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Private International Law - Proof of Law

. Hapag-Lloyd AG v. Iamgold Corporation

In Hapag-Lloyd AG v. Iamgold Corporation (Fed CA, 2021) the Federal Court of Appeal considered extensively the standard of review that applied to proof of foreign law:
C. German Law: What is the Standard of Review Applicable to the Judge’s Findings Concerning German Law?

[48] Before answering the question of whether the Judge made a reviewable error in regard to the evidence adduced by the experts on German law, I must first deal with the standard of review applicable to the Judge’s findings.

[49] There is no dispute between the parties that foreign law must be proven as a fact. They disagree, however, as to the standard of review applicable to the Judge’s findings with respect to the state of German law. Hapag-Lloyd says that the standard of correctness is the standard which should be applied while the respondents say that the palpable and overriding error standard is the proper standard.

[50] In support of its view that correctness is the relevant standard and that hence no deference should be afforded to the Judge by this Court, Hapag-Lloyd relies on two decisions of the Supreme Court rendered prior to Housen, i.e. Allen v. Hay, 1922 CanLII 25 (SCC), [1922] 69 D.L.R. 193 at p. 80-81, 64 S.C.R. 76 [Allen]; and Drew Brown Ltd. v. The ‘Orient Trader’, [1974] S.C.R. 1286, 1972 CanLII 194 (SCC) [Drew Brown]. Hapag-Lloyd also relies on three post-Housen decisions rendered by the Ontario Court of Appeal (the ONCA) in General Motors Acceptance Corporation of Canada, Limited v. Town and Country Chrysler Limited, 2007 ONCA 904, 288 D.L.R. (4th) 74 [General Motors]; Das v. George Weston Limited, 2018 ONCA 1053, 43 E.T.R. (4th) 173 [Das] and Grayson Consulting Inc. v. Lloyd, 2019 ONCA 79 [Grayson].

[51] With respect to the Supreme Court’s decisions in Allen and Drew Brown, I wish to say that I have carefully read these decisions and it is clear that they do not address the standard of review applicable to findings made by a judge in respect of foreign law. In my respectful opinion, these cases are of no help to Hapag-Lloyd.

[52] As to the ONCA’s decisions, I will address only General Motors as the Court in Das and Grayson relied heavily on this decision. For the reasons below, I find General Motors unpersuasive and decline to adopt the ONCA’s reasoning.

[53] In General Motors, the main issue before the Court was the standard of appellate review applicable to questions of law as found by the trial judge. The foreign law before the Court was the personal property security legislation of the province of Quebec, as found in various provisions of its Civil Code. I might add here, and I will return to this shortly, that the Supreme Court of Canada takes judicial notice of the law of Quebec (Pettkus v. Becker, [1980] 2 S.C.R. 834, 1980 CanLII 22 (SCC) at 853-54). Thus, had the matter before the ONCA gone to the Supreme Court, the issue with respect to the foreign law would have been clearly one of law attracting the standard of correctness. However, that was not the case before the ONCA, which does not take judicial notice of the law of Quebec.

[54] After stating that the appellant and the respondent took different positions with regard to the standard of review applicable to the judge’s findings with respect to the law of Quebec, the ONCA referred to the Supreme Court’s decision in Housen. It then set out, at paragraph 31 of its reasons, the policy reasons given by the Supreme Court for its determination that questions of fact and questions of mixed fact and law were subject to the palpable and overriding standard, namely: i) that a trial judge was in a better position to assess the credibility of witnesses; ii) that unlimited intervention by appellate courts would increase the number and length of trials; iii) that substantial resources are allocated to trial courts for them to assess the evidence; and finally iv) the importance of preserving the autonomy and integrity of the trial process by deferring to a trial judge’s findings with respect to facts.

[55] Then, at paragraph 32 of its reasons, the Court stated that the rationale behind deference to trial judges’ findings of facts did not apply to findings made in respect of foreign law. In other words, the ONCA was of the view that the policy reasons behind the principle of deference in regard to findings of fact by a trial judge did not support deference when those findings concerned foreign law.

[56] The Court went on, at paragraph 33 of its reasons, to state that it was in as good a position as a trial judge to determine the credibility of an expert witness testifying in regard to foreign law because questions of law were "“squarely within the province of an appellate court, which is well accustomed to evaluating the persuasiveness of legal arguments.”"

[57] Finally, at paragraph 34 of its reasons, the Court relied on the following excerpt from Phipson on Evidence:
I also find as relevant the following excerpt from Phipson on Evidence, 16th ed. (London: Sweet & Maxwell, 2005) at para. 1-35, which indicates that English courts view foreign law as a question of law on appeal:
Thus, in English courts, although the existence of English law is a question of law to be determined by authorities in argument, the existence of Scots, colonial or foreign law is treated as a question of fact to be determined by evidence; so that, in the House of Lords or Privy Council, what was a question of fact in the court below, to be established by evidence, may become on appeal a question of law to be judicially noticed.
[58] This led the ONCA to conclude, at paragraph 35 of its reasons, that the applicable standard on questions of foreign law was correctness.

[59] My principal reason for disagreeing with the ONCA’s decision in General Motors is that it is not up to courts of appeal to second-guess the Supreme Court of Canada when it says, as it clearly did in Housen, that questions of fact are subject to the palpable and overriding error standard. In other words, it is not up to courts of appeal to determine, on a case-by-case basis, whether the policy reasons given by the Supreme Court in Housen for deferring to the factual findings of a trial judge apply. In my view, if a finding is a finding of fact, it must be reviewed as per the standard of review applicable to such finding. In concluding as it did in General Motors, the ONCA had to accept, as it did, that determinations as to foreign law were questions of fact. Consequently, the standard applicable was that of palpable and overriding error. It should be remembered that in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, the Supreme Court made it clear that lower courts were bound to follow decisions of higher courts with few exceptions permitted. At paragraph 44 of its reasons in that case, the Supreme Court wrote as follows:
The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system. It provides certainty while permitting the orderly development of the law in incremental steps. However, stare decisis is not a straitjacket that condemns the law to stasis. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate” (Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paragraph 42).
[60] Also of relevance is the Supreme Court’s decision in Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489 [Craig] where the question before the Court was whether it should overrule its prior decision in Moldowan v. The Queen, 1977 CanLII 5 (SCC), [1978] 1 S.C.R. 480, 77 DLR (3d) 112 [Moldowan].

[61] Before the Supreme Court, in Craig, was a decision of this Court which upheld a decision of the Tax Court of Canada. More particularly, Hershfield T.C.C.J. had found, on the basis of this Court’s decision in Gunn v. Canada, 2006 FCA 281, [2007] 3 F.C.R. 57 [Gunn], that he was not bound to follow Moldowan. In Gunn, this Court had expressed its disagreement with Moldowan and declined to follow it. On appeal, this Court found in favour of Mr. Craig by reason of our prior decision in Gunn. Thus, this Court followed Gunn but not Moldowan (Canada v. Craig, 2011 FCA 22, [2011] 2 F.C.R. 436).

[62] In answering the question as to whether the Tax Court and the Federal Court of Appeal should have followed Moldowan or Gunn, Rothstein J., writing for a unanimous Supreme Court, made it clear that both the Tax Court and this Court should have followed Moldowan. More particularly, Rothstein J. indicated that although it was open to both the Tax Court and this Court to question the correctness of Moldowan, both courts were bound to follow it (Rothstein’s J. Reasons at paras. 18-23).

[63] I also do not agree with the ONCA’s statement in General Motors that the credibility of an expert witness testifying on legal issues can as easily be assessed by an appellate court as by a trial judge. Whether the expert is an expert on foreign law or, for example, on patents, the trial judge has the advantage of, inter alia, observing the witness, the manner in which he or she answers the questions, both in chief and in cross-examination, and his/her demeanour within the context of the trial. As Iaccobucci and Major JJ. stated in Housen at paragraph 24 of their reasons for the Court, "“[t]he essential point is that making a factual conclusion, of any kind, is inextricably linked with assigning weight to evidence, and thus attracts a deferential standard of review”". Thus, this standard, in my respectful opinion, applies to all expert witnesses including those testifying with respect to foreign law. I note, in concluding, that the British Columbia Court of Appeal in Friedl v. Friedl, 2009 BCCA 314, 95 B.C.L.R. (4th) 102 chose not to follow General Motors and applied the standard of palpable and overriding error to the trial judge’s findings on foreign law, as adduced by expert witnesses.

[64] Lastly, I wish to say that the excerpt from Phipson on Evidence does not support the ONCA’s view. The excerpt does not deal with the question of standard of review but rather addresses the status of Scottish, colonial or foreign law once these questions reach the House of Lords (as it then was) and the Privy Council. As is the case with the law of Quebec before the Supreme Court, which, as I have already indicated, takes judicial notice thereof, the House of Lords in England took judicial notice of Scottish law and the Privy Council took judicial notice of colonial or foreign law within the Commonwealth, i.e. such as the law of Jamaica. That is the point of the excerpt. In other words, although the law of Scotland must be proven as a fact before a trial judge in England once the matter reaches the House of Lords, that question, i.e. a question of fact, becomes a question of law before the House of Lords because it takes judicial notice thereof (see Cooper v. Cooper (1888), 13 App. Cas. 88 at 101, 109).

[65] The excerpt from the 16th Edition of Phipson on Evidence cited by the ONCA is also found in the 19th Edition where the excerpt can be found at pages 18-19, under number I-36 and it reads as follows:
Matter of law, in this connection, usually means some duty, or standard, which it is the province of the court to apply and enforce; and matter of fact means some issue of fact which is raised on the pleadings. But this distinction is not always reliable. Thus in English courts, although the existence of English law is a question of law to be determined by authorities and argument, the existence of Scots, colonial or foreign law is treated as a question of fact to be determined by evidence; so that, in the Supreme Court or Privy Council, what was a question of fact in the court below, to be established by evidence, may become on appeal a question of law to be judicially noticed. Again, what is "“reasonable”" is sometimes treated as a question of law and sometimes as one of fact.
[66] That excerpt should be read with another excerpt from the same edition which appears at page 69 thereof, under number 3-07 (3-08 in the 16th Edition):
Judicial notice will be taken of the existence and contents of all public statutes; and of all Acts of Parliament of a public nature, as well as every branch of unwritten law obtaining in England or Ireland. Thus, if in a common law court points of equity or of parliamentary, ecclesiastical or Admiralty law arose, even before the Judicature Acts, they had to be determined not by calling experts, but by the court itself, either of its own knowledge, or by inquiry, or by hearing authorities and argument. Scots, colonial or foreign law however, are not judicially noticed, but must be proved as a fact by skilled witnesses, or by appropriate reference to the courts of those countries, except Scots law and the law of Northern Ireland in the Supreme Court, or colonial law in the Privy Council, where what was a question of fact in the court below to be proved by evidence becomes a question of law to be judicially noticed. …

[My emphasis.]
[67] Thus, there can be no doubt that the above excerpts from Phipson on Evidence do not address the question which was before the ONCA in General Motors nor the one before us in this appeal.

[68] I therefore conclude that we should not follow General Motors. Consequently, this Court should apply the palpable and overriding error standard to the Judge’s determinations in respect of the foreign law.
. International Air Transport Association v. Canada (Transportation Agency)

In International Air Transport Association v. Canada (Transportation Agency) (Fed CA, 2020) the Federal Court of Appeal considered the role of foreign law in Canadian courts:
[14] It is settled law that questions of foreign law are treated as questions of fact, and as such, require proof through the evidence of properly qualified experts. However, the law appears to be somewhat less settled when it comes to the need for expert evidence addressing questions of international law.

[15] This Court commented on the use of expert witnesses to prove matters of international law in Turp v. Canada (Foreign Affairs), 2018 FCA 133, [2019] 1 F.C.R. 198. The Court stated that, in its view, parties do not need to file expert reports to prove international law, as international law is a matter of which Canadian judges can take judicial notice: Turp, at paras. 82-89. See also the cases cited in Turp: The Ship "“North”" v. The King, 1906 CanLII 80 (SCC), [1906] 37 S.C.R. 385, 26 C.L.T. 380; Jose Pereira E Hijos, S.A. v. Canada (Attorney General), 1996 CanLII 4098 (FC), [1997] 2 F.C. 84, (1996), 126 F.T.R. 167 (T.D.); Lord Advocate's Reference No. 1, [2001] ScotHC 15 (BAILII), [2001] S.L.T. 507.

[16] The Court was, however, clear that its comments in Turp were made in obiter, as the parties had not raised the evidentiary issue, and that its comments should thus not be taken to be a definitive ruling on the question.

[17] The Federal Court has also come to a similar conclusion to that reached in Turp with respect to the need for expert evidence regarding issues of international law: Pan American World Airways v. The Queen, 1979 CanLII 2790, 96 D.L.R. (3d) 267, at 274-275 (aff’d without comment on this issue 1980 CanLII 2610 (FCA), [1981] 2 S.C.R. 565 (SCC)).

[18] Indeed, in a series of articles, Gib van Ert argues persuasively that, in contrast to questions of foreign law (which are uniformly treated as questions of fact), matters of public international law are questions of law and as such do not require proof: Gib van Ert," “Recent Federal Court Decisions on Expert Evidence of International Law” "(31 December 2018) online (blog): Gib van Ert ; "“The Reception of International Law in Canada: Three Ways We Might Go Wrong”", (2018) in Centre for International Governance Innovation in Canada in International Law at 150 and Beyond, Paper No. 2; "“The Admissibility of International Legal Evidence"” (2005) 84 Can Bar Rev.

[19] That said, van Ert acknowledges that Canadian courts have been uneven in their evidentiary approach to international legal issues: van Ert, “Three Ways We Might Go Wrong”, above at 6. He cites examples of a contrary approach being taken, including in Bouzari v. Iran (Islamic Republic), [2002] O.J. No. 1624, [2002] O.T.C. 297 (Ont. S.C.J.), aff’d 2004 CanLII 871 (ON CA), 71 O.R. (3d) 675 (Ont. C.A.) and Amaratunga v. Northwest Atlantic Fisheries Organization, 2011 NSCA 73, [2011] N.S.J. No. 453. I note the Federal Court also commented on the unsettled nature of the law on this point in Boily v. Canada, 2017 FC 1021, [2017] F.C.J. No. 1275 at paras. 25, 27-31.

[20] The appellants have also identified cases where a contrary view has been taken of the evidentiary issue, including Holding Tusculum B.V. c. S.A. Louis Dreyfus & Cie, 2006 QCCS 2827, [2006] Q.J. No. 4878. In that case, the Quebec Superior Court dismissed a motion to strike expert reports with respect to international arbitration law that raised arguments similar to those advanced here: paras. 4, 9-10. The disputed evidence was subsequently relied on by the Court in its decision on the merits: Holding Tusculum, b.v. c. Louis Dreyfus, s.a.s. (SA Louis Dreyfus & Cie.), 2008 QCCS 5904, [2008] Q.J. No. 15012.

[21] There have also been a number of cases where expert evidence with respect to international law (including the meaning of treaty obligations) has been accepted, apparently without objection to its admissibility: see, for example, Tracy v. Iranian Ministry of Information and Security, 2016 ONSC 3759, [2016] O.J. No. 3042 (Ont |S.C.J.), aff’d 2017 ONCA 549, leave to appeal to the Supreme Court of Canada ref’d [2017] S.C.C.A. No. 359.

[22] Similarly, in Najafi v. Canada (Public Safety and Emergency Preparedness), evidence of two international law experts as to the legality of the use of force in international law was adduced before the Federal Court, apparently without objection. That evidence informed the analysis of both the Federal Court and of this Court on appeal: 2013 FC 876, aff’d 2014 FCA 262, leave to appeal to the Supreme Court of Canada ref’d [2015] S.C.C.A. No. 2.

[23] A further example of this is found in Saskatchewan v. Saskatchewan Federation of Labour, 2012 SKQB 62. There, the Court of Queen’s Bench for Saskatchewan received expert evidence on Canada’s international treaty obligations with respect to labour relations and the right to strike: paras. 100 and 102. The matter was ultimately appealed to the Supreme Court of Canada. In her majority reasons, Justice Abella referred to the expert evidence on international law adduced by the Saskatchewan Union of Nurses, albeit without comment as to the admissibility of expert evidence on this issue: 2015 SCC 4, at para. 65.

[24] Indeed, as the appellants note, the Attorney General himself has adduced expert evidence with respect to international law issues in numerous cases: see cases listed at paras. 55-56 of the appellants’ memorandum of fact and law.

[25] The Attorney General notes that this Court has been prepared to strike inadmissible evidence at an early stage of the proceedings: Canada (Board of Internal Economy) v. Canada (Attorney General), 2017 FCA 43, [2017] F.C.J. No. 255 [Boulerice]. While the Court did find that the admissibility issue in Boulerice was better resolved at an early stage, this finding was based on the fact that the evidence in question was "“so clearly out of bounds ... that it ought to be stopped in its tracks”". The Court was further satisfied that there was "“simply no point in leaving it on the record, as it is so clearly inadmissible that there is no need to have a full record before coming to a final assessment of its merits”": at para. 30.

[26] What is apparent from the above review of the jurisprudence is that the evidentiary issue raised by the Attorney General’s motion to strike in this case is not as clear-cut as he contends. This suggests that it is preferable to leave the admissibility and necessity issues with respect to the evidence of the appellants’ expert witnesses to be determined by the panel assigned to hear this appeal.

[27] My finding in this regard is supported by the fact that this case is still at a very early stage. The parties have yet to file their memoranda of fact and law on the appeal, with the result that the issues raised by the appeal have yet to be fully fleshed out. The admissibility issues and the centrality of the disputed evidence to the ultimate issue or issues in this case are better determined once those issues have crystalized.
In addition, the court makes the following interesting observation on the role of international law in US courts:
[29] Dr. Dempsey was asked by the appellant, the International Air Transport Association, to provide his opinion on questions of American law relating to air passenger rights. In offering his opinion on these questions, Dr. Dempsey observed that the United States is a "“monist”" jurisdiction, meaning that, unlike the "“dualist”" system that we have in Canada insofar as international treaties are concerned, it is not necessary to enact domestic legislation to implement international treaties into American law. According to Dr. Dempsey, instruments such as the Montreal Convention are "“self-executing”", and are essentially deemed to be part of American law. The distinction between domestic law and international law is thus artificial in the American context, and that an opinion on the proper interpretation of international treaties, including the Montreal Convention, is an opinion on U.S. law.


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Last modified: 03-06-21
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