blocking cl to prevent the operation
of the Que blocking statute. Says its invention is implicit in the constitution.
          So we now have a federation, b/c we have a full faith and credit cl. [The SCC
speaks of Can as a federation.]

  The full faith and credit cl means that the Que blocking statute is, in the lang of the SCC,
"constitutionally inapplicable" to the BC court. Why did they not use the lang of "ultra vires"?
B/c it's still a law.

- The Hunt full faith clause means that there can be transformative jmnts in Canada.
  A US jmnt can be recognized in any Can prov court, by registration through the
Interprovincial Recognition of Jmnts agreement, b/c all provs except Que have entered into
agreements re this. All you have to do is register the jmnt in another prov; you don't have to
take another action in another province.

- In which court do you sue in Canada to execute a foreign jmnt?
Provincial superior court, except in rare instances where it might be a prov matter or a fed
matter (eg. IP).
- a.3159 CCQ: Que courts can give partial recognition of a jmnt; ie. can recognize the compensatory award but not punitive, or vv.
  Canadian courts can also do this, but "they haven't figured it out."

QUEBEC:              Oct 18

- Que's rules were as restrictive, or more so, than CL Canada -> 1994.
  CL Canada said we'll only recognize foreign jdctn where def is domiciled there.
  Que had only the Fr rule: revision au fond = We will accept foreign jmnts, but we reserve the
right to review case on the merits, and examine on the merits wh particular defences should be allowed to be brought
here. This allowed the case to be reopened.

a. 3155: There is a presumption that foreign jmnts will be recognized in Que if the foreign
court is competent.
          To refuse recognition of a foreign jmnt in Que, must fall w/in the enumerated
conditions of a.3155 or 3165.

a.3155: Any foreign jmnt is recognized + enforceable unless fall into one of these
(1) exceptn in a.3156-68 [only a.3165 is relevant]
(2) decisn is not final or enforceable at place where it was rendered
(3) decisn is rendered in contravention of (foreign) procedure
(4) lis pendes: decisn re same parties + facts is pending/already rendered in Que/ 3rd country
(5) decisn is inconsistent w/PO as understd in intl rel. Imp b/c that's extent of review on merits. ie. We
don't review on the merits. ie. this s. doesn't say "if the foreign law that was applied was against PO." Rather, we just
examine the outcome of the foreign decision.
(6) decisn enforces obs re tax laws of foreign jdctn. [Exceptn: a.3162: if foreign country
recognizes and enforces Que tax law.]

a.3165: if Que law grants or recognizes exclusive jdctn of foreign crts/arb'tr to hear the action
eg. re asbestos [a.3129]

- Pltf makes motion to ask for enforcement of foreign jmnt.
  Then Def may try to argue one of these exceptions as a defense.

a.3157, 3158: Abolish revision au fond. Que courts don't look at how the foreign jdcnt applies
the law or the merits of the case.

a.3159: Que courts can partially recognize a jmnt; ie. can recognize the compensatory award but not punitive, or vv.

a.3164: Adopts Title three [a.3134-3154] by incorp by ref.
        "The jdctn of foreign courts is est in acc w/the rules on jdctn applicable to Que crts
under Title Three, to the extent that the dispute is substantially connected with the country
whose authority is seized of the case."
        = jmnt of a foreign court is applicable where Quebec jdctn would be applicable
= mirror principle. Now Que courts recognize foreign courts for all jdctns where we assert
jdctn ourselves.

- Title Three has 2 sets of provisions:
a) general provisions int'l jdctn of Que authority: a.3134ff -> 3140. = Forum non conveniens,
                 forum of necessity, …
b) special provisions: Incl: - a.3148: says Que courts have jdctn if fault, dmg, … has been
                 committed here. It's the basic working article re patrimonial disputes in Que.

 a.3164 also implies that must look at the specific circs of the case to know if foreign jdctn
should have been exercised. This is what was done by Que crt in Cortas Canning v. Suidan:
Action brought in Tx. Punitive dmgs award was 9 million$. Asked to enforce in Que. Que said there is jdctn on part of Tx court, but
since the case is only connected to Tx for a sale of 96$, Tx should have declined to exercise its competence. ie. Que crt looks at
specific circs of case. Also, we won't enforce the 9$ punitive dmg award in Que. [a.3159: Partial recognition of a jmnt.]

a.3168: refines 3164 by stating specific grounds of foreign jctn.

- In personal actions of a pat nature,
     a.3148: Que has jctn where:                                   a.3168: foreign auth has jdctn where:

(1) def has domicile/residence in Que- broader             <      (1) def is domiciled where frgn decisn given - narrower
(2) case is re (legal pers) def's estabshmnt in Que        =      (2) case is re def's establshmnt where frgn decisn given,
                                                                      and the dispute relates to its activities in that country
(3) fault/dmg/inj act in Que/ K ob to be perfm in Que <           (3) prej from (ie +) fault/ inj act where frgn decisn given
                                                                  (4) Kual ob to be performed where frng decision given
    for Que to have jctn, one ob is suff                              For forgn jdctn, all of obs are req.
(4) def has previously submitted to Que's jdctn            =      (5) def has previously submitted to foreign jdctn
(5) def submits to Que's jdctn

- This comparison shows that Que now recognizes foreign jdctn in virtually the same circs as
it will assert its own jdctn, tho recognition of foreign jdctn is slightly narrower.

PROBLEMS with recognition of foreign jmnts in N Am: BLOCKING STATUTES:

- Rules of recognition of foreign jmnts in N. Am are fairly liberal.
  But there is a problem with blocking statutes.

- US & Mx do not have blocking statutes. Probs re blocking statutes are created by Canada.

- We have 2 blocking statutes in Canada:

1) Hunt: Que and Ont blocking stats state no docs can be (copied and) removed to other
countries. This is to block discovery of Can defs, esp cos, in other countries, esp US.
   These statutes are constitutionally applicable.

2) Blocking statutes created by the asbestos producers - anti-discovery, and anti-
asbestos jmnts. BC says it won't enforce any foreign jmnt based on liability caused by jmnts
re asbestos produced in BC.

- CCQ a.3129, 3151, 3165(1) = Que will not recognize any foreign jmnts dealing w/ asbestos.

3129: In any action...caused by natural products produced in Que, Que law is applicable.
3151: In cases based on cause of action defined in 3129, Que courts have exclusive jdctn.
3165(1): Any foreign jmnt rendered in violation of exclusive jmnts in Que crts shall not be recognized…

- Legal grounds in N Am for challenging a blocking statute:

a) Get jmnt recognized in another province/ state, on full faith, which has no blocking statute.
   Do this by asserting transformative jmnt. eg. Sue on a US jmnt in Ont, get Ont jmnt that
recognizes it, apply this jmnt in Que.

b) Argue that the foreign jmnt /?blocking statute is ultra vires; that the province/ state does not
have the power to recognize it. [**?]
 LaF in Hunt says the real object of blocking statutes is not to prevent recognition in a prov
but to deter litigation abroad by announcing there is no purpose to the litigation abroad.
That [what??] would be a violation of 92(13).

c) Try some remedy of NAFTA. - This is very QUESTIONABLE.
   You can't just plead NAFTA in a purely private dispute as common law, b/c NAFTA is not the law of the land. You
are limited to invoking a remedy of NAFTA.
   Prof cannot see how the remedies of NAFTA are readily available to probs such as blocking statutes.
   You have NAFTA remedies in - a.11of NAFTA = provision dealing w/investment open to private parties.
                                  - a.19 NAFTA = antidumping and countervailing duties.
                                  - Chpt 20 of NAFTA - general dispute resolutions. Standards for recognizing Foreign Jmnts: Class Actions: Oct 20
- Will Can give same preclusive effect that is given in US when trying to appeal a jmnt of a class action?
  Are the class action pltfs precluded from subsequent suit by terms of jmnt of class action?
  To what extent do we give preclusion from a jmnt given by a foreign ct? No laws on this.

1) 1st preoccupation is jdctn of adjudicating ct. General jdctn:
- Canada denies jdctn of US [[court incl.]] class action jmnt when we would not take
such jdctn ourselves - then the mirror principle is not met, and there would not be a real and
substantial connection.

- US notion of general jdctn is often applied re class actions:
  The US general jdctn goes beyond domicile; to all suits whenever a co has sufficiently
intense business activity in antother state. So in US, it's quite poss that a co from one state
carries on bus in state 2, where dmg is caused to a class, and that class rep initiates action in
state 2. 1 jmnt is issued which extends to all pltfs in N Am.


- a.3168 - In pers actions of a pat nature, Que only recognizes the jdctn of a foreign ct in the
following cases:
  (1) def is domiciled where frgn decisn given - narrower
  (2) case is re def's establshmnt where frgn decisn given, and the dispute relates to its activities in that country
  (3) prej from (ie +) fault/ inj act where frgn decisn given
  (4) Kual ob to be performed where frng decision given. For forgn jdctn, all of obs are req.
  (5) def has previously submitted to foreign jdctn

ie. [esp (2)] Que doesn't recognize claims that are not related to activity in that state.
         ie. if there's no real and substantial connection btw the adjudicating forum + the claim.

2) Conditions of recognition of a foreign jmnt:
a.3155: Any foreign jmnt is recognized + enforceable unless fall into one of these exceptions:
(1) exceptn in a.3156-68 [only a.3165 is relevant: re asbestos]
(2) decisn is not final or enforceable at place where it was rendered
(3) decisn is rendered in contravention of (foreign) procedure
(4) lis pendes: decisn re same parties + facts is pending/already rendered in Que/ 3rd country
(5) decisn is inconsistent w/PO as understd in intl rel. Imp b/c that's extent of review on merits. ie. We don't
review on the merits. ie. this s. doesn't say "if the foreign law that was applied was against PO." Rather, we just
examine the outcome of the foreign decision.
(6) decisn enforces obs re tax laws of foreign jdctn. [Exceptn: a.3162: if foreign country recognizes and
enforces Que tax law.]

a.3155 (2) = Classic CL . Can't bind people that are not before the court b/c …Let the other side be heard. [Latin maxim]
           - fund principles of procedure become much more imp, b/c class actions are shot thru w/principles of natural justice.

- Phillips Petroleum v. Shutz: [1895, USSC, 86 Lawyer's Edition, 628]: Class action over entitlement to petroleum royalties.
  In the US, written notice is required for inter-state [not intra-state/ within the state] class actions,
and this must be mailed to the address of ev. pltf. ie. high standard.
  No such requirement in Canada. There is no definitive statement in Can on how much
notice is req.
  In Phillips, crt says: Must be procedurally accurate.

   [If it's the case that no written notice is given (but it's only broadcast), or notice is at the defendant's expense (?),
US court would say there's a fund flaw in procedural process. ie. US law declares that its own procedure is deficient
in these circumstances.

- USSC, in two recent asbestos settlement cases, (1997, 1998) have struck down
settlement of class actions, b/c say can't preclude from suit people whose injuries have not
become manifest in a CA procedure - the nature of their issue does not lend itself to a CA.

A settlement class action = a class action which ev knows will not and can not go to trial (b/c of…), so since the def
and all the class reps and their lawyers know this, the def will approach the pltf's lawyer and say I want to neg a
settlement with you, and I will treat you as the lead lawyer = collusion. This is collusion if the lawyer accepts; he's
collaborating w/the def and not acting equally for all the members of the fund.

On the day the deal is made, you file a petition for homologation = instant class action only exists for a day. To get
that agreement, you must agree on a fixed sum of $.
To get to a fixed sum, you must have an est of # of people involved.

- Prof: Thus, Can should learn from US that these procedures are fund flawed
Can should deny such claims on the basis of a.3155(2) and principles of natural justice.

- Philips Petroleum: USSC also said that it's not only a q of being procedurally accurate, but
also must ensure that cases are decided acc to the appropriate choice of law; choice of law
must be adhered to.
  That means the class rep must offer proof to the court re the law applicable to all the
bilateral rels btw pltf class members and defs.

- To put that into a Canadian context (Nandais case) no discussion of choice of law at all.
In this case, it was an Ont class action, w/claimants in all provinces. For jmtn to be recognized
in Que, Que law had to be applied by Ont court in reaching its jmnt. Choice of law rules had
to be applied.
  In the Canadian context, this is appropriate. Standards for recognizing Foreign Jmnts: Bankruptcy:
- In order to have extra territorial recognition of bankruptcy jmnts, must:
1) make jmnt explicitly extraterritorial - say that this jmnt be recognized in another state/ prov
2) give notice.
This is all in sit of one bankrupt.

- In situations of joint bankruptcy, judges enter into "crossborder insolvency protocols"
ie. code of procedure which judges write for themselves re best way to deal w/a case,
procedurally. Notion of joint court hearing.

5. Provisional (Pre-Jmnt) Remedies:                                         Oct 25 [Starts a bit further down]

- Provisional rems are imp, given the current technological ability to move funds. All assets
have become highly mobile.

- Examples of provisional remedies: Control of def's assets by seizure/ seizure by Mireva.
- US and Mx are essentially seizure jdctns; Canada is a Mireva injunction jdctn.

5.1. LOCAL Seizure = attachment:
- Pre-jmnt seizure (US) = Saizie conservatoire (Que) = Embargo (Mx) = attachment of gds.

= Crt holds prop until jmnt is given, but only                   if the property is in the court's

- Thus, specific property must be identified. Must name a garnishee/ seek an identifying order
from the owner of the gds.
There is suff flex in seizure orders that you can discover if you ID TPs who hold assets.
This is consistent w/historical view that prop must be situated w/in jdctn.

- Exists in Mx, US, Que, NS, PEI. But in CL Canada there are now Mireva Injunctions.
- In the US, pre-jmnt seizure exists in all US states at the federal level since 1975 only.

- Eng law was received prior to the revolution in the US when Eng law recognized commercial seizures.Then revolution, and the US stopped doing things
acc to England. When commercial seizures were run out of Eng law, they were already implanted in the US.
  Everywhere in US, therefore, there's pre-jmnt attachment.
- England got rid of this, tho, and when Eng got rid of it, CL Canada also got rid of this, except
for NS + PEI.

- Thus, in Eng + CL Canada there was no remedy for dealing with debtors who would make
their assets "disappear". Until 1975, CL did not recognize pre-jmnt rghts; pltf had no claim to anythng until jmnt.

  Thus, in 1975, the Eng CA (L. Denning) revived seizure thru MIREVA INJUNCTIONS -
ie. revived jdctn to grant injunctions to prevent assets from being moved. This is equity.

- Used in Canada (CL + Que) since 1980. [NS, PEI thus have a double provisional remedy.]
- Does NOT exist in US. [Acc to USSC in Alliance Bond Fund, 1998.] Thus a US court can
not freeze the assets of foreign (Can) defs by a provisional remedy.

- It is a unilateral exparte applic. Thus, can obtain a Mireva injunction in a few hours.

- Mireva principle says: Equity acts in personam; don't move your assets or we'll hold you in
contempt of court (for which you can be jailed).

- Has a high threshold req. Can't just seize def assets b/c you're suing there.
- Must prove that this def will act in a quasi-fraudulent manner

- Def must be subject to the crt's jdctn, b/c like all equitable rems, it acts in personam.
- Does not require ID of specific prop; don't need to know where assets are.
- Not limited to assets in your own jdctn = World wide Mireva injunctn. [This took a few y to develop.]
  Directed to assets of def wherever they are situated in the world. Ie. Can freeze assets of
the def where ever they are in the world.

Prob w/world wide Mireva injunction:
         Can't give effective notice of your freeze order to the world (not feasible), even
tho what you're saying to the world is that this def can't move his assets.
         Thus, world wide injunctions now come with Babenaf Provisos = this Mireva
injunction does not operate to place TPs in contempt of court in the absence of their
knowledge of the injunction. B/c otherwise, TP who knew of inj, and let def take out assets,
would also be in contempt of court.

- Mirevas allow Canadian courts can freeze assets anywhere in N Am for purposes of
ensuring execution of its jmnt.
  But b/c Mirevas don't exist in the US, a US court can not freeze the assets of foreign
(Can) defs by a provisional remedy.
  Thus, lack of harmony in US on this matter.

To what extent do these provisional injunctions allow world-wide Mireva
injunctions in aid of execution of foreign jmnts?

ie. Pltfs will now ask courts to freeze the assets before a foreign jmnt is ready to be executed
in the local jdctn, so that the court will be able to execute the jmnt as soon as it is ready to be
executed in the local jdctn. [Prob of provisional remedies made in a foreign jdctn when a foreign jmnt has not
yet been rendered.]
 Question: To what extent are courts able to accept the above sit?
Mx - don't know.
US, CL Can, Que - Yes.

Mx - no one knows [b/c jprudence is not recorded]. Prof says it's doubtful that this is accepted, b/c Mx
is still resisting execution of foreign jmnts.

US: It is clear law in the US that attachment in aid for security purposes does exist. =
Language of Shaffner of USSC = Said you can't use prop in the jdctn for purposes of
establishing the jdctn. But this will not preclude seizure of prop for security purposes.
It is now est that you can attach prop in one state to eventually satisfy a jmnt you will get in another state. [This
does not apply re Mireva. There is no Mireva in the US.]
       Berman in csbk says that it's thus poss to get an attachment in aid in the US in favor of
an eventual jmnt of a foreign court.

Que: Clearest sit: a.3138: Que courts' provisional remedies are available for purposes of
ensuring recognition of for jmnts. "A Que court may grant provisional rems even when it does
not have jdctn over the merits of the case."
      Que provisional remedies incl traditional seizure and attachment, and also Mireva injs.
      So Que is now leading N Am re this issue: Any court in N Am can make use of Que
provisional remedies.

CL Canada:
- OLD law: 10 y ago, HL in Siskina said that the Mireva inj can't be used when the cause of action is not present in the UK. ie. the
opposite of a.3138. Since then, lots of litigation directed against this case, b/c there are so many assets in the UK belonging to
people outside the UK. To all intents and purposes, this case has been overturned, but not formally, until Freedman.

- Freedman: [1997] The first Can CL law which does not follow Siskina and grants a Mireva in
aid of an eventual foreign jmnt. [Freedman = the Canadian mining entrepreneur that pollutes US sites, leaves, and is sued by the US
Superfund. Superfund got their Mireva.]

- Freedman means that both CL Can and Que would both grant their provisional rems in aid
of foreign jmtns.

- So it looks like Can has gone faster than US in holding that Mireva can also be used in aid.
Thus Canada, for once, is more liberal than other jdctns in collaborating w/other N Am jdctns.

- Local seizure in US is not adequate to ensure execution. Can come to Can to ensure a Mireva.
- Prof: Whether a Mireva is local or world wide doesn't seem to matter. Where the things are
doesn't seem to matter; it's what def does. So, once you have a Mireva, then it follows that a
world wide Mireva in aid should be poss.

6. Pleading & Discovery: How a lawsuit proceeds:                                                           Oct 27

- There are dif types of procedure in N Am.
- Procedure is - inquisitorial (neg name in Mx)/ accusatory (neg name in rest of N Am)
               - investigative (Mx)           / adversarial (rest of N Am)
This usually comes to the fore re discovery in N Am.

- Must also understand extent of international judicial collaboration when it's nec to discover
something in N Am. Re this, Canada has discovered blocking statutes. Proof taking for this
int'l purpose is very controversial.

- Adversarial procedure we know really has three distinct types:
Eng - still has no deposition of witnesses; only has discovery of doc.

US - much more adversarial. Lawyers are free to investigate anything they want at discovery.
Can - discovery limited by pleadings, and ev and trial is limited by discovery.

                                         Pre-Trial Discovery                       Trial
Eng                                      NO
US                                       - Need notice pleadings; ie. notificatn
                                         - After notice, can discover any
                                         relevant material pre-trial. Not much
                                         left for trial.
                                         - Imp of fact pleading. Must get all
                                         facts in at discovery, b/c can't raise
                                         new things at trial.                      - Lawyers know Qs they'll ask at
                                         - Thus, lawyers know Qs they'll ask       trial.
                                         at trial.
CanCL                                    Controlled trial: Discovery is limited    Controlled trial: Trial is limited by
                                         by pleadings                              discovery. After pre-trial discovery,
                                                                                   you're limited to what you can raise
                                                                                   in trial.
Que                                      Yes, "interogatoire prealable".
Mx                                       NO discovery.                             NO trial. Rather, fact-pleading.
                                                                                   Lawyers only tell judges the facts;
                                                                                   judges interpret the law.
                                                                                   ie. Js must investigate the facts to ensure the
                                                                                   law is being properly applied.


- For pleading, had to get a writ, ie. tell chancellor's office what kind of case it was at beginning. If it
turned out not to be that kind of case, too bad; had to start again.

- This writ system was abandoned in 19th c - said you no longer have to proceed by bringing a writ;
could just proceed on the facts.

- We have to remember old writ system tho, and be wary of only pleading facts in Can CL jdctns, b/c in
1961, Ont CA penalized for a lawyer failing to plead the appropriate law. [Allen v. Mount Sinai, p.111]
Med malpractice. Here, the court held that the facts were not suff to est negl, but he finds that battery was committed
by dr., and so finds for pltf. But battery wasn't pleaded by the lawyer. So court holds: Previous decision must be
quashed, and case remitted for a new trial.

- After you got your writ in Eng (once upon a time), you got the jmnt by pleading.
In Eng CL, the jury decided the case! The judge never decided the case! The j decided issues of law,
eg. does case conform to original choice of writ by the pltf?
If it was accepted by judge, then there was a trial.

- The barrister may not be allowed to rehearse the case by any examination of fact before the case. ie.
Can't only do trial by asking questions re fact to which you know the answer.
Thus, Eng lawyers don't know the answers in advance! But in N Am, this is the basic courtroom tactic.
Thus, Eng tactic is often described as trial by surprise.

When N Am CL took this model and moved it overseas:

- People said this is a v inefficient system of proceeding.
- Decision: We will do "code pleading = pleading in circs which were adopted by codes of civ
procedure in N Am".
  ie. now procedure is to state the facts first, before trial, so law then could be applied.
= Pre-trial discovery/ investigatn of the facts = type of privatized invstgatn. [Eq used to do this.]
Party must state in reasonable detail so other side knows enough of the facts.
But it's still the case that these are just allegations of fact, by pltf and def.

- But not enough judges to conduct pre-trial discovery, so lawyers had to do it.
- Pre-trial discovery allows the trial to be faster and simpler.

- Unlike the UK today, Canada including Que allows inquisition of parties before trial itself.
Mx does NOT. [In Que, this is called interogatoire prealable.]

- Basic Can philosophy of adjudication. = "controlled trial" - ie. discovery is controlled by the
pleadings, and trial is controlled by discovery.
  ie. In pre-trial discovery, you commit yourself to a view of the case in the initial pleadings.
You have to commit yourself to a take on the facts of the case. Then, you're limited to what
you can discover at trial. Once you've had your discovery, can't go off on all directions at trial.
- So the Can sit is said to be better than the orig CL sit, and the existing CL sit (I assume he
means England).


- Probs in N Am emerge most clearly in US.
- In US, litigation is different than in Can, b/c of the imp of fact-pleading. It's v. imp to
get all facts in at beginning, b/c won't be able to get it in later.

- OLD sit: Result was that lawyers don't exercise true professional jmnt of what's imp; put everything in = shotgun
pleading = a lawyer that is unwilling to exercise jmnt and say that these are the essential facts for the case.
[[eg. Nagel v. Pocono, US District Court, PA, 1996,p.118]]

- This phenom happens in a Bar which is so open, and anyone can litigate.

- TODAY: So since fact-pleading has become largely useless, having become shot-gun
pleading, the US changed rules in 1970 to what Notice Pleadings = a short and plain
statement of the grounds of the claim.
A pltf must tell the def he's coming after him ie. must give notice.

  After notice, US allows discovery of any relevant material = the language of fed rule 26.

        - You can discover parties and non-parties, which means that you can discover the
witnesses of the other side. You already rehearse your own witnesses, and now your entitled
to [depose?] all of the other witnesses of the other side. So the trial has already been fully
rehearsed!! You only ask Qs you know the answers to.

        - Thus, anything that can happen in trial has already happened at discovery,
plus a great deal more, b/c you won't use everything you've discovered at trial.

  At trial, if you wish to introduce new material, you will have to use rules of ev. At trial, you
produce ev, - it becomes ev b/c it's introduced at trial. Evidence is only that which is
introduced at trial.

- US discovery techniques are UNIQUE in N Am.


= radical contrast w/all three adversarial forms [Eng, Can, US].
- almost a purely CivL jdctn.

- discovery does not exist in Mx, just as discovery does not exist in most Civil L countries.

- In Mx, instead, have fact-pleading. [this is trad in CivL countries.]

step a) Fact pleading = The lawyer tells the facts, and the judiciary applies the law where it's
meant to be applied. The lawyer is only there to assist the court.
  ie. Judges must investigate the facts to ensure that the law is properly applied. Judicial
investigation begins at facts.
 Judge reads the pleadings and asks the qs. The lawyers ask v. few qs; maybe 1 or 2 at end.
 Mx allows parties to write down Qs for judge to ask. [This is b/c of N Am infl.]

             - Some say this is the best way to determine the truth: entrust the truth to a disinterested adjudicator.

step b) Thus, system creates a written record of what witness has to say. Then you have a
judicial 'proof order' and written testimony. What develops from this is a written file.

step c) At end, there's an "appearing" where lawyers can say anythng they want. Usually
they wont.
step d) Then you have a decision = three js on the court decide.

- What's missing here is the trial - there is none!! It's a cumulative process of taking ev.
  So since no trial, there's no discovery.
- Everything is evidence. [I think he means by default, b/c there is no trial, and technically evidence is defined as that which is introduced at trial.]

- [Prof: There's almost no law of ev in Civilian jdctns b/c no jury.]

International judicial collaboration re discovery in N Am:
= Where documentation for x is in another jdctn in N Am.                                            [This is a v controversial area.]

- This req 2 mechanisms:
1) the forum - procedure to allow you to get it
   = To what extent does each country provide for their own foreign investigation, ie.
investigation abroad?
  - Includes direct discovery and taking of evidence of a party.
  - Where it's a Q of a witness, more collaborative methods are required, and you must seek
foreign assistance from abroad.
 - May include letters rogatory, discovery, and assistance.

2) the collaboration of the law/ evidence
  = To what extent is each country willing to aid litigation abroad? = Local assistance.

           To what extent does each country                          This goes under procedure:                           To what extent is each
           provide for their own foreign                             Hague convention [of 1968] on getting                country willing to aid litigation
           investigation, ie. investigation                          evidence abroad = Signatories agree to               abroad? = Local assistance.
                                                                     give effect to other signatories'
           abroad? Procedure.                                        requests for discovery/ ev.
                                                                     US + Mx are signatories; Can is not!

CL         So Canada is not that aggressive; it                      Not signatory.                                       - Canada uses blocking
Can        doesn't seek to use its direct                                                                                 statutes.
           discovery techniques against                                                                                   - Canada still uses
           witnesses.                                                                                                     discretionary authorization.

Que        Can have pre-trial extra-territorial                      Not signatory.
US         - Direct discovery; blocked by                            Yes, signatory.                                      Discoverability test; NOT
           Blocking stats in Canada if used in                                                                            reciprocity.
           - Also, can't do direct discovery of
           witnesses abroad; must use letters
           rogatory/ the Hague convention.
Mx         - No discovery. Rather, taking of                         Yes, signatory.                                      - No blocking statutes
           evidence from the party thru judicial                                                                          - Adheres to Hague Convntn.
           - Letters rogatory for witnesses.


- Canada participates in process of Int'l judicial collaboration in N Am.

To what extent does Canada provide for their own foreign investigation, ie.
investigation abroad?:

- What do you do to obtain discovery of a party to the case that is situated elsewhere?
  Direct discovery = tell them to come here with all pertinent docs. = Say: You're litigating
here, and in order to do so, you have to follow rules of this forum.

- What happens if that party refuses to participate in direct discovery? Then US litigation
sanctions are applied to you. Your action may be dismissed.
- [The US is so successful in these aggressive forms of direct discovery b/c there's so much litigation that people see it as essential to litigate in the US.]

- NB: This process of direct discovery is only applicable to parties; not to witnesses.
  Ev of this is Canadian courts' reluctance to supoena witnesses if they/ their docs are abroad.
  [WH Management [Que CA, 1976 CA 379] Witnesses were asked to bring docs from
abroad. Court held: Refused to order witness to bring docs from abroad to court.]

- But that doesn't mean you have no access to witness who is abroad; means you can't
access him yourself and must go thru a more complicated procedure = Send letters
rogatory = Letters of request. - ask court to access witness for purposes of trial or ask
discovery to take place. Crt has discretion wh it will grant permission.

- All Can provs have procedures for letters rogatory: Ont Rule 3.79; Que CCP a.26.                                                                [[[[CCP 426 ff]]]

- QUE: There are no provisions in Que for seeking extra-terr discovery.
If you're engaged in pre-trial private investigations of the case, you're not entitled to go get it.
But if not pre-trial, its OK.

- If it's a receptive jdctn, you may do discovery yourself and interrogate the person in the
foreign jdcnt.
 - If the foreign jdctn won't allow that, and will only allow local js to exercise authority in the
jdctn, you have to go to the local commissioner and ask him to get the j to interrogate the
- Often, you only find out once you get there if the jdctn is receptive / not.

Local assistance in Canada:

- Canadian parties are subj to US direct discovery orders. ie. Canadian parties must bring
their records to US if direct discovery is used, b/c otherwise they will suffer default jmnt.
- What is Canadian response to US direct discovery? Shock. Didn't realize.

- So Can [only Que and Ont] has blocking statutes to block Can industry from US direct
discovery orders which are designed to discover the truth.
Ont & Que manufacturers havel advantage, b/c are protected by blocking statutes, and are not subject to US direct discovery.

- So local assistance [ie. Canadian assistance to US for discovery] is available in some
provs, but may be avoided by blocking statutes in Que and Ont.

- But blocking statutes do not block depositions.

- Q: How receptive is Canada is to foreign formal request for judicial collaboration, in
the form of letters rogatory?

 A: OLD rule: [Prof thinks you can't rely on this any more.]: Foreign requests are only
acceded to when they relate to evidence in actual trial. There is no collaboration in terms of
pre-trial investigation/ discovery.

 In all provs, there are formal procedures for dealing w/requests for letters rogatory.
 Que: Chpt P-27 of the Que statute/ rules says you seek an order of the court authorizing the
taking of testimony in Que.
 Rest of Can, use Can Ev Act s.46, which says essentially the same thing. [This is duplicated by
prov acts on this matter.]

- Deloitte: [1996, 28 OR 188]: Pltf asks to carry out discovery of NY defs in Ont. Ont's letters
rogatory are used. What's explicit in this decision is that Ont crts will recognize US
requests for judicial collaboration, although here the Ont court here refused to grant
request. ie. Canadian courts use discretionary authority.
[We see here Can judicial control over discovery being applied to US discovery techniques. ]

USA: Nov 1

To what extent does the US provide for their own foreign investigation, ie.
investigation abroad?:

- Invented the notion of direct discovery to obtain info on foreign facts.
Direct discovery is pursued in the US, but only to extent it's compatible w/foreign law.
If a party is in possession of info that's abroad, that party will be forced to bring it to the US.

- Blocking statutes were created in large measure to prevent this from happening = Canadian

- Blocking statutes apply to removing documentation from Can, and bringing it to the US.
But blocking statutes do not block depositions. Depositions remain entirely permissible.

- What happens in the US if a Can party uses a a blocking stat to justify non-
compliance w/a US discovery order?
  The US crt determines whether the Can's party refusal to participate is based on BF,
and if it is BF, the US will impose sanctions, ie. the action can't proceed until they comply.
[eg. Classic case of BF: Imelda Marcos' family - court concluded that as a result of their behaviour, it was BF.]

- To prof - there's a presumption of GF for Can parties in US litigation.
Result: Can blocking statutes are largely effective, even in the US.

- The US procedures, in some circs, allow for attempting direct obtaining of foreign facts from
  Can't use direct discovery against witness if the witness is abroad, b/c a US court can't
serve a subpoena on a witness abroad.
  But if there is the poss of local service, you can give notice, and it will be a Q of what is
appropriate acc to the appreciation of the US court. They look at where the witness' activity
took place, etc.

- In the US, to obtain evidence from a foreign witness, there are 2 things you can do:

1) Letters rogatory = letters of request. But this depends on whether the foreign court will
give authorization. The US does't like letters rogatory procedures. Foreign courts don't like
US discovery.

2) B/c of point 1), the US adopted the Hague convention [of 1968] on the obtaining of
evidence abroad = Signatories agree to give effect to other signatories' requests for
discovery/ taking of ev. US and Mex are signatories to this convention. But Can is not!

  Thru the Hague convention what you do is: You send your request to the central auth of the
other state, and this body ensures that the info is returned to the body doing the investigation.

- Aerospacial case: [US case, IMP]: US pltf sought direct discovery of Fr def. Fr def Aero
says: Yes, you can do discovery of us, provided you use the Hague convention. Why? B/c Fr
has a blocking statute.

US Local assistance:

- Q: What attitude does the US take re providing assistance to foreign requests for info?
  A: Discoverabilty Test = foreign parties should be able to discover here only if they
can discover there. This is dif than reciprocity!

- Canada satisfies the discoverability test. Thus, Can is in a good position, in the sense
that it gets all from the US that it asks for, and in return is not required to give the US
what it wants.


To what extent does Mx provide for their own foreign investigation, ie.
investigation abroad?:

- There is NO direct discovery of a party in Mx.
  Rather, there is direct taking of ev from the party thru the process of judicial interrogation [or
by lawyers, since 1988].
 So this means that Can parties doing bus in Mx never have to be worried about being discovered in Mx, b/c there is no discovery.

- As everywhere else, local sanctions are applied if you refuse to collaborate in local
investigation techniques.

- If it's a witness, the only procedure in Mx law is thru letters rogatory. [There is no possible
process of private parties issuing subpoenas to get witnesses.]

- Canadian courts are more receptive to letters rogatory for evidence purposes as opp to

Mx attitude to Local assistance:

- Mx has no blocking statutes.
- Mx adheres to the Hague Convention: So, Mx will provide, thru its central authority, info
requested in the N Am context. What's missing in this process is any poss of obtaining
discovery in Mx.

- So, you can ask for letters rogatory, but historically there is no way that Mx authority can
acceed to a request for discovery thru letters rogatory, b/c there was no discovery in Mx.

- In 1988, Mx changed its Fed Code of Civil Procedure.
  a.562 of the Mx Fed Code of Civ Proc says that the parties may be verbally interrogated by
attorneys as opp to by judges.

- Prof: No other civilian jdctn has allowed jdctn on its terr to aid foreign judicial procedure. This is done to provide
local assistance to foreign judicial procedure. This measure means that it's the same principle operating as the rest
of N Am.

7. The Role of Foreign Law = what triggers the choice of law
process: Nov 3

- The more int'l cases there are, the more lawyers are familiar w/them, the more they will be
able to neg successfully.
  NAFTA contributes to non-litigious processes.
  Before NAFTA - would have had to start w/choice of law.
  But NAFTA changed that - and now, more emph on pre-adjudication.

- Threshold Q (object of Chpt 7) = what triggers the choice of law process? In what circs
exactly does it become nec to decide wh we will apply a law other than foreign, and if
so, what foreign law might that be.
ie. what is it that throws this case out of the normal adjudicative process.
- There's a choice of law rule which says Civil liability is discovered by the place of injurious act/ tort. = the PIL rule for tort/ civ liability, throughout Canada
(incl Que).
Does this rule apply, or must it be triggered by a particular event, such that the law of the forum will be applied, as opp to the lex loci delicti (law of the place
of the tort.)

7.1. What are the attitudes of Civ and CL jdctns to wh the choice of law
rule has to be applied, or wh it can be submerged? There are 2 positions on this Q:
1) Radical CivL position: Prevails in Germ, Switzrlnd, most of Latin Am.[CivL; investigative]

  Must apply this choice of law rule. All law must be applied at the j's initiative, but PIL rules
are obligatory to be applied. "As soon as it becomes apparent to the court" that it's a PIL
case, must apply these rules. Foreign law must be ascertained and applied. [Neglecting to do this is grounds for quashing on appeal.]

 This means that every case which involves a foreign element will trigger the choice of law
process. Doesn't say at what pt this is triggered; you must simply learn the foreign law so that
you can eventually apply the foreign law.

 This position implies conflict in every int'l case - assumes the foreign law will be different
than the domestic law.

2) Common Law position, Que and the French position: [Historical position.]

- Traditionally: J must ensure that the case fits w/in the writ; other than that, they don't do anything; all they must do is control
jdctnional qs. Jury makes decisions.
  The lawyer must plead the law and proves facts, prove everything that jury needs to resolve the case. The whole process is one
which does not impute knowledge of law to the facts; the whole position is one of judicial ignorance.

 If the lawyer wants foreign law to be applied, the lawyer must plead foreign law as if it were a
fact, such that the application of foreign law to the case is left to the jury.

 ie. Foreign law is treated as if it were fact and must be pleaded and proved by the parties in
the adversarial process as if it were fact.

All of this comes from historical growth of CL.

But the French position doesn't come from historical growth of CL. Fr PIL does not have the
same obligatory element to it, so we essentially leave it to the parties.

The argument btw these 2 positions is carried over into N Am today:

- The Radical Civil Law position is most appropriate in N Am, given the context in which
litigation takes place in N Am: ie. it is the more aggressive, conflictual, aggressive, and time-
consuming way to resolve these qs.

- CL position says parties are allowed to submerge the law applicable to the case.
If they take this position - cheaper b/c no time consumed, no expert witnesses.
Old CL position and Fr position is much less conflictual.
Submerging the foreign element of the case requires consensus of the parties. [Why?]
[[If the parties agree on the application of the law of the place where the suit has been brought, the j should not interfere with the application of this law.]]

- Prof supports the less radical CL position.
But the CivL position will not 'go away' b/c says you have to pay equal respect to foreign law. ie. the J must apply choice of law rules to ensure that foreign
law is equally respected.

The present position that prevails in N Am:

- The moderate Civilan position and the whole CL position 'dressed up' - ie. the less
conflictual position.

The attitude of dif jdctns to choice of law, and judicial notice of foreign law:


- a.2807 CCQ: "Judical notice shall be taken of the law in force in Que."
The doctrine of judicial notice is a matter of proof. It doesn't say that the J must apply the law
of Que in all cases. Thru judicial notice, the j knows rules of PIL.

- a.2809 par 2 - "where such law has not been pleaded or its content cannot been est, the
court applies the law in force in Que."

- How can it be the case that if judical notice must be taken in Que PIL but if foreign law is not pleaded, Que law applies? These
seem to be contradictory statements, but they're not.

- Prof now thinks that in the CCQ the Que position does NOT rep a turn toward the radically Civilian position; rather, restates what
Que's position has always been - the French position influenced by CL position - ie. as a lawyer in Que
in foreign case, you can submerge the foreign element just by not pleading the foreign law as fact.

- It's only if one of the parties say that my whole case depends on this rule of this jdctn, that
you will not be able to submerge the foreign element.

ie. If one party wants the foreign law to be pleaded, must plead it [in any way that the court
considers it appropriate.]

a.2809(1): "Judicial notice may be taken of law of other provs/ states - ie. foreign law -
provided it has been pleaded."
        - So, once foreign law is pleaded, judge can determine what that foreign law is.
        - Now js can get foreign law easily off web; in past, v. difficult.
        - The change in '94 reflects changing technology of j to get it on their own.
        - If this is not done by technology, either get foreign law by affidavit, or get witnesses
to come in.


- CL provs have statutory provisions which allow judges to take notice of foreign law.
  In CL, proof of foreign law must be by affidavit and witnesses.

- Canadian law - you must submit to the law of the forum unless you insist otherwise.


- The US position is generally consistent w/non-conflictual position.
- But Roger Minor, at p.121-2 csbk, reps the radical position. Says this position must change b/c we must give more respect to foreign law. Bot p.584 - "I
think it's the duty of the court to apply foreign law as soon as it becomes apparent to the court."
Is he only talking about proof, or also j's position (d'office)?
  What Minor is arguing for is not the law of the US; rather, it constitutes a radical departure from the law of the US.
- Choice of law in the US will be treated as a q of law, not fact - ie. you get to appeal it.


- Civ L position - that rules of PIL are rules of foreign law and must be applied. [I think I got
this right.]
- But they don't follow this rule in Mx; in Mx, they never apply foreign law!!
- Now Mx is becoming open to foreign law.

- Issue is now open now re choice of law rules.
- There is a danger for the radical Civilian position prevailing.

7.2. Choice of law: process:
- If someone wants to apply foreign law to a case. -> there must be judicial
determination of which choice of law rule applies. So must go thru proof and
application of foreign law.

- the choice of law process is dif in every state in N Am.

1) The whole process is affected by structural conditions: ie. we're now not concerned
w/jdctn; we're concerned w/the effect of jdctn on the choice of law.

2) The choice of law process is affected by the theory of choice of law.
[But everyone has a dif theory of choice of law.]

To what extent is the choice of law process affected by structural conditions in
N Am; ie. the effect of jdctn on choice of law:


- Federally appointed js, sitting in superior courts, decide these cases.
  The sig of them being federally appointed, for purposes of choice of law, is that a fed
appointed j should have a more impartial attitude to choice of law and not be biased in favour
of local law.
[[[So the Canadian adjudicative structure re fed appointed js and choice of law should yield no excessive extraterritoriality. [?]]]]

- If you lose in superior court, and appeal to CA and then to SCC, the SCC can not take a
unilateral position and favor the law of one prov over the law of another - it owes equal
institutional loyalty to both provs.
- That's not the case for courts in the US when there's an appeal of private law matters.

- The choice of law process seeks to be a neutral/ bilateral process, thru preference given to
choice of law rules.

- Canadian choice of law rules are neutral looking, and bilateral in character, ie. civil
liability is goverened by the place of the injurious act.
   That is a bilat rule b/c it indicates either the law of the forum, or the law of another place,
depending on where the delict occurred.
  It's not unilateral in char in looking exclusively at the law of the forum.

- There are no bilateral choice of rules in the US, b/c there are no choice of law rules there.

Q - To what extent is the constitution relevant to the choice of law rules in Canada?
A - Not at all, really. A higher court in Canada has never said that a lower court acted unconstitutionally in doing what it did.
    To the extent these are fed'ly appointed, presumably neutral js, it is presumed they act constitutionally.

- In the CCQ there are over 100 articles which are choice of law rules. We have these rules
partly b/c we have those kinds of js.


There are two effects of jdctn on choice of law in the US, each of which has a remedy:

1) Diversity jdctn: You need diversity jdctn to have poss of having the appropriate law
applied to this case.
   Reason: 80% of US state js are elected. They are meant to be the local reps of political local sovereignty which state law is.
Their position is to do what local political state law wants done. So they are presumed to be biased in
favor of local jdctn and local law.
    So diversity jdctn is necessary in the US, not only b/c of bias against foreign persons, but also b/c of
bias against foreign law.

2) The constitution:
     If you do stay in state courts, you must have some remedy against their institutional bias.
    Thus, constitutionalize the choice of law process using the due process clause.
This limits excessive jurisdiction and extraterritorial application of state law.
[There is a huge debate in the state re the extent to which there should be constitutionalization of state law.]

    USSC has adopted the same test for choice of law as it has for jdctn. Says that there are
minimum contacts w/the state. Says we will allow state js to determine what law is

    As soon as you make a federal case out of it, by constitutionalizing choice of law - which
can only happen when there are no minimum contacts with the state - it's no longer a State
court issue; rather, the choice of law case goes to Fed jdctn.

   So when does State court have jdctn over choice of law cases? When there are minimum
contacts with the state.

- So there is an assumption of the validity of the constitution here - dif than in Canada.
- 50% of cross border cases go off on diversity; another 50% are constitutionalized.


- State js decide private law cases here.
- Mx is resistant to the application of foreign law. So unlikely that a state court will apply
foreign law rules. But they're supposed to be doing that, in the context of NAFTA.

- What is your rem if they don't apply foreign law under choice of law? Cassation ampero.

- There is no diversity jdctn in Mx.
- You don't need to invoke the constitution b/c you have cassation ampero.
Once you've lost in state court, you're guaranteed access to fed court by way of cassation
ampero when argue that state court argued the wrong law.

8. Choice of Law: Methodology/ Theory:                                                             Nov 8

- The choice of law process is affected by the methodology/ theory of choice of law.

- There are two considerations for choice of law in N Am
1) institutional conditions (courts) in which choice of law takes place in N Am
2) receipt/ reception of PIL - thru institutional structures.

Sit: 2 states. Prob that has a foreign element. eg. - Property law.
                                                    - If tort occurs in a foreign place.
- choice of jdctn
- choice of law
- forum + law

- The philosophy of choice of law is the product of 19th c national sovereign thought. Coquille
[French doctrinal writer, 16th c., p.124]: 2 historical methods/ theories:

1st method: Must determine the choice of law rule: Acts should be regulated by the law of
the place where the person is domiciled.
               This is a bilateral method. Don't start w/any particular law; rather say - choice
should be designated by the circs, re place A to place B - thus bilateral.
                The objective behind the process is one of neutrality - each state should be
treated in a neutral manner, since the prob doesn't belong to either state.

2nd method: Must discover legislative intentions. - ie. asks wh your law is intended to be
applied by legislators in that way. There are no general rules; must look at each case.
               This is a unilateral method. = Choice of law methods.

8.1. Definition of Choice of law rules:
- With ev choice of law rule, you start w/the legal relation. You have a type of problem which
must be localized through the use of connecting factors. Once you use a connecting factor,
you will get to a governing law.

ie. Start with the legal relation. Then, through use of connecting factors, you get to a
governing law.
Eg. The prob is wh 2 people , same-sex, marry in Denmark, where same -sex marriages are legal; They go to Que, this is not legal. ISSUE: Are they
married in Que?
HELD: person's ante-nuptual domicile governs. This is the rule in Que. So the governing law is that of denmark. But this is only acceptable if Que PO is
not violated by foreign law.

- All choice of law rules use blind rules, b/c you don't know what happens at the end.
  Also, all choice of law rules provide a provision that the choice of law rules are only
acceptable if the foreign law is not contrary to/ do not violate local (or international?) PO.

- Legal rels-> Connecting factors -> Governing laws -> Control.

Step a) Legal rel - eg. capcity to marry?
                - the problem must be localized.

Step b) Connecting factor:
              - this is always structured the same way, w/ a subject and an attribute.
              - Must first chose the subj, and then refine that choice to find the attribute.
              - Eg: Subj = immovable
                     Attribute = its location.
              - In QUE: All of the Connecting factors are set out in Bk 10 - exs of rules.

Step c) Governing law: ie. the law of what country/ state applies?

Step d) Control: Is the choice of law against PO? If so, can't apply it.
PO has 3 levels:
 1) local
 2) int'l. PO as understood in int'l rels is a REDUCED concept of PO; it's not the same as local PO.
 3) attenuated PO = when circs of case are far from local sit, it's not the case that local rights will be
created in local setting.

Why rules and why method?:

For years in Eur, the method that prevailed was that of interpretation. Statutists = 13th - 19th c.

In 19th c, things got radical.
Savigny, who marked the whole subject, said - if were going to be nationally sovereign from now on, we can't use __ rules, b/c this will created international

In PIL, how do you maintain int'l borders?
Savigny said - can't have unilateral interpret ation of rules of int' l state; rather, need rules of a bilateral character.
Savigny convinced most Eur to adopt choice of law rules.

So from 1860 ish to 1960 ish, choice of law rules reigned supreme.

In the 1960s, under the influence of Curry in the US, the US Revolution - Choice of Law.
The US choice of law revolution consisted of throwing out choice of law rules from the US.

Curry said that conflict of law cases is the US can be better solved by id'ing the state having the greatest int in solving the particular problem. ie. what we
have to get involved in is US govt'l anaysis, or "which state has the most sig relationship with the case". = the language he used.
This is largely the lang of US constitutional law - state interests.

The conversion was essentially the Public law thinking of the US.
Goes back to unilateral methods of interpretation, and throwing out the rule.

What you have to do in most of the US states is start from domestic legislation. '
Must ask wh the forum wants its law applied.
So it really comes down to domestic legislative intention - start w/your own local law.

So the fact that Savigny was received in US for decades is amazing, b/c it overcame US resistance to bilateral rules.
So from the '60s in the US, if you have a choice of law prob, you must argue from the POV of interest analysis.

8.2. Definition of Choice of law method:                                                     Nov 10

- Formulated in terms of                  - unilaterialism
                                          - interpr
                                          - govt interests
                                          - which law has the most sig rel to the case

Only step: Judge must consider the intent of the legislator: was this law intended to
be applied to this case, or does this jdctn have a greater int in having its own law
applied. To prof, these are the same qs.
- QUE: Que courts did know wh the choice of law rules should apply; so they asked what was the intention behind
the Que CPA. The legislators said: We want this law to apply if there is good reason to do so.
              To what transactions was the Que CPA aimed? Was it aimed at
a) consumer transactions in Que; or
b) consumer transactions anywhere, wherever Que residents entered them?
             HELD: Sup Ct: Consumer transactions in Que.
                    Que CA: The purpose behind the legislation was entirely satisfied by a); it didn’t have to run extra-
territorially to have a major ben to consumers in Que.

- That's the kind of arg that goes on when deciding wh to apply choice of law methods rather
than choice of law rules.
- This is addressed in the USA and called Govt Interest Analysis.

8.3. Examples of Choice of law rules:


- Includes all of Book 10.

a.3083 - The status and capacity of a natural pers are governed by the law of the domicile

a.3088 - Marriage is governed…by the law applicable to the status of each of the intended
spouses…domicile. Incorp by ref of a.3083.
      - Connecting factor = the person getting married and their domicile.

a.3088 Par 2 - Formal validity of marriage is governed by the law of the place of its
solemnization / by the law of the country of domicile/ by the nationality of one of the spouses.
              - These are called cascading connecting factors - allow any one of these laws
to validate the marriage.

a.3097 - Real rights in prop are goverened by (that's the connecting factor)….
Prob re movables - Must know WHAT & WHEN they are…. (b/c of their movability)
So this rule of 3097 must be complemented by an addition that says when the situation is so.

a.3111 - Juridical acts and Ks are goverened by the law expressly stated in act; ie. parties
choice = the connecting factor.

a.3078: Tells us that qualification is done acc to the law of the forum. To know what kind of a
prob you have for choice of law rules, you should qualify using the qualification cats of your
own law.

        Based on an arg of Ont Constructive Trusts - asked what an Ont CT is intended to
do?: Prof thinks it's intended to prevent UE, so w/in Ont law you find an explanation that's
consistent w/Que choice of law rules; and so in this circ - in an arg based on Ont CT - Que
would apply Que's choice of law rules.
        So you must qualify 3078 under choice of law rules, but there must be some flex re
the qualification; b/c not everything falls into clear-cut cats.

a.3082 - derived from Eur law = the proximaty principle = you should not take the choice of law
rules too seriously. When jdctn is appointed by the choice of law rules that's not so closely connected to the
case, and there's another jdctn that's closer to the prob you have to resolve, don't apply the choice of law rules.
Rather, apply proximaty.
                      = Authorization not to apply the choice of law rule when another
jdctn is closer to the prob you have to resolve.

Ex of the proximaty principle in operation:
A couple marry in Ont and move to Que, live in Que for 35 y, and aquire prop in Que. Now they fight over the prop in
all in divorce proceedings in Que.
Que choice of law rule says matrimonial law is governed by the antenuptual domicile of the parties.
So, technically, you'd apply Ont law.
But Ont doesn' t have much connection to the case.
Better to apply proximaty principle, and apply Que law.

a.3076 - Codifies interest analysis (ie. choice of law METHODS).
        - "The rules in Bk 10 apply subj to those rules of law in force in Que which are
applicable by reason of their particular object." = ie. all rules in Bk 10 must be applied subj
to unilateral interpretation.
        - The Que legislator, in enacting bk 10, does not want any of its other policies to be
neglected in applying the choice of law process.
        - The Que CPA is applicable by reason of its object.

         - So,Que - choice of law rules but rules are subj to int analysis, b/c que has codified
intrest analysis in the first article of the code (3076).

a.3079 - If there's a 3d state that has a law of immediate application, you may give effect to these laws.
         - ie. Don't always rely on the choice of law rule that says it’s the law chosen by
the parties; rather, you are entitled to apply law of the third state if it's of immediate
application; if it's indicated in the local law. [ie. if it's something that the local law has an
int in protecting.]
        - Deliberate attempt not to be unilateral re interest analysis.

- Symeonides - author that charts the methods of dif states. Says that most US jdctns are traditional - ie. follow choice of law rules.

- US has moved towards abandoning rules in favor of method.

- Choice of law rules was applied rather than rather than choice of law methods in the
following case:
Amiot v. Ames: (USCA, 1997):
FACTS: The injury occured in the Que side of the Que-Vt border.
          The pltfs car was dmged by a car driven in Vt.
          The def lost control of the car in Vt, and struck car parked at Can customs.
ISSUE: Poss of no suit in Que, and on the other hand, suit in Vt w/applic of Vt rules and rems.
Rule in Vt - the law of the place of the tort. The tort happened in que, so Que law rules, acc to Que.
So pltf loses, b/c there's no rem in Que civl law that Vt court would apply.
But Vt court held - VT. - Where def was sued.
So here - applied choice of law method rather than choice of law rule.

- Can has never abandoned rules.

- It's inaccurate to think that each jdctn only uses one "method".
  In both US and Can you really use both methods.
  In US, use interest analysis (method) more frequently.

- 2 args against method in US:

1) NYCA says: we're going back to rules. [Amiot v. Ames.]
2) Comparitive impairment = effort to avoid the unilateralism of interest analysis (ie. method)
                               - has been adopted in some state courts, in an effort to be moree
ven handed in their resolution of choice of law cases.
                               - Comp imp tells us: We must ask which jdctns law would be most
impaired by its non-application (ie of the jdctns law) in the circs of this case. That's another
way of asking - which jdctn is most interested in this case. This has been adopted by Calif.
See Baxter article. Baxter is said to have invented this theory.
It's an effort to be bilateral about interest analysis - to ask which state is most int.

- US - in principle int analysis (methods), but look in large measure to rules.

The renvoi problem: Rules are dif from one jdctn to another, obviously. So the rules of jdctn A say - the rules of x
jdctn applies. Rules of jdctn B say - the rules of jdctn y apply.

How do you get out of a renvoi sit? You can't by looking at the rules (obviously).

So you must look at the facts of the case, and ask - which of these 2 jdctns has a greater interest in having their
legislation being applied re the facts and circs of this case.
Must ask - what would you do if there were no rules.
Ask eg - how long have the parties been there? From where did the property come? Etc.
If can't decide - if the ints are seen as equal - there is an author who says you should flip a coin. He defends this in
view of the adjudicative function. [?] Others have said: Local judges, local law - ie. local judge should apply their own
law. Presumption in favor of lex fora. But that is a very rare sit - that the interests are seen as equal.
- Most jdctns don’t use renvoi any more.
- Que explicitly abolishes it in a. 3080 - abolishes renvoi.


- Pure territoriality - local law.
- Choice of law method in Mx law until now.
- After NAFTA, prof says - choice of law rules are more approp.
- But as of now, prof says - "We have no idea what's going on in Mx now".

9. Direct Regulation of Foreign Activity:
1) Limitations of direct regulation of foreign activity:

- Direct regulation of foreign activity is called, in France, "la condition des etrangers":
- Concern is re cases where there's a direct material result given legislatively. In all
such cases, the choice of law process is displaced.

- Foreigners are usually prejudiced by these rules.

- Ex of cases where there's a direct material result given legislatively:
Ex: The rules re refugees don't admit any choice of law process. Domestic substantive law is
always applied.
Ex: Rule on security for costs: Non-resident pltfs in Que must put up security for costs at the
initiation of the proceedings. This rule 'horrifies' US lawyers.
Ex: Foreign ownership rules.

- In each case, in each country, it's an exercise in knowing limitations on civil rights or private
law rights, and knowing how you challenge them.
- Now, in most jdctns, all people/ citizens has the full enjoyment of civil rights. ie. CCQ a.1 -
that's the presumption now prevailing in all W'ern jdctns and in N Am.

- So Q is: What is meant by local laws limiting the direct regulation of foreign activity?


 A: Can law authorizes differentiation on the basis of residence and domicile re a
whole range of benefits. This is also used more explicitly to limit/ exclude.
   eg. Morgan [PEI]: PEI ct said you can't prohibit non-residents from buying land in PEI.
SCC said you can prohibit non-residents from buying land in PEI!! FACTS here - 2 US non-residents of PEI
wanted to buy land in PEI.

     Citizenship is used much more rarely, even at the fed level.
True, non-citizens do not have access to the mobility rights of s.6 of the charter.
But citizenship plays a lesser role, even at the fed level, in terms of social differentiation.
    The only place where citizenship is used in a fed collaborative manner is re land.
Citizenship Act s. 34 [see csbk], the 'feds' said - if a prov wants to prohibit non-citizens from
acquiring land, they can do so. To profs knowledge, only Alta has exercised this rule.

2) Control of direct regulation of foreign activity: Challenge to limitations:

- a.15 of the Charter (Andrews) says that nationality is analogous to those grounds listed
under s.15.
- Can argue that ruling differently re citizenship can be prohibited under s. 15 but can be
justified under a. 1 of charter.

- a. 7 of Charter - on natural justice. SCC said: Whenever anyone is on Canadian territory,
they are entitled to rules of natural justice (Singh case). Can territory includes airports. In
US, they hold that airports are not US territory.

- We must also think about NAFTA. NAFTA guarantees natural treatment - excludes discrim
on the basis of citizenship, where NAFTA applies.

USA: Limitations + Control of direct regulation of foreign activity:

- The sit is not so dif in the USA; here you also have limitations based on residence/ domicile,
and limitations based on citizenship.

- Prof's impression is that Citizenship is used more frequently in the US than Canada.

- Re bill of rights - equal protection cl of the 14th amendment - this has been extended to
foreign citizens. So foreign citizens in the US are entitled to the equal protection of the 14th
amendment. " Aliens are a suspect category which require a high level of scrutiny."

- All land restrictions, so far, whether on the basis of citizenship or residence, have been
upheld by US courts.

- So there are ways of challenging limitations, but ways of challenging re land is not as
successful in US as in Can.

- Can also challenge limitations on the basis of NAFTA and of treaties which have been
implemented into US domestic law.

MEXICO: Limitations + Control of direct regulation of foreign activity:

- Mex is well known for its protection of foreign activity in Mx. There is an intense network of
protection of foreign ints.
- The direct regulation of foreign activity is far more imp in Mx than in US or Can.

- Challenge this by reliance on
1) division of power (citizenship)
2) Mx bill of rights, which prohibits discrim on the basis of citizenship. Remedy is amparo.

- The same rems are available under NAFTA as in Can and US.

10., 11., 12. Examples of choice of law processes:
- Choice of law looms large today: which law will guide the issue in a particular case.
- 3 areas of choice of law process as ex: 1) Tort & Delict
                                          2) Contract
                                          3) Security on Movable Property.

10. Tort & Delictual liability:                                         Nov 15

- There is large case-law in this area in N Am, particularly in the US.
- Car accidents have given rise to this area of law.

- Point of departure: applicable law is lex loci delicti (LLD) = law of the place of the tort/
wrong. [Since criminal law is territorial in character, it is said that civil liability should also be governed by the law of the place of the wrong.]

- Ex: If tort occurs in France, Fr will be the forum, and will applies French law b/c it's the LLD.

- History: CL jurisdiction over foreign torts occurred sooner than in CivL jdctn. Found it difficult to abandon the law of
the forum, so continued to apply local law.
           Classical English rule was said to be a double-barrelled rule = a tort was said to be actionable if it was
actionable in English law, but it also had to be "not justificable" by the law of the place where it happened. (LLD.)

                                   Tort & Delict
CL Canada                - Radical (strict) LLD rule that applies to all tort sits.

Que                      - LLD rule, subject to exceptions. [a.3126, 3128]
                         - Also, no-fault regime, no matter where accident occurred.

US                       - Interest analysis, except NY.
                         - NY has Neumeier rules = apply LLD except in certain circs.

Mx                       - Vague LLD rule: don't know if they've ever taken jdctn over a foreign ct and applied law
                         other than their own [the law of the forum.]

McLean v. Pettigrew (Canadian case):
FACTS: Que pltf and Que def have an Ont accident. Law of Ontario said guest passengers cannot sue their drivers
in order to prevent collusion. Rule is that there's no liability in Ont but there is liability in Que.
ISSUE: What laws apply? Apply double-barrelled rule:
a) Is it actionable by Que law? Yes.
b) Is it justifiable in Ont? SCC says it could still be an offence under the Ont Highway Code, but they say it is for the
Que Ct to decide if contrary to the Ont Highway Code, thus we apply Que law.
- Thus, where the action was brought controlled what law was applied. B/c Pltf could control the choice of forum.
- Overruled by Tollefsen, see below -> APPLY LLD.

- Lex fori rule = your choice of forum law applies to the merits of the case.


- Que now enacts the no-fault auto accident rule. This means that no litigation is permitted
in the future for car accidents that happen to Que residents, no matter where the accident
happens in the world. Quebecers get compensation, and the amnt is capped.
Amount you would get is less that you'd get under negligence. Get 35,000 max a year -> So damages are less in this area if sued.

- But there is nothing that prevents the Quebecer from suing the def in the jdctn in which the
accident occurred. ie: Que pltf gets into an accident in Vt. What happens? You carry the benefits of the Que scheme w/you in N Am. Recover
a max of 38,000$ in compensation. But damages are more - do you sue in Vt? Yes, there is nothing that prevents this. Que law does not prohibit this
alternative - you can sue for the excess. Vt will apply Vt law, and you will get millions.

- If a Quebecer causes dmg in another jdctn, your no-fault insurance won't cover you. So
Quebecers need a lot of extra car insurance if they drive in other jdctns . [What if you, a Quebecer, causes
the damage in Vt? Quickly return into Que -> You get notice of suit pending against you in Vt w/r/t accidents to Vt pltfs. If jmnt is rendered against you, Que
insurance to pay US jmnt -> won't just rely on insurance = to be extra insurance. Should take insurance up to 2$ million when going to US. ]

- What if you injure a Quebecer in Que? A Quebecor takes benefits of Que no-fault scheme.

- If accident in Que happens and you injure a Quebecer by an Ontario car, you can sue the
driver in Ont. Ont law will apply. This won't bother the Ont defs much b/c they're insured.


- What if a Quebecer runs over an Ont person in Que? The pltf will sue the def in Ont.
Until 1994, Ont cts applied the rule in McLean, which is contrary to Que law. How will you
pay for this? You don't need insurance b/c it's a no-fault scheme.

Then, 1994 case of Tollefsen v. Jensen overrules McLean: SCC said: Revert to a LLD to
avoid mess created. There are no exceptions to this rule. So in the ex of the McLean case,
[above] Ont court would apply Que law, not Ont law.

[Will this rule in Tollefsen v. Jensen be respected by lower courts? Prof thinks not.]

- CL Canada now has the most civilian rule b/c it’s the LLD, and this applies to all tort sits.

- Radical LLD rule = This applies in CL jdctns. Common law Canada has same rule as in
France. Apply LLD in all sits, with no exceptions.

- Vague LLD rule = don't know if they've ever taken jdctn over a foreign ct and applied law
other than their own [the law of the forum.]

- Also have LLD rule subject to exceptions = a.3126 CCQ and 3128 CCQ, which says in
principle if is LLD but there are exceptions.

- Interest analysis, except for NY.
- NY has Neumeier rules = Basically we apply Lex Loci except in certain circs.

10.1. US: No rules approach = Interest Analysis (Choice of law

= approach where there are no rules in matters of civil liability; Rather, examine issue and
a) determine legislators intent AND/OR
b) determine which state is most interested in having its law applied in this case.
(Comparitive impairment). Which law/ policy will be most impaired if not applied to the case?
Thus, simple process of interpretation.

- How does this play out? We look at classic sits:

Sit 1) Classic foreign party sit: Local person is injured in own jdctn by the act of a foreign

 Then, in CL (common law) Canada, law is LLD. Law of foreign def has no consequences.

          in Que - LLD as well, subject to a.3126, 3128.
          Same in Mx and US (NY).

- US decisions reach conclusion that it is the LLD rule which will apply = won't speak
about rules, but reach the condition thru interest analysis.
It's an important analysis. Which jdctn's law is most interested in being applied?

- If pltf is injured in their territory by a def who comes from smwhere else, Prof thinks
most US cts will apply LLD.

- US cases: Bernand -> Harris Club (casino) advertises in Calif. Californians flock to this place and drive back to Calif. Runs into a
Calif person. The person sues the innkeeper for having created wrongful circumstances, thus brought against Nevada Def.
Calif ct says we engage in impairment. The policy behind Calif rule is to compensate pltfs if negligent of innkeepers and this will
impair Calif Pl if not applied, thus total impairment. But we also have to look at Nevada's rules and this says: no civil liability. Calif ct
says it doesn't say anything about criminal liability, thus to what extent are Nevada's policies impaired? It's not really impaired, and
not as severe as Calif. Thus we conclude that calif law is most interested, and this means LLD.
  Still no rule in Calif, but interest analysis will lead you to this.

- Neumeir: [NY CA] Ont pltf was guest passenger -> NY def and a NY driver goes into Ont and has an
accident. The action is brought in NY. NY CA says looking at interest of NY and Ont, there is no
interest in applying NY law thus we in NY apply LLD b/c the accident happened in Ont .

 Neumeir rule 3: If from 2 dif states, apply LLD rule. Exercise enormous influence on the
other state jdctn.

Nov 17

- Almost all N Am jdctns end up applying the lex loci delicti in international
litigation. So when the case is an int'l case, only b/c of the foreign domicile of one of the
parties, that single personal attachment of one of the parties to the lawsuit does not seem to
impress courts that they can apply the law other than the lex loci delicti.

Sit 2) Both parties have same (common) domicile:

- How are these sits solved in US under interest analysis?

- The case that started all this - Babcock v. Jackson [in csbk, 1968, p.168]:
FACTS: Common domicile. 2 NYers drive into Ont. Have accident. Passenger sues the
driver def in NY.
HELD: NY abandoned the LLD rule. Refused to apply Ont law. Instead, has a greater
interest in applying its law, and therefore says: Must engage in interest analysis in each
individual case. NY STATE LAW.
RATIO: B/c of imperitive character of the common domicile of the parties.

- Miller v. White = The Vt case that brought about formal change of Vt law to the
restatement 2nd [Most sig rel].
US kids come to Canada to go to Frontier café. Have an accident in Que.
Ask jdctn first. Court in which this is brought: In Vt state court.
Miller goes home to Vt and sues White in Vt. Trad rule: Lex loci delicti.
VT State Ct: Decides it will no longer follow the LLD rule. Rather, looks to most sig rel.
What is most sig rel? Babcock v. Jackson all over again. ie. applied Babcock v. Jackson.

- Miller v. White: Principle: the place of the common domicile has the most sig rel.
- 2nd restatement - Sig rel is another way of formulating interest analysis.

- Thus, common domicile of the parties leads to abandoning the LLD rule in favor of an
interest analysis. Common domicile prevails.

 Prof: "There's enough consistency in US state law to lead prof to believe that it’s the int of
the state of the common domicile that prevails".

          "The results should follow from the choice of law process."


- a.3126(2) - where the parties are of the same common domicile, must apply the law of the
same common domicile.
  The LLD may be regarded as fortuitous when the people suing e/o are from the same place.

- Que sit parallels that in the US.
Ex: 2 Quebecers have accident in Vt. No litigation for car accident; no dmgs awards; no remedy.
So, inclined to sue in Vt - accident occurred in Vt, thus satisfying Vt law. Vt courts will apply what law? Come from same place, so Miller v. White applies. Que law applicable, which
precludes recovery, so no damages will be awarded. Effect is that it precludes suing.

Ex: 2 US residents - accident in Que.
Que ct would apply US law -> import into an accident which occurs in Que, US on foreign law (does not mean that crt will grant dmgs, punitive, on US scale - This is done acc to the law of
the forum. ) More dmgs if sued in Vt. This application of the foreign law accords with the law of the common domicile of the parties.


- has strict = radical LLD rule. How does this work in common domicile sits?

Sit a: Strict application of the LLD rule.
2 Ontarians drive into Que, have accident in Que, go home, one is injured (the Ont passenger) so the passenger sues in Ont for dmgs. Strict LLD rule. No
exceptions. Ont ct must apply the law of the place of the delict.
The Ont injured passenger can't sue in Que. No one can sue in Que for car accidents.
The Ont court will have to say no comp to the Ont pltf injured in Que. This means that the Ontarian doesn’t recover. That's going to be v. hard to maintain.
That's the rule the SCC adopted : LaForest J. said order must preceed/ override fairness.
This is a strict application of the LLD rule. This is a rule w/Draconian consequ in common domicile sits.
Ont Ins co will pay compensation under the Que scheme, which is capped at roughly $33,000.

Sit b: Also apply strict LLD rule.
Two Quebecers have car accident in Ont. Quebecers can' t sue in Que (no one can) but can sue in Ont, where the tort occurred, b/c of the LLD rule.
What is the choice of law rule in Ont? Radical LLD. So Quebecers get what Ontarians don't get. In this case, Ont crt will apply Ont law.

Sit 3) Border crossing injury (ie. product liability cases):

- Issue is: where is the delict, given that dmg-causing products are produced in one place, but
injury occurs in another.

- Ostroski:, 1995, Ont, Lexis 4672
FACTS: Can manufacturer, Ont def, shits office chair to Pa. Pltf in Pa is injured b/c of chair, (falls off it), sues. Limitation periods are
now qualified as being part of the substantive law of tort/ delict; not procedure. Ont has no lmitation yet running.
ISSUE: Where is the tort?
HELD: Ont CJ says the tort occurred there where the injury occurred. Yes, true chair may have
been manufactured negligently, but that's not enuf; tort is only completed when there's injury. Here, injury was
in Pa. So Can manufacturer was successful in having the case dismissed.


- Most crts in the US follow the rule of applying the law of the place of injury. (LLD).
[Symonides]. Symonides' annual survey of int'l law, 1999 vol, p. 371: Says - there are no such thing as indiv precedents in US law.

- Kozaway v. Massey Ferguson: 722 Fed Sup 541, Fed Court, Lexis 12120:
FACTS: Farmer in Alta has both arms pulled into a combine, and sues the manufacturer of a combine in the US. The combine is
made in Iowa. Suit is brought in Colorado.
Fed district Ct in Colorado has to apply Colorado law (Erie) and Col choice of law rules (Klaxton)
Law = look for most sig rel. Made it a choice of law case.
ISSUE: What is most sig rel? It's not the place of the injury.
Said that Alta has only negligence liability. Puts a cap on the recovery of non-phys dmgs.
Iowa law - strict liability , no … no cap on (see above) plus punitive dmgs.
HELD: Counsel decided to make it a choice of law case.
US district Ct in col says that Iowa has the greatest interest b/c it wishes to control the conduct of companies that are domiciled w/in it.
Applied 2nd restatement rule based on the most sig rel = (a) what forum has the greatest int
in having the law applied , and (b) q of impairement, and (c) what is the int of the other states

True that Can is interested in compensating its domiciliaries, but in this case the domiciliary would be better comped by Iowa law and
not Can law. [Precarious reasoning here.]

- 2nd restatement test is that of the most sig rel. To find this ask - what is the int of the
forum; what is the int of the other states. So the 2nd restatement is another way of
formulating int analysis.


- Prof thinks Que has the best rule re cross border cases b/c:
a.3128: says in product liability cases, pltf has a choice, reflecting the reality of product
liability, btw application of
a) the law of def manufacturer's place of business, or
b) the law of the place where the product was aquired.

- Why choice? Reflects the reality of prod liab law b/c pltfs can formulate their claim such that
it applies to either law/ sit.

- General cl of Bk 10: Principle of Proximity: If there's a jdctn that has greater proximity than
that which would be applicable under choice of law rules, the more proximate jdctn can be
applied. [a.3082] ie. If there's a jdctn w/a greater connection to the case, you apply the law
w/the greatest connection to the case if applicable under the choice of law rules.

- The proximity principle has a limited application and is subject to the peculiarities of the
particular case.

10.2. Interplay btw PIL, tort cases, and constitutional law:
- Prof - thinks it's all constitutional law.

IPCO case: [1975, SCC, csbk]
- SCC gives three answers. Prof says only Laskin's is good; the other two are v. dif to justify.
- Laskin If it's a conflict/ issue btw PIL choice of law on the one hand, and the constit
and legislation on the other hand, apply choice of law principles (NOT rules), and then
try to argue what the constit could mean.

- What are the ch of law principles Laskin uses? He engages in comparison. He asks: Which
prov's legislative policy is most impaired by it's non-application in this case.
[Determines that Man's int is greater that the int of Sask and Ont.]

10.3. How to know what is a prob of tortious / delictual liability: Nov 22
[really at 2)]

- This is a huge prob re tort/ delict b/c probs are generally re many dif issues.

- 3 types of probs:

1) Sit where there are 2 competing choice of law rules, where pltf and def have some kind of pre-
existing rel, and one sues the other.
Eg. Where there's a K.
Eg. Any kind of fid rel.
Eg. Family rels - the most obvious sit. Parent-child, spouse-spouse, …
So, if there is a unity accorded, and there's a case where 2 people in a rel go outside they're
jdctn and one causes dmg to the other, is the immunity from the jdctn they've come part of
fam law/ delict law. [Why does this matter? B/c either they're governed by law of delict, OR
they're governed by the law of familial rels.]
There are no rules that tell you how to decide where it falls.
What to do?
Do what Laskin said to do in IPCO - rely on choice of law principles.

So int analysis comes back into this law of qualification.
Prof would argue generally that familial rels should not be governed by the place of the tort/
delict, but rather by the law of the pers rel that applies.

Look to law of the pre-existing rel governing the effects of marriage. Eff of mar is gov by the domicile of the spouses.
Under Alta, there is no spousal immunity.
Can sue in alta then. But the def counsel will say - this action must be dismissed, b/c by the forum where the tort occurred, one
spouse can't sue another. So j in Alta will have to decide wh the law that applies is that of common domicile or that of the place of the
tort. This is a classic ex. Issue: What method of determiniation / choice do you use in qualifying the cases. You must look at
the domestic rules which would be applicable, and determine which would be applicable given their
objective. So it's a q of domestic legislation.
The rules don't have it all. The rules just say there are these categories. Then parties must present args to the J.
[But this prob is diminishing in imp b/c of insurance cases. ]
In this sits, the prof says that the only real defense is that of spousal immunity.
Lex loci delicti applies to all governing tortious behaviour…
To prof, the purpose of spousal immunity rules (that spouses can't sue e/o) is familial relations.

2) Pltf causes dmg to X, and TP def sues. Accident. Causes ricochet dmg to smone else.
This may be a family sit.
Does this sit follow LLD, or does the personal law intervene to determine civil liability.
Eg. Pltf causes serious dmg to one spouse, and the other spouse sues for loss of support.
The rules here don't provide the ans. Given a confl of laws, must lose.
What are the purpose of rules that determine the extent of ricochet liability?
Must rely on whatever source of determination these rules can find.
Q - What is the purpose behind rules that determine the extent of richochet liability on the part of the def? Is that a
matter of family law, or a matter of civil liability?
A - There wouldn't be anything in particular about fam law rels; there would only be rules that say wh the pers would
have a recourse in civ liability. So logically it falls both ways; both fam and civil. Then you must invent rules for
wanting to follow one rule or another. Prof - in these circs, prof believes lex loci delicti applies.

3) This sit follows from 2).
TP is suing as a heir to the deceased, suing for dmgs for pain and suffering caused to the deceased prior to his death.
How is the case now qualified?
The law that governs is the law of successions.

Result: In these kinds of triangular rels, you never know if you'll be applying LLD or the
law governing the rel; it depends on the rel. It's always 'a new game'; there are no
rules, and what you're doing is interest analysis.
4): Where smone has caused dmg to pltf, but pltf choses not to sue the pers who caused dmg, but a deeper pocket! B/c of the rel btw this pers and he who
caused the dmg.
The rel btw the pers who caused dmg, and the deeper pocket, may be a rel of agency/ partnership [except for LLPs]/ employment; the employer/ deeper
pocket is vicariously liable. Also can be : Parent-child rel, vendor-manufacturer rel (probably), person who is 'en garde de la chose'…

FACTS: 2 Colorado domiciliaries go on vacation w/a Mass domiciliary to BC, where they have an accident w/a car driven by a Jap citizen, resident in Saudi.
The Jap citizen has rented his car in Washington State.
ISSUE: Where do you sue?
Test - diversity, min contacts. You could sue in Washington, but then - forum non conveniens, prob, b/c that's not where the action occurred.
Action - in BC.

The real pocket you're after is the owner; the rent a car co in Washington.
But forum is BC - Lex loci delicti.
[[[HELD:]]] So this is a tort Q. The law of BC applies.
Is it the case, however, that the K of rental is the law that should be governing the rel?
What qualification should be given to rules of liability?
Is the rule re the liability of the owner an essential feature of the car rental K?

NB: There's no rules here.

Prof thinks should apply LLD here.

Symeonedes looks at 15 car rental cases; 7 apply the LLD; 7 apply the law of the place where the car has come from ie. where the car was rented. [US

11. Contractual liability:                          Nov 24

- What law governs Kual liability?
- There are more rules re K than re tort, b/c the US has rallied to a basic but new positn re K.
- Everywhere in N Am: 1) look to party aut
                        2) look to limits on party aut.

11.1. General Principles: Subjective + Objctive views of party autonomy:
- OLD position, which is now being challenged: The US is coming from the same position that Mx
has trad had. ie. that the law governing K is the law of the place of the K; ie. lex loci contractus.
It's a purely territorial principle, which says that vested rights arise based on the law where something
happens. [US, Mx]

 So no party choice. Only the local law of the forum applies. V. hostile attitude to party autonomy re K.
Both the US and Mx oppose party choice. It's strictly territorially driven.

- The position of US and Mx is radically opposite CivL teaching.
Dumoulin in CivL said that the law governing Ks is the law chosen by parties.
The prob w/this CivL position is that they never applied it, b/c the law governing K was the law of Lex
Merc (commercial law.).

- Eur jdctns were the first to break out of the territoriality mode, and to say that the law of K is the law the
parties chose; not the law of the territory. But they never applied it.

- So the US and Mx position is an old position, and is now being challenged.

- Subjectivist positn - gives more importnce to party autonomy in choice of law governing K.
                      - Que, CL Canada, Russia.
  Objectivist position - gives less importnce to party autonomy in choice of law governing K.
                       - US, Mx, China.

[Although US believes in party autonomy, their law appears to be controlled by/ influenced by
the obj view.]

Both of these schools accept party autonomy re rules governing Ks.
All jdctns til 20th c refused to allow the parties to designate the law applicable to their Ks.

- Theory of radical territoriality = Call it this rather than theory of vested rights. = widely accepted theory of 19th and
early 20 th c = classic theory of PIL which says, the reason why we have PIL and why we is b/c we have to respect
rights which have been acquired in the place in which the juridical act/ fact occurred.
So it was territorialist and bilat/ multilateral in character.
People today don't adhere to this rule at all.
They say: Why is it that the law of that place vest rights? It's rather our choice of law rules
that apply!

- Principle of party autonomy came to be recognized and applied from 1920ish on, and
its progression has been quite slow re move from rejection of party aut to objectivist (less
accepting) to Subjectivist (more accepting).

- Today, N Am is split btw subj and obj view.

- Subj view = more radical - says that the parties give themselves the law of their K.
The parties make, as part of their deal, choice of law clauses.

 What happens if you accept the subj theory in PIL?
1) You say that parties are free in chosing law applicable to K. They want the K to be
governed by its own terms - can be a "K sans loi". - doesn't have to be law of a state.

2) You can pick any law even if it doesn't have any geographical connection to the parties.
3) You can also pick non-state law. ie. eg. Vienna Convention on the Intl Sale of Gds;
UNCITRAL (rules on arbitration); UNIDROIT principles on obs for Int'l Ks.

- Obj view = Parties don't create their own Ks; parties can create Ks only b/c state law states
what the conditis of a valid K is, and the parties' autonomy is a function of the autonomy
granted by state law. This reduces the amnt of choice parties can use in in'tl sits. It also
rejects all the subj propositions - can't have a K sans loi (ev K is a K by virtue of State law);
Can't pick just any state law; can't pick non-state law.
Ie. Obj view says all is a Q of localization.

- Thus, there are v. large consequ that flow from each of these perspectives.

- What dif does it make if you chose non state law?
The objectivist theory - better to pick a distant state than unidroit principles…

- The law of the K applies to: material validity, effects, interpretation,…


- Que takes a subjective view. Evidence of this is in the CCQ:

a.3111 par 1: A juridical act, wh or not it contains any foreign element, is governed by the
law expressly designated in the act.

                 Prof: This is the language of party autonomy. This is not the language of
        localization. This is subjectivist language.

a.3111 par 3: The law of a country may be explicitly…desidgnated as applicable to the whole/

                 Prof: This is depecage. This a. says: A K can be sliced up, and parts can be
        submitted to law x, and part to law y; so part of the choice over particular law is
        controlling, rather than some global, objectivist localization of a particular K.
                      There is no limit on the process of depecage.

a.3112: Prof thinks this is v. subj in char
         = If no law is designated in the act, or if the law designated invalidates the juridical
act, they you apply the law of the country to which the act is most closely connected. = the
saving clause. This preserves party agreement.

a.3082: Also subj in char.
        = The proximaty principle. Apply the law most closely connected.
        - in sentence 2 says: this law does not apply to law expressly designated by parties…

a.3111: A juridical act - wh or not it contains a foreign element is governed by the law of…
        Thus, deals w/int'l Ks, plus purely domestic Ks. So, we'd have this choice of law in
que even when there's no que dimension to the K at all.
        The only reservation in 3111 is that you can't avoid mandatory provisions of the law
that would otherwise be applicable to the K.

- Prof thinks if you push Que law, it should authorize: K sans loi; State law other than…;
chose a non-State law (3 factors of subj law; see above.)

Can CL:

- Vita Foods:, PC, 1932 - IMP and leading case.

- At this time, Eur jdctns realize they must decide what law governs choice of law jdctns.
= First major case in Eur on party aut. Leading CL Can case.
FACTS: Shipping of fish. Collision b/c of storm, on the way to NY. Then shipped to NS. Fish go bad. So assignee sues in NS the
def for negl in the control of the vessel. It is alleged that there is illegality by Newf law in the issuance of these bills of lading.
                                                                         the choice of law
PC says: No there's not, but even if there was illegality by the law of the place the K was entered into,
clause prevails, overcoming illegality of the law of((?? the place the K was entered into?)),
and particularly when the forum is not the place….
So, the parties succeeded in picking the law of the jdctn that had no connection w/the facts of
the case in any way.

- Can CL has followed Vita Foods.

- Scoles & Hay write on this. p.671.: "parties cannot chose a foreign law where they have a
common domicile and are K'ing in that place of common domicile and it's a place of execution
of the K" = explicit denial of a.3111.
- US - an objectivist view - there is party aut, but the choices the parties have is limited.
- Only for big Ks does NY adopt the subjectivist view. NY enacted a law that says: In Ks for
250,000$ +, parties can chose NY law.

- Has changed its law.
- Fed Civ Code of Mx: a.13, par 5: Ks are governed by the place of execution in Mx unless
the parties have agreed to apply another law. This was created in 1988.
- Mx is more objectivist.
- Also, there is now the Mx Convention on Kual obs, signed in 1995. Prof doesn't know what
the state of ratifications is on this convention. It's meant to be signed by Can, US, and Latin
Am countries. It's meant to be a treaty to create a PIL of Kual obs in N Am.

We have been talking about sits where there's express choice of law.
If there is none express choice of law K, either by neglect, or b/c lawyers don't want to
raise the issue of choice of law, what do you do?

You look at contacts. Try to decide where the K would be best….
Try to determine the "proper law of the K".

- a.3112 CCQ = Act where the … was most closely connected.
  a.3113 CCQ - If there's no choice of law, look at the characteristic prestation.

- Prestation = means that the K is governed by the law of the person who performs the ob
which most characterizes this K.
             - What characterizes most Ks is never the payment of $, b/c this is common to
most Ks. It is the performance of the sale, etc, that characterizes a K. So in a K of sale, it is
presumed to be the residence of the vendor which applies.

Telmex buys phones from Nortel, payment in Can $, no choice of law cl., FOB Mtl (risk
passes when you put gds on board). What law governs this K? Que law. Presumption is
that it’s the person who performs the prestation…

So far, we have been talking about Gen principles - this incl Subj and Obj views. (I)

11.2. Limitations on subjective and objective views:
- Q is - to what extent are there limits on the subj and obj views?

- Flow from interpretation of domestic law.
- All choice of law rules are subj to control by domestic legislation.
- So party choice, which in principle is allowed, may be overcome in particular cases/
particular social policy behind…

QUE: Nov 29

- Has two types of limits on its subjectivist position:

a) specific limits - found in a.3117, 3118, 3119. These a.s protect consumers, employees,
and those taking out insurance. These people can not be prejudicially affected by choice of

        a.3117-8: Provide for minimal substantive protection that can't be deviated from….

       K cannot deprive the consumer of the protection to which they're entitled… So you
can chose another law providing it will provide more protection to the consumer; not less.

        For insurance, no choice of law at all. It's just excluded. Mandatory application of
provisions of Que insurance legislation.

b) general provisions - a.3076, 3079. These are the general clauses for laws of immediate
application = laws by which…are objective; take priority over choice of law rules. So these
clauses are always potentially applicable.

      When you have a proper law of K chosen by the parties, that legitimately
chosen law can be limited by local legislation. a.3076, 3079.

         3076 - allows intervention of Que's rules: "The rules of Bk 10 apply subject to the
rules of law in force in Que which are applicable by reason of their particular object": Codifies
interest analysis.
         3079 - allows a Que crt to apply rules of a third state if proximate (Prox Princ).

        Que has said 3117-9 are cases where we know we insist on…

        It's much less clear when 3076, 3079 apply, given the particularity of 3117-9.

        Que has mandatory law re leases of residential dwellings. Can't opt out of this.

        Ex of mandatory legislation that could fall w/in 3076:
        2 Vermonters in Vt, K says Vt law governs. ….. Fill in.

         3079 sit: 2 Quebecers enter into a K of lease in Vt. Issue: Is litigation in Que, if
parties have chosen Que law?

        3076, 79: Allow you to make args that party autonomy should be set aside.


- Process of interpretation of local law:
- 2 ex of how this occurs in CL world:

1) Thomas case: [SCC]

FACTS: Alta dealer in agricultural products. Vendor manufacturer of agricultural products in NB.
         The parties in their K explicitly chose NB law to govern.
         Alta, however, has a law which requires mandatory repurchase of agric products whenever
they're called upon to do so by the dealer. Why? To allow cancellation of sale when it's advantageous
to dealer.
         Dealer calls for repurchase. Thomas says: We'd rather not repurchase the gds, b/c this K is
governed by NB law, and NB has no ob to repurchase agric products.
         So goes to SCC, w/court divided radically in opinion.

HELD:     Clear that K is governed by NB law.
          SCC holds that the Alta legislation is applicable. Do this by looking at the language of the
          This legislation applies to this vendor, and to this dealer. Thus, the law is applicable to this
case. What's missing in the SCC's reasoning? That the K says its governed by NB law. So SCC is
reading into the Alta law that it's regardless wh the vendor and dealer are in NB/Alta or not, …

RATIO: Why does the SCC feel that this is so obvious that it requires no justification
whatsoever? There is no manufacturing of agric gds in Alta.

         So, in terms of our consideration of 3076, is the Alta law necessarily applicable b/c of
its objective? Yes. It's essential to effecting the policy behind the rule.

         SCC is on good grounds for saying this… overcomes party autonomy.

This is a gd illustration to prof of the type of case that 3076 is applicable to.
There are sits where 3076 has applic.
In both CL and CivL Can, can do this type of interest analysis.

2) Automatic systems:
FACTS: Co in Missouri subKs to Ont co. The subKs claim a builder's lien on the property.
        Prob is that the K calls for arbitration, to take place in Missouri.
        X says: Can't go to court and claim builder's lien, b/c we have an int'l arb cl.

HELD: Trial Crt: Claim for arb is rejected. Says that local parties can not be protected from
builder's liens enforced thru the court system..
         2 levels of CAs: Says - int' l arb has been adopted for int' l dispute cases, and this
must be respected, and a violation of this in the court must be stayed.

So arb agreements remove protection of suing in courts to remove builders' liens.
Builder's liens have its objectives fulfilled in the application …
So - interpretation is dif here to Thomas.

There are no rules that control the applic of 3076.

In CL Canada, haven't seen app of 3079 - there's no case that says.. re third state.

- But in Eng - case: Rolli Bros:
FACTS: Gds to be shipped form x to spain. Law of the K imposed no illegality. Said K was
illegal b/c price was too high. HELD: Eng court says it will not impose illegality on the law of
the place of execution - ie. won't say smone has to do smthing if doing it exposes him to the
risk of criminal sanctions in the place of execution.

So, 3076 - Thomas, Automatic Systems [These two are dif approaches]
    3079 - Ralli Bros.

Much room is given to party autonomy generally.

US, Mx:

- The same is true in the US and Mx: Much room is given to party autonomy generally.
- In US, there's a rule about party aut, but interest analysis is not taken to the extreme it is in
other areas of law. ie. in principle, the US will respect party autonomy.

11.3. What are the constititutional limits of states on party aut?
- This can happen b/c of the limits of party aut we've just seen.
- But what are the 'limits on the limits'?


- Ev seems to agree that Alta's legislation is mandatory legislation. Can Alta do this? Can it
make a NB manufacturer buy back products now situated in Alta.

If you're acting for Thomas, the main arg you'd make is: If Alta had said it was applicable, this
legislation would apply…The real arg is that alta can not do this; they don't have the constit
ability to make its legislation reach out to Eastern manufacturers.

- The basic arg in Canada is an arg of extraterritoriality under s. 92(13).

- What did IPCO tell us about how you resolve these horizontal conflicts btw Canadian
provinces? What do you look to in constit law to resolve this?
Choice of law principles, acc to Laskin. Not choice of law rules. The rules wash out.
It's comparitive in character and knowing which jdcnt is most interested in having these laws

- The offense in this case/ complaint being made in Thomas equipement:
Violating the Alta statutes thru the K by refusing to buy back the goods. Omitting to do
something. Where did they not do something? Where did nothing happen?
Nothing happened everywhere. They refused to buy the gds in Alta, NB, and everywhere!
So the Alta legislation has to punish conduct by omission which occurred everywhere in the
world. But b/c of extraterritoriality, there's no hope of resolving this case. Trying to locate
omission in a particular place is impossible, prof thinks.

What do choice of law principles tell you re wh can get away…
This process of interpr is the same thing as the constitutional process.

Dec 1

- Most sits will not deal with the Thomas result. It doesn't have to apply to external sits to
affect legitimately external sits.

- In Can, we have not only 3076, but also 3079.

- In Can - Unitary court structure. This suggests to prof there must also be 3079 in CL Can as
well; not only Rally Bros.

[NB law still applies but they're reading Alta law into the K. It's depecage.]

That's how you solve constitutional Qs in Canada.


- Similar process to Canada, even tho party autonomy is objective. There is a well
recognized principle of party aut, which is a choice of law.

In priniciple you can say to a US lawyer: There's a choice of law clause…

More secure re party's expectations…

- To what extent does the constitution prevent states from imposing the forum's law on
interstate/ interprovincial K?

- In the US, the constit is invoked against legislative unilateralism. This is where states
attempts to control interstate Ks.

- Huge obstacles for state legislative control.

- Also, in the US, must worry about judicial unilateralism. State js are guilty of this in the US.
This never happens in Can; prof has never seen a decision of a Can superior ct j challenged
on contit grounds.
But since US js are elected, the constit can be invoked against state Js.

- You challenge judicial overreach in the US by using the due process clause.

- Home Insurance, [1930 USSC]: Here, an ins policy was taken out by a Mex ins co def to a
Mexican insured. There was an assignment of the policy to the pltf. The pltf then sued from
Tx. Mexican K, Mx def, and the loss may be placed on Mx. But the pltf, who was from Tx,
goes home and sues in Tx. The Tx court applies Tx law.
This case is taken to USSC, which says that due process does not permit unilateral
application of state law to the detriment of ….

- Prof doesn't think this works through removal/ diversity.
You can't remove someone (a def) from state court b/c you think … is involved. Rather, must
exhaust local remedies.


- Works the same way, but again, you have to lose. But you only have to lose twice; whereas
in US 3 times - trial, intermediate CA, final CA.

- Mx: Trial, State Sup C, then remedy = ampero cassation. You're essentially appealing on
the grounds of the Mx constitution.

11.4. Knowing what is a K prob/ Determining the domain of the law
governing K:
- Btw parties, rel can be Ks, re families, re successions/ wills, delictual/ tortious liability.

- Exclusion of liability cls:
What's the purpose of this? It's to make Kual in char the extent of the liability btw the parties.
If it's a valid exclusion of liability cl, it precludes you from suing in tort.

- If the option is btw K and tort, then to what extent is the option not in domestic law, but in

Article 1458: Excludes option: "Neither party may in such case avoid… by opting…" =
Wabasso is no longer the law in Que.

Is option excluded in PIL? It is said that that is dealt w/by a.3127.
The Que bar commission said: If that's the intent of a.3127, it doesn't say…

Drafters did not use the v clear language of a.1458.

- In all the CL jdctns, there's option to chose what to sue in: K/ tort.

Prof doesn’t think Wabasso is overruled by 3127, and prof thinks Wabasso should continue to
prevail, b/c we're not in domestic, internal law.

- It seems to prof that where there are 2 laws present, either of which can theoretically apply,
the pltf should be able to formulate the claim in the way they chose.

12. Security on Movable Property:
- Statute reel:

- Lex rei sitae. = The law of the place of the situs. It is this law that prevails re movables and
immovables. This law even controls jdctn.

- Choice of law rule coincides w/choice of jdctn rules and says: It's the law of the situs.

- The only exception: When you can ID an action in personam running btw the parties.

- Movables create large probs for PIL; becomes more acute in NAFTA.
Prob: Conflict of space and conflict of time.
Since movables move, must decide if it's the law of the situs then, or law of the situs now.

How to solve the conflict in time Q when you're dealing w/movables: 2 ways:

1) Say it's the lex rei sitae now: - It would be divesting property rights at the border.
                                   - This also results in the acquisition of property rights.

2) Say it's the property law of the place where the prop was initially acquired: But the prob
w/this is that it leaves no room for application of the law where the prop is presently situated.

- So we should adopt a more complicated rule: That it's the lex rei sitae at the time of each
transaction. This is the choice of law in time rule, and the latest in time prevails.
ie. Say - sometimes it’s the situs then; sometimes it’s the situs now. It depends on the time of
the transaction.

  Ont personal property securities act
  Civ Code of Que s.3102-6.

- Everywhere in Que and Can, a regime now applies based on the UCC, and is replicated in
CCQ a.3102-6.

- So in N Am, except for Mx, there is a similar regime on property. This regime says - if
you're a security interest holder, and the movable on which you hold the security int is taken
into another jdctn, you have a period of time (which varies from prov to prov to state to state)
to perfect your security in the new jdctn through registration. If you have perfected it, then
sale w/in the period will not prejudice your rights as a security interest holder.


Certiorari = USSC agrees to hear the appeal.
Forum = the jdctn in which the suit/litigation is occurring.
Forum non conveniens = inconvenient forum.
Lex fora = the law of the forum

From Remedies:
Mareva inj:
The name of the inj comes from the Mareva case.
The inj is in effect execution before trial. It freezes the assets belonging to the def
before trial. The inj is directing at a bank/ person holding the def's assets, and the
def is ordered not to dispose of those assets before trial.

Interest analysis
Most sig rel.
Lex loci delicti

 Subject matter = rationae materia
 Personal jctn (US) = Territorial jdctn (Can) = rationae personae



4.2.1. Domestic jdctn: How courts assume jdctn over a case - what standards they
must apply to determine if they're allowed to take jdctn.
Description of how a court takes jdcnt.

4.2.2. Foreign jmnts: Can another court accept that the jdctn of the first court. What are
the standards for recognizing foreign jmnts.
Grounds on which they can accept jdctn of the first court.

    -       Freedom of mvmnt for gds and investment
    -       No provision for free flow of persons over the two boundaries
    -       Nothing on harmonization of domestic law
    -       No harmonization of rules & jmnts
    -       Presumes you can have a common market for gds and investment.

      -    Freedom of mvmnt, gds, investment, services. This incl fr of mobility of professional services. ie. A lawyer from any EU
           country can practice in another EU country, and after 3 y there, become a lawyer there w/o any exams.
      -    European directives.
      -    Harmonization of rules re jdctn and jmnt.
      -    Some harmonization of choice of law cl.
      -    Great harmonization and unification in Eur. Some Europeans say you can’t have a common market.

- Liberal model of the legal profession may exercise its services in the marketplace w/no other
condition for continuing to function.
- Model gives the profession certain functions by way of monopoly.
- Lawyers also have to deal w/confl of interest problems.
- Pleadings rules in US don't req - you to say much about lawsuits.
- Que still prohibits cont fees in Civ Code, but these provisions have expired, and it is now
permitted, although not in legislation.
- Canadian costs rule says, to a pltf and a pltfs' lawyer: the loser pays.
- You don't have to put up any $; I will take risk personally/ take TP financing, and I will do work on contingency.
- The procedure of choice of law rules is that of the place in which you litigate.
- US: This is combined w/court enforcements of ethical rules.

For a decade now, the effort has been to enforce ethical rules through statute-like
enactments, and apply this to lawyers who are specialists in working with the rules. [?]

- Corp structure does not affect your liability as a lawyer. [?]

- Means that it's a criminal offense in any NAFTA country to bribe a public official of (in?)
another NAFTA country. [Clarify**] This occurs in Can, US, MX.

- To what extent do you have to welcome foreign firms into jdctn?
In TO - no foreign firms practicing but there are FLCs
In Mtl - Practicing local law in Mtl, eg. Coudert Bros.
       Que law doesn’t'allow
       Que bar hasn't yet sued.

-> 2 sets of rules are competant [?] where and what forum you use to sue.

- 1) Subject matter jdctn (dealing with the system of courts which is competent for
adjudicating matter -> rules are of PO -> moving from court to court)

- GOOD DEF: 1) Subj matter jdctn = what level of court should deal with that subject.
            2) Territorial jdctn = in what forum/ territorial jdctn should the case be brought?

2) Personal jdctn in US, territorial jdctn in CL in Canada and rationae personae (Que) ->
Which court is competent to adjudicate the matter - that is, which has jdctn given the subject
matter = consensual based (not of PO) = agree where to sue on merits of the case. Consent
can be explicit or implicit - depends on conduct of parties.

Where in NA is this action going to be launched and defend class action?
1) Class action in Superior Ct.
2) Class action brought against Canadian def in Fed District Ct for Eastern Division of Tx.

What if we don't want to be subject to Tx Fed District Ct? What does it mean to be sued in
this jdctn?

What is a district ct in USA?: Federal Ct of first in stance = s.91 but for USA = 91 first
instance division of district courts. Must sue in district court in first instance.

- In district courts: To what extent is case connected to this jurisdiction: where you sue
depends on "venue"

- circuit crt is tantamount to crts of appeal (there are 11 geographic circuits)
- supreme court of the US (no auto right of appeal - must go up on certiorari)

Fed Cts in US:

Supreme Ct of US
Circuit Ct [11]
Trial-District Ct [91]

- NB: In every state there is a tripple level of cts. In municipal they are resp for State law.
Also competent in Federal matters unless matter is delineated to federal cts.

- US textbooks identify the law of each State, and separately, they identify the Federal law.

- The legislature decides which matter falls under what heading.
- Thus, in the US, there is a separation between State law and Federal law.

EX: US and Mexico -> In a federal state must have a federal court structure. Federation of
judicial saver. So in each state, it must have its own court structure -> judiciary of that federal
legislation. On state side, each state has their own common law, thus on judicial strucutre.

- law in US is the expression of local popular sovereignty -> translates into state judges.
STate judges in USA are elected , which means that they are elected by local people

- CUT: Federal court structure -> federal courts occupy the major position. Complicated in
operation but simple to explain with respect to US court structure.

- CUT: Who has jdctn? Tension btw 2 equal sets of court in theory and need for control be
exercised over set of judges over another. Control of federal judges over state judges = who
gets control is an issue all in of itself.

- -> constitution of US in question , federal cts given jdctn to decide case. - Bill of Rights q
w/in fed ct jdctn.

- CUT: State judges are thus subject to Bill of rights review. -> can find a state judge liable
for contravening or violating Bill of Rights => legal costs to person for recovery of remedy in
Fed crts.

- cl. in US is state law (Private K law/ not federal b/c common to all states)
- criminal law in US is state law/ except where constitutional law is concerned -> try to raise a
federal constitutional issue = expression, make a federal case of it.

2) Federal statutes and treaties: [In US, this is termed Federal law] - this includes CL.
- Even tho have not legislated, can claim jdctn through CL - this is controversial b/c US
assumes by its structure that each state has its own court strcture to own [?] ? law. Idea of
Fed ? law extends to everything the fed cts could be given jdctn to.

- Federal law applies whenever - courts decide that national interests prevail.
                                - the legislature has decided that the matter is a federal one.
A: Special jdctn of Fed Cts => have jdctn in Fed over state courts:

Where citizens are diverse, there shall be original jdctn on fed cts: Diversity jdctn - b/c state
judges are elected -> inherent bias against foreign people. Whenever a local person is
involved in a litigation with a foreign person, it is a federal court jurisdiction matter, so as to
eliminate bias => Diversity jdctn is key -> local sues a foreign person.

a) what is Diversity? Citizenship which is different => speaks to domicile/ domicile in different
Domicile is a connection factor in PIL => Diversity exists where there are parties domiciled in
different states.

b) $50,000 = lawsuit has to be more than $50,000

Eg. group of pltfs sues grp of defs, + there's one local pltf and one local def. No complete div.

Initiation of a suit in the US.
US - we start w/this b/c the system is the easiest to describe.
It is a federal judicial system in a federal state. [State courts are general & remedial].

       = If a pltf decides to sue in a state court, even tho it is a federal case, for complete
diversity, then as a def have a power to remove case to fed crt.
       - State courts are pltf oriented b/c jury sit in them = so if federal matter or complete
diversity issue, def can have case removed to federal court given the underlying assumption
to state courts are biased b/c are elected. [= Power to Remove].
       - Def can remove the case to fed court if there is diversity given the fear about jury bias.

In order to ensure fed jdctn is respected, defs are given powers of removal [-> make a federal
case out of it].

Through diversity and removal, tho these are equal, it's really the fed court structure that has
the greatest… [power?].

- Diversity cases [eg Erie RR] - re a state matter in a fed court, but you're suing a citizen in a
dif state.
Diversity cases are in Fed court.

The historical bias of the whole US judicial system = Swift v. Tyson = fed judges [[and def]]
have their CL and even in diversity cases, which in principle are matters of state law.

In diversity cases, Fed ct must apply general common law and fed ct is not bound by state
rules (in div cases), thus fed ct judges free from substance of state law.

States have their CL and feds have their own.

Erie = USSC says - this has become v. difficult and complicated to justify. It gets so
complicated that we must rethink the essential. In this case, the whole philosophy of the US
court structure is essentially overturned.

- CUT: Erie facts: Pa. pltf sues NY def in tort for a RR accident, which happened in Pa.[ie.
Diversity] Pa. law says no liability. Trial j says: Pa law may say no liability, but I'll let case go
to jury anyhow, b/c Swift says - In a fed court on diversity we are not bound by state law.

- USSC announces that in a diversity case, there is no fed CL.
Fed crt must guide itself by the law of the state where the action was begun.

- In diversity case, there is NO federal CL. Means that fed crout has to guide itself by the law
of the state where the action was initiated.

- CUT: USSC decided case as the Supreme court of the State would decide it -> best
estimate of what that state court would do -> a predictive effort and responsive to only law
that governs these matters - state law.

Thus, the only law that governs these matters (eg. tort) is state law.
Courts are to interpret and apply state laws.

Constitute denial of attitudes that there is a common law for each consitution. Outside
diversity cases, fed common law persists. In diversity case, as per Erie RR, there is no
federal common law.

Must est in NY the head of jdctn which will justify exercising territorial jdctn.

[[The Erie case def of state law is now v. large. ]]] .

Victor's notes til 4):

How do you know which law to apply when it is a multi-jdctnal case?

- state law if US law applies, but what applies if divided as per Ont and NY law?
- In this case, 3 choice of laws can be applied:
          a) federal
          b) state
          c) provincial.
Federal law eliminated as per Erie RR -> case did not mention application of choice of law
rules btw state and fed.
Whose choice of law rules are applicable?
Erie RR -> state law, mean totality of state law - thus need it laws to apply.

- Klaxon:    - What law applies to jdctn in a fed ct in a diversity case? The law of the State.
                NOT fed choice of law rules and methods in diversity cases.
              [Is this only re diversity cases?? I think so.]

It's simpler in Mx. Fed ct structure doesn't have the complexity of diversity and removal jdctn.
How does it work in practice/ reality?

Grounds of Fed jdctn in US and Mx:

1) Fed law largely defined.
2) Jdctn directly based on constitution and Bills of Rights.
3) Diversity (US only; not in Mx)
4) In Mx, something close to diversity had to be invented jdctnally, so "Ampero" was invented.

- In the US, you have diversity jdctn b/c there are elected judges, and people don't trust
elected judges if they're not the people electing them.

Re Mx Removal: So there is considerable dif re jdctn for Mx and US, b/c in the Mx system in
principle, it is not felt nec to give this kind of supervisory/ backup …

In either of these indirect ampero sits, it is open to you to sue in a fed district ct (in first

Where in N. Am. will suits be launched?
Depends on subject matter jdctn.
If it's a fed matter, have to show it is related to US/ Canada / Mx.

- Que North Shore:
Lawsuit brought by Ont pltf v. Que def in the federal ct w/the jdctn over inter-provincial
undertakings. Can the fed ct exercise jdctn over this case?
You must show there's fed law that applies to this case. This is a br of K case. What law
governs br of K? Provincial.
Parties even have said in their K - This K is governed by Que law.
So in US terms, its state matter; ie. prov matter governed by provf law.
We need fed law to nourish the jdctn of the fed ct.
What fed law can you find to accomplish this?
A: Fed CL.

- CUT: Re Que-NY sit [???]:
1) Must resolve Qs of subj matter jdctn. Solve this by looking at rules of the ct.
2) Personal / Territorial jdctn. Solve this by looking at rules of the ct.
3) Look at choice of law. Use CL choice of law rules.
  Substantive law - of the jdctn chosen

- Investors Group v. Hudson: [Not in csbk] [Recent Que case]:
FACTS: Hudson was fired from job. To get back at employer IG, H set up websites outside
of Que publishing defamatory material against IG.
HELD: It doesn't matter where you've done it. The def was domiciled in Que, and Que
courts did have jdctn.
PRINCIPLE: If the def is domiciled in Que, any suit brought anywhere can be raised against
the def in Que.

[Classic Civ law = domicile of the def law.]

a.3148(2) - refuses to follow the US model that says you can sue a co any… if it…
The dispute must relate to the jdctn. It's not enough that the firm is carrying on business
activity. Ie. US model - narrower.

a. 3148(1) - repeats a.3134, but specifically for patrimonial regimes.

a. 3148(2) - Que cts have jdctn over a legal person
                          a) not domiciled in Que but which has an establishment in Que, AND
                          b) where the dispute relates to its activities in Que. [DIF than US]
            ie. a foreign co, eg. in NY, Mx, Ont, but must have an establishment here.

             [US calls this "special jdctn".]

- Dif btw agreement and submission:
Agreement - prior to event

Submission - if accept the merits of def, you immediately are considered to consent [to the
case] ….

Language that's imp is "MINIMUM CONTACT"

You have to judge how intense should be their level of activity in the state.

- Connaught: FACTS: CL produces vaccine. To distribute this in US, created a subsidiary
called CLLI in Delaware, w/head office in Penn. This was done in way that parent co was not
controlling the subsidiary co.
One of the vaccines was used, and was given to a person in Alaska. They have a reaction to
vaccine, and go home to Kansas. In Kansas, they sue Connaught Labs of Toronto, in
They sue in Fed Ct b/c of diversity.
What law applies to jdctn in a fed ct in a diversity case? The law of the State [Klaxon electric
So we know that it's state jdctn law that applies in a fed ct in a diversity case.
So then need to apply pts 3-4 above.

- CUT: [Just before Oct 4] [[Q - Wh US jdctn exists on basis of a web site being available in
US - is that enuf for bus activity?]]
                          So far we've discussed bi-lat claims - one pltf v. one def.
                          Q has been wh you have jdcnt over this particular def.

If such action is raised in Que/ Ont, will the court bind the class wherever the class is situated
in N Am? - Can perspective.

[[[The NY class action case - seeks to bind Canadian class members. ]]]

Jurisdiction for class action proceedings,
People in jctn - ie. class members in jdctn
Class members outside of jdcnt

1st sit: Judgement is rendered against the def; for class members.
Jdctn over the def was established.

Jdctn over the class action members is solved thru the consensual nature of the jmnt; i.e it's
self-executing b/c pltfs agree w/a disposition that's in their favour.

2nd sit: If jmtn is neg:

A class action jmnt has the effect of res judicata re whole class.

Pltfs are fighting the jmtn - no consent on their part - so those outside the jdctn say they're not

In the pacemaker class action, begun in Ont, was an Ont corp distributing products made in
Can throughout the world.
Crt took jdctn for a pan-Canadian class.
Prof - cout have gone further and taken jdctn for a pan-American class.

Since class actions don't exist everywhere in Can [only in BC, ONT, Que], what is the result if
a non-class action prov sends a faulty vaccine out of their prov?
If prob is in Ont, can start class action in Ont, but the jdctn is a special jdctn, b/c the damage
was caused in Ont to the Ont defs. But must be limited to class of local pltfs.

Jdctn may be relatively simple in US, b/c in Us general jdctn exists everywhere for intense
bus activity.

But in Can, class actions don't exist everywhere.

If you are a def lawyer, must look for grounds of general jdctn .
I f you have a ground of gen jdctn, youdon't have to worry how it affect particular pltfs/ defs.

- Bankrupcty Act s.271 - codifies for Can bnkrupcy courts the authority they had already
recognized by themselves the equilibrium in bankruptcdy proceedings …
Company Crecitors Arrangement Act s.18.6(20)
[This Act provides provisions regulating near -bankruptcy.]
These sections envision N Am collaboration on bankruptcy procedures.
s.271 - They facilitate the proof….under the CCAA w/any foreign proceeding.

This is what Lowen counsel did. Said - go and defend.

If you do this, you preserve your objection to recognition and execution that you have no
defense on the merits anymore.

Eg. Canfield Technogoligies: JE 99-1817: The Que Co decided to resist on the merits, lost,
and then sought to resist execution on the merits in Que.

What are ground local counsel will use to object to local territorial jdctn??

From this point on [local constitution], you begin seeing what defense counsel will to do
prevent being sued in placed you don't want to be sued in.

- Brendan v. Zapata: public policy (PO) dimension of territorial jdctn is eliminated here as well.

Airospace v. x aircraft: [BCCA 173 DLR 498]: = good ex of successful DJ'ing.
BC co and a Kansas co are involved in the distribution of aircraft software. Begin to dispute.
BC co makes settlement offer which is open, limited to 48 h.
1 h before the settlement offer expires, an action is brought for DJ in Kansas by the counsel
for the Kansas partner. Even tho it's brought during the time the setlement offer should be
begun. The BC co then initiates action in BC.
The Kansas co then says - you can't sue in BC for dmg; we already brought suit in Kansas re
same issue.
BC court did not allow BC co to bring action. Why? We don't want to bring parallel
proceedings, so we tolerate the DJ ing process.
ie. DJ'ing was successful.

Thus, preemptive suit by defense counsel is now being affirmed and accepted by N AM
courts. The above case is prob the first case in which it was used and accepted in Canada.

FNC = a totally discretionary ground. For this reason, was seen as incompatible w/civilian
methodology in Que before 1994.

- AmChem [SCC, 1993, p.65] = leading case in N Am on this. HELD: Must be court which is
providing abusive/ illegit … to …. Read this jmnt.

- Asked: Is there reciprocity? CL Can did not have a procedure of revision au fond. Thus,

Q: What test does a US court apply to determine wh a foreign court was a competent court?
A: From state to state, test is Minimum Contact.
   Internationally, test is also test of Minimum Contact re foreign court.

As long as there's diversity btw pltf and def, the same diversity jdctn is open to you as if you
were suing in __.

Q - If you go to a Federal court, and you get an order recognizing the Canadian jmnt in favor
of execution, where in the US will you be able to execute it?
A - Wherever the assets are in the US.
Why? B/c this jmtn will now be respected from State to State, b/c it's now essentially a jmnt
of a US court.

If you go to a State court with your Canadian jmnt, and the def has assets in NY that you
want, and you obtain an order for recognition and execution in NY, where can you execute on
the basis of that jmnt? In every other state, provided the conditions are met.
Transformative jmnts: Transforms a foreign jmnt into a state jmnt.
[[If that's the case, there's always 'full faith and credit'.]

So, you look for the place you feel most confident of obtaining recognition and execution of
your foreign jmnt.
Once you get one state jmnt, that state jmnt is entitled to recognition and execution
everywhere else in the US, provided: competent court, no violation of due process, and no

[This can be done on grounds of subject matter jdctn.]

If you don't get this recognition in this court, your remedy is Ampero - which is a federal
remedy!! Thus, this is the only way to get into Fed court in this sit in Mx.

- What law will a US State court apply in terms of recognition of foreign jmnts? State law.
  What law will a US fed court, sitting in diversity, apply in recognition of a foreign jmnt? State law!! [Erie RR, Klaxton]
- all that law re diversity applies in terms of recognition of for jmnts as well.

The case that changes the rules for foreign jmnts is an interprov case.
In Morguard [1990 SCC], this CL has changed by an Alta BC case.
- Morguard [1990, SCC]: Facts: Alta mortgage creditor sues to recover on his debt in Alta after effecting service ex juris on def in BC.
What law is applied to the rec of this jmnt in BC? The CL CUT: Allows case to be reopened. [[[If case is not
accepted, no reciprocity.]]]
If case IS accepted after revision au fond, then reciprocity!!! [This last sentence: Not nec Que
and Fr.]

CUT: Que defs/ manufacturers have at least as much priviledge in Can as CL provs.

a.3155(5) = the public order exception. We don't recognize foreign jmnts if they violate PO.
NOTE: This s. doesn't say "if the foreign law that was applied was against PO." Rather, we
just examine the outcome of the foreign decision. Ie. Look at how law was applied in the circ
of the case, and only if it is against PO there, can't accept it.

Also, must not be against PO in int'l rel.
Ie. So re "against PO" - even this is restrictive.
a.3155 - also incl that don't recognize foreign tax laws. But a.3162 tells us that we will
recognize foreign tax laws if they recognize ours.

There are, however, refinements as to the Que jdctn:
a.3164: You have a foreign court when a Que court would have had jdctn. This a. incorps by
ref into the determination of the foreign court jdctn. This is called mirror principles.

Foreign jdctn is a reflection of our jdctn. Can do the same in principle in foreign courts as we
do ourselves. Prof: This is v. "salutory".

Nothing specific, but rather sits where Que court is entitled to take jdcnt/ to refuse jdctn it
already has.

Cortas Canning:

Action brought in Tx : Take jdctn on basis of 96$ sale in Tx. Punitive dmgs award was 9
million $. Asked to enforce in Que.
Que says: There is jdctn on part of Tx court, but must look at precise circs of each case. Tx
should have declined to exercise its competence.
It also says we won't enforce 9 million $ punitive dmgs awards in Que.

Many times US courts will take jdctn on the basis of intense activity.

What happens in N. Am. when these blocking statutes are enacted?
As a pltf's lawyer, what can you do about them?
If you have attained a major US jmnt against the Que asbestos industry, how can you enforce
that jmnt in Que?

US and Mx have a notion of the transformative jmnt.
You sue on the US jmnt in Ont (or another prov), and then get a jmnt in Ont that recognizes it,
and then get this jmnt applied in Que.
Ie. You have transformed the US jmnt through the ont jmtn into a que jmnt.

Since Hunt, Canada has the "full faith and credit" law - we can have transformative jmnts.

Oct 20:
Prob of recalcitrant claims.
3 qs a court should ask when a q of __ is put to it.
A condition of the recognition of the jmnt.
US notion of general jdctn.

Cases in which a Canadian court shall deny jdctn to a Canadian c ourt which has rendered a
class action: Prof: We should refuse to recognize cases of class actions of US when we
would not take such actions ourselves - the mirror test is not met; and there would not be a
real and substantial connection with this case.

What we will do is issue one claim which solves this prob once and for all.
This jmnt is given, and extends to all of N. Am.

3168(2) - says x is not sufficient. There would not be a suff real and substantial connection
btw that forum and….

If there's no jdctn of that [?] kind - if the class action rep sues the def in their home state, then
there's jdcnt in US and in Can also b/c if sue a def where there domicile is, can use that jmnt
anywhere in the world. [Check if this is right.]

So CA starts, then there is a deal that 's acceptable to lawyer, def rep'ing the class, and those
financing the activity.

Que - law of product liability is stricter than everyone says.

So there are real Qs of recognition.

- CUT: There is now cross-border recognition of states and US states recognize Canadian
cases; Canada recognizes US cases; reciprocal.

- CUT: Friedland = Canadian entrepreneur who became infamous in US for polluting mining
sites. US set up a Superfund to pay to clean up environmental sites.

- in CL, there were no provisional remedies; no way of pre-jmnt relief in form of seizure/
control of def's assets. Why? CL didn't recognize any pre-jmnt rights; so wansnt anything to
protect in CL until jmnt; pltf had no claim to anything until jmnt.
Alternative answer: In CivL, commercial law, and equity. ______

So in US and in Que and in Mx, there are saizie conservatoire.
In Mx, this is called the "embargo". [Say this in a fancy Spanish accent!]
I missed a bit here!!!
Seizure or attachment.

- No attachment in CL eng from 18th c. It got written out in 18th c; considered dangerous.
Thus, never came to Canada.
Thus, in Canada , no remedy re dealinjg w/debtors we knew would make their assets

From 1980 on, Canada began to use Mireva injunctions.
Thus, in 1975? or 1985, the Mireva injunction was invented/ discovered by Lord Denning .
This has taken off in the world. It is now well and solidly est in Canada.

- Need jdctn over defs, but don't need to know where assets are.

Alliance Bond Fund: [1998] [Csbk p.107]:
     Def in Mx is deliberately dissipating assets, and is sued in the US.
Acc to US, he is a def of general jdctn.
So in US court, def seeks injunction freezing assets which are almost entirely situated in Mx.
This question has never before reached the USSC.
SC has now decided this case on appeal in a 5/4 decission of June of this year, US SC
decided that there's no equiv of the Mireva injunction in US.
     Maj said that US received equity jdctn which had existed previously from Eng in 1789,
and in this year, the Mireva inj did not exist in English law.
The minority said it was part of the inherent jdctn of equity.
[Get on Cornell website]
So here a US court is teling an Eng court that the Eng court got it wrong in law, and that it
was created in the Eng court only in 1975, and thus could not have been received in US law.
     Thus, as a refusal of USSC, there is a lack of harmony in N Am.

- Pltfs now can say: Since there are rules of rec of foreign jmnt, you will recognize this jmnt.
Don't wait til the foreign jmnt is ready to be execute; freeze the assets now, so that you will be
able to execute the jmnt we will bring you once we are able to obtain it."

a.3138 CCQ = lifted from Eur union model where they provide… of other courts in Eur.

Read article by Paul Mitchell, the Mireva inj in aid of foreign proceedings, 1997 34 Osgoode
Hall HLJ 741: Says that Freedman is the first case in the Can CL case law which does not
follow the Siskina and has granted a Mireva in aid of an eventual foreign jmnt.

- CUT: Is it possible, in Canada, to ob [Can't ask this Q in Mx or US b/c all you can get in
these coutries are local attachments - ie. goods that are situated in those countires. ]
If you're suing in the US, a def which is amenable to Can jdctn who has many highly mobile
assets which are situate in US but not enough; so you have a US suit; US competitor; US
forum; Canadian def. And it is clear b/c of the jdctn rules we've seen that the Can court
recognizes the US jdctn.
If you are pltf's lawyer in the US, and mistrust the Can def; you can seize the assets in the
US. But local seizure in US is not adequate to ensure execution. Can come to Can to ensure
a Mireva. But what Freedman did was move most of assets to Singapore.
Q: Will Can grant inj to the benefit of foreign creditors, ….

Re discovery: Qs:
1) what is going on?
2) what collaboration exists?

Borrowing from Chancery and Equ (and thus, prof says, from CivL method of investigation),
say - before we get to trial, we'll allow parties to know something about the facts.

ie. pre-trial discovery/ investigation of facts. = discovery. This used to be done by Chancery
in England.

Eventually, want to get to evidence you'll present at trial to jury.

Given that it's already invented discovery, what does US have to do?
What has to assume the entire burden of est'ing issues, and generation knowledge of the
case? Discovery has to do it all. Discovery is essential in US procedure.

Discovery in US is extremely expensive (b/c associates bill hours.) (Now in US there's a tort:
Abusive process. Ie. if you've been 'over-discovered', can sue them back.)

Sit: Canadian forum, Canadian case, but a party is situated abroad.
Eg. a Wabasso type sit where a Canadian is suing a US manufacturer. It might also be a US pltf that is suing a Canadian manufacturer. [Connaught Labs.]

1) The provisions of that jdctn re foreign facts [Direct discovery and taking of evidence of a
party.] [Where it's a Q of a witness, more collaborative methods are required, and you must
seek foreign assistance from abroad.]
         - Letters rogatory, discovery, and assistance.
         - So Canada is not that aggressive; it doesn't seek to use its direct discovery
techniques against witnesses.

2) The provisions of that jdctn re local assistance
        - Canada uses blocking statutes.
        - Canada still uses discretionary authorization.

Thus, Can participates in process of Int'l judicial collaboration in N Am.

Q then is - when will a Can court authorize whatever is being sought in .. of foreign litigation.
Prevailing rule - for requests will only be acceded to when they relate to ev in foreign
proceedings. I.e no collaboration re aid in US discovery/ pre-trial investigation.

Prof thinks you can't rely on that old law any more.

Delois: [1996] 28 OR 188: [Get better notes]
Big NY securities class action. Defs using for a lot of $ b/c caused fall on stock exchange.
The … is so imp…
Ask to carry out discovery in Ont.
Ont's letters rogatory are used
What's explicit in this decision is that Ont crts will now recognize US requests for …
Ont court here refused to grant request. Was clear that class rep will impose…
PRINCIPLE: We see here Can judicial control over discovery being applied to US discovery

So once again, the direct discovery process goes on the outer limits of US territorial

Aerospacial case: [US case, IMP]:
What if you have a US pltf and a French def.
A Fr plane killed US parties in the US.
Discovery sought for direct discovery in the US of officers in the Fr corp, aerospacial.
Aero says: Yes, you can do discovery of us, provided you use the Hague convention.
Why….[fill in]
Prof thinks this is b/c Fr has a blocking statute.

The limit of investigation is the limit of investigation of Mxican procedure.
The parties are under an ob to collaborate.

  If Canadian courts receive a letter rogatory from Mx, they will

What this involves is evidence. What will be the probable reaction of Can courts from a
Mxican judge?

- Candior case: Dmg caused in Guyana by a toxic spill created by a Que def who is sued in a
foreign jdctn.
CL - if parties and lawyers don't want to apply law of Guyana, don’t have to.

- CUT: Most commercial disputes - thru ADR, particularly arbitrator.
An arbitrator does not have to apply rules of PIL.

[[[So since arbitration now basically has priority over rules of PIL because of the circs - ie. that
most commercial disputes go thru ADR - the parties are free to have non-state law in their
case.]]] Prof strongly supports ADR.

It's stated imperatively: 'shall be taken', but it is suff and nec that the j take knowledge of the
law through judicial notice.
It's another Q of wh the j must apply, d'office, the rules of PIL.

[The Guyanese lawyer in Cambrior said: We need application of Guyanese law, for certain

Choice of law: process:
We proceed on the basis that someone has said that this case involves this foreign element,
and we think the law of x applies.
So the other side applies, and there must be judicial determination of which choice of law rule
applies. Then, must go thru proof and application of foreign law.

Does a federally appointed j hold an inherent ob to the sources of local political sovereignty,
which are the sources of choice of law? No.

Pigeon J: "superior ct js are not state js."
There is an inherent confidence in the federally appointed j to apply law as it should be
applied, and not to engage in local law to the detriment of foreign law.

There is no diversity jdctn in Canada. So you have neutral js who are federally appointed,
and if you lose in Canada, your recourse is exercised by appealing, and if you lose again, you
can appeal again, and on your second appeal, you get to the SCC, which is the final court of
appeal for both provs (that from which the case is coming, and that which is connected to the

It seeks to apply either the law of the forum or the local law, depending on where the delict

- The primary forum for adjudicating private law cases is the states.

Due process - limits excessive or extra-territorial application of state law.

If you say that state choice of law processes have to be exercized acc to the constitution, the
structural consequence in the US court system is that (it's not good for the state js b/c they'd
have to be loyal to the constitution, and even worse and most importantly,) it's no longer a
state court issue.
It's a Q of the application of the constitution to choice of law.

So - locally elected js that have to be controlled by diversity and the constitution. This
impacts on choice of law. They don't use bilateral choice of law…

They use 'unilateral interest analysis' / 'government interests'.

Ask - is our interest greater than the int of … deciding these cases.
Prof: Thinks there's a big dig btw structural conditions and the type of law which will be used
to apply to a case.

- Choice of law process from a theoretical perspective.

Prob that has a foreign element eg. people from one jdctn going to marrying in another -
(issue: foreign validity of their marriage).
[No this issue - marriage and idvorce; not really a prob - harmonization.]

All PIL cases can have relevant foreign elements

Choice of law - 95% of these cases are resolved before we get to this stage.
We can go all the way to the SCC on the Q of where we can sue.

The philosophy of choice of law is the product of 19th c national sovereign thought.

Must have a choice of law process.

This is the way the rules are already formulated.
We don't have to decide/ formulate the rules; the rules are already formulated.

[[It's harder to change your domicile than your residence.]]

All of these rules are essentially constructed the same way;
All are built with the idea that need rules to solve the problem.

Federally appointed js in Canada seem pre-disposed to the operation of choice of law rules.

- NB: All of book 10 of CCQ consists of examples of rules - look at it!

Also, all the connecting factors are set out at book 10 - read it!!

McCloud publishes a book on Conflict of Laws in Ont.
R.54 - The essential validity of marriage is governed by the antenuptual … of marriage.
[Same as Que]

There is refinement re operation of the process.

- a.3079: - You don't go looking for laws of a third state that might be applicable; there must
be indication from this law. Is there something that the local legislation has an int in
protecting. [I think it's a.3079 that uses the term 'interest'. This language is sig.]

In really imp cases, where … wants to tell … how to resolve the case, This is called, in
France, "la condition des etrangers":

   All cases where there is a direct material result legislatively, the choice of law processes
we've been talking about is displaced.

It wasn't until 1946 that French courts actually applied Spanish law. Until then, there was
pressure to apply their own law. In 1946, the French court of cassation decided on a case
where the tort occurred in Spain, and applied Spanish law.

If Ont, sue Ont def in Ont for accident occurring in Que. Ontario law is applied for liability of
Ont def. Ont def is insured - so pltfs recover less - Can only sue for excess in Ont beyond the
no-fault capped $. [Victor]

[Geston and Lucces v. Gagnon???]

5 js out of 7 say we will not make any exception to the rule. Thus in the Ont case above, they
will Qpply Que law. Now, you are free to run over Ont defs. [Jon]

This applies in all circs in tort. It's simple b/c it involves just one rule.

Note: Our rules say: Don't look at which law is applied; only look at jdctn.

Mex: Vague lex loci delicti rule.

Radical (strict) lex loci delicti - Canada - SCC (get cases -Yeston, Gagnon). Q is wh they
will stick to it.

In Que and NY - there is a lex loci delicti rule, subj to exception.

Interest Analysis - everywhere else in US.

Classic domicile party case. Until this case, followed LLD rule. But if has a guest passenger
law jdctn, like Ont, no remedy b/c no liability.
NY STATE LAW. In this case, US abandoned the LLD rule.

Means that recovery is precluded if the place of the accident is a …. jdctn.
NY - said - no liability. NY STATE LAW here.
This common domicile case was the case that caused the US to abandon the LEX LOCI
Instead, say in each case: Must engage in interest analysis.
Why? B/c of imperitive character of the common domicile of the parties.
= NY law.

Newmyer rule starts with, when the parties have a common domicile, the intrest analysis
prevails, or the law of the common domicile. [???]

[Product liability cases - should have local counsel in order to know wh to plead foreign law.]


Vertical conflict of law - fed/ prov jdctn?
Horizontal conflict of law. - which prov has jdctn?

The normal choice of law rules are displaced; ie. no choice of law rules, b/c - The rule
becomes the rule that the legislator has stated, and it can only be challenged on constitutional

The constit in Can does not have same imp as in the US, b/c in Can - fed appointed js, and in
US - …

Man freshwater fish
Sask has …
Smelters. Dump stuff in rivers that run into Man. Man fisheries object. So they convice the
Man legislators to do something about this. The govt of Man pronounced a rule. Anyone that
injects toxic waste into waters that flow into Man rivers and cause dmg will pay = rule of strict
liability was created in Man.

No such rule of strict liaiblyt in Ont/ Sask.
So action is brought.
The forum in Man.

But case goes up to SCC. Justice Pigeon: Says fed ct js are not state ct js, they are js who
are resp for ensuring application of the constit.

Now rule: Law of the place of the tort that governs in PIL cases. Under new rules, it's still the
same q - where's the place of the tort - if you're looking at choice of law rules.

SCC gives three answers. [Prof says two are v. dif to justify]:

1) 3 js / 7: Pigeon +2: Man law can't be applied b/c what's interprovincial is federal.
Prof - this is difficult to justify. It would be impossible to apply prov law to cross border cases.
There would be no choice of law [ie. law of which prov to apply].
Pigeon - said we are a fed ct, not a state ct, therefore this is a constit q. Prof thinks it's a fed
This view has never prevailed in Canada!

2) Richie J. (by himself): This case should be solved by the application of choice of law rules.
Indeed, it is a choice of law case. but how could it be solved by the normal ch of law rules
when a Man ct has said - you don't apply the ch of law rules here; rather, apply a law.
So prof thinks this confuses the rel btw PIL choice of law on the one hand, and the constit and
legislation on the other hand.

3) Laskin: It's a constitutional case. How do you decide a constit case like this? Through the
use of ch of law principles, not rules. How do you decide a constit q of which prov's law
should apply? Use ch of law principles.
What are the ch of law principles he uses? He engages in comparison. Which prov's
legislative policy is most impaired by it's non-application in this case.
Laskin comes to same concl as answer 1).
If Man's legislative policy is not applied here, it's never applied. If this rule is not applied, the
policy is totally 100% ineffective, in the circs of this case.

[[There are also legislative policies of Ont and Sask - to let polluters pollute and not have
them pay. To what extent are the Ont policies impaired? Theyre' not totally impaired…..]]

Laskin - Man's int is greater that the int of Sask and Ont. Laskin compares the ints of the
jdctns from which appeals come. [???]

Pigeon - said we are a fed ct, not a state ct, therefore this is a constit q. Prof thinks it's a fed
Laskin follows this down to the last pt.

Prof - thinks that only arg 3) is a convincing arg.

Prof: If it's a conflict/ issue btw PIL choice of law on the one hand, and the constit and
legislation on the other hand, apply Constit principles , and then try to argue what the
constit could mean.

Now rule: Law of the place of the tort that governs in PIL cases. Under new rules, it's still the
same q - where's the place of the tort - if you're looking at choice of law rules.

- CUT: [[Dormant commerce cl exists in the US. = If it is something the fed govt can legislate
on, states can not legislate on this. ]]

What is a prob of civil liability?
What is a prob of tortious / delictual liablity?
Ie. Qualificaiton of prob of tort/ delict.

[LLP means there's no longer any rule of vicarious liability.]

Principle of party autonomy.

Interpretation of local law.

IPCO Test of the Constit: Laskin J: Choice of law principles, NOT choice of law rules.

Laskin's test is in minority in IPCO, but prof says that this doesn't matter, b/c he thinks the
other two opinions are completely indefensible.

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