Tort
| Author | Stephen G.A. Pitel; Nicholas S. Rafferty |
| Pages | 261-284 |
CHAPTER
13
TORT
A.
INTRODUCTION
The
amount
of
tort
litigation
has
increased
significantly
over
the
past
fifty
years
and
an
increasing
number
of
these
cases
involve
factual
con
nections
to
more
than
one
country.
Choice
of
law
rules
for
tort
claims
are
therefore
quite
important
so
that
the
applicable
law
can
be
ascer
tained.
Much
has
been
written
by
academics
and
judges
about
choice
of
law
in
tort
and
yet
it
remains
a
controversial
topic.
To
this
day
different
common
law
countries
have
quite
different
views
about
what
the
rule
should
be
and
some
of
these
countries,
including
Canada,
have
wit
nessed
dramatic
changes
to
the
rule.
It
is
therefore
important
in
this
area,
more
so
than
in
others,
to
have
an
understanding
of
how
and
why
the
rule
has
evolved
over
time.
B.
HISTORICAL
DEVELOPMENT
The
earliest
English
choice
of
law
rule
for
tort
was
to
use
the
lex
loci
delicti:
the
law
of
the
place
of
the
tort.
Tort
evolved
from
the
criminal
law,
which
is
highly
territorial.
People
are
expected
to
comply
with
the
criminal
law
of
the
place
where
they
act.
So
tort
law
also
focused
on
the
law
of
the
place
of
acting.
This
approach
was
considerably
strength
ened
by
the
vested
rights
theory,
discussed
in
Chapter
10.
261
262
CONFLICT
OF
LAWS
However,
the
law
was
changed
in
The
Halley.
1
In
that
case
a
Brit
ish
ship
was
involved
in
a
collision
in
Belgian
waters.
Under
Belgian
law
the
British
ship
was
liable
for
the
collision.
Yet
in
proceedings
in
England
the
court
held
that
a
defendant
could
not
be
liable
in
tort
in
an
English
court
unless
the
defendant
was
liable
under
the
law
of
the
forum.
This
new
approach
to
choice
of
law,
which
imposed
the
lex
fori
as
the
applicable
law,
was
highly
chauvinistic
and
nearly
impossible
to
justify.
Yet
it
was
confirmed
two
years
later
in
Phillips
v
Eyre,
a
famous
case
that
became
the
leading
word
on
choice
of
law
in
tort
for
many
decades.
2
To
sue
in
tort
in
England,
the
conduct
in
question
had
to
be
actionable
under
English
law
and
“
not
justifiable
”
under
the
law
of
the
place
of
acting.
This
formulation
of
the
rule
had
two
parts
or
branch
es:
the
first
followed
The
Halley
and
the
second,
additional
require
ment
was
rooted
in
the
notion
of
vested
rights.
Over
time
this
became
known
as
a
rule
of
“
double
actionability
”
under
which
the
plaintiff
had
to
satisfy
both
branches.
There
was
some
debate
as
to
the
meaning
of
the
second
branch
of
the
rule.
Some
thought
“
not
justifiable
”
meant
that
the
conduct
had
to
be
civilly
actionable
under
the
law
of
the
place
of
acting.
Others
thought
it
had
to
be
actionable
in
tort
as
opposed
to
under
any
other
part
of
the
law.
In
Machado
v
Fontes
the
court
adopted
a
very
wide
meaning
of
“
not
justifiable,
”
holding
that
any
conduct
that
was
contrary
to
law
could
not
be
said
to
be
justified.
3
This
made
it
significantly
easier
for
a
plaintiff
to
satisfy
the
second
branch,
since
most
injurious
conduct
was
at
least
a
violation
of
some
legal
rule.
This
was
taken
close
to
its
extreme
limit
in
McLean
v
Pettigrew,
in
which
the
Supreme
Court
of
Canada
held,
in
re
spect
of
a
negligence
action
brought
in
Quebec,
that
conduct
in
Ontario
which
was
not
civilly
actionable
under
Ontario
law
satisfied
the
second
branch
of
the
rule
because
it
was
conduct
that
could
be
caught
by
a
provincial
statute
that
imposed
a
minor
fine.
4
These
decisions
illustrate
the
ebb
and
flow
in
the
law
in
this
area.
While
the
rule
as
stated
in
Phillips
raises
the
hurdle
for
the
plaintiff,
the
interpretation
of
the
second
branch
in
these
subsequent
cases
lowers
that
same
hurdle.
It
also
increases
the
overall
importance
of
the
first
hurdle:
liability
under
the
law
of
the
forum.
1
(1868),
LR
2
PC
193.
2
(Ex
Ct)
[Phillips]
.
For
a
historical
analysis
of
the
litigation
in
this
case,
see
Rande
W
Kostal,
A
Jurisprudence
of
Power:
Victorian
Empire
and
the
Rule
of
Law
(Oxford:
Oxford
University
Press,
2005).
3
(CA)
[Machado].
4
[1945]
SCR
62
[McLean]
.
This
conclusion
is
difficult
to
reconcile
with
the
fact
that
the
defendant
was
acquitted
in
Ontario
proceedings
under
the
provincial
statute.
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