In Rem Actions - Jurisdiction, Recognition and Enforcement

In Rem Actions—Jurisdiction, Recognition and Enforcement -In rem actions, bind the world e.g. property, status -Have special jurisdiction + R&E rules Classification of Property Possible actions about title to land/property - (1) Transfers inter vivos - (2) Transfers on death, succession - (3) Trusts - (4) Bankruptcy -When property in issue, always need to characterize/categorize - Movables à generally personal property, law of domicile governs succession of movables - Immovable à real property, cloice of law = law of the situs - To determine— (Hogg v Provincial Tax Commissioner) • (1) Locate situs of the interest in property § Interests in land always located where land is located (Hogg v Provincial Tax Commissioner) • (2) Ask that situs (lex causae) how they would classify the property and accept characterization § BC considers mortgages immovable property Hogg v Provincial Tax Commissioner Categorizing a property interest—determine where it is located + ask situs how they characterize property -F: Deceased in Sask, owned mortgages on land in BC, Sask tax statute said it could tax mortgages if property devolved by law of Sask -I: Can Sask impose tax? -A: Whose law governs the inheritance of those mortgages? - (1) Determine where property is located à Mortgages are interests in land, interests in land always located where land is located, therefore in BC - (2) Determine how that jurisdiction characterises land à Forum absolutely accepts the characterization of the situs of the interest in land (lex causae) • Complete deference for categorization purposes - This case—BC expert, BC considers mortgages to be immovable property • Therefore, mortgages devolved under law of BC Jurisdiction— In rem actions CJPTA—B.C. will have jurisdiction over property if it is located in B.C. (regardless of movable or immovable) - Immovable property in another jurisdiction? -Courts (England) cannot take jurisdiction over immovable property in another jurisdiction (Mocambique) - Courts will not rule on title or trespass for foreign jurisdiction (Hesperides Hotels) - Exceptions to general rule, Dicey: • (1) Claims based on contract or equity between parties § Ward v Coffin, contract made in one place about immovable property in foreign place, fits exception • (2) Property needs to be decided for the execution/administration of an estate - Canadian exception (Godley v Coles) • Where action mostly concerns movable property + title not in issue + parties both resident of this jurisdiction à issue of immovable property should not override jurisdiction British South Africa Co v Companhia de Mocambique Mocambique rule, court can’t take jurisdiction over immovable property in another jurisdiction -F: Litigation in England regarding mine in SA, immovable // action to determine title (in rem) -I: Can English court take jurisdiction over the property? -A: Court does not have jurisdiction over immovable property in another jurisdiction - Concern with inability to execute on their judgment -Dicey—exceptions to general rule, can take jurisdiction where… - (1) Claims based on contract or equity between parties (2) Property needs to be decided for the execution/administration of an estate Hesperides Hotels v Muftizade Mocambique rule still relevant even with exceptions, Court wont take jurisdiction over title or trespass -F: Action in England regarding immovable property (hotel) in Cypress, tort action but Ps tried to argue around Mocambique by not calling it an action in trespass -I: Does Mocambique rule apply? -A: Yes, rule applies, this is an action in trespass (property action) which would require the court to rule on title - Court won’t take jurisdiction for title or trespass - Reasons not to overrule (1) other CL countries have adopted (2) should be left to legislature (3) don’t want to encourage forum shopping (4) still can’t control property in other places Godley v Coles Potential qualification Mocambique rule—both parties resident of ON, no dispute of title, and major issue was movable property -F: Litigation in Ont, each owned condo in Florida (vertical neighbours), upstairs condo cause water damages downstairs - Action for damages to condo (immovable) + contents (movable) -A: Yes, Ont can take jurisdiction à qualifies Mocambique rule - No dispute about title to land - Majority of damage was to movable property, damage to immovable property should not disentitle Ps from bringing action where both parties are resident Ward v Coffin Exception to Mocambique, contract -F: K for sale of land in Que, K made in NB -A: If you can characterize the action as an action in contract or equity, exception to Mocambique - While subject of the contract is property à action is really about contract, NB has jurisdiction Recognition & Enforcement-In rem actions -Domestic courts cannot R&E foreign judgments, which determine title to local immovable property (Duke v Andler) - They would not have jurisdiction - Now, could rely on Pro Swing à ask courts to R&E equitable order of foreign court • Canadian courts can R&E non-pecuniary judgments • Cali court clerk wouldn’t be able to come to BC, but Andler could get equitable order in BC - Enforcement of Canadian Judgments + Decrees Act— • In BC, all judgment creditor has to do is register judgment • Court can’t question jurisdiction of other Canadian court Duke v Andler General rule against R&E of foreign judgments concerning local/BC immovable property -F: California judgment about land in BC, contract for purchase, both parties in California - Cali took jurisdiction based on contract, order K to be set aside and title back - Made anticipatory order knowing Dukes might not comply + subsidiary order “if they do not comply, court clerk directed to re-register title in Andler’s name - Andler’s want R&E of order -A: Immovable property located in the forum, forum usually considers that it has exclusive jurisdiction - SCC—in personam judgment in California but is an in rem action in BC (deciding title) • Cannot recognize foreign judgment which determines title to local immovable property - Courts of Cali had no jurisdiction to adjudicate upon title or right of possession Lucas Films v Ainsworth -F: Action in Cali, copyright breach of Star Wars action figures against D in UK, default judgment 20M - R&E in UK -A: Copyright is immovable property, but UKSC finds that Mocambique should not be extended to copyright