FÉDÉRATION DES PRODUCTEURS ACÉRICOLES DU QUÉBEC, Applicant - v. -, 2013 NBQB 42

IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON Reference: 2013 NBQB 042 M/M/0064/12 Date: January 28, 2013 BETWEEN: FÉDÉRATION DES PRODUCTEURS ACÉRICOLES DU QUÉBEC, Applicant - and - CAISSE POPULAIRE DE RESTIGOUCHE LTÉE and NATIONAL BANK OF CANADA, Respondents - and - S.K. EXPORT INC., ÉTIENNE ST-PIERRE and GERMAIN GAUTHIER Interested Parties - and - THE ATTORNEY GENERAL OF NEW BRUNSWICK Intervener DECISION ON AN APPLICATION FILED ON MAY 30, 2012 BEFORE: The Honourable Mr.

Justice Zoël Dionne AT: Moncton, New Brunswick DATES OF HEARING: July 30, 2012, and January 16, 2013 DATE OF DECISION: January 28, 2013 APPEARANCES: Sacha D. Morisset , for the Applicant,

J. Yvon Arseneau, for the Interested Parties, Gaétan Migneault , for the Intervener, No one appeared for the two Respondents, CAISSE POPULAIRE DE RESTIGOUCHE LTÉE and NATIONAL BANK OF CANADA. [TRANSLATION] DIONNE, J. A: INTRODUCTION [ 1 ] On May 30, 2012, the applicant Fédération des producteurs acéricoles du Québec (the "Federation") filed an application before this Court seeking confirmation of a judgment of the Quebec Superior Court, District of Montreal, delivered on April 10, 2012, with regard to File No. 141-09-04-136. [ 2 ] The Quebec judgment as well as an enclosed document (5 pages in all) can be found in

Schedule "A", attached hereto. [ 3 ] The Quebec Superior Court ruled that the attendance of representatives (not personally identified) of two New Brunswick financial institutions (the Kedgwick, New Brunswick, Caisse Populaire Restigouche Ltée and the Saint-Quentin, New Brunswick, branch of the National Bank) was required in order for them to give evidence before an administrative tribunal, namely the Régie des marchés agricoles et alimentaires du Québec. [ 4 ] In fact, the Quebec Superior Court’s judgment of April 10, 2012, confirms a decision of the Quebec administrative tribunal (January 19, 2012, File No. 141-09-04-136), which had ordered the two financial institutions in question to send their respective representatives to testify in Quebec. [ 5 ] It must be noted that regardless of the titles given to these two financial institutions in the style of cause of either proceedings in Quebec (whether before the administrative tribunal or before the Superior Court), neither institution was an active or involved party in these Quebec proceedings. [ 6 ] In short, the only status that these two New Brunswick financial institutions or their respective representatives might eventually have in the Quebec proceedings would be that of witnesses. [ 7 ] Indeed, these institutions have financial information with respect to two persons (legal and natural) who are involved in the Quebec proceedings, namely S.K.

Export Inc. and its owner, Mr. Étienne St-Pierre; in other words, two of the three parties identified as "Interested Parties" in the style of cause of the application before this Court. [ 8 ] Although the two New Brunswick financial institutions have not appeared before this Court and have not opposed the Federation’s application in any way, the record shows that they do not intend to send their representatives to Quebec, unless a Court in New Brunswick orders them to do so, hence this application filed by the Federation. B: ISSUES This application raises the following questions:

a. Does the statutory law in the Province of New Brunswick give the Court of Queen’s Bench the power to confirm the judgment of the Quebec Superior Court dated April 10, 2012? b. If the answer to the preceding question is yes, have the conditions for exercising this power been met? c. Do the Canadian common law rules in private international law matters, in the circumstances of this case, give this Court the power to adopt a subpoena issued by another Canadian jurisdiction? d. If so, have the conditions set out in the case law for exercising this power been met? e.

If the last two questions are answered in the affirmative, has the Legislature of New Brunswick, by adopting the [ Interprovincial ] Subpoena Act (see s. 2, 3, 6 and 8 and Form 1), precluded the Court of Queen’s Bench from relying on the c ommon law in the circumstances of this case? f. If the answer to the last question is yes, is this New Brunswick statute constitutionally valid? g. In the final analysis, should and must this Court confirm the judgment of the Quebec Superior Court in the present circumstances?

B: STATUS OF THE PARTIES AND CHRONOLOGY [ 9 ] The status of the applicant Federation is that of a marketing board recognized under Quebec legislation; its mandate is to administer and regulate the production and marketing of concentrated maple water in Quebec. [ 10 ] The Régie des marchés agricoles et alimentaires du Québec (the “Régie”) is for its part an administrative tribunal whose mandate is, inter alia, to administer and oversee the application of and compliance with the regulations governing the Quebec maple sugar industry by means of business plans adopted by the Federation. [ 11 ] On October 18, 2007, the Federation filed an application before the Régie asking it to conduct an investigation and, if warranted, take action against the New Brunswick company, S.K.

Export Inc., and its owner, Étienne St-Pierre, who were alleged to have contravened the Federation’s regulations. [ 12 ] The Régie acquiesced to the Federation’s request and issued subpoenas duces tecum (oral testimony and production of documents) for one of its public hearings scheduled for January 20, 2011, to the two New Brunswick financial institutions and identified two New Brunswick residents to act as representatives of these institutions.

Copies of these two subpoenas are attached as Schedules “B” and “C”. [ 13 ] Neither one of these two residents of New Brunswick attended the hearing of January 20, 2011, nor were any of the requested documents produced at the hearing. [ 14 ] Accordingly, on November 22, 2011, the Federation filed a formal application before the Régie seeking an order compelling the two New Brunswick financial institutions to appear (to send their representatives) before the Régie and to produce the above-mentioned documents. [ 15 ] On January 19, 2012, the Régie allowed the Federation’s application and ordered the two financial institutions to delegate representatives to attend any future hearing scheduled by the Régie and at which the Régie will summon them to appear.

[ 16 ] On April 10, 2012, the Quebec Superior Court, District of Montreal, confirmed the Régie’s decision (File No. 141-09-04-136) . [ 17 ] This is the chronology of events that took place in Quebec and caused the Federation to file the above-mentioned application before the Court of Queen’s Bench. [ 18 ] The application was argued in two stages.

The first part (July 30, 2012) was adjourned by this Court when it became clear to the Court that this matter called into question the constitutional validity of a New Brunswick statute; it was also clear that this Court could not proceed until notices were served on the Attorney General of this province as well as on the Attorney General of Canada. [ 19 ] An order was signed to this effect on August 2, 2012, and notices were served on both the Attorneys General.

Thus, the Attorney General of New Brunswick became an intervening party. [ 20 ] The second part of the hearing was held on January 16, 2013. [ 21 ] The next part of this decision summarizes the respective positions of the parties involved in this application.

C: POSITION OF THE APPLICANT [ 22 ] The applicant contends that this Court must confirm the Quebec Superior Court judgment and adopt the subpoenas issued or to be issued to the two local financial institutions. [ 23 ] The applicant adds that the New Brunswick confirmation is reasonable and necessary to the due administration of justice in Quebec and that the rules of comity (Canadian common law in private international law matters) require such confirmation. [ 24 ] The applicant also points out that Canadian case law must be applied to any judgment of a court of another province that has properly exercised its jurisdiction and this should accordingly include subpoenas to witnesses as in this case. [ 25 ] The applicant maintains that legislation in this province: Interprovincial Subpoena Act, R.S.N.B. 2011, c. 180, hereinafter the " Subpoena Act ", recognizes the importance of the interprovincial mobility of witnesses in the Canadian federation and further submits that this statute proposes a procedural scheme that facilitates such mobility and therefore should not be interpreted or applied in such a way as to hinder or prevent it. [ 26 ] As a first alternative position, the applicant argues that should the Subpoena Act , in the facts of this case, prevent the Court from granting the requested confirmation, the Court in any case retains this power under Canadian common law. [ 27 ] As a second alternative, the applicant contends that if the Subpoena Act on the one hand prevents the Court from granting confirmation and on the other hand removes all possibility for the Court to rely on common law as a source of this power, then those parts of the New Brunswick Act are invalid as being unconstitutional and should be declared invalid.

D: POSITION OF THE INTERESTED PARTIES [ 28 ] The two interested parties, S.K. Export Inc. and Étienne St-Pierre, do not dispute the applicant’s proposition that this Court has the power to confirm the judgment under common law. [29] The interested parties argue, however, that the Court would be justified in this case in refusing the Federation’s request for confirmation because the investigation now being conducted in Quebec with respect to the two interested parties is ultra vires and unconstitutional in that it would in effect constitute an attempt at applying Quebec law outside its territory.

E: POSITION OF THE ATTORNEY GENERAL OF NEW BRUNSWICK [30] The intervener, the Attorney General of New Brunswick, insists that the Subpoena Act should be upheld as a whole, arguing that it is in all respects valid and constitutional. [31] The Attorney General contends that if the current provisions of the New Brunswick Act complicate or even hinder the Federation’s proceeding in this case, the difficulty does not arise out of the New Brunswick legislation, but rather is a result of the fact that the Province of Quebec has so far failed to reciprocate with New Brunswick. [32] Indeed, referring to s. 3 and 6 of the New Brunswick Act , the Attorney general maintains that it is the Province of Quebec that is the author of its own misfortune because it refuses to offer to the residents of New Brunswick the same immunity that New Brunswick grants the residents of Quebec when these two provinces require the presence of non-residents to testify in their respective territories.

F: POSITION OF THE RESPONDENTS: TWO NEW BRUNSWICK FINANCIAL INSTITUTIONS [33] The two respondent parties in this case, that is the two New Brunswick financial institutions, have clearly indicated to the Federation that they do not oppose the Federation’s application. [34] Yet the events show that the two institutions have not been cooperative with regard to the subpoenas issued in Quebec and not adopted by a New Brunswick Court, at least not since and including the hearing before the Régie, scheduled for January 20, 2011. [35] It was also acknowledged by counsel (at least by the applicant’s representative) at the January 16, 2013, hearing that unless these institutions are dealing with subpoenas that have been adopted by this Court, they will continue to be uncooperative. [36] As could be expected, the issue for these institutions is the confidentiality of financial information they have regarding the interested parties, S.K.

Export Inc. and Étienne St-Pierre; they therefore have no intention of breaching this confidentiality unless ordered to do so by a New Brunswick Court. G: ANALYSIS OF THE POSITION OF THE INTERESTED PARTIES [37] S.K. Export Inc. and its owner, Mr. Étienne St-Pierre, are the two parties whose interests are most at stake in this application. [38] Indeed, the documentary and testimonial evidence from New Brunswick that the Federation wants to adduce before the Régie concern S.K.

Export Inc.’s purchase of maple syrup produced in Quebec as well as related transactions. [39] The positions of the two interested parties was put forth in a brief filed on January 10, 2013, and oral arguments were also presented by their counsel at the January 16, 2013, hearing. [40] To summarize, the interested parties argue that the Federation’s ultimate goal in initiating proceedings against them in Quebec is to obtain an order from the Régie compelling the interested parties to pay to the Federation liquidated damages in accordance with provisions and amounts set out in annual maple syrup marketing agreements adopted by the Federation. [41] These liquidated damages arise from purchases of Quebec maple syrup by the interested parties allegedly done in violation of Quebec regulations. [42] The interested parties refer this Court to a recent Quebec Court of Appeal decision, Bourgoin c.

Fédération des producteurs acéricoles du Québec , 2010 QCCA 1593 , where the Court ruled that the Régie did not have the power to order a buyer of maple products to pay liquidated damages because its enabling statute (

An Act Respecting the Marketing of Agricultural, Food and Fish Products , R.S.Q., c. M-35 ) simply did not confer this power.

[43] Accordingly, the interested parties argue that a New Brunswick Court should not agree to send New Brunswickers to Quebec to testify in proceedings whose ultimate goal (imposition of liquidated damages) would not be accessible to the Federation in any case. [44] Moreover, the interested parties argue that the proceedings being conducted in Quebec constitute an ultra vires or unconstitutional attempt to apply in New Brunswick penalties prescribed by a Quebec law. [45] This Court must nevertheless recognize that this does not settle the matter in Quebec regarding the Régie’s powers with respect to the interested parties. [46] On November 30, 2011, the Quebec National Assembly amended the Act respecting the marketing […]; here are some excerpts: Bill 21:

An Act to amend the Act respecting the marketing of agricultural, food and fish products, 2nd sess., 39th leg., Québec, 2001 (assented to on November 30, 2011), S.Q. 2011, c. 32. (hereinafter the “ Amending Act ”) [47] According to the explanatory notes of the Amending Act, supra : This Bill empowers the Régie des marchés agricoles et alimentaires du Québec to decide on the payability of a sum of money under a joint plan, a marketing board by-law, a marketing agreement or an arbitration award in lieu of an agreement, and to order its payment.

It also empowers the Régie to provide, in arbitration awards the Régie makes in lieu of homologated marketing agreements, for the payment of penalties by any party bound by such an award that does not comply with the obligations it contains. It also sets out the manner of determining the penalties. [48]

Section 5 of the Amending Act provides: Clauses providing for the payment of liquidated damages or other penalties included in arbitration awards that are in lieu of homologated agreements or in decisions that are in lieu of arbitration awards are hereby validated, to the extent that they were ordered by the Régie des marchés agricoles et alimentaires du Québec in the absence of enabling legislation. [49] The Amending Act was the subject of discussion in the Quebec Court of Appeal decision in Fédération des producteurs acéricoles du Québec c.

Turgeon, 2012 QCCA 625 , at paras. 7-8 : [TRANSLATION] The purpose of the Amending Act of 2011 is to empower the Régie to decide on the payability of a sum of money under a marketing agreement or an arbitration award in lieu of an agreement and to order its payment. Its aim is also to validate clauses providing for the payment of liquidated damages and other penalties included in arbitration awards that are in lieu of homologated agreements and to validate decisions of the Régie on the payability of a sum of money that order its payment. The Act comes into force on November 30, 2011.

However, it validates liquidated damages clauses included in arbitration awards that are in lieu of agreements, as well as decisions of the Régie on the payability of a sum of money that order its payment. This is the intended goal of s. 5 and 6[.] [50] This Court believes that it is best left to the Quebec courts to determine the scope of the Quebec Act as well as its constitutional validity or again its application with respect to the two interested parties, S.K.

Export Inc. and Étienne St-Pierre. [51] Furthermore this Court notes that the same two interested parties have already attempted to have the Court of Queen’s Bench of New Brunswick rule on questions of

interpretation of the Quebec statute concerning the same matter as the one before this Court;

Madam Justice Lucie A. LaVigne declined jurisdiction, preferring to have these questions decided by the courts in Quebec. See Export (S.K.) Inc. et al. v. Federation of Quebec Maple Syrup Producers et al. , 2011 NBQB 234 . [52] To conclude on the position put forth on behalf of the interested parties, this Court finds that nothing in their arguments justifies a refusal to send representatives of both respondent parties (New Brunswick financial institutions) to testify in Quebec. H: CONTENTS OF THE SUBPOENA ACT [53] The S ubpoena Act contains only nine sections (5 pages).

A complete copy is attached as “Schedule D” to this decision. The General Regulation - Interprovincial Subpoena Act , Regulation No. 91-68, is attached as “Schedule E”. [54] It is worth noting that Regulation 91-68, initially adopted with reference to the 1979 version of the Subpoena Act , was confirmed and accordingly applies to the 2011 revised version of the Act , in accordance with s. 12 of the Statute Revision Act , R.S.N.B. 2011, c. 224. [55] It is also worth noting that according to s. 8 of the Act , the Act does not apply to a subpoena that is issued with respect to a criminal offence under

an Act of the Parliament of Canada. [56] Within the meaning of s. 5 and 6 of the Act as well as s. 4 of the Regulation and Form 2 prescribed therein, when a party to a proceeding in a court of New Brunswick causes a subpoena to be issued by our superior court, the Court of Queen’s Bench, for service to a person in another Canadian jurisdiction, the person appearing as a witness shall automatically have the immunity provided under s. 6 of the Act . [57] The immunity afforded witnesses from other Canadian jurisdictions is automatic regardless of what the legislation in these jurisdictions may prescribe. [58] However, in a case where the Court of Queen’s Bench is asked to adopt a subpoena issued by a court of another jurisdiction, addressed to witnesses from New Brunswick, the combined effect of s. 2( a ), 3, 6 and 8 and Form 1 prescribed by the Regulation preclude the Court of Queen’s Bench from adopting the subpoena in question if the legislation of that other jurisdiction does not provide immunity to New Brunswick witnesses, as does s. 6 of our Act . [59] Having had from July 30, 2012, to January 16, 2013, to verify this fact, the Federation informed the Court that Quebec legislation did not offer immunity to intended New Brunswick witnesses; it is on the basis of this information that this Court will pursue its analysis. [60] Although the Quebec Superior Court judgment (Schedule “A”), which in fact constitutes a subpoena, refers, in its clauses 2 and 14, to the Subpoena Act , the attached certificate does not conform to Form 1 prescribed by the Act because the last clause, which should refer to Quebec legislation providing immunity to New Brunswick witnesses, is omitted. [61] While it is clear that this Quebec Superior Court judgment was intended to be received and dealt with in accordance to s. 2 of the Subpoena Act of New Brunswick, it is equally clear that based on s. 3 of the Act , the Court of Queen’s Bench is not authorized to adopt the subpoena as requested.

I: ADOPTING A SUBPOENA OUTSIDE THE SCHEME OF THE SUBPOENA ACT OF NEW BRUNSWICK? [62] Given the wording of s. 3 of the Subpoena Act , it might still be argued that another Canadian jurisdiction’s failure to provide immunity similar to that granted in s. 6 does not constitute a complete bar to our Court adopting a subpoena.

[63] Indeed, s. 3 deals with instances of subpoenas which would otherwise have been adopted under the Act , i.e., the legislative scheme: “under s. 2”. [64] It could still be possible, at least according to the wording of s. 3, for this Court to retain the power to adopt the subpoena, this power being derived from a source other than the Subpoena Act . [65] This other source might be the Canadian common law in matters of private international law. [66] On the other hand, on reading the title and the introduction to s. 2, it seems clear that the Act is inclusive of all subpoenas issued by the courts of other Canadian jurisdictions. [67] Moreover, we should ask whether the New Brunswick Legislature did not in fact intend to give s. 3 of the Act a very broad scope – given that it took the trouble to specify, at s. 8 of the Act , the kind of subpoenas to which the Act did not apply; this being the only exception found in the Act : “a subpoena which is i ssued with respect to a criminal offence under an Act of Parliament” . [68] We should also ask why the New Brunswick Legislature has decided (a public policy decision) not to allow this Court to send its residents to give evidence in other Canadian jurisdictions that do not provide immunity similar to that granted in s. 6, while still maintaining the Court’s discretion to disregard this public policy decision on the ground that the adoption of subpoenas would be granted not under the Subpoena Act , but on the basis of Canadian common law. [69] Furthermore, since the New Brunswick Legislature has, as recently as September 1, 2011, revised the Subpoena Act , is this not yet another indication that the Legislative Assembly believes it is important to continue to ensure that New Brunswickers will be afforded the immunity provided under s. 6 of the Act , despite recent Canadian caselaw on the adoption of judgments of other Canadian jurisdictions, making s. 3 still relevant in today’s context? [70] Consequently, this Court finds that the Subpoena Act , with regard to applications for the adoption of subpoenas filed before this Court, is inclusive of all subpoenas except those expressly excluded under s. 8. [71] To conclude, unless s. 3 of the Subpoena Act is declared invalid, this Court considers itself barred from adopting any subpoena issued in Quebec as long as Quebec does not enact legislation similar to s. 6 of our Act .

J: CONSTITUTIONAL VALIDITY OF

SECTION 3 OF THE SUBPOENA ACT OF NEW BRUNSWICK? [72]

Section 3 of the S ubpoena Act of New Brunswick provides: French version Conditions d’homologation d’un subpoena La Cour du Banc de la Reine du Nouveau-Brunswick ne peut homologuer, en vertu de l’article 2, un subpoena délivré dans une autre province que si la législation de cette dernière contient une disposition semblable à l’article 6 qui prévoit qu’une personne résidant au Nouveau-Brunswick qui doit se présenter pour témoigner dans cette autre province jouit d’une immunité absolue à l’égard de toute action prévue à l’article 6 et relevant de la compétence de la Législature de cette autre province, à l’exception seulement d’une action fondée sur des événements survenus pendant ou après la comparution requise de cette personne dans cette autre province.

English version

Conditions in adopting subpoena The Court of Queen’s Bench of New Brunswick shall not adopt a subpoena from another province under

section 2 unless the law of thatother province has a provision similar to

section 6 providing absolute immunity to a resident of New Brunswick who is required to attendas a witness in the other province from all proceedings of the nature set out in

section 6 and within the jurisdiction of the Legislature ofthat other province except only those proceedings grounded on events occurring during or after the required attendance of the person inthe other province. [73] What follows now is the Court’s assessment of the arguments and

interpretations proposed by the Federation as well as thoseput forth on behalf of the Attorney General of New Brunswick regarding the constitutional validity of s. 3 of the Subpoena Act.

Federation’s Argumentation [74] The Federation submits that the Subpoena Act recognizes the importance of interprovincial mobility of witnesses in theCanadian federation and argues that the Act proposes a procedural scheme which attempts to facilitate this mobility. [75] The Federation maintains that the absence of immunity in the Quebec legislation (no equivalent to our s. 6) should not pose aproblem because the Canadian private international law in matters of jurisdiction is such that any witness summoned and who in factappears in Quebec does not automatically submit to the jurisdiction of Quebec with regard to any other matter. [76] The Federation submits that when s. 3 of the Subpoena Act was first adopted in New Brunswick, in 1979, the principles ofprivate international law and of constitutional law applied in these cases were not as well established as they are today. [77] The Federation submits that with the evolution in the past decades of the “real and substantial connection” criteria to determinea court’s jurisdiction, such as in the recent Supreme Court decision in Club Resorts Ltd. v.

Van Breda, 2012 SCC 17, among others, astatutory immunity provision is no longer necessary. [78] The Federation contends that such statutory immunity is no longer required because the law as it is today holds that a persondoes not automatically submit to the jurisdiction of another state (or province) merely by being physically present on the state’s territory;moreover, Canadian private international law recognizes a person’s right to contest the jurisdiction of a state (or province) on the groundthat the “real and substantial connection” required to determine the state’s jurisdiction does not exist. [79] In addition, the Federation presented a thorough analysis of the recent Canadian caselaw and referred to several decisions fromthe highest court of the land. [80] The next paragraphs of this decision will borrow excerpts from the Federation’s written submission. [81] In 1990, the Supreme Court of Canada in Morguard Investments Ltd. v.

De Savoye, (SCC), [1990] 3 S.C.R.1077, distanced itself from the traditional English rule based on territoriality which favoured not recognizing foreign judgments. Rather,the Court recognized that in Canada it was essential to have a judicial system that allowed better recognition of judgments from otherprovinces. [82] The Court in Morguard was asked to determine if the courts of British Columbia should recognize conditional judgmentsrendered by a court in Alberta in foreclosure actions. At the time, Canadian courts generally dealt with judgments from other provinces asthough they were from other countries.

The Court indicated clearly that this approach was not appropriate. The Court wrote at paragraph35:

35 However that may be, there is really no comparison between the interprovincial relationships of today and those obtaining betweenforeign countries in the 19th century. Indeed, in my view, there never was and the courts made a serious error in transposing the rulesdeveloped for the enforcement of foreign judgments to the enforcement of judgments from sister-provinces.

The considerationsunderlying the rules of comity apply with much greater force between the units of a federal state, and I do not think it much matterswhether one calls these rules of comity or simply relies directly on the reasons of justice, necessity and convenience to which I havealready adverted. [83] Comity is “the informing principle of private international law, which has been stated to be the deference and respect due byother states to the actions of a state legitimately taken within its territory”. [84] In Morguard, the Court indicated that the notion of comity goes beyond respecting the dictates of foreign states; it also consistsin taking into account “the convenience, nay necessity, in a world where legal authority is divided among sovereign states of adopting adoctrine of this kind”.

The Court indicated that “the rules of private international law are grounded in the need in modern times tofacilitate the flow of wealth, skills and people across state lines in a fair and orderly manner”. [85] The Supreme Court of Canada explains in Morguard why Canadian provinces should not treat judgments from sister provincesas “foreign judgments”. The Court wrote: 36 […] A common citizenship ensured the mobility of Canadians across provincial lines, a position reinforced today by s. 6 of theCharter; […] In particular, significant steps were taken to foster economic integration.

One of the central features of the constitutionalarrangements incorporated in the Constitution Act, 1867 was the creation of a common market. […] 37 These arrangements themselves speak to the strong need for the enforcement throughout the country of judgments given in oneprovince. But that is not all. The Canadian judicial structure is so arranged that any concerns about differential quality of justice amongthe provinces can have no real foundation. All superior court judges -- who also have superintending control over other provincial courts and tribunals -- are appointed and paid bythe federal authorities.

And all are subject to final review by the Supreme Court of Canada, which can determine when the courts of oneprovince have appropriately exercised jurisdiction in an action and the circumstances under which the courts of another province shouldrecognize such judgments.

Any danger resulting from unfair procedure is further avoided by sub-constitutional factors, such as forexample the fact that Canadian lawyers adhere to the same code of ethics throughout Canada. […] 38 […] a regime of mutual recognition of judgments across the country is inherent in a federation. […] 39 The integrating character of our constitutional arrangements as they apply to interprovincial mobility is such that some writers havesuggested that a "full faith and credit" clause must be read into the Constitution and that the federal Parliament is, under the "Peace,Order and Good Government" clause, empowered to legislate respecting the recognition and enforcement of judgments throughoutCanada […] The present case was not, however, argued on that basis, and I need not go that far.

For present purposes, it is sufficient tosay that, in my view, the application of the underlying principles of comity and private international law must be adapted to the situationswhere they are applied, and that in a federation this implies a fuller and more generous acceptance of the judgments of the courts of otherconstituent units of the federation. In short, the rules of comity or private international law as they apply between the provinces must beshaped to conform to the federal structure of the Constitution. [86] At paragraph 1 of Hunt v.

T&N plc, (SCC), [1993] 4 S.C.R. 289 (“Hunt”), the highest court of the landhighlighted an important goal of private international law in an interprovincial context: Legal systems and rules are a reflection and expression of the fundamental values of a society, so to respect diversity of societies it isimportant to respect differences in legal systems. But if this is to work in our era where numerous transactions and interactions spill overthe borders defining legal communities in our decentralized world legal order, there must also be a workable method of coordinating this

diversity. Otherwise, the anarchic system’s worst attributes emerge, and individual litigants will pay the inevitable price of unfairness. [87] In Hunt, the Supreme Court of Canada established that several principles put forth in Morguard have constitutional force. TheCourt wrote at paragraph 56: Now, as perusal of the last cited passage from Morguard reveals, the constitutional considerations raised are just that.

They areconstitutional imperatives, and as such apply to the provincial legislatures as well as to the courts, as the Attorney General for Ontarioconceded 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 togive "full faith and credit" to the judgments of the courts of sister provinces.

This, as also noted in Morguard, is inherent in the structureof the Canadian federation, and, as such, is beyond the power of provincial legislatures to override. This does not mean, however, that aprovince is debarred from enacting any legislation that may have some effect on litigation in other provinces or indeed from enactinglegislation respecting modalities for recognition of judgments of other provinces. But it does mean that it must respect the minimumstandards of order and fairness addressed in Morguard. [88] In 2006, in Pro Swing Inc. v.

Elta Golf Inc., 2006 SCC 52 , [2006] 2 S.C.R. 612, the Supreme Court of Canada Justiceswere unanimous in saying that the classic common law rule whereby a foreign judgment would only be recognized and executed if it wasmonetary and final should be amended. [89] The Honourable Justice Deschamps, writing for the majority, began the judgment with the following comments: Modern-day commercial transactions require prompt reactions and effective remedies. The advent of the Internet has heightened theneed for appropriate tools.

On the one hand, frontiers remain relevant to national identity and jurisdiction, but on the other hand, theglobalization of commerce and mobility of both people and assets make them less so. The law and the justice system are servants ofsociety, not the reverse. The Court has been asked to change the common law. The case for adapting the common law rule that preventsthe enforcement of foreign non-money judgments is compelling. But such changes must be made cautiously.

Although I recognize theneed for a new rule, it is my view that this case is not the right one for implementing it. [90] The Federation adds that based on the teachings of the Supreme Court of Canada on the matter during the last decades, namelyin Morguard Investments Ltd. v. De Savoye, (SCC), [1990] 3 S.C.R. 1077 (“Morguard”), Hunt v. T&N plc, (SCC), [1993] 4 S.C.R. 289 (“Hunt”), Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52 , [2006] 2 S.C.R. 612 (“ProSwing”) and in the trilogy Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, andBreeden v.

Black, 2012 SCC 19 (“Van Breda”), its application should be allowed. [91] The Federation maintains that a refusal to adopt the subpoena would be contrary to the principles of comity, convenience andnecessity that govern private international law.

Moreover, a refusal would be contrary to the principles of constitutional law set out bythe Supreme Court of Canada in Morguard and Hunt as well as in subsequent decisions which tend toward limiting the scope ofprovincial statutes in private international law. [92] Acknowledging that all Canadian jurisdictions except Quebec provide immunity similar to that provided in New Brunswick, theFederation submits that for this Court not to recognize a subpoena issued by the Quebec Superior Court while those issued by any othercourt in the country would be recognized is absurd and does not respect the private international law principles of order and fairness. [93] The Federation goes on to say that such an application of s. 3 would result in a systematic refusal to adopt any subpoena issuedby a Quebec court to a person outside Quebec. [94] In conclusion, the Federation submits that the principles of private international law and constitutional law command a flexibleinterpretation of s. 3 of the Act allowing this honourable Court to confirm the judgment of the Quebec Superior Court, and in so doing, toadopt the subpoenas that were delivered to the respondents.

Argument of the Attorney General of New Brunswick [95] The Attorney General refers this Court to the Uniform Interprovincial Subpoena Act. This Act was adopted by the Uniform Law

Conference of Canada in 1974. [96] She reiterates that since 1974, all Canadian jurisdictions except Quebec have enacted interprovincial subpoena legislation. [97] In her brief, the Attorney General points out that Quebec has in the past contemplated amending its legislation with respect tointerprovincial subpoenas; in fact, in February 2000, le Comité de révision de la procédure civile du Québec produced a report in whichrecommendation P.6-67 reads: [TRANSLATION] To enact rules similar to those provided in the Uniform Interprovincial Subpoena Act adopted by the Uniform Law Conference ofCanada to facilitate the subpoena and appearance of witnesses who reside in another province or territory of Canada. [98] The Attorney General notes that there is little doubt that provinces have exclusive jurisdiction over the administration of justicein their respective jurisdictions: Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.), s. 92(14), and that this jurisdiction includes “theConstitution, Maintenance and Organization of Provincial Courts, both of Civil and Criminal Jurisdiction, and including Procedure inCivil matters in those Courts”. [99] The Attorney General adds that the Federation has failed to identify a single constitutional provision that the Subpoena Actwould contravene in this case. [100] She points out that the difficulty which the Province of Quebec is facing at this point is in no way caused by the New Brunswicklegislation, but by the National Assembly’s failure to adopt legislation providing immunity similar to that provided under s. 6, as hasbeen done everywhere in Canada except in Quebec. [101] The Attorney General submits that the Federation’s use of the Canadian private international law of comity in this case is[TRANSLATION] “quite misdirected”.

She submits that the Federation is attempting to completely change the meaning of comity froma mutual obligation to a one-way process. [102] The Attorney General notes that according to the Federation’s position, New Brunswick has an obligation of comity towards theQuebec jurisdiction but Quebec does not have the same obligation towards the New Brunswick jurisdiction. [103] The Attorney General argues: [TRANSLATION] ...in fact s. 3 of the Subpoena Act embodies the principles of comity and reciprocity that the applicant relies upon to have it declaredinvalid: it takes into account international duty and convenience as well as the rights of the residents of New Brunswick (MorguardInvestments Ltd v.

De Savoye, (SCC), [1990] 3 SCR 1077, p. 1096).

K: CONCLUSIONS [104] Having considered the Federation’s and the Attorney General’s respective positions, this Court is satisfied by the Federation’sargument that the current principles of Canadian common law in matters of private international law tip the balance in favour of a findingthat subpoenas issued by a Canadian jurisdiction should be adopted by other Canadian jurisdictions. [105] This Court is also satisfied that the facts of this case indicate that the conditions set out in the caselaw to allow the Court toexercise its common law power have been met. [106] However, the Court is convinced that the New Brunswick Legislature has removed the Court’s common law power to adoptCanadian interjurisdictional subpoenas, except under the Subpoena Act of New Brunswick.

[107] The Court therefore agrees with the Attorney General’s submission that s. 3 of the Subpoena Act should be declared valid and applied as our Legislative Assembly dictates. [108] The Court is of the view that the Federation’s argument would have been convincing and thus adopted by this Court, were it not for s. 2, 4, 6 and 7 of the Subpoena Act . [109] Indeed, in this Court’s view, the effect of s. 2, 4, 6 and 7 of the Subpoena Act is precisely to conform to the current principles of private international law to which the Supreme Court of Canada has given constitutional force. [110] As to s. 3 of our Subpoena Act which, it must be remembered, has a counterpart in every province in Canada except Quebec, the Court recognizes that it effectively constitutes (within the meaning of Mortguard ) “legislation that may have some effect on litigation in other provinces”, even in the Province of Quebec. [111] Nevertheless, the Court believes that s. 3 constitutes a public policy decision on the part of the Legislative Assembly and it “respect[s] minimum standards of order and fairness” within the meaning of Morguard .

L: DISPOSITION [112] The Court declares that in accordance with the Interprovincial Subpoena Act of this province, the Court is barred from confirming the judgment of the Quebec Superior Court. [113] The Court finds that the said Act , including its

section 3, is constitutionally valid. [114] Accordingly, the Court denies the remedies sought by the Federation in its application dated May 30, 2012. [115] The Court makes no award on costs; each party shall bear its own costs. SIGNED at Moncton, New Brunswick, on January 28, 2013. ___________________________________ Zoël Dionne Judge of the Court of Queen’s Bench of New Brunswick, Trial Division