Choice of Law For Tort in Canada: Reasons for Change

Abstract

Since 1994 the Canadian common law choice-of-law rule for tort claims has been that such claims are, in virtually all cases, governed by the law of the place of the tort. That choice-of-law rule was controversial when it was established and it remains so to this day. Controversial rules demand periodic reconsideration. Furthermore, as we approach the twentieth anniversary of the adoption of this rule, more recent developments should prompt us to question whether a change is now warranted. The current rule was formulated by the Supreme Court of Canada in Tolofson v Jensen. In that case the court had the opportunity to revisit the then-current Canadian rule for choice of law for tort: the double actionability rule adopted by McLean v Pettigrew, which required a plaintiff to show that the defendant's conduct was actionable under both the law of the place of the tort and the law of the forum. The court rightly held that the double actionability rule was unsustainable, in particular as concerned its mandatory application of the law of the forum. It replaced that rule with one applying the lex loci delicti, the law of the place of the tort.