C. Researching Conflict of Laws

• Author: Ted Tjaden
• Profession: National Director of Knowledge Management McMillan LLP
• Pages: 163-166

Page 163

The body of law known as "conflict of laws" arises most often in private international legal transactions or situations involving parties from different jurisdictions, such as when two corporations from different countries transact business or a resident of one country negligently causes injuries to other persons in a motor vehicle accident that occurred in a different country. Which laws govern the parties and their legal issues?

Researching conflict of laws can be tricky and is beyond the scope of this chapter. In fact, entire books have been written on the topic and should be consulted for any in-depth research. The best resources for Canadian researchers are Professor Walker’s looseleaf entitled Castel & Walker: Canadian Conflict of Laws, 6th ed. (Markham, ON: LEXISNEXIS Canada, 2005) and Lawrence Collins et al., eds., Dicey and Morris on the Conflict of Laws, 14th ed. (London: Sweet & Maxwell, 2006).²⁸Both of these treatises, which are listed in Section D, below in this chapter, have extensive footnotes and are well-indexed. As such, the brief overview of conflict of laws that follows does not extensively cite primary sources or the applicable sections of the foregoing treatises since these points have been researched in depth in both of these treatises.

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Researching conflict of laws typically involves needing to research a combination of legislation, the common law, and commentary.²⁹Al-though it is difficult to attempt to simplify the complex area of conflict of laws, the breakdown by Professor Walker of "jurisdiction, judgments and applicable law" as the three main aspects of conflict of laws inquiry³⁰ provides a useful starting point for a broad overview of this area:

· Jurisdiction: Can and should a particular court take jurisdiction over a legal dispute to hear the parties and decide their issue? Simply put, a Canadian court will take jurisdiction over a matter where there is a "real and substantial connection" between the parties and the jurisdiction. In Van Breda v. Village Resorts Ltd.,³¹the Ontario Court of Appeal has recently reformulated its test for determining when an Ontario court should take jurisdiction over a non-resident defendant:

1. Should a real and substantial connection be presumed? The court should presume a real and substantial connection if the plaintiff’s claim is one that falls under rules for serving foreign defendants (Rule 17.02 in Ontario³²), except there would be no presumption in the situation in which service is effected for a...