Conflict of Laws .net

With the courts of Canadian provinces willing to take jurisdiction over a “national” class claim, involving a plaintiff class which includes members located in other provinces, and with American courts willing to take jurisdiction over “international” classes, involving a plaintiff class which includes members located in Canada, Canadian courts are increasingly having to confront the issue of whether to recognize a foreign class action decision.  If a defendant settles a class claim brought in the United States which purports to bind class members in Canada, that defendant then will raise that settlement, as approved by judicial order, in response to subsequent class claims in Canada.  Given the value of class claims, the decision whether or not to recognize the foreign decision has significant economic repercussions. 

 Two relatively recent Canadian decisions on whether to recognize such judgments are Parsons v. McDonald’s Restaurants of Canada Ltd. (available here) and Currie v. McDonald’s Restaurants of Canada Ltd. (available here).  These decisions generally support recognition of such judgments, but they impose particular conditions relating to the process followed in the foreign court and the notice given to the people affected in Canada.  More recently, two Quebec decisions have addressed the recognition of foreign class action judgments.  See Lépine v. Société Canadienne des postes (available here; affirmed on appeal) and HSBC Bank Canada c. Hocking (lower court decision available here; appellate decision will be available on CanLII).  The latter decision has just been released, and the former decision has been appealed to the Supreme Court of Canada, so further guidance on these issues is likely forthcoming.

Some of these issues are addressed in Janet Walker, “Crossborder Class Actions: A View from Across the Border” (2003) Mich. St. L. Rev. 755; Debra Lyn Bassett, “U.S. Class Actions Go Global: Transnational Class Actions and Personal Jurisdiction” (2003) 72 Fordham L. Rev. 41; Ellen Snow, “Protecting Canadian Plaintiffs in International Class Actions: The Need for A Principled Approach in Light of Currie v. McDonald’s Restaurants of Canada Ltd.” (2005) 2 Can. Class Action Rev. 217; and Craig Jones & Angela Baxter, “Fumbling Toward Efficacy: Interjurisdictional Class Actions After Currie v. McDonald’s” (2006) 3 Can. Class Action Rev. 405.

In Vogler v. Szendroi (available here) the plaintiff, resident in Nova Scotia, was injured in a car accident in Wyoming.  Three years later he issued legal process in Nova Scotia.  This was inside the four-year Wyoming limitation period, which applied as part of the substantive law applicable to the claim (under the place of the tort rule in Tolofson v. Jensen).  However, he did not serve the defendant for another three years. 

Under Wyoming law, an action is commenced by filing process with the court (the same is true in Nova Scotia), but if service is not made within 60 days of filing, the action is not considered to have been commenced until the date of service (Nova Scotia has no similar provision). 

The issue therefore was whether the specific rule of Wyoming law focusing on the date of service was substantive, and so applied in the Nova Scotia litigation, or procedural, and so did not apply.  The lower court held that the rule was “integral” to the Wyoming limitations rule and was therefore substantive.  But the Court of Appeal reversed and characterized it as procedural.

The court’s analysis is quite lengthy - longer than necessary for this issue.  But it does contain some useful comments about the substance-procedure distinction (at paras. 17-22 and 26).  It also relies on a useful academic source on this specific issue by Professor Janet Walker (at paras. 37-39).  Ultimately the court concludes the Wyoming rule is not bound up in its limitations rule, and is rather a separate procedural rule.

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Professor Tanya Monestier of Queen’s University has published an article challenging the approach in some of the leading cases, including Muscutt v. Courcelles, to the taking of jurisdiction over defendants outside the forum: see Tanya J. Monestier, “A ‘Real and Substantial’ Mess: The Law of Jurisdiction in Canada” (2007) 33 Queen’s L.J. 179 (available to those with access to a database containing this journal).

Professor Monestier argues that “By superimposing onto the jurisdictional framework a multiplicity of considerations that are unrelated to the connection between the forum and the action, Muscutt has essentially transformed the question of whether a court can hear a case (jurisdiction simpliciter) into the question of whether a court should hear a case (forum non conveniens).”

In her conclusions Professor Monestier stresses the importance of certainty in the jurisdictional inquiry and argues, in the (in)famous language of Tolofson v. Jensen, for “order” over “fairness”.

The most recent chapter in the long-running and highly public dispute between businessman Karlheinz Schreiber and former Prime Minister of Canada Brian Mulroney involves significant conflict of laws issues.  On December 20, 2007, Justice Cullity of the Ontario Superior Court of Justice released his decision holding that Schreiber’s claim was dismissed for lack of jurisdiction.  The decision is not yet posted but should be soon on the CanLII web site (available here).

In Schreiber v. Mulroney the plaintiff sued the former Prime Minister of Canada for $300,000, alleging that Mulroney had breached an agreement to help him with certain business ventures after leaving office.  The underlying facts have raised some concerns, in part because of the way Schreiber paid Mulroney, which was in large amounts of cash.  Mulroney was served outside Ontario, in Quebec.  He moved to challenge the court’s jurisdiction or in the alternative for a stay of proceedings in favour of Quebec.

Justice Cullity held that there was no real and substantial connection between the dispute and Ontario, and as a result Ontario did not have jurisdiction.  He accordingly dismissed the action.  On the facts, it is hard to argue with this decision.  So much connected the dispute with Quebec and very little connected it to Ontario.  Justice Cullity indicated that had the court had jurisdiction, he would have stayed proceedings in favour of Quebec.

There are several points in the decision worthy of at least brief comment.  One relates to the issue of attornment.  Mulroney’s Ontario lawyer initially indicated a willingness to accept service, but on seeing the statement of claim he refused to do so because of the lack of connection between the dispute and Ontario.  Justice Cullity correctly held that this did not raise any issue of Mulroney having attorned – his lawyer did not in the end accept the service.  More problematic, though, is his obiter dictum that “as it is accepted that valid service is not by itself sufficient to establish jurisdiction, an acceptance of service should not have this effect by treating it as an attornment and, in effect, a submission to the jurisdiction” (para. 25). 

In this statement, Justice Cullity may be confusing issues of service inside the jurisdiction with those of service outside Ontario.  Valid service outside Ontario is indeed not enough for jurisdiction: the real and substantial connection must also be shown.  But this is not the case for service inside Ontario.  If the defendant is served based on presence inside the jurisdiction, either personally or through an accepting Ontario lawyer, that has traditionally been sufficient for jurisdiction and, even in the wake of Morguard, there is no further search for a real and substantial connection.  This raises no issue of attornment.  Had Mulroney’s lawyer accepted service in Ontario that should have ended the jurisdictional inquiry.  The fact that an Ontario lawyer accepts service for a defendant outside the jurisdiction does not make this any less an instance of service inside the jurisdiction.

Second, Justice Cullity states that “Where a defendant moves to set aside service on the ground that there is no real and substantial connection with Ontario, the question will be whether there is a good arguable case that the connection exists” (para. 18.2).  There is room to dispute, or maybe just dislike, this formulation.  Put this way, the test may be too easy for a plaintiff to satisfy.  The plaintiff does not have to only show a good argument that there is a real and substantial connection – the plaintiff must show such a connection does exist.  If facts relevant to the analysis of jurisdiction are in dispute, then it is generally correct to say that only a good arguable case need be shown that those facts can be established before the court can then make use of them in its analysis of the connection.  But that analysis then looks for a real and substantial connection, not a good arguable case for such a connection.  Whether there is a real and substantial connection is primarily a legal conclusion, not a factual one.

Third, Justice Cullity seems to think that the eight-factor Muscutt formulation is focused on tort claims, and that further factors need to be considered in contract claims (para. 37).  He goes on to consider the place where the contract was made, performed and breached and where any damage was sustained.  These are appropriate things to consider, but it may not be helpful to label them as additional factors to add to the eight in Muscutt.  Rather, they are relevant considerations under some of those factors (which are reasonably general).  One of these factors is the connection between the forum and the plaintiff’s claim, and another is any unfairness to the defendant in taking jurisdiction.  Each of these considerations can and should be considered as part of those factors, just as the location of where a tort occurred would be.  Adding more factors to the Muscutt framework on a case-by-case basis runs the risk of making the analysis of a real and substantial connection even more complex.

Fourth, Justice Cullity’s analysis of Rule 17.02, the heads for service out without leave, is not the most conventional.  He starts his overall analysis looking for whether there is a real and substantial connection, and only subsequently comes on to look at the heads.  While both must be satisfied in a service out case, the typically approach looks first at whether the claim fits within one or more heads, and then if it does looks for the connection.  In addition, Justice Cullity, in quite brief reasons, finds that Schreiber’s claim does not fit within the heads.  This is something of a surprise given the breadth of Rule 17.02(h), damage sustained in Ontario.  Justice Cullity finds that Schreiber was in effect seeking restitution of the $300,000, rather than damages for breach of contract (para. 70).  But this seems to adopt a very narrow meaning for the head.  Even in a claim in unjust enrichment, the plaintiff has suffered a loss and that loss can be located geographically, Schreiber being an Ontario resident.  It is hard to see how this loss is not “damage sustained”.

In the end, even if there is force to these criticisms, none of them impugn the conclusion that there was not a real and substantial connection to Ontario on the facts of this case.  But much is at stake in this litigation, and so an appeal seems a reasonable possibility.

The Supreme Court of Canada has just granted leave to appeal in Teck Cominco Metals Ltd. v. Lombard General Insurance Company of Canada (also indexed as Lloyd’s Underwriters v. Cominco Ltd.), a decision of the British Columbia Court of Appeal (available here).

In British Columbia the insurance companies each sought a declaration that they did not have to defend or indemnify Teck Cominco in respect of environmental damage claims.  Teck Cominco moved to stay those proceedings, primarily on the basis that related litigation was already underway in the State of Washington, USA.  The motion was denied and that decision was upheld on appeal, such that the British Columbia proceedings could proceed.

It is unusual for the Supreme Court of Canada to agree to hear an appeal about the most appropriate forum for the resolution of a dispute.  As is its practice, the court did not provide any reasons for its decision to grant leave.  The court may be wanting to address the role of comity in stay motion cases where there has been a prior positive assertion of jurisdiction by a foreign court. 

To what extent should a country’s traditional rules for taking jurisdiction be modified to address some of the unique elements of class actions?  This issue was recently considered by the Manitoba Court of Appeal in Ward v. Canada (Attorney General) (available here).

 In Ward the plaintiff lived in Manitoba but in the 1970s he had been stationed in New Brunswick, where, he alleged, his employer had exposed him to Agent Orange.  In one sense his claim was very much tied to Manitoba: he was there as the plaintiff, suffering damages there, and seeking to sue the Federal Crown which, by being present in every Canadian province, was present there.  But he proposed, in due course, to move to have his claim certified as a class action, with a class that could cover both residents and non-residents of Manitoba.

The Crown opposed Manitoba’s jurisdiction.  It argued that the traditional approach to jurisdiction had to be modified in class actions, and that notwithstanding its presence as a defendant in Manitoba the plaintiff should still have to show a real and substantial connection between the action and Manitoba.

The Court of Appeal did not accept this argument.  It held that the Crown’s presence was sufficient for jurisdiction.  The fact that a subsequent certification motion could lead to the action becoming a class action did not change, at this stage, the jurisdictional analysis.

This decision is particularly important for the guidance it provides on where, as a matter of jurisdiction, a class action can be started and the attempt made for certification.  In this case, the plaintiff faced significant downside costs exposure in New Brunswick if a motion for certification was unsuccessful there, whereas in Manitoba costs are only awarded against the party moving unsuccessfully for certification in limited circumstances.  This created an advantage for the plaintiff to commence putative class proceedings in Manitoba rather than in New Brunswick.

In Bad Ass Coffee Company of Hawaii Inc. v. Bad Ass Enterprises Inc., [2007] A.J. No. 1080 (Q.B.) (QL), available here, an Alberta Master was asked to recognize and enforce a Utah judgment.  The Master first analyzed the issue of whether the Utah court had jurisdiction, holding that the defendants had submitted to its jurisdiction by making arguments on the merits of the dispute.  The Master also, correctly in my view, held that in light of the submission, there was no need for the Canadian court to consider whether there was a real and substantial connection between Utah and the dispute: the submission itself was conclusive on the jurisdiction issue.

Most of the decision deals with the defendants’ argument that the Utah judgment was contrary to the public policy of Alberta, particularly that expressed in its legislation about franchise agreements.  The Alberta legislation provided, in part, that the law of Alberta applied to franchise agreements.  The agreement between the parties had been expressly governed by the law of Utah, and the court in Utah had used that law to resolve the dispute.

The Master, after a lengthy analysis, concluded that the defence of public policy must remain narrow in scope.  In doing so the Master relied on the Supreme Court of Canada’s decision in Beals v. Saldanha.  As a result, the Master concluded that the application of Utah law to the agreement, while a violation of the local Alberta statute, was not contrary to the “fundamental morality” of the forum.  Principles of international comity meant that the courts of Utah had to be given scope to apply Utah law to the contract.

Bad Ass Coffee Company of Hawaii Inc. is headquartered in Salt Lake City, Utah.  For more, follow this link.  The company’s name has to do with hard-working donkeys.

The Court of Appeal for Ontario has released Red Seal Tours Inc. v. Occidental Hotels Management B.V. (available here).  The decision is of note for three reasons.

• The court reverses the motions judge’s decision not to grant a stay of proceedings.  When these sort of conflicting decisions happen on the same facts, it can raise concerns about the way these motions prolong preliminary disputes in litigation.
• The court treats a contract that did not contain a jurisdiction clause as “part and parcel” of a series of related contracts that did contain such a clause (in favour of Aruba).  The motions judge gave no effect to the clause, but the appeal court gives it central and crucial weight.
• The court’s order is to “permanently stay” the proceedings.  For more on this language see C. Dusten and S.G.A. Pitel, “The Right Answer to Ontario’s Jurisdictional Questions: Dismiss, Stay or Set Service Aside” (2005) 30 Advocates’ Quarterly 297 at 308.  I have troubles with the concept of a permanent stay, since by its nature a stay has a temporary quality (unlike a dismissal).  I wonder if a “permanent stay” here could be seen to signal a move towards the notion of dismissing cases on the basis of forum non conveniens recently seen in the United States Supreme Court in Sinochem.

Readers of this site might be interesting in the following two articles:

Antonin I. Pribetic, “Thinking Globally, Acting Locally: Recent Trends in the Recognition and Enforcement of Foreign Judgments in Canada” in Annual Review of Civil Litigation 2006, T. Archibald and R. Echlin, eds (Toronto: Thomson-Carswell, 2007) at 141-199 (available on SSRN here).   
 
Antonin I. Pribetic, “Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? The United States of America v. Shield Development Co.” (2007) 7(1) Canadian International Lawyer 8-23, 2007 (available on SSRN here). 
 

Cambridge University Press have published a new book on Conflict of Laws in a Globalized World, edited by Eckart Gottschalk (Harvard), Ralf Michaels (Duke), Giesela Ruhl (Max Planck, Hamburg) and Jan von Hein (Max Planck, Hamburg). The book is a tribute to the late Arthur von Mehren; the contributors (see below for a full list) are all former Joseph Story Fellows, who worked with von Mehren during their year at Harvard. Here is the publisher’s blurb:

This book contains ten contributions that examine current topics in the evolving transatlantic dialogue on the conflict of laws. The first five contributions deal with the design of judgments conventions in general, the recently adopted Hague Convention on Choice of Court Agreements, problems involving negative declaratory actions in international disputes, and recent transatlantic developments relating to service of process and collective proceedings. The remaining five contributions focus on comparative and economic dimensions of party autonomy, choice of law relating to intellectual property rights, the applicable law in antitrust law litigation, international arbitration, and actions for punitive damages.

The contents:

Editor’s preface; Bibliographical note; Part I. Remembering Arthur T. von Mehren: 1. The last Euro-American legal scholar? Arthur Taylor von Mehren (1922 - 2006) Jürgen Basedow; 2. Arthur Taylor von Mehren and the Joseph Story Research Fellowship Peter L. Murray; 3. Building bridges between legal systems - the life and work of Arthur T. von Mehren Michael von Hinden; Part II. Transatlantic Litigation and Judicial Cooperation in Civil and Commercial Matters: 4. Some fundamental jurisdictional conceptions as applied in judgement conventions Ralf Michaels; 5. The Hague Convention on Choice-of-Court Agreements - was it worth the effort? Christian Thiele; 6. Lis Pendens, negative declaratory-judgement actions and the first-in-time principle Martin Gebauer; 7. Recent German jurisprudence on cooperation with the US in civil and commercial matters: a defense of sovereignty or judicial protectionism? Jan von Hein; 8. Collective litigation German style - the act on model proceedings in capital market disputes Moritz Balz and Feliz Blobel; Part III. Choice of Law in Transatlantic Relationships: 9. Party autonomy in the private international law of contracts: transatlantic convergence and economic efficiency Gisela Ruhl; 10. The law applicable to intellectual property rights: is the Lex Loci Protectionis a pertinent choice of law approach? Eckart Gottschalk; 11. The extraterritorial reach of antitrust law between legal imperialism and harmonious co-existence: the empagram judgement of the US Supreme Court from a European perpective Dietmar Baetge; 12. Mandatory elements of the Choice-of-Law Process in international arbitration - some reflections on Teubnerian and Kelsenian legal theory Matthias Weller; 13. Application of foreign law to determine punitive damages- a recent US Court contribution to Choice-of-Law evolution Oliver Furtak.

The contributors:

• Jürgen Basedow
• Peter L. Murray
• Micahel von Hinden
• Ralf Michaels
• Christian Thiele
• Martin Gebauer
• Jan von Hein
• Moritz Bälz
• Feliz Blobel
• Gisela Rühl
• Eckart Gottschalk
• Dietmar Baetge
• Matthias Weller
• Oliver Furtak

The book can be purchased from CUP (on either their main site, or the US variant.) It is priced at £45.00 (or $85.00) and will be available from October 2007. ISBN: 9780521871303.

Many thanks to Ralf Michaels for the tip-off.

In Okmyansky v. Okmyansk, 2007 ONCA 427 (available here) the court answered three questions about its jurisdiction to hear different types of family law issues.

It held that under the (federal) Divorce Act it did not have jurisdiction to hear an application for spousal support following a valid divorce in a foreign jurisdiction (in this case Russia).  The divorce had to have been a Canadian divorce for the court to be able to address support.  On this issue the court’s decision is in line with recent British Columbia authority and is contrary to recent authority from Quebec.

It held that under the (provincial) Family Law Act it equally did not have jurisdiction to hear an application for spousal support following a foreign divorce. 

It held that under the Family Law Act it did have jurisdiction to hear a claim for equalization of the family assets following a foreign divorce.  Accordingly, this claim was allowed to proceed in Ontario.

On each issue the analysis focuses mainly on statutory interpretation and the fact that under the Canadian constitution the federal government’s ability to make laws governing support (otherwise a provincial matter) is only ancillary to its exclusive ability to make laws about divorce.

Some readers of this site may be interested in the following:

 Vaughan Black, “The Hague Choice of Court Convention” (2006) 6 Canadian International Lawyer 181-195 (an account of the proposed treaty’s principal provisions and discussion of differences with existing Canadian law)

 Elizabeth Edinger, “New British Columbia Legislation: The Court Jurisdiction and Proceedings Transfer Act; The Enforcement of Canadian Judgments and Decrees Act” (2006) 39 U.B.C.L. Rev. 407-421 (review of the main provisions of two provincal statutes that codify, but also change, the law on jurisdiction and on recognition and enforcement)

Richard Frimpong Oppong, “Enforcing Foreign Non-Money Judgments: An Examination of Some Recent Developments in Canada and Beyond” (2006) 39 U.B.C.L. Rev. 257-286 (focuses on the Court of Appeal decision in Pro Swing but also advances general arguments and comparative analysis)

Janet Walker, “Castillo v. Castillo: Closing the Barn Door” (2006) 43 C.B.L.J. 487-500 (analysis of Supreme Court of Canada decision on choice of law and limitation periods)

I cannot provide links to these, but at least some should be available through various on-line subscription sites.

In Impulsora Turistica de Occidente v. Transat Tours Canada Inc. (available here) the Supreme Court of Canada has, in brief reasons, dismissed an appeal from the Quebec Court of Appeal.  Transat sued four Mexican companies in Quebec, seeking an extraterritorial injunction against them.  The companies successfully resisted the injunction and also convinced the judge at first instance to conclude both that Quebec lacked jurisdiction and that in any event Mexico was the more appropriate forum.  On appeal, now confirmed by the Supreme Court of Canada, the decision on jurisdiction was reversed.  The Quebec court had jurisdiction and no stay of proceedings was warranted.

The court held Quebec had jurisdiction even in respect of a request for purely extraterritorial relief.  The court was able to consider granting injunctive relief against defendants who were not within the province.

The court also held that Mexico was not the more appropriate forum, in part based on a jurisdiction clause in the contract between Transat and one of the four Mexican companies.

It is somewhat unusual for the Supreme Court of Canada to grant leave to hear a case and then render only brief unanimous reasons adopting the reasoning of the court below.

Since Transat did not appeal the initial denial of its motion for an injunction, its success on appeal resulted in the case being returned to the Superior Court for possible further proceedings.

In Lloyd’s Underwriters v. Cominco Ltd. (available here) the British Columbia Court of Appeal refused to stay local proceedings even though parallel proceedings were underway in Washington State.  Counsel for the moving party was urging the court to treat the fact of parallel proceedings as virtually conclusive on the issue of forum non conveniens.  But the court was having none of that, correctly noting that nothing in the leading cases required such a high degree of deference to the forum where litigation was first started.  Parallel proceedings were simply one of the factors to be weighed in the stay analysis.

The moving party had argued that it would be violative of comity for the court not to defer to the earlier proceedings in Washington State.  The court correctly resisted this argument, noting that even with regard for comity between countries it remained open for jurisdictions to differ as to the most appropriate forum for the litigation and thus to each allow their own local action to proceed.

 The decision is also interesting for its treatment of the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28.  This statute codifies much of what was formerly left to the common law in British Columbia, and it does make some substantive changes.  There was thus some question as to whether the new statutory provisions had changed the analysis on an application for a stay of proceedings.  The court concluded that “with respect to forum conveniens, … the Act seems intended to codify, rather than effect substantive changes to, the previous law”.  The court went on to apply the orthodox principles from Spiliada and Amchem in a reasonably straightforward manner.

See Mueller v. Resort Investors International, ULC, [2006] O.J. No. 4952 (S.C.J.) (available here) for a straightforward rejection of the defendant's challenge to the jurisdiction of the Ontario court on the basis that the defendant served and filed both a notice of intent to defend and a statement of defence.  The motions judge held there was no need to consider whether there was a "real and substantial connection" to Ontario; the defendant had attorned.

This should seem quite orthodox, for it is.  But there have been several recent Ontario decisions threatening to upset that orthodoxy as part of the impact of Morguard.  In my view, expressed in “Lost in Transition: Answering the Questions Raised by the Supreme Court of Canada’s New Approach to Jurisdiction” (2006) 85 Can. Bar Rev. 61 (with C. Dusten of the Faskens firm in Toronto), Morguard and subsequent decisions of the Supreme Court of Canada have not displaced this traditional basis for jurisdiction.  Cases like Shekhdar v. K & M Engineering and Consulting Corp. (2004), 71 O.R. (3d) 475 (S.C.J.), Deakin v. Canadian Hockey Enterprises (2005), 7 C.P.C. (6th) 295 (Ont. S.C.J.) and R.M. Maromi Investments Ltd. v. Hasco Inc. (2004), 73 O.R. (3d) 298 (S.C.J.) cannot be correct on this point.

In Sugar v. Megawheels Technologies Inc (available here) a judge of the Ontario Superior Court of Justice has analysed the role of a non-exclusive jurisdiction agreement in favour of a foreign forum on a motion to stay proceedings in the domestic forum.  The judge ends up giving the agreement relatively little weight, in part in reliance on the approach of the English Court of Appeal in the Ace Insurance decision (see para. 28), and the stay is refused.

Is this decision open to question?  It would seem at least some English cases have relied on a non-exclusive jurisdiction agreement to stay proceedings under a forum non conveniens analysis, at least where the other connections were spread relatively evenly across the jurisdictions.  The Ontario judge thought the approach adopted was essential to preserve the distinction between exclusive and non-exclusive jurisdiction clauses, but arguably that distinction can and has been maintained at common law without giving so little weight to a non-exclusive jurisdiction clause on a motion to stay.

In Molson Coors Brewing Co. v. Miller Brewing Co. (available here) the Ontario Superior Court of Justice stayed proceedings between two North American beer titans in favour of parallel litigation underway in Wisconsin.   The dispute concerned a licence agreement that did not contain an express jurisdiction clause but that was expressly governed by Ontario law.  The proceedings in Wisconsin were commenced first, but only three months earlier than the Ontario litigation.  The Wisconsin court had refused to grant a motion by Molson to stay its proceedings, leading Miller to then seek to stay the Ontario proceedings.

The most interesting part of the decision addresses the role parallel proceedings should be accorded in the forum non conveniens analysis.  The court states that the existence of parallel proceedings should not trump all other factors.  But it goes on to note that "absent concerns of injustice to the individual parties, a court may rightly elevate the factors of international comity, judicial efficiency, distribution of resources, and the avoidance of inconsistent results when performing the forum non conveniens analysis."

The court also offers some interesting observations about the relationship between Canada and the United States of America.  One such observation is that "A court system that permits or encourages the commencement and continuation of parallel proceedings as a litigation strategy works against the achievement of a more seemless continental economy and sensible approach to dispute resolution."

As part of LexisNexis Canada's new resource collection, Halsbury's Laws of Canada, Janet Walker of Osgoode Hall Law School has authored the volume on Conflict of Laws.  Professor Walker is the author of Castel & Walker, Canadian Conflict of Laws, 6th edition, from the same publisher, which is Canada's leading text in the field.  This new work features enhanced finding aids, a glossary of key terms, and listings of relevant secondary sources for further research.  More information available here from the publisher.

Call for Papers DEADLINE NOTICE

for the Journal of Private International Law Conference 2007

to be held at the University of Birmingham on 26th -27th June 2007

The deadline for submission of an abstract of a proposed conference paper is 20^th December 2006, at which time all submitted abstracts will be considered by the editors. Vacancies for speaking at the conference can not be guaranteed after the deadline.

Please see here for details on submitting an abstract.

There is an article in the new issue of the International & Comparative Law Quarterly (October 2006; Vol. 55, No. 4) by Reid Mortenson (TC Beirne School of Law, University of Queensland) on "Homing Devices in Choice of Tort Law: Australian, British and Canadian Approaches". The abstract reads:

Since 1994, Canada, the United Kingdom and Australia have adopted new choice of law rules for cross-border torts that, in different ways, centre on the application of the law of the place where the tort occurred (the lex loci delicti). All three countries abandoned some species of the rule in Phillips v Eyre, which required some reference to the law of the forum (the lex fori) as well as the lex loci delicti. However, predictions were made that, where possible, courts in these countries would continue to show a strong inclination to apply the lex fori in cross-border tort cases—and would use a range of homing devices to do so. A comprehensive survey and analysis of the cases that have been decided under the Australian, British and Canadian lex loci delicti regimes suggests that courts in these countries do betray a homing instinct, but one that has actually been tightly restrained by appeal courts. Where application of the lex fori was formally allowed by use of a ‘flexible exception’ in Canada and the United Kingdom, this has been contained by courts of first appeal. Indeed, only the continuing characterization of the assessment of damages as a procedural question in Canada and the United Kingdom, seems to remain as a significant homing device for courts in these countries.

For those with online access to the ICLQ, the full article can be downloaded from here.

There is also a shorter article by Richard Frimpong Oppong (PhD candidate, University of British Columbia) in the latest issue of the ICLQ on "Private International Law and the African Economic Community: A Plea for Greater Attention". The full article, again for those with a subscription, can be found here.

On November 17, 2006, the Supreme Court of Canada released its decision in Pro Swing Inc. v. Elta Golf Inc. (available here).  It had been eleven months since the court reserved its decision.  At issue was whether the Ontario court should recognize and enforce a consent decree and a contempt order made by the United States District Court for the Northern District of Ohio (Eastern Division).  At first instance the Ontario Superior Court of Justice had enforced the decree and order, but on appeal the Court of Appeal for Ontario had refused to do so.

The central issue in the case was whether the Canadian common law rule requiring a foreign decision to be for a fixed sum of money before it could be enforced would evolve to encompass non-monetary orders.  On this issue all seven justices agreed that the time had come to change the rule so that non-monetary orders could be enforced.

However, the court divided 4-3 on whether this particular decree and order should be enforced, with a majority affirming the Court of Appeal for Ontario's negative answer.  Justice Deschamps set out several reasons for the refusal, including that: (a) the contempt order was quasi-criminal in nature and so violated the rule on not enforcing foreign penal law; (b) the wording of the consent order was unclear; and (c) other judicial assistance mechanisms (particularly letters rogatory) were a more appropriate way of assisting the Ohio proceedings.

The dissent would have restored the first-instance decision and allowed enforcement. Chief Justice McLachlin held that civil contempt orders were not penal in nature and that the wording of the consent order was sufficiently clear.

The court refers to several issues which are left unresolved. What test will apply to whether a particular foreign non-monetary order is enforceable? Will new or expanded defences to enforcement be necessary to address the greater complexity involved in equitable orders? Does the requirement that the order be final require reconsideration outside the traditional scope of monetary orders? These issues will need to be worked out in subsequent cases.

The courts of Ontario have taken another step forward in the recognition and enforcement of foreign non-monetary orders.  In Re Grace Canada Inc. (available here) the Superior Court of Justice recognized a Manitoba order which had allowed a law firm to act in a particular matter by finding it was not in a conflict of interest.  Grace Canada Inc. had opposed recognition on the basis that the Manitoba order was non-monetary.  The Superior Court of Justice relied on two earlier recent Court of Appeal for Ontario decisions supporting the recognition of non-monetary orders: Re Cavell Insurance Co. (available here) and Pro-Swing v. ELTA Golf Inc. (available here).  An appeal of the latter decision was heard by the Supreme Court of Canada in December 2005 and a decision is eagerly awaited.

With the official launch reception only a couple of weeks away, the latest edition of the one of the world's foremost authorities on private international law is now available for purchase. First published in 1896, Dicey, Morris & Collins, The Conflict of Laws is in its 14th edition. The editors of this seminal work are:

• General Editor: The Hon Mr Justice Lawrence Collins
• Editor: Professor C G J Morse
• Editor: Professor David McClean
• Editor: Professor Adrian Briggs
• Editor: Professor Jonathan Harris
• Editor: Professor Campbell McLachlan

Most will, of course, notice the change in authorship; Sir Lawrence Collins has been elevated to co-author status, to reflect the work and scholarship he has invested in the book since he took over as General Editor in 1987. The publishers, Sweet & Maxwell, describe the latest edition thus:

Dicey, Morris & Collins on the Conflict of Laws is renowned worldwide as the foremost authority on private international law. It explains the rules, principles and practice which determine how the law of England and Wales relates to other legal systems. Explanation of each rule is followed by comment, and illustration by detailed reference to case law, ensuring it remains an in-depth but accessible research tool.
It provides definitive reference for all practitioners concerned with issues such as contracts made or performed in other jurisdictions or with foreign parties, property situated overseas, disputes relating to torts committed abroad or committed by foreign parties, and personal and family matters involving people in other jurisdictions.

• Completely revised and updated to include analysis of all the key legislation and cases since the last edition
• Deals with the impact of the Civil Procedure Rules on private international law
• Includes analysis of judicial decisions from common law jurisdictions as well as detailed consideration of international conventions and EU materials
• Supplemented annually to stay up to date with developments in legislation and case law

ISBN: 042188360X / 9780421883604 (Hardback). Price: £349. Available from Amazon, Hammicks Legal, and Sweet & Maxwell.

The latest decision in the attempt by the government of British Columbia to sue several tobacco companies for damages and health care costs is British Columbia v Imperial Tobacco Canada Ltd [2006] BCJ No 2080 (CA) (available here).  The decision provides a good review of the enacting of the Tobacco Damages and Health Care Costs Recovery Act by the government and the litigation thereunder.  The British Columbia Court of Appeal rejects several jurisdictional challenges by the defendants and also rejects a motion for a stay based on forum non conveniens.  

In Re Presbytarian Church of Sudan, released September 26, 2006 (available here) the Court of Appeal for Ontario held that a letter of request from the United States District Court could not be enforced in Ontario.  Residents and former residents of Sudan sued Talisman Energy Inc, a Canadian company, in the United States for acts of genocide, torture and other human rights violations, relying on the Alien Tort Claims Act for jurisdiction.  Despite the government of Canada having formally expressed its concerns about the litigation proceeding in the United States, through a diplomatic note, the court held that the letter of request was not contrary to the public policy of Canada.  However, the court refused the request on the basis that the evidence in support - an affidavit from New York counsel - was insufficient to establish that the evidence sought was relevant, necessary and not otherwise obtainable.  The court described the affidavit as containing only "bald assertions" on these important elements of the test for giving effect to a foreign letter of request.

In Crown Resources Corp SA v National Iranian Oil Corp [2006] OJ No 3345 (CA), decided August 22, 2006, the Court of Appeal for Ontario overturned a lower court decision which had not given effect to a jurisdiction clause in favour of litigation in Iran.  The Court of Appeal confirmed that a "strong cause" had to be shown before the court could disregard such a clause, and that no such cause had been made out in this case.   Throughout its reasons, the court stresses the importance of upholding jurisdiction agreements.  The case also illustrates how related tort claims can be found to fall within the scope of the agreement.  The decision is available here.

We are pleased to announce the

Journal of Private International Law Conference 2007

to be held at the University of Birmingham

on

26th -27th June 2007

——————

Call for Papers

The editors, Professor Jonathan Harris (University of Birmingham) and Professor Paul Beaumont (University of Aberdeen), would be delighted to receive applications from scholars to present papers at the conference. There are two presentation categories:

Academic Conference Papers

The greater part of the conference will focus on academic papers in all areas of private international law. An academic paper will be expected to last for approximately 30 minutes at the conference.

To submit an abstract of the proposed paper, contact:

Jonathan Harris
Professor of International Commercial Law
School of Law
University of Birmingham
Edgbaston, Birmingham, B15 2TT, UK
Email: j.m.harris.law@bham.ac.uk

————–

Postgraduate Research Papers

The morning of 26th June will be devoted to papers given by postgraduates on their current research topic. A postgraduate research paper will be expected to last for approximately 15 - 20 minutes at the conference.

To submit an abstract of the proposed paper, contact:

Martin P. George
School of Law
University of Birmingham
Edgbaston, Birmingham, B15 2TT, UK
Email: mpg514@bham.ac.uk

————–

More information on booking and prices to follow. To register your interest in attending the conference, and receive more information via email, please contact:

conflicts-conference@contacts.bham.ac.uk

USEFUL LINKS:

The official website of the 2007 conference.

For more information on the Journal of Private International Law, and to subscribe, visit the Journal website.

The new issue of the Journal of Private International Law Volume 2, Number 1, will be published shortly. The contents are:

"Troublesome and Obscure": The Renewal of Renvoi in Australia by Reid Mortensen

The Public Policy and Mandatory Rules of Third Countries in International Contracts by Adeline Chong

Forum Non Conveniens Post-Owusu by Barry J. Rodger

European Choice of Law Rules in Divorce (Rome III): An Examination of the Possible Connecting Factors in Divorce Matters Against the Background of Private International Law Developments by Veronika Gaertner

Recognition of Foreign Relationships Under the Civil Partnership Act 2004 by Kenneth McK. Norrie

"Mind the Gap": A Practical Example of the Characterisation of Prescription/Limitation Rules by Christopher Forsyth

Drawing Inspiration? Reconsidering the Procedural Treatment of Foreign Law by Kirsty J. Hood

To view the abstracts for these articles please go here.