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 states…cannot 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