Canada: The Status and the Proof of Foreign Law in Québec

Abstract

In Québec, the designation of foreign law will depend on the application of choice of laws rules by judges. However their application depends on the parties invoking them and the content of foreign law is considered as a fact that must be pleaded and proven by the parties. A judge cannot apply it ex officio. The “burden” of establishing its content belong to the parties but the judge may use her own knowledge of the applicable foreign law. The usual means of ascertaining foreign law are oral proof by expert witness and written proof by certificate of a “jurisconsult”. Information on foreign law provided to Québec authorities is not binding upon them and is subjet to their evaluation in terms of probative force. However, some foreign documents, including a decision issued by a competent foreign public officer, will have a special probative force. The party pleading a foreign law has to bear the costs of ascertaining it, but Québec judges have a discretionary power to apportion them between the parties. Gaps in foreign law will be filled with Québec law as well as complete failure to establish its content and the lex fori will apply as a default solution. There is no judicial review of the application of foreign law except if there was a fundamental error of law made by the lower court. Foreign law could also be applied before administrative or other non-judicial authorities, as well as in alternative dispute resolution method. Access to foreign law is facilitated by the fact that legal information is provided through governmental websites and some Canadians judges belong to the Hague Judicial Network, even if Canada is not a party to international or regional instruments on proof and information on foreign law. Nevertheless, the Hague Conventions on the protection of children apply in Québec and facilitate access to foreign law. In order to improve the situation, it would be useful to modify the rule which imposes a prerequisite that parties invoke the application of foreign law in order to ascertain its content. However, the adoption of international instruments unifying the treatment of foreign law does not seem to be required in order to improve its the status in Québec. In order to facilitate access to foreign law, Canada should become a member to the European Convention of 7 June 1968 on Information on Foreign Law and work towards the adoption of a Hague convention based on the same model.