|Tolofson v Jensen|
|Hearing: February 21, 1994 |
Judgment: December 15, 1994
|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|
|Citations|| 3 S.C.R. 1022, 120 D.L.R. (4th) 289, 100 B.C.L.R. (2d) 1, 77 O.A.C. 81,  1 W.W.R. 609|
|Ruling||Tolofson and Gagnon appeals allowed.|
|The proper law of a tort is the law of where the accident happened (lex loci)|
|Chief Justice: Antonio Lamer |
Puisne Justices: Gérard La Forest, Claire L'Heureux-Dubé, John Sopinka, Charles Gonthier, Peter Cory, Beverley McLachlin, Frank Iacobucci, John C. Major
|Majority||La Forest J., joined by Gonthier, Cory, McLachlin and Iacobucci JJ.|
Tolofson v Jensen,  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). The case was decided with Lucas (Litigation guardian of) v Gagnon.
The Supreme Court of Canada is the highest court of Canada, 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. Its decisions are the ultimate expression and application of Canadian law and binding upon all lower courts of Canada, except to the extent that they are overridden or otherwise made ineffective by an Act of Parliament or the Act of a provincial legislative assembly pursuant to section 33 of the Canadian Charter of Rights and Freedoms.
Conflict of laws concerns relations across different legal jurisdictions between natural persons, companies, corporations and other legal entities, their legal obligations and the appropriate forum and procedure for resolving disputes between them. Conflict of laws especially affects private international law, but may also affect domestic legal disputes e.g. determination of which state law applies in the United States, or where a contract makes incompatible reference to more than one legal framework.
A tort, in common law jurisdictions, 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.
Prior to this case, the leading case on the matter was McLean v Pettigrew ,  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.
The doctrine of the proper law is applied in the choice of law stage of a lawsuit involving the conflict of laws.
Lex fori is a legal term used in the conflict of laws to refer to the laws of the jurisdiction in which a legal action is brought. When a court decides that it should, by reason of the principles of conflict of law, resolve a given legal dispute by reference to the laws of another jurisdiction, the lex causae, the lex fori still govern procedural matters.
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.
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.
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 injusticeor where both parties are domiciled in the forum.
In law, domicile is the status or attribution of being a lawful permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after he has left it, if he has maintained sufficient links with that jurisdiction or has not displayed an intention to leave permanently.
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).
Boys v Chaplin  AC 356 is a leading conflict of laws case decided by the House of Lords.
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Morguard Investments Ltd v De Savoye,  3 SCR 1077 is the leading decision of the Supreme Court of Canada on the enforcement of extraprovincial judgments. The Court held that the standard for enforcing a default judgment from a different province is not the same as if it were from another country; rather the Court adopts the test from Indyka v Indyka,  1 AC 33 (HL) and the Moran v Pyle National (Canada) Ltd,  1 SCR 393 where there must be a "real and substantial connection" between the petitioner and the country or territory exercising jurisdiction.
In law, the terms moot and mootness have different meanings in British English and American English. The concept is important in U.S. jurisprudence but is little used elsewhere outside law schools.
An abstention doctrine is any of several doctrines that a United States court may apply to refuse to hear a case if hearing the case would potentially intrude upon the powers of another court. Such doctrines are usually invoked where lawsuits involving the same issues are brought in two different court systems at the same time.
Forum non conveniens (FNC) is a (mostly) common law legal doctrine whereby courts may refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties. As a doctrine of the conflict of laws, forum non conveniens applies between courts in different countries and between courts in different jurisdictions in the same country. Forum non conveniens is not applicable between counties or federal districts within a state.
Younger v. Harris, 401 U.S. 37 (1971), was a case in which the United States Supreme Court held that United States federal courts were required to abstain from hearing any civil rights tort claims brought by a person who is currently being prosecuted for a matter arising from that claim.
Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states, or provinces. The outcome of this process is potentially to require the courts of one jurisdiction to apply the law of a different jurisdiction in lawsuits arising from, say, family law, tort, or contract. The law which is applied is sometimes referred to as the "proper law." Dépeçage is an issue within choice of law.
In conflict of laws, renvoi is a subset of the choice of law rules and it may be applied whenever a forum court is directed to consider the law of another state.
Rylands v Fletcher UKHL 1 was a decision by the House of Lords which established a new area of English tort law. Rylands employed contractors to build a reservoir, playing no active role in its construction. When the contractors discovered a series of old coal shafts improperly filled with debris, they chose to continue work rather than properly blocking them up. The result was that on 11 December 1860, shortly after being filled for the first time, Rylands' reservoir burst and flooded a neighbouring mine, run by Fletcher, causing £937 worth of damage. Fletcher brought a claim under negligence against Rylands, through which the case eventually went to the Exchequer of Pleas. The majority ruled in favour of Rylands. Bramwell B, however, dissenting, argued that the claimant had the right to enjoy his land free of interference from water, and that as a result the defendant was guilty of trespass and the commissioning of a nuisance. Bramwell's argument was affirmed, both by the Court of Exchequer Chamber and the House of Lords, leading to the development of the "Rule in Rylands v Fletcher"; that "the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape". No right "to enjoy property" exists in UK black letter law, and it is this decision upon which stare decisis is built in the area.
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Characterisation, or characterization, in conflict of laws, is the second stage of the procedure to resolve a lawsuit that involves foreign law. The process is described in English law as Characterisation, or classification within the English judgments of the European Court of Justice. It is alternatively known as qualification in French law.
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In conflict of laws, the choice of law rules for tort are intended to select the lex causae by which to determine the nature and scope of the judicial remedy to claim damages for loss or damage suffered.
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