McGILL LAW JOURNAL
Montreal
Volume 16
Number 4
Procedure and The Conflict of Laws
J-G. Castel *
Introduction
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 pro-
ceedings according to its own rules. Although it may be bound to
apply foreign law, this does not mean that the court must apply
all the relevant rules of the lex causae. In other words, there is no
vested right in procedure.’ A person invoking the jurisdiction of
the court must take its procedure as he finds it. There ought to
be no difference between the position of a foreign and a local
litigant.
Thus, in De la Vega v. Vianna,2 Lord Tenterden, CJ. said:
A person suing in this country must take the law as he finds it; he cannot,
by virtue of any regulation in his own country, enjoy greater advantages
than other suitors here, and he ought not therefore to be deprived of
any superior advantage which the law of this country may confer. He
is to have the same rights which all the subjects of this kingdom are
entitled to.3
Professor of Law, Osgoode Hall Law School, York University, Toronto.
This article is part of a treatise on Canadian Conflict of Laws.
I Northern Trusts Co. v. McLean, (1926), 58 O.L.R. 683, 30 O.W.N. 153, [1926]
3 D.L.R. 93 (CA.), citing Livesley v. Horst Co., [1925] 1 D.L.R. 159.
2 (1830), 1 B. & Ad. 284, at p. 288, 109 E.R. 792. Approved in Baxter v. Jacobs,
(1889), 1 B.C.R. (part 2) 373: arrest of defendant governed by lex fori. See
also Brown v. Hudson, (1826), Taylor 390 (CA.): mode of recovery of debt
governed by lex or.
3 See also Bondholders Securities Corporation v. Manville, [1933] 3 W.W.R. 1,
at p. 6, [1933] 4 D.L.R. 699 (Sask. C.A.); Colonial Investment & Loan Co. v.
Martin, [1928] 1 W.W.R. 245, at p. 247, 37 Man. R. 215.
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I. General
a) Nature of procedure
The concept of procedure refers to the “mode of proceeding
by which a legal right is enforced, as distinguished from the law
which gives or defines the right, and which by means of the
proceeding the Court is to administer the machinery as distinguished
from the product”.4 In other words, procedure pertains to the
methods of presenting to a court the operative facts upon which
legal relations depend. It is primarily concerned with the machinery
for enforcing a right by action in the courts and includes inter alia,
the forms of action, the parties to the action, the determination
of the proper court, the time within which the action must be
brought, the nature and extent of the remedy, rules of practice
and pleadings, questions of evidence and the execution of judgments.
This article will be limited to a study of some matters of pro-
cedure that have been before Canadian courts and are of particular
importance in the conflict of laws.
b) Characterization
The question whether or not a particular rule of the lex fori
or of the lex causae is one of substance or procedure is not easy
to answer. The difficulty, as so often, is not the statement but
the application of the principle. What test should be used by the
court to distinguish between substance and procedure?
The distinction between substance and procedure, or right and
remedy, is an important subject of characterization. If as a result
of characterization of the factual situation, the proper law selected
is the lex fori, the court will apply all the rules of the law of the
forum, whether substantive or procedural. In such a case there is
no need to distinguish between substance and procedure. If the
result is that the proper law is a foreign law, the court will have
to enquire whether the action must nevertheless be dismissed on
the ground of non-compliance with some procedural rule of the
lex fori. If the answer to this enquiry is in the affirmative, there
will be no need to resort to any foreign law, but if the answer is
in the negative, the court will have to be informed about the
foreign law, and will then have to characterize the provisions of
4 Poyser v. Minors, (1881), 7 Q.B.D. 329, per Lush, LJ. at p. 333; also Livesley
v. Horst Co., [1925] 1 D.L.R. 159, at p. 161, [1924] S.C.R. 605, at p. 608, per
Duff, J.
Nqo. 4]
PROCEDURE AND THE CONFLICT OF LAWS
that law, disregarding those provisions that are procedural, and
applying only those that are substantive.
The characterization of a particular rule whether foreign or
domestic, as substantive or procedural, cannot be done in vacuo.
The solution depends upon the objectives to be achieved by the
court in the case that is pending before it. The general objectives
of conflict of laws must also be taken into consideration. Procedure
and substance are not clear cut and inalterable categories. Their
contents may vary from case to case. The line that may be drawn
between substance and procedure is not the same for all times
and for all purposes. Logical analysis is of little help here. Practical
and policy considerations seem to be paramount.
Depending upon the nature of the problem and the relevant
circumstances, the court may have some good reasons to characterize
a foreign rule as procedural although it is not so according to the
concepts of the foreign legal system. This is better than resorting
to public policy. However, the concepts of the lex fori applicable
to purely domestic situations should not necessarily be used in
order to characterize the foreign rule. A domestic rule may never
have been designed to deal with international situations. The fact
that a particular local rule is procedural by the lex fori does not
always mean that a similar foreign rule should receive the same
characterization.
It seems to be more practical for the court faced with the
characterization of a foreign rule of law to refer to the concepts
of that law in order to ascertain the nature of the rule, provided
that the result is not incompatible with the purpose of the conflict
rules of the forum and provided that the foreign rule is not
characterized in the foreign law for some domestic purpose of
that law.
Thus Falconbridge states:
If the foreign rule is characterized in the foreign law for some domestic
purpose of the foreign law, the characterization is obviously immaterial.
Even if the foreign rule is characterized in the foreign law for some
purpose of the conflict rules of that law, it does not follow that the court
must characterize the rule in the same way for some purpose of a
conflict rule of the law of the forum; a different characterization may
be required so as to give effect to the purpose of the conflict rule of the
law of, the forum. 5
Of course, when characterizing a domestic rule, the court will
apply the concepts of the lex fori. Yet it is submitted that in doing
G J.D. Falconbridge, Essays on the Conflict of Laws, (1954), 2nd ed., p. 304.
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[Vol. 16
so, the court should keep in mind that it is dealing with a case
involving foreign elements. The forum should not always try to
extend the application of the lex fori to such a case. As Falconbridge
points out:
… a court should not, without due consideration of the consequences,
characterize a rule of law of the forum as procedural in the conflict
of laws, even though the rule may be characterized as procedural for
some domestic purpose.6
As a matter of policy it would seem desirable to restrict the
scope of the procedural definition so as not to frustrate the
fundamental purposes of conflict of laws. The test should be: is
the foreign rule too inconvenient to apply? 7 If the answer is nega-
tive the foreign rule is substantive.
In general, Canadian courts have held that whatever relates
to the remedy employed is procedural, and whatever relates to
the rights of the parties is substantive. This distinction is inadequate
and not helpful as it is still necessary to determine whether the
foreign or domestic rule relates to the right or to the remedy.
Actually, in order to decide whether a rule is substantive or pro-
cedural one must analyse the specific questions calling for decision
as well as their legal background and factual context.
In Canada, the courts have often had to determine (a) whether
the relevant foreign rule or statute is substantive or procedural,
(b) whether the relevant domestic rule or statute is procedural or
substantive. In case (a) characterization should be by the lex
causae whereas in case (b) it should be by the lex fori. However,
as mentioned above, these solutions should be tempered by policy
considerations.
II. Contents of Procedure
1) The Existence and Enforcement of the Right of Action
In German Savings Bank v. Tdtrault 8 which involved a loan upon
the security of two mortgages on properties located in New York,
the plaintiff issued foreclosure actions in that State upon these
mortgages.
6Ibid., at p. 304.
7 See W.W. Cook, The Logical and Legal Bases of the Conflict of Laws, (1942),
p. 166: “How far can the court of the forum go in applying the rules taken
from the foreign system of law without unduly hindering or inconveniencing
itself?”
8 (1904), 27 C.S. 447 (Que.).
No. 4]
PROCEDURE AND THE CONFLICT OF LAWS
The price realized by the sale of the properties being insufficient
to pay the whole of the indebtedness, the plaintiff sued the defendant
in Quebec for the deficiency. The defence was based on Article 1628
of the New York Code of Civil Procedure which read as follows:
While an action to foreclose a mortgage upon real property is pending,
or after final judgment for the plaintiff therein, no other action shall be
commenced or maintained to recover any part of the mortgage debt, with-
out leave of the court in which the former action was brought.
Since no leave had been obtained in New York when the plaintiff
brought his action in Quebec, the defendant claimed that the
plaintiff’s right of action could not be exercised. The plaintiff’s
reply to this plea was that the provision in question was a mere
matter of procedure applicable in the New York courts but not
in Quebec.
In dismissing the plaintiff’s action, the Quebec court came to
the conclusion that the New York provision was substantive even
though it was to be found in the Code of Civil Procedure. The
court said:
There is as little doubt that the court here must apply the law of the
State of New-York to a contract made there between persons domiciled
there, in any matter which concerns the nature, substance or effect of
the obligation contracted, as there is that it must apply our own law
to any matter which exclusively concerns the manner of enforcing the
remedy.9
The New York provision, which was imperative, affected the
existence of the right and not the remedy. Since in that State no
action could be commenced against the defendant to recover the
sum demanded by the plaintiff without the leave of the court in
which the foreclosure actions were prosecuted, the obligation of
the defendant had become only conditionally valid. Leave could
be granted or refused by the New York court and therefore it
became a substantive part of the right of action, an indirect effect
of the obligation.
The court did not characterize the New York provision by
reference to the lex fori. The decision was based upon an analysis
of this provision in the context of New York law and policy which
was to protect debtors in foreclosure actions.
Where in an action brought in Ontario respecting chattels
removed from land in Quebec it appeared that, according to Quebec
law, the plaintiff was the owner of the land in question but would
not have been allowed to bring an action until after he had first
9 Ibid., at p. 450.
McGILL LAW JOURNAL
[Vol. 16
established his title to the land by a special petitory action, the
court held that he could sue in Ontario without having brought
the petitory action. The Quebec requirement was procedural and
could not be relied upon in Ontario. 0
In Valentine v. Hazelton,” the plaintiff, who was the surety
on an administration bond, was able to sue the former administrator
of the estate for money he had used without actually having to pay
the money into the estate under the bond since he had himself
become the administrator and payment was not necessary under
the law of Massachusetts which governed the succession. 2
On two occasions the courts have had to characterize section 18
of the Limitation of Civil Rights Act of Saskatchewan 13 which
provides that when an article is sold, the price of which exceeds
$100, and the vendor, after delivery, has a lien thereon for all or
part of the purchase price, ” … , the vendor’s right to recover the
unpaid purchase money shall be restricted to his lien upon the
article sold, and his right to repossession and sale thereof”.
This section changes the common law rule which enables the
vendor to forfeit the cash payment, sell the article and thereafter
recover from the debtor the balance of the purchase price remaining
due. It may therefore be considered as falling within the class of
remedial statutes. There is nothing in the Limitation of Civil Rights
Act which purports to make the contract entered into between the
parties void.14 The obligatio remains, the actio is postponed. Section
18 makes the right of the plaintiff to recover judgment on the
contract unenforceable in Saskatchewan provided it is pleaded by
10 Stuart v. Baldwin, (1877), 41 U.C.Q.B. 446.
11 (1868), 12 N.B.R. 110 (CA.).
12 The question whether the personal representatives of a deceased are dis-
charged by the death of a joint contractor was erroneously held to be governed
by the lex fori in Gilmour v. Crooks, (1843), 2 Ont. Case Law Dig. 2840. As
to whether article 1489 of the Quebec Civil Code – which prevents an owner
from reclaiming his stolen property if it is in possession of a person who
bought it in good faith from a trader in similar goods or in a market
overt, until he reimburses to him the price he has paid for it –
is a provision
which affects substantive rights or merely prevents recovery and therefore
is procedural, see McKenna v. Prieur & Hope, (1924), 56 O.L.R. 389, 27 O.W.N.
344 (C.A.), rev’g 26 O.W.N. 474.
13 R.S.S. 1965, c. 103.
14 However, section 27 provides that “…,
every agreement or bargain, verbal
or written, express or implied, that this Act or any provision thereof shall
not apply or that any benefit or remedy provided by it shall not be available,
or which in any way limits, modifies or abrogates or in effect limits, modifies
or abrogates any such benefit or remedy, is null, void and of no effect,…”
No. 4]
PROCEDURE AND THE CONFLICT OF LAWS
the defendant. Yet this interpretation was rejected in Canadian
Acceptance Corporation Ltd. V. Matte and Matte15 and Traders’
Finance Corporation Limited v. I. G. Casselman.’16
In the Matte case, the plaintiff sued in the Saskatchewan courts
on a promissory note for the balance remaining under a conditional
sale contract governed by the law of Manitoba after the seizure and
resale of the article sold for default in payment by the defendants.
Section 18 was pleaded as a defence on the ground that it was a
procedural rule of the forum. The Court of Appeal rejected this
defence and held that section 18 is substantive as it only affects
the nature of the right itself. Thus it had no application to the
Manitoba contract under litigation.
Here the court characterized its own statute. There was no need
to resort to the lex causae. In a dissenting opinion, Procter, J. A.
found it impossible to distinguish the right conferred by section 18
from the right conferred by the Statute of Limitations. Statutes
that curtail the enforcement of a right must be considered as
relating to matters of procedure and not matters relating to sub-
stantive rights. The Statute of Limitations, if pleaded, operates as
a bar to the plaintiff’s claim for judgment but does not extinguish
the debt. The plaintiff’s substantive right to recover the debt
remains and is available to him in another jurisdiction having a
longer period of prescription. So also the substantive right of the
plaintiff to recover his debt remains in those jurisdictions where
there is no legislation similar to the Limitation of Civil Rights Act.
Thus section 18 is procedural and the plaintiff’s rights are governed
by the lex foriY.
15 (1957), 9 D.L.R. (2d) 304 (Sask. CA.).
16 [1960] S.C.R. 242, aff’g (1959), 16 D.L.R. (2d) 183 (Man. C.A.), rev’g (1958),
11 D.L.R. (2d) 622.
17Note that in Merchants Bank of Canada v. Elliot, [1918] 1 W.W.R. 698
(U.K.K.B.) McCardie, J. interpreted the prohibition of action under the British
Columbia War Relief Act Amendment Act, S.B.C. 1917, c. 74, against an army
volunteer as procedural. The Act, which provided that during the continuance
of the war and for six months thereafter, it should not be right to bring any
action in or out of British Columbia against a person who was, or had been
at any time since August 1914, resident of the Province and who had enlisted
in the Army, did not invalidate any bargain, it did not limit any contractual
rights or affect the substance of any agreement; it merely precluded the
creditor from commencing legal proceedings. See also Commercial Corp.
Securities Ltd. v. Nichols, [1933] 3 D.L.R. 56 (Sask.), at p. 63, per MacKenzie,
J.A.: “Had the plaintiff found it incumbent to bring this action to recover
such deficiency in Alberta, my view might have been otherwise; since then
it could better have been urged that before the plaintiff could sell it should
have complied in all matters of procedure with the Alberta law.”
McGILL LAW JOURNAL
[Vol. 16
The Matte case was approved by the Supreme Court of Canada
in Traders’ Finance Corporation Limited v. L G. Casselman.18
The action was brought in Manitoba on a Saskatchewan contract.
Judson, J. said:
The appellant, in my opinion, has set itself an impossible task in seeking
to have this legislation characterized as procedural. The section takes
away a personal right of action for the balance of the unpaid purchase
price if a lien is reserved. It is in no way concerned with procedural rules
for the enforcement of a right. Therefore, the fact that there is no equiva-
valent legislation in the Province of Manitoba does not help the appellant.
This was undoubtedly a Saskatchewan cause of action, without a single
element which might connect it with the Province of Manitoba. Even
in the absence of persuasive authority it is difficult to see how the Mani-
toba Court could have done other than characterize the matter as one
of substantive law. While it is true that the Manitoba Court must charac-
terize this legislation by its own tests of what is procedure and what
is substantive law and is not bound by what another jurisdiction may
have done, there is no problem of conflicting characterization here because
the Manitoba Court took the same view as that of the Saskatchewan
Court of Appeal in Canadian Acceptance Corporation Limited v. Matte
(1957), 22 W.W.R. 97, 9 D.L.R. (2d) 304, where this very section was
characterized as a matter of substantive law and not procedure.10
The Manitoba court had to characterize section 18 of the
Saskatchewan Limitation of Civil Rights Act. In doing so, Judson, J.
pointed out that characterization should be by the lex fori and not
by the lex causae. This is erroneous because the Manitoba court
was not characterizing its own statutory rule, unless we interpret
Judson, J.’s words to mean that local concepts or categories must
be kept in mind when characterizing a foreign rule so as not to
hold substantive a rule that would be too inconvenient to apply
in the forum.
In Scandinavian American National Bank of Minneapolis v.
Kneeland,20 it was said that the right of a creditor to hold one of
several joint sureties, notwithstanding the discharge of another, is
a matter affecting the obligation of the contract, altering it in one
of its essential elements, and such right must therefore be ascertain-
ed and determined in accordance with the laws of the place of
contracting. The non-discharge of one joint surety by reason of
the discharge of another is not a matter relating to the remedy,
but is a part of the law relating to the substance of the contract.
IsSupra, n. 16.
19 Ibid., at pp. 247-248 (S.C.R.).
20 (1914), 16 D.L.R. 565 (Man. C.A.), rev’g (1913), 12 D.L.R. 202.
No. 4]
PROCEDURE AND THE CONFLICT OF LAWS
In Bateman & Litman Real Estate Ltd. v. Big T. Motel Ltd. et al.,21
it was held that section 28 of the Real Estate Agents Licensing Act 22
which provides that “[n]o action shall be brought for commis-
sion… in connection with a trade in real estate unless at the time
of rendering the services the person bringing the action was licensed
as an agent or was not required to be licensed…” is substantive and
not procedural and consequently is no bar to an action in Saskat-
chewan for commission for the sale of Saskatchewan land brought
by an unlicensed real estate agent carrying on business in Alberta
provided the lex causae is that of Alberta. Statutory provisions
containing the words “no action shall be brought”, or for that
matter any rule that denies the right of action, should not necessarily
be characterized as procedural for conflict of laws purposes.23
The Supreme Court of Canada has held 24 that an agreement to
arbitrate any dispute that may arise between the parties, as well
as an agreement to arbitrate a pending or impending dispute
pertains to the law of remedies or procedure. The Court pointed
out that the object of an arbitration clause is not to modify the
rights of the parties but to enforce them, and how a right is
enforced is a matter of procedure. It is submitted that the question
whether effect should be given to an arbitration clause contained
in a contract is one of substance and not of procedure.25
2) Limitation of actions
Provisions in statutes of limitations that merely specify a certain
time after which rights cannot be enforced by action are procedural,
they bar the remedy. Such provisions, if part of the lex jori, may
be pleaded in any action brought before the courts, even if the
merits of the case are governed by some foreign law.2 6 On the other
hand, provisions that create or extinguish the right of action are
21 (1964), 44 D.L.R. (2d) 474, 46 W.W.R. 604, aff’d (1964), 51 W.W.R. 127, 49
D.L.R. (2d) 480 (Sask. CA.).
2 2 R.S.S. 1953, c. 294.
23 See Gaming Act, R.S.O. 1960, c. 159, s. 4: “… no suit shall be brought…”.
C.f. Medical Act, R.S.O. 1960, c. 234, s. 54(c).
2 4 National Gypsum Co. Inc. v. Northern Sales Ltd., [1964] S.C.R. 144, (1964),
43 D.L.R. (2d) 235.
25See dissenting opinion of Cartwright, J. at p. 152; and see Hamlyn & Co. v.
Talisker Distillery, [1894] A.C. 202.
26Bowes Co. Ltd. v. American Railway Express Co., (1924), 26 O.W.N. 290;
Allard v. Charbonneau, [1953] 2 D.L.R. 442, [1953] O.W.N. 381 (CA.); Bond-
holders Securities Corp. v. Manville, [1933] 4 D.L.R. 699 (Sask. C.A.).
McGILL LAW JOURNAL
[Vol. 16
substantive and can only be invoked in the forum if they are part
of the lex causae.2 7
No action can be brought where the remedy is barred by the
lex fori, even though the foreign law under which the cause of
action arose provides a longer period within which the remedy
must be pursued.28 If, on the other hand, the remedy is not barred
by the lex fori, the action will be entertained irrespective of the
lex causae, provided the right of action has not been extinguished
by that law.-
Some of the cases seem to indicate that the courts will recognize
that a cause of action or debt is extinguished by the lex causae only
if the debtor resided in the country of the lex causae during the
whole period of time that the debt was owing and due.30 This view
should be rejected. If the court applies the lex causae to the question
of the extinction of the debt, the question of residence of the debtor
is relevant only if required by the proper law. For all practical
purposes the remedy must be pursued within the time fixed by the
lex fori 31 no matter where the cause of action accrued.
27 For instance, Ontario Limitations Act, R.S.O. 1960, c. 214, ss. 15, 23. S. 15
(real property) extinguishes the right whereas s. 23 (personal actions) fixes
the period within which the remedy must be pursued. Most Canadian statutes
of limitations destroy sometimes the right, sometimes merely the remedy.
2 8Allard v. Charbonneau, [1953] 2 D.L.R. 442, [1953] O.W.N. 381
(C.A.).
(Section 61 of the Ontario Highway Traffic Act, now s. 147(1) of R.S.O. 1960,
c. 172, imposing a limitation period of one year applied in respect of an action
brought in Ontario for damages resulting from a motor car collision occurring
in Quebec.) Quaker Oats v. Denis, (1915), 24 D.L.R. 226, 8 W.W.R. 877, 31 W.L.R.
579, 9 Alta L.R. 62, aff’g 7 W.W.R. 1008, 8 Alta L.R. 31, 19 D.L.R. 327 (C.A.);
Rutledge v. The United States Savings and Loan Co., (1906), 37 S.C.R. 546,
rev’g (1905), 2 W.L.R. 471 (Yukon).
29 Harris v. Quine, (1869), L.R. 4 Q.B. 653, Blackburn, 3. at p. 658; Bowes Co.
v. American Railway Express Co., (1924), 26 O.W.N. 290; Huber v. Steiner,
(1835), 2 Bing N.C. 202; Bondholders Securities Corp. v. Manville, [1933] 3
W.W.R. 1, [1933] 4 D.L.R. 699 (Sask. C.A.); Bryson v. Graham, (1848), 3 N.S.R.
271, at p. 274
30 Huber v Steiner, supra, n. 29; Bryson v. Graham, supra, n. 29, at p. 275.
31 Colonial Investment & Loan Co. v. Martin, [1928] S.C.R. 440, [1928] 3 D.L.R.
784, aff’g [1928] 1 W.W.R. 245, 37 Man. R. 215, [1928] 1 D.L.R. 791 which
affirmed [1927] 2 W.W.R. 94, [1927] 3 D.L.R. 360; Rutledge v. United States
Savings and Loan Co., (1906), 37 S.C.R. 546, per Girouard, J. dissenting, at p.
548: “.. . in matters of limitations of personal actions the lax fori must prevail,
except when the debt has been absolutely extinguished by the Statute of
Limitations of the locus contractus”; McPherson v. McBain, [1932] 3 W.W.R.
617 (Alta.); McLenaghan v. Hetherington, (1892), 8 Man. R. 357; Bondholders
Securities Corporation v. Manville, [1933] 3 W.W.R. 1, [1933] 4 D.L.R. 699 (Sask.
CA.); British Linen Co. v. McEwan, (1892), 8 Man. R. 99, at p. 103; Dakota
No. 4]
PROCEDURE AND THE CONFLICT OF LAWS
In Colonial Investment and Loan Co. v. Martin2
it was held
that an action brought in Manitoba on a covenant for payment in
a mortgage of land situated in Saskatchewan was barred by section
24 of the Manitoba Real Property Limitation Act:
No action… shall be brought to recover any sum of money secured by
any mortgage… but within ten years .. .33
Section 24 relates to actions to recover money secured by mort-
gage or otherwise charged upon or payable out of land, and corre-
sponds with section 23 of the Ontario Limitations Act,3 4 which,
however, is confined to actions to recover the money out of the
land. An action on the covenant brought in Ontario would come
within section 45 of the Act.A5
In general, Canadian courts have had a tendency to characterize
foreign as well as domestic statutes of limitations as procedural
with the result that the defendant is often deprived of the benefit
of the foreign statute in an action upon a foreign cause of action.
In characterizing the foreign and domestic statutes of limitations,
the courts must avoid coming to the conclusion that the foreign
statute is substantive and the domestic statute procedural or that
the foreign statute is procedural and the domestic statute substan-
tive, with the result that both are applicable or neither is applicable.
Policy considerations will influence the forum in its characterization.
Although the forum should characterize the foreign statute in accor-
dance with the lex causae, this cannot be done without taking into
consideration the nature of the statute in force in the forum. The
court must examine the possible consequences of characterizing
the foreign statute and the domestic statute by different standards
and try to co-ordinate the two characterizations.
Falconbridge submits that the forum should characterize
… both the foreign statute and the domestic statute for the purpose of
determining which of them is applicable within the meaning of the con-
Lumber Co. v. Rinderknecht, (1905), 1 W.L.R. 481, 6 Terr. L.R. 210, rev’d (1905),
2 W.L.R. 275, 6 Terr. L.R. 219 (N.W.T.); North v. Fisher, (1884), 6 O.R. 206;
Martin (otherwise Ellington) v. Trofimuk (Martin Estate), (1960), 32 W.W.R.
520 (Alta.); Quaker Oats Co. v. Denis, supra, n. 28.
32 [1928] S.C.R. 440, [1928] 3 D.L.R. 784.
33 R.S.M. 1913, c. 116, s. 24(1).
34 Supra, n. 27.
35 See McLenaghan v. Hetherington, (1892), 8 Man. R. 357. In an action in
Manitoba on the personal covenant in a mortgage of Ontario land, the court
held that the Manitoba Real Property Limitation Act was applicable. It did
not matter where the land was situate.
For a case involving a federal-provincial situation, see Oliver v. The King,
(1921), 21 Ex. C.R. 49, 59 D.L.R. 211.
McGILL LAW JOURNAL
[Vol. 16
flict rule of the law of the forum relating to limitation of actions. In an
action upon a foreign cause of action the forum should compare the two
statutes and if it comes to the conclusion that, notwithstanding differences
in wording, the two statutes are intended to perform eventually the same
function, it should decide which of the two statutes is subsumed under
the conflict rule of the forum.36
Causes of Action accruing while the defendant is out of the
Province or “beyond the Seas”: Tolling provisions
Section 19 of the English statute of 1705, 7 preserving the right
of the plaintiff to bring an action within the statutory period after
the defendant’s return when the latter was beyond the seas at the
time the cause of action accrued, as well as section 7 of the Statute
of 1623 31 which preserves the right of the plaintiff, if he was beyond
the seas when his cause of action accrued, to bring an action within
the statutory period after his return still appear in the statutes of
limitations of some of the provinces although in England these
statutory provisions have been repealed. Thus, in Ontario, section
48 of The Limitations Act 39 states that in personal actions
[i]f a person against whom a cause of action… accrues is at such time
out of Ontario, the person entitled to the cause of action may bring
the action within such times as are before limited after the return of
the absent person to Ontario.4 0
36 Op. cit., n. 5, pp. 292-293.
374 & 5 Anne, c. 16.
38 21 Jac. 1, c. 16.
39 R.S.O. 1960, c. 214.
40 See Stewart v. Guibord et al., (1903), 6 O.L.R. 262; Clemens v. Brown and
International Nickel Co. of Canada Ltd., (1958), 13 D.L.R. (2d) 488 (Ont. C.A.);
Bugbee v. Clergue, (1900), 27 O.A.R. 96, at p. 106, aff’d sub nom. Clergue v.
Humphrey, (1900), 31 S.C.R. 66: “It matters not that both parties were
foreigners, residents of the same State where the cause of action arose, and
that plaintiff might have sued, or did sue, the defendant there before he left
it to reside in this country. So far as regards our statute the time runs
against the plaintiff only from the time when the defendant came within the
jurisdiction of our own Courts”; Boulton v. Langmuir, (1897), 24 OA.R. 618;
Statute of Limitations, R.S.B.C. 1960, c. 370, s. 9 (beyond the seas); Com-
mercial Securities Corporation Limited v. Davies, [1937] 2 W.W.R. 25, 51
B.C.R. 481 (B.C.); Limitation of Action Act, R.S.N.B. 1952, c. 133, ss. 1(c), 20(1);
Limitation of Actions (Personal) Act, R.S. Nfld. 1952, c. 146, ss. 4 & 7; Limitation
of Actions Act, R.S.N.S. 1967, c. 168, ss. 3 & 4. The statute deals with the
situation where the plaintiff is absent from the province (s. 3) and the case
where the defendant is absent from the province (s. 4); Carvell et al. v.
Wallace, (1873), 9 N.S.R. 165 (S.C.). This six-year Nova Scotia period of limita-
tions began to run after the defendant moved to the province even though
the cause of action had arisen in Prince Edward Island and was barred
there; see also Bryson v. Graham, (1848), 3 N.S.R. 271 where Bliss, 3. at p.
No. 4]
PROCEDURE AND THE CONFLICT OF LAWS
It would seem that the words “after the return of the absent
person to Ontario” suggest that this section is not applicable to
a defendant who was not ordinarily resident in Ontario when the
cause of action arose.41
Falconbridge points out that:
It is at least open to question whether it is just, in the case of a
defendant in whose favour the foreign statute has run during his residence
in the foreign country, to deprive him of the benefit of the domestic
statute merely because he has come to the country of the forum less
than the statutory period before action… On the other hand, if the period
of limitation has not yet run under the foreign statute, it would not appear
to be unjust to deprive the nomadic defendant of the benefit of the do-
mestic statute in his new residence by virtue of a tolling provision of
that statute. This situation might arise in the case of an action upon a
foreign judgment normally barred after six years, although an action upon
the judgment in the foreign country might not be barred because the
period of limitation there might be twenty years.42
The Uniform Limitation of Actions Act prepared by the Confer-
ence of Commissioners on Uniformity of Legislation in Canada 43
modifies the old rule to the extent that the cause of action against
the absent defendant must arise within the province. This provi-
sion has been adopted by Alberta,44 Manitoba,4 , Prince Edward
the Northwest Territories 4 and the
Island,46 Saskatchewan, 47
Yukon4 9
Thus, in Prince Edward Island, section 50 of the Limitation of
Actions Act provides that:
In respect of a cause of action as to which the time for taking pro-
ceedings is limited by this Act, other than those mentioned in paragraphs
273 cited Marsh v. Hoyne to the effect that: “A debt contracted in England
between parties there residing was not prescribed in Nova Scotia, provided
the action was brought within six years after the plaintiff’s first coming
into this Province; that the plaintiff’s remedy only was barred in England;
but the debt was still subsisting and recoverable in Nova Scotia”. Cf.
Johnston v. Johnston, (1875), 10 N.S.R. 128 (C.A.).
41 Clemens v. Brown International Nickel Co. of Canada Ltd., (1958), 13
D.L.R. (2d) 488 (Ont. CA.).
42 Op. cit., n. 5, p. 297, and see Rutledge v. United States Savings and Loan
Co., (1906), 37 S.C.R. 546.
(1944), 27 Proceedings 433.
43 (1931), 16 Proceedings of Can. Bar Assoc. 284; (1932), 17 Proceedings 197;
44 Limitation of Actions, R.S.A. 1955, c. 177, s. 47.
45 Limitation of Actions Act, R.S.M. 1970, c. L150, s. 57.
46 Statute of Limitations, R.S.P.E.I. 1951, c. 87, s. 50.
47 Limitation of Actions Act, R.S.S. 1965, c. 84, s. 49.
4 8 Limitation of Actions Ordinance, R.O.N.W.T. 1956, c. 59, s. 46.
49 Limitation of Actions Ordinance, Y.R.O. 1958, c. 66, s. 46.
McGILL LAW JOURNAL
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(a) and (b) of sub-section 1 of section 2, if a person is out of the province
at the time a cause of action against him arises within the Province, the
person entitled to the action may bring the same within two years after
the return of the first mentioned person to the province or within the
time otherwise limited by this Act for bringing the action.60
Joint debtors
According to section 49 of the Limitations Act of Ontario: 01
(1) Where a person has any such cause of action against joint debtors
or joint contractors, he is not entitled to any time within which to com-
mence such action against any one of them who was in Ontario at the
time the cause of action accrued, by reason only that some other of them
was, at the time the cause of action accrued, out of Ontario.
(2) The person having such cause of action shall not be barred from
commencing an action against a joint debtor or joint contractor who was
out of Ontario at the time the cause of action accrued, after his return to
Ontario, by reason only that judgment has been already recovered against
a joint debtor or joint contractor who was at such time in Ontario.52
Borrowing statutes
In British Columbia, the Statute of Limitations Act deals with
the limitation of causes of action that have arisen abroad:
55.
In case any action shall be instituted in this Province against any
person here resident, in respect of a cause of action or suit which has
arisen between such person and some other person in a foreign country,
wherein the person so sued shall have been resident at the time when
such cause of action or suit shall have first arisen, such action shall not
be maintained in any Court of civil jurisdiction in the Province if the
remedy thereon in such foreign country is barred by any statute or
enactment for the limitation of actions existing in such foreign country. 3
The British Columbia statute does not adopt the rule generally
prevalent in Continental Europe that prescription is substantive,
but it recognizes, to some extent, the application of foreign statutes
of limitation to foreign causes of action, even if that statute might
be characterized as procedural by the forum.
Falconbridge is of the opinion that this statute deals perhaps
too generously with the defendant as it is probable that he still
has the benefit of the domestic statute “… in the event of the
plaintiff’s remedy not being barred by the foreign statute –
for
GO Emphasis added.
G’ Supra, n. 27.
52The statutes of all provinces contain substantially similar provisions, see
e.g., R.S.P.E.I. 1951, c. 87, s. 51 (1) and (2), R.S.S. 1965, c. 84, s. 50.
53R.S.B.C. 1960, c. 370, s. 55.
No. 41
PROCEDURE AND THE CONFLICT OF LAWS
example, if the period of limitation of the domestic statute is shorter
than that of the foreign statute”.5 4
3) Parties
Assuming that a right of action exists according to the lex causae,
the court must determine whether or not the plaintiff is entitled
to bring the action. This question should be solved by applying the
lex causae. If the plaintiff is an infant or a married woman, his or
her capacity to sue will be governed by the personal law. Thus, in
Lucas v. Coupal,55 an action was brought in Ontario by four infants
resident and domiciled in Quebec, who sued by their mother, also
domiciled in Quebec as their next friend, for damages arising from
a collision of two automobiles on a highway in Quebec. The defen-
dant, who resided in Ontario, argued that the infant plaintiffs had
no status to enforce, either in their own names or through the
medium of a next friend, a right of action that depended wholly
upon Quebec law and which, by that law, could only be enforced
by a tutor, duly appointed under that law, suing in his own name
in that capacity. The court found for the defendant on the ground
that the infant plaintiffs could not seek to enforce in Ontario, in
their own name, a right which by the lex causae was vested in their
tutor. The decision is sound although it would have been better
to say that, according to the law of their domicile, these infants
had no capacity to sue.5 6
In Sanderson v. Halstead,5 7 a question arose as to the plaintiff’s
status to sue in Ontario. The defendant submitted that since the
plaintiff was suing as the personal representative of the deceased,
he had to obtain an Ontario grant of letters probate or administra-
tion. The plaintiff replied that this was not necessary because he
had become the successor of the deceased in accordance with the
law of the deceased’s domicile and thereby acquired a personal and
individual right to maintain the action. In finding that the plaintiff
possessed the status to maintain the action the court said:
54 Op. cit., n. 5, at p. 299.
55 [1931] 1 D.L.R. 391, (1930), 66 O.L.R. 141, (1930), 38 O.W.N. 479.
56 See Kelly v. O’Brian, (1916), 37 O.L.R. 326, 10 O.W.N. 330, 31 D.L.R. 770:
a tutor duly appointed by a Quebec court was entitled to recover from the
executors the amount of a legacy payable under the will of a deceased who
had resided and died in Ontario to infants domiciled and residing in Quebec
whom he represented under his appointment; see also Re Burnett. [1936] O.R.
506. For a critical analysis of Lucas v. Coupal see Falconbridge, op. cit., n. 5,
pp. 121-122. Note that a duly appointed foreign guardian can always apply for
maintenance of an infant out of a fund in court in Ontario if such infant is
not domiciled in this province; Re Gripton, (1930), 38 O.W.N. 281.
6 [1968] 1 O.R. 749.
McGILL LAW JOURNAL
(Vol. 16
In order for the plaintiff to sue in Ontario there are two issues to be
resolved. The first one is whether he falls within the category of persons
or bodies that can be made a party to litigation. This question must be
determined by the lex fori and I am satisfied that the plaintiff is capable
of suit. The next issue is whether he is the proper plaintiff in the particular
action before the Court. If by the lex causae, the law of Quebec, the right
which he was seeking to enforce did not vest in him but in someone else,
then he was not. Since Quebec law, in particular art. 607 of the Civil Code
provides inter alia, that the plaintiff is seized by law alone of the property
rights and actions of the deceased, I find that the plaintiff possesses
the status to maintain the action.58
In George C. Anspach Co. v. C.N.R. Co.,59 Wilson, J. said:
This leaves for consideration the plaintiff’s status to sue. Its right to
bring this action in Ontario comes under the heading of procedure, and
procedure is governed exclusively by the law of the State or Province in
which the action is brought.60
As a result, the plaintiff’s right to sue was settled by section 2
of the Bills of Lading Act ‘ which provided that every consignee of
goods named in a bill of lading and every endorsee of a bill of lading
to whom the property in the goods therein mentioned passed upon
it by reason of such consignment or endorsement, shall have and
be vested with all such rights of action and be subject to all such
liability in respect of such goods as if the contract contained in the
bill of lading had been made with himself. It is suggested that in
this case the lex causae should have determined the plaintiff’s right
to sue in Ontario.
Some matters however, are governed by the lex fori. Thus the
question whether an alien can sue in the forum is a matter of
procedure.
The question of the name in which an action may be brought
is also a matter of procedure as it
is related to the method of
enforcement of the right in the forum rather than its existence.
For instance, the lex fori will determine whether the assignee of
a debt may sue in his own name or in the name of, or together with,
the assignor 2 or whether the action by a partnership may be
brought in the firm’s name.0
58 Ibid., at p. 752.
59 [1950] O.R. 317, [1950] 3 D.L.R. 26.
60 Ibid., at p. 332 (O.R.).
61 R.S.C. 1927, c. 17, s. 2.
2 Regas Ltd. v. Leon Louis Plotkins, [1961] S.C.R. 566, 36 W.W.R. 481, 29
6
D.L.R. (2d) 282, aff’g 30 W.W.R. 14, 22 D.L.R. (2d) 169.
6
3 Knauth Nachod et al. v. Stern, (1897), 30 N.S.R. 251 (C.A.). Foreign com-
paies may sue in provincial courts but they must prove that they are in-
corporated in the foreign country and that they can sue by the name they are
No. 4]
PROCEDURE AND THE CONFLICT OF LAWS
In Samson v. Holden,” the widow and adult sons of the victim
of an automobile accident which occurred in the State of Maine
and was caused by a person domiciled in Quebec brought an action
in that province to recover damages. According to the law of Maine
such an action, when the victim dies intestate, must be brought by
and in the name of the administrator appointed by the court.
Although one of the sons had been appointed administrator, he
brought the action with the other plaintiffs as beneficiary and not
as administrator. The Supreme Court of Canada did not consider
that lack of compliance with the laws of Maine deprived the plain-
tiffs of their right to bring an action in Quebec. The law of Maine
was procedural. It did not affect the right of action. The character-
ization of the Maine statute was done by the lex causae and by the
lex fori.
The question as to whether a partnership can be sued under
the name of its firm or whether the names of the partners have
to be declared, or whether an alien or a citizen can be sued, is one
that solely concerns procedure. On the other hand, the determina-
tion of who may represent an incapable defendant is a matter of
substance to be determined by the personal law of the incapable.
4) Priorities
In The Ship “Strandhill” v. Hodder Co.,6 the Supreme Court
of Canada held that although under the lex fori the plaintiff-
respondent had no maritime lien for necessaries supplied to the
defendant-appellant ship, the Exchequer Court of Canada, in Admi-
ralty, could entertain an action in rem for the recovery of the price
where a maritime then therefor was created under foreign law.
In other words, the lex causae, that is the proper law of the
contract, and not the lex fori governs the question whether a mar-
itime lien for necessaries will be recognized. However, where, in
addition to the claims of master and crew, claims are put forward
for temporary repairs and for sums due under a duly registered
using in the action. Alexander Hamilton Institutes v. Chambers, [1921] 3
W.W.R. 520, 14 Sask. L.R. 489, 65 D.L.R. 226 (CA.); Avon Stone Co. v. Dunham,
(1879), 18 N.B.R. 460 (C.A.); Bondholders Securities Corporation v. Manville,
[1933] 3 W.W.R. 1, [1933] 4 D.L.R. 699 (Sask. C.A.); see also Creamette Co. v.
Famous Foods Ltd., [1933] Ex. C.R. 200. (A foreign company may sue in
Canada).
04 [1963] S.C.R. 373, aff’g [1961] B.R. 239 (Que.).
65 [1926] S.C.R. 680, [1926] 4 D.L.R. 801.
McGILL LAW JOURNAL
[Vol. 16
mortgage, the priority of payment is governed by the lex fori 0 It
seems well established that the priority which will be given in the
distribution of proceeds is adjusted by the law of the forum.
5) Execution
Judgments and their execution are always governed by the
lex fori.
In an action brought in Ontario against a mortgagor resident
in Ontario upon a covenant to pay contained in a mortgage of land
in Alberta, the remedy by way of personal order against the defen-
dant for payment was governed by Ontario law, the lex fori, and
not by the Alberta statute prescribing the remedy in an action
brought upon a mortgage of land and settling the form of judgment
for the realization of the mortgage debt out of the landYT
Where a judgment was obtained in Saskatchewan on a contract
made in Alberta for the sale of land in that province, it was held that
the procedure for enforcing it must be governed by the lex fori.
An application for a charging order was granted even though an
Alberta statute restricted the rights of a vendor of land or his
assignee to realize on a judgment based on the personal covenant.
Whatever restrictions the statutes of Alberta may place upon the
enforcement of a judgment in that province, such restrictions can
have no application in Saskatchewan. 8
6) Damages
The law relating to damages is in part substantive and in part
procedural. 69
Cheshire7 distinguishes between remoteness of liability or re-
moteness of damage which is a question of substance and the
measure or quantification of damages which is a question of pro-
cedure. This distinction has now been widely accepted:
The rules relating to remoteness indicate which kind of loss actually
resulting from the commission of a tort or from a breach of contract
66 Harney et al. v. M. V. “Terry” [1948] 1 D.L.R. 728 (Ex. C.); see also Marquis
v. The Ship “Astoria”. [1931] Ex. C.R. 195, at p. 200, per Hazen, LJA.: “… the
question of priority of liens is treated as relating only to the remedy deter-
mined by the law of the forum.”
67Northern Trusts Co. v. McLean, [1926] 3 D.L.R. 93, 58 O.L.R. 683, 30 O.W.N.
153 (Ont. CA.).
68 Royal Trust Company v Kritzwiser, [1924] 3 D.L.R. 596 (Sask. C.A.).
69Boys v. Chaplin, [1969] 3 W.L.R. 32, at p. 332, per Lord Hodson, (H.L.),
[1968] 1 All E.R. 283.
7o Private International Law, (1965), 7th ed.
No. 4]
PROCEDURE AND THE CONFLICT OF LAWS
is actionable; the rules for the measure of damages show the method by
which compensation for an actionable loss is calculated… A rule as
to the measure of damages in the narrow sense is a mere rule of calcula-
tion that operates only after the injury or loss in question has been
found to be free from the vice of remoteness. Its function is to quantify
in terms of money the sum payable by the defendant in respect of the
injury, whether it be a tort or a breach of contract, for which his liability.
has already been determined by the proper law.71
In considering the cases, however, one must carefully analyse
the language used by the judges, as often they speak of measure
of damages when they have in mind what Cheshire calls remoteness
of liability or of damage. What emerges is that the kind of damage
is a matter of substantive law and the method of compensating the
plaintiff for his loss is for the lex fori.
In Livesley et al. v. Horst Co.1 2 the Supreme Court of Canada
held that the right to damages for breach of a contract is a
substantive right governed by the proper law of the contract and
not by the lex fori. Damages were claimed in respect of contracts
for hops grown in California and to be delivered in California. The
hops tendered by the plaintiff in execution of the contracts were
rejected as not answering in point of quality the description of the
contracts. The defendants argued that the right to damages is a
question of procedure which was governed by the Sales of Goods
Act 72a of the Province of British Columbia where the action had
been brought. On the other hand, the plaintiff contended that the
court should apply the California Civil Code which provides that
the seller acquires a lien upon the subject-matter of the sale as
soon as it is identified, for a sum equivalent to the purchase price
and that accessory to this lien there is given a power of sale by
auction on default of payment. If a sum equal to the amount of the
purchase money is not realized from the sale, the vendor also
becomes entitled to require from the purchaser payment of the
difference between the amount so realized and the sum due to
the vendor under the contract of sale. The trial judge found in
favour of the plaintiff and his decision was affirmed by the Court
of Appeal 73 and by the Supreme Court of Canada.
Duff, J. said:
In principle, it is difficult to discover a solid ground for refusing to
classify the right to damages for breach of contract with other rights
71 Ibid., pp. 600, 603.
72 [1924] S.C.R. 605, [1925] 1 D.L.R. 159.
72a R.S.B.C. 1911, c. 203.
73 (1924), 34 B.C.R. 19.
McGILL LAW JOURNAL
[Vol. 16
arising under the proper law of the contract, and recognizable and en-
forceable as such.
“Where rights are acquired under the laws of foreign states, the law
of this country recognizes and gives effect to those rights, unless it is
contrary to the law and policy of this country to do so”. The exception
embraces a very wide field, and among other things excludes procedure,
because the policy of English law recognizes no vested rights in procedure,
and a party invoking the jurisdiction of the courts must take procedure
as he finds it.
The concept of procedure, too, is, in this connection, a comprehensive
one, including process and evidence, methods of execution, rules of limit-
ation affecting the remedy and the course of the court with regard to
the kind of relief that can be granted to a suitor. But it does not, of
course, extend to substantive rights; and here questions as to substantive
rights include all questions as to the nature and extent of the obligation,
under the foreign contract…
Applying the principle to the circumstances of the case before us, the
lien given to the vendor, and the accessory right of sale, are obviously
substantive rights given by the law of California to the vendor as such;
in his capacity, that is to say as seller under a contract of sale.74
The substance of the contractual obligation includes the con-
sequences that result from a breach of the contract as the kind
of loss meriting reparation must not vary with the forum. What
kind of loss actually resulting from a breach of contract is actionable
is a question of law. In reaching this conclusion, the Supreme Court
cited and relied upon a passage from the judgment of Turner, L. J.
in Hooper v. Gumm, which reads:
… where rights are acquired under the laws of foreign states, the law of
this country recognises and gives effect to those rights unless it
is
contrary to the law and policy of this country to do so.7
5
This statement excluded procedure, for the party invoking the
lex fori must take procedure as he finds it.
The court also pointed out that the rule that contractual sti-
pulations as to the “measure” of damages embodied in the agreement
itself are governed as to validity and effect by the proper law of
the contract follows as a corollary from the principle that the cause
of action rests upon the rights given by that law.
In Rosencrantz v. Union Contractors Ltd. and Thornton,7 the
right given to the borrower by the usury laws of the lex causae
74 Supra, n. 72, at pp. 607-608 (S.C.R.).
75 (1867), 2 Ch. App. 282, at p. 289.
76 (1960), 23 D.L.R. (2d) 473, (1960), 31 W.W.R. 597 (B.C.); see also Canadian
General Electric Co. v. Canadian Rubber Co., (1915), 52 S.C.R. 349 (sum of
indemnity as liquidated damages for delay in execution of the contract
stipulated therein).
No. 4]
PROCEDURE AND THE CONFLICT OF LAWS
to recover a penalty upon a suit on the contract by the lender was
held to be substantive and not procedural.
The Supreme Court of Canada did not discuss the argument
that the right to recover damages as well as the “measure” of
damages in the case of an action upon a tort committed abroad
is a matter for the lex fori.77 Duff, J. merely stated that:
There is authority, both unmistakable in effect, and of high order, for
the proposition that the measure of damages in an action for reparation
in respect of a tort in a foreign country is not matter of procedure, but
matter of the substance of liability.78
However, in Story v. Stratford Mill Building Co., 79 which involved
an action brought in Ontario for a tort committed in Quebec, the
Court held that although in the Province of Quebec no damages
could be recovered in excess of the amount of compensation given
by local legislation, which would be much less than the amount
assessed by the jury in Ontario, nevertheless the action being
properly maintainable in the forum, the court must apply its own
rule in assessing damages. Riddell, J. did not share this view. He
stated that:
Were the matter res integra, it might not unreasonably be held that
the plaintiff, by suing in another jurisdiction, cannot put himself in a
better position than if he had sued in the country delicti commissi.
Speaking for myself, I should have hesitated to hold that a man
injured in Quebec could put himself in better position by coming to
Ontario, and suing in our Courts, than if he had sued where he received
his injury.80
However, he felt bound by Machado v. Fontes,8
lex fori. s2
1 to apply the
Thus, in the field of foreign torts, all questions of remedy, both
as to its nature and kinds or heads of assessment of pecuniary
damage, are determined by the lex fori.
Recently, in Boys v. Chaplin s2a the issue before the courts w-as
which law is to be applied in determining the heads or measure of
77 Machado v. Fontes, [1897] 2 Q.B. 231.
7 8 Livesley et al v. Horst Co., supra, n. 72, at p. 611. The court cited Turner, LJ.
in Cope v. Doherty (1858), 2 De G. & J. 614, at p. 623 and Wood, V.C. in the
same case, 4 K. & J., at p. 384.
79 (1913), 30 O.L.R. 271 (CA.).
80 Ibid., at pp. 285-286.
8l Supra, n. 77. In that case damages were awarded for a foreign tort even
though the lex causae did not provide for them.
lex fori applies.
82 See also Young v. Industrial Chemicals Co. Ltd., [1939] 4 D.L.R. 392 (B.C.):
82a Supra, n. 69.
McGILL LAW JOURNAL
[Vol. 16
damage to be awarded to the plaintiff where an action is brought in
England in respect of a tort committed abroad. Under the lex loci
delicti, the plaintiff could only recover special damages and in ad-
dition certain, as distinct from problematical, future financial loss.
In other words, he had a right of action for what was in effect only
reimbursement or indemnity or compensation for pecuniary expense
or loss. By English law he had a right of action for damages for
all the relevant consequences of the accident including pain and
suffering, as well as pecuniary expenses and loss. In the court of
first instance,8 3 the judge considered himself bound by Machado
v. Fontes.84 He applied the law of England as the lex fori and
awarded damages accordingly. In the Court of Appeal, Lord Denning,
applying English law as the proper law of tort, reached the same
result by a different route.8 5 He was of the opinion that the law
governing substantive liability should be applied
… not only to ascertaining whether there is a cause of action, but also to
ascertaining the heads of damage that are recoverable and also the measure
of damages: for these are matters of substantive law. They are quite
distinct from the mere quantification of damages, which is a matter of
procedure for the lex fori.85a
Lord Upjohn held that English law was applicable qua lex fori.
Diplock, L. J. dissented on the ground that the English court in
assessing the heads of damage must apply the lex loci delicti.
In the House of Lords, 6 three of the five Law Lords who heard
T
the case overruled Machado v. Fontes and held that Phillips v. Eyre 1
laid down a double actionability rule. Four of them were of the
opinion that the question of heads or measure of damage was one
of substance and not of procedure governed by the proper law
of tort which in this case was the law of England, which also happen-
ed to be the lex jori.
Lord Hodson was of the opinion that questions such as whether
loss of earning capacity or pain and suffering are admissible heads
of damage must be questions of substantive law. Thus, English law,
which was the proper law, was applicable.
Lord Pearson also believed that damages for pain and suffering
was a question of substantive law.
83 [1968] 2 Q.B. 1, [1967] 3 W.L.R. 266, [1967] 2 All E.R. 665.
84 Supra, n. 77.
8 [1968] 2 Q.B. 11, [1968] 2 W.L.R. 328, [1968] 1 All E.R. 283.
85a Ibid., at p. 337 (W.L.R.).
86 [1969] 3 W.L.R. 322, [1969] 2 All E.R. 1085.
87 (1870), L.R. 6 Q.B. 1.
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PROCEDURE AND THE CONFLICT OF LAWS
On the other hand, Lord Guest was ot the opinion that compen-
sation for pain and suffering was not a head of damage apart from
patrimonial loss but was merely an element in the quantification
of the total compensation which was a question for the lex fori.
Lord Donovan agreed with Lord Upjohn in the Court of Appeal.
Lord Wilberforce said that there seemed
… to be some artifice in regarding a man’s right to recover damages for
pain and suffering as a matter of procedure. To do so, at any rate, goes
well beyond the principle which I entirely accept, that matters of assess-
ment or quantification, including no doubt the manner in which provision
is made for future or prospective losses, are for the lex fori to deter-
mine.88
An interesting problem came before the Supreme Court of
Canada in Lister v. McAnulty, 9 on appeal from Quebec. A husband
acting as head of the community property brought an action in
Quebec for damages resulting from bodily injuries suffered by his
wife following an automobile accident in that Province. The consorts,
though married in Quebec without a marriage contract, had their
domicile in the State of Massachusetts at all relevant times, where
separation as to property is the rule in such a case.
The defendant argued that since the husband’s domicile at the
time of the marriage was in Massachussetts, under the law of that
State he had no right or title to assert or recover any damages
which were personal to his wife. He could only recover the damages
actually and directly suffered by him from the accident. The de-
fendant also denied the plaintiff any right to claim damages for
loss of consortium and servicium because they were not recoverable
under the laws of Massachusetts. Thus the issue before the court
was the damage to the husband, and only such damage as arose
by reason of his relationship with his wife who was the immediate
victim of the accident.
The court was of the opinion that the status and the rights
and obligations of the husband towards his wife were governed
by the law of Massachussetts under which there was no right to
consortium and servicium. What he claimed he had lost was not
due to him under the laws of his domicile as naturally attaching
to his status. He had suffered no invasion of his rights, which is
a fundamental condition to give rise to an action in damages.
However, with respect to his right to damages for future expenses,
which were not recoverable under the law of Massachusetts, the
88Supra, n. 86, at p. 344 (W.L.R.).
89 [19441 S.C.R. 317, [1944] 3 D.L.R. 673.
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law of Quebec applied as the lex loci delicti. Hudson, J. was of
the opinion that the question of the remoteness of damages was
not a question of status. He said:
When the husband proved a valid subsisting marriage and a right to
consortium by the laws of Massachusetts he established his status. It
then remains for the Court to decide what remedy should be awarded
for a wrongful interference with this right by a third party. This should
in my opinion, be decided by a Quebec Court in accordance with Quebec
Laws.P0
His Lordship seemed to suggest that the Quebec rule fixing the
measure of damages ought to be applied because Quebec was the
forum. However, this would be an erroneous interpretation of
the law.91
The law of Massachusetts determined the incidents of the
marriage status that were relevant to the tort action, in other
words, the rights which had been violated by the tortfeasor. The
legal consequences from these acts were governed by the law of
Quebec qua lex loci delicti. Since the tort was committed in Quebec,
the law of the province should determine the measure of the
plaintiff’s recovery provided he had a right according to the law
of Massachusetts which governed his status. As Taschereau, J. said,
speaking for the majority:
What the appellant [husband] claims he has lost, is not due him under
the laws of his domicile as naturally attaching to his status. He has
suffered no invasion of his rights, which is a fundamental condition to
give rise to an action in damages.92
This was emphasized by Rand, 3.:
Under that language [of art. 1053 C.C.] not only the immediate victim of
a wrongful act, but third persons whose legal rights that act, through the
direct injury, has trespassed, are entitled to redress. The claim here is
by a third party and in order to bring himself within the article he must
show that some right of his has been invaded and that damage has
resulted. He is the husband and whatever primary rights he has in
relation to his wife are those which arise from the marriage status; and
to ascertain them we must go to the law of the domicile. Once they
are ascertained there has been presented the jural material on which
the law of the place must operate to create or withhold a right of action
against the person whose act has brought about the damaging conse-
quences.93
90 Ibid., at p. 333 (S.C.R.).
91 For a criticism of this passage, see M. Hancock, A Problem in Damages
for Tort in the Conflict of Laws, (1944), 22 Can. Bar Rev. 843, esp. at pp. 850
et seq.
92 Supra, n. 89, at p. 325 (S.C.R.).
93 Ibid., at p. 335 (S.C.R.).
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PROCEDURE AND THE CONFLICT OF LAWS
7) Evidence
What are the facts in issue is a matter for the lex causae whereas
the lex fori determines how they must be proved.
The law of evidence is the lex fori which governs the Courts. Whether a
witness is competent or not: whether a certain matter requires to be
proved by writing or not: whether a certain evidence proves a certain
fact or not: that is to be determined by the law of the country where
the question arises, where the remedy is sought to be enforced, and
where the Court sits to enforce it.94
However,
… it is not everything that appears in a treatise on the law of evidence that
is to be classified internationally as adjective law, but only provisions of
a technical or procedural character –
for instance, rules as to the admissi-
bility of hearsay evidence or what matters may be noticed judicially.9 5
Presumptions and burden of proof
Are presumptions of law and fact, and burden of proof,.6
matters of procedure or of substance? The answer to this question
is not free from controversy, but ordinarily presumptions of law
and fact and the burden of proof, are deemed to be regulated by
the lex fori. However, when they are closely connected with the
rights of the parties they should be regarded as substance.
Thus, a distinction should be made between rebuttable pre-
sumptions of law, such as presumptions of fault or negligence, which
merely shift the burden of proof from the defendant to the plaintiff,
and rebuttable presumptions of law, such as presumptions of death,
where the plaintiff’s right depends entirely upon the application
of the presumption. In the former case, the presumption is pro-
cedural, while in the latter, it is substantive. Thus, In re Cohn,
Uthwatt, J. said:
The mode of proving any fact bearing on survivorship is determined by
the lex fori. The effect of any fact so proved is for the purpose in hand
determined by the law of the domicile. The fact proved in this case is
that it is impossible to say whether or not Mrs. Oppenheimer survived
Mrs. Cohn. Proof stops there. Section 184 of the Law of Property Act,
1925, does not come into the picture at all. It is not part of the law of
evidence of the lex fori, for the section is not directed to helping in the
ascertaining of any fact but contains a rule of substantive law directing
94 Bain v. Whitehaven and Furness Railway Co., (1850), 3 H. L. Cas. 1, at p.
19; Waydell v. Provincial Ins. Co., (1862), 21 U.C.Q.B. 612, at p. 622 (C.A.):
whether the defendant had waived its right to proof of loss was a question for
the lex fori; Daye v. H. W. McNeill Co., (1904), 6 Terr. L.R. 23 (CA.).
95 Mahadervan v. Mahadervan, [1964] P. 233, at p. 243.
90 E.g., rule actor incumbit probatio.
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a certain presumption to be made in all cases affecting the title to
property. As a rule of substantive law the section is relevant where
the title is governed by the law of England. It has no application where
title is determined by the law of any other country.07
In re Cohn was cited with approval by Scarman, J. in The
Estate of Fuld, deceased.9 8 In this case, the requirement of know-
ledge and approval for the validity of a testamentary instrument
was held to be a rule evidential in character and to be applied by
the English court as part of its lex fori if the facts of the case
are such as to call for its application. His Lordship said:
To conclude, a comparative examination of the two systems of law
reveals, as one would expect, that each requires of a valid will that it
be the true will of a free and capable testator. The systems differ as
to the incidence of proof – notably in their respective approaches to the
problem of burden of proof in regard to testamentary capacity. Which
approach is the English court to adopt?
I have no hesitation in saying, as I have already mentioned that it
must follow the lex fori, its own law. The English court is being asked
to grant probate in solemn form. Upon it falls the responsibility of
deciding whether the instruments propounded express the real intentions
of the testator. In my judgment this discharge of this responsibility is a
matter for the judicial conscience of the court, guided in the business
of investigation and proof by its own lex for!.
The court is not being asked to give effect to a “foreign probate”.
Indeed, it is conceded that no order equivalent to probate in solemn form
has yet been made by a German court, and I have not been asked to
adjourn until a German court of appropriate jurisdiction pronounces an
order equivalent to probate. On the contrary, the parties, as is their right,
have required the English court to conduct its own protracted inquiry
into the facts. The court must conduct such an inquiry in accordance with
its own “lex”: and in cases where suspicion arises the requirements of
this “lex” are strict indeed.9
The presumption of the due celebration of a marriage is a
rebuttable presumption of law which also relates to the proof of
facts, as distinguished from the question of what facts must be
proved. Such a presumption is procedural. 100
97 [1945] 1 Ch. 5, per Uthwatt, J., at pp. 7-8; discussed by Falconbridge, op. cit.,
n. 5, pp. 313-314.
08 (No. 3), [1966] 2 W.L.R. 717 (P.), at p. 734 et seq.
99 Ibid., at p. 737.
300 Contra: Leong Sow Nom v. Chin Yee You et at., (1934), 49 B.C.R. 244,
[1934] 3 W.W.R. 686 (S.C.) and Falconbridge, Case and Comment, (1935), 13
Can. Bar Rev. 317. As to presumptions in favour of validity of marriage, see
also Robb v. Robb, (1891), 20 O.R. 591; In re Tiernay, (1885), 25 N.B.R. 286
(CA.), and Meszaros v. Meszaros, (1969), 5 D.L.R. (3d) 294 (Ont. H.C.); Baran
v. Wilensky, (1959), 20 D.L.R. (2d) 440 (Ont. H. C.); Middlemiss v. Middlemiss,
(1955), 15 W.W.R. 641 (B.C.C.A.); In Nova Scotia, “Wherever in any cause or
No. 4]
PROCEDURE AND THE CONFLICT OF LAWS
Conclusive or irrebuttable presumptions of law are rules of
substance because they do not relate to the manner of proving
facts but prevail without regard to the facts.
The burden of proving contributory negligence would seem to
be a question of substantive law,101 as this question is intimately
connected with the existence of the right of action.
Admissibility of evidence
The lex fori will determine whether evidence is admissible or
not. Thus, in an action upon a covenant in a Quebec lease against
the nominal owner for damages resulting from collapse of the
building, it was held that evidence will be admitted in accordance
with the lex fori showing that the defendant was holding title
only by way of security, in spite of the fact that in the Province
of Quebec such evidence would not have been admissible and the
defendant would therefore have been held liable as owner.10 2
To be admissible in Canadian courts, a foreign document must
comply with the rules of the lex fori even though it will be inter-
preted by the lex causae.
Requirement of written evidence
Certain contracts are required to be in writing by the Statute
of Frauds as evidence of their existence. Thus, in Ontario, section
4 of the Statute of Frauds 103 provides that “no action shall be
brought” on a number of contracts unless the agreement, or a note
or memorandum thereof was in writing, signed by the person who
is obliged by the contract to do something or his authorized agent. 04
If the relevant provision of the Statute of Frauds is characterized
as substantive, a contract governed by a law that does not require
matter in any court in the Province it is necessary to prove a foreign marriage
and the fact of the solemnization of such foreign marriage is proved, there
shall thereupon arise a prima facie presumption that such foreign marriage
was duly solemnized in accordance with the foreign law.” (Evidence Act,
R.S.N.S. 1967, c. 94, s. 40(2).
101 M. Hancock, Torts in the Conflict of Laws, (1942), pp. 159 et seq.
1O2 Malo and Bertrand v. Clement, [1943] O.W.N. 555, [1943] 4 D.L.R. 773.
1031n Saskatchewan, verbal contracts of employment for a period of more
than a year are void and of no effect unless they are in writing and signed
by the contracting parties: The Wages Recovery Act, R.S.S. 1965, c. 296, s. 4.
This section would appear to be substantive. Other statutes similarly require
that agreements to pay commissions to real estate agents be in writing: Real
Estate Brokers Act, S.S. 1968, c. 58, ss. 28-30.
104 R.S.O. 1960, c. 381.
McGILL LAW JOURNAL
[Vol. 16
it to be in writing could be made the subject of an action in the
courts of any of the Canadian provinces where such a statute is
in force whereas this would not be possible if the provision were
characterized as procedural.
In Leroux v. Brown,10 5 the English Court of Common Pleas
held that section 4 of the English Statute of Frauds, 1677, was
procedural and that an oral contract made in France, and governed
by French law was not enforceable in England. The court emphasized
the difference which existed between the wording of section 4
“no action shall be brought” and that of section 17 “no contract…
shall be allowed to be good”.
Falconbridge 10 points out that a statute ought not to be char-
acterized as procedural merely by reason of the use of the words
“no action shall be brought”.
Since the note or memorandum “must be in existence before
the commencement of the action, it is therefore an essential part
of the cause of action and not merely a matter of procedure in
the sense of a curial rule of the forum with regard to the enforcement
of a cause of action”. Therefore, section 4 cannot be construed
as exclusively relating to evidence or the mode of proof of a contract.
In Green et al v. Lewis,107 Leroux v. Brown was distinguished
on the ground that section 17 of the English Statute of Frauds
related to “solemnities” of the contract and not to the procedure
for its enforcement. Thus, an oral contract for the sale of goods
made in Illinois and valid and enforceable there in the absence
of any statutory provision requiring a writing, was valid and en-
forceable in Ontario.
Some time prior to the passing of the Sale of Goods Act, (1893),
however, it had become the generally accepted view in England
that the words “no contract.., shall be allowed to be good” in
section 17 of the Statute of Frauds were equivalent to “a contract…
shall not be enforceable by action”, as now expressed in section 4
of the Sale of Goods Act.’08 If Leroux v. Brown is good law, then
it would appear that Green v. Lewis is no longer good law, whatever
105 (1852), 12 C.B. 801, 138 E.R. 1119.
o6 For a discussion and criticism of this case, see Falconbridge, op. cit.,
n. 5, pp. 98 et seq., esp. at pp. 99-100.
107 (1867), 26 U.C.Q.B. 618.
108 (1893), 56 & 57 Vict., c. 71. See, however, the dissenting view stated by
Lord Finlay L.C., in Morris v. Baron, [1918] A.C. 1, at p. 11, a view for
which there is much to be said! Holdsworth, History of English Law, vol. 6,
(1924), p. 386, note 4.
No. 4]
PROCEDURE AND THE CONFLICT OF LAWS
it was when it was decided. On the other hand, the very thing which
renders the two cases indistinguishable, namely, that there was,
or is, no difference in substance between the wording of section 4
of the Statute of Frauds (“no action shall be brought”), and that
of section 17 (“no contract.., shall be allowed to be good”) impairs
part of the reasoning upon which the judgment in Leroux v. Brown
was based. Leroux v. Brown was adversely commented on in
Williams v. Wheeler 109 and in Gibson v. Holland 110 and it may
be open to question whether the court in Leroux v. Brown correctly
characterized the question as one of procedure.
In Williams v. Wheeler, Willes, 3. said:
I also am of opinion that this appeal must be dismissed on the ground
stated by my Lord. The point of law sought to be raised upon the Statute
of Frauds is an extremely nice one; but it is one upon which it is not
necessary on the present occasion to offer any opinion, though I cannot
help observing that I should require much more argument to satisfy me
that a contract made in France without writing, which is valid by the
French law, is incapable of being enforced in an English court, by reason
of the requirements of the English law as to formalities of contracts made
in England. The general rule is that locus regit actum. And, though I fully
recognize the principle upon which the judgment of this court in Leroux v.
Brown professes to be found, viz. that the procedure is regulated by the
lex fori, I am not satisfied that either of the sections of the Statute of
Frauds to which reference has been made warrants the decision. We must,
however, act upon Leroux v. Brown until it is overruled by a court of
error.”‘
Falconbridge points out that
[t]he principle of the decision in Leroux v. Brown would seen to be
equally applicable, under another clause of s. 4 of the Statute of Frauds,
to a ‘contract or sale of lands, tenements and hereditaments, or any interest
in or concerning them’, so as to render unenforceable in… Ontario … a
contract to sell, charge or mortgage land, notwithstanding that the land
is situated in another country by the law of which the contract is valid
and enforceable.” 2
109 (1860), 8 C.B.N.S. 299, 141 E.R. 1181.
110 (1865), L.R. 1 C.P. 1.
M Supra, n. 109, at p. 316 (C.B.N.S.).
112 Op. cit., n. 5, p. 100. As to questions raised by Leroux v. Brown, and
generally as to the Statute of Frauds, see Lorenzen, The Statute of Frauds and
the Conflict of Laws, (1923), 32 Yale LU. 311, reprinted in his Selected Articles
on the Conflict of Laws, (1947); Beckett, The Question of Classification
(“Qualification”) in Private International Law, (1934), 15 Brit. Y. B. Int. L. 46,
at pp. 66-71; Goodrich, Handbook of the Conflict of Laws, (1949), 3rd. ed.,
pp. 245 et seq.; Cook, The Logical and Legal Bases of the Conflict of Laws,
(1942), pp. 156, 170, 225.
McGILL LAW JOURNAL
[Vol. 16
In John Morrow Screw and Nut Co. v. Francis Hankin,113 decided
by the Supreie Court of Canada, Mr. Justice Anglin said:
While the proof of a contract within Art. 1235 C.C.114 must as a matter of
procedure be made according to the lex fori, its validity depends upon
the lex loci contractus, which in this case is Ontario.11 r
and Mr. Justice Mignault added:
I do not care to lay down any general rule on the question whether the
proof of a foreign contract is, as a matter of procedure, governed by
the lex fori, or by the lex loci contractus. But I do think that such a
provision as article 1235 is one which a Quebec court must follow when
it is sought to make evidence of any of the matters mentioned by it,
quite irrespective of the locality where the contract, warranty, promise
or acknowledgement was made. In this sense, and I do not wish to be
understood as otherwise dealing with the subject of conflict of laws, the
lex fori prevails over the lex fori contractus.116
113 (1918), 58 S.C.R. 74, 45 D.L.R. 685, on appeal from Quebec.
114 Article 1235 of the Quebec Civil Code provides that: “In commercial
matters in which the sum of money or value in question exceeds fifty dollars,
no action or exception can be maintained against any party or his represent-
atives unless there is a writing signed by the former, in the following cases: ..
115 Supra, n. 113, at p. 86 (S.C.R.).
110Ibid, at p. 94 (S.C.R.).
