''Tolofson v Jensen'',

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3 S.C.R. 1022 is a landmark decision of the

Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...

conflict of laws Conflict of laws (also called private international law) is the set of rules or laws a jurisdiction applies to a case, transaction, or other occurrence that has connections to more than one jurisdiction. This body of law deals with three broad t ...

tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...

. The Court held that the primary determiner in selecting a country's law in tort should be the ''

lex loci In conflict of laws, the term ''lex loci'' (Latin for "the law of the place") is a shorthand version of the choice of law rules that determine the ''lex causae'' (the laws chosen to decide a case).''Black's Law Dictionary'' abridged Sixth Edition (1 ...

'' (the location where the tort occurred). The case was decided with ''Lucas (Litigation guardian of) v Gagnon''.

Background

Prior to this case, the leading case on the matter was ''

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'',

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S.C.R. 62 which stated that the

proper law The doctrine of the proper law is applied in the choice of law stage of a lawsuit involving the conflict of laws. Explanation When the jurisdiction is in dispute, one or more state laws will be relevant to the decision-making process. If the law ...

to apply would always be the ''

lex fori In conflict of laws, the term ''lex loci'' (Latin for "the law of the place") is a shorthand version of the choice of law rules that determine the ''lex causae'' (the laws chosen to decide a case).''Black's Law Dictionary'' abridged Sixth Edition (1 ...

'', 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 injustice or where both parties are

domicile Domicile may refer to: * Home, a place where someone lives * Domicile (astrology), the zodiac sign over which a planet has rulership * Domicile (law) Domicile is relevant to an individual's "personal law," which includes the law that governs a p ...

d 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

Sources

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

External links

* {{lexum-scc2, 1994, 3, 1022, 44
Blakes comments on limitations shopping
Conflict of laws case law Supreme Court of Canada cases 1994 in Canadian case law