6. Proof of Foreign Law
Traders Realty Ltd v Sibley
FUNDUK, Master:-This is an application by the plaintiff for summary judgment.
In the statement of claim, the plaintiff alleges the defendants mortgaged certain land in Ontario to Charles Graham Leitch and June Margaret Leitch to secure payment of $13,000 and interest. The plaintiff alleges it is the transferee of the mortgage. The statement of claim makes the usual allegations about the terms of the mortgage.
The evidence on behalf of the plaintiff is that the land was sold by a prior mortgagee, resulting in the plaintiff receiving $1,887.12. The plaintiff's claim is on the covenant to pay. It is a debt action.
Although it is not alleged in the pleadings, it is not disputed that at the relevant time, the defendants were resident in Ontario. The defendants later followed the sagacious advice of Horace Greeley.
A statement of defence was filed. It pleads:
1. The Defendants herein deny each and every allegation as set out in the Plaintiff's Statement of Claim as if the same were set out herein and traversed seratium and puts Plaintiff to the strict proof thereof.
2. That if the Defendants have defaulted it under the terms of any Memorandum, which is not admitted but denied, the Defendants deny that they are indebted to the Plaintiff in the sum of $13, 229.78 or any amount.
3. The Defendants plead the provision of the Judicature Act, R.S.A. 1970 and amendments thereto.
The only issue raised by the defendants on this application is the applicability of s.41(1) of the Law of Property Act, R.S.A. 1980. C. L-8, formerly s. 34(17) of the Judicature Act, R.S.A. 2970, c 193 [now R.S.A. 1980. c. J-1]. Alternatively, counsel for the defendants submits that if Ontario law applies there is no evidence as to what it is.
I am prepared to assume, for the purpose of this application, that the lex loci is Ontario. However there is no evidence before me as to what the law of Ontario is. The burden of proving its case lies on the plaintiff. Because the defendants deny everything the plaintiff must prove the law of Ontario is different from the law of Alberta.
Counsel for the plaintiff assumes that because s. 41(1) of the Law of Property Act does not apply, that ends the matter. However, is not the law of Ontario the same as the law of Alberta? What counsel for the plaintiff has failed to appreciate is that which is concisely put by Stevenson J. (As he then was) in Ruck v. Ruck (1980), 11 Alta. L.R. (2d) 397 at 399 (Q.B.):
Foreign law is a question of fact. It is presumed to be the same as the lex fori, here Alberta, in the absence of evidence to the contrary. [The italics are mine.]
Castel, Canadian Conflict of Laws (1975), vol. 1, discusses this at p. 653 et seq. Castel does indicate there is some doubt whether the presumption includes the statute law of the lex fori, although he does state it Aseems to include statutes as well as the law established by judicial decision.@ Castel does indicate there Ais little basis in fact for the presumption that the statues of one jurisdiction are identical to those of another@ (p. 655).
It is not clear beyond all doubt that the presumption does not apply to statute law. On an application for summary judgment, any such doubt must tip the scales in favour of the defendant.
I have no doubt, on the evidence before me, that the lex loci contractus is Ontario and that the substantive Ontario law, whatever it is, governs.
Inferentially, counsel for the plaintiff attempts to "prove" what the Ontario law is by reference to Sigurdson, supra. A fact cannot be proved by reference to another unrelated decision between different parties where a fact was either admitted or found. The confusion lies in approaching the foreign law as a matter of law rather than as a matter of fact.
In Sigurdson there was an agreed statement of facts. Its contents are not set out in the decision. Presumably the parties agreed that the laws of British Columbia and Ontario did not prevent a mortgagee from suing on the covenant to pay. If the parties had not so agreed then Medhurst J. Necessarily found as a fact that the laws of British Columbia and Ontario did not prevent a mortgagee from suing on the covenant to pay.
A fact from Sigurdson cannot be "imported" into this action, even if the fact is what is the law of Ontario. Each action must stand or fall on the evidence before the court. Evidence in another action, between different parties, is inadmissible because it is irrelevant. The trier of the action must find the facts. What some other trier of facts has found to be a fact in the action before him is irrelevant.
Even where the question of fact is what the law of a foreign jurisdiction is, the danger of accepting any other decision, even those of the foreign court, as to what the law is should be self-evident. A analogy will suffice. If a court finds as a fact that on 23rd June 1978 the temperature at Edmonton, Alberta, was 23 degrees, can one logically conclude that on all other days the temperature at Edmonton, Alberta, is also 23 degrees?
Laws, even those of foreign jurisdictions, are not always constant. What may be the law at one point in time is not necessarily the law at another point in time. Evidence, to be admissible, must be relevant to the issue before the court. To be relevant to the issue before the court. To be relevant it must relate to the critical point in tie. If a mortgage is granted in May 1978, of what relevance is a decision in 1967 to the law of Ontario to Aprove@ what the law of Ontario was in may 1978? What was the critical point in time in Sigurdson? Was it the same as the critical point in time in this action?
In each action where the laws of a foreign jurisdiction are to govern the transaction, such laws must be proved as a fact. As the plaintiff=s position is that the laws of Ontario apply, the burden of proof lies on it: Casey, supra, at p. 640.
As there is no evidence before me as to what the Ontario law is, and as there is doubt about whether the presumption that the law of the foreign jurisdiction is the same as the law of lex fori applies to statute law, the application is dismissed.
Application dismissed.