Throness Estate v Kerr
[26 June 1998, Alta QB]

KENT J.:-- Roger Throness was travelling in B.C. when the vehicle in which he was riding was hit by a truck operated by Larry Kerr and owned by Directwest Carriers Inc. The accident apparently occurred when a trailer carrying logs which was being hauled by the Directwest truck went out of control and hit the Throness vehicle. Mr. Throness was a resident of Alberta. Directwest is a Saskatchewan company, extra provincially registered in Alberta and the driver is a resident of Saskatchewan. The only link with B.C. is that is the place of the accident.

The defendant moves for a declaration that the substantive law of this action is the law of the province of British Columbia or in the alternative, for directions to set a hearing of this issue before trial. Counsel for the defendant argues that it is important that this issue be determined now because there is a significant difference in the law of Alberta and British Columbia. If the issue is not determined before trial, the trial will be longer and more expensive to run and the possibility of a pre-trial settlement is less likely. The difference in law between Alberta and B.C. is the ability in Alberta to claim damages for loss of the deceased's future income: See Duncan Estate v. Baddeley 50 Alta. L.R. (3d) 202 (Alta. C.A.). The Estate Administration Act of British Columbia expressly prohibits such a claim: s. 66(2).

The Plaintiff argues that although the accident happened in British Columbia, there is no evidence yet regarding where the act of negligence occurred. The accident apparently happened because the logs on the trailer shifted. Although no evidence was offered, Plaintiffs counsel argues that until it is known where the logs were loaded and whether there were any repairs to the truck or trailer that may have contributed to the accident and where such repairs were done, then it is not clear that the law of B.C. is the applicable law. He argues that a trial judge would have the proper context, presumably including those facts, to decide which law to apply.

That leads to an analysis of Jensen v. Tolofson [1995] 1 W.W.R. 609 (S.C.C.). The principles that can be taken from the majority decision are:

- There may be exceptions to the general rule, for example where the act occurs in one place but the consequences are directly felt elsewhere. However, if the defining activity that constitutes the wrong took place wholly within one jurisdiction, that jurisdiction is the applicable law. There may be other exceptions, but those need to be carefully defined (pp 628-629).

- There is little to be gained and a lot to be lost in terms of certainty if a more flexible rule were to be crafted, particularly in relation to acts committed within Canada.

- Adopting such a rule can lead to harsh results. However, order in the sense of certainty is a precondition to justice. (p.633).

Mr. Justice Major (Sopinka, J. concurring) concurred in the result but stated that the same discretion to depart from the general rule in international litigation which the majority would allow should apply to interprovincial litigation.

The Plaintiff relies upon a decision of the Ontario Court of Appeal in Hanlan v. Semesky [1996] 0.J. No. 1236. ln that ease, the accident occurred in Minnesota. All of the parties were Ontario residents, the motorcycle at issue was registered in Ontario and the insurance policy was issued in Ontario. There are claims available under Ontario law that are not available under Minnesota law. The Chambers judge (35 O.R. (3d) 603) found that the rule in Tolofson allowed for exceptions and that on the facts before him where the only connection to Minnesota was the place of the accident, it would work an injustice to apply the law of Minnesota. The Court of Appeal found no error in that reasoning.

I agree that this case is almost indistinguishable from Hanlan in that the only connection to B.C. is that that is where the accident occurred. However, I see nothing in the reasoning of the majority in Tolofson that that itself fits into the possible exceptions. That leaves the argument by Plaintiffs counsel that the wrongful activity may have occurred in Alberta. If that was the case, then I agree that it should be the trial judge who makes the decision as to what law should apply because he or she will be able to put all of the factors into an appropriate context. At this stage, although I understand that examinations for discovery have been completed, the Plaintiff apparently continues to investigate those issues. It should not be difficult to determine where the possible wrongful acts like the loading of the logs took place. If all of those occurred in B.C., then it would be appropriate for me to declare now that the applicable substantive law is the law of B.C.

In the result, it is appropriate to give the Plaintiff some time to investigate the issues he has raised. As I said above, the unknown facts should not be difficult to determine. Accordingly, the Plaintiff has three months from the date of this judgment to investigate those issues. If he finds any evidence that any part of the possible wrongful act occurred outside B.C., then the defendant's application is dismissed. If there is any dispute between counsel about the nature of such evidence, then they should contact me. If he does not, then there will be a declaration that the applicable law is the law of B.C.