MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

46 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
If the above provision applies to the deal under review, then Manitoba
Hydro cannot be sued or restrained within or outside Canada in respect of
its undertakings in Nigeria. It also follows that Manitoba Hydro may not
be able to discontinue its transmission management operations in Nigeria
on ground of breach by the other party. This is a potentially sensitive
conflict of law issue. Though Manitoba Hydro may sue or be sued for
breach and get judgment in a Nigerian court, the proceeding or judgment
may be unenforceable in a Canadian court. Recognition and enforcement
of foreign judgments in Canada posed logistical challenges until the
decision of the Supreme Court in Morguard Investment Ltd v De Savoye. 38
The court emphasized the importance of comity, and held that Canadian
courts should enforce judgments where foreign courts have legitimately
exercised jurisdiction by way of a fair process. This is in line with the
principle of “full faith and credit,” a phrase coined by the Supreme Court
of Canada and clarified in Hunt v T & N Plc 39 as a matter of constitutional
imperative.
The provisions of subsection 4(4) of the Manitoba Hydro Act could
potentially prejudice the parties if invoked. As a way out, the parties would
need to make appropriate provisions in their agreement in anticipation of
subsection 4(4) of the Act. Generally, the board on behalf of the
corporation may perform, execute, and carry out, all the duties, powers,
and functions imposed or conferred by the Act upon the corporation. The
board could also ratify such agreements or terms entered by the
corporation including its subsidiaries, and may generally advise the
corporation on its undertakings among others. 40 The board cannot,
however, override the provisions of the Act. This makes it potentially
prudent for the parties to anticipate the implication of the above
provisions, or at least seek clarifications or expressly exclude its application
in their contract for the management of the TNC by Manitoba Hydro as
the Managing Contractor.
38
(1990) 3 SCR 1077, 52 BCLR (2d) 160.
39
(1993) 4 SCR 289, 85 BCLR (2d) 1.
40
The board may also do all and any acts and things that are necessary for or incidental
to the performance, execution, or carrying out, of any such duty, power, or function,
including the passing of such by-laws and resolutions as the board may deem
advisable. See Manitoba Hydro Act, supra note 33, s 14. See also s 15(1) for a
comprehensive list of other board powers.