Hunt v T&N plc

Hunt v T&N plc, [1993] 4 S. C. R. 289 is a landmark decision of the Supreme Court of Canada on conflict of laws. The Court ruled that the Quebec law prohibiting the removal of company documents from the province was constitutionally inapplicable to a British Columbia court order. The decision was significant in that it affirmed much of the reasoning from Morguard Investments Ltd. v. De Savoye (1990) and further held that the principles first identified in Morguard are fundamental to the constitution.

George Hunt, a resident of British Columbia, was diagnosed with cancer caused by the inhalation of asbestos fibres from a product that was manufactured in Quebec. As part of his action in British Columbia he tried to get an order to retrieve documents from the manufacturer in Quebec. The Quebec Business Concerns Records Act prohibited the removal of documents outside of the province. Hunt attempted to challenge the law as unconstitutional. Hunt attempted to argue that Morguard which allowed for inter provincial enforcement of orders could equally apply for constitutional challenges. This was the second appearance before the Supreme Court of Canada for this case. The Court had previously ruled on the question of where a statement of claim could be struck out for want of a reasonable claim, stating that striking out cannot be justified because a pleading reveals "an arguable, difficult or important point of law". On the contrary, it may well be critical that the action be allowed to proceed.

The Court allowed Hunt's appeal, in a unanimous decision written by La Forest J. He held that:

the Quebec prohibition on the removal of documents for litigation in BC was constitutionally inapplicable. The Act would remain in force but could not be applied against other provinces. courts may consider constitutional arguments in determining foreign law that incidentally arises in the course of litigation. A foreign court in making a finding of fact should not be bound to assume that the mere enactment of a statute necessarily means that it is constitutional. that both jurisdictions in question are part of the same Canadian federation and governed by the same Constitution reinforces and possibly augments the powers of the superior courts to consider the constitutional issues. the Supreme Court of Canada is not restricted to the identical powers and procedures of the lower courts from which an appeal is made.

Hunt has attained great significance because of the manner in which it built upon the principles first expressed in Morguard. As noted by Laforest J:

Morguard was not argued in constitutional terms, so it was sufficient there to infuse the constitutional considerations into the rules that might otherwise have governed issues of enforcement and recognition of judgment. But the issue was very clearly raised in this case and in fact a constitutional question was framed. Now, as perusal of the last cited passage from Morguard reveals, the constitutional considerations raised are just that. They are constitutional imperatives, and as such apply to the provincial legislatures as well as to the courts, as the Attorney General for Ontario conceded and as a number of commentators have maintained In short, to use the expressions employed in Morguard, at p. 1100, the "integrating character of our constitutional arrangements as they apply to interprovincial mobility" calls for the courts in each province to give "full faith and credit" to the judgments of the courts of sister provinces. This, as also noted in Morguard, is inherent in the structure of the Canadian federation, and, as such, is beyond the power of provincial legislatures to override. This does not mean, however, that a province is debarred from enacting any legislation that may have some effect on litigation in other provinces or indeed from enacting legislation respecting modalities for recognition of judgments of other provinces. But it does mean that it must respect the minimum standards of order and fairness addressed in Morguard. I turn briefly then to the relevant principles after which I shall consider whether the statute impugned in this case offends these standards. The basic thrust of Morguard was that in our federation a greater degree of recognition and enforcement of judgments given in other provinces was called for. Morguard was careful to indicate, however, that a court must have reasonable grounds for assuming jurisdiction. One must emphasize that the ideas of "comity" are not an end in themselves, but are grounded in notions of order and fairness to participants in litigation with connections to multiple jurisdictions. In Morguard, a more accommodating approach to recognition and enforcement was premised on there being a "real and substantial connection" to the forum that assumed jurisdiction and gave judgment. Contrary to the comments of some commentators and lower court judges, this was not meant to be a rigid test, but was simply intended to capture the idea that there must be some limits on the claims to jurisdiction. Indeed I observed (at p. 1104) that the "real and substantial connection" test was developed in Indyka v. Indyka, [1969] 1 A. C. 33, in a case involving matrimonial status (where sound policy demands generosity in recognition), and that in a personal action a nexus may need to be sought between the subject matter and the territory where the action is brought. I then considered the test developed in Moran v. Pyle National (Canada) Ltd., for products liability cases as an example of where jurisdiction would be properly assumed. The exact limits of what constitutes a reasonable assumption of jurisdiction were not defined, and I add that no test can perhaps ever be rigidly applied; no court has ever been able to anticipate all of these. However, though some of these may well require reconsideration in light of Morguard, the connections relied on under the traditional rules are a good place to start. More than this was left to depend on the gradual accumulation of connections defined in accordance with the broad principles of order and fairness But I think that the general approach was solidly based.