TERRITORIALITY AND CHOICE OF LAW IN THE SUPREME COURT OF CANADA: APPLICATIONS IN PRODUCTS LIABILITY CLAIMS
AbstractIn its 1994 decision in Tolofson v. Jensen, the Supreme Court rejected the forum law bias inherent in the traditional common law approach to choice of law in tort. Under the new rule, the law of the place of the tort is paramount. Although nobody regrets the demise of the traditional rule, the new predominance of territorial contacts has attracted criticism as reminiscent of discredited 'vested rights' thinking . This article is a response to that criticism, and a defence of the emphasis on private and public international values implicit in a territorial theory of choice of law. The author begins by examining the changes in the substantive tort law environment that created pressures for reform at the choice of law level. She then considers developments in other common law jurisdictions, finding the Supreme Court's 'neo-territoriality' to be consonant with significant currents of reformist thinking in the United States and Australia. Finally, she analyses the implications of a territorial approach to choice of law in products liability claims. She concludes that the place where the defective product is distributed and causes injury has the predominant territorial nexus for choice of law purposes, and that that law should be applied even if the law of the place where the defective' product was designed and manufactured is more favourable to recovery. Territorial analysis does not, however, foreclose a more open-ended choice of law resolution in cases where the place of injury or the residence of the victim do not coincide with the place of distribution of the product, and the victim had no direct or indirect relationship with the transaction through which the product entered the market.
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