Somers et al. v. Fournier et al., 2002 ONCA 45001

Somers et al. v. Fournier et al. [Indexed as: Somers v. Fournier]

60 O.R. (3d) 225

[2002] O.J. No. 2543

Docket No. C36748

Court of Appeal for Ontario,

Finlayson, Carthy and Cronk JJ.A.

June 27, 2002

Conflict of laws -- Choice of laws -- Torts -- Ontario residents bringing negligence action in Ontario arising from collision in New York State with vehicle driven and owned by residents of that state -- Substantive law of New York State and procedural law of Ontario applying to action -- Neither denial of opportunity to claim damages by reason of expiration of limitation period nor operation of limit on liability by reason of no-fault tort compensation regime constituting injustice sufficient to support exception to lex loci delicti rule -- Costs and Ontario's "cap" on non-pecuniary general damages constituting matters of procedure to which Ontario law applied in action -- Pre-judgment interest constituting matter of substantive law of Ontario which did not apply in action.

Damages -- Torts -- General damages -- Ontario residents bringing negligence action in Ontario arising from collision in New York State with vehicle driven and owned by residents of that state -- Substantive law of New York State and procedural law of Ontario applying to action -- Ontario's "cap" on non- pecuniary general damages constituting matter of procedure to which Ontario law applied in action.

The plaintiffs, who were residents of Ontario, were involved in a motor vehicle accident in New York State in 1990 with a car driven and owned by residents of [page226] that state. The plaintiffs brought an action in Ontario against the driver of the other car and their own insurer for damages for personal injuries, pre-judgment interest and costs. The defendants attorned to the jurisdiction of the Ontario courts. Neither the plaintiffs' automobile insurance policy nor Ontario's statutory regime applicable in 1990 restricted an injured person's right to sue an at-fault motorist in tort for damages arising from injuries occasioned by a motor vehicle. The defendant moved before trial for a declaration that the substantive law of New York State applied to the action. The motions judge held that the substantive law of New York State and the procedural law of Ontario applied to the action. He further held that pre- judgment interest, costs and Ontario's "cap" on non- pecuniary general damages are procedural in nature and, therefore, were governed in the action by the law of Ontario. The defendant appealed and the plaintiff cross-appealed.

Held, the appeal should be allowed in part; the cross-appeal should be dismissed.

Substantive law creates rights and obligations and is concerned with the ends which the administration of justice seeks to attain, whereas procedural law is the vehicle providing the means and instruments by which those ends are attained. It regulates the conduct of courts and litigants in respect of the litigation itself whereas substantive law determines their conduct and relations in respect of the matters litigated.

The authority in Ontario to award costs is conferred by s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Costs are both a discretionary indemnification device and a mechanism by which abuses of the court's processes may be deterred and penalized. Costs are routinely used by Ontario courts to reward or sanction the conduct of parties prior to and during the litigation process. Costs are a means by which the ends of justice are attained. Costs of litigation are incidental to the determination of the rights of the parties. They are not part of the lis between litigants. In Ontario, costs are a procedural matter governed by the lex fori. Ontario's procedural law concerning costs apply to this action.

Pre-judgment interest under Ontario law is akin to a head of damage which is available to respond to a delay in the delivery of awarded compensation. The entitlement to claim pre-judgment interest in Ontario is established not by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as suggested by the motions judge, but by the Courts of Justice Act. Section 128(1) of the Act confers a substantive right to claim pre-judgment interest on a person who is entitled to an order for the payment of money. That right may be displaced, varied or reduced, in the discretion of the court, where the conduct of the claimant has adversely affected the speedy progress of the litigation. The discretion of the court concerning pre-judgment interest relates to the denial or reduction, as distinct from the granting, of a right. Accordingly, the character of the court's discretion in connection with pre-judgment interest is qualitatively different from the nature of the wide discretion afforded the court under s. 131(1) of the Act to grant, or deny, costs. In Ontario, pre-judgment interest is a matter of substantive law.

This case did not fall within the narrow category of cases in which a departure from the lex loci delicti rule is warranted. The discretion to apply the lex fori in international litigation where necessary to avoid injustice is limited, and is to be exercised only in compelling and exceptional circumstances. Neither the plaintiff's present inability to claim no-fault benefits under New York State automobile accident benefits legislation nor the bar, due to the expiry of a limitation period, to any claim by her for accident benefits from her own insurer of the type and to the extent [page227] provided for under New York State legislation, dictated recognition of an exception to the lex loci delicti rule. The policy under which the plaintiff was insured at the time of the accident provided for an entitlement to accident benefits with a limit of $25,000. Following the accident, it was open to the plaintiff to claim no-fault accident benefits under either Ontario or New York State benefits schemes. She elected to claim, and received, benefits under Ontario's no-fault benefits scheme and, thereafter, commenced the action in Ontario against the tortfeasor and her own insurer. She could not complain now of the consequences of her own election. Moreover, there was no evidence on the record that the accident benefits available to the plaintiff under New York State law, when open to her to claim, were greater than her entitlement to benefits under Ontario law. Thus, no actual prejudice to the plaintiff had been demonstrated as a consequence of her voluntary decision to sue in Ontario and her voluntary election to apply for, and to accept, Ontario no-fault benefits. Denial of the opportunity to claim damages by reason of the expiration of a limitation period does not constitute injustice sufficient to support an exception to the lex loci delicti rule. Similarly, operation of a limit on liability by reason of a no-fault tort compensation regime does not meet the requirement for demonstration of injustice sufficient to depart from the lex loci delicti rule.

The motions judge did not err in characterizing Ontario's cap on non-pecuniary damages as procedural in nature. General conflict of law principles regarding damages distinguish between an entitlement to damages and the quantification or measurement of damages. Remoteness and heads of damage are questions of substance governed by the lex loci delicti, whereas the quantification or measurement of damages is a question of procedure governed by the lex fori. The cap does not bar a claim for damages for pain and suffering and loss of amenities consequent upon personal injuries sustained in a motor vehicle accident. The cap assumes that liability exists which is susceptible of assessment, but directs the court to impose an upper limit on the quantum of damages which, as a result of such assessment, may be awarded to a successful plaintiff in respect of non-pecuniary losses. In essence, therefore, the cap is a judicially imposed limit or restriction on liability for non-pecuniary damages. It is a device developed to avoid excessive and unpredictable damages awards concerning non-pecuniary losses and the corresponding burden on society which follows from such awards. The policy considerations which support the goal of avoiding such awards favour characterization of a cap as a matter of procedural law.

APPEAL and CROSS-APPEAL from an order of C. Campbell J. (2001), 8 C.C.L.T. (3d) 112, 14 M.V.R. (4th) 264 (Ont. S.C.J.) in respect of a choice of law to be applied in an action.

McLean v. Pettigrew, [1945] S.C.R. 62, [1945] 2 D.L.R. 65, affg (1944), 48 R.L.N.S. 468 (Que. C.A.) (sub. nom. Pettigrew v. McLean); Tolofson v. Jensen, [1994] 3 S.C.R. 1022, 100 B.C.L.R. (2d) 1, 120 D.L.R. (4th) 289, 175 N.R. 161, [1995] 1 W.W.R. 609, 22 C.C.L.T. (2d) 173, 32 C.P.C. (3d) 141, 7 M.V.R. (3d) 202; Wong v. Lee, [2002] O.J. No. 885 (C.A.), consd Other cases referred to Al-Qahtani-Shaw-Leonard v. Crossworld Freight Ltd. (1988), 66 O.R. (2d) 256, 54 D.L.R. (4th) 192 (C.A.), varg (1987), 60 O.R. (2d) 565, 40 D.L.R. (4th) 656 (H.C.J.), supp. reasons (1987), 60 O.R. (2d) 565 at 581, 40 D.L.R. (4th) 656 at 673, 23 C.P.C. (2d) 77 (H.C.J.); Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, 3 C.C.L.T. 225, [1978] 1 W.W.R. 577, 19 N.R. 50, 80 A.R. 182, 83 D.L.R. (3d) 452; Armak Chemicals Ltd. v. Canadian National Railway Co. (1991), 5 O.R. (3d) 1, 84 D.L.R. (4th) 326, 4 C.P.C. (3d) 280 (C.A.) (sub nom. Oakville Storage & Forwarders v. C.N.R., Oakville Storage v. C.N.R.); Arnold v. Teno, [1978] 2 S.C.R. 287, 83 D.L.R. (3d) 609, 3 C.C.L.T. 272, 19 N.R. 1; [page228] Bell Canada v. Consumers' Association of Canada, [1986] 1 S.C.R. 190, 26 D.L.R. (4th) 573, 65 N.R. 1, 9 C.P.R. (3d) 145; Caltex Singapore Pte. Ltd. v. B.P. Shipping Ltd., [1996] 1 Lloyd's Rep. 286 (H.C.J.); Chaplin v. Boys, [1969] 2 All E.R. 1085, [1971] A.C. 356, [1969] 3 W.L.R. 322, 113 Sol. Jo. 608, [1969] 2 Lloyd's Rep. 487 (H.L.); Coupland v. Arabian Gulf Petroleum Co., [1983] 2 All E.R. 434 (Q.B.); Gill v. Gill, [2000] B.C.J. No. 1106 (S.C.); Goryl v. Greyhound Australian Pty. Ltd. (1994), 68 A.L.J.R. 432 (H.C.); Gotch v. Ramirez (2000), 48 O.R. (3d) 515, 49 C.P.C. (4th) 168 (S.C.J.); Graham v. Rourke (1990), 75 O.R. (2d) 622, 40 O.A.C. 301, 74 D.L.R. (4th) 1 (C.A.); Grimes v. Cloutier (1989), 69 O.R. (2d) 641, 34 O.A.C. 376, 61 D.L.R. (4th) 505, [1989] I.L.R. 1-2507, 18 M.V.R. (2d) 288 (C.A.); Herceg Novi v. Ming Galaxy, [1998] 4 All E.R. 238 (C.A.); Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, 24 O.R. (3d) 865n, 126 D.L.R. (4th) 129, 184 N.R. 1, 30 C.R.R. (2d) 189, 25 C.C.L.T. (2d) 89, affg (1994), 18 O.R. (3d) 385, 114 D.L.R. (4th) 1, (C.A.); Lau v. Li (2001), 53 O.R. (3d) 727, 5 C.C.L.T. (3d) 241 (S.C.J.); Metaxas v. Galaxias (The) (No. 5), [1990] 2 F.C. 400, 35 F.T.R. 40 (T.D.); Pagliarella v. DiBiase Brothers Inc. (1989), 68 O.R. (2d) 597, 33 O.A.C. 28, 58 D.L.R. (4th) 691, [1989] I.L.R. 1-2445, 16 M.V.R. (2d) 117 (C.A.); Prefontaine Estate v. Frizzle (1990), 71 O.R. (2d) 385, 38 O.A.C. 22, 65 D.L.R. (4th) 275, [1990] I.L.R. 1-2572, 40 C.P.C. (2d) 161, 23 M.V.R. (2d) 136 (C.A.); Sawadski v. Heil (1991), 86 D.L.R. (4th) 364, 2 C.P.C. (3d) 101, 33 M.V.R. (2d) 82 (Ont. C.A.); Stevens v. Head (1993), 67 A.L.J.R. 343; Sutt v. Sutt, [1969] 1 O.R. 169, 2 D.L.R. (3d) 33 (C.A.); Thornton v. Prince George School District No. 57, [1978] 2 S.C.R. 267, 83 D.L.R. (3d) 480, [1978] 1 W.W.R. 607, 3 C.C.L.T. 257, 19 N.R. 552 (sub. nom. Thornton v. School District No. 57); Wong v. Wei, [1999] B.C.J. No. 768 (S.C.); Young v. Young, [1993] 4 S.C.R. 3, 84 B.C.L.R. (2d) 1, 108 D.L.R. (4th) 193, 160 N.R. 1, [1993] 8 W.W.R. 513, 18 C.R.R. (2d) 41, 49 R.F.L. (3d) 117 Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 128, 130, 131 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 49.10, 57.01 Authorities referred to Castel, J.-G., and J. Walker, Canadian Conflict of Laws, looseleaf ed. (Toronto: Butterworths, 2002) Collins, L., Dicey and Morris on the Conflict of Laws (London: Sweet & Maxwell, 2000) Orkin, M., Q.C., Costs: The Bottom Line (Toronto: Law Society of Upper Canada, 1999) Waddams, S.M., The Law of Damages, looseleaf ed. (Toronto: Canada Law Book, 2000) Waldron, M.A., The Law of Interest in Canada (Scarborough: Carswell, 1992)

Gordon A. Wiggins, for appellant and respondent in cross- appeal, S.D. Fournier. R. Donald Rollo and Edward J. Cottrill, for respondent in cross-appeal, Liberty Mutual Insurance Company. [page229] Raymond A.D. Watt, for respondent and appellent in cross- appeal, Lola Somers.

The judgment of the court was delivered by

CRONK J.A.: --

I. Introduction

[1] This appeal and cross-appeal involve the choice of law to be applied in an international negligence action commenced in Ontario and arising from a two-car motor vehicle accident which occurred in the State of New York. At issue, in particular, is the choice of law applicable to claims in the action for costs, pre-judgment interest and non-pecuniary general damages.

[2] On April 9, 1990, Arthur and Lola Somers (the "Somers"), residents of Ontario, were involved in a motor vehicle accident with a car driven by Steven D. Fournier ("Fournier"), a resident of the State of New York, while on a road trip in New York State. Lola Somers was a passenger in the vehicle being driven by her husband when it was rear-ended by the vehicle operated by Fournier and owned by Fournier's father. Ms. Somers was also involved in a subsequent motor vehicle accident in Ontario on October 14, 1994. As a result of both accidents, several related lawsuits have arisen.

[3] In this action, commenced by the Somers in Ontario against Fournier and Liberty Mutual Insurance Company ("Liberty Mutual"), the Somers claim compensatory damages for personal injuries, pre-judgment interest and costs arising from the 1990 accident (the "Action"). The defendants in the Action attorned to the jurisdiction of the Ontario courts. Thus, there is no challenge in the Action of Ontario as the proper forum. [See Note 1 at end of document]

[4] At the time of the 1990 accident, Lola Somers was insured by Liberty Mutual under an Ontario standard form automobile insurance policy. Neither that policy nor Ontario's statutory regime applicable in 1990 restricts an injured person's right to sue an at-fault motorist in tort for damages arising from injuries occasioned by a motor vehicle accident. Further, the Liberty Mutual policy is silent on the choice of law applicable to claims arising from accidents in foreign jurisdictions. [page230]

[5] Fournier enjoyed third party liability insurance coverage under a New York Central Insurance Company policy at the time of the 1990 accident. That policy has limits of $300,000 (U.S.), inclusive of all damages, interest and costs.

[6] Fournier moved prior to trial for, among other relief, a declaration that the substantive law of New York State applies to the Action. By order dated June 29, 2001, Justice C. Campbell held that the substantive law of New York State and the procedural law of Ontario applies to the Action. He further concluded that pre-judgment interest, costs and Ontario's "cap" on non-pecuniary general damages are procedural in nature and, therefore, are governed in the Action by Ontario law.

[7] Fournier appeals the motions judge's decision that: a) the procedural law of Ontario applies to the Action, and b) that law governs claims in the Action for pre-judgment interest and costs. Ms. Somers cross-appeals the motions judge's determination that the substantive law of New York State applies to the Action and, in the alternative, his conclusion that the "cap" on non-pecuniary general damages recognized under Ontario law applies to claims in the Action for damages for non-pecuniary losses and expenses. Mr. Somers abandoned a cross-appeal brought by him from the motions judge's dismissal of his claim for non-pecuniary general damages. He did not participate in this hearing.

[8] For the reasons that follow, I conclude that the substantive law of New York State applies to the Action and that costs and Ontario's "cap" on non-pecuniary general damages are matters of procedure to which Ontario law applies in the Action. I further conclude, however, that pre-judgment interest is a matter of the substantive law of Ontario, which law has no application to the Action. Accordingly, I would allow the appeal on that issue. In all other respects, I would dismiss the appeal and cross-appeal, and confirm the order of the motions judge.

II. The Issues

[9] There are three main issues on this appeal and cross- appeal:

(i) whether costs and pre-judgment interest are matters of procedure to which Ontario law (the lex fori) applies in the Action;

(ii) whether the substantive law of New York State (the lex loci delicti) applies to the Action and, if so, whether an exception to the application of that law is warranted in this case to avoid injustice; and[page231]

(iii) whether the "cap" on non-pecuniary general damages recognized under Ontario law is a matter of procedural, rather than substantive, law with the result that it applies to the Action as part of the law of the forum (the lex fori).

III. Analysis

[10] The motions judge found that (at para. 15):

(a) As a matter of New York State substantive law, no pre- judgment interest is awardable in personal injury compensation claims by statute.

(f) Attorneys' fees, as a matter of New York State substantive law, can not be awarded in personal injury compensation arising from automobile accidents, as each party is responsible for his or her own attorney's expenses of the litigation.

(g) As a matter of New York State substantive law, there is no judicial cap or ceiling governing the award of general damages, but the award is subject to review and must be considered reasonable and truly reflective of the nature and extent of the injuries and the effects of those injuries on the victim.

[11] Fournier makes two main submissions in support of his appeal. First, he argues that New York State law concerning costs and pre-judgment interest is substantive law and that it applies to the Action. Accordingly, he asserts that the motions judge erred in concluding that Ontario law concerning costs and pre-judgment interest is procedural law which applies to the Action. Second, and in any event, he submits that Ontario law relating to costs and pre-judgment interest should not operate to defeat his substantive law rights under the law of New York State.

[12] In Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, [1994] 3 S.C.R. 1022, 120 D.L.R. (4th) 289, the Supreme Court of Canada held that the rule of private international law that should be applied in tort cases is the lex loci delicti, that is, the law of the place of the wrong. Thus, under Tolofson, the law to be applied to the substantive rights of parties in tort cases is the law of the place where the activity occurred. However, the law of the forum (the lex fori) applies to procedural matters. (See the reasons of La Forest J., writing for a majority of the court, at pp. 1048-50 S.C.R., pp. 304-05 D.L.R.)

[13] The distinction between procedural and substantive law is central to the issues raised on this appeal and cross- appeal. That distinction is often difficult to discern. In Tolofson, La Forest J. addressed the important purpose of classifying a rule or legal requirement as substantive or procedural (at p. 1067 and pp. 1071-72 S.C.R., pp. 317-18 and p. 321 D.L.R.): [page232]

In any action involving the application of a foreign law the characterization of rules of law as substantive or procedural is crucial for, as Geoffrey Cheshire and Peter North, Cheshire and North's Private International Law, 12th ed. by Peter North and J.J. Fawcett (London: Butterworths, 1992), at p. 74-75, state:

One of the eternal truths of every system of private international law is that a distinction must be made between substance and procedure, between right and remedy. The substantive rights of the parties to an action may be governed by a foreign law, but all matters appertaining to procedure are governed exclusively by the law of the forum.

The reason for the distinction is that the forum court cannot be expected to apply every procedural rule of the foreign state whose law it wishes to apply. The forum's procedural rules exist for the convenience of the court, and forum judges understand them. They aid the forum court to "administer [its] machinery as distinguished from its product": Poyser v. Minors (1881), 7 Q.B.D. 329 (C.A.) at p. 333, per Lush L.J. Although clearcut categorization has frequently been attempted, differentiating between what is a part of the court's machinery and what is irrevocably linked to the product is not always easy or straightforward. . . .

[I]n the conflicts of law field . . . the purpose of substantive/procedural classification is to determine which rules will make the machinery of the forum court run smoothly as distinguished from those determinative of the rights of both parties.

(Emphasis added)

[14] This court has described the distinction between substantive and procedural law in these terms:

[S]ubstantive law creates rights and obligations and is concerned with the ends which the administration of justice seeks to attain, whereas procedural law is the vehicle providing the means and instruments by which those ends are attained. It regulates the conduct of Courts and litigants in respect of the litigation itself whereas substantive law determines their conduct and relations in respect of the matters litigated.

(Emphasis added)

(Sutt v. Sutt, [1969] 1 O.R. 169, 2 D.L.R. (3d) 33 (C.A.), at p. 175 O.R., per Schroeder J.A.). With that distinction in mind, I turn to an examination of whether costs, pre-judgment interest and Ontario's "cap" on non-pecuniary general damages are matters of substantive, or procedural, law.

(1) Costs

[15] The authority in Ontario to award costs is conferred by s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the "Act"). That section empowers an Ontario court, in its absolute discretion, to award "the costs of and incidental to a proceeding or a step in a proceeding", subject to the rules of court or the provisions of an Act, and to "determine by whom and to what extent [page233] the costs shall be paid". Ontario's Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and associated case law establish various factors to be taken into account in determining whether, and in what amount, costs should be awarded.

[16] Traditionally, costs have been regarded as a form of indemnification of the party to whom they are awarded for the legal fees and expenses incurred in litigation (see Bell Canada v. Consumers' Association of Canada, [1986] 1 S.C.R. 190, 26 D.L.R. (4th) 573 and Young v. Young, [1993] 4 S.C.R. 3, 108 D.L.R. (4th) 193). While that indemnification principle continues to inform awards of costs, it is not the exclusive, or necessarily the predominate, function of such awards. In contemporary litigation, costs serve many purposes. Among those purposes are the goals of encouraging settlement and facilitating the management and control of the litigation process. (See, generally, Mark M. Orkin, Q.C., Costs: The Bottom Line (Toronto: Law Society of Upper Canada, 1999).)

[17] Thus, costs are both a discretionary indemnification device and a mechanism by which abuses of the court's processes may be deterred and penalized. Costs are routinely used by Ontario courts to reward or sanction the conduct of parties prior to and during the litigation process. Consistent with that function, subrule 57.01(2) of the Rules of Civil Procedure ensures that success in litigation is not a guarantee of an award of costs. Under that subrule, the courts are expressly empowered to award costs against a successful party, in a proper case. Solicitor and client costs, or costs on a substantial indemnity basis, may be awarded to penalize and deter reprehensible, scandalous or outrageous conduct, or conduct deserving of sanction. Costs awarded against solicitors personally, because of their conduct in a proceeding, have both punitive and compensatory aspects (see rule 57.01). In addition, by rule 49.10, costs can be utilized to promote settlement and to encourage efficient and timely dispute resolution.

[18] Viewed from a multi-purpose perspective, therefore, costs are "a means by which the ends of justice are attained" (Sutt v. Sutt, at p. 175 O.R., per Schroeder J.A.). They are an essential tool designed, in the words of La Forest J. in Tolofson, to "make the machinery of the forum court run smoothly" and to aid Ontario courts in "administer[ing] [their] machinery as distinguished from [their] product" (at pp. 1067-68 and pp. 1071-72 S.C.R., pp. 318 and 321 D.L.R.).

[19] Finally, costs of litigation are incidental to the determination of the rights of the parties. They are not part of the lis between litigants. In my view, the motions judge correctly concluded (at para. 61): [page234]

Costs are a defining part of our civil litigation process. They are appropriately characterized as procedural since with the discretion granted, particularly to trial courts, the "machinery" of the Court can be enabled to work effectively. A particular example of the operation of that machinery is seen in the application of Rule 49 dealing with offers to settle.

[20] I am satisfied that in Ontario costs are a procedural matter governed by the lex fori. In accordance with Tolofson, Ontario's procedural law concerning costs applies to the Action.

(2) Pre-judgment interest

[21] The Act also provides for awards of pre-judgment and post-judgment interest. In connection with the former, s. 128(1) of the Act reads:

128(1) A person who is entitled to an order for the payment of money is entitled to claim and have included in the order an award of interest thereon at the prejudgment interest rate, calculated from the date the cause of action arose to the date of the order.

Section 128(1) thus establishes a presumptive right to pre- judgment interest, where an order for the payment of money is made. Entitlement to pre-judgment interest under s. 128(1) does not apply where interest is payable by a right other than under s. 128 (s. 128(4)). There is no suggestion in this case that a claim for pre-judgment interest derives from other than the Act.

[22] Entitlement to an award of pre-judgment interest is not absolute, however, even where an order for the payment of money is made. Section 130(1) of the Act authorizes a court, in its discretion and where it considers it just to do so, to disallow pre-judgment interest, allow it at a rate higher or lower than that provided in s. 128, or allow it for a period other than that provided in s. 128. The authority provided by s. 130 applies to causes of action arising after October 23, 1989 (S.O. 1989, c. 67, s. 8).

[23] Modern theories of pre-judgment interest relate it to compensatory, rather than punitive, goals. Awards of pre- judgment interest are designed to recognize the impact of inflation and to provide relief to a successful litigant against the declining value of money between the date of entitlement to damages and the time when damages are awarded. (See M.A. Waldron, The Law of Interest in Canada (Scarborough: Carswell, 1992) at p. 127.) In Pagliarella v. DiBiase Brothers Inc. (1989), 68 O.R. (2d) 597, 58 D.L.R. (4th) 691 (C.A.), leave to appeal to S.C.C. refused S.C.C. File No. 21500, S.C.C. Bulletin 1989, p. 2316, Finlayson J.A. commented (at p. 607 O.R.):

It must be remembered that interest is merely the value of money and when we are speaking of prejudgment interest we are talking about compensation [page235] for the victim with respect to the delay necessitated by the time interval from the date on which the right to a money award arises and the date on which it is awarded. It is, in the words of Chouinard J. in Travelers Ins. Co. of Canada v. Corriveau, [1982] 2 S.C.R. 866 at p. 875, [1983] I.L.R. [para.] 1-1601 sub nom. La Compagnie d'Assurance Travelers du Canada v. Corriveau (S.C.C.), merely "damages due to delay".

[24] In Graham v. Rourke (1990), 75 O.R. (2d) 622, 74 D.L.R. (4th) 1 (C.A.), in considering a predecessor version of s. 130 of the Act, this court stated (at p. 629 O.R., per Doherty J.A.):

Section 140 of the Act is worded widely enough to allow a trial judge to consider the conduct of the proceedings, including the conduct of the parties or those acting through the parties, when determining the appropriate rate of pre- judgment interest. Pre-judgment interest cannot, however, become a means of punishing or rewarding a party to the proceedings. Rather, pre-judgment interest must be viewed as part of the compensatory package provided to the person wronged: Irvington Holdings Ltd. v. Black (1987), 58 O.R. (2d) 449, 14 C.P.C. (2d) 229, 35 D.L.R. (4th) 641, 20 O.A.C. 390 (C.A.).

[25] Under the current Act, Ontario courts are required to take specific factors into account in exercising their discretion under s. 130(1), including "the circumstances of the case" (s. 130(2)(b)), "the conduct of any party that tend[s] to shorten or to lengthen unnecessarily the duration of the proceeding" (s. 130(2)(f)), and "any other relevant consideration" (s. 130(2)(g)). Accordingly, the presumptive entitlement to pre-judgment interest of a successful litigant who obtains an order for the payment of money may be displaced, varied or reduced, in the discretion of the court, based on conduct which adversely affected the progress of the litigation. In that respect, the courts may utilize their discretionary power to award, deny or vary a pre-judgment interest award as a mechanism to control the progress of litigation and, in proper cases, to sanction litigants. As observed by M.A. Waldron in The Law of Interest in Canada, "many provincial statutes explicitly recognize pre-judgment interest as dependent in part upon the speedy conduct of proceedings" (at p. 129). In Ontario, that direction is contained in s. 130(2)(f) and (g) of the Act.

[26] S.M. Waddams, in The Law of Damages, looseleaf ed., (Toronto: Canada Law Book Inc., 2000) indicates (at para. 7.930):

Where interest is in the court's discretion, it can be withheld to mark the court's disapproval of excessive delay by the plaintiff in prosecuting the claim or increased in case of excessive delay by the defendant. In Jefford v. Gee [[1970] 2 Q.B. 130 (C.A.)], Lord Denning said: "In exceptional cases, such as when one party or the other has been guilty of gross delay, the court may depart from the [usual rules] by diminishing or increasing the award of interest, or altering the periods for which it is allowed". [Footnotes omitted].

In Baud Corp., N.V. v. Brook (No. 2), the Supreme Court of Canada, in exercising its discretion under s. 50 of the Supreme Court Act (dealing with [page236] interest after the date of the trial judgment) reduced the interest that would normally have been allowable, because of the plaintiff's delay in prosecuting the litigation. A similar discretion is exercisable in most jurisdictions in respect of prejudgment interest. [Footnotes omitted].

[27] This court has withheld or reduced interest in various circumstances of delay, including where: a) a lengthy delay in the prosecution of an action was attributable to the conduct of a litigant (Al-Qahtani-Shaw-Leonard v. Crossworld Freight Ltd. (1988), 66 O.R. (2d) 256, 54 D.L.R. (4th) 192 (C.A.) and Sawadski v. Heil (1991), 86 D.L.R. (4th) 364, 2 C.P.C. (3d) 101 (Ont. C.A.)), b) a delay in production of documents occurred (Armak Chemicals Ltd. v. Canadian National Railway Co. (1991), 84 D.L.R. (4th) 326, 2 O.R. (3d) 1 (C.A.), leave to appeal to S.C.C. refused 86 D.L.R. (4th) vii, 137 N.R. 238n), and c) a delay occurred at the plaintiff's request (Hill v. Church of Scientology of Toronto (1994), 18 O.R. (3d) 385, 114 D.L.R. (4th) 1, (C.A.), affd [1995] 2 S.C.R. 1130, 126 D.L.R. (4th) 129).

[28] In this case, Fournier and Liberty Mutual argue that pre-judgment interest under Ontario law is akin to a head of damage which is available to respond to a delay in the delivery of awarded compensation. Consequently, they submit, pre- judgment interest is governed by the substantive law of Ontario which, by operation of the lex loci delicti rule mandated by Tolofson, has no application to the Action. I agree.

[29] The motions judge concluded that (at paras. 63 and 64):

The awarding of pre-judgment interest to various heads of damages is of more recent origin under the Ontario Rules of Civil Procedure. The hallmark of the procedure, as with costs, is the discretion granted to the Court. [Citation omitted]

For these reasons, I am satisfied that in this case the issue of costs and pre-judgment interest should fall to be determined by the law of Ontario as a matter of procedure. . . . [sic]

(Emphasis added)

With respect, I disagree.

[30] The entitlement to claim pre-judgment interest is established in Ontario not by the Rules of Civil Procedure, as suggested by the motions judge, but by the Act. Section 128(1) of the statute confers a substantive right to claim pre- judgment interest on a person who is entitled to an order for the payment of money. That right may be displaced, varied or reduced, in the discretion of the court, where the conduct of the claimant has adversely affected the speedy progress of the litigation. The discretion of the court concerning pre- judgment interest relates to the denial or reduction, as distinct from the granting, of a right. Accordingly, [page237] in my view, the character of the court's discretion in connection with pre-judgment interest is qualitatively different from the nature of the wide discretion afforded the court under s. 131(1) of the Act to grant, or deny, costs. The legislature, through the Act, has established a specific policy with respect to pre-judgment interest. That policy does not include an unfettered discretion for Ontario courts on whether to award pre-judgment interest.

[31] I conclude, therefore, that in Ontario pre-judgment interest is a matter of substantive law. On my reading of Tolofson, there is no room for departure from the rule which dictates application of the lex loci delicti (the law of New York State) to claims in the Action for pre-judgment interest.

(3) The argument for an exception to the lex loci delicti rule

[32] Ms. Somers argues on her cross-appeal that the motions judge erred in determining that the substantive law of New York State applies to the Action and related proceedings arising out of the 1990 accident. In essence, she submits that the application to the Action of the substantive law of New York State would create serious injustice, thus bringing this case within the narrow category of cases identified in Tolofson as supporting, on an exceptional basis, a departure from the lex loci delicti rule. In my view, that argument cannot succeed, for the following reasons.

[33] The decision in Tolofson dictates that the substantive law of New York State applies in the circumstances of this case unless the basis for an exception to the lex loci delicti rule is demonstrated. A majority of the Supreme Court of Canada confirmed in Tolofson that the courts retain a discretion to apply the local law (the lex fori) in international litigation where necessary to avoid injustice. That discretion is limited, however, and is to be exercised only in compelling and exceptional circumstances (Tolofson, at pp. 307-08, per La Forest J.). This case involves international litigation.

[34] In the recent decision of this court in Wong v. Lee, [2002] O.J. No. 885 (C.A.), Feldman J.A stated, writing for the majority (at para. 16):

It is not mere differences in public policy that can ground the exception to the general rule of lex loci delicti; the exception is only available in circumstances where the application of the general rule would give rise to an injustice. Every difference in the laws of the two forums is going to benefit one side or the other and be perceived as unjust to the one not benefiting. Because La Forest J. [in Tolofson] anticipated the exercise of discretion being necessary only in a very unusual case, an injustice that would require a court to exercise the discretion must be something beyond ordinary differences between the laws of the forums. La Forest J. did not articulate the criteria he [page238] envisaged for any particular circumstance to qualify as an injustice. However, as an example, the type of injustice the court sought to remedy in Hanlan [Hanlan v. Sernesky (1998), 38 O.R. (3d) 479 (C.A.)] was the unavailability to an Ontario plaintiff of a complete category of claim or cause of action according to the lex fori -- the claims of family members for damages pursuant to s. 61 of the Family Law Act.

(Emphasis added)

[35] Tolofson was a domestic litigation case arising from a motor vehicle accident in Saskatchewan. If the lex loci delicti applied, a limitation period applicable under Saskatchewan law would bar any claims by the infant plaintiff and by gratuitous passengers, whereas the applicable limitation period under the law of the forum (British Columbia) would not have that effect. The Supreme Court of Canada unanimously concluded that the law of Saskatchewan should apply, notwithstanding the expiry of the limitation period provided under Saskatchewan's law.

[36] In contrast, Wong v. Lee was an international action arising from an automobile accident in New York State involving Ontario residents. In that case, if the law of New York State applied, the defendant insurance company would be exposed to liability for pecuniary damages without a deductible, whereas under Ontario law that would not be the case. Based on Tolofson, a majority of this court concluded that such a consequence was not an injustice that allowed for recognition of an exception to the lex loci delicti rule. Rather, the defendant's increased liability exposure was the necessary effect of applying the lex loci delicti rule:

[T]his articulation of the injustice appears to be merely another way of applying the public policy of Ontario as defined in its law, and effectively treating the fact that all of the parties are from the forum as in itself creating an injustice.

(at para. 17, per Feldman J.A.).

[37] The lex loci delicti rule applies in international litigation notwithstanding a high degree of connection between the litigants and the place of the forum. In Wong v. Lee, all of the parties to the accident were resident in the forum, and had no connection with the foreign jurisdiction where the wrong occurred (except that the accident occurred in the foreign jurisdiction). Even in those circumstances, it was held that, on proper application of the conflict of laws rule established in Tolofson, the lex loci delicti rule governed.

[38] The question here is whether an injustice would be occasioned by application to the Action of the substantive law of New York State, sufficient to warrant an exception to the lex loci delicti rule. In my view, the answer is no.

[39] In this case: a) the 1990 accident occurred in the State of New York, b) the alleged tortfeasor resides in that jurisdiction, [page239] and c) Fournier's policy of insurance was issued in that jurisdiction. Lola Somers relies on a series of Canadian cases, in which the law of the forum was applied in domestic and international motor vehicle accident litigation, to support her argument that the substantive law of Ontario should apply to the Action: see Lau v. Li (2001), 53 O.R. (3d) 727, 5 C.C.L.T. (3d) 241 (S.C.J.); Gotch v. Ramirez (2000), 48 O.R. (3d) 515, 49 C.P.C. (4th) 168 (S.C.J.); Gill v. Gill, [2000] B.C.J. No. 1106 (S.C.); Wong v. Wei, [1999] B.C.J. No. 768 (S.C.); and Hanlan v. Sernesky, supra. Those cases, many of which were specifically considered by Feldman J.A. in Wong v. Lee, were decided before the decision of this court in Wong v. Lee and, hence, are of little assistance.

[40] Ms. Somers argues that her present inability to claim no-fault benefits under New York State automobile accident benefits legislation and the bar, due to the expiry of a limitation period, to any claim by her for accident benefits from her own insurer of the type and to the extent provided for under New York State legislation, dictate recognition of an exception to the lex loci delicti rule. I disagree.

[41] The Liberty Mutual policy under which Ms. Somers was insured at the time of the 1990 accident provides for an entitlement to accident benefits to a limit of $25,000. Following the 1990 accident, it was open to Ms. Somers to claim no-fault accident benefits under either Ontario or New York State benefits schemes. It is conceded that she elected to claim, and received, benefits under Ontario's no-fault benefits scheme and, thereafter, commenced the Action in Ontario against the tortfeasor and her own insurer. In my view, she cannot complain now of the consequences of her own election.

[42] Moreover, there is no evidence on the record before this court that the accident benefits available to Ms. Somers under New York State law, when open to her to claim, were greater than her entitlement to benefits under Ontario law. Thus, no actual prejudice to Ms. Somers has been demonstrated as a consequence of her voluntary decision to sue in this jurisdiction and her voluntary election to apply for, and to accept, Ontario no-fault benefits. As Tolofson illustrates, denial of the opportunity to claim damages by reason of the expiration of a limitation period does not constitute injustice sufficient to support an exception to the lex loci delicti rule. Similarly, in the companion case of Lucas, operation of a limit on liability by reason of a no-fault tort compensation regime did not meet the requirement for demonstration of injustice sufficient to depart from the lex loci delicti rule. Accordingly, the fact that Ms. Somers may no longer pursue accident benefits in New York State, or additional or different [page240] benefits from her own insurer in Ontario, does not support an exception to that rule in this case.

[43] Ms. Somers also submits that, when the Action was commenced, prevailing Ontario law provided that the Action would be governed by the laws of Ontario (the lex fori). She asserts, therefore, that it would be unjust now to apply the lex loci delicti rule. That argument, in my view, is defeated by the Tolofson decision.

[44] Ms. Somers' submission rests, in significant part, on the conflict of laws rule enunciated in McLean v. Pettigrew, [1945] S.C.R. 62, [1945] 2 D.L.R. 65, which permitted application of the law of the forum in specified circumstances. That rule was expressly rejected by the Supreme Court of Canada in Tolofson, in preference to the lex loci delicti rule. To state the obvious, the actions in Tolofson and in the companion case of Lucas were commenced years prior to the release of the Supreme Court of Canada's decisions in those cases. Nevertheless, the conflict of laws rule established by Tolofson was held to apply to the rights of the litigants in both actions. This case rests on no different footing.

[45] In addition, prior to the decision in Tolofson, the lex loci delicti rule was applied in proper cases notwithstanding McLean v. Pettigrew. (See, for example, Grimes v. Cloutier (1989), 69 O.R. (2d) 641, 61 D.L.R. (4th) 505 (C.A.); and Prefontaine Estate v. Frizzle (1990), 71 O.R. (2d) 385, 65 D.L.R. (4th) 275 (C.A.).) Contrary to the argument advanced on behalf of Ms. Somers, therefore, it cannot be assumed that the substantive law of Ontario would have applied to the Action but for the decision in Tolofson.

[46] Finally, Ms. Somers contends that application of the lex loci delicti rule to the Action would create serious procedural problems concerning the assessment of her damages and the resolution of the pending litigation. She emphasizes that multiple actions relating to the 1990 accident are outstanding, and that her injuries overlap the two accidents in which she was involved. In my view, that argument has no merit.

[47] Ontario courts are accustomed in contemporary litigation to the need to review and apply foreign law, where required, and to distinguish among varying legal regimes and rules in the assessment of liability and damages. Where necessary, the evidentiary basis to support such distinctions in international cases is provided through admissible opinion evidence. There is no reason to conclude here, in my view, that the smooth functioning of the trial of the Action and related litigation, and the ability of the court to properly assess issues of liability and damages at trial, will be compromised by the need to consider and apply the substantive law of New York State and the procedural law of [page241] Ontario. In addition, it is not unusual in personal injury actions in Ontario for the courts to be confronted with the difficulties which sometime arise from the fact that an injured plaintiff was involved in more than one accident. That feature of this case is not remarkable.

(4) The cap on non-pecuniary general damages recognized under Ontario law

[48] In a well-known trilogy of cases decided in the 1970s, the Supreme Court of Canada approved a uniform limit or "cap" on damages in personal injury cases for pain and suffering and loss of amenities in the amount of $100,000 (Cdn.) in 1978 dollars. (Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452; Thornton v. Prince George School District No. 57, [1978] 2 S.C.R. 267, 83 D.L.R. (3d) 480; and Arnold v. Teno, [1978] 2 S.C.R. 287, 83 D.L.R. (3d) 609 (collectively, the "Trilogy").) Adjusted for inflation, the amount of the cap is now almost three times the sum set by the Trilogy. As outlined in the Trilogy, the intent of the cap is to provide a rational justification and stable national basis in Canada for non-pecuniary loss compensation, accepting that non-pecuniary losses and expenses are incapable of direct replacement. (See Andrews v. Grand & Toy Alberta Ltd., at p. 261 S.C.R., per Dickson J.) Only in exceptional cases may the cap set by the Trilogy be varied.

[49] In the alternative to her submission that an exception to the lex loci delicti rule should apply to the Action, Ms. Somers argues on her cross-appeal that the motions judge erred in characterizing Ontario's cap on non-pecuniary general damages as procedural in nature. The cap is significant in this case because no upper limit governs an award of general damages under New York State substantive law. In contrast, if the cap recognized under Ontario law is procedural in nature, application to the Action of the procedural law of the forum, in accordance with Tolofson, will operate to impose the cap on any award of non-pecuniary damages to Ms. Somers.

[50] Ms. Somers submits that the cap is not a matter of procedural law at all. She contends that it is part of Ontario's substantive law. Consequently, she argues that under Tolofson it has no application to claims in the Action for damages for non-pecuniary losses and expenses.

[51] General conflict of laws principles regarding damages distinguish between an entitlement to damages and the quantification or measurement of damages. Remoteness and heads of damage are questions of substance governed by the lex loci delicti, [page242] whereas the quantification or measurement of damages is a question of procedure governed by the lex fori. (See J.-G. Castel and J. Walker in Canadian Conflict of Laws, looseleaf ed. (Toronto: Butterworths, 2002), at p. 6.7 and L. Collins in Dicey and Morris on The Conflict of Laws (London: Sweet & Maxwell, 2000) at p. 171.)

[52] In Wong v. Wei, supra, the issue to be decided was whether the law of California (the lex loci delicti) or the law of British Columbia (the lex fori) applied to determine the heads of damage and the quantification of damages claimed by the injured plaintiffs as a result of a motor vehicle accident in California. As in this case, the plaintiffs sought to recover damages in accordance with the law of a foreign jurisdiction (California) because the law of the forum (British Columbia) included the cap on non-pecuniary damages established by the Trilogy. No such limit applied in California. After reviewing the applicable case law, Kirkpatrick J. of the British Columbia Supreme Court concluded (at para. 40):

[I]n my view, it is clear that the weight of current judicial and academic authorities supports the proposition that the quantification or assessment of damages is a matter of procedural law to be decided in accordance with the law of the forum. Thus, even if the law of California applied to the substantive law on the heads of damage, the quantification would nevertheless be determined according to the law of British Columbia because the quantification of damages is a procedural matter.

(See also Metaxas v. Galaxias (The) (No. 5), [1990] 2 F.C. 400, 35 F.T.R. 40 (T.D.).)

[53] In Australia, it has been held that statutory provisions which limit the amount of damages which may be recovered in respect of non-economic loss are procedural in nature. In Stevens v. Head (1993), 67 A.L.J.R. 343, while a minority of the High Court of Australia concluded that a rule which imposes a ceiling on damages is substantive law, a majority of the court stated (at para. 12, per Brennan, Dawson, Toohey and McHugh JJ.):

When a plaintiff is entitled to enforce a civil liability in tort in respect of a tort committed outside the forum territory, the quantification of damages to be awarded in respect of the tort is a matter for the law of the forum. The quantification of damages is a matter distinct from the kind of civil liability in respect of which damages are to be quantified.

The majority concluded that the statutory limit at issue did not pertain to the heads of liability in respect of which damages might be awarded, but simply related to the quantification of damages.

[54] The issue in Stevens v. Head concerned provisions of the Motor Accidents Act 1988 of New South Wales, which imposed a limitation on awards of damages for non-economic losses both directly, by limiting the maximum amount which might be [page243] awarded, and indirectly, by reference to two statutory formulae. In respect of those provisions, the majority of the court concluded (at paras. 13-15):

[Section] 79 is plainly a provision which affects the measure of damages but does not touch the heads of liability in respect of which damages might be awarded. It is simply a law relating to the quantification of damages and that . . . is a matter governed solely by the lex fori.

Sub-section (1) of s. 79, although expressed as a prohibition on an award of damages for non-economic loss unless the specified condition is satisfied . . . governs the quantification of damages for non-economic loss by directing the court not to award any amount, even if the condition specified in subs-s. (1) is satisfied, unless the amount . . . exceeds $15,000 or the relevant amount indexed under s. 80. Sub-section (1) is not properly to be regarded as a provision which denies the availability of damages under the heading of non-economic loss. Similarly, sub-s. (4) of s. 79, though expressed as a prohibition on an award of damages for $15,000 or less . . . assumes a liability which is susceptible of assessment . . . In other words, sub.-ss. (1) and (4) assume that a common law liability exists but direct the court not to exercise its jurisdiction to award damages when it finds that the circumstances prescribed by those respective provisions exist. . . .

It follows that s. 79 of the Motor Accidents Act is not to be construed as containing substantive provisions for the purposes of the conflict of law rules governing the assessment of damages for extraterritorial but intranational torts. Adopting the distinction between heads of damage and the quantification of damages in respect of heads of damage, s. 79 is a law with respect to quantification. . . .

(Emphasis added)

(See also, Goryl v. Greyhound Australian Pty. Limited (1994), 68 A.L.J.R. 432 (H.C.) and L. Collins in Dicey and Morris on The Conflict of Laws, at pp. 171-72).

[55] English courts have also recognized a distinction between laws which deny a remedy in respect of a particular head of damage in negligence (a substantive law) and those which affect the quantification of damages concerning a particular head of damage (a procedural law). (See Chaplin v. Boys, [1969] 2 All E.R. 1085, [1971] A.C. 356 (H.L.); Coupland v. Arabian Gulf Petroleum Co., [1983] 2 All E.R. 434 (Q.B.); and Caltex Singapore Pte. Ltd. v. B.P. Shipping Ltd. , [1996] 1 Lloyd's Rep. 286 (H.C.J.), overruled on other grounds in Herceg Novi v. Ming Galaxy, [1998] 4 All E.R. 238 (C.A.).)

[56] The cap established by the Trilogy does not bar a claim for damages for pain and suffering and loss of amenities consequent upon personal injuries sustained in a motor vehicle accident. In the language of the majority of the court in Stevens v. Head, at paras. 13-15, the cap assumes that liability exists "which is susceptible of assessment", but directs the courts to impose an upper limit on the quantum of damages which, as a result of such [page244] assessment, may be awarded to a successful plaintiff in respect of non-pecuniary losses.

[57] In essence, therefore, the cap is a judicially imposed limit or restriction on liability for non-pecuniary damages. It is a device developed in Canada to avoid excessive and unpredictable damages awards concerning non-pecuniary losses and the corresponding burden on society which follows from such awards. In my view, the policy considerations which support the goal of avoiding such awards, articulated in the Trilogy, favour characterization of the cap as a matter of procedural law. In addressing those policy considerations, it is important to distinguish between the availability of heads of damage and the quantification of an award of damages in respect of heads of damage.

[58] The amount of the cap can be varied in exceptional circumstances, according to the facts and equities of the case. In contrast, the heads of damage are the claimed non-pecuniary losses. In this case, they are pain and suffering, shock and lessened enjoyment of life and normal activities, as pleaded by Ms. Somers. I conclude that the cap functions as a limit or restraint on liability to be taken into account in fixing the quantum of damages otherwise to be awarded in respect of Ms. Somers' pleaded non-pecuniary heads of damage, if proven. The cap thus pertains to the procedural, rather than the substantive, law of Ontario. It applies to the Action as part of the lex fori.

IV. Disposition

[59] Accordingly, for the reasons set out above, I would allow the appeal on the issue of the choice of law applicable to pre-judgment interest and set aside para. 2(b) of the order of the motions judge. In all other respects, I would dismiss the appeal and cross-appeal and confirm the order of the motions judge. As success on this appeal has been divided, I would award no costs of the appeal. Fournier and Liberty Mutual are entitled to their costs of the cross-appeal on a partial indemnity basis. This court was informed upon completion of oral argument in this hearing that the parties had agreed upon the costs of the appeal and cross-appeal, but the agreed-upon amount for costs was not disclosed. Accordingly, in order to comply with the rule that now requires this court to fix costs, Fournier and Liberty Mutual are to file their written submissions concerning the costs of the cross-appeal, reflecting the costs thereof as agreed upon among the parties, within ten days from the release of this court's decision.

Appeal allowed in part; cross-appeal dismissed. [page245]

Notes

Note 1: That fact distinguishes this case from others in which this court has considered the question of whether the Ontario courts should assume jurisdiction over out-of- province defendants in claims for damages sustained in Ontario as a result of a tort committed elsewhere.