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Conflict of Laws


In our era of internet, telecommunications, transnational and international travels, cross border shipping and other activities straddling several provinces and countries, issues of overlapping jurisdictions are not uncommon. When that happens, it is necessary to determine which laws are applicable. It is easy to imagine the kind of chaos that would ensue if each authority decided to apply its own rules to every situation; parties could face contradictory legal obligations from one jurisdiction to the next. Rules of reciprocity have been developed between some governments by way of agreements and reciprocal legislation, while a body of case law has followed suit through jurisprudence when it comes to judicial respect for other court decisions.

Of course, where the rules between jurisdictions are the same, there rarely arise conflicts. The problems are faced when the rules are inconsistent or diverging. Then the courts have developed principles to resolve the disputes and determine which rules are applicable. In New Brunswick, as far as tortious actions are concerned, there are generally three types of conflict scenarios that present themselves: (1) cases where events happen in multiple jurisdictions, including New Brunswick, (2) cases where accidents happen outside of the province but involve a New Brunswick resident, and (3) events involving a federally regulated undertaking. Each situation is discussed separately.

Multi-Jurisdictional Events

Under this scenario, we typically find cases where an event happens in several jurisdictions at once. For example, a tort will occur where there is (1) a duty of diligence, and (2) a breach of the duty, which (3) results in a harm to a victim. Therefore, while a faulty product may be fabricated in Ontario, its defect may be noticed only after it injures someone elsewhere. Courts have determined the location of the tort and it is now well established that good and service providers don’t need to be physically present in a province to be liable for the damages they cause therein: Moran v. Pyle National (Canada) Ltd, [1975] 1 SCR 393; British Columbia v. Imperial Tobacco Canada Ltd, 2005 SCC 49. In those cases, the cause of action arises at least partly in both jurisdictions and can potentially be litigated in each.

When litigation follows, the action will be tried according to the laws and rules of the jurisdiction where it is filed. However, as suggested above, under this scenario, while the tortfeasor may reside in one jurisdiction, the victim may live in another, or vice versa. Conflicts will arise where a party or his/her representative has specific rights pursuant to foreign contracts or laws (i.e. foreign to the jurisdiction where the litigation is engaged). For example, while Black Estate v. McCutcheon (1989), 102 NBR (2d) 271 (QB), Hunt v. T&N plc, [1993] 4 SCR 289, and Williams v. Brown, 2006 NBCA 123, are matters involving out of province parties, Régie de l’assurance automobile du Québec v. Brown (1990), 107 NBR (2d) 11 (CA), and Unifund Assurance Co. v. Insurance Corp. of British Columbia, 2003 SCC 40, dealt with a party’s out of province insurer seeking recovery of money paid.

In Hunt, supra, a law from Quebec prevented the release of corporate documents outside of the province. The defendant relied on that provision to refuse disclosure in a British Columbia case dealing with an asbestos related injury. The unanimous Supreme Court of Canada struck down the section as being extra-provincial in pith and substance. In Black Estate, supra, a deceased’s widow sought compensation in relation to a motor vehicle accident in New Brunswick. One of the issues was whether benefits paid to her in the State of Georgia, equivalent to New Brunswick Section B no-fault benefits, had to be deducted from the award of damages. The court applied the deduction as per the New Brunswick legislation, but did not reduce the award of damages to account for personal expenses as per the Georgia legislation. In Williams, supra, the non-resident plaintiff sought a declaration that a reciprocity provision be declared invalid as also being extra-provincial. The impugned section states that non-residents have a right to recover what they would be entitled to in their province of origin, or no more than what a New Brunswick resident would be entitled to receive as a result of a motor vehicle accident. The unanimous bench of the Court of Appeal dismissed the challenge summarily, on the ground that the provision “would appear to deal with a quintessentially local matter, a litigant’s right of recovery in circumstances where the pertinent law is that of New Brunswick” (para 40). The main issue revolved around the deductibility of no-fault Section B weekly indemnity benefits paid under an insurance contract from Prince Edward Island. The full amount received was ultimately deducted, as in Black Estate, supra.

Régie de l’assurance, supra, and Unifund, supra, both dealt with no-fault benefits paid to the insurer’s clients. In Régie de l’assurance, the insurer claimed to recover the benefits paid through a subrogation right, while Unifund sought recovery through the Ontario insurance regime. The accident and litigation happened in New Brunswick in the first case, and in British Columbia in the second. In Régie de l’assurance, the unanimous bench of the Court of Appeal confirmed the right of the insurer to recover, in New Brunswick, through its subrogation right, what it paid to the victims and only in proportion to what they were not responsible for the accident. However, in Unifund, the majority of the Supreme Court held the Ontario regime not applicable to the accident occurring in British Columbia and the Ontario insurer was not reimbursed the no-fault benefits paid to the Ontario residents under their Ontario insurance policy.

It is worth mentioning that Unifund, supra, could easily have been considered under the second category of cases dealing with events happening entirely outside of the jurisdiction. Like Black Estate, supra, Williams, supra, and Régie de l’assurance, supra, the victim was injured while travelling in another province or state. The difference is that the litigation for reimbursement in Unifund was filed in Ontario and sought pursuant to the Ontario insurance regime as the British Columbia regime did not allow such claim. The multi-jurisdictional aspect of Williams and Régie de l’assurance was triggered by provincial legislation instilling reciprocity to the victims’ claim. As for Hunt, supra, it presented a true multi-jurisdictional case, similar to Moran, supra, and Imperial Tobacco, supra, where out-of-province defendants were alleged to have caused harm to the victims.

Events Happening Outside of Jurisdiction

The real fertile ground for conflicts of laws is found when New Brunswick courts hear matters stemming from events in other jurisdictions, which they are empowered to do when certain conditions are met. Several cases have dealt with this type of scenario: see for example Perron v. Parisé (1983), 44 NBR (2d) 409 (QB); MacLeod v. Via Rail Canada Inc. (1988), 91 NBR (2d) 91 (QB); Clark v. Naqui (1989), 99 NBR (2d) 271 (CA); Mersereau v. Côté (1989), 95 NBR (2d) 398 (QB); Moffitt v. Moffitt (1991), 113 NBR (2d) 361 (QB); Wright v. Wright (1992), 124 NBR (2d) 1 (QB); LeBreton v. Patriacca (1992), 128 NBR (2d) 190 (QB); Huckins v. Moss (1996), 181 NBR (2d) 81 (QB), confirmed at (1997), 188 NBR (2d) 153 (CA); O’Brien v. Universal Property Management Ltd, 2005 NBQB 148; and Jacob v. Roy, 2005 NBQB 421, confirmed at 2006 NBCA 102. Usually, even though the court has authority, the applicable law is that of the other jurisdiction: Unifund, supra para 80; Clark, supra; Huckins, supra paras 33 & 35 (QB); O’Brien, supra paras 13-15; Jacob, supra paras 3-6, 32 & 77 (QB).

As explained in McLean v. Pettigrew, [1945] SCR 62 pp 75-76, litigation can be pursued in a province, in relation to an accident occurring elsewhere, as long as

… pour réussir, la demanderesse doit établir en premier lieu, que le quasi-délit commis en Ontario aurait donné ouverture à une action en dommages dans Québec, s’il eût été commis dans cette dernière province. En second lieu, il lui faut aussi démontrer que l’acte reproché au conducteur … est « wrongful, i.e. non-justifiable » selon la loi du lieu où a été commis le quasi-délit.

In Perron, supra para 15, the 2 criteria are defined as:

(a) The wrong must be of such a character that it would have been actionable as a tort if committed in New Brunswick.

(b) The act must not have been justifiable by the law of the place where it was committed and the act is not “justifiable” by the law of the place where it was committed if such act was “actionable” or “punishable” according to the lex loci delicti.

Obviously, in that process, judges have the authority to consider the foreign law regarding the existence of both the cause of action and any possible excuse: Hunt, supra pp 307-310.

It is worth noting that the legislative provision that gave rise to multi-jurisdictional issues earlier has also been raised in this context. It was argued, namely in Perron, supra paras 23-26, that the reciprocity section prevented a New Brunswick resident from receiving more than what would be allowed in the other province where the accident occurred. The court limited the provision to claims in New Brunswick from non-residents, not to New Brunswick residents claiming in the province in relation to accidents happening elsewhere. However, the judge continued by saying that the applicable law, as far as liability and quantum of damages were concerned, was that of New Brunswick (para 27). This last statement may be questionable with respect to substantive rules, as opposed to procedural rules: see Unifund, supra para 80. Namely, in Clark, supra, the issue centered on which limitation period, that of New Brunswick or Nova Scotia, applied to a medical intervention practiced in Nova Scotia. The unanimous bench applied the Nova Scotia legislation (albeit one of the appeal justices disagreed on the cause of action, i.e. contract instead of negligence). As explained in Huckins, supra para 35, New Brunswick law may apply in certain circumstances, namely for the quantification of damages where that of the foreign jurisdiction (State of Massachusetts) is not helpful.

Although the case of Albert v. Pelletier (1983), 54 NBR (2d) 189 (QB), is not technically an interjurisdictional matter, pertaining to the liability of a New Brunswick lawyer, its background involves an accident in Quebec and the failure to file an action within its 1-year limitation period. Furthermore, while the cause of action in Quebec depended on simple negligence, the corresponding New Brunswick cause of action rested on gross negligence. The trial judge condemned the lawyer for not filing the action in the jurisdiction presenting with the easiest road to recovery (i.e. Quebec) and ordered him to compensate the plaintiff with the amount that she should normally have recovered in damages.

However, even if the court has jurisdiction to deal with out-of-province matters, judges will sometime refuse to entertain them because they would more properly be addressed elsewhere: Gauthier v. Swain (1989), 100 NBR (2d) 173 (QB). As explained in Spar Aerospace Ltd v. American Mobile Satellite Corp., 2002 SCC 78 para 71, some of the factors that can influence a judge to decline to exercise jurisdiction are:

  • The parties’ residence, that of witnesses and experts;
  • The location of material evidence;
  • The place where the events occurred;
  • The existence of pending proceedings between the parties in another jurisdiction;
  • The location of the defendant’s assets;
  • The applicable law;
  • The advantages conferred to a plaintiff by the choice of forum, if any;
  • The interest of justice;
  • The interest of the parties; and
  • The need to have the judgment recognized in another jurisdiction.

Of course, where there is no jurisdiction, there is no matter of discretion to be exercised: Offen v. McCain Produce Co. Ltd (1983), 46 NBR (2d) 108 (QB), confirmed at (1983), 49 NBR (2d) 388 (CA); S.K. Export Inc. v. Fédération des producteurs acéricoles du Québec, 2011 NBQB 234.


A third category of conflict of law issues arise out of the federal nature of our country. Because Canada has a central and local government with each its own fields of powers, there sometimes can be overlapping authority on specific subject matters. Pure constitutional law doctrines, like federal paramountcy or exclusivity, will usually help resolve these conflicts. For example, a problem which existed at one time was the ability to sue federal entities or their agents in provincial courts for their negligent conducts: see Rudolph Wolff & Co. v. Canada, [1990] 1 SCR 695; Dywidag Systems International, Canada Ltd v. Zutphen Brothers Construction Ltd, [1990] 1 SCR 705. The rule, which the Constitution allowed, appeared most unfair where the federal government was but one of several defendants in the proceedings. Then, two lawsuits had to be filed to deal with the same matter, one in each jurisdiction. Except in limited situations (i.e. admiralty), the Crown Liability and Proceedings Act, RSC 1985, c. C-50, now permits tort actions against federal authorities in provincial courts.

Among others, one of the federal conflicts that courts had to deal with was the applicable limitation period to an accident. Namely, in Clark (Litigation Guardian) v. Canadian National Railway Co., [1988] 2 SCR 680, a case from New Brunswick, a child was injured by a train. While provincial legislation permitted the filing of actions up to 2 years after the event or after attaining majority, the strict timeline was 1 year after the event under federal legislation. Again, using constitutional law doctrines, the unanimous bench of the Supreme Court held the provincial law applicable to common law causes of action involving otherwise federally regulated railway companies. Provincial common law tort rules were also applied to an accident involving the fitting of a boat for its transportation on a road: Simms v. Isen, 2006 SCC 41. The defendant in that case failed in his attempt to rely on the Canada Shipping Act, RSC 1985, c. S-9, to limit his liability to 1 million dollars. Both matters dealt with the boundaries to federal jurisdictions as defined in s. 91 of the Constitution Act, 1867. While Parliament clearly has legislative authority over interprovincial railways and navigation, it does not absolve such undertakings from provincial rules: see also Canadian Pacific Railway Co. v. Parish of Notre Dame de Bonsecours, [1899] AC 367; Ontario v. Canadian Pacific Ltd, [1995] 2 SCR 1028.

Where there is concurrent jurisdiction and there is conflict between federal and provincial rules, the doctrine of paramountcy will apply to give precedence to the former over the latter. The constitutional principle favors uniformity and consistency across the Canadian jurisdictions. Its goal is, in essence, the same as all other conflict of law rules.

This paper is offered for the purpose of discussion only. It does not constitute legal advice and its distribution does not create a solicitor-client relationship. Please consult a lawyer if you require legal advice.