To return briefly to the question of renvoi: the particular feature of traditional conflicts analysis which creates the possibility of renvoi is that choice of law rules are “jurisdiction-selecting”, i.e., they point to a jurisdiction to “govern” the contract, the tort, questions of title to immovable property, succession, etc. If, in applying, say, the torts rule established in Tolefson v. Jensen, you are to look to the lex loci delicti and it is, say, New York, then logically you have to ask, “What is New York law or what would a New York court do with this dispute?” If the evidence of New York law would indicate that a court of that jurisdiction would say, “This is a dispute between two residents of Canada and has no connection with New York sufficient to justify the application of New York law to the question whether benefits available under the Ontario Family Law Act are or are not available to the plaintiff in this State; that is a question for Ontario courts since the most important fact for New York is not where the accident happened but, at least with respect to a single vehicle accident, the place of the parties’ residence.”

What do we do now? Do we ignore what the Supreme Court appeared to say in Tolefson v. Jensen or do we say (on some basis we can neither articulate nor defend) that we’ll simply pick and choose from the offerings of New York law and say, “We don’t think that we want to look at what a New York court would say about the application of New York law to these facts; we’ll just apply some more limited conception of New York law.”

Until we get away from jurisdiction-selecting rules, renvoi (or transmission, i.e., a reference to a third jurisdiction) is logically entailed and, as perhaps, I have shown, is only be “solved” by an unprincipled decision to look at some version of New York law that is not, in fact, the actual law of New York.

The possibility of renvoi may not be patent if the foreign jurisdiction, like all the provinces of Canada, adopts the same choice of law rule like that in Tolefson v. Jensen (because the Supreme Court so laid it down) but that fact is just a coincidence or accident and does not touch on the inevitable possibility of renvoi in the general case. We may, of course, make an ad hoc exception to it and say that it does not, for example, apply in contracts, but that is not a principled position; it is regarded as simply pragmatic.

If we could ask in an Ontario court, not what law governs the tort but at the much more important question, viz., given that the parties are both Ontario residents and that the accident happened in New York, is there any reason why we would not deal with one party’s right to the benefits of the Family Law Act under Ontario law rather than New York law? There may be reasons not to apply the Ontario act because the accident happened in New York, but those reasons have to be based on the fact that there is, for example, a New York defendant who might be caught by unpleasant surprise by being held to the consequences of the application of Ontario law. See e.g., Grimes v. Cloutier (1989), 69 O.R. (2d) 64, 61 D.L.R. (4th) 505 (C.A.) and comment, Swan, Case Comment, “Conflict of Laws—Torts—Automobile Accident in Quebec—Action in Ontario—’Paradigm Shift or Pandora’s Box”‘?—Grimes v. Cloutier; Prefontaine v. Frizzle” (1990), 69 Canadian Bar Review 538.