Hanlan et al. v. Sernesky
[Indexed as: Hanlan v. Sernesky]
38 O.R. (3d) 479
[1998] O.J. No. 1236
Docket No. C28018
Court of Appeal for Ontario
McMurtry C.J.O., Catzman and Moldaver JJ.A.
March 24, 1998
Conflict of laws — Choice of law — Torts — Motions judge properly exercised his discretion to apply lex fori in circumstances where lex loci delicti rule would work injustice.
The defendant appealed a decision of the motions judge to apply the law of Ontario.
Held, the appeal should be dismissed.
The motions judge had a discretion to apply the lex fori in circumstances where the lex loci delicti rule would work an injustice. In the circumstances, he did not err in exercising his discretion as he did.
Cases referred to
Tolofson v. Jensen, [1994] 3 S.C.R. 1022, 120 D.L.R. (4th) 289, [1995] 1 W.W.R. 609, 120 B.C.L.R. (2d) 1, 22 C.C.L.T. (2d) 173, 175 N.S.R. 161, 7 M.V.R. (3d) 202, 32 C.P.C. (3d) 141
APPEAL from a decision of Platana J. (1997), 35 O.R. (3d) 603, 14 C.P.C. (4th) 91, 31 M.V.R. (3d) 119 (Gen. Div.).
K. Duncan Finlayson, Q.C., for appellant. John H.P. Hornak, for respondents.
BY THE COURT: — In accordance with Tolofson v. Jensen, [1994]
3 S.C.R. 1022, 120 D.L.R. (4th) 289, we are satisfied that the motions judge had a discretion to apply the lex fori in circumstances where the lex loci delicti rule would work an injustice. Justice Platana purported to exercise that discretion and ruled that in the particular circumstances before him, the operation of the lex loci rule would work an injustice. In coming to this conclusion, it is apparent that Mr. Justice Platana considered the following factors:
1. that the parties were both resident in Ontario;
2. that the contract of insurance was issued in Ontario;
3. that there was no connection with the State of Minnesota other than that it was the place of the accident;
4. that although the accident occurred in Minnesota, the consequences to members of the injured plaintiff’s family were directly felt in Ontario; and
5. that the uncontradicted evidence before him was that claims of this nature are not permitted under Minnesota law.
We are not persuaded that Mr. Justice Platana erred in exercising his discretion as he did. Accordingly, the appeal is dismissed with costs.
Appeal dismissed.