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Canadian Private International Law: An English System Transplanted Into a Federal State
Published online by Cambridge University Press: 21 May 2009
Extract
The position that private international law occupies in the Canadian constitutional framework is complex and evolving. Essentially, private international law is part of provincial law, which appears most clearly in the difference between the private international law of Quebec and that of the other provinces. But its location in the provincial sphere does not mean that provinces have unrestricted power to legislate with respect to the private international law applied in their courts. The ability to adopt rules with respect to jurisdiction, foreign judgments and choice of law are subject to increasing, albeit still vague, constitutional constraints. The Morguard case has probably set the direction for future development of the constitutional aspects of jurisdiction and foreign judgments, although it has not settled them definitively in any way. So far as choice of law is concerned the only relevant jurisprudence, which deals with when the subject matter of legislation can be said to be ‘in the province’, is highly unsatisfactory.
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References
1. Quebec private international law differs in every major field: jurisdiction, foreign judgments and choice of law. See Castel, J.-G., Droit international privé québécois (1980). When the Federal Court of Canada deals with private international law in relation to matters in federal jurisdiction, such as maritime law, the rules it applies are generally those derived from English common law.Google Scholar
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14. Quebec Act 1774, s. 8.
15. Constitution Act 1867, s. 91(15).
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60. Supra, n. 58, at p. 1102.Google Scholar
61. Idem at p. 1103.
62. Idem at p. 1107.
63. Idem at p. 1108.
64. Idem at p. 1109.
65. Idem.
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71. 326 US 310 (1945). The doctrine is subject to increasing criticism, mainly because of its elusive rationale; Leflar, et al. , op. cit. n. 21, p. 114 n. 13Google Scholar refers to the ‘ever increasing view that the International Shoe standards are unworkable’. Some recent discussions of die problems with jurisdiction are Hay, P., ‘Judicial Jurisdiction and Choice of Law: Constitutional Limitations’, 59 Univ. Colorado LR (1988) pp. 9–35Google Scholar; Peterson, C., ‘Jurisdiction and Choice of Law Revisited’, 59 Univ. Colorado LR (1988) pp. 37–65Google Scholar; Weinberg, L., ‘The Place of Trial and die Law Applied: Overhauling Constitutional Theory’, 59 Univ. Colorado LR (1988) pp. 67–104Google Scholar; Posnak, B., ‘The Court Doesn't Know its Asahi from its Wormian: A Critical View of the Constitutional Constraints on Jurisdiction and Choice of Law’, 41 Syracuse LR (1990) 875–908Google Scholar; Brilmayer, , op. cit. n. 67, pp. 22–40Google Scholar; von Mehren, A.T., ‘Adjudicatory Jurisdiction: General Theories Compared and Evaluated’, 63 Boston Univ. LR (1983) pp. 279–340Google Scholar; Zaphiriou, G.A., ‘Basis of the Conflict of Laws: Fairness and Effectiveness’, 10 George Mason Univ. LR (1988) pp. 301–326Google Scholar
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74. Leflar, et al. , op. cit. n. 21, p. 56.Google Scholar
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76. For the most recent statement, see Asahi Metal Indus. Co. v. Calif. Super. Ct., 480 US 102, at pp. 108–109 (1987)Google Scholar. For examples, see World-Wide Volkswagen Corp. v. Woodson, 444 US 286 (1980)Google Scholar (out-of-state car dealer and distributor not subject to state jursdiction, in damages action arising out of accident in state, merely because it was foreseeable the car would be taken mere); Kulko v. Calif. Super. Ct., 436 US 84 (1978)Google Scholar (out-of-state father not subject to state's jurisdiction in child maintenance action by California-resident wife just because he had permitted their daughter to go to live with her mother); Rush v. Savchuk, 444 US 320 (1980)Google Scholar (mere fact that defendant's insurance company carried on business in state did not give state court jurisdiction in personal action against non-resident defendant in respect of out-of-state accident).
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78. Sec infra nn. 162–166 and accompanying text.
79. N.S. Civ. Proc. R. 10.08(1); P.E.I.S.C.R. 10.08(1).
80. Ont. Civ. Proc. R. 17.02(f)(i), (iv). Most other provinces have similar grounds. See the rejection of ‘conceptualistic theories of the place of contracting or of performance’ in Burger King Corp. v. Rudzewicz, supra n. 75, at p. 478.Google Scholar
81. Ont. Civ. Proc. R. 17.02(h).
82. Ont. Civ. Proc. R. 17.02(o).
83. Service and Execution of Process Act 1901 (Cth.). Ex juris service is subject to the nexus requirements of s. ll(l)(a)-(f). which the Australian Law Reform Commission recommended be removed: Report No. 40: Service and Execution of Process (1987) pp. 81–85.Google Scholar
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86. For example, Court Order Enforcement Act, RSBC 1979, c.75, Part2; Reciprocal Enforcement of Judgments Act, RSO 1980, c. 432.
87. Supra n. 58. For a fuller discussion of the conflicts aspects of the decision, see infra nn. 180–189 and accompanying text.
88. Idem at p. 1100.
89. Idem at pp. 1100–1101.
90. Idem.
91. Idem at p. 1094.
92. Supra n. 47.
93. Cf., Morguard, supra n. 58, at pp. 1100–1101, where the court declined to decide that issue.Google Scholar
94. Not just money judgments, but also orders like injunctions and specific performance.
95. Restatement 2d, Conflicts, supra n. 67, ss. 92, 93. The only exception is where enforcement would involve an improper interference with important interests of the recognizing State, such as an injunction given in the original State against suit in the recognizing State (idem para. 103). Short of this, even a strong public policy of the recognizing State is no ground for refusal to recognize the judgment (para. 117).
96. S. 118.
97. S.51(xxv).
98. Service and Execution of Process Act 1901 (Cth.), Part IV; see infra rm. 191–193 and accompanying text
99. Constitution Act 1867, s. 92(13).
100. The Supreme Court has clearly said that the power to make laws on the administration of justice in the province does not confer the power to dictate the substantive law for the courts of the province on any matter, mat must come from the other enumerated heads of provincial power: Interprovincial Co-Operatives Ltd. v. The Queen, [1976] 1 SCR 477, at p. 508 (Pigeon J.).Google Scholar
101. Cf., Edinger, , loc.cit. n 43, at pp. 71–87. Often, of course, one approach will point to the same result as either or both of the others.Google Scholar
102. Infra rm. 120–125 and accompanying text.
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104. See Laskin, J. (diss.) in Interprovincial Co-Operatives, supra n. 100; cf., Moran v. Pyle, supra n.56.Google Scholar
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106. [1913] AC 283 (PC).
107. Idem at pp. 297–298. See also Credit Foncier Franco-Canadien v. Ross [1937] 3 DLR 365 (Alta. CA) (debtor relief legislation ineffective against out-of-province creditor).
108. [1936] 4 DLR 594 (Out. CA).
109. Idem at p. 619. See also Beauharnois L., H. & P. Co. v. Hydro-Electric Power Commn. [1937] 3 DLR 458 (Ont. CA).
110. [1984] 1 SCR 297.
111. See Edinger, E., Comment [Churchill Falls (Labrador) Corp. v. Attorney-General of Newfoundland], 63 Canadian Bar Rev. (1985) pp. 203–221.Google Scholar
112. Supra n. 110, at pp. 331–332.Google Scholar
113. Idem at p. 332. It seems that legislation imposing additional obligations on r, contracting party may be judged by a more liberal standard of territoriality man legislation derogating from or eliminating obligations. See R. v. Thomas Eqpt. Ltd., supra n. 105, where Alberta's creation of a statutory obligation to repurchase equipment from a dealer at the end of a distributorship agreement was held in ‘pirn and substance’ to be the regulation of business in Alberta, and so could bind any seller contracting with an Alberta dealer, even if the seller was out of province and the contract was not governed by Alberta law.
114. Supra n. 100.
115. Three of the four majority judges also held that the Act trenched on federal legislative jurisdiction over interprovincial pollution. The fourth rejected that proposition but thought the legislation was extraterritorial because it created liability for a foreign tort that was not actionable according to common law conflicts principles, assuming the pollution was licensed by the province where it occurred.
116. For example, it would appear mat in Thomas Equipment, supra n. 105, New Brunswick legislation would have been as valid as Alberta legislation in imposing obligations on the New Brunswick seller.
117. For example, in Churchill Falls, supra n. 110, it may well be that Quebec could not legislate to reduce Newfoundland's share of the power. See Edinger, , loc. cit. n. 111, at p. 219.Google Scholar
118. As in the Interprovincial Co-Operatives case; see supra n. 100.
119. For example, the bondholders' rights in Royal Bank, supra n. 106, would probably not be subject to federal regulation. Compare Edinger, , loc. cit. n. 111, at pp. 219–220, suggesting that federal power to regulate international trade, or to legislate with respect to interprovincial works and undertakings, would support federal intervention in cases like Churchill Falls.Google Scholar
120. See generally, Leflar, et al. , op. cit n. 21, pp. 163–190Google Scholar; Scoles, and Hay, , op. cit. n. 36, pp. 79–104Google Scholar; Brilmayer, , op. cit. n. 67, pp. 267–288Google Scholar
121. Scoles, and Hay, , op. cit n. 36, pp. 79–80.Google Scholar
122. Leflar, et al. , op. cit. n. 21, pp. 163–164.Google Scholar
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130. Idem at p. 472. A similar argument is made in Detmold, M.J., The Australian Commonwealth (1985) pp. 133–153.Google Scholar
131. Breavington, idem at pp. 461–462, 478–479.
132. Idem at pp. 478–479.
133. Idem at p. 470 (Brennan J.).
134. Whether state courts' choice of law is constitutionally fixed or not, mere is a question whether altering the existing solutions would be within federal competence, as Mason C.J. suggested it might be (idem at p. 455). The Australian Constitutional Commission that reported in 1988 recommended an express federal power to legislate on principles of choice of law: Final Report of the Constitutional Commission—Summary (1988) pp. 53–54. Such a solution would be a natural extension of the federal power to impose uniform solutions in areas of jurisdiction and foreign judgments.Google Scholar
135. The British system, however, is not federal, because Parliament at Westminster is sovereign over all territories and in all matters, even where, as in the Isle of Man and (until 1972) Northern Ireland, it refrains from exercising its power in local matters in deference to a local legislature.
136. MacShannon v. Rockware Glass Ltd. [1978] AC 795 (HL).Google Scholar
137. The Abidin Dover [1984] AC 398 (HL).Google Scholar
138. Judgments Extension Act 1868 (UK), 31 & 32 Vict, c. 54; now superseded by the Civil Jurisdiction and Judgments Act 1982 (UK), c. 27, ss. 18–19.
139. See Kahn-Freund, O., The Growth of Internationalism in English Private International Law (1960)Google Scholar. See also Pryles, M.C., ‘Internationalism in Australian Private International Law’, 12 Sydney LR (1990) pp. 96–131, for an Australian comparison.Google Scholar
140. The swansong of this attitude was Lord Denning MR's judgment in Baroda (Maharanee of) v. Wildenstein [1972] 2 QB 283 (CA), criticized by Reid, Lord in The Atlantic Star (1973), [1974] AC 436, at p. 453.Google Scholar
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143. Most prominently, the rules for jurisdiction in divorce and child custody were for many years a source of hardship and injustice, which in bom areas had finally to be alleviated by legislation.
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146. A corporation that carries on business in the province is, in any case, required to register as an ‘extraprovincial corporation’ and to nominate an agent for service in the jurisdiction. See, for example, Corporations Information Act, R.S.O. 1980, c. 96, s. 4, as am. by S.O. 1984, c. 3, s. 4, and S.O. 1989, c. 69, s. 3(5).
147. Common Law Procedure Act 1852 (UK), 15 & 16 Vict., c. 76, ss. 18–19.Google Scholar
148. Now RSC, Ord.ll.
149. Rule 307 of the Federal Court Rules has long been different in that it permits leave for service ex juris to be given in any type of action, primarily because of the special needs of maritime ligitation. See Antares Shipping Corp. v. The ‘Capricorn’ [1977] 2 SCR 422, at pp. 435–436.Google Scholar
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153. Tompkins Contracting Ltd. v. Northern Clearing Enterprises Ltd. (1964), 50 WWR 246, at p. 251 (BCCA).Google Scholar
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155. Alta. R.C., r. 30; a copy of the Newfoundland rules is not available to me.
156. See, e.g., B.C. S.C.R. 13(1); Ont. Civ. Proc. R. 17.02.
157. B.C. S.C.R. 13(3); Ont. Civ. Proc. R. 17.03.
158. Supra n. 79.
159. (1986), [1987] AC 460 (HL) (service ex juris). A series of House of Lords decisions led up to Spiliada: The Atlantic Star, supra n. 140 (service in Eagland); MacShannon v. Rockware Glass Ltd., supra n. 136 (service in England); Amin Rasheed Shipping Corp. v. Kuwait Ins. Co. (1983), [1984] AC 50 (service ex juris); The Abidin Dover, supra n. 137 (service in England).
160. Spiliada, supra a 159, at pp. 474–475.Google Scholar
161. Idem at pp. 480–481.
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166. Cf., Bonaventure Systems v. Royal Bank, supra n. 162.
167. [1975] 2 SCR 546.Google Scholar
168. Idem at p. 557.
169. [1985] 1 SCR 2.Google Scholar
170. Idem at p. 35.
171. See supra n. 85. Arts. 178–180 CCP are quoted in Feigetman, supra n. 169, at pp. 31–32.Google Scholar
172. Idem at pp. 32–34.
173. Idem at pp. 35–36.
174. Idem at p. 36.
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176. Supra nn. 84 and 164 and accompanying text.
177. Aits. 3–4. Ait 4 requires that in actions against non-Community domiciliaries, States make their national grounds, including the ‘exorbitant’ ones listed in Art. 3, available to plaintiffs domiciled anywhere in the Community.
178. Art. 5; actions in insurance matters and consumer contracts have special jurisdictional rules (Art. 7–15).
179. But, if actions are begun in the courts of two or more States, lis alibi pendens is; all courts except the first seised either must (if the actions are parallel) or may (if they are related) decline jurisdiction: Arts. 21–23. See Lasok, D. and Stone, P.A., Conflict of Laws in the European Community (1987) pp. 280–85.Google Scholar
180. Supra n. 58.
181. Idem at pp. 1097–1098.
182. Idem at pp. 1099–1100.
183. Idem at p. 1101.
184. Idem at pp. 1102–1103.
185. Idem at p. 1108. The court used various expressions to explain what exactly it is that the province must have a real and substantial connection with. These included the subject-matter of the action (at p. 1103), the wrongdoing (at p. 1106), the damages suffered (at p. 1108), and the defendant (at p. 1109, citing Hogg, , op. cit. n. 20, p. 278).Google Scholar
186. Meaning, in Canada, fraud established by evidence mat was unavailable when the original trial took place: Jacobs v. Beaver (1908), 17 OLR 496 (CA).Google Scholar
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188. In British Columbia it has been possible to attack default judgments (enforceable if the defendant submitted to the court's jurisdiction at some stage) on the ground of ‘manifest error’: Re Gacs and Maierovitz (1968), 68 DLR (2d) 345 (BCSC)Google Scholar; May v. Shell Co. of Hong Kong Ltd., [1981] 1 W.W.R. 193, at pp. 195–196 (BCCA). This has not been accepted in other provinces and after Morguard is extremely doubtful law.Google Scholar
189. The Supreme Court's heavy emphasis on the distinctiveness of the federal setting makes it unlikely that the Morguard rule will be extended, at least without qualification, to judgments from outside Canada, although two early cases have done just that: Clarke v. Lo Bianco (1991), 84 DLR (4th) 244 (BCSC)Google Scholar; Minkler & Kirschbaum v. Sheppard (1991), 60 BCLR (2d) 360 (SC).Google Scholar
190. Restatement 2d, Conflicts, supra n. 67, s. 98, especially comment (f); Leflar, et al. , op. cit. n. 21, pp. 249–253Google Scholar; Scoles, and Hay, , op. cit n. 36, pp. 925–927.Google Scholar
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192. Service and Execution of Process Act 1901, Part IV; see Nygh, P.E., Conflict of Laws in Australia, 4th eda (1984) pp. 115–119Google Scholar; Sykes, E.I. and Pryles, M.C., Australian Private International Law, 2nd edn. (1987) pp. 126–131.Google Scholar
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194. The recognizing court is bound by the original court's findings of jurisdictional fact: Art 28, para. 2.
195. Brussels Convention, Arts. 26–29. This rule extends to judgments against domiciliaries of a non-member State, unless the original court took jurisdiction on one of the ‘exorbitant’ grounds listed in Art. 3 and the recognizing State has agreed by treaty with the non-member State not to recognize judgments given elsewhere in the Community against that State’s domiciliaries if such jurisdiction was used: Art. 59.
196. Art.27, nos. 1–3.
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201. The Uniform Law Conference proposed an Act for the reciprocal enforcement of tax judgments in 1965, but this attracted none of the provinces and was ultimately withdrawn by the Conference in 1980. Uniform Law Conference of Canada, Proceedings of the 72nd Annual Meeting (1990) p. 361.Google Scholar
202. Automobile Insurance Act, R.S.Q. 1987, c. A–25.
203. (1870), LR 6 QB 1 (Ex. Ch.).
204. McLean v. Pettigrew [1945] SCR 62.Google Scholar
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206. As was the case in Lewis v. Leigh (1986), 26 DLR (4th) 442 (Ont. CA)Google Scholar, and (with respect to two out of four defendants) Ang v. Trach (1986), 33 DLR (4th) 90 (Ont HC).Google Scholar
207. (1989), 61 DLR (4th) 505 (Ont CA).Google Scholar
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212. As in Gagnon v. Gagnon (1991), 3 OR (3d) 38 (Ont Ct. (Gen. Div.)).Google Scholar
213. Supra n. 127.
214. Idem at pp. 453, 468–469, 484, 492.
215. Supra n. 162.
216. Real Estate Act, R.S.B.C. 1979, c. 356, s. 62.
217. Vita Food Products Inc. v. Unus Shipping Co. [1939] AC 277 (PC).Google Scholar
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219. Real Estate and Business Brokers Act, R.S.0.1980, c. 431, ss. 37–47 (applying, unlike BC's provisions, only if the subdivided land is outside Ontario).
220. Supra n. 206.
221. Quite the reverse, in a way; the British Columbia Court of Appeal was surprisingly untroubled by the implications for federalism of such an explicit attempt to use an action in British Columbia to pre-empt an action that was already under way in Ontario.