A-476-85
The Ship Mercury Bell (Appellant) (Defendant)
v.
N. Amosin, S. Badayos, E. Baulita, A. Billones,
Jr., C. Diloy, M. Espe, R. Fernandez, H. Gatdula,
F. Malong, A. Trangia (Respondents) (Plaintiffs)
INDEXED AS: FERNANDEZ V. "MERCURY BELL" (THE)
(F.CA.)
Court of Appeal, Marceau, Hugessen and
Lacombe JJ.—Montreal, April 22; Ottawa, May
22, 1986.
Conflict of laws — Choice of law — Contracts — Labour
relations — Philippino crew of Liberian ship signing individu
al contracts of employment in Manila — Collective agreement
previously entered into in Australia — Action for difference in
wages initiated here — Liberian law applicable — That law
not proven — Common law rule to apply lex fori — Lex fori
including common law and statute law having degree of uni
versality — Provisions of Canada Labour Code dealing with
role of Canada Labour Relations Board and requirement of
arbitration not applicable as of local nature — Collective
agreement valid under Labour Code — Federal Court Rules,
C.R.C., c. 663, R. 474 — Canada Shipping Act, R.S.C. 1970,
c. S-9, s. 274 — Canada. Labour Code, R.S.C. 1970, c. L-1,
ss. 2, 107 (as am. by S.C. 1972, c. 18, s.1), 108 (as am. idem),
154 (as am. idem), 155(1) (as am. idem).
Labour relations — Crew members of Liberian ship unable
to claim difference between wages contracted for and those
under collective agreement at common law as no privity of
contract — Situation otherwise under statute law — Ship
engaged in international trade 'federal undertaking" to which
Part V of Canada Labour Code applies — Collective agree
ment valid under Code, although no provision for compulsory
arbitration and no no-strike clause required by s. 155(1) —
Latter provisions for Canadian circumstances and purposes —
Lex fori applicable including common law and statute law of
general character — Collective agreement considered as valid
under Liberian law — Canada Labour Code, R.S.C. 1970,
c. L-1, ss. 2, 107 (as am. by S.C. 1972, c. 18, s. 1), 108 (as am.
idem), 154 (as am. idem), 155(1) (as am. idem).
Maritime law — Contracts — Philippino crew of Liberian
ship signing individual employment contracts in Manila —
Collective agreement entered into in Australia — Act, s. 274
providing law of ship's port of registry to apply — No proof of
foreign law — Lex fori applied — Valid collective agreement
under Canada Labour Code — Canada Shipping Act, R.S.C.
1970, c. S-9, s. 274.
This is an appeal from a determination of a question of law
by the Trial Division. The plaintiffs (respondents) are crew
members of a Liberian ship. They signed individual contracts of
employment in Manila, unaware that previously a collective
agreement had been signed in Australia, setting minimum wage
rates which were higher than those provided in their respective
contracts. The plaintiffs initiated these proceedings to obtain
payment of the difference in wages. The Motions Judge held
that a collective labour agreement always supersedes
employees' individual contracts.
Held, the appeal should be dismissed.
The law of the ship's port of registry must be looked at
according to section 274 of the Canada Shipping Act. This
action must therefore be disposed of on the basis of the law of
Liberia. That law, however, was not proven. A court will not
take judicial notice of foreign law. If the parties fail to bring
expert evidence of the foreign law, the court will act as if the
foreign law is the same as its own law. This rule is peculiar to
English law. However, it is unclear whether the lex fori appli
cable should include the statute law or be limited to the
common law.
At common law, this action could not proceed. The collective
agreement could not create legal obligations between the ship-
owners and the individual seamen because there was no privity
of contract. The bargaining agent was not their agent because
they were not then crew members. The signing of the agree
ment did not have the effect of creating a trust of which they
became beneficiaries.
Under Canadian statute law, a ship engaged in international
trade is a "federal undertaking" to which Part V of the Canada
Labour Code applies. The bargaining agent in question is a
valid one under the legislation, and the agreement satisfies the
general definition of a collective agreement. However, the
collective agreement contains no provision for compulsory arbi
tration and no no-strike clause, as required by subsection
155(1) of the Canada Labour Code.
There does not appear to be any judgment where the problem
was dealt with on the basis of a clear distinction between
common law and statute law. Judges have been reluctant to
dispose of litigation involving foreigners and foreign law on the
basis of domestic legislation of a localized or regulatory charac
ter. The English common law rule that, in the absence of proof
of the foreign law governing the case, the judge will apply the
law of the forum, must be limited to provisions of the law
potentially having some degree of universality.
The provisions of the Canada Labour Code recognizing the
role of labour unions, giving effect to collective agreements, and
recognizing the right of each individual employee to sue for his
wages under the agreement are fundamental and have a poten
tial degree of universality while those dealing with the role of
the Canada Labour Relations Board and the requirement of
arbitration for the settlement of disputes are linked to Canadi-
an circumstances and purposes. The collective agreement has
full force and effect under Liberian law as it would have under
the basic provisions of our Labour Code, regardless of the fact
that provisions for arbitration were not spelled out in it.
Per Hugessen J.: The common law rule in question developed
when colonial expansion was spreading English law abroad.
English jurists viewed their system as superior to others and so
the "presumption" arose. However, the court applies the lex
fori as it is the only law which it is competent to apply.
The suggestion in some of the authorities that the application
of the lex Pori is limited to the common law as settled by
judicial decisions and excludes all statutory provisions, goes
back to a time when the great body of English law was
judge-made and statutes were the exception. The proper expres
sion of the rule is that the court will apply only those parts of
the lex Pori which form part of the general law of the country.
In applying the lex fori in place of the unproved applicable
foreign law, the law is read mutatis mutandis.
Absent evidence of Liberian law, the Canada Labour Code
applies as much as is necessary to decide the question of
whether the "collective agreement" between the shipowners
and the trade union creates enforceable rights in favour of the
plaintiff.
CASES JUDICIALLY CONSIDERED
APPLIED:
McCulloch v. Sociedad Nacional de Marineros de Hon-
duras, 372 U.S. 10 (1963).
CONSIDERED:
Manalaysay v. The "Oriental Victory", [1978] 1 F.C.
440 (T.D.); Purdom v. Pavey & Co. (1896), 26 S.C.R.
412; Hellens v. Densmore, [1957] S.C.R. 768; Gray v.
Kerslake, [1958] S.C.R. 3.
REFERRED TO:
Syndicat Catholique des Employés de Magasins de
Québec Inc. v. Paquet Ltée, [1959] S.C.R. 206; C.P.R. v.
Zambri, [1962] S.C.R. 609; McGavin Toastmaster Ltd.
v. Ainscough, [1976] 1 S.C.R. 718; Bisbal c/ dame Bisbal
(1959), Cass. Civ. I, p. 199, no. 236, 12 mai 1959, note
H.M., J.C.P. 1960; Compagnie algérienne de crédit et de
banque c/ Chemouny (1960), Cass. Civ. I, p. 114, no.
143, 2 mars 1960, note B.G., J.C.P. 1961; Young v.
Canadian Northern Ry. Co., [1931] A.C. 83 (P.C.);
Bradburn v. Wentworth Arms Hotel Ltd. et al., [1979] 1
S.C.R. 846; Canadian Pacific Ltd. v. United Transporta
tion Union, [1979] 1 F.C. 609 (C.A.); Bédard v. Bou-
chard, [1954] B.R. 290 (Que.); Diva Shoe Co. Ltd. v.
Gagnon et Procureur général du Québec (1937), 70 B.R.
411 (Que.); Hamilton Street Railway Co. v. Northcott,
[1967] S.C.R. 3.
COUNSEL:
Gerald P. Barry for appellant (defendant).
J. Brian Riordan for respondents (plaintiffs).
SOLICITORS:
Barry & Associates, Montreal, for appellant
(defendant).
Ahern, Nuss & Drymer, Montreal, for
respondents (plaintiffs).
The following are the reasons for judgment
rendered in English by
MARCEAU J.: In an action for the recovery of
wages by seamen, the Trial Division [sub nom.
Fernandez et al. v. The Vessel `M/V Mercury
Bell" (1984), 85 CLLC 14,039] was requested to
determine a question of law under Rule 474 of the
General Rules and Orders of the Federal Court of
Canada [Federal Court Rules, C.R.C., c. 663].
This is an appeal from the determination made of
that question by the Motions Judge.
The facts agreed upon by the parties, each of
which have a bearing on the issue, can be summa
rized briefly. The plaintiffs, all citizens of the
Philippines, have been members of the crew of the
M/V Mercury Bell, a cargo ship engaged in inter
national trade and registered under the laws of
Liberia. They had been hired at Manila, on vari
ous dates in 1977, 1978 and 1979, by the shipown-
ers' crewing agent, and they had all signed
individual contracts of employment duly approved
by the Philippino National Seamen Board, a gov
ernment entity charged with overseeing the
employment of Philippino seamen. After joining
the ship, the plaintiffs had learned that, in May
1976, a so-called "Special Agreement" and "Col-
lective Agreement" had been entered into between
the owners of the Mercury Bell and the "Special
Seafarers Section" of the international Transport
Workers' Federation ("ITF") setting minimum
wage rates for seamen on board the ship which
were higher than those provided in their respective
contracts. They had nevertheless continued accept
ing the pay they had agreed to, but, in 1981, as the
ship was docked in the port of Montreal, they had
left the ship, banded together and initiated the
present proceedings in rem to obtain payment of
the difference between the wages they had actually
received and those provided for in the ITF
agreement.
The question of law raised by the action can
now easily be perceived. It was defined as follows
in the order granting the application under Rule
474:
On the pleadings are the Plaintiffs entitled to enforce the terms
of the "Special Agreement" and/or "Collective Agreement"
referred to in the Agreed Statement of Facts annexed and in
consequence recover from Defendants the difference between
the remuneration stipulated therein and that paid pursuant to
their individual contracts of employment?'
The Motions Judge answered the question in the
affirmative. He said, in effect, that he could only
agree with the conclusion reached in a prior deci
sion of the Trial Division in a similar case, that of
Manalaysay v. The "Oriental Victory", [1978] 1
F.C. 440, a conclusion which, in his opinion, was
imposed by the principle set out in many Supreme
Court decisions (specially in Syndicat Catholique
des Employés de Magasins de Québec Inc. v.
Paquet Ltée, [1959] S.C.R. 206; C.P.R. v.
Zambri, [1962] S.C.R. 609 and McGavin Toast
master Ltd. v. Ainscough, [1976] 1 S.C.R. 718) to
the effect that a collective labour agreement
always supersedes employees' individual contracts.
The reasoning, it must be realized, unfortunately
does not, anymore than the reasoning adopted in
the Oriental Victory case, address the real problem
to be resolved. That, in a Canadian context, a
collective agreement within the meaning of
Canada Labour Code, R.S.C. 1970, c. L-1 would
supersede individual contracts is too well settled
today to be questioned. The point here, of course,
is that the context is not Canadian: this ship flies a
Liberian flag, the crew is Philippino, the contracts
of employment were signed in Manila, and the
' In fact, there was originally a second question relating to
the right of the plaintiffs to claim under articles 12 and 21 of
the Special Agreement dealing with pay in lieu of leave and
subsistance allowance. However, the parties signed what they
called a "Consent to Judgment" in which they indicated that
the resolution of this second question would necessarily follow
that of the first.
agreement sought to be enforced was executed in
Australia. The ship was arrested in Canada which
gave the Canadian court jurisdiction, but that
alone obviously does not mean that Canadian law
is applicable. Of course, when a Liberian ship
engaged in international trade happens to call at a
Canadian port, the ship does not become a federal
undertaking and her crew a collective bargaining
unit governed by the Canada Labour Code.
There is no doubt that to determine the rights of
seamen against the owners of the ship on which
they are serving, which is the subject-matter of the
action, the law of the ship's port of registry is to be
looked at. This is required by the "the well-estab
lished rule of international law that the law of the
flag state ordinarily governs the international
affairs of a ship" (McCulloch v. Sociedad Nacion-
al de Marineros de Honduras, 372 U.S. 10
(1963), at page 21) a rule formally confirmed in
section 274 of the Canada Shipping Act, R.S.C.
1970, c. S-9, as amended, which reads as follows:
274. Where in any matter relating to a ship or to a person
belonging to a ship there appears to be a conflict of laws, then,
if there is in this Part any provision on the subject that is
hereby expressly made to extend to that ship, the case shall be
governed by that provision; but if there is no such provision, the
case shall be governed by the law of the port at which the ship
is registered.
That this action must be disposed of on the basis of
the law of Liberia is therefore without question. 2 It
so happens however that the law of Liberia was
not proven before the Court, the parties having
omitted to do so, and this is what causes the
difficulty in this case.
2 Counsel for the respondents has suggested to the Court, at
one point in his argument, that the Canada Labour Code
should be applied notwithstanding the conflict of laws rule
requiring the application of the foreign law. He was making his
point on the basis of the new doctrinal construction of the
(Continued on next page)
It is well known that in countries governed by
the English law, a court is not entitled to inquire
proprio motu as to the content of the foreign law
on the basis of which an action brought before it
should be disposed of. The court will not in princi
ple take judicial notice of foreign law; it will not
even consider foreign law as an ordinary fact
(which it is not, in any event) about which it may
require the parties to adduce satisfactory evidence.
If the parties, wilfully or inadvertently, fail to
bring expert evidence of the foreign law, the court
will act as if the foreign law is the same as its own
law, it will apply the lex fori. This rule is peculiar
to English law. It is contrary to that followed in
other countries such as France where the judge is
not only entitled to take judicial notice of the
foreign law but, at least according to the leading
doctrine, is even required to do so in view of the
public order character of the rules of conflict of
laws (see Batiffol H., and Lagarde P., Droit inter
national privé, 7e éd., t.1, p. 383, no. 329; Lous-
souarn Y., and Bourel P., Droit international
privé, 2e éd., p. 318, no. 239; see the decisions of
the Cour de Cassation Bisbal c/ dame Bisbal
(1959), Cass. Civ. I, p. 199, no. 236, 12 mai 1959,
note H.M., J.C.P. 1960. II. 11733, Compagnie
algérienne de crédit et de banque c/ Chemouny
(1960), Cass. Civ. I, p. 114, no. 143, 2 mars 1960,
note B.G., J.C.P. 1961. II. 408). But it is a rule
(Continued from previous page)
"norms of direct applicability", which in effect, at least as I
understand it, seeks to expand in matters of private internation
al law the already recognized category of internal rules of
fundamental public policy which a court is obliged to follow
(see Francescakis Ph., Quelques précisions sur les "lois d'ap-
plication immédiate" et leurs rapports avec les règles de
conflits de lois, (1966), 55 Rev. cr. dr. int. pr. 1-18, at pp. 2-4,
8, 13 (incl. f.n. 2), 14, 16-18; Gamillscheg F., Rules of Public
Order in Private International Labour Law (1983), 181
Recueil des cours de l'Académie de droit international de La
Haye, 285-347, at p. 312; Talpis J.A., Legal rules which
detérmine their own sphere of application: a proposal for their
recognition in Quebec private international law, (1982-83), 17
R.J.T. 201, at pp. 203, 204, 206, 209, 220-21). He did not
insist, however, and for good reason. This doctrinal construc
tion as presented is so innovative and uncertain that I doubt
any court other than the Supreme Court could have the author
ity to consider it. Moreover, it appears that section 274 of the
Canada Shipping Act just quoted simply closes the door to its
application here.
traditionally followed by common law judges. 3 The
problem with this jurisprudential rule is that, how
ever old, basic and simple it may be, its real
meaning and scope have never been clearly
defined. What is still unclear is whether the lex
fori applicable should include the statute law or be
limited to the common law. The point is theoreti
cally of major importance, no doubt, but neverthe
less it may be of concern to us here only if the
disposition of the action requires that a position be
taken on the matter. So, for the moment, let us
examine whether the legal position of the plaintiffs
could be different under the statute law from what
it is under our common law.
Under the common law, there appears to be no
doubt that the action as instituted simply cannot
succeed. The ITF agreement could not create legal
obligations between the shipowners and the
individual seamen enforceable in a court of law. It
is now well established that between employer and
employee a collective labour agreement has no
legal force except to the extent conferred by stat
ute (see Young v. Canadian Northern Ry. Co.,
[1931] A.C. 83 (P.C.); Bradburn v. Wentworth
Arms Hotel Ltd. et al., [1979] 1 S.C.R. 846;
Canadian Pacific Ltd. v. United Transportation
Union, [1979] 1 F.C. 609 (C.A.), at page 619).
The plaintiffs cannot pretend that the "Special
Seafarers Section" of the ITF were their agents in
Australia, if only for the simple reason that they
were not even then crew members, or that the
signing of the agreement had the effect of creating
a trust of which they became beneficiaries. So they
are strangers to the agreement, and therefore
cannot claim under it. 4 Under the statute law,
however, the picture is not at all the same since the
plaintiffs' action is to be considered in a radically
different legal context. It seems clear that a ship
3 Although there are in Canada particular provincial legisla-
tions which more or less interfere with it. (See Castel J.-G.,
Proof of Foreign Law (1972), 22 U. of T.L.J. 33.)
' It goes without saying that Quebec law has nothing to do in
this, a maritime case (Bédard v. Bouchard, [1954] B.R. 290
(Que.)) and in any event would lead to the same conclusion, a
collective agreement not falling under the provisions of sec.
1029 of the Civil Code of Lower Canada relating to stipulations
for the benefit of third person (see: Diva Shoe Co. Ltd. v.
Gagnon et Procureur général du Quebec (1937), 70 B.R. 411
(Que.), at pp. 422-423).
engaged in international trade is a "federal under
taking" to which Part V of the Canada Labour
Code is applicable. (See paragraph 2(a) and sec
tion 108 [as am. by S.C. 1972, c. 18, s. 1].) 5 It
seems clear as well that the ITF, which is admit
tedly a labour union, is a valid bargaining agent
under the terms of the Canada Labour Code and
that the agreement entered into between it and the
shipowners satisfies the general definition of a
collective agreement (subsection 107 (1) [as am.
idem] 6 ) which would normally be covered by sec
tion 154 [as am. idem] which reads as follows:
5 These sections read thus:
2. In this Act
"federal work, undertaking or business" means any work,
undertaking or business that is within the legislative
authority of the Parliament of Canada, including with
out restricting the generality of the foregoing:
(a) a work, undertaking or business operated or carried on
for or in connection with navigation and shipping, whether
inland or maritime, including the operation of ships and
transportation by ship anywhere in Canada;
108. This Part applies in respect of employees who are
employed upon or in connection with the operation of any
federal work, undertaking or business and in respect of the
employers of all such employees in their relations with such
employees and in respect to trade unions and employers'
organizations composed of such employees or employers.
6 107. (1) In this Part,
"bargaining agent" means
(a) a trade union that has been certified by the Board as the
bargaining agent for the employees in a bargaining unit and
the certification of which has not been revoked, or
(b) any other trade union that has entered into a collective
agreement on behalf of the employees in a bargaining unit
(i) the term of which has not expired, or
(ii) in respect of which the trade union has, by notice given
pursuant to subsection 147(1), required the employer to
commence collective bargaining;
"collective agreement" means an agreement in writing entered
into between an employer and a bargaining agent containing
provisions respecting terms and conditions of employment
and related matters;
154. A collective agreement entered into between a bargain
ing agent and an employer in respect of a bargaining unit is,
subject to and for the purposes of this Part, binding upon
(a) the bargaining agent;
(b) every employee in the bargaining unit; and
(e) the employer.
There is nevertheless a difficulty when the facts of
the case are considered in light of our statute law.
This ITF agreement contains no provision for com
pulsory arbitration and no no-strike clause, two
important features of the collective agreement con
templated by the Canada Labour Code as attested
by subsection 155(1) [as am. idem] thereof.' A
strict application of our statute law could lead to
the conclusion that because of these defects the
ITF agreement is not a proper collective agree
ment to which the enforcement provisions of the
Labour Code should apply or that at least (in view
of subsection 155 (2)) the plaintiffs should be
compelled to go before the Canada Labour Rela
tions Board and through arbitration before resort
ing to the Court. But the objection may only
become serious in the event that the entire statute
law, in this case the Canada Labour Code, has to
be applied integrally. So for the moment, the
problem of the content of the lex fori applicable in
the absence of proof of the foreign law, which no
doubt may have some bearing on the solution of
the action, has to be considered further.
As I said previously, this problem of the content
of the lex fori applicable in the absence of proof of
the foreign law is generally seen as turning on a
simple choice between the common law and the
statute law. This is at least how it is presented by
the commentators and while a few contend that
the common law alone is to be considered, most do
not accept that statute law can be excluded. A few
quotations will help clarify the positions of the two
groups. In Johnson W. S., Conflict of Laws, 2nd
ed., 1962, we read, at page 54:
' Which reads as follows:
155. (1) Every collective agreement shall contain a provi
sion for final settlement without stoppage of work, by arbi
tration or otherwise, of all differences between the parties to
or employees bound by the collective agreement, concerning
its interpretation, application, administration or alleged
violation.
But it is also the English rule, followed in the United States
and in the English law provinces, that in the absence of proof of
the foreign law it will not be presumed to be similar to the
statutory law of the forum where the conflict is to be decided.
Like the rule, the exception, seeing their common source, is
followed in Quebec.
The point was decided by the Supreme Court of Canada, on
appeal from the Court of Appeal of Ontario, in Purdom v.
Pavey.
In Dicey A. V., and Morris J. H. C., The Conflict
of Laws, 10th ed., 1980, vol. 2, at page 1216:
The burden of proving foreign law lies on the party who bases
his claim or defence on it. If that party adduces no evidence, or
insufficient evidence, of the foreign law, the court applies
English law. This principle is sometimes expressed in the form
that foreign law is presumed to be the same as English law until
the contrary is proved. But this mode of expression has given
rise to uneasiness in certain cases. Thus in one case the court
refused to apply the presumption of similarity where the for
eign law was not based on the common law, and in others it has
been doubted whether the court was entitled to presume that
the foreign law was the same as the statute law of the forum. In
view of these difficulties it is better to abandon the terminology
of presumption, and simply to say that where foreign law is not
proved, the court applies English law.
In Castel J.-G., Canadian Conflict of Laws, 2nd
ed., 1986, at pages 145-146:
85. Absence of proof
If foreign law is not proved, it is assumed to be the same as the
lex fori. This seems to include statutes as well as the law
established by judicial decision.
Where a foreign statute has been proved by admission, in the
absence of proof to the contrary, the court will presume that
the rules of construction in the foreign country are the same as
those of the lex fori.
Some Canadian courts have doubted whether they are en
titled to presume that the foreign law is the same as the statute
law of the forum. Thus, a distinction has sometimes been made
between the general foreign law, which in the absence of proof
is presumed to be the same as the lex fori, and the case where
the lex fori has recently been changed by statute. In the latter
case the common law is applied unless the person who asserts
that it does not prevail proves it.
The presumption of identity, which is nothing more than a
rule of convenience, should be rejected. It would be better to
say that in all cases, where foreign law is not proved, the lex
fori will prevail as it is the only law available. 8
On reviewing the relevant case law, however,
one is inclined to doubt that the Canadian judges
have ever seen the resolution of the difficulty in
quite the same light as the commentators, i.e., as
implying a clear choice between common law and
statute law. The problem was certainly not pre
sented and dealt with on such simple terms in the
three decisions of the Supreme Court where it was
considered and to which reference is regularly
made. Thus, in Purdom v. Pavey & Co. (1896), 26
S.C.R. 412, where the subject-matter was land in
the state of Oregon and more precisely the effect
of a mortgage thereon, the Court elected to decline
jurisdiction being of the view that the foreign law
applicable should be proved or the matter decided
in a better forum, i.e., Oregon. In Hellens v.
Densmore, [1957] S.C.R. 768, where the issue was
whether the appellant was free to remarry before
the time given for appealing the decree of divorce
she had obtained in another jurisdiction had
expired, only three judges dealt with the problem
of the content of the lex Jori applicable in the
absence of evidence of the foreign law governing
the case, and they proceeded on the basis of the
following statement made by Cartwright J. (at
page 780):
In the absence of such evidence [as to the law of Alberta] the
British Columbia Court should proceed on the basis that in
Alberta the general law, as distinguished from special statutory
provisions, is the same as that of British Columbia. [Emphasis
added.]
In Gray v. Kerslake, [1958] S.C.R. 3, where the
right of beneficiaries under an insurance policy
made in New York was involved, two judges only
this time (again through a judgment of Cartwright
J.) considered it appropriate to deal quickly with
the argument that the law of New York had to be
8 See also to the same effect: Falconbridge J.D., Essays on
the Conflict of Laws, 2nd ed., 1954, pp. 824 et seq.; McLeod
J.G., The Conflict of Laws, 1983, pp. 39 et seq.; Groffier E.,
Précis de droit international privé québécois, 1980, p. 103, no.
195.
deemed to be the same as that of Ontario by
saying (at page 10):
It is contended that the Court of Appeal were right in
presuming that the law of the State of New York was the same
as that of Ontario, but the presumption relates to the general
law and does not extend to the special provisions of particular
statutes altering the common law. [Emphasis added.]
In fact, I have not been able to find any significant
judgment where the problem had been dealt with
on the basis of a clear distinction between common
law and statute law.
What has appeared constant to me, however, in
reading the cases, is the reluctance of the judges to
dispose of litigation involving foreign people and
foreign law on the basis of provisions of our legis
lation peculiar to local situations or linked to local
conditions or establishing regulatory requirements.
Such reluctance recognizes a distinction between
substantive provisions of a general character and
others of a localized or regulatory character; this
distinction, a distinction, formally endorsed I think
by Cartwright J. in the two passages I have just
quoted, is wholly rational which is more than can
be said of a simple division between common law
and statute law. This English jurisprudential rule
that, in the absence of proof of the foreign law
governing the case, the judge will apply the law of
the forum should not and cannot be seen, it seems
to me, as a pure abandonment of the rule of
conflict, as if a rule of conflict was so unimportant
that its application could be left to the whim of the
parties. In fact, it is not a genuine rule of conflict;
the situation is in no way comparable to that
which exists in the case of a renvoi when the
foreign law refers back to the law of the forum. It
is a rule strictly related to the incidence of evi
dence. The court does not repudiate the premise
that the case is governed by and has to be decided
on the basis of the foreign law, but simply says
that in so far as it is formally aware the foreign
law is similar to its own law. It is, as noted by
Castel, a pure rule of convenience, and one which,
it seems to me, can be rationally acceptable only
when limited to provisions of the law potentially
having some degree of universality. In my view,
there lies the solution to this case.
The law of Liberia is the law which is applicable
here. We have no proof of that law so we must
presume that it is "similar to our law but only in so
far as the substantial provisions thereof are con
cerned. Looking at the Canada Labour Code, it
seems to me that the provisions recognizing the
role of labour unions, giving effect the collective
agreements and, as interpreted by the courts,
recognizing the right of each individual employee
to sue for his wages under the agreement (Hamil-
ton Street Railway Co. v. Northcott, [1967]
S.C.R. 3) are fundamental and have that potential
degree of universality, while the others, namely
those dealing with the role of the Canada Labour
Relations Board and the requirement of arbitra
tion for the settlement of disputes, are linked to
Canadian circumstances and purposes. I therefore
consider that the ITF agreement has full force and
effect under Liberia law as it would have under the
basic provisions of our Labour Code, regardless of
the fact that provisions for arbitration were not
spelled out in it.
So, my conclusion finally is the same as that
reached by the Motions Judge. His order must
therefore, in my view, be sustained.
I would deny the appeal with costs.
LACOMBE J.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
HUGESSEN J.: I am in agreement with the dis
position of this matter proposed by my brother
Marceau J. I wish, however, to add some brief
comments on the English Law rule by which the
court, in the absence of evidence of the content of
the applicable foreign law, applies the lex foci.
In the first place, I would note that expressions
of the rule dating from the last century were
obviously coloured by the climate of their time.
English law and customs were being exported and
spread by colonial expansion to every corner of the
globe. English lawyers and judges, not unnatural
ly, viewed their system as being far superior to any
other. Kipling expressed a general sentiment when
he spoke of "lesser breeds without the Law"; there
is no doubt that the law he referred to was the
common law of England.
In those circumstances, it was perhaps under
standable that the rule should frequently have
been expressed in terms of a "presumption" that
the foreign law was identical to English law since
the latter expressed the standard against which all
others must be measured. In the modern context,
however, such a presumption makes little or no
sense. It certainly is not necessary as a justification
for the rule. In my view, the court applies the lex
fori for the simple reason that it is the only law
which it is competent to apply. Where the court
"knows" (in the juridical rather than the strictly
factual sense) the foreign law, it will apply it, as
when the Supreme Court of Canada is faced with
a conflict of laws problem between two or more
Canadian jurisdictions; so too, presumably, this
Court.
My second observation relates to the suggestion,
in some of the authorities, that the application of
the lex fori is limited to the common law as settled
by judicial decisions and excludes all statutory
provisions. Here again I think the expressions of
the rule have been coloured by the historical con
text and go back to a time when the great body of
English law was judge-made; statutes were crea
tures of exception, outside the general body of the
law. Even at that time, however, I doubt that it
would seriously have been argued that a statute of
general application such as, for example, the Bills
of Exchange Act should be overlooked, so as to
oblige the court to search in the obscurities of
history to determine the state of the law prior to its
enactment. The proper expression of the rule, as it
seems to me, is that the court will apply only those
parts of the lex fori which form part of the general
law of the country.
Finally, I would add that it seems to me to be
obvious that, in applying the lex fori in place of
the unproved applicable foreign law, the court
must make the necessary adjustments; in legal
jargon, the law is read mutatis mutandis. That
this is so is surely as true for common or judge-
made law as for a statute. I would expect that a
court called on to apply the law of Treasure Trove
in a conflict situation would hold that the treasure
belonged to the sovereign of the place where it was
found and not to the Crown of England.
Applying these considerations to the facts of the
present case, the question at issue is whether the
"collective agreement" between the owners of the
Mercury Bell and a trade union creates enforce
able rights in favour of the plaintiffs. Since the
defendant is a Liberian flag ship engaged in inter
national trade, the question is to be answered by
reference to the law of Liberia. Absent evidence of
Liberian law, we must ask what law would apply if
the ship flew the Canadian flag. That law is the
Canada Labour Code. 9 It is a law of general
application, limited only by the constitutional limi
tations of the Parliament which adopted it. Those
limitations would have no effect upon its applica
tion if the defendant were a Canadian flag ship
engaged in international trade. The Code provides
a clear, affirmative answer to the question before
us. To suggest, as appellant's counsel did, that
many provisions of the Canada Labour Code could
not be applied to the Mercury Bell and her crew is
nothing to the point. Of course not. She is not a
Canadian ship. By applying Canadian law in the
absence of evidence of Liberian law, we do not
make her one; nor do we subject her and her crew
to the jurisdiction of the Canada Labour Relations
Board or to the multitude of provisions to be found
9 R.S.C. 1970, c. L-1, as amended.
in the Code. We simply apply so much of Canadi-
an law as is necessary to answer the question.
For these reasons, and like my brother Marceau
J., I would dismiss the appeal.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.