Tolofson v. Jensen

SCCInfoBox
case-name=Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon
full-case-name=Leroy Jensen and Roger Tolofson v. Kim Tolofson; Réjean Gagnon v. Tina Lucas and Justin Gagnon by their litigation guardian Heather Gagnon, Heather Gagnon personally, and Cyrille Lavoie
heard-date=February 21, 1994
decided-date=December 15, 1994
citations= [1994] 3 S.C.R. 1022, 120 D.L.R. (4th) 289, 100 B.C.L.R. (2d) 1, 77 O.A.C. 81, [1995] 1 W.W.R. 609
docket=23445
docket2=22980
history=
ruling=Tolofson and Gagnon appeals allowed.
ratio=The proper law of a tort is the law of where the accident happened ("lex loci")
SCC=1992-1997
Majority=La Forest J.
JoinMajority=Gonthier, Cory, McLachlin and Iacobucci JJ.
Concurrence=Major J.
Concurrence2=Lamer C.J.
NotPresent=

"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).

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 law to apply would always be the "lex fori", the local law of the court, irrespective of the connection with the jurisdiction.

Tolofson case

A father and daughter from British Columbia are driving in Saskatchewan and are in a motor vehicle accident with Leroy Jensen, a resident of Saskatchewan. The daughter, Kim Tolofson, sues both Jensen and her 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 she 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. [pp. 1050-1051] 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 domiciled in the forum. [p. 310]

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).

References

ources

* J. Walker, "'Are we there yet?' Towards a New Rule For Choice of Law in Tort" (2000) 38 Osgoode Hall Law Journal 331.

ee also

* List of Supreme Court of Canada cases
* "Chaplin v. Boys", [1969] 2 All E.R. 1085 (H.L.)
* "Morguard Investments Ltd. v. De Savoye", [1990] 3 S.C.R. 1077, and
* "Hunt v. T&N plc", [1993] 4 S.C.R. 289

External links

*
* [http://www.blakes.com/english/publications/bdr/May2006/revival_of_forum.asp Blakes comments on limitations shopping]