CHAPTER 3 Exclusion of Foreign Law

• Date: 07 April 2025

32

CHA PTER 3

EXCLUSION OF

FOREIGNLAW

A. INTRODUCTION

Canadian private international law gives considerable eect to foreign

law. It does this, for example, when it respects a foreign court’s taking

of jurisdiction over a dispute, when it applies foreign law to resolve a

dispute in the forum, and when it recognizes and enforces a foreign

judgment or arbitral award. However, there are situations in which Can-

adian courts will refuse to give eect to foreign law and they will exclude

that law from their analysis. Some of these situations will be discussed

throughout this book, such as in Chapter 8 when looking at reasons

why a court might not recognize a foreign judgment and in Chapter 14

when looking at mandatory rules in choice of law for contract. However,

some of the fundamental principles relating to exclusion of foreign law

cut across the whole subject, so it is useful to identify them at the outset.

A court can exclude foreign law in several ways. As noted, it can

refuse to recognize or enforce the judgment of a foreign court. In decid-

ing a case it can refuse to apply foreign legal rules that are, under the rel-

evant choice of law rules, otherwise applicable. It can even refuse to give

eect to a jurisdiction agreement requiring litigation in another country.

These are all dierent areas of the conf‌lict of laws, but the principles

in this chapter can justify the exclusion of foreign law in each of them.

This chapter highlights the tension between comity — being a good

neighbour in the international community — and the protection of

domestic interests. These exclusions allow the court to disregard foreign

Exclusion of ForeignL aw 33

law and instead apply the law of the forum. The broader their scope, the

more insular and chauvinistic the courts can become. However, as com-

ity has taken on increased importance, the scope of these exclusions has

diminished. They are particularly narrow in the interprovincial context.

But the debate about whether the balance has been struck in the right

place is far from resolved.

The eect of excluding foreign law is clearer in some cases than in

others. In the recognition and enforcement context, the eect is straight-

forward: the forum refuses to give any eect to the foreign judgment.

Similarly, if a plainti advances a claim under a foreign law that the

forum excludes, the claim fails. In a more complex case, the claim might

be governed by a foreign applicable law, but only one aspect of that law

causes the forum court concern. Here the approach to exclusion is less

clear. The forum could exclude the entirety of the foreign law and apply

the law of the forum instead. This response is too extreme. Alternatively,

the forum could exclude only the specif‌ic foreign legal rule in question

and resolve the dispute by applying the balance of the foreign law.1 This

is viable when the foreign law provides a coherent response without the

specif‌ic provision. For example, if the forum excludes a foreign law that

prevents a gratuitous passenger involved in a car accident from suing the

driver in tort, it can still apply the rest of the foreign tort law to resolve

the dispute. In the further alternative, the forum could apply a combin-

ation of foreign and forum law, using the latter in place of the specif‌ic

foreign rule being excluded.2

B. PUBLIC POLICY

A central basis for excluding foreign law is that the foreign law con-

f‌licts with the forum’s public policy. This basis is not established simply

because a foreign law or decision has a dierent policy basis than that of

the forum. Canadian courts are quite willing to apply foreign laws that

are very dierent from those in eect where those courts sit.3 For this

exclusion to apply, the foreign law must violate the “essential morality”

1 See, for example, Das v George Weston Ltd, 2017 ONSC 4129 at para 298, a’d

2018 ONCA 1053: “the public policy exception to the choice of foreign law can

be addressed … by severing the oensive aspects of the applicable foreign law.”

2 For additional discussion, see the analysis of mandatory rules in choice of law for

contract in Chapter 14.

3 Boardwalk Regency Corp v Maalouf (1992), 6 OR (3d) 737 at 748 (CA) [Board-

walk Regency]. See also the discussion in Roberts (a minor) v Soldiers, Sailors,

Airmen and Families Association, [2020] EWHC 994 at paras 155–63.