Morguard Investments Ltd. v. De Savoye

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Morguard Investments Ltd. v. De Savoye
Supreme Court of Canada
Hearing: April 23, 1990 Judgment: December 20, 1990
Full case name: Douglas De Savoye v. Morguard Investments Limited and Credit Foncier Trust Company Citations: [1990] 3 S.C.R. 1077 Ruling: De Savoye appeal dismissed
Holding
a foreign judgment from another province will be enforced where there is a "real and substantial connection" to the forum
Court membership
Chief Justice: Brian Dickson Puisne Justices: Antonio Lamer, Bertha Wilson, Gérard La Forest, Claire L'Heureux-Dubé, John Sopinka, Charles Gonthier, Peter Cory, Beverley McLachlin
Reasons given
Unanimous reason by: La Forest J.

Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077 is the leading decision of the Supreme Court of Canada on the enforcement of extraprovincial judgments. The Court held that the standard for enforcing a default judgment from a different province is not the same as if it were from another country; rather the Court adopts the test from Indyka v. Indyka, [1969] 1 A.C. 33 (H.L.)and the Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393 where there must be "a real and substantial connection" between the petitioner and the country or territory exercising jurisdiction.

Contents 1 Background 2 Issue 3 Reasons of the Court 4 Aftermath 5 See also 6 External links

[edit] Background

The appellant was the mortgagor of the property, who had moved to British Columbia. The mortgages defaulted and the respondents brought action in Alberta, for the land they had mortgaged in that same province.

The appellant chose not to appear or defend his actions. The respondents obtained judgment ex juris in the foreclosure action, and then obtained orders for the judicial sale of the properties. They then initiated separate action in the British Columbia Supreme Court to enforce the Alberta judgments for the shortfall.

[edit] Issue

The main question placed before the court was the degree of recognition that should be accorded by the courts of one province to the judgments of another for a personal action brought forward in the second province when the defendant did not reside there.

[edit] Reasons of the Court

Justice La Forest wrote the unanimous reasons of court for dismissing the case. After surveying the case law in both England and the United States he noted that the old common law rules, based on territoriality, sovereignty, independence and attornment, were outdated. La Forest argued that a modern approach based on the principle of comity ("the deference and respect due by other states to the actions of a state legitimately taken within its territory") and reciprocity were needed a basis of recognizing foreign judgments. The infringement on the nation's sovereignty is justified where there is mutual convenience between states. The earlier views of distrusting the justice system of other countries, he argued, was outdated. Instead, he emphasized that the business community operates on a world economy and so the law must accommodate the "the flow of wealth, skills and people across state lines".

On the basis of Canada's federal system comity should be even stronger between provinces, which share a much deeper bond than nations, based on shared citizenship and a common market.

[edit] Aftermath

The test established in this case was later elaborated on in Muscutt v. Courcelles (2002), 60 O.R. (3d) 20 (Ont. C.A.) The Court of Appeal listed eight factors to be considered when determining whether there is a real and substantial connection:

1. the connection between the forum and the plaintiff's claim;
2. the connection between the forum and the defendant;
3. unfairness to the defendant in assuming jurisdiction;
4. unfairness to the plaintiff in not assuming jurisdiction;
5. the involvement of other parties to the suit;
6. the court's willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis;
7. whether the case is interprovincial or international in nature; and
8. comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere.

[edit] See also

• List of Supreme Court of Canada cases
• Beals v. Saldanha, [2003] 3 S.C.R. 416, 2003 SCC 72 - affirmed in international setting

[edit] External links

• Full text of Supreme Court of Canada decision at LexUM
• Muscutt v. Courcelles