Law Commons^™

Conflict Of Laws, Janet Walker

Articles & Book Chapters

In our highly interconnected world, questions about court jurisdiction, the enforcement of judgments, and applicable law now arise in every field of endeavour and every walk of life. Accordingly, just as with other members of the public, so too can members of the LGBTQ2+ community expect to be affected directly and indirectly by developments in the conflict of laws. However, there are some implications of the conflict of laws that have special significance for members of the LGBTQ2+ community in connection with personal status and family relations. This chapter focuses on the issues arising in these areas.

This chapter considers …

Reforming The Law Of Crossborder Litigation: Judicial Jurisdiction, Janet Walker

All Papers

This consultation paper prepared for the Law Commission of Ontario, in association with a Working Group of private international law specialists, considers the current state of the common law in Ontario and the options for codification.

Beals V. Saldanha: Striking The Comity Balance Anew, Janet Walker

Articles & Book Chapters

With the willingness to enforce foreign default judgments against defendants who did not consent to the jurisdiction of the foreign court and were not local persons there, Canadian courts may need to reconsider the narrowly framed defences so as to strike the comity balance anew.

The Constitution Of Canada And The Conflict Of Laws, Janet Walker

PhD Dissertations

This thesis explains the constitutional foundations for the conflict of laws in Canada. It locates these constitutional foundations in the text of key constitutional documents and in the history and the traditions of the courts in Canada. It compares the features of the Canadian Constitution that provide the foundation for the conflict of laws with comparable features in the constitutions of other federal and regional systems, particularly of the Constitutions of the United States and of Australia. This comparison highlights the distinctive Canadian approach to judicial authority-one that is the product of an asymmetrical system of government in which the …

"Are We There Yet?": Towards A New Rule For Choice Of Law In Tort, Janet Walker

Osgoode Hall Law Journal

The Supreme Court's effort to establish certainty in this area by basing a firm rule on a clear theory has failed. The intention was laudable but the proposed theory bore little relation to the courts' adjudicative concerns; and the rule sometimes produced injustice, prompting courts to circumvent it. This article considers the brief history of choice of law in tort and recent developments in common law and civil law jurisdictions, and suggests a new theory and a new rule (based on principles of tort law rather than public international law) which are likely to increase certainty by promoting fairness.

Commodifying Justice For Global Free Trade: The Proposed Hague Judgments Convention, Vaughan Black

Osgoode Hall Law Journal

A notable omission from the legal apparatus for international free trade is a multilateral agreement on court jurisdiction and enforcement of foreign country judgments. However, negotiations toward such an international convention are in progress. This paper explores the background to those discussions. It examines the current draft of the proposed judgments convention with particular reference to the way in which implementation of that draft would affect Canadians engaged in the practice of international commercial litigation. It concludes with a discussion of current sticking points in the negotiations, and with commentary on the judgment enforcement scene and the implications of failure …

A Tale Of Two Fora: Fresh Challenges In Defending Multijurisdictional Claims, Janet Walker

Osgoode Hall Law Journal

This article analyzes recent developments in the Canadian common law of forum non conveniens as it is invoked in applications for stays and injunctions. It reviews the findings of the Supreme Court of Canada in Amchem and the Court of Appeal for Ontario in Frymer as they relate to the onus in stay applications, the significance of the plaintiffs loss of advantage and the special considerations applying to injunctions. The possibility of rationalizing the interprovincial application of the doctrine brought about by the Supreme Court's recent choice of law ruling in Tolofson is considered as are specific examples of the …

Back To The Future!: Is The "New" Rigid Choice Of Law Rule For Interprovincial Torts Constitutionally Mandated?, Jean-Gabriel Castel

Osgoode Hall Law Journal

In the last few years, the Supreme Court of Canada has held that private international law rules applicable to the jurisdiction of Canadian courts and the recognition and enforcement of the judgments of sister provinces must conform to the demands of territoriality and the principles of order and fairness which flow from the existence of an implied Full Faith and Credit clause in the Canadian Constitution. More recently, the Court has decided that, with respect to choice of law, the ancient lex loci delicti rule is applicable to both interprovincial and foreign torts and that it admits no exceptions in …

The Charter's Relevance To Private Litigation: Does Dolphin Deliver?, Brian Slattery

Articles & Book Chapters

The author critically examines the recent decision of the Supreme Court of Canada in Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd. This case holds that the Canadian Charter of Rights and Freedoms only applies to the relations between government and private persons and not to relations between private persons alone, with two exceptions. The author argues that the first exception - when a private person invokes a statute, rather than the common law, against another private person - is untenable because both the common law and the droit civil are grounded in legislative instruments, respectively …

Digest Of Important Canadian Cases Reported In 1976 In The Fields Of Public International Law And Conflict Of Laws, Sharon A. Williams

Articles & Book Chapters

No abstract provided.

Digest Of Important Canadian Cases Reported In 1973 In The Fields Of Public International Law And Conflict Of Laws, Jean-Gabriel Castel

Articles & Book Chapters

No abstract provided.

Digest Of Important Canadian Cases Reported In 1972 In The Fields Of Public International Law And Conflict Of Laws, Jean-Gabriel Castel

Articles & Book Chapters

No abstract provided.

Procedure And The Conflict Of Laws, Jean-Gabriel Castel

Articles & Book Chapters

The enforcement of a validly acquired foreign or domestic right is a matter of procedure governed by the lex fori. A Canadian court always applies its own procedural rules to a case involving a foreign element pending before it even though the merits of the controversy .are governed by some foreign law. Never will the court apply a foreign rule that is procedural. The court in which the action is pending cannot be expected to submit to foreign procedural rules. It must conduct the proceedings according to its own rules. Although it may be bound to apply foreign law, this …