‘THE NEW CHOICE OF LAW RULES IN TORTS ‘THE AFTERMATH OF TOLOFSON V. JENSEN; LUCAS V. GAGNON By John Swan’ Les rcente arts Tolefzn v.Jenten et Lucas v. Gagnon oo eis es problems de confit de lois a Pavan sete du droit canadien En doit canadien, I structure de analyse du confit de Toi exige que, losque'on et cntomé& une question deli tran, celles doit re qual {ge commme une question de substance ou de prosidue, Dan le premier ea, une qulifstion plus approfendi et requise quant la cago de i, stir si sagt dune question dena {ore conractulle ou delcrlie. Dans le deoiéme cas, lx ort, a oi fr, «appigue aus Tolofion(Gagron la Cour supréme a dicidé non seulement que les questions de prescrip tion sont des question de wbstance et non de procure, mst dgalement que a régle de coalit applicable a responsabilité dlc ot ele de la fe oct deli, c'est ice que cet ok 4o ieu of a fate a commise qu dermine es dose les cblgations des partis. Late bord les aspects del pedo coli utlisde dans Tolfsor™Gagon sins que a forme ea gl, la expat josie son application et la structure général de analyse cont. Le ‘motif de a cour pour le choix de arg de confit aint asp, la crit ais que Ie ‘respect des its de compitoceprovineiales. On pretend que adoption de eater ei in- stone c qu'elle a i sive au Canada, ni aux Fats-Unis.L'aritontarien Hanlon, ‘Somesty monte quel régle de alex et delet nengeade pas de etude parce que dans les arts oa Jer Jo! erraine une injustice, Ie juge garde La dacrtion applique Ia efor. auteur soutien que ben que ls ite et raonnaments de anlan ne piste tings de ceux de TolofiontGagron, ks deux arts sot acvis des resaats opps ‘tant dad Minced gn par analyse dea structre des cous de os, des spots @évitemento ont et adopts pa las cous anglais, angie, canadienne tamales aia {darter aplication de ol dering pa large deco, Le pre deposiif examin & ‘48 austen de la quaifction de Is question de sate que, par example elle sit exminge ‘comme une question de nau contractual ou do rit dea famille enon comm une ston 4e nature dlctuelle. La qualiffeation dela question est partclirement important parce que ‘chaque qustin est oumise & la mémeréple. Un aute dest tls stl done du renvok loge das analyse du coli, 1s rgles o confit contenes dar Ia oi range. I et ‘kil de rconelierTolofton Gagnon avec aires ats 6 a Cour speéme es que Mor {quar Moran e. Ameo, pose nel développement clan equel la Cor supe ds Car ‘da adroit de regard sur leslie ayant un ment ranger afin de sassirer que les Valeurs ‘canatimes nin! epésentes, L'aueur exprime cavemen vor méeontenteent ce jt out ‘en spérant un eviemet rapide de a jurisrodece “The recent cass of Plofon ¥. Jensen snd Lucat v. Gagnon ave again bog he problem of the Confit of Laws tothe forefont of Canadian law. The soctre of Canadian conic of lea analysis dictates tat whe there isan issue of ferign In, it must be characteried as either @ sulstative oe prosedral qustion Inthe former ease, further characterization into eaogory of Inwierequized, eg whether it ira coneacts ora torts question. In the ater cas, es foro the lw of the forum applies. In Tolfion Gagnon, the Supreme Court desided nt aly that «questions of itton period are questions of substance rather than proedure, but also that the choice of law rule in tons is that of lr Jot dain, ie, the law of the place af the vane dete ‘ine the rights and obligations ofthe pais. The ail adresses the choice af Ia apes of ‘Lawyer at Stkeman Eliot; Profusr at th Faculyof Law of McGill University, Montes,48 (1999) 12.2 Revue québécoise de droit international ‘he Tolfton Gagnon dssion and the form ofthe us the ability to justify its appiaion an ‘he general struc of confit analy. The ou eons forthe choke of aw rule were sm pliety and cei, and respecting the limits on provincial powers. Iti argued thatthe adoption ofthe role was unexpected, and it was fllowed nether in Canada, nein the US. The Ontario case of Hanlanv. Sernes demonstates thatthe le cet delet rule wil no peovide etait because in eases whore er Lat leu o injustice, the ade as drton to apply the Lx foi ‘The author micas that while the Tats and reasons of Honfansamnot be dssinguised fom Toloson‘Gagnon, the two cases came to opposite est ‘Given the uncertainty created by the structure of collit analysis, “escape devier™ have been ‘lopted by English, French, Canadian and American cout o avoid the aplication of the aww “eleed bythe choice of lw rile, The fit device discuss wast adjust the characterization ofthe question, ota fr example, it would be cxaned ata conrat family Ine quetion ratherthn ators one. The chracterizaion ofthe quetion i partiulrty important Beste eve- "question must be answered ty the same chee, Another vie isthe use ofthe doctrine of ‘eavei hich includes in the confit analysis, the choice of lw rule ofthe foreign lw. To lefiontGagnon i hard to rosnale with eter SCC eases such at Morguard, Moran and Amoham, 38th fomee denies the development that the SCC can oversee ligation ith Teen ‘lemon ed ensure that Canad values are represented, The author leary indicates tht es ‘unhappy with this situation and that he hopes fra quick change inthe Canadian eas la.The Aftermath of Tolofson v. Jensen; Lucas v. Gagnon 0 1. Introduction This paper is principally confined to the discussion of choice of law rules, specifically the choice of aw rule in tors derived from the decision ofthe Supreme Court ‘of Canada in Tolofson v. Jensen; Lucas (Litigation Guardkan of v. Gagnon. I shall deal only briefly with issues of jurisdiction for, though they are intimately connected with issues of choice of law, they raise other issues that transcend te scope ofthis paper. When a lawyer faces a problem of the Conflict of Laws — specifically a choice of aw problem, ic, what law to apply to a problem — he or she has to stop thinking in ways that are natural. The lawyer has, instead, to adopt a mode of thinking that is foreign to everything that he or she has always believed was important, can put the matter in an extreme form by saying that the lawyer has got to put out of his or her mind all that the Enlightenment stood for, the idea that law is about Reason, what is more important, all that Canadian courts have done in every other area of the law in “making sense” of it “Making sense” of the law means being concemed about purposes, about fairness and about the relation between values and results, ‘The formal structure of the Conflict of Laws makes any of these concems invalid. Table 1 on the following page isan outline ofthe structure that must be followed in every case tat is put int the category of “conflict of as. One way of defining such a case isto say that conflicts cases are those with relevant geographically complex facts, In other words, the pleadings inthe action make allegations thatthe law or a legal event in some other place is relevant tothe dispute. The allegation could be that a party was born or died in a foreign country, that a contract was made or was to be performed in a foreign county, ie, a foreign state or another province, or that, for example, a motor-vehicle accident happened in a foreign country. © 199413 SCR. 1072, 195) 1 WHR. 69,120 DLR (4) 299. jdt ws gen in 9 ce (oiofon) foam Baish Columbia and one (Gagron) fm Ontario, I sll rf to the case at “Polen Gagnon ort Ge actions early Tolfon ce Gagnon. Alrefenses il betothe SCR.50 (1999) 12.2 Revue québécoise de droit international ‘Tete STRUCTURE OF THE ANALYSIS OF A CONFLICTS QUESTION (issue) [exusacmmvation] [Tearcory ] [aioceoraw_] “Proper Law ofthe 1] contracts [7] Contact” TORTS Lex loc delicti PROPERTY Lex situs SUBSTANCE FAMILY Lex domici (QUESTION Lex domicit of the SUCCESSION PROCEDURE LesforiThe Aftermath of Tolofson v. Jensen; Lucas v. Gagnon 31 Table 1 illustrates the folowing process: The pleadings in the ation raise an “issn” of foreign law, what is identified in the Table as the “Question”. t might be the efendant’s argument that the plant brought his action out of time because under the Jaw of say, Saskatchewan, the action should have been brought within one year, the issue ‘might be the plaitif’s argument that, under the law of some other jurisdiction, she has ‘more extensive rights against the defendant and, for example, isnot to be restricted by the ‘Ontario Insurance Act, the issue could be any one ofa huge number of similar arguments. ‘The “issue” raised by the pleadings then has to be characterized: is ita matter of “substance” or “procedure”? All lawyers characterize things when they have to decide ‘whether to Took in a contracts text oF a forts text, or in one volume of the Canadian Abridgement rather than another to find an answer to a client's problem. Generally ‘speaking, the process of characterization is tentative : not much tums on the result and if ‘the contracts text does not provide an answer, the torts one might. In conflicts, the process is at the heart of choice of law. Tolofson, for example, decided that a question whether a limitation period applied was fo be decided as a mater of substance rater than, as had ‘been almost universally accepted until then, as a matter of procedure”, Important issues lie Ihidden inthe process of characterization, though they are not often examined i aright to discovery of a panicular witness a matter of substance or procedure? What should be the efftct of, for example, a foreign blocking statute? Claims to interest and damages ‘may also raise the question of characterization : is the right to pre-judgment interest or ‘Punitive or exemplary damages aright determined by the /ex fori or by the law governing the substantive issues? The conclusion that a matter is one of procedure leads automatically 10 the application of the lex fori, the law of the court hearing the matter. This conclusion excludes any reference to foreign law; the lex fori wil be applied regardless of whether the foreign law does or does not purport to apply tothe mater. If the mater is not one of procedure, but is one of substance, then a second process of characterization has to be undertaken. This process, what I have called the location toa “Category”, requires the cour to say thatthe matter is one of “ton” and not “contract” or “propery”. T shall retum to this issue later but, for the moment, tis only {important to note that the need to decide what label applies tothe issue is required by the choice of law process : one cannot move through the steps necessary to reach the conclusion unless a decision on the kindof action is made. Once the category ofthe law has been seleced, the actual choice of Iaw rule is identified. There are, of course, other categories than those I have listed and the “Property” category is divided into two ‘movable and immovable property. I have sated the rule for immovable propery. * var mate proces” because he operation intation pri bare he tion alan pocetings onthe in oughta no elton te undying ate oF aco, Cena hs a blocking ait, the Foreign Exratrntoral Measres Act, RSC. 1985, c P29, and ober counts, the United Kingdom, France and Aucai, have sna giao, Such legion i gad 10 fsa at Canad opr exosive Arian att aon and ow leit ke the eine Darton Aes be Cuba Liberty and Democrat Solider of 1996, USCS. st 602191,32 (1999) 12.2 Revue québécoise de droit international Once the category of the law is decided, then the appropriate choice of law rule is identified. There may be a dispute about the form or content of the rule, Tolof- son/Gagnon radically changed the law regarding the choice of law rule for torts in Canada — but those disputes are, so to speak, inside or within the structure; they do not challenge it. IL Alternative Structures for Analysis ‘Not all cases with geographically complex facts are treated as conflicts cases, ic, only some ofthe cases that might be subjected to conflicts analysis are. There are to reasons for this. The ists that there are alternative ways to deal with them, Cases in ‘which the constintional competence of the provincial legsiature or even a provincial court are challenged may, for example, be dealt with under the Constittion ct, 1867+ “The Supreme Court of Canada has held that theres an underlying constitutional element {mall interprovincial confi in that a provincial court may be disabled or unjustified in applying its aw because todo so would violate the constitutional imitations on its power. ‘This isan important issu that was given cursory examination in TolofionGagnon®. The issue was more fully examined in De Savoye v. Morguard Investments Ltd.® and Hunt’. 1 shall argue that the constitutional analysis in Tolofson/Gagnon didnot deal well withthe issues that had to be decided. ‘The second reason that a case with geographically complex facts may not be dealt with as a conflicts case is harder to pin down, A good example of such a case is, Québec (Sa Majesté du Chef) v. Ontario Securities Commission. The issue in that case ‘was the right of the Ontario Securities Commission to impose on the Government of Quebec an obligation to make a follow-up offer to minority shareholders after the Quebec Government had bought control of Asbestos Corporation Limited from General Dynamics, The Court of Appeal, in a judgment by McKinlay J.A., recognized the conflict © see eg. Hum v. PEN ple, [193] 4 SCR 289, [1994] 1 WW. 129, 109 DLR (4th 16 erie Hunt Therehsion of nic and consul law was explored inJ. Swan, «The Canaan Costin, Felis dhe Cons of Lvs (1985) 63 Can Bar Re, 27, Soa, P- Hogs, Constnionl Law of Canada, loose leafed, Secon 13.5. © 1990]38¢R 1077, (1991) 2 WWWR 217, 16 DILR (48) 286 Pointe Morguar. Morguard bit ca Aheeatereae of Moran. Pyle Natal Canada) Li, {1975} SCR 393, 1974] 2 W.WR. 58,48 DLR. (G3) 239 [oan Morar), ogee, tee two cues fied the Sopeme Cat sound bai fra radial ‘ering of nics tuner, tuned dovnin Tolfsontagror Supranae 4 (0982, 10 OR (a $77, 97 DLR. (Ai) 144, (ub nom. Re The Queen in right of Quebec and Ontario ‘Securites Commision eal) (eres Asbestos Caze cid 9 OR, The Ontario Sets Commision Tpseinfler OSC) sea toe vey ahcant o have tig withthe Quebec Govern. Afr judge of {he Court of Appeal, th cae vas sr back othe Crmsion tobe detained on is eis. The Conmises ref o make th order od a cullage by he minority shaban Commie for the Equal Troatment (of Abstr Minty Shareholders [pcater ETN v. Ontario Secures Commisaon, (199) 04. No. 38, jdgnent delivered 18 February, 1999, (CA, Doha, Lakin and Rosebery 1/4) he Court of Appeal ‘pho gi of he Ontario Sse Consent reise o make anode gi QuesThe Aftermath of Tolofson v. Jensen; Lucas v. Gagnon 33 between the rules of the OSC and the decision of Quebec not to make the payment, McKinlay J.A. did not analyse the case as a conflicts case; she did not adopt the structure that I have outlined. Instead, she said There can be no doubt that both [provincial] objectives represent “compelling governmental interests”. The question posed by the appellants [the Quebec Government's] argument is, “Which isthe mere compelling?” For Quebec to comply with the provisions ofthe Ontario Act, the cost to it, we are told, would ‘be approximately $100,000,000, But that $100,000,000 is sved at the expense of persons who have invested in shares trading on Ontario markets, trusting ‘bat all who use those markets will trade in accordance with the rules. see no ‘way the courts can assist in advancing interprovineial harmoay in situation such as this, sine there is no objective way of choosing which governmental interest is more compelling. However, I se no reason why residents of one province should suller financial loss for the purpose of benefiting ancther province in advancing its teptimate int McKinlay J.A. felt able to talk like this— itis, if you like, pure common sense — and to avoid the formal structure of conflicts analysis because there was (and is) no choice of law rule associated with stock exchanges, follow-up offers, minority shareholder rights or any of the other categories into which the issue, the lability of Quebec, could have been put ‘The judgment of McKinlay J.A. also illustrates that, once the court has decided that both provincial laws are valid under the Constitution Act, 1867, the court has no constitutional basis for choosing or preferring one over the other, An Ontario court, like the Court of Appeal, is justified in making its decision based solely on the fact that itis an Ontario court, committed to forwarding Ontario values as represented by Ontario legislation, This decision says nothing about the power or justification of the Quebec court in coming to a different conclusion on exactly the same basis. Should the matter come before the Supreme Court on appeal from one or even both courts, that court t00 has no constitutional basi for saying that one provincial law can trump the other : the court may have no choice but to dismiss both appeals!” ‘An alternative method, though based explicitly on a “coniicts” analysis, is illustrated by the judgment of Morden A.C.5.O. in Grimes v. Cloutier. In that case an (Ontario plaintiff aimed against a Quebec defendant for damages for injuries caused in a rotor vehicle accident that occurred in Quebec. The rule then applied by Canadian ‘cours, the rule of Philips v. Eyre'*, would have made it simple to have applied Ontario ° Asbestos Coe, sxprante9 at $9091. ™ Soe 5. Swan, supra nt 5, nd J Sven, «Feds and he Conf of Las: The Curis Poston of th ‘Spree Cart Casas (1995) 46 South Carina Law Review 923 1 4989), 69 OR (2 641,61 DLR (Ati) 505,(CA) » (gm, 6QB1s4 (1999) 12.2 Revue québécoise de droit international Jaw without much conoem for the position of the Quebec defendant!*. Morden A.C... adopted an apprcach tht was bth careful and very creative. He said Tn these circumstances, to ignore the Quebec legislation, which relieves the de- fendants of civil lability, would be unfair to the appellants and, also, an “offcious intermeddling with the legal concems ofa sister province”. Han- cock, Sudies in Modem Choice of Law: Torts, Insurance, Land Titles (1984), pls, Here we see all that we need to deal sensibly and constructively with conflicts problems. The meaning of “offcious intermeddling” must either be identical to or closely reflect the kind of constitutional factors that underlie a case like Moran. There is no need for any talk of a choice of law rule or of any inquiry into anything more exotic than considerations of constitutional propriety, fairness to the defendant and the realization that someone who comes to Quebec may have to take the law as he or she finds it I The Decision in Tolofson/Gagnon Tolofson/Gagnon not only decided that the question wisether a linitation period is a matter of substance or procedure is to be answered by holding that it is the former, but also thatthe choice of law rule in tors is thatthe dex foci dec, the law of the place of the wrong, governs the parties’ rights and obligations. There were two issues in Tolofson the applicable imitation period and the question whether the plaintiff, as a gratuitous passenger in his father’s car, could sue his father without having to prove “wilful or ‘wanton misconduct”. In Gagrion the issue was the applicability ofthe Quebec Automobile Insurance Act” in a case where a wife and children were injured by the negligence of her ‘husband and their father. “The law that was held to govern each action was that ofthe lex loci delict, in ‘other words, whether the son could sue his father or the wife her husband, was to be decided by the law of the place where the accident took place. The rule was justified on a Te Howse of Lr fad ane ax ih, even a it chime 1 these applcaon of Philip . He, in ‘Boys Chapin {19TH} 386 (1969]2 AER. 1085. “Two css were deity th Court of Appeal at th same tins, Grime. Clout and its companion se, Preonaine Eat Fz, Che v. Robinson (1990), 71 O (2) 385, 65 DLR. (th) 273. Bah ofr ‘sree exarple of ow he sul pond o change facts and ow changed facts can edt railly ‘ange rete at een och inthe jiiaton of any rel Ihave commend an hse and eater ‘cons 1 Swan The Caadian Cotton Fees athe Cadi of Lavy 1985) 63 Can Bar Rev. 2M a 27%; J Swan, «Chose of Law in Tons: A Niner Cary Approach to Twa (1989) 10 Advooaas’ Q 57; J Swan, Chis of Lin Tet - A Rena: Gagan . Gagnon, Piliams v. Osama (1995) 15 Advocates Q. 356; and I. Swan, Cont of Lave—Torts— Automobile Aci in Quibeo— ‘ian in Ontario Parag Si or Pder's Bo Grins v Clete, Prarie v. Prez (1990) 9 (Can Bs Rev. $38 * LQ 1977,6.65503,4The Aftermath of Tolofson v. Jensen; Lueas v. Gagnon 55 ‘amber of grounds : (For convenience I shall adopt the summary made by Cumming J. in Burst. Leimer') ‘Under the rules of privat international law the applicable substantive law is ronmally the place where the tort arises or lex lot dei. This isthe place ‘where the defining activity occured that gives rise tothe claim ofa civil wrong in tor” This approach is a practical ane for several easons, nciuding that t prevents forum shopping and creates certainty in the law. AS well, this ap- roach accords wih the reasonable expectations ofthe persons involved It also responds fo the territorial principle underying both the international legal or- der and the federal regime in Canada!" The provinces exereise tito leg. islative jurisdiction. An act committed in one province should be given the same effect throughout Canada Application of the lex ci delet has the ad- ‘vantage of conforming tothe requirements ofthe Canadian Constitution!” ‘These justifications fall into two classes: (i) the rule is simple and certain” and. (i) the rule respects the limits on provincial power under the Constitution Act, 1867. 1 shall argue later that, asa general rule or as an example ofa general slution to conics problems, the rue, as has now been demonstrated, will not achieve the certain that is its principal justification. I shall offer later some suggestions for ways in which counsel can argue that the rue should not apply ‘The constitutional issue is a red-herring. One can acknowledge that both provincial legislatures and courts are limited by section 92(13) (or 92(14)) without having, to hold that, for example, aspects of Ontario law may not be properly applied by an Ontario court even though the event giving rise to thal claim occurred outside Ontario. An ‘example would be the application of Ontario law as the proper law of the contract, even though the contract was made in British Columbia. Another example would be the power of a provincial court to apply many aspects of its law to those who are domiciled in the province but resident outside it ‘The adoption of this choice of law rule was, to say the least, unexpected. The rule was suggested in the leading English case that had been followed in Canada up to Tolofson/Gagnon, Phillips v. Eyre”, though it had been ignored in favour ofthe rule, the “double actionability” rule that had been adopted and fairly consistently applicd by 0995) 25 OR. 4760.75, (On. (Gar Di). Siprante at 10-0, Bid 105051 id 106866, ‘aerate wih te ply tat eC Cade of Que, A. 3125, (ih ot apy athe tot the aiden in Gago) mig in arcs ado iter rt Hea wih a oe y syn tt ‘Automcie Inrane Act. Q. 1977, 63,490 cle hat at ken ae plod 212. “Tis rpms nn ary ee ran ater wee a, hg of ay wil testi Hanon Sere (197, 38 OR. 603,(Ont. CeCe Di). a (1998) 38 OR (3 479, 10BO.AC. 261,41 COLT QD 168 * Saran 1256 (1999) 12.2 Revue québécoise de droit international ‘Canadian courts until the Supreme Court's decision®®. The adoption ofthe lex loci delet! ‘was the comerstone of the original Restatement of the Law, Conflict of Laws, of the ‘American Law Institute in 1934". Even before the ink was dry on that publication, ‘American academics and courts had begun a long sustained attack on the rule and, by the time the Supreme Court adopted it, it had been almost entirely rejected in the United States. ‘The reasons for the rejection of the rule by American courts were never investigated by the cout; in fact the analysis thatthe court made of the American positon \was very poor. The Court could not have understood the case it referred to which and its conclusions ignored, as I have sai, the huge numberof cases that had rejected the rule. The mule of the lex loci delict was rejected for the reason that it was inappropriate 10 decide cases by reference fo rule that invited mechanical application, We have almost entirely ejected rules that can be or that are expected to be mechanically applied. We consider things like the purpose ofthe rule: would some social value be forwarded by the application of this rule in this situation? The judgment in, for example, Moran*® is an excellent example of a court considering the faimess and appropriateness of the application of the Saskatchewan law in that case, Similarly, in Morguard®, the Supreme Court made a carfil analysis ofthe characteristic ofa desirable rule forthe enforcement ‘of foreign judgments in the light of the nature of Canadian society and the interprovincial economic relations, I do not believe that La Forest J. in giving the judgment in Tolofion/Gagnon was fuithfl to those cass. ‘It may well be that itis pointless to criticize the decision; it has been given and it ‘has been applied”, What is, however, important is to note that, while the lex loci delicti Te leading ee upto th de of Tofon Gagnon bad ban McLean v. Petre, [1945] SCR. 62, [194512 DLR 65. Thi cas was en ofthe mest reviled in all the history ofthe Soreme Court of Cad Ii eoelt example of court abusing he rule ttt pupa oaply so ao reach re htt corer corre: the cout was sinply moc ging to apy the Onaio “ext pameng” rule oto Quebec pres temporary in Ontario Wek dive when that eoured irc hat only we the es ce fer what was inthe kadng American case of Babcock v.ackon 1963) IZ NY. 24) 473, 191 NE. Q4)279, [0960] 2 y's Rep. 286, (New York Court of Appa) bt the eae ungusionshly cae ret reached by he as would no be ureahae und thule 0 enphataly i Tooion Gagnon. ‘Theil provisos ofthe Relea eet pr. 45, blow. » Swpransies mar ‘Sex eg, Michal. Olon,[1998)3 W.WR. 672, (Man C.A, Haband, Helper de Monin ILA) an Leonard Hele (1997) 36 0.) 357, (CA, Broke, Labrese & Charen ILA). The te ee an the problem of demining wuts th place of thet. The lif was inurl a a elk of highspod pice hase that ‘apa in Ontario and ented in Qube whee the plain as ined The cout react he apart snoe the Onar paize might have been negli in Orta, wa posible, under ToofanCagron 10 seply tai aw. The cout eld tha he place was wh te inury was ued Ino dong, the Cour ignored the fac ht he Supreme Coat had expres el open the datermiatin of tex act deli nc acta. SV. lak, «Cra The Otro Cou of Appeal Bunge ito Tolefon (198) 81 CCL. (2d) 170, Theis 8 large jursprdae n ths ive arising out of Rule 17.02 th Plas of Cl Proce, RRO, 1990, Reg. 194, 1702, wich provided at serve ax uri wa vale in rene of "rt comme inthe arid ti Sex eg, Vile. Yon Wend (1979), 26 OR. (28) $13, 103 DLR (38) 356, Dv. C2). The deen in Moran eet css to that dat ar mations) detec with in thngh the Some Co'sThe Aftermath of Tolofton v. Jensen; Lucas v. Gagnon 37 may well be, by accident, an appropriate rule in some cases™, the nature of the rule in the context of the structure for analysis that I have described has set the stage for manipula- tion of the rule, This manipulation was exactly what happened in the United States and ‘was one of the vivid reasons for its rejection there : what good is a mechanical rule, designed to give certainty, if it can be manipulated s0 as to deny in practice any certainty in fact? TThe demonstration that the rule will not provide certainty is illustrated by the decision of Platana J. in Hanlan v. Semnesiey”. ‘The headnote states the facts (One ofthe plaintiffs was injured in the state of Minnesota when the motoryele on which he was a passenger collided with an automobile. He sued the diver ‘of the motoryce for damages. The other plants asserted Family Law Act (SO. 1990, . F.3) claims. All of the parties were Ontario residents atthe time ofthe acident, and the motoreycle operated by the defendant was regis: tered in Ontario and subject to a motor vehicle liability policy isso ia On- ‘rio. The defendant moved for summary judgment dismissing the Family Lave ot claims onthe grounds thatthe proper law was that of Minnesota an that aims ofthis nature are not permitted under Minnesota law. latana J. finds comfort in the statement of La Forest J. in Tolofton/Gagnon that the argument that the law of the parties’ common residence should not be applied when ‘the parties are resident in Canada. From this, Platana J. concludes that, in an international setting, it is appropriate that the law of the parties’ residence be applied. Platana J. also took, comfort from what Major J. (with whom Sopinka J. agreed) suid in Tolofson/Gag- loweve, I doubt the nod in disposing of hese appeals to establish an sban- Tue rule dmiting of no exceptions. La Forest J. has recognize the ability of ‘he parties by agreement to chose tobe governed by he lx fori nd adisee- ‘ion to depart from the absolute ruin ntematonlTigation in cresmstances ‘in which he ler lc deli ule would werk n injustice. I would nat forelose the possibilty of recognizing a similar exception in interprovincalitgaton. ‘ison would appear to take abroad view f “te place of he ta than he Court of Appeal Theis 3 ceneiional im arng ou of Morgard and sion 92(14) of he Constoon Act, 1867 rad cis 0 ‘ak jrititon oto aply provi aw tased ona very eal triton of he place of he tat may be ‘uortitonlH can be apne, thatthe din in Robinson v. Warren (1982), 58 NSR. 28) 147 (SSC, AD) (hgh bal co deat Rule of Cout) would row te unstions! in the gt of See V. Blak & G. Fak, «Chocing the Aplcable Lav for Crossan so Asis (1993) ISCCLT. G47. ™ ‘There may ave boo appropri in Stewart v. Stan, [1997] 5 W.W.R 353, BCCA, Mactan, sn 4 Hal 1A) fr te same ens ag, agin by acc, it would have boon appr o have appli in (Grimes .Clouter aprate > Sypranete 2h © Supranees at 107858 important, viz (1999) 12.2 Revue québécoise de droit international ‘The Court of Appeal dismissed an appeal from the judgment of Platana J In a shor, two-page judgment the court first noted the facts thatthe trial judge had considered L 2 ‘that the partes were both resident in Ontario; thatthe contract of insurance was issued in Ontario; that there was no connection with the State of Minnesota other than ‘that it was the place ofthe accident, that although the accident occurred in Minnesota, the consequences to ‘members of the injured plaintif’s family were directly felt in Ontario, and ‘that the uncontradicted evidence before him was that claims of this nature are not permitted under Minnesota law. ‘The court expressed its conclusion, saying Tnacoordance with Tolofson, we ar stistied thatthe motions judge ad a dis- cretion to apply the lex ori in circumstances where the ex loc deci rule ‘would work an injustice ‘The Court of Appeal did not elaborate on its concept of “justice” or “injustice”. At base the Court's conclusion must mean tha it was in some way improper or unjust that the rights of two Ontario people inter se should be dealt with by the law of Minnesota. In ‘a passage summarized by the Court of Appeal, Platana J. had justified his decision not to apply Minnesota law by saying”? Further, I do not read the reasons of La Forest J. in Toafson as creating @ “without exception rule” which would inclnde accidents oocuring in foreign jurisdictions in some circumstances. Te cumstances highlighted in this case by the plaintiffs which I consider to be relevant are that te principal parties are both residents of the same province (forum) and the conract of insurance in effet was issued in Ontario. 1am not unmindfl that atthe time this action rose, there was no question bt that Ontario law applied. Taking into account the test suggested by Major J. in Tolfson, Iam also ofthe view that in the particular crcimstances before me, it canbe said that the operation ofthe lex Toei rae would work an injustice, But forthe actual cation of the incident, there is absolutely no connection with the State of Minnesota. In all of these circumstances, it seems thatthe appropriate law to apply is the law whichis closely connected tothe parties and not the lex loc elit, ‘There are several points to be made on the judgments of Platana J. and the Court of Appeal. First, it is not justifiable to claim that there can be a different rule for interprovincial torts and international ones, ic, those that occur in the United States. It is ‘Siranste21. Se. Blak, supra, ‘Siprance21 61041The Aftermath of Tolofson v. Jensen; Lucas v. Gagnon 59 abundantly clear that Canadian automobile insurance coverage is based on the explicit assumption thatthe standard Canadian policy covers activity in Canada and in the United States, To the extent that the application of the lex loci delici reflects the underlying insurance coverage of Canadian motorists, the standard polices of every province make 1no distinction between accidents in Canada and accidents in the United States”. In spite ofthe fact that, from some points of view, American law may appear to be very different from Canadian, Canadian courts accept American judgments and the application of ‘American law in those judgments as meeting any test of fairness or reasonableness", In short, all the reasons that La Forest J. considered as justifying his rule on the facts of ‘Tlofion Gagnon apply o an international tor?®. Second, if thee is anced for certainty in interprovincial torts within Canada, then there is an equal need for certainty in international torts within Canada and the United States. Third, the facts of Hanlan v. ‘Sernesky cannot be distinguished from those in either Tolofson v. Jensen ot Lucas v. Gagnon What is most interesting is that the facts listed by the Court of Appeal a5 justifying the decision of Platana J. are almost identical to those in both Tolofion v. Jensen and Lucas v. Gagnon. In the former case, the plaintiff sued his father for injuries that were caused by an accident in Saskatchewan, In the latter, the claim was brought by a ‘wife and children against her husband and their father. It is true that in both cases there ‘was another defendant, but in respect of the intra-family claims in each case, ie, the claim of the son against his father in Tolofson v. Jensen and that ofthe wife and children against the husband and father in Lucas v. Gagnon, the list of factors mentioned by the (Court of Appeal in Hanlan v. Semesky fits exactly 1 the parties in Tolofoon v. Jensen were both resident in British Columbia and in Lucas v. Gagnon all were resident in Ontario; 2. the respective contracts of insurance were issued in British Columbia and Ontario; 3. there was no connection with the provinces of Saskatchewan or Quebec ‘other than that they were the places ofthe accidents, 4, although the accidents occurred in Saskatchewan and Quebec, the ‘consequences to members of the injured plaintiffs’ families were di- rectly felt in British Columbia and Ontario; and 5. the Supreme Court held that claims of these kinds were not permitted under Saskatchewan or Quebec law. ® sea.eg.Jnnurance dc, RSO. 1950, 18, 8.266 (as amended, 8.0. 1993, 10,5 25 (ang & 267.1) an $0.1995,6.21,229(adings 2674), Sexe the judgment of Stage Jn Und Slates of Americ . Ie (1995) 25 OR. (3) $38, (1995) 27 BILR G4) 21, 150 DLR (Ah 674, alfred (1996) 27 BLLR 2D 20, The rule to be applied to tone that coir ouside Cad nd the Ute Sats may, paps, be jus ert. iti, the reson thet would jus th tence wold ait wer, rebound och ha even win ‘Camda thee loi deli cat be api athe Supreme Cou appr hve inal ite apd60 (1999) 12.2 Revue québécoise de droit international In shot, Hanan v. Sernesty cannot be distinguished from Tolofion v. Jensen and asserts a discretion to refuse to apply the Jer Joci deli that, atleast on its facts, conflicts directly with the Supreme Courts stated rule. Ti can be noted parenthetically thatthe argument, implicit in the judgment of La Forest J. that there has to be one rule to deal with ail the isues arising out of each of Tolofson and Gagnon is nething more than an unthinking application of the traditional structure ofthe conflict of laws : the law of one jurisdiction has fo govern every issue characterized as a “tort”. But think how odd this conclusion is. We do not consider it necessary thatthe same rule be applied to two defendants just bocause they are sued in the sane action; one may have a defence based on some facts special to it and the other may not forthe same reasons, one may be liable in contract and the other in tort; one may be a fiduciary, the other may not. There is no reason that the resident of Saskatchewan in Tolofson or the Quebec resident in Gagrnon should have their lability determined by the same rule as could determine the liability of the father and husband in each case. The linking of the two defendants is both unnecessary and distracts the court from the two simple problems that each case presented. Similarly in Ostroskt v. Global Upholstery Co, the court claimed 10 have ‘exbity in determining the place of the tor, even if it did not have Hexbiiy in determining the rule to be applied once the place had been chosen. An interesting ‘demonstration of the pontlessness of La Forest's concerns is provided by the ‘of the Newfoundland Supreme Court, Trial Division, in Alfeenv.Jnformix Corp.”. The plaintiff sued in Newfoundland in respect of shares of a Delaware corporation that were not traded on a Canadian exchange, The basis of plaintiff's claim was thatthe defendant hhad made statements that were quoted in the Canadian press. The court held, dismissing ‘the defendant’s application to have the claim dismissed as disclosing no cause of action, that the shares were purchased in Newfoundland; therefore, the tort was commited there. ‘The defendant's argument that Newfoundland was nota convenient forum was similaely dismissed; the defendants should have foreseen that the shares might be bought by Canadians" % 995,61 ACW. 1990 (Ot Cu (Gan Div}. Lo) Ia tat cee pif rid in Femyiaia 2nd wes ied ina accident hich ose in Pera when he din wich se as ing pd Fever caning ht fi The amen whic he pli rived andthe age ule core 2 emia. aon tog n Oni wt died onthe god tht Ota wa ot jrion “si afc yes as sas oer wa sw oe i va] ‘eto heb inthe cela oe pt 2 9396, 164Nnd RPELR 301,79 ACWS (0) 1157 The flowing aoa patil fig fer case whe ours hve found way oad he api of Tolgon agro y mangling ier th pf he to se ps he x dee" rom Tarnaa (1986), 44 At R355, (QU, EAT vB, 1988] BCA, No. 11S, Hyncto Heats G55 37BCLR G35; Troes Eat Ker (998) 80 AWS.) 765 (a, Ka)The Aftermath of Tolofon v. Jensen; Lucas v. Gagnon 6 IV. Escape Devices It would be foolish to imagine that a structure as rigid and mechanical as the one that I have described could ever be entirely satisfactory. No mechanical rule can deal with the various issues that can arise in litigation: a rule that works well — fairly, sensibly, ficiently — in one case will not work well in another. The history ofthe common law is fone in which the mechanical rules of one generation were avoided (if not repudiated) by the next. The development of equity in the English cours is, for example, one long story of the rejection of the common law rules as guides to the result that would actually be reached and the assertion of a power to adjust rigid rules to the circumstances of each Moreover, the structure of conflicts analysis (as described in Table 1) carries with it deep and inevitable problems of making it work. Once a judge realizes and asks, “What do 1 want to do and why do I want to do it?” the problems with the structure appear, La Forest J. may say that his rule contributes to certainty and simplicity, but the cost of achieving such goals may be very high. Almost every nue that one can think of — the general rules for damages, the doctrine of consideration, the right o recover mistaken ‘payment, liability for fault — is subject to so many qualifications that an accurate or useful statement of the rule would be hugely complex. Life is not simple; “general propositions do not decide concrete cases” and “certainty is an illusion and repose is not the destiny of man”, The questions that the judgment in Tolofion/Gagnon raises are simply, “How can we avoid it when we want to?” All courts, English, French, Canadian and American, have developed a number of techniques to avoid the application ofthe law “selected” by the choice of law rule that the court fet compelled to follow. There were three general techniques that American (and English) courts developed. The class of techniques was recognized as. offering a varity of “escape devies, Le, devices used to escape the application of a choice of law rule considered to be unsuitable on one ground or another. There were three general techniques ofthis type. The firs, is to “adjust” the characterization of the “question” so that, eg, it is charcterizad as a “contract” question, not a “ton” question (or a “procedure” question, nota “‘substance” question)". The second (which is comparatively ‘uncommon and which T shall not deal with here) isto teat one question, which might have its own choice of law rule, as “incidental” to another question, what can be called the “main” question and, therefore, to be governed by the later’s choice of law rule™ oe, the soy ofthe common aw i filed wih sets by common jue th, wth he adent of ‘onthe word was pong to lin Range eld “lization a we Koo” would enpese. The cicyemst ofa proper bance een rules and principles of mess at ncaa, © Thestaanet ofthe Cou of Appeal in Harlan. Sores, yor ow, pars 2, ht herd agpion of TolfonGagnan would work an ruts” ea good exanpl of the Knd of econ for acting thei rl ‘thestatant i quteunanalsd and enlanation fx costsen een. carnation i example lly reid unre Personal Property Security Act RSO. 1950, Pi0,s 8 The “inet quetion” is rat by the decision ofthe Canaan cut in Schvsbel Ungar, 1968) 1 OR AB, 42 DLR (24) 622, armed [1965] SCR. 148,48 DLR C4) 64.2 (1999) 12.2 Revue québécoise de droit international Characterization asa technique of dealing with inconvenient choice of law rules ‘was well developed in the United States as a response to the mechanical statement of the choice of law rule expressed, for example, in the rule that the ex loci delicti governs all aspects ofa “tort” question, The technique i based on the argument thatthe characteriza- tion of an issue othe category into which itis pu is not beyond dispute or discussion. It is, for example, not obvious that a claim by a dependent under the Family Law Act has to be characterized as a “tort” claim rather than as a “family” claim. It is important to note that the characterization issue is inherent in the structure of analysis of a conflicts case. ‘The nced for an “escape device” arises precisely because, asthe structure illustrates, once a question has been categorized or characterized as, e.., “tors” question, every question that comes up is to be answered by the same choice. Both Tolofton and Gagnon could have raised serious problems of this type and the opportunity for such arguments clearly exists. One recent case illustrates exactly this point. In Cowley v. Brown®, the Alberta Court of Appeal hed that an issue of subrogation rights was not necessarily governed by the law of a province other than that where the accident had occurred Assume that neither case involved a local resident and that in each case the plaintiff's claim is only against his or her father or husband. It may be appropriate — ‘though I would not concede that it would always be — to use Saskatchewan or Quebec law to determine ifthe acts were negligent; it does not follow automatically that either of ‘those laws have to deal with other issues like other plaintiffs" rights to claim under the Family Law Act (or analogous legislation)". I suspect that, as the cases dealing with interprovincial or international torts increase, courts and cours! will find ways to avoid Tolofon/Gagron by arguing that the question is no a “tor” issue but is, fr example, a family law issue, governed by different rules or that a question is one of procedure and not substance” ‘The Supreme Court’s insistence over the last few years that there are no hard and fast divisions between tort and contract makes its apparent belief that it will easily (1997) 7 W.WR 380, 47 DILR (4) 282, (Ata CA) “The ecisionin Cony. row cab compared wih he eis of Saeco in Bri v. Korpach Ete (1997, 148 DLR. at 467, whare TolofionCagron was applied eventhough produced “shah ref thoplanl’ Se V. Black supra nte 27, ‘Sox eg, The dion of Cuming in Hrs. Lemar, pra te 16, a 167-68, onthe charctizaton o's 266() onthe Onto nswrance Ae ‘ener of tracterition ar well in Cama Inv, See, -Dominion Ban et av Maran nite (198), 39 Suk R60, (QB, Waar 3), Alberta Treaury Branches v. Granaf (984), 8 BCLR. 370(CA, Seaton, Akensandl son 1A), Blac Bros Realy Lv. Molard and Deva Holings Lid (1981) 4 WWE 65,27 BCLR I7, 12 DLR. Gd) 323, (CCA. Nem, CIBC, Sen and Craig A), Livesey. Clemons Horst Ca, [1924] SCR. 65, Seg, Bachond Robert (1998, 7 CPC. (93, (Oat CL (Ge. Di Bal 1), Lah for ends 2 mate of prcedrs,atsubaance. © Conoat Tt Ca v-Rafas,{1986]2 SCR. 147, (xb nom Conra & Eastrn Tras Co. Rafise)31 DILR, (ty 481,42 RPR167, Varin, [1985] 1 SCR 1206, Canadian Nason Rata Co. v. Nor Pace ‘Steansinp Co, [1952] 1 SCR. 1021, 91 DLR. (Ah) 269, Edgevorth Consruction Ltd v. N. D. Loa & ‘Anos, (1983) 3 SCR. 206, 1993] & W.WR. 129, 107 DILR. (Hh) 168, 3 BCLR. 2d) 148,17 CELT. 2) 101; and Wipe Condontnum Corp. No. 36 Bird Comtructon Co, 1995] 1 SCR 8,The Aftermath of Tolofson v. Jensen; Lucas v. Gagnon 6 and always recognize a torts problem when it sees one surprising (I admit that a motor- vehicle accident looks like a tor, but the related issues, eg, rights under insurance policies, claims of dependents and even the nature of the damage award, may not be 50 easily categorized.) The structure of analysis required by the Supreme Court's theary of conflics, allows no blurring of the boundaries: there is ators “hopper” and a contracts “hopper”; there is no intermediate hopper. The categorization of the problem leads to radically different choice of law rules”. ‘The third device isthe doctrine of renvoi, a doctrine originally developed by a French court, The issue of or the possibility of using the doctrine of renvoi is, like characterization, inherent in the structure of conflicts analysis 1 have described. The doctrine of renvoi focuses on the content of the foreign law chosen by the process. When La Forest J, says that we apply “Saskatchewan law” or “Quebec law” what does he meant? ‘What isa “foreign law”? Isa foreign law, the law that a foreign court would apply to deal ‘with a problem before it? Ifa foreign court would, for example, adopt a choice of law le that referred the question to, say, Ontario law, should an Ontario court apply the whole foreign law or only some part of it? ‘The acceptance of the doctrine of renvoi requires a ‘court, an Ontario court, to look at the conflicts rules of the jurisdiction to which its (Onaio's) choice of law nue referred it and choosing the law of the jurisdiction referred toby the foreign law. The doctrine was called the doctrine of“renvoi or “return” because itcoften happened that the question was “returned” to the lex fori by the operation ofthe foreign jurisdiction's conflicts rules and, indeed, was often used by cours to justify the application of the lex jor. Like characterization, the doctrine of renvoi has insuperable and fundamental logical and practical problems. ‘A golf analogy would be appropriate to describe the process. Imagine that a Ontario couple are vacationing in New York. While they are playing golf, the husband carelessly injures his wife. She and her children sue in Ontario and the issue is whether ‘one of the children has some claim under the Family Law Act. The Ontario court serves (by applying the rule in Tolofson/Gagnon) and determines that the law of New York is 10 be applied. The ball has now landed in the New York court (I make no apology for the {2905]3 W.WR. 85,121 DILR. (th) 193. Cas that ras a sim ise ice J. Mes Diamond Lt v Dorion Elscric Protection Ca, [1972] SCR. 763,26 DILR. (8) 69; Damion Chain Ca Lid ‘Basen Contraction Ca id (1976), 12 OR. (24) 201, 68 DLR. (3) 385, (CA) (med nom Cie “Assocs Ld. Botrn Consracton Co, Lid), 1978] 2 SCR. 1346, 4 DLR.) 344), and Quer v. Cognos ina, [1993] 1 SCR 87,99 DILR (4) 626, Cone th rect eae of National Bank of Canada v.Ciford Chane (1996), 30 O38) 746, (Ont Ce (Gen Di), Grund 1) which mised he eof he bility fem of English sisters undr an pin tat to Canadian ders. Wiehe decision in dt case was toa he Ontario cons the cons game aed Onset quation wou have bo whether the “sui” as coracts oe a «torts on. Given he Supers Court's ects pra te 48) 8 aot cay fo ee how a csi in misgrsion might be banciznd ‘The tert contre carson sue as sea suficod in Orfanatos v.rgoplia (1995), 22 OR. (3) 167, (Or Cx (Gen Di), O Bien J), ee alo Encal nergy Lv Mum Energy, (1995] BC WLD. 2486, [2986] BCJ, Na 1918, Vancouver Repsry No- C9E29TT, (RCS, Sinclar Prowse J), agent fied Sepeber 6,199, $18 where th amos uractrpatin cuasinsiod.64 (2999) 12.2 Revue québécoise de droit international pun). Under the law of New York (which has rejected the lex loc! delict) the law to ‘overn the children’s claim is the law with which that issue” is most closely connected and itis proved that the New York court would apply Ontario law. That court as nov, as it were, retumed the ball 1 Ontario, The question now is what happens next? Does the ‘game continue in an endless rally o does one side simply stop the game? If one court, stops the game, on what ground does it do so? ‘The game will be stopped by one cout’ deciding to apply either the Ontario law of torts or the New York law of torts, exclusive of its coniicts rules. On the facts of the imaginary case I have considered, ifthe Ontario court “accept” the renvoi from the New York cour, it would give the child its Family Law Act claim. Ifthe Ontario cout retumns the ball 1o the New York court, ic, iit doesnot accept the renvo, it would apply New York law. (Some cases discuss the question whether the New York court would accept the renvoi from Ontario fit would not and this fact i proved to the Ontario cout, then the Ontario court (sadly, and with a sense that a promising rally has been aborted) ‘would apply Ontario law). ‘The importance ofthe doctrine of renvoi lis in the fact that, like the isue of characterization, itis an inescapable consequence of the choice of law process as T have The iene was not mised in Suropolesv. Johnson (1995), 7 WDCP. (2) 70, (Ont Ck (Gan Dis), (Gheppur1) whic was onemed wih he rlmiary quaton wher the plait ould ein Ontario. The ice fiw sue was tik decried. The apical ecg law onl he Tlofon agro te) wold ‘othe avo Virgin is vary probable ha he Vin cmt wold not apply tht ool sang, itorThe Aftermath of Tolofson v. Jensen; Lucas v. Gagnon 65 ‘Canadian, generally accepts that results should not depend on the place where the action is brought. This belie in the need for uniformity has bedevilled conflicts analysis for centuries and is, in my opinion, quite inconsistent with the right of the Canadian provinces to adopt differing legislative solutions. Why should provincial court decisions be uniform when provincial legislation is not? Why should the Supreme Court insist on uniformity across (atleast common law) Canada? These are large issues that may not be immediately dealt with in the light of Tolofson/Gagnon. They are implicit in Moran, ‘Morguard and Hunt Itis also worth noting that the legislative “abolition” or rejection of the doctrine of renvoi" is no more a satisfactory solution than its acceptance. The rejection of the doctrine certainly avoids the absurdity ofthe (potential) endless rally, but it does not moet the isue that prompted the rally in the first place, viz, the realization that it may be entirely silly to apply a foreign law that as understood by the foreign court is considered to be inapplicable. In other words, in my New York example, the decision to apply New ‘York law by rejecting renvoi simply ensures thatthe wrong solution is adopted : the court will be applying a rule that will advance neither the policy and values of the Canadian province nor those of New York. One final “escape device” must be noted. All cours assert for themselves a power to refuse to give effect to any foreign law that contradicts the public policy of the Je fori, Pethaps the most explicit example of this power is that expressed in Art. 3129 of the Civil Code of Quebec, dealing with liability for raw materials originating in Quebec. ‘This power is an obviously necessary one. It differs in a fundamental way from the other devices that I have discussed in that its existence does not depend on the structure or theory of conflicts, but simply on the right and duty of the court to have regard to the values and characteristics of the place where it is located. V. Jurisdiction While the decision in Tolofion/Gagnon is quite emphatic on what Canadian courts must now do in contlicts cases in tort (or, atleast, conflicts cases involving motor- vehicle accidents) the decision is, as Ihave suggested, hard to reconcile with the decisions of the Supreme Court in both Morguard and Moran, The decision is also hard to reconcile with another recent decision of the Supreme Court, Amichem Products inc. v. British Columbia (Workers’ Compensation Board)*. In Amchem, the Supreme Court had to deal with the right of a defendant to obtain an injunction preventing the plaintiffs from suing the defendant in Texas. In the ‘course of a judgment in which, reversing the decision of the British Columbia Court of Appeal, the inunction was denied, Sopinka J. discussed the criteria upon which Canadian ® Syprancte 4, Soothe artists mentions, pram § % Seeeg, At 3080 C00, (1993) 1 SCR 997, (199313 WWR. 441, 102 DLR (4) 96, T7BCLR (24) 62 faster chem)66 (1999) 12.2 Revue québécoise de droit international cours should cither take or deny jurisdiction in actions in which one party wants to sue in ‘a jurisdiction in which the other does not want to be sued. Inthe context of interprovincial (or international litigation, an anti-suit injunction is an intrusive and brutal weapon. In dealing with the criteria that should be considered before such an injunction will be ‘issued, Sopinka J, said” : ‘When will it be imjust to deprive the paint in the foreign prooeding of some personal r juridical advantage tht is avaiable in that fran? Thave al- ready sated thatthe importance ofthe loss of advantage canot be asessd in isolation. The loss of juridical or other advantage must be considered in the context ofthe other factors. The appropriate inquiry is whether it is unjust to deprive the party seeking fo tga in the foreign jurisdiction of judicial or ‘other advantage, having regal to the extent that the party and the facts are connected to tha fora based on the fctrs which Thave already discussed. A party can have no reasonable expectation of advantages available ina jursdicr tion with which the party and the subject mater ofthe litigation has tle o no connection. Any less of advantage tothe foreign plaintiff must be weighed as against the los of advantage if any, tothe defendant inthe foreign jurisdiction ifthe ation i tried there rater than in the domestic forum. If tis language is considered in the context of Tolofson/Gagnon, there is an odd inconsisteney. The Supreme Court in both Amchem and Tolofson/Gagnon is strongly ‘opposed to forum-shopping. The tests used to identify the “natural forum”™” assume that it will usually be obvious where that place is. These tests also make it clear that a plaintiff will not often be able to get a substantial advantage by choosing the place where to sue. It is important to note that the language that Sopinka J. uses in Amchem does not focus on procedural matters : where will it be most convenient to hold the trial? where will the ‘witnesses come from? which court might be more familiar with the commercial issues involved? Sopinka J. focuses on what can only be regarded as choice of law issues. For ‘example, Sopinka J, says {Al paty whose case has eal and substantial connection with forum has ‘legitimate claim to the advantages tht frum provides. The legitimacy of his claim is based ona reasonable expectation tht in the event of litigation arising ‘out ofthe transaction in question, those advantages willbe availble It is consistent with this statement that not only would the forum be an appropriate one to deal with the litigation, it would be appropriate from a choice of law _perspective™, The statement that there is an intimate relation between the issues relevant in deciding where the action may properiy be brought and what law should determine the issues in dispute was at the heart of both Moran and Morguard. The judgment in * Sapam 5501933, 2 yd. 93132 * ua 70, 2 doron {CR Dickson make snr de fo rips using he aero of rian tase ovening de te, ere of cison oe ota demi if he pe, pro mete G48. csThe Aftermath of Tolofson v. Jensen; Lucas v. Gagnon o Tolofson/Gagnon seems to be based on the denial that there is any connection whatsoever how else can one explain a rule that makes the only relevant fact the place where the accident happened? La Forest J, giving the judgment of the Court in Tolofton/Gagnon, states ‘unequivocally that the law ofthe place ofthe wrong, the lex loctdelicti, must be applied to determine the rights ofthe partes tis irrelevant that the actions in both the cases dealt with in Tolofson/Gagnon were brought by the passengers in the car driven by the defendant, or were part ofthe family ofthe defendant, as it was irrelevant that under the Jaw of their residence substantial damages would have been recoverable. La Forest J. reject the choice of law rule based on Phillips v. Eyre and all other alternatives other than the dex foci elicit can be assumed that in Tolofion/Gagnon both B.C. and Ontario would, under the principles stated in Amchem, be appropriate places for the litigation ‘Why then cannot the law of B.C. or Ontario be applied? The answer given by La Forest J in Tolofson/Gagrion is that to do so would permit forum-shopping and deny certainty Notice, however, that what Sopinka J. says in Amchem in the quotation in the previous paragraph is a clear endorsement of the propriety of giving the plaintiff the advantages of the place where it sues. Sopinka J’ statement is consistent with the fact that there may be ‘more than one appropriate place to litigate and that the plaintiff in making a choice between the places that have a “real and substantial connection” with the litigation, may properly take advantage of his or her freedom of choice, Amchem suggests that there will be one, perhaps two, places where the plaintiff may sue and that choice of law rules will be largely if not entirely subsumed in the Jurisdictional question. Tolofson/Gagnon assumes that there will be many places where the plaintiff may sue and that to prevent the plaintiff from obtaining an advantage from this opportunity, brutally mechanical choice of law rules must be applied. Amchem is consistent with the law as it had been developing since Morguard and even since Moran. ‘The basic principle of this approach is that the Supreme Court can supervise litigation with a foreign clement and can ensure that the values implicit in the Canadian federation are recognized in the rules for such litigation, Tolofsor/Gagnon, on the other hand, seems to be an explicit denial of this development. It rejects any idea that the flexible constitutional principles in the earlier cases (and in Amchem) are applicable to the ordinary choice of law problem, Ofcourse cass there may be ely ae appropri coust sey ene re hat can be ely apo ‘An oample of hiss Ferguon ¥. Arctic Transportation Let (1998) 79 AGMS. Ga) 1156 (ECT, Reed 11 Te claim was rough by a Panamanian pit fr injiss caused when be wa plat chip belonging to ‘eet The defends argumert was ta the cain wae ated on the round tha the eplcabls Tinton pre vas dt of Panama, i, oe yet. The court damissd the pif chim on he ged tat Pmumarin apo asthe plas ot to plas ofthe mage th place with meet stu Genmaton In eee ort wert on ti ey th ee was gies The hoor of and cpption to run-in i, in yoo, coe with he ats etal in bath _Menguard a Ache, beth of which are ent ely wth he de hat moe than a pice maybe an ‘appropriation and ley ach place may ved appropri ply ne,68 (1999) 12.2 Revue québécoise de droit international VI. Long-Term Developments Itis still relatively early days after the decision, but what is already appearing is evidence that a determined conrt will find a way to reach the result that it considers appropriate. What is interesting is that this development parallels what occurred in the United States in response fo the original Restatement. The beauty — or the danger — of the “escape devices” that T have discussed is that they leave the formal structure of the choice of law rules intact, and as a result, they operate haphazardly and awkwardly. ‘Because there can be no principled way to decide if something is ators question, a family Jaw question or some other question, courts and lawyers have no guidance and the decisions will not “cumulate” — to use Karl Llewellyn’s memorable word— into something that can be reasoned about. Devices that are formally entailed by the stracture ‘and which present logically insoluble problems are simply outside the ordinary scope of the arguments that courts can deal with. The endless rally or the arbitrarily spoiled game ‘that is the inevitable consequence of the doctrine of renvoi suggests that there is something fundamentally wrong with the acceptance of the doctrine inthe first place, In the long run then there is no alternative toa re-consideration and ultimate rejection of the ‘whole structure of choice of law rules. One ofthe very depressing things about the judgment of the Supreme Court in Tolofeon Gagnon was the fact that the Court did not appear to understand what had happened in the United States. Since we aze likely to have to repeat the American experience over the lst sity-ive year, it i worth briefly reviewing the developments that occured there. Ihave already mentioned” the fact that the Restatement of the Law, Confit of Laws, doped the fx oc delice as its governing principle Its rues are worth noting The Restatement provided §377. The Place ofthe Wrong ‘The place of the wrong is inthe state where the last event necessary to make an actor liable for an alleged tort takes place. {§378, Law Governing Plaintif's Injury ‘The law of the place of the wrong determines whether a person has sustained legal injury. ‘These principles essentially state the law established by Tolofson/Gagnon. © ‘see eg,theremuksof Emon J. in Star Sear, supra te 28 1387 [13] were fe, by reson of fastion13 of he B.C Lmtaon Act spy Brith Co- Juba imision ln, Iwull dn The application beatin la of Sadachewan to ‘hice wl rt produce 2 "more ju rest” — nine wil produ a patel nat r- at, anther fhe Cou of Appel in Hanlon. Semel, sire nse 2, and quo fon he judge, stpera 3 © Seopa. 17, abore.The Aftermath of Tolofson v. Jensen; Lucas v. Gagnon 6 ‘Though the rules of the Restatement came under attack almost as Soon as they ‘were published, their overthrow and replacement was made inevitable by the decision of the New York Court of Appeals in Babcock v. Jackson‘. Though the judgment was not tmanimous and the reasoning is open to criticism, the Court refused to apply the principles that I have quoted to deny a remedy to a New York plaintiff injured by the negligence of a New York defendant. The negligence and injury had occurred in Ontario which at that time had legislation that denied a guest passenger any recovery from the driver or owner ofthe vehicle. tis not necessary to deal withthe judgments in Babcock v. Jackson. What i intersting is thatthe Ontario Court of Appeal in Zanlan v. ‘Sernesky, in effec, followed the New York Court of Appeals : it refused to follow Tolofson/Gagnon because to do so would cause injustice”. ‘The Court of Appeal did not elaborate on its concept of justice. At base the Court's conclusion must mean that it was in some way improper or unjust that the rights cof two Ontario people infer se should be dealt with by the law of Minnesota in exactly the ssame way that the New York Court of Appeals thought that it was improper to apply Ontario law to determine the liability of one New York resident to another. What distinguishes the decision of the court in Babcock v. Jackson from that of the Court of ‘Appeal in Ffanlan is the extent to which the former court was at pains to deal in a ‘principled way with its decision not to apply the rues of the Restatement. It will not do to argue that Tolofson/Gagnon only applies within Canada and {hat in international tort another rule can be adopted. La Fores J. sat pains o argue that his rule will achieve certainty and predictability. This goal is at least as important in actions involving intrprovincial tors asi is in cases of international torts. To the extent that the application of the ler Joc delict reflects the underlying insurance coverage of ‘Canadian motorists, the standard polices of every province make no distinction between accidents in Canada and accidents in the United States. In short, all the reasons that La Forest J. considered as justifying his rule on the facts of Tolofton/Gagnon apply to an international tor”. % Supra nto 23. The fas of Babcock v.Jacson ae try, bat moe ex than here, set ct in Tolfon Gagnon at 1055-56, © The New York cou’ rial wat motivate hy excl he same east moved the Supreme Cos refi toaply the ume le in ela, etigew, prance, “The sploation oft etal Suashewan ruin olfon byte Supreme Cou uid te dana of he plas action agin sft. The pif ahs fer Both came tem British Colin. Thre was avr defer « Sukashvan esa, ut ht fc i comply ilevat oe quan wheter the ‘may sch fae. © "The Court of Appeals conchon guste pa. 20, above. Sex,eg, RRO, 1980, Rep 676, (1) The Repti ie atin Ofna Ingo (195), 22 OR 16, Theme tobe apd to ttt ecu cuide Cand tnd the United Stet may, peraps, be juny ies Iti the reasons that woul jsf theeifience wou ast were, coud fo show hat even wih, ‘Cana he er edt cmt ped asthe Supreme Court appears ba ined ht it bape0 (1999) 12.2 Revue québécoise de droit international ‘The importance of Babcock v. Jackson lay in the fact that it rejected the structure of conflicts analysis that underlay the Restatement; it rejected the concept of a governing law chosen by reference to a connecting factor, ic., the place of the tort. In doing so, it rejected the process of characterization and the possibility of renvoi. The court in Babcock v. Jackson chose instead to apply a law to govern an issue in the cas itself, the question whether the plaintiff might sue the defendant by one law, the law of New ‘York, leaving it open to apply another law to govern another issue o if there were another defendant. I cannot here review the development of American law since Babcock v. Jackson, The development has not been even and any rule that has been proposed has ‘proved inadequate in some situation. What has endured is the determination to avoid the ‘kind of conceptualism that underlay the Restatement and an effort to find defensible bases for the results reached. ‘An aspect of Tolofson Gagnon that is particulary sad isthe apparent failure of the Supreme Court to understand what happened in the United States”. La Forest J. is seduced by an idea that has been frequently cited as an alternative to the rule of the Restatement, viz, that the court should apply, instead of the lex foci deticti, the “proper Jaw of the tor”. This idea was originally floated by John Moris, then the editor of Dicey, ‘The Conflict of Laws". Babcock v. Jackson did not, as La Forest J. suggests, adopt this idea. As articulated by Moris the ‘proper law of the tort” was a rule of the same type as. the lex loc delet it selected or chose law to govern the tort; the New York Court of Appeals did not adopt Morris's suggestion. For several years I had had the hope that the combination of Moran and ‘Morguard had opened new light and understanding on the analysis of conflicts cases in Canada. In many respects those cases were among the very best in the common law world for dealing sensibly with conflicts cases, ie., cases with geographically complex facts. Tolofon/Gagnon has se this development back by decades, T hope not for ever. If ‘ve examine, for instance, the justification for the result slated by Cumming J in Hurst v, Leimer’” not one of his claims is valid . ‘The statement that “under the rules of private international law the applicable substantive law is normally the place where the tort arises or lex Joci delict” is circular, There are no “rules of private intemational law” other than those made The Supe Cot fr t 1056, one cas, Richard. Ute States, 369 US 1 (1962) at 11-14, dios ‘bre Babook v.Jacaon fr the prepation th he majesty of Amen stats “al” arly te rule of the 1934 Rete 4. Mai «The Prope Law of Tor (1981) 64 Hav. Lev. 8 inp song theca tht ad gen me pe ws the dion of th Osi Cont of Appeal in Grimes Cloutier, prac ‘Suprance 16. Te qutaton tout at para. 14 above‘The Aftermath of Tolofson v. Jensen; Lucas v. Gagnon n by the court and to say that one form of such a rule is justified because it exists adds nothing to our knowledge of the world or what form the rule should take. + The statement that the place where the tort arises “is the place where the defining activity occurted that gives rise to the claim ofa civil wrong in tor” is again circular and misleading. Itis circular because whether anything that hap- ‘ens anywhere in the world does or does not give rise toa cause of action before ‘an Ontario court depends on that court holding that it does. Ifthe Ontario cour, for example, holds that the question is a “contracts” question and not a “tors” ‘question, the “place where the defining activity occurred” may ultimately be relevant in the determination of any issue because the choice of law rule associ ated with contracts is not the same as that associated with torts, (Cumming J (Gaul La Forest I) ae also here stating the “vested rights” theory of confit that hhas been rejected in the common law world for about 80 years). Furthermore, the statement is misleading because, as La Forest J. had to admit’, the place where any “defining activity” may have occurred may be anything but lear. (Consider, ¢g., cases of products liability and multi-state libel") + Cumming J, like La Forest J. is hostile to “forum shopping”. There are two aspects to this attitude, one justifiable, one not. The justifiable position is that the plaintiff should not be able, just because it has the opportunity to choose the Place where to sue, to put the defendant at a serious tactical disadvantage. This ‘concer will not be dealt with by any choice of law rule but by direct controls on ™ Seesyramt af 1040 La Foret ut te sera f Wisin Pip (70) 6QB a8 {Civ iabiy rsing oat of ong ers sbi fom to of hs eo coe dit arn etry et aor than (1080 Insert wong overey at isn te ht we sack gc ss tat 5 tat fo laa oss “hoses nade by Wil faye bmn ara dic eal ofthe vata oy, Dat oo (st my Knowl fal vt saps ow at wes ang er than teeing fat sey of otis hy While Dio. the egal aut of te erg Engh ea 4 Digest of he Law of Enlai reference The Corfe of Laws bbe 196, tel he etl igi ay “pea ep’ dang ine Gry wre dct ely th heen in 1932. Th hry war abr ‘sch eiton ees eon und Jon Mani, aby eight eee “Gers” ‘nab boned awl kip cases Dion's ste its ory ands vation Flom ‘sg at Dicey neverok vr saad eden itemer at, gids cin riers nw ay cur bet ti on and wt hy sep ido ede rig le wha ny nice a eign a, a ak ‘Seared urea fai nny vs of Sexe, promt 1050, Te an fhe pany of Tolfomagon in x atte el tion was din Ole Coit Pablshig id, Parma (190), CPG. (4) 95, aie 72 Janay, 1998 (Ont CL (Gon Di) rakebire 5 CA, Krew, Cathy & Osborne 1A) be cout el ha Oras aot ei See Shor Prase lane, 199613 AUER. 909, (L) where it ms hed flowing rug ate Cot ‘air be Exon Con hat be pi tae el ction cl te yin ‘ih he ie! le blsn (1999) 12.2 Revue québécoise de droit international Jorum non conveniens. The more general atitde — forum-shopping is bad — ‘is based onthe idea that Ihave already refered to, vi. that uniformity of results is a “good thing” and to be sought through uniform choice of law rules”. There {sno justification for such an attitude, The logical development ofthe ideas in ‘Morguard entails the recognition that, so long as both courts have behaved themselves in the constitutional sense, the courts of two provinces may be per- ‘mitted to differ in the results that they reach on identical facts. This postion can be justified on the ground that, if provinces can differ in their legislative solu- tions to social problems, so too can the courts of each province". The claim that an “act committed in one province should be given the same effect throughout Canada” simply cannot be sustained under Morguard and a uniform solution no ‘more conforms to the Canadian Constitution that does one that would permit di- versity ‘The “reasonable expectations ofthe persons involved” have nothing to do with anything unless there is evidence that the peop involved would be unfairly sur prised by being made liable in circumstances where they did not expect to be. ‘This issue was the focus ofthe judgment of the Court of Appeal in Grimes v. Cloutier” and the Court of Appeal’s disposition was an excellent one, dealing precisely with the issues that had to be considered. Whether and to what extent parties have actual expectations and the extent to which any can be protected is a very dficalt issue. ‘The form of the rule stated by the Supreme Court, the inability of that nule to be {justified in its application (except where, by accident, it may make sense to be applied) and, above all, the structure of conflicts analysis make it almost certain that courts and counsel will be assiduous in finding ways around it. [have shown that there are several ‘ways in which a court may be offered a basis for reaching “better” results, i. results that a court might want to reach, The tragedy is, ofcourse, that we have to proceed to develop the law in this way. Sex pare 36, above ‘Sez, es aypra ee I at 165-66 where Foe Isdaron 92(1) limi 8 legates McKinlay 1A in gvng the jodgmes of the Ontario Court of Appeal in Qudher Sa Maes de Cha». Ontario Sacrities Comision, pra ice8, ad inthe quotation ste 9, expt eogizs hat ‘Ona coat can ag ates tt Qube St woul. ‘Sigramde I.