Tort

• Author: Stephen G.A. Pitel/Nicholas S. Rafferty
• Profession: Faculty of Law, University of Western Ontario/Faculty of Law, University of Calgary
• Pages: 246-268

246

CHAP TER 13

TORT

A. I NTRODUC TION

The amount of tort litigation has increased sig nif‌icantly over the past

f‌ifty years, and a n increasing number of these cases i nvolve factual con-

nections to more than one country. Choice of law rules for tort claims

are therefore quite important so that the applicable law ca n be ascer-

tained. Much has been w ritten by academics and judges about choice of

law in tort, and yet it remains a controvers ial topic. To this day different

common law countries have quite different views about what the rule

should be, and some of these countries, including Ca nada, have wit-

nessed dramatic changes to the rule relatively recently. It is therefore

important in this area, more so than in others, to have an understand-

ing of how and why the rule has evolved over time.

B. HISTORICA L DEVELOPMENT

The earliest English choice of law rule for tort was to use the lex loc i

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

crimina l law of the place where they act. So tort law also focused on the

law of the place of acting. This approach was considerably strengt hened

by the vested rights theory, discussed in Chapter 10.

Tor t 247

However, the law was changed by the decision 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 t hat 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 im-

posed the lex fori as the applicable law, was high ly chauvi nistic and

nearly impossible to justif y. 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 Engli sh law and “not justif‌iable”

under the law of the place of acting. This formulat ion of the rule had

two parts or branches: the f‌irst followed The Halley, and the second,

additional requirement was rooted in the notion of vested rights. O ver

time this b ecame 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 th at 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 wa s con-

trary to law could not be said to be justif‌ied.3 Th is made it signif‌icantly

easier for a plaintiff to satisfy the second branch, since most injur ious

conduct was at least a violation of some legal rule. This was taken close

to its extreme limit in McLean v. Pettigrew, where the Supreme Court

of Canada held, in respect of a negligence action brought in Quebec,

that conduct in Ontario which wa s 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 t hat imposed a minor f‌ine.4

These decisions illustrate the ebb and f‌low in the law in this a rea.

While the rule as st ated in Phillips raises the hurdle for the plaintiff, the

interpretation of the second branch in these subsequent cases lowers

1 (1868), L.R. 2 P.C. 193.

2 (1870), L.R. 6 Q.B. 1 (Ex. Ct.) [Phillips]. For a n historical analys is of the litiga-

tion in this c ase see Rande Kostal, A Jur isprudence of Power: Victorian Empi re

and the Rule of Law (Oxford: Ox ford University Press, 2005).

3 [1897] 2 Q.B. 231 (C.A.) [Machado].

4 [1945] S.C.R. 62 [McLean]. Th is conclusion is diff‌icult to rec oncile with the fact

that the defenda nt was actually acquitted in O ntario proceedings under t he

provincial st atute.