7. Choice of Law in Tort
Leonard v Houle
[Application for leave to appeal to the Supreme Court of Canada dismissed May 14, 1998]
CHARRON J.A.: -- The appellants appeal from a summary judgment dismissing their action against one of the respondents and dismissing part of their claim against the other respondents. Two questions are raised on this appeal:
(1) Which law should govern in a tort case where the alleged tortious conduct commenced in the Province of Ontario, continued in the Province of Quebec and resulted in a car accident in the latter province?
(2) If Quebec law governs, is the action barred by reason of the provisions of the Automobile Insurance Act, R.S.Q., c. A-25?
I. The Facts
The action arises out of a motor vehicle accident which occurred in the Province of Quebec on July 20, 1990. The defendant, Stéphane Houle ("Houle"), was driving north on Highway 105 in a stolen van. He was driving at a high rate of speed, at times overtaking vehicles on the right gravel shoulder of the road, in an attempt to escape police who were chasing him. Shortly after crossing Scott Road, the van struck a hole which caused it to jump into the air and cross into the southbound lane where it collided with the vehicle driven by the appellant Seamus Leonard ("Leonard"). Leonard suffered very serious permanent injuries for which he seeks damages. The other appellants are Leonard's family members who seek damages under Ontario's Family Law Act, R.S.O. 1990, c. F.3.
The stolen van had first been noticed by the respondent Constable Guy Mathieu ("Mathieu") in Ottawa, Ontario, in the Byward Market, an area close to one of the interprovincial bridges between Ontario and Quebec. The van, while in the Byward Market, went through a stop sign and continued driving to a red light where it stopped. Mathieu stopped his cruiser directly behind the van and turned on his flashing overhead lights. At this point, Houle saw the cruiser and drove off through the red light. Mathieu pursued the van northbound on King Edward Avenue over to the MacDonald Cartier Interprovincial Bridge. As the van and the cruiser approached the bridge, another Ottawa Police Officer, the respondent Inspector Ron Lamothe ("Lamothe"), joined in the chase. The chase continued over the bridge for some distance in the Province of Quebec on Highway 5, Old Chelsea Road and Highway 105. The Hull police were advised of the chase and were instructed to come to the assistance of the Ottawa Police officers. At some point prior to Scott Road, the Ottawa Police officers were instructed by the communications centre to discontinue the chase and, as a result, slowed down their vehicles. They arrived at the scene of the accident shortly after it occurred.
II. The Decision under Appeal
This action was commenced in Ontario in February 1991. The three appellants and the defendant Houle are all residents of Ontario. In addition to Houle, the appellants sued Roch Peterson, a passenger in the Houle vehicle; police officers Mathieu and Lamothe, Chief of Police Thomas Flanagan, and the Corporation of the City of Ottawa (referred to collectively as the "Ottawa police"); the Hull Police Force; the Quebec Provincial Police Force; Pafco Insurance Company Limited, Houle's insurer whose head office is in Toronto; La Régie de l'assurance automobile du Québec and The Superintendent of Insurance for the Province of Ontario. Following discoveries, the Ottawa police and the Hull Police Force moved for summary judgment dismissing the action against them. The Ottawa police and the Hull Police Force are the only defendants who are respondents to this appeal.
The allegations of negligence against the Ottawa police are as follows:
AS TO THE DEFENDANTS MATHIEU AND LAMOTHE:
a) commencing and subsequently continuing the pursuit of the van in circumstances which did not warrant such a pursuit;
b) once entering upon Highway 105, failing to reduce substantially the speed at which their vehicles were following the van having regard to the nature of the highway, the road traffic and their awareness of the potential charge which would be laid against the driver of the van;
c) not notifying the Defendants the Quebec Provincial Police force ("Q.P.F.") and the Hull Police Force ("H.P.F.") or in the alternative, taking insufficient steps to ensure that the Defendants Q.P.F. and H.P.F. were notified as to the pursuit in which these Defendants were involved, so that means other than a high speed pursuit could be employed to stop the van;
AS TO THE DEFENDANTS FLANAGAN AND CITY:
a) failing to take steps to inform and advise the officers of the Ottawa Police force as to the proper procedure in carrying out high speed pursuits or in the alternative, taking insufficient steps to inform the Ottawa Police Officers;
b) failing to ensure the communication of information from members of the City of Ottawa Police Force to the Defendants Q.P.F. and H.P.F. in a timely and effective manner.
The allegations of negligence against the Hull Police Force are as follows:
a)failing to have in place adequate communication facilities such that the members of the Defendants Q.P.F. and H.P.F. or either one of them, could properly respond to information being provided by the Defendants Mathieu and Lamothe and thereafter employ means other than a high speed chase to stop the van;
b) having received information about the high speed chase, failing to act promptly and/or properly such as to avoid the continuation of the high speed pursuit by the Defendants Mathieu and Lamothe;
c) being aware of the nature of Highway 105 and its dangerousness, failing to ensure that a vehicle was on patrol in the area at the relevant time such as to be able to assist in the apprehension of the van without the necessity of the continuation of the high speed pursuit.
At the motion for summary judgment, the Ottawa police and the Hull Police Force relied on Tolofson v. Jensen, [1994] 3 S.C.R. 1022, 120 D.L.R. (4th) 289, and argued that the law of Quebec applied to determine liability and damages in this action. In light of s. 83.57 of the Quebec Automobile Insurance Act, which provides that no action can lie for damages arising as a result of bodily injuries sustained in a motor vehicle accident in Quebec, they argued that the action against them should be dismissed.
The motions judge agreed that the law of Quebec was applicable. Consequently, she dismissed the action against the Hull Police Force. She also dismissed the action against the Ottawa police in so far as it was based on allegations of negligence arising out of events occurring in the Province of Quebec.
The appellants appeal against these findings. Counsel for the appellants argues that the law as set out in Tolofson still admits of exceptions and that the law of Ontario should be chosen as the governing law in this action.
In so far as the remaining allegations of negligence against the Ottawa police are concerned, the motions judge held that the law of the Province of Ontario applies. She therefore found that Ontario law would apply to the allegations of negligence against Mathieu and Lamothe in para. a) above relating to commencing and continuing the pursuit while they were in Ontario and to the allegations of negligence against Chief of Police Flanagan and The Corporation of the City of Ottawa contained in paragraph a). Consequently, the motions judge dismissed the Ottawa police's motion for summary judgment with respect to those allegations of conduct taking place in Ontario.
The Ottawa police have not appealed against this latter finding. Although the appellants are obviously content that their action continue against the Ottawa police, counsel for the appellants argues that the decision of the motions judge in dismissing part of the action against the Ottawa police and allowing the rest to continue is inconsistent. Counsel for the appellant argues that, if this decision stands, it leaves his clients in the untenable position of pursuing an action for an incomplete tort.
III. Analysis
No issue is raised in this case with respect to the jurisdiction of the Ontario court to try this action. In Canada, a court may exercise jurisdiction where it has a "real and substantial connection" with the subject-matter of the litigation. [See Note 1 at end of document.] However, the fact that there may be a real and substantial connection to the province of Ontario, thereby justifying that the action be tried in this jurisdiction, does not determine the choice of law. The power of a court to exercise jurisdiction does not automatically include the authority to apply the law of its own jurisdiction, the lex fori.
On the question of choice of law, Canadian courts, for many years, followed the Supreme Court of Canada decision in McLean v. Pettigrew, [1945] S.C.R. 62, [1945] 2 D.L.R. 65. This decision adopted the English rule whereby a court applied its own law, the lex fori, when adjudicating on wrongs committed in another jurisdiction when certain conditions were met. In Tolofson v. Jensen, the Supreme Court overruled McLean v. Pettigrew and unanimously held that, generally, the substantive law [See Note 2 at end of document.] that should be applied in tort cases is the law of the place where the activity occurred -- the lex loci delicti.
In his majority judgment, La Forest J. went on to consider whether the rule should admit of certain exceptions. La Forest J. reviewed a number of hypothetical situations where it could be argued that justice and fairness favoured the application of the lex fori, including the situation where the parties are residents of the forum. The latter example is particularly noteworthy since the basis of the appellants' argument is that the law of Ontario should apply, as an exception to the rule in Tolofson, when all the parties concerned are Ontario residents.
After reviewing possible arguments in favour of the application of the lex fori, La Forest J. stated that he remained unconvinced by these "public policy" arguments. Although he conceded that the rule may be subject to valid exceptions on the international plane, [See Note 3 at end of database.] he concluded at p. 1062 that "there is little to gain and much to lose in creating an exception to the lex loci delicti in relation to domestic litigation". Major J., in a minority judgment concurred in by Sopinka J., agreed with the general rule set out by La Forest J. but doubted the need in this case to establish an absolute rule in domestic litigation.
In my view, it is clear that the rule in Tolofson does not admit of exceptions in domestic litigation. I find no merit to the appellants' contention that the lex fori should apply in this case.
The governing law in this case is the lex loci delicti, the law of the place where the activity occurred. The question then becomes, where did the activity occur? The motions judge did not address this issue in her reasons.
The place where the activity occurred was not an issue in Tolofson. Nonetheless, the following comments by La Forest J. are instructive on this issue (at pp. 1049-50):
From the general principle that a state has exclusive jurisdiction within its own territories and that other states must under principles of comity respect the exercise of its jurisdiction within its own territory, it seems axiomatic to me that, at least as a general rule, the law to be applied in torts is the law of the place where the activity occurred, i.e., the lex loci delicti. There are situations, of course, notably where an act occurs in one place but the consequences are directly felt elsewhere, when the issue of where the tort takes place itself raises thorny issues. In such a case, it may well be that the consequences would be held to constitute the wrong. Difficulties may also arise where the wrong directly arises out of some transnational or interprovincial activity. There territorial considerations may become muted; they may conflict and other considerations may play a determining role. But that is not this case. Though the parties may before and after the wrong was suffered, have travelled from one province to another, the defining activity that constitutes the wrong took place wholly within the territorial limits of one province ... (Emphasis added)
In this case, it is uncontroverted that the car accident which resulted in Leonard's injuries occurred in the Province of Quebec. In so far as the Hull Police Force is concerned, any tortious conduct on their part also occurred wholly in the Province of Quebec. It is conceded that if the action involved no other defendants, the law of Quebec would govern. Does the fact that the alleged tortious conduct of some of the defendants, the Ottawa police, commenced in Ontario change the loci delicti from Quebec to Ontario?
In my view, it does not. While there may be situations where the issue of where the tort takes place will raise "thorny issues", and perhaps also raise issues of public policy, this is not such a case. It seems clear to me that the wrong occurred in the Province of Quebec because the injury occurred there. The plaintiffs are not suing because the Ottawa police breached their duty when they commenced a chase while they were in the Province of Ontario, nor are they suing because the Ottawa police failed to adequately warn the Quebec police authorities of the ongoing chase. They are suing because Leonard was injured in the resulting car accident in the Province of Quebec. The activity which took place in the Province of Ontario, even if found to constitute a breach of duty on the part of the Ottawa police, does not amount to an actionable wrong. There is no actionable wrong without the injury. The place where "the activity took place" which gives rise to the action is in the Province of Quebec.
Consequently, the law of the Province of Quebec governs in this action. The determinative question is whether the provisions of the Automobile Insurance Act constitute a bar to the action.
The Quebec statute, which came into force in 1978, ensures indemnification of victims of car accidents without regard to fault. Compensation under the Act stands in place of the victim's civil rights of action. No issue has been raised as to the appellants' right to compensation under this Act. The relevant provision, s. 83.57, reads as follows:
83.57 Compensation under this title stands in lieu of all rights and remedies by reason of bodily injury and no action in that respect shall be admitted before any court of justice.
The relevant definitions, set out in ss. 1 and 2, read as follows:
"Bodily injury" is defined as:
. . . any physical or mental injury, including death, suffered by a victim in an accident, and any damage to the clothing worn by a victim.
"Accident" is defined as:
. . . means any event in which damage is caused by an automobile.
"Damage caused by an automobile" is, in turn, defined as:
. . . any damage caused by an automobile, by the use thereof or by the load carried in or on an automobile, including damage caused by a trailer used with an automobile, but excluding damage caused by the autonomous act of an animal that is part of the load or as a result of maintenance or repair work to an automobile.
The appellants argue that their action, as against the Ottawa police and the Hull Police Force, does not fall within the scope of the statute because the cause of the damage was not the negligent operation of an automobile. They state rather that the action against the Ottawa police is based on the inappropriate use of a high-speed chase as a means of apprehending the offender in this case, the lack of appropriate training and the inadequate communications system. The action against the Hull Police Force is based on the failure to have adequate communications facilities and the failure to act appropriately to avoid the high speed chase.
Although the argument has some superficial attraction, in my view, it cannot succeed. The effect of the statute is not to bar only actions based on the negligent operation of an automobile but rather to bar actions in respect of bodily injury suffered in "any event in which damage is caused by an automobile". The injury suffered in this case was quite clearly caused by an automobile regardless of the events which preceded the accident.
In any event, the statute was given a very wide interpretation by the Quebec courts. The law of Quebec, which governs in this case, must be read in the light of this judicial interpretation. Reference to two Quebec cases will suffice to show the wide interpretation given to the statute.
In Productions Pram v. Lemay, [1992] R.J.Q. 1738 (C.A.), a cameraman was seriously injured when the wheel of an airplane hit the windshield of the car in which he was seated. The cameraman sued the production company which, in turn, moved to dismiss the action on the ground that Quebec's Automobile Insurance Act constituted a bar to the action. After discussing the legislature's intention in enacting a no-fault scheme and reviewing a plethora of cases dating from 1979 to 1992, the court held that the legislation should be given a large and liberal interpretation. The Court of Appeal held that the causal link of the accident need not be examined. It concluded that the accident resulted from the use of an automobile and that the facts in this case were therefore caught by the Act.
Another case which demonstrates how liberally the Quebec courts have interpreted the definition of "damage caused by the use of an automobile" is Benoit v. Landry, [1993] R.J.Q. 1081 (S.C.). In that case, the victim was shot by a police officer during a car chase. The gunfire shot was meant to hit the tires of the victim's vehicle but, instead, because of the movement of the vehicle, it hit the victim in the neck, at which point he lost control of the automobile. The victim's only injury was from the shot to the neck. Consequently, it was argued that the injury was not suffered in an accident within the meaning of the Act. The court found that it was not necessary to analyze what caused the damages. In the court's view, it was enough for the damages to have been suffered in the general framework of the use of an automobile for the Act to apply. There would be even more reason to defeat the appellants' argument in this case.
In light of the above, it is my view that the action against the respondents clearly falls within the scope of the Quebec Automobile Insurance Act and is consequently barred.
IV. Conclusion
This matter was an appropriate one for determination on a summary motion. There are no facts in dispute which would affect the legal question to be answered. It is in the interest of the parties to resolve this issue at an early stage in the proceedings. The motions judge was correct in concluding that there was no genuine issue for trial in this action with respect to any tort committed in the Province of Quebec. However, she erred in concluding that there remained a genuine issue to be tried as it related to the conduct of the Ottawa police in the Province of Ontario.
In the result, the appeal is dismissed with costs as against the Hull Police Force.
The appeal is allowed as against the remaining respondents on this appeal, para. 2 of the judgment is deleted, the appellants' claim as against the respondents Mathieu, Lamothe, Chief of Police Thomas Flanagan and The Corporation of the City of Ottawa is dismissed. In the circumstances, there will be no order as to costs with respect to these respondents.
Appeal allowed in part.
Notes
Note 1: Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393, 43 D.L.R. (3d) 239; Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, 76 D.L.R. (4th) 256; Hunt v. T & N plc, [1993] 4 S.C.R. 289, 109 D.L.R. (3d) 16.
Note 2: In so far as rules of procedure are concerned, the Supreme Court made it clear that "the court must follow its own rules of procedure; it could not function otherwise... What is procedural is usually clear enough though at times this can raise difficult issues."
Note 3: La Forest J. noted in particular the Hague Convention on Traffic Accidents, 26 October 1968, 8 I.L.M. 34 (entered into force on June 3, 1975 after the ratification by the required minimum number of states)(to which Canada is not a signatory) which allows for an exception to the lex loci delicti where all parties involved in the accident are from the forum. In adopting the lex loci delicti as an absolute rule in domestic litigation, he went on to comment as follows: "This is not to say that an exception to the lex loci delicti such as contained in the Hague Convention is indefensible on the international plane, particularly since it is enshrined in a convention that ensures reciprocity."