CONFLICT OF LAWS

I. JURISDICTION
Jurisdiction Simpliciter....1 Bases of Jurisdiction: 1. Consent 2. Presence 3. Real and Substantial Connection Forum Non-Conveniens: Stays and Anti-Suit Injunctions...7 Additional Issues..............................................................................................................................9

II. CHOICE OF LAW

General Principles..15 Specific Areas of Law.18

III. JUDGMENT ENFORCEMENT

Basic Enforceability...11 1. Jurisdiction of the Court Issuing the Judgment 2. Finality 3. Sum Certain 4. Foreign public law Impeachment Defences..13 1. Fraud 2. Natural Justice 3. Public Policy Alternative Approaches to Enforcement..14

JURISDICTION SIMPLICITER
can a court hear a case (adjudicative power of court to hear the matter before it)

BASES OF JURISDICTION: CONSENT (a) Agreement Jurisdiction clauses (presumption against exclusivity unless otherwise suggested) Exclusive require parties to resolve all disputes in a particular forum to the exclusion of all others Non-exclusive merely permits parties to resolve their disputes in named forum, but do not preclude parties from raising dispute in another forum) Mackender v. Feldia *doctrine of seperability/severability for jurisdiction clauses within contracts - Clause is a mini contract within the contract, aka doctrine of seperability or severability Rudder v. MSN - Class action, online contract, exclusive jurisdiction clause - sophisticated plaintiffs, court held that contract was valid Underwriters of Lloyds v. Mauran *service of suits clause only a procedural mechanism, not an exclusive jurisdiction clause (b) Attornment (US: submission) Gourmet Resources v. Paramount - vigorously protests jurisdiction, and yet at the same time argues merits in the alternative - court said, cannot argue both, any arguing of the merits will be considered submission Roglass v. Kennedy *any type of procedural mechanism can potentially constitute attornment - D said to P I intend to defend, changes mind, no statement of defense was filed - However, sending letter to clerk found to constitute attornment, idea of intention Dovenmuehle v. Rocca Group *the taking of required procedural steps will not be considered attornment PRESENCE a. Individuals Maharanee v. Wildenstein and Burnham v. County of Marin *transitory presence sufficient, tag youre it b. Corporations Section 19 Extra-Provincial Corporations Act creates presence through agent Adams v. Cape Industries Corp will be treated as present if: i. fixed place of business (branch office) or, ii. representative has been COB for more than a minimal period of time c. Presence of Assets SDI v. Chameleon Technologies *presence refers to D, not his assets, assets not enough to establish presence

REAL AND SUBSTANTIAL CONNECTION Rule 17 (a.k.a. Service ex juris statute/long arm jurisdiction rule): enumerates circumstances in which you can serve out of jurisdiction (a) property in Ontario (f) contracts (g) tort committed in Ontario (h) damage sustained in Ontario (o) necessary or proper party (e.g. Ds insurance company) (p) person resident or COB in Ontario Moran v. Pyle - (i) tort occurred where harm suffered i.e. death (ii) place of acting - Nuanced rule: foreseeability/reasonable type test that if your products will enter a certain forum, should have to defend in jurisdiction where they caused harm The OLD framework: Duncan v. Neptunia *if you fall within parameters of rule 17.02, no need to establish real and substantial connection (OVERRULED) Spar Aerospace Ltd. v. American Mobile Satellite *once you fall within provisions of Quebec civil code, those are already examples of real and substantial connection NEW FRAMEWORK 3 prong framework/stages (I) serve out under Rule 17, pick out from 17.02 (procedural aspect) (II) court determines whether there is real substantial connection (substantive aspect 8 Muscutt factors) (III) forum non conveniens - court does not consider its own jurisdiction, defendant will challenge the jurisdiction - smart defendant will make three arguments, challenging jurisdiction by arguing: (I) didnt fall within one of the rules (II) no real and substantial connection (III) more appropriate forum Muscutt Quintet - Ontario resident tort occurs in another country, then comes back to Ontario for medical treatmeat (suffers damage in Ontario) -> (h) - 17.02 Rules are procedural only! (explicitly overruled Duncan), must be subject to real and substantial connection requirement - What is real and substantial connection? 8 point non-exhaustive test: (1) Connection between forum and plaintiffs claim (2) Connection between forum and defendant (3) Unfairness to the defendant in assuming jurisdiction (4) Unfairness to the plaintiff in not assuming jurisdiction (5) Involvement of other parties to the suit (6) Courts willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis (7) Whether case interprovincial or international in nature - jurisdiction more easily justified in interprovincial cases than international cases (8) Comity - comity is essential respect and deference we owe to other countries for their legislative acts, dont want to make judgments that are offensive to other countries, relations with other states/countries

Test for jurisdiction in the US: Minimum Contacts test (rough equiv of real and substantial connection test) International Shoe - Sufficient contacts or ties with the state to make it reasonable and just according to traditional notions of fair play and substantial justice to allow the defendant to be sued there. - Activities were regular, systematic, designed to solicit business, resulted in a lot of business. INTERNET JURISDICTION Internet is particular problem in conflict of laws. Internet is not territorial, whereas rules are. J. Binnie Zippo (AMERICAN APPROACH) - Court lays out sliding scale approach to internet jurisdiction: (1) Passive websites (no jurisdiction) (2) Interactive websites (court must gauge level of interactivity, the more interactive the more likely to have jurisdiction) (3) Websites with commercial purpose, doing business (jurisdiction will be found) Problems with this sliding scale framework - Passive website, only confers information, no jurisdiction -> Ignores nature of message, what if there is information that is harmful in another jurisdiction e.g. defamation - because something is more interactive, does not have anything to do with jurisdiction. Plus, most websites fall into this category (non-test) Braintech (CANADIAN APPROACH) - Applied Canadian test to determine whether Texas had jurisdiction -> held that judgment was not enforceable cause no jurisdiction in Texas because: (1) passive posting (2) no proof that anyone in Texas actually looked at it (3) no allegation that defendant had commercial purpose. - applied real and substantial test (but not Muscutt cause only decided recently) Disney Enterprises v. Click Enterprises (i) commercial purpose (PROFIT is consistent thread) (ii) analogizes case to Moran = real and substantial connection DEFAMATION Burke v. NYP Holdings - foreseeable (Moran-type analysis) -> found jurisdiction simpliciter - Forum non-conveniens: court laid out Muscutt factors!!! PROBLEM!!! These factors are jurisdiction simpliciter factors. They dont go through them one by one but do look at some, particularly unfairness issues. Bangoura v. Washington Post - Muscutt factors CLASS ACTIONS Harrington v. Dow Corning *opt in class action, plaintiffs by opting in are evidencing their consent McCutcheon v. The Cash Store Inc. *Inclusion of non-residents in class not amounting to excess of jurisdiction

EXCLUSIVE JURISDICTION Real Property Duke v. Andler *when dealing with TITLE to real property, forum in which real property is located is the forum for adjudication Godley v. Coles * rule of real property (title issue) not going to be extended to property damage issues - case does not necessarily have to be heard in the forum where the property is located (even though in reality, if property located there most likely to have real substantial connection) Treaty Obligations Warsaw Convention s.28 injured person in a plane crash can only sue in certain jurisdictions (where carrier has domicile, where you bought ticket etc)

JURISDICTION UNDER THE QUEBEC CIVIL CODE - 31.34 in the absence of any special provision, Quebec has authority where defendant is domiciled in Quebec (rough equiv of presence, domicile, however, is not a fleeting presence) - 31.35 even though Quebec authority has jurisdiction may decline jurisdiction if other authorities in better position to decide (rough equiv of forum non conveniens) - Quebec only civil law systems that has a forum non conveniens provision, cause most civil law systems not allow for a lot of discretion, but this is influence of common law Canada - 31.36 even though Quebec authority has no jurisdiction to a dispute, it may hear it if it has sufficient connection with Quebec (reminiscent of real and substantial language in Moreguard, but this is actually a residual access to justice provision) BRUSSELS REGULATION entered into by EU member states, has well defined bases of jurisdiction, has specific rules as to when a member state has jurisdiction and when they dont goal: 1. unify jurisdiction and simplify judgment enforcement 2. prevent irreconcilable judgments (rec.15) 3. Ensure party autonomy 4. Ensure predictability and certainty (by using connecting factor of domicile 8, 9 , 11) 5. Promote and foster mutual trust (states giving up national basis for jurisdiction 16,17) Article one: scope of regulation Article two: jurisdiction subject to this regulation, persons domiciled in a member state shall, whatever their nationality, be sued in the courts of that member state. (sue def. in member state where they are domiciled) Article three: persons domiciled in a member state can only be sued in courts of other states in accordance with regulation Where def is not domiciled in an EU country, then use national rules of jurisdiction

Scenarios: 1. Plaintiff = Eng, Defendant = France (Brussels Regulation) Can English P sue French D in Ontario? Yes [ Language in Article 2 looks like its mandatory, but it is not intended to regulate conduct of litigants. If English P wants to sue French D in the EU, then have to sue in France. But outside of EU, whatever. If action preceeds elsewhere, BR does not apply] 2. P = Canadian, D = French Can P sue in Canada? Yes Can P sue in England? No, cause England is bound by BR, D is domiciled in EU so regulation applies 3. P = Canadian, D = US

Can P sue D in England? Yes, of course, BR not engaged at all. However, judgments emanating from a member state (say if P sues D in Spain), then enforceable throughout all member states 4. P = French, D = Canadian Can P sue in Canada? Yes Can P sue in England? Yes (cause not dealing with a EU domiciled defendant) EXCEPTIONS: Article 5: 5.1(a) in matters relating to a contract, in the courts for the performance of the obligation in question (b) sale of goods place of delivery (c ) where services would be provided 5.3. tort- where harmful event wrong occurred 5.5 disputes arising out of branch plant operations Article 6: 1. multiple defendents - closely connected claims that it is expedient to hear and determine them together 2. third parties (see regulation) 3. counterclaims Exclusive jurisdiction provision Article 22 1. land 2. company law (seat head office/main office) 3. patents trademarks etc where it was registered or where it should have been registered Lis Pendens Provision (Litigation/Action Pending) Article 27 * - applies to all actions brought in member states - first court has jurisdiction Article 23 - one of the parties to the jurisdiction agreement is domiciled in a member state - parties have to appoint the courts of a member state as the court to hear their dispute - 1(b) custom Article 24 - Attornment Enforcement that judgment (article 22) was given by courts of member state Article 33 general recognition principle Article 34 Defences 1. Manifestly contrary to public policy 2. Defendant was not served properly Article 36 under no circumstances may a foreign judgment be reviewed on the basis of its substance EU Union Law governs Such an identity of interests b/w the parties that judgment against one would have the force of res judicata against the others ISSUES regarding BR Bailey Article EU court hesitant to interfere with any member state ISSUE #1 Article 27 court first seised gets to hear the dispute, other courts must stay proceedings

The Italian Torpedo commencing action in Italy till Italian court determines whether or not they have jurisdiction, Italian court notoriously slow Erich Gasser v. Misrat * court first seised ALWAYS decides jurisdiction, only when they decline can court second seise come in and decide Article 27 lis pendans provision is paramount, any other court must stay their proceedings Court second seised is not in any better position to determine jurisdiction than court first seised British govt said as a fallback, at least for bad faith litigants, such that the court second seised gets to decide the matter. ECJ says NO ECJ falls back on concept of mutual trust as corollary to free flowing judgment regime, must trust member states to properly follow ISSUE #2 No antisuit injunctions within confines of BR Turner v. Gravat Turner brought wrongful dismissal action against employer in England, Gravat brings proceedings in Spain against Turner, baseless claim. Issue: Could an antisuit injunction be issued by English court against a plaintiff who is bringing proceedins against another member state? NO Canadian P and English D and youre suing in England so BR is engaged. Question: Can English D argue that England is not the forum conveniens and that the action should be stayed in favour of Canada? Ouusu v. Jackson P and D both domiciled in England, and contract between them. P would have access to private beach in Jamaica, and he got hurt, sued Jackson. Under the regulation. Other Ds in this case are Jamaican. Issue: Can doctrine of forum non conveniens be used to stay against a state outside of the EU? NO

FORUM NON CONVENIENS: STAYS AND ANTI-SUIT INJUNCTIONS

STAYS Spiliada (English case) - court enunciated forum non conveniens test: STAGE ONE: is there clearly a more appropriate forum somewhere else? STAGE TWO: if there is clearly a more app forum somewhere else, by making plaintiff sue elsewhere, will plaintiff be deprived of legitimate personal or juridical advantage such that substantial justice will not be done abroad? (not just loss of some type of advantage, but loss of some kind of advantage such that substantial justice will not be done) Where there is no clearly more appropriate forum, plaintiffs choice wins by default Cambridgeshire factor: we already have wealth of knowledge as court in England, and this is factor we will consider in assessing more appropriate forum (wont arise in most cases, but gloss on forum non conveniens, expertise in a court)

WHAT COURTS CONSIDER WHEN DECIDING APPROPRIATE FORUM 1. location of majority of parties 2. location of key witnesses and evidence 3. choice of law 4. jurisdiction 5. avoidance of multiplicity of proceedings in some other jurisdiction already undergoing 6. applicable law (diff from choice of law) 7. geographical factors including language considerations 8. contract where contract was signed and negotiated 9. location of defendants assets 10. interests of the parties 11. loss of legitimate and juridical personal advantage ROLE OF JURISDICTION AGREEMENTS IN THE FORUM NON CONVENIENS ANALYSIS ECU Line v. Pompey - *Affirms Strong cause test (from some other case): Party who is seeking to get out of jurisdiction clause much show strong cause as to why court should not adhere to terms that the parties struck - Contract is a contract approach, need certainty LOSS OF PERSONAL/JURIDICAL ADVANTAGE - personal advantage or advantage plaintiff gets for his case by suing in jurisdiction of his choice. - Illustrations: (subtext: criticizing foreign courts and their justice system) (i) foreign court unavailable e.g. Jaffe (argument of impugning foreign court system, so need to be careful) (ii) foreign court will not apply the chosen law (Banko Atlantico, commercial dispute, parties had designated Spanish Law. More appropriate court would be court of united emirates ) (also questioning how the foreign courts is coming to its conclusion, implicates issues of comity) (iii) whether there will be excessive delay in the foreign jurisdiction, e.g. India (justice delayed is justice denied) (iv) timebar (illustrated in Spiliada) but defendant can undertake not to plead the statute of limitations (v) better disclosure, better discovery, availability of class actions, contingency fees, legal aid, higher costs/irrecoverable costs abroad, availability of security for costs (vi) experience of lawyers and experts (referred to in Spiliada, cambridgeshire factor) (vii) limitation of liability (viii) joinder of other defendants (to avoid multiplicity of proceedings) (ix) where action can only be brought in one jurisdiction

(x) almost anything really. Jaffe v. Dearing * deprivation of liberty a legitimate juridical and personal advantage, Jaffe could not properly participate in civil process, foreign court was unavailable to him Connelly v. RTZ Corp *legal aid/contingency fees are personal/juridical advantage Lubbe v. Cape PLC * no developed class action mechanisms, legal aid issue Connelly and Lubbe emphasize addendum to criteria of more appropriate forum -> SUCH THAT SUBSTANTIAL JUSTICE WILL NOT BE DONE ABROAD. (inability of foreign forum to provide justice) AMCHEM (leading Canadian case) Court on Spiliada test: - no longer 2 part test, combined juridical and personal advantage with the consideration of other factors (holistic, comprehensive analysis) - Plaintiff, if gets juridical advantage in the RIGHT forum, thats ok. If getting juridical advantage in wrong forum -> forum shopping BURDEN OF PROOF - burden of proof rarely matters (both Amchem and Frymer), court engages in balancing act, weighs factors in holistic analysis, choice of factors made on strength of these factors but in the event that it does matter, Sopinka says in Amchem that 17.02 burden on defendant 17.03 burden on plaintiff ANTISUIT INJUNCTIONS TEST: Amchem 1. Could the foreign court reasonably have concluded that there were grounds to hear the case there? (Even if the foreign courts decision was wrong, as long as it is not unreasonable, court asked to issue antisuit injunction will give deference) If yes, end. If no: 2. Is it unjust to deprive to the party to be enjoined (i.e. the plaintiff) of the juridical and personal advantage of his chosen court? Hudon v. Geos * ON court could issue antisuit injunction despite the fact that plaintiff had not gone to foreign court to ask for relief/stay of proceedings first (court said it was preferable, not mandatory) SNI v. Lee (English case) - Test articulated: Defendant must show that to continue action in place of plaintiffs choosing would be abusive, in other words vexatious or oppressive - No stays in Texas, unjust to continue in Texas because under Texas law, cannot bring repair company into the action, inability to amount a complete defense. Airbus Industrie v. Patel (English case) - must have all pre-requisites before court will grant antisuit injunction, here (1) + (4) missing (1) Court issuing injunction has to have jurisdiction over the plaintiff to be enjoined (because it is an in personam remedy) (2) Proceedings must already be underway (3) Failure of foreign court to grant relief (? fuzzy prerequisite) (4) Potential that forum youre going to to get the injunction is appropriate forum to resolve the dispute BREACH OF JURISDICTION AGREEMENTS: The Angelic Grace - Parties agreed to settle their disputes in London, but one party initiated suits in Italian courts. Other party asked English court to issue antisuit injunction

Italian courts would have ultimately declined, so were doing what they would have done anyway; if they werent, then just remedying breach of a jurisdiction agreement SINGLE FORUM CASES: - certain statutory causes of actions are specific to one forum e.g. securities regulation, US antitrust - controversy: if antisuit injunction issued, it cant proceed in that forum, which means cant proceed anywhere British Airways v. Laker *injunction denied because BA had brought themselves into the purview of private laws of both nations by agreeing to airline regime Midland v. Laker *injunction issued because did not bring themselves into US antitrust violations OTHER ISSUES Parallel Proceedings Brussels Regulation: - codification of law on judgments that member-states of EU have signed onto, outlines welldefinite bases for jurisdictions, avoids parallel proceedings - How to deal with Lis Pendens (Art. 27) Disputes pending: RULE: the court first seized of the matter gets to hear the dispute (court first possessed of the matter, first to file, any other court has to decline jurisdiction according to the rules) - Problems: race to the courthouse door, no consideration for what is the most appropriate forum Parallel proceedings in Canada Thrifty *determination of one Cad court to hear a case will lead another Cad court to decline jurisdiction CNR v. Sydney Steel (anomaly, most courts in Can seek to avoid parallel proceedings) - parallel proceedings in NS and Quebec, court says if parallel proceedings were to happen, results though not preferable, are not disastrous Problems: unseemly race to judgment -> litigation abuse to be the first court to get a judgment and then run to other court to get it enforced - Inconsistent verdicts/results, different determinations of liability - Waste of time, resources Parallel proceedings: Between Canada and foreign countries Westec v. Raytheon - used Thrifty analysis, maybe because other court was US court: (1) are there parallel proceedings under way in another jurisdiction? (a lot of times not sure if they are exactly parallel parties the same, subject matter the same) (2) is the other jurisdiction an appropriate forum for resolution of the dispute (3) personal/juridical advantage only available in the BC action that is so important and that it would be unfair to deprive him of it? Molson v. Miller *parallel proceedings where both jurisdictions are appropriate - Looked at Thrifty and Westec to underscore policy objectives - Court says unless you have REALLLY compelling reasons, then court has discretion to elevate parallel proceedings to predominate factor in performing forum non conveniens analysis (para. 41) Mareva Injunctions - Freezing the defendants assets so he cannot move them out of the jurisdiction - Safeguards for this mechanism, plaintiff needs to establish that there is serious risk that defendant will dissipate his assets for avoiding judgment. Absent this serious risk, court will not award this merevan injunction. (done ex parte) - Plaintiffs must make full and frank disclosure of strength and weakness of his case, if court later determines that this was not done, court will rescind the merevan injunction.

10

Must post a damages undertaking: plaintiff undertakes to pay defendant in the case that you were wrong (e.g. lost interest) => NOT a casual remedy US v. Friedland - Action proceeding in US, plaintiff was US govt, and Friedland was defendant. Friedland had shares in Ontario. US govt sought freezing order in Ont. Counsel for US govt did not give full and frank disclosure. - Def. sought damages for damage to rep as well as freezing of assets. US govt immune to damages undertaking. But in principle, if you dont make full and frank disclosure, will (i) rescind injunction and (ii) get benefit of damages undertaking Haiti v. Duvalier Main proceeding in France, plaintiffs state of Haiti, defs Duvalier family, Haiti asked English court to freeze money (worldwide mareva injunction). English court did this, issued freezing order and disclosure order (disclosing location of assets)

11

JUDGMENT ENFORCEMENT
Classic principle: Enforcing court does not review merits of controversy enforcing court does NOT act as a court of appeal. You either enforce it or you dont. (Goddard v. Gray) STAGE ONE: BASIC ENFORCEABILITY A. ESTABLISHING THAT FOREIGN/ISSUING COURT HAD JURISDICTION Morguard v. DeSavoye (1990) Facts: Defendant who moved to BC was served ex jures under Albertas long arm statute, trial preceeded in Alberta, everything about the case was related to Alberta. Defendant argues that no (i) consent and no (ii) presence. Rule: Court said that this doesnt make sense, and will change CL rules. If it is appropriate for courts of one province to assume jurisdiction, then it is appropriate for courts in other provinces to enforce that judgment. - It is fair and reasonable to assume jurisdiction when there is real and substantial connection between forum and action. Real and substantial connection test as developed in Moreguard - ambiguous - connection between forum and defendant OR forum and subject matter of the action Developments arising from Moreguard Positive: correspondence between JS and Enforcement (presence, consent, real and substantial), objectives of judgment enforcement are better promoted, created unified judgment regime within Canada Questions: Is this Moreguard paradigm only applicable in Canada, or to truly foreign countries? Broad view of Moreguard: real and substantial connection between the subject matter and the forum -> allows for more judgments Narrow view: r&s connection between defendant and forum (similar to minimum contacts test from the US) Beals v. Suldanha *Muscutt R&S test can be applied internationally - Real and substantial test APPLIES TO TRULY FOREIGN JUDGMENTS (draws on modern commerce rationale) - Connection to the subject matter to the jurisdiction is appropriate (settled on a broad reading of Moreguard. - Foreign country judgments treated the same as judgments within Canada for purposes of jurisdiction for enforcement PROBLEMS: 1. No justification for adopting broad view of Morguard 2. Rules designed for interprovincial context moved to international context without appreciating differences between the two. Federalism rationale does not apply in international context, only modern commerce does. 3. Huge burden on defendant. Requires them to predict real and substantial connection, and in almost all cases it would be wise for them to defend or else there may be judgment against them 4. Opened up our defendants to liability anywhere in the world, whereas other countries are not doing the same. Canada has most liberal regime for enforcement but other countries not responding in turn. 5. Defenses remain narrow, does not reflect the fact that jurisdiction analysis was expanded. DISSENT: PARA 182-183 expectations for r&s test on the international plane. Connection must be strong enough for defendant to be expected to litigate there, if it is burdensome to defendant, need stronger connection. He is proposing here a sliding scale type of approach, gradients of real and substantial

12

6.

Inconsistency between Beals and Muscutt, Muscutt looks at unfairness in assuming jurisdiction, however, this is not majority approach in Beals, they say that fairness is dealt with in forum non conveniens.

B. FINAL JUDGMENT once youve established foreign court has jurisdiction, requirement #2 is that it is a final judgment (TEST: final and unalterable in court that pronounced it) OUR TEST, so even if foreign jurisdiction doesnt think a judgment is final, if it is final under our rules then it is final Judgment under appeal is a final judgment (because you have to go to different court to get it appealed) Default judgments also final

C. SUM CERTAIN ProSwing Facts: trademark dispute, parties enter into settlement agreement where golf company must stop selling infringing product. Proswing seeks to enforce both injunction and contempt order - In principle, no reason why non-monetary judgments should not be enforced, but on these facts, courts would not enforce these orders: Canada not in position to enforce foreign criminal laws, as to the injunction, - In order to enforce non-domestic judgment, court must proceed carefully, very wary about extending judicial assistance such that Canadian justice system is not used by Canadian litigants. Factors to consider in enforcing non-monetary order: 1. Clear and specific orders 2. Order must be limited in scope and foreign court will not change this order 3. Is enforcement the least burdensome remedy for Canadian justice system 4. Is Canadian litigant exposed to unforeseen obligations 5. Are there any third parties affected by the order 6. Will use of judicial resources be allowed for domestic litigants D. NOT A FOREIGN PUBLIC LAW - Penal: Ont. will never enforce jail sentence, fine etc - Revenue/Tax: Will not enforce other countries tax laws, dont want to be a tax collector for the world (EU v. RJR Nabisco) - Other: e.g. environmental law, antitrust law, securities, trading with the enemy, national security HOW do we know if the foreign public law exception is engaged? - look to identity of plaintiff: plaintiff will usually be a state if the foreign public law is engaged e.g (US v. X) - who is going to get the money? Exceptions: US v. Ivey - Court enforced the judgment, said foreign public law exception not engaged. - This is because not a penal judgment, not a taxation of the company (revenue laws), but rather, costs it is seeking is directly proportional to the money they expended (restitutionary action) - Public law element, but court says that this does not necessarily mean that it precludes judgment. - Does not matter that this is a public actor, just because traditionally parameters of public law, court looks to actual facts restitutionary action

13

STAGE TWO: DEFENCES (a.k.a. impeachment defences or defences to enforcement) - Is there something so inherently wrong with the judgment, that it would be wrong for court to enforce it even though it has passed the 4 criteria in stage one - Problem: Must look to merits of dispute (Goddard v. Grace says this cant be done) (1) (2) (3) (4) Fraud Natural Justice Public Policy Prior inconsistent local judgment

Fraud Extrinsic fraud = fraud that misleads court into believing that it had jurisdiction Intrinsic fraud = fraud that goes to merits of a case - Extrinsic fraud always admissible to dismiss a judgment - Intrinsic fraud sometimes admissible if fraud could not have been discovered earlier - Test from Beals: fraud going to jurisdiction can always be raised, merits 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. (potential problem: default judgments, anything could have been discoverable) - If the judgment goes to default, the same test would be applied, if it was something that you would have seen had you gone to the judgment, then you cannot raise it. (majority) - Minority Justice LeBel proposes broader view: if it was reasonable for you not to defend, then standard should be relaxed. Natural Justice - BEALS: Fair process includes, but is not limited to, (i) notice, (ii) opportunity to be heard - Minority (LeBel, broader view): Notice is adequate where defendant is given enough info to assess extent of his or her jeopardy, which includes (1) awareness of amount of damages sought. (2) awareness of procedural steps taken or not taken if those consequences would not be reasonably apparent to someone in defendants position (e.g. in Beals case, not brought to attention that there was this procedural rule to respond to amendments) (3) alerting defendants to bases on which damages are sought (in Beals case, basis was loss profits based on development, as opposed to what the Saldanhas thought: a land transaction gone awry) Public Policy - TEST: public policy connotes some fundamental principle of justice, prevalent conception of good morals, some deep-rooted tradition of the forum - we need to interpret defence of public policy very narrowly, because it involves us saying theres something repugnant from foreign jurisdictions laws. Must offend basic sense of morality (Beals) - Examples: slavery, exploitation of children Kidron v. Grean - trilogy of SCC cases that put a cap on emotional distress cases, potentially counter to public policy, however, cannot enforce part of judgment Proposal: Draft convention on jurisdiction and foreign judgments (akin to a worldwide Brussels Regulation) - Hague convention Article 33***Insofar as a judgment award is non-compensatory, it shall be recognized at least to the extent that similar or comparable damages could have been awarded in the state addressed (refers to punitive damages) Boardwalk Regency *our own policy choices =/= public policy - not every statutory regime is a manifestation of public policy - nothing inherently offensive about gambling, counter to morality (high threshold, must offend sense of morality)

14

Oakwell Engineering *need actual evidence of bias and corruption to allege public policy ALTERNATIVE APPROACHES TO ENFORCEMENT A. B. Quebec Civil Code United States Full Faith and Credit state-based (so no American test to enforcement, every state will have its own rules) American courts regard jurisdiction as proper when there is minimum contacts (jurisdiction analysis stage), the other tests similar to Canada C. Model Legislation in Canada: Uniform Enforcement of Foreign Judgments Act - codification of all the C/L rules D. Enforcement of arbitral awards - New York Convention most jurisdictions have signed on to it, recognizes and enforces arbitrartion awards with limited exceptions (found in article 5) - Article 5 (a) incapacity of either parties to enter the arbitration agreement (b) invalidity of the arbitration agreement (not of the agreement itself) (arbitrartion clause severable) (c) due process violations such as lack of proper notice, conduct of arbitration (d) award beyond scope of arbitration agreement (only ultra vires part unenforceable) (e) noncompliance with procedure (f) the award has not yet become binding or has been set aside by court of competent authority (defenses party resisting enforcement can rase) Defenses court can raise: 1. subject matter of dispute cannot be subject to arbitrartion (e.g. family law matters) 2. recognition/enforcement of award would be contrary to public policy

15

CHOICE OF LAW
Just because a certain forum can hear a case or chooses to hear a case, it does not mean that the law of that forum is applied Lex fori: law of the forum // Lex causae: applicable law (law of the case)

Step 1: characterize the issue - put it in a specific area of law Step 2: identify connecting factor - element in the facts that tells you which law should govern e.g. domicile, where contract was signed etc Step 3: apply the governing law - consider limitations (renvoi) Step One: Characterization of the Issue - As a general rule, characterization done according to lex fori (law of the forum) e.g. look to Ontario law to see what kind of dispute it is. (EXCEPTION: property) - If resist characterization, can look to foreign court for context/content (article 58) Schwebel v. Ungar *incidental questions governed by law that applies to main question Did the wife have capacity to marry this man in Canada? In order to decide, court had to decide if first divorce was valid (this is the incidental question) Step Two: The Connecting Factor: Domicile Rules: 1. Everyone has a domicile at all times in their life 2. Everybody has only ONE domicile - distinction between domicile of dependency/origin and domicile of choice - In order to establish domicile of choice, need (i) residence (fact) and (ii) intention to remain there for the foreseeable future and to make that place your home - fact and intention animo et facto Winans v. Attorney General *change of domicile is fact specific inquiry, high standard - court said very high standard for change of domicile need fixed and settled intention look to dream, friends and connections fact specific inquiry in this case. Re: Annseley *any declaration of domicile must be interpreted in light of context - test to be applied is English law, does not matter that she did not go through formalities of French, according to English law she is still domiciled in France - declaration of domicile in England was merely a response to a question to her lawyer asked (declaration must be interpreted in light of context) Osvath-Latkoczy *look to how realistic and probable intention to is - plaintiff originally from hungary, was not an Ontario domiciliary - at trial level, lawyer asked him would you return to hungary if the political situation allowed that and his reply was yes, trial court found hungary domicile - appeal court said that political situation was not going to change, look to how realistic and probable, contingency of his return was too uncertain White v. Tennant *court focusing on intention - moved from WV to Penn, wife gets sick, rest in house back in Penn, husband dies in house in WV. - Court needed to decide where he was domiciled, relevant cause under WV law, wife would get everything, under Penn law, share with sisters. Court said he was domiciled in Penn, because he had abandoned home in WV with intention to abandon old home in WV and be domiciled in Penn. - Court focusing a lot on intention, fact part almost irrelevant Domiciled children governed by s. 67 of FLA - domicile of the parent/parents/guardian they reside with

16

- otherwise, law in which minor has closest connection Step Three: Renvoi Problem: What does it mean to apply the law of a foreign jurisdiction? Apply substantive legal rules or substantive legal rules plus the rules of conflict of laws of that jurisdiction as well? General rule no renvoi in contract, but in reality drafting in contract often include choice of law provisions to the effect that it states that it will be governed by substantive law without regard to its conflict or laws/choice of laws principles. (definitively exclude possibility of renvoi, cant hurt) E.g. If Ontario is forum, issue of succession to movables, (inheritance of personal property), according to Ontario rule, governed by decedents last domicile. Assume last domicile was NY, then we would apply law of NY. But what if NY says that succession of movables if governed by NATIONALITY (which is Canadian) => SENDING BACK (instance of simple renvoi) POSSIBILITY ONE: applying NY internal law no renvoi/ applying internal law/ substantive reference civil law jurisdictions, generally no renvoi also no renvoi in contract (art. 16 of rome convention) POSSIBILITY TWO: applying NY internal law + conflict of laws single renvoi/ simple renvoi/ to look to what foreign court would have done in those circumstances, solves fiction and artificiality: why apply law of foreign court when foreign court itself would never have applied that law POSSIBILITY THREE (rare): look to internal law + conflict of laws + possibility of renvoi (looks to issue of whether NY uses renvoi as well, if they do, then issue is sent back to NY [PROBLEM: problem of infinite regression/endless oscillation]) total/double/perfect/true renvoi or foreign court principle Re: Annseley *identifies problem of renvoi, says easier to apply internal law - decided that French law applied, got to it by direct way (simple and rational solution that avoids endless oscillation) Recent Canadian cases Granot v. Hersen *Apply foreign law in a case where a foreign court would have declined jurisdiction Davies article - argues that the typical problem associated is the question why are we going to apply NY law when NY court would not apply NY law? - Also, why would we apply NY law to a case that the NY court would have never heard? doesnt make sense to apply foreign law in a case where foreign law would never have heard this case. - His solution: look at jurisdictional rules in foreign jurisdiction to see that the foreign court would have heard the case before applying their law. - This makes sense conceptually and in principle, but this adds an extra layer of abstraction: ON court deciding if NY court would have jurisdiction in this case, when the ultimate question is WHICH LAW APPLIES Vladi v. Vladi * third jurisdiction involved - NS matrimonial property legislation directs to apply law of last common habitual residence of the spouses, which was West German law. West German courts would have applied law of Iran. Court needed to decide if they would accept renvoi to Iran, or if they would simply apply internal West German law

17

Cad court refused to apply law of Iran in this case, because it offended public policy (cause if law of Iran was applied, wife would get nothing) However, NOT denying doctrine of renvoi.

LIMITATIONS ON THE APPLICATION OF THE LEX CAUSAE A. Substance v. Procedure * Matters of procedure governed by the law of the forum/lex fori, matters of substance by lex causae QUESTION: what is procedural and what is substantive? (1) Limitation period (substantive) Civil law systems regard limitation periods as substantive, because it either gives or distinguishes rights. In common law systems, it was thought that limitation periods were actually procedural (no action shall be brought/can be maintained.. language does not distinguish your right). NOW, common law also considers it as substantive: Tolofson v. Jenson *statute of limitations is substantive matter Castillo v. Castillo * claim that has been extinguished by lex causae cannot be revived (2) Parties/who has standing to bring a claim (procedural) Hal Commodities *issues of standing are procedural, governed by law of forum Phrantzes v. Argenti *nature of right sought to be enforced and nature of remedy that it could ever provide was so diff. from Greek law that they could not hear this case, no standing Bumper Developments * Hindu temple no standing to sue in England, would have standing in India. Court decided it had standing, looked to foreign court for guidance and context. Court drew analogy b/w this temple and the catholic church, akin to action by religious institution that we ought to recognize. (3) Evidence (procedural) if means to assist court in fact finding process, and is not intended to determine the findings court will make, likely procedural fixed stipulation of certain facts designed to foster specified social policies = substantive Re Cohn *is this intended to determine rights and liabilities as between the parties? If yes, substantive Somers v. Fournier *remedies Costs are procedural, because they are discretionary and indemnification device, and is mechanism by which court controls its process, also incidental to determination of rights of the parties. Pre-judgment interest is substantive, therefore governed by foreign law. Right granted to claim pre-judgment interest is codified in statute Cap on non-pecuniary general damages (no cap in NY). Ontario court held that they are procedural B. Foreign Public Law Lanne v. Estonian Cargo *court will refuse to apply foreign political law Spycatcher *court will not adjudicate claims to protect national security C. Public Policy

18

will not apply foreign law if it will be against public policy of forum Vladi v. Vladi court refuses to apply Iranian law cause it would be unfavourable to the wife. Kuwait Airlines - clear breaches of international law, we can consider this as a violation of public policy. CHOICE OF LAW IN SPECIFIC AREAS OF LAW TORT Tolofson * Para 35: truth is that system of law.. (Laforet) Read Walker Article Monestier wont talk about it Context makes difference, relationships relevant Social setting of the parties Wong v. Wei Tolofson Different theories for where tort occurred: - Place of wrong-doing (essence of the misrepresentation/wrong) - place of injury (last ingredient for you stake a claim in tort) => general consensus - but sometimes difficult to tell where injury occurred (e.g. financial loss, loss of reputation) General rule: law of country where injurious act occurred US choice of law analysis State based 2 steps: (1) do laws involved present a true or false conflict? (2) govt interest /comparative imperiment Babcock v. Jackson *look to govt interests in having law applied guest statute prevented passenger from suing the driver (to prevent collusion between passenger and driver) - abandoned lex loci, looked at government interest to having their law applied - pressing government interest since both parties are from new york, insurance company is in new york, Ontario has no interest in preventing fraud against companies in new york. Therefore, courts would apply NY law because NY govts interest in seeing its law applied was greater. Bernhard v. Harrahs Club *comparative impairment - California (forum, place of injury, residence of plaintiff) v. Nevada (place of tort, residence of defendant) law. Both have government interest. Therefore must go through process of comparative impairment, to see whos interests are impaired the most. If youre gonna solicit business from other places, must deal with consequences. Duty imposed under California also not an entirely new one to tavern owners. (3) most significant relationship test from the restatement (second) of conflicts CONTRACT General rule in determining proper law of the contract: contract is governed by law that the parties have chosen express), and if there is none, then the law that has the closest and most real connection to the contract (implied) Vitafoods v. Unus Shipping *rule for express choice of law Where law is identified expressly in the parties contract, it is generally respected by the courts provided that the intention is bona fide and legal, and provided that there is no reason for avoiding the choice on

19

grounds of public policy (bona fide and legal = mandatory rules of the forum cannot be evaded e.g. consumer legislation) Principle of Depecage: you can have certain parts of the contract governed by a certain law, and certain parts governed by different law. (can be specified or determined by the court) not common in practice, but possible in theory and has been done. Star Texas *cannot have floating proper law There was an arbitration clause saying that it could proceed in either Beijing or London (place A or place B = floating arb / floating juris clause) (floating arbitration clause meaning that its not set). Cannot take this floating arb clause and say its a choice of law clause. (Also, cannot have a floating choice of law clause, because a breach of contract is defined by law governed law cannot crystallize after the fact) Must look at the real substantial connection: => lex loci contractus: law of the place where contract was formed (historically, always determinative of proper law of contract) Nowadays, less important cause contracts are not made face to face anymore Imperial Life Assurance of Canada v. Colmenares * use of lex loci contractus rule Contract written in Spanish but based on a standard form with Ontario law. If ONt law was applied, insured could recover, but under Cuban law, could not recover. Court looked at lex loci contractus: said contract was made in Ontario because the person applying for insurance at an ont company intended to be governed by that law. If court had given effect to Cuban law, policy would have been invalidated (something court probably had in mind) Amin Rasheed Shipping v. Kuwait Insurance Co. - court looks at proper law of contract for procedural point: determine whether jurisdiction is proper in England - main issue: Lloyd standard form was a standard insurance form used by different insurance companies. In order to interpret this form, Kuwait court would have to have reference to English law. - Argument: because you have to resort to English law anyway, English law is the proper law of the contract - Look to: 1. language of the contract 2. Lloyd standard form was English, therefore English law carried some weight (standard form?) 3. payment was in English pounds (payment obligations/currency?) 4. Absence of choice of law clause: Everything about the contract was so English, was obvious (says the court) 1. of little weight (in this case, but may be imp in other cases: residence of the parties

General Refractories Co. v. Venturedyne, Ltd. *look to factors to engage in exam analysis - court looked at lex loci contractus, and found that unsure where contract was formed (depends on how offer and acceptance is defined) even though lex loci contractus applies, have some argumentation on the facts - court also looks to place of performance: machine was to be built online, other party argued repairs carried out in ontario - court quotes prof. castel: when place of contracting is same of place of performance, strong presumption that no other law applies but the law of that place (when lex loci contractus and lex loci solutionis is same place, that is law of the contract) - other factors: price (price was in US dollars, mitigated against Ont), negotiation took place in US - court determines that Illinois law was proper law of contract Lex loci solutionis most common in sale of goods, delivery

20

Lex loci validitatis - place where contract will be valid (Culmonares) factor, but not determinative (Etler v. Kertesz) Jurisdiction clauses if you have a juris clause esp. an exclusive one, then there is strong suggestion that that law governs your dispute. SUCCESSION - choice of law has been codified to a large extent - distinction between choice of law to real property and those to movable property moveables: governed by the law of deceaseds last domicile immoveables: governed by the law where property is located (lex situs) Construction of wills interpretation - governed by law of domicile of testator at the time will was made PROPERTY Immoveable vs moveable - what if you cant characterize? Characterize according to lex situs (general rule, characterize issue according to law of forum) - validity of transfer of moveables and its affect on the property rights of any person claiming interest therein are governed by the law of the country where the property is situated at the time of the transfer FAMILY LAW Validity - distinction between formal and essential validity - lex loci celebrationis (where marriage is celebrated) - basic principle = locus regit aetum: if something is valid in the place where it was celebrated/where will was made, then its valid the world over Ogdan v. Ogdan * parental consent as matter of formal validity Frew v. Reed * - 2 issues: parental consent and capacity (whether first cousins are capable of marrying each other) - parental consent is lex loci celebrationis, Washington law applied, marriage value - issue of whether first cousins can marry is of capacity, so it is an essential validity common domicile, cousins can marry so marriage was held to be valid all round Divorce Jurisdiction in matters related to divorce - s. 3.2 what happens when actions are filed in different provinces - what happens if action is filed in Ontario and another country say Jamaica? Will engage in traditional forum non conveniens analysis (Amchem) - s.22 divorce granted by a foreign country - s.22.1 ordinarily resident for at least one year to have jurisdiction - 22.3: Recognition of support orders: - 22.2 of DA: no problems within Canadian federation - foreign support orders: regulated by statute Same sex marriages: - Ont court recognizing marriage from Massachusetts: Bailey provides solution: we dont apply foreign law when public policy is violated, held that it would be discriminatory under s.15,

21

manifestation of internal policy. Counter-argument: difference of policy does not rise to level of public policy (e.g. gambling)

22