Substance and Procedure

• Author: Stephen G.A. Pitel; Nicholas S. Rafferty
• Pages: 236-248

CHAPTER

SUBSTANCE

AND

PROCEDURE

A.

INTRODUCTION

The

previous

chapter

introduced

the

process

of

characterizing

particu



lar

legal

rules

as

either

substantive

or

procedural.

This

characterization

is

chiefly

important

because

the

forum

nearly

always

applies

its

own

procedural

law,

even

in

cases

where

a

choice

of

law

rule

leads

to

foreign

law

being

applied

to

resolve

the

dispute.

For

example,

a

claim

in

con



tract

may

be

governed

by

New

York

law

but

the

Ontario

court

will

still

use

Ontario

rules

of

evidence

in

the

dispute.

It

does

not

sit

as

though

it

was

a

New

York

court

and

does

not

apply

any

procedural

law

of

New

York.

The

court

will

therefore

have

to

determine

which

rules

from

each

legal

system

are

substantive

and

which

are

procedural.

Exceptionally,

a

court

might

apply

a

procedural

rule

of

another

country.

A

possible

example

is

in

assessing

the

validity

of

the

service

of

documents

on

a

party

outside

the

forum.

Rather

than

insisting

that

such

a

service

be

made

in

accordance

with

the

forum

’

s

procedural

rules,

the

forum

might

accept

the

service

as

valid

if

it

was

made

in

accordance

with

the

law

of

the

place

where

the

party

was

served.

1

In

developing

definitions

of

procedure

and

of

substance,

it

is

im



portant

to

fully

appreciate

what

is

at

stake.

The

choice

of

law

process

is

1

See,

for

example,

r

17.05(2)

of

Rules

of

Civil

Procedure,

RRO

1990,

Reg

194

[Ontario

Rules].

On

this

and

other

exceptions

to

the

general

rule,

see

Richard

Garnett,

Substance

and

Procedure

in

Private

International

Law

(Oxford:

Oxford

University

Press,

2012)

at

3

and

37.

236