JENSEN V. TOLOFSON AND THE REVOLUTION IN TORT CHOICE OF LAW
AbstractJensen v. Tolofson, a 1994 decision of the Supreme Court of Canada, radically changes the law in Canada concerning choice of law in tort. The pre-eminence of the law of the forum, established by Phillips v. Eyre as interpreted in McLean v. Pettigrew, has been abolished. In its place is a new rule that the law of the place of the tort applies without exception. Jensen v. Tolofson stands apart from other approaches to tort choice of law in Canada, England, and Australia . Its focus on articulated principle, on consistency of approach to choice of law, and on certainty of the rules demonstrates a concern with the rule of rational law that other courts law reformers have not demonstrated. The author concludes, however, that although the rule of the case (as a prima facie rule), is right, the principle on which it is based, namely comity, is wrong. He suggests that justice to the parties is the primary concern of a court in tort choice of law. This principle requires that the lex loci be displaced as the governing law where the expectations of the parties require it.
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