Tabla de contenido
1. GENERAL
PERSONAL CONNECTING FACTORS
A) DOMICILE
Natural persons
Legal persons
B) RESIDENCE
Choice of Law
2A) GENERAL
(i) General choice of law methodology
(ii) Displacement of the otherwise applicable law (exceptions)
a) Public policy
b) Overriding mandatory rules of the internal law of the forum
c) Overriding mandatory rules of another state
d) Overriding principle of proximity
iii) Renvoi
iv) Pleading and proof of foreign law
2B. VALIDITY OF MARRIAGES (Choice of Law)
Distinction between essential and formal validity
Characterisation – does the foreign issue go to the formal or essential validity of the marriage?
Characterising formal validity issues
Characterising essential validity issues
Formal Validity
Essential Validity
(v) Validity in Canada of marriages celebrated in Canada
(vi) Public policy considerations
a)Recognition of polygamous marriages : Azam v Jan (CASES)
b) Recognition of foreign same-sex unions as marriages: Hincks v. Gallardo (2014)
2C. Choice of Law (Procedures)
General rule and characterization as ‘procedural’ or ‘substantive’
Limitations of Actions – aka ‘Prescriptions’
Damages
Evidence
2D – Choice of Law – Civil liability for injurious acts or omissions
(iii) General rule: lex loci delicti
(iv) Where the injurious act and the damage occurs in different States
a)General
b)Defamation
c) Financial loss caused to investors by the professional negligence of accountants
d) Product liability
v) Exceptions to the lex loci delicti rule:
1. Common domicile/residence exception (3126.2)
2. Contract-related claims
3. Asbestos-related claims
4. Automobile accidents
(vii) Comparative to the USA
2E. Choice of Law (Contracts and Restitution)
General principles
Party autonomy:
Distinction between choice of law v choice of forum agreements
Effect of choice of invalidating law
Choice of law for wholly domestic contracts
Choice of multiple laws
Choice of non-state laws
Limits on party autonomy
(iii) Applicable law where there is no choice?
(iv) Law applicable to contract formation, capacity to contrat and contract formalities
a) Contract formation
b) Capacity to contract
c) Contract formalities
(v) Public policy and overriding mandatory rules
b)Consumer and employment contracts
c)Overriding manadatory rules of the law of the forum
d) Overriding mandatory rules of a foreign law other than the law applicable to the contract
vii) Non-contractual obligations based on unjust enrichment
3A. Adjudicatory Jurisdiction
(i) Standing to sue
Global Equity Corp. v. MKG Enterprises Corp., 1997 CanLII 4253 (BC SC)
International Association of Science and Technology for Development v. Hamza 1995 ABCA
B.Preliminary matters: bases for jurisdiction
C. Constitutional limits to jurisdiction
Van Breda
Effect of the Van Breda Decision:
1. Presence based jurisdiction
2A. Specific jurisdiction – Common law – real and substantial connection / presumptive connecting factors
Specific jurisdiction
(i) Common law (Ontario, Alberta, Manitoba, NF&L, NWT, New Brunswick, PEI)
Case law:
(ii). Specific jurisdiction – CJPTA Act (BC, SK, NS)
iii) Specific jurisdiction – Quebec Civil Code
Consent or submission/attornment
Jurisdiction in Class Actions
Lapointe Rosenstein Marchand Melançon LLP v Cassel Brocks LLP, 2016 SCC 30.
3B. Adjudicatory Jurisdiction – Forum Non Conveniens
At common law (Ontario, Alberta, Manitoba, NF&L, NWT, New Brunswick, PEI)
Quebec civil code
CJPTA (BC, NS and SK)
4. Recognition and Enforcement of Foreign decisions
Recognition of interprovincial v international contexts
A. Bases of foreign court jurisdiction for recognition purposes
(i) Common law (Ontario, Alberta, Manitoba, NF&L, NWT, PEI): Canadian and foreign State decisions
(ii) Quebec
Inter-provincial recognition/enforcement
(iii) Canadian Judgments Act
(iv) New Brunswick recognition of interprovincial judgments
Foreign State Judgments
i) SK Enforcement of Foreign Judgments Act
ii) NB Foreign Judgments Act
Additional pre-requisites to enforcement of a judgment
(i) Requirement for “finality and conclusiveness”
(ii) Does the foreign judgment need to be for a fixed sum?
Defences to enforcement of a foreign judgment
What are not defences to the enforcement of a foreign judgment?
SUMMARY PIL
1. GENERAL
PERSONAL CONNECTING FACTORS
A) DOMICILE
Natural persons
QUEBEC / COMMON LAW75.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 a person establishing his residence in another place with the intention of making it his principal establishment.
The proof of such intention results from the declarations of the person and from the circumstances of the case.
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. / The acquisition of a domicile of choice involves two factors: “1) theacquisition of residence in factin a new place and the2) intention of permanently settling there... in the sense of making that place [one’s] principal residence indefinitely.
A domicile of choice is lost whenboth the residence and the intentionwhich must exist for its acquisition are given up.
- Doctrine of reverter.
Case: Adoption: In the case of a person of full age, domicile, for the purposes of art. 75 C.C.Q.,is indeed primarily determined on the basis of residence. To determine a person’s residence, art. 77 C.C.Q. requires a consideration of where that person “ordinarily resides”. (llegir) / Case: Foote v. Foote State (domicile of choice)
Legal persons
QUEBEC / COMMON LAW307.The domicile of a legal person is at the place and address of its head office.
Applicable law:
3083.The status and capacity of a natural person are governed by the law of his domicile.
The status and capacity of a legal person are governed by the law of the State under which it is constituted, subject, with respect to its activities, to the law of the place where they are carried on.
Jurisdiction:
3148.In personal actions of a patrimonial nature, Québec authorities have jurisdiction in the following cases:
(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; / A corporation is domiciled under whose law is incorporated.
Applicable law:
The same.
Jurisdiction:
Carrying bussiness in the forum+ Direct or indirect presence even if the company’s activities are not related to the subject of the proceedings. (Chevron, CJPTA ss.7-9, NS (ss.8-10), SK (ss.6-8)
B) RESIDENCE
QUEBEC / COMMON LAW77.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. / Ordinary v. Habitual residence
Determination of ordinary residence is highly fact specific and a matter of degree; ordinary residence is in contrast to casual, intermittent, special, temporary, occasional or exceptional residence; residence is distinguished from a stay or visit; a person's ordinary residence is where she is settled-in and maintains her ordinary mode of living with its accessories, relationships and conveniences, or where she lives as one of the inhabitants as opposed to a visitor; an ordinary residence may be limited in time from the outset or it may be indefinite or unlimited; and ordinary residence is established when a person goes to a new locality with the intention of making a home there for an indefinite period.
Most common law courts understand ordinary residence to mean the place where a person resides in the ordinary course of his or her day to day life.
Case: Nafie v Badawy(ordinary residence)
Knowles v. Lindstrom (ordinary residence)
Choice of Law
2A) GENERAL
(i) General choice of law methodology
Classical approach to Choice of Law.
Choice of law principles have traditionally been expressed in rules that say that a particular type of legal issue is to be determined according to the internal law of a country with which the case has a defined connection. It is the classic approach in both civil and common law.
General rule
Rationale behind the principal is espoused in Kuwait Airways Corp [2002] 2 AC 883 by Lord Nicholls:
“The jurisprudence is founded on the recognition that in proceedings having connections with more than one country an issue brought before a court in one country may be more appropriately decided by reference to the laws of another country even though those laws are different from the law of the forum court.”
Formal validity of marriage: is governed by the law of the country in which the marriage is celebrated.
Capacity to enter into a marriage: is governed by the law of the country in which the party said to be incapable is domiciled.
Liability in tort: is governed by the law of the country in which the tort is commited.
A testamentary disposition is essentially valid if it complies with the law of the country in which the testator was domiciled when she died.
Judicial procedure are governed by the law of the forum.
CoL rule only comes into play if a party to the legal dispute:
1)pleads that an issue should be decided by a law other than that of the forum (foreign law)
2)proves, as a fact, that the outcome of the issue is differnet under the foreign law than it is under the law of the forum (lex fori).
Reference to more than one legal system is posible.
The process of applying the choice of law rule:
1)Characterize the issue:
Establish the choice of law rule: in common law systems traditionally they use they decide issue relating to personal status (marriage, legitimacy) by applying the law of the person’s domicile (permanent residence). In civil law, they apply the law of the country of which the person is a citizen (nationality).
The choice of law rule will be framed in categories like: formal validity of marriage.
2)Follow the connecting factor to a particular legal system:
It is the PIL of the forum that logically must supply the meaning of the connecting factor. Difficulty with torts (location).
3)Apply the law that you find in the country to which the connecting factor has led you
(ii) Displacement of the otherwise applicable law (exceptions)
a) Public policy
Quebec / Common Law3081.The provisions of the law of a foreign State do not apply if their application would be manifestly inconsistent with public order as understood in international relations. / Is in line with the Code. In Kuwait Airways Corp [2002] 2 AC 883, Lord Nicholls held that a court would exclude a foreign law when it would (citing Cardozo in Loucks) where it “would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.” In that case, the Iraqi government had simply stolen a number of Kuwaiti aircraft during the 1 Gulf War, and then subsequently passed a decree that divested Kuwait of ownership.
Specifically, in Kuwait Airways Corp [2002], the court held that a breach of international law “of this seriousness” could properly cause the court to not give effect to such a foreign law.
Case: Kuwait Airways Corp v. Iraqui Airways Corp.
b) Overriding mandatory rules of the internal law of the forum
Public policy can operate in a positive fashion: override the usual operation of a State’s choice of law rules if a provision of internal law is interpreted as intended to apply despite the presence of foreign connections.
Quebec / Common Law3076.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.
Exemple: contractual cases where quebec policy favours the protection of systematically weaker parties. (Consumer protection, employment and insurance, art. 3117-3119). Quebec Securities Act. / It is also recognized.
Properties v First City Developmnet Corp: It is against public policy to enforce a contract made in clear contravention of the B.C legislation. A person solicitng agreement s for the sale of land in BC, whether the land is in or outside, must comply with the BC Act if he wishes the agreement to be enforceable in the province.
Blom: strict public policy means that the foreign rule is rejected, there is a judgment on that rule. A rule of inmediate applications falls to be applied, the domestic rule is applied just because it has to be.
c) Overriding mandatory rules of another state
Quebec / Common Law3079.Where legitimate and manifestly preponderant interests so require, effect may be given to a mandatory provision of the law of another State 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.
Ex: displacement in contract cases to the mandatory provisions of the law of the place of performance. It hasn’t been sucessfully invoked. / Foster v. Driscoll (denying enforcement of a contract for the import of alcohol into the US during that country’s prohibition era).
The common law rule is used in cases to give overriding effect to a provision of foreign law rendering performance of the relevant contract illegal even though the otherwise applicable law did not contain a similar prohibition.
d) Overriding principle of proximity
Quebec / Common Law3082.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 State. This provision does not apply where the law is designated in a juridical act.
Exception: for contracts. / Has never endorsed the proximity principle as a general corrective mechanism.
iii) Renvoi
Quebec / Common LawRejection in Quebec:
3080.Where, under the provisions of this Book, the law of a foreign State applies, the law in question is the internal law of that State, but not its rules governing conflict of laws. /
- It is disfavoured in contractual obligations.
- It is still used in matters of personal status or sucession or more generally if not always transaprently, as an escape device from an overly rigid choice of law rule.
iv) Pleading and proof of foreign law
Quebec / Common LawForeign law is treated as a fact. A Canadian court (QC or CL) will not apply foreign law on its own initative.
Exception: Supreme Court. It may take judicial notice of the laws of all Canada even if its no proved in evidence in those proceedings.
2809.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. / The same as in Quebec. Foreign law is treated as a fact. A Canadian court (QC or CL) will not apply foreign law on its own initative.
Foreign law must be proved and pleaded.
Case in the SCC: Pettkus v. Becker ( p558 del llibre)
“The SCC follows the rule drawn by the House of Lords in the case of Cooper v. Cooper and takes judicial notice of the statuatory or other laws prevailing in every province and territory in Canada even in cases where such statutes or laws may not have been proved in evidence in the courts below. “
2B. VALIDITY OF MARRIAGES (Choice of Law)
NB: When a court says it will apply foreign law. There are certain steps that should have occurred before it does so – pleadings etc should suggest that it should apply, and evidence must be adduced as to the content of that foreign law. Once this is done, the court will apply the foreign law as a fact.
Constitutional considerations: Constitution Act 1867 (Hill v. Hill, p922)
- Parliament: authority over marriafe and divorce. Exclusive right to legislate as to who should or should not be capable of marrying.
- Provinces: solemnization of marriage. What the individual rights of the parties be within the province after the marriage.
Distinction between essential and formal validity
There is a distinction between the law that is applicable to the formal validity of a marriage and the essential validity of a marriage (Brook v Brook). Art. 3088 in QCL reflects the CCL position. So you have to analyse both the formal and substantive elements of a marriage.
While a marriage that is valid according to the law of the country where it was celebrated, is valid everywhere, the essential (substantial validity) of the marriage depends on the law of the country in which the parties are domiciled at the time of marriage, and in which the matrimonial residence is contemplated. So, if the substantive, essential aspects of the marriage are contrary to the law of the domicile, and it is invalid by that law, it is to be regarded as void in that country too. (Brook v Brook)Characterisation – does the foreign issue go to the formal or essential validity of the marriage?
Characterising formal validity issues
What legal requirements are considered to relate to formal or to essential?
The courts (at least in the common law jurisdictions) have been prepared to recognize forms of marriage for which there is no counterpart under either the law of the domicile of the parties or forum law or both so long as they are recognized by the law of the place of celebration – Apt v Apt(UK Privy Council). This held that marriage proxy (legal in Argentina but not UK) went to the formal validity They placed emphasis on the issue of consent here. That is, was consent really given? Here they said yes – she had signed the forms, given POA, couldn’t travel because of the war.
NB: More recent jurisprudence casts doubt on the validity of proxy marriages (Kazi v Canada (Citizenship & Immigration)) – particularly with respect to immigration issues.
Ogden v Ogden is an english decision that characterized a french rule requering parental consent to marry as relating to formal validity and therefore governed by the law of the place of celebration. Nowadays, it should relate to essential validity which will be governed by the law of the domicile.
In Canada this has been applied in Solomon v Walters (p.405pitel) and in Reed v Reed.
Characterising essential validity issues
There is “general consensus” that anything going to the following elements constitutes essential validity:
Consent;
Capacity to marry;
Consanguinity;
Affinity; or
Adoption.
Formal Validity
QCL / CCLArt. 3088: A marriage will be formally valid as long as it is valid:
by the law of the place of its solemnization;
However if one of the spouses is domiciled in Quebec and is a minor then they need to get the consent of the court. / A marriage will be formally valid if it is valid in accordance with the law of the place of celebration – Berthiaume v Dastous.
Essential Validity
QCL / CCLArt. 3088: A marriage will be valid in its essentiality as long as it is valid in accordance with the law of the domicile.
Exception: applying the proximity principle, the applicable law may be displaced if it is only remotely connected to that law and more closely connected to another law (here the law of the intended domicile).Canada v Narwal (Walsh, 927)
Ex: a marriaged celebrated in another country and they come and live in Canada. / The essential validity of a marriage is governed by two interdependent tests: the dual domicile test and the intended matrimonial domicile test – Brook House of Lords.
From Brook you have to apply the dual domicile test first, namely – the essentiality of the marriage is valid if it conforms with the law of each party’s pre-marriage domicile.
However, if it appears that the parties “intended to establish their home in a certain country and … they did establish it within a reasonable time” then the law of the matrimonial home governs the essentiality of the marriage and the dual domicile test is irrelevant.
Case: Brar v Canada (walsh) and Feiner v Demkowicz (pitel) (intended matrimonial home)
Essential validity rules can be displaced by the law of the place of celebration in the case of celebration of marriages in Canada when one of the spouses is not domiciled in Canada.
Prohibited degrees of Consanguinity and Affinity (Marriage Act) (pitel, p 408)