TaxTMI 
TaxTMI 
1990 (12) TMI 331
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....or. Shortly afterwards, he moved to British Columbia and has not resided or carried on business in Alberta since. The mortgages fell into default and the respondents brought action in Alberta. The appellant was served with process in the actions by double registered mail addressed to his home in British Columbia pursuant to orders for service by the Alberta court in accordance with its rules for service outside its jurisdiction. There are rules to the same effect in British Columbia. The appellant took no steps to appear or to defend the action. There was no clause in the mortgages by which he agreed to submit to the jurisdiction of the Alberta court, and he did not attorn to its jurisdiction. The respondents obtained judgments nisi in the foreclosure actions. At the expiry of the redemption period, they obtained "Rice Orders" against the appellant. Under these orders, a judicial sale of the mortgaged properties to the respondents took place and judgments were entered against the appellant for the deficiencies between the value of the property and the amount owing on the mortgages. The respondents then each commenced a separate ....
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....tion over a defendant resident outside the province were long established in English and Canadian law. He referred to Comber v. Leyland, [1898] A.C. 524 (H.L.), which held, at p. 527, that: . . . where the parties have agreed that something is to be done in this country, some part of the subject-matter of the contract is to be executed within this country, it is a sort of consent of the parties that wherever they may be living, or wherever the contract may have been made, that question may be litigated in this country. In Seaton J.A.'s view, this reasoning led logically to the assumption of jurisdiction, and reciprocally to the recognition by other courts. In this context, he cited Travers v. Holley, [1953] 2 All E.R. 794, where the English Court of Appeal had recognized a divorce decree granted in New South Wales on the ground that the English courts would in similar circumstances have exercised jurisdiction in the same way. If that reasoning were to be applied to courts of other provinces, judgments of other provinces should be enforced if the British Columbia courts exercise similar jurisdiction. Seaton J.A. acknowledged, however, that this view ha....
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.... there if it can. It would be surprising if they did. They concern transactions entered into in Alberta by individuals who were resident in Alberta at the time of the transactions and involve land situate in that province. Though the defendant appellant was outside Alberta at the time the actions were brought and judgment given, the Alberta rules for service outside the jurisdiction permitted him to be served in British Columbia. These rules are similar to those in other provinces, and specifically British Columbia. The validity of such rules does not appear to have been subjected to much questioning, a matter to which I shall, however, return. The issue, then, as already mentioned, is simply whether a personal judgment validly given in Alberta against an absent defendant may be enforced in British Columbia where he now resides. The English Background The law on the matter has remained remarkably constant for many years. It originated in England during the 19th century and, while it has been subjected to considerable refinement, its general structure has not substantially changed. The two cases most commonly relied on, Singh v. Raj....
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....rom Becquet v. Mac Carthy (1831), 2 B. & Ad. 951, 109 E.R. 1396, it might have appeared that a sixth class might have been added to Buckley L.J.'s list, namely, "where the defendant has real estate within the foreign jurisdiction, in respect of which the cause of action arose whilst he was within that jurisdiction". But that case was ultimately explained on the basis that the defendant there was the holder of a public office in the place where the judgment was obtained and so "constructively present" there at the time of the judgment; see Symon, supra, at pp. 310-11. One might also have been permitted to speculate that one who enters into a contract while residing in a given jurisdiction consents to the jurisdiction of the courts there as Blackburn J. seemed prepared to do in Schibsby v. Westenholz (1870), L.R. 6 Q.B. 155, at p. 161, but this possibility too was scotched in Symon; see per Lord Alverstone C.J., at p. 308. Until the 1950s, then, the various circumstances identified by Buckley L.J. in Symon exhausted the possible cases in which a foreign judgment would be recognized in England. A change came, however, with the case of Travers v. Holley, supra,....
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.... Manx jurisdiction. That point depended on the facts of the case, and it was decided against him, whence it followed that he was properly served out of the Manx jurisdiction in accordance with the rules of the Manx court. Those rules correspond with the English rules for service out of the jurisdiction contained in R.S.C., Ord. 11, and I do not doubt that our courts would recognise a judgment properly obtained in the Manx courts for a tort committed there whether the defendant voluntarily submitted to the jurisdiction or not, just as we would expect the Manx courts in a converse case to recognise a judgment obtained in our courts against a resident in the Isle of Man on his being properly served out of our jurisdiction for a tort committed here. [Emphasis added.] This possibility of further extending the categories in the Symon case was, however, firmly rejected in In re Trepca Mines Ltd., [1960] 1 W.L.R. 1273 (C.A.), where the court stated that Travers v. Holley was limited to a judgment in rem in a matter affecting marital status, and that it was unwilling to take the step suggested by Denning L.J. in the Dulles case. In short, the English auth....
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....Full Court)); Marshall v. Houghton, [1923] 2 W.W.R. 553 (Man. C.A.); Mattar v. Public Trustee (1952), 5 W.W.R. (N.S.) 29 (Alta. S.C., App. Div.); Wedlay v. Quist (1953), 10 W.W.R. (N.S.) 21 (Alta. S.C., App. Div.); Bank of Bermuda Ltd. v. Stutz, [1965] 2 O.R. 121 (H.C.); Traders Group Ltd. v. Hopkins (1968), 69 D.L.R. (2d) 250 (N.W.T. Terr. C.); Batavia Times Publishing Co. v. Davis (1977), 82 D.L.R. (3d) 247 (Ont. H.C.), aff'd (1979), 105 D.L.R. (3d) 192 (Ont. C.A.); Eggleton v. Broadway Agencies Ltd. (1981), 32 A.R. 61 (Alta. Q.B.); Weiner v. Singh (1981), 22 C.P.C. 230 (B.C. Co. Ct.); Re Whalen and Neal (1982), 31 C.P.C. 1 (N.B.Q.B.); North American Specialty Pipe Ltd. v. Magnum Sales Ltd., B.C.S.C., No. C841410, February 11, 1985 (summarized in (1985), 31 A.C.W.S. (2d) 320). Essentially, then, recognition by the courts of one province of a personal judgment against a defendant given in another province is dependant on the defendant's presence at the time of the action in the province where the judgment was given, unless the defendant in some way submits to the jurisdiction of the court giving the judgment. Soon after the decision in Travers v. Holley, sup....
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....ernational law) rules of the courts of British Columbia. Held - Judgment for plaintiff. Reason would suggest that inside the Confederation of Canada the principle of reciprocity of jurisdiction should apply. The action was concerned, and only concerned, with a judgment of a next-door province, not a foreign state but a partner in Confederation, which could not be registered as a domestic judgment because the defendant never submitted to the jurisdiction of the Alberta court. Because the judgment was a default judgment, it could have been opened up on the merits had the defendant chosen to do so, but he deliberately chose not to do so, preferring to rest his defence on the grounds of "no presence" and "no submission". In those circumstances, there being as between Alberta and British Columbia reciprocity of jurisdiction, it was appropriate to apply the principle that our courts should recognize a jurisdiction which they themselves claim. The British Columbia Court of Appeal in the present case has now added its support to the call that reason dictates the evolution of the common law to permit the enforcement of in personam judgments given in sister-p....
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....jurisdiction. Great Britain, and specifically its courts, applied that doctrine more rigourously than other states; see Libman v. The Queen, [1985] 2 S.C.R. 178, which deals with the question in its criminal aspect. The English approach, we saw, was unthinkingly adopted by the courts of this country, even in relation to judgments given in sister-provinces. Modern states, however, cannot live in splendid isolation and do give effect to judgments given in other countries in certain circumstances. Thus a judgment in rem, such as a decree of divorce granted by the courts of one state to persons domiciled there, will be recognized by the courts of other states. In certain circumstances, as well, our courts will enforce personal judgments given in other states. Thus, we saw, our courts will enforce an action for breach of contract given by the courts of another country if the defendant was present there at the time of the action or has agreed to the foreign court's exercise of jurisdiction. This, it was thought, was in conformity with the requirements of comity, the informing principle of private international law, which has been stated to be th....
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....ss state lines in a fair and orderly manner. Von Mehren and Trautman have observed in "Recognition of Foreign Adjudications: A Survey and A Suggested Approach" (1968), 81 Harv. L. Rev. 1601, at p. 1603: "The ultimate justification for according some degree of recognition is that if in our highly complex and interrelated world each community exhausted every possibility of insisting on its parochial interests, injustice would result and the normal patterns of life would be disrupted." Yntema (though speaking more specifically there about choice of law) caught the spirit in which private international law, or conflict of laws, should be approached when he stated: "In a highly integrated world economy, politically organized in a diversity of more or less autonomous legal systems, the function of conflict rules is to select, interpret and apply in each case the particular local law that will best promote suitable conditions of interstate and international commerce, or, in other words, to mediate in the questions arising from such commerce in the application of the local laws"; see Hessel E. Yntema, "The Objectives of Private International Law" (1957), 35 Can. ....
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.... Indeed, in my view, there never was and the courts made a serious error in transposing the rules developed for the enforcement of foreign judgments to the enforcement of judgments from sister-provinces. The considerations underlying the rules of comity apply with much greater force between the units of a federal state, and I do not think it much matters whether one calls these rules of comity or simply relies directly on the reasons of justice, necessity and convenience to which I have already adverted. Whatever nomenclature is used, our courts have not hesitated to cooperate with courts of other provinces where necessary to meet the ends of justice; see Re Wismer and Javelin International Ltd. (1982), 136 D.L.R. (3d) 647 (Ont. H.C.), at pp. 654-55; Re Mulroney and Coates (1986), 27 D.L.R. (4th) 118 (Ont. H.C.), at pp. 128-29; Touche Ross Ltd. v. Sorrel Resources Ltd. (1987), 11 B.C.L.R. (2d) 184 (S.C.), at p. 189; Roglass Consultants Inc. v. Kennedy, Lock (1984), 65 B.C.L.R. 393 (C.A.), at p. 394. In any event, the English rules seem to me to fly in the face of the obvious intention of the Constitution to create a single country. This presupposes a basic goal....
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....nal arrangements and practices make unnecessary a "full faith and credit" clause such as exists in other federations, such as the United States and Australia. The existence of these clauses, however, does indicate that a regime of mutual recognition of judgments across the country is inherent in a federation. Indeed, the European Economic Community has determined that such a feature flows naturally from a common market, even without political integration. To that end its members have entered into the 1968 Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters. The integrating character of our constitutional arrangements as they apply to interprovincial mobility is such that some writers have suggested that a "full faith and credit" clause must be read into the Constitution and that the federal Parliament is, under the "Peace, Order and Good Government" clause, empowered to legislate respecting the recognition and enforcement of judgments throughout Canada; see, for example, Black, op. cit., and Hogg, op. cit. The present case was not, however, argued on that basis, and I need not go that far. For present purposes, it....
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....nbsp; No breach of law is asserted by the respondent. No improper purpose has been exposed. It is simply a clash of rights: the respondents' right to protect their position under any judgment which might hereafter be obtained, and the appellant's right to exercise its undoubted corporate capacity, federally confirmed (and the constitutionality of which is not challenged), to carry on business throughout Canada. The appellant does not seek to remove the assets in question from the national jurisdiction in which its corporate existence is maintained. The writ of the Manitoba court runs through judgment, founded on service of initiating process on the appellant within Manitoba, into Ontario under reciprocal provincial legislation, and into Quebec by reason of the laws of that province, supra. None of these vital considerations was present in the United Kingdom where Mareva was conceived to fend off the depredations of shady mariners operating out of far-away havens, usually on the fringe of legally organized commerce. In the Canadian federal system, the appellant is not a foreigner, nor even a non-resident in the ordinary sense of the ....
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.... the greatest or at least significant contacts with the subject-matter of the action. But it hardly accords with principles of order and fairness to permit a person to sue another in any jurisdiction, without regard to the contacts that jurisdiction may have to the defendant or the subject-matter of the suit; see Joost Blom, "Conflict of LawsEnforcement of Extraprovincial Default JudgmentReciprocity of Jurisdiction: Morguard Investments Ltd. v. De Savoye" (1989), 68 Can. Bar Rev. 359, at p. 360. Thus, fairness to the defendant requires that the judgment be issued by a court acting through fair process and with properly restrained jurisdiction. As discussed, fair process is not an issue within the Canadian federation. The question that remains, then, is when has a court exercised its jurisdiction appropriately for the purposes of recognition by a court in another province? This poses no difficulty where the court has acted on the basis of some ground traditionally accepted by courts as permitting the recognition and enforcement of foreign judgmentsin the case of judgments in personam where the defendant was within the jurisdiction at the time of the ....
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.... company under The Fatal Accidents Act of Saskatchewan claiming the company had been negligent in the manufacture of the light bulb and in failing to provide an adequate safety system to prevent unsafe bulbs from leaving the plant and being sold or used. On a chambers motion, the trial judge held that any negligence would have occurred in Ontario and so the tort was committed out of Saskatchewan. He, however, granted special leave under a provision of The Queen's Bench Act to commence an action in Saskatchewan, and made an order allowing service of the statement of claim and a writ of summons in Ontario. The company successfully appealed to the Saskatchewan Court of Appeal, but the Court of Appeal's judgment was reversed by this Court. Dickson J. gave the reasons of the Court. The location of a tort, he noted, was a matter of some difficulty. Normally, he observed, an action for a tort would be brought where the defendant happened to be, on the theory that the court had physical power over the defendant. But, he added, that suit could also be brought where the tort had been committed. Where the situs of the tort was, however, was....
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....f suffered damage is entitled to exercise judicial jurisdiction over that foreign defendant. This rule recognizes the important interest a state has in injuries suffered by persons within its territory. It recognizes that the purpose of negligence as a tort is to protect against carelessly inflicted injury and thus that the predominating element is damage suffered. By tendering his products in the market place directly or through normal distributive channels, a manufacturer ought to assume the burden of defending those products wherever they cause harm as long as the forum into which the manufacturer is taken is one that he reasonably ought to have had in his contemplation when he so tendered his goods. This is particularly true of dangerously defective goods placed in the interprovincial flow of commerce. [Emphasis added.] Before going on, I should observe that if this Court thinks it inherently reasonable for a court to exercise jurisdiction under circumstances like those described, it would be odd indeed if it did not also consider it reasonable for the courts of another province to recognize and enforce that court's judgment. ....
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....ned. In my view, the Alberta court had jurisdiction, and its judgment should be recognized and be enforceable in British Columbia. I am aware, of course, that the possibility of being sued outside the province of his residence may pose a problem for a defendant. But that can occur in relation to actions in rem now. In any event, this consideration must be weighed against the fact that the plaintiff under the English rules may often find himself subjected to the inconvenience of having to pursue his debtor to another province, however just, efficient or convenient it may be to pursue an action where the contract took place or the damage occurred. It seems to me that the approach of permitting suit where there is a real and substantial connection with the action provides a reasonable balance between the rights of the parties. It affords some protection against being pursued in jurisdictions having little or no connection with the transaction or the parties. In a world where even the most familiar things we buy and sell originate or are manufactured elsewhere, and where people are constantly moving from province to province, it is simply anachron....
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....ue process clause, s. 7 of the Charter , though not made expressly applicable to property, might, at least in certain circumstances, play a role is also unnecessary to determine. There are as well other discretionary techniques that have been used by courts for refusing to grant jurisdiction to plaintiffs whose contact with the jurisdiction is tenuous or where entertaining the proceedings would create injustice, notably the doctrine of forum non conveniens and the power of a court to prevent an abuse of its process; for a recent discussion, see Elizabeth Edinger, "Discretion in the Assumption and Exercise of Jurisdiction in British Columbia" (1982), 16 U.B.C. L. Rev. 1. There may also be remedies available to the recognizing court that may afford redress to the defendant in certain cases such as fraud or conflict with the law or public policy of the recognizing jurisdiction. Here, too, there may be room for the operation of s. 7 of the Charter . None of these questions, however, are relevant to the facts of the present case and I have not given them consideration. Relevance of Reciprocal Enforcement Legislation I turn finally to....