Immovable Property
| Author | Stephen G.A. Pitel/Nicholas S. Rafferty |
| Profession | Faculty of Law, University of Western Ontario/Faculty of Law, University of Calgary |
| Pages | 313-328 |
313
CHAP TER 17
IMMOVABLE PROPERTY
A. JUR ISDICTION OVER FOREIGN
IMMOVABLE PROPERTY
1) The General Rule
The general rule is that a Can adian court has no jurisdiction to deter-
mine title to, or the right to posses sion of, immovable property situated
outside the forum.1 In Te zc an v. Te zc an, McLachlin J.A. (as she then
was) expressed the rule in the following m anner:
The general rule is t hat the courts of a countr y have no juris diction
to adjudicate on the right and t itle to lands not situate within its b or-
ders. Only the court s of the jurisdiction in wh ich the lands are situate
may adjudicate on the right a nd title to such lands . . . .2
The rationale underlying the rule is that a court should not grant a
judgment which it has no power to enforce and which may bri ng the
court into conflict with the author it y of a foreign sovereign or t he juris-
diction of a foreign court.3 It is also clear th at a foreign court includes
1British South Afr ica Co. v. Compan hia de Moçambique, [1893] A.C. 602 (H.L.)
[Moçambique].
2 (1987), 20 B.C.L.R. (2d) 253 at 256 (C. A.).
3Duke v. Andler, [1932] S.C.R. 734 at 739 [Duke], relying upon Arthur Ber riedale
Keith, ed., Dicey on th e Conflict of Laws, 4th ed. (London: Stevens & Sons, 1927)
at 393.
CONFLICT OF LAWS
314
one sitting in another part of Canad a and that foreign land therefore
includes land situated in another part of Canada. I n Montagne Laramee
Developme nts Inc. v. Creit Properties Inc.,4 which concerned an action
in Ontario in respect of land in Quebec, Pitt J. indicated that the Mor-
guard5 doctrine had not changed that conclusion. He stated:
Notwithsta nding the comment in Morguard Investments Ltd. v. De
Savoye ...per La Forest J., that “the obvious i ntention of the consti-
tution is to create a single country,” it is still true that the provinces
are all separ ate legal jurisd ictions, and the provi nce of Quebec with
its civil code may even require more deference in circu mstances of
this nature.6
One interesting question concerns the relationship between this rule
and the modern real and substantial connection test for jurisdiction in
personam first established in Morg uard.7 In War Eagle Mining Co. v. Robo
Manage ment Co., Saunders J. regarded t he traditional “foreign immov-
able” rule as now an aspect of, and justified by, the real and substantial
connection test,8 which he ascribed to To lo fso n v. J ens en .9 He said:
where the subject matter of the d ispute is a foreign immovable, t he
connection between the foreign jur isdiction and [the forum] wil l be
too tenuous to satisfy t he jurisdiction al test of Tolofson v. Jensen. The
underlying ration ale for courts leavin g issues of title, r ights and in-
terest in a foreign immovable to b e resolved in the foreign juri sdic-
tion is consonant with the rationale expressed in Tolo fs on v. Je n se n
and the case s which foreshadowed that decision.10
Equally, in Khan Resources Inc. v. WM Mining Co., LLC,11 the Ontario
Court of Appeal seemed to view the rule more as an important factor
to be considered within t he real and substant ial connection test tha n
as an independent ground for denying jur isdiction.12 The court was
concerned by the fact that, in accordance with the rule of private inter-
4 (2000), 47 O.R. (3d) 729 (S.C.J.).
5Morguard Investments Ltd . v. De Savo ye, [1990] 3 S.C.R. 1077 [Morguard]. T his
decision is di scussed extensively i n Chapter 5.
6 Above note 4 at para. 10 [emphasi s in original].
7 See, generally, Chapter 5.
8 (1995), 13 B.C.L.R . (3d) 362 at par a. 14 (S.C.).
10 Above note 8 at para. 15.
11 (2006), 79 O.R. (3d) 411 (C.A.). See also Precious Metal Capital Cor p. v. Smith
(2008), 297 D.L.R. (4th) 746 (Ont. C.A.) [Precious Metal], which is discus sed
below in Section A(3).
12 Ibid. at para. 10.
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