"Statute of Limitations Contract Tunisia - DOC - DOC"
Conflict of Laws (Law 363) - Prof. T. J. Wuester Spring 1995 - Part 3 of 3 1.0 RECIPROCAL ENFORCEMENT STATUTES - since the decision in Morguard (see part 2 of this outline), these statutes have decreased significantly in importance (now rely on the 'real & substantial connection' test) - in B.C., part 2 of the Court Order Enforcement Act (COEA) provides for the registration of foreign judgments (fgn J's) - to utilize the provisions of the COEA, you not only have to satisfy the conditions of the Act, but the jurisdiction from which the J was obtained must also be a 'reciprocating state' as listed in the Act (i.e. there must be a reciprocal enforcement treaty between the foreign jurisdiction/state and B.C.) - this severly limits the ability to use the COEA - 'reciprocating states' do not even include all Canadian provinces (Quebec is excluded), and there are only 6 U.S. states on the list - the Family Relations Act, part 4, which deals w/ enforcement, works in a similar way - there are more states involved (probably due to the fact that the alternative to getting deadbeat fathers to pay up is to have the state support the mother/child via welfare, and thus the state has an incentive to get reciprocal enforcement) - h/e - there are still less than 20 U.S. states that are part of this agreement PART 2 OF THE COEA - def'n of judgment: an in personam, money judgment - periodic payments don't qualify - s. 31 - the core of part 2: s. 31(2) - allows ex parte application for registration of a fgn judgment if: - the creditor has a judgment from the fgn jurisdiction (must present a 'certificate from the fgn court as per s. 31(3)); - the judgment debtor was personally served in the original action, or had submitted / attorned to the fgn jurisd.; - the appeal periods have lapsed. s. 31(5) - if the judgment debtor had not been personally served or had not submitted / attorned to the jurisd., the creditor must give notice of the application to the debtor s. 31(6) - a judgment cannot be registered if: (a) the court acted w/out jurisdiction (international or local) (b) the debtor did not appear or submit to the jurisd., and has no business or residence in the fgn jurisd. (c) the debtor was not duly served and did not appear - even where the debtor had a business or residence in the fgn jurisd. (d) there was fraud (e) there is a right to appeal that had not yet expired , (f) the decision is contrary to public policy (i.e. old gambling debts) (g) there would be a 'good defence' if the action were brought (does not allow a defence on the merits - perhaps a defence that the debtor had not attorned to the jurisd.) - s. 36 - a copy of any ex parte order granted by the court must be served on the debtor, and the debtor may challenge the order w/in a month of such notice - s. 33 - date of conversion of the monetary amount of the fgn judgment = the date of the fgn judgment (CoLaw is more flexible) Re Brandt & Overseas Food Services (1981 BCCA) - B.C. buyer K'd for purchase of chocolate from German seller - chocolate rotten when it arrived - buyer refused to pay, seller sues in Germany - seller serves buyer in B.C. 1 - buyer sends a letter to German gov't officials to the effect of 'we refuse to attend the German action; our refusal to pay is due to the fact that the chocolate was rotten when it arrived in B.C.' - seller got default J in Germany, and was able to register it in B.C. - the court of appeal held the letter to be a submission to jurisdiction - it seemed to be an argument on the merits of the case 2.0 CHOICE OF LAW - CONTRACTS - historically - there were diff't rules for diff't aspects of the K - examples: - law governing formation = place where K was concluded - law governing performance = place where K was performed * this is a bit simplified, but does show that the old rules lent themselves to rather picky & sometimes arbitrary examinations of the facts - England - began to consider what the proper law of the entire K was; came up with the following framework: 1. if the choice of law was expressly stated in the K, the chosen law will goven (subject to some qualifications wrt public policy etc.) - Vita Foods 2. if there is no express choice of law in the K, the court will look at the facts of the case to see what inferences can be drawn - what would the parties have chosen if they had considered the matter? 3. if the matter is still unclear - use the 'real & substantial connection' test * one thing that seems clear is that if there is no express choice of law, the cost of any dispute will increase as it will be necessary to determine the proper law - the U.S. seems to have adopted #1 and #3 above, as can be seen in the Restatement of the Law (p. 11-16 and 11-17 of Castel): in the absence of effective choice by the parties, the most significant relationship is what determines the matter - Castel states that 'the rule in Canada is that in the absence of express choice, the proper law of K is that with which the transaction has its closest & most real connection' (p. 11-17) - Wuester noted that there is a good summary of the 3 steps in Re O'Brien and CPR (1972 Sask. CA) - p. 11-30 of Castel: 1. if the intention is expressly stated, then in general it governs; 2. if the intention is not expressly stated, but it may be properly inferred from the terms & nature of the K and the surrounding circumstances, then the intention is so inferred; 3. if neither #1 or #2 provide an answer, the intention may be inferred by referring to the system of law with which the K has its closest and most real connection. * note that #2 and #3 both refer to 'inferences' Overview: Factors that are considered in making inferences & assessing connections: 1. Where are the parties from? (not just the K parties, but anyone w/ a significant connection to the K) 2. Where was the K to be performed? 3. What 'form' was the K in? (Amin Rasheed) 4. How reasonable are alternative choices? (Amin Rasheed) 5. Is there an arbitration clause? What choice of law? (Monark, Compagnie d'Arment) 6. For a shipping K - what flag was the ship registered under? (James Richardson) 7. Does the K language seem inconsistent w/ the laws of a given state? If so, infers an alternative choice. (Re Missouri, Sharn Importing) 8. What were the 'reasonable expectations' of the parties? (Colmenares, Rosencrantz) Overview: Illegality & unenforceability of K's 1. Recovery for damages is limited where the damages are the result of a prohibition on performance in the jurisdiction in which performance was to take place (Ralli Bros.). 2 2. K will be void if its object is to break the law of a foreign country (Foster) 3. court will not recognize a fgn judgment where it is contrary to the public policy of the forum (National Surety) 4. Capacity to enter into a K is governed by the law of the place where the K was created (Bondholders) 2.1 EXPRESS CHOICE OF THE PROPER LAW Vita Foods Products Inc. v. Unus Shipping Co. Ltd. (1939 PC) - Pl, located in New York, contracted to purchase herring from a Newfoundland seller - to be shipped via the Def, a shipping co. based in Nova Scotia - bill of lading that was used by the Def when the goods were loaded in Nfld was old - did not comply w/ a Nfld statute that required all bills of lading to contain an express provision that would incorporate sections of the statute - the provisions that should have been incorporated relieved the carrier from liability for negligence - the bill of lading, however, contained its own exclusion clauses that relieved the carrier from liability for negligence - the bill of lading also contained a clause that the K 'shall be governed by English law' - the goods were damaged in transport, due to the captain's negligence - Pl's bring suit in Nova Scotia - claim that b/c the K did not comply w/ the Nfld statute, it is t/f void, and revert to the CoLaw where the Def would be liable as a common carrier - Def's argue that the provision of the Nfld statute was only directive, not imperative, and thus the K was not void and they are exempt from liability - also argue that the K was governed by English law anyway (as per the K clause), and that the K is valid as per English law Held - the court basically agreed w/ the Def: - the provision of the Nfld statute was only directive, not imperative, and thus the K was not void and they are exempt from liability - the proper law of the K was the law intended by the parties - English law Reasoning: - the court stated that where the parties have expressly stated their intention wrt choice of law, and this intention is bona fide and legal, the chosen law should govern, unless there are public policy reasons for avoiding the choice - the court found that there was sufficient connection to England (the underwriters of the ship's insurance were likely English, and the parties were familiar with English law) - shows that little connection (or none) is required Comments: - critics maintain that the court did not have to even consider the choice of law issue - it could have been decided on the imperative/directive argument - critics also maintain that parties will be able to subvert local law by choosing a convenient fgn law (or will they - would be against public policy...) - it is unclear what the court meant by 'bona fide & legal' - it is generally interpreted as meaning that the K will be valid & enforceable as long as it would not be illegal or invalid as per the law that would objectively apply (i.e. using a substantial connection or inference test) - it could be argued that there was no express agreement on choice of law between the actual signing parties - it is doubtful that they actually read the agreement - note that this allows the fgn court (Nova Scotia in this case) to apply English law; the case does not have to be brought in England 3 *this case is still the law in Canada wrt choice of law - h/e, wrt express jurisdiction clauses (close, but not the same), Moriguard has introduced some uncertainty as to their effectivenes...(see part 2 of this outline) 2.2 ABSENCE OF EXPRESS CHOICE - in a nutshell, courts seems to waffle between using some type of 'inference' test and using a 'real and substantial connection' test - t/f must argue both... - the inference tests have been stated in various terms: - the intention will be presumed by the court from the terms of the K and the relevant surrounding circumstances - Lord Atkin in R. v. Int'l Trustee (1937) - the court will determine for the parties the proper law which, as just and reasonable persons they ought to have intended if they had thought about the question - Singleton L.J. in The Assunzione (1954) Amin Rasheed Shipping Corp. v. Kumait Insurance Corp. (1984 HL) - the Pl shipping co., a Liberian company, had a ship seized by Saudi authorities (allegedly for smuggling) - the Pl is suing the Def insurance co. for $ from the loss of the ship - the insurance company had its head office in Kuwait, had no office in England, and issued the insurance contract in Kuwait - h/e - the insurance contract was in English, using a very old English (Lloyd's) standard form, and there was evidence that (1) English law would have to be used to at least interpret the contract (due to its form); and (2) there was not any Kuwait law wrt marine insurance at the relevant time Issue (for our purposes) - what is the proper law of contract? - if it is England, the Pl will be able to serve a writ on the Def outside of the jurisdiction (although the court still has the discretion to decline jurisdiction) Held - the proper law is the law of England Reasoning - Lord Diplock - seems to consider both inferences as well as real & substantial connections - states that it must have been the parties' intention to use English law, and that this is where the transaction had the closest connection (stresses the form of the K, the lack of Kuwait law) - Lord Wilberforce - relies on real & substantial connections - downplays the importance of the form being used (many forms are used internationally, but are interpreted locally), and the lack of Kuwait law - these are only factors to be considered with all other factors... - states that the significant factors include the form being used, the nationality of the parties, the use of English currency, the issuance of the policy in Kuwait, and the provision for payment in Kuwait - states that the fact that there was no express choice of law, with such an essentially English contract, points to England as the proper law Tzortzis v. Monark Lines (1968 1 WLR 406 - CA) - Greek ship buyer, Swedish seller - K is silent wrt choice of law - K did have a clause for arbitration though - to be held in England - arbitration commenced - 1st question is the law that governs - Denning - when foreign parties elect English arbitration, it can be properly inferred that English law should apply (b/c it is neutral) - later cases (see below) stated that an arbitration clause is not determinative, but simply a factor to consider 4 Compagnie d'Arment Maritime v. Compagnie Tunisienne de Navigation (1970 HL) - oil to be shipped from 1 port in Tunisia to another port w/in the country - K with a french shipping co. - a long term shipping K (many shipments) - K specified that the proper law was that of the ship's flag (meant for single shipments) - problem was that ships w/ 5 diff't flags were used - court t/f had to look at the closest connection to determine proper law - choice of Tunisia (K performance), France (shipper location, other?), and England (arbitration clause) - court eventually chose french law (h/e, this choice is not as important as the following points) - court re-affirmed that parties have a basic right to choose the K's governing law, unless it would be contrary to public policy (per Lord Diplock) - court also stated that an arbitration clause in favor of an English forum is only one of many factors to consider Hansen v. Hansen (1981 26 BCLR 236 - SC) - Swedish marriage - K provided for seperate ppty (i.e. they would keep their own ppty upon divorce etc.) - wife was loaded ($800K), husband had a pack of smokes and a beater car... - evidence that wife had not disclosed all assets/holdings - via s. 51 of the FRA - court ignored the K and gave the husband $100K * t/f a different consideration for family K's - greater discretion allowed (whether or not there is an express choice of law) Colmenares v. Imperial Life Assurance Co. of Canada (1966 Ont CA; 1967 SCC) - the Pl, a Cuban national, bought 2 insurance policies in Cuba from Cdn. co. b-4 Castro came to power - particulars of the policies are as follows: - the contracts were in Spanish, were paid for in Cuban pesos - the policies were signed & notarized in Cuba - the decisions wrt accepting the policy were made in Toronto, at the insurance company's head office - they allowed for payment of U.S. dollars - there was no choice of law clause in the policies - once Castro was in power, a foreign exchange law was passed prohibiting payment of an obbligation other than by Cuban currency in Cuba - Pl fled to the U.S. - wants to cash in policy, but insurance co. does not want to do so, as this would p.o. Castro Issue - what is the proper law of the K? - if Canada, the Cuban law does not apply and the policies may be paid out - if Cuba, the Cuban law does apply, and the Pl is S.O.L. Held - Canadian law applies Reasoning - under the old approach to choice of law - Cuban law would probably apply (K was finalized in Cuba, and mostly performed there) - SCC - Ritchie: - looks at both inferences as well as reasonable & substantive connections - fact that head office was in T.O., and that decisions to accept the policies were made there, are significant connecting factors - inference can be drawn that a person applying for an insurance policy would anticipate that the policy would be governed by the law of the jurisdction in which the insurance co. is located Comments: - if Cuban law applied, would the K be void? (i.e. b/c it is impossible to perform) 5 Cansulex Ltd. v. Reed Stenh ouse Ltd. ((1986) 70 BCLR 273 (SC)) - sulphur (negligently) loaded on a ship caused damage to the ship - laws of B.C., Alta., and Washington could apply - no express choice - if intention is unascertainable, go to the law of the place to which the parties' business relationship had its clsest connection (in this case, B.C.) Rosencrantz v. Union Contractors Ltd. and Thornton (1960 BCSC) - Pl from Oregon, Def from B.C. - Pl loaned $ to Def - $47,000 in exchange for a promissory note of $50,000, payable (in Vancouver) in three months, plus an oral agreement to pay interest of $3750 per month (90%) - note - no usury law is B.C. at the time - Pl made 'some' interest payments, but defaulted on the note - renegotiation of the defaulted loan occurred in Seattle - agreement reached that the Def gave the Pl two promissory notes, for diff't periods of time, totalling $50,000 - interest on the notes was set at 6% - well w/in Washington law (12%) - Def defaulted on the 1st new note - Pl brings action in B.C. - by Washington law - amounts carried forward from one debt to another can be regarded as interest for the purposes of Washington's usuary laws - the penalty in Washington for exceeding the allowable rate of interest is severe - the lender may only recover the principal after the amounts of interest payable are subtracted, and after twice the amounts of interest actually paid are subtracted! Issue - what is the proper law governing the loan in question? Held - Washington law applies - the loan would be usurious by Washington law, and thus the lender will recover much less than the $50,000 principal... Reasoning - the court looks at inferences: 'It is to be presumed that when the Pl accepted a Washington bill of exchange, made in Washington on a Washington form and payable in Washington he intended washington law to apply and the fact that he may find the application of that law uncomfortable is no reason for relieving him of the consequences of his choice' (p. 11-32 of Castel) - the court found little to rebut this inference (the fact that the original debt was from B.C.) - the court then noted that B.C. would apply fgn usury laws if the fgn law was the proper law of the K - using Washington law, the $3,000 difference between the original promissory note of $50,000 and the advanced funds of $47,000, which was carried forward to the loan in question, was found to be usurious Comments - if the lender had sued on the original debt (the $50,000 B.C. loan, which had not been cancelled for some reason), would have probably won (no usury law in B.C.) - with criminal provisions - a fgn court would treat this as a matter of extradition (i.e. if the Washington provisions were penal in this case, or if Washington heard an action wrt the 1st loan when our criminal code contained the current provisions against usury) James Richardson & Sons Ltd. v. The Steamer Burlington (1931 SCC) - grain shipped from Chicago to Buffalo (on route to Montreal) - due to a sailor's negligence, the ship took on water & the grain was damaged 6 - in the U.S. - the Harter Act allowed shipping companies to avoid liability for losses, as long as they exercised due diligence etc. (questionable here?) - t/f - Pl brought suit in Canada Issue - what law governs the K (does the Harter Act apply)? Held - U.S. law governs - Pl is S.O.L. Reasoning: - court looks at the connecting factors for the K: - bills of lading signed in the U.S. - transport was all w/in the U.S. (Chicago to Buffalo) - the ship's flag was U.S. (an important factor to the court) - the given connections to the U.S. strongly suggests that the parties intended to be governed by U.S. law - a clear intention to the contrary would be required in order to override this conclusion (court looking at inferences here) - the court does not consider the location in which the contract was signed as being particularly significant Re Missouri SS Co. (1889 Ch. D.) - cattle being transported form U.S to England - ship ran aground - cattle lost - Pl (person shipping the cattle) was American - shipping co. was English, it was an English ship, English destination, K in English form, but signed in the U.S. - K had clauses that relieved the carrier from liability - clause would be void as per U.S. law, o.k. as per English law Issue - what law governs the K? Held - English law governs - Pl is S.O.L. Reasoning: - court states that the place where the K is signed is not determinative - have to look at all circumstances surrounding the K - here, most connecting factors point to the law of England - also - the fact that the use of such an exclusion of liability clause points to (infers?) English law - otherwise why would such a clause be included? Comment: - the decision in this case was delayed in anticipation of a U.S. case with a very similar fact pattern - The Montanna (Liverpool & G.W. Steam Co. v. Phoenix Ins. Co. - 1889 U.S. S.C.) - the two courts use the same test to determine the law that governs the given K, but in The Montanna, the U.S. Supreme Court focused on the U.S. connections, thus holding that U.S. law applied - factors noted were that the party shipping the goods was American, the K was signed in the U.S., loaded in the U.S., shipping co. had an office in the U.S., etc. * Wuester thinks that this is interesting - perhaps shows a bias towards interpreting the factors so that the court can apply its own law Sharn Importing Ltd. v. Babchuk (1971 BCSC) - Def signed personal guarantees for debts owed by a co. - he was the president, main shareholder & controlling director - Def resided in B.C., but said that he signed the guarantees in Alberta (where the co. carried on business, & where the debts arose) - t/f - the Def said that the law of Alberta should apply to the debts (which would make the debts invalid for non-compliance with an obscure Albertan statute - the Guarantees Acknowledgment Act) - there was also a connection to Quebec - where the debts were to be honored 7 Issue - what law governs the K? Held - B.C. law governs - Def is S.O.L. Reasoning: - court found that it was unclear as to where the guarantees were actually signed (court did not believe the Def) - also - the Def testified that he had intended to be bound by his signature; this was sufficient reason for the court to prefer, as the proper law, a system of law in which the shared intention of the parties would be effective (not Alberta) Long Island (? Nova Scotia case ?) - Def purported to waive the statute of limitations in a K - this was allowed under Nova Scotia law - the case was brought in Nova Scotia - h/e - K stated that NY law applied - where no such waiver was allowed - court determined that the law was substantive, and thus NY law prohibited the waiver (if it was procedural, the forum law would apply...) Ralli Bros. v. Compania Naviero Sota Y Aznar (1920 KB) - shipping K - goods to be paid 1/2 upon loading, 1/4 upon arrival at the Spanish port, the last 1/4 upon unloading - Ralli to pay first 1/2 payment, the Spanish buyer to make subsequent payments - K provided for English arbitration; the K was in English form - Spanish law was passed, limiting the amount that could be paid for goods - it would be illegal for someone subject to Spanish law to pay or recieve an amount in excess of the set maximums Issues: 1. What is the proper law of the K? 2. If the proper law of the K is English, is the Def liable to pay for the goods notwithstanding the Spanish prohibition? Held: - English law governs, but recovery for damages is limited where the damages are the result of a prohibition on performance in the jurisdiction in which performance was to take place Reasoning: - the English arbitration clause, English form of the K, the fact that Ralli Bros. was an English firm - all point to the use of English law as the proper law - Dicey stated - 'a K is, in general, invalid in so far as the performance of it is unlawful by the law of the country where the K is to be performed' - this also prohibits Ralli Bros. from paying th e excess, in that the Spanish law prohibits receipt of an amount in excess of the set maximum Foster v. Driscoll (1929 KB) - F provided $ as part of a plan to buy a ship & transport booze to the U.S. (during prohibition - illegal) - thus, the K was held as void because its object was to break the law of a foreign country - parties were left as they were - no judgment at all - left losses where they lay National Surety Co. v. Larsen (1929 BCSC) - bond co. trying to come after B.C. resident (wife) that guaranteed a bail bond (the husband then skipped bail) - although as a general rule a court will not recognize a fgn judgment where it is contrary to the public policy of the forum, such was not the case here 8 - the court saw this as a wife coming to her husband's aid - nothing contrary to public policy there... Bondholders Securities Corp. v. Manville et al (1933 Sask. CA) - married woman from Sask signed an agreement to purchase land in Florida - Pl goes after her for payment - she resists, as married women in Florida cannot make a promissory note - Def argues that her domicile should govern her capacity to make a K Issue - what law governs the capacity to K? Held: - the law of the place of domicile only applies to marriage K's - all other K's ('commercial transactions') are determined according to the law of the place where the K was created Reasoning: - the court surveyed existing precedents, and noted that there was an inconsistency between marriage contracts and other forms of K - given this inconsistency, the court held that the place of domicile is only relevant for marriage K's Comment: - in Castel's opinion, a better justification for the decision is that the proper law of the K is the law of Florida 3.0 CHOICE OF LAW - TORT - up to 1950 - a non-issue - nothing ever changed, no one really cared - things have changed in response to the 'global economy' - several diff't theories have been developed: THE LEX FORI THEORY - 'the law of the forum' - no matter where the tort was committed, apply the forum law (as long as the court has jurisdiction to take the case) - this approach is certain & somewhat predictable, but its main criticism is that it results in forum shopping THE LEX LOCI DELICTI COMMISSI THEORY - 'the law of the place where the wrong was committed' - this was the old U.S. approach (until early 1960's) - has the 'vested rights doctrine' as its basis - in Slater v. Mexican Nat'l Railroad Co. (1904 U.S. S.C.), Holmes J expressed the theory as follows: 'the act complained of...gave rise to an obligation...which, like other obligations, follows the person and may be enforced wherever the person may be found. But as the only source of this obligation is the law of the place of the act, it follows that that law determines not merely the existence of the obligation, but equally determines its extent.' - the foreign law will t/f determine the duty of care, std of care, available defences to the action, as well as the measure and nature of damages that can be awarded - for example, in this case, the wife of a deceased railway worker sued the railway company in the U.S. - in Mexico, 'lump-sum' payments were prohibited - a court could only provide periodic payments (that would cease upon re-marriage) - the U.S. Supreme Ct stated that the Pl's rights vested in Mexico, and thus Mexican law governs everything 9 - h/e, the Pl would have to go to Mexico for satisfaction of her claim, b/c U.S. courts could not grant awards based on periodic payments - the theory was also advocated by Prof. Beale, and was the law as given by the U.S. Restatement of the Law of Conflict of Laws (1st edition) - h/e the theory was criticized as ignoring the policy considerations and interests of the forum that was hearing the case; it seemed to inflexible to many (Babcock v. Jackson, per Fuld J. - 1963 NY) - this theory gave way to the 'proper law of the tort' in the U.S. in the 1960's THE APPROACH IN PHILLIPS V. EYRE - two conditions must be fulfilled: 1. the wrong must have been actionable if committed in the local jurisdiction 2. the wrong must not be justifiable by the law of the place where it was done - if the above test is satisfied, the law of the forum is applied - the second part of the test has been relaxed in subsequent cases - it has been held that as long as the act was not completely innocent in the foreign jurisdiction, the second part of the test will be satisfied (Machado v. Fontes) - criticisms of this approach include the following: - may be too harsh on the Pl - subjects them to two burdens of proof - some feel that the second part of the test is uncertain, and that it should not be enough that an action is merely 'disaproved of' or 'not justified' - some feel that this approach gives foreign laws extra-territorial application - wrt a civil action in Canada for a matter that would be subject to criminal sanctions abroad (no civil liability abroad), some feel that this is in effect enforcing the penal laws of another state (generally not done) THE 'PROPER LAW OF THE TORT' - advocated by Prof. Morris as more 'socially desirable' and flexible (when compared to the old U.S. approach, at least) - Morris defined the proper law as 'the law which on policy grounds, seems to have the most significant connection with the chain of acts and consequences in the particular situation' - this is the basis for the U.S. Restatement of the Law of Conflict of Laws (2nd edition) GOVERNMENTAL INTEREST ANALYSIS - recall from chapter 1 (beginning of this outline): - if one state has an interest & the other has none, apply the law of the interested state - if both states have an interest, perhaps a re-interpretation of the relevant policies, interests, etc. may resolve the apparent conflict - if the conflict still exists - apply the law of the forum THE CANADIAN APPROACH - Canada stuck w/ the Phillips v. Eyre approach until the Tolofson decision - Tolofson seems to advocate the use of the 'lex loci delicti commissi' - the law of the place where the tort was committed - a vested rights approach - this seems a bit odd to Wuester, seeing as Morguard was so recent & moved to embrace the 'proper law of the K' (real & substantial connections) - why did the SCC choose to go to an outdated U.S. approach wrt torts? 10 AN OVERVIEW OF THE CASE LAW WRT CHOICE OF LAW IN TORT - given the above analysis, the case law has proceeded in the following general way: - beginning w/ The Halley, the rule was 'double actionability' - like the rule in Philips v. Eyre, but the wrong has to be actionable in both jurisdictions before the vourt will proceed, and then it will use forum law as the substantiev law - next came Philips, w/ the two part test (after which forum law was also used as the substantive law), which was relaxed in Machado v. Fontes in England, and McLean v. Pettigrew in Canada (where the second part of the test became a test of 'complete innocence') - almost all cases used forum law as the substantive law after the Philips test was satisfied, but an exception was McElroy v. McAllister, which used the lex loci delicti once the Philips test was satisfied - in the U.S., the lex loci delicti was the rule, but it was widely criticized, and eventually scrapped in favor of the proper law of the tort (real & susbstantial connections, gov't interest analysis) in cases like Babcock v. Jackson, Tooker, Neumeier v. Kuehner, and Clark v. Clark - in England, the Fontes decision was overruled in Boys v. Chaplin, and the Philips test was reformulated as a double actionability test, with the possibility of specific issues being determined by real & substantial connections (see Dicey & Moris Rule #205) - finally, in Canada, the Quebec no-fault insurance scheme provided the impetus (in cases like Going v. Reid, Lewis v. Leigh, Ang v. Tach) to change the law as stated in McLean v. Pettigrew - the first cases, decided at the court of appeal level (Grimes v. Cloutier, Prefontaine v. Frizzle), confined McLean to its facts, and the cases were decided on the basis of rule #205 of Dicey (Grimes), and on the reasonable expectations of the parties (Prefontaine) - the SCC then changed the law in Tolofson v. Jensen by overruling McLean, and advocating the lex loci delicti rule, with very little room for any exceptions - prior to Tolofson, the SCC in Moran Pyle and Morguard seemed to be heading toward a 'reasonable & substantial connection' test, or a test of 'the proper law' - the Woo would not have bet on the SCC's decision in Tolofson, and does not seem to an advocate of the decision The Halley (1868 PC) - English ship hit a Norwegian ship in Belgian waters - English ship was under the control of a Belgian pilot (a 3P used to guide the ship through local waters) - English law would relieve the ship owners from liability (they were required to let the pilot take control of the ship; they did not get to choose the pilot) - Belgian law would still hold the ship owners liable - the case was brought in England - jurisdiction is not a problem Issues: - what is the test that should be used to determine whether an action can be brought in England for a foreign tort? - what country's law should be used to determine liability? Held: - the ship owners are not liable for the damage to the Norwegian ship Reasoning: - if the event is actionable both in England and in the place in which it occurred, it can be tried in England, using English law 11 - this result is based on precedent (English courts always apply their own law in this case), and perhaps on public policy (against English public policy to hold the ship owners liable) Phillips v. Eyre (1870 Exchequer Chamber - LR 6 QB 1) - Pl sues for false imprisonment & other injuries (beatings etc.) - Def was governor of Jamaica at the time - trying to put down a revolt - in quashing the revolt, 400 people killed (some thought it was harsh) - Pl's claim is based on events that happened during martial law - after martial law, Def had the Jamaican parliament pass an act of indemnity for actions taken during martial law Issues: - what is the test that should be used to determine whether an action can be brought in England for a foreign tort? - what country's law should be used to determine liability? Held: - Def is not liable due to the Jamaican act of indemnity Reasoning: - the court describes a two part test: 1. the wrong must have been actionable if committed in England 2. the wrong must not be justifiable by the law of the place where it was done - if this test is passed, English law will be applied - h/e - in this case, the Jamaican act of indemnity justified the Def's actions - the court felt that it must respect the law of a foreign sovereign - to do otherwise would be a violation of the comity of nations Comments: - the rule as laid out in The Halley would have poduced the same result in this case, but yet the court re-stated the test anyhow (from 'actionable' to 'justifiable' in the foreign jurisdiction) - why? - the test is stated as a 'general rule' - what could be the exceptions? The M. Moxham (1876 UK - court level unknown) - English ship damages a Spanish pier - not liable as per Spanish law, but liable as per English law - court follows Phillips v. Eyre, but seems to re-state the second part of the test somewhat: 'if by the law of the foreign country the act is lawful or is excusable...he will not be answerable here' Machado v. Fontes (1897 CA) - Pl suing for alleged libel - statement in a pamphlet in Brazil - in Brazil, there is no civil action for libel - only a criminal sanction - Def claims that a lack of civil remedy in Brazil should bar a civil action in England Issue: - does the lack of an equivalent civil sanction in Brazil bar the English action as per the rule in Phillips v. Eyre? Held: - the act is not completely innocent in Brazil, and thus it is actionable in England Reasoning: - Lopes L.J. looked at Philips v. Eyre, as well as The M. Moxham, and stated that: 'the act relied on must be one which is innocent in the country where it was committed' 12 - Rigby L.J. used similar language, but held that the innocence of the act in the foreign jurisdiction acted as a defence to the action in England Comments: - this was a majot qualification of the Philips v. Eyre test McElroy v. McAllister (1949 SC 110 - Scottish) - Pl's hubby killed in an accident, in England, in March of 1946 - Pl & the deceased lived in Scotland; Pl brought suit in Scotland in May of 1947 - England had a statute of limitations = 1 year; Scotland had no such limit - Scotland would award D$ called 'solatium' - $ to compensate for the loss of the person - ignored the person's earning potential - English system is similar to our own, where D$ are based on an estimate of pecuniary loss - a measure of the person's future earning potential Issue: what D$, if any, is the Pl entitled to? Held: - would be entitled to D$ calculated via English method, but barred from recovery due to the limitation period Reasoning: - the court used the Philips test - did not buy into the Fontes decision - the court held that the Philips test was met - but then applied English law (the law of the place where the accident occurred), as opposed to forum law - by English law - the action was statute barred, thus the Pl could not get any $ - the court treated the limitation as substantive law, b/c a right was being extinguished by the provision Comments: - it is interesting that the court treated both limitations and calculation of D$ as substantive law (to be decided by English law as opposed to forum law) - in Boys v. Chaplin (below) - calculation of D$ was considered procedural (by a couple of the Lords at least) - heads of D$ were substantive... - b-4 Tolofson, limitations legislation was generally considered procedural - thus the Pl was prob'ly hoping that forum law would apply wrt this (and only this) issue - the Pl would have probably also failed if she had sued in England, seeing as the limitation provision would likely have been considered procedural law... (See below wrt an 'Aside' by the Woo on 'Variables to consider in a lawsuit') McLean v. Pettigrew (1945 SCC) - Pl was a gratuitous passenger in Def's car - Pl, Def, & Def's wife all from Quebec, taking a trip to Ottawa - accident in Ontario (single car accident) - Def was charged & acquitted of a motor vehicle offence in Ontario - Pl brought suit in Quebec - suit would not succeed in Ontario - a guest statute that gave Def's a complete exemption from liability (i.e. 'shall not be liable' - even if gross negligence) Issue: what law will apply, and will the Pl recover any $ Held: law of Quebec applies, & Pl recovers D$ Reasoning: - court follows Philips and Fontes - looks to see if the accident in Ontario was 'completely innocent' as per Fontes (other part of the test passed) - even though the Def was acquitted in Ontario, the SCC says that he obviously wasn't driving with all due care & attention, else there would not have been an accident... 13 - the court also says that there were other provisions that the Def could have been charged under... - thus, the Def's actions were not 'completely innocent', and applying Quebec (forum) law, the Def was held liable Comments: - the court's reasoning in coming to the conclusion that the Def's actions were not innocent seem a bit much - see Tolofson where this case was overruled * note that the following 3 cases all stem from the same accident Kilberg v. Northeast Airlines (1961 NY CA) - NY resident bought ticket from Mass. airline - plane crashed - Mass. statute limited recovery for wrongful death to $15K - NY had no limit for wrongful death - in fact the state constitution prohibited limits Issue: what law should apply? Held: NY law applies - Pl get lots more $ Reasoning: - trial judge re-classed the case as a K claim (the airline failed in its end of the bargain, after all), and used NY law as the law w/ the closest relationship - appeal - overturned trial decision - not a K case, but a tort case - t/f use old U .S. rule (law of the place of the accident), which points to Mass. law - limit of $15K - further appeal - agreed that it was not a K case, and will use Mass. law except for the provision limiting the amount of the award, as it is repugnant to NY law Jensen v. Northeast Airlines (1961 NY CA) - similar facts as in Kilberg Issue: what law to apply? Held: apply NY law Reasoning: - the trial judge followed Kilberg, but on appeal, the court went back to vested rights (w/ a powerful dissent saying that the vested rights doctrine sucks) - the issue was re-heard in the appeal, where the dissent became the majority - NY law was applied as the proper law... Gore v. Northeast Airlines (1961 Maryland CA) - one difference from Kilberg & Jensen - Pl moved to Maryland, & brought suit there - trial judge applied Mass. law (limit D$ to $15K) - but appeal reversed, applying Maryland law, and awarding more $ * point of the above 3 cases is to show the cracks in the 'vested rights' doctrine Babcock v. Jackson (1963 NY CA) - Pl was a gratuitous passenger in Def's car - Pl, Def, & Def's wife all from NY, taking a trip to Ontario & back - accident in Ontario - still had their guest statute exempting liability Issue: shall the law of the place of the tort invariably govern the availability of relief for the tort, or shall the applicable choice of law rule also reflect a consideration of other factors? Held: NY law applied - Pl gets $ Reasoning: - the old rule (pace of the tort governs, based on the vested rights doctrine) was criticized for ignoring gov't interests as well as other policy considerations 14 - in this case, no one had an interest in having Ontario law applied - so - given the above considerations, Fuld J for the majority looked for alternatives to the current U.S. law - first looks at how the U.S. deals w/ K cases, then considers the use of gov't interests, connecting factors ('grouping of contacts') - Fuld J uses a combination of the above: - there is no interest being served by applying Ontarion law - h/e - there is a valid interest being served by applying NY law - protecting the parties' reasonable expectations, upholding the policy of holding a tortfeasor liable for his/her actions - also - almost all connections were w/ NY - Ontario merely provided a stage for the accident - the dissent (Van Voorhis J) stated that if the law is to be changed, this is not the case in which to change the law - a better case would be Kaufman v. American Youth Hostels, where all parties were connected to NY and Oregon was simply the stage for the accident (difference from this case???) - the dissent also described a situation ('the parade of horribles') where a driver could pick up multiple passengers, all from diff't jurisdictions w/ diff't rules about liability - would result in the use of diff't tests for diff't Pl's for the same accident - finally, the dissent was concerned that the majority's approach is a form of extra- territoriality (i.e. having NY law prevail over laws from other states) Comments: - the court did point out that all issues did not have to be decided by the law of the same jurisdiction - the law of the place of the accident should determine the standard of conduct of the driver (i.e. the rules of the road - do you drive on the left or right hand side of the road?) Tooker v. Lopez (1969 NY CA) - Marcia Lopez & Katherine Tooker - from NY, going to school in Michigan - Marcia borrowed her dad's car for a trip to Michigan - accident in Michigan - both women die - Katherine's father sues Marcia's father (as car owner) - in NY - no guest statute; in Michigan - guest statute; had to prove gross negligence - suit in NY - court used NY law, based on significant contacts * this case could 'haunt' La Forest's decision in Tolofson, in the Woo's opinion Neumeier v. Kuehner (1972 NY CA) - NY driver picked up an Ontario resident for a trip to another location in Ontario - accident in Ontario (guest statute) - both died - action brought in NY (due to Ontario's guest statute) Issue: which law should apply? Held: Ontario law applies - Pl is S.O.L. Reasoning: - the court reviewed the case law, and considered a case (Tooker - see above) in which the following principle was suggested: 'when the passenger & the driver are domiciled in different states...the applicable rule of decision will [normally] be that of the state where the accident occurred, but not if it can be shown that displacing that normally applicable rule will advance the relevant substantive law purposes w/out impairing the smooth working of the multi-state system or producing great uncertainty for litigants' - the court stated that ignoring the Ontario guest statute would not advance NY's 'substantive law purposes', but it would impair Ontario's law by reducing its effectiveness 15 - in addition, ignoring Ontario law in this case would encourage forum shopping (after all, it is an Ontario Pl trying to invoke NY law!) - there are connections with both places - Ontario is not simply the stage of the accident (the Pl resided there) - thus, there is not enough evidence in this case to warrant a departure from the law of the place of the accident Comments: - similar reasoning was used in Tolofson (perhaps even more restrictive wrt the circumstances in which the court would depart from the law of the place of the accident) Clark v. Clark (1966 NH SC) - Pl is the wife of the Def - both from NH (New Hampshire) - trip from one point in NH to another point in NH - went thru Vermont, had an accident there - Vermont had a guest statute - had to prove gross negligence - suit brought in NH (no guest statute) Held: - the court used NH law - said the old rule is 'almost completely discredited' (I wonder if La Forest knows this...?) - the court noted that some courts rely on re-characterization of the claim (i.e. from tort to K) to achieve the desired result - the court then listed what it felt were the relevant choice-influencing considerations: - predictability of results - maintenance of reasonable orderliness & goodwill between states - simplification of the judicial task (not heavily weighted) - advancement of your own jurisdiction's gov't interests - a general preference for 'the sounder law' - no matter whose it is - the court then applied these considerations to the context of an automobile accident, and determined that gov't interests are the major determining factor (i.e. predictability is irrelevant, as accidents are never planned) - thus, based on gov't interest, this case would call for the application of NH law - dealing exclusively w/ NH parties, and there are no Vermont interests that would be adversely affected if their statute was ignored - court also makes a parting shot at guest statutes, basically saying they are out of date & no longer good law (t/f easier to ignore) Class example from the Woo - from a former student of his: - family law matter - man & woman co-habitated in Alberta, then in B.C. - split in B.C. - had a kid at this point - she then went to Ontario (w/ the kid) - after 2 1/2 yrs, she got an interim maintenance & child support order in Ontario - she wants to bring the order to B.C. - procedure is such that a court will hold a hearing wrt the order, allowing the hubby a chance to tell his side (i.e. why he should not have to pay, or pay so much) - court will then affirm or make changes to the order as it sees fit, & make it binding in B.C. - he wants to have the order thrown out of the B.C. court - B.C. has a 2 year limitation period wrt these matters (Ontario had a 3 year limit) Question: is the limitation period substantive or procedural? - depends on the scope of Tolofson - did the case change the nature of all limitation provisions, or just those concerned w/ motor vehicle maters and/or tort matters? 16 - Tolofson suggests that all limitation provisions are now substantive - h/e - this can create problems - eg. if choice of law in the area of family law is forum law, it would enable ex-spouses to forum-shop... - this see ms to turn Tolofson on its head somewhat... * in this case, the court was considering the case when Tolofson came down, and the court subsequently held that the Ontario limitation applied (t/f it was substantive) * also - why should Ontario law be used in this matter - they never lived there! Class example #2: - consider a K that has an explicit choice of law clause, choosing state X to govern the contract - state X has a limitation period of 5 years - if an action is brought in B.C. (limitation period of 6 yrs) - may be screwed due to Tolofson Gronlund v. Hansen (1968 BC) - boating accident off B.C. coast - in international waters - Pl sues Def in B.C. for negligent operation of a boat - argues Philips v. Eyre - trial court - holds for the Pl, based on Philips - the court also cites w/ approval the decision of Denning in Boys v. Chaplin (proper law of the tort) - court states that B.C. law was also the proper law - appeal court - affirms trial decision based on Philips, but does not mention Boys v. Chaplin... La Van v. Danyluk & Danyluk (1970 BC) - Pl pushing a car (out of gas) on a freeway in Washington (at night) - Pl struck by car driven by the Def - both Pl & Def from B.C. - Def admitted to speeding (5 mph) - in Washington - contributory negligence was a bar to recovery (Pl was partially at fault - was blocking the signal lights of the car being pushed...) - so - suit in B.C. - court bound to follow McLean v. Pettigrew, & thus the Pl won (speeding in Washington, t/f Def. not completely innocent) - h/e - consider a 'double actionability' test as in Boys v. Chaplin - would fail, as there would not be a successful action in Washington - court could have followed a Babcock v. Jackson approach (similar facts) - but did not have to in order to achieve the same result... Boys v. Chaplin (1968 - CA - Denning; 1969 HL) - car accident in Malta, Pl & Def from England - per Maltese law, no $ for pain & suffering - t/f would get £53 - per English law - would get $ for pain & suffering - t/f would get £2250 Issue: which law should be applied? How to calc damages (D$)? Held: use English law, and use it to calc D$ as well Reasoning (CA): - Denning used the proper law of the tort - everything pointed to English law, so this is the proper law - the proper law should also be used to determine the heads of D$ as well as to measure D$ - Upjohn rejected the proper law doctrine, but agreed in the result w/ Denning by using the Philips v. Eyre test 17 - concluded that the measurement of D$ was a matter of procedure, and thus should be determined by the law of the forum (England) - Diplock - dissent - favoured the application of the law of the place of the accident (the lex loci delicti - Malta) - p.s. I hate Latin... Reasoning (HL): - Lord Hodson - normally, the applicable law was the lex loci delicti, but wrt the calculation of D$, the law w/ the closest connection to the facts should be used (t/f proper law for D$ - England) - also - overruled Machado v. Fontes, & deemed the Philips v. Eyre test to be a 'double actionability' test - Lord Wilberforce - used the proper law of the tort, also embracing the gov't interest analysis approach - also - overruled Machado v. Fontes, & deemed the Philips v. Eyre test to be a 'double actionability' test - Lord Guest - beleived that the proper test was 'double actionability' - i.e. actionable both in the forum and by the lex loci delicti - overruled Fontes - Lord Donovan - applied Philips v. Eyre (as it was - no change to actionable) - Lord Pearson - a claim for D$ for pain & suffering was a question of substantive law governed by the law of the forum Summary of HL: - Proper Law 2 for, 3 against Proper Law - not the law! - Fontes 2 for, 3 against Fontes is toast! - 'double actionability' 3 for, 2 against 'double actionability' is the rule! - measurement of D$ 4 say substantive meas. of D$ is substantive! Comments: - most commentators have agreed that this case is a bit of a mess - it is extremely difficult to come out w/ a clear ratio - h/e - the generally accepted summary of the result is contained in Rule 205 of the text Dicey & Morris on the Conflict of Laws (11th ed. 1987): 205(1) As a general rule, an act done in a foreign country is a tort and actionable as such in England; only if it is both (a) actionable as a tort according to English law, or in other words is an act which, if done in England, would be a tort; and (b) actionable according to the law of the foreign country where it was done. (2) But a particular issue between the parties may be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrence and the parties. THE TIDE TURNS IN CANADA... - w/ the introduction of 'no-fault' insurance in Quebec (1978?), a number of cases arose where plaintiffs tried to get around the no-fault insurance scheme - the scheme basically gave jurisdiction to a gov't agency (the 'Regie') for personal injuries resulting from auto accidents - upon an accident & injury, the injured person would claim from the Regie, and the claimant would be entitled to an amount based on policy guidelines - the claimant would be prohibited from pursuing an action in the civil courts - thus, many claimants tried to bypass the system via suits filed in other provinces - began where all parties were from Ontario (outside Quebec), but later cases had some people from Quebec & some people from outside... 18 Going v. Reid Bros. Motor Sales Ltd. (1982 Ont HC) - accident in Quebec; all Pl's were from Ontario, the driver of the Def vehicle was from Quebec, but was employed by an Ontario company (t/f the driver was basically irrelevant as the Pl's go after the employer) - suit brought in Ontario for D$ resulting from personal injury Issue: Can the Ontario Pl's maintain an action in Ontario where the accident happened in Quebec, and the insurance scheme explicitly prohibits civil actions for personal injury? Held: The Ontario court has jurisdiction, and Ontario law is applicable - the Pl's win Reasoning: - the court has jurisdiction (parties from Ontario), and there is no real reason to decline jurisdiction (forum non conveniens) - wrt choice of law, the court states that it is bound by McLean v. Pettigrew: - the wrong would be actionable if it had occurred in Ontario - the wrong was not completely innocent in Quebec (the driver of the Def vehicle had clearly drifted into the other lane - t/f guilty of negligence, driving offences, etc.) - thus, the test is passed, and Ontario law is applied - the court stated that it preferred the test from Boys v. Chaplin (double actionability), but was bound to follow McLean - if double actionability were the test, the Pl's would have been S.O.L. in Ontario, as the wrong was not actionable in Quebec - h/e - some argument could be made that Quebec still permitted civil suits wrt damages to vehicles; thus the wrong was 'actionable' in some respect Lewis v. Leigh et al. (1986 Ont CA) - this was actually 3 cases - all traffic accidents in Quebec, no one from Quebec - suits brought in Ontario to avoid Quebec's no-fault insurance scheme Issue: As above - can the Pl's maintain an action in Ontario where the accidents happened in Quebec, and the insurance scheme explicitly prohibits civil actions for personal injury? Held: The Ontario court has jurisdiction, and Ontario law is applicable - the Pl's win Reasoning: - again, the court stated that it was bound by McLean v. Pettigrew, although the court did discuss the English approach in Boys v. Chaplin (double actionability) and the new U.S. approach (proper law) - using McLean v. Pettigrew, the court held for the Pl's in the actions Comments: - the court in this case (and above, in Going) seem to be inviting review by the SCC Ang v. Trach (1986 Ont. HC) - Ontario residents, car accident in Quebec w/ Quebec Def (QPP officer) - Pl's started suit in Ontario, served the Def in Quebec via ex juris service Issue: Was the service valid? (still basically a question of whether the action can be maintained in Ontario) Held: The service was valid - again bound by McLean v. Pettigrew Grimes v. Cloutier (1989 Ont CA) - auto accident in Quebec - Pl from Ontario - Def from Quebec Issue: As above - should the Ontario courts apply their own law? Held: No - Quebec law must apply to the Quebec Def Reasoning: - trial level court simply applied McLean & held for the Pl 19 - h/e - the ct of appeal did not feel comfortable w/ this - it was basically equivalent to an 'end run' around the Quebec legislative scheme - also - the Def's reasonable expectations would be that as a resident of Quebec, they would be subject to the law of Quebec, not Ontario, for a wrong that they had committed - so - the ct of appeal limited McLean to its facts (i.e. all parties from a jurisdiction diff't from that of the place of the accident), and applied Dicey's formulation of the rule in Boys v. Chaplin - given this rule, the wrong would not be actionable in Quebec, so the Pl's action failed Prefontaine v. Frizzle (1990 Ont CA) - this decision actually dealt w/ 2 cases, which had the same fact scenarios - the residences of the parties to these actions are opposite from that in Grimes: the Pl is from Quebec, the Def is from Ont. (the auto accident occurred in Quebec) - the Pl's had already received $ from the Regie in Quebec for their injuries; they come to Ontario to 'top up' their awards Issue: As above - should Ontario apply its law to this case? Held: No - Quebec law applies Reasoning: - the court felt that applying Ontario law would be contrary to the reasonable expectations of the parties (especially the Quebec Pl's) - also - the Pl's had already taken the benefits of the Quebec scheme, and thus cannot avoid the burdens (i.e. the prohibition on civil actions) - finally, the court was concerned that an application of Ontario law in this case would lead to forum shopping (of which this is a blatant example) Comments: - a similar approach as was taken by the U.S. court in Neumeier (above) Gagnon (Lucas) v. Gagnon (1993 Ont CA) - Mrs. G brought suit (on her own behalf & on behalf of her 2 children) against her hubby and Mr. Lavoie for personal injuries suffered in an auto accident in Quebec (Mr. G and Mr. L were the respective drivers in the accident) - the Gagnon's were from Ontario, but Mr. L was from Quebec - Mr. G brought a cross-claim vs. Mr. L for the accident - following the decision in Grimes, Mrs. G dropped her claim against Mr. L, but Mr. G maintained the cross-claim Issue: Can the Pl maintain the main action? What bout the cross-claim? Held: The main action may proceed, but the cross claim is dead Reasoning: - wrt the main action - McLean applies, b/c all residents are from Ontario - wrt the cross claim - Grimes applies, and t/f the action fails Tolofson v. Jensen (1994 SCC) - this case also decided the appeal of Gagnon (Lucas) v. Gagnon - the facts in Tolofson were: - the Pl was injured in an auto accident in Saskatchewan - the Pl's father was driving one car, the Def Jensen was driving the other car - the Tolofson's were from B.C., the Def from Sask. - Sask. law had a 'guest statute' (did not permit a gratuitous passeger to recover, absent wanton misconduct by the driver), as well as an (expired) limitation period wrt such claims Issue: 1. What law governs a tort? 20 2. Are statues of limitations substantive law, or procedural? Held: 1. The tort is governed by the law of the place of the tort - the lex loci delicti 2. Limitations provisions are substantive in nature, and are thus the limitations that exist in the jurisdiction that governs a given action will apply to the action. Reasoning: (La Forest for the majority) - La Forest (LF) begins by looking at the history of the choice of law in tort: - he looks at Philips v. Eyre, and focuses on one part of the judgment that had basically been ignored by most other courts: 'the civil liability arising out of a wrong derives its birth from the law of the place, and its character is determined by that law' (emphasis added by LF) - from the above quote, LF concludes that the substantive law of a tort is governed by the law of the place where the wrong has been committed - this flies in the face of Philips v. Eyre itself, as well as most (all?) cases that have followed it - the approach in Philips was to apply the two part test (see the case itself for particulars) and then, if the test was passed, to apply forum law as the substantive law - in addition, LF states that the first part of the two part test (actionability in the forum's jurisdiction) is really a test for jurisdiction, whereas the second part of the test (unjustifiable in the place where the wrong occurred) is a choice of law rule - he then proceeds through subsequent cases, criticizing Machado v. Fontes (where Philips was 'read in a rather wooden manner') for intruding into Brazilian affairs contrary to the principles of comity, discussing Boys v. Chaplin, and finally coming to McLean v. Pettigrew - LF criticized McLean, in particular looking at the Quebec auto accident cases (see above) - believes that the rule in McLean encourages forum shopping, and may present constitutional difficulties (no examples given) - thus, LF determines that the law needs to be changed, and overrules McLean in Canada - LF's starting point in re-formulating the law is to consider the 'underlying reality' in which legal rules operate - in particular, a critical 'reality' to keep in mind is the territorial limits of law under the international legal order - basically, a state has the general right to make and apply laws w/in its jurisdiction - and absent a breach of some overriding norm, other states as a matter of 'comity' will ordinarily respect this right & will not interfere - from this general principle, LF concluded that 'it seems axiomatic to me that, at least as a general rule, the law to be applied in torts is the law of the place where the activity occurred, i.e. the lex loci delicti' - he states that this rule has the advantages of certainty, ease of application and predictability, and would seem to meet normal expectations (that a person will be governed by the place in which he/she currently is) - he acknowledges that some have criticized the lex loci rule as unfair in some situation, but states that order must come before fairness - LF suggests that many of the reasons for applying forum law in the past (the superiority of English law, the difficulty of establishing and/or proving foreign law in the forum court) are no longer relevant in the modern world - he also states that 'the practice of most states until recently favoured exclusive reference to the lex loci' - looking at (old) U.S. and Australian cases - LF stated that there may be exceptions to this general rule, but then severely restricts the posibility of such exceptions within Canada 21 - in Canada, lex loci delicti would apply even where the facts are similar to those in Babcock (i.e. where all parties are from the same province, and the tort was commited in another province) - h/e, LF would consider an exception in cases involving other nations where the facts are similar to Babcock (i.e. as in a reverse of Babcock, for instance, where Canadians are involved in an accident in the U.S.) - basically, order and territorial sovereignty overrule fairness, especially w/in Canada Comments: - LF's law clerks may not have done the best job wrt feeding him recent U.S. case law - LF seems to think that the lex loci delicti rule is still going strong down there (it is still used, but widely being criticized & overruled) - his focus on territoriality & comity may be due to a perceived need to address a situation where Ontario courts have been intervening in, and detracting from, the legislative scheme of Quebec - LF's approach here will solve this problem, but will introduce unfairness in some cases (Babcock type situations) - the exeption referred to by LF wrt international cases may apply to a case such as La Van v. Danyluk & Danyluk (B.C. residents involved in an accident in Washington state - see above) FINALLY - VARIABLES TO CONSIDER WHEN ANALYZING A LAWSUIT (*): 1. some jurisdictions retain the CoLaw position that contributory negligence is a bar to recovery for a Pl 2. some jurisdictions (including Canada) have judicial/legislative guidelines for D$ 3. some jurisdictions have 'guest statutes' (drivers have limited liability to guests) 4. some jurisdictions may have immunities that prohibit certain actions (i.e. at CoLaw, you cannot sue your spouse) 5. some jurisdictions impose strict liability on manufacturers 6. some jurisdictions have Crown immunity (total or partial) 7. seperate jurisdictions will have different rules wrt the ability to exempt yourself from liability * the Woo mentioned these during the Torts section, but I did not want to break up the section... 22