Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

Posts Tagged ‘unfairness’

Financial Burden Does Not Equate to Unfairness (in Not Assuming Jurisdiction)

Posted by Seva on October 8, 2008

Because of the vagaries of QuickLaw, the case of Pavacic v. Nicely Estate, on which I had previously commented, has been emailed to me as a recent development. Re-reading the case, I noticed another potentially interesting aspect, which I did not previously explore.

Specifically, I noticed that Gauthier J. concluded that financial burden of travelling to another jurisdiction does not necessarily translate into “unfairness” under the fourth Muscutt factor:

[55] I am not altogether persuaded, however, that such financial hurdles translate into “unfairness”. Unfairness connotes a situation which is unjustified or “unjust”. The fact of the Plaintiffs having to pursue a legal remedy in the place where the wrong occurred does not, on the facts before me, appear to be unfair.

In the light of previous case-law, I wonder about the accuracy of this conclusion. First, it seems to go against the well-accepted rule that the loci delicti (place where the wrong occurs) is the place where the damages have been suffered – which in this case was clearly Ontario. While under Ontario rules this is but a single factor taken into account in deciding whether RaSC exists, having to “pursue a legal remedy where in the place where the wrong occurred”, legally, points to Ontario rather than Georgia, and demonstrates the unfairness of not assuming jurisdiction.

Second, the conclusion appears to go against Muscutt, where the Ontario Court of Appeal affirmed Oakley v. Barry for the proposition that unfairness has to be considered from the point of view of the plaintiff, and described this factor as addressing the financial and practical inconvenience to the plaintiff in having to litigate in another forum. Notably, in Oakley, the unfairness factors considered by the court were the financial hurdles faced by the plaintiff in having to litigate in another forum.

Overall, I wonder if, taken literally, Gauthier J.’s conclusion to effectively exclude financial considerations from proof of unfairness of assuming jurisdiction will significantly restrict the scope of Ontario court’s jurisdiction in similar cases.

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