Considerations - Lecture Note

Considerations Characterization—Substance and Procedure -Characterization is a question of classification, e.g. cause of action as tort or contract, issue of substance or procedure - Will come up in other sections Substance vs procedure -Consider when deciding where to litigate -Problem only arises when forum applying the law of LC -Every court employs its own procedure, therefore will refuse to apply procedural rule of another jurisdiction - If a forum chooses to apply law of foreign lex causae + rule in LC is different than that of the forum à the law must be categorized as substance or procedure to determine whether it applies to the case • Substance laws will apply and procedural law will not (forum will use its own procedure) - Asking “Which elements of the lex fori (laws of the jurisdiction in which the actions is brought) are procedural to the exclusion of the lex causae (jurisdiction whose laws were chosen to apply in this case)?” 4 possibilities: Forum Rule Characterization Procedural Substantive Substantive Procedural Lex causae Rule Characterization Procedural Substantive Procedural Substantive Rule that applies Forum rule Lex causae rule Neither rule applies Both rules apply -Need to avoid the last 2 situations à characterize them as option 1 or 2 How to define procedure/substance? - Used to use right/remedy distinction, modified by Tolofsen, changed general definition of procedural rules - Now, presumption against characterizing rule of the forum as procedure (Tolofsen) • Ask whether the court has to apply the rule of the forum to make court run smoothly, should be a question of convenience -Generally agreed rules… - Procedure—Appropriate court, form of pleading, service, notice, mode of conduct, execution of judgments • Tend to be statutory • Parties—but, can be supplemented by law of entity’s home jurisdiction (Hamza) (Bumper Dev. Corp) § If party does not have status under procedure of forum, overarching question should be whether someone will be answerable for judgmentà if so should grant them standing - Substantive—Limitation period (Tolofsen) Tolofson v Jensen Conflict between rules of forum and LC, characterizing as procedural or substantive à presumption against characterizing the rule of the forum as procedural -F: Tort action in BC // car accident in Sask with a resident, T was a passenger in the car as a child - T waited until age of majority and then sued against father driver and J (resident of Sask) - B took jurisdiction and applied BC law -A: Choice of law shouldn’t automatically be the forum à in this case tort, should’ve used lex loci delicti (where the tort occurred, Sask) - Problem—in Sask must prove gross negligence + short limitation period • If limitation period procedural à BC rule would apply - There should be a presumption against characterizing the rule of the forum as a procedural rule • Modifies right/remedy distinction • Is it procedure? Court needs to think about whether they have to apply the rule of the forum to make the court run smoothly - This case—limitation period substantive International Assn. of Science and Technology v Hamza Standing usually procedural, but can supplement with entity’s home jurisdiction if there is a problem, main concern is will someone be answerable for the judgment -F: matrimonial property dispute, IAST seeking declaration that neither had property interest in their assets - Wife tried to strike action on basis that IAST didn't have legal status to sue in AB -I: Standing, does IAST have the right to sue? -A: If standing/parties is procedural à AB law applies, IAST can’t bring action - Even if procedural, we should still look at Swiss substantive law where definition of “person” not limited to residents - Look at home rules (Swiss) + look at requirements/goals of AB (Goal = want someone to be answerable) - Support granting of status in cases where entity is recognized as juridical person by laws of its own jurisdiction • If the foreign jurisdiction recognizes an entityàcourt is satisfied that someone will be answerable for judgments/court directions/costs • If you don't have status in your own jurisdictionà court should require you to be named personally Exclusionary Rules -Forum is asked to apply (choice of law) or enforce (R&E) a foreign law (rules of lex causae) - Choice of law cases à Courts retain a residual power to not apply a law that offends public policy (Kuwait Airways v Iraq) -Canadian forum will not recognize a foreign law if… (directly or indirectly), Dicey - (1) Penal—Rule is for the enforcement of a penal law of a foreign state • Forum determines whether a rule is penal by looking at its own definition • Penal law means a proceeding (1) recoverable at instance of the state (2) by an official or (3) a member of public characterized as a common informer (Huntington v Attrill) - (2) Revenue—Rule is for the enforcement of a revenue law of a foreign state • Forum will not enforce other sovereign’s sovereign power (tax debts) • Exclusion also applies to actions that would, in effect be indirect enforcement of foreign tax law (Stringham v Dubois) - (3) Public law—Rule is for the enforcement of a public law of a foreign state • Exclusion does exist but is very narrow (US v Ivey) - (4) Public policy—It is inconsistent with forum public policy • Narrow definition of “public policy” • Concerned with fundamental values, principles of justice, ethics and morality (Lloyd’s v Meinzer) • Laws that breach international law or infringe on morality and principles of fundamental justice should not be applied (Kuwait Airways v Iraq) Huntington v Arttrill Characterization—defining “penal laws” proceedings enforced by the state, when deciding ask how forum law would characterize -F: Action in Ont for R&E of judgment from NY - NY corporate law, officers who made false material representations liable for debts, H sued A for unpaid balance of a loan alleging misrepresentation in the certificate -I: Enforcing a penal law in Canada? -A: If action is penal, won’t enforce à because another state’s penal law is considered an act of sovereignty - Penal law = proceeding for infractions against the state, ask if “penalties recoverable at • (1) Instance of the state, • (2) By an official duly authorized or • (3) Member of the public in the character of a common informer” - When deciding can look at characterization of law in its own definition (lex fori approach) • Can consider foreign characterization, but not determinative - This case—civil remedy to creditors, state cannot enforce therefore it is not penal Stringham v Dubois Revenue law, won’t allow action that is asking for indirect enforcement of a foreign tax law -F: D died domiciled in AZ, left AB farm to niece, S - Probate taxes due in US, executor tried to get order forcing her to sell farm to fulfil tax -I: Does rule against enforcing a tax claim of foreign jurisdiction apply so S can get farm in full transfer? -A: Sale for taxes is asking the forum for indirect enforcement of US tax law - Sees tax as contrary to Canadian policy— • To win D would need to point to some AB law which mandates that the administrator pays the US tax - Indirect enforcement of taxation, because effect is to enrich foreign treasury, therefore won’t enforce Society of Lloyd’s v Meinzer Public policy exclusion very narrow, concerned with fundamental values, principles of justice, morality and ethics -F: Recognition & enforcement of English judgment, D argued that enforcement would be against public policy on basis of Ontario Securities Act - Actions of P would be illegal under Ontario legislation -I: public policy exclusion -A: Public policy exclusion is very narrow àincludes breaches of fundamental principles of justice, ethics and morality - Usually, breach of OSA would be considered against public policy (part of the Act is considered an expression of fundamental values) • But history of litigation in this case (previously decided case should be heard in UK because of jurisdiction selecting clause), cannot now say result is unenforceable Kuwait Airways Corp v Iraqui Airways Co Choice of law + public policy exclusion, courts have residual power not to apply a law based on principle of fundamental justice and morality -F: Invasion of Kuwait by Iraq, Iraqi Airways seized 10 airplanes from Kuwait Airways by enacting law that dissolved KA - Action for conversion brought in UK—English common law rule for transfer of title inter vivos depends on law of the place where the assets were located at time of transfer (Iraq) - Asking court to refuse to apply Iraqi law -I: Would application of law be against UK public policy? -A: Even after choice of law, courts have residual power to refuse to apply a law - Refused to apply law for public policy reasons • Public policy exclusion engaged when law violated morality + principles of fundamental justice - Is this a foreign act of state? (Therefore, UK should not be able to judge), didn’t really confront the problem United States v Ivey Public law exclusion -F: R&E of default judgment form Michigan, action under environmental pollution law -A: Recognized that public law exception does exist, but does not apply in this case - “Public law” should be interpreted narrowly, comity favours enforcement Domicile and Residence -Domicile and residence are connecting factors for choice of law + jurisdiction -Concerned with the relationship of an entity to a jurisdiction -Choice of lawà directing the court to choose law for jurisdiction that individual is most connected with - Who has burden of establishing domicile? Burden is on person alleging change (Aguilan v Cyganik) - Standard of proof—Closer to civil standard, used to ease more towards BRD Domicile -Multiple forms of domicile, but individuals will only have one domicile at any moment in time - (1) Domicile of origin • Birth, place in which relevant parent was domiciled at time of your birth § Parents married, domicile of father § Parents not married, domicile of mother • If adult abandons domicile of choice without new choice, domicile of origin revives - (2) Domicile of dependency • Concerned with children—birth until age of majority • Domicile of whoever is looking after you (now governed by Infants Act) - (3) Domicile of choice • Age of majority, gain capacity to decide your own domicile • Usually domicile of choice succeeds another (avoid revival problem) -How to establish domicile of choice, need to establish both— (Foote and Foote Estate) • Cannot underestimate the enduring strength of domicile of origin (Aguilan v Cyganik) - (1) Residence, physical presence (no minimum time required) - (2) Intention to remain • Mens rea element, state of mind à “intention to make locality home”, “intention never to return” § Consider the whole of someone’s life (Aguilan v Cyganik), was there a “freely formed decision to make a place the place of permanent residence) • Intention must be freely formed - Abandoning domicile of choice? (Foote and Foote Estate) • If no new domicile of choice, revert to domicile of origin • To establish must show, that they departed with intention never to return -Corporation à domicile is where they are incorporated (National Trust Company v Ebro) Aguilan v Cyganik Burden of proving domicile is party alleging change, when deciding consider the whole of a person’s life -F: N, died in England left will with legacy to then partner C, C applied under English version Wills Variation Act, statute would apply only if N died domicile in England -A: Domicile of origin Cyprus, lived in England 43 years had children in England, last partner was C, promised to marry - Returned to Cyprus regularly, parents and daughter lived there, evidence that he planned to go back to Cyprus - CA—Domicile was Cyprus • To determine domicile must consider the whole of the deceased’s life, “freely formed the decision to make a place their place of permanent residence” • Hard to shake off domicile of origin (English attitude) Foote and Foote Estate ABCA Determining domicile of choice, leaving domicile must be voluntary + show intention to establish new domicile or never return and revert to domicile of origin -F: Born in AB died in AB, left multiple wills to ensure that properties in different jurisdictions was distributed - Spent time in Australia, BC and AB - Each will had a ‘poison pill’ clause, if any B contests this will is revoked and becomes part of residue -A: Choice to change domicile must be voluntary and not dictated by business, debts or health - CA—hadn’t abandoned domicile in Norfolk Island (hadn’t taken any tax advice about moving) • Hadn’t formed necessary intent to establish domicile in BC (only took preliminary steps to move) National Trust Company Ltd v Ebro Residence of corporation -A: Established that domicile of corporation = country where it was incorporated Residence—Ordinary/Habitual -Used more frequently in statutes, particularly in BC CJPTA -Spectrum of residence—temporary, actual, ordinary, habitual (in middle) to permanent - Difficult to see difference b/w O and H residence (theoretically, habitual is a bit more permanent) -Ordinary residence: - Where a person resides, where they “make their home”, maintain ordinary mode of living (Nafie v Badaway) - Doesn’t require constant presence (Nafie v Badaway) - Possible to have more than one ordinary residence (Knowles v Lindstrom) -Habitual residence: - Similar to ordinary, refers to quality of residence (PA v KA) - Requires more than mere arrival, some degree of settled intention/permanence Nafie v Badaway Ordinary residence, not constant presence but where a person makes their home, will lose if you leave for long time to work and live though you can regain -F: jurisdiction to grant divorce, Divorce Act requires either party to have ordinary residence 1 year in that province immediately proceeding application - Married in Egypt, lived in AB for 10 years, 2011 B gets 1 year K to teach in Saudi Arabia, whole family moves - Applied for divorce in AB -A: Residence does not require constant physical presence, ordinary residence à where a party has made their home for current time - Consider where party is settled and maintains their ordinary mode of living - This case—Maj, N was not ordinary resident in AB, home for one year proceeding was in SA Knowles v Lindstrom, ONCA Can have more than one ordinary residence -F: Family Law Act ON, no jurisdictional provisions, must be decided on CL basis -I: Jurisdiction of court, ordinary residence -A: Possible to be ordinarily resident in more than once place at a time - To determine look at connections between parties and location PA v KA Habitual residence, quality of residence with some intention of permanence (more than mere arrival) -F: 14 years together in AB, then went back in forth to Hawaii, divorce action in Hawaii but wants AB to divide matrimonial property, need habitual residence in AB -A: Habitual residenceà refers to the quality of the residence - Consider duration + mindset, less than domicile but requires more intention than arrival • Mere arrival in location doesn’t produce residence - This case—AB was last joint habitual residence (husband did not have residence in Hawaii)