Housekeeping

1
Housekeeping

• November 2 Justice Iacobucci, questions about
  Baker
• return of papers
• combined classes
• Two things to cover today Private International
  Law map and the Morguard decision

2
Private International Law Introduction

• different types of rights and obligations than in
  public international law
• rights that private parties have against and
  owe against each other (i.e. not the state) when
  they are located in different territories
• two solutions agree to one set of rules or
  decide on a case by case basis
• common law in Canada is unified but some statute
  law is not civil code in Quebec
• not a globally uniform system

3
3 Parts of Private International Law

• jurisdiction territorial competence
• recognition and enforcement of judgments
• choice of law
• Common law regarding foreign judgments is
  anchored in the principle of territoriality
  sovereign states have exclusive jurisdiction in
  their own territory.

4
Jurisdiction

• rules for how a local court can decide cases with
  foreign elements
• these rules are determined by BC courts and BC
  legislature Court Jurisdiction and Proceedings
  Transfer Act (2006)
• originate with rules of court, not substantive,
  may vary significantly between jurisdictions
• territorial competence and subject matter
  competence
• section 3 territorial competence in proceedings
  brought against a person person is a plaintiff
  in another case submits to jurisdiction by
  agreement ordinarily resident real and
  substantial connection btw BC and the facts
• a court which may assume jurisdiction is not
  obligated to

5
Foreign Judgments

• a legal system can give effect to a judgment from
  elsewhere in two ways
• positive (active enforcement)
• negative (no option to relitigate)
• these rules vary greatly
• rules of jurisdiction in an international sense
  often relevant
• traditional rule only money judgments, now
  sometimes specific performance or injunction
• rise of a comity theory
• BC Enforcement of Cdn Judgments and Decrees Act

6
Choice of Law

• the question of which rules should be applied to
  a case, once a court takes jurisdiction
• not uniform
• common law rules (except Quebec), often differ by
  legal subject area
• The rules of private international law are
  grounded in the need in modern times to
  facilitate the flow of wealth, skills and people
  across state lines in a fair and orderly fashion.

7
Morguard v De Savoye 1990 SCC

• key case because it surveys the rules for
  enforcement of foreign judgments and sets out how
  these will be different within Canada
• authoritative source of rules for both versions
  of foreignness
• facts make all the difference
• Modern statescannot live in splendid isolation
  and do give effect to judgments given in other
  countries in certain circumstances.

8
Building Blocks of the Ruling

• the old rules residence in jurisdiction when
  action started submission to jurisdiction
• Symon decision of 1908 resident when action
  started has selected jurisdiction as plaintiff
  voluntarily appeared contracted to submit a
  subject of the fgn country ()
• BCCA had used a reciprocity formula

9
Concepts Integral to the Ruling

• comity the informing principle of private intl
  law, neither absolute obligation nor mere
  courtesy and good will, deference and respect
• Canadian constitutional structure intention to
  create a single country, explicitly fostering of
  economic integration, common citizenship, goal of
  stability and unity. Canadian judicial
  structure and legal ethics

10
On the matter of overruling

• treating provinces as foreign was wrong from
  the outset, not just comity but also reasons of
  justice, necessity and convenience
• already being done in other areas Mareva
  injunctions, case of divorces, legal evolution in
  EU and US, tort case with ex juris service

11
New rule

• interests of plaintiff and defendant to be
  weighed
• some limits to exercise of jurisdiction outside
  the province must remain
• real and substantial connection to be
  determinative