“Van Breda, 10 years on”: A Chat about the Conflict of Laws with the Honourable Louis LeBel and Paul-Erik Veel

This episode features a conversation about private international law hosted by Gabriel Poliquin (Olthuis van Ert) with retired Supreme Court of Canada Justice Louis LeBel and Paul-Erik Veel (Lenczner Slaght). Marking the 10th anniversary of the foundational Supreme Court of Canada Club Resorts v Van Breda decision (written by the Honourable Louis Lebel on behalf of the Court) – which brought greater certainty to the question of when Canadian courts will assume civil jurisdiction, the guests discuss the positive nature of conflict of laws rules, the influence of civil law judges and the evolution of private international law in the internet age.

The Honourable Louis LeBel was appointed a justice of the Quebec Court of Appeal in 1984, and was appointed to the Supreme Court of Canada in 2000, retiring in 2014. He is now counsel at Langlois in Montreal and Quebec City. He received an honorary doctorate of laws degree from Laval University in 2001 and from the University of Ottawa in 2010, was awarded both the Medal of the Quebec City Bar and the Medal of the Quebec Bar, and was named a Companion of the Order of Canada in 2017. He has been an honorary member of the American College of Trial Lawyers since 2004. 

Paul-Erik Veel is a partner at Lenczner Slaght in Toronto, where he practices commercial litigation with a focus on class actions. He appears regularly before Courts across the country, including at the Supreme Court of Canada.  Paul-Erik is known for his groundbreaking use of legal data analytics to inform the practice of litigation, for which he was named one of the Top 25 Most Influential Lawyers of 2022 by Canadian Lawyer Magazine. In addition to his many activities, he also lectures in private international law at the University of Toronto. Paul-Erik clerked at the Supreme Court of Canada from 2009 to 2010 for the Honourable Louise Charron. 

Gabriel Poliquin is counsel at Olthuis van Ert based in Ottawa. He focuses his practice on all aspects of civil and commercial litigation but with a special focus on public law including proceedings against the Crown. Mr. Poliquin is a trained mediator and offers alternative dispute resolution services in civil and commercial matters. When not acting in public or commercial law matters, Gabriel teaches private international law as a lecturer at the University of Ottawa’s Faculty of Law. Gabriel clerked at the Supreme Court of Canada from 2010 to 2011 for the Honourable Louis LeBel.

Land Acknowledgement
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While The Advocates’ Society is based in Toronto, we are a national organization with Directors and members located across Canada in the treaty and traditional territories of many Indigenous Peoples. We encourage our members to reflect upon their relationships with the Indigenous Peoples in these territories, and the history of the land on which they live and work.
 
We acknowledge the devastating impacts of colonization, including the history of residential schools, for many Indigenous peoples, families, and communities and commit to fostering diversity, equity, and inclusiveness in an informed legal profession in Canada and within The Advocates’ Society.

Transcript

Speaker 1: 0:02

Welcome to Friends Who Argue a Podcast from The Advocate Society.

Speaker 2: 0:07

Each episode will bring you conversations with advocates across all areas of litigation who share their stories, insights, tips, and tricks from their journeys. As advocates,

Speaker 1: 0:18

We hope you'll find this podcast informative, inspiring, and most of all entertaining, and that you'll subscribe to our podcast on iTunes to stay up to date on the latest episodes, friends Who Argued is proudly sponsored by M N P, litigation Support and Dispute Resolution, your expert partner for forensics evaluations and litigation support, M n P, wherever business takes you.

Speaker 3: 0:43

Hello and welcome to this episode of The Friends Who Podcast, produced by The Advocate Society. My name is Gabriel Penk. I'm counsel with Old heis van in Ottawa, a boutique litigation firm practicing in the areas of civil and commercial law with particular expertise in public law matters, including constitutional and administrative law. I'm currently senior, uh, commission council to the, uh, public order emergency, uh, commission, uh, that's taking place here in Ottawa, as well as in Toronto. I, uh, sit on the 10 plus standing Committee and National Standing Committee of the Advocate Society. And aside to my general litigation practice, I specialize in language rights matters and private international law, uh, the latter of which I teach in French at the University of Ottawa Faculty of Law. In the Bial Canadian Law Program, private international law is traditionally known in English as conflict of laws is the body of law that governs and aims to resolve, uh, conflicts between private persons and entities in which there is a quote unquote foreign element. So, for instance, if an Ontario client of mine decides to action a defendant in the province of Quebec, where should he bring his lawsuit in Ontario, or should he bring it in Quebec, which province has jurisdiction over the case? Now, if my client settles on bringing his case before the Ontario courts, but the matter involves the bequest of land in Quebec, which law should apply to the case Ontario law, because we are before the Ontario Courts or Quebec civil law, because the land in question is situated in that province. Now, suppose my client wins his case and obtains a judgment from the Ontario Court, but must enforce it in Quebec. What test does he have to meet under the Quebec civil code for the judgment to be recognized and subsequently enforced in that province? These are the sorts of questions that private international law provides answers to. And the last 30 years has seen an extraordinary evolution in Canadian private international law, namely with foundational Supreme Court of Canada judgments for the 1990s, Margard and Tollson to name only two, but also with the adoption of the new Quebec civil code, which devote its entire to setting out private international law rules for that province. Now, one of our distinguished guests today is the author of the first major decision from the Supreme Court of Canada to address private international law rules under the new civil code of Quebec Spar Aerospace. He is the honorable Louis LaBelle, retired justice of the Supreme Court of Canada, now legal counsel at Langua in Montreal and Quebec City where he is from. Justice LaBelle was admitted to the Quebec Bar in 1962. His career in private practice culminated in 1983, in 1984, when he was elected bat of the Quebec, the position known in Ontario as the treasurer of the Law Society. Following his term as Batan, justice LaBelle was appointed as justice to the Quebec Court of Appeal in 1984, where he was until 2000 when he was appointed to the Supreme Court of Canada. Always a pleasure to see you again. I also had the pleasure, if only for a very brief time to clerk alongside my other distinguished guest today, Mr. Paul Eric Veal, known to most as Dash Paul. Eric is a partner at Lenzer Slot in Toronto, where he practices commercial litigation with a focus on class actions. Dash appears irregularly before courts across the country, including at the Supreme Court of Canada. Dash is an innovative leader in the use of legal data and analytics to inform the practice of litigation. Uh, he's namely known for his statistical model, used to predict the probabilities of a case obtaining leave to appeal at the Supreme Court of Canada, which has garnered significant attention from the profession through social media. And I'm sure, uh, there should be, uh, a whole other podcast episode about that. Uh, Paul Eric Veal clerk that the Supreme Court of Canada in 2009, 2010 for the Honorable Lu shall now in addition to as many activities, also lectures in private international law at the University of Toronto. And it's my pleasure to welcome him to this episode of Friends Who Argue Now. Thank

Speaker 4: 4:55

You. Thank you so much for having me. And I just have to say, God, this is, uh, I just learned for the first time the term[inaudible]. Uh, so I think that you're gonna have to devote a future episode to figuring out whether Beany or Treasurer is a better name for the person who runs the, the, the Law Society or

Speaker 3: 5:13

Bho. My first question will be for Justice LaBelle by way of a, of a rather long introduction, and my apologies for that. But I wanna make sure that our listeners are, are aware of, uh, of the case that we're going to be talking about. Uh, it is the anniversary this year, 2022 of the, uh, van Brita case, also known as the Club Resorts case. And we'll be talking a little bit about that today. But I wanna situate our listeners a little bit. I mentioned earlier that you were the author of Spar Aerospace, uh, foundational decision for Quebec Private International Law. I should mention that you are also the author of another unanimous decision of the Supreme Court of Canada, which is the Club Resorts case that I was talking about. It celebrates its 10th anniversary this year. Um, administrative law Efficient ados all celebrated the 10th anniversary of the Dunsmere case back in 2019, I believe. And you were co-author of the majority reasons in that case as well. Uh, there doesn't seem to be as much hoop law about the Club Resorts case on its 10th anniversary, much to my chagrin. So perhaps there's fewer fans of private international law, so we'll have to make our own little party here.

Speaker 5: 6:21

Private international law law tends to be ignored. I'm, uh, I'm, I'm afraid, unless someone runs into the, into trouble and really needs it

Speaker 3: 6:31

<laugh>. That's right. Yeah. Yeah. And yet it's, it's, uh, as I explained to my students, it is really foundational to the law. When you want to sue somebody, you have to know what courthouse do I show up in? You know, is it in Ontario? Is it in Quebec? Is it another province? For our listeners who may not be familiar with the case or the test for territorial jurisdiction, which is what that case was about, uh, the Club Resorts case was about two Canadians who traveled to Cuba, and Ms. Van Brita and Mr. Sha, who both suffered tragic accidents at, at resorts, run by the Club resorts company, or alleged to have done so. Uh, Ms. Van Brita was work working out on an exercise structure at the resort when the structure she was working on collapsed. Ms. Van Brita became a paraplegic as a result, Mr. SHO's case, uh, was that he was on a scuba diving tour at the resort when he drowned. Uh, both brought distinct actions before the Ontario courts for negligence. Ms. Van Brita in her own name and Mr. Shalom's action was brought by his family under the Ontario Family Law Act. Now, club Resorts brought a preliminary motion to contest the jurisdiction of the Ontario Courts arguing among other things that Ontario should not have jurisdiction over the case because the tort, if it had been committed, had crystallized in Cuba. And so Cuba was the more appropriate jurisdiction to hear the case in their submission. Essentially, uh, club Resorts was arguing that there existed no, quote, unquote reland substantial connection between the litigation and Ontario as to give a bit of background. In the Mor Guard decision released in 1990, the Supreme Court of Canada held that under the common law, a Canadian court could assume territorial jurisdiction over a foreign defendant if there existed a real and substantial connection between the litigation and the province seized of the case. However, the court did not really set out a specific test for what constitutes a real and con and real and substantial connection. Now, between 1990 and 2012, the common law, notably Ontario, evolved a very complex test for real and substantial connection, which was set out by the Ontario Court of Appeal in the musket v cor cell case. The test included eight factors, many of which overlapped with the forum non convenience analysis. And we'll be touching on that a little bit. And I recall that this was the state of the jurisprudence when I was in law school. And, and with all due respect for the, the, the, the judges who developed the test, it was a bit of a hot mess at the time. So, uh, justice Nebel, uh, I'm interested in learning about the job you were confronted with when you took the pen for the court. In deciding that case, what approach did you take to untangle the real and substantial connection test?

Speaker 5: 9:08

Well, I'm, I, I think it is, uh, difficult to unravel all that after, uh, so many, uh, so many years. First, you know, the, this, this was a case as you, as you mentioned, that we, that came up to the Supreme Court of you say, the fact, uh, that, uh, we earned it meant that we had granted leave. And if, if we had granted leave, we thought that it was of some importance. And I could not tell you at the, at, at the stage, uh, what really, uh, drew us to granting to, uh, uh, granting discipline. But it was, it was prob uh, probably the state of the jurisprudence at the, at that time, uh, the need, the, uh, the fact that after, uh, reading the, uh, the, the judgment of the Ontario Court of Appeal in those, in, in those cases, we saw that, that the Ontario Court of Appeal was reviewing itself, this, uh, this, uh, matter. And I think we probably felt that we had, uh, to, to say something and to bring more, uh, stability and clarity, uh, to the, uh, uh, to the law. Uh, you mentioned early, earlier that it must be well under understood that this case was not about the choice of the law, the determination of the law that was applicable. It was purely about territorial jurisdiction. Could could the, uh, the Ontario courts hear that case, or should they, uh, forget, simply forget about it, uh, about it? And there was the fact that we, uh, that we, uh, granted leave seem to indicate that, well, we felt that, uh, that there should, something should be done to try to simplify, uh, the law and perhaps, uh, simplify the law, bring more cer certainty, uh, to it. And it's probably, uh, for these reasons that finally, that Van Breda developed as, as it did about in, uh, and, uh, uh, led, uh, to the, uh, to the recognition of some pre, uh, presumptive, uh, connecting factors. The court in the, in the, in Indian, uh, the court, and my, my colleagues will, uh, probably, uh, saw this as a way out of some of the complexities of, of mascot and probably a way to drop a distinction between the, uh, uh, the, uh, the determination of the territorial jurisdiction and the pro the, the problem of forum non convenience.

Speaker 3: 12:37

Right. Thank you for that answer. And, um, you mentioned, uh, there was a need to bring more clarity and in the context of private international law, uh, why is, why is the need for clarity so, uh, so important in that area?

Speaker 5: 12:50

Well,<laugh>, I would, I would, I would say there is probably a search, uh, for, for clarity in this part of the, uh, of the, of, of the, of the law. Perhaps it's, uh, per perhaps, uh, desperate. It's, it's a desperate search for, uh, for clarity, because I would readily grant, uh, grant you that, uh, private international law, as we called it in French, is everything but simple. If I want to be fair and honest to students or lawyers, it is not, it is not, uh, uh, simple. I once heard that it was a part of the law that was, uh, that was, uh, really, uh, de designed for adults in the, in the, in, in the law, that you really needed to be a major lawyer or judge or academic to deal with those, uh, uh, with those, with those issues.

Speaker 3: 14:02

I think, uh, yes, it, it's complex in the sense that it, um, and I think it appeals to, to some people for that reason, that it's very mathematical. There are rules and you apply them, and the, the rules get entangled, however, and, uh, it's not because it's mathematical, that it's simple, you know, the mathematics can be, uh, mm-hmm.<affirmative>, uh, a little bit more.

Speaker 5: 14:24

You, you dream, you dream that they are mathematical, but they're not always, uh, always. So, because there is always an inter an interaction between the rules and then, then, then itself between them and the facts, the dirty complicated facts that, that we, uh, re uh, really, uh, re really spoil this mathematical an analysis of, uh, uh, uh, problems. But I would grant you, that's, it's one, uh, one part of the dollar where there is a lot of analysis, deductions, and every, every, everything. It's not, it's not only, uh, uh, matter of getting a sense, well, as in administrative law, that it, is it reasonable or, or not? There is not, uh, there is more than, than, than, than, than there's a lot about character rising classifying the, the, the, the, the a problem finding the rules, uh, that are, that are applicable.

Speaker 3: 15:37

That's right. I think there's, the, the appeal, I think, for some people with administrative law is that it's sometimes largely a question of feel, judicial feel. Is this reasonable or no? And, but how do you characterize that feel in terms of predictable rules, if that's, that's the whole, uh, beauty of administrative law. Private international law is perhaps a little bit more, uh, well, uh, Cartesian, or at least we want it to be.

Speaker 5: 15:59

Yeah. Yeah.

Speaker 3: 16:00

And so in the Van Brita case, uh, what, what happened was ultimately the, the court decided on a, a, uh, I don't know if the test is more simple, but certainly the test, I think is more, uh, easy to understand than it was Yeah. Uh, in the musket thek decision from Ontario. And what the Supreme Court, uh, decided was to essentially boil down the test to, uh, for presumptive connecting factors,

Speaker 5: 16:27

But pre presumptive. But they, they, it could be rebuttal.

Speaker 3: 16:32

Right, exactly. So,

Speaker 5: 16:34

Right, right, right. Although, although I must say that from the experience since, uh, van Van Breda, they're not easy to rebut.

Speaker 3: 16:46

Right. And perhaps that's, that's a good thing, perhaps not for the party that would like to rebut them, but it does bring a lot of predictability, I think, uh, as to the territorial jurisdictional test. So the, the connecting factors are, is the defendant a resident or, uh, domiciled in the province? Right. You know, uh, another example is, has the torch, uh, you know, has the prejudice been, uh, sustained in the province that seized? And there's,

Speaker 5: 17:14

Is there a contract?

Speaker 3: 17:16

Right? Is there a contract? And that's exactly, exactly where I'm, I'm going, is there a contract connected to the litigation that was, uh, concluded in that, in that province? And, uh, you know, I get a lot of questions, uh, from my students, uh, about that. Um, uh, the Supreme Court of Canada decided in Ms. Van Brita's case, uh, or particularly that Ontario did have jurisdiction over her action because her partner had concluded a contract that was connected with the litigation in torque. So the, the, the dispute was not a contract dispute, it was a dispute in torque, but there was a contract that was, you know, narratively connected to, uh, to the case. And ultimately, that is the reason why the Ontario courts had, uh, jurisdiction. And I've always been intrigued by that because, uh, it's not a factor that's listed in the Quebec civil code, as it were. Uh, it's also not in any model, uh, legislation, uh, for those provinces that have adopted legislation for the real and substantial connection test. And so I've always been, uh, interested in, in, uh, in the source of that. I don't know if you can provide us some insight

Speaker 5: 18:30

Necessarily. I don't, I don't, I dunno if there is a story to, to that. But if you look at this group of connecting, of connecting factors, I think there was a search for something objective that could be objectively found, discovered that, uh, and, uh, so that could, uh, that could, uh, re uh, create a relation between, uh, the parties, some, uh, uh, some of them and, uh, and, uh, uh, uh, the claim even I would say in the, in the, in the civil law, if, if, even if it could not, if, if, if it was not an, uh, uh, connecting, uh, uh, formal connecting, uh, factor, but always the que the question of where, uh, uh, contractual relationship has been entered into is always relevant, and you see consequences flowing, uh, flowing, uh, uh, from that and bringing a case within the jurisdiction of a, of a, of a particular, of a particular court. If you look, uh, you mentioned one of the earliest, uh, cases, then pri, private international law, uh, k cases that I wrote in the Supreme Court of Can of Canada's Par. I, I wrote space in, in the end, it was a, a pro a problem. I would say that in the, in the common law might have been a problem of Tor Li, uh, liability was a problem of responsibility de in, uh, but perhaps also a problem of responsibility, well flowing from, uh, several con, uh, con, uh, contracts that were all entered into, uh, for the building of a communication satellite.

Speaker 3: 20:43

Mm-hmm.<affirmative>.

Speaker 5: 20:44

So I think that, uh, the, uh, uh, uh, this, uh, que question of contracts as a connecting, uh, factor was always in the background. Uh, some, uh, uh, somewhat and probably appeared as, uh, as useful tool to connect, uh, to connect, uh, uh, a party to the juror, to the jurisdiction of, uh, of, of the court, of on the basis of objective a certain evil factors.

Speaker 3: 21:21

I'd like to turn now to the second part of the discussion, uh, that I wanna turn to, which is perhaps a little bit more, uh, philosophical in nature. Uh, certainly when I learn private international law, or when I read private international law textbooks, even in, in the common law, we're told about the, the positive nature of private international law rules. And this sort of harkens back to what, uh, justice LaBelle and I were discussing, uh, earlier. I think there is, uh, uh, an an i idealistic view of private international law rules as sort of existing in the ether. And we are supposed to apply them mechanically. Uh, and, and, you know, out pops are result, uh, the rules are supposed to be applied irrespective of the result, which is really, I would say maybe not, maybe anathema is a strong word, but certainly contrary to the usual common law approach, which is to defined justice in the rules. If a rule may be a rule, but if it, uh, uh, you know, it, uh, outputs an unjust result, perhaps we can modify and tweak the rule a little bit. Mm-hmm.<affirmative>, and I've always thought that the common law's inherent desire for a just result is what led the common law courts to incorporate more, I'd call them eq, equitable factors, into the real and substantial connection analysis. This is before Van Brita. And that yielded a, that hydra like monster, uh, of a test, uh, that kind of undermine predictability and, and the principle of order that should underlie private international law in, in all traditions of the law. Um, the club resorts decision did change that, uh, you know, in as much as the common law can be changed, uh, with the stroke of a judicial pen, um, and dash. I don't know if you, you get any, uh, cognitive dissonance from your students, uh, on, on that point, you know, is private international law different from other areas of, of the common law in that respect mm-hmm.

Speaker 4: 23:22

<affirmative>. So, I, I'm Gabrielle, I'm curious for your thoughts on this as well, but one of the things I really like doing whenever I teach private international law is doing some kind of a poll of the students on day one before they've actually gotten into the topic mm-hmm.<affirmative> at all, to see what their intuitions are, because I actually think a lot of, um, individuals and even a lot of lawyers intuitions around private international law concepts are, um, not necessarily where you would end up with a benefit of more analysis and reflection. So, for example, uh, I think there are even a lot of lawyers out there that find it very strange conceptually that the courts of Ontario would ever apply the law of another jurisdiction to a dispute, when of course, that's trite. They do that all the time in a host of circumstances. And, and as it pertains to jurisdiction, it's interesting, I think I have seen some students that have a view of jurisdiction, which is almost a universal jurisdiction of, well, why can't you sue anyone anywhere? What's the big deal? And some that have an intuition, which is much closer to the old common law rule of, well, if you're not present and you haven't consented, what do you mean the court can assume jurisdiction over you? How can that be possible? So it's, I I think the whole project of teaching private international law has some degree of, um, it starts out with cognitive dissonance, and it ends up being a, uh, a reshaping of the individual's intuitions in that area, because it's not an intuitive area. That being said, and I'll say this quickly, um, it's true that contemporary common law, private international law is rules based. But I also think that most of the decisions we've seen in the last decade on jurisdiction anyways, end up getting us to what most people would probably intuitively think of as the just result. I, I say only half jokingly that, um, the best predictor of the outcome, uh, in any jurisdiction case is that the court will assume jurisdiction before you know anything else about it. Because when you look at the cases from the last decade, you know, the trilogy of Vanda Breeden and Black Ban Row, the court assumes jurisdiction and all of those in the 2015 decision in Chevron, the court assumes jurisdiction there, LA Plant Rosenstein, the court assumes jurisdiction due as in Facebook, they decline to enforce a forum selection clause, which in turn results in the BC Supreme Court being able to assume jurisdiction over the dispute. Um, and sort of the one notable counter example to that, that I can think of in the common law in the last 10 years is the gold har and Hart's case about internet, uh, defamation. And the court was just wildly split on what the outcome there should be. That was a very messy decision. So, um, it, it, it, it strikes me that although it's absolutely true, that this is a rules-based area. The rules, I think, have a pretty strong slant in favor of what we would view as the just and fair result, which just really speaks to the, you know, credit goes back to the, the designer of the rule, the other guest on the podcast for coming up with rules that tend to get us to what most people view as as good outcomes. I think,

Speaker 5: 26:54

I think that for, uh, that for a court, uh, uh, something such a result, I, I think would be, uh, something that, that we would, that the court would re really look for. But I would add a remark, uh, that, uh, re it relates to what, uh, uh, Gabriel Poll said a few, a few min a few minutes ago, about, well, the differences between, uh, civilian and, uh, common law app approaches. It's true that in, uh, that in the Quebec civil law, there are rules, there is a set of rules in the civil code about jurisdiction, about choice, uh, choice of law. But I would say that in a modern legal system, the rules are designed for, uh, for a purpose, the hope of bringing order, uh, stability and, uh, justice. And in this, in this, uh, uh, respect, the overall goal of our two legal si system, common law and civil law, it remains basically the same. And if you have rules, you have also room for interpretation, as you know very well. There is flexibility usually to be found in, in interpretation. And the scope of the, uh, function of interpret, uh, of interpretation may allow to reach, i, I, I would say, uh, uh, uh, uh, degree of, uh, fairness and equity and system.

Speaker 3: 28:49

Yeah. Thank you for that. And, uh, on, on on the same topic, uh, or or related to topic that you might have inside of, in, um, justice stability, that you've always been intrigued by the fact that several recent notable Supreme Court of Canada judgments in common law, private, international law, uh, decisions were, were written by civil law judges. So, uh, we mentioned, of course, the club resorts decision, van Brita, which you wrote, uh, justice DeShaw wrote for the majority in Prow, which was also, uh, uh, a very important change to the common law in the enforcement of, uh, equitable decisions. Uh, justice Guko wrote, and Chevron FK Justices, uh, he then was in Gascon, co wrote with Justice Caris for the majority in du Justice, Corte wrote for plurality mm-hmm.<affirmative> in the Har case, and so on and so on. Uh, I'm wondering, is there anything behind that, or is that just a coincidence? Is there something about the, the civil law tradition that, uh, you know, is more comfortable perhaps with, uh, applying rules as they are? You mean not irrespective of the result, but you know, in a more

Speaker 5: 30:00

Fashion? There is, uh, there is no doubt that as, uh, civilian, as, uh, civilian lawyers, where most, uh, were more used to, I, I would, I would say using rules, designing rules to reach, uh, uh, to, uh, rather than going directly to the, uh, to the, uh, to the result, but always for the purpose of, uh, of, uh, reaching a particular, uh, particular, uh, goal. So, uh, social common, common, common goal that you will find through the, through the design of the, of the, uh, of the, of the rule. But at the same time, a civil law, uh, system is, uh, complex and, and very concerned, very aware of the consequences of what, uh, what is as happening, what is being done, which is reflected, uh, often in the way those rules, those texts are interpreted as I, as I mentioned, and as to the fact that some members of the, of the, of the Supreme Court may have been interested in, in private inter international law. Well, it's maybe chance hazard. I must say that in my, in my case, I think I took a liking to, uh, international law at a very early age. At the end, what I was doing, what they call, what they call at la what they called at the time at La U Uni University Superior. And, and I had the, the privilege of having a course taught by Professor Paul, who taught for many years international, international law at, uh, at, uh, at, uh, uh, McGill University. And I found him this topic absolutely fascinating, as taught by, uh, by, uh, by professor, uh, Crip as I had a very good tea teacher in public, in the public, inter, inter international. It was, it was, it was change. And I must add that I got an interest, uh, in the, in the common law at the University of of Toronto, where I studied for, uh, for a year, and did, uh, did a ma uh, a master, uh, ma a master of law. So those civilian law, law, uh, lawyers had often an interest also in the common law and in comparative law, and the way and the interplay between, uh, the two.

Speaker 3: 33:06

And what fascinated you about private international law in particular?

Speaker 5: 33:11

Well, I think it was, it was the complexity. I would say. First I found subject, uh, in 20, sickly in interesting, by its complex, uh, complexity. Its, its effort to address, uh, to address difficult issues, find, uh, find results that would make sense, bring some, also some fairness to, uh, to, uh, difficult to, uh, difficult, uh, uh, situations. And, uh, the way it brought into contact into relation, different legal, uh, legal, uh, uh, systems. That's, I, I think it's prob probably in the end, uh, the, the comparative law aspect, uh, that, uh, that fascinated me with toge, together with the fact that we were dealing with a very difficult part of the, of the law, and that finally courts academ lawyers and manage to create a system that could make sense.

Speaker 3: 34:31

Well, thank you for that. So I'd like to move on now to a third topic of discussion for us today, which is, uh, about private international law in the contemporary context, in particular, the contemporary commercial context. Um, so an an increasing increasingly globalized world has become somewhat of a cliche, if only because cross-border legal relationships are inevitable when they're formed, especially over the internet, uh, which is the case by default nowadays. Um, dash, I'd like to hear you a little bit, uh, about the policy dilemma that courts face when they're assuming jurisdiction over, for instance, an interprovincial class action, which happens more and more these days. What's the private international law problem there, and how have the courts dealt with it?

Speaker 4: 35:21

Well, uh, this is a spot where you'll really have to edit my answer because I, I love class actions. It might be my favorite area of practice, and I love teaching international, private, international law. So, um, there's a lot to say, but I'll keep it as brief as I can. So really interesting and unique private international law problems in this area. You know, the, the, the, the typical problem when you look at a private international law, um, issue, uh, on a, on the jurisdictional side is does the court have jurisdiction over the claim against that defendant? We never worry about the plaintiff because the plaintiff has voluntarily decided to start a claim in that jurisdiction. So effectively, they've a torn, they've chosen to be bound by whatever decision the court might make. That's not the case. In class actions, of course, in class actions, you have a whole, um, you have, um, the whole class who, uh, generally speaking, don't have lawyers, aren't represented, don't participate in the proceeding, yet, will ultimately be bound by the result of the determination by the court. Um, and so what that means is that you can get into cl uh, very interesting and new private international law problems once you're dealing with people who are outside of the, the court's territorial jurisdiction. You know, if I have an Ontario class action with all Ontario class members, no problem. What happens when it's a national class of people across the country? Or, um, as we're seeing more often now, um, international classes with people all around the world, what do you do in those scenarios? Um, and it's, it's, I've gotta say, it's endlessly interesting because a decade ago, there was a very healthy debate in the academic literature about the constitutionality of interprovincial class actions. And there were some very smart people, um, including Peter Hogg, who published very interesting and serious questions about whether they were in fact, constitutional. And, uh, you know, you, you could have imagined a world in which that issue was adjudicated front and center, but instead, the class actions bared, they just became so normal that we all now take for granted that interprovincial and now even international class actions are generally viable without much consideration, and they have become so second nature. Uh, and, and, you know, it's, it's, this is an area that we're still seeing really interesting developments in. So, so a really recent example, we talked a little bit about the due and Facebook case that the Supreme Court heard about five years ago. Well, that case has kept on going, and I think we actually have a, another decision out of that case that may well be heading up to the Supreme Court. So, um, very recently, just, I, I think about a month ago, the British Columbia Supreme Court released a decision on a, uh, on a summary adjudication application there, in that case, um, and, and I'll leave aside the merits, it has to do with Facebook's practices around sponsored stories, but don't need to know that for our purposes except to know that number one, it's a privacy law case. And number two, pleaded on be behalf, on behalf of the plaintiffs in the class. In that case, were claims under other province's privacy statutes. So, uh, in particular, um, the plaintiff class was advancing claims under the Manitoba Privacy Act and the Newfoundland, Newfoundland and Labrador Privacy Act. Well, why is that relevant? That's relevant because, uh, both those privacy statutes have language in them, which at least on its face, appears to restrict the adjudication of those claims to the Manitoba Court of Queens bench in the case of Manitoba and the Newfoundland and Labrador Supreme Court trial division in the case of that statute. And so Facebook said, well, wait a second court. You don't have the jurisdiction here in British Columbia to hear those claims, because, um, yes, fine, you've assumed jurisdiction over the class, but there are statutory carve outs from your ability to, to adjudicate those claims. BC Supreme Court says, no, no, no, not so fast. I don't think that's right. Uh, and the court says it's, it's, it's, it's actually interesting and I'll, I'll just read out what it says. Cause I actually think it's quite extraordinary. Um, they, they have a, uh, the lead up to this has to do with section 96, the Constitution Act, but then they say it follows from this that the legislatures of Manitoba and Newfoundland and Labrador lack legislative competence to prohibit this court from adjudicating claims under their respective privacy acts. And this court has adjudicative competence to do so, which I find to be a remarkable statement. So a, a province in the exercise of its jurisdiction over property and civil rights can of course, create a cause of action for its own residence. No question about that. It can absolutely do that. Um, we've crossed the bridge about a decade ago to saying, well, okay, um, you find you superior court in that province. You don't have exclusive adjudicative competence. We accept that in the context of a national class. Action courts across the country can also adjudicate the claims of those people, I, in general, but what this new case says, it goes a steps further and says, even with relatively clear legislative language, you can't constitutionally carve out for yourself as being the exclusive forum for those claims, uh, uh, for, for those claims to be heard. Um, it's a, it's a very interesting issue, has practical significance in a lot of class actions across the country. This is an issue in virtually every privacy class action, um, that happens nationally, and I think is only gonna get resolved, um, I think will have to be resolved at the Supreme Court, either in this case or another one relatively soon.

Speaker 3: 41:44

It certainly seemed destined, uh, to, to go there. Justice Nobel, did you have something to, to add,

Speaker 5: 41:50

John? Uh, just a short, uh, a short, uh, uh, comment because it will lead also out. This, assuming jurisdiction will lead also into issues of choice of law, determination of the law, which is, which is application is all very fine to, to say, well, we can assume jurisdiction on those p people. Well, with the members of the, of the class always live under different rules, different legal pre princip principles, uh, which legal, uh, regime will, will, will, will apply, will be used. I think it'll be very complicated to see the, the lease. And I would tend to, uh, uh, to say that, uh, that, uh, based on the short, uh, comments of our ca, Colleen and Mr. Mr Veal, that, uh, the, the British Colombia court was probably very bold to go, uh, that way. And if I live onto, onto, onto that, I will be very curious to see how this, and after all,

Speaker 3: 43:11

So the du Sega is not over, and in fact may have started its most, uh, fascinating chapter

Speaker 5: 43:18

At this point. And I, I, and, and another comment is that often in those, uh, class actions, especially in the class actions in that run in two parallel, in different, uh, provinces, there are difficulties, technical al uh, diff difficulties. And one of the challenges is to make sure if you have a really national class, that, that everyone, uh, uh, uh, uh, be informed, remain informed, and really, uh, have accessed at, uh, at the old, uh, process. I remember that some years ago, I think it was 2009, it was in, at an early stage of those, uh, pro, uh, problems in, uh, uh, Lipin and, uh, Canada Post, uh, I think it was, I think there had been a class action running in Quebec and other, in an, in a different pro province. And the, one of the issues is that the members at that, uh, uh, I think Canada Post had requested that the, that the Quebec, uh, that the Quebec, uh, uh, class action be stayed for. Uh, uh, but at the same, at the same time, uh, it appeared that there had been very little, uh, notice or no proper not, uh, not notice to the<inaudible> members of the, of the, of the court, uh, by, in the, in the Ontario Court, in the Ontario Court, that, uh, that indicated the need if you get into Nat National classes to address those issues of information keeping, uh, keeping everyone really within the class.

Speaker 3: 45:21

Right. Certainly a lot of, uh, challenges ahead.

Speaker 5: 45:24

Yeah.

Speaker 3: 45:26

Now, the internet has spawned new challenges as well in the field of defamation. For instance, uh, someone can publish a libelist article on social media in Australia, and it can affect my reputation instantly here in Canada, uh, the common law provides that a court has jurisdiction over any tort action if the tort crystallizes, as it were in its jurisdiction. So if the plaintiff was prejudiced in Ontario, the tort is deemed to have been committed in Ontario, and the Ontario courts are presumed to have jurisdiction following the Van Brita test. So in the context of defamation, the common law holes that the tort is crystallized wherever a libelist text is, quote unquote published, that is wherever one can become aware of the libel. So if a text is published by someone in Australia, that it affects my reputation here in Ontario, I should be able to action the Australian author before the Ontario courts, or at least that is the implication of the, the common law test, um, dash. Can you explain for our listeners, what are the pros and cons for that rule and the context of internet defamation?

Speaker 4: 46:32

Um, sure. Absolutely. So, um, two very significant pros. I'll start off with the pros before I end with what I think is a massive con. So the, the first pro is, uh, effectively conceptual consistency. So the, uh, the basic rule that, uh, publication occurs in any jurisdiction where a listener or reader sees the defamatory me, uh, material, that's black letter tort law. And, um, after Tolleson and after Van Brady, it's also a very well established black letter law that the applicable law or jurisdiction are wherever the tort occurs. So you smushed the two of those together, and we get this particular rule that we have in defamation. So you, you can't, you can't maintain both of those very basic, well-established rules without, uh, and, and, and, and, and tweak the basic rule for defamation without modifying one of those two elements to it. So certainly our existing rule has consistency. Our existing rule also has clarity. I think it's very easy, as an evidentiary matter to know, um, whether there was publication in a particular jurisdiction. And so you can avoid jurisdictional fights in theory, with a very simple rule. But what you end up sacrificing, um, for that is, uh, you end up sacrificing quite a lot for that, because in the universe that that rule works works very well in the universe of publication, in paper, in newspapers, on television, it's perfectly fine in the internet age, technically speaking, all I need to assume jurisdiction in Ontario is get an affidavit that says one person read the defamatory material in Ontario, and VO Ontario has jurisdiction over the claim, and Ontario law applies. And that, of course, it would never have been within the reasonable contemplation of someone publishing a blog post in Japan on a topic having nothing to do with Ontario, that they might be evaluated according to the defamation law standards in Ontario. And so this has a, and what that's meant as a practical matter is that, um, the fights around this end up now just having been moved into forum non convenience as to the locus of the dispute for defamation, which I suppose is all well and good, but that has the effect then of re reducing certainty. Forum non convenience is the discretionary flexible outlet for an overly generous, um, and rules-based approach at jurisdiction simplicity. And we now, by putting, by having all the work done at the forum stage, I think we lose something. So, um, I'll leave it to Justice LaBelle to figure out, I know he has tried to figure out what the better rule is. It's very difficult. I, I always struggle every time I teach this to come up with a better rule, but, um, I, I, all I can do on this one is issue spot rather than the proposed the solution.

Speaker 5: 49:59

Well, you know, I'm, I'm a retired judge. I'm not, uh, I'm no longer called to, uh, to, uh, design rules. But, uh, to, I think, to, uh, be more serious about, about that, I think it's clear that, uh, that, uh, that the law as it stands about is problematic. There are, wherever you, you turn, you have problems. And we see that we, we have, uh, that we have pro probably at the present time, a rule, uh, that's prob probably working, uh, quite well when we were dealing with interprovincial, uh, torts, but which was really never designed to address a true international, uh, tort where you can well, uh, where the old world, uh, uh, uh, can be, uh, can be involved. And I would be, uh, I would hesitate to say that the Supreme Court back in Van Van in the banro, in Banro, uh, uh, case design, a rule that was, uh, uh, uh, that could address all international issues, because it is at this, at this stage, it's very flexible, but it means that everyone can, can sue everyone everywhere in the, in the, in the world. And in the end, I believe that the courts will have, uh, to, uh, to, uh, established to create a rule, uh, that makes, uh, makes more room for the importance of the, of the publication of the event than, than occurred. And the, uh, that, uh, jurisdiction will have to be, uh, based on, on, uh, not, not, not only on the event of publication, but on, on a, on a, an assessment of the quality of the nature of the, of the, of the publication and other pr uh, problem, problem, uh, is the fact that it's, uh, those are very international situations and, and that if we, even if our courts in Canada adopt such a rule, there is no assurance that it will be, be that, that it'll be accepted everywhere else in the, in the, in the world. So we will have conflicts, possibility of parallel claims in, in, in several parts of the, of the, uh, of the world. I think it's just the beginning of very, of a very difficult and complex sit way situation. But I would, I think I would tend to agree with you that the, uh, that the present, uh, that the present rule will, would, uh, will, will require some thinking and perhaps some criticism.

Speaker 4: 53:26

Can I just jump in very quickly to, to pick up Justice LaBelle on one thing you said, which I found interesting, and Gabrielle, this is a little bit different from the topics that, that we've been talking about, but, you know, one of the things that I find so interesting is the distinction between interprovincial and international cases in private international law. Mm-hmm. You know, it's, it's so funny when you go back and read, you know, the seminal cases in this area, you go back and read Morguard, and a large portion of the reasoning there was focused on the interprovincial dimension of the case. And, and then fast forward 20 years past that to the other enforcement of foreign judgments and jurisdiction cases. And, um, the distinction between interprovincial and international, other than a few concurrences and dissents here and there has essentially been eviscerated. It's not really given, viewed as a material difference by the court, which it's, it's, it's just an interesting evolution. And I think I agree with you, justice LaBelle, that, um, you know, part of, I, I'm not gonna say necessarily the problem, but we're definitely using tools designed with one normative context in mind, and applying them much more broadly than, than those initial normative frameworks potentially can support.

Speaker 5: 54:49

We have Canadian rules designed for, uh, for can Canada, and given the way the world has changed, we have to use and apply them in a completely different envi and, uh, environment, especially this environment created by the, by the internet.

Speaker 4: 55:08

Yes.

Speaker 5: 55:09

And, and pro, probably perhaps, uh, it's, that's something normal in the development of the, of the, of the, I guess that over the years or the centuries per perhaps rules will get, uh, the develop, but probably we're not yet there.

Speaker 3: 55:31

Well, I could think of a better conclusion, uh, to that topic. Um, thank you both. This is unfortunately the, all the time we, we have. But it's been a, a pleasure to discuss private international law with, with both of you, uh, and a distinct pleasure. And, um, I hope our listeners, uh, certainly have, uh, benefited from, uh, from this, uh, enlightened, uh, enlightened discussion about the past and future of international law. Thank you both.

Speaker 5: 55:58

Thank you.

Speaker 4: 55:59

Thank you,

Speaker 5: 56:00

Thank you.

Speaker 6: 56:02

Thank you to the honorable Louis LaBelle, Paul Eric feel, and Gabriel Polin for this intellectually stimulating discussion. Thank you to my co-editor, Ian Brennaman, our production leads, Kirsten Derhammer and Natalia Rodriguez, and to the Advocate Society team and our sponsor for their support. This is Web high co-editor of Friends who argue signing off

Speaker 1: 56:24

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Speaker 2: 57:11

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Speaker 2: 57:38

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