If a Canadian Is Injured in a Car Accident in the United States, Which Law Applies to Claims Commenced in Canada?
Ontario courts will apply the laws of the State where the accident occurred in determining the available remedies to the plaintiffs (lex loci), but the laws of Ontario would govern the quantification of such remedies (lex fori). A narrow exception to this rule may apply if it would be unjust for the plaintiffs to not have a remedy against the defendant according to the laws of the state where the accident occurred. If this is the case, the lex loci rule would not apply, and an Ontario court would apply the laws of Ontario to determine the available remedies to the plaintiffs as well as the quantification of same.
In Canada, case law generally establishes that substantive issues are governed by the law where the tort occurred or the lex loci, while procedural issues are governed by the law of the forum or the lex fori. This has been expounded in the case of Tolofson v. Jensen. The Supreme Court of Canada held that, generally, the substantive law of the State where the accident/tort occurred will be applied to the case even when the case is litigated in Ontario. However, the procedural rules of Ontario, where the case is proceeding, will govern all procedural steps.
According to the decision in Tolofson, remedies that are available to the plaintiff are not considered to be procedural rules; rather, they affect the existence, extent and enforceability of the rights or duties of the parties, and should thus be characterized as substantive. On the other hand, issues relating to the quantification of the remedies has been held to be procedural and, as such, are governed by the law of the forum in which the action is brought. With that being said, there is a narrow exception to the Tolofson rule. Namely, where the operation of the lex loci rule would result in an injustice, the courts have held that the appropriate law to apply is that which is most connected to the parties, not the lex loci delicti.
In Hanlan et al. v. Sernesky, one of the plaintiffs was injured as a result of a motorcycle accident in Minnesota. That plaintiff sued the driver of the motorcycle in which he was a passenger for damages arising from personal injury, while the other plaintiffs brought claims under Ontario’s Family Law Act, R.S.O. 1990, c. F.3 (“Family Law Act”). The Court exercised its discretion to apply Ontario law rather than Minnesota law. In Justice Platana’s reasoning, he noted that there was a connection to this action in both Minnesota and Ontario. However, he found that the only real connection to Minnesota was that the accident took place there. Not only were the parties all residents of Ontario, but the defendant’s motorcycle was registered in Ontario and subject to a motor vehicle liability policy that was issued in Ontario. As a result of the Court concluding that the law of Ontario was to be applied, Ontario’s Family Law Act applied, and the plaintiff’s family was able to pursue compensation pursuant to Ontario’s Family Law Act. In Hanlan, it was held that, in the circumstances, the operation of the lex loci rule would cause an injustice and, as such, the appropriate law to apply was one that is most connected to the parties, not the lex loci delicti.
Sometimes cross-border accident claims will result in remedies both in Canada and the United States. This is particularly common in the case of a Canadian injured in a car or motorcycle accident while visiting the United States. Iacobelli Law Firm has experience with cross-border auto accident cases, and we can assist in determining whether your case will need to proceed in Canada or the United States or both. For a FREE CONSULTATION, call us to learn more about your rights following a cross-border accident.
Lawyer Andrew Iacobelli is admitted to practice law in Ontario, Florida and Michigan, and is called to the Federal District Courts in the Northern, Middle and Southern Districts of Florida. Andrew has represented many Ontario residents that have been injured in auto and motorcycle accidents in the United States, including accidents in the States of Michigan, New York, Florida, Ohio, West Virginia, Texas, California, Indiana, Pennsylvania, and Illinois. Andrew Iacobelli is also regularly consulted by US attorneys with cross-border injury claims that require coordinating insurance claims in Ontario and the United States.
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