Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Canada

Civil Code of Québec1

LRQ, cC-1991

[…]

Book Ten

Private International Law Title One

General Provisions

3076. The rules contained in this Book apply subject to those rules of law in force in Québec which are applicable by reason of their particular object.

3077. Where a State comprises several territorial units having different legislative jurisdictions, each territorial unit is regarded as a State.

Where a State comprises several legal systems applicable to different categories of persons, any reference to the law of that State is a reference to the legal system prescribed by the rules in force in that State; in the absence of such rules, any such reference is a reference to the legal system most closely connected with the situation.

3078. Characterization is made according to the legal system of the court seized of the matter; however, characterization of property as movable or immovable is made according to the law of the place where it is situated.

Where a legal institution is unknown to the court or known to it under a different designation or with a different content, foreign law may be taken into account.

3079. Where legitimate and manifestly preponderant interests so require, effect may be given to a mandatory provision of the law of another State with which the situation is closely connected.

In deciding whether to do so, consideration is given to the purpose of the provision and the consequences of its application.

3080. Where, under the provisions of this Book, the law of a foreign State applies, the law in question is the internal law of that State, but not its rules governing conflict of laws.

3081. The provisions of the law of a foreign State do not apply if their application would be manifestly inconsistent with public order as understood in international relations.

3082. Exceptionally, the law designated by this Book is not applicable if, in the light of all attendant circumstances, it is clear that the situation is only remotely connected with that law and is much more closely connected with the law of another State. This provision does not apply where the law is designated in a juridical act.p. 3047

Title Two

Conflict Of Laws

Chapter I Personal Status

Section I General Provisions

3083. The status and capacity of a natural person are governed by the law of his domicile.

The status and capacity of a legal person are governed by the law of the State under which it is constituted, subject, with respect to its activities, to the law of the place where they are carried on.

3084. In cases of emergency or serious inconvenience, the law of the court seized of the matter may be applied provisionally to ensure the protection of a person or of his property.

Section II Special Provisions

§ 0.1. — Change of designation of sex

3084.1. When a change of the designation of sex that appears on the act of birth of a person born in Québec but domiciled outside Québec proves impossible in the State where the person is domiciled, the registrar of civil status may, at the request of the person, change the designation and, if necessary, change the person’s given names in the act drawn up in Québec.

The application is subject to the conditions prescribed by the law of Québec, except those respecting domicile and nationality.

§ 1. — Incapacity

3085. Protective supervision of persons of full age and tutorship to minors are governed by the law of the domicile of each person subject thereto.

Whenever a minor or a protected person of full age domiciled outside Québec possesses property in Québec or has rights to be exercised and the law of his domicile does not provide for him to have a representative, a tutor or a curator may be appointed to represent him in all cases where a tutor or a curator may represent a minor or a protected person of full age under the laws of Québec.

3086. A party to a juridical act who is incapable under the law of the State of his domicile may not invoke his incapacity if he was capable under the law of the State in which the other party was domiciled when the act was entered into in that State, unless the other party was or should have been aware of the incapacity.

3087. A legal person who is a party to a juridical act may not invoke restrictions upon the power of representation of the persons acting for it if the restrictions did not exist under the law of the State in which the other party was domiciled when the act was entered into in that State, unless the other party was or should have been aware of the restrictions by virtue of his position with or relationship to the party invoking them.

§ 2. — Marriage

3088. Marriage is governed with respect to its essential validity by the law applicable to the status of each of the intended spouses.

With respect to its formal validity, it is governed by the law of the place of its solemnization or by the law of the State of domicile or of nationality of one of the spouses.

3089. The effects of marriage, particularly those which are binding on all spouses regardless of their matrimonial regime, are subject to the law of the domicile of the spouses.

Where the spouses are domiciled in different States, the applicable law is the law of their common residence or, failing that, the law of their last common residence or, failing that, the law of the place of solemnization of the marriage.p. 3048

§ 3. — Separation from bed and board

3090. Separation from bed and board is governed by the law of the domicile of the spouses.

Where the spouses are domiciled in different States, the applicable law is the law of their common residence or, failing that, the law of their last common residence or, failing that, the law of the court seized of the matter.

The effects of separation from bed and board are subject to the law governing the separation.

§ 3.1. — Civil union

3090.1. Civil union is governed with respect to its essential and formal validity by the law of the place of its solemnization.

That law also applies to the effects of civil union, except those binding all spouses regardless of their regime, which are subject to the law of the State of their domicile.

3090.2. The dissolution of a civil union is governed by the law of the State of domicile of the spouses or by the law of the place of its solemnization. The effects of the dissolution are subject to the law governing the dissolution.

3090.3. Where the spouses are domiciled in different States, the applicable law is the law of their common place of residence or, failing that, the law of their last common place of residence or, failing that, the law of the place of solemnization of the civil union or the law of the court seized of the application for dissolution, as the case may be.

§ 4. — Filiation by blood and filiation by adoption

3091. Filiation is established in accordance with the law of the domicile or nationality of the child or of one of his parents, at the time of the child’s birth, whichever is more beneficial to the child.

The effects of filiation are subject to the law of the domicile of the child.

3092. The rules that govern consent to adoption and the eligibility of a child for adoption are those provided by the law of the child’s domicile.

The effects of adoption are subject to the law of the domicile of the adopter.

3093. Custody of the child is governed by the law of his domicile.

§ 5. — Obligation of support

3094. The obligation of support is governed by the law of the domicile of the creditor. However, where the creditor cannot obtain support from the debtor under that law, the applicable law is that of the domicile of the debtor.

3095. No claim of support of a collateral relation or a person connected by marriage or a civil union is admissible if, under the law of his domicile, there is no obligation for the debtor to provide support to the plaintiff.

3096. The obligation of support between spouses who are divorced or separated from bed and board, between spouses whose civil union is dissolved or spouses whose marriage or union has been declared null is governed by the law applicable to the divorce, separation from bed and board, dissolution of the civil union or annulment of the marriage or civil union.

Chapter II Status of Property

Section I General Provision

3097. Real rights and their publication are governed by the law of the place where the property concerned is situated.

However, real rights on property in transit are governed by the law of the State of their place of destination.p. 3049

Section II Special Provisions

§ 1. — Successions

3098. Succession to movable property is governed by the law of the last domicile of the deceased; succession to immovable property is governed by the law of the place where the property is situated.

However, a person may designate, in a will, the law applicable to his succession, provided it is the law of the State of his nationality or of his domicile at the time of the designation or of his death, or the law of the place where an immovable owned by him is situated, but only with regard to that immovable.

3099. The designation of the law applicable to a succession is without effect to the extent that the law designated substantially deprives the married or civil union spouse or a child of the deceased of a right of succession to which, in the absence of such a designation, he or she would have been entitled.

In addition, the designation is without effect to the extent that it infringes on particular inheritance regimes to which certain property is subject, under the law of the State in which it is situated, because of the property’s economic, family or social destination..

3100. To the extent that the law on successions cannot be enforced with respect to property situated outside Québec, corrective measures may be applied to property situated in Québec, in particular, by means of a redetermination of the shares, a new sharing of debts or a compensatory deduction established by a corrective partition.

3101. Where the law governing the succession of the deceased does not provide for him to have an administrator or liquidator authorized to act in Québec and the heirs have rights to be exercised in Québec or certain property of the succession is situated in Québec, an administrator or a liquidator may be appointed under the law of Québec.

§ 2. — Movable securities

3102. The validity of a movable security is governed by the law of the State in which the property charged with it is situated at the time of creation of the security.

Publication and its effects are governed by the law of the State in which the property charged with the security is currently situated.

3103. Any movable that is not intended to remain in the State in which it is situated may be charged with a security in accordance with the law of the State for which it is destined; the security may be published in accordance with the law of that State, but publication has effect only if the property actually arrives in the State within 30 days of the creation of the security.

3104. A security published in accordance with the law of the State where the property was situated at the time of creation of the security will be deemed to be published in Québec, from the first publication, if it is published in Québec before any of the following events, whichever occurs first:

  • the cessation of effect of publication in the State where the property was situated at the time of creation of the security;

  • the expiry of 30 days from the time the property has arrived in Québec;

  • the expiry of 15 days from the time the creditor is advised that the property has arrived in Québec.

However, the security may not be set up against a buyer who has acquired the property in the ordinary course of the activities of the grantor.

3105. The validity of a security charged on a corporeal movable ordinarily used in more than one State or charged on an incorporeal movable is governed by the law of the State where the grantor was domiciled at the time of creation of the security.

Publication and its effects are governed by the law of the State in which the grantor is currently domiciled.

p. 3050However, the provisions of this article do not apply to a security encumbering an incorporeal movable established by a title in bearer form or to a security published by the creditor’s holding of the title.

3106. A security which, when it is created, is governed by the law of the State where the grantor is then domiciled and which has been published will be deemed to have been published in Québec, from the first publication, provided it is published in Québec before any of the following events, whichever occurs first:

  • the cessation of effect of publication in the State where the grantor was formerly domiciled;

  • the expiry of 30 days from the time the grantor established his new domicile in Québec;

  • the expiry of 15 days from the time the creditor was advised of the new domicile of the grantor in Québec.

However, the security may not be set up against a buyer who has acquired the property in the ordinary course of the activities of the grantor.

§ 3. — Trusts

3107. In the absence of a designation of law that is expressly made in the juridical act creating a trust or that may be inferred with certainty from the terms of that act, or if the law designated does not provide for trusts, the law that applies to the trust is the law with which the trust is most closely connected.

To determine the applicable law, account is taken in particular of the place of administration of the trust, the place where the trust property is situated, the residence or the establishment of the trustee, the objects of the trust and the places where they are to be fulfilled.

Any severable aspect of a trust, particularly its administration, may be governed by a different law.

3108. The law governing the trust determines whether the question to be resolved concerns the validity or the administration of the trust.

It also determines whether that law or the law governing a severable aspect of the trust may be replaced by the law of another State and, if so, the conditions of replacement.

§ 4. — Securities and security entitlements to financial assets

3108.1. The validity of a security is governed by the law of the State under which the issuer is constituted or, if the security is issued by a State, by the law of that State.

3108.2. The following matters are governed by the law of the State under which the issuer is constituted or, if permitted by the law of that State, by another law specified by the issuer:

  • the rights and duties of the issuer with respect to the registration of transfer of a security on its books, and the validity of the registration;

  • whether the issuer owes any duty to an adverse claimant to a security issued by the issuer; and

  • whether an adverse claim may be asserted against a person to whom the transfer of a security is registered in the records of the issuer or who obtains control of an uncertificated security issued by the issuer.

If the issuer is constituted under the law of a State that comprises several territorial units having different legislative jurisdictions, the applicable law is the law in force in the territorial unit where the issuer has its head office or, if permitted by the law of the State that comprises the territorial units, another law specified by the issuer.

3108.3. Despite article 3108.2, if the issuer is a State, the matters listed in that article are governed by the law of that State or, if the law of that State so permits, by the law specified by that State.

3108.4. Québec as an issuer and any issuer constituted under a law of Québec may specify the law governing the matters listed in article 3108.2.

3108.5. Whether a security is enforceable against the issuer despite a defect or defence related to matters other than those listed in articles 3108.1 and 3108.2 is governed by the law of the State under which the issuer is constituted or, if the issuer is constituted under the law of a State that p. 3051comprises several territorial units having different legislative jurisdictions, by the law of the territorial unit in which the issuer has its head office.

If the issuer is a State, the applicable law is the law of that State. If the issuer is a State that comprises several territorial units having different legislative jurisdictions, the applicable law is the law of that State or any other law specified by that State.

3108.6. The law of the State in which a security certificate is located at the time of its delivery determines whether an adverse claim to the security it represents may be asserted against a person to whom the security certificate is delivered.

3108.7. The law expressly specified in a juridical act governing a securities account maintained for an entitlement holder by a securities intermediary as the law applicable to that act governs the following matters, unless the act specifies another law as the law applicable to them:

  • acquisition of a security entitlement from the securities intermediary;

  • the rights and duties of the securities intermediary and the entitlement holder arising out of the security entitlement;

  • whether the securities intermediary owes any duty to a person who has an adverse claim to a security entitlement; and

  • whether an adverse claim may be asserted against a person who acquires a security entitlement from the securities intermediary or who acquires rights in a security entitlement from the entitlement holder.

If no law is specified in a juridical act governing a securities account, the applicable law is the law of the State in which the establishment expressly mentioned in such an act as being the place where the securities account is maintained is located or, if no establishment is expressly specified in such an act, the law of the State in which the establishment identified in an account statement as the establishment serving the entitlement holder’s account is located. If no law may be determined on the basis of the account statement, the applicable law is the law of the State in which the decision-making centre of the securities intermediary is located.

3108.8. The validity of a security encumbering a security or security entitlement to a financial asset, the publication of the encumbering security and the effects of publication are governed by the following laws, determined, with respect to the validity of the encumbering security, at the time of its creation:

  • in the case of a certificated security, the law of the State in which the security certificate is located;

  • in the case of an uncertificated security, the law governing the matters listed in article 3108.2 relating, among other things, to certain rights and duties of the issuer; and

  • in the case of a security entitlement to a financial asset, the law governing acquisition of a security entitlement from a securities intermediary.

However, whether an encumbering security is published by registration and whether an encumbering security without delivery granted by a securities intermediary is considered to be published by the sole fact of its being granted are governed by the law of the State in which the grantor is domiciled.

Chapter III Status Of Obligations

Section I General Provisions

§ 1. — Form of juridical acts

3109. The form of a juridical act is governed by the law of the place where it is entered into.

A juridical act is nevertheless valid if it is made in the form prescribed by the law applicable to the content of the act, by the law of the place where the property which is the subject of the act is p. 3052situated when the act is concluded or by the law of the domicile of one of the parties when the act is concluded.

A testamentary provision may also be made in the form prescribed by the law of the domicile or nationality of the testator either at the time he made the disposition or at the time of his death.

3110. An act may be executed outside Québec before a Québec notary if it pertains to a real right the subject of which is situated in Québec or if one of the parties is domiciled in Québec.

§ 2. — Content of juridical acts

3111. A juridical act, whether or not it contains any foreign element, is governed by the law expressly designated in the act or whose designation may be inferred with certainty from the terms of the act.

Where a juridical act contains no foreign element, it remains nevertheless subject to the mandatory provisions of the law of the State which would apply in the absence of a designation.

The law may be expressly designated as applicable to the whole or to only part of a juridical act.

3112. If no law is designated in the act or if the law designated invalidates the juridical act, the courts apply the law of the State with which the act is most closely connected in view of its nature and the attendant circumstances.

3113. A juridical act is presumed to be most closely connected with the law of the State where the party who is to perform the prestation which is characteristic of the act has his residence or, if the act is concluded in the ordinary course of business of an enterprise, has his establishment.

Section II Special Provisions

§ 1. — Sale

3114. In the absence of a designation by the parties, the sale of a corporeal movable is governed by the law of the State where the seller had his residence or, if the sale is concluded in the ordinary course of business of an enterprise, his establishment, at the time the contract was concluded. However, the sale is governed by the law of the State in which the buyer had his residence or his establishment at the time the contract was concluded in any of the following cases:

  • negotiations have taken place and the contract has been concluded in that State;

  • the contract provides expressly that delivery shall be performed in that State;

  • the contract is concluded on terms determined mainly by the buyer, in response to a call for tenders.

In the absence of a designation by the parties, the sale of immovable property is governed by the law of the State where it is situated.

3115. In the absence of a designation by the parties, a sale by auction or on a stock exchange is governed by the law of the State where the auction takes place or the exchange is situated.

§ 2. — Conventional representation

3116. The existence and scope of the powers of a representative in his relations with a third person and the conditions under which his personal liability or that of the represented person may be incurred are governed by the law expressly designated by the represented person and the third person or, where none is designated, by the law of the State in which the representative acted if the represented person or the third person has his domicile or residence in that State.

§ 3. — Consumer contract

3117. The choice by the parties of the law applicable to a consumer contract cannot result in depriving the consumer of the protection afforded to him by the mandatory rules of the law of the State where he has his residence if the conclusion of the contract was preceded, in that State, by a p. 3053specific offer or by advertising and the consumer took in that State all the steps necessary on his part for the conclusion of the contract, or if the order from the consumer was received in that State.

The same rule also applies where the consumer was induced by the other contracting party to travel to a foreign State for the purpose of concluding the contract.

In the absence of a designation by the parties, the law of the place where the consumer has his residence is, in the same circumstances, applicable to the consumer contract.

§ 4. — Contract of employment

3118. The choice by the parties of the law applicable to a contract of employment cannot result in depriving the worker of the protection afforded to him by the mandatory rules of the law of the State where the worker habitually carries out his work, even if he is on temporary assignment in another State or, if the worker does not habitually carry out his work in any one State, of the law of the State where his employer has his domicile or establishment.

In the absence of a designation by the parties, the law of the State where the worker habitually carries out his work or the law of the State where his employer has his domicile or establishment is, in the same circumstances, applicable to the contract of employment.

§ 5. — Contract of non-marine insurance

3119. Notwithstanding any agreement to the contrary, a contract of insurance covering property or an interest situated in Québec, or that is subscribed in Québec by a person resident in Québec, is governed by the law of Québec if the policyholder applies for the insurance in Québec or the insurer signs or delivers the policy in Québec.

Similarly, a contract of group insurance of persons is governed by the law of Québec where the participant has his residence in Québec at the time he becomes a participant.

Any sum due under a contract of insurance governed by the law of Québec is payable in Québec.

§ 6. — Assignment of claims

3120. The assignability of a claim and relations between the assignee and the assigned debtor are governed by the law governing relations between the assigned debtor and the assignor.

§ 7. — Arbitration

3121.In the absence of a designation by the parties, an arbitration agreement is governed by the law applicable to the principal contract or, where that law invalidates the agreement, by the law of the State where arbitration takes place.

§ 8. — Matrimonial or civil union regime

3122. The law applicable to a conventional matrimonial or civil union regime is determined according to the general rules applicable to the content of juridical acts.

3123. The matrimonial or civil union regime of spouses who have not entered into matrimonial or civil union agreements is governed by the law of the State in which they have their domicile at the time of their marriage or civil union.

If the spouses are at that time domiciled in different States, the applicable law is the law of their first common residence or, failing that, the law of their common nationality or, failing that, the law of the place of solemnization of their marriage or civil union.

3124. The validity of any agreed change to a matrimonial or civil union regime is governed by the law of the domicile of the spouses at the time of the change.

p. 3054If the spouses are at that time domiciled in different States, the applicable law is the law of their common residence or, failing that, the law governing their matrimonial or civil union regime.

§ 9. — Certain other sources of obligations

3125. Obligations based on management of the business of another, reception of a thing not due or unjust enrichment are governed by the law of the place of occurrence of the act from which they derive.

§ 10. — Civil liability

3126. The obligation to make reparation for injury caused to another is governed by the law of the State where the injurious act occurred. However, if the injury appeared in another State, the law of the latter State is applicable if the person who committed the injurious act should have foreseen that the injury would manifest itself there.

In any case where the person who committed the injurious act and the victim have their domiciles or residences in the same State, the law of that State applies.

3127. Where an obligation to make reparation for injury arises from nonperformance of a contractual obligation, claims based on the nonperformance are governed by the law applicable to the contract.

3128. Whatever its source, the liability of the manufacturer of a movable is governed, at the choice of the victim,

  • by the law of the State where the manufacturer has his establishment or, failing that, his residence, or

  • by the law of the State where the movable was acquired.

3129. The application of the rules of this Code is mandatory with respect to civil liability for any injury suffered in or outside Québec as a result of exposure to or the use of raw materials, whether processed or not, originating in Québec.

§ 11. — Evidence

3130. Evidence is governed by the law applicable to the merits of the dispute, subject to any rules of the court seized of the matter which are more favourable to establishing it.

§ 12. — Prescription

3131. Prescription is governed by the law applicable to the merits of the dispute.

Chapter IV Status Of Procedure

3132. Procedure is governed by the law of the court seized of the matter.

3133. Arbitration proceedings are governed by the law of the State where the arbitration takes place unless the parties have designated either the law of another State or an institutional or special arbitration procedure.

Title Three International Jurisdiction Of Québec Authorities

Chapter I General Provisions

3134. In the absence of any special provision, Québec authorities have jurisdiction when the defendant is domiciled in Québec.

p. 30553135. Even though a Québec authority has jurisdiction to hear a dispute, it may, exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another State are in a better position to decide the dispute.

3136. Even though a Québec authority has no jurisdiction to hear a dispute, it may nevertheless hear it provided the dispute has a sufficient connection with Québec, if proceedings cannot possibly be instituted outside Québec or where the institution of such proceedings outside Québec cannot reasonably be required.

3137. On the application of a party, a Québec authority may stay its ruling on an action brought before it if another action, between the same parties, based on the same facts and having the same subject is pending before a foreign authority, provided that the latter action can result in a decision which may be recognized in Québec, or if such a decision has already been rendered by a foreign authority.

3138. A Québec authority may order provisional or conservatory measures even if it has no jurisdiction over the merits of the dispute.

3139. Where a Québec authority has jurisdiction to rule on the principal demand, it also has jurisdiction to rule on an incidental demand or a cross demand.

3140. In cases of emergency or serious inconvenience, Québec authorities may also take such measures as they consider necessary for the protection of a person present in Québec or of the person’s property if it is situated there.

Chapter II Special Provisions

Section I Personal Actions Of An Extrapatrimonial And Family Nature

3141. Québec authorities have jurisdiction to hear personal actions of an extrapatrimonial and family nature when one of the persons concerned is domiciled in Québec.

3142. Québec authorities have jurisdiction to decide as to the custody of a child provided he is domiciled in Québec.

3143. Québec authorities have jurisdiction to decide actions in matters of support or applications for review of a foreign support judgment that may be recognized in Québec, if one of the parties has his domicile or residence in Québec.

3144. Québec authorities have jurisdiction in matters of nullity of marriage or dissolution or nullity of civil unions if the domicile or place of residence of one of the spouses or the place of solemnization of their marriage or civil union is in Québec.

3145. As regards the effects of marriage or a civil union, particularly those that are binding on all spouses regardless of their matrimonial or civil union regime, Québec authorities have jurisdiction when the domicile or place of residence of one of the spouses is in Québec.

3146. Québec authorities have jurisdiction to rule on separation from bed and board when one of the spouses has his domicile or residence in Québec at the time of the institution of the proceedings.

3147. Québec authorities have jurisdiction in matters of filiation if the child or one of his parents is domiciled in Québec.

They have jurisdiction in matters of adoption if the child or plaintiff is domiciled in Québec.

Section II Personal Actions Of A Patrimonial Nature

3148. In personal actions of a patrimonial nature, Québec authorities have jurisdiction in the following cases:

  • the defendant has his domicile or his residence in Québec;

  • the defendant is a legal person, is not domiciled in Québec but has an establishment in Québec, and the dispute relates to its activities in Québec;

  • p. 3056a fault was committed in Québec, injury was suffered in Québec, an injurious act occurred in Québec or one of the obligations arising from a contract was to be performed in Québec;

  • the parties have by agreement submitted to them the present or future disputes between themselves arising out of a specific legal relationship;

  • the defendant has submitted to their jurisdiction.

However, Québec authorities have no jurisdiction where the parties have chosen by agreement to submit the present or future disputes between themselves relating to a specific legal relationship to a foreign authority or to an arbitrator, unless the defendant submits to the jurisdiction of the Québec authorities.

3149. Québec authorities also have jurisdiction to hear an action based on a consumer contract or a contract of employment if the consumer or worker has his domicile or residence in Québec; the waiver of such jurisdiction by the consumer or worker may not be set up against him.

3150. Québec authorities also have jurisdiction to hear an action based on a contract of insurance where the holder, the insured or the beneficiary of the contract is domiciled or resident in Québec, the contract covers an insurable interest situated in Québec or the loss took place in Québec.

3151. Québec authorities have exclusive jurisdiction to hear in first instance all actions based on liability under article 3129.

Section III Real And Mixed Actions

3152. Québec authorities have jurisdiction to hear a real action if the property in dispute is situated in Québec.

3153. Québec authorities have jurisdiction in matters of succession if the succession opens in Québec, the defendant or one of the defendants is domiciled in Québec or the deceased had elected that Québec law should govern his succession.

They also have jurisdiction if any property of the deceased is situated in Québec and a ruling is required as to the devolution or transmission of the property.

3154. Québec authorities have jurisdiction in matters of matrimonial or civil union regimes in the following cases:

  • the regime is dissolved by the death of one of the spouses and the authorities have jurisdiction with respect to the succession of that spouse;

  • the object of the proceedings relates only to property situated in Québec.

In other cases, Québec authorities have jurisdiction if one of the spouses has his or her domicile or residence in Québec on the date of institution of the proceedings.

Title Four Recognition And Enforcement Of Foreign Decisions And Jurisdiction Of Foreign Authorities

Chapter I Recognition And Enforcement Of Foreign Decisions

3155. A decision rendered outside Québec is recognized and, where applicable, declared enforceable by the Québec authority, except in the following cases:

  • the authority of the State where the decision was rendered had no jurisdiction under the provisions of this Title;

  • the decision, at the place where it was rendered, is subject to an ordinary remedy or is not final or enforceable;

  • p. 3057the decision was rendered in contravention of the fundamental principles of procedure;

  • a dispute between the same parties, based on the same facts and having the same subject has given rise to a decision rendered in Québec, whether or not it has acquired the authority of a final judgment (res judicata), is pending before a Québec authority, in first instance, or has been decided in a third State and the decision meets the conditions necessary for it to be recognized in Québec;

  • the outcome of a foreign decision is manifestly inconsistent with public order as understood in international relations;

  • the decision enforces obligations arising from the taxation laws of a foreign State.

3156. A decision rendered by default may not be recognized or declared enforceable unless the plaintiff proves that the act instituting the proceedings was duly served on the defaulting party in accordance with the law of the place where the decision was rendered.

However, the authority may refuse recognition or enforcement if the defaulting party proves that, owing to the circumstances, he was unable to acquaint himself with the act instituting the proceedings or was not given sufficient time to offer his defence.

3157. Recognition or enforcement may not be refused on the sole ground that the original authority applied a law different from the law that would be applicable under the rules contained in this Book.

3158. The Québec authority confines itself to verifying whether the decision with respect to which recognition or enforcement is sought meets the requirements prescribed in this Title, without considering the merits of the decision.

3159. If the decision contains provisions which can be dissociated, any one or more of them may be separately recognized or enforced.

3160. A decision rendered outside Québec awarding periodic payments of support may be recognized and declared enforceable with respect to payments due and payments to become due.

3161. Where a foreign decision orders a debtor to pay a sum of money expressed in foreign currency, the Québec authority converts the sum into Canadian currency at the rate of exchange prevailing on the day the decision became enforceable at the place where it was rendered.

Until conversion, the determination of interest payable under a foreign decision is governed by the law of the authority that rendered the decision.

3162. The Québec authority recognizes and enforces the obligations resulting from the taxation laws of a State that recognizes and enforces the obligations resulting from the taxation laws of Québec.

3163. Transactions enforceable at their places of origin are recognized and, where applicable, declared to be enforceable in Québec, on the same conditions as judicial decisions, to the extent that those conditions apply to the transactions.

Chapter II Jurisdiction Of Foreign Authorities

3164. The jurisdiction of foreign authorities is established in accordance with the rules on jurisdiction applicable to Québec authorities under Title Three of this Book, to the extent that the dispute is substantially connected with the State whose authority is seized of the matter.

3165. The jurisdiction of foreign authorities is not recognized by Québec authorities in the following cases:

  • where, by reason of the subject matter or an agreement between the parties, Québec law grants exclusive jurisdiction to its authorities to hear the action which gave rise to the foreign decision;

  • where, by reason of the subject matter or an agreement between the parties, Québec law recognizes the exclusive jurisdiction of another foreign authority;

  • where Québec law recognizes an agreement by which exclusive jurisdiction has been conferred upon an arbitrator.

3166. The jurisdiction of foreign authorities is recognized in matters of filiation where the child or either of his parents is domiciled in that State or is a national thereof.

p. 30583167. For actions in matters of divorce, the jurisdiction of foreign authorities is recognized if one of the spouses had his or her domicile in the State where the decision was rendered, or had his or her residence in that State for at least one year before the institution of the proceedings, if the spouses are nationals of that State, or if the decision has been recognized in any of those States.

For actions in matters of dissolution of a civil union, the jurisdiction of foreign authorities is recognized only if their State recognizes that institution; where that is the case, their jurisdiction is recognized on the same conditions as for divorce.

3168. In personal actions of a patrimonial nature, the jurisdiction of foreign authorities is recognized only in the following cases:

  • the defendant was domiciled in the State where the decision was rendered;

  • the defendant possessed an establishment in the State where the decision was rendered and the dispute relates to its activities in that State;

  • injury was suffered in the State where the decision was rendered and it resulted from a fault which was committed in that State or from an injurious act which occurred there;

  • the obligations arising from a contract were to be performed in that State;

  • the parties have submitted to the foreign authorities the present or future disputes between themselves arising out of a specific legal relationship; however, renunciation by a consumer or a worker of the jurisdiction of the authority of his place of domicile may not be set up against him;

  • the defendant has submitted to the jurisdiction of the foreign authorities.

[…]

Uniform Court Jurisdiction and Proceedings Transfer Act2

Preliminary note:

The Uniform Court Jurisdiction and Proceedings Transfer Act is not a source of law in the strict sense. It is a uniform act proposed by the Uniform Law Conference of Canada. However, the act is in force in three Canadian provinces (British Columbia, Saskatchewan and Nova Scotia) and has been enacted, even though not yet entered into force, by twomore (Yukon and Prince Edward Island). The offical comments provided by the Uniform Law Conference are not reprinted.

Part 1: Interpretation

Definitions

  • In this Act

    • ‘person’ includes a state;

    • ‘plaintiff’ means a person who commences a proceeding, and includes a plaintiff by way of counterclaim or third party claim;

    • ‘proceeding’ means an action, suit, cause, matter or originating application and includes a procedure and a preliminary motion;

    • ‘procedure’ means a procedural step in a proceeding;

    • ‘state’ means

      • Canada or a province or territory of Canada, and

      • a foreign country or a subdivision of a foreign country;

    • ‘subject matter competence’ means the aspects of a court’s jurisdiction that depend on factors other than those pertaining to the court’s territorial competence;

    • p. 3059‘territorial competence’ means the aspects of a court’s jurisdiction that depend on a connection between

      • the territory or legal system of the state in which the court is established, and

      • a party to a proceeding in the court or the facts on which the proceeding is based.

Part 2: Territorial Competence of Courts of [Enacting Province Or Territory]

Application of this Part

  • (1) In this Part, ‘court’ means a court of [enacting province or territory].

    • The territorial competence of a court is to be determined solely by reference to this Part.

Proceedings in personam

  • A court has territorial competence in a proceeding that is brought against a person only if

    • that person is the plaintiff in another proceeding in the court to which the proceeding in question is a counterclaim,

    • during the course of the proceeding that person submits to the court’s jurisdiction,

    • there is an agreement between the plaintiff and that person to the effect that the court has jurisdiction in the proceeding,

    • that person is ordinarily resident in [enacting province or territory] at the time of the commencement of the proceeding, or

    • there is a real and substantial connection between [enacting province or territory] and the facts on which the proceeding against that person is based.

Proceedings with no nominate defendant

  • A court has territorial competence in a proceeding that is not brought against a person or a vessel if there is a real and substantial connection between [enacting province or territory] and the facts upon which the proceeding is based.

Proceedings in rem

  • A court has territorial competence in a proceeding that is brought against a vessel if the vessel is served or arrested in [enacting province or territory].

Residual discretion

  • A court that under section 3 lacks territorial competence in a proceeding may hear the proceeding despite that section if it considers that

    • there is no court outside [enacting province or territory] in which the plaintiff can commence the proceeding, or

    • the commencement of the proceeding in a court outside [enactingprovince or territory] cannot reasonably be required.

Ordinary residence – corporations

  • A corporation is ordinarily resident in [enacting province or territory], for the purposes of this Part, only if

    • the corporation has or is required by law to have a registered office in [enacting province of territory],

    • pursuant to law, it

      • has registered an address in [enacting province or territory] at which process may be served generally, or

      • p. 3060has nominated an agent in [enacting province or territory] upon whom process may be served generally,

    • it has a place of business in [enacting province or territory], or

    • its central management is exercised in [enacting province or territory].

Ordinary residence – partnerships

  • A partnership is ordinarily resident in [enacting province or territory], for the purposes of this Part, only if

    • the partnership has, or is required by law to have, a registered office or business address in [enacting province or territory],

    • it has a place of business in [enacting province or territory], or

    • its central management is exercised in [enacting province or territory].

Ordinary residence – unincorporated associations

  • An unincorporated association is ordinarily resident in [enacting province or territory] for the purposes of this Part, only if

    • an officer of the association is ordinarily resident in [enacting province or territory], or

    • the association has a location in [enacting province or territory] for the purpose of conducting its activities.

Real and substantial connection

  • Without limiting the right of the plaintiff to prove other circumstances that constitute a real and substantial connection between [enacting province or territory] and the facts on which a proceeding is based, a real and substantial connection between [enacting province or territory] and those facts is presumed to exist if the proceeding

    • is brought to enforce, assert, declare or determine proprietary or possessory rights or a security interest in immovable or movable property in [enacting province or territory],

    • concerns the administration of the estate of a deceased person in relation to

      • immovable property of the deceased person in [enacting province or territory], or

      • movable property anywhere of the deceased person if at the time of death he or she was ordinarily resident in [enacting province or territory],

    • is brought to interpret, rectify, set aside or enforce any deed, will, contract or other instrument in relation to

      • immovable or movable property in [enacting province or territory], or

      • movable property anywhere of a deceased person who at the time of death was ordinarily resident in [enacting province or territory],

    • is brought against a trustee in relation to the carrying out of a trust in any of the following circumstances:

      • the trust assets include immovable or movable property in [enacting province or territory] and the relief claimed is only as to that property;

      • that trustee is ordinarily resident in [enacting province or territory];

      • the administration of the trust is principally carried on in [enacting province or territory];

      • by the express terms of a trust document, the trust is governed by the law of [enacting province or territory],

    • concerns contractual obligations, and

      • the contractual obligations, to a substantial extent, were to be performed in [enacting province or territory],

      • by its express terms, the contract is governed by the law of [enacting province or territory], or

      • the contract

        • is for the purchase of property, services or both, for use other than in the course of the purchaser’s trade or profession, and

        • p. 3061resulted from a solicitation of business in [enacting province or territory] by or on behalf of the seller,

    • concerns restitutionary obligations that, to a substantial extent, arose in [enacting province or territory],

    • concerns a tort committed in [enacting province or territory],

    • concerns a business carried on in [enacting province or territory],

      • is a claim for an injunction ordering a party to do or refrain from doing anything

      • in [enacting province or territory], or

      • in relation to immovable or movable property in [enacting province or territory],

    • is for a determination of the personal status or capacity of a person who is ordinarily resident in [enacting province of territory],

    • is for enforcement of a judgment of a court made in or outside [enacting province or territory] or an arbitral award made in or outside [enacting province or territory],

    • is for the recovery of taxes or other indebtedness and is brought by the Crown [of the enacting province or territory] or by a local authority [of the enacting province or territory].

Discretion as to the exercise of territorial competence

  • (1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.

    • A court, in deciding the question of whether it or a court outside [enacting province or territory] is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including

      • the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum,

      • the law to be applied to issues in the proceeding,

      • the desirability of avoiding multiplicity of legal proceedings,

      • the desirability of avoiding conflicting decisions in different courts,

      • the enforcement of an eventual judgment, and

      • the fair and efficient working of the Canadian legal system as a whole.

Conflicts or inconsistencies with other Acts

  • If there is a conflict or inconsistency between this Part and another Act of [enacting province or territory] or of Canada that expressly

    • confers jurisdiction or territorial competence on a court, or

    • denies jurisdiction or territorial competence to a court, that other Act prevails.]

Part 3: Transfer of a Proceeding

[Note: For ‘[superior court]’ throughout this Part, each [enacting province or territory] will substitute the name of its court of unlimited trial jurisdiction]

General provisions applicable to transfers

  • (1) The [superior court], in accordance with this Part, may

    • transfer a proceeding to a court outside [enacting province or territory], or

    • accept a transfer of a proceeding from a court outside [enacting province or territory].

  • A power given under this part to the [superior court] to transfer a proceeding to a court outside [enacting province or territory] includes the power to transfer part of the proceeding to that court.

  • A power given under this Part to the [superior court] to accept a proceeding from a court outside [enacting province or territory] includes the power to accept part of the proceeding from that court.

  • p. 3062If anything relating to a transfer of a proceeding is or ought to be done in the [superior court] or in another court of [enacting province or territory] on appeal from the [superior court], the transfer is governed by the provisions of this Part.

  • If anything relating to a transfer of a proceeding is or ought to be done in a court outside [enacting province or territory], the [superior court], despite any differences between this Part and the rules applicable in the court outside [enacting province or territory], may transfer or accept a transfer of the proceeding if the [superior court] considers that the differences do not

    • impair the effectiveness of the transfer, or

    • inhibit the fair and proper conduct of the proceeding.

Grounds for an order transferring a proceeding

  • (1) The [superior court] by order may request a court outside [enacting province or territory] to accept a transfer of a proceeding in which the [superior court] has both territorial and subject matter competence if [superior court] is satisfied that

    • the receiving court has subject matter competence in the proceeding, and

    • under section 13, the receiving court is a more appropriate forum for the proceeding than the [superior court].

  • The [superior court] by order may request a court outside [enacting province or territory] to accept a transfer of a proceeding, in which the [superior court] lacks territorial or subject matter competence if the [superior court] is satisfied that the receiving court has both territorial and subject matter competence in the proceeding.

  • In deciding whether a court outside [enacting province or territory] has territorial or subject matter competence in a proceeding, the [superior court] must apply the laws of the state in which the court outside [enacting province or territory] is established.

Provisions relating to the transfer order

  • (1) In an order requesting a court outside [enacting province or territory] to accept a transfer of a proceeding, the [superior court] must state the reasons for the request.

    • The order may

      • be made on application of a party to the proceeding,

      • impose conditions precedent to the transfer,

      • contain terms concerning the further conduct of the proceeding, and

      • provide for the return of the proceeding to the [superior court] on the occurrence of specified events.

    • On its own motion, or if asked by the receiving court, the [superior court], on or after making an order requesting a court outside [enacting province or territory] to accept a transfer of a proceeding, may

      • send to the receiving court relevant portions of the record to aid that court in deciding whether to accept the transfer or to supplement material previously sent by the [superior court] to the receiving court in support of the order, or

      • by order, rescind or modify one or more terms of the order requesting acceptance of the transfer.

[Superior court’s] discretion to accept or refuse a transfer

  • (1) After the filing of a request made by a court outside [enacting province or territory] to transfer to the [superior court] a proceeding brought against a person in the transferring court, the [superior court] by order may

    • accept the transfer, subject to subsection (4), if both of the following requirements are fulfilled:

      • either the [superior court] or the transferring court has territorial competence in the proceeding;

      • the [superior court] has subject matter competence in the proceeding, or

    • refuse to accept the transfer for any reason that the [superior court] considers just, regardless of the fulfillment of the requirements of paragraph (a).

      • p. 3063The [superior court] must give reasons for an order under subsection (1) (b) refusing to accept the transfer of a proceeding.

      • Any party to the proceeding brought in the transferring court may apply to the [superior court] for an order accepting or refusing the transfer to the [superior court] of the proceeding.

      • The [superior court] may not make an order accepting the transfer of a proceeding if a condition precedent to the transfer imposed by the transferring court has not been fulfilled.

Effect of transfers to or from [superior court]

  • A transfer of a proceeding to or from the [superior court] takes effect for all purposes of the law of [enacting province or territory] when an order made by the receiving court accepting the transfer is filed in the transferring court.

Transfers to courts outside [enacting province or territory]

  • (1) On a transfer of a proceeding from the [superior court] taking effect,

    • the [superior court] must send relevant portions of the record, if not sent previously, to the receiving court, and

    • subject to section 17 (2) and (3), the proceeding continues in the receiving court.

  • After the transfer of a proceeding from the [superior court] takes effect, the [superior court] may make an order with respect to a procedure that was pending in the proceeding at the time of the transfer only if

    • it is unreasonable or impracticable l for a party to apply to the receiving court for the order, and

    • the order is necessary for the fair and proper conduct of the proceeding in the receiving court.

  • After the transfer of a proceeding from the [superior court] takes effect, the [superior court] may discharge or amend an order made in the proceeding before the transfer took effect only if the receiving court lacks territorial competence to discharge or amend the order.

Transfers to [superior court]

  • (1) On a transfer of a proceeding to the [superior court] taking effect, the proceeding continues in the [superior court].

    • A procedure completed in a proceeding in the transferring court before transfer of the proceeding to the [superior court] has the same effect in the [superior court] as in the transferring court, unless the [superior court] otherwise orders.

    • If a procedure is pending in a proceeding at the time of the transfer of the proceeding to the [superior court] takes effect, the procedure must be completed in the [superior court] in accordance with the rules of the transferring court, measuring applicable time limits as if the procedure had been initiated 10 days after the transfer took effect, unless the [superior court] otherwise orders.

    • After the transfer of a proceeding to the [superior court] takes effect, the [superior court] may discharge or amend an order made in the proceeding by the transferring court.

    • An order of the transferring court that is in force at the time the transfer of a proceeding to the [superior court] takes effect remains in force after the transfer until discharged or amended by

      • the transferring court, if the [superior court] lacks territorial competence to discharge or amend the order, or

      • the [superior court], in any other case.

Return of a proceeding after transfer

  • (1) After the transfer of a proceeding to the [superior court] takes effect, the [superior court] must order the return of the proceeding to the court from which the proceeding was received if

    • the terms of the transfer provide for the return,

    • both the [superior court] and the court from which the proceeding was received lack territorial competence in the proceeding, or

    • p. 3064the [superior court] lacks subject matter competence in the proceeding.

  • If a court to which the [superior court] has transferred a proceeding orders that the proceeding be returned to the [superior court] in any of the circumstances referred to in subsection (1) (a), (b) or (c), or in similar circumstances, the [superior court] must accept the return.

  • When a return order is filed in the [superior court], the returned proceeding continues in the [superior court].

Appeals

  • (1) After the transfer of a proceeding to the [superior court] takes effect, an order of the transferring court, except the order requesting the transfer, may be appealed in [enacting province or territory] with leave of the court of appeal of the receiving court as if the order had been made by the [superior court].

    • A decision of a court outside [enacting province or territory] to accept the transfer of a proceeding from the [superior court] may not be appealed in [enacting province or territory].

    • If, at the time that the transfer of a proceeding from the [superior court] takes effect, an appeal is pending in [enacting province or territory] from an order of the [superior court], the court in which the appeal is pending may conclude the appeal only if

      • it is unreasonable or impracticable l for the appeal to be recommenced in the state of the receiving court, and

      • a resolution of the appeal is necessary for the fair and proper conduct of the continued proceeding in the receiving court.

Departure from a term of transfer

  • After the transfer of a proceeding to the [superior court] takes effect, the [superior court] may depart from terms specified by the transferring court in the transfer order, if it is just and reasonable to do so.

Limitations and time periods

  • (1) In a proceeding transferred to the [superior court] from a court outside [enacting province or territory], and despite any enactment imposing a limitation period, the [superior court] must not hold a claim barred because of a limitation period if

    • the claim would not be barred under the limitation rule that would be applied by the transferring court, and

    • at the time the transfer took effect, the transferring court had both territorial and subject matter competence in the proceeding.

  • After a transfer of a proceeding to the [superior court] takes effect, the [superior court] must treat a procedure commenced on a certain date in a proceeding in the transferring court as if the procedure had been commenced in the [superior court] on the same date.

© Éditeur officiel du Québec. The act is reproduced from <www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/CCQ_1991/CCQ1991_A.html> (last accessed on 26 January 2016). The editors wish to thank the Centre de services partagés du Québec for the permission to reprint the text.

© Uniform Law Conference of Canada. The editors thank the Uniform Law Conference of Canada for their permission to reprint the Uniform Court Jurisdiction and Proceedings Act.