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1 - Possible strategies, appropriateness of a uniform Act
In light of these objectives, we agree with our colleagues that it would be preferable to focus our efforts on negotiating a multilateral convention rather than passing a uniform Act that might, once passed, not come into force because the proposed convention contains different rules.
We nevertheless feel that this multilateral convention could coexist with the uniform Act, although the result would be complications related to the existence of a double system.
Thus, we consider the uniform Act approach a priori useful for attaining the above objectives and share the opinion expressed by our colleagues V. Black and J. Blom in their point 4b (report, par. 12).
We agree with our colleagues that the passage of a uniform Act on the recognition of foreign judgments should be considered in parallel with the passage of similar legislation on Canadian judgments, which would include conditions more favourable to the latter type of judgments (for example, it would be fairly easy to do without the condition of consistency with public order (s. 6(1) of the Uniform Enforcement of Canadian Judgments Act)).
Furthermore, from the federalist perspective adopted by the Supreme Court of Canada in Hunt and Morguard, the circulation of judgments in Canada is clearly a goal to be pursued, and it is clear that the multiplicity of conditions for recognition due to variations in legislation from province to province is harmful to such circulation. It is entirely desirable that a single case of the same type or between the same parties be dealt with in the same way throughout Canada, as that would reinforce the concept of a unified legal area and would have a direct effect on the promotion of a real federation. Such uniformity would reduce the costs of creditors seeking to have their judgments enforced in several provinces where property belonging to the debtor is located and would promote the free economic distribution of transactions between the provinces.
In addition, as things now stand, the variation of conditions of recognition from province to province means that creditors can bring proceedings in every province in which there is a real and substantial connection between the court and the facts, inter alia to take advantage of different conflict rules, ascertain the effectiveness of an action in each court in advance, intentionally increase the adverse party's costs or maximize their chances of succeeding. This encourages forum shopping and results in the multiplication of parallel actions intended to take advantage of these differences.
A uniform Act should counter such conduct in part by (1) favouring the obtaining of a single judgment and (2) facilitating recognition of the judgment in all the other provinces.
However, this strategy requires us to ask whether jurisdiction should be limited to the Canadian court considered to have the closest connection with the case or whether it would be preferable to confer jurisdiction on every court that has a close connection with the case. This question presupposes that the court with the closest connection can be determined in every case and requires us to consider the meaning to be given to uniformity.
Meaning of uniformity and impact on the content of the strategies
Uniformity can be understood in two ways: uniformity in the designation of a single court (solution 1) or uniformity in the designation of two or more courts, each of which has a close connection with the case (solution 2). In the first case, a transfer procedure and discretionary measures like those related to the forum non conveniens, lis pendens and injunctions not to sue elsewhere might be adopted.
In the second case, the forum non conveniens doctrine should not be extended or used with excessive frequency.
The first solution is that preferred by the American Uniform Act (Conflict of Jurisdiction Model Act). The Canadian Uniform Acts of 1991, the Unfirom Enforcement of Canadian Judgments Act, and 1994, the Uniform Court Jurisdiction and Transfer of Proceedings Act, also seem to lean toward this solution of identifying the court with the closest connection, whose judgment will then be recognized everywhere without being reviewed. This approach is questionable. First of all, it is inconsistent with Morguard, which requires the selection of a court with a close connection, not the court with the closest connection.
What is more, the possibility that this choice of a single court will be natural and evident is far from obvious. How will the same selection criteria be interpreted everywhere?1 Thus, the American model Act lays down no fewer than fourteen factors to be considered to determine which court will have the "honour" to rule on the merits and have its judgment enforced elsewhere. They include the interests of justice, the interests of countries with jurisdiction over the case and the law applicable to the subject-matter. The limits of uniformity are quickly reached.
It must therefore be asked how appropriate it would be to adopt a rule that, although uniform, is vague or discretionary. Uniformity would then be at the level of general principles rather than of specific rules, which would limit the impact of this effort significantly. As a result, it is necessary to agree how specific the rules will be, and to try to make them as specific as possible without making them too inflexible.
Furthermore, if the direction being taken is that of uniformity of provincial legislation, it is in our view essential to delete certain provisions of the model Acts that permit a party to ignore these rules and continue to apply non-uniform provincial rules (s. 9 UECJA; s. 12 CJPTA). Otherwise, the impact of the standardization process would be limited accordingly. Thus, s. 12 CJPTA permits the Quebec rules of exclusive jurisdiction (arts. 3151 and 3165 C.C.Q.2) to be maintained. The same is true of the special rules of international jurisdiction in respect of such matters as consumer and employment contracts (arts. 3149, 31503 and 3168(5) C.C.Q.), although we consider this appropriate, as they concern individual contracts.
It was necessary to make these general comments before discussing the scope and actual content of a uniform Act.