Immovable Property
| Author | Stephen G.A. Pitel; Nicholas S. Rafferty |
| Pages | 330-346 |
CHAPTER
17
IMMOVABLE
PROPERTY
A.
JURISDICTION
OVER
FOREIGN
IMMOVABLE
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
Mozambique
and
thus
known
as
the
Mozambique
rule,
is
that
a
Canadian
court
has
no
jurisdiction
to
determine
title
to,
or
the
right
to
possession
of,
immovable
property
situ
ated
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
(HL)
[Mozambique].
See
also
Lucasfilm
Ltd
v
Ainsworth,
at
para
55
[Lucasjibn].
2
(1987),
20
BCLR
(2d)
253
at
256
(CA).
For
a
recent
application,
see
Moradkhan
v
Mofidi,
at
para
52.
330
Immovable
Property
331
of
a
foreign
court.
3
It
is
also
clear
that
a
foreign
court
includes
one
sitting
in
another
part
of
Canada
and
that
foreign
land
therefore
includes
land
situated
in
another
part
of
Canada.
In
Montagne
Laramee
Developments
Inc
v
Creit
Properties
Inc,
4
which
concerned
an
action
in
Ontario
in
re
spect
of
land
in
Quebec,
Pitt
J
indicated
that
the
doctrine
in
Morguard
Investments
Ltd
v
De
Savoye
5
6
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.®
One
interesting
question
concerns
the
relationship
between
this
rule
and
the
modern
real
and
substantial
connection
test
for
jurisdiction
in
personam
first
established
in
Morguard.
In
Khan
Resources
Inc
v
WM
Min
ing
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
connection
test
than
as
an
independent
ground
for
denying
jurisdiction.
7
The
court
was
concerned
by
the
fact
that,
in
accordance
with
the
rule
of
private
international
law
denying
jurisdiction
over
foreign
land,
“
the
unchallenged
expert
evidence
in
the
record
[was]
to
the
effect
that
[the
foreign]
court
would
not
recognize
an
Ontario
judgment
that
purported
to
deal
with
[certain
foreign]
mining
interests.
”
8
The
apparent
incor
poration
of
the
foreign
immovable
rule
within
the
Morguard
test
raised
the
question
of
whether,
over
time,
the
rule
would
cease
to
operate
in
dependently.
This
would
not
have
been
a
welcome
development.
The
foreign
immovable
rule
applies
regardless
of
the
basis
on
which
jurisdiction
purports
to
be
taken.
Subsuming
it
under
the
real
and
sub
stantial
connection
test
could
have
caused
courts
to
lose
sight
of
its
broader
relevance.
In
addition,
incorporating
it
into
the
test
suggests
that
it
becomes
just
another
factor
in
the
analysis,
so
that
the
weight
of
other
factors
could
have
led
a
court
to
take
jurisdiction
in
a
dispute
over
a
foreign
immovable.
This
would
have
been
contrary
to
the
rule
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
[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)
[Khan
Resources],
See
also
War
Eagle
Min
ing
Co
v
Robo
Management
Co,
(1995),
13
BCLR
(3d)
362
at
para
14
(SC);
Precious
Metal
Capital
Corp
v
Smith
(2008),
297
DLR
(4th)
746
(Ont
CA)
[Precious
Metal],
8
Khan
Resources,
above
note
7
at
para
15.
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