Canadian interprovincial jurisdiction-taking and judgment-enforcing post-Morguard...a comparative perspective.

• Main Author: Coakeley, Simon.
• Other Authors: Finkle, Peter
• Format: Others
• Published: University of Ottawa (Canada) 2009
• Subjects: Law.
• Online Access: http://hdl.handle.net/10393/6509; http://dx.doi.org/10.20381/ruor-14870

Part I reviews the development of the Canadian common-law approach prior to the Court's decision in Morguard. This is contrasted with the droit civil approach, both under the current Civil Code of Lower Canada and under the proposed Civil Code of Quebec. It then reviews the Court's decision in Morguard and indicates some of the questions that the Court's decision did not resolve. As the Court took notice how three other "federal" systems--the United States, the European Community and Australia--deal with these issues, these systems are reviewed in Part II to see how they have addressed jurisdiction-taking and judgment-enforcing. A discussion of these "federal" systems demonstrates that it is more important to clarify jurisdiction-taking rules than it is to to clarify judgment-enforcing rules because it is only those judgements which meet the terms of the jurisdiction-taking criteria, whatever those criteria may be, that are entitled to enforcement or full faith and credit. Unfortunately, the jurisdiction-taking criteria of Morguard are not particularly detailed. In the spirit of Morguard, the Uniform Law Conference has proposed the adoption of a Uniform Enforcement of Canadian Judgments Act. Unfortunately the proposed legislation focuses on judgment-enforcing, rather than on jurisdiction-taking, and is open to criticism on other grounds. Under these circumstances this paper recommends that Canada adopt a system broadly based on the Australian cross-vesting scheme. For various reasons, a Canadian scheme should be limited to making provision for the transfer of matters from the courts of one province to the courts of another (Abstract shortened by UMI.)