“(e) The applicable law and its weight in comparison to the factual questions to be decided

[23] The agreement provides that Ontario law is to apply. While it may be that the law in New Brunswick is identical to that in Ontario, no evidence was advanced on this issue. This factor again favours Ontario and Blue Note’s position.

(f) The geographical factors

[24] While the Caribou Mine is located in New Brunswick, the focus of the parties’ dispute is on the agreement and the communications that preceded it. The geographical factor is neutral.

(f) The geographical factors

[24] While the Caribou Mine is located in New Brunswick, the focus of the parties’ dispute is on the agreement and the communications that preceded it. The geographical factor is neutral.”

However, Pepall, J. was also “not persuaded that the nature of Blue Note’s claims takes [the Ontario] action outside the scope of the parties’ purchase agreement. It seeks a declaration with respect to rights flowing from the agreement; an agreement the terms of which the moving parties rely upon. As to Breakwater, although it was not a party to the purchase agreement, it is encompassed by the definition of affiliate in the agreement and at least one of the indemnities.”

It is difficult to discern from the written reasons as to whether the declaratory relief sought by either party in the Ontario action is limited to the indemnities. However, if both parties are seeking declaratory relief arising from the asset purchase agreement—including specific performance or recission—then the court should have also considered the Mocambique rule and the Penn v. Baltimore (in personam) exception, to determine whether the contractual indemnities in dispute were inextricably tied to the asset purchase agreement. At a minimum, the Ontario court should have considered whether the subject-matter in dispute was ultimately about in rem rights (i.e. the transfer of title and interest in the foreign immovable—the Caribou Mine. If so, the Ontario proceedings should have been stayed in favour of the concurrent New Brunswick proceedings, if only to avoid the possibility of inconsistent judgments and duplicative, costly proceedings.

1. Professor Tanya J. Monestier of Queen’s Law School, entitled: “A ‘Real and Substantial’ Mess: The Law of Jurisdiction in Canada” (2007), 33 Queen’s L.J. 179; and

2. Professor Emeritus Jean-Gabriel Castel of Osgoode Hall Law School, entitled: “The Uncertainty Factor in Canadian Private International Law”, (2007), 52 McGill L.J. 555.

Antonin I. Pribetic

In short, the difference is in whether the full foreign law to which the forum choice of law references in turn references to another country’s private law (single renvoi)or to private law and choice of law principles (full renvoi)

thank you

“My understanding of the common law position is that the general rule as I have stated it is subject to the exceptions that a foreign judgment made by a court having jurisdiction in the international sense may be impeached or defended in Ontario on the grounds:

(a)the court actually had no jurisdiction over the subject-matter and the parties in which case this judgment is a nullity (this of course negates the fundamental criterion of competence in the inter-national sense);

(b)lack of identity of the defendant, that is the defendant was not a party to the foreign suit;

(c)the judgment was procured by a fraud on the court;

(d)a failure of natural justice which relates to procedural matters — the mode by which the judgment was reached, and

(e)to enforce the judgment would be contrary to public policy in Ontario. (p. 571)

Antonin I. Pribetic

With respect to finality, I rely in my article at pp. 17-18 (fns. 81-83) on Four Embarcadero Centre Venturee v. Kalen, [1988] 65 O.R .2d 551, 563; J.G. Castel & Janet Walker, Canadian Conflict of Laws, 6th ed. (Markham: Lexis Nexis-Butterworths, 2006) at §14.6; and the dissenting opinion of McLachlin C.J., at ¶’s 95-96 in Pro Swing Inc. v. Elta Golf Inc. [2006] SCC 52 (S.C.C.), aff’g (2004) 71 O.R. (3d) 566 (C.A.), rev’g (2003), 68 O.R. (3d) 443 (Ont. S.C.J.)where the learned Chief Justice states:

“Finality demands that a foreign order establish an obligation that is complete and defined. The obligation need not be final in the sense of being the last possible step in the litigation process. Even obligations in debt may not be the last step; orders for interest and costs may often follow. But it must be final in the sense of being fixed and defined. The enforcing court cannot be asked to add or subtract from the obligation. The order must be complete and not in need of future elaboration.

Clarity, which is closely related to finality, requires that an order be sufficiently unambiguous to be enforced. Just as the enforcing court cannot be asked to supplement the order, so it cannot be asked to clarify ambiguous terms in the order. The obligation to be enforced must clearly establish what is required of the judicial apparatus in the enforcing jurisdiction.”

On your second point, in the U.S.A. v. Shield Development case, the U.S. Department of Justice (Environmental Enforcement Section, Environment and Natural Resources Division) sought to recover environmental clean-up costs in removing hazardous substances from the Essex copper processing site in Milford, Beaver County, Utah originally owned by two Canadian corporations, The Shield Development Co. Ltd. and Anyox Metals Ltd.

The case comment adopts a comparative analysis between U.S. federal and state rules of procedure and the Ontario Rules of Civil Procedure dealing with issues of right of appearance and notice of interlocutory proceedings for unrepresented corporate defendants.

I welcome critique or comments on the paper generally, and whether blawg readers think that some or all of the six additional factors that I have proposed for the defence of natural justice apply (with some modifications) in cases involving pro se personal defendants.

Antonin I. Pribetic