Substance and Procedure

• Author: Stephen G.A. Pitel/Nicholas S. Rafferty
• Profession: Faculty of Law, University of Western Ontario/Faculty of Law, University of Calgary
• Pages: 224-234

224

CHAP TER 11

SUBSTANCE AND

PRO CED UR E

A. I NTRODUC TION

The previous chapter introduced the process of characteri zing particu-

lar legal rules as eit her substantive or procedural. This characterization

is chief‌ly important because the forum always applies its own proced-

ural law, even in cases where a choice of law rule leads to foreign law

being applied to resolve the dispute. For example, a clai m in contract

may be governed by New York law, but the Ontario court w ill still u se

Ontario rules of ev idence 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 r ules from each legal

system are substantive and which are procedural.

In developing a def‌inition of procedure and of substance, it is im-

portant to fully appreciate what is at stake. The choice of law process is

based on a willingness to have certain disputes resolved using foreign

law rather than forum l aw. However, the more broadly the courts def‌ine

procedure, the more foreign law is thereby excluded and forum law is

applied. A broad def‌inition of procedure produces a marked trend in

favour of the law of the forum. This can underm ine much of the central

objective of choice of law rules and can lead to forum shopping.

Traditionally, one view was that substance involved legal rights and

procedure involved remedies and enforcement.1 This view was both

1 See, for example, the d iscussion in Vogler v. Szendroi, [2008] N.S.J. No. 71 at

paras. 16–21 (C.A.) [Vogle r]