A Little Bit of Review – Questions from page 261

Choice of Law in Contract

Quebec

3111 express choice

3082, 3112, 3113 closest and most real connection

3111(2) and 3079 mandatory rules

Rome

3(1) implied choice

4(1), 4(5) and 6(2) closest and most real connection

3(3) and 7(1) mandatory rules if all the other elements are connected to another country (exception but England, Ireland, Luxembourg have not accepted)

Ontario and Federal

Colmenares – express choice otherwise closest and most substantial connection

Maritime

Choice of Law in Tort

Generally, lex loci delicti, joined with the possible exception of closest and most real connection

Quebec

obligation to make reparation subject to the lex loci delicti but law of a latter country applicable if person could have foreseen damage would have occurred there

Federal Canada

Tolofson – LaForest – lex loci delicti joined with the possible exception of the most real and substantial connection combined with forum non conveniens…Major discusses an international exceptions may not be applied where it would work an injustice

Gagnon – might be exception for common domicile rule where an injustice

Hanlan – injustice from Major – application of Ontario law to a situation where two Ontarians have an accident in Minnesota

Maritime

Exception of common residence or common domicile

Quebec – 3126(2) – lex loci delicti or if common domicile we take that

Federal Canada

Maritime – Collision Convention 1910, article 12(2)

exception for common flag

Quebec and Federal Canada dichotomy

Obligatory Forum Court Statutes – statute that insists that forum will apply a certain law no matter what

Quebec – 3076, 3119 (insurance), 3129 (asbestos) -

Rome – 7(2)

1976/96 Shipowners’ Limitation of Liability Convention, articles 1, 14 & 15

Marine Liability Act, 2001 – Canada adopts the Convention
Mandatory Rules – Hague/Visby Rules, Consumer Protection Act – need to apply this law and you cannot contract out of it

Public Order – a principle of society and in conflicts applies to choice of jurisdiction and affects the choice

Obligatory Forum Court Statutes – statutes that force the forum to adopt a specific law
Exam Questions

• 
  Dear Sir/Madam
  
• 
  Thank You for giving me the case/claim
  
• 
  The Facts – the facts as you have mentioned are below, and if there are any other facts please advise me (insurance policy)
  
• 
  The Pertinent Facts or Contacts
  

• 
  Page 261 – Question 1
  
  • 
    Facts
    
    • 
      Accident in Ontario
      
    • 
      Auto driven by Smith of Ontario
      
    • 
      Auto driven by Brown of Manitoba
      
    • 
      Parker of Manitoba is passenger in Brown’s car
      
    • 
      Delay for suit in Ontario has passed by the time the claim was brought to you by client
      
    • 
      Ontario guest statute precludes a gratuitous passenger from suing unless gross negligence (does not exist here)
      
    • 
      Parker asks for opinion on chances of suit if he should take suit and where he should take suit
      
  • 
    The applicable law – Tolofson
    
  • 
    Jurisdiction
    
    • 
      even if you want to sue in Manitoba, you can’t because Tolofson says that lex loci delicti applies and since the act happened in Ontario, you have to apply Ontario law and the action is too late and the guest statute limits this
      
    • 
      only exception is international injustice which does not apply here
      
• 
  Question 3
  
  • 
    A – Hanlan or Wong and common domicile rule
    
  • 
    must say whether there is an injustice and which way the injustice goes
    
  • 
    B – both parties Ontario residents and accident in Quebec – QC Auto Insurance Act
    
  • 
    C – Quebec residents and accident in Vermont – common domicile
    
  • 
    D – both parties Quebec residents and accident took place in Ontario and sued in Quebec – Quebec law applies Auto Insurance Act and 3126 CCQ
    
• 
  the common domicile rule is applied very differently by different places
  
• 
  Question 4
  
  • 
    Pertinent Facts
    
    • 
      Americna workers
      
    • 
      contracted lung damage in Ontario
      
    • 
      sued in Louisiana against defendants
      
    • 
      Defendants do business in Louisiana, among other states
      
    • 
      service ex juris – served outside jurisdiction in Ontario
      
    • 
      Louisiana has no forum non conveniens
      
    • 
      an anti-suit injunctions was requested in Ontario
      
  • 
    which law would Ontario court apply
    
    • 
      Amchem – did not grant anti-suit injunction
      
    • 
      If suit were taken in Quebec, 3129 applies and they take jurisdiction
      

April 2003 Exam Question #2

• 
  Dear Sir or Madam (Alex)
  
• 
  Thank You for giving me this case
  
• 
  If these facts are not complete, please send me any more information that you may have or may have gathered…
  
• 
  The pertinent facts or contacts are…
  
  • 
    You are domiciled in Ontario…Pierre is domiciled in Quebec and Fred is domiciled is Ontario
    
  • 
    You were on a business trip in Florida, United States
    
  • 
    Borrow a bicycle built for three and you negligently steer in to a pole on the side of the road
    
  • 
    You are flown home injured
    
  • 
    Pierre and Fred are uninjured but had to spend five days rearranging their trip and getting home – there are 5 days of lost income (PEL = $5000 – they are self-employed)
    
  • 
    Florida law permites jury trials and generally awards high damages
    
  • 
    Pierre starts suit in Quebec and Fred starts suit in Florida (neither has yet been served)
    
• 
  Suit in Quebec
  
  • 
    3148(3) damages suffered in Quebec