Tolofson v. Jensen
Encyclopedia
Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, [1994] 3 S.C.R. 1022 is a landmark decision of the Supreme Court of Canada
on conflict of laws
in tort
. The Court held that the primary determiner in selecting a country's law in tort should be the lex loci
(the location where the tort occurred).
to apply would always be the lex fori
, the local law of the court, irrespective of the connection with the jurisdiction.
La Forest explicitly stated that exceptions to this rule should be rare. He argued that exceptions would "encourage frivolous cross-claims and joinders of third parties", it would create uncertainty, discourage judges to make summary judgments, and would discourage settlement. He contemplated that there may be exception at the international level where there may be injusticeat 307 he stated "However, because a rigid rule on the international level could give rise to injustice, in certain circumstances, I am not averse to retaining a discretion in the court to apply our own law to deal with such circumstances. I can, however, imagine few cases where this would be necessary." or where both parties are domicile
d in the forum.
Alberta later enacted a Limitations Act (R.S.A. 2000, c. L‑12, s. 12) to get around the result in Tolofson.
Subsequent cases have considered the limits of the exception to the Tolofson rule. In Hanlan v. Sernesky (1998, Ont.CA) where the court found exception to the rule on an international matter. However, similar reasoning was rejected on provincial matters in Leornard v. Houle (1997, Ont.CA).
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
on conflict of laws
Conflict of laws
Conflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...
in tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
. The Court held that the primary determiner in selecting a country's law in tort should be the lex loci
Lex loci
In conflict of laws, the term lex loci is a shorthand version of the choice of law rules that determine the lex causae.The relevant rules are:* Lex fori* Lex loci actus* Lex loci arbitri* Lex loci celebrationis...
(the location where the tort occurred).
Background
Prior to this case, the leading case on the matter was McLean v. Pettigrew, [1945] S.C.R. 62 which stated that the proper lawProper law
The Doctrine of the Proper Law is applied in the choice of law stage of a lawsuit involving the conflict of laws.-Explanation:In a conflicts lawsuit, one or more state laws will be relevant to the decision-making process. If the laws are the same, this will cause no problems, but if there are...
to apply would always be the lex fori
Lex fori
Lex fori is a legal term used in the conflict of laws used to refer to the laws of the jurisdiction in which a legal action is brought...
, the local law of the court, irrespective of the connection with the jurisdiction.
Tolofson case
A father and son from British Columbia are driving in Saskatchewan and are in a motor vehicle accident with Leroy Jensen, a resident of Saskatchewan. The son, Kim Tolofson, sues both Jensen and his father. Under Saskatchewan law the claimant must prove gross negligence in order for a gratuitous passenger to recover and the limitation period is 12 months. Kim did not sue for six years once he became 18 years old.Lucas case
The Gagnon family from Ontario were driving in Quebec and were in a motor vehicle accident with Mr. Lavoie, a Quebec resident. No action was allowed under Quebec no-fault system.Ruling of the Court
Justice La Forest wrote for the majority. He considered the issue of territorial limits of jurisdiction. He concluded that the general policy interests were those of order and fairness. He was highly concerned of confusion resulting from complex rules.La Forest explicitly stated that exceptions to this rule should be rare. He argued that exceptions would "encourage frivolous cross-claims and joinders of third parties", it would create uncertainty, discourage judges to make summary judgments, and would discourage settlement. He contemplated that there may be exception at the international level where there may be injusticeat 307 he stated "However, because a rigid rule on the international level could give rise to injustice, in certain circumstances, I am not averse to retaining a discretion in the court to apply our own law to deal with such circumstances. I can, however, imagine few cases where this would be necessary." or where both parties are domicile
Domicile
*In architecture, a general term for a place of residence or "permanent residence" in legal terms*Domicile , the zodiac sign over which a planet has rulership...
d in the forum.
Alberta later enacted a Limitations Act (R.S.A. 2000, c. L‑12, s. 12) to get around the result in Tolofson.
Subsequent cases have considered the limits of the exception to the Tolofson rule. In Hanlan v. Sernesky (1998, Ont.CA) where the court found exception to the rule on an international matter. However, similar reasoning was rejected on provincial matters in Leornard v. Houle (1997, Ont.CA).
Sources
- J. Walker, "'Are we there yet?' Towards a New Rule For Choice of Law in Tort" (2000) 38 Osgoode Hall Law Journal 331.
See also
- List of Supreme Court of Canada cases
- Chaplin v. Boys, [1969] 2 All E.R. 1085 (H.L.)
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, [1990] 3 S.C.R. 1077, and - Hunt v. T&N plcHunt v. T&N plcHunt v. T&N plc, [1993] 4 S.C.R. 289 is a landmark decision of the Supreme Court of Canada on conflict of laws. The Court ruled that the Quebec law prohibiting the removal of company documents from the province was constitutionally inapplicable to a British Columbia court order. The decision was...
, [1993] 4 S.C.R. 289