Tolofson v. Jensen (1994), 175 N.R. 161 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Leroy Jensen and Roger Tolofson (appellants) v. Kim Tolofson (respondent)
(22980)
Réjean Gagnon (appellant) v. Tina Lucas and Justin Gagnon, by their litigation guardian Heather Gagnon, Heather Gagnon personally, and Cyrille Lavoie (respondents) and Sybil Marshall, Victor Marshall, Dianne Margaret Marshall, Rosemarie Anne Marshall, Carmen Selina Frey, Aditha Le Blanc, Clarence S. Marshall, Les Services de béton universels Ltée, La Société d’experts-conseils Pellemon Inc. and Le Groupe Pellemon Inc. (interveners)
(23445)
Indexed As: Tolofson v. Jensen and Tolofson
Supreme Court of Canada
La Forest, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major, JJ.
December 15, 1994.
Summary:
In the Tolofson action, the infant plaintiff (Tolofson) and his father were British Columbia residents. Tolofson was injured in an automobile accident in Saskatchewan with the defendant driver, a Saskatchewan resident. Tolofson brought a negligence action for damages in British Columbia against his father and the defendant. The defendant applied to dismiss the action on the ground that Saskatchewan was the forum conveniens or, alternatively, that the laws of Saskatchewan applied (i.e., including a one year limitation period and the need for gratuitous passengers to prove gross negligence).
The British Columbia Supreme Court, in a judgment reported 40 B.C.L.R.(2d) 90, dismissed the application. The court stated that British Columbia courts had jurisdiction and British Columbia law applied. The defendant appealed.
The British Columbia Court of Appeal, in a judgment reported 11 B.C.A.C. 94; 22 W.A.C. 94, dismissed the appeal. The defendant appealed.
In the Lucas action, the plaintiff passengers (Lucas et al.) and their driver (Gagnon) were involved in an automobile accident in Quebec with the defendant Lavoie. Lucas et al. and Gagnon were Ontario residents. Lavoie was resident in Quebec. Lucas et al. sued Gagnon and Lavoie in Ontario, but discontinued the action against Lavoie. Gagnon cross-claimed against Lavoie for contribution and indemnity. The parties submitted the following questions to the court under Civil Procedure Rule 22: (1) did the Ontario court have jurisdiction and, if so, should it exercise that jurisdiction and (2) did Ontario or Quebec tort law apply to the action and was the Ontario defendant entitled to maintain his cross-claim against the Quebec defendant.
The Ontario Court of Justice, General Division, in a judgment reported 3 O.R.(3d) 38, ruled that it had jurisdiction and would exercise it. The court also determined that Ontario law governed the action and the Ontario defendant could maintain the cross-claim. The defendants appealed only the decision that Ontario law applied and that the Ontario defendant could maintain his cross-claim.
The Ontario Court of Appeal, in a judgment reported 59 O.A.C. 174, allowed the appeal in part. The court affirmed that Ontario law applied to the plaintiffs’ action against the Ontario defendant. The court dismissed the cross-claim, which could not be sustained in Ontario against the Quebec defendant. Lucas et al. appealed. The Tolofson and Lucas appeals were heard together.
The Supreme Court of Canada allowed the Tolofson appeal and remitted the matter to the British Columbia Supreme Court for determination based on the finding that Saskatchewan’s substantive law applied to the action and the Saskatchewan limitation period was substantive law. The court allowed the Lucas appeal and stated that the actions of Lucas et al. and Gagnon’s cross-claim should be dismissed. Quebec’s substantive law (which precluded the action) applied to the accident.
Conflict of Laws – Topic 1664
Actions – Forum conveniens – Considerations – The Supreme Court of Canada stated that “in Canada, a court may exercise jurisdiction only if it has a ‘real and substantial connection’ (a term not yet fully defined) with the subject matter of the litigation; … This test has the effect of preventing a court from unduly entering into matters in which the jurisdiction in which it is located has little interest. In addition, through the doctrine of forum non conveniens a court may refuse to exercise jurisdiction where, under the rule elaborated in Amchem … there is a more convenient or appropriate forum elsewhere.” – See paragraph 40.
Conflict of Laws – Topic 7602
Torts – Jurisdiction – Torts occurring outside jurisdiction – The plaintiffs, residents of Province A, were passengers in a vehicle registered and insured in Province A – The driver was also resident in Province A – The passengers were injured in a collision in Province B – That driver was resident in Province B – The plaintiffs sued in Province A – The issue was which province’s substantive law applied to determine liability – The Supreme Court of Canada held that the general rule was that the substantive law of the lex loci delicti (where accident occurred) applied, subject to circumstances where a rigid application of the rule would result in injustice (international litigation only) – The rule had the advantages of certainty, easy application, predictability and met normal expectations – The court rejected the approach of the courts applying their own substantive law subject to the wrong being “unjustifiable” in the other jurisdiction – That rule violated the territoriality principle – The court also rejected the “proper law of the tort” rule – See paragraphs 40 to 72.
Conflict of Laws – Topic 7602
Torts – Jurisdiction – Torts occurring outside jurisdiction – The infant plaintiff was injured in a motor vehicle accident in Saskatchewan between his father and the defendant Jensen – The infant and his father were from British Columbia – Jensen was from Saskatchewan – The defendant father was served in British Columbia – The plaintiff would be deprived of a legitimate juridicial advantage if forced to litigate in Saskatchewan (one year limitation period for infants and need to prove gross negligence by gratuitous passenger) – The British Columbia Court of Appeal held that the British Columbia courts had jurisdiction to hear the action – The Supreme Court of Canada affirmed that British Columbia courts had jurisdiction, but that Saskatchewan’s substantive law applied to determine liability – See paragraphs 73 to 90.
Conflict of Laws – Topic 7602
Torts – Jurisdiction – Torts occurring outside jurisdiction – [See first
Conflict of Laws – Topic 7653
].
Conflict of Laws – Topic 7653
Torts – Choice of law – Rule in Phillips v. Eyre – An accident occurred in Quebec – The Ontario plaintiff passengers brought an action for damages in Ontario against the two drivers involved, one from Ontario and one from Quebec – The action against the Quebec defendant was discontinued – The Ontario defendant cross-claimed against the Quebec defendant – The Ontario Court of Appeal applied the Supreme Court of Canada decision in McLean v. Pettigrew, as it interpreted Phillips v. Eyre, to hold that Ontario tort law applied to the main action – The Supreme Court of Canada overruled McLean v. Pettigrew and held that the substantive law of Quebec (lex loci delicti) applied – The court affirmed dismissal of the cross-claim – See paragraphs 91 to 98.
Conflict of Laws – Topic 7653
Torts – Choice of law – Rule in Phillips v. Eyre – [See first
Conflict of Laws – Topic 7602
].
Conflict of Laws – Topic 7686
Torts – Choice of law – Torts affecting the person – Claims for contribution between tortfeasors – [See first
Conflict of Laws – Topic 7653
].
Conflict of Laws – Topic 7690
Torts – Choice of law – Torts affecting the person – Damages – [See first
Conflict of Laws – Topic 7653
].
Conflict of Laws – Topic 7690
Torts – Choice of law – Torts affecting the person – Damages – The infant plaintiff was injured in a motor vehicle accident in Saskatchewan between his father and Jensen, a resident of Saskatchewan – The accident occurred in a foreign jurisdiction and the plaintiff brought his action in his province of residence – The Supreme Court of Canada held that the substantive law of Saskatchewan (including its limitation period) applied to determine liability – See paragraphs 73 to 90.
Conflict of Laws – Topic 7692
Torts – Choice of law – Torts affecting the person – Limitation of actions – [See
Limitation of Actions – Topic 6
].
Limitation of Actions – Topic 6
Nature of limitation provisions – The Supreme Court of Canada held that a statutory limitation period was substantive law, not procedural – See paragraphs 74 to 90.
Cases Noticed:
Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81; [1991] 2 W.W.R. 217, refd to. [para. 1].
Hunt v. Lac d’Amiante du Québec Ltée et al., [1993] 4 S.C.R. 289; 161 N.R. 81; 37 B.C.A.C. 161; 60 W.A.C. 161, refd to. [para. 1].
Hunt v. T & N plc – see Hunt v. Lac d’Amiante du Québec Ltée et al.
Amchem Products Inc. et al. v. Workers’ Compensation Board (B.C.), [1993] 1 S.C.R. 897; 150 N.R. 321; 23 B.C.A.C. 1; 39 W.A.C. 1, refd to. [para. 1].
McLean v. Pettigrew, [1945] S.C.R. 62, overruled [para. 8].
Grimes v. Cloutier and Cloutier (1989), 34 O.A.C. 376; 61 D.L.R.(4th) 505 (C.A.), refd to. [para. 13].
Phillips v. Eyre (1870), L.R. 6 Q.B. 1 (Ex. Ch.), consd. [para. 16].
Chartered Mercantile Bank of India, London and China v. Netherlands India Steam Navigation Co. (1883), 10 Q.B.D. 521 (C.A.), refd to. [para. 25].
Machado v. Fontes, [1897] 2 Q.B. 231 (C.A.), consd. [para. 26].
Canadian Pacific Railway Co. v. Parent, [1917] A.C. 195 (P.C.), refd to. [para. 27].
Chaplin v. Boys, [1969] 2 All E.R. 1085 (H.L.), affing. [1968] 1 All E.R. 283 (C.A.), not folld. [para. 27].
Red Sea Insurance Co. v. Bouygues S.A. et al. (1994), 174 N.R. 241 (P.C.), refd to. [para. 28].
Going v. Reid Brothers Motor Sales Ltd. (1982), 35 O.R.(2d) 201 (H.C.), consd. [para. 30].
Walpole v. Canadian Northern Railway Co., [1923] A.C. 113 (P.C.), refd to. [para. 30].
Ang v. Trach (1986), 57 O.R.(2d) 300 (H.C.), consd. [para. 31].
Prefontaine Estate et al. v. Frizzle; Cuddihey et al. v. Robinson et al. (1990), 38 O.A.C. 22; 71 O.R.(2d) 385 (C.A.), refd to. [para. 32].
Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393; 1 N.R. 122, refd to. [para. 40].
Babcock v. Jackson (1963), 12 N.Y.2d 743, refd to. [para. 44].
Breavington v. Godleman (1988), 80 A.L.R. 362 (H.C.), consd. [para. 44].
Richards v. United States (1962), 369 U.S. 1, refd to. [para. 52].
Dym v. Gordon (1965), 209 N.E.2d 792, refd to. [para. 53].
Neumeier v. Kuehner (1972), 286 N.E.2d 454 (N.Y.C.A.), refd to. [para. 54].
LaVan v. Danyluk (1970), 75 W.W.R.(N.S.) 500 (B.C.S.C.), refd to. [para. 55].
Poyser v. Minors (1881), 7 Q.B.D. 329 (C.A.), refd to. [para. 77].
Block Brothers Realty Ltd. v. Mollard (1981), 122 D.L.R.(3d) 323 (B.C.C.A.), consd. [para. 78].
Huber v. Steiner (1835), 2 Bing. N.C. 202; 132 E.R. 80, refd to. [para. 80].
Leroux v. Brown (1852), 12 C.B. 801; 138 E.R. 1119, refd to. [para. 80].
Nash v. Tupper (1803), 1 Caines 402 (N.Y.S.C.), refd to. [para. 80].
Perrie v. Martin, [1986] 1 S.C.R. 41; 64 N.R. 195; 12 O.A.C. 269, refd to. [para. 83].
Yew Bon Tew v. Kenderaan Bas Mara, [1983] 1 A.C. 553 (P.C.), consd. [para. 84].
Clark v. Naqvi (1989), 99 N.B.R.(2d) 271; 250 A.P.R. 271 (C.A.), refd to. [para. 86].
Szeto v. Fédération, Cie d’assurances du Canada, [1986] R.J.Q. 218 (C.A.), refd to. [para. 97].
Statutes Noticed:
Automobile Insurance Act, S.Q. 1977, c. 68, sect. 3, sect. 4 [para. 92].
Civil Code of Québec, art. 3126 [para. 95].
Civil Code of Lower Canada, art. 6. [paras. 44, 93].
Code civil du Bas-Canada – see Civil Code of Lower Canada.
Constitution Act, 1867, sect. 92(13) [para. 71].
Foreign Limitation Periods Act, 1984 (U.K.), c. 16, generally [para. 84].
Highway Traffic Act, R.S.O. 1937, c. 288, sect. 47 [para. 29].
Highway Traffic Code, R.S.Q. 1977, c. C-24, generally [para. 30].
Insurance Act, R.S.O. 1970, c. 224, Schedule E [para. 94].
Limitation of Actions Act, R.S.S. 1978, c. L-15, generally [para. 75].
Negligence Act, R.S.O. 1990, c. N-1, sect. 2 [para. 21].
Real Estate Act, R.S.B.C. 1979, c. 356, sect. 37 [para. 78].
Rules of Civil Procedure (Ont.), rule 22 [para. 15].
Rules of Court (B.C.), Supreme Court Rules, rule 34 [para. 7].
Vehicles Act, R.S.S. 1978, c. V-3, sect. 180(1) [para. 74].
Authors and Works Noticed:
Ailes, Edgar H., Limitation of Actions and the Conflict of Laws (1933), 31 Mich. L. Rev. 474, pp. 487 [para. 80]; 494 [para. 81].
Cheshire and North, Private International Law (12th Ed. 1992), pp. 74, 75 [para. 76].
Cook, Walter Wheeler, The Logical and Legal Bases of the Conflict of Laws (1942), p. 166 [para. 77].
Dicey and Morris, The Conflict of Laws (11th Ed. 1987), rule 205, pp. 1365, 1366 [para. 28].
Dutoit, Bernard M., Memorandum, Hague Convention on Traffic Accidents, Actes et documents de la Onzième session, p. 20 [para. 44].
Hancock, Moffat, Case and Comment on McLean v. Pettigrew (1945), 23 Can. Bar Rev. 348, generally [para. 27].
Huber, Ulrich, De conflictu legum diversarum in diversis imperiis (Essay 1686), generally [para. 80].
Lorenzen, Ernest G., Selected Articles on the Conflict of Laws (1947), pp. 136, 181 [para. 80].
Lorenzen, Ernest G., Huber’s De Conflictu Legum (1919), 13 Ill. L. Rev. 375, reprinted, Lorenzen, Ernest G., Selected Articles on the Conflict of Laws (1947), p. 136 [para. 80].
Lorenzen, Ernest G., Story’s Commentaries on the Conflict of Laws – One Hundred Years After (1934), 48 Harv. L. Rev. 15, reprinted, Lorenzen, Ernest G., Selected Articles on the Conflict of Laws (1947), p. 181 [para. 80].
Michel, M. Jean, La Prescription Libératoire en Droit International Privé (Thesis 1911), generally [para. 81].
Swan, John, The Canadian Constitution, Federalism and the Conflict of Laws (1985), 63 Can. Bar Rev. 271, p. 309 [para. 71].
Walsh, Catherine, A Stranger in the Promised Land?: The Non-Resident Accident Victim and the Quebec No-Fault Plan (1988), 37 U.N.B.L.J. 173, p. 182 [para. 58].
Counsel:
Avon M. Mersey, Elizabeth B. Lyall and Brian F. Schreiber, for the appellants, Leroy Jensen and Roger Tolofson;
Noreen M. Collins, for the respondent, Kim Tolofson;
Allan Lutfy, Q.C., and Odette Jobin-Laberge, for the appellant, Réjean Gagnon;
Robert J. Reynolds, for the respondents, Tina Lucas, Justin Gagnon and Heather Gagnon;
Graeme Mew and Adelina Wong, for the respondent, Cyrille Lavoie;
Brian J.E. Brock and Lesli Bisgould, for the intervenor, Clarence S. Marshall;
Peter A. Daley, for the intervenors, Sybil Marshall, Victor Marshall, Dianne Margaret Marshall, Rosemarie Anne Marshall, Carmen Selina Frey and Aditha Le Blanc;
W.T. McGrenere, for the intervenors, La Société d’experts-conseils Pellemon Inc., Le Groupe Pellemon Inc., Simcoe and Erie General Insurance Company, Les Services de béton universels Ltée and Allstate Insurance Company of Canada.
Solicitors of Record:
McQuarrie, Hunter, New Westminster, British Columbia, for the appellant, Leroy Jensen;
Russell & DuMoulin, Vancouver, British Columbia, for the appellant, Roger Tolofson;
Simpson & Company, Vancouver, British Columbia, for the respondent, Kim Tolofson;
Lavery, de Billy, Ottawa, Ontario, for the appellant, Réjean Gagnon;
Smith, Lyons, Torrance, Stevenson & Mayer, Toronto, Ontario, for the respondent, Cyrille Lavoie;
Reynolds, Kline, Selick, Belleville, Ontario, for the respondents, Tina Lucas, Justin Gagnon and Heather Gagnon;
Dutton, Brock, MacIntyre & Collier, Toronto, Ontario, for the intervenor, Clarence S. Marshall;
Soloway, Wright, Ottawa, Ontario, for the intervenors, Sybil Marshall, Victor Marshall, Dianne Margaret Marshall, Rosemarie Anne Marshall, Carmen Selina Frey and Aditha Le Blanc;
Fraser & Beatty, North York, Ontario, for the intervenors, La Société d’experts-conseils Pellemon Inc., Le Groupe Pellemon Inc., Simcoe and Erie General Insurance Company, Les Services de béton universels Ltée and Allstate Insurance Company of Canada.
These appeals were heard on February 21, 1994, before La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.
On December 15, 1994, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:
La Forest, J. (Gonthier, Cory, McLachlin and Iacobucci, JJ., concurring) – see paragraphs 1 to 100;
Sopinka, J. – see paragraph 101;
Major, J. – see paragraphs 102 to 103.
