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

2. Especially, of course, while appeals from Canadian courts still lay to the Judicial Committee of the Privy Council in London, which was until 1949 in civil matters.

3. Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters [hereinafter cited as the Brussels Convention].

4. Convention of 19 June 1980 (in force as of April 1991). See also Tebbens, H. Duintjer, ‘Private International Law and the Single European Market: Coexistence or Cohabitation?’, in Centrum voor Buitenlands Recht en Intemanonaal Privaatrecht, Universiteit van Amsterdam, Forty Years On: The Evolution of Postwar Private International Law in Europe (1990) pp. 49–69.Google Scholar

5. I use the Canadian term to mean, genetically, a sub-unit of a federal State.

6. The parenthetical examples are hypothetical only; they certainly do not all reflect Canadian law.

7. See Müller-Freienfels, W., ‘Conflicts ofLaw and Constitutional Law’, 45 University of Chicago LR (1978) pp. 589–611.Google Scholar

8. Ait, . IV, s. 1.Google Scholar

9. Subject To any reservations permitted to individual states by the relevant conventions.

10. The British North America Act 1867 (now die Constitution Act, 1867), passed by the Imperial Parliament, originally included Ontario, Quebec, Nova Scotia and New Brunswick (s. 3). By 1873 Canada acquired the rest of its present territory except Newfoundland and Labrador, which joined in 1949.

11. Bruchési, J., A History of Canada (1950) p. 156.Google Scholar

12. For the first half-century or so Canada, though a self-governing Dominion (the word is of Canadian coinage, invented so as not to provoke die United States with the word ‘kingdom’), remained a colony over which the Parliament at Westminster retained power in Imperial matters.

13. Constitution Act 1867, s. 92(13).

14. Quebec Act 1774, s. 8.

15. Constitution Act 1867, s. 91(15).

16. Idem s. 91(21).

17. Others were navigation and shipping (s. 91(10)), bills of exchange and promissory notes (s. 91(18)), interest (s. 91(19)), patents and copyright (s. 91(22) and (23)), and, somewhat surprisingly, marriage and divorce (s. 91(26)).

18. Mem s. 91(2).

19. US constitution, Art 1, s. 8(3).

20. Hogg, P.W., Constitutional Law of Canada, 2nd edn. (1985) p. 439.Google Scholar

21. eflar, R.A., McDougal, L.L. III and Felix, R.L., American Conflicts Law, 4th edn.(1986) p.202Google Scholar. Tribe, L.H., American Constitutional Law, 2nd edn. (1988) pp. 225–227, suggests that mis independent source of Congressional power has paled into insignificance as alternative grounds for federal incursions into State junddiction have multiplied.Google Scholar

22. Commonwealth v. Tasmania (1983), 46 ALR 625 (Franklin Dam case), based on the express federal power over external affairs in s. 51 (xxix) of the Australian constitution, which has no equivalent in Canada.Google Scholar

23. A.-G. Can. v. A.-G. Ont. [1937] AC 326 (PC) (Labour Conventions case). S. 132 of the Constitution Act, 1867, gave the federal Parliament the exclusive power to implement Imperial treaties, but the possibility that Canada would make her own treaties was not provided for. The law in this respect is much criticized and the Supreme Court of Canada has hinted it is ripe for review; see Hogg, , op. cit n. 20, p. 252 n. 49, and sources cited there.Google Scholar

24. See Castel, J.-G., ‘CanadaandtheHagueConferenceonPrivatelnternanonalLaw: 1893–1967’, 45 Canadian Bar Rev. (1967) pp. 1–34.Google Scholar

25. Canada, Department of Justice, Status Chart on Canadian Activities in Private International Law (May 1991). The two to which Canada is a party are those on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (1965), and on the Civil Aspects of International Child Abduction (1980). The third is on me Law Applicable to Trusts and on Their Recognition (1985).Google Scholar

26. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958).

27. Canada, Department of Justice, op. cit. n. 25.

28. Constitution Act 1867, s. 94.

29. John A. Macdonald, who was to be Canada's first prime minister, said in debate in 1865 that ‘it was understood, as far as we could influence the future, mat the first act of the Confederate Government should be to procure an assimilation of the statutory law of all those provinces, which has, as its root and foundation, the common law of England’ (Parl, . Deb., 3rd Sess., 8th Provl Parl. of Can. (1865) (reprinted 1951) p. 41).Google Scholar

30. See Scott, F.R., ‘Section 94 of the British North America Act’, 20 Canadian Bar Rev. (1942) pp. 525–544. There is an equivalent in s. 51 (xxxvii) of die Australian constitution, which has been used, but only seldomly.Google Scholar

31. In 1867 it was expected that the general federal mandate to ‘make laws for the peace, order and good government of Canada’ (s. 91) would give Parliament a great residuary legislative power, but the judges, especially the Privy Council, kept its scope narrow whilst they enormously enhanced that of die provincial power over property and civil rights. See Kennedy, W.P.M., The Constitution of Canada, 1534–1937, 2nd edn. (1938) pp. 488–495Google Scholar. The courts do recognize a federal power to legislate on matters of ‘national importance’, derived from the ‘peace, order and good government’ power, but it is subject to stringent conditions: R. v. Crown Zellerbach Can. Ltd. [1988] 1 SCR 401.Google Scholar

32. They deal with warehousemen's hens and the reciprocal enforcement of money judgments; see Uniform Law Conference of Canada, Proceedings of the 72nd Annual Meeting (1990) p. 364.Google Scholar

33. Idem.

34. Controversies between citizens of different states: US constitution, Art. m, s. 2.

35. See die discussion of Morguard Invts. Ltd. v. De Savoye, infra nn. 87–93 and accompanying text.

36. Erie R.R. v. Tompkins, 304 US 64 (1938)Google Scholar; Klaxon Co. v. Stentor Elec. Mfg. Co., 313 US 487 (1941)Google Scholar; Day & Zimmerman Inc. v. Challoner, 423 US 3 (1975) (per curiam), rev'ng 512 F. 2d 77 (5th Cir. 1975)Google Scholar; Scoles, E.F. and Hay, P., Conflict of Laws (1982) pp. 110–123Google Scholar; Leflar, et al. , op. cit. n. 21, pp. 193–203Google Scholar. For recent arguments to widen die limited scope for federal choice of law principles, see Baxter, W.F., ‘Choice of Law and the Federal System’, 16 Stanford LR (1963) pp. 1–42Google Scholar; Chow, D.C.K., ‘Limiting Erie in a New Age of International Law: Toward a Federal Common Law of International Choice of Law’, 74 Iowa LR (1988) pp. 165–225Google Scholar; Cotter, D.G., ‘Klaxon Co. v. Stentor Hec. Mfng. Co.: Rule or Relic?’, 4 Cooley LR (1986) pp. 101–116Google Scholar; Hay, P., ‘Reflections on Conflict-of-Laws Methodology’, 32 Hastings LJ (1983) pp. 1644–1677.Google Scholar

37. In addition to its appellate jurisdiction the High Court of Australia has original jurisdiction in ‘diversity’ cases: Constitution, s. 75(iv).

38. Supra n. 8.

39. S. 118.

40. Jackson, R.H., ‘Full Faith and Credit- The lawyer's Clause of the Constitution’, 45 Columbia LR (1945) pp. 1–34, at pp. 7–8.Google Scholar

41. Mann, F.A., ‘The Doctrine of Jurisdiction in International Law’, 111 Hague Recueil (1964–I) pp. 1–162, at pp. 68–72.Google Scholar

42. Idem, pp. 23–51.

43. Reference re the Continental Shelf Offshore Newfoundland [1984] 1 SCR 86Google Scholar; Hogg, , op. cit. n. 20, pp. 265–269Google Scholar; Edinger, E., ‘Territorial Limits on Provincial Powears’, 14 Ottawa LR (1986) pp. 57–99, at pp. 58–61.Google Scholar

44. Constitution Act 1867, s. 92(13) and (14). For the drafting history, see Edinger, , loc. cit n. 43, at p. 57Google Scholar, and Sullivan, R.E., ‘Interpreting the Territorial Limitations on the Provinces’, 7 Supreme Court LR (1985) pp. 511–552, at pp. 525–529.Google Scholar

45. Infra nn. 99–119 and accompanying text.

46. Canadian Charter of Rights and Freedoms (Constitution Act 1982, Part I).

47. Other possibly relevant rights are those of equality before and under the law, and equal protection and equal benefit of the law (s. 15(1)); and the right of any citizen or permanent resident to move to, reside in and pursue the gaining of a livelihood in any province (s. 6(2)). See Lindsay, P., ‘Automobile Negligence and Conflict of Laws: The Charter Dimension’, 11 Advocates' Q. (1989) pp. 159–189, at pp. 178–182. These Charter rights are subject to ‘such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’ (s. 1).Google Scholar

48. A right of property did appear in drafts of the Charter until 1980, but it was dropped because a majority of provinces were opposed to it: Can., H.C., Debates 1980–83 (1st Sess., 32nd Plmt.), pp. 25003–25004 (29 April 1983) (Hon. M. MacGuigan, Min. of Justice). Charter protection for property rights was included in die September 1991 federal proposals for constitutional amendments, but it seemed peripheral to the proposals as a whole and at the time of writing was widely expected not to survive the negotiation that was to follow.

49. Whitbread v. Walley [1990] 3 SCR 1273Google Scholar, affng (1988), 51 DLR (4th) 509, at pp. 519–522 (BCCA)Google Scholar. It is possible to argue that although the right to invoke a civil remedy (at issue in Whitbread) may be an economic right, the obligation to submit to such a remedy is also a legal restraint on one's liberty. The United States Supreme Court has said mat restrictions on state courts' jurisdiction are a matter of an ‘individual liberty interest’: Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinée, 456 US 694, at pp. 702–703 and n. 10 (1982)Google Scholar. See also Lindsay, , loc. cit n. 47, at pp. 171–176.Google Scholar

50. Irwin Toy Ltd. v. Quebec (A.G.) [1989] 1 SCR 927.Google Scholar

51. Infra nn. 144–166 and accompanying text.

52. Castel, J.-G., Canadian Conflict of Laws, 2nd edn. (1986) p. 10 n. 17, and cases cited there.Google Scholar

53. That is, jurisdiction to adjudicate a person's rights, as distinct from jurisdiction to subject a person to compulsory process, which clearly stops at the province's borders: McGuire v. McGuire [1953] 2 DLR 394 (Ont. CA)Google Scholar; cf., Standard Const. Co. v. Wallberg (1910), 20 OLR 646 (Div. Ct).Google Scholar

54. Amendment XIV, s. 1: ‘nor shall any State deprive any person of life, liberty or property, without due process of law’. The Supreme Court has said that this clause, not considerations of federalism or state sovereignty, is the sole basis for the constitutional limits on jurisdiction of state courts: Insurance Corp. of Ireland v. Cie. des Bauxites, supra n. 49, at p. 702 n. 10Google Scholar. Others argue nevertheless that federalism and state sovereignty are constituent elements in the constitutional doctrine: Stein, A. R., ‘Styles of Argument and Interstate Federalism in the Law of Personal Jurisdiction’, 65 Texas LR (1987) pp. 689–765Google Scholar. See also Swan, J., ‘The Canadian Constitution, Federalism and the Conflict of Laws’, 63 Canadian Bar Rev. (1985) pp. 271–321, at pp. 279–281.Google Scholar

55. Hertz, M.T., ‘The Constitution and the Conflict of Laws: Approaches in Canadian and American Law’, 27 University of Toronto LJ (1977) pp. 1–68, at pp. 29–41Google Scholar; Swan, , loc. cit. n. 54, at pp. 288–296Google Scholar; Hogg, , op. cit. n. 20, pp. 278–279.Google Scholar

56. [1975] 1 SCR 393.Google Scholar

57. Idem at pp. 408–409.

58. [1990] 3 SCR 1077.Google Scholar

59. See infra nn. 85–93 and accompanying text.

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.

66. Black, V. and Swan, J., ‘New Rules for the Enforcement of Foreign Judgments: Morguard Investments Ltd. v. De Savoye’, 12 Advocates' Q. (1991) pp. 489–512, at pp. 494–498Google Scholar. See also Dupont v. Toronga Hldgs. Ltd. (1986), 49 DLR (4th) 335 (Que. SC).Google Scholar

67. See generally, American Law Institute, Restatement, Second, Conflict of Laws (1971, partly revised 1988) [cited hereafter as Restatement 2d, Conflicts], ss. 22–40; Brilmayer, L., An Introduction to Jurisdiction in the American Federal System (1986)Google Scholar; von Mehren, A.T. and Trautman, D., ‘Jurisdiction to Adjudicate: A Suggested Analysis’, 79 Harvard LR (1966) pp. 1121–1179Google Scholar; Scoles, and Hay, , op. cit. n. 36, pp. 256–341Google Scholar; Leflar, et al. , op. cit. n. 21, pp. 39–136.Google Scholar

68. Restatement 2d, Conflicts, s. 25; Leflar, et al. , op. cit. n. 21, pp. 60–74Google Scholar; Scoles, and Hay, , op. cit. n. 36, p. 215.Google Scholar

69. Pennoyer v.Neff, 95 US 714, especiallly at p. 722 (1878)Google Scholar (‘well-established principles of public law’). For cases following me Pennoyer view, see Burnham v. Calif. Super. Ct., 109 L. Ed. 2d 631 (USSC 1990), at p. 643 and the citations there.Google Scholar

70. The Supreme Court has held that due process is satisfied if the defendant is served in the state, even on a transitory visit, because personal service in the state has been held per se consistent with fair play and traditional notions of justice: Burnham v. Calif. Super. Ct., idem.

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

72. The terminology of ‘general’ and ‘specific’ jurisdiction was suggested by von Mehren, and Trautman, , loc. cit. n. 67, especially at p. 1136Google Scholar, and adopted in Helicopteros Nacionales de Colombia SA. v. Hall, 466 US 408 (1984).Google Scholar

73. Leflar, et al. , op. cit. n 21, pp. 53–56Google Scholar; Scoles, and Hay, , op. cit n. 36, pp. 268–275, 284–309Google Scholar; Restatement 2d, Conflicts, supra n. 67, ss. 29–31, 35(3).Google Scholar

74. Leflar, et al. , op. cit. n. 21, p. 56.Google Scholar

75. International Shoe, supra a 71, at p. 316Google Scholar. See Leflar, , op. cit. n. 21, pp. 97–136Google Scholar; Scoles, and Hay, , op. cit. n. 36, pp. 332–341Google Scholar; Restatement 2d, Conflicts, supra n. 67, s. 35(1), (2). For examples, see Burger King Corp. v. Rudzewicz, 471 US 462 (1985)Google Scholar (making franchise agreement with franchisor in the state); Colder v. Jones, 465 US 783 (1984)Google Scholar, and Keeton v. Hustler Magazine Inc., 465 US 770 (1984)Google Scholar (writing or publishing defamatory matter in magazine distributed in the state); and Shaffer v. Heitner, 433 US 186 (1977) (mere incorporation of firm in state held insufficient to found jurisdiction in shareholder's derivative action against non-resident director).Google Scholar

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).

77. Asahi Metal Indus. Co. v. Calif. Super. Ct., supra. n.76. See Leflar, et al. , op. cit n. 21, pp. 111–118 on minimum contacts analysis in product liability cases.Google Scholar

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

84. For a summary, see Mason, K. and Crawford, J., ‘The Cross-Vesting Scheme’, 62 ALT (1988) pp. 328–346. The federal statute is the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Oh.), No. 24, and there is parallel legislation in every state and territory.Google Scholar

85. Castel, op. cit. n. 52, ch. 14. In Quebec, as a rule, exemplification of a foreign judgment is based on whether the original court had jurisdiction according to the principles used by the Quebec courts themselves (based on domicile, the place where Die cause of action arose, or possession of property in the jurisdiction). For judgments from outside Canada a review of the merits is also possible, but not for judgments from a sister province in which the defendant was personally served: see CCP.Art. 178–180; Castel, , op.cit. n. l. pp.836–843Google Scholar; Goldstein, G. and Taipis, J., L'effetau Quebec des jugements étrangers (1991).Google Scholar

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.

103. Hertz, , loc. cit. n. 55, at pp. 32–41Google Scholar; Swan, , loc. cit. n. 54, at pp. 289–296Google Scholar; Castel, , op. cit. n. 52, pp. 10–11.Google Scholar

104. See Laskin, J. (diss.) in Interprovincial Co-Operatives, supra n. 100; cf., Moran v. Pyle, supra n.56.Google Scholar

105. Interprovincial Co-Operatives, idem at pp. 523–524 (Ritchie J.) and 500 (Laskin J. (diss.)). See also R. v. Thomas Eqpt. Ltd. [1979] 2 SCR 529Google Scholar, per Laskin C J. (diss.); Gray v. Kerslake [1958] SCR 3, at p. 18 (Locke J.).Google Scholar

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

123. Scoles, and Hay, , op. cit n. 36, pp. 100–102Google Scholar; Leflar, et al. , op. cit n. 21, p. 164. For studies of the relationship between the two, see the sources cited supra n. 71.Google Scholar

124. 449 US 302, at p. 313 (1981); see also Alaska Packers Assn. v. Industrial Accident Comm'n of Calif., 294 US 532 (1935)Google Scholar; Home Ins. Co. v. Dick, 281 US 397 (1930)Google Scholar. It is clear that a comparative weighing of state interests is not called for: Nevada v. Hall, 440 US 410 (1979)Google Scholar; cf., Baxter, , loc. cit. n.36.Google Scholar

125. Leflar, et al. , op. cit. n. 21, p. 181Google Scholar; Scoles, and Hay, , op. cit. n. 36, pp. 81–89, 101–102.Google Scholar

126. Australia has some cases, like Canada's, trying to define when a subject-matter is territorially too remote from a state for that state to pass laws on it (although the Australian constitution does not have a definition of state power that includes words like ‘in the state’). Johnson v. Commissioner of Stamp Duties [1956] AC 331 (PC)Google Scholar; Miliary. Commissioner of Stamp Duties (1932), 48 CLR 618 (Aust. HC)Google Scholar. See Hanks, P., Australian Constitutional Law, 3rd edn. (1985) p. 296.Google Scholar

127. (1988), 62 AUR 447 (Aust. HC). See Detmold, M. J., ‘Australian Law: Freedom and Identity’, 12 Sydney LR (1990) pp. 482–568Google Scholar; Apps, A., ‘Breavington v. Godleman: A New Choice of Law Rule for Torts’, 12 Sydney LR (1990) pp. 625–637Google Scholar; Gething, M., ‘Breavington v. Godleman: Where Now?’, 20 Western Australia LR (1990) pp. 607–640Google Scholar; Glenn, H.P., Comment [Breavington v. Godleman], 68 Canadian Bar Rev. (1989) pp. 586–591.Google Scholar

128. They differed on whether recovery depended on satisfying the lex fori as well, as required by the old rule in Phillips v. Eyre (1870), LR 6 QB 1 (Ex.Ch.). Two apparently thought not: Breavington, supra n. 127, at pp. 453Google Scholar(C.J., Mason), 490–492Google Scholar(J., Toohey)Google Scholar. Two thought it did: idem at pp. 468 (J., Brennan), 483 (Dawson J.).Google Scholar

129. Idem at pp. 461–462 (Wilson, and JJ., Gaudron) 472–480Google Scholar(J., Deane). The four judges who relied on private international legal grounds expressly disagreed with the constitutional argument:Google Scholaridem at pp. 454–455, 469–470, 484–485, 492–493.

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

141. Kahn-Freund, , op. cit. n. 139, pp. 13–15, who suggestsatp. 13 that the lex fori bias of English law is natural and, by international standards, not excessive.Google Scholar

142. Idem pp. 18–19. See also the comparative study of Juenger, F., “The Recognition of Money Judgments in Civil and Commercial Matters’, 36 AJCL (1988) pp. 1–40.Google Scholar

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.

144. Collins, L., ed., Dicey and Morris on the Conflict of Laws, 11th edn. (1987) pp. 288–299Google Scholar; North, P.M. and Fawcett, JJ., eds., Cheshire and North, Private International Law, 11th edn. (1987) pp. 185–193Google Scholar; Castel, , op. cit n. 52, p. 190Google Scholar; McLeod, J.G., The Conflict of Laws (1983) pp. 80–81Google Scholar. The dominance of personal service in the jurisdiction derives from the mediaeval theory, stated in Calvin's Case (1608), 7 Co. Rep. la, at p. 5b; 77E.R. 377, at p. 383Google Scholar, that a foreigner in England was within the King's protection and so owed local obedience or ligeance to the King: Colt Industries Inc. v. Sarlie [1966] 1 WLR 440, at p. 442 (QBD and CA).Google Scholar

145. Forbes v. Simmons (1914), 20 DLR 100 (Alta. SC)Google Scholar; Castel, , op. cit. n. 52, p. 190Google Scholar; McLeod, , op. cit. n. 144, pp. 80–81Google Scholar. Lately there have been doubts whether mere temporary presence is enough: Re Carrick Estates and Young (1987), 43 DLR (4th) 161 (Sask. CA).Google Scholar

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

150. St. Pierre v. South American Stores (Gath & Chaves) Ltd. [1936] 1 KB 382Google Scholar (CA), followed in Empire-Universal Films Ltd. v. Rank, [1947] OR 775 (HC).Google Scholar

151. See Edinger, E., ‘The MacShannon Test for Discretion: Defence and Definition’, 64 Canadian Bar Rev. (1986) pp. 283–308.Google Scholar

152. Castel, , op. cit. n. 52, pp. 193, 204Google Scholar; McLeod, , op. cit. n. 144, pp. 86–88, 132–134Google Scholar. Occasionally a Canadian court would describe the discretion to be exercised upon a stay of proceedings based on service in the province as forum non conveniens, suggesting a greater readiness to stay proceedings than the English ‘vexatious and oppressive’ formula, but the actual decisions are hardly distinguishable from those using the old formula: Re Wismer and Javelin Int'l Ltd. (1982), 132 DLR (3d) 156, at pp. 162–163 (Ont. HC)Google Scholar; Van Vogt v. All-Canadian Group Distributors Ltd. (1967), 60 WWR 729 (Man. QB)Google Scholar, aff'd (1967), 61 WWR 704 (Man. CA)Google Scholar; Moreno v. Norwich Union Fire Ins. Society Ltd. (1970), 16 DLR (3d) 247 (Ont HC), aff d 17 Mar. 1971 (Ont. CA) [unrep.].Google Scholar

153. Tompkins Contracting Ltd. v. Northern Clearing Enterprises Ltd. (1964), 50 WWR 246, at p. 251 (BCCA).Google Scholar

154. Castel, , op. cit. n. 52, pp. 193, 204Google Scholar; McLeod, , op. cit. n. 144, pp. 86–88, 132–134.Google Scholar

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.

162. United Oilseed Products Ltd. v. Royal Bank, [1988] 5 WWR 181 (Alta. CA)Google Scholar; First City Invts. Inc. v. Shrum, Liddle & Hebenton (1988), 26 BCLR (2d) 46 (CA)Google Scholar; Patseas v. Castelo (1988), 54 DLR (4th) 573 (BCCA)Google Scholar; Burt v. Clarkson Gordon (1989), 62 DLR (4th) 676 (Man. CA)Google Scholar; Kornberg v. Kornberg (1990), 76 DLR (4th) 379 (Man. CA), leave to appeal refused, 30 05 1991 (SCC)Google Scholar; Bonaventwe Systems Inc. v. Royal Bank of Canada (1986), 32 DLR (4th) 721 (Ont Div. Ct)Google Scholar. The Spiliada rule as to burden of proof in service ex juris cases may not apply in Canada in cases where service ex juris is authorized without leave. The courts tend to assume mat mis puts the burden on the defendant, rather than the plaintiff, to show that the local forum is inappropriate: Pindling v. National Broadcasting Corp. (1984), 14 DLR (4th) 391 (Ont. HQ)Google Scholar; Cranston v. Hull (Ville) (1983), 39 CPC 290 (NSTD)Google Scholar; Warren v. Robinson (1982), 31 CPC 305 (NSTD)Google Scholar; Oulton Agencies Inc. v. Knolloffice Inc. (1987), 48 DLR (4th) 545 (PEI CA)Google Scholar; Avenue Properties Ltd. v. First City Devt. Corp. (1986), 32 DLR (4th) 40, at p. 46 (BCCA).Google Scholar

163. Rogers v. Bank of Montreal (1984), 4 DLR (4th) 507 (BCCA)Google Scholar, leave to appeal refused, [1984] 1 SCR v; Tajico Imports Inc. v. Ladak (1985), 24 BCLR (2d) 21 (CA)Google Scholar; General Dynamics Corp. v. Veliotis (1985), 7 CPC (2d) 169 (Ont. HC).Google Scholar

164. Voth v. Manildra Flour Mills Pty. Ltd. (1990), 97 ALR 124 (Aust HQ)Google Scholar, explaining Oceanic Sun Line Special Shipping Co. v. Fay (1988), 79 ALR 9 (Aust HQ)Google Scholar; see Pryles, M., ‘Forum Non Conveniens—The Next Chapter’, 65 ALJ (1991) p. 442Google Scholar; Collins, L., ‘The High Court of Australia and Forum Conveniens: The Last Word?’, 107 LQR (1991) pp. 182–187.Google Scholar

165. In a dictum in Spiliada, supra n. 159, at pp. 476–477Google Scholar, Lord Goff suggested that where both alternative forums are in the same federal State, and thus are both recognized as proper forums by the constitution, the plaintiffs choice might have more weight. This seems to overlook the distinction between the constitutional issue, which is the minimum standards for the proper assertion of jurisdiction, and the administration of justice issue, which is where the case can best be heard. In the latter, there is no reason for favouring the plaintiff's interests over the defendant's. The Alberta Court of Appeal disagreed with Lord Goff's dictum, in United Oilseed Products, supra n. 162, at p. 190.Google Scholar

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.

175. Although it is possible to see the Metropolitan case as a harbinger of full faith and credit: Hertz, , loc. cit. n. 55, at pp. 43–51Google Scholar, now reinforced by Morguard, supra, n. 58; see Black, and Swan, , loc. cit n. 66, at pp. 495–496. In the United States the issue would certainly be analyzed in full faith and credit terms: Restatement 2d, Conflicts, supra n. 67, s. 68, comment (d).Google Scholar

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

187. Dicey, , op. cit n. 144, pp. 474–475Google Scholar; Castel, , op. cit. n. 52, pp. 252–253Google Scholar; McLeod, , op. cit a 144, pp. 616–620Google Scholar. One recent English case did allow the defence: Adams v. Cape Industries Pic. (1989), [1990] 2 WLR 657 (QBD).Google Scholar

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

191. S. 118.

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

193. Although there is some conflict of authority, the consensus is that arguments based on lack of jurisdiction, which would be available for overseas judgments, cannot be made as against judgments covered by the Service and Execution of Process Act 1901: see Australian Law Reform Commission, op. cit. n. 83, pp. 232–239, 256–257.Google Scholar

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.

197. Castel, , op. cit n. 52, pp. 153–155Google Scholar; McLeod, , op. cit. n. 144, pp. 230–231.Google Scholar

198. Castel, , op. cit n. 52, pp. 151–152Google Scholar; McLeod, , op. cit. n. 144, pp. 206–209.Google Scholar

199. Weir v. Lohr (1967), 65 DLR (2d) 717 (Man. QB)Google Scholar; Castel, J.-G. ‘Foreign Tax Claims and Judgments in Canadian Courts’, 42 Canadian Bar Rev. (1964) pp. 277–306, at pp. 297–301.Google Scholar

200. Restatement 2d, Conflicts, supra n. 67, s. 120; Leflar, et al. , op. cit. n.21, pp. 225–226Google Scholar; Scoles, and Hay, , op. cit. n. 36, pp. 948–949.Google Scholar

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

205. This curious and illogical rule dates from Machado v. Fontes [1897] 2 QB 231 (CA), which was still the law in England at die time.Google Scholar

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

208. This would bring Canadian law more or less into line wife the English restatement of the torts choice of law rule in Boys v. Chaplin [1971] AC 356 (HL)Google Scholar, which makes actionability by the lex loci delicti the general rule, subject to displacement of either that law or the lex fori to apply the law of the country which, with respect to the issue, has the most significant relationship with the occurrence and with the parties; see Dicey, , op. cit. n. 144, pp. 1373–1378.Google Scholar

209. Grimes, supra n. 206, at p. 524Google Scholar, quoting from Hancock, M., Studies in Modern Choice of Law: Torts, Insurance, Land Titles (1984) p. 183.Google Scholar

210. Prefontaine Estate v. Frizzle (1990), 65 DLR (4th) 275 (Ont CA)Google Scholar. See Swan, J., Comment [Grimes v. Cloutier, Prefontaine v Frizzle], 69 Canadian Bar Rev. (1990) pp. 538–559.Google Scholar

211. Prefontaine, idem at p. 285. The plaintiffs, bom in this case and in Grimes, hadin fact applied for and received no-fault benefits.

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

218. Cf., Nike Infomatic Systems Ltd. v.Avac Systems Ltd. (1979), 105 DLR (3d) 455 (BCSC).Google Scholar

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.