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Cross-Border Torts: Canadian-US Litigation Strategies
Toronto: LexisNexis Canada, 2013
§3.1 If I could reduce the message of this book to one simple axiom, it would be this: “If you can bring your client’s action in more than one jurisdiction, you should bring that action in the forum whose substantive law is most favourable to your client’s claim, provided that you can keep the case there.” The “can” portion of the sentence refers to issues of personal jurisdiction and territorial competence, addressed previously. The “should” factor relates to choice of law concerns, to which we now turn. The “provided that” caveat confronts the challenge of the defence forum non conveniens motion, which is discussed in a later chapter.
§3.2 The combined body of conflicts case law on both sides of the border supports the proposition that judges look for reasons to apply home forum law whenever they can. Under the lex loci delicti approach to tort conflicts used today in Canada and a minority of U.S. states, courts have often sought to avoid rigid application of the law of the “place of the wrong” through various escape devices implicating procedural, public policy or justice concerns. In the majority of U.S. jurisdictions that have rejected the old territorial rules embodied in the First Restatement of Conflicts of Laws, the courts have replaced lex loci delicti with modern approaches whose preferences for forum law have been hard-wired into the methodologies themselves. One notable empirical study by Professor Patrick Borchers suggested that courts using these modern approaches tended to apply forum law to tort conflicts anywhere from 55 to 77 per cent of the time — a statistically significant trend that diverged markedly from the level of forum preference seen in cases applying the older territorial rules. In affirming its preference to apply forum law to tort cases unless a “rational reason” existed to displace it, the Michigan Supreme Court relied heavily on Borchers’ analysis in concluding that: “only two distinct conflict of law theories actually exist. One, followed by a distinct minority of states, mandates adherence to the lex loci delicti rule. The other, which bears different labels in different states, calls for courts to apply the law of the forum unless important policy considerations dictate otherwise.”
§3.3 The reasons for the home law preference are grounded in practical concerns as well. Courts intuitively appreciate the subtleties and nuances of forum law, and are thus familiar with its application. Familiarity promotes comfort and confidence that the court is “getting it right” in close cases with complex fact patterns. In contrast, a judge seeking to apply foreign law must first establish the content of that law, either by way of time-consuming research or through the testimony of competing “experts” in the foreign legal system. These factors undoubtedly contribute to enhance the preference for home law fostered by the theoretical structure of the modern conflicts methodologies. To be sure, exceptions to forum law favouritism abound, and many of these will be the subject of our discussion in the following pages. But the exceptions do not undermine the thrust of my general presumption — that you and your client are always “swimming upstream” when you urge a court to consider applying foreign law to your fact pattern.
§3.4 Placed in this context, determining where you should file your action demands that you consider not only which potential forum offers juridical advantages for your client. You must also evaluate the conflicts rules used by the competing forums to properly assess which set of substantive laws will likely be applied to your facts. As we will see, in most cases where your choice of forum is between a U.S. and a Canadian jurisdiction, the difference in conflicts rules could not be more stark. Canada follows the traditional lex loci approach, while all 13 of the U.S. “border” jurisdictions have departed from lex loci in favour of the more modern methodologies. Yet our analysis will uncover numerous situations on both sides of the international border where this black-white distinction has bled into varying shades of gray. Many American jurisdictions still rely on the lex loci rule as a presumptive approach or a “tiebreaker” in close cases. In contrast, Canadian courts have sometimes used escape devices to avoid the rigid constraints imposed by Tolofson — with varying degrees of consistency and justification.
§3.5 Some 60 years ago, Dean William Prosser referred to choice of law as: “a dismal swamp, filled with quaking quagmires, and inhabited by learned and eccentric professors who theorize about mysterious matters in a strange and incomprehensible jargon. The ordinary court, or lawyer, is quite lost when engulfed and entangled in it … .”
§3.6 Given that Prosser was writing before any of the modern approaches to conflicts had developed to challenge the universal application of the lex loci delicti rule, the pessimists among us could contend that matters have only gotten worse in the intervening years. I hope that the following chapter will incline you to a more optimistic view — even if only out of necessity. Understanding how conflicts law functions in cross-border tort cases is essential to evaluating your client’s litigation options and identifying the preferred forum for initiating your action. To answer the question “Where should I sue?”, we need not drain the swamp — but I hope we can avoid the quagmires, and cut through some of the jargon.