conflicts of law cases for robles

8/16/2019 Conflicts of Law Cases for Robles

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3 WWR 605 (Sask. CA)1941

Facts• Agnes Mary Hogg and sister Margaret Elizabeth Turner were assessed with successional duties

(inheritance taxes) by the Saskatchewan Provincial Tax o!!ission "or the estate o" their deceased sister Hanna #arly!$le%

• The $resent case is an a$$eal "ro! the decision o" the &ing's ench which reversed the decisiono" the oard o" evenue o!!issioners a""ir!ing the decision o" the Provincial Tax

o!!ission o" Saskatchewan that such $ro$erties were sub*ect to successional duties%

• The $resent dis$ute centers around +, !ortgaged $ro$erties in ritish olu!bia as to whether these $ro$erties are sub*ect to succession duties in Saskatchewan%

• The decision o" the &ing's bench is as "ollows-

o So "ar. however. as the +, !ortgages in /uestion are concerned. 0 a! o" o$inion that a!ortgage on land is an interest in an i!!ovable and its devolution is governed by the lexloci rei sitae%

o The 1succession2 to these !ortgages is there"ore. in !y o$inion. not sub*ect toassess!ent "or duty by the $rovince o" Saskatchewan%

o The dutiable value o" the estate !ust there"ore be reduced by the value o" these!ortgages and the tax ad*usted accordingly%

Issue/s• 3hether or not the sub*ect $ro$erties located and !ortgaged in ritish olu!bia are sub*ect to

successional duties in Saskatchewan. anada4

Held• A$$eal #0SM0SSE# with costs

Ratio• The relevant sections o" The Succession #uty Act. %S S. 5678. ch% 96% are sec% + (9). which

$rovides that a tax shall be $ayable 1where a successor has beco!e entitled to ::: a bene"icialinterest in $ro$erty $assing at the death o" a deceased $erson who at the ti!e o" his death wasdo!iciled in the $rovince and such title ::: is derived "ro! or is based u$on a devolution by or under the law o" the $rovince.2 and sec% 6 (") which $rovides that 1;o duty shall be leviable :::on real $ro$erty situate outside the $rovince%

• These !ortgages are ot su!"ect to successio dut# %

Hogg v. Provincial Tax Commission



• The basic /uestion was whether the !ortgages were to be classi"ied as !ovables or i!!ovables%This /uestion !ust be deter!ined by the law o" ritish olu!bia%

o This law was a /uestion o" "act. to be deter!ined by ex$ert evidence% <n the basis o" such evidence sub!itted to the ourt the !ortgages !ust be classi"ied as i!!ovables%

o The "act that under the ritish olu!bia law !ortgages devolved as $ersonal rather thanreal $ro$erty was i!!aterial since the real /uestion was not how they devolved under the

ritish olu!bia law but how they were classi"ied%

• Hence the !ortgages !ust devolve according to the law o" ritish olu!bia. not according to thelaw o" Saskatchewan. and the res$ondents' title to the! was not based u$on 1a devolution by or under the law o" the $rovince%2 There"ore the !ortgages were not taxable under The Succession#uty Act%

Mc&enzie =%A% oncurring• 0t was held that the devolution o" such $ro$erty though a!ounting to only a chattel interest. yet

being by nature i!!ovable. !ust be governed by the lex loci rei sitae (in that case. the law o"

England) *ust as i" it were "reehold $ro$erty%

A al#sis• The case correctly "ollows the general $rinci$le o" lex loci rae sitae or the law o" the $lace where

the $ro$erty is located% Saskatchewan law includes as an exe!$tion "ro! successional duties real $ro$erty located outside the $rovince% Since the $ro$erty was located in ritish olu!bia. theonly /uestion was whether or not the +, !ortgages were to be considered as real or $ersonal

$ro$erty% The Saskatchewan a$$ellate court a$$lying the $rinci$le o" lex loci rae sitae rules thatunder ritish olu!bian law. such $ro$erty is classi"ied as real $ro$erty and there"ore to beconsidered as real $ro$erty in the assess!ent o" successional duties%

• 0!$ortant to kee$ in !indo Lex fori characterization o" a legal $roble! governs >< ?M HA A TE 0@AT0<;

(exce$t "or classi"ying $ro$erty as !oveable or i!!oveable ( Hogg ))

Hogg v. Provincial Tax Commissioner $ 1941 Sask CA % Process- where is $ro$erty located4 9) >oreign(not "oru!) characterization o" $ro$erty as !oveable or i!!oveable% law characterizes !ortgages asi!!oveables%Facts& ady held !ortgages on land in . but died do!iciled in Sask% All 's are in Sask% Sask wants to

tax her estate and is $er!itted to do so i" the $ro$erty devolves by or under Sask law% This i!$licates oo" law rules B ' at la' o*e+ s e title,e t to successio o- t ese ,o+t a es

• has develo$ed o rules "or succession to i!!oveable and !oveable $ro$ertyo Moveables B de$end on the do!icile o" the deceased at the date o" deatho 0!!oveables B de$end on the situs (location) o" the $ro$erty

Ho' do #ou o a!out classi-#i t e +o e+t#o The "oru!. Sask. does not classi"y the $ro$erty% >oru! doesn't a$$ly it's own law



o this is the !i e ce tio to the C"oru! characterization' and C"oru! a$$lication o" ownlaw' %Co, lete de-e++al to -o+ei c a+acte+i atio 2 a!a do ,e t o- lex foria +oac %

+ocess to -ollo'&1) W e+e is t e +o e+t# located C

rule- i te+est i la d (i cl. ,o+t a es) a+e located ' e+e t e la d is located) Fo+u, asks t e "u+isdictio i ' ic t e +o e+t# is located to classi-# it

Sask asks how does law classi"y !ortgagesEx$ert witnesses are called "ro! and asked how does lawclassi"yDcharacterize !ortgagesThe !ore correct ex$ert says they are considered i!!oveables

• Thus !ortgages in Sask devolve under the law o" . and thus not sub*ect to tax in Sask% The $oint to re!e!ber is the $rocess• There's lots o" $ersonal $ro$erty that doesn't have a $hysical location. or a connection to a

$hysical $lace% The court has to invent an arbitrary rule• C Cou+ts al'a#s a*e "u+isdictio i- t e +o e+t# is located i C. S% 58 o" the CJPTA has

subsections which re"erence that $ro$erty in the $rovince is a S %• The !ore di""icult /uestion. addressed in Mocambique and Hesperides case. is ' e $ i- e*e+$ 'ill

a C cou+t co side+ it as "u+isdictio i- t e i,,o*ea!le +o e+t# is located outside Co The two cases hold that the court will have no *urisdiction "or so!e causes o" action

i" the i!!oveable $ro$erty is located outside %

conflicts of law cases for robles

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