Beals v. Saldanha et al., (2003) 314 N.R. 209 (SCC)

• Judge: McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 20, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2003), 314 N.R. 209 (SCC);2003 SCC 72

Beals v. Saldanha (2003), 314 N.R. 209 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2003] N.R. TBEd. DE.030

Geoffrey Saldanha, Leueen Saldanha and Dominic Thivy (appellants) v. Frederick H. Beals-III and Patricia A. Beals (respondents)

(28829; 2003 SCC 72; 2003 CSC 72)

Indexed As: Beals v. Saldanha et al.

Supreme Court of Canada

McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.

December 18, 2003.

Summary:

An offer of purchase and sale respecting Florida land referred to lot 1. The defendant vendors owned lot 2, not lot 1. The defend­ants amended the offer to read lot 2 and returned it to the plaintiff purchasers. The plaintiffs accepted the amended offer. The plaintiffs began construction on lot 1, dis­covered that they owned lot 2 and sued the defendants in Florida for recision and dam­ages. The defendants were noted in default. A jury awarded the plaintiffs U.S. $260,000 including U.S. $50,000 punitive damages. An Ontario lawyer advised two of the defen­dants (the Saldanhas) that the Florida judg­ment was unenforceable in Ontario because they had not attorned to the jurisdiction. The lawyer was unaware that, because of a Supreme Court of Canada decision rendered almost a year earlier, there was a significant risk that the Florida decision was enforceable in Canada. The Saldanhas took no steps to set aside the Florida judgment. The plaintiffs sued to enforce the Florida judgment in Ontario. The defendants asserted that the judgment was unenforceable because it was obtained by fraud or, alternatively, because to do so would be contrary to the principles of natural justice and public policy. In the event that the plaintiffs' action succeeded, the Saldanhas sought indemnity from the Ontario lawyer.

The Ontario Court (General Division), in a decision reported at 81 O.T.C. 161, held that the Florida judgment was unenforceable on the ground of fraud relating to damages. Alternatively, the court would have refused to enforce the judgment on the basis of public policy. Had the Florida judgment been enforceable in Ontario, the court would have allowed the Saldanhas' indemnity claim. The plaintiffs appealed. One of the defendants (Thivy) asserted that her assign­ment in bankruptcy and discharge therefrom relieved her of any liability she might have had to the plaintiffs.

The Ontario Court of Appeal, Weiler, J.A., dissenting, in a decision reported at 148 O.A.C. 1, allowed the appeal as against all the defendants except Thivy. The court affirmed the dismissal of the action against Thivy. The defendants appealed.

The Supreme Court of Canada, Iacobucci, Binnie and Lebel, JJ., dissenting, held that the judgment should be enforced and dis­missed the appeal.

Civil Rights - Topic 3221

Trials - Due process, fundamental justice and fair hearings - Civil proceedings - General - Ontario defendants sold a parcel of land in Florida for U.S. $8,000 - The purchasers sued in Florida for recision and damages and obtained default judgment - A jury awarded the purchasers U.S. $260,000 -The purchasers sued to enforce the judgment in Ontario - By the time of trial, the judgment had grown to approxi­mately C $800,000 - The defendants as­serted that recognition and enforcement of the judgment would violate s. 7 of the Charter - The Supreme Court of Canada rejected the defence - The obligation of a domestic court to recognize and enforce a foreign judgment did not depend on the defendants' financial ability to pay - As s. 7 did not shield a Canadian resident from the financial effects of the enforcement of a domestic judgment, it did not shield a Canadian defendant from the enforcement of a foreign judgment - In any event, the Florida proceedings were conducted in con­formity with fundamental justice - See paragraph 78.

Conflict of Laws - Topic 641

Jurisdiction - Submission to jurisdiction - General - The Supreme Court of Canada stated that "There are conditions to be met before a domestic court will enforce a judgment from a foreign jurisdiction. The enforcing court ... must determine whether the foreign court had a real and substantial connection to the action or the parties, at least to the level established in Morguard [S.C.C.]. A real and substantial connection is the overriding factor in the determina­tion of jurisdiction. The presence of more of the traditional indicia of jurisdiction (attornment, agreement to submit, resi­dence and presence in the foreign jurisdic­tion) will serve to bolster the real and substantial connection to the action or parties. Although such a connection is an important factor, parties to an action con­tinue to be free to select or accept the jurisdiction in which their dispute is to be resolved by attorning or agreeing to the jurisdiction of a foreign court. ... If a foreign court did not properly take juris­diction, its judgment will not be enforced." - See paragraphs 37 and 38.

Conflict of Laws - Topic 643

Jurisdiction - Submission to jurisdiction - What constitutes - The Ontario defendants purchased and sold a parcel of land in Florida - The purchasers sued in Florida for recision and damages and obtained de­fault judgment - The purchasers sued to enforce the judgment in Ontario - The Su­preme Court of Canada held that the Flori­da court had a "real and substantial con­nection" to the action and the parties - If a Canadian entered into a contract to buy land in another country, it was not unrea­sonable to expect the individual to enter a defence when sued in that jurisdic­tion with respect to the transaction - Irre­spective of the real and substantial connec­tion analy­sis, the Florida court had juris­diction over one defendant who had attorned to that court's jurisdiction when he entered a de­fence - His subsequent procedural failure to refile his defence in response to each amendment to the com­plaint as required under Florida law did not invalidate that attornment - See para­graphs 33 to 38.

Conflict of Laws - Topic 1661

Actions - General - Forum conveniens - General - The Supreme Court of Canada stated that "A Canadian defendant sued in a foreign jurisdiction has the ability to redress any real or apparent unfairness from the foreign proceedings and the judg­ment's subsequent enforcement in Canada. The defences applicable in Ontario are na­tural justice, public policy and fraud. In addition, defendants sued abroad can raise the doctrine of forum non conveniens. This would apply in the usual way where it is claimed that the proceed­ings are not, on the basis of convenience, expense and other considerations, in the proper forum." - See paragraph 35.

Conflict of Laws - Topic 6605

Foreign judgments - General - Recognition of judgment of another province - The Su­preme Court of Canada stated that "The 'real and substantial connection' test [re­specting the enforcement and recognition of foreign judgments] requires that a sig­nificant connection exist between the cause of action and the foreign court. Further­more, a defendant can reasonably be brought within the embrace of a foreign jurisdiction's law where he or she has participated in something of significance or was actively involved in that foreign juris­diction. A fleeting or relatively unimport­ant connection will not be enough to give a foreign court jurisdiction. The connection to the foreign jurisdiction must be a sub­stantial one." - See paragraph 32.

Conflict of Laws - Topic 6606

Foreign judgments - General - Recognition of judgment of foreign state - [See Con­flict of Laws - Topic 641 , Conflict of Laws - Topic 643 and Conflict of Laws - Topic 6605 ].

Conflict of Laws - Topic 6606

Foreign judgments - General - Recognition of judgment of foreign state - The Su­preme Court of Canada stated that "In­ter­national comity and the prevalence of in­ter­national cross-border transactions and movement call for a modernization of pri­vate international law. The principles set out in Morguard [S.C.C.] ... and further discussed in Hunt v. Lac d'Amiante du Qué­bec Ltée et al. [S.C.C.] ... can and should be extended beyond the recognition of inter­provincial judgments, even though their application may give rise to different considerations internationally. Subject to the legislatures adopting a different ap­proach by statute, the 'real and substan­tial connection' test should apply to the law with respect to the enforcement and recog­nition of foreign judgments. ... Like com­ity, the notion of reciprocity is equally compelling both in the international and interprovincial context. ... In the absence of a different statutory approach, it is reasonable that a domestic court recognize and enforce a foreign judgment where the foreign court assumed jurisdiction on the same basis as the domestic court would, for example, on the basis of a 'real and substantial connection' test." - See para­graphs 28 and 29.

Conflict of Laws - Topic 6606

Foreign judgments - General - Recognition of judgment of foreign state - The Su­preme Court of Canada held that the "real and substantial connection" test applied to the enforcement and recognition of judg­ments of foreign states - Absent unfairness or other equally compelling reasons, there was no reason to distinguish between a for­eign judgment after trial and a foreign default judgment - See paragraph 31.

Conflict of Laws - Topic 6663

Foreign judgments - Action on foreign judgment - Bars or defences - [See Civil Rights - Topic 3221 and Conflict of Laws - Topic 1661 ].

Conflict of Laws - Topic 6663

Foreign judgments - Action on foreign judgment - Bars or defences - The Su­preme Court of Canada stated that the defence of public policy "... prevents the enforcement of a foreign judgment which is contrary to the Canadian concept of justice. The public policy defence turns on whether the foreign law is contrary to our view of basic morality. As stated in Castel and Walker ... 'the traditional public policy defence appears to be directed at the con­cept of repugnant laws and not repugnant facts.' ... How is this defence of assistance to a defendant seeking to block the en­forcement of a foreign judgment? It would, for example, prohibit the enforcement of a foreign judgment that is founded on a law contrary to the fundamental morality of the Canadian legal system. Similarly, the pub­lic policy defence guards against the en­forcement of a judgment rendered by a for­eign court proven to be corrupt or biassed." - See paragraphs 71 and 72.

Conflict of Laws - Topic 6663

Foreign judgments - Action on foreign judgment - Bars or defences - Ontario defendants sold a parcel of land in Florida for U.S. $8,000 - The purchasers sued in Florida for recision and damages and ob­tained default judgment - A jury awarded the purchasers U.S. $260,000 -The pur­chasers sued to enforce the judg­ment in Ontario - By the time of trial, the judg­ment had grown to approximately C $800,000 - The defendants asserted that as a matter of public policy the award should not be enforced where it was excessive - The Supreme Court of Canada rejected the assertion - The public policy defence was not meant to bar enforcement of a judg­ment rendered by a foreign court with a real and substantial connection to the cause of action for the sole reason that the claim in that foreign jurisdiction would not yield comparable damages in Canada - The award did not violate Canadian principles of morality - There was no evidence that the Florida procedure offended the Cana­dian concept of justice - Enforcement would not shock the conscience of the reasonable Canadian - See paragraphs 71 to 77.

Conflict of Laws - Topic 6663

Foreign judgments - Action on foreign judg­ment - Bars or defences - The Su­preme Court of Canada stated that "Unusu­al situations may arise that might require the creation of a new defence to the en­forcement of a foreign judgment. ... Should the evolution of private interna­tional law require the creation of a new defence, the courts will need to ensure that any new defences continue to be narrow in scope, address specific facts and raise issues not covered by the existing de­fences." - See paragraph 42.

Conflict of Laws - Topic 6663

Foreign judgments - Action on foreign judg­ment - Bars or defences - The Ontario de­fendants sold a parcel of land in Florida for U.S. $8,000 - The purchasers sued in Florida for recision and damages and ob­tained default judgment - A jury awarded the purchasers U.S. $260,000 including U.S. $50,000 punitive damages -The pur­chasers sued to enforce the judg­ment in Ontario - The trial judge dismissed the action because the assessment of dam­ages had been obtained by fraud in the Florida court - The Supreme Court of Canada held that the trial judge erred by failing to limit "new and material facts" to facts which could not have been discovered by defen­dants by the exercise of reasonable dili­gence - As the defendants had not pro­vided any evidence of new and previ­ously undiscoverable facts suggestive of fraud, the defence of fraud could not suc­ceed - See paragraphs 52 to 58.

Conflict of Laws - Topic 6663

Foreign judgments - Action on foreign judgment - Bars or defences - The Su­preme Court of Canada stated that "The historic description of and the distinction between intrinsic and extrinsic fraud [for the purpose of clarifying the types of fraud that would vitiate a foreign judgment] is of no apparent value and, because of its abil­ity to both complicate and confuse, should be discontinued. It is simpler to say that fraud going to jurisdiction can always be raised before a domestic court to challenge the judgment. On the other hand, the merits of a foreign judgment can be chal­lenged for fraud only where the allegations are new and not the subject of prior adju­dication. Where material facts not previ­ously discoverable arise that potentially challenge the evidence that was before the foreign court, the domestic court can de­cline recognition of the judgment. ... Where a foreign judgment was obtained by fraud that was undetectable by the foreign court, it will not be enforced domestically. ... in order to raise the defence of fraud, a defendant has the burden of demonstrating that the facts sought to be raised could not have been discovered by the exercise of due diligence prior to the obtaining of the foreign judgment. ... Such an approach repre­sents a fair balance between the coun­tervailing goals of comity and fairness to the defendant." - See paragraphs 51 and 52.

Conflict of Laws - Topic 6663

Foreign judgments - Action on foreign judgment - Bars or defences - The Su­preme Court of Canada stated that the test for the defence of fraud in relation to the enforcement of foreign judgment was equal­ly applicable to default judgments - "Where the foreign default proceedings are not inherently unfair, failing to defend the action, by itself, should prohibit the defen­dant from claiming that any of the evi­dence adduced or steps taken in the foreign proceedings was evidence of fraud just dis­covered. But if there is evidence of fraud before the foreign court that could not have been discovered by reasonable dili­gence, that will justify a domestic court's refusal to enforce the judgment." - See paragraph 53.

Conflict of Laws - Topic 6663

Foreign judgments - Action on foreign judgment - Bars or defences - The Su­preme Court of Canada stated that a party seeking to prevent enforcement of a for­eign judgment on the basis of a denial of natural justice had to prove, to the civil standard, that the foreign proceedings were contrary to Canadian notions of fundamen­tal justice - A domestic court enforcing a judgment had a heightened duty to protect the defendants' interests when the judg­ment was a foreign one - The court had to be satisfied that the foreign court applied the minimum standards of fairness - The court had to ensure that the defendants were granted a fair process - It was not the plaintiff's duty to establish that the foreign legal system was fair - The burden rested with the defendants - Fair process was one that, in the foreign system, reasonably guar­anteed basic procedural safeguards such as judicial independence and fair ethical rules governing the participants in the judicial system - That determination had to be made for all foreign judgments - See paragraphs 59 to 62.

Conflict of Laws - Topic 6663

Foreign judgments - Action on foreign judgment - Bars or defences - The Su­preme Court of Canada stated that the defence of natural justice to the enforce­ment of a foreign judgment "is limited to the procedure by which the foreign court arrived at its judgment. However, if that procedure, while valid there, is not in accordance with Canada's concept of na­tural justice, the foreign judgment will be re­jected. The defendant carries the burden of proof ... In Canada, natural justice has frequently been viewed to include, but is not limited to, the necessity that a defen­dant be given adequate notice of the claim made against him and that he be granted an opportunity to defend." - See para­graphs 64 and 65.

Conflict of Laws - Topic 6663

Foreign judgments - Action on foreign judgment - Bars or defences - The Su­preme Court of Canada stated that the de­fence of natural justice to the enforce­ment of a foreign judgment did not require the foreign plaintiff to give notice of the legal steps to be taken by the defendant and of the consequences flowing from a decision to defend, or not defend, the foreign action - Defendants were presumed to know the law of the jurisdiction seized with an ac­tion against them - A defendant to a for­eign action instituted in a jurisdic­tion with a real and substantial connection to the action or parties could reasonably be ex­pected to research the law of the foreign jurisdiction - See paragraph 68.

Conflict of Laws - Topic 6663

Foreign judgments - Action on foreign judgment - Bars or defences - The Ontario defendants sold a parcel of land in Florida for U.S. $8,000 - The purchasers sued in Florida for recision and damages, alleging fraud and seeking punitive and treble dam­ages - The claim did not specify the quan­tum of dam­ages sought - The pur­chasers obtained default judgment - A jury awarded them U.S. $260,000 including U.S. $50,000 punitive damages - The purchasers did not appeal based on their lawyer's advice that the judgment was un­enforceable in Canada - The purchasers sued to enforce the judg­ment in Ontario - The defendants asserted that they were denied natural justice because they were not given sufficient notice to enable them to discover the extent of their financial jeopardy - The Supreme Court of Canada rejected the assertion - Where the defend­ants knew the types of damages claimed, their not being provided with a specific dollar value did not constitute a denial of natural justice - The defendants were ad­vised of the case to meet and granted a fair opportunity to do so - They did not defend - Once they received notice of the judg­ment amount, they had precise notice of the extent of their financial expo­sure - Their failure to then act was due to their reliance on their lawyer's mistaken advice, not a lack of notice - A failure to disclose witnesses in a notice of assessment was not a denial of natural justice - See paragraphs 65 to 70.

Practice - Topic 5924

Judgments and orders - Enforcement of foreign judgments - Submission of defend­ant to jurisdiction of foreign court - [See Conflict of Laws - Topic 641 and Con­flict of Laws - Topic 643 ].

Practice - Topic 5927

Judgments and orders - Enforcement of foreign judgments - Bars - Public policy - [See Conflict of Laws - Topic 1661 and second and third Conflict of Laws - Topic 6663 ].

Practice - Topic 5928

Judgments and orders - Enforcement of foreign judgments - Defences - [See fourth, fifth, sixth, seventh, eighth, ninth, tenth and eleventh Conflict of Laws - Topic 6663 ].

Cases Noticed:

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81; 76 D.L.R.(4th) 256, consd. [paras. 17, 84, 135].

Moses v. Shore Boat Builders Ltd. (1993), 35 B.C.A.C. 146; 57 W.A.C. 146; 106 D.L.R.(4th) 654 (C.A.), leave to appeal refused [1994] 1 S.C.R. xi; 172 N.R. 157; 48 B.C.A.C. 239; 78 W.A.C. 239; 109 D.L.R.(4th) vii, refd to. [para. 18].

United States of America v. Ivey et al. (1996), 93 O.A.C. 152; 30 O.R.(3d) 370 (C.A.), refd to. [para. 18].

Old North State Brewing Co. v. Newlands Services Inc., [1999] 4 W.W.R. 573; 113 B.C.A.C. 186; 184 W.A.C. 186 (C.A.), refd to. [para. 18].

Muscutt et al. v. Courcelles et al. (2002), 160 O.A.C. 1; 213 D.L.R.(4th) 577 (C.A.), refd to. [para. 21].

Indyka v. Indyka, [1969] 1 A.C. 33 (H.L.), refd to. [para. 21].

Moran et al. v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393; 1 N.R. 122; 43 D.L.R.(3d) 239, consd. [paras. 21, 178].

Hunt v. T & N plc et al. - see Hunt v. Lac d'Amiante du Québec Ltée et al.

Hunt v. Lac d'Amiante du Québec Ltée et al., [1993] 4 S.C.R. 289; 161 N.R. 81; 37 B.C.A.C. 161; 60 W.A.C. 161, consd. [paras. 28, 84, 164].

Spar Aerospace Ltd. v. American Mobile Satellite Corp. et al., [2002] 4 S.C.R. 205; 297 N.R. 83, consd. [paras. 30, 85, 165].

Woodruff v. McLennan (1887), 14 O.A.R. 242 (C.A.), refd to. [paras. 46, 231].

Jacobs v. Beaver (1908), 17 O.L.R. 496 (C.A.), consd. [paras. 47, 231].

Roglass Consultants Inc. v. Kennedy (1984), 65 B.C.L.R. 393 (C.A.), refd to. [para. 48].

Powell v. Cockburn, [1977] 2 S.C.R. 218; 8 N.R. 215, refd to. [paras. 49, 234].

Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241; [1995] 1 W.W.R. 609, refd to. [para. 84].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 111].

Adams v. Cape Industries plc, [1991] 1 All E.R. 929 (C.A.), refd to. [paras. 128, 241].

Hilton v. Guyot (1895), 159 U.S. 133 (S.C.), refd to. [para. 167].

Yahoo!, Inc. v. La Ligue Contre le Racisme et l'Antisemitisme (2001), 169 F. Supp.2d 1181 (N.D. Cal.), refd to. [para. 171].

Emanuel v. Symon, [1908] 1 K.B. 302, refd to. [para. 172].

Mercandino v. Devoe & Raynolds Inc. (1981), 436 A.2d 942 (N.J. Sup. Ct.), refd to. [para. 206].

United States of America v. Ivey (1995), 26 O.R.(3d) 533 (Gen. Div.), refd to. [para. 209].

Kidron v. Grean (1996), 48 O.R.(3d) 775 (Gen. Div.), refd to. [para. 220].

Boardwalk Regency Corp. v. Maalouf (1992), 51 O.A.C. 64; 6 O.R.(3d) 737; 88 D.L.R.(4th) 612 (C.A.), refd to. [para. 222].

BMW of North America Inc. v. Gore (1996), 517 U.S. 559 (S.C.), refd to. [para. 227].

Abouloff v. Oppenheimer & Co. (1882), 10 Q.B.D. 295 (C.A.), refd to. [para. 231].

Owens Bank Ltd. v. Bracco, [1992] 2 All E.R. 193 (H.L.), refd to. [para. 231].

Duchess of Kingston's Case, Re (1776), 2 Smith L.C. (8th Ed.) 784, refd to. [para. 232].

Gauthier v. Cité de Pont-Viau, [1978] 2 S.C.R. 516; 21 N.R. 299, refd to. [para. 261].

Authors and Works Noticed:

Blom, Joost, Conflict of Laws - Enforce­ment of Extraprovincial Default Judg­ment - Real and Substantial Connection: Morguard Investments Ltd. v. De Savoye (1991), 70 Can. Bar Rev. 733, p. 735 [paras. 201, 202].

Blom, Joost, The Enforcement of Foreign Judgments: Morguard Goes Forth Into the World (1997), 28 Can. Bus. L.J. 373, pp. 375 [para. 27]; 400 [para. 74].

Brown, Donald J.M. and Evans, John M., Judicial Review of Administrative Action in Canada (1998) (Looseleaf Ed.), para. 9:5222 [para. 111].

Castel, Jean-Gabriel, and Walker, Janet, Canadian Conflict of Laws (5th Ed. 2002) (Looseleaf), pp. 14-10 [para. 34]; 14-24 [paras. 211, 230]; 14-25 [para. 230]; 14-26 [para. 214]; 14-28 [para. 71].

Dicey and Morris, Conflict of Laws (13th Ed. 2000), vol. 1, pp. 487 [para. 206]; 501 [para. 201]; 503 [para. 206].

Nygh, P.E., Conflict of Laws in Australia (6th Ed. 1995), p. 138 [para. 206].

Talpis, Jeffrey A., If I am from Grand-Mère, Why Am I Being Sued in Texas? Responding to Inappropriate Foreign Jurisdiction in Quebec-United States Cross Border Litigation (2001), generally [para. 228].

Walker, Janet, Beals v. Saldanha: Striking the Comity Balance Anew (2002), 5 Can. Int'l. Law 28, p. 30 [para. 213].

Watson, Garry D., and Au, Frank, Consti­tutional Limits on Service Ex Juris: Unanswered Questions from Morguard (2000), 23 Adv. Q. 167, pp. 180 [para. 180]; 200 [paras. 177, 179].

Yntema, H.E., The Objectives of Private International Law (1957), 35 Can. Bar Rev. 721, p. 741 [para. 165].

Ziegel, Jacob S., Enforcement of Foreign Judgments in Canada, Unlevel Playing Fields and Beals v. Saldanha: A Con­sumer Perspective (2003), 38 Can. Bus. L.J. 294, pp. 306, 307 [para. 220].

Counsel:

J. Brian Casey, Janet E. Mills and Matthew J. Latella, for the appellants, Geoffrey Saldanha and Leueen Saldanha;

Neal H. Roth, for the appellant, Dominic Thivy;

Messod Boussidan, Larry J. Levine, Q.C., and Kevin D. Sherkin, for the respon­dents.

Solicitors of Record:

Baker & McKenzie, Toronto, Ontario, for the appellants, Geoffrey Saldanha and Leueen Saldanha;

Neal H. Roth, Toronto, Ontario, for the appellant, Dominic Thivy;

Levine, Sherkin, Boussidan, North York, Ontario, for the respondents.

This matter was heard on February 20, 2003, before McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court of Canada was delivered in both official languages on December 18, 2003, and the following opinions were filed:

Major, J. (McLachlin, C.J.C., Gonthier, Bastarache, Arbour and Deschamps, JJ., concurring) - see paragraphs 1 to 80;

Binnie, J., dissenting (Iacobucci, J., con­curring) - see paragraphs 81 to 131;

LeBel, J., dissenting - see paragraphs 132 to 267.