Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

Archive for August, 2008

Charter and Defences to the Enforcement of Foreign Judgments

Posted by Seva on August 7, 2008

Enforcement of foreign judgments is prima facie concerned with foreign civil judgments. Enforceable foreign judgments, while no longer necessarily pecuniary, still exclude penal judgments and thus arise out of private disputes between parties. In this context, it is difficult to see how the Charter, imposing constraints on our government’s actions, particularly in criminal matters, would have any application. However, the duty of tenacious representation (and billable hours) relentlessly drives the lawyers’ search for loopholes. Thus, in King v. Drabinsky, 2008 ONCA 566, the defendants argued that the difference between the US and Canadian constitutional protections against self-incrimination, in the situation where the defendants were sued in a civil action in the US, and charged with a related criminal offence in Canada, resulted in a breach of natural justice and thus a defence to the recognition and enforcement of the judgment. Holding that s. 13 of the Charter “would likely protect” the defendants and prevent the use of the testimony from the US civil proceedings in a Canadian criminal trial, the court upheld the trial judge’s decision to recognize the foreign judgment.

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Puppy Law

Posted by Seva on August 5, 2008

Sorry for the prolonged absence, I’ve been busy with a couple projects and had no time (or more correctly energy) for blawg posts. I will try to catch up this week on several cases that I’ve wanted to mention.

Meanwhile, I want to answer an age-old question that no one asked: what do puppies and conflicts of laws have in common? The answer is: nothing! Well, except when a puppy is rge subject of an inter-provincial contract, as in Solylo v. Lamontagne (c.o.b. Star Magic) (Ont. S.C. – Small Claims) [no CanLii link yet].

The Ontario plaintiff mail-ordered a $3,000 pedigreed puppy from the Saskatchewan defendant, and apparently got the puppy less the pedigree paperwork and microchip. In response to the plaintiff’s small claims action in Kitchener court for $2,000 for breach of contract, the defendant hired an Ottawa lawyer and proceeded to vociferously argue lack of jurisdiction simpliciter, forum non conveniens, and other related issues.

Unsurprisingly, the defendant’s arguments were dismissed. The facts that the contract was formed in Ontario, the puppy was received in Ontario, the breach was discovered and the damages were thus also suffered in Ontario, were all sufficient to establish jurisdiction simplicter, albeit the court did not once refer to Muscutt. Moreover, the defendant did not show any viable reasons why Ontario was forum non conveniens and Saskatchewan was.

Alas, from the defendant’s perspective, the case went to the dogs.

OK, I promise, no more puns.

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