C. Extra-Contractual Obligations / Torts

Comments

• T. v. J. and L. v. G. have been criticized quite a bit, for 2 main reasons:

1. Other than with car accidents, it is often hard to determine what the lex locus delicti is, especially in cases of economic torts and product liability claims. As this is such a limited rule, it makes little sense that it should be the main rule for inter-provincial torts.

2. Even with car accidents, it’s not a great rule. What if the parties involved both have a common domicile elsewhere? Then you are just forcing both of them to be inconvenienced if you make them stick to where the accident happened. The CCQ makes an exception for such cases, but this can lead to even more conflicts.

• Walsh still likes this as a rule for car accidents, though, as it seems to be more fair than the old rule.

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  SCC decision in McLean v. Pettigrew based on English decision (Phillips v Eyre) gives choice of law regime in Qc before Code. Phillips Easily qualifies as the most criticized CML decision ever rendered. Imprisonment ordered by the governors (Eyre) of Jamaica for rebellion. Loci delicti is Jamaica.
  
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  False imprisonment is cause of action brought before English courts.
  
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  The governor subsequently passes a law to legalise his actions
  
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  Rule emerging from the case: in order to found a suit in Eng for a foreign wrong, two conditions must be met: (1) wrong must be of such a character that it would have been actionable if committed in England, and (2) the act must not have been justifiable by the law of the place where it was done.
  
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  Action in English court for damage caused by English vessel in Belgian waters by negligence from Belgian operators. This case gave first part of rule.
  
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  Second part of rule: that act must not have been justifiable under lex locii delicti comes from facts of Phillips v Eyre. Here it was justified action under Jamaican law.
  
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  This “Phillips” rule survived in Canada until Tolofson.
  
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  Phillips and Eyre also went through other interpretation in Machado v Fontes.
  

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  Law of forum governs and is the applicable law for civil liability (tort committed) somewhere else. This is the general choice of law rule that comes from Philips and Machado cases. So, forum governs the law applicable provided you can show it is 1) actionable and b) not justifiable.
  

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  In some cases it was barred to have any cause of action by passenger (in Ontario), but this was not so in Qc. Or there is a cause of action with a lower standard of care (willful and wanton misconduct – intentional).
  
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  These statutes were passed to prevent collussion bt drivers and passengers (insurance fraud).
  
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  These case have provided a contribution to Choice of Law jurisprudence.
  
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  At the SCC 2 q’s: 1) Actionable  Yes 2) Is it a wrong? Yes (eventhough driver acquitted of negligent driving)
  
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  This remained law until Jensen. Why so long?
  
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  Almost all cases of choice of law involving auto accidents involve common domicile bt Pl and Df.
  
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  So courts decided that lex locii delicti was applicable jur’n. In 80s there was expansion of jur’n of courts.
  
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  Bf only time you could sue Df outside of lex locii delicti was when Df had domicile elsewhere.
  
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  Qc passed statute w/ No fault compensation scheme for accidents suffered on the road. Only exclusive no fault compensation scheme in NAm bc it completely eliminates right of injured party to sue for damages under tort. Only place you can get some is through Regie of Auto Insurance. Doesn’t matter if you are Qc resident or not. If accident happens in Qc that’s only source of remedy.
  
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  Diff bt 2 systems is that Qc one is universal so you don’t burden welfare system. Trade off is limit is far below for damage and payment of suffering. Other limit is amount given for loss income.
  
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  Law of place of tort governs and there is no excpetion to that rule. That’s how it stands today. The fact that Pl and Df may be from same plce does not change the outcome.
  
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  What are the benefits of this rule? Simple and predictable but mainly only for motor vehicle accidents since it is single damage-causing event. It discourages forum shopping since there is only one possible outcome: law of where the tort occurred applies. Promotes admin of justice and discourages frivolous claims (normally cross claims) against persons who may have been involved but who’s local resident and changes law so you may get search of local Df.
  
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  SCC says lex locii delicti is rule for all CML provinces and the same had already been said for Qc. LaForest argues it is cleearly constitutionally appropriate for province to legislate over what happens within their borders (such as motor vehicle accidents) (see para 72). Problem is then that provinces can legislate out of this.
  
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  Lex loci delicti ule has virute that it keeps us in clear constitutional territory. LaForest raises q’n addressed in jurisprudence: we know that Ont can’t pass statute legislating on accident that occurs in Qc. But effect of Phillips and Eyre and Machado v pettigrew rules means Ont tort law applies for civil liability for something that occurs in Qc.
  
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  Qn then is: are judges subject in choice of law formula, to the same constrains as the legislature. Can you have consitutionally permissible to have choice of law rule that does indirectly what the forum legislature couldn’t do directly?
  
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  Resulf of old PvE formula was samething as if Ont had passed such a statute. LaForest doesn’t say that same constitutional scrutiny should apply. He’s saying that PvE is unconstitutional choice of law rule.
  
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  Internationally what is the rule? (before this it was interprovincially) Para 15 shows how approach is not that different. LaForest accepts exeption in interest of justice, but sees no reason why does exceptions cannot be confined. Ie, the should really be excemptions.
  
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  Says maybe we can do something other than lex loci delicti, but does not open door very wide. Must show something unjust to have something else apply.
  
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  In Somers, the Ont C of Appeal reinforces exemption in int; context as indeed very narrow and not enough that the laws be different.
  
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  A couple of mistakes in judgment which show there is something wrong with this decision. Para 29 has reference to House of Lords decision in which English courts overrule common choice of law and allow cumulation of rules. LaForest sees rule almost as perverse as Philips vs Eyre. Says if we can apply law of forum exclusive where all consideration make that the right choice, LaForest says court did not apply the exception but they DID. It’s not accurate represenation.
  
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  Later on in judgment in para 56 it is acknoledged that there was diff. This is direct contraction with para 29.
  
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  Para 29 also talks of red sea insurance case in which HoLords says double accionability gives rise to exception. LaForest says privy council is dealing with Contract under law where contract was made rather than where tort was committed. But this is not a contract case! This may seem too detailed an analysis but it is important to notice errors since it fuels lack of confidence in this case.
  

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  Somers, resident of Ont, got into car accident in NY w/ NY residents. Brought action in Ont. Df attorned
  
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  Df moved to have NY law apply. Motions judge accepted NY law w/ Ont jur’n.
  
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  Appeal is on judge’s decision that pre-judgment interest, costs and Ont ‘cap’ on non-pecuniary general damages are procedural in nature and therefore governed in the action by law of Ont. Fourniers wants this to pay less $$$.
  

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  Substantive law creates rights and obligations and is concerned w/ ends w. administrastion of justice seeks to attain. It determines conduct of court and litigants in respect of the matters litigated.
  
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  Procedural law is the vehicle providing the means and instruments by which those ends are attained. It regulates conduct of courts and litigants in respect of litigation itself.
  
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  Costs used by Ont courts to reward or sanction conduct of parties prior to and during litigation.
  
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  Costs are means by which the ends of justice are attained. Therefore incidental to determination of rights of parties.
  
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  Costs not part of the lis between the litigants and so are procedural matter governed by the lex fori (ie Ont)
  
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  Pre-judgment interests are at court’s discretion in relation to denial/reduction (not granting) of a right. The character of this discretion makes it qualitative diff from wide discretion to grant or deny costs. So it’s substantive law.
  
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  Discretion to apply lex fori in intl litigation where necessary to avoid injustice is limited and to be exercised only in compelling and exceptional circumstances.
  
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  Pl opted to claim no-fault benefits of Ont scheme. Cannot complain now of consequences of this decision.
  
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  Denial of opportunity to claim damages by reason of expiration of a limitation period does not constitute injustice sufficient to support an exception to lex loci delicti [same as Tolofson and Roy].
  
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  Operation of limit on liability by reason of no-fault tort compensation regime doesn’t meet req’t for demonstration of injustice sufficient to depart from lex loci delicti rule.
  
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  Remoteness and heads of damages are questions of substance governed by the lex loci delicti.
  
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  Quantification or measurement of damages is question of procedure governed by lex fori.
  
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  Ont cap does not bar claim for damages for pain. It assumes liability is susceptible of assessment, but directs court to impose an upper limit on quantum. So in essence cap is judicially imposed limit or restriction on liability for non-pecuniary damages.
  
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  Cap is device devp to avoid excessive and unpredictable damages awards and is social policy consideration. This makes the cap a matter of procedural law.
  

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  Represents one of few cases that show characterization of law
  
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  Gen idea in US is that you have right to go to court and if we were to require cost of one party to be put on the other this would discourage ppl from going to court. Often cited as explanation for higher rate of litigation in the US. Reflects cultural difference re: access to justice.
  
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  Important issue bc if rule of cost was to be set aside, then law of NY governed and unsuccessful party would pay only his own lawyer. But Ont is law of forum so this is diff.
  
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  2 possible theories: 1) what’s purpose of rule that says that procedure is governed by law of forum. Answer is practical: it’s not practically feasible for court to run according to somebody else’s ideas of procedure. Q’n of administrative convenience. Qn would then be is the rule one that if we apply the foreign rule we can interfere w/ procedural machine or is it feasible to apply without interference? 2) Also about admin feasibility. But goes further: says look at purpose of the rule, nevermind feasibility of applying foreign rule, but classify rule accroding to whether it has something to do with substantive area or with local administration of justice.
  
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  Not inconvenient for Ont to say we have cost rule and NY doesn’t. Not hard to understand. But in next step of whether rule has something to do with gen admin of justice. Yes it does cuz cost rule is designed to structure and control the access to courts and ^^ admin of justice as a whole. So it’s procedural rule.
  
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  Judgment also about the award. Again Canadian law typically provides right for Pl complain to state damage award prior to judgment. Canadian law concludes w/ damage award desgined to represent interests btwn when I set actionand when I got judgment. So it allows for diff btwn the 2, ie interests. It’s there bc time period can vary greatly. Also bc sometimes other party is using delay tactics. So idea of awarding in judgment interests is to compensate Pl for the delay and loss of access to the $$ and also to recognize that thru no fault of Pl the time period can be arbitrary.
  
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  US law awards no pre-judgment interests. So again, does this go to merits of claim or to admin of justice. Here conclusion is that it goes to both. Clearly it is compensatory and part of damage awards, but there is element of admin of justice bc court has discretion to not award it or to chage the rate according to conduct of litigants (ie if Pl delays to get more in interests).
  
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  Similar to qn of costs. Despite that discretion it was qualified as substantive issue.
  
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  Also issue of cap of damages of injuries in the Andrews Triology was matter of procedure or whether it was governed by NY law that imposes no such limits. Court concludes it’s procedural. This is initially shocking. Surely there’s nothing more substantive than diff btwn $1 million and $5 million in damages. Surely dollar value of recovery is substantive. Cant say it’s mere matter of procedural machinery? Doctrinal rule pulled out by court is that there’s distinction in this area btwn heads of damages and quantification of each of those heads of damages. Here concerned w/ damages for pain and suffering (non pecuniary loss) and this is governed by lex locii delicti bc it’s substantive and not procedural. But once we decide the kind of claim is compensable, the dollar value is gonna be determined by the laws of the land, and so it is procedural as it goes to quantification of damages.
  
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  Rule of quantification applied by lex loci delicti may not be won if local court is capable of setting damage awards. Diff to US where juries can set damage award.
  
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  There’s a sense that if it’s Can court givin Can justice there has to be Can connection and from policy point of view Can standards must apply.
  
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  Keep in mind that this is for non-pecuniary losses (ie non quantifiable losses).
  

Beyond Motor Vehicle Accidents:

Decision not quite as rigid as made out to be. Yes, it’s rigid to have lex loci delicti. But it’s not worse rule either. Area where insurance coverage is possible universally.

For other kinds of tort action it’s not bad rule bc it doesn’t tell us anything and only asks question of what is the applicable rule. It makes us asks what the lex locii delicti is.

2 common case: defamation and liability for product defects.

In Tolofson there is one part in judgment that says that for defamation appropriate rule was to apply rules of place where the effects are felt. At another point of decision (para 43) territorial analysis is starting point but not the end point. May have situations where injurious activities take place in one jur’n and effects are felt somewhere else. There it miught be more appropriate to regard tort as taking place where effects are felt. Other case is where the tort happens internationally (ie crossing borders) and it’s better not to think in strict territorial terms. Ie so in every other area from car accident, the rule isnt rigid by terms of the decision itself. Court says you have to look at context. Ironic that rigid rule sought is only easy to apply in accident cases.

Think of negligent misrepresentation where info comes from England, distributed to 4 countries and it’s relied on so damages happen in all four places. What should be applicable law? There isnt obvious abstract answer.

CCQ didn’t want to leave this to court so it has Article 3126: where negligence is carried out is where obligation is incurred. Unless injury appeared in another country and it was reasonably foreseeable. Allows for law of one country if that country is residence of both Pl and Df.

Products liability dealt with in 3128. Interesting collusion. May be of grave difficulty. If we didn’t have 3128, 3126 would apply for products liability and then law of place of manufacturer would apply unless manufacturer foresaw another place where product causes injry.

But drafters did something different. Says liability of manufacturer is governed at choice of victim! The choice is bt where manufacturer has establishment (or, if N/A, residence) or law where product was acquired.

Gives Pl control of applicable law from the outset. But with Limited choice. So drafters device choice of law rule that gives Pl choice as opposed to court set rule which tend not to have choices.
Babcock v. Jackson

NY residents in an Ontario court were trying to recover damages from a driver for negligence in driving. They were up in Ontario for a weekend. However, Ontario statute prevented a claim against a driver for gratuitous passengers.

Here it played out in favor of NY law. Here prohibition of passenger suing driver in was to protect Ontario insurance companies from collusive insurance fraud by Ontarians. However, here we have no Ontarian insurer or party. So, presumably Ontario’s interests in their law are not affected. However, NY has an interest in their law being applied since they have specifically chosen to allow this liability. NY has a strong interest in having its liability rules apply where victim is NY resident and NY is clearly interested in compensation issue.

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   Statutory interpretation is required to decipher the policy behind the law.
   
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   It is unpredictable.
   

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  Is it possible for court to always say that it’s one thing or another always? Problematic also bc connections change and this means you need to go into whole new analysis and makes PrIL very unpredictable.
  
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  In Tolofson, LaForest says how NY court took different approach while majority of other states maintained the lex locii delicti rule. This is not true! Most have adapted it and molded it.
  
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  Rules of choice of law are quite stable and not just for will of the party and most significant connection in K.
  

Their was a subsequent attempt to make more complicated rules to decide these issues.

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   Apply the “better” law.
   
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   Focus on the needs of the interstate system
   
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   Follow the reasonable expectations of the parties.
   
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   Etc.
   

This whole series of developments was called the American Revolution in conflict of laws.

Defamation

In a minor aside in the context of another discussion, La Forest says that he would assume that lex loci delicti would apply to defamation.

The internet has complicated this issue since information is spread rapidly to many places. Further, Defamation laws vary radically from one place to the next. It is very specific and even cultural. UK is very protective of reputation and has a low threshold for defamation. US is on the other side of the spectrum with a very strict, high standard for defamation so as to protect freedom of speech. Thus, what constitutes defamatory publication in one jurisdiction may not in another place.

Example: ABC company has HQ in Toronto and has four offices in different countries. A disgruntled employee creates a website with allegations of corruption by the company and its officers. So, ABC wants to bring an action in defamation against this employee. The first issue will be jurisdiction. Then comes choice of law.

From the defendant’s point of view, you would want the applicable law to be the law of where the server/publisher exists. This allows them to have a certain amount of control. They can locate the server in a jurisdiction that has lax defamation standards. However, this is precisely what creates a problem with this approach.
From the plaintiff, lex loci delicti is preferable. The damage to reputation occurs in the place of domicile/business. This makes sense given that the reputation that is damaged only exists in the place of business of the plaintiff.
Now the law allows claims based on the law of where they are claimed with some reservations. This, of course, brings along with it the obligation to bring forward separate claims for each jurisdiction (all at the same court if desired) as well as prove the existence and loss of reputation and the fault in each jurisdiction. There is no single governing law theory. So, you would have to section out your loss by the jurisdictions in which you can claim.

Products Liability

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  CCQ gives victim choice between two sets of laws (see above)
  
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  Idea of choice is fair bc it holds manufacturers to highest standards.
  
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  But problem arises when injury occurs somewhere different from where product was bought.
  
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  If injury occurs to other person other than me who had nothing to do with acquisition of product then they are bound by law of where product was purchased and not where damaged was suffered. This is downside of Qc rule.
  
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  Maybe courts would find way to go back to general rule in such a fact pattern
  
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  In CML, not many cases, but general interpretation (Tolofson) is that it is where damage was suffered, not place of residency or place of manufacturer.
  
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  Nobody has argued for applying CCQ in CML.
  

Directory: pubdocs -> files -> privateinternationallaw
files -> Chapter 1: Property as rights, not thing
files -> Insurance Law – May 4
files -> Contractual Obligations – Prof. Helge Dedek Introduction 1
files -> Constitutional Limits on Criminal Law 1
files -> Antonio Iacovelli Winter 2005 Advanced Criminal Law
files -> Part I: conceptualizing and justifying ip space 3
files -> Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law?
files -> Topic One Seaworthiness and Common Venture, chapter 15
privateinternationallaw -> Tetley (2002) introduction to conflict of laws 5

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