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Some Recent Important Trends in Canadian Private International Law

Published online by Cambridge University Press:  21 May 2009

J.-G. Castel
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Extract

In 1967, on the occasion of the hundredth anniversary of the Confederation, the author of this paper suggested that it was about time for Canada to join the Hague Conference on Private International Law. Such a move would show to everyone that Canada's legal horizons and objectives had become world wide. The government of the day followed this suggestion and, in 1968, Canada joined the Conference. Since that time, Canada has participated actively in its work as well as that of other international organizations devoted to the unification of law especially in the area of commercial law. It is, therefore, appropriate to examine recent trends in the field of private international law in Canada on the occasion of the hundredth anniversary of the Hague Conference and to ascertain the extent to which Canadian rules have been influenced by its conventions.

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Articles
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Netherlands International Law Review , Volume 40 , Issue 1 , May 1993 , pp. 15 - 30
Copyright
Copyright © T.M.C. Asser Press 1993

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References

1. Castel, J.-G, ‘Canada and the Hague Conference on Private International Law: 1983–1967’, 47 Can. Bar Rev. (1967) p. 1.Google Scholar

2. In 1968 Canada joined the International Institute for the Unification of Private Law. It has also participated in the work of the United Nations Commission on International Trade and of the International Civil Aviation Organization.

3. Constitution Act (1867), 30 –92Google Scholar.

4. The Convention came into force for Canada on May 1, 1989Google Scholar.

5. S.Y.T. 1972 (1st sess.), c. 3Google Scholar.

6. 1970 Proceedings of the Uniform Law Conference p. 263Google Scholar.

7. Excluded from the scope of this paper because it does not deal with private international law, is the 1973 Convention prepared by the International Institute for the Unification of Private Law providing a Uniform Law on the Form of an International Will which is now in force in most of Canada.

8. See Castel, J.-G. et al., The Canadian Law and Practice of International Trade (1991) ch. 18, at p. 483Google Scholar.

9. A Canadian was elected chairperson of the special commission in charge of drafting this convention.

10. In general see Yntema, H., ‘The Objectives of Private International Law’, 35 Can. Bar Rev. (1957) p. 721.Google ScholarAlso the Restatement of the Law Second, Conflict of Laws 2d (1971) s. 6Google Scholar.

11 See, for example. Imperial Life Assurance Co. of Canada v. Colmenares [1967] S.C.R. 443;Google Scholar the whole category of contract and not just one particular legal issue is governed by the law most substantially connected, although depegage is always possible. Castel, J.-G., Canadian Conflict of Laws, 2nd edn. (1986) s. 406, at p. 535.Google Scholar

12. See Devos v. Devos [1970] 2 O.R. 323 (CA) and s. 58 of the Family Law Act 1986, S.0.1986, c.4Google Scholar.

13. Castel, J.-G., Canadian Conflict of Laws, 2nd edn. (1986) s. 362, at p. 481.Google Scholar See also Art. 7 of the 1988 Hague Convention on the Law Applicable to Trusts that has been implemented in several provinces.

14. Castel, J.-G., Canadian Conflict of Laws, 2nd edn. (1986) s. 413, at p. 545Google Scholar.

15. Phillips v. Eyre (1870) L.R. 6 Q.B. 1, at pp. 28–29Google Scholar.

16. Castel, J.-G., Canadian Conflict of Laws, 2nd edn. (1986) s. 469 at p. 605,Google Scholar and generally see Bates, P., ‘Foreign Torts: The Canadian Choice of Law Rule’, 8 Advocate Q. (1987) p. 397Google Scholar.

17. [1945] S.C.R. 62Google Scholar.

18. [1897]2 Q.B.231(CA). Some members of the court considered that the act complained of must not be ‘innocent’ in the country where it was done and that if the act was contrary in any respect to the law of that country, though giving rise to no civil liability there, it was not ‘justifiable’ for the purpose of the second conditionGoogle Scholar.

19. [1971] A.C. 356Google Scholar.

20. This was the situation in Chaplin v. Boys, supra n. 19.

21. Lord Wilberforce in Chaplin v. Chaplin, supra n. 19, at p. 389. It is the relevant claim as between the actual parties which must be looked at, and not whether such a claim would in theory be actionable. Per Dunn, L.J. in Armagas Ltd. v. Mundogas S.A. [1986] 1 A.C. 717, at p. 753 (CA); also Goff L.J. at p. 740;Google Scholar and Breavington v. Godleman (1988) 62 AX.J.R. 447 (Australia HC)Google Scholar.

22. (1870) L.R. 6 Q.B. 1, at p. 28Google Scholar.

23. Also called the proper law of tort See Restatement of the Law Second, Conflict of Laws 2d (1971) ss. 145–146Google Scholar.

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25. (1870) L.R. 6 Q.B. 1Google Scholar.

26. (1989) 69 O.R. (2d) 641 (CA)Google Scholar.

27. R.L.Q. 1977, c. C-24, s. 83Google Scholar.

28. L.Q. 1977, c. 68, especially ss. 4 and 8Google Scholar.

29. In McLean v. Pettigrew [1945] S.C.R. 62, the accident occurred in Ontario. The plaintiff was a gratuitous passenger in the automobile driven and owned by the defendant Both parties resided in Quebec and the automobile was registered and insured in that province. If the accident had taken place in Quebec, the defendant would have been civilly liable for the plaintiff's damages whereas in Ontario at that time it was difficult to hold drivers and owners civilly liable to gratuitous passengers. As the Supreme Court found the defendant to have driven in a careless manner in breach of the Ontario Highway Traffic Act, the wrong was not justifiable under the lex loci delicti and the gratuitous passenger was able to recover her damagesGoogle Scholar.

30. (1989) 69 O.R. (2d) 641 (CA), at p. 649Google Scholar.

31. [1945] S.C.R. 62, at p. 76Google Scholar.

32. See also Gagnon v. Gagnon (1991) 3 O.R. (3d) 38Google Scholar.

33. Many other Canadian courts have expressed the view that, were it not for the decision of the Supreme Court of Canada in McLean v. Pettigrew, they would have adopted the principle of proximity either as a general principle or as an exception. Note that in England, Dicey, and Morris, , The Conflict of Laws, 11th edn. (1987), adopt the principle of proximity as an exception: rule 205(2) at pp. 1365–1366,Google Scholarwhereas the American Law Institute's Restatement of the Law, Second, Conflict of Laws 2d (1971) adopts it as a general principle: s. 145, at p. 414Google Scholar.

34. For an analysis of these rules see Castel, J.-G., Canadian Conflict of Laws, 2nd edn. (1986) ch. 11, at p. 187Google Scholar.

35. [1978] A.C. 795 (HL)Google Scholar.

36. [1987] A.C. 460 (HL)Google Scholar.

37. (1986) 32 D.L.R. (4th) 721 (Ont. DC), at pp. 729–730;Google ScholarPatseas v. Castelo (1988) 54 D.L.R. (4th) 573 (BCCA);Google ScholarAntares Shipping Corp. v. The Ship ‘Capricorn’ [1977] 2 S.C.R. 422;Google ScholarUnited Oilseed Products Ltd v. Royal Bank [1988] 5 W.W.R. 181 (Alta. CA).Google Scholar For a survey see Castel, J.-G., Canadian Conflict of Laws, 2nd edn. (1986) Ch. 13, at p. 219,Google ScholarSupplement (1990), at p. 18et.seq.Google Scholar Also Horn, J.W., Court Jurisdiction (1989) Ch. XXI, at p. 108Google Scholar.

38. For a survey see Castel, J.-G., Canadian Conflict of Laws, 2nd edn, (1986) at pp. 240–247;Google Scholar see, e.g., Emanuel et al. v. Symon [1908] 1 K.B. 302(CA);Google ScholarForbes v. Simmons (1914) 20 D.L.R. 100 (Alta. SC);Google ScholarMarshall v. Houghton [1923] 2 W.W.R. 553 (Man. CA);Google ScholarStandal's Patents Ltd. v. Lakeland Mills Ltd. (1990) 31 C.P.R. (3d) 167 (BCSC Master)Google Scholar.

39. Marcotte v. Mergson (1987) 19 B.C.L.R. (2d) 300, 24 C.P.C. (2d) 201 (Co. Ct. BC). The enforcing court should recognize and enforce a judgment from another province if the original court took jurisdiction in circumstances where, if the facts were transposed to the enforcing province, its courts would have taken jurisdictionGoogle Scholar.

40. (1991) 76 D.L.R. (4th) 256, 122 N.R. 81, [1990] 3 S.C.R. 1077Google Scholar.

41. The rule provides that:

‘Service outside of Alberta of any document by which any proceeding is commenced, or of notice thereof, may be allowed by the Court whenever:…

(g) the action is in respect of a breach committed within or out of Alberta, and irrespective of the fact, if that is the case, that the breach was preceded or accompanied by a breach committed out of Alberta that rendered impossible the performance of so much of the contract as ought to have been performed within Alberta;’

This rule is substantially similar to British Columbia Rule 13(l)(g).

42. This was done in Clarke v. Lo Bianco (1991) 59 B.C.L.R.(2d) 334 (BCSC)Google Scholar where the court went as far as to accept the existence of a real and substantial connection with California at the time the cause of action arose which was no longer present at the time when the action was begun in the California court. Also Minkler & Kirshbaum v. Sheppard (1991), 60 B.C.L.R. (2d) 360 (SC);Google ScholarFederal Deposit Insurance Corp. v. Vanstone (1992), 63 B.C.L.R. 190, 88 D.L.R. (4th) 448 (SC);Google ScholarMoses v. Shore Boat Builders (1992), 68 B.C.L.R. (2d) 394 (SC).Google Scholar

43. (1991) 76 D.L.R. (4th) 256, at p. 277Google Scholar.

44. L.Q. 1991, c. 64Google Scholar.

45. Office of Revision of the Civil Code, Report on the Quebec Civil Code (1977), Vol. I, at p. 593 et seqGoogle Scholar.

46. Art. 3082. This is based on Art. 15 of the Swiss law.

47. Arts. 3112–3113.

48. Arts 3135–3136.

49. Art. 3164.

50. Art. 3155(1). In general see Groffier, E., ‘La réforme du dorit international privé’, 52 R. du B. (1992) p. 627;Google ScholarCastel, J.G., ‘Commentaire sur certaines dispositions du Code civil du Québec se rapportant au droit international privé’, 119 Clunet (1992) p. 625Google Scholar.