Buried in the statute books of so many modern democracies are laws which relate to conflict of laws issues (see Legal Definition of Conflict of Laws). These capture personal injuries which occur while vacationing and contracts which are completed (acceptance) in some foreign land.

These little statutes can have a significant bite. A litigant may find that they have ignored litigation in another jurisdiction to their peril. Conflict of law rules can also enable a litigant to forum shop.

In Canada, the common law rules of conflict of laws are taken from centuries-old maxims: locus regit actum, lex locus contractus, mobilia sequuntur personam, immobilia situa, situs, lex causae, lex fori, lex loci, lex loci delicti, forum conveniens, etc. etc.

conflict of laws imageThe word "rules" seems hardly appropriate as the rules are a smorgasbord of procedural complexities and contradictions with the result often simply depending upon the whim of a particular judge in a particular case.

There could be extremely harsh results when a person living in Newfoundland, for example, was served with a Supreme Court of British Columbia statement of claim, or vice versa. These difficulties are exacerbated where the pleadings might be in a foreign language such as a claim from that Italian car rental company you rented a vehicle from last summer!

The dog's breakfast of law in Canada came to a head in 1990-1993 when two Supreme Court of Canada decisions attempted to provide clarity where none existed: first Morguard v De Savoye and then Amchen v BC (there is no point in this article in reviewing those cases and frankly, unless one enjoys finding out how hot dogs are made, the less known about common law conflict of laws chaos, the better).

These two cases were a shot across the box of lawmakers in all Canadian provinces: correct this problem or we will write the law for you. This type of admonition by Canada Supreme Court always gets the attention of the provincial legislatures. the last thing anybody wants is public law-making by nine unaccountable, very well-paid but isolated judges based in Ottawa.

In the result, the Uniform Law Conference of Canada  • ULCC was seconded and quickly proposed two laws for all provinces so that Canada could have procedures and process consistent and predictable from coast-to-coast (that is the point of a proposed uniform law).

Uniform laws never becomes law until each individual province adopts the uniform law (this is analogous to an international treaty which is law nowhere until individual states ratify the treaty). But so far, these two new statutes have proven to be somewhat popular.

The ULCC published a Uniform Court Jurisdiction and Proceedings Transfer Act in 2003. In this, they made extensive use of what the Americans had done with their Uniform Transfer of Litigation Act (“UTLA”) promulgated in 1991 by the United States National Conference of Commissioners on Uniform State Laws. The Canadian initiatives also studied and drew from parallels initiatives within the European Union (called the Lugano Convention).

The Canadian Uniform Court Jurisdiction and Proceedings Transfer Act (CJPTA) sought to remove and replace jurisdiction established by service and, instead, implement uniform statutory rules by which courts establish jurisdiction over particular proceedings.

The ULCC also proposed a companion statute, the Uniform Enforcement of Canadian Judgments Act • UECJDA, to allow the registration and subsequent enforcement of civil judgments issued by other jurisdictions (but typically excludes family law judgments form this process, governed by other laws). Circa 2012, the ULCC describes the UECJDA as follows:

"The UECJDA embodies the notion of full faith and credit in the enforcement of judgments between the provinces and territories of Canada. It involves rejection of two themes which have, in the past, characterized the machinery for enforcing such judgments.

"First it rejects the concept of reciprocity. Where the UECJDA has been adopted in province X, a litigant who has taken judgment in province Y may enforce that judgment in province X under the legislation whether or not the UECJDA has been adopted in province Y.

"Second, the Act rejects a supervisory role for the courts of a province or territory where the enforcement of an out-of-province judgment ["Canadian judgment"] is sought. The common law and the UREJA are preoccupied with the question of whether the court which gave the judgment had the jurisdiction to do so. If a Canadian judgment is flawed, because of some defect in the jurisdiction or process of the body which gave it, the approach of the UECJDA is to regard correction of the flaw as a matter to be dealt with in the place where it was made."

Both of these laws would operate within the jurisdiction of Canada's superior level courts, by whatever name they go by. For example, in British Columbia, Newfoundland, Nova Scotia and Prince Edward Island this would be the Supreme Court. In Québec, this should be the Superior Court of Québec. In many provinces (eg. New Brunswick, Manitoba, Saskatchewan and Alberta), the superior level court is known as the Court of Queen's Bench. In Ontario, it is the Superior Court of Justice.1

The two proposed uniform laws complement each other by implementing a uniform set of procedure standards for determining the jurisdiction of Canadian courts in a particular matter. It also empowers the court in any province to transfer litigation to a more appropriate forum, including foreign courts.

According to the official annotation which was published with the uniform act:

"This Act would, for the first time in common law Canada, give the substantive rules of jurisdiction an express statutory form instead of leaving them implicit in each province’s rules for service of process....

"The current (common law) rule, which (subject to arguments of forum conveniens) permits a court to take jurisdiction on the basis of the defendant’s presence alone, without any other connection between the forum and the litigation, will therefore no longer apply. This change in the existing rule is proposed not only on the ground of fairness, but also because the existing rule is of doubtful constitutional validity, since a defendant’s mere presence in a province is probably not enough to support the constitutional authority of a province to assert judicial jurisdiction over the defendant…

"Territorial competence will depend… on whether there is, substantively, a real and substantial connection between the enacting jurisdiction and the facts on which the proceeding in question is based. This provision would bring the law on jurisdiction into line with the concept of properly restrained jurisdiction that the Supreme Court of Canada, in Morguard Investments Ltd. v. De Savoye (1990), held was a precondition for the recognition and enforcement of a default judgment throughout Canada...

"The present Act, if adopted, will ensure that all judgments will satisfy the Supreme Court’s criterion of ‘properly restrained’ jurisdiction, which the court laid down as the indispensable requirement for a judgment to be entitled to recognition at common law throughout Canada."

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References for the entire article are presented at the bottom of page 2.