The real fertile ground for conflicts of laws is found when New Brunswick courts hear matters stemming from events in other jurisdictions, which they are empowered to do when certain conditions are met. Several cases have dealt with this type of scenario: see for example Perron v. Parisé (1983), 44 NBR (2d) 409 (QB); MacLeod v. Via Rail Canada Inc. (1988), 91 NBR (2d) 91 (QB); Clark v. Naqui (1989), 99 NBR (2d) 271 (CA); Mersereau v. Côté (1989), 95 NBR (2d) 398 (QB); Moffitt v. Moffitt (1991), 113 NBR (2d) 361 (QB); Wright v. Wright (1992), 124 NBR (2d) 1 (QB); LeBreton v. Patriacca (1992), 128 NBR (2d) 190 (QB); Huckins v. Moss (1996), 181 NBR (2d) 81 (QB), confirmed at (1997), 188 NBR (2d) 153 (CA); O’Brien v. Universal Property Management Ltd, 2005 NBQB 148; and Jacob v. Roy, 2005 NBQB 421, confirmed at 2006 NBCA 102. Usually, even though the court has authority, the applicable law is that of the other jurisdiction: Unifund, supra para 80; Clark, supra; Huckins, supra paras 33 & 35 (QB); O’Brien, supra paras 13-15; Jacob, supra paras 3-6, 32 & 77 (QB).
As explained in McLean v. Pettigrew,  SCR 62 pp 75-76, litigation can be pursued in a province, in relation to an accident occurring elsewhere, as long as
… pour réussir, la demanderesse doit établir en premier lieu, que le quasi-délit commis en Ontario aurait donné ouverture à une action en dommages dans Québec, s’il eût été commis dans cette dernière province. En second lieu, il lui faut aussi démontrer que l’acte reproché au conducteur … est « wrongful, i.e. non-justifiable » selon la loi du lieu où a été commis le quasi-délit.
In Perron, supra para 15, the 2 criteria are defined as:
(a) The wrong must be of such a character that it would have been actionable as a tort if committed in New Brunswick.
(b) The act must not have been justifiable by the law of the place where it was committed and the act is not “justifiable” by the law of the place where it was committed if such act was “actionable” or “punishable” according to the lex loci delicti.
Obviously, in that process, judges have the authority to consider the foreign law regarding the existence of both the cause of action and any possible excuse: Hunt, supra pp 307-310.
It is worth noting that the legislative provision that gave rise to multi-jurisdictional issues earlier has also been raised in this context. It was argued, namely in Perron, supra paras 23-26, that the reciprocity section prevented a New Brunswick resident from receiving more than what would be allowed in the other province where the accident occurred. The court limited the provision to claims in New Brunswick from non-residents, not to New Brunswick residents claiming in the province in relation to accidents happening elsewhere. However, the judge continued by saying that the applicable law, as far as liability and quantum of damages were concerned, was that of New Brunswick (para 27). This last statement may be questionable with respect to substantive rules, as opposed to procedural rules: see Unifund, supra para 80. Namely, in Clark, supra, the issue centered on which limitation period, that of New Brunswick or Nova Scotia, applied to a medical intervention practiced in Nova Scotia. The unanimous bench applied the Nova Scotia legislation (albeit one of the appeal justices disagreed on the cause of action, i.e. contract instead of negligence). As explained in Huckins, supra para 35, New Brunswick law may apply in certain circumstances, namely for the quantification of damages where that of the foreign jurisdiction (State of Massachusetts) is not helpful.
Although the case of Albert v. Pelletier (1983), 54 NBR (2d) 189 (QB), is not technically an interjurisdictional matter, pertaining to the liability of a New Brunswick lawyer, its background involves an accident in Quebec and the failure to file an action within its 1-year limitation period. Furthermore, while the cause of action in Quebec depended on simple negligence, the corresponding New Brunswick cause of action rested on gross negligence. The trial judge condemned the lawyer for not filing the action in the jurisdiction presenting with the easiest road to recovery (i.e. Quebec) and ordered him to compensate the plaintiff with the amount that she should normally have recovered in damages.
However, even if the court has jurisdiction to deal with out-of-province matters, judges will sometime refuse to entertain them because they would more properly be addressed elsewhere: Gauthier v. Swain (1989), 100 NBR (2d) 173 (QB). As explained in Spar Aerospace Ltd v. American Mobile Satellite Corp., 2002 SCC 78 para 71, some of the factors that can influence a judge to decline to exercise jurisdiction are:
- The parties’ residence, that of witnesses and experts;
- The location of material evidence;
- The place where the events occurred;
- The existence of pending proceedings between the parties in another jurisdiction;
- The location of the defendant’s assets;
- The applicable law;
- The advantages conferred to a plaintiff by the choice of forum, if any;
- The interest of justice;
- The interest of the parties; and
- The need to have the judgment recognized in another jurisdiction.
Of course, where there is no jurisdiction, there is no matter of discretion to be exercised: Offen v. McCain Produce Co. Ltd (1983), 46 NBR (2d) 108 (QB), confirmed at (1983), 49 NBR (2d) 388 (CA); S.K. Export Inc. v. Fédération des producteurs acéricoles du Québec, 2011 NBQB 234.