PIL Summary

ContentsChoice of Law- General...........................................................................................................................................7

William S. Dodge, “Extra-territoriality and Conflict-of-laws Theory: An Argument for Judicial Unilateralism.............................................................................................................................................................................7

Multilateral-Unilateral distinction explained...................................................................................................7Multilateralism of ‘Vested Rights’..................................................................................................................7Unilateralism and the Application of Forum Law...........................................................................................7The Multilateralism of the Restatement (Second) of Conflicts' “Most Significant Relationship”..................8

Symeon C. Symeonides, The Challenge of Recodification Worldwide “THE CONFLICTS BOOK OF THE LOUISIANA CIVIL CODE: CIVILIAN, AMERICAN, OR ORIGINAL?”.....................................................8

Issue-by-Issue Analysis and Dépeçage............................................................................................................9CCQ arts 3076-3082............................................................................................................................................9

Choice of Law- Marriage.......................................................................................................................................10CCQ art. 3088, 3083: Validity of marriage – distinction between formal and essential validity.....................10CCQ arts. 75-83, 307 - Meaning of domicile....................................................................................................10Re Foote (Estate of), 2007 ABQB 654 (en passant).........................................................................................11

Choice of Law- Contractual Obligations...............................................................................................................13CCQ art. 3111- Freedom of Choice (party autonomy principle).......................................................................13Rome I Regulation- Summary (Check binder for actual version with highlights.............................................13

Freedom of choice: Article 3.........................................................................................................................13Applicable law in the absence of choice: Article 4.......................................................................................13Rules applicable to specific contracts: Article 5-8........................................................................................13Scope of the law applicable...........................................................................................................................14

Imperial Life Assurance Co. of Canada v. Segundo Casteleiro Y Colmenares, [1967] S.C.R. 443.................14CCQ arts. 3112, 3113 - Applicable law in the absence of choice.....................................................................15Rome I art. 4......................................................................................................................................................15Rules applicable to specific contracts in Rome I or the CCQ...........................................................................15Exceptions to freedom of choice in Rome I or the CCQ...................................................................................15

R. v. Thomas Equipment Ltd., [1979] 2 S.C.R. 529 - Operation of mandatory rules within the Canadian constitutional context.....................................................................................................................................16

Scope of applicable law, renvoi, and law applicable to formation of contract..................................................16Giesela Ruhl, Party Autonomy in the Private International Law of Contracts: Transatlantic Convergence and Economic Efficiency.........................................................................................................................................16

Connection to a Foreign Law........................................................................................................................17Substantial Relationship to the Chosen Law.................................................................................................17

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Choice of State Law.......................................................................................................................................17Priority of Protective Laws............................................................................................................................18THE TREND OF CONVERGENCE: AN ECONOMIC EXPLANATION.................................................18

Choice of Law: Extra-Contractual Obligations.....................................................................................................19Tolofson v. Jensen [1994] 3 SCR 1022.............................................................................................................19Neilson v. Overseas Properties (2005) 221 ALR 213 (Australian case!)..........................................................22CCQ 3126-3129 (general lex loci delicti rule; tortious breach of contract; manufacturer’s liability for defective products; special exclusion for asbestos-related claims)...................................................................24Private International Law Act 1995 (U.K.) Part III - Choice of Law in Tort and Delict (now superseded by the Rome II Regulation)....................................................................................................................................25Rome II Regulation on the law applicable to non-contractual obligations (summarized in the subsequent doctrine paper)...................................................................................................................................................25Xandra E.Kramer, “The Rome II Regulation on the Law Applicable to Non-Contractual Obligations: The European Private International Law Tradition Continued - Introductory Observations, Scope, System, and General Rules.....................................................................................................................................................26Babcock v. Jackson, 12 N.Y. 2d 473, 191 N.E. 2d 279 (Ct. App., 1963) (US Approaches).............................30Gilbert v. Seton Hall University, 332 F3d 105 (2d Cir. 2003) (US Approaches).............................................31

Choice of Law: Substance and Procedure.............................................................................................................32CCQ art. 3132 – General...................................................................................................................................32CCQ art, 3131 - Prescription/Limitation of actions........................................................................................32Tolofson v. Jensen [1994] 3 SCR 1022.............................................................................................................32

Limitation periods are considered to be substantive law in the common law...............................................32Castillo v. Castillo, [2005] 3 S.C.R. 870, 2005 SCC 83...................................................................................32

Crazy Basterache dissent...............................................................................................................................33John Lee, A New Uniform Limitations Act” (www.ulcc.ca)............................................................................34Somers v. Fournier (2002) 60 O.R. (3d) 225 (C.A.) (Quantification of damages)...........................................35Rome I Regulation, art. 12(c)............................................................................................................................37Rome II Regulation, art. 15(c)...........................................................................................................................38Weintraub, “Choice of law for quantification of damages: a judgment of the House of Lords makes a bad rule worse..................................................................................................................................................................38

Choice of Law: Proof of Foreign Law...................................................................................................................39CCQ art. 2809....................................................................................................................................................39Rainer Hausmann, Pleading and Proof of Foreign Law - a Comparative Analysis, The European Legal Forum...........................................................................................................................................................................40

Jurisdiction- State Immunity..................................................................................................................................42The State Immunity Act R.S. 1985 c. S-18, ss. 3-6, 18.....................................................................................42

Jurisdiction - Constitutional limits on jurisdiction................................................................................................43Morguard Investments Ltd. v. De Savoye [1990] 3 S.C.R. 1077...........................................................................43

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Hunt v. T&N plc [1993] 4 S.C.R. 289...............................................................................................................45Jurisdiction - Jurisdictional criteria.......................................................................................................................46

Ontario Rules of Civil Procedure, Rule 17 -......................................................................................................46Club Resorts Ltd. v. Van Breda, 2012 SCC 17.................................................................................................48

Jurisdiction Simpliciter..................................................................................................................................49Forum Non Conveniens.................................................................................................................................50

Uniform Court Jurisdiction and Proceedings Transfer Act (UCJPTA).............................................................51BC Court Jurisdiction and Proceedings Transfer Act (2003) – very similar to UCJPTA................................53CCQ articles 75-83, 307-308, 3134-54..............................................................................................................53Spar Aerospace Ltd. v. American Mobile Satellite Corp., [2002] 4 S.C.R. 205...............................................56Option Consommateurs c. Infineon Technologies, a.g. 2011 QCCA 2116......................................................58Catherine Walsh, “The International Jurisdiction of Quebec Authorities”.......................................................59

Defendant Connections: Article 3148 (1-2)..................................................................................................60Consent-based Jurisdiction: Articles 3148(4)-(5)..........................................................................................62Claims by Québec Consumers and Employees: Article 3149.......................................................................63Conclusion [page 30-31, page 31 is new material discussing recognition of foreign jurisdiction)...............65

Jurisdiction - Discretion to decline jurisdiction (forum non conveniens).............................................................65CCQ art. 3135....................................................................................................................................................65Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (forum non conveniens is exceptional, must show that the other forum is clearly better).............................................................................................................................65

Jurisdiction - Lis Alibi...........................................................................................................................................65CCQ art. 3137....................................................................................................................................................65Teck Cominco Metals Ltd. v. Lloyd’s Underwriters, 2009 SCC......................................................................65Brussels I Regulation, Summary, Report and Green Paper...............................................................................66

Summary........................................................................................................................................................66Report............................................................................................................................................................68Green Paper...................................................................................................................................................69

Jurisdiction - Consent-based judicial and arbitral jurisdiction..............................................................................70CCQ arts. 3148, 3149........................................................................................................................................70Ontario Rules of Civil Procedure, Rule 17.02(f)...............................................................................................70Hague Convention of 2005 on Choice of Court Agreements (www.hcch.net).................................................71GreCon Dimter Inc. v. J.R. Normand Inc. et al., 2005 SCC 46........................................................................73Expedition Helicopters Inc. v. Honeywell Inc., 2010 ONCA 351....................................................................74Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34 (S.C.C.)....................................................75Griffin v. Dell 2010 ONCA 29 (Essentially overturns the SCC’s previous decision)......................................76Momentous.ca Corp. v. Canadian American Association of Professional Baseball Ltd., 2012 SCC 9............77Microcell Communications Inc v Frey, 2011 SKCA 136 (Dell is effectively overturned)...............................78

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Preymann v. Ayus Technology Corporation, 2012 BCCA 30..........................................................................80Jurisdiction - Choice of forum, choice of law, and overriding forum policy........................................................81

Catherine Walsh: “The Uses and Abuses of Party Autonomy in International Contracts” (2010) 60 UNBLJ 12...........................................................................................................................................................................81

Jurisdiction – CCQ Exception (necessity, conservatory, consolidation, emergency)...........................................86Jurisdiction – CCQ Exclusive jurisdiction - Art. 3129 (asbestos related claims).................................................86Jurisdiction - Divorce Jurisdiction - Divorce Act (1985, c. 3 (2nd Supp.)), ss. 3-7..............................................86Recognition and Enforcement of Foreign Judgments and Awards – Generally...................................................87

Morguard Investments Ltd. v. De Savoye [1990] 3 S.C.R. 1077......................................................................87Hunt v. T&N plc [1993] 4 S.C.R. 289...............................................................................................................87CCQ, articles 3155-68.......................................................................................................................................87BC Enforcement of Canadian Judgments Act (2003).......................................................................................88Uniform Enforcement of Foreign Judgments Act.............................................................................................89Brussels I Regulation, Summary, Report and Green Paper...............................................................................90Beals v. Saldanha, 2003 SCC 72.......................................................................................................................90Canada Post Corp. v. Lépine, 2009 SCC 16, [2009] 1 S.C.R. 549 (paras. 18-37)............................................93

Recognition and Enforcement of Foreign Judgments and Awards – Divorce Recognition..................................94Divorce Act (1985, c. 3 (2nd Supp.)), s. 22.......................................................................................................94Nicholas Rafferty, “Recognizing Foreign Divorces: The Public Policy Defence.............................................95

Additional Reading................................................................................................................................................96Choice of Jurisdiction Clauses - one-way exclusive jurisdiction – validity......................................................96

French Supreme Court Strikes Down One Way Jurisdiction Clause............................................................96Renvoi – successions.........................................................................................................................................96

French Supreme Court Breaks Land Taboo..................................................................................................96Choice of law -defamation - Rome II reform....................................................................................................96

Report of European Parliament on Future Choice of Law Rule for Privacy and Personality Rights............96Jurisdiction - Ontario - existence of cross-claim not a basis for jurisdiction....................................................97

Misyura v. Walton, 2012 ONSC 5397...........................................................................................................97Post-Van Breda - 'holiday' tort - jurisdiction.....................................................................................................98

Colavecchia v. The Berkeley Hotel, 2012 ONSC 4747................................................................................98Tort Jurisdiction - BCCA - application of QCCA decision in Options Consommateurs..................................99

Fairhurst v. De Beers Canada Inc., 2012 BCCA 257....................................................................................99Contract - jurisdiction - mandatory franchise legislation................................................................................100

JM Food Services Ltd. v. Canada Businet Co. Ltd., 2012 BCSC 862........................................................100Sears Canada Inc. v. C & S Interior Designs Ltd., 2012 ABQB 573..........................................................101

Lis alibi pendens - CCQ art. 3137...................................................................................................................103Boulanger c. Lucas Meyer Cosmetics Canada inc. (Unipex Innovations inc.), 2012 QCCS 3111.............103

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Jurisdiction - defamation - publication............................................................................................................104Court v. Debaie, 2012 ABQB 640...............................................................................................................104Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18..............................................................................105

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Choice of Law- General

William S. Dodge, “Extra-territoriality and Conflict-of-laws Theory: An Argument for Judicial Unilateralism

Multilateral-Unilateral distinction explained Unilateral conflicts theories focus simply on whether the forum's law applies to the activity in question,

without worrying that another forum might also apply its lawo permit concurrent legislative jurisdiction

Multilateral conflicts theories attempt “from the outset to make a choice between the competing possibilitieso Their goal is exclusive legislative jurisdiction.o Purpose is to achieve uniformity in conflicts decision

Same legal relations have to expect the same decision If every court were to determine neutrally the proper seat of a legal relationship, then the

same law would be applied no matter where the suit was brought Multilateralism has been the dominant approach in American conflicts theory

Multilateralism of ‘Vested Rights’ Vested Rights Theory built on a strictly territorial view of sovereign power

o “every nation possesses an exclusive sovereignty and jurisdiction within its own territoryo “it would be wholly incompatible if other nations would be able to regulate either persons or

things not within its own territories Foreign law was not given effect as a matter of comity

o “If no law having power to do so has changed a right, the existing right should everywhere be recognized

o Chief task of Conflict of Laws is to determine the place where a right arose and the law that created it

“If two laws were present at the same time and in the same upon the same subject, it would be anarchy”o By dividing the world into exclusive territorial unites and positing that rights vested in only one

state, we avoid the anarchy

Unilateralism and the Application of Forum Law Local law thesis

o “No court can enforce any law but that of its own sovereign, a suitor can only invoke an obligation recognized by the sovereign

Flexible local law thesis:o “the forum, when confronted by a case involving foreign elements, always applies its own law to

the case, but in doing so adopts and enforces as its own law a rule of decision identical, or at least highly similar thought not identical, in scope with a rule of decision found in the system of law in force in another state

Alaska Packers Association v. Industrial Accident Commissiono California could constitutionally extend its workers' compensation statute to an injury that

occurred in Alaskao California “had a legitimate public interest in controlling and regulating this employer-employee

relationship Case moved away from territorial limits on jurisdiction, but it did not authorize more than

one state to apply its law to the same activity. Only the state with the greater governmental interest was entitled to apply its law

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Pacific Employers Insurance Co. v. Industrial Accident Commissiono California was the site of the injury but both the employer and the employee were from

Massachusettso Massachusetts has an interest in safeguarding the compensation of its employees while

temporarily abroad in the course of their employment, and may adopt that policy for itself However, the fact that Massachusetts law applied did not preclude the application of

California law to the same facts. If the court finds that the forum state has an interest in the application of its policy, it

should apply the law of the forum, even though the foreign state also has an interest in the application of its contrary policy

shift multilateralism to unilateralism any state with a sufficient interest could apply its law even though another state

might have concurrent legislative jurisdiction over the same persons and events two basic arguments to support unilateral approach:

o (1) courts were ill equipped to weigh the competing interests of different states assessment of the respective values of the competing legitimate interests of two sovereign

states, in order to determine which is to prevail, is a political functiono (2) state interests should not be subordinated to the multilateralist goal of uniformity

Unacceptable that uniformity requires that specific, carefully formulated social and economic policies be subordinated to the contrary policies of a foreign state

The Multilateralism of the Restatement (Second) of Conflicts' “Most Significant Relationship” Suggested that conflicts questions be resolved through comparative interest balancing,

o “that the law of the state with the dominant interest should, normally at least, be applied. The multilateralism of this test is in the phrase “most significant relationship.”

o Contemplates a comparative assessment with only a single jurisdiction being selected in the endo Criticism that the most significant relationship test is too malleable! Not enough guidance

Symeon C. Symeonides, The Challenge of Recodification Worldwide “THE CONFLICTS BOOK OF THE LOUISIANA CIVIL CODE: CIVILIAN, AMERICAN, OR ORIGINAL?” tension between the need for legal certainty and predictability on the one hand, and the desire for flexible,

equitable, and individualized solutions on the other Until the 1950s, both EU and US placed a higher premium on legal certainty than on flexibility;

o By 2000s, both systems had moved in varying degrees toward flexibility American courts created "approaches" for conflict of laws

o do not prescribe solutions in advance, o enumerate factors that should be taken into account o open-ended and call for an individualized, o ad hoc handling of each case

European systems have moved slowly but steadily from certainty to flexibility through legislative changeo Recent conflicts codifications employ several techniques to allow a certain degree of flexibility

rules employing alternative connecting factors, rules relying on flexible or "soft" connecting factors, rules armored with escape clauses.

o Alternative-Reference Rules Use alternative connecting factors or contacts and authorize the court to apply the law of

whichever contact state produces the preferred substantive result, such as upholding a contract, testament, or other juridical act or favoring a certain status

deny freedom of choosing a law other than the one that produces the preselected result

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o Soft Connecting Factors Replacement of pre-fixed, unidirectional, and rigid connecting factors (such as the locus

contractus or the locus delicti) with open-ended, multidirectional and "softer" connecting factors, such as the "closest connection."

Gives the judge considerable discretion in identifying the strongest relationshipo Escape Clauses

Use of preauthorized escapes from the results dictated by statutory choice-of-law rules Applicable law "is, by way of exception, not to be applied if, from the totality of

the circumstances, it is manifest that the particular case has only a very slight connection to that law and has a much closer relationship to another law”

Increasing use of escapes clauses suggests inherent limitations in ability to anticipate everything and is best to entrust judges with greater discretion than in the past.

Any preformulated rule, no matter how carefully drafted, may, because of its generality or its specificity, produce results that are contrary to the purpose for which the rule was designed

Issue-by-Issue Analysis and Dépeçage very often the conflict is confined to only certain aspects or "issues" of the case

o rather than seeking to choose a law as if all aspects of the case were in dispute, one should focus on the narrow issues where a conflict exists and proceed accordingly

Issue-by-issue analysis When a case involves conflicts regarding more than one issue, then the court should analyze each conflict

separately. o Depending on the circumstances, this analysis may lead to either o (1) the application of the law of the same state to all issues or o (2) The application of the laws of different states to different issues in the same cause of action.

The dépeçage phenomenon. In some cases, the application of the law of two different states to different issues

in the same cause of action may defeat the policies of both states

CCQ arts 3076-3082

3076. The rules contained in this Book apply subject to those rules of law in force in Québec which are applicable by reason of their particular object.

3077. Where a country comprises several territorial units having different legislative jurisdictions, each territorial unit is regarded as a country.

Where a country comprises several legal systems applicable to different categories of persons, any reference to a law of that country is a reference to the legal system prescribed by the rules in force in that country; in the absence of such rules, any such reference is a reference to the legal system most closely connected with the situation.

3078. Characterization is made according to the legal system of the court seised of the matter; however, characterization of property as movable or immovable is made according to the law of the place where it is situated.Where a legal institution is unknown to the court or known to it under a different designation or with a different content, foreign law may be taken into account.

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3079. Where legitimate and manifestly preponderant interests so require, effect may be given to a mandatory provision of the law of another country with which the situation is closely connected.In deciding whether to do so, consideration is given to the purpose of the provision and the consequences of its application.

3080. Where, under the provisions of this Book, the law of a foreign country applies, the law in question is the internal law of that country, but not its rules governing conflict of laws.

3081. The provisions of the law of a foreign country do not apply if their application would be manifestly inconsistent with public order as understood in international relations.

3082. Exceptionally, the law designated by this Book is not applicable if, in the light of all attendant circumstances, it is clear that the situation is only remotely connected with that law and is much more closely connected with the law of another country. This provision does not apply where the law is designated in a juridical act.

Choice of Law- Marriage

CCQ art. 3088, 3083: Validity of marriage – distinction between formal and essential validity

3088. Marriage is governed with respect to its essential validity by the law applicable to the status of each of the intended spouses.

With respect to its formal validity, it is governed by the law of the place of its solemnization or by the law of the country of domicile or of nationality of one of the spouses.

3089. The effects of marriage, particularly, those which are binding on all spouses regardless of their matrimonial regime, are subject to the law of the domicile of the spouses.

Where the spouses are domiciled in different countries, the applicable law is the law of their common residence or, failing that, the law of their last common residence or, failing that, the law of the place of solemnization of the marriage.

CCQ arts. 75-83, 307 - Meaning of domicile

75. The domicile of a person, for the exercise of his civil rights, is at the place of his principal establishment.

76. Change of domicile is effected by actual residence in another place coupled with the intention of the person to make it the seat of his principal establishment.

The proof of such intention results from the declarations of the person and from the circumstances of the case.

77. The residence of a person is the place where he ordinarily resides; if a person has more than one residence, his principal residence is considered in establishing his domicile.

78. A person whose domicile cannot be determined with certainty is deemed to be domiciled at the place of his residence.

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A person who has no residence is deemed to be domiciled at the place where he lives or, if that is unknown, at the place of his last known domicile.

79. A person called to a temporary or revocable public office retains his domicile, unless he manifests a contrary intention.

80. An unemancipated minor is domiciled with his tutor.

Where the father and mother exercise the tutorship but have no common domicile, the minor is presumed to be domiciled with the parent with whom he usually resides unless the court has fixed the domicile of the child elsewhere.

81. A person of full age under tutorship is domiciled with his tutor; a person under curatorship is domiciled with his curator.

82. Married or civil union spouses may have separate domiciles without prejudice to the rules respecting their living together.

83. The parties to a juridical act may, in writing, elect domicile with a view to the execution of the act or the exercise of the rights arising from it.

Election of domicile is not presumed.

307. The domicile of a legal person is at the place and address of its head office.

Re Foote (Estate of), 2007 ABQB 654 (en passant) The analysis of domicile is primarily an analysis of the facts, and each case will undoubtedly turn on its own

unique facts and circumstances. A person always has a domicile, and a person can only have one domicile at a time The domicile of origin is to be given considerable weight, and is not easily displaced Criteria to adopt a domicile of choice

o a person being resident in their new domicile (a domicile of choice)o intending to make that location the person's permanent home for the indefinite future

Both elements are required and must be simultaneous Intention relates to where a person chooses to live, not that a person has chosen to leave a

prior domicile Choice must be voluntary intention to adopt a new domicile need not exist when a person moves to a new location.

Can arise at a later point May be inferred to occur from a lengthy period of residency

o However, apathy and indifference is thus not a choice of domicile, but rather the lackthereof

“Indefinite" residenceo temporary residency in another jurisdiction, for example for employment purposes or for a

limited time, will not displace a domicile of origino a general intention to return at some future, unspecified time to the domicile of origin will not

prevent a domicile of choice from being establishedo a future contingency is relevant where it is "clearly foreseen and reasonably anticipated

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Intention to change domicile must be expressedo such change involves more than a change in intention and requires some act of abandonment

A party asserting a change in domicile bears the onus of proving the change Declared intentions on domicile are relevant The same standard of proof, a balance of probabilities, is required to demonstrate either:

o displacement of a domicile of origin or a domicile of choice;o displacement of a domicile within the same or to a different country; ando displacement of a domicile by a second domicile with substantially different language, climate,

ethnic, cultural or religious characteristics these characteristics are irrelevant in any case

o the balance of probabilities is the correct standard to apply in domicile cases. Revival of the domicile of origin

o If the domicile of choice is lost or abandoned for some reason, the domicile of origin revives unless and until a new domicile of choice is established.

The lex fori is to be applied in domicile cases. Any analysis of domicile in the 21st century must reflect the "global village" reality of modern life.

o Domicile now has much more to do with the economic realities of one's life than it does with sentiment or loyalty to one's place of origin.

Requiring an intention that a domicile of choice be the place where one intends to reside for "not for a limited period"

o There is a key difference between "indefinite" and "permanent", and indefinite residence is sufficient to establish domicile.

A period of residence is indefinite unless that period of residence has either a pre-determined end point, or the resident has clear and identified criteria on which that residency will end.

Where one has multiple residences, domicile will be found to be at the "chief" or "principal" residence. o Identification of the "chief" or "principal" residence is best conducted by reference to tangible

factors including economic considerations, rather than on sentiment. Relevant factors include:a) whether the residence is used for business, holiday or vacation pur-poses,b) the relative amounts of time spent in each residence,c) the scale and the presence of personal property,d) the presence of family members, particularly spouses and depend-ants,e) a pattern of return to that residence,f) the economic linkage of the person to that residence,g) legal relationships to a jurisdiction,h) official identification and documentation,i) whether the residence is the contact point for a person, andj) by a person's social integration with the community in which the residence is located.

A common-law judge has a residual authority to depart from the revival of the domicile of origin to avoid an absurd result

Choice of Law- Contractual Obligations

CCQ art. 3111- Freedom of Choice (party autonomy principle)

3111. A juridical act, whether or not it contains any foreign element, is governed by the law expressly designated in the act or the designation of which may be inferred with certainty from the terms of the act.

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A juridical act containing no foreign element remains, nevertheless, subject to the mandatory provisions of the law of the country which would apply if none were designated.

The law of a country may be expressly designated as applicable to the whole or a part only of a juridical act.

Rome I Regulation- Summary (Check binder for actual version with highlights Applies to contractual obligations in civil and commercial matters in the event of a conflict of laws.

o It does not apply to revenue, customs or administrative matters, or to evidence and procedure. Any law indicated in this Regulation should be applied, even if it is not that of a Member State.

Freedom of choice: Article 3 The parties to a contract are to choose the governing law. It may be applied to only a part or the whole of the contract. Provided that all the parties agree, the applicable law may be changed at any time. If the law chosen is that of a country other than that relating most closely to the contract, the provisions of

the latter law need to be respected. If the contract relates to one or more Member States, the applicable law chosen, other than that of a Member

State, must not contradict the provisions of Community law.

Applicable law in the absence of choice: Article 4 Determined based on the country of residence of the principal actor carrying out the contract. Concerning immovable property, the law of the country where the property is located is applied, except In cases of temporary and private tenancy, the applicable law is that of the landlord’s country of residence. In the case of sale of goods by auction, the law of the country of the auction will apply. With regard to certain financial instruments governed by a single law, the applicable law will be that law. If none, or more than one of the above rules apply to a contract, the applicable law will be determined based

on the country of residence of the principal actor carrying out the contract. If, however, the contract is related more closely to another country than provided by these rules, the law of

that country will be applied.

Rules applicable to specific contracts: Article 5-8 In the absence of choice, these rules apply for these particular contracts in the absence of choice contracts for the carriage of goods: country of residence of the carrier, provided that this is also the place

of receipt or delivery, or the residence of the consignor. o Otherwise, the law of the country to which the delivery will be made will apply;

contracts for the carriage of passengers: chosen from either the country of residence of the passenger or carrier, the country where the central administration of the carrier is located, or the country of departure or destination.

o In the absence of choice, the law of the country of residence of the passenger will apply, provided that it is also the place of departure or destination.

o Yet, if the contract is more closely related to another country, then that country will apply consumer contracts between consumers and professionals: country of residence of the consumer,

provided that this is also the country where the professional carries out his/her activities or to which his/her activities are directed.

o The parties may also, based on freedom of choice, apply another law, as long as it provides the same level of protection to the consumer as that of his/her country of residence;

insurance contracts: country of residence of the insurer. o If the contract is more closely related to another country, that country’s law will apply;

individual employment contracts: Freedom of choice principle, provided that the level of protection granted to the employee remains the same as with the applicable law in the absence of choice.

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o Absence of choice, the law governing the contract will be that of the country where, or from where, the employee carries out his/her tasks.

If this cannot be determined, the applicable law will be that of the country where the place of business is located.

If the contract is more closely related to another country, that country’s law will apply.

Scope of the law applicable The law this Regulation determines will regulate interpretation, performance, penalties for breaching

obligations, assessment of damages, termination of obligations, instructions for actions, and penalties for invalid contracts.

The Community law that establishes conflict-of-law rules for contractual obligations relating to particular matters takes precedence over this Regulation, except in the case of insurance contracts

Imperial Life Assurance Co. of Canada v. Segundo Casteleiro Y Colmenares, [1967] S.C.R. 443Facts Two policies of insurance on the life of the plaintiff were issued through the defendant's branch office in

Havana, Cuba Plaintiff was resident and domiciled in Cuba. The plaintiff had applied for the policies in Cuba and in his applications he agreed, inter alia, that the

policies should take effect upon delivery. o The offers in the applications were irrevocable

The applications were addressed to the head office of the company at Toronto and were prepared at that office, where the policies were also prepared.

The policies, although written in Spanish, were in the standard Ontario formIssue Whether the proper law of the insurance contracts was the law of Ontario or the law of CubaReasoning The contracts were made when the initial irrevocable offers contained in the plaintiff's applications were

accepted by the mailing of the policies from the defendant's head office in Toronto. o The fact that the polices were not to become effective until predetermined conditions were

fulfilled in Cuba did not alter the place where that agreement was made However, the place where the contract was made was not decisive in determining the applicable law

o Consider the contract as a whole in light of all the circumstances which surrounded it and applying the law with which it appeared to have the closest and most substantial connection.

the domicile and even the residence of the parties; the national character of a corporation and the place where its principal place of business

is situated; the place where the contract is made and the place where it is to be performed; the style in which the contract is drafted; the fact that a certain stipulation is valid under one law but void under another; the economic connexion of the contract with some other transaction; the nature of the subject matter or its situs; the head office of an insurance company, whose activities range over many countries; any other fact which serves to localize the contract

o Significant that the actual decision to "go on the risk" was made at the head office in Torontoo Both the applications and the policies were prepared in Ontario in a common, standard form

which complied with the law of that Province

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o reasonable inference that a person applying for insurance on a form prepared at the head office of an Ontario company would anticipate that the policies would be governed by the law of Ontario

CCQ arts. 3112, 3113 - Applicable law in the absence of choice3112. If no law is designated in the act or if the law designated invalidates the juridical act, the courts apply the law of the country with which the act is most closely connected, in view of its nature and the attendant circumstances.

3113. A juridical act is presumed to be most closely connected with the law of the country where the party who is to perform the prestation which is characteristic of the act has his residence or, if the act is made in the ordinary course of business of an enterprise, his establishment.

Rome I art. 4 1. To the extent that the law applicable to the contract has not been chosen in accordance with Article 3 and without prejudice to Articles 5 to 8, the law governing the contract shall be determined as follows:…

2. Where the contract is not covered by paragraph 1 or where the elements of the contract would be covered by more than one of points (a) to (h) of paragraph 1, the contract shall be governed by the law of the country where the party required to effect the characteristic performance of the contract has his habitual residence.

3. Where it is clear from all the circumstances of the case that the contract is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply.

4. Where the law applicable cannot be determined pursuant to paragraphs 1 or 2, the contract shall be governed by the law of the country with which it is most closely connected.

Rules applicable to specific contracts in Rome I or the CCQ

Sale of goods/ corporeal movables: CCQ art. 3114, Rome I art. 4(1)(a) Assignments: CCQ art. 3120, Rome I art. 1 Auction sales: CCQ art. 3115, Rome I art. 4(1)(g) Stock exchange etc. transactions: CCQ art. 3115, Rome I art. 4(1)(h) Consumer contracts: CCQ art. 3117, Rome I art. 6 (and note Consumer Protection Act, art. 19) Employment contracts: CCQ art. 3118, Rome I art. 8 Insurance contracts: CCQ art. 3119, Rome I art. 7

Exceptions to freedom of choice in Rome I or the CCQ Public Policy / Public Order: CCQ art. 3081, Rome I art. 21 Overriding forum mandatory rules: CCQ art. 3111, 3076, Rome I art. 9(1)-(2) Overriding foreign mandatory rules: CCQ art. 3079, Rome I art. 9(1), (3) Manufacturers’ liability: CCQ art. 3128

R. v. Thomas Equipment Ltd., [1979] 2 S.C.R. 529 - Operation of mandatory rules within the Canadian constitutional contextFacts Thomas, a manufacturer in New Brunswick, was a supplier of farm equipment to an Alberta dealer

(Suburban) under a dealer sales agreement. Suburban forwarded a letter by registered mail to Thomas terminating the agreement and requesting Thomas

to purchase from Suburban all unused farm

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o This request was founded upon the provisions of s. 22(2) of The Farm Implement Act Thomas refused to comply with the request and was convicted for breach of s. 22(3) of the act AB Court of Appeal held that no offence had been committed in Alberta.

o The failure of Thomas to purchase the goods occurred, not in Alberta, but in New Brunswick, therefore, The Farm Implement Act was not applicable

Reasoning The liability of Thomas arose out of its conduct in Alberta. It had, in Alberta, rendered itself subject to the regulatory provisions of The Farm Implement Act via its

agreement with Suburban It had failed to comply with those regulations and the penalty imposed was because of that failure.

o Thomas was not being penalized under the Act for its conduct in New Brunswick, but because of what it failed to do in Alberta

Case is not concerned with the contractual rights of the parties o Case arose as a result of the imposition of statutory obligations upon vendors of farm implements

who sell such machinery in Alberta. Basis of prosecution against Thomas is a statutory obligation entirely independent of

contracto Because of the nature of the agreement, Thomas became subject to the duties imposed by the

statute irrespective of what might be the proper law of the contract Statute is constitutional as it imposes obligations for liability within Alberta

o The Alberta statute imposes an obligation upon a vendor who sells farm implements to a dealer in Alberta for resale in Alberta to repurchase those implements which are located in Alberta.

o In contrast, a Manitoba statute was unconstitutional because it was aimed at the conduct outside the province of persons outside the province

Scope of applicable law, renvoi, and law applicable to formation of contract Scope of the applicable law: Rome I art. 12 Exclusion of renvoi: CCQ art. 3080, Rome I art. 20 Law applicable to contract formalities (alternative reference rules): CCQ art. 3109 Rome I art. 11 Law applicable to contractual capacity: CCQ arts. 3086, 3087, Rome I art. 13 Law applicable to consent/material validity/formation: Rome I art. 10 -

Giesela Ruhl, Party Autonomy in the Private International Law of Contracts: Transatlantic Convergence and Economic Efficiency During the 20th century American and European choice-of-law theory have drifted apart:

o The US swept the traditional vested rights theory out of the courts o In Europe, legal systems decided to adhere to the classical concept of unilateralism

However, US and EU choice of law theory has developed into the same direction in contract law. o Both provide for free party choice of law

Parties are free to choose the applicable law Found in Rome I, Article 3(1), and the Second Restatement (US)

o Both do not grant party autonomy unlimited

Connection to a Foreign Law Purely domestic cases

o Article 3(3) Rome Convention: a choice of a foreign law does not, where all other elements relevant to the contract at the time of the choice are connected with one country only, prejudice the application of the mandatory laws of that country.

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A choice-of-law clause will not be enforced in view of the mandatory provisions of the law which would be applicable had the parties not agreed on a foreign law.

o Restatement (Second): The mandatory provision only applies “when two or more states have an interest in the determination of the particular issue”

Therefore, the mandatory provision is only not applicable “when all contacts are located in a single state and when, as a consequence, there is only one interested state”

o What amounts to a sufficient relationship to a foreign law for free party choice? Usually regarded as sufficient if one of the parties is habitually resident abroad, if one of

the parties is incorporated abroad, if one of the parties has her principle of business abroad, if the contract was entered abroad, or if performance is to take place abroad

the threshold for finding a sufficient relationship seems rather low

Substantial Relationship to the Chosen Law American law imposes further restrictions on party autonomy where the choice of law touches upon the

mandatory provisions of the law otherwise applicable to the transaction: o the law of the state chosen by the parties will only be applied if the chosen state has a substantial

relationship to the parties or the transaction. o However, the absence of a substantial relationship to the chosen law can be cured by the

presence of another reasonable basis for the parties’ choice Sufficient substantial relationship found when the parties choose the law of the state

where the contract was made, where performance of the contract is to take place, where one of the parties is domiciled, where one of the parties is incorporated, or where one of the parties has her principal place of business

This or any other connecting factor, no matter how insignificant, has led to very few cases where the free party choice has been denied

The Rome Convention does not require a substantial or other relationship to the chosen lawo As long as the contract is connected with more than one country in the meaning of Article 3 (3) a

choice-of-law clause will be enforced.

Choice of State Law Both legal systems do not recognize the choice of general principles of law or non-state codifications

o For example, cannot refer to regulations or practice promulgated by industry However, the choice of non-state rules is given effect with the help of the doctrine of incorporation, which

allows the parties, in the exercise and within the limits of freedom of contract, to incorporate such rules as terms of the contract

o They may spell out these terms in the contract. o They may incorporate into the contract by reference extrinsic material o They may also stipulate for the application of trade association rules or UNIDROIT principles

Priority of Protective Laws Both American and European law restrict choice-of-law clauses when it comes to certain contracts

o Restrictions usually refer to contracts in which one party is perceived to be systematically in a weaker position

consumer contracts, employment contracts and insurance contracts Consumer Contracts

o Article 5 (2) Rome provides that a choice of law cannot strip the consumer of the coverage of the consumer protection laws of his habitual residence.

He may rely on the mandatory rules of his habitual residence, and invoke the law whichever is the more favorable to him

o In the US, the effect of choice-of-law clauses in consumer contracts is not expressly limited17

To counteract, courts have developed the fundamental public doctrine a choice-of-law clause is not effective to the extent that application of the law of

the state or country designated would be contrary to a fundamental policy of the state or country which has a materially greater interest than the chosen state in the determination of the particular issue and which would be the state of the applicable law in the absence of an effective choice of law by the parties

o a fundamental policy may be embodied in a statute which is designed t protect a person against the oppressive use of superior bargaining power

It will only go against the policy of the chosen law affords less protection to the consumer than that state’s law

Affords greater protection = no public policy violation Employment contracts

o Article 6(1) Rome: a choice of law clause in an employment contract must not deprive the employee of the protection of the mandatory rules of law which would be applicable in the absence of a choice of law

A choice-of-law clause in an employment contract, therefore, cannot strip the employee of the protective laws at the place of his employment

o American courts tend to invalidate choice-of law clauses in employment contracts under the fundamental public policy exception

invalidate choice-of-law clauses that call for application of a law other than the law of the place of employment

Almost always ignore a choice of law if the chosen law violates the employment protection laws of the state where the employee had to perform the contract

Insurance contractso Under both regimes the parties’ freedom to choose the applicable law is limited where small

business and consumer risks are involvedo European regime subjects small business and consumer risks in most cases to the law of the state

where the risk is located, i.e. the law of the policyholder’s habitual residence. Freedom to choose the applicable law is granted only in exceptional circumstances

o In US, choice-of-law clauses in such contracts are often invalidated by means of the fundamental public policy doctrine

Effect will frequently not be given to a choice-of-law provision which designates a state whose local law gives the insured less protection than he would receive under the otherwise applicable law

THE TREND OF CONVERGENCE: AN ECONOMIC EXPLANATION Is there an economic rationale for granting free party choice of law?

o General agreement in the economic community that granting the parties the freedom to choose the applicable law is—in principle—an efficient approach to the choice-of-law problem

Individuals are assumed to be rational maximizers of their own welfare and have idiosyncratic knowledge about their preferences unavailable to anybody else.

Will not enter a choice-of- law agreement unless they believe it will make them better off Economic theory suggests that free party choice of law should only be limited in cases of market failure

o Externalities and third-party effects Both occur where the parties to an exchange do not bear all the costs associated with a

transaction but impose costs on other parties or the society at large This does not happen in choice-of-law provisions

o Since the parties internalize the additional litigation costs associated with the choice of law, there are no negative third party effects

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o Opportunist behavior and information asymmetry Such behavior occurs where one party to a contract takes advantage of his superior

knowledge, in order to further his interests, by failing to disclose such information to the other party

In the context of choice of law, this kind of behavior may be found where one party knows more about the applicable law than the other.

o This is often the case in consumer, employment and insurance contracts: o The occasionally contracting consumer, employee or policyholder faces

severe informational costs and, therefore, often foregoes the acquisition of valuable information.

There is a very weak counter-argument that firms would not risk their reputation by choosing a shitty law

These limitations on party autonomy in respect to consumer, employment and insurance contracts can be rationalized with the concepts of information asymmetry

If the law of the domicile applies, the information asymmetry will be less The corporations who will need to apply foreign law are better able to internalize

costs when determining how to apply the applicable law

Choice of Law: Extra-Contractual Obligations

Tolofson v. Jensen [1994] 3 SCR 1022Facts Tolofson v Jensen scenario (Lucas v Gagnon has almost identical fact pattern)

o The accident occurred in Saskatchewan.  o The Tolofsons were residents of and their car was registered in British Columbiao Mr. Jensen was a resident of and his car was registered in Saskatchewan.  o Plaintiff brought an action eight years later in BC as SK had a limitation clause barring recoveryo The defendants brought an application by consent to seek a determination as to whether the court

was forum non conveniens or alternatively as to whether Saskatchewan law appliedIssue Which law should govern in cases involving the interests of more than one jurisdiction?

Reasoning The rule of PIL that should generally be applied in torts is the law of the place where the activity occurred --

the lex loci delicti.o This approach responds to the territorial principle under the international legal order and the federal

regime.  Sound practical considerations

Certainty, easy to apply and predictable and meets normal expectationso people expect their activities to be governed by the law of the place where

they happen to be Overturns McLean v Pettigrew

o Principle was that a court should apply its law (lex fori) when adjudicating on wrongs committed in another country, subject to the wrong's being "unjustifiable" in that country

This would involve a court's defining the nature and consequences of an act done in another country, which, barring some principled justification, flies against the territoriality principle

invite forum shopping by litigants in search of the most beneficial place to litigate an issue. 

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This approach in a federal state like Canada would make forum shopping even easier.o  The problem of proof of foreign law has been considerably attenuated given advances in

transportation and communication.   Its application in the federal context raises serious constitutional difficulties.

o Ang v Trach: It constitutes an extraterritorial extension of the law of the forumo The nature of Canada's constitutional arrangements -- a single country with different provinces

exercising territorial legislative jurisdiction -- supports a rule that is certain and that ensures that an act committed in one part of this country will be given the same legal effect throughout the country. 

o Given the mobility of Canadians and the many common features in provincial laws and the unitary nature of the court system, an invariable rule that the matter be actionable in the province of the forum is not necessary. 

o Any problems that might arise could be resolved by a sensitive application of the doctrine of forum non conveniens.

o Strict application of lex loci delicti also has the advantage of unquestionable conformity with the Constitution

an attempt by one province to impose liability for negligence in respect of activities that have taken place wholly in another province by residents of the latter or, for that matter, residents of a third province, would give rise to serious constitutional concerns

Principles of territorialityo Underlying principle of public international law is that generally each state has jurisdiction to make

and apply law within its territorial limit.  Jurisdiction being territorial, a state’s law has no binding effect outside its jurisdiction

o Absent a breach of some overriding norm, other states as a matter of "comity" will ordinarily respect such actions and are hesitant to interfere with what another state chooses to do within those limits. 

o To accommodate the movement of people, wealth and skills across state lines, courts will recognize the determination of legal issues in other states. 

o In a reciprocal manner, they will open their courts to legal disputes arising in other jurisdictions consistent with the interests and internal values of the forum state.

o Courts in the various states will, in certain circumstances, exercise jurisdiction over matters that may have originated in other states. 

Individuals need not in enforcing a legal right be tied to the courts of the jurisdiction where the right arose, but may choose one to meet their convenience. 

This fosters mobility and a world economy.  To prevent overreaching, courts have developed rules restricting the exercise of jurisdiction

In Canada, a court may exercise jurisdiction only if it has a "real and substantial connection" with the subject matter of the litigation

In addition, through the doctrine of forum non conveniens a court may refuse to exercise jurisdiction where there is a more convenient or appropriate forum elsewhere

One of the main goals of any conflicts rule is to create certainty in the law.  o Any exception adds an element of uncertainty, therefore they should be avoided at all costso However, since a rigid rule on the international level could give rise to injustice, courts retain a

discretion to apply their own law to deal with such circumstances Such cases would be rare. 

o The underlying principles of private international law are order and fairness Order comes first for it is a precondition to justice. 

o Considerations of public policy in actions that take place wholly within Canada should play a limited role, if at all. 

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Arguments for a public policy exception are simply rooted in the fact that the court does not approve of the law that the legislature chose to adopt. 

The rule that the wrong must be actionable under Canadian law is not necessary, since the jurisdiction of Canadian courts is confined to matters where a real and substantial connection with the forum jurisdiction exists. 

o This factor should only be weighed in considering the issue of forum non conveniens or whether entertaining the action would violate the public policy of the forum jurisdiction. 

Characterization of rules of law as substantive or procedural is crucial o Distinction is between right and remedyo The substantive rights of the parties to an action may be governed by a foreign law o All matters of procedure are governed exclusively by the law of the forum. 

The forum court cannot be expected to apply foreign procedural rules The forum's procedural rules exist for the convenience of the court

o the purpose of substantive/procedural classification is to determine which rules will make the machinery of the forum court run smoothly as distinguished from those determinative of the rights of both parties

o Limitations rules are substantive! Creates an accrued right in the defendant to plead a time bar.  All statutes of limitation destroy substantive rights It should not be rejected as contrary to public policy. 

The extent to which limitation statutes should go in protecting individuals against stale claims involves policy considerations unrelated to a court’s functions

Applying law to factso Saskatchewan substantive law should apply as that is the jurisdiction where the tort occurredo BC procedural law applieso The claim is extinguished due to the limitation period of Saskatchewan law

Holding Choice of law for torts is the lex loci delicti, no exception

o This applies for all connected substantive law elements Procedural law applies lex loci Limitation clauses are substantive law

Neilson v. Overseas Properties (2005) 221 ALR 213 (Australian case!)Facts An Australian living in China was injured in a fall in an apartment provided by an Australian company. The apartment was provided to her under arrangements made in Australia. More than five years after the accident, she sued the company for negligence in an Australian Court Relying upon an English translation of the General Principles of Civil Law of China and expert evidence

concerning its meaning and effect company contended that the claim was statute-barred after one year. o Article 146 states: "With regard to compensation for damages resulting from an infringement of

rights, the law of the place in which the infringement occurred shall be applied. If both parties are nationals of the same country or domiciled in the same country, the law of their own country or of their place of domicile may also be applied.”

The trial judge held that Art 146 should apply and that the second sentence permitted him to choose to apply the law of Australia.

o Applying the relevant Australian limitation periods and principles of negligence, he held that the plaintiff was entitled to recover damages

Issue Does the doctrine of renvoi apply in Australia? Only single renvoi? Infinite regression??

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Holding Australian choice of law rules required the application of Chinese law as the lex loci delicti the lex loci delicti was the whole of the law of the foreign jurisdiction, including its choice of law provisions

o . In this case, the lex loci delicti included Art 146 By Art 146, Chinese law would look to Australian law, including Australian limitation periods, to determine

the parties' rights and obligationso Both parties are nationals of the same country, Australia

The doctrine of single renvoi applies in Australia!Reasoning (Will be a bit jumpy as there were six separate judgments!) Dissent’s great explanation of the ‘infinite regression of renvoi’

o “The doctrine of renvoi is infamous for infinitely requiring the forum court to apply choice of law rules, but to no end. The problem of the "infinite regression" arises when:

(a) the choice of law rule of the lex fori makes the lex causae the applicable law; (b) the choice of law rule of the lex causae makes the lex fori the applicable law; and (c) the lex fori has a doctrine of total renvoi."

Impossible to identify which law resolves the issue that is in disputeo Only one circumstance where the forum's acceptance of the total renvoi doctrine with respect to a

choice of law rule will not cause this "hall of mirrors". Where lex causae rejects the doctrine of renvoi, or has a doctrine of only single renvoi, Forum court applies the choice of law rules of the lex causae so as to identify the lex fori as

the applicable law and makes no reference to the lex fori's choice of law rules. Only the "substantive" law of the lex fori is applicable.

In the latter instance, the court must apply the lex fori's choice of law rules for a second time, but this time ignore the lex causae's choice of law rules.

Only the "substantive" law of the lex causae is applicable the second time aroundo Doctrine of single renvoi precludes the forum court from taking notice of the lex loci delicti's

approach to renvoi and from applying the law that that approach would select Majority judgment

o In 2000, Australia adopted the lex loci delicti principle (Tofelson Canadian case)o The major question in this case is if the law of the forum chooses one connecting factor as

determining the choice of law, but the law chosen by the forum treats some other connecting factor as determinative, to which system does the forum look in deciding the rights and obligations of the parties

o Principles that should guide this decision No advantage

The first and most important premise for considering the issues raised in the appeal is that the rules should avoid forum shopping

Basic considerations of justice require that the rights and obligations of the parties should be the same wherever the dispute is litigated in the courts

Certainty and simplicity Certainty and simplicity are important consequences of adopting the lex loci delicti

rule and rejecting exceptions to that rule To take no account of what a foreign court would do when faced with the facts of this

case does not assist the pursuit of certainty and simplicity. o It requires the law of the forum to divide the rules of the foreign legal system

between those rules that are to be applied by the forum and those that are noto Applying these principles to renvoi, why should a choice of law rule which provides that the rights

of the parties are to be resolved according a foreign jurisdiction refer to some but not all of that foreign law in deciding those rights?

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We must incorporate Article 146 when applying the lex loci delicti! To exclude the second sentence would be to introduce an artificial home-made

distinctiono Lex loci delicti also requires that the application of the foreign law must be

done in conformity with the practice of that foreign courto Applying the doctrine of lex loci delicti, there are two major consequences in this case

If the foreign jurisdiction would choose to apply the law of the forum, and not the law of the place where the wrong was committed, the forum should apply its own law.

If the law of the place where the wrong was committed would look to a third jurisdiction to provide the relevant law governing the resolution of substantive questions, the forum should look to and apply the law of that third jurisdiction

o How do we apply foreign law? The courts of Australia are not presumed to have any knowledge of foreign law Decisions about the content of foreign law create no precedent. Foreign law is a question of fact to be proved by expert evidence An overly abstract articulation by an expert of a foreign court's approach to the exercise of a

power or discretion will be of little assistance to the tribunal of fact. Yet the closer the examination comes to the particular set of facts under consideration in the

instant case, the closer the expert may be said to come to offering an opinion about how a foreign court would decide the case, which is inadmissible evidence

If there is a deficiency in the evidence, the "presumption" that foreign law is the same as the law of the forum applies

That requires an Australian court to approach the task of construing Art 146 as it would approach the construction of an Australian statute

o Minority of judges disagree stating that this creates a fiction that does not satisfy the lex loci delicti principle

Doing so shifts the burden of proving the foreign law to the defendant to demonstrate that it is not applied in a manner similar to the lex fori

o Infinite regression? Not required to rule on this here It is clear is that Art 146 is intended to achieve the result that the rights and obligations of

those who are nationals of, or domiciled in, another country are to be determined by a law other than the law of China

Dissenting judge gives an excellent speal on the advantages of lex loci delictio The selection of the lex loci delicti as the source of substantive law meets one of the objectives of

any choice of law rule, the promotion of certainty in the law. Proof of foreign law is concomitant of reliance upon any choice of law rule which selects a

non-Australian lex causaeo When an Australian court selects a non-Australian lex causae it does so in the application of

Australian, not foreign, law. While the content of the rights and duties of the litigants is determined according to that lex

causae, the selection of the lex causae is determined by Australian choice of law rules Dissenting judges explaining a practical way to get around infinite regression

o The forum accept the reference to its own law, refer no further, and apply its own law. o Good policy: the foreign conflicts rule itself discloses a disinterest to have its own substantive law

applied, indeed it recognises the significance of the forum's law for the particular case; the case therefore presents a "false conflict.'

o There is no authority for any general principle mandating the exclusion of Art 146 in relation to the foreigners engaged in these proceedings,

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o No such general principle could stand the absurdity inherent if Art 146 order applied Australian law if proceedings were instituted in China, but not if they were not instituted in China

CCQ 3126-3129 (general lex loci delicti rule; tortious breach of contract; manufacturer’s liability for defective products; special exclusion for asbestos-related claims) 

3126. The obligation to make reparation for injury caused to another is governed by the law of the country where the injurious act occurred. However, if the injury appeared in another country, the law of the latter country is applicable if the person who committed the injurious act should have foreseen that the damage would occur.

In any case where the person who committed the injurious act and the victim have their domiciles or residences in the same country, the law of that country applies.

3127. Where an obligation to make reparation for injury arises from nonperformance of a contractual obligation, claims based on the nonperformance are governed by the law applicable to the contract.

3128. The liability of the manufacturer of a movable, whatever the source thereof, is governed, at the choice of the victim, (1) by the law of the country where the manufacturer has his establishment or, failing that, his residence, or (2) by the law of the country where the movable was acquired.

3129. The application of the rules of this Code is imperative in matters of civil liability for damage suffered in or outside Québec as a result of exposure to or the use of raw materials, whether processed or not, originating in Québec.

Private International Law Act 1995 (U.K.) Part III - Choice of Law in Tort and Delict (now superseded by the Rome II Regulation) 9. Purpose of Part III.

o 1) The rules in this Part apply for choosing the law to be used for determining issues relating to tort o 2) The characterisation for the purposes of private international law of issues arising in a claim as

issues relating to tort is a matter for the courts of the forum.…

o 4) The applicable law shall be used for determining the issues arising in a claim, including in particular the question whether an actionable tort has occurred.

o 5) The applicable law to be used for determining the issues arising in a claim shall exclude any choice of law rules forming part of the law of the country or countries concerned.…

10. Abolition of certain common law rules (Eliminating Pettigrew double-actionability rule)o (a) require actionability under both the law of the forum and the law of another country for the

purpose of determining whether a tort is actionable…are hereby abolished.

11. Choice of applicable law: the general rule.o (1) The general rule is that the applicable law is the law of the country in which the events

constituting the tort in question occur.o (2) Where elements of those events occur in different countries, the applicable law under the general

rule is to be taken as being—

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(a) …, the law of the country where the individual was when he sustained the injury; (b) …, the law of the country where the property was when it was damaged; and (c) in any other case, the law of the country in which the most significant element or

elements of those events occurred. 12. Choice of applicable law: displacement of general rule.

o (1) If it appears, in all the circumstances, from a comparison of— (a) the significance of the factors which connect a tort with the country whose law would be

the applicable law under the general rule; and (b) the significance of any factors connecting the tort with another country,

o that it is substantially more appropriate for the applicable law for determining the issues arising in the case… to be the law of the other country, the general rule is displaced and the applicable law for determining those issues … is the law of that other country.

o (2) The factors … include, in particular, factors relating to the parties, to any of the events which constitute the tort in question or to any of the circumstances or consequences of those events.

Rome II Regulation on the law applicable to non-contractual obligations (summarized in the subsequent doctrine paper)

Xandra E.Kramer, “The Rome II Regulation on the Law Applicable to Non-Contractual Obligations: The European Private International Law Tradition Continued - Introductory Observations, Scope, System, and General Rules While all EU States adhered to the principle of lex loci delicti, differences exist in the role and application of

this principle, and difficulties arise in complex cases where the damage and tort were unlinked According to the Recitals of the Regulation, the proper functioning of the EU market creates a need to

establish uniform conflict-of-law rules irrespective of the court or tribunal seizedo This will improve the predictability and certainty as to litigation and the applicable law and the free

movement of judgmentso The requirement of legal certainty and the need to do justice in individual cases are essential

elements of an area of justice The Regulation aims to provide for connecting factors that are the most appropriate to

achieve these objectives Scope of Application of the Regulation

o Substantive Scope The substantive scope of Rome II is laid down in Articles 1 and 2. Article 1(1): the Regulation shall apply in a situation involving a conflict of laws, to non-

contractual obligations in civil and commercial matters. Paragraphs 2 and 3 enlist a number of excluded matters. Article 1(3): the Regulation shall not apply to evidence and procedure, without

prejudice to Articles 21 and 22 National conflict rules will remain in force in relation to the excluded matters

Article 2: guidance as to what is to be understood by ‘non-contractual obligations’. Four elements are relevant: a situation involving a conflict of laws; a civil and

commercial matter; a non-contractual obligation; and a non-excluded matter. Article 2(1): damage shall cover any consequence arising out of tort/delict, unjust

enrichment, negotiorum gestio, or culpa in contrahendo. Article 2(2): the Regulation also applies to non-contractual obligations that are likely

to arise: future torts. The Rome I and Rome II Regulations are complementary instruments

obligations that aren’t contractual, are non-contractual within the meaning of Rome II

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The scope of Rome II is limited to a situation involving a conflict of laws. A situation in which one or more elements are alien to the domestic social life of a

country, and that entail applying several systems of law.o parties involved are domiciled or habitually resident in different countries. o Tortious act occurs in a country different from the one in which the parties are

habitually resident. o Article 14(2) and (3): a choice for a foreign law in an otherwise domestic

case is also covered by the Regulation, though the effect of the choice of law is limited in this case.

Article 25: In a federal state, each territorial unit shall be considered as a country State is not obliged to apply this Regulation to conflicts solely between the laws of

such unitso Territorial Scope

Article 3: Any law specified by this Regulation shall be applied regardless whether or not it is the law of a Member State.

‘universal application’ no link to the EU is needed other than that the court of an EU Member State has

jurisdiction and is thus dealing with the case.o Relation to other regulations and conventions

Article 27: Regulation shall not prejudice the application of provisions of Community law Article 28: This Regulation shall not prejudice the application of international conventions to

which one or more Member States are parties at the time when this Regulation is adopted System of the conflict of law rules

o Overview: Conflict rules, scope of the applicable law, terminology, application of foreign law The core of the Regulation consists of the conflict-of-law rules laid down in Articles 4-14 Article 4 lays down the general rule and adheres to the lex loci damni rule:

Application of the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurs.

The other Articles provide rules for special torts, Article 5-9 Arts. 10-13 contains rules for other non-contractual obligations: unjust enrichment,

negotiorum gestio, and culpa in contrahendo. Art. 14 deals with freedom of choice and is the only rule that applies to all non-contractual

obligations Article 15 sets out the scope of the applicable law. Article 16 deals with overriding mandatory provisions Article 23 dealing with the concept of ‘habitual residence’ Article 24 excluding renvoi Article 26 includes the public policy exception

o Legal certainty v flexibility: general rules, special rules, and exceptions The Regulation aims at striking the balance between legal certainty on the one hand and

doing justice in individual cases on the other it provides a general rule, specific rules for special torts as well as an escape clause,

o Escape clause allows a departure from these rules where it is clear that the tort is more closely connected with another country

The general escape clause is in Article 4(3) as an exception to Article 4 (1, 2) Article 4(2), which refers to the law of the common habitual residence of tortfeasor and

victim, is a specific exception to the lex loci damni The principle of ubiquity allows for the victim can choose between two laws (usually that

of the country of conduct or the place of the injury), whichever is more favourable to him

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Only recognised in unfair competition (Art 6) , and environmental damage (Art 7) General content-based exceptions

Article 16: nothing in this Regulation shall restrict the application of the provisions of the law of the forum in a situation where they are mandatory,

Article 17: in assessing the conduct of the person claimed to be liable, account shall be taken, as a matter of fact and insofar as is appropriate, of the rules of safety and conduct that were in force at the place and time of the event giving rise to the damage

Public policy exception in Article 26: Enables a court to disapply certain rules of the foreign law, the application of which would be manifestly incompatible with the public policy of that Member State.

In particular where the designated law allows for non-compensatory exemplary or punitive damages of an excessive nature

Current US approach to cross-border torts: American courts apply the law of either the state of conduct or the state of injury,

whichever prescribes a higher standard for the tortfeasor or financial protection for the victim,

the public policy doctrine allows a court to substitute the forum’s rule for the injury state’s if that state’s rule was deemed unfair and other practical considerations point to the application of forum law

US approach is thus quite flexible and clearly carries elements of the ‘better law approach’ and ‘governmental interest analysis’

Basic Principle I: the place of injury (Article 4)o Article 4 is applicable to torts in general, where Rome II does not include a special rule and where

no choice of law has been made pursuant to Article 14. Exceptions listed above may further limit the effect of Article 4

o Article 4 has a triple structure. Firstly, it designates the law of the country in which the damage occurs, the lex loci damni Secondly, this rule is set aside where tortfeasor and victim have their habitual residence in

the same country in favour of the law of that country Thirdly, both these connecting factors are replaced by the law of the country that is

manifestly more closely connected Article 4(1) is the general rule, whereas Article 4(2) is an exception and Article 4(3)

is to be understood as an escape clause.o Article 4(1): lex loci damni:

Unless otherwise provided for, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs,

irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that

event occur. Bier v. Mines de potasse d’Alsace case

French mines disposed of huge amounts of salts in the Rhine and caused damage to Dutch gardeners who use the Rhinewater to water their crops.

Is the place of injury France or the Netherlands? o Ruled that both the action forum and the event forum have jurisdiction, upon

the plaintiff’s choice. Connection with the country where the direct damage occurred strikes a fair balance between

the interests of the person claimed to be liable and the person sustaining damage Shift in liability law from punishment towards compensation.

The law of the place where the damage occurs is best suited to fulfil this function

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o This puts the victim in the same position as in a national case. Disadvantage: the lex loci rule is not practical in the case of different places of damages Lex loci damni applies irrespective of where the indirect consequences of that event occur

Does not include the place where the victim suffered financial damage following upon initial damage

o Article 4(2): common habitual residence Article 4(2) includes a ‘consequences based’ or ‘result based’ exception,

Where the two parties both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply

Article 23 defines the habitual residence of companies The habitual residence of a natural person is not defined

Established upon factual criteriao Article 4(3): more closely connected law and accessory attachment

“Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than is specified in paragraphs 1 and 2, the law of that other country shall apply.”

Might be based in particular on a pre-existing relationship between the partieso Legal relationship is more significant than a factual relationshipo Ex: contract that is closely connected with the tort/delict in question

Applying the same law to the tort as to the contract is preferable ‘accessory attachment’ is not employed as the main rule, Art 4(3) is

an exception Manifestly indicates that this clause remains exceptional

Article 15 indicates that depecage is in principle not allowed Basic principle II: choice of law by the parties (Article 14)

o The freedom of choice Article 14 enables parties to choose the law applicable to all non-contractual obligations

regulated by Rome II, except for unfair competition (Art. 6(4)) and IP rights (Art. 8(3)). one could say it constitutes the main rule of the Regulation

o Limitations to the freedom of choice Article 14(1): in relation to a non-commercial activity, a choice of law may only be entered

into after the dispute has arisen. Aims at protecting the weaker party in relation to a future tort. Through Article 4(3), the law applicable to the connected contract may also with

regard to weaker parties re-enter the scene, but it may not harm weaker parties. Articles 6(4) and 8(3) prohibit a choice of law on unfair competition and IP rights,

unfair competition involves collective interests IP law still relies largely on the principle of territoriality and is of public interest

Article 14(2): where all the elements … occurs in a country other than the country whose law has been chosen, the choice shall not prejudice … the law[s] of that other country, which cannot be derogated from by agreement

Article 14(3): parties’ choice of law shall not prejudice the application of mandatory Community law

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Babcock v. Jackson, 12 N.Y. 2d 473, 191 N.E. 2d 279 (Ct. App., 1963) (US Approaches)Facts Babcock, resident of Rochester, was seriously injured in a car crash in Ontario during her weekend visit to

Canada She sues the driver of the car, Jackson, who is also a resident of Rochester, in a New York court The defendant moved to dismiss the complaint on the ground that the law of the place where the accident

occurred governs and that Ontario's guest statute bars recoveryIssue Shall the law of the place of the tort invariably govern the availability of relief for the tort or shall the

applicable choice of law rule also reflect a consideration of other factors which are relevant to the purposes served by the enforcement or denial of the remedy?

Reasoning The traditional choice of law rule, embodied in the original Restatement of Conflict of Laws, has been that

the substantive rights and liabilities arising out of a tort are determinable by the law of the place of the torto Conceptual foundation in the vested rights doctrine

a right to recover for a foreign tort owes its creation to the law of the jurisdiction where the injury occurred and depends for its existence and extent solely on such law

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o Doctrine has long since been discredited (in the US) because it fails to take account of underlying policy considerations and ignores the interest which jurisdictions other than the lex loci delicti have

Auten v. Auten: court applied the "center of gravity" theory of the conflict of laws. Lay emphasis upon the law of the place 'which has the most significant contacts with

the matter in dispute' Kilberg v. Northeast Airlines

o court declined to apply the law of the place of the tort in a death arising out of an airplane crasho Unjust and anomalous to subject the traveling citizen of this State to the varying laws of other States

through and over which they moveo His plane may meet with disaster in a State he never intended to cross…The place of injury becomes

entirely fortuitous. Merely fortuitous circumstance that the wrong and injury occurred in Massachusetts did not

give that State a controlling concern against the competing interest of New York In sum, US courts moved away from the vested rights doctrine to an approach that applied the law of the

jurisdiction other than the lex loci delicti if it had a more compelling interest in the application of its law to the legal issue involved: Center of gravity approach

o Justice, fairness and the best practical result may best be achieved by giving controlling effect to the law of the jurisdiction because it gives to the place having the most interest in the problem paramount control over the legal issues arising out of a particular factual context

allows the forum to apply the policy of the jurisdiction 'most intimately concerned In the case at hand, the concern of New York is unquestionably the greater and more direct

o injuries sustained by a New York guest as the result of the negligence of a New York host in the operation of an automobile, garaged, licensed and undoubtedly insured in New York, in the course of a week-end journey which began and was to end in New York

o Ontario has no conceivable interest in denying a remedy to a New York guest against his New York host for injuries suffered in Ontario by reason of conduct which was tortious under Ontario law

Gilbert v. Seton Hall University, 332 F3d 105 (2d Cir. 2003) (US Approaches)Facts and Issue The specific issue is whether New York, the forum state, would apply New Jersey law, which preserves

charitable immunity, or the law of New York or Connecticut, both of which have abolished such immunity, to a tort claim

Claim brought against a New Jersey university by a Connecticut student attending the university who was injured while participating in an extracurricular sporting event in New York

Reasoning In conflict of laws, federal courts apply the choice of law rules of the forum state, in this case, New York

o Where the conflict of law concerns a loss-allocating rule, a rule that prohibits, assigns, or limits liability after the tort occurs, New York courts resolve the conflict by employing the methodology set forth in Neumeier v. Kuehner

Neumeier v. Kuehner: three rules for determining the applicable lawo Rule 3: Applicable where the parties reside in different jurisdictions and the allegedly tortious

conduct occurs in a third jurisdiction Apply the law of the jurisdiction where the injury occurred unless it can be shown that

displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the multistate system or producing great uncertainty for litigants

o New York has little interests in seeing its own loss allocation rules applied

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Because charitable immunity is a rule that allocates losses that result from admittedly tortious conduct, as opposed to a rule that establishes standards of conduct, the jurisdiction in which the injury occurs “has at best a minimal interest in determining the right or extent of recovery

o New Jersey has substantial interest in seeing its loss allocation rules applied 1) The plaintiffs had benefitted from New Jersey's law of charitable immunity and the State

therefore had a rightful interest in holding them to its burdens as well. Although plaintiff is not a domiciliary of New Jersey, he has benefitted from the

charitable immunity law by virtue of his voluntary decision to attend a NJ university o Charitable immunity reduces the cost at which an institution can provide its

services, and, because the institution has no profit motive, these savings are presumably passed on to some extent to the institution's beneficiaries

2) the state had an interest in encouraging the work of charities located within its borders Interested to have Universities continue to provide services to students at lower costs

3) while tort occurred NY, most of the relevant contact between parties occurred in NJ Parties’ expectations that NJ law would apply as their association is there

Dissent’s view on Conneticut’s interesto Majority failed to note that Connecticut has a compelling interest in protecting its state health-care

and insurance systems from bearing the uncompensated cost of Gilbert's lifetime disability.   o The state of a plaintiff's domicile “has an important and obvious interest in ensuring that its residents

are fully and adequately compensated for tortious harmo Analysis fails to acknowledge that the economic trade-off between a state system of charitable

immunity and one of non-immunity becomes difficult to calculate and balance New Jersey only benefits (charities are immune from suit) and Connecticut only loses

(because it must bear the uncompensated burden of Gilbert's permanent disability).o The difficulty of accounting for all of the interests relevant to a state's system of loss-allocation, and

of balancing when the interests of several states are involved, provides a strong argument for applying the Neumeier rules literally.  

Great policy argument for rejecting exceptions to lex loci delicti Not predictable, consistent, or even fair in some instances

Choice of Law: Substance and Procedure

CCQ art. 3132 – General3132. Procedure is governed by the law of the court seised of the matter.

CCQ art, 3131 - Prescription/Limitation of actions3131. Prescription is governed by the law applicable to the merits of the dispute.

Tolofson v. Jensen [1994] 3 SCR 1022

Limitation periods are considered to be substantive law in the common law.

Castillo v. Castillo, [2005] 3 S.C.R. 870, 2005 SCC 83Facts The parties, husband and wife, were involved in a single vehicle car accident in California. The wife brought an action against her husband in Alberta where the parties were resident The claim was within the province’s two-year limitations period but after the California one-year limitations

period had expired. The husband sought to have the action dismissed as statute-barred

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o wife argued that, under s. 12 of the Alberta Limitations Act, the two-year limitations period applied notwithstanding the expiry of California’s one-year limitations period.

Section 12: The limitations law of the Province shall be applied whenever a remedial order is sought in this Province, notwithstanding that, in accordance with conflict of law rules, the claim will be adjudicated under the substantive law of another jurisdiction

Reasoning: The applicable substantive law governing the accident was the law of California, including its limitations

law: Tolofsen lex loci delicti principleo Since the California limitations period applied and had expired prior to the commencement of the

action, no right of action existed when the wife initiated her claim in the Alberta court. o Section 12 of the Limitations Act does not purport to revive an action time-barred by the substantive

law of the place where the accident occurred. Section 12 will operate, of course, if the law in the place the accident occurred provides for a

limitation period longer than that of Alberta Section 12 is perfectly valid provincial legislation under s. 92(14) of the Constitution Act, 1867.

o The Court’s classification of limitation periods as substantive did not deny the province authority over the “Administration of Justice in the Province”

o Alberta can, in relation to the administration of justice in the province, determine the time limits within which the Alberta courts can entertain actions, including live actions arising in a foreign jurisdiction and governed by the substantive law of that foreign jurisdiction.

Crazy Basterache dissent British Columbia v. Imperial Tobacco Canada Ltd:

o The legislative power of the provinces is territorially limited as a result of the words “[i]n each Province” appearing in the introductory paragraph of s. 92 of the Constitution Act, 1867

Also limited by the requirements of order and fairness that underlie Canadian federalism Tolofson: “the purpose of substantive/procedural classification is to determine which rules will make the

machinery of the forum court run smoothly as distinguished from those determinative of the rights of both parties”

o limitation periods are substantive, precisely because they are determinative of the rights of both parties in a cause of action: they destroy the right of the plaintiff to bring suit and vest a right in the defendant to be free from suit

o Because substantive legislation can be applied by a court so as to affect rights governed by a foreign law, “legislation should be categorized as procedural only if the question is beyond any doubt.

S. 12 of the Limitations Act is an unconstitutional attempt by Alberta to legislate extra-territorially Limitation periods, like s. 12, are substantive in nature and have the effect of cancelling the substantive

rights of plaintiffs and of vesting a right in defendants not to be sued. o Because limitation periods are substantive rights, they cannot be justified under s.92(14)o Can only be justified under the civil rights s.92(13) category which must respect territorial limits

S. 12 exceeds the territorial limits of legislative competence contained in s. 92. o The impugned provision does not provide for a meaningful connection between Alberta, the civil

rights affected by s. 12, and the plaintiffs and defendants made subject to it, o It disregards the legislative sovereignty of other jurisdictions within which the substantive rights at

issue were situated Section 12 is a choice of law rule that is not premised on any connection, other than the real and substantial

connection necessary for the Alberta courts to take adjudicative jurisdiction,o The real and substantial connection established is not sufficient to provide a meaningful connection

between the province, the legislative subject matter and the individuals made subject to the law.

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o The real and substantial connection necessary for the courts of a province to take jurisdiction over a claim constitutes a lower threshold than the meaningful connection required for a province to legislate with respect to the rights at issue

Even if the majority’s interpretation of s.12 is valid, its application is still unconstitutionalo S. 12 destroys the plaintiff’s substantive rights to bring a claim without providing for a meaningful

connection with Alberta to do so!

John Lee, A New Uniform Limitations Act” (www.ulcc.ca)The Alberta and Ontario Limitations Acts: A New Limitations Regime The conventional approach to limitations legislation is based on the assignment of different limitation

periods to specific categories of causes of actions. o The commencement of these limitation periods is then subject to complex rules related to the accrual

of those causes of action Alberta criticized the different limitation periods and the accrual of a cause of action approach

o No discernible principle to support different limitation periods to specific causes of action. Approach only created uncertainty regarding the category under which certain claims fell. Fails to recognize that a person does not always know of a cause of action at the time the

limitation period commences. unfairly bar claims even before a plaintiff had any knowledge of the cause of action

Alberta reformed Limitations act based two basic principles.o Interests of plaintiffs for an opportunity to become aware of their claim before the limitations clock

starts to run. o Interests of defendants for a period of time upon which they can be assured absolutely that their past

acts or omissions will no longer be the subject of a viable claim Therefore, Alberta and Ontario statutes have the following elements:

o 1) Short basic limitation period commencing from the discovery of the claim and this period is applicable to all proceedings unless another statutory provision governs.

Discovery of a claim is defined as when the claimant knows or ought to have known of the claim. o 2) Longer ultimate limitation period commencing from the date of the act or omission that gives rise to

the claim. o 3) Rules for the suspension or extension of the basic and ultimate limitation periods in specified cases.

Discussion on the different elements of the Limitations Act…not important…actually what I have above is probably not important either…but what is below is super important!

How it relates to Conflict of Laws!o Section 23 of the Ontario Act states that the limitations law of Ontario or any other jurisdiction is

substantive law Claims arising in Ontario that are litigated outside Ontario are expected to be subject to the

limitations law of Ontario. Foreign claims would be subject to the limitations law of the foreign jurisdiction in which

they arose if they are litigated in Ontario.o Ontario differs from the Alberta Act, which state that the law of the forum is to apply regardless.

Alberta operate as if all foreign limitation laws are procedural (read down in Castillo case)o the main difficulties with the common law classification of limitations periods as procedural

Basis on an “unreal” distinction between limitation periods that barred the remedy and those that extinguished the right

for practical purposes, the claims are rendered worthless in either case Opportunity for plaintiffs to engage in forum shopping for the longest limitation period Requirement to engage in difficult determination of whether a foreign limitation period was

procedural or substantive.

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Ontario’s changes were rejected by the pan-Canadian conference on legal reform Primary reason for favouring the procedural classification was one of public policy.

o If the forum “does not apply its laws to those impleaded in its courts, particularly its own residents, it fails to provide that protection where it can effectively do so

o Its legal system will apply the standards of some other jurisdiction which may not have a limitations law at all, or may have one that is harsh or capricious

o Tolofsen rejected this policy argument, and held that limitations periods are substantive “To permit the court of the forum to impose its views over those of the legislature endowed

with power to determine the consequences of wrongs that take place within its jurisdiction would invite forum shopping which we must avoid to attain the consistency of result

The Tolofson rule, based on the goal of achieving a coherent conflicts of law regime, effectively sets one clear limitation period, consistent with the applicable law, to apply to a claim regardless of where that claim is litigated,

o In contrast, the 1982 Uniform Act’s rule (adopted by the Conference) encourages forum shopping (for the longest limitation period), frustrates the portability of rights and obligations across borders, and increases transaction costs by forcing parties to litigate in inappropriate jurisdictions.84

o Additional constitutional concern Did Tolofson constitutionalize the choice of law rules just as Morguard constitutionalized

the rules for jurisdiction and enforcement of judgments? This is addressed in the Castillo case! See the Bastarache rant!

Somers v. Fournier (2002) 60 O.R. (3d) 225 (C.A.) (Quantification of damages)Facts Ontario is the lex fori New York is the lex loci delicti At the time of the tort, Somers (Plaintiff) was insured under an Ontario standard form automobile insurance

policy. o Neither that policy nor Ontario’s statutory regime restricts an injured person’s right to sue an at-fault

motorist in tort for damages arising from injuries occasioned by a motor vehicle accident. Fournier (Defendant) enjoyed third party liability insurance coverage under a New York Central Insurance

Company policy at the time of the 1990 accident. That policy has limits of $300,000, inclusive of all damages, interest and costs.

Issue What is the choice of law choice of law applicable to claims in the action for costs, prejudgment interest and

non-pecuniary general damages?o whether costs and pre-judgment interest are matters of procedure to which Ontario law applies o Whether the “cap” on non-pecuniary general damages recognized under Ontario law is a matter of

procedural, rather than substantive, law with the result that it applies to the Action as part of the law of the forum

Reasoning Tolofsen: the law to be applied to the substantive rights of parties in tort cases is the law of the place where

the activity occurred. However, the law of the forum (the lex fori) applies to procedural matterso The forum’s procedural rules exist for the convenience of the courto The substantive/procedural classification is to determine which rules will make the machinery of the

forum court run smoothly as distinguished from those determinative of the rights of both parties Substantive law creates rights and obligations and is concerned with the ends which the

administration of justice seeks to attain, whereas procedural law is the vehicle providing the means and instruments by which those ends are attained.

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It regulates the conduct of Courts and litigants in respect of the litigation itself whereas substantive law determines their conduct and relations in respect of the matters litigated

How does this relate to costs?o The authority in Ontario to award costs is conferred by s. 131 of the Courts of Justice Act,

Empowers an Ontario court, in its absolute discretion, to award “the costs of and incidental to a proceeding or a step in a proceeding”, and who will pay the costs!

o Traditionally, costs have been regarded as a form of indemnification of the party to whom they are awarded for the legal fees and expenses incurred in litigation

o In contemporary litigation, costs serve inter alia to encourage settlement and facilitate the management and control of the litigation process.

o Thus, costs are both a discretionary indemnification device and a mechanism by which abuses of the court’s processes may be deterred and penalized.

Costs are routinely used by Ontario courts to reward or sanction the conduct of parties prior to and during the litigation process.

Solicitor and client costs, or costs on a substantial indemnity basis, may be awarded to penalize and deter reprehensible, scandalous conduct, or conduct deserving of sanction.

An essential tool designed to “make the machinery of the forum court run smoothly” o Finally, costs of litigation are incidental to the determination of the rights of the parties

Therefore, Ontario costs are a procedural matter governed by the lex fori How about pre-judgment interest?

o The Act also provides for awards of pre-judgment and post-judgment interest Section 130(1) of the Act authorizes a court, in its discretion, to disallow prejudgment

interest, allow it at a rate higher or lower, or allow it for a period other than that provided presumptive entitlement to pre-judgment interest may be displaced based on conduct

which adversely affected the progress of the litigationo many provincial statutes explicitly recognize pre-judgment interest as

dependent in part upon the speedy conduct of proceedingso The discretion of the court concerning pre-judgment interest relates to the denial or reduction, as

distinct from the granting, of a right. the character of the court’s discretion in connection with prejudgment interest is qualitatively

different from the nature of the wide discretion afforded the court to grant, or deny, costs. The legislature, through the Act, has established a specific policy with respect to pre-

judgment interest that does not include an unfettered discretion o Due to the lack of judicial discretion, Ontario pre-judgment interest is a matter of substantive law

Can you make arguments for an exception to the lex loci delicti rule?o Tolofsen states that the courts retain a discretion to apply the local law (the lex fori) in international

litigation where necessary to avoid injustice. That discretion is limited, however, and is to be exercised only in compelling and exceptional

circumstances It is not mere differences in public policy that can ground the exception to the general

rule of lex loci delicti; the exception is only available where the application of the general rule would give

rise to an injusticeo For example, the unavailability of a complete category of claim or cause of

action according to the lex fori Wong v Lee

If the law of New York State applied, the defendant insurance company would be exposed to liability for pecuniary damages without a deductible, whereas under Ontario law that would not be the case.

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All of the parties to the accident were resident in the forum and had no connection with the foreign jurisdiction where the wrong occured

Court concluded that such a consequence was not an exceptional injustice o In the case at hand, the Plaintiff argues that that her present inability to claim no-fault benefits under

New York State legislation and the bar, due to the expiry of a limitation period, to any claim from her own insurer provided for under New York State legislation, dictate an exception

No! Tolofson demonstrates that the denial of the opportunity to claim damages by reason

of a limitation period does not constitute an exception In Lucas, operation of a limit on liability by reason of a no-fault tort compensation

regime is not an exception eithero Are there procedural problems in terms of applying a foreign law? Do the courts have competency?

Ontario courts are accustomed to the need to review and apply foreign law Where necessary, the evidentiary basis to support such distinctions in international cases is

provided through admissible opinion evidence Is the cap on non-pecuniary general damages procedural or substantive?

o The SCC approved a uniform limit or “cap” on damages in personal injury cases for pain and suffering and loss of amenities. The cap is at about $300,000

intent is to provide a rational justification and stable national basis for non-pecuniary loss compensation, accepting that non-pecuniary losses are incapable of direct replacement

o General conflict of laws principles regarding damages distinguish between an entitlement to damages and the quantification or measurement of damages.

Remoteness and heads of damage are questions of substance governed by the lex loci delicti, quantification or measurement of damages is a question of procedure governed by the lex fori

Distinction between laws which deny a remedy in respect of a particular head of damage in negligence (a substantive law) and those which affect the quantification of damages concerning a particular head of damage (a procedural law)

o The cap established by the SCC does not bar a claim for damages for pain and suffering and loss of amenities consequent upon personal injuries

The cap assumes that liability exists “which is susceptible of assessment”, but directs the courts to impose an upper limit on the quantum of damages

The cap is a judicially imposed limit or restriction on liability for non-pecuniary damages to avoid excessive and unpredictable damages awards concerning non-pecuniary losses and the corresponding burden on society which follows from such awards.

o The cap is a matter of procedural law

Rome I Regulation, art. 12(c)The law applicable to a contract by virtue of this Regulation shall govern in particular: (c) within the limits of the powers conferred on the court by its procedural law, the consequences of a total or partial breach of obligations, including the assessment of damages in so far as it is governed by rules of law

Rome II Regulation, art. 15(c)The law applicable to non-contractual obligations under this Regulation shall govern in particular:(c) the existence, the nature and the assessment of damage or the remedy claimed;

Weintraub, “Choice of law for quantification of damages: a judgment of the House of Lords makes a bad rule worseChoice of law for quantification of tort damages

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In discussing choice of law for determining damages for torts, it is necessary to distinguish between “heads” of damages and “quantification” of damages under those heads

o Heads of damages list the items for which a court or jury may award damageso Quantification of damages measures the proper amount under each allowable head

For “substantive” issues a court applies the forum’s choice-of-law rule to select the applicable law. “Procedural” issues applies the forum’s rule

o It may refer to the rules that govern the workings of the forum’s courts—pleading, preserving objections for appeal, discovery

o A “procedural” issue might be one for which the forum court will not engage in its usual choice-of-law analysis, but will simply apply its own rule

What justifies a forum in insisting on applying its local rule when under the forum’s choice-of-law rule the law of another jurisdiction applies to all “substantive” issues?

The proper standard is one that balances the difficulty of finding and applying the foreign rule against the likelihood that applying the forum’s rule will affect the result in a manner that will induce forum shopping.

o Pleading, serving process, preserving objections for appeal, and similar issues relating to the day-to-day operation of courts are properly labeled procedural

What about damages?o How can the qualification of the head be substantive but the quantification of the head be procedural

Quantification is the bottom line of cases; it is the remedy imposed to indemnify the victim This promotes excessive forum shopping in order to litigate in American jurisdictions where

juries award ridiculous damages

Harding v Vealand – House of Lords rejects argument that statutory limits are substantive House of Lords used an Australian case, Stevens v Head, which determined that statutory limits are

proceduralo House ignores the fact that this case was overruled by Pfeiffer, arguing that Pfeiffer was based

solely on the ‘constitutional imperatives of Australian federalism’ Pfeiffer v Rogerson

o “Within a federal nation, the capacity to choose the forum within which to bring such proceedings can be one of the advantages of the interconnected polity.

However, such a facility ought not to involve the capacity of one party seriously to prejudice the legal rights of an opponent.

o “Reasonable to recognize the right of a litigant to choose different courts in the one nation by reason of their advantageous procedures, better facilities, or greater expedition.

Not reasonable that such a choice, made unilaterally by the initiating party, should materially alter that party’s substantive legal entitlements to the disadvantage of its opponents.

The law would no longer provide a certain and predictable norm, neutrally applied as between the parties.

It would promote forum shoppingo Such a possibility would be obstructive to the integrity of a federal nation, the

reasonable expectations of those living within it, and the free mobility of people, goods, and services within its borders

However, this argument is not limited to federalist states, but is particularly lucid argument for international litigation as well!

Unfair surprise argument [great example given on page 318 of article]o The only viable unfair surprise argument concerning insurance focuses on unfair surprise to the

insured.

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o This may occur if the liability regimes of the place of injury and a distant forum are so different that liability insurance adequate at the place of injury is inadequate to meet forum standards for quantifying damages.

o If the tortfeasor cannot reasonably foresee the need for insuring at the higher level, it is unfair to impose forum law to compensate a forum resident

May become liable for a ridiculous amount which is not possible in the lex loci delicti How in the world can you predict that and protect against that??

o How about a situation, like in the UK, which has declared that it is against public policy to award compensation that is excessive by UK standards?

Tort occurs in US, and the US courts award compensation deemed excessive to UK Tortfeasor fleas and brings his assets to the UK, so judgment must be enforced there UK courts won’t enforce judgment because it is excessive

Left with two conflicting judgments Using the forum’s public policy as a legitimate basis for refusing to apply a foreign rule

“would violate some fundamental principle of justice” It should not offend public policy to apply New York quantification if it was an

American fleeing liability If it was an Englishman on vacation, is it fair that he uses and extends the protective

cloak of English citizenship to a foreign jurisdiction to protect his assets? In conclusion, the substantive/procedural distinction should change to accord with a functional view of

proceduralo A functional view would preclude the procedural label for any rule that is likely to affect the result in

a manner that would invite forum shopping unless it would be unreasonably difficult for local lawyers and judges to apply foreign law to the issue.

Harding has been overturned by Rome II Convention

Choice of Law: Proof of Foreign Law

CCQ art. 28092809. Judicial notice may be taken of the law of other provinces or territories of Canada and of that of a foreign state, provided it has been pleaded. The court may also require that proof be made of such law; this may be done, among other means, by expert testimony or by the production of a certificate drawn up by a jurisconsult.

Where such law has not been pleaded or its content has not been established, the court applies the law in force in Québec.

Rainer Hausmann, Pleading and Proof of Foreign Law - a Comparative Analysis, The European Legal Forum The procedure is governed under the law of the court seised with the action (lex fori), irrespective of the law

applicable to the substance of the case. Private international law designates the applicable substantive law as the lex causae Problems arise whenever the rules of private international law refer to foreign law, because its content

normally is unknown to the court. o lex fori decides on the questions whether the judge has an obligation to apply such foreign law ex

officio and by which means he may ascertain the content of the lex causae. Procedural law governs not only the proceedings, but it may limit the scope of private international law by

establishing specific procedural prerequisites for its application, and discovery of its content Status of Foreign Law in Domestic Proceedings: Questions of Fact or of Law

o Procedural law is characterised by the distinction between questions of fact and questions of law38

1) Determines who has to introduce a certain matter to the proceedings. Facts have to be pleaded by the parties

2) Determines whether a certain matter is subject to evidence Question of fact have to be proven by the parties

3) Statements of fact made by the lower court normally are binding on appealo Comparative Survey: Germany

Foreign is treated as law, not fact However, foreign law is subject to proof in case that it is unknown to the court

o Comparative Survey: England Foreign law is treated as fact “The ignorance of courts shall be compensated by submitting foreign to the regime of proof Appellate courts are not bound by finding of facts on foreign law

Introduction of Foreign Law to the Proceedingo Whether the judge has to apply private international law provisions in a case representing foreign

elements ex officio or whether the application of foreign law has to be pleaded by the party being favoured by such law

o Germany Principle

PIL rules have to be applied as part of the German legal system by the judge ex officio

If a German conflict rule refers to foreign law, such law must be applied, therefore, whether or not it is pleaded by the parties.

Party Autonomy in the Proceedings In all fields open to a choice of law, the parties can agree on the application of the lex

fori, even in the course of the proceedings and although their dispute might have been governed before by foreign law as a result of an earlier choice or absence of choice

Disputed whether an implied choice of law can be inferred from the fact that both parties plead their case under German law, although the case shows strong foreign elements which, would result in the applicability of foreign law under German PIL

o It is the judge’s duty to ask the parties whether they really intend to choose German law as lex causae and to draw their attention to the fact that in the absence of such implied choice of law he would have to apply foreign law

Non-Disclosure of Connecting Factors by the Parties Parties keep control over the facts which they disclose to the court including the

relevant connecting factors for the application of a conflict rule.o this power is restricted as the parties have to present the facts and the evidence

of their case to satisfy the inquisitorial systemo France

(1) Foreign law will be applied by French courts if it is invoked (and proved) by one of the parties

(2) If the parties do not invoke foreign law, the court nevertheless has to apply such law ex officio whenever the claim or action regards rights which the parties cannot freely dispose of

(3) By contrast, the French trial judge has no obligation to apply foreign law where only dispositive rights of the parties are the subject matter of the action

(4) In exception to this rule the French judge has to apply foreign law ex officio also in “dispositive cases” if so required by an international convention or EC-Regulation.

The parties are free to release the judge from this obligation by a procedural agreement that French law should be applied instead of foreign law

o England

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The principle is that if a party wishes to rely on foreign law, he or she must plead it in the same way as any other fact

pleading foreign law is entirely voluntary. However clear the foreign element, the parties have a choice whether to introduce

foreign law or not.o Effectively allows litigants to transform a conflicts case into a domestic one

Creates conflict of laws a voluntary body Why decline foreign jurisdiction?

English law is more favourable for the claimant Result will be the same Costs for retaining international legal expertise

Exceptions when dealing with international conventions, or in matters public policy violation Even if an English court is held to apply foreign law ex officio it often will refer to the so

called “presumption of similarity” According to this presumption, the law of a foreign country is the same as English

law except where evidence is produced to show that it is differento Default Rule and the Rome Convention

Convention makes it mandatory in contract cases for a court to consider what a contract’s applicable law is, regardless of whether the parties plead foreign law

According to Art 1(2)(h), the Convention does not apply to “evidence and procedure”. Since the rules on pleading and proof of foreign law are part of the law of evidence

and procedure it follows that they cannot be affected by the Convention. o Therefore, the Convention would not impose any legal obligation on the

Contracting States to alter their rules in this respect English autonomy lines up with the Convention’s main objective which is to guarantee the

freedom of the parties to choose the law governing their contract What about mandatory conflicts rule which exclude/restrict party autonomy

Article 5 and 6 for Consumer and Employee Protectiono All Member States MUST apply Article 5 and 6

Proof of Foreign Lawo In countries where foreign law is regarded as law, it has to be applied ex officio by the court and its

proof is in principle also a matter for the court; o Where foreign law is regarded as fact, it is applied only if one of the parties so requests and the

burden of proof rests on the party who pleads it; if it is not proven, the court will apply the lex forio Germany

Generally accepted principle that the judge has to know the law, and if he has not a sufficient knowledge of the law, as is normally the case when he has to apply foreign law, he is under an obligation to investigate, interpret and apply such law on his own motion.

German judge obliged to apply foreign law the same way as it is being applied in the country of its origin.

He has to refer to the foreign judicial practice, in particular to relevant court rulings Judge is free to choose the method to obtain the knowledge on the foreign law referred to by

German private international lawo France

Whenever the trial judge is not obliged to apply foreign law ex officio, he has no duty to ascertain the content of the foreign law on its own motion, it is for the parties

The party claiming that the application of foreign law would lead to a different result from that which would be obtained by French law must establish this difference by proving the content of the foreign law he invokes; otherwise French law will be applied as the lex fori

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o Italy and Spain The parties are not any longer obliged to prove the content of foreign law, but this is the duty

of the court and has to be discharged ex officio If the foreign law cannot be ascertained, the judge has to proceed in two steps. In a first step

apply the law which is declared applicable by alternative connecting factors being determined by the Italian conflict rule

Only the second step he is allowed to resort to the lex forio England

Principle that judges are deemed to have no knowledge of foreign law, because foreign laws are merely facts.

It follows that the general rules on proof of facts apply Foreign law must be pleaded and proved by the parties If foreign law is not proved to the conviction of the judge, the lex fori will be applied

Proof requires expert opinion Conclusion of Rome Convention

o The main objective of harmonisation by the Rome Regulations is to avoid forum shopping by guaranteeing that a certain case will be decided by the courts of any Member State according to the same substantive law.

This intended uniformity can only be achieved if the courts are under an obligation to apply these rules and the law they refer to ex officio.

Furthermore the same standard must be applied when evaluating the sufficiency of proof When the content of foreign law cannot be establish, the same solution must be applied

Apply the lex fori; although this will not create unity of results

Jurisdiction- State Immunity - The State Immunity Act R.S. 1985 c. S-18, ss. 3-6, 183. (1) Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada.

4. (1) A foreign state is not immune from the jurisdiction of a court if the state waives the immunity conferred by subsection 3(1) by submitting to the jurisdiction of the court in accordance with subsection (2) or (4).

5. A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to any commercial activity of the foreign state.

6. A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to(a) any death or personal or bodily injury, or(b) any damage to or loss of property

that occurs in Canada.

18. This Act does not apply to criminal proceedings or proceedings in the nature of criminal proceedings.

Jurisdiction - Constitutional limits on jurisdiction

Morguard Investments Ltd. v. De Savoye [1990] 3 S.C.R. 1077 Facts The respondents were mortgagees of lands in Alberta. The appellant was the mortgagor and then resided in Alberta. Appellant moved to British Columbia and has not resided or carried on business in Alberta since then.

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The mortgages fell into default and the respondents brought action in Alberta. o Service was effected in accordance with the rules for service ex juris of the Alberta Court. o The appellant took no steps to appear or to defend the actions. o The respondents obtained judgments nisi in the foreclosure actions

The respondents then commenced a separate action in BC to enforce the Alberta judgmentsIssues Should the BC court recognize the judgment of the courts in another province in a personal action brought

in the latter province at a time when the defendant did not live thereReasoning the courts in one province should give full faith and credit to the judgments given by a court in another

province or a territory, so long as that court has properly, or appropriately, exercised jurisdiction in the action. 

principles of order and fairness are paramount in PILo Both order and justice militate in favour of the security of transactions.  o unfair that a person should be able to avoid legal obligations simply by moving to another province

These concerns must be weighed against fairness to the defendanto The taking of jurisdiction by a court in one province and its recognition in another must be viewed as

correlatives, o Recognition in other provinces should be dependent on the fact that the court giving judgment

"properly" or "appropriately" exercised jurisdiction (jurisdiction simpliciter) But it hardly accords with principles of order and fairness to permit a person to sue another in

any jurisdiction, without regard to the contacts that jurisdiction may have to the defendant or the subject-matter of the suit

o fair process is not an issue within the Canadian federation. When has a court exercised its jurisdiction appropriately for the purposes of recognition by a court in

another province? o no difficulty where the court has acted on the basis of some ground traditionally accepted by courts

as permitting the recognition and enforcement of foreign judgments where the defendant was within the jurisdiction at the time of the action when he submitted to its judgment whether by agreement or attornment

o Difficulty where the defendant was outside the jurisdiction of that court and he was served ex juris if the courts of one province are to be expected to give effect to judgments given in another

province, there must be some limits to the exercise of jurisdiction against persons outside the province

reciprocity approach does not provide the answero Must adopt a new test

Moran v. Pyle National (Canada) Ltd.o Electrician was fatally injured in Saskatchewan while removing a spent light bulb manufactured in

Ontario by a company that neither carried on business nor held any property in Saskatchewan. o Tort occurred in Ontario where the faulty product was manufacturedo Damage occurred in Saskatchewan where the person died

If a tort is to be divided and one part occurs in state A and another in state B, the tort could reasonably for jurisdictional purposes be said to have occurred in both states

Was there a "real and substantial connection" between the jurisdiction and the wrongdoing?

o This rule recognizes the important interest a state has in injuries suffered by persons within its territory.

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o It recognizes that the purpose of negligence as a tort is to protect against carelessly inflicted injury and thus that the predominating element is damage suffered.

o By tendering his products in the market place, a manufacturer assumes the burden of defending those products wherever they cause harm

as long as the forum is one that the manufacturer reasonably ought to have had in his contemplation when he so tendered his goods.

This is particularly true in the interprovincial flow of commerce This rationale applies equally to tort and contract

o If it is reasonable to support the exercise of jurisdiction in one province, it would seem equally reasonable that the judgment be recognized in other provinces.

Comity is based on the common interest of both the jurisdiction giving judgment and the recognizing jurisdiction.

It is in the interest of the whole country, an interest recognized in the Constitution itself Applying this real & substantial connection test to the facts, Alberta does have a substantial connection

o the properties were situate in Alberta, o the contracts were entered into there by parties then both resident in the province. o Alberta had jurisdiction, and its judgment should be recognized and be enforceable in BC

Going back to the issue of a defendant being sued outside the province of residenceo This consideration must be weighed against the fact that the plaintiff may often find himself

subjected to the inconvenience of having to pursue his debtor to another provinceo The real and substantial connection approach provides a reasonable balance between the rights of the

parties. It affords protection against being pursued in jurisdictions having little or no connection with

the transaction or the parties forum non conveniens also used by courts for refusing to grant jurisdiction whose real and

substantial connection with the jurisdiction is tenuous or where entertaining the proceedings would create injustice

Constitutional considerations of jurisdiction based on service ex juriso the real and substantial connection test could serve the constitutional limits of provincial-court

jurisdiction over defendants outside the province, Requiring a substantial connection between the defendant and the forum province makes it

reasonable to infer that the defendant has voluntarily submitted himself to the risk of litigation their

Hunt v. T&N plc [1993] 4 S.C.R. 289 Facts and Issue The plaintiff Hunt initiated an action in British Columbia for damages for personal injury alleged to have

been caused by exposure to asbestos The Quebec Business Concerns Records Act purported to prohibit the removal from Quebec of documents

relating to any business concern in Quebec pursuant to any requirement of a judicial authority outside the province.

Was he Quebec statute was ultra vires Quebec as being in relation to a matter outside the province?Reasoning Quebec submit that the Act falls within provincial legislative competence by virtue of ss. 92(13): property

and civil rightso Cite Attorney General for Ontario v. Scott, which upheld the power of a province to enforce

judgments of other countries pursuant to reciprocal enforcement arrangements.

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o A necessary inference is that the province has legislative jurisdiction to prevent the enforcement in its jurisdiction of any order in relation to property located in the province, even if that affects rights recognized outside the province

Constitutional testo First, the statute must conform to the requirement that it be "in the Province" as required by s. 92,

Determine if it exceeds provincial jurisdiction to enact legislation with extraprovincial effect. o Secondly, the courts must consider appropriate policy in relation to recognition and enforcement of

judgments issued in other provinces in light of the legal interdependence under the Constitution Morguard Decision

o Morguard was concerned with tempering unfairness and inconvenience to litigants in conformity with the changing nature of the world community, and in light of Canadian constitutional structure

o Central idea was comity Greater comity is required in our modern era when international transactions involve a

constant flow of products, wealth and people across the globe the traditional rules emphasizing sovereignty seem to "fly in the face of the obvious intention

of the Constitution to create a single country". Canadian factors that support a more cooperative spirit in recognition and enforcement:

(1) common citizenship, (2) interprovincial mobility of citizens, (3) the common market created by the union as reflected in ss. 91(2), 91(10), 121 and

the peace, order and good government clause, (4) the essentially unitary structure of our judicial system with the SCC at its apex.

Individuals moving across Canada in the exercise of their common right of citizenship should be treated equally

o The "integrating character of our constitutional arrangements as they apply to interprovincial mobility" calls each province to enforce judgments of the courts of sister provinces.

Constitutional principle that is beyond the power of provincial legislatures to override. This does not mean that a province is debarred from enacting any legislation that may have

some effect on litigation in other provinces But it does mean that it must respect the minimum standards of order and fairness

o In our federation a greater degree of recognition and enforcement of judgments given in other provinces was called for

However, principles of comity must be grounded in notions of order and fairness to participants in litigation with connections to multiple jurisdictions.

A more accommodating approach to recognition and enforcement was premised on the "real and substantial connection" test

o Not a rigid test, but reflects that there must be some limits on the claims to jurisdiction

Applying Morguard principles to the case at hando A province undoubtedly has an interest in protecting the property of its residents within the province,

but it cannot do so by unconstitutional means. Here the means chosen are intended to unconditionally refuse recognition to orders and

thereby impede litigation, not only in foreign countries but in other provinces No discretion is given therefore it cannot respect the principles of order and fairness which

must inform the procedures required for litigation having extraprovincial effects. The whole purpose of a blocking statute is to impede successful litigation or prosecution in

other jurisdictions by refusing recognition and compliance with orders issued there. The whole point of blocking statutes is not to keep documents in the province, but

rather to prevent compliance, and so the success of litigation outside the province

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o This runs counter to comity. o It leads to strict retaliatory laws and power struggles, and discourages

international commerce and efficient allocation and conduct of litigation Offends the basic structure of the Canadian federation.

o This could be defended on the basis of sovereignty. Parliament is expressly permitted to legislate with internationally extraterritorial effect. But this appeal is concerned with the provinces within Confederation.

Morguard requires that the rules of private international law must be adapted to the structure of our federation.

In a federation, there is more commonality as to what is acceptable action Courts are required, by constitutional restraints, to assume jurisdiction only where

there are real and substantial connections to that placeo If constitutionally permissible, this approach would effectively immunize the business concerns

located in Quebec and Ontario from ever having to produce documents The essential effect is to impede the substantive rights of litigants elsewhere. It would force parties to conduct litigation in multiple fora and compel more plaintiffs to

choose to litigate in the courts of Ontario and Quebec. inconceivable that the Confederation contemplated a situation where citizens would be

effectively deprived of access to the ordinary courts in their jurisdiction The resultant higher transactional costs for interprovincial transactions constitute an

infringement on the unity and efficiency of the Canadian marketplace, as well as unfairness to the citizen

Jurisdiction - Jurisdictional criteria

Ontario Rules of Civil Procedure, Rule 17 - SERVICE OUTSIDE ONTARIO WITHOUT LEAVE17.02 A party to a proceeding may, without a court order, be served outside Ontario with an originating process or notice of a reference where the proceeding against the party consists of a claim or claims:

Property in Ontario Administration of Estates Interpretation of an Instrument Trustee Where Assets Include Property in Ontario Mortgage on Property in Ontario Contracts Tort Committed in Ontario Damage Sustained in Ontario Injunctions Judgment of Court Outside Ontario Authorized by Statute Necessary or Proper Party Person Resident or Carrying on Business in Ontario Taxes

SERVICE OUTSIDE ONTARIO WITH LEAVE17.03 (1) In any case to which rule 17.02 does not apply, the court may grant leave to serve an originating process or notice of a reference outside Ontario.

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(2) A motion for leave to serve a party outside Ontario may be made without notice, and shall be supported by an affidavit or other evidence showing in which place or country the person is or probably may be found, and the grounds on which the motion is made.

ADDITIONAL REQUIREMENTS FOR SERVICE OUTSIDE ONTARIO17.04 (1) An originating process served outside Ontario without leave shall disclose the facts and specifically refer to the provision of rule 17.02 relied on in support of such service.

(2) Where an originating process is served outside Ontario with leave of the court, the originating process shall be served together with the order granting leave and any affidavit or other evidence used to obtain the order.

MANNER OF SERVICE OUTSIDE ONTARIOGeneral Manner of Service17.05 (2) An originating process or other document to be served outside Ontario in a jurisdiction that is not a contracting state may be served in the manner provided by these rules for service in Ontario, or in the manner provided by the law of the jurisdiction where service is made, if service made in that manner could reasonably be expected to come to the notice of the person to be served.

MOTION TO SET ASIDE SERVICE OUTSIDE ONTARIO17.06 (1) A party who has been served with an originating process outside Ontario may move, before delivering a defence, notice of intent to defend or notice of appearance,(a) for an order setting aside the service and any order that authorized the service; or(b) for an order staying the proceeding.

(2)The court may make an order under subrule (1) or such other order as is just where it is satisfied that,(a) service outside Ontario is not authorized by these rules;(b) an order granting leave to serve outside Ontario should be set aside; or(c) Ontario is not a convenient forum for the hearing of the proceeding. (3) Where on a motion under subrule (1) the court concludes that service outside Ontario is not authorized by these rules, but the case is one in which it would have been appropriate to grant leave to serve outside Ontario under rule 17.03, the court may make an order validating the service.

(4) The making of a motion under subrule (1) is not in itself a submission to the jurisdiction of the court over the moving party.

Club Resorts Ltd. v. Van Breda, 2012 SCC 17 Facts In separate cases, two individuals were injured while on vacation in Cuba. Actions were brought in Ontario against Club Resorts Ltd. Club Resorts is a company incorporated in the Cayman Islands that managed the two hotels where the

accidents occurred Club Resorts sought to block those proceedings on two grounds

o Ontario courts lacked jurisdiction o A Cuban court would be a more appropriate forum on the basis of forum non conveniens

Reasoning Constitutional Underpinnings of Private International Law

o The interplay between provincial jurisdiction and external legal situations takes place within a constitutional framework which limits the external reach of provincial laws and courts.

o The Constitution assigns powers to the provinces,

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o These powers must be exercised within the province in question and they must be exercised in a manner consistent with the territorial restrictions created by the Constitution

o The real and substantial connection test was created to establish broad and flexible principles to govern the exercise of provincial powers and the actions of a province’s courts.

Focussed on two issues: (1) the risk of jurisdictional overreach by provinces (2) the recognition of decisions rendered in other jurisdictions within the Canadian federation

and in other countries. Morguard & Hunt

o Court held that the real and substantial connection test was designed to ensure that claims are not prosecuted in a jurisdiction that has little or no connection with either the transactions or the parties, and it requires that a judgment rendered by a court which has properly assumed jurisdiction in a given case be recognized and enforced.

The connections between the matters or the parties, on the one hand, and the court, on the other, must be of some significance in order to promote order and fairness.

Test called for a re-evaluation of relationships between the provincial courts within Canada The Canadian federation established an internal space within which exchanges should

occur more freely than between independent states The principle of comity, fairness and order applicable within a federal space required

that the rules of PIL be adjusted This test was consistent with the constitutional imperative that provincial power be exercised

“in the province” Hunt confirmed the constitutional nature of the real and substantial connection test

o The real and substantial connection test is a constitutional principle, and not a simple conflicts rule

o the test has both a PIL face and a constitutional face

Jurisdiction Simpliciter So now we know the text exists…how do we apply it? We can either use a case-by-case approach or

develop factors Tension between a search for flexibility, which is closely connected with concerns about fairness to

individuals engaged in litigation, and a desire to ensure greater predictability and consistency in the institutional process for the resolution related to the assumption and exercise of jurisdiction

o Must remain mindful of the distinction between the real and substantial connection test as a constitutional principle and the same test as the organizing principle of the law of conflicts

The constitutionally imposed territorial limits on adjudicative jurisdiction are related to, but distinct from, the real and substantial connection test as expressed in conflicts rules.

Conflicts rules include the rules that have been chosen for deciding jurisdiction, conflict of laws, and enforcement/recognition of judgments

The purpose of the constitutional principle is to ensure that specific conflicts rules authorize the assumption of jurisdiction only in circumstances representing a legitimate exercise of the state’s power of adjudication.

o The existence of a constitutional test aimed at maintaining the constitutional limits of a province’s legislature and courts does not mean that the rules of PIL must be uniform across Canada.

Legislatures and courts may adopt various solutions to meet the constitutional requirements and the objectives of efficiency and fairness that underlie our PIL system.

The preferred Canadian approach has been to rely on a set of specific factors which are given presumptive effect

o as opposed to a regime based on an exercise of pure and individualized judicial discretion (US) The framework for the assumption of jurisdiction cannot be an unstable, ad hoc system

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The goal of the modern conflicts system is to facilitate exchanges and communications between people in different jurisdictions that have different legal systems.

it rests on the principle of comity For there to be comity, there must be order in the system, and it must permit the development

of a just and fair approach to resolving conflicts. Justice and fairness are undoubtedly essential purposes of a sound PIL system

o They cannot be attained without a system of principles and rules that ensure security and predictability in the law governing assumption of jurisdiction

A set of relevant presumptive connecting factors and the determination of their legal nature and effect will bring greater clarity and predictability to the analysis of the problems of assumption of jurisdiction,

o Will also ensure consistency with the objectives of fairness and efficiency that underlie PIL To meet the common law real and substantial connection test, the party arguing that the court should

assume jurisdiction has the burden of identifying a presumptive connecting factor that links the subject matter of the litigation to the forum.

o Abstract concerns for order, efficiency or fairness in the system are no substitute for connecting factors that give rise to a “real and substantial” connection for the purposes of the law of conflicts

In a case concerning a tort, the following factors are presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute:

o (a) the defendant is domiciled or resident in the province;o (b) the defendant carries on business in the province;o (c) the tort was committed in the province; ando (d) a contract connected with the dispute was made in the province.

This list is not exhaustive, however, and courts may, over time, identify additional presumptive factorso When a court considers whether a new connecting factor should be given presumptive effect, the

values of order, fairness and comity assess the strength of the real and substantial connectiono These values underlie all presumptive connecting factors, whether listed or newo In identifying new presumptive factors, relevant considerations include:

(a) Similarity of the connecting factor with the recognized presumptive connecting factors; (b) Treatment of the connecting factor in the case law: (c) Treatment of the connecting factor in statute law; and (d) Treatment of the connecting factor in the PIL of other legal systems with a shared

commitment to order, fairness and comity. If no recognized presumptive connecting factor applies, the effect of the common law real and substantial

connection test is that the court should not assume jurisdiction. o a court should not assume jurisdiction on the basis of the combined effect of a number o non-

presumptive connecting factors. The presumption of jurisdiction that arises where a recognized presumptive connecting factor exists is not

irrebuttable. o The burden of rebutting it rests on the party challenging the assumption of jurisdiction. o Accomplished by establishing facts which demonstrate that the presumptive connecting factor does

not point to any real or strong relationship between the subject matter of the litigation and the forum If the court concludes that it lacks jurisdiction, it must dismiss or stay the action, subject to

the possible application of the forum of necessity doctrine, If jurisdiction is established, the claim may proceed, subject to the doctrine of forum non

conveniens

Forum Non Conveniens A clear distinction must be drawn between the existence and the exercise of jurisdiction. The court cannot decline to exercise its jurisdiction unless the defendant invokes forum non conveniens.

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o The decision to raise this doctrine rests with the parties, not with the court The defendant has the burden to show why the court should decline to exercise its jurisdiction and displace

the forum chosen by the plaintiff. o The defendant must show that the alternative forum is clearly more appropriate and be fairer and

more efficient to chose an alternative forum and to deny the plaintiff the benefits of their forum. Not simply equal, but the alternative must be clearly better

However, a court must refrain from leaning too instinctively in favour of its own jurisdiction

Forum non conveniens requires a court to go beyond a strict application of the test governing the recognition and assumption of jurisdiction.

o Recognition that a court retains a residual power to decline its jurisdiction in appropriate, but limited, circumstances to assure fairness to the parties and the efficient resolution of the dispute.

o The doctrine focuses on the contexts of individual cases and the factors that a court may consider in deciding whether to apply forum non conveniens vary depending on the context. Factors include:

Locations of parties and witnesses cost of transferring the case to another jurisdiction or of declining the stay impact of a transfer on the conduct of the litigation or on related or parallel proceedings possibility of conflicting judgments problems related to the recognition and enforcement of judgments relative strengths of the connections of the two parties.

o Ultimately, the decision falls within the reasoned discretion of the trial court. This exercise of discretion will be entitled to deference from higher courts

Applying law to facts Van Breda

o In Van Breda, a contract was entered into in Ontario, which is connected with the litigation Presumptive connecting factor that entitles the courts of Ontario to assume jurisdiction Club Resorts has failed to rebut the presumption of jurisdiction Club Resorts has not discharged its burden of showing that a Cuban court would clearly be a

more appropriate forum for the forums non conveniens test A trial held in Cuba would present serious challenges to the parties. Burden on the plaintiffs clearly would be far heavier in Cuba

Charrono Club Resorts was carrying on a business in Ontario which is a presumptive connecting factor.

Club Resorts’ commercial activities in Ontario went well beyond promoting a brand and advertising.

Its representatives were in the province on a regular basis, and it owned an office in Ontario

Uniform Court Jurisdiction and Proceedings Transfer Act (UCJPTA)Introductory Comments This proposed uniform Act has four main purposes:

o (1) to replace the widely different jurisdictional rules currently used in Canadian courts with a uniform set of standards for determining jurisdiction;

o (2) to bring Canadian jurisdictional rules into line with the principles laid down by the SCCo (3) by providing uniform jurisdictional standards, to provide an essential complement to the rule of

nation-wide enforceability of judgments in the uniformo Enforcement of Canadian Judgments Act; and

Jurisdiction is not established by the availability of service of process, but by the existence of defined connections between the territory or legal system of the enacting jurisdiction, and a party to the proceeding or the facts on which the proceeding is based

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Proceedings in personam3. A court has territorial competence in a proceeding that is brought against a person only if:a) that person is the plaintiff in another proceeding in the court to which the proceeding in question is a

counterclaim;b) during the course of the proceeding that person submits to the court’s jurisdiction;c) there is an agreement between the plaintiff and that person to the effect that the court has jurisdiction in the

proceeding;d) that person is ordinarily resident in [enacting province or territory] at the time of the commencement of the

proceeding; ore) there is a real and substantial connection between the province and the facts on which the proceeding

against that person is based. Replacing service in the territory of the forum court with ordinary residence in that territory means that a

person who is only temporarily in the jurisdiction will not automatically be subject to the court’s jurisdiction Factor (e) imports the real and substantial connection explained in MorguardResidual discretion6 A court that under section 3 lacks territorial competence in a proceeding may hear the proceeding despite that section if it considers that:

a) there is no court outside [enacting province or territory] in which the plaintiff can commence the proceeding; or

b) the commencement of the proceeding in a court outside the province cannot reasonably be required.Real and substantial connection10 Without limiting the right of the plaintiff to prove other circumstances that constitute a real and substantial connection between the province and the facts on which a proceeding is based, a real and substantial connection between the province and those facts is presumed to exist if the proceeding: This lists the presumptive factors listed in Van Breda Meant to provide guidance to the meaning of ‘real and substantial connection’ Defendant still has the right to rebut the presumption that, in the particular case, the defined connection is

not real and substantial A plaintiff who does not satisfy any of the presumptive facts has the right to argue that there are other

presumptive factors that are not listed which give rise to a real and substantial connectionDiscretion as to the exercise of territorial competence11(1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.(2) A court, in deciding the question of whether it or a court outside the province is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including:

a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum;

b) the law to be applied to issues in the proceeding;c) the desirability of avoiding multiplicity of legal proceedings;d) the desirability of avoiding conflicting decisions in different courts;e) the enforcement of an eventual judgment; andf) the fair and efficient working of the Canadian legal system as a whole.

Section 11 is meant to codify the doctrine of forum non conveniensGeneral provisions applicable to transfers of a proceeding13(1) The court, in accordance with this Part, may:

(a) transfer a proceeding to a court outside the province; or(b) accept a transfer of a proceeding from a court outside the province

(2) A power given under this part to the [superior court] to transfer a proceeding to a court outside the province includes the power to transfer part of the proceeding to that court.

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(3) A power given under this Part to the court to accept a proceeding from a court outside the province includes the power to accept part of the proceeding from that court Part 3 sets up a mechanism through which the superior court of general jurisdiction in the enacting province

or territory can move a proceeding out of a court that is not an appropriate forum into a court that is a more appropriate forum

Grounds for an order transferring a proceeding14(1) The court by order may request a court outside the province to accept a transfer of a proceeding in which the court has both territorial and subject matter competence if court is satisfied that:

(a) the receiving court has subject matter competence in the proceeding; and(b) under section 13, the receiving court is a more appropriate forum for the proceeding than the court

[Superior court’s] discretion to accept or refuse a transfer16(1) … the court by order may :

(a) accept the transfer, subject to subsection (4), if both of the following requirements are fulfilled:(i) either the court or the transferring court has territorial competence in the proceeding ;(ii) the court has subject matter competence in the proceeding ; or

(b) refuse to accept the transfer for any reason that the court considers just, regardless of the fulfillment of the requirements of paragraph (a).

(2) The [superior court] must give reasons for an order under subsection (1)(b) refusing to accept the transfer of a proceedingReturn of a proceeding after transfer20(1) After the transfer of a proceeding to the court takes effect, the court must order the return of the proceeding to the court from which the proceeding was received if:

(a) the terms of the transfer provide for the return;(b) both the court and the court from which the proceeding was received lack territorial competence in the

proceeding; or(c) the court lacks subject matter competence in the proceeding.

Limitations and time periods23(1) In a proceeding transferred to the court from a court outside the province, and despite any enactment imposing a limitation period, the court must not hold a claim barred because of a limitation period if:

(a) the claim would not be barred under the limitation rule that would be applied by the transferring court; and

(b) at the time the transfer took effect, the transferring court had both territorial and subject matter competence in the proceeding

BC Court Jurisdiction and Proceedings Transfer Act (2003) – very similar to UCJPTA

CCQ articles 75-83, 307-308, 3134-54CHAPTER II DOMICILE AND RESIDENCE

75. The domicile of a person, for the exercise of his civil rights, is at the place of his principal establishment.

76. Change of domicile is effected by actual residence in another place coupled with the intention of the person to make it the seat of his principal establishment.

The proof of such intention results from the declarations of the person and from the circumstances of the case.

77. The residence of a person is the place where he ordinarily resides; if a person has more than one residence, his principal residence is considered in establishing his domicile.

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78. A person whose domicile cannot be determined with certainty is deemed to be domiciled at the place of his residence.

A person who has no residence is deemed to be domiciled at the place where he lives or, if that is unknown, at the place of his last known domicile.

79. A person called to a temporary or revocable public office retains his domicile, unless he manifests a contrary intention.

80. An unemancipated minor is domiciled with his tutor.

Where the father and mother exercise the tutorship but have no common domicile, the minor is presumed to be domiciled with the parent with whom he usually resides unless the court has fixed the domicile of the child elsewhere.

81. A person of full age under tutorship is domiciled with his tutor; a person under curatorship is domiciled with his curator.

82. Married or civil union spouses may have separate domiciles without prejudice to the rules respecting their living together.

83. The parties to a juridical act may, in writing, elect domicile with a view to the execution of the act or the exercise of the rights arising from it.

Election of domicile is not presumed.

308. A legal person may change its name or its domicile by following the procedure established by law.

309. Legal persons are distinct from their members. Their acts bind none but themselves, except as provided by law.

TITLE THREE INTERNATIONAL JURISDICTION OF QUÉBEC AUTHORITIESCHAPTER I GENERAL PROVISIONS3134. In the absence of any special provision, the Québec authorities have jurisdiction when the defendant is domiciled in Québec.

3135. Even though a Québec authority has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another country are in a better position to decide.

3136. Even though a Québec authority has no jurisdiction to hear a dispute, it may hear it, if the dispute has a sufficient connection with Québec, where proceedings cannot possibly be instituted outside Québec or where the institution of such proceedings outside Québec cannot reasonably be required.

3137. On the application of a party, a Québec authority may stay its ruling on an action brought before it if another action, between the same parties, based on the same facts and having the same object is pending before a foreign authority, provided that the latter action can result in a decision which may be recognized in Québec, or if such a decision has already been rendered by a foreign authority.

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3138. A Québec authority may order provisional or conservatory measures even if it has no jurisdiction over the merits of the dispute.

3139. Where a Québec authority has jurisdiction to rule on the principal demand, it also has jurisdiction to rule on an incidental demand or a cross demand.

3140. In cases of emergency or serious inconvenience, Québec authorities may also take such measures as they consider necessary for the protection of the person or property of a person present in Québec.

CHAPTER II SPECIAL PROVISIONSDIVISION I PERSONAL ACTIONS OF AN EXTRAPATRIMONIAL AND FAMILY NATURE3141. A Québec authority has jurisdiction to hear personal actions of an extrapatrimonial and family nature when one of the persons concerned is domiciled in Québec.

3142. A Québec authority has jurisdiction to rule on the custody of a child provided he is domiciled in Québec.

3143. A Québec authority has jurisdiction to decide cases of support or applications for review of a foreign judgment which may be recognized in Québec respecting support when one of the parties has his domicile or residence in Québec.

3144. A Québec authority has jurisdiction in matters relating to the nullity of a marriage or the dissolution or nullity of a civil union when the domicile or place of residence of one of the spouses or the place of solemnization of their marriage or civil union is in Québec.

3145. As regards the effects of marriage or a civil union, particularly those that are binding on all spouses regardless of their matrimonial or civil union regime, a Québec authority has jurisdiction when the domicile or place of residence of one of the spouses is in Québec.

3146. A Québec authority has jurisdiction to rule on separation from bed and board when one of the spouses has his domicile or residence in Québec at the time of the institution of the proceedings.

3147. A Québec authority has jurisdiction in matters of filiation if the child or one of his parents is domiciled in Québec.

It has jurisdiction in matters of adoption if the child or plaintiff is domiciled in Québec.

DIVISION II PERSONAL ACTIONS OF A PATRIMONIAL NATURE3148. In personal actions of a patrimonial nature, a Québec authority has jurisdiction where (1) the defendant has his domicile or his residence in Québec; (2) the defendant is a legal person, is not domiciled in Québec but has an establishment in Québec, and the dispute relates to its activities in Québec; (3) a fault was committed in Québec, damage was suffered in Québec, an injurious act occurred in Québec or one of the obligations arising from a contract was to be performed in Québec; (4) the parties have by agreement submitted to it all existing or future disputes between themselves arising out of a specified legal relationship; (5) the defendant submits to its jurisdiction.

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However, a Québec authority has no jurisdiction where the parties, by agreement, have chosen to submit all existing or future disputes between themselves relating to a specified legal relationship to a foreign authority or to an arbitrator, unless the defendant submits to the jurisdiction of the Québec authority.

3149. A Québec authority also has jurisdiction to hear an action involving a consumer contract or a contract of employment if the consumer or worker has his domicile or residence in Québec; the waiver of such jurisdiction by the consumer or worker may not be set up against him.

3150. A Québec authority has jurisdiction to hear an action based on a contract of insurance where the holder, the insured or the beneficiary of the contract is domiciled or resident in Québec, the contract is related to an insurable interest situated in Québec or the loss took place in Québec.

3151. A Québec authority has exclusive jurisdiction to hear in first instance all actions founded on liability under article 3129.

3152. A Québec authority has jurisdiction over a real action if the property in dispute is situated in Québec.

3153. A Québec authority has jurisdiction in matters of succession if the succession opens in Québec, the defendant or one of the defendants is domiciled in Québec or the deceased had elected that Québec law should govern his succession.

It also has jurisdiction if any property of the deceased is situated in Québec and a ruling is required as to the devolution or transmission of the property.

3154. A Québec authority has jurisdiction in matters relating to a matrimonial or civil union regime in the following cases: (1) the regime is dissolved by the death of one of the spouses and the authority has jurisdiction in respect of the succession of that spouse; (2) the object of the proceedings relates only to property situated in Québec.

In other cases, a Québec authority has jurisdiction if one of the spouses has his or her domicile or residence in Québec on the date of institution of the proceedings.

Spar Aerospace Ltd. v. American Mobile Satellite Corp., [2002] 4 S.C.R. 205Facts and Issue M entered into a contract with HA for the construction of a satellite. HA entered into a subcontract with Spar for the manufacture of the satellite at its Quebec facility M then contracted with three American companies to conduct ground station testing During the testing, serious damage was caused to the satellite HA refused to pay Spar performance incentive payments provided for in the subcontract. Spar commenced an action in Quebec alleging that negligent testing caused the satellite failure Spar’s head office is located in Ontario and all the defendant are domiciled in the U.S. where the alleged

negligence occurred. The defendant brought a declinatory motion challenging the jurisdiction of the Quebec courts, under CCQ

3148 and CCQ 3135 (forum non conveniensReasoning Comity is defined as the recognition which one nation allows within its territory to the legislative, executive

or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws

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Based on the customs of mutual deference and respect between nations, comity attenuates the principle of territoriality by allowing states to apply foreign laws so that rights acquired under them can retain their force, provided that they do not prejudice the states’ powers or rights.

The three principles of comity, order and fairness serve to guide the determination of the principal PIL issues: jurisdiction simpliciter, forum non conveniens, choice of law, and recognition of foreign judgments

Courts must interpret those rules by first examining the specific wording of the provisions of the C.C.Q. and then inquiring whether or not their interpretation is consistent with the principles which underlie the rules

o As these principles are not explicitly listed in the CCQ, they are not binding rules in themselveso They inspire the interpretation of PIL rules and reinforce the interconnected nature of the issues

Under art. 3148(3) C.C.Q., Quebec courts can assume jurisdiction where o (1) a fault was committed in Quebec; o (2) damage was suffered in Quebec; o (3) an injurious act occurred in Quebec; or o (4) one of the obligations arising from a contract was to be performed in Quebec.

Spar made a prima facie case that it suffered damage in Quebec. o The evidence demonstrated that the operation in the Quebec facility had established its own

reputation independently of the national reputation Spar enjoyed from its head office 80-85% of its spacecraft work was done in Quebec.

o The Quebec facility suffered injuries as a result of the withholding of the incentive payments, even though these were to be made to the corporate headquarters in Toronto.

o The subcontract between Spar and HA for the manufacture of the satellite identifies Spar as being located at Ste-Anne-de-Bellevue, a fact that tends to strengthen its argument that its reputation was in fact associated with its Quebec operation.

o Any damage to reputation suffered by Spar was suffered by its establishment in of Quebec, and not at its corporate offices in Ontario.

Further, nothing in the wording of art. 3148(3) suggests that only direct damage can be used to link the action to the jurisdiction.

Can suffer reputational damages indirectly from satellite explosionso However, the reputational damage is not the result of an injurious act

In order to interpret “injurious act” in a manner that will not render redundant the rest of art. 3148(3), it must refer to a damage-causing event that attracts no-fault liability

The “real and substantial connection” requirement is not an additional criterion that must be satisfied in determining the jurisdiction of the Quebec courts in this case.

o First, Hunt & Morguard were decided in the context of interprovincial jurisdictional disputes and their specific findings cannot easily be extended beyond this context.

In particular, Hunt & Morguard resulted in the enhancing reciprocity in the context of interprovincial comity within the structure of the Canadian federation

The considerations underlying the rules of comity apply with much greater force between the units of a federal state

The real and substantial connection was specially crafted to address the challenges posed by multiple jurisdictions within a federation

o Second, the explicit wording of art. 3148 as well as the other provisions of Book Ten that Quebec’s system of PIL is designed to ensure that there is a “real and substantial connection”

all of the grounds (fault, injurious act, damage, contract) seem to be examples of situations constituting a real and substantial connection between Quebec and the action.

forum non conveniens, art. 3135 C.C.Q., also serves as an important counterweight to the broad basis for jurisdiction set out in art. 3148.

A Quebec court which has jurisdiction may exceptionally decline jurisdiction if it considers that the courts of another country are in a better position to decide.

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Relevant factors in a determination include: The parties’ residence, that of witnesses and experts;

All the witnesses and parties are from different places, not one single preferable location

the location of the material evidence; evidence located in many different jurisdictions

the place where the contract was negotiated and executed; the existence of proceedings pending between the parties in another

jurisdiction; the location of Defendant’s assets;

different jurisdictions in the US the applicable law; advantages conferred upon Plaintiff by its choice of forum, if any; the interest of justice; the interest of the parties; the need to have the judgment recognized in another jurisdiction

Although the amount of the damages can potentially be a factor , it is not relevant in the case as it was not proven that the $50,000 claim is frivolous

Weighing all the factors, there is no clear winning forum Cannot exercise forum non conveniens

Furthermore, this power is exceptional By ignoring the exceptionality requirement, courts will create uncertainty and

inefficiency, which will seriously compromise the principles of comity, order and fairness

Option Consommateurs c. Infineon Technologies, a.g. 2011 QCCA 2116Facts and Issue The respondent companies were all manufacturers of DRAM who participated in price-fixing Cloutier, who lives in Montreal, purchased DRAM from her home by computer over the Internet. She placed the order on Dell’s website and paid the price in full with a credit card. The invoice of the sale recorded Dell's address for payment to be in Toronto The standard-form contractual terms stipulated that the sale was deemed to have taken place in Ontario and

was subject to Ontario law The alleged fault, the conspiracy of price-fixing, took place outside of Quebec The headquarters of all the defendants are in countries other than Canada. None of them has a place of

business in Quebec. The defendants claim that Quebec courts have no jurisdiction to hear the matter Trial judge held that the loss suffered by Cloutier did not constitute damage within the meaning of 3148(3)

o Cloutier suffered a financial loss arising out of a contract concluded in Ontario with the Dell, a third party to the action.

o This financial loss was only connected to Quebec by reason of her domicile being hereo Not enough for a finding of jurisdiction simpliciter under CCQ 3148(3)

LegislationCCQ 3148 In personal actions of a patrimonial nature, a Québec authority has jurisdiction where… (3) a fault was committed in Québec, damage was suffered in Québec, an injurious act occurred in Québec or one of the obligations arising from a contract was to be performed in QuébecReasoning Spar Aerospace held that the notion of "real and substantial connection" between the facts of a case and the

Quebec courts is subsumed under article 3148(3) C.C.Q Paragraphs 48-60 discuss contract formation to determine where the contract was formed

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o Section 2 of the Consumer Protection Act makes plain that the Act "applies to every contract" between a consumer and a merchant, and therefore, the contract between Dell and Cloutier is subject to the Act.

Application of the Consumer Protection Act deems the contract between Cloutier and Dell to have been entered into at Cloutier’s Montreal address

Therefore, the choice of law clause in the standard form is inapplicableo Perfect example of public policy provisions overriding choice of law clauses

Is the financial loss incurred in Montreal enough? Yes, financial loss constitutes damage under Art 3148(3), and distinguishable from Quebecor Printing case

o Quebecor Printing stands for the principle that when financial damage is only recorded in Quebec, that alone is insufficient to ground territorial jurisdiction for the purposes of article 3148(3) C.C.Q.

Where the only sign of damage in Quebec turns on the presence of the plaintiff’s patrimony being here, the Court cannot rely on article 3148(3) C.C.Q

However, where there is evidence that the financial loss has been suffered in Quebec based on a material event that has occurred here, then article 3148(3) CCQ is satisfied

Financial damage is sufficient An analysis of the wording of the CCQ adds weight to this conclusion

o préjudice" in 3148(3) C.C.Q. mirrors the term used to describe the injury caused to another person by an extracontractual or contractual fault in articles 1457 and 1458, which would be the usual bases for these "personal actions of a patrimonial nature”

"préjudice/damage" in article 3148 C.C.Q. refers to the injury that is an essential element, for establishing civil liability.

As a connecting factor, it is placed alongside " fault" and " injurious act" which are also basic elements of causes of action in civil liability where applicable.

o "préjudice" also echoes the language used in article 1607 C.C.Q. in speaking to the objective fact of bodily, moral integrity or material injury required as an element of an action in civil liability.

Therefore, article 3148(3) "damage was suffered in Québec " seeks to identify the substantive situs of the "bodily, moral or material injury which is the immediate and direct consequence of the debtor's default and not the situs of the patrimony where the damage is ‘recorded’

Financial damage v recording of damage distinction found in Foster case where it was found that the location of the plaintiff’s head office in Quebec was not enough to satisfy Article 3148(3) CCQ

o Recording of damage at the head office in Quebec does not attribute jurisdiction Therefore, the financial loss that Cloutier occurred in Montreal due to the contract being concluded at her

domicile constitutes damage under Article 3148(3) CCQo Quebec court has jurisdiction to hear the case

Catherine Walsh, “The International Jurisdiction of Quebec Authorities” Article 3148 is the principal provision for personal actions of a patrimonial nature.

o 3 categories of connecting factors to Québec sufficient to give jurisdiction to a Québec authority defendant connections; subject matter connections; and consent

o Exception in Article 3148 (2) to grant jurisdiction: Québec authority has no jurisdiction if the parties have chosen a foreign authority or

arbitrator to govern any existing or future disputes between them The plaintiff’s domicile or residence in Québec is not a general connecting factor for jurisdiction:

o One exception: disputes involving a consumer contract or a contract of employment on the sole basis that the claimant is a consumer or worker who is domiciled or resident in Québec.

Overrides choice of forum provision

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Exercise of jurisdiction is not mandatory, can be declined o Articles 3135 declines jurisdiction if determined that a foreign authority is better positioned to

decide the case (forum non conveniens) o Article 3137 declines if litigation involving the same parties and subject matter is already pending in

a foreign forum (lis pendens) Exercise of jurisdiction by Quebec courts is exceptionally mandatory

o Article 3151: exclusive jurisdiction to adjudicate claims founded on civil liability for damage suffered as a result of exposure to or the use of raw materials originating in Québec (Asbestos)

o Article 3129: mandatory where the parties have agreed to vest exclusive jurisdiction over their dispute in a Québec authority (choice of forum)

Article 3136 authorizes the exercise of jurisdiction by a Québec authority where proceedings cannot or cannot reasonably be required be instituted outside Québec.

Articles 3138 and 3140 empower a Québec authority to order provisional or conservatory measures even when it otherwise lacks jurisdictional competence over the merits of a dispute. (injunction)

Article 3139: if Québec has jurisdiction over the principal demand, it also has jurisdiction over an incidental or cross demand

Defendant Connections: Article 3148 (1-2) article 3134 establishes the defendant’s domicile in Québec as a universal basis of jurisdiction.

o article 307: domicile of a legal person is at the place and address of its head office o Article 75: domicile of a person as the place of his principal establishmento article 76: Change of domicile is effected by actual residence in another place coupled with the

intention of the person to make it the seat of his principal establishment Domicile for natural persons has two elements: residence, and intent

article 3148(1) enlarges the permissible defendant connections beyond domicile to include residence. o Residence: place where a person ordinarily or habitually resides

Element of continuity or stability as distinct from merely passing through a particular place on a brief or occasional basis

o Residence is easier to establish than domicile. While a person can have only one domicile, she may have multiple habitual residences.

Residence lacks the subjective element of intent Article 3148(2): Québec has jurisdiction in respect of a defendant that is a legal person not domiciled in

Québec if it has an establishment in Québec and the dispute relates to its activities in Québeco The dispute-related activity does not have to be undertaken by its Quebec establishment

Bermuda c Herzog: The two required elements don’t need to be connectedo Domicile is too narrow a connecting factor for defendant-based jurisdiction over legal persons

A corporation may maintain its head office in an off shore location for tax or other reasons but conduct its real business in Québec.

It may deal with its customers and creditors through secondary establishments in multiple jurisdictions including Québec

When must the connection exist?o article 3148(1): when the proceedings in Québec were commenced. o article 3148(3): when the facts or events giving rise to the dispute occurredo Article 3148(2): Unclear whether both elements, establishment & related activities, are required

Subject Matter Connections: Article 3148(3) article 3148(3): jurisdiction if any one of the following four factual connections is present:

o a fault was committed in Québec; o damage was suffered in Québec;

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o an injurious act occurred in Québec; o one of the obligations arising from a contract was to be performed in Québec

Spar Aerospace: Cannot conflate the act or event giving rise to the damage with the damage itself. To Injurious act “must refer to a damage-causing event that attracts no-fault liabilityo fault and injurious act are parallel types of connecting factors as they both refer to the act that causes

the damage and not to the damage itself Spar Aerospace: Article 3148 establishes a broad basis for finding jurisdiction

o Damage to reputation at Quebec facility, separate from national reputation found in Toronto head office, is enough for jurisdiction in Quebec

o Concept of damage in Article 3148(3) should not be conflated with the amount of damage claimed This consideration should only come into play during forum non conveniens analysis

o Morguard & Hunt real & substantial connection test not an added criteria for Quebec 1) That test was developed in an interprovincial context 2) CCQ’s PIL system already incorporates real & substantial connection test into itself

Listed connecting factors demonstrate the test The counterbalance, 3135 forum non conveniens, assures jurisdiction is not abused

o This argument brings up two contradiction 1) Art 3135 is exceptional, should narrow reading of Art 3148 2) Art 3135 requires demonstration that other forum is better, not equal

Spar assertion that test was developed for an interprovincial context was overturned by Van Bredao The real and substantial connection test is based on the territorial restrictions on provincial power

created by the Constitution Applies to conflicts cases arising in both the interprovincial and international contexts

Option Consommateurs c Infineon Technologieso Claimant’s financial damage- the alleged overpayment for the computer – had been suffered in

Québec so as to vest jurisdiction under article 3148(3) The Consumer Protection Act deemed the contract with Dell to have been made at the

purchaser’s address in Québec o The claim was not founded on that contract but on the extra contractual fault of the U.S. defendants

Nonetheless, the contract was the occasion for the alleged overpayment for the computer. Therefore, The localization of the contract in Québec was a connecting factor

o Distinction between financial injury materially suffered in Québec and financial damage merely recorded in Québec.

Damage not suffered in Québec where the loss or injury is sustained outside Québec and Québec is merely the location of the patrimony where the loss is recorded

But financial loss based on material facts arising in Québec does provide a jurisdictionally sufficient connection

Federal Corporation c. Triangle Tires Inc. o Financial damage may be suffered in Québec even where the defendant’s contractual obligations are

to be performed outside Québeco Québec distributor of tires claimed lost profits resulting from the failure of its Taiwan counterparty

to deliver the quantity of tires specified in their contract. o Jurisdiction was available under article 3148(3) on two different bases.

Article 3148(3)(4) tires were to be delivered and paid for in Québec Québec was where the plaintiff’s resales were to be made, loss of profits suffered in Quebec

Van Breda:o the real and substantial connection test operates at the constitutional level to preclude jurisdiction

over cases having only “a weak or hypothetical connection” to a province.

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o Test also operates as an “organizing principle” in deciding the appropriate content of the common law rules governing the jurisdiction of the courts in PIL matters.

o The values of order and stability would be better served by specifying presumptively sufficient objective factual connections to the forum, rather than using an ad hoc discretionary system

Created a set of “presumptive connections” that could be considered sufficient to vest jurisdiction at common law in tort claims. List is not exhaustive

1) the domicile or residence of the defendant in the province; (2) the defendant’s carrying on business in the province; (3) the commission of a tort in the province; (4) the formation of a contract connected with the dispute in the province

o the formulation and content of the conflicts rules for jurisdiction need not be uniform across Canada. o Provinces may adopt different approaches as long as it respects the limits on jurisdiction reflected in

the constitutional requirement for a real and substantial connection with the litigation forumo Rejected that damage sustained within a forum is a sufficient factor

Risk finding jurisdiction in claims that have only a limited relationship with the forum In Van Breda personal injury claims, continuing pain and suffering in the forum from an

injury suffered elsewhere is insufficient to localize the tort in the forum continuing bodily injury suffered in Québec from an injury initially suffered abroad

does not satisfy Article 3148(3) “damage was suffered in Québec”o Finally, Van Breda rejects argument that forum non conveniens counterbalances satisfies

constitutional requirements of territorial limits “The doctrine of forum non conveniens has no relevance to the jurisdictional analysis itself”

Consent-based Jurisdiction: Articles 3148(4)-(5) Article 3148(4): Québec has jurisdiction on the sole basis that “the parties have by agreement submitted to

it all existing or future disputes between themselves arising out of a specified legal relationship.” Parties are free to grant jurisdiction to a Québec authority even when neither they nor the subject matter of

their dispute have any connection to Québeco No injustice results to a defendant who voluntarily consents to the exercise of jurisdiction over himo Mutual consent is required

Tacit consent is sufficient GreCon Dimter inc. v. J.R. Normand inc.

o In the hierarchy of Code norms, the policy favouring party autonomy in article 3148 took precedence over the policy of avoiding a multiplicity of proceedings in article 3139.

Article 3148 ousted the jurisdiction of the Québec courts. Article 3135 doctrine of forum non conveniens was inapplicable

o That doctrine comes into play only if jurisdiction is first established. It is not itself a source of jurisdiction

o Policy considerations: 1) Giving effect to a choice of court clause contributes to stability and foreseeability in

international commercial relations consistent with PIL principles of order and fairness 2) deference to party autonomy conforms to modern international trends

A choice of forum agreement “must be mandatory and must clearly and precisely confer exclusive jurisdiction on the foreign authority.”

o A “simple attornment or acknowledgment of jurisdiction clause” is insufficient to deprive the Québec courts of jurisdiction

o However, parties are not required to use any particular key formulation to express this intent If a contextual analysis does not yield a clear answer, it is then necessary to fall back on the

wording of the clause.

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If the wording is ambiguous, then the court should construe the clause against the interests of the party who imposed its inclusion in the contract

Jurisdiction of the foreign forum need not be exclusive with respect to both parties. o Asymmetrical agreement that makes the jurisdiction of the foreign forum exclusive only with respect

to proceedings initiated by the claimant in Québec is sufficient CCQ imposes two principal limitations on party autonomy. The first is the general principle of good faith in

article 1375. The second is the special rules in articles 1435 to 1437 that empower a court to nullify clauses in contracts of adhesion or consumer contracts that are found to be procedurally or substantively abusive.

Article 3076 provides that the rules in Book Ten are subject to the laws of Québec that are applicable by reason of their object.

o Permit the application of the domestic rules of Québec law even in matters that under Book Ten are governed by a foreign law if the relevant rules are mandatory, of a public order nature, and engage a sufficiently vital interest of Québec.

o Duchesneau case supports the view that the Code provisions on contracts of adhesion are not overriding rules of public order so as to potentially override party autonomy to choose foreign courts and foreign laws

Article 3111 provides that where a contractual relationship is entirely domestic, the mandatory provisions of domestic law remain applicable notwithstanding the choice of a foreign law.

o If enforcing a choice of forum clause in a purely domestic case deprives the defendant of the protection of the mandatory aspects of Québec contract law, article 3148 cannot oust the jurisdiction of the Québec courts

The defendant’s submission to the jurisdiction of a Québec authority is a separate basis of jurisdiction under article 3148(5) even when none of the other connections in article 3148 are present.

o Question is whether the defendant’s preliminary procedural participation implies consent/submission Courts look at the nature of the procedural steps initiated by the defendant and the amount of

time that has elapsed. o To avoid a finding of implicit consent, the defendant must ordinarily reserve explicitly the right to

challenge jurisdictiono an agreement to submit disputes to a foreign forum does not oust Quebec jurisdiction if the

defendant submits to its jurisdiction

Claims by Québec Consumers and Employees: Article 3149 Article 3149 empowers Québec jurisdiction over actions involving a consumer contract or a contract of

employment on the sole basis that the consumer or worker is domiciled or resident in Québec. o No defendant or subject matter connection to Québec is required.

Article 3149 seeks to ensure that Québec consumers and employees are not required to go outside Québec to pursue their rights against their presumptively stronger counterparty.

o In light of its protective function, article 3149 has received a broad interpretation The foreign employer cannot protect itself through a choice of forum in favour of a foreign authority.

o Article 3149 provides that a waiver of jurisdiction by a Québec consumer or worker may not be set up against her.

Residence in Québec at the time of dismissal from employment suffices for jurisdiction under article 3149 It is difficult to reconcile article 3149 with the constitutional requirement for a real and substantial

connection between the forum and the disputeo Argued that the constitutional requirement was satisfied as the connecting factor is the relationship

of economic vulnerability and the desire to protect the weaker party’s right of access to the Québec authorities.

o For article 3148 where the work is performed outside Québec for a foreign employer, it is the worker’s residence or domicile in Québec that provides the factual connection

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However, Spar rejected the contention that the presence of the plaintiff in the jurisdiction is a sufficient connecting factor

Discretion to decline jurisdiction Article 3135 incorporates the doctrine of forum non conveniens

o Even though Québec has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that another forum is in a better position to decide

Oppenheim Forfait GmbH c. Lexus Maritime Inc set out a list of ten relevant factors 1. the parties’ residence, that of witnesses and experts;2. the location of the material evidence;3. the place where the contract was negotiated and executed;4. the existence of proceedings pending between the parties in another jurisdiction;5. the location of Defendant’s assets;6. the applicable law;7. the advantages conferred upon Plaintiff by its choice of forum, if any;8. the interest of justice;9. the interest of the parties;10. 1the need to have the judgment recognized in another jurisdiction.

Spar emphasized the exceptional nature of the exercise of discretion under article 3135o Only when the defendant would be exposed to “great injustice “as a result. o Otherwise, certainty and judicial efficiency would be compromised

Article 3135 does not expressly exclude the potential applicability of the doctrine of forum non conveniens where the jurisdiction of a Québec authority is based on an exclusive choice of forum clause

Unclear, but can be assumed that explicitly clear language could bar Article 3135 applicationo As previously discussed, Grecon bars the inverse where forum choice clause to foreign forum

cannot be negated by a forum non conveniens argument Article 3137 (lis pendens): rule for situations where an action is already pending before a foreign authority

between the same parties, based on the same facts and having the same object. o Québec authority may stay its ruling if it is satisfied that the foreign proceeding can result in a

decision that will be recognized in Québec. Article 3137 does not require the Québec authority to issue a stay because the foreign authority was first

seised of the case but merely gives it the discretion to do so. o The same factors that inform the exercise of discretion to decline jurisdiction on a forum non

conveniens application under article 3135 are also applied in lis pendens cases under article 3137 Unlike article 3137, article 3155(4) is mandatory and precludes a Québec court from recognizing a foreign

decision where the three identities are present and the Québec authority was first seized of the caseo Canada Post v. Lépine: the time of seizure is when the application for authorization or certification

is made, not when it is issued.

Conclusion [page 30-31, page 31 is new material discussing recognition of foreign jurisdiction) Van Breda reaffirms the constitutional obligation of Canadian courts to recognize decisions rendered by

sister province courts where they have exercised constitutionally appropriate jurisdiction. o Does not clarify whether appropriate jurisdiction is tested by reference to the forum’s own rules or

the jurisdictional rules applied by the authority in the province where the judgment was rendered. Important in a Québec context because article 3148 of the Code confers a more generous

jurisdiction on Québec authorities than article 3168 concedes to foreign authorities. Domicile or residence in Québec of a defendant who is natural person vests jurisdiction in a Québec

authority under article 3148, o Only domicile suffices for foreign court jurisdiction under article 3168(1).

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Under article 3168(3) damage suffered in the foreign judgment forum suffices for jurisdiction in contractual and extra-contractual matters only if it resulted from a fault or injurious act that also took place there

o In contrast, these are independently sufficient connecting factors in article 3148(3). In contractual matters, article 3168(4) recognizes foreign court jurisdiction only if all the obligations

resulting from a contract were to be performed in the foreign forum;o Only one of the obligations needs be performed in Québec for jurisdiction to exist under 3148(3).

Article 3168 sets the stage for a clash between the authority of Québec to determine the content of its conflicts rules governing the recognition of decisions rendered by authorities outside Québec and its constitutional obligation to recognize the decisions rendered by courts in sister provinces

Jurisdiction - Discretion to decline jurisdiction (forum non conveniens)

CCQ art. 31353135. Even though a Québec authority has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another country are in a better position to decide.

Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (forum non conveniens is exceptional, must show that the other forum is clearly better)

Jurisdiction - Lis Alibi

CCQ art. 31373137. On the application of a party, a Québec authority may stay its ruling on an action brought before it if another action, between the same parties, based on the same facts and having the same object is pending before a foreign authority, provided that the latter action can result in a decision which may be recognized in Québec, or if such a decision has already been rendered by a foreign authority.

Teck Cominco Metals Ltd. v. Lloyd’s Underwriters, 2009 SCCFacts and Issue Teck sued its insurers in the U.S. for environmental damage alleged to have occurred in the U.S.,

downstream from its British Columbia smelter site. The insurers commenced parallel proceedings in British Columbia seeking declaratory orders The parties each took various steps to obtain jurisdictional rulings in order to have the insurance coverage

matter adjudicated in their preferred court: The British Columbia Supreme Court refused to grant the stays of lis pendens sought by TeckReasoning BC’ Court Jurisdiction and Proceedings Transfer Act creates a comprehensive regime that applies to all

cases where a stay of proceedings is sought on the ground of forum non convenienso Section 11 is a complete codification of the common law test for forum non conveniens admitting of

no exceptionso It requires that in every case, all the relevant factors listed in s. 11 be considered

This includes the desirability of avoiding multiplicity of legal proceedings. The prior assertion of jurisdiction by a foreign court does not oust the s. 11 inquiry.

A holistic approach better serves the purpose of fair resolution of the forum non conveniens issue with due comity to foreign courts

S. 11 does not give way to a “comity-based” test when a foreign court positively asserts jurisdiction. o Section 11 is itself a comity-based approach and gives due comity to foreign courts.

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o Comity is not served by an automatic deferral to the first court asserting jurisdiction. o The assertion of jurisdiction by the foreign court is also not an overriding and determinative o The avoidance of multiplicity of proceedings is only one factor, among many, to be considered.

To adopt such an approach would encourage a first-to-file system where considerations having little or nothing to do with where an action is most conveniently or appropriately heard.

A distinction should be made between situations involving a uniform and shared approach to the exercise of jurisdiction, such as interprovincial conflicts, and international conflicts

In the case at hand, the central issues in the coverage actions (disclosure, risk assessment, policy interpretation) weighed in favour of BC

o While finding the US’ prior assertion of jurisdiction to be a factor of high importance, he concluded that it could not prevail in view of the fact British Columbia was the forum most closely connected

Brussels I Regulation, Summary, Report and Green Paper

Summary A judgment given in an (EU) country is to be recognised without special proceedings, unless the recognition

is contested. The regulation lists grounds for non-enforcement

o courts are not to raise these of their own motion. The regulation does not cover certain topics Rules of jurisdiction

o The basic principle is that jurisdiction is to be exercised by the EU country in which the defendant is domiciled, regardless of his/her nationality.

o Domicile is determined in accordance with the domestic law of the EU country where the matter is brought before a court.

o If a party is not domiciled in the EU country of the court considering the matter, the court is to apply the law of another EU country to determine whether the party is domiciled in said state.

o In the case of legal persons or firms, domicile is determined by the country where they have their statutory seat, central administration or principal place of business.

o In the case of trusts, domicile is defined by the court that is considering the case by applying its own rules of private international law

Exceptional cases where the defendant can be sued in a foreign EU stateo matters relating to a contract: the place of performance of the obligation in questiono … maintenance: the place where the maintenance creditor is resident;o … liability for wrongful acts: the place where the harmful event occurred or may occuro … insurance: an insurer may be sued in the courts of the EU country where s/he is domiciled or of

the EU country where the plaintiff is domiciled if the actions are brought by the policy holdero …consumer contracts

Consumers: persons who conclude a contract with a professional for a purpose outside of their own trade or profession.

All contracts concluded with a person who pursues commercial or professional activities in the EU are covered, with the exception of contracts of transport

The consumer is protected in the way described here if the contract concluded on the sale of goods is financed on instalment credit terms or through a loan repayable by instalments, or any other form of credit.

In other cases, the contract must have been concluded with a person who pursues commercial or professional activities in the EU country in which the consumer is domiciled or directs such activities to that country.

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A consumer may either bring proceedings either in the courts of the EU country in which the defendant is domiciled or in the courts for the place where the consumer (the plaintiff) is domiciled

o …employment contracts: employees may either sue their employer in the courts of the EU country where the employer is domiciled or in the courts of the EU country where the employee habitually works

o Regardless of domicile, the following courts have exclusive jurisdiction in proceedings concerning: rights in rem in immovable property the validity of the constitution the validity of entries in public registers the registration or validity of IP the enforcement of judgments: the courts of the EU country in which the judgment has been

or is to be enforcedo Forum choice clause: If the parties, one or more of whom is domiciled in the EU, have concluded a

choice of jurisdiction clause, the agreed court will have jurisdiction Recognition and Enforcement

o A judgment given in an EU country is to be recognised in the other EU countries without any special procedure being required

o A judgment will not be recognised if: such recognition is manifestly contrary to public policy in the EU country in which

recognition is sought; the defendant was not served with the document that instituted the proceedings in sufficient

time and in such a way as to enable the defendant to arrange for his/her defence; it is irreconcilable with a judgment given in a dispute between the same parties in the EU

country in which recognition is sought; it is irreconcilable with an earlier judgment given in another EU or non-EU country involving

the same cause of action and the same partieso A court in which recognition is sought of a judgment given in another EU country may stay the

proceedings, if an ordinary appeal against the judgment has been lodged.o A judgment is to be enforced in another EU country when, on the application of any interested party,

it has been declared enforceable there.

Reporto It lays down uniform rules to settle conflicts of jurisdiction and facilitate the free circulation of judgments,

court settlements and authentic instruments in the European Uniono If the defendant is not domiciled in a Member State, the Regulation refers to national law ("subsidiary

jurisdiction"), with the exception of situations where the courts of a Member State have exclusive jurisdiction pursuant to Articles 22 or 23 of the Regulation

o the basic rule of the jurisdiction of the courts of the defendant's domicile, are mandatory in nature and their application cannot be set aside on the basis of national law

o the jurisdiction rules of the Regulation apply when the defendant is domiciled in a Member State in cases where the connecting factors for exclusive jurisdiction under Articles 22 and 23 of the Regulation are situated in a third State

o the absence of common rules on the effect of third State judgments in the Community may in certain Member States lead to situations where third State judgments are recognised and enforced even where such judgments are in breach of mandatory Community law or Community law provides for exclusive jurisdiction of Member States' courts

o the lis pendens rule of the Regulation requires the court second seized to suspend proceedings until the court first seized has established or declined jurisdiction

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o the effect of choice of court agreements (such as anti-suit injunctions) are incompatible with the Regulation if they unduly interfere with the determination by the courts of other Member States of their jurisdiction under the Regulation

o Parallel proceedings equally create additional costs and uncertaintyo the court designated by the agreement may proceed notwithstanding parallel proceedings being

brought elsewhere. Any other court should suspend or dismiss proceedings except in a number of limited situations defined in the Convention

o A first difficulty concerns the operation of the lis pendens rule. Industrial property litigation is one of the areas where parties have attempted to pre-empt the exercise of jurisdiction by a competent court by starting proceedings before another court which usually, though not always, lacks jurisdiction, preferably in a State where the proceedings to decide on the jurisdiction issue and/or on the merits take a long time. Such tactics ("torpedoes") may be particularly abusive if the first proceedings are aimed at a declaration of non-liability, thereby effectively preventing proceedings on the merits by the other party before a competent court

o Torpedoes are not only used with respect to declaratory relief, but also with respect to counterclaims based on the invalidity of an industrial property right such as a patent raised in infringement actions. Defendants in infringement proceedings may effectively block these proceedings by raising, as a defence, the alleged invalidity of the patent . Since proceedings concerning the validity of patents must be brought before the courts of the Member State in which the patent has been registered, the infringement court is obliged to stay proceedings pending the outcome of the proceedings concerning the validity. This may cause serious delay

o It is currently not possible on the basis of the Regulation to group actions, in particular actions of several plaintiffs against the same defendant, before the courts of one Member State .

o the decline of jurisdiction by the court second seized pursuant to Article 28(2) may lead to a (temporary) negative conflict of jurisdiction if the first court does not take jurisdiction with respect to the action concerned.

o Arbitration falls outside the scope of the Regulation. The rationale behind the exclusion is that the recognition and enforcement of arbitral agreements and awards is governed by the 1958 New York Convention, to which all Member States are parties

o parallel court and arbitration proceedings arise when the validity of the arbitration clause is upheld by the arbitral tribunal but not by the court

o there is no uniform allocation of jurisdiction in proceedings ancillary to or supportive of arbitration proceedings ; the recognition and enforcement of judgments given by the courts in disregard of an arbitration clause is uncertain; the recognition and enforcement of judgments on the validity of an arbitration clause or setting aside an arbitral award is uncertain

o a need for some flexibility concerning rent of holiday homes in order to avoid litigation in a forum which is remote for all parties.

o lack of uniform definition of the notion of "seat" of a company, leading to possible positive and negative conflicts of jurisdiction

o In consumer matters, the types of consumer credit agreements covered by Articles 15(1)(a) and (b) of the Regulation do no longer correspond to the evolving consumer credit market where various other types of credit products have developed

Green Paper o The abolition of all intermediate measures to recognise and enforce foreign judgments

o “it is difficult to justify, in an internal market without frontiers, that citizens and businesses have to undergo the expenses in terms of costs and time to assert their rights abroad.

o If applications for declarations of enforceability are almost always successful and recognition and enforcement of foreign judgments is very rarely refused, aiming for the objective of abolishing the exequatur procedure in all civil and commercial matters should be realistic”

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Can apply this argument to the Canadian Federation contexto In order to extend jurisdiction rules to defendants domiciled in third States, it should be considered to what

extent the special jurisdiction rules of the Regulation could be applied to third State defendantso a balance should be found between ensuring access to justice on the one hand and international

courtesy on the othero Three grounds might be considered in this respect:

jurisdiction based on the carrying out of activities, provided that the dispute relates to such activities;

the location of assets, provided that the claim relates to such assets; and a forum necessitatis

o if uniform rules for claims against third State defendants are established, the risk of parallel proceedings before Member State and third State courts will increase.

in which situations access to the courts of the Member States must be ensured irrespective of proceedings ongoing elsewhere

in which situations and under which conditions it may be appropriate to allow the courts to decline jurisdiction in favour of the courts of third States

o Choice of Courto Agreements on jurisdiction by the parties should be given the fullest effect,

because of their practical relevance in international commerceo Solution: court designated by the agreement has priority to determine its jurisdiction and any other

court seized would stay proceedings until the jurisdiction of the chosen court is establishedo Solution: granting of damages for breach of such agreements, arising for instance from the delay or

the exercise of default clauses in loan agreementso Lis pendens and related actions

o strengthening the communication and interaction between the courts seized in parallel proceedings and/or the exclusion of the application of the rule in the case of negative declaratory relief

o Reflect on to what extent it may be appropriate to permit a grouping of actions by and/or against several parties on the basis of uniform rules

o Provisional measureso role of the court seized of the request would be to assist the proceedings on the merits by "lending

remedies" without interfering with the jurisdiction of the court having jurisdiction on the substance. o When assistance no longer needed, the court having jurisdiction on the substance may set aside the

foreign measureo Arbitration

o Arbitration is a matter of great importance to international commerce. o Arbitration agreements should be given the fullest possible effect and the recognition and

enforcement of arbitral awards should be encouragedo Amend Brussels Regulation so that arbitration is recognized

court proceedings in support of arbitration could come within the scope of the Regulation. A special rule allocating jurisdiction in such proceedings would enhance legal certainty give priority to the courts of the Member State where the arbitration takes place to decide on

the existence, validity, and scope of an arbitration agreement

Jurisdiction - Consent-based judicial and arbitral jurisdiction

CCQ arts. 3148, 3149 3148. In personal actions of a patrimonial nature, a Québec authority has jurisdiction where

(1) the defendant has his domicile or his residence in Québec;67

(2) the defendant is a legal person, is not domiciled in Québec but has an establishment in Québec, and the dispute relates to its activities in Québec; (3) a fault was committed in Québec, damage was suffered in Québec, an injurious act occurred in Québec or one of the obligations arising from a contract was to be performed in Québec; (4) the parties have by agreement submitted to it all existing or future disputes between themselves arising out of a specified legal relationship; (5) the defendant submits to its jurisdiction.

However, a Québec authority has no jurisdiction where the parties, by agreement, have chosen to submit all existing or future disputes between themselves relating to a specified legal relationship to a foreign authority or to an arbitrator, unless the defendant submits to the jurisdiction of the Québec authority.

3149. A Québec authority also has jurisdiction to hear an action involving a consumer contract or a contract of employment if the consumer or worker has his domicile or residence in Québec; the waiver of such jurisdiction by the consumer or worker may not be set up against him.

Ontario Rules of Civil Procedure, Rule 17.02(f)RULE 17SERVICE OUTSIDE ONTARIOSERVICE OUTSIDE ONTARIO WITHOUT LEAVE17.02 A party to a proceeding may, without a court order, be served outside Ontario with an originating process or notice of a reference where the proceeding against the party consists of a claim or claims,Contracts

(f) in respect of a contract where,(i) the contract was made in Ontario,(ii) the contract provides that it is to be governed by or interpreted in accordance with the law of Ontario,(iii) the parties to the contract have agreed that the courts of Ontario are to have jurisdiction over legal proceedings in respect of the contract, or(iv) a breach of the contract has been committed in Ontario, even though the breach was preceded or accompanied by a breach outside Ontario that rendered impossible the performance of the part of the contract that ought to have been performed in Ontario;

Hague Convention of 2005 on Choice of Court Agreements (www.hcch.net)o Policy goals in the creation of the Choice of Court Agreement

o Promote international trade and investment through enhanced judicial co-operation, o Such co-operation can be enhanced by uniform rules on jurisdiction and on recognition and

enforcement of foreign judgments in civil or commercial matters, o Such co-operation requires an international legal regime that provides certainty and

Ensures the effectiveness of exclusive choice of court agreements between parties to commercial transactions

Governs the recognition and enforcement of judgments resulting from proceedings based on such agreements

Article 1 Scope(1) This Convention shall apply in international cases to exclusive choice of court agreements concluded in civil or commercial matters.(2) … a case is international unless the parties are resident in the same Contracting State and the relationship of the parties and all other elements relevant to the dispute, regardless of the location of the chosen court, are connected only with that State.(3) … a case is international where recognition or enforcement of a foreign judgment is sought.Article 2 Exclusions from scope(1) This Convention shall not apply to exclusive choice of court agreements –

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a) to which a natural person acting primarily for personal, family or household purposes (a consumer) is a party;b) relating to contracts of employment, including collective agreements.

(2) This Convention shall not apply to the following matters…(4) This Convention shall not apply to arbitration and related proceedings.Article 3 Exclusive choice of court agreementsFor the purposes of this Convention –

a) “exclusive choice of court agreement” means an agreement concluded by two or more parties that meets the requirements of paragraph c) and designates, for the purpose of deciding disputes which have arisen or may arise in connection with a particular legal relationship, the courts of one Contracting State or one or more specific courts of one Contracting State to the exclusion of the jurisdiction of any other courts;b) a choice of court agreement which designates the courts of one Contracting State or one or more specific courts of one Contracting State shall be deemed to be exclusive unless the parties have expressly provided otherwise;c) an exclusive choice of court agreement must be concluded or documented –

i) in writing; orii) by any other means of communication which renders information accessible so as to be usable for subsequent reference;

d) an exclusive choice of court agreement that forms part of a contract shall be treated as an agreement independent of the other terms of the contract. The validity of the exclusive choice of court agreement cannot be contested solely on the ground that the contract is not valid

Article 5 Jurisdiction of the chosen court(1) The court or courts of a Contracting State designated in an exclusive choice of court agreement shall have jurisdiction to decide a dispute to which the agreement applies, unless the agreement is null and void under the law of that State.(2) A court that has jurisdiction under paragraph 1 shall not decline to exercise jurisdiction on the ground that the dispute should be decided in a court of another State.Article 6 Obligations of a court not chosenA court of a Contracting State other than that of the chosen court shall suspend or dismiss proceedings to which an exclusive choice of court agreement applies unless –

a) the agreement is null and void under the law of the State of the chosen court;b) a party lacked the capacity to conclude the agreement under the law of the State of the court seised;c) giving effect to the agreement would lead to a manifest injustice or would be manifestly contrary to the public policy of the State of the court seised;d) for exceptional reasons beyond the control of the parties, the agreement cannot reasonably be performed; ore) the chosen court has decided not to hear the case.

Article 7 Interim measures of protectionInterim measures of protection are not governed by this Convention.Article 8 Recognition and enforcement(1) … Recognition or enforcement may be refused only on the grounds specified in this Convention.(2) … shall be no review of the merits of the judgment given by the court of origin. The court addressed shall be bound by the findings of fact on which the court of origin based its jurisdiction, unless the judgment was given by default.(3) A judgment shall be recognised only if it has effect in the State of origin, and shall be enforced only if it is enforceable in the State of origin.(4) Recognition or enforcement may be postponed or refused if the judgment is the subject of review in the State of origin or if the time limit for seeking ordinary review has not expired…(5) This Article shall also apply to a judgment given by a court … as permitted by Article 5, paragraph 3.

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Article 9 Refusal of recognition or enforcementRecognition or enforcement may be refused if –

a) …null and void under the law of the State of the chosen court, b) a party lacked the capacity …c) [faulty documents];d) the judgment was obtained by fraud …;e) recognition or enforcement would be manifestly incompatible with the public policy of the requested State …;f & g ) the judgment is inconsistent with a judgment given in the requested State or another state in a dispute between the same parties;

Article 11 Damages(1) Recognition or enforcement of a judgment may be refused if, and to the extent that, the judgment awards damages, including exemplary or punitive damages, that do not compensate a party for actual loss or harm suffered.(2) The court addressed shall take into account whether and to what extent the damages awarded by the court of origin serve to cover costs and expenses relating to the proceedingsArticle 12 Judicial settlements (transactions judiciaires)Judicial settlements … shall be enforced under this Convention in the same manner as a judgment.Article 19 Declarations limiting jurisdictionA State may declare that its courts may refuse to determine disputes to which an exclusive choice of court agreement applies if, except for the location of the chosen court, there is no connection between that State and the parties or the dispute.

GreCon Dimter Inc. v. J.R. Normand Inc. et al., 2005 SCC 46Facts A German manufacturer’s failure to deliver certain equipment to a Quebec supplier caused the partial

nonperformance of the supplier’s obligations to a customer operating a business in Quebec. The customer instituted an action in damages against the supplier in Quebec. Customer also institutes a separate action in warranty

o The manufacturer moved to dismiss the action in warranty on the basis of a choice of forum clause in its contract with the supplier, which stipulated that a German court had exclusive jurisdiction

The Superior Court applied art. 3139 C.C.Q. to dismiss the declinatory exception on the basis that the unity of the actions must prevail over the contractual choice of court provided for in art. 3148(2) C.C.Q.

Issue Can art 3139 (if principal demand, then yes to all incidental demands) override art 3148(2) choice of forum

clause?Reasoning Article 3148 establishes the general framework that delineates the jurisdiction of a Quebec authority in

relation to contracts in proceedings based on personal actions of a patrimonial natureo In its general framework, Article 3148 attaches considerable important to the principle of party

autonomy The legal context consists of Quebec’s codification of PIL and the objectives specific to that law

o Important objective is the principle of the autonomy of the parties and the legal certainty of international transactions.

Forum choice clauses foster certainty and foreseeability in international commercial relations, because they enable the parties to provide in advance for the forum to which they will submit their dispute.

provide international commercial relations with the stability and foreseeability required for purposes of the critical components of PIL: order and fairness

o Art. 3148(2) recognizes the primacy of the autonomy of the parties70

Nothing to suggest that the legislature intended to limit the parties’ ability to oust the Quebec authority’s jurisdiction by agreement in respect of conflicts of jurisdiction.

Article 3148, para. 2 constitutes the cornerstone of a legislative policy of respect for the autonomy of the parties and must therefore be interpreted broadly.

o The purpose of art. 3139, which extends to an incidental demand the Quebec authority’s jurisdiction to hear a principal demand, is primarily to ensure the efficient use of judicial resources,

the provision is the product of domestic procedural considerations; The hierarchy of the rules leads to the primacy of party autonomy in art. 3148(2)

o As art. 3139 is merely a permissive provision that is procedural in nature, its scope is narrow and its application is subordinate to the application of art. 3148(2)

Trend toward international harmonization of the rules of conflict of laws and of jurisdictiono Art. 3148(2) must be interpreted in a manner consistent with Quebec’s international commitments

For example, choice of forum clauses must be binding in arbitration despite the existence of procedural provisions such as art. 3139 (New York Convention

this must also then be true for actions in warranty, or anything else for that matter As for art. 3135 C.C.Q., forum non conveniens, it is inapplicable in the case as jurisdiction in Quebec has

not been established The fundamental substantive rule of party autonomy prevails over the suppletive procedural rule of the

single forum. o Article 3148, para. 2 C.C.Q. must take precedence over art. 3139 C.C.Q.

the clause indicates a clear intention to oust the jurisdiction of the Quebec authority The Quebec authority must decline jurisdiction.

Holding: The courts should defer to a choice of forum clause where the parties have clearly stated that they intend to submit any disputes between them, on an exclusive basis, to a foreign authority

o the fundamental structure of the CCQ is consistent with the primacy of the autonomy of the parties as regards both the determination of whether a court has jurisdiction and the recognition of foreign judgments

Expedition Helicopters Inc. v. Honeywell Inc., 2010 ONCA 351Facts Expedition is incorporated in Ontario and has its head office in Cochrane, Ontario. Honeywell is a Delaware corporation which operates globally. The relationship between the two companies is such that the replacement engine was shipped, installed and

in use before the Agreement was signed. The forum selection clause in the Agreement provided as follows:

o THIS AGREEMENT SHALL BE GOVERNED, CONTROLLED AND INTERPRETED UNDER THE LAW OF THE STATE OF ARIZONA, EXCLUDING ITS CONFLICT OR CHOICE OF LAW PROVISIONS

Reasoning Pompey Industrie is the leading case regarding the enforcement of a forum selection clause.

o Court’s discretion not to enforce a forum selection clause is governed by the “strong cause” testo The law favours the enforcement of forum selection clauses. In a brief overview of the law,

they to be encouraged by the courts as they create certainty and security in transaction, derivatives of order and fairness, which are critical components of private international law

Essential that courts give full weight to the desirability of holding contracting parties to their agreements.”

Reject the approach of considering the forum selection clause as but one factor of a conventional forum non conveniens analysis, the unified approach

o The starting point should be that parties should be held to their bargain

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The unified approach would not ensure that full weight is given to the jurisdiction clause since not only should the clause itself be taken into account, but also the effect which it has on the factors which are relevant to the determination of the natural forum.

Factors which may otherwise be decisive may be less so if one takes into account that the parties agreed in advance to a hearing in a particular forum

Parties assumed to be fully aware of the consequences which that might have on the transportation of witnesses and evidence, or compliance with foreign procedure etc.

o A separate approach ensures that these considerations are properly taken into account and that the parties’ agreement is given effect in all but exceptional circumstances.

The strong cause test reflects the desirability that parties honour their contractual commitments and is consistent with the PIL principles of order and fairness, and the principles of certainty and security of transaction at the heart of international commercial transactions

It is not enough for the plaintiff to establish a “strong” case that there is a more convenient forum.

o The plaintiff must show “strong cause” that the case is exceptional and the forum selection clause should not be enforced

Litigation costs disproportionate to the amount of the claim is not enough to refuse to enforce a forum selection clause

Inconvenience in the form of expert evidence being in another jurisdiction is not enough

The factors that may justify departure from that general principle are few. They include:o Whether the plaintiff was induced to agree to the clause by fraud or improper inducement or the

contract is otherwise unenforceable, o the court in the selected forum does not accept jurisdiction or otherwise is unable to deal with the

claim, o the claim or the circumstances that have arisen are outside of what was reasonably contemplated by

the parties when they agreed to the clause,o the plaintiff can no longer expect a fair trial in the selected forum due to subsequent events that

could not have been reasonably anticipated,o enforcing the clause in the particular case would frustrate some clear public policy

Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34 (S.C.C.)Facts The Dell company sells computer equipment retail over the Internet. It has its Canadian head office in Toronto and a place of business in Montreal. One day, Dell’s website posted incorrect prices for computers The next day, Dell blocked access to the erroneous order pages through the usual address. Dell then posted a price correction notice and announced that it would not process orders for computers at

the cheaper price Plaintiff (D), using internet wizardry, bought a computer at the cheaper price and sued Dell when they

would not process the order. Dell applied for referral of D’s claim to arbitration pursuant to an arbitration clause contained in the terms and conditions of sale, Reasoning One of the central features of the Code is its taxonomic structure.

o All the concepts relating to a given area of the law are thus logically derived from first principles, meticulously developed, and systematically ordered

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o the inventory of subjects selected for inclusion and the manner of their placement serve to define the range of meaning that each of the subjects so included may have.

o The initial organizational choices bear directly on the manner in which the Code adapts to changing circumstances

One must adopt a contextual interpretation that limits the scope of the provisions of the title on the international jurisdiction of Quebec authorities to situations with a relevant foreign element.

o Since art. 3149 C.C.Q. is found in that title, it applies only to situations with a foreign element. The foreign element must be a point of contact that is legally relevant to a foreign country, which means that

the contact must be sufficient to play a role in determining whether a court has jurisdiction. o Foreign element and the connecting factor are overlapping notions

A connecting factor is a tie to either the domestic or a foreign legal system, whereas the foreign element concept refers to a possible tie to a foreign legal system

Under Quebec’s system, if PIL is invoked, it can be assumed that there is an equally concrete foreign element that can serve as a basis for applying a foreign legal system

International arbitration law is strongly influenced by two texts, which Quebec has signed ontoo The New York Convention and the UNCITRAL

Article II of the Convention provides that a court of a contracting state that is seized of an action in a matter covered by an arbitration clause must refer the parties to arbitration

An arbitration clause is not in itself a foreign element warranting the application of the rules of Quebec private international law.

o “An arbitration process is considered to be purely internal to Quebec…the rules of PIL will not be applicable.”

o The neutrality of arbitration as an institution is one of the fundamental characteristics of this alternative dispute resolution mechanism.

arbitration is an institution without a forum and without a geographic basis. The parties to an arbitration agreement are free, subject to any mandatory provisions by

which they are bound, to choose any place, form and procedures they consider appropriate. The choice of procedure does not alter the institution of arbitration.

Article 3111 states that the designation of procedure is not a foreign element An arbitration that contains no foreign element in the true sense of the word is a domestic arbitration.

o the facts that the applicable rules will be governed by a U.S. statute and that English will be the language used in the proceedings are not relevant foreign elements

the location of the NAF’s (Arbitration Organization) head office is irrelevant The arbitration itself will occur in Quebec

Chapter XVIII also contains a provision that enumerates the cases in which the jurisdiction of the Quebec courts cannot be ousted by the parties in favour of arbitration (For example, art 2638-2639)

o Thus, the codifiers laid down, for disputes containing no foreign element, specific rules dealing, on the one hand, with the effect of the arbitration agreement and, on the other, with cases in which arbitration is not available under domestic law.

o To give arts. 3149 and 3151 C.C.Q. general application, it would be necessary to infer that the codifiers were inconsistent and redundant in not including certain provisions in both titles of the CCQ, and in including the same provision in both titles

o Furthermore, to view art. 3149 C.C.Q. as being limited to private international law is consistent with the legislature’s objective.

Reason why an arbitration clause cannot be set up against a consumer under art. 3149 is to protect a consumer in a situation with a foreign element, so they’re not required to go abroad to assert rights

Holding

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o A foreign element is a prerequisite for applying the rules on the international jurisdiction of Quebec authorities in the CCQ

Dissent disagrees and says the Code should be read as a whole and not parcelled out into Chapterso The arbitration clause excludes Quebec jurisdiction in a consumer contract, which is not allowed

Griffin v. Dell 2010 ONCA 29 (Essentially overturns the SCC’s previous decision)Facts & Judicial History These appeals involve a proposed class action arising from the sale of allegedly defective Dell computers. The class action involves a large number of claims for relatively small amounts. Dell’s standard-form sales agreement contains a clause requiring that all disputes be submitted to

arbitration. On the certification motion, the motion judge found that it was “fanciful to think that any claimant could

pursue an individual claim in a complex products liability case” o enforcing Dell’s arbitration clause would have the effect of immunizing Dell “from accounting to

class members for any wrong it may have caused”. She refused Dell’s request to stay the class action in favour of arbitration

During this appeal, the Ontario legislature has enacted the Consumer Protection Acto Ruled that it applies

Issue What does the CPA do?Reasoning The modern approach, Dell, is to require parties to adhere to their choice and to view arbitration as an

autonomous, self-contained and self-sufficient process, presumptively immune from judicial intervention This is called the dominant model and is premised upon freedom of contract and party autonomy. The enactment of the CPA reflects Ontario’s determination that problems arise when this dominant model

is applied in the consumer setting. o Consumer contracts tend to be contracts of adhesion where the suppliers of services and sellers of

goods are in a position to impose their own terms unilaterally. suppliers and sellers regularly insert arbitration clauses in order to defeat claims rather than

out of a genuine desire to arbitrate disputes with consumers. Such disputes often involve small claims that are not individually viable and only become

viable if they can be aggregated by way of a class proceeding Clauses that require arbitration and preclude the aggregation of claims have the effect

of removing consumer claims from the reach of class actions. When consumer disputes are arbitrated through bodies such as NAF that sell their

services to corporate suppliers, consumers are often disadvantaged by arbitrator bias in favour of the dominant and repeat-player corporate client

Concerns about the unfairness of mandatory arbitration clauses led the Ontario legislature to enact the CPA provisions outlawing mandatory arbitration clauses in consumer agreements.

The relevant provisions of the CPA are as follows:o 7. (1) The substantive and procedural rights given under this Act apply despite any agreement or

waiver to the contrary.o 7. (2) … any term or acknowledgment in a consumer agreement or a related agreement that requires

or has the effect of requiring that disputes arising out of the consumer agreement be submitted to arbitration is invalid…

o 8. (1) A consumer may commence a proceeding on behalf of members of a class or may become a member of a class in such a proceeding in respect of a dispute arising out of a consumer agreement despite any term or acknowledgment in the consumer agreement …

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By enacting the CPA and by outlawing mandatory arbitration clauses in consumer agreements, the Ontario legislature has excluded the application of the reasoning in Dell to agreements covered by the CPA.

o It is not necessary for me to decide whether, apart from the CPA, Dell would have applied in Ontario

Momentous.ca Corp. v. Canadian American Association of Professional Baseball Ltd., 2012 SCC 9 Issue Whether Can-Am could move under Rule 21.01(3)(a) to seek dismissal of the action based on the arbitration

and forum selection clauses in the agreements, notwithstanding the delivery of a statement of defence. o Argument that a party that delivers a statement of defence is precluded from relying upon a forum

selection clause, even where the statement of defence explicitly seeks to enforce the clauseReasoning Rule 21.01(3)(a) permits a defendant to seek a stay or dismissal of the action on the basis that the court has

“no jurisdiction over the subject matter of the action”o Nothing in Rule 21.01(3)(a) that requires it to be brought before delivery of a statement of defence o A statement of defence that specifically pleads a foreign forum selection clause does not amount to

consent that Ontario assume jurisdiction Z.I. Pompey Industrie v. ECU-Line N.V: In the absence of specific legislation, the proper test in determining

whether to enforce a forum selection clause is discretionary in nature. o Unless there is a “strong cause” as to why a domestic court should exercise jurisdiction, order and

fairness are better achieved when parties are held to their bargains

Microcell Communications Inc v Frey, 2011 SKCA 136 (Dell is effectively overturned)Facts Another class action case with cell phones but without the Consumer Protection act Bell is not a resident of SK, and was not registered to carry out business at the start of the proceedings Bell also has an exclusive forum selection clause Found that there were no real and substantial factors which applied as listed by their legislation Trial judge found that a Saskatchewan court could still exercise jurisdiction. Was he right?Reasoning Analysis of The Court Jurisdiction and Proceedings Transfer Act

o S. 4 (jurisdiction simpliciter): A court has territorial competence in a proceeding that is brought against a person only if…

(e) there is a real and substantial connection between Saskatchewan and the facts on which the proceeding against that person is based

Only possible factor that could applyo S. 9 (real and substantial connection: Without limiting the right of the plaintiff to prove other

circumstances that constitute a real and substantial connection between Saskatchewan and the facts on which a proceeding is based, a real and substantial connection between Saskatchewan and those facts is presumed to exist if the proceeding:

(e) concerns contractual obligations and… (f) concerns restitutionary obligations that, to a substantial extent, arose in Saskatchewan; (g) is brought for a tort committed in Saskatchewan; (h) concerns a business carried on in Saskatchewan

Found that none of these factors apply in this case S. 9: Without limiting the right of the plaintiff to prove other circumstances that constitute a real and

substantial connectiono Plaintiff is allowed to prove that there are other connecting factors!

These ‘other’ factors must be informed by the Morguard & Hunt principles

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According to Morguard & Hunt, each jurisdiction is encouraged to give full faith and credit to the judgments of other Canadian jurisdictions and to move beyond the strict notion of territorial competence

o In SK, the CJPTA is the culmination of the Morguard and Hunt line of cases. The following factors point to the courts in this jurisdiction having territorial competence over Bell Aliant

o (i) a common regulatory scheme gives rise to the authority to charge customers for cellular service; (ii) the five other Appellants are ordinarily resident here;

o (iii) the allegation is made, supported by the evidence, that all of the Appellants charged similar fees in a similar manner;

o (iv) evidence of commonality of approach is relevant to the allegation that, as a matter of contract interpretation, the Appellants were not entitled to retain the “system access fees” collected; and

o (v) the resolution of the common issues applies equally to Bell Aliant as it does to the other Appellants

This is enough to grant jurisdiction via s.4(e) Should the court decline jurisdiction based on forum non conveniens?

o (2) A court, in deciding the question of whether it or a court outside SK is the more appropriate forum in which to try a proceeding, shall consider the circumstances relevant to the proceeding, including:

(a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in anyalternative forum;

(b) the law to be applied to issues in the proceeding; © the desirability of avoiding multiplicity of legal proceedings; (d) the desirability of avoiding conflicting decisions in different courts; (e) the enforcement of an eventual judgment; and (f) the fair and efficient working of the Canadian legal system as a whole.

What about forum non conveniens?o S. 10 (forum non conveniens): A court, in deciding the question of whether it or a court outside SK

is the more appropriate forum in which to try a proceeding, shall consider the circumstances relevant to the proceeding, including:

(a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum;

(b) the law to be applied to issues in the proceeding; (c) the desirability of avoiding multiplicity of legal proceedings; (d) the desirability of avoiding conflicting decisions in different courts; (e) the enforcement of an eventual judgment; and (f) the fair and efficient working of the Canadian legal system as a whole.

o Once it has been determined that a court has territorial competence over a defendant, the defendant bears the burden of persuading the Court that it should decline jurisdiction

This is a discretionary power Only reviewable upon an error in principle or an abuse of discretion

o Let’s analyse each factor to make sure the trial judge was right no reason to believe that the laws of any province will be relevant to the determination of the

common issues If decline for Bell, a class action involving the other Appellants remains in SK

multiplicity of proceedings, the possibility of conflicting decisions and a waste of legal and judicial resources

o Would go against the fair and efficient working of the Canadian legal system What about the exclusive forum selection clause? Shouldn’t we apply it?

o Prior to the enactment of the CJPTA, the effectiveness of a forum selection clause was governed by the common law, namely the Pompey case and the “strong cause” test

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“Similarity between the factors when considering an application for a stay based on a forum selection clause and the factors in the forum non conveniens doctrine”

“the presence of a forum selection clause in the former is sufficiently important to warrant a different test,

o starting point is that parties should be held to their bargain, and where the plaintiff has the burden of showing why a stay should not be granted

o Cannot use a unified approach to forum non conveniens, where a choice of jurisdiction clause constitutes but one factor to be considered

1. On an application for a stay of proceedings to enforce a forum selection clause, the defendant bears the initial burden to demonstrate that the clause is valid and enforceable;

2. Onus shifts to the plaintiff to persuade the Court that effect should not be given to the clause;3. The proper test is the “strong cause” test 4. Burden placed on the plaintiff to show sufficiently strong reasons to support the conclusion

that it would not be reasonable or just in the circumstances to require the plaintiff to adhere to the terms of the clause.

o court retains a residual discretion not to grant a stay of proceedings Applying Pompey to CJPTA, a forum selection clause does not deprive a Court to find jurisdiction via s.4

o It is only after territorial competence has been found that the court proceeds to consider whether to give effect to the forum selection clause

The effect of a forum selection clause arises as part of the determination as to whether the court should decline territorial competence, via the s. 10 CJPTA framework

As per Pompey, great weight placed on the forum selection clause The Expedition Helicopters case lists exceptional circumstances where the clause can be rejected

o In the case at hand, enforcing Bell Aliant’s forum selection clause would frustrate some clear public policy…time for policy rant…

“Permitting forum selection clauses free reign in class actions puts an inordinate amount of power in the hands of a multi-jurisdictional company to “separate” their potential class-action liability into different jurisdictions. In the case at hand, recognition of the clause would…

four separate class actions against Bell Aliant alone in the Atlantic provinces; no class action against Bell Aliant because the number of plaintiffs is economically

insufficient to permit a class action to address the claims of Bell Aliant’s customers Only through the mechanism of a national class action that large numbers of small claims can

be pursued economically “If the clause applies for only some of the defendants, the court may decide to exercise its

discretion not to enforce the clause to avoid a multiplicity of proceedings and possible inconsistent results or to have all the necessary parties before the court”

o Additional public interest factors Bell Aliant seeks procedural advantages rather than a true resolution of the claim against it. These are contracts of adhesion in essentially a non-commercial setting

Did we do this all in the wrong order? Class action certification before jurisdiction analysis?o The problem lies in certifying the action, and then stating that the Court had territorial competence

because the action had been certifiedo General rule that jurisdiction should be determined before determining whether the action should be

certified as a class action However in this case, the certification of a national class was a relevant circumstance in

determining territorial competence and whether it should be declined

Preymann v. Ayus Technology Corporation, 2012 BCCA 30 Facts and Issue

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Not a class action or an arbitration clause Judgment stayed plaintiff’s action on the ground that, although BC has territorial competence over the

proceeding, jurisdiction should be declined in favour of the courts of Austria. o The contract between the parties contained a forum selection clause in which the parties chose

Austria as the forum in which to resolve any disputes arising from the agreement between them. Plaintiff asserts that forum selection clauses are not relevant to territorial competence because the CJPTA, a

complete code on questions of jurisdiction, is silent as to forum selection clausesAnalysis No question that BC has territorial competence over the proceeding Language is clear the parties intended Austrian law to govern and that Austria would have jurisdiction The CJPTA scheme recognizes the importance of facilitating interprovincial and international commerce. Teck

o Section 11 of the CJPTA was intended to codify the forum non conveniens test, not to supplement ito Section 11 constitutes a complete codification of forum non conveniens. It admits of no exceptions

Viroforce explains how a forum selection clause fits into the jurisdictional analysiso “If it is determined that the court has territorial competence, the issue is whether the court should

decline jurisdiction, either because the forum selection clause ought to be enforced or a consideration of the factors contained in s. 11 satisfies the forum non conveniens

Microcell Communications & Huyde Farmso “the validity and effect of a forum selection clause arise as part of the determination of whether the

territory should decline territorial competence and not as part of the determination of whether the territory has competence at all

o A forum selection clause is a weighty factor for declining to exercise territorial competence unless the plaintiff can establish strong cause for refusing to enforce such a clause

o rejected the notion that, because the CJPTA is silent on the effect of a forum selection clause, such a clause ought not be considered in a court’s decision as to whether to decline territorial competence

o Summarizes Para 109, 112-114 of Microcell, which is in the summary (Damn I'm so smart…) Pompey stated that forum conveniens and forum selection clauses should be analysed separately

o Rejecting the unified approach, a strong cause test was implementedo Therefore, Teck statement that forum non conveniens has been completely codified does not mean

that the forum selection clause analysis has been analysed The forum selection clause remains a common law inquiry

If forum non conveniens is exhaustively codified in s. 11 (Teck) but forum selection clauses trigger a separate inquiry (Pompey), Teck and Viroforce do not conflict

Summary Dispute involves a contract with a forum selection clause,

o Does the court have territorial competence, o Is the forum selection clause clear, unambiguous and enforceable.

Has the plaintiff discharged the burden of proving that there is strong cause meriting refusal to give effect to it.

Jurisdiction - Choice of forum, choice of law, and overriding forum policy

Catherine Walsh: “The Uses and Abuses of Party Autonomy in International Contracts” (2010) 60 UNBLJ 12 o Morguard: a radical shift in the theory of private international law as practiced in common law Canada.

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o The homeward trend of the classical English approach was rejected in favour of extending respect to the policies of other states with a concomitant claim to exercise adjudicative and prescriptive authority over activities connected to more than one jurisdiction.

o This new emphasis on comity was driven by the perceived need to facilitate interprovincial and international trade and commerce in response to the spread of the market economy

increasing level of deference being paid to party autonomy both at home and internationallyo Party autonomy principle

o choice of law rules generally adhere to a most substantial relationship principle the law having the closest connection to the parties and the events should apply.

o Authority to adjudicate likewise requires a real and substantial connection, albeit not the most substantial connection, between the parties or the dispute and the forum

o Party autonomy puts the will of private parties, not the state, at the centre of PIL Deference to party autonomy in international commerce also advances commercial values of

certainty and predictability, relieving the contracting parties from having to deal with multiple overlapping state claims to exercise prescriptive and judicial authority over their affairs

o the courts retain discretion to exercise jurisdiction notwithstanding the presence of an exclusive jurisdiction clause in favour of the courts of a different state.

In practice, the jurisprudence increasingly favours giving effect to exclusive jurisdiction agreements especially in the post-Morguard era.

Pompey: “strong cause” must be shown for displacing the contractually chosen forum.

While the factors to be taken into account in determining whether strong cause has been established are similar to those that applied in an ordinary forum non conveniens proceedings, the Court stressed that the analysis is distinct.

The starting point is that the parties should be held to their bargain, the plaintiff has the burden of showing why a stay should not be granted, and the parties’ intention is to be given primary weight in all but “exceptional circumstances

o article 3148 provides explicitly for the ouster of the jurisdiction of Quebec courts where the parties have chosen to submit their disputes to a foreign court or arbitrator

o Grecon: in the hierarchy of Code articles, the policy of deference to the autonomy of the parties in article 3148 took precedence over the policy favouring consolidation of actions in article 3139

respecting the parties’ intention was a core imperative of the rules of private international law aimed at the promotion of legal certainty and predictability in international transactions.

binding the parties to an exclusive forum selection clause was consistent with international trends.

Canadian law had adopted a policy of giving primacy to party autonomy over domestic procedural policies in the context of arbitration clauses

o Public policy limitations on party autonomyo States generally impose some limits on freedom of contract. These

rules aimed at protecting the weaker party in contractual relationships characterized by a systemic disparity in bargaining power,

consumer and individual employment contracts. provisions aimed at protecting the social economic or political polices of the enacting state in

the collective interest, for example, provisions giving investors the right to rescind contracts deference to party choice would severely limit the ability of states with a more interventionist

regulatory philosophy to protect local markets from the activities of foreign entities In Europe, the Rome I Regulation seeks to resolve these tensions through the concept

of “overriding mandatory provisions,”

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o imperative rules that are so fundamental to a state’s political, social and economic interests as to command application even in international contractual relationships and regardless of the parties’ choice of a different governing law.

o the extent to which a state’s overriding mandatory provisions limit party autonomy to choose the applicable law depends on whether the provisions form part of forum law or foreign law.

a choice of law agreement in favour of a foreign law does not “restrict the application of the overriding mandatory provisions of the law of the forum.”

When it comes to the overriding mandatory rules of a foreign state, however, the limitation on party autonomy is narrowly drawn.

The parties’ choice may be displaced only in favour of the law of the state of performance of the contractual obligations, and only insofar as that law renders performance unlawful.

Even then, the court is not obligated to give effect to the foreign mandatory rules.

Deference may or may not be accorded, depending on the nature and purpose of the foreign provisions, and the consequences of their application or non-application.

o The distinction between forum and foreign mandatory law recognizes that while a court generally is obligated to give effect to the fundamental imperatives of the state from which it derives its authority, it has no obligation to enforce the public policies of other states

The Civil Code of Quebec addresses the choice of law issues raised by overriding mandatory provisions in a manner roughly corresponding to the Rome I Regulation

o the courts may invoke public policy to give overriding effect to the mandatory provisions of forum law if it is determined that the forum provisions were meant to apply even to contracts with an extra provincial connection.

o public policy does not compel the court to enforce the overriding mandatory provisions of foreign states if the contract is valid and enforceable by its proper law

except where the law of the place of performance of a contractual obligation would render performance illegal

o Party Autonomy and Redressing Inequality of Bargaining Powero The integration of global markets has vastly increased the potential for these types of contracts to

involve parties located in different states. party autonomy to select the governing law would enable the stronger party to circumvent the

protection afforded to the consumer or employee by the law of her home state.o Rome I Regulation addresses these issues systematically.

Consumers are protected by the mandatory laws of the state of their habitual residence, provided that the consumer contract was concluded with a commercial or professional

counterparty as a result of its activities in that state or targeted at that state. The parties are free to agree to a different applicable law but only to the extent this does not

deprive the consumer of the protection of the mandatory provisions of her home state laws. similar limitation applies to employment contracts.

A choice of law clause is effective subject to the overriding application of the mandatory laws of the country where, or from where, the employee carries out her tasks

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complemented by limitations on choice of forum clauses in the Brussels I Regulation. A jurisdictional agreement is effective to deprive the consumer or employee of access

to her home courts only if it is entered into after the dispute has ariseno Under the Civil Code, a choice of law clause in a consumer contract is effective only to the extent it

does not deprive the consumer of the protection of the mandatory provisions of the law of her state of residence

provided the contract was completed in that jurisdiction or the order was received by the other party from the consumer in that jurisdiction.

o choice of law clause in employment contracts is similarly restricted so as to preserve the application of the mandatory rules of the jurisdiction in which the employee habitually carries out her work

Under article 3149, a waiver of the jurisdiction of “a Québec authority” to hear an action involving a consumer contract or a contract of employment cannot be set up against a consumer or worker who is domiciled or resident in Québec

o the limitations are not motivated only by the concern to avoid circumvention of that legislation. They are aimed at possibility for abuse of party autonomy by the stronger party to the

contract. potential for standard form exclusive jurisdiction agreements to be utilized

opportunistically by the more powerful party to deny redress altogether owing to the cost and complexity and legal risk of requiring the weaker party to pursue her complaint in a distant forum according to unfamiliar procedures

o Common Law Provinces, a choice of law clause in favour of foreign law presumably would be treated as ineffective to the extent that its result would be to derogate from the non-waivable provisions of otherwise applicable consumer and employee protection legislation.

In a number of provinces, the consumer legislation explicitly sets out the types of connections with the forum that are sufficient to bring a transaction within its scope although there is no particular consistency in these formulations

o SCC Dell arbitration clauses were indeed effective to bar recourse to the Quebec courts

notwithstanding that article 3149 prohibits the enforceability of a waiver of the jurisdiction of “a Québec authority” to hear an action involving a consumer contract initiated by a consumer domiciled or resident in Québec.

article 3149 applies only where there the dispute implicates a relevant foreign element, for example, a choice of forum clause in favour of a foreign court.

arbitration - a “neutral” institution “without a forum and without a geographic basis” - did not by itself provide the foreign element necessary to trigger the application

Dissent no principled basis for distinguishing between an arbitration clause and a choice of

foreign court clause; o both had the same aim to oust the jurisdiction of “a Quebec authority

All members rejected argument that enforcement of the arbitration clause – which prohibited the aggregation of arbitral complaints – was against Quebec public policy since the effective result would be to negate the possibility of collective recourse by Dell’s customers

recourse to public policy to limit the scope of arbitration should be used restrictively so as to ensure respect for the parties’ autonomy

effect of the Court’s ruling had been reversed by the Quebec Consumer Protection Act. The Act now prohibits any pre-dispute agreement that purports to obligate a

consumer to refer a dispute to arbitration or to restrict the consumer’ right to initiate court action,

Ontario has enacted a similar reform.

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o invalidates pre-dispute arbitration agreements to the extent that they prevent a consumer either from commencing a class action proceeding, or otherwise exercising a right given under the Consumer Protection Act

o Griffin scathing critique of the migration of principles of freedom of contract and party autonomy on

which the arbitral institution is based into contracts of adhesion in which the suppliers of services and goods are in a position to impose unilateral terms on their customers

arbitration clauses in retail customer contracts typically are not designed to provide a real forum for the resolution of disputes but rather to thwart redress altogether.

Not only do these clauses mandate arbitration but they explicitly prohibit an aggregation of claims in a single arbitration, the goal being to avoid liability for small claims that customers lack the financial and legal resources to pursue except through class action proceedings

even when individual complaints are pursued, the customer is often disadvantaged by the superior litigation resources and experience of its repeat player counterparty and by systematic bias on the part of the arbitration institutions which contract with merchants to supply arbitration services

Justice Sharpe refused to order the partial stay. Allowing all the claims to go forward collectively would avoid the necessity for

multiple court and arbitration proceedings in respect of the same complaint. unreasonable for Dell to insist on arbitration when its real motivation was to prevent

having to respond to the complaints altogethero exclusive choice of court agreements offer the same potential for abuse as mandatory arbitration

clauses to the extent that the complexity and cost and legal risk of being forced to litigate in a distant forum may have the effect of denying relief altogether as a practical matter

o Party autonomy and the preservation of fundamental forum public policyo Ash v Lloyd’s

while the forum court will normally give effect to overriding forum provisions to the extent they are considered applicable even in the international sphere, a foreign court is under no compulsion to recognize and give effect to the fundamental public policies of a foreign state particularly when to do so is antithetical to the foreign court’s local interests.

In subsequent proceedings, the English courts concluded that it was not contrary to English policy to give effect to the parties’ choice of English notwithstanding Lloyd’s non-compliance with Ontario securities laws

Lloyd’s eventually obtained English judgments against the Canadian Names for their unpaid reinsurance premiums and sought to have these judgments recognized and enforced in Canada.

The Court agreed that the importance of protecting Ontario capital markets represented such “fundamental and essential” forum values as to make it contrary to public policy “in many circumstances” to enforce a foreign judgment when an action on the same cause before the Ontario courts would not have been entertained by reason of the claimant’s non-compliance with Ontario securities laws.

However, two countervailing factors caused the Court to conclude that the judgments nonetheless should be recognized

o Court had effectively already decided that if the English court applying English law found in favour of Lloyd’s, the resulting judgments could not be contrary to Ontario public policy.

o principles of international comity

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importance of giving effect to forum selection clauses in international contracts.

the practical desirability in globally integrated capital markets with overlapping and conflicting regulatory policies to take a more restrained approach to the reach of domestic securities laws where the foreign law provided similar thought not identical redress

prevent potential unfairness to other Names and to the holders of insurance policies who would be adversely affected if the Names’ reinsurance contributions were not universally enforced

o Australian version of Lloyds relief under securities statutes would not be available in an English court, Justice declined to

order a stay. “undesirable that parties should, by entering into an exclusive jurisdiction agreement,

be able to circumvent a legislative scheme established by Parliament to protect investors.”

Foreign corporations were not exempted from the application of these statutory standards of commercial behaviour and “the policy behind them would not be served if exemption might be achieved by inserting stipulations as to foreign law or forum.”

decision to preserve consistency among common law systems would come at the expense of precluding a litigant “from enforcing rights which he enjoys as a person engaging in commerce in Victoria by virtue of legislation in force in jurisdiction.”

o Conclusiono courts have interpreted the principle of international comity embraced in Morguard as compelling

deference not just to the authority of other sovereign states but to the autonomy of private market actors and the perceived needs of the global marketplace

Jurisdiction – CCQ Exception (necessity, conservatory, consolidation, emergency)3136. Even though a Québec authority has no jurisdiction to hear a dispute, it may hear it, if the dispute has a sufficient connection with Québec, where proceedings cannot possibly be instituted outside Québec or where the institution of such proceedings outside Québec cannot reasonably be required.

3138. A Québec authority may order provisional or conservatory measures even if it has no jurisdiction over the merits of the dispute.

3139. Where a Québec authority has jurisdiction to rule on the principal demand, it also has jurisdiction to rule on an incidental demand or a cross demand.

3140. In cases of emergency or serious inconvenience, Québec authorities may also take such measures as they consider necessary for the protection of the person or property of a person present in Québec.

Jurisdiction – CCQ Exclusive jurisdiction - Art. 3129 (asbestos related claims)3129. The application of the rules of this Code is imperative in matters of civil liability for damage suffered in or outside Québec as a result of exposure to or the use of raw materials, whether processed or not, originating in Québec.

Jurisdiction - Divorce Jurisdiction - Divorce Act (1985, c. 3 (2nd Supp.)), ss. 3-7Jurisdiction in divorce proceedings, corollary relief proceedings (4), variation proceedings (5)

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3. (1) A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding …

Jurisdiction where two proceedings commenced on different days(2)… the court in which a divorce proceeding was commenced first has exclusive jurisdiction …

Jurisdiction where two proceedings commenced on same day(3)…the Federal Court has exclusive jurisdiction to hear and determine any divorce proceeding then pending between the spouses and the divorce proceedings in those courts shall be transferred to the Federal Court on the direction of that Court.

Transfer of divorce proceeding, corollary relief proceedings (6.2), variation proceedings (6.3 )where custody application6. (1) … and the child of the marriage in respect of whom the order is sought is most substantially connected with another province, the court may, on application by a spouse or on its own motion, transfer the divorce proceeding to a court in that other province.

Exclusive jurisdiction(4) Notwithstanding sections 3 to 5, a court in a province to which a proceeding is transferred under this section has exclusive jurisdiction to hear and determine the proceeding.

Exercise of jurisdiction by judge7. The jurisdiction conferred on a court by this Act to grant a divorce shall be exercised only by a judge of the court without a jury.

Recognition and Enforcement of Foreign Judgments and Awards – Generally

Morguard Investments Ltd. v. De Savoye [1990] 3 S.C.R. 1077

Hunt v. T&N plc [1993] 4 S.C.R. 289

CCQ, articles 3155-68CHAPTER I RECOGNITION AND ENFORCEMENT OF FOREIGN DECISIONS3155. A Québec authority recognizes and, where applicable, declares enforceable any decision rendered outside Québec except in the following cases:

(1) the authority of the country where the decision was rendered had no jurisdiction under the provisions of this Title; (2) the decision is subject to ordinary remedy or is not final or enforceable at the place where it was rendered; (3) the decision was rendered in contravention of the fundamental principles of procedure; (4) a dispute between the same parties, based on the same facts and having the same object has given rise to a decision rendered in Québec, whether it has acquired the authority of a final judgment (res judicata) or not, or is pending before a Québec authority, in first instance, or has been decided in a third country and the decision meets the necessary conditions for recognition in Québec; (5) the outcome of a foreign decision is manifestly inconsistent with public order as understood in international relations;

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(6) the decision enforces obligations arising from the taxation laws of a foreign country.

3156. A decision rendered by default may not be recognized or declared enforceable unless the plaintiff proves that the act of procedure initiating the proceedings was duly served on the defaulting party in accordance with the law of the place where the decision was rendered.

However, the authority may refuse recognition or enforcement if the defaulting party proves that, owing to the circumstances, he was unable to learn of the act of procedure initiating the proceedings or was not given sufficient time to offer his defence.

3157. Recognition or enforcement may not be refused on the sole ground that the original authority applied a law different from the law that would be applicable under the rules contained in this Book.

3158. A Québec authority confines itself to verifying whether the decision in respect of which recognition or enforcement is sought meets the requirements prescribed in this Title, without entering into any examination of the merits of the decision.

BC Enforcement of Canadian Judgments Act (2003)2 - Right to register Canadian judgment1) Subject to subsection (2), a Canadian judgment, whether or not the judgment is final, may be registered under this Act for the purpose of enforcement.(2) A Canadian judgment that requires a person to pay money may not be registered under this Act for the purpose of enforcement unless it is a final judgment.(3) A Canadian judgment that also contains provisions for relief that may not be enforced under this Act may be registered under this Act except in respect of those provisions.

Effect of registration4 Subject to sections 5 and 6, a registered Canadian judgment,

(a) subject to paragraph (b), may be enforced in British Columbia as if it were an order or judgment of, and entered in, the Supreme Court, or

5 - Time limit for registration and enforcement

6 - Application for directions(1) A party to the proceeding in which a registered Canadian judgment was made may apply to the Supreme Court for directions respecting its enforcement.(2) On an application under subsection (1), the court may

(a) make an order that the judgment be modified as may be required to make it enforceable in conformity with local practice,(b) make an order stipulating the procedure to be used in enforcing the judgment, or(c) make an order staying or limiting the enforcement of the judgment, subject to any terms and for any period the court considers appropriate in the circumstances, if

(i) such an order could be made in respect of an order or judgment of the Supreme Court under the applicable Rules of Court or any enactment relating to legal remedies and the enforcement of orders and judgments,(ii) the party against whom enforcement is sought has brought, or intends to bring, in the province or territory where the Canadian judgment was made, a proceeding to set aside, vary or obtain other relief in respect of the judgment,(iii) an order staying or limiting enforcement is in effect in the province or territory where the Canadian judgment was made, or

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(iv) the judgement is contrary to public policy in British Columbia.(3) Notwithstanding subsection (2), the Supreme Court must not make an order staying or limiting the enforcement of a registered Canadian judgment solely on the grounds that

(a) the judge, court or tribunal that made the judgment lacked jurisdiction over the subject matter of the proceeding that led to the judgment, or over the party against whom enforcement is sought, under

(i) principles of private international law, or(ii) the domestic law of the province or territory where the judgment was made,

7 Interest on registered judgment8 Recovery of registration costs

Uniform Enforcement of Foreign Judgments Act4 - Reasons for refusal

A foreign judgment cannot be enforced in the province if(a) the court of the State of origin lacked jurisdiction …;(b) the judgment has been satisfied;(c) the judgment is not enforceable in the State of origin or an appeal is pending, or the time within which an appeal may be made or leave for appeal requested has not expired;(d) the judgment debtor was not lawfully served … or did not receive notice of the commencement of the proceeding … and the judgment was allowed by default;(e) the judgment was obtained by fraud;(f) … proceeding that was conducted contrary to the principles of procedural fairness and natural justice;(g) the judgment is manifestly contrary to public policy in [the enacting province or territory];

Public policy applies only if the foreign judgment or rule violates concepts of justice and morality that are fundamental to the legal system of the recognizing jurisdiction.

the incompatibility with justice and morality must be convincingly demonstrated. A foreign judgment may be at odds with domestic legislative policy, because it gives a

different result from that which domestic law would produce, but that does not mean that the judgment contravenes public policy

(h) … a civil proceeding based on the same facts and having the same purpose (i) lis pendends (ii) res judicata(iii) res judicata in a third jurisdiction

5 - Time periodsA foreign judgment can be enforced in the province only within the period provided by the law of the State of origin, or within ten years after the day on which the foreign judgment becomes enforceable in that State, whichever is earlier.

6 - Limit of damages (1) … a foreign judgment includes an amount added to compensatory damages as punitive or multiple damages or for other non-compensatory purposes, it shall limit enforcement of the damages awarded by the foreign judgment to the amount of similar or comparable damages that could have been awarded in the provinceExcessive damages (2) … a foreign judgment includes an amount of compensatory damages that is excessive in the circumstances, it may limit enforcement of the award, but the amount awarded may not be less than that which the enforcing court could have awarded in the circumstances.

7 - Limits relating to non-monetary awards86

(1) In the case of a non-monetary foreign judgment, the enforcing court may, on application by any party, (a) make an order that the foreign judgment be modified as may be required to make it enforceable in the province, unless the foreign judgment is not susceptible of being so modified;(b) make an order stipulating the procedure to be used in enforcing the foreign judgment;(c) make an order staying or limiting the enforcement of the foreign judgment, subject to any terms and for any period the enforcing court considers appropriate in the circumstances, if…

8 - JurisdictionA court in the State of origin has jurisdiction in a civil proceeding that is brought against a person if

(a) … expressly agreed to submit to the jurisdiction .(b) … person submitted to the jurisdiction of the court by appearing voluntarily;(c) the person commenced a counterclaim to the proceeding;(d) the person, being a natural person, was ordinarily resident in the State of origin;(e) the person, not being a natural person, was incorporated in the State of origin, exercised its central management in that State or had its principal place of business located in that State; or(f) there was a real and substantial connection between the State of origin and the facts …

9 – Real and substantial connection

10 - Judgment not enforceableA foreign judgment may not be enforced in [the enacting province or territory] if the judgment debtor proves to the satisfaction of the enforcing court that

(a) there was not a real and substantial connection between the State of origin and the facts on which the civil proceeding was based; and(b) it was clearly inappropriate for the court in the State of origin to take jurisdiction.

11 - Recognition of foreign judgmentsSame rules apply for recognition of foreign judgmentsEnforcement and recognition, although related and similar, are different

14 - Enforcement(1) On registration, a foreign judgment is enforceable as if it were a judgment of the enforcing court.Jurisdiction of enforcing court (2) An enforcing court has the same jurisdiction and control over a registered foreign judgment as it has over its own judgments and may order enforcement in respect of one or more of its parts. Section 14 is to remove any doubt that, on registration, a foreign judgment is the functional and juridical

equivalent of a judgment emanating at first instance from the enforcing court

Brussels I Regulation, Summary, Report and Green Paper

Beals v. Saldanha, 2003 SCC 72Facts The appellants, residents of Ontario, sold a vacant lot situated in Florida to the respondents for $4,000 A dispute arose as a result of that transaction and the respondents sued the appellants in Florida.

o A defence was filed but the appellants chose not to defend any of the subsequent Pursuant to Florida law, the failure to defend the amendments had the effect of not defending

the action. The appellants were subsequently noted in default and were served with notice of a jury trial to establish

damages.

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o They did not respond to the notice nor did they attend the trial. The jury awarded the respondents US$260,000 in damages damages.

The appellants sought legal advice. o They were advised by an Ontario lawyer that the foreign judgment could not

be enforced in Ontario. THIS ADVICE WAS FOUND TO BE NEGLIGENT Relying on this advice, the appellants took no steps to have the

judgment set aside or to appeal the judgment in Florida. The damages were not paid and an action was started in Ontario to enforce the Florida judgment.

o By the time of the hearing, the foreign judgment with interest had grown to C$800,000. Issue Should the judgment be enforced? Even with its wacky rules and ridiculous amount of damages? Yes!Reasoning International comity and the prevalence of international cross-border transactions and movement call for a

modernization of private international lawo the “real and substantial connection” test, which has until now only been applied to interprovincial

judgments, should apply equally to the recognition and enforcement of foreign judgments. Arguments of comity and accommodating flow of assets across jurisdiction equally applicable to

interprovincial and international arrangements Only issue relates to fairness, especially in cases of foreign default judgments

The test requires that a significant connection exist between the cause of action and the foreign court.

The appellants entered into a property transaction in Florida and should reasonably expect to defend themselves in Florida

o A real and substantial connection between the Florida jurisdiction, the subject matter of the action and the defendants.

Since the Florida court properly took jurisdiction, its judgment must be recognized and enforced provided that no defences bar its enforcement

Fraud, natural justice, public policies are the only defences The existing defences are narrow in applications

Fraud is one of the defences availableo Concern that defendants may try to use this defence as a means of relitigating an action o fraud going to jurisdiction can always be raised before a domestic court to challenge the judgment. o The merits of a foreign judgment can be challenged for fraud only where the allegations are new and not

the subject of prior adjudication. Where material facts not previously discoverable arise that potentially challenge the evidence

that was before the foreign court, the domestic court can decline recognition of the judgment. The defendant has the burden of demonstrating that the facts sought to be raised could not have

been discovered by the exercise of due diligence prior to the obtaining of the foreign judgment. o Here, the defence of fraud is not made out, mainly due to the fact that they didn’t attend the proceedings

No evidence of fraud that they could not have discovered had they defended the Florida action. Natural justice is another one of the defences available

o Restricted to the form of the foreign procedure and to due process, not to the merits of the case If that procedure, while valid there, is not in accordance with Canada’s concept of natural justice,

the foreign judgment will be rejected. Fair process is one that reasonably guarantees basic procedural safeguards such as

judicial independence and fair ethical rules One of the requirements is that the defendant is given adequate notice of the claim and

that he be granted an opportunity to defend

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o Disagrees with dissent #2 in stating that notice does not include notice of the legal steps to be taken to defend a claim

o Within Canada, defendants are presumed to know the law of the jurisdiction seized with an action against them

To not complicate things, this is now true for international litigation Defendants responsible for learning law when served with notice

The defendant carries the burden of proof.o This defence fails here as well… they did not defend the action

Appellants were fully informed about the Florida action, were advised of the case to meet and were granted a fair opportunity to do so..

Appellants had precise notice of the extent of their financial exposure when judgment rendered They failed to move to set aside or appeal the Florida judgment

o This was not due to a lack of notice but due to negligent legal advice. That negligence cannot be a bar to enforcement

The public policy defence prevents the enforcement of a foreign judgment which is contrary to the Canadian concept of justice, o Turns on whether a foreign law is contrary to our view of basic morality

Bold statement…should have a narrow application The damages award does not violate our principles of morality such that enforcement

would shock the conscience of the reasonable Canadian.o The sums involved, although they have grown large, are not by themselves a basis

to refuse enforcement of the foreign judgment in Canada. o Finally, the recognition and enforcement of the Florida judgment by a

Given that s. 7 does not shield a Canadian resident from the financial effects of the enforcement of a judgment rendered by a Canadian court, it does not do so for a foreign judgment.

Dissent #1 disagrees and states that the proceedings in Florida violated the precepts of natural justiceo “A judgment based on inadequate notice is violative of natural justice.”

The respondents’ complaint did not adequately convey the potential amount of damages at stake Appellant did not know that it had to file amended defences Appellants did not know that other defendants had settled, leaving them solely liable

Dissent #2: More substantive dissent; disagrees with the application of the real & substantial testo the assessment of the foreign court’s jurisdiction should be carried out in a way that acknowledges the

additional hardship imposed on a defendant who is required to litigate in a foreign country. The impeachment defences of public policy, fraud and natural justice ought to be reformulated. Liberalizing the jurisdiction side of the analysis while retaining narrow, strictly construed

categories on the defence side is not a coherent approacho The jurisdiction test itself should be applied so that the assumption of jurisdiction will not be recognized

if it is unfair to the defendant. Requires taking into account the differences between international and interprovincial contexts

The integrated character of the Canadian federation makes a high degree of cooperation between the courts of the various provinces a practical necessity.

o It is also a constitutional imperative, inherent in the relationship between the units of our federal

Comity as between sovereign nations is not an obligation in the same sense. o The ultimate objective of PIL is facilitating international interactions; however

this does not mean that they should be as liberal as the interprovincial rule.o The connection must be strong enough to make it reasonable for the defendant to be expected to litigate

there even though that may entail additional expense, inconvenience, and risk

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If, however, the process that led to the judgment was unfair in itself, it is not fair to the defendant to enforce that judgment in any circumstance, even if the forum has very strong connections

Agrees with majority on content of public policy, fraud, and natural justice defence Agrees with dissent #1 that there was no notice, thus violating natural justice

o Adequate notice when the defendant is given enough information to assess the extent of his or her jeopardy, including amount of damages sought

Enforcing $1 Million claim would shock the reasonable Canadiano “The facts raise very serious concerns about the fairness of enforcing the Florida judgment …

enforcement of this judgment would shock Canadians and cast a negative light on our justice system. o The appellants have done nothing that infringes the rights of the respondents and have certainly done

nothing to deserve such harsh punishment …They have acted in good faith throughout …o Ontario court should not have to set its seal of approval on the judgment thus obtained without regard

for the dubious nature of the claim, the fact that the parties did not compete on a level playing field, and the lack of transparency in the Florida proceedings. …

o Canadian defendants will from now on be obliged to participate in foreign lawsuits no matter how meritless the claim or how small the amount of damages appears to be, on pain of potentially devastating consequences from which Canadian courts will be virtually powerless to protect them.”

Canada Post Corp. v. Lépine, 2009 SCC 16, [2009] 1 S.C.R. 549 (paras. 18-37)IssueDo the jurisdictional rules in arts. 3164 to 3168 incorporate, by reference to Title Three, the doctrine of forum non conveniens?Legal Framework for the Judicial Recognition of External Judgments Title Four concerns foreign judgments or judgments rendered outside Quebec that are brought before the

courts of that province. o It establishes the conditions for the recognition and enforcement of such judgments

the basic principle laid down in art. 3155 C.C.Q. for all the rules in Title Four is that any decision rendered by a foreign authority must be recognized unless an exception applies. The exceptions are limited:

o the decision maker had no jurisdiction,o the decision is not final or enforceable, o there has been a contravention of the fundamental principles of procedure, o lis pendens applies, o the outcome is inconsistent with international public order, o the judgment relates to taxation

Article 3158 limits the scope of a Quebec court’s power to review a foreign decisiono confine itself to considering whether the requirements for recognizing the decision have been meto It cannot review the merits of the case or retry the case

Art. 3155(1) states that the Quebec court must find that the court of the country where the judgment was rendered had jurisdiction over the matter

o Arts. 3164 to 3168, set out rules to determine whether the foreign authority had jurisdiction This creates a mirror effect

The foreign authority is deemed to have jurisdiction if the Quebec court would, by applying its own rules, have accepted jurisdiction in the same situation

Art. 3164. adds the requirement of a substantial connection between the dispute and the foreign authority seised of the case:

3164.  The jurisdiction of foreign authorities is established in accordance with the rules on jurisdiction applicable to Québec authorities under Title Three of this Book, to the extent that the dispute is substantially connected with the country whose authority is seised of the case. 

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Under the little mirror theory, because the reference does not exclude any of Title Three’s provisions, it necessarily encompasses the doctrine of forum non conveniens

o Therefore, a Quebec court may therefore apply the doctrine of forum non conveniens to determine how, in its view, the foreign court should have applied that very doctrine

Criticism: to apply forum non conveniens in an application for recognition, it confuses the establishment of the foreign court’s jurisdiction with the exercise of that jurisdiction

To deny recognition for failure to do something that is only discretionary contradicts the exceptional character of the forum non conveniens doctrine in Quebec

Rejects the little mirror theoryo Enforcement by the Quebec court depends on whether the foreign court had jurisdiction, not on how

that jurisdiction was exercisedo This approach introduces a degree of instability and unpredictability that is inconsistent with

favourably of the CCQ to the recognition of foreign or external judgments o Inconsistent with the principles of international comity and the objectives of facilitating international

and interprovincial relations that underlie CCQ`s PIL system Article 3164 provides that a substantial connection between the dispute and the originating court is a

fundamental condition for the recognition of a judgment in Quebec. o Articles 3165 to 3168 set out specific terms for specific situations o These specific rules will generally suffice to determine if the foreign court had jurisdiction. o It may be necessary in considering a complex legal situation to apply the general principle in art.

3164 in order to establish jurisdiction and have recourse to, for example, the forum of necessity

Recognition and Enforcement of Foreign Judgments and Awards – Divorce Recognition

Divorce Act (1985, c. 3 (2nd Supp.)), s. 22Recognition of foreign divorce22. (1) A divorce granted, on or after the coming into force of this Act, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce.…(3) Nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act.

Nicholas Rafferty, “Recognizing Foreign Divorces: The Public Policy Defence When a Canadian court is called upon to recognize a foreign decree of divorce, the basic issue to be

determined is whether the foreign court is regarded by the Canadian court as having had jurisdiction to dissolve the marriage in question.

Bases for jurisdiction set out in section 22 of the Divorce Acto … if either former spouse was ordinarily resident in that country or subdivision for at least one year

immediately preceding the commencement of proceedings for the divorceo Section 22(3) of the Divorce Act preserves the common law bases for a foreign court’s jurisdiction

over divorce. Theses bases are: (i) where jurisdiction was assumed on the basis of the domicile of the spouses;

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(ii) where the foreign divorce, though granted on a non-domiciliary jurisdictional basis, is recognized by the law of the domicile of the parties;

(iii) where the foreign jurisdictional rule corresponds to the Canadian jurisdictional rule in divorce proceedings;

(iv) where the circumstances in the foreign jurisdiction would have conferred jurisdiction on a Canadian court had they occurred in Canada;

(v) where either the petitioner or respondent had a real and substantial connection with the foreign jurisdiction wherein the divorce was granted; and

(vi) where the foreign divorce is recognized in another foreign jurisdiction with which the petitioner or respondent has a real and substantial connection

The myriad of bases, both statutory and common law, for the recognition of a foreign court’s divorce jurisdiction illustrates the generosity of Canadian courts to recognize foreign divorces.

o The jurisdiction of Canadian courts is much more restrictive In Zhang v Lin, husband only lived in Texax for 6 months but was able to get a divorce Canada would not have granted jurisdiction as he wasn`t domiciled for a year When recognizing the foreign divorce, Canadian court recognized foreign jurisdiction

because it had a real and substantial connection `He had chosen to move to that state, to live there, and to become employed there”

Where a foreign court of competent jurisdiction has granted a divorce decree, then that decree is in general conclusive on the merits.

o Canadian “standards and divorce principles are irrelevant if the foreign court had jurisdiction to deal with the matter

o Defences are few in number and restricted in scope (the usual suspects): Fraud No proper notice Jurisdiction must not be established through any flimsy residential means Must not have resorted to foreign jurisdiction for fraudulent or improper reasons such as

“solely to obtain a divorce” Denial of natural justice Contrary to Canadian public policy

Judge objected to divorce in Zhang v Lin based on public policy defence!o Related to the issue of child support

Impossible to make a claim for child support in Texas Clear differences in child and spousal support is unjustifiable Recognition of divorce would bar child support to mother still in Alberta

Choice of Jurisdiction Clauses - one-way exclusive jurisdiction – validity

French Supreme Court Strikes Down One Way Jurisdiction Clause French Supreme Court struck down a one way choice of court agreement governed by Article 23 of the

Brussels I Regulation The contract with the bank included a clause providing for the exclusive jurisdiction of Luxembourg courts,

but allowing the bank to sue wherever it wanted too One-way exclusive jurisdiction clause

the bank was not genuinely bound by the clause, as it had the right to disregard it. It was thus void, for being “potestative“ Potestative clauses contradict the purpose of Article 23 of the Brussels I Regulation

The case does not insist on who the plaintiff was, and it only refers to Article 23, o i.e. limited to contracts of adhesion, consumer contracts

These types of clauses are common place everywhere in every industry92

Renvoi – successions

French Supreme Court Breaks Land Taboo French Supreme court held that French courts had jurisdiction to determine the succession to a property

situated in a foreign country, Spain With regard to the Spanish immoveable, Spanish law operated a renvoi to French law, and that such renvoi

was granting jurisdiction to the French court to decide the entire dispute and determine the succession to the whole estate.

o jurisdiction was only granted ”to the exception of legal and physical operations flowing from the lex situs”, but it did not find that such operations were involved in the case

Choice of law -defamation - Rome II reform

Report of European Parliament on Future Choice of Law Rule for Privacy and Personality Rights Proposals to reform Rome II in light of defamation issues:

o This Regulation does not prevent Member States from applying their constitutional rules relating to freedom of the press and freedom of expression in the media.

o An application of this Regulation which would have the effect of significantly restricting the scope of those constitutional rules may be regarded as being contrary to the public policy of the forum

o Defamation claims are currently excluded from the scope of Rome II as no Member could agree to its content

Proposed new provision dealing with violations to privacy rightso Article 5a - Privacy and rights relating to personality

1. The law applicable to a non-contractual obligation arising out of a violation of privacy or rights relating to the personality, including defamation, shall be the law of the country in which the most significant element or elements of the loss or damage occur or are likely to occur.

2. However, the law applicable shall be the law of the country in which the defendant is habitually resident if he or she could not reasonably have foreseen substantial consequences of his or her act occurring in the country designated by paragraph 1.

3. Where the violation is caused by the publication of printed matter or by a broadcast, the country in which the most significant element … shall be deemed to be the country to which the publication or broadcasting service is principally directed or, if this is not apparent, the country in which editorial control is exercised, and that country’s law shall be applicable….

4. The law applicable to the right of reply or equivalent measures and to any preventive measures or prohibitory injunctions … shall be the law of the country in which the publisher, broadcaster or handler has its habitual residence

Jurisdiction - Ontario - existence of cross-claim not a basis for jurisdiction

Misyura v. Walton, 2012 ONSC 5397Facts & Issue Misyura, an Ontarian, was hit by Walton’s car in the US Misyura sues both Walton and his insurance company in Ontario Walton argues that Ontario does not have jurisdiction simpliciter or that Ontario is forum non conveniens.

o Misyura does not oppose Walton’s motion.o Economical, her insurance company, which has a crossclaim against Walton, opposes his motion,

Argues that this court has jurisdiction in the main action and in the crossclaim and that Ontario is the convenient forum.

Argues that it and Ms. Misyura should not be forced to litigate in two jurisdictions

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Does Ontario have jurisdiction because of the existence of a crossclaim in Ontario?Reasoning 3 ways in which Ontario can assert jurisdiction against an out-of-province defendant (Muscutt v. Courcelles):

o (1) presence-based jurisdictiono (2) consent-based jurisdictiono (3) assumed jurisdiction (Van Breda)

Assumed jurisdiction when the foreign litigation has a “real and substantial connection” to ON Ontario court is said to have “jurisdiction simpliciter”. The real and substantial connection test ensures that claims are not prosecuted in a

jurisdiction that has little or no connection with either the transactions or the parties, a judgment rendered by a court which has properly assumed jurisdiction in a given case

be recognized and enforced In Van Breda, SCC developed an analytical framework and legal principles for jurisdiction simpliciter and

forum non convenienso Designed to bring certainty and predictability to PIL in determining conflict of law issues:

(a) assuming jurisdiction over a matter (b) determining what law to apply when the law from more than one jurisdiction might apply (c) recognizing and enforcing the judgments of other courts.

o To achieve order and fairness, a major goal of PIL, courts have developed a system of connecting factors informed by principles for applying them, as opposed to relying on almost pure judicial discretion

Framework begins by identifying circumstances where there is a real and substantial connection The presumptive factors identifies relationship between the subject matter and the forum

where it would be reasonable to expect that the defendant appear to answer the claim Applying Van Breda factors, Economical argued that there is a contract connected with the dispute

o Insurance contract between Misyura and Economical Walton is not a party to the contract The insurance contract is set up in a way that allows Misyura can have her claim against

Economical determined without joining Walton as a party to the litigation This is why she isn’t opposing Walton’s motion

o She will litigate in Ontario and leave Economical with the problem of re-litigating in the US

Economical submits that Ms. Misyura’s contract action must be brought in Ontario and that Economical has a right of subrogation against Mr. Walton.

o If the Ontario action is stayed against Mr. Walton, it will have to litigate in two different jurisdictions with the spectre of inconsistent judgments.

o Argued that the connecting factor is that Walton is a necessary party to the crossclaim This was rejected in ONCA Van Breda

That a foreign defendant qualifies is a necessary party to a proceeding is not, by itself, a presumptive factor

o “Convenience and ad hoc notions of what is fair for Economical do not establish a connecting factor”

Distinguished from SCC Van Breda where there is a concurrent claim in tort and contract against a defendant and there is

jurisdiction simpliciter for one but not both claims, the court will have jurisdiction simpliciter for both claims

o In the case at hand, there is no jurisdiction over Walton in either the tort claim or the contract cross-claim

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Post-Van Breda - 'holiday' tort - jurisdiction

Colavecchia v. The Berkeley Hotel, 2012 ONSC 4747Facts & Issue The Plaintiffs live in Toronto. They booked a holiday in the UK DeGasperis’s husband, was injured when he slipped and fell in the bathroom of their hotel room Plaintiffs sued UK hotel in Ontario

o Hotel moves to dismiss as there is no real and substantial connectionReasoning The objective factors identified in Van Breda are:

o (a) the defendant is domiciled or resident in the province; o (b) the defendant carries on business in the province; o (c) the tort was committed in the province; and o (d) a contract connected with the dispute was made in the province

Plaintiffs argue that he has sustained damages in Ontario, satisfying the ‘tort’ requiremento Van Breda rejected damages as a presumptive connecting factor

“The problem with accepting unreservedly that if damage is sustained at a particular place, the claim presumptively falls within the jurisdiction of the courts of the place … this risks sweeping into that jurisdiction claims that have only a limited relationship with the forum.

An injury may happen in one place, but the pain and inconvenience resulting from it might be felt in another country and later in a third one

Plaintiffs argue that the hotel carries on business in Ontarioo DeGasperis booked the hotel through the TD Visa Travel Rewards website. o The electronic invoice indicates that Ms. DeGasperis booked The Berkeley Hotel in Knightsbridge,

London, o Argued that the Hotel carries on business in Ontario by virtue of its connection with the TD travel

rewards website the Hotel is located in London, in the United Kingdom. London is its only location. It has no office or other premises in Ontario. No evidence that Hotel employees regularly visit Ontario No evidence that the Hotel engaged in a marketing campaign specifically targeted for Ontario

Van Breda was specifically in the business of marketing and organizing tours from wintery Ontario to its properties in the sunny Caribbean

Hotel was one of many hotels that came up on the TD Visa Travel Rewards website If the interaction through a website was enough to be “carrying on business” it would

amount to a form of universal jurisdiction Van Breda: “…some caution in order to avoid creating … forms of universal jurisdiction in respect of tort

claims arising out of certain categories of business or commercial activity. o Active advertising in the jurisdiction or, the fact that a Web site can be accessed from the jurisdiction

would not suffice to establish that the defendant is carrying on business there. The notion of carrying on business requires some form of actual, not only virtual, presence

in the jurisdiction,

Tort Jurisdiction - BCCA - application of QCCA decision in Options Consommateurs

Fairhurst v. De Beers Canada Inc., 2012 BCCA 257Facts & Issue

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Global conspiracy; diamond price-fixing by cartel of diamond companiesReasoning Determining whether a court has jurisdiction and whether to exercise it is a preliminary matter in the

proceedingso Preliminary decision

“The objective is to determine whether there are facts alleged, which if true, would found jurisdiction.

The court is not charged with the task of determining whether the facts are true. A plaintiff need show only an arguable case that they can be established” “It was not open to the court to make findings of fact on disputed evidence. “The nature of the inquiry does not change merely because evidence is adduced Nor is it our task to weigh the ‘implausibility’ of the claim as pleaded

Moran is the leading authority on the question of jurisdiction in cases involving the negligent manufacture of products sold into the stream of commerce

o “…where a foreign defendant carelessly manufactures a product in a foreign jurisdiction which enters into the normal channels of trade and he knows or ought to know both that as a result of his carelessness a consumer may well be injured and it is reasonably foreseeable that the product would be used or consumed where the plaintiff used or consumed it, then the forum in which the plaintiff suffered damage is entitled to exercise judicial jurisdiction over that foreign defendant

Rejects argument that by showing they had not sold their product to any British Columbia purchaser, they had negated jurisdiction

There is jurisdiction over the tort where the damage occurso Moran : “Canadian courts recognize the “important interest a state has in

injuries suffered by persons within its territory.” Vitapharm

o (a) If an actionable conspiracy is proven and damage occurs in Ontario, then a tort has been committed in Ontario

o (c) Foreign conspirators are necessary and proper parties to the actiono (d) The foreign conspirators were alleged to have acted through their agents

Foreign conspirators were properly joined in the action on the basis that they carried on business in the jurisdiction

Once jurisdiction has been established via the connecting factors established by legislation (CJPTA), “the mandatory presumption leaves little room for the exercise of discretion”

Option Consommateurs: an ‘economic tort’ such as conspiracy to fix prices illegally will be regarded as taking place where the economic damage is suffered

o “That loss is a damage within the meaning of article 3148(3) notwithstanding its purely financial character.”

“It constitutes a material injury, suffered in Quebec, that was caused by the price-fixing conspiracy”

Contract - jurisdiction - mandatory franchise legislation

JM Food Services Ltd. v. Canada Businet Co. Ltd., 2012 BCSC 862Facts The plaintiff, JM, is the franchisor of a chain of pizza restaurants.

o The CEO is Russell Businet operated two Freshslice restaurants under franchise agreements with JM. The first opened in Toronto in December 2010 and the second opened in British Columbia in August 2011 Businet delivered a Notice of Rescission of Toronto franchise to JM pursuant to the ArthurWishart Act

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o The Wishart Act is remedial legislation intended to level the legal playing field between franchisees and franchisors by protecting franchisees when they enter into franchise agreements.

British Columbia does not have similar legislation o On March 12, 2012, Businet, commenced proceedings in the Ontario Court with respect to both the

Toronto and BC franchises Earlier that year, in February, a Notice of Termination was delivered to Businet by Russell

o JM abandoned its franchise in Torontoo On March 15, 2010, JM commenced the BC Action against Businet

JM did not have notice of the Ontario Action before it commenced the BC Action Both Actions arise out of the same facts Businet moves to dismiss the claimIssue Should the BC court decline to exercise its territorial jurisdictionReasoning Time to look at the CJPTA again!

o BC court clearly has jurisdiction Only relief for Businet is under the forum non conveniens section

Businet has burden to show that Ontario is a more appropriate forumo Factors to be considered under s.11(2) are:

a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum,

most known witnesses are in BC counsel for both parties will need to travel, or counsel from the

different province will need to be retained = neutralb) the law to be applied to issues in the proceeding,

As the Wishart Act does not appear in BC, it will be required to be proven via expert evidence

o This favours Ontario No choice of law provisions = neutral

c) the desirability of avoiding multiplicity of legal proceedings,d) the desirability of avoiding conflicting decisions in different courts,e) the enforcement of an eventual judgment, and

a judgment in either jurisdiction will need to be recognized in the other one = neutral

f) the fair and efficient working of the Canadian legal system as a whole. The parties have elected to pursue their rights and remedies in two different forums.

o One party or the other will be deprived of their choice of forum This consideration does not favour either jurisdiction

JM’s voluntary decision to cease Ontario business operations is not be a factor favouring BC as a forum.o Otherwise, a party could, via unilateral choices, negatively affect another party’s choice of forum

As this is a case of competing Canadian common law jurisdictions, there is no concern about differences in the legal framework

Multiplicity of proceedings and avoiding conflicting decisiono Relates to the applicant’s request for a partial stay of the BC Action to permit issues with respect to

the Toronto franchise to proceed in that jurisdiction. Many costs: witnesses required to testify in two jurisdictions about a business arrangement

which may not be neatly divisible Very inefficient and expensive to all parties.

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o Not in the interest of the parties or the ends of justice. Mazarei: “Generally it is more appropriate for a court to interpret its own laws

o “While it is true that the Wishart Act may be proved in BC and applied by the courts here, I conclude that it is more appropriate for Ontario to apply the Wishart Act as opposed to the BC court doing so.”

Juridical advantage for applicant in Ontario:o Many significant statutory changes to the common law giving juridical advantage to applicant

Determining factor in favour of Ontario in this case

Sears Canada Inc. v. C & S Interior Designs Ltd., 2012 ABQB 573 Facts The respondent, C&S, is incorporated under the laws of Alberta and conducts its business in Calgary the respondents entered into various licensing/franchising agreements with the appellant, Sears Sears is incorporated under the laws of Canada and conducts business across the country, including Alberta

and Ontario, with its head office in Toronto Sears terminated the licenses of all the franchise locations operated by C&S In May 2009, class action proceedings were initiated in Ontario on behalf of various floor covering retailers,

including C&S, against Sears Sears commenced an action in Alberta against C&S in January 2010 to recover alleged unpaid fees and

charges owed under the licensing agreements and damages for breach of contract The Ontario class action was certified in August 2010.

o Court noted that while Alberta franchise legislation did not preclude the Alberta licensees from being included in the Ontario class action, it could require Ontario courts to apply the law of Alberta to these plaintiffs.

To address this issue and other discrete facts pertaining only the Alberta members of the Ontario class action, court ordered the creation of an Alberta sub-class in the Ontario class action, which included C&S.

Issue Should the Alberta action be stayed due to the concurrent proceedings in Ontario?Reasoning Was it correct for Alberta to assume jurisdiction simpliciter?

o Yes! Defendants are domiciled in Alberta and carry on their business there Alleged wrongs occurred in Alberta Licensing agreements were concluded in Alberta

Court has jurisdiction, so the only way it can decline jurisdiction is via forum non convenienso Factors to be considered may be different from province-to-province

Alberta factors include:1) where each party resides;2) where each party carries on business;3) where the cause of action arose;4) where the loss or damage occurred;5) any juridical advantage for the plaintiff in this jurisdiction;6) any juridical disadvantage for the defendant in this jurisdiction;7) convenience or inconvenience to potential witnesses;8) the cost of conducting the litigation in this jurisdiction;9) applicable substantive law; and10) difficulty in proving foreign law, if necessary.

Applying forum non conveniens, is Ontario a better forum?98

o Must first demonstrate that Ontario has jurisdiction simpliciter Sears is domiciled in Ontario as its head office is located in Toronto, There is a forum selection clause in favour of Ontario

“In the framework of Van Breda, a forum selection clause is a new presumptive factor.”

o Ontario has jurisdiction! Because there is a forum selection clause, we must apply the Pompey strong cause test

o Forum selection clauses should be given effect unless strong cause for not doing so is shown! Sears argues that the strong cause exists by way of pre-emptive local legislation

Court finds that applicable pre-emptive legislation can constitute a strong cause for not enforcing a forum selection clause

o Alberta’s Franchise Act requires that the law of Alberta applies to all franchise agreements made in Alberta (section 16)

o Section 17 states that all forum selection clauses are voido Purpose of legislation is to protect franchisees

As franchisee, C&S, is requesting applicability of forum choice clause, Section 17 does not apply to the franchise agreement!

Therefore, there is no applicable pre-emptive legislation Sears argues that there four reasons in favour of an Ontario forum

o A) difficulty in applying foreign law; “Differences between Alberta and Ontario law are not so great as to create difficulty in

proving” Van Breda: “The creation of the Canadian federation established an internal space within

which exchanges should occur more freely than between independent states. The principle of comity and the principles of fairness and order applicable within a federal space required that the rules of private international law be adjusted.”

o B) there would not be conflicting or duplicated proceedings; Argument rejected as both matters originate from related facts and franchise relationships

o C) Sears would be prejudiced if forced to advance their claim in Ontario. Sears would only have to apply one law firm if the class action occurred in one single forum

Lis alibi pendens - CCQ art. 3137

Boulanger c. Lucas Meyer Cosmetics Canada inc. (Unipex Innovations inc.), 2012 QCCS 3111Facts & Issue Same parties with the same facts have two different proceedings in France and Quebec The demands made in each court are different Can a Quebec court exercise its discretion via Art 3137 to not exercise its jurisdiction over the Quebec claim

because of a ‘similar’ claim occurring in another jurisdiction who assumed jurisdiction first?Reasoning le tribunal, aux termes de l'article 3137 C.c.Q., possède un pouvoir discrétionnaire pour surseoir à

décider de la cause, aux conditions énumérées à cette disposition d'exception du Code. o Parmi celles-ci, l'existence d'un recours étranger qui peut donner lieu à une décision

susceptible d'être reconnue au Québec ne fait pas l'objet de la contestation l'existence d'une communauté d'objets entre les deux litiges constitue l'élément

déterminant de la décision à rendre les mêmes parties se trouvent engagées dans les deux procédures en cause

o Il en est de même des faits les mêmes faits pouvant donner lieu à différentes demandes, à différents objets

French case dealing with contractual obligations99

Quebec case dealing with labour law, severance payo Damage claimed in both cases are completely different

force est de constater que les deux procédures en cause poursuivent des objectifs totalement autonomes et distincts

bien que les deux procédures découlent d'un événement commun, elles possèdent néanmoins leurs spécificités propres qui les distinguent

On ne peut conclure à l'existence d'une identité d'objet et à la litispendance

o Therefore, the court cannot apply art 3137 Can we still plead forum non conveniens art 3135?

o Yes, you can! L’expression « nettement plus approprié » ne figure pas non plus à l’art. 3135 du Code civil

du Québec, qui signale toutefois en ces termes le caractère exceptionnel du pouvoir d’une autorité du Québec de décliner compétence : « une autorité du Québec peut, exceptionnellement et à la demande d’une partie, décliner cette compétence

le terme « exceptionnellement » utilisé à l’art. 3135, tout comme l’expression « tribunal nettement plus approprié », reflète « une reconnaissance du fait qu’en règle générale, le tribunal doit exercer sa compétence lorsqu’il se déclare à juste titre compétent »

Oppenheim liste les facteurs suivants, dont aucun n’est déterminant en soi, mais qui doivent être évalués globalement:

1) le lieu de résidence des parties et des témoins ordinaires et experts; 2) la situation des éléments de preuve; 3) le lieu de formation et d’exécution du contrat qui donne lieu à la demande; 4) l’existence et le contenu d’une autre action intentée à l’étranger et le progrès déjà

effectué dans la poursuite de cette action; 5) la situation des biens appartenant au défendeur; 6) la loi applicable au litige; 7) l’avantage dont jouit la demanderesse dans le for choisi; 8) l’intérêt de la justice 9) l’intérêt des deux parties; 10) la nécessité éventuelle d’une procédure en exemplification à l’étranger.

o In the case at hand, there is a forum choice clause in a contract related to the facts However, that contract does not govern the claim at issue

Forum choice clause has no effecto Art 3149 states that Quebec has jurisdiction over employment contracts = point for Quebeco Concerning interests of justice, there will be no contradictory judgment

Furthermore, unclear if France will even accept jurisdiction over the claim Introducing the Quebec claim into the France claim will also cause delay to the France case

as it is already well underwayo For enforcement of judgment, both parties are domiciled in Quebec and have their assets there, so

there will be no need to get a recognition of judgment order by a court if held in Quebec

Jurisdiction - defamation - publication

Court v. Debaie, 2012 ABQB 640Facts Plaintiffs live in Alberta Defendants live in Nova Scotia and Ontario

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The Statements of Claim in these actions allege that the defendants published defamatory comments about the Plaintiffs on their Facebook pages

o the posts were “public” and therefore visible to anyone with access toReasoning Van Breda

o the common law test of real and substantial connection depends on the demonstration of a presumptive connecting factor

o The lack of a presumptive connecting factor cannot be replaced by a case-by-case exercise of discretion

Éditions Écosociété: the tort of defamation is “crystallized upon publication of the libellous material” and “publication occurs when libellous material is read by a third party

o “At this stage of the proceedings, the plaintiff need not show evidence of harm or that the book was read. The plaintiff need only allege publication and its allegations should be accepted as pleaded unless contradicted by evidence adduced by the defendants

Demonstration of a genuine issue for trial Publication refers to the communication of defamatory information in such a way that

it is made known to a third partyo Publication has two components

(1) an act that makes the defamatory information available to a third party in a comprehensible form,

Defamatory information is readily available if it can be immediately accessed

o there must be no meaningful barrier that would prevent a third party from receiving it

(2) the receipt of the information by a third party in such a way that it is understood.

Satisfied either by adducing direct evidence or by asking the court to draw an inference

the site of the alleged defamation is where the damage to reputation occurso It is when a person downloads the impugned material from the internet that the

damage to the reputation may be done, and it is at that time and place that the tort of defamation is committed

Applying facts to case at hand:o Defendants’ had at least one Facebook friend in Alberta at the time of the

postings. o Defendants’ postings would appear on the “wall” of those friends’ without any

intervening action by the friends An inference that the postings were read by those friends.

The postings were thus published in Alberta. This is a different situation from a hyperlink, or even a general

website, in which potential readers must take action to access the posted material.

Forum non conveniens?o the law of Alberta applies based on either the place of the tort, or the place

where the Plaintiffs’ reputation suffered the most substantial harm. This factor favours Alberta

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o the balance of fairness favoured litigation in Alberta because it would be unfair to prevent a suit in the community where the plaintiff’s reputation was established (Breeden)

Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18Facts B, an Ontario-based corporation, brought an action in Ontario against the publisher, author, researchers and

editors of a book B alleges that the book’s content is libellous The publisher is a corporation based in Quebec, where the author, researchers and editors work and reside. Two French editions of the book have been printed, totalling nearly 5,000 copies

o 93 were distributed in bookstores in Ontario. o A number of copies are available in Ontario public libraries

Superior Court granted jurisdiction in Ontario and dismissed the forum non conveniens argumentIssue Who has jurisdiction and is Quebec a more appropriate forum?Reasoning The alleged tort of defamation occurred in Ontario, as the book was distributed in Ontario The commission of a tort in Ontario is a recognized presumptive connecting factor that prima facie entitles

the Ontario court to assume jurisdiction over the dispute At this stage of the proceedings, the plaintiff need not show evidence of harm or that the book was read.

o The plaintiff need only allege publication and its allegations should be accepted as pleaded unless contradicted by evidence adduced by the defendants

With respect to the doctrine of forum non conveniens, its application is an exercise of discretion reviewable in accordance with the principle of deference to discretionary decisions

one of the factors that must be considered in the forum non conveniens analysis is the law applicable to the tort

o a plaintiff might make a strategic decision and sue in a jurisdiction in which he or she enjoys the greatest juridical advantage

bad bad forum shopping Restricting the available choice of laws might be a way to curb forum shopping. Lex loci delicti has been established as a general principle for determining choice of

law for tortso room has been left for the creation of exceptions for torts such as defamation.

One possible alternative may be the place of most substantial harm to reputation

Discussion at para 59-61 on alternative proposals if a policy question on defamation shows up

the tort of defamation occurs upon publication to a third partyo the harm occasioned by the publication of a defamatory statement is not the publication itself, but

rather injury to the plaintiff’s reputation the importance of place of reputation has long been recognized in Canadian defamation law.

Cost of proceedings to the plaintiff and potential damage awarded should be considered too stronglyo Financial recovery may not be the central issueo Conceivable that a declaratory judgment is as valuable to its reputation as any pecuniary award

What is enough publication?o the majority of copies were indeed distributed in Quebec, but the number of copies available in

Ontario remains substantial. Should we employ a substantial publication test (see Rome II proposed reform)?

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No!o Many instances where a publication is substantially published in more than

one jurisdictiono Substantial publication test reflects England’s merit-based arbitrary PIL laws

Goes against Canada’s presumptive factors, ordered systemo Moreover, there is evidence that Écosociété actively promoted its book in Ontario, unlike the

situation where a copy of the libellous material is accessed by happenstance in the forum of choice. In the case at bar, whether the lex loci delicti rule is applied or the location of the most substantial harm to

reputation is considered, the applicable law is that of Ontario and this factor favours Ontario in the forum non conveniens analysis,

o factor of juridical advantage favours Ontario as the claim would be barred by the expiry of a limitation period in Quebec

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