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

CHAPTER 17

IMMOVABLE PROPERTY

A.JURISDICTION OVER FOREIGN

IMMOVABLE PROPERTY

1) The General Rule

The general rule is that a Canadian court has no jurisdiction to deter-

mine title to, or the right to posses sion of, immovable property situated

outside the forum.1 In Tezcan v. Tezcan, McLachlin J.A. (as she then

was) 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 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 and 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 bring 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 that 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 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 respect of land in Quebec, Pitt J. indicated that the Mor-

guard5 doctrine had not changed that conclusion. He stated:

Notwithstanding the comment in Morguard Investments Ltd. v. De

Savoye ...per La Forest J., that “the obvious intention of the consti-

tution 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 deference in circumstances 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 Morguard.7 In War Eagle Mining Co. v. Robo

Management Co., Saunders J. regarded the traditional “foreign immov-

able” rule as now an aspect of, and justif‌ied by, the real and substantial

connection test,8 which he ascribed to Tolo fso n v. J ens en.9 He said:

where the subject matter of the dispute is a foreign immovable, the

connection between the foreign jurisdiction and [the forum] will be

too tenuous to satisfy the jurisdictional test of Tolofson v. Jensen. The

underlying rationale for courts leaving issues of title, rights and in-

terest in a foreign immovable to be resolved in the foreign jurisdic-

tion is consonant with the rationale expressed in Tolofson v. Jensen

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 the real and substantial connection test than

as an independent ground for denying jurisdiction.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.

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

7See, generally, Chapter 5.

8(1995), 13 B.C.L.R . (3d) 362 at par a. 14 (S.C.).

9[1994] 3 S.C.R. 1022.

10Above 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.