CHAPTER 17 Immovable Property

• Date: 07 April 2025

382

CH APTE R 17

IM MOVABLE PROPERTY

A. JURISDICTION OVER FOREIGN

IM MOVABLE PROPERTY

1) The General Rule

The general rule, invariably sourced to the decision of the House of

Lords in British South Africa Co v Companhia de Moçambique and thus

known as the Moçambique rule, is that a Canadian court has no juris-

diction to determine title to, or the right to possession of, immovable

property situated outside the forum.1 In Tezcan v Tezcan, McLachlin JA

expressed the rule in the following manner:

The general rule is that the courts of a country have no jurisdiction to

adjudicate on the right and title to lands not situate within its borders.

Only the courts of the jurisdiction in which the lands are situate may

adjudicate on the right and title to such lands . . . .2

The rationale underlying the rule is that a court should not grant a judg-

ment which it has no power to enforce and which may bring the court

into conf‌lict with the authority of a foreign sovereign or the jurisdiction

1 [1893] AC 602 (HL) [Moçambique]. See also Newfoundland and Labrador (Attor‑

ney General) v Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4 at

para 104, Brown and Rowe JJ (dissenting) [Uashaunnuat]; Lucasf‌ilm Ltd v Ains‑

worth, [2011] UKSC 39 at para 55 [Lucasf‌ilm].

2 (1987), 20 BCLR (2d) 253 at 256 (CA). For an application, see Moradkhan v

Mof‌idi, 2013 BCCA 132 at para 52.

Immovable Proper ty 383

of a foreign court.3 It is also clear that a foreign court includes one sit-

ting in another part of Canada and that foreign land therefore includes

land situated in another part of Canada. In Montagne Laramee Develop‑

ments Inc v Creit Properties Inc,4 which concerned an action in Ontario in

respect of land in Quebec, Pitt J indicated that the doctrine in Morguard

Investments Ltd v De Savoye5 had not changed that conclusion. He stated:

Notwithstanding the comment in Morguard . . . per La Forest J., that

“the obvious intention of the constitution is to create a single country,”

it is still true that the provinces are all separate legal jurisdictions, and

the province of Quebec with its civil code may even require more def-

erence in circumstances of this nature.6

An important issue is the relationship between this rule and the

analysis of jurisdiction as set out in Chapter 5. Several decisions have

analyzed the Moçambique rule as a subsidiary aspect of the test for

assumed jurisdiction. For example, in Khan Resources Inc v WM Mining

Co, LLC the Ontario Court of Appeal seemed to view the rule more as

an important factor to be considered within the real and substantial con-

nection test than as an independent ground for denying jurisdiction.7 In

Rees v Shannon the court examined the rule in considering whether the

presumptive connecting factors that had been established in accord with

the new approach in Club Resorts Ltd v Van Breda8 had been rebutted.9

However, the Moçambique rule is one of subject matter jurisdiction

and applies regardless of the basis on which in personam jurisdiction

is taken. Subsuming it under the test for assumed jurisdiction could

lead courts to lose sight of its broader relevance, including the fact that

it applies even in cases in which jurisdiction is based on presence or

submission. In addition, incorporating it into that test suggests that it

becomes just a factor in the overall analysis, so that other factors could

lead a court to take jurisdiction in a dispute over a foreign immovable.

3 Duke v Andler, [1932] SCR 734 at 739 [Duke], relying upon Arthur Berriedale

Keith, ed, Dicey on the Conf‌lict of Laws, 4th ed (London: Stevens & Sons, 1927) at

393.

4 (2000), 47 OR (3d) 729 (SCJ).

5 [1990] 3 SCR 1077 [Morguard]. See the discussion in Chapter 5.

6 Above note 4 at para 10 [emphasis in original].

7 (2006), 79 OR (3d) 411 at para 10 (CA). See also War Eagle Mining Co v Robo

Management Co, (1995), 13 BCLR (3d) 362 at para 14 (SC); Precious Metal Cap‑

ital Corp v Smith (2008), 92 OR (3d) 701 (CA).

8 2012 SCC 17 [Club Resorts].

9 2020 ONSC 3633 at paras 41–51. See also Singh Estate v Saunders, 2021 ONSC

3951 [Singh Estate] in which the court appears to use the exception to the rule,

discussed below, as a test for jurisdiction simpliciter.