Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

Can a Plaintiff Be Reasonably Expected to Know Conflicts Rules?

Posted by Seva on June 11, 2008

In the context of the “unfairness to the plaintiff” factor from the Muscutt test for real and substantial connection, does reasonable expectation of the plaintiff include knowledge of the conflict of laws rules? As the decision of the Ontario Superior Court of Justice in Pavacic v. Nicely Estate implicitly indicates, the answer to this question is no. Apparently, reasonable knowledge is limited to “common sense” rather than “legal” expectations. Does this conclusion make sense, and should this conclusion be part of the jurisdiction simpliciter question at all?

Pavacic is a fairly common case of an Ontario resident being injured in a motor vehicle accident in another jurisdiction, this time in Georgia. In this case, since the actual defendant died in the accident, his estate argued that the Musctt criteria were not satisfied and there was no RaSC to Ontario. Gauthier J., having found that the plaintiffs did have a connection to Ontario, both in terms of being residents of this province and because they sustained and continued to suffer their damages in Ontario, proceeded to apply the remaining seven factors. In my opinion, of particular interest is her application of the fourth factor, dealing with unfairness to the plaintiffs in not assuming jurisdiction in the light of their reasonable expectations.

While Gauthier J. did not cite any authorities for the proposition that unfairness to the plaintiffs must be considered in the light of their reasonable expectation (this concept is not found in Muscutt itself), it seems to be an established part of Ontario law based on the decision of the Ontario Court of Appeal in Leufkens v. Alba Tours International Inc. In that case, Sharpe J.A., applying the eight factors he penned in Muscutt only days earlier, held that “it seems to me that the plaintiff could have no reasonable expectation that he would be able to sue the Costa Rican company in the courts of Ontario if he was injured in Costa Rica.”3

Considering the plaintiffs’ reasonable expectations, Gauthier J. concluded:

In these circumstances it is not reasonable for the Plaintiffs to expect that if they were injured through the negligence of a citizen of Georgia, an action for damages would be heard in Ontario.  Rather, it is more reasonable to assume that the Plaintiffs assumed the risks of driving on the Georgia State Highway and that they would have presumed that by doing so, they were subject to the laws of that state.

Is this conclusion truly reasonable? From a common sense perspective, yes. A lay person, with no special awareness of the law or conflict of laws principles, would likely think he could sue or be sued in wherever the accident physically occured. From a legal perspective, for example from a perspective of a lawyer who practices in this area, would the same expectation be reasonable? The answer to that question is less certain.

A person who follows the law on this subject may reasonably think that a contrary proposition is true, relying on the fact that he or she suffered damages in Ontario. Such an expectation may be particularly reasonable if the person is a resident of a province that has implemented the ULCC’s Court Jurisdiction and Proceedings Transfer Act, s. 10(g) of which presumes RaSC when a tort is committed in that territory, and case law interprets “committed” as “damages suffered”.

However, even in Ontario, the same assumption may be reasonable, particularly in the light of Doiron v. Bugge, where Sharpe J.A. (!!) found that a RaSC existed and the Ontario court was justified in assuming jurisdiction over a personal injury claim arising from a motor vehicle accident that occurred in New York. Although he noted that “damages sustained alone is not sufficient to establish a real and substantial connection”, he nevertheless concluded that rest of the factors, particularly the extent of the plaintiff’s injuries making travel difficult and expensive, militated towards a RaSC to Ontario.

Granted, as Sharpe J.A. mentioned, a Muscutt-based RaSC determination is inherently a question of fact. Nevertheless, could a person not reasonably assume that given the nature of his or her hypothetical injuries the claim would be litigated in Ontario?

Assume that a person’s reasonable expectations are governed by the same legal concepts as the court’s decision regarding jurisdiction simpliciter. Thus, just as the existence of an RaSC is a fact-based determination, the reasonable expectation of a plaintiff will depend on the facts on which he bases it. In other words, the plaintiff may reasonably expect that if his injuries are minor, then Ontario court will not assume jurisdiction, but if they are major, then it will.

Personally, I see this discussion as highlighting the fundamental problem with the inherently subjective nature of the Muscutt RaSC test. Jurisdiction simpliciter is an objective determination, which depends (or should) only on the geographical location of the court and the particular facts of the matter, which may connect it to the jurisdiction. Basing such an objective determination on the parties’ inherently subjective ante facto expectations seems to add an unacceptable degree of unpredictability into the question. In other words, on identical facts of the matter, opposite conclusions on jurisdiction simpliciter may be reached solely because the plaintiff in one situation was a lay person and in another was an educated lawyer, and thus had different “reasonable expectations”. From the perspective of the defendant, i.e. the person most like to be inconvenienced by being dragged to court in another jurisdiction, this makes no sense: why should he suffer more or less because of some subjective expectations of the plaintiff, something which he has no ability to foresee.

In my honest opinion, such subjective factors are best left to the question of forum non conveniens, where the nature of the decision is inherently subjective.

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