COURT FILE NO.: 16-68322/19995/16
DATE: 2018/04/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARTINE LaPIERRE, AMY COULOMBE, ANTHONY MICHAEL COULOMBE and PHILLIPE COULOMBE by their Litigation Guardian Martine LaPierre
Plaintiffs/Respondents
– and –
CLAIRE LECUYER
Defendant/Moving Party
– and –
JENNIFER COULOMBE, MICHELINE MAILLE and MICHEL JACOB
Plaintiffs/Respondents
– and –
CLAIRE LECUYER
Defendant/Moving Party
Joseph and Christopher Obagi, for the Plaintiffs/Respondents
Pasquale Santini, Samantha A. Iturregui, for the Defendant/Moving Party
Patrick J. Poupore, for the Plaintiffs/Respondents
Pasquale Santini, Samantha A. Iturregui, for the Defendant/Moving Party
HEARD: February 7, 2018
REASONS FOR decison
R.L. Maranger J.
Introduction:
[1] This was a motion brought by the defendant for a summary judgment. The moving party requests that two separate actions brought in the province of Ontario that arise as a result of a motor vehicle accident that occurred in Ontario on September 18, 2014 be dismissed by reason that the plaintiffs are prohibited from recovering damages under the law of the province of Québec, which they argue is the applicable substantive law.
Summary judgment motions:
[2] Rule 20.01 (3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, stipulates that "[a] defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim." The court is mandated to grant summary judgment if it is satisfied that there is no genuine issue requiring a trial respecting a claim or defence.
[3] Rule 20.04 (2.1) provides that:
In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[4] The Supreme Court of Canada in the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, set out the governing principles to be applied by trial judges respecting the determination of rule 20 summary judgment motions. At paras. 49-51 and 66, Justice Karakatsanis indicated the following:
[49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[50] These principles are interconnected and all speak to whether summary judgment will provide fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost-effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
[51] Often, concerns about credibility or clarification of the evidence can be addressed by calling oral evidence on the motion itself. However, there may be cases where, given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination.
[66] On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. [Emphasis in original.]
Proper case for a summary judgment motion or preliminary ruling on a point of law:
[5] At the outset of the hearing counsel representing the plaintiffs suggested that this motion was more in the nature of a preliminary ruling on a point of law than a summary judgment motion. Whether it is called a summary judgment motion or a motion for a preliminary ruling on a point of law makes little practical difference. The fundamental issue raised by the motion will result in either the dismissal of the two actions or their continuation; this determination does not require a trial. The decision depends upon a legal analysis where the applicable facts are undisputed; they are as follows:
- On September 18, 2014 Sylvain Coulombe and Claire Lecuyer were involved in a motor vehicle accident. The accident happened in the province of Ontario, more specifically in North Glengarry Township.
- Mr. Coulombe died of injuries he sustained in the accident.
- Mr. Coulombe and Ms. Lecuyer were both residents of the province of Québec at the time of the accident.
- Two separate actions were brought as a result of the motor vehicle accident: one action involves four plaintiffs, being Mr. Coulombe’s wife and three children, who are all resident in the province of Québec, and a second action involves three plaintiffs, being Mr. Coulombe’s mother, the spouse of his mother, and his sister, who are all resident in the province of Ontario.
- The plaintiffs from Québec have received compensation from the SAAQ pursuant to its no-fault system of automobile insurance.
- The plaintiffs from Ontario are not entitled to any compensation from Québec.
- All of the plaintiffs bring their action as derivative claimants, pursuant to section 61 (1) of the Family Law Act, R.S.O. 1990, c. F.3 ("FLA").
The position of the defendant/moving party:
[6] The defendant advances the position that despite the fact that the motor vehicle accident occurred in the province of Ontario, it is the law of the province of Québec that should apply. That law precludes bringing an action resulting from a motor vehicle accident, as Québec has a no-fault motor vehicle accident regime. Since there can be no action, nor can there be any derivative claims including those involving residents of the province of Ontario.
[7] The thrust of the moving party’s argument is as follows:
a) The substantive law is a set of laws that governs how individuals in a society behave; it may be codified or exist through precedent in common law. The defendant proposes that the substantive law of the province of Québec applies to these parties and to this action.
b) While the general rule of tort law in Canada is that the law to be applied is that of the place where the tort was committed (lex loci delicti), in this case, because all of the persons involved were residents of Québec, a statutory or codified exception to the rule exists despite the car accident having occurred in Ontario.
c) The defendant submits that article 3126 of the Civil Code of Québec applies to the facts of this case. Article 3126 provides:
The obligation to make reparation for injury caused to another is governed by the law of the State where the act or omission which occasioned the injury occurred. However, if the injury appeared in another State, the law of the latter State is applicable if the author should have foreseen that the injury would manifest itself there.
In any case where the author and the victim have their domiciles or residences in the same State, the law of that State applies.
The defendant adds that furthermore, section 83.57 of the Québec Automobile Insurance Act, C.Q.L.R. c. A-25, precludes the plaintiff from recovering damages from the defendant. Section 83.57 provides: "Compensation under this title stands in lieu of all rights and remedies by reason of bodily injury and no action in that respect shall be admitted before any court of justice."
d) The defendant further submitted that the leading Supreme Court of Canada decision of Tolofson v. Jensen, 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022, allows for this interpretation. Because Québec has a Civil Code and is not a common law province, they can and have created a statutory exception to the lex loci delicti rule. The following excerpts from Tolofson were referenced as supporting this proposition:
Para. 45: "There may be room for exceptions but they would need to be very carefully defined. It seems to me self-evident, for example, that State A has no business in defining the legal rights and liabilities of citizens of State B in respect of acts in their own country, or for that matter the actions in State B of citizens of State C, and it would lead to unfair and unjust results if it did. The same considerations apply as between the Canadian provinces. What is really debatable is whether State A, or for that matter Province A, should be able to do so in respect of transactions in other states or provinces between its own citizens or residents."
Para. 62 in part: "…But when all parties are from another state, the likelihood is that the lawsuit will take place in their home jurisdiction. There is some merit to allowing judges in this situation to apply their own law. This factor is, however, of less concern in matters arising within Canada. The laws of our common law provinces, at least, are not that different from each other that their application would give our judges and lawyers significant difficulty."
Para. 66: "On the whole, I think there is little to gain and much to lose in creating an exception to the lex loci delicti in relation to domestic litigation. This is not to say that an exception to the lex loci delicti such as contained in the Hague Convention is indefensible on the international plane, particularly since it is enshrined in a convention that ensures reciprocity. A similar reciprocal scheme might well be arranged between the provinces. As I noted, however, a rule along the lines of the Hague Convention is not without its problems and does not appear to afford this country most of the advantages that Europeans may gain from it. I note that Quebec has adopted a rule along the same lines in its new Civil Code, but the appropriateness of a judicially created rule seems questionable, especially given the additional matters that require consideration in a federation. To these federal issues I now turn."
e) The Québec Court of Appeal decision of Giesbrecht c. Succession de Nadeau, 2017 QCCA 386, at para. 48, was cited as interpreting article 3126 in this manner. The case concerned a plane crash in Ontario where the victims were residents of British Columbia and Québec. A spouse of a Québec victim sued the pilot’s estate in Québec because he was a resident of Québec. In that case the Court of Appeal went on to say that had some of the victims not been from British Columbia then article 3126 of the code would apply to make Québec law apply despite the accident occurring in Ontario.
f) It was also submitted that the principle of comity has application to the circumstances of this case in the sense that there should be a mutual respect for a province’s right to govern its own residents, particularly in a Federation where common law provinces and a civil law province co-exist.
g) Furthermore, the statutory no-fault insurance scheme created in the province of Québec, while precluding any of the plaintiffs from suing for damages, has already compensated those plaintiffs who are residents of Québec under their no-fault regime. Martine Lapierre, the spouse of the deceased, received $248,400 and the 3 children of the deceased received the following amounts: $49,613, $51,265 and $56,229. Consequently, the defendant submitted that to award further compensation arising from a lawsuit in the province of Ontario for the same tort would constitute an injustice, in that the plaintiffs would unjustly be the beneficiaries of a double recovery.
h) Finally, the defendant submitted that under section 61 (1) of the FLA, claimants are limited to Ontario residents. It was submitted that a provincial statute in the nature of that specific Act should be read down to limit its jurisdiction to the persons, property, undertakings and events in Ontario. The deceased and the defendant were residents of Québec and thus derivative claimants, and as a consequence should not have access to section 61(1) of the FLA. Citing as authority for this proposition are excerpts from the cases of Arnold v. Hicks, (1990), 1990 CanLII 6879 (ON SC), 75 OR (2d) 191 (H.C.), and Detroit (City) v. Sandwich West (Township), 1970 CanLII 11 (SCC), [1970] S.C.R. 627.
The position of the plaintiffs/responding parties:
[8] Counsel for the plaintiffs from Ontario and from Québec each filed factums. Their position is that there is nothing that precludes any of the plaintiffs from continuing the action in Ontario; there is no statutory exception. The correct application of the lex loci delicti rule and the proper interpretation of the Tolofson case require the dismissal of this motion.
[9] The thrust of the plaintiffs/responding parties’ arguments can be summarized as follows:
a) The primary argument of both plaintiffs is that the rule of lex loci delicti applies to the facts of this case. The location of the tort is what matters; it triggers the applicable substantive law, not the residents of the parties. That is the law in Canada and it applies to all provinces. That is the appropriate and correct interpretation of the Supreme Court of Canada decision in Tolofson. There is no statutory or codified exception.
b) The only possible and very rare exception is where an injustice occurs. The Ontario Court of Appeal in the case of Wong v. Lee (2002), 58 O.R. (3d) 393 (C.A.), at para. 16, stated:
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. 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.
c) In fact, a later decision the Court of Appeal said that there were no exceptions to the rule. Soriano (Litigation Guardian of) v. Palacios (2005), 2005 CanLII 18840 (ON CA), 255 D.L.R. (4th) 359 (Ont. C.A.), at para. 14, stated:
Again I think there is a definitive answer. In the leading case of Tolofson v. Jensen, 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022, after detailed analysis, La Forest J. for the majority decided not only that the substantial law to be applied in tort cases is generally the law of the place where the activity occurred, but that in domestic litigation, where the activity occurred in another province, there can be no exceptions to the application of the lex loci delicti. This court has clearly reiterated this principle in the number of cases.
d) The plaintiffs suggested that in the alternative, even if the court is to consider the Civil Code of Québec, then the proper interpretation of the Québec Court of Appeal decision of Giesbrecht supports the proposition that the correct law to apply to this case would be that of Ontario. The interpretation they suggested was the following:
- In Giesbrecht the claim involved a plane crash that occurred in Ontario. All of the occupants of the plane were from Québec.
- The basic fact situation in that case was that the plaintiffs were all relatives of the late Y. Fournier who died in the crash. The defendant was a pilot from the province of Québec. The family status of the various plaintiffs and their residency was as follows: the spouse and children were Québec residents; the father, mother and siblings were also Québec residents; and the deceased’s in-laws were residents of British Columbia.
- The analysis in Giesbrecht can be divided into two parts: (1) the interpretation and application of article 3126 of the Civil Code of Québec to the above fact situation, and (2) the application of article 3082 of the Civil Code of Québec to the above fact situation.
- A reading of paras. 30, 31 and 37 of the decision would indicate that the Court of Appeal of Québec ruled that because there were plaintiffs/parties who were not residents of Québec, the lex loci delicti rule would have applied.
- The court then went on to interpret article 3082, which provides an exception to the rule stated in article 3126 and gives the court discretion to set aside those rules. It provides in part: "Exceptionally, the law designated by this Book is not applicable, if in the light of all attendant circumstances, it is clear that the situation is only remotely connected with that law and is much more closely connected with the law of another State."
- At paragraph 35 of the decision, relying on Tolofson, the Québec Court of Appeal stated that, if the tort was committed in Canada, the discretion provided in article 3082 should only be used in extremely rare and extraordinary circumstances. The case they were dealing with was such a case, because the plaintiffs who were the in-laws of the deceased were not allowed to recover any compensation in the province of Ontario, but would be entitled to compensation in the provinces of Québec and British Columbia. The court stated that it would be incongruous to rule that Ontario law applied because some of the plaintiffs were non-Québec residents when those very plaintiffs have no cause of action in Ontario, therefore utilizing the article 3082 exception.
- In short, they say the case stands for the proposition that the exception stipulated in article 3082 is what triggered the application of Québec law and not article 3126.
e) With respect to the argument concerning the possible injustice occasioned by a double recovery, the plaintiffs submitted that any benefits that have already been paid out to a given plaintiff could be the subject matter of a set-off in the action being litigated in the province of Ontario. There is no guarantee of double recovery.
In any event, if Québec law was to apply to the facts of this case, the consequence would be a more egregious injustice against some of the plaintiffs. The effect would be that the plaintiffs who are residents of Ontario would be denied the right to claim anything at all, as they would be disentitled by residency from any benefits whatsoever under the province of Québec’s no-fault automobile insurance regime.
f) Finally, as to the argument concerning the FLA only applying to residents of the province of Ontario, the counterargument was that an event occurring in a province was sufficient to engage a provincial statute to govern the rights and obligations of an individual or individuals involved therein. The proper application of the Supreme Court of Canada decision of Tolofson allows for no other possible interpretation.
Analysis and decision:
[10] The facta filed by counsel representing the two groups of plaintiffs/respondents when read together were almost 60 pages in length. They contained a comprehensive and detailed analysis on the issues of: the proper interpretation of the Giesbrecht case, the principle of comity, public policy considerations, the issue of choice of law, and that the Québec automobile insurance act overrides article 3126.
[11] My reading and interpretation of the Giesbrecht case mirrors that of counsel for the plaintiff/respondents. Furthermore, I accept much of the argument on the various issues put forward in their facta. That being said, in my estimation the determination of the defendant’s motion does not require a detailed review or analysis of those arguments. This is because my interpretation, analysis and understanding of the Tolofson case, together with the leading Ontario Court of Appeal cases on the subject, have led me to the inescapable conclusion that the motion should be dismissed, and that the lawsuits instituted by all of the plaintiffs, including those who are Québec residents, should be allowed to continue.
[12] It seems to me that the success or failure of this motion depends upon whether one can conclude that the current state of Canadian law is that a province can create a legislative exception to the lex loci delicti rule. I find that it cannot and that such an interpretation runs contrary to the fundamental reasoning and principles to be taken from the Tolofson decision and to our Ontario Court of Appeal’s interpretation of that decision.
[13] I would summarize the reasoning and essential principles as follows:
a) In domestic litigation in Canada, the substantive law to be applied in tort cases is the law of the place where the activity occurred: lex loci delicti.
b) The reasoning for this general rule is to allow for certainty and predictability. People should expect their activities to be governed by the law of the place where they happen to be at any given point in time, together with the rights and obligations that arise under that law.
c) The application of the rule will not only promote certainty, but also avoid delay and prolonged litigation and promote settlement.
d) In the end, the analysis in its entirety offered by Justice La Forest in Tolofson, concerning the province of Québec and their being the only Civil Code province in a Federation of common-law provinces, does not by inference or otherwise create the prospect of a provincial legislative exception to the fundamental rule. In Canada, if you are involved in a tort in a given province, it is the law of that province that applies and it does not matter that you or the other person involved in that tort comes from another province.
e) The only exception possible to the lex loci delicti rule is the very rare situation where an injustice would arise. See Hanlan v. Sernesky (1997), 1997 CanLII 12290 (ON SC), 35 O.R. (3d) 603 (Gen. Div.), at para. 30; Wong v. Lee, at para. 12. (Query whether there is any exception at all to lex loci delicti given the strong and unequivocal language used by Justice Goudge in Soriano (Litigation Guardian of) v. Palacios, at para. 14: "in domestic litigation, where the activity occurred in other province, there can be no exceptions to the application of the lex loci delicti.")
[14] With respect to the issue of the non-application of section 61 (1) of the FLA to the Québec plaintiffs, I disagree with the analysis provided by the defendant. The law of the province applies, meaning that if you get into a car accident in the province of Ontario you are entitled to rely upon and also be subject to all of the laws that govern that province. This would include their eligibility to sue under section 61 (1) of the FLA.
[15] With respect to the issue of an "injustice" occasioned by the possible double recovery by the plaintiffs who come from the province of Québec, I would not categorize this as an injustice. In all likelihood, a set-off of those benefits already received from Québec against any recovery obtained in this province will be an issue for consideration at trial.
[16] Ironically, the only injustice that could have occurred here would have arisen had the defendant’s motion succeeded, this because all of the plaintiffs from the province of Ontario would have been denied any possible recovery, as they are not permitted to seek benefits in the province of Québec.
[17] Therefore, for all of the above reasons, the motion is dismissed.
[18] With respect to the issue of costs, if the parties cannot resolve the issue of costs, brief written submissions of not more than two pages, with attachments including a detailed Bill of Costs, are to be provided within 15 days from each of the plaintiffs. The defendant shall have 7 days thereafter to respond with a right of reply within a further 5 days thereafter.
The Honourable Robert. L. Maranger
Released: April 10, 2018
COURT FILE NO.: 16-68322/19995/16
DATE: 2018/04/10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BETWEEN:
MARTINE LaPIERRE, AMY COULOMBE, ANTHONY MICHAEL COULOME and PHILLIPE COULOMBE by their Litigation Guardian Martine LaPierre
Plaintiffs/Respondents
– and –
CLAIRE LECUYER
Defendant/Moving Party
– and –
JENNIFER COULOMBE, MICHELINE MAILLE and MICHEL JACOB
Plaintiff/Respondents
– and –
CLAIRE LECUYER
Defendant/Moving Party
MOTION FOR SUMMARY JUDGMENT
Maranger J.
Released: April 10, 2018