Go to Database Directory || Go to Bibliography
Reproduced with permission of the author

"Bringing Locus into Focus": A Choice-of-Law Methodology for CISG-based Concurrent Contract and Product Liability Claims

Antonin I. Pribetic [1]
September 2004

I.    Introduction
II.   Negligent Tort Liability under the CISG
III.  Choice of Law for CISG based Contractual Claims –
       The Lex Loci Contractus
IV.  Choice of Law for Product Liability Claims –
       The Lex Loci Delicti Commissi
       Contractual Obligations
       Statutory Obligations
       Negligent Tort Liability
               Manufacturing Defects
               Negligent Design
               Duty to Warn
       Canadian Judicial Approach to Choice of Law in Tort
       Choice of Forum and Choice of Law Distinguished
V.   The Lex foci – Concurrent Contract and
       Negligent Tort (Product Liability) Claims
            Pleadings Issues and Evidentiary Problems
VI.  Conclusion

I. Introduction

Conflicts of laws principles for choice of law traditionally fall into two distinct, discrete categories: tort or contract. The place where the tort, offence, or injury has been committed (the "locus delicti") is the prevailing doctrine in many common law jurisdictions (including Canada) for choice of law in tort (the "lex loci delicti commissi").

Conversely, where the contract was formed (the "locus contractus") and its corollary, the law of the place where the contract is concluded (the "lex loci contractus") is the predominant theory for choice of law in contract. Alternatively, where the contract was to be performed (the lex solutionis") is problematic, particularly in circumstances involving complex international transactions.[2]

Much legal academic commentary has been devoted to development of choice of law rules informed by principles culled from traditional conflicts of law theory,[3] private international law,[4] UNIDROIT principles [5] and the lex mercatoria.[6]

From a contractual perspective, the United Nations Convention on Contracts for the International Sale of Goods, 1980 [7] (hereinafter the "CISG"), maintains its ascendancy as the most widely adopted international Convention dealing with international business transactions.[8] Conversely, efforts to establish a comparable international Convention on products liability law have not met with the same degree of success. To date, The Hague Convention on the Law Applicable to Products Liability (October 21, 1972)[9] has garnered accession from only a handful of countries.[10]

Moreover, along with the development of concurrent liability in both contract and tort, we observe various lacunae in the CISG which raise significant choice of law issues.   The best example is product liability law, which was first described by Dean Prosser as being on the "borderland of tort and contract".[11]

In Part II of this article, I discuss negligent tort liability under the CISG in the context of choice-of-law theories, informed by application of Articles 4 and 5 of the CISG. The need for international or domestic conflict of law rules for CISG-related concurrent claims in contract and negligent tort is identified.  In Part III, I compare Article 7 of the CISG with Canadian choice-of-law in contracts which firmly entrenches the lex loci contractus rule.

In Part IV, the article considers choice-of-law for tort/product liability claims. I first preview Canadian product liability law stemming from three types of obligations: contractual, statutory and negligent tort liability (including manufacturing defects, negligent design and duty to warn). In reviewing leading Canadian jurisprudence on choice of law in tort, the conceptual distinction between choice of forum and choice of law issues is compared and contrasted by analysis of the factors underlying both the jurisdiction simpliciter and forum non conveniens doctrines.

The Supreme Court of Canada's recognition of private international law principles of sovereignty, territoriality and comity, transfused by the CISG's principles of freedom of contract, uniformity and good faith, lends credence to the lex loci contractus as the choice-of-law rule for CISG-based concurrent liability in contract and negligent tort/product liability.

Part V of the article applies private international law principles and policies identified by the Supreme Court of Canada to concurrent claims in contract and negligent tort (specifically, product liability property damage claims). There is an inherent tension between first order principles of tort and contract liability, and second order principles (remedies). Based upon the dictates of order and fairness, as the super-ordinate principle, order is best achieved by application of the lex loci contractus for CISG-based concurrent contract and negligent tort claims.

I argue that injustice does not include prescription or limitation expiry which is a substantive (rights-based) rather than procedural (remedies-based) issue, and would, otherwise, lead to forum shopping or multiplicity of claims instituted in jurisdictions favourable to the putative plaintiff. Thus, the concept of injustice should be restricted to access to justice issues and policy-oriented or legislative initiatives adopted by the lex fori. A review of pleading and evidentiary issues for product liability claims is also provided.

The article offers in Part VI a choice-of-law methodology based upon three general rules of application. Overall, this article presents a model choice of law for concurrent or alternative liability in contract and negligent tort/product liability where the CISG applies based upon the following set of conditions:

  1. The plaintiff's (Buyer's) claim against the defendant (Seller/Distributor/Manufacturer) is framed in both contract and negligent tort (product liability/property damage);

  2. The CISG applies (whether by express agreement or by default [12]);

  3. The international sales contract does not include a forum selection clause, such as "governing law", "choice of law" "exclusive jurisdiction" or "choice of forum";[13]

  4. The international sales contract contains no exclusions regarding implied warranties or product liability claims.[14]

Although the "locus delicti" and "locus contractus" remain static categories for choice of law in tort and contract, respectively, this article suggests that where an action is instituted or commenced is a neutral factor and the "lex fori" (or "domestic law") should be the law of last resort, when either gaps [15] or exclusions,[16] in the CISG exist.

The "lex fori" doctrine is best suited for preliminary challenges to jurisdiction or forum non conveniens, rather than choice of law.[17] [18]  The "lex foci conventionis", or simply the "lex foci", is a descriptive neologism meaning "the law of the place where CISG claims in contract and tort converge".[19] Applying this new paradigm, a choice of law methodology is proposed for concurrent contract and product liability claims. Where gaps, exclusions or conflicts arise, dispositive factors are offered to delimit the "core of the action".

II. Negligent Tort Liability under the CISG

The issue of applicability of tort claims to the CISG is by no means resolved. Academic debate centers on pre-emption vs. non-pre-emption.[20] In Asante Tech., Inc. v. PMC-Sierra, Inc.,[21] the court also referred to the goals of uniformity and certainty underlying the CISG as sufficient grounds to pre-empt state contract causes of action:

"[t]he availability of independent state contract law causes of action would frustrate the goals of uniformity and certainty embraced by the CISG. Allowing such avenues for potential liability would subject contracting parties to different states' laws and the very same ambiguities regarding international contracts that the CISG was designed to avoid. As a consequence, parties to international contracts would be unable to predict the applicable law, and the fundamental purpose of the CISG would be undermined."[22]

Article 4 of the CISG reads:

Article 4

"This Convention governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract. In particular, except as otherwise expressly provided in this Convention, it is not concerned with:

(a) the validity of the contract or of any of its provisions or of any usage;

(b) the effect which the contract may have on the property in the goods sold."

Article 5 provides:

Article 5

"This Convention does not apply to the liability of the seller for death or personal injury caused by the goods to any person."

For product liability issues excluded by articles 4 or 5 of the CISG, Henry Mather identifies six policy goals for product liability under market theory as follows:

"(1) providing compensatory damages to residents who are injured by defective products (the 'narrow compensation' goal); (2) providing compensatory damages to nonresidents who are injured by defective products brought into the state (the 'expansive compensation' goal); (3) imposing liability to discourage domestic sellers from selling defective products (the 'narrow regulation' goal); (4) imposing liability to discourage foreign sellers from sending defective products into the state's stream of commerce (the 'expansive regulation' goal); (5) protecting domestic sellers from excessive liability for product defects (the 'narrow protection' goal); (6) protecting foreign sellers from excessive liability for product defects (the 'expansive protection' goal)."

Mather's argument that American courts should apply the law of the market state to substantive products liability issues excluded by Articles 4 or 5 of the CISG, for international sales contracts, [23] fits within Canadian and Australian jurisprudence supporting application of the lex loci delicti doctrine to multi-state torts.[24]

With the inexorable expansion of business tort law categories, such as: negligent and fraudulent misrepresentation, interference with economic relations, breach of fiduciary duty and the duty of good faith, and directors' and officers' liability in tort, along with existing quasi-contractual claims (eg. quantum meruit), and restitution (unjust enrichment) and pure economic loss claims, non-privity or non-consensual liability of a contractual party appears to be developing into a judicial fait accompli. Consequently, in many commonwealth jurisdictions, including Canada, the scope and applicability of the CISG will invariably come into conflict with extant choice of law issues.

Israel Gilead surmises that the combination of contract law and tort law, with different regimes for liability and remedies, "constitutes the best method for contending with non-consensual liability of contracting parties, with each branch supporting and supplementing the other." He concludes that:

"When both tort and contract apply, any potential conflict of inner rules can be should be solved by allowing the claimant to choose between them, or by conflict of law rules that determine which field is to prevail, or by better harmonization of tort and contract either through the existing inner flexibility of each field or through legislative reform."[25]

However, without the benefit of international or domestic conflict of laws rules for CISG-related concurrent claims in contract and negligent tort, and with legislative reform far away on the horizon, domestic and foreign litigants still face the prospect of uncertainty, unpredictability and increased transactional costs.

III.  Choice of Law for CISG based Contractual Claims -- The Lex Loci Contractus

In the absence of ex ante agreement on choice of law, Canadian courts generally apply the lex loci contractus. [26]

Article 7 of the CISG reads:

Article 7

"(1) In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.

"(2) Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law." (emphasis added)

The three main principles underlying Article 7(1) of the CISG are its "international character", "uniformity" and "good faith". Gap filling is dealt with under Article 7(2), which, although not expressly addressed, is based upon the premise that courts should first apply the CISG's general principles and policies, and, if a gap exists, then resort should be made to the principles of "private international law".   Robert A. Hillman has identified four main policies: (1) freedom of contract; (2) co-operation and reasonableness; (3) successful completion of exchanges and (4) compensating injured parties for breach."[27]

Since the CISG is an international Convention which has been adopted into the Canadian federation generally, and within each of Canada's constituent provinces, it is self-evident that the foregoing principles and policies must inform any judicial analysis of choice of law for concurrent contractual and product liability claims governed by the CISG brought within the domestic forum.[28]

J.G. Castel, a prominent Canadian conflict of laws scholar writes:

"If there is no express choice of the proper law, the court will consider whether it can ascertain that there was an implied choice of law by the parties ... [I]f the parties agree that the courts of a particular unit shall have jurisdiction over the contract, there is a strong inference that the law of that legal unit is the proper law.  Other factors from which the courts have been prepared to infer the intentions of the parties as to the proper law are the legal terminology in which the contract is drafted, the form of the documents involved in the transaction, the currency in which payment is to be made, the use of a particular language, a connection with a preceding transaction, the nature and location of the subject matter of the contract, the residence (but rarely the nationality) of the parties, the head office of a corporation party to the contract, or the fact that one of the parties is a government." [emphasis added] [29]

While a non-Convention case, the reasoning of Cummings, J. in ABB Power Generation Inc. v. CSX Transportation,[30] is instructive of how a preliminary challenge of forum non conveniens may inform the "lex foci" approach proposed herein.

ABB Power involved an application by a defendant for a stay of proceedings on the ground of forum non conveniens.  The plaintiff, ABB Power, was an American corporation that manufactured and sold industrial products.  Asea Brown Boveri Inc. (ABB Inc.) a Canadian corporation, was an affiliate of ABB Power.  ABB Power manufactured a gas turbine for ABB Inc. for installation at a power plant in Windsor, Ontario.  The moving party co-defendant, CSX Transportation was a U.S. railway carrier. ABB Power contracted with the defendant to transport the turbine to Windsor.  A limitation of liability clause was contained in the transportation terms.  The bill of lading provided that there was to be no "humping",[31] since that could damage the turbine.  ABB Power alleged that the rail car was humped, probably in Ohio, which resulted in damages to the turbine.  A majority of the witnesses resided in the U.S., the majority of the evidence was in the U.S. where the contract was negotiated and the investigation of the loss claim made. The governing law was American.

Justice Cumming granted the defendant's motion and held:

"Where the contract and alleged tort involved are governed by the laws of another country, where there are relatively few witnesses from Ontario, where Ontario has the least connection with the principal facts in dispute giving rise to the claim, where the geographical factors suggest any one of three American states as a natural forum (as compared to Ontario), and where the plaintiffs have not established any loss of a juridical advantage by not having their jurisdiction of choice, then Ontario is not the convenient forum.  The existence of a more appropriate forum than Ontario has been established clearly.[32]"

Joseph Lookofsky notes that in Geneva Pharmaceuticals Tech. Corp. v. Barr Labs. Inc.,[33] the U.S. Federal District Court distinguished between intentional and negligent torts, "whereas B's negligence-based (domestic law) claims were held preempted by the Convention, B's "business tort" claims for tortuous [sic] interference with contract and business relations were not.[34]

The doctrine of preemption is attractive, insofar as it simplifies choice of law rules in concurrent contract and product liability claims under the CISG. Moreover, the reasonable expectation of the parties are irrelevant in a tort action, since no contracting party would "reasonably expect" to injure another. Finally, contractual privity is required under the CISG, which excludes third party claims for property damage, not directly arising from the contract, albeit arising from the contractual relationship in some variation or context.

However, based upon the Supreme Court of Canada's imprimatur of concurrent liability in contract and tort, coupled with the extra-territorial reach of Canadian courts in recent product liability class actions, it is unlikely that Canadian courts will be inclined to follow either the French doctrine of "cumul non cumul"[35] or the German doctrine of "Anspruchskonkurrenz" for outright exclusion or preemption of product liability claims, whether included or excluded by Articles 4 or 5 of the CISG.

Peter Schlechtriem, in his article, The Borderland of Tort and Contract—Opening a New Frontier, suggests the following choice-of-law compromise:

"There remains the rather technical question of how the necessary adjustments of domestic tort law to the contractual interests and respective CISG remedies could be achieved. Should the priority of CISG remedies as under the French rule of non-cumul lead to inapplicability of tort rules altogether, where CISG governs matters exclusively? It has already been mentioned that an overall exclusion of tort remedies among contractual partners would overshoot the mark. But even a limited exclusion seems to be unnecessary. If a domestic tort law protects the expectations of a buyer with regard to the quality of goods and thereby concurs with matters genuinely governed by CISG, it is sufficient to adjust the "concurring" tort action to the rules of CISG. It could not be maintained, if the notice requirement was neglected, and it could not extend to damages beyond the contemplation of the parties or include punitive damages (unless there is an intentional violation under aggravated "tortious" circumstances). However, the injured parties could still sue in tort in a forum having jurisdiction only for tort actions, for jurisdiction and venue are not matters governed exclusively by CISG...."[36]

IV. Choice of Law for Product Liability Claims -- The Lex Loci Delicti Commissi

Product Liability from a Canadian perspective

In Canada, product liability law remains governed by the common law of the tort of negligence. In a product liability lawsuit, the plaintiff has the burden of proof in establishing that the defendant's product is defective, and that the defendant failed to meet the standard of reasonable care in preventing the defect. Accordingly, there are three sources of product liability– a manufacturing defect, a design defect or a warning defect.

Contractual Obligations

The first source of liability is the contract by which the product is sold.  If that agreement promises that the equipment will perform certain functions and it does not, then the manufacturer can be held liable for damages. However, a person who is a party to that agreement can only make a claim under a contract.  When a product causes personal injuries, it is unlikely that the victims are parties to the original sale agreement and could claim it was breached.

Statutory Obligations

The second source of liability is statute.  In Ontario there are several implied warranties under the Sale of Goods Act (Ontario).[37] Sections 15 and 16 of the Ontario Sale of Goods Act provide:

"15. Subject to this Act and any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:

1. Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description that it is in the course of the seller's business to supply (whether the seller is the manufacturer or not), there is an implied condition that the goods will be reasonably fit for such purpose, but in the case of a contract for the sale of a specified article under its patent or other trade name there is no implied condition as to its fitness for any particular purpose.

2. Where goods are bought by description from a seller who deals in goods of that description (whether the seller is the manufacturer or not), there is an implied condition that the goods will be of merchantable quality, but if the buyer has examined the goods, there is no implied condition as regards defects that such examination ought to have revealed.

3. An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade.

4. An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith." R.S.O. 1990, c. S.1, s. 15.

Sale by sample

"16. (1) A contract of sale is a contract for sale by sample where there is a term in the contract, express or implied, to that effect.

Implied conditions

(2) In the case of a contract for sale by sample, there is an implied condition,

(a) that the bulk will correspond with the sample in quality;

(b) that the buyer will have a reasonable opportunity of comparing the bulk with the sample; and

(c) that the goods will be free from any defect rendering them unmerchantable that would not be apparent on reasonable examination of the sample." R.S.O. 1990, c. S.1, s. 16.

In particular, section 15 of the Ontario Sale of Goods Act provides implied warranties that goods will be fit for a particular purpose and that goods bought by description would be of a "merchantable quality".  If these warranties are breached, then damages arise under section 51 (2) and 51 (3) of the Ontario Sale of Goods Act.  However, parties can agree to exclude these warranties under section 53 of the Ontario Sale of Goods Act.  To do this, they must use clear and direct language according to the Supreme Court of Canada decision in Hunter Engineering Co. v. Syncrude Canada Ltd.[38]

Article 35 of the CISG also imposes implied conditions of quality, similar to those contained in Sections 15 and 16 of the Ontario Sale of Goods Act.[39] Article 35 of the CISG reads:

Article 35

"(1) The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract.

"(2) Except where the parties have agreed otherwise, the goods do not conform with the contract unless they:

(a) are fit for the purposes for which goods of the same description would ordinarily be used;

(b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement;

(c) possess the qualities of goods which the seller has held out to the buyer as a sample or model;

(d) are contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods.

"(3) The seller is not liable under subparagraphs (a) to (d) of the preceding paragraph for any lack of conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity."[40]

Lack of conformity with the implied conditions of quality under either the provincial sale of goods regime or the CISG establish liability, however, which legislative instrument governs will be dictated by the contract or choice of law rules.

There may be other statutes that will apply to certain products.[41] [42] For any other statutory obligations, it is important to bear in mind that if a manufacturer fails to comply, that does not create grounds for a legal action.  On the other hand, compliance with statutory requirements does not reduce the liability of a manufacturer. A manufacturer could still be liable for causing personal injuries even if it has complied with the appropriate statute.[43]

Negligent Tort Liability

The third and most important source of liability for a manufacturer is under tort law.  In Canada, tort liability was established by the British House of Lords decision in Donoghue v. Stevenson.[44] In that case, a consumer found a decomposing snail at the bottom of a bottle of ginger beer and sued the manufacturer.  The House of Lords held that a manufacturer who sells with the knowledge that, without reasonable care in the preparation of its products, it will cause injury to the life or property of  third parties and owes a duty to those third parties to take reasonable care.

In a product liability case, a person claiming breach of this duty must prove on the balance of probabilities that:  firstly, a defect in the defendant's product caused injury to that person; and secondly, that defect was caused by the defendant's negligence.  There is no concept of strict liability in Canada as there is in the United States.  Negligence must be proven although the courts will often infer negligence when an accident occurs which would not normally have happened unless there had been negligence. However, the defendant can rebut that inference.  Some common defences are that there has been some intervening event which has caused the injury or that the plaintiff voluntarily assumed the risk of injury or improperly used the product.

A claim that a manufacturer has been negligent is usually based on one of these three grounds:  defective design; manufacturing defects; or the manufacturer's failure to warn about dangerous products.

Manufacturing defects

Manufacturing defects occur when a product is not made to its specifications.  For example, a defect may include: faulty assembly; missing parts; or foreign elements.  When such a defect arises it strongly infers that the manufacturer was negligent, because the manufacturer controls the manufacturing process.[45] Through its control of this process, the manufacturer has a duty to ensure "that there are no defects in manufacture that are likely to give rise to injury in the ordinary course of (the product's) use", according to the Supreme Court of Canada's decision in Lambert v. Lastoplex Chemicals Co. [46]

Negligent design

The manufacturer also has a duty not to manufacture products which it knows or ought to know have inherent defects in their design. Defective design occurs when a product is built to its specifications but the specifications are faulty. It is often more difficult to prove than a manufacturing defect.

To allege a breach of this duty, the plaintiff must prove firstly, that there was a design defect and secondly, that the manufacturer knew, or ought to have known, about that defect.

A design defect is determined by Ontario courts with one of two tests.  the first test is called the "consumer expectation test".[47] It asks what a reasonable consumer would have expected in the design of the product.  The second test is called the "Risk Utility Test".  It requires the plaintiff to show that the design presented an excessive risk given the feasibility and costs of potential alternatives.[48]

Meeting either test usually requires expert evidence about the design of products and sometimes, proof of alternative designs. The question of whether a design is defective is determined at the time that the product is manufactured usually, or in some cases, when it is distributed.

It is important to add that compliance with industry standards is no defence for a manufacturer. a manufacturer will be held liable if it does not adopt a safe design which is readily available, even if that design is different than industry standard.

Duty to warn

Whenever a manufacturer discovers dangers in a product it has sold, it has a duty to warn the customers who purchased the product of those dangers.  The warnings must be reasonably communicated and clearly describe the specific dangers.   They must be given whenever dangers are discovered whether at the time of sale or afterwards.  This duty is greater when there is greater possibility of harm. It is especially important with products that are either inherently dangerous or can be dangerous when they are used.[49]

For tort liability of the non-privity manufacturer of a defective product, Feldthusen, notes that "the courts in the United States have recognized at least three avenues of recovery outside of statutory sales law—negligence, strict tort, and implied warranty—whereas only negligence is available in the Commonwealth."[50] The author concludes:

"Perhaps the most interesting conclusion that emerges is that it matters little, if at all, which of the three basis positions the courts choose: the exclusionary rule; the imminent risk rule; or the full liability rule. This is because someone in the chain of distribution or construction will be liable for the product defence economic loss already, either by contract or statute. On balance, the case for permitting the direct suit is weak. There are many statutory remedies available to the user; direct tort liability is unlikely to increase deterrence a great deal or otherwise affect the ultimate allocation of the loss; compulsory loss spreading through the manufacturer is difficult and not necessarily desirable; and the convenience of the direct suit has offsetting complications. By the same token, if a satisfactory scheme can be devised whereby disclaimers and other relevant clauses in all contracts within the chain of sale can be taken into account in the direct suit, no great harm will come of it. Probably the strongest objection to the direct negligent suit is that it unnecessarily complicates product defect law by introducing issues of 'imminent danger' or nebulous definitions of 'defective.' The most significant impact of allowing a claim in negligence is to provide the plaintiff with a solvent defendant if the party primarily liable by statute or contract is unavailable. To move in this direction requires the court to decide effectively that the legislative scheme is inadequate, something that many courts are reluctant to do for substantive and constitutional reasons."[51]

Canadian Judicial Approach to Choice of Law in Tort

In Moran v. Pyle, the Supreme Court of Canada formulated a modern approach to product liability that focused on fairness:

"[T]he following rule can be formulated: where a foreign defendant carelessly manufactures a product in a foreign jurisdiction which enters into the normal channels of trade and he knows or ought to know both that as a result of his carelessness a consumer may well be injured and it is reasonably foreseeable that the product would be used or consumed where the plaintiff used or consumed it, then the forum in which the plaintiff suffered damage is entitled to exercise judicial jurisdiction over that foreign defendant. This rule recognizes the important interest a state has in injuries suffered by persons within its territory. It recognizes that the purpose of negligence as a tort is to protect against carelessly inflicted injury and thus that the predominating element is damage suffered. By tendering his products in the market place directly or through normal distributive channels, a manufacturer ought to assume the burden of defending those products wherever they cause harm as long as the forum into which the manufacturer is taken is one that he reasonably ought to have had in his contemplation when he so tendered his goods. This is particularly true of dangerously defective goods placed in the interprovincial flow of commerce."[52]

Clearly, Justice Dickson's reasoning demonstrated a "narrow protection" market state approach to interprovincial product liability, subsequently enshrined in provincial consumer protection legislation.

In Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, the Supreme Court of Canada articulated the policy considerations of certainty, ease of application, predictability and meeting normal expectations in holding that the lex loci delicti should be prevailing choice of law in tort:

"I have thus far framed the arguments favouring the lex loci delicti in theoretical terms.  But the approach responds to a number of sound practical considerations.  The rule has the advantage of certainty, ease of application and predictability.   Moreover, it would seem to meet normal expectations.  Ordinarily people expect their activities to be governed by the law of the place where they happen to be and expect that concomitant legal benefits and responsibilities will be defined accordingly.  The government of that place is the only one with power to deal with these activities.  The same expectation is ordinarily shared by other states and by people outside the place where an activity occurs.  If other states routinely applied their laws to activities taking place elsewhere, confusion would be the result.  In our modern world of easy travel and with the emergence of a global economic order, chaotic situations would often result if the principle of territorial jurisdiction were not, at least generally, respected.  Stability of transactions and well grounded legal expectations must be respected.  Many activities within one state necessarily have impact in another, but a multiplicity of competing exercises of state power in respect of such activities must be avoided."[53]

In Hunt v. T & N plc,[54] Justice La Forest stated that the assessment of the "reasonableness" of a foreign court's assumption of jurisdiction was not a mechanical accounting of connections between a case and a territory, but a decision "guided by the requirements of order and fairness."[55] Thus, a plaintiff's decision to enter into an international sales transaction is the core of the issue and unfairness to the defendant must be balanced in light of the precepts articulated by Justice La Forest in Tolofson wherein he states:

"...it may be unfortunate for a plaintiff that he or she was the victim of a tort in one jurisdiction rather than another and so be unable to claim as much compensation as if it had occurred in another jurisdiction.  But such differences are a concomitant of the territoriality principle.  While, no doubt, as was observed in Morguard, the underlying principles of private international law are order and fairness, order comes first.  Order is a precondition to justice." [emphasis added][56]

In Beals v. Saldanha, the Supreme Court of Canada reinforced its earlier obiter comments in Morguard Investments Ltd. v. De Savoye: [57]

"In Moran, supra, at p. 409, it was recognized that where individuals carry on business in another provincial jurisdiction, it is reasonable that those individuals be required to defend themselves there when an action is commenced:

By tendering his products in the market place directly or through normal distributive channels, a manufacturer ought to assume the burden of defending those products wherever they cause harm as long as the forum into which the manufacturer is taken is one that he reasonably ought to have had in his contemplation when he so tendered his goods.

"That reasoning is equally compelling with respect to foreign jurisdictions."[58]

The Supreme Court of Canada majority's rationale for applying the Moran approach to foreign jurisdictions, a priori, appears logically sound applying market-state theory,[59] which is preferred over interest analysis.[60]

One argument is that the interposition of the CISG's principles of freedom of contract, uniformity and good faith with the Supreme Court of Canada's own observance of private international law principles of sovereignty, territoriality and comity,[61] points towards the application of the lex loci delicti for negligent tort claims.

In Britton v. O'Callaghan, Borins, J.A. of the Ontario Court of Appeal stated:

"Although Tolofson was a case involving a domestic tort and the rigid choice of tort law rule that it established applies to domestic torts, it is clear that both trial and appellate courts have interpreted and applied Tolofson as also establishing the same choice of law rule in the case of foreign torts, the lex loci delicti, with the exception that in rare cases the court may exercise a discretion to choose the lex fori to prevent an injustice. The motion judge was aware of his limited discretion and declined to exercise it. Although I would not endorse the motion judge's analysis in its entirety, I am of the opinion that he was correct to apply the choice of law rule mandated by Tolofson and to decline to exercise his discretion to declare that the substantive law of Ontario applied to the respondent's claim..."[62]

In Hanlan v. Sernesky [63] the Ontario General Division held that it was entitled to depart from the requirement of applying the lex loci where the circumstances were such that "the operation of the lex loci rule would work an injustice."[64]

Janet Walker has proposed a choice of law rule for torts (including cross-border torts), emphasizing the social context in which a tort occurs as a general rule, with the geographical context as an exception:

  1. Where the relationship between the parties makes it reasonable for liability and recovery to be governed by the standards of a particular legal system, those standards should apply to claims between them in tort.

  2. Where no such relationship exists, the law of the place where the tort occurs should ordinarily apply.[65]

Notwithstanding the reasonableness of the foregoing choice of law in tort approach, the lex loci delicti rule remains firmly entrenched in Canada.

Choice of Forum and Choice of Law Distinguished

In Muscutt v. Courcelles, the Ontario Court of Appeal identified eight relevant factors when applying the "real and substantial connection" test to the threshold issue of jurisdiction simpliciter.[66]

  1. "[t]he connection between the forum and the plaintiff's claim;"
  2. "[t]he connection between the forum and the defendant;"
  3. the "[u]nfairness to the defendant in assuming jurisdiction;"
  4. the "[u]nfairness to the plaintiff in not assuming jurisdiction;"
  5. "[t]he involvement of other parties to the suit;"
  6. "[t]he court's willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis;"
  7. "[w]hether the case is interprovincial or international in nature;" and
  8.  "[c]omity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere."[67]

The "real and substantial connection" test factors (5) through (8) may all be conveniently categorized under the rubric of "private international law". On a motion to stay a proceeding on the basis of forum non conveniens, the test is whether there is clearly a more appropriate jurisdiction in which the case should be tried than the domestic forum chosen by the plaintiff.[68] As such, a certain degree of overlap exists between the "real and substantial connection" test and the forum non conveniens test when determining the most appropriate forum for the action.

In SDI Simulation Group Inc. v. Chameleon Technologies Inc.[69] Borins J. identified the pertinent connecting factors to be considered in determining the appropriate forum as follows:

a)    the location where the contract was signed;
b)   the applicable law of the contract;
c)    the location in which the majority of witnesses reside;
d)   the location of key witnesses;
e)    the location where the bulk of the evidence will come from;
f)     the jurisdiction in which the factual matter arose; and
g)    the residence or place of business of the parties.

Similarly, in ABB Power,[70] Cummings, J. delimited the following connecting factors as:

a) the governing law;
b) the location in which the parties carry on business;
c) the location in which the majority of the witnesses reside;
d) the location from which the bulk of the evidence will come;
e) the location of the core of the action (or where the principal facts in dispute are concentrated); and
f) geographical factors suggesting a natural forum.[71]

Both tests need to be contextualized in light of the overarching private international law principles of uniformity, harmonization of international rules, comity and reciprocity. on the issue of reciprocity, Justice Le Bel notes:

"[T]he concept of reciprocity in the sense of equivalence of jurisdiction serve the purposes of private international law well. This idea fails to reflect the differences between assuming jurisdiction and enforcing a foreign judgment. When a Canadian court takes jurisdiction over a foreign defendant, it need not inquire into the fairness of its own process, which can be taken for granted. Potential hardship to the defendant can be dealt with under forum non conveniens. The ultimate practical effect of the court's judgment will not be determined by its own decision to take jurisdiction, but by the decision of the courts in the defendant's home jurisdiction whether or not to recognize and enforce the Canadian judgment based on that jurisdiction's own domestic law and policy."[72]

From a Canadian perspective, the application of choice of law rules vis-à-vis international product liability (negligent defect or manufacture) cases with a CISG component is a matter of constitutional and public importance, based upon the judicial recognition by Canadian courts for the principles of international comity and private international law. To date, Canadian jurisprudence, including landmark decisions from the Supreme Court of Canada, maintain a traditional resort to application of the lex loci delicti rule in international cases, premised upon public policy considerations of certainty, ease of application, predictability and meeting normal expectations extolled in Tolofson; which is thought to benefit both domestic and foreign litigants in Canada and abroad.

Additionally, in Muscutt v. Courcelles, Sharpe, J.A. of the Ontario Court of Appeal included as a factor whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court.[73]

Of the numerous overlapping factors promulgated by canadian courts under the "real and substantial connection" test for jurisdiction simpliciter, and the forum non conveniens doctrine, the "location of the core of the action (or where the principal facts in dispute are concentrated)" is a reasonable theoretical basis for determining the lex foci for three reasons.

Firstly, there is usually no contractual nexus between the foreign, non-privity manufacturer on the one hand, and either the plaintiff or defendant, on the other. the essential elements of the transaction are likely unknown to the foreign manufacturer (i.e., the buyer's identity, the place where the product ultimately will be used, shipping and intermediate inspection issues, etc.). If, however, the plaintiff purchases the product directly from the foreign manufacturer, then the nature of the relationship is primarily negligence-based rather than contractual, based upon principles of reasonable foreseeability and imminent danger. in these cases, the lex loci delicti should apply, unless the parties have incorporated any express or implied warranty exclusions or waiver clauses, limiting tortious liability.

Secondly, in jurisdictions that recognize concurrent liability in contract and tort, the litigants will incur lower transactional costs (i.e., legal and expert fees) when a clear set of choice-of-law rules for CISG-based international sales disputes are considered. An early determination of choice-of-law for the lex foci, will engender predictability, certainty, reduce transactional costs and potentially foster settlement opportunities, especially when both litigants are obliged to retain foreign legal experts to prove foreign law.[74]

Finally, a peremptory ruling on choice-of-law through the domestic court's scrutiny of the particulars of the plaintiff's concurrent claim, may well serve as a judicial filter for contractual claims which have been "dressed up" as product liability claims to avoid lack of notice of defect under Article 5, or attempts at circumventing a shorter or prescribed limitation period in the foreign jurisdiction (i.e., the lex loci delicti).[75]

The Ontario Court of Appeal clarified the purpose and scope of the lex loci delicti rule in both Wong v. Lee [76] and Somers v. Fournier.[77]

In Wong v. Lee, Feldman, J.A., writing for the majority, stated:

"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 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 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."[78]

In Somers v. Fournier, Cronk, J.A., summarizes the guiding principles as follows:

"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. ...

"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.)."[79]

Therefore, Justice Cronk, concluded that the lex loci delicti rule applied in international litigation "notwithstanding a high degree of connection between the litigants and the place of the forum."[80] It is noteworthy that in Somers v. Fournier, the defendants attorned to the jurisdiction of the Ontario Courts, such that there was no challenge in the action of Ontario as the proper forum, a distinguishing fact from "others in which this court had 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."[81]

V. The Lex foci—Concurrent Contract and Negligent Tort (Product Liability) Claims

There is an inherent tension between first order principles of tort and contract liability (theories of causation) and second order principles (remedies). Damages are addressed in articles 74-76 of the CISG which read:

Article 74

"Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract."

Article 75

"If the contract is avoided and if, in a reasonable manner and within a reasonable time after avoidance, the buyer has bought goods in replacement or the seller has resold the goods, the party claiming damages may recover the difference between the contract price and the price in the substitute transaction as well as any further damages recoverable under article 74."

Article 76

"(1) If the contract is avoided and there is a current price for the goods, the party claiming damages may, if he has not made a purchase or resale under article 75, recover the difference between the price fixed by the contract and the current price at the time of avoidance as well as any further damages recoverable under article 74. If, however, the party claiming damages has avoided the contract after taking over the goods, the current price at the time of such taking over shall be applied instead of the current price at the time of avoidance.

"(2) For the purposes of the preceding paragraph, the current price is the price prevailing at the place where delivery of the goods should have been made or, if there is no current price at that place, the price at such other place as serves as a reasonable substitute, making due allowance for differences in the cost of transporting the goods."

Peter Schlechtriem notes:

"The assessment of the possible types of damages -- which makes it possible to describe concretely the risk each party can be said to have assumed -- will be especially difficult with respect to consequential damages caused by defective goods to the person or property of the buyer. In most domestic legal systems, such violations belong to the domain of non-contractual liability, including products liability for injuries caused by defective goods. Article 5 entirely removes personal injuries from the sphere of application of the Convention. But a broader formulation - which would have excluded product liability even for property damage -- could not be agreed upon in Vienna. Therefore, in the event such damages were foreseeable to the seller, they can be awarded under CISG. In assessing this forseeability, the usual or intended use by the buyer should be the decisive factor. Even in cases where there is contractual liability under the Convention, domestic provisions for liability in tort should not be displaced."[82]

Quoting the reasoning of Justice Le Dain in Central Trust Co. v. Rafuse best summarizes the Canadian judicial approach to concurrent liability in contract and tort:

"A concurrent or alternative liability in tort will not be admitted if its effect would be to permit the plaintiff to circumvent or escape a contractual exclusion or limitation of liability for the act or omission that would constitute the tort.  Subject to this qualification, where concurrent liability in tort and contract exists the plaintiff has the right to assert the cause of action that appears to be most advantageous to him in respect of any particular legal consequence."[83]

A defendant manufacturer's challenge to the plaintiff's choice of domestic forum on the grounds of jurisdiction simpliciter or forum non conveniens, is usually couched in terms of unfairness, injustice or "loss of juridical advantage". While I have argued that the issues of choice of forum and choice of law should be considered contemporaneously, the Canadian judicial preference is to keep both issues conceptually distinct. As such, the application of the lex loci contractus as a general rule for CISG-based concurrent contract and negligent tort claims, with an injustice exception retained, is considered further below. Based upon the dictates of order and fairness, as the super-ordinate principle, order is best achieved by application of the lex loci contractus for CISG-based concurrent contract and negligent tort claims.

Dean F. Edgell suggests that in the case of concurrent contract and product liability claims, the court should resort to the applying a "tort rule based upon the location of the 'defining activity that constitutes the wrong'".[84] S.M. Waddams supports allowing the plaintiff a choice of the "more favourable law" based upon the Moran approach of "reasonable foreseeability of harm" caused by the defendant non-privity manufacturer's product, coupled with the jurisdiction "having a reasonably close connection with the cause of action."[85]

If applied to inter-provincial product liability claims, both proposals are viable. Perhaps the nature of the product may be determinative, such that for products purchased for commercial purposes are markedly different from the types of personal goods normally contemplated in consumer protection legislation.[86] More importantly, the types of goods covered under modern consumer protection legislation,[87] or that are the subject-matter of class actions, derive from the product liability policy goals of compensation, regulation and protection (both narrow and expansive in scope).

However, sales of such goods are expressly excluded under Article 2 of the CISG, which reads:

Article 2

"This Convention does not apply to sales:

(a) of goods bought for personal, family or household use, unless the seller, at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use;
(b) by auction;
(c) on execution or otherwise by authority of law;
(d) of stocks, shares, investment securities, negotiable instruments or money;
(e) of ships, vessels, hovercraft or aircraft;
(f) of electricity."

Moreover, the Moran approach can easily result in a "slippery slope" argument against foreign manufacturers involved in Internet or web-based sales in cyberspace.[88] Finally, complex international sales transactions may involve a large number of intermediaries, including, suppliers, distributors, franchisees and mercantile agents.

Until such time as an international Convention on e-commerce or internet sales is reached,[89] it would be more internally consistent for product liability (property damage) claims to be preempted altogether, recognizing the "international character", "uniformity" and "good faith" principles of the CISG for choice of law in lex foci situations. If a foreign manufacturer is deemed to subject itself to any and every jurisdiction where its products ultimately are sold and used, then, it is respectfully submitted that the whole concept of international comity, jurisdiction simpliciter and principles of order and fairness mandated by the Supreme Court of Canada decisions in Morguard, Hunt, Moran and Tolofson, are rendered moot.  

If Article 5 of the CISG contemplates product liability property damage claims, then the objective of "decisional harmony" between inter-provincial and international cases, and the goals of certainty, predictability and international comity, all favour the lex loci contractus over the lex fori for choice-of-law under the rubric of the CISG.

Alternatively, if the CISG applies and there is ex ante agreement on governing law or the situs of the contract, then a plaintiff's concurrent tort claim of negligent defect and manufacture should also be governed by the lex loci contractus, on the basis that Article 5 of the CISG expressly excludes only claims for death or personal injury caused by the defects in the goods sold, but not claims for damages to the product sold.[90]

The interpretation and application of article 5 of the CISG to product liability damage claims in Ontario has not yet been judicially considered in Canada, although one such Ontario case,[91]dealt with concurrent claims in contract and product liability where the CISG applied in the context of a preliminary motion challenging jurisdiction. In that case, the motions judge left aside the "thorny issue"[92] of choice of law, noting:

"The contract is silent on the jurisdiction in which any claim for damages must be brought and is also silent on the applicable law. The contract is made in Belgium, but governed by the terms of the CISG. The law applicable to the tort is either Ontario, where the damages occurred, or in Staffordshire, England, where the design and manufacture took place. This factor is therefore neutral, but does not favour Belgium, as Ontario law may apply to the tort claim if the comments in the Tolofson decision are followed."[93]

The CISG imposes a notice requirement under Articles 39(1) and 39(2) which foreign courts and international arbitrators have interpreted as requiring a high degree of specificity.[94]

Article 39 reads:

Article 39

"(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.

"(2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee."[95]

The issue of whether the plaintiffs' claim for negligent defect and manufacture is subject to the CISG, and thus also subject to the notice requirements under Article 39(1) and (2) or domestic statutes of limitations, is pivotal to putative litigants involved in CISG-related litigation. With the recent proclamation of the Limitations Act, 2002 in Ontario, which generally applies a two-year limitation from the date on which the claim was discovered for most types of actions arising after December 31st, 2003,[96] perhaps judicial concern over injustice arising from prescription may be lessened.[97] Yet, the discoverability rule remains available to plaintiffs who have suffered damages as a result of manufacturer's product liability.

It would appear that the two-year notice period under Article 39(2) is a substantive limitation defence, irrespective of the fact that the CISG does not contain a specific limitation period, per se. [98] Injustice does not include prescription or limitation expiry which is a substantive (rights-based), rather than procedural (remedies-based), issue, and would, otherwise, lead to forum shopping or multiplicity of claims instituted in jurisdictions favourable to the putative plaintiff. Thus, the concept of injustice should be restricted to access to justice issues and policy-oriented or legislative initiatives adopted by the lex fori.

Forum shopping is also considered a negative by-product of unpredictability and uncertainty in choice of law rules, primarily due to increased litigation costs and overburdening of domestic and foreign courts. Resistant litigants will often resort to interlocutory tactics such as stay of proceedings motions based upon jurisdiction simpliciter or forum non conveniens doctrines, anti-suit injunctions, declaratory judgment actions or parallel proceedings.[99]

The late Justice Sopinka, speaking for the unanimous Supreme Court of Canada, in Amchem Products Inc. v. British Columbia (Workers' Compensation Board) , suggested that the spectre of parallel proceedings and anti-suit injunctions did not loom very large:

"It has been suggested that by reason of comity, anti-suit injunctions should either never be granted or severely restricted to those cases in which it is necessary to protect the jurisdiction of the court issuing the injunction or prevent evasion of an important public policy of the domestic forum.  See Richard W. Raushenbush, 'Antisuit Injunctions and International Comity' (1985), 71 Va. Law Rev. 1039, and Laker Airlines, supra.  A case can be made for this position.  In a world where comity was universally respected and the courts of countries which are the potential fora for litigation applied consistent principles with respect to the stay of proceedings, anti-suit injunctions would not be necessary.  A court which qualified as the appropriate forum for the action would not find it necessary to enjoin similar proceedings in a foreign jurisdiction because it could count on the foreign court's staying those proceedings.  In some cases, both jurisdictions would refuse to decline jurisdiction as, for example, where there is no one forum that is clearly more appropriate than another.  The consequences would not be disastrous.  If the parties chose to litigate in both places rather than settle on one jurisdiction, there would be parallel proceedings, but since it is unlikely that they could be tried concurrently, the judgment of the first court to resolve the matter would no doubt be accepted as binding by the other jurisdiction in most cases." (emphasis added) [100] [101] 

Pleading Issues and Evidentiary Problems

In Kreutner v. Waterloo Oxford Cooperative Inc.,[102] the Ontario Court of Appeal followed the Third Restatement on Torts (Product Liability) [103] pleading or evidentiary requirement of alternative safe design.

In Kreutner, the defendant's painters were painting the plaintiff's home. While attempting to reconnect a propane tank to a barbeque, the tank tipped over and gas escaped and was ignited by a swimming pool heater underneath the deck where the barbeque was housed. The plaintiffs' home was seriously damaged in the resulting explosion and fire. The plaintiffs sued the defendant paint company, the manufacturer of the tank, and the manufacturer of the valve installed in the tank. The allegations against the valve manufacturer were that it had defectively manufactured and designed the valve and that it had failed to provide any warning of the danger arising from defective design. The valve manufacturer moved for a summary judgment dismissing the plaintiffs' claims, supported by uncontradicted evidence of an expert who opined that there was no design defect. The plaintiffs resisted the motion and provided a report obtained six years after the accident that contained a theory of how the explosion and fire occurred, but was silent on the issue of the design of the valve.

Whitten J. granted, in part, the valve manufacturer's motion for a summary judgment; he dismissed the plaintiffs' claim based on the valve manufacturer having negligently manufactured the value, but he did not dismiss the claims with respect to the allegations of negligent design and failure to warn. The valve manufacturer appealed unsuccessfully to the Divisional Court. Leave having been granted, the valve manufacturer appealed to the Court of Appeal for Ontario, which allowed the appeal.

Borins, J.A. on behalf of the Court of Appeal, held that the essential purpose of a motion for summary judgment is to isolate and then terminate claims and defences that are factually unsupported. In the case of a defendant's motion for summary judgment, although the defendant has the onus of establishing the absence of a genuine issue for trial, the plaintiff bears an evidentiary burden of showing that the evidence adequately supports its claim.

Justice Borins noted that a motions judge is entitled to assume that the record contains all evidence that the parties will present if there is a trial. More importantly, Borins, J.A. confirmed that a bald assertion of defective design, without corroboration, would not survive a motion for summary judgment for dismissal. At paragraph 8, Borins, J.A. held that:

"...to succeed in this case the plaintiffs are required to identify the design defect in [the defendant's product]; establish that the defect created a substantial likelihood of harm and that there exists an alternative design that is safer and economically feasible to manufacture. ..."[104]

The plaintiffs in Kreutner presented no evidence of a design defect or of an alternative feasible design. For their claim based on a failure to warn, the plaintiffs were required to establish that the manufacturer knew or ought to have known of a danger inherent in the product's use. The plaintiffs, however, provided no evidence of any such danger and, in any event, the manufacturer of the tank attached a warning to the tank about the dangers inherent in the use of propane.

The plaintiffs' claims for design defect and failure to warn were therefore not factually supported. This case presented a paradigm of when a defendant has successfully established the absence of a genuine issue for trial. in the result, the appeal was allowed and the claims against the valve manufacturer were dismissed in their entirety, with costs.

In a subsequent case, the plaintiff defeated a summary judgment motion seeking a dismissal of its claim based on defective design by introducing an expert report addressing the factors described in Kreutner. Even though the credibility of the plaintiff's assertions was suspect, the motion's judge deferred the matter to the trial judge for assessment.[105]

An alternative theory of causation is now mandatory, insofar as the maxim of res ipsa loquitur is considered expired in Canada and no longer a separate component in negligence actions, following the Supreme Court of Canada decision in Fontaine v. British Columbia (Official Administrator) [106]

VI. Conclusion

The underlying theme of this article has been that concurrent claims are not necessarily equivalent claims. While concurrent liability in contract and tort (namely, product liability) may be applicable or alternative remedies available, the "focus"[107] of the CISG is the harmonization of rules governing international sale contracts. In respect of concurrent contractual and tortuous liability claims, the article proffers that the "place of injury" or "where the damages are sustained" are less relevant than the situs of the contract, based upon the view that without privity in contract, the concurrent tort would not arise. Where the damages were sustained, in the absence of injustice, should not be determinative by resort to parochial, territorial or domestic policy-driven application of procedural rules affording jurisdiction.

The following choice of law rules are proposed for concurrent claims based upon contract and negligent tort-based product liability (i.e., property damage):

  1. Where the international sales contract specifies that the CISG applies, but the parties have not addressed the issue of product liability claims, then any issues not governed by the CISG (i.e., gaps or exclusions) are to be determined by the lex loci contractus. [108] [109]

  2. If the parties are both from contracting States but the international sales agreement has not expressly waived or varied application of the CISG under Article 6, then the lex foci – the point of convergence of contract or tort liability regimes – requires the domestic court to consider the following factors:

    1. The factual characterization of the claim to determine the core of the action (contract or tort, or both?);

    2. If the nature of the claim is not readily discernable (i.e., the facts pleaded are neither dispositive nor definitive as to whether the claim is predominantly contractual or delictual (tortious)), then the court should assess whether the ground on which the remedy is based is contrary to the aims of the CISG. If so, then the lex loci contractus should govern.

  3. If the concurrent claim is predominantly negligence-based, then the court should apply the lex loci delicti, unless doing so would result in an injustice, as determined by the application of corresponding rules, principles and policies derived from the CISG, UNIDROIT principles, and private international law and arbitration decisions.[110]

While the lex foci conventionis is a new frame of reference, it is hoped that the foregoing discussion on choice-of-law methodology will provide insight to practitioners, judges and arbitrators dealing with CISG-based litigation involving concurrent contract and product liability claims.


1. Litigation Counsel, Houser, Henry & Syron LLP, Toronto, Ontario, Canada. York University, Honours B.A. (Political Science) (1987), Osgoode Hall Law School, LL.B., (1991). Ontario Bar, 1993. Osgoode Journal of International Commercial Law (Editor). My sincere thanks to Prof. Albert H. Kritzer, Executive Secretary of the Institute of International Commercial Law of the Pace University School of Law and Peter Mazzacano, LL.M. candidate, Osgoode Hall Law School at York University for their encouragement and review of earlier drafts of this paper. Any errors or omissions are mine. © Antonin Ivan Pribetic, 2004. All Rights Reserved.

2. See Henry Mather, Choice of Law for International Sales Issues Not Resolved by the Convention, 20 JOURNAL OF LAW AND COMMERCE (Spring 2001) 155-208, at 170 ("Mather").

3. For a Canadian conflict of laws perspective on choice of law, see Joost Blom, Choice-of-law Methodology, Chap. 9 in PRIVATE INTERNATIONAL LAW IN COMMON LAW Canada: CASES, TEXT, AND MATERIALS, Nicholas Rafferty et al. (Eds.), 2nd Edition, (Toronto: Emond Montgomery, 2003) pp. 475-508; Janet Walker, "Are We There Yet?" Towards a New Rule for Choice of Law in Tort, 38 OSGOODE HALL L.J. 331 (2000); Robin M. Junger, A Proposed Choice of Law Methodology for Tort in Canada:  Comparative Evaluation of British and American Approaches (1994) 26 OTTAWA L.R. 75.

4. Id., Mather, Part III, "Alternatives to American Choice-of-Law Methods" (discussion of the Lex Mercatoria, the 1955 and 1986 Hague Conventions and the 1980 Rome Convention.  For a critique of The 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters and the 1980 Rome Convention on the Law Applicable to Contractual Obligations, see Friedrich K. Junger, Two European Conflicts Conventions, REVUE JURIDIQUE POLYNÉSIENNE N°4 (1998).

5. The Preamble to the UNIDROIT PRINCIPLES provides:

(Purpose of the Principles)
These Principles set forth general rules for international commercial contracts.
They shall be applied when the parties have agreed that their contract be governed by them.
They may be applied when the parties have agreed that their contract be governed by general principles of law, the lex mercatoria or the like.
They may provide a solution to an issue raised when it proves impossible to establish the relevant rule of the applicable law.
They may be used to interpret or supplement international uniform law instruments.
They may serve as a model for national and international legislators."

According to the Preamble Official Comment:

"Recourse to the Principles as a substitute for the domestic law otherwise applicable is of course to be seen as a last resort; on the other hand it may be justified not only in the event of the absolute impossibility of establishing the relevant rule of the applicable law, but also whenever the research involved would entail disproportionate efforts and/or costs. The current practice of courts in such situations is that of applying the lex fori. Recourse to the Principles would have the advantage of avoiding the application of a law which will in most cases be more familiar to one of the parties."

See UNILEX ON CONVENTION & UNIDROIT PRINCIPLES, Centre for Comparative and Foreign Law Studies, <http://www.unilex.info>; The International Institute for the Unification of Private Law (UNIDROIT), <http://www.unidroit.org>; Secretariat of the United Nations Commission on International Trade Law (UNCITRAL), Vienna International Centre <http://www.uncitral.org>.

6. For bibliographic references, see, CISG W3 database, Pace University School of Law (Pace Law School Institute of International Commercial Law) <http://cisgw3.law.pace.edu>.

7. United Nations Convention on Contracts for the International Sale of Goods, U.N. Doc. No. A/CONF.97/19 (1981), incorporated by, International Sale of Goods Act, R.S.O. 1990, c-I- 10. For links to other Canadian provincial versions of the Convention, as well as related Canadian case law and academic commentary, see the CISG Canada website, (hosted by Osgoode Hall Law School, York University -- member of the Autonomous Network of Convention Websites) available at: <http://www.cisg.ca>.

8. The Rome Convention, the continental European treaty covering the application of a particular national law to an international transaction, is distinguished from choice of forum and, in its current form, applies only to business or non-consumer transactions. However, negotiations continue to extend the Convention to business-to-consumer transactions, colloquially referred to as "Rome II". For the current draft of the Rome II Convention, see DRAFT ON EXCLUSIVE CHOICE OF COURT AGREEMENTS, HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW WORK. DOC. No 110 E Revised*  Special Commission on Jurisdiction, Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (21 to 27 April 2004) Distribution: May 2004, Proposal by the Drafting Committee, available on the Hague Conference on Private International Law web-site: <http://www.hcch.net/doc/jdgm_wd110_e.pdf>.

9. CONVENTION OF 2 OCTOBER 1973 ON THE LAW APPLICABLE TO PRODUCTS LIABILITY, HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, Convention #22, available at: <http://www.hcch.net/e/Conventions/text22e.html>.

10. Member States of the Hague Conference which are Contracting States to or have signed the Hague Convention on Products Liability – Belgium, Croatia, Finland, The former Yugoslav Republic of Macedonia, France, Italy, Luxembourg, Netherlands, Norway , Portugal, Serbia and Montenegro,  Slovenia and Spain (Reference: Hague Conference on Private International Law web-site: Full Status Report, Convention #22, available at: <http://www.hcch.net/e/status/stat22e.html>.

11. Peter Schlechtriem, The Borderland of Tort and Contract -- Opening a New Frontier?, 21 CORNELL INTERNATIONAL LAW JOURNAL (1988) 467-476, note 1, available at <http://cisgw3.law.pace.edu/cisg/biblio/sclechtriem.html>,    citing the phrase borrowed from Prosser's famous essay, The Borderland of Tort and Contract, in W. Prosser, SELECTED TOPICS ON THE LAW OF TORTS (1953). See also, Mather, supra, note 2.

12. See John P. McMahon, Guide for Managers and Counsel, Drafting Convention Contracts and Documents and Compliance Tips for Traders, CISG W3 database, Pace University School of Law (January 2004) <http://cisgw3.law.pace.edu/cisg/contracts.html>,particularly discussion on "Article 6 -- Suggestions regarding Excluding the Convention or Parts of it."

13. The Hague Conference of Private International Law continues its work on establishing an international Convention for Jurisdiction, Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters. The stated objective of the Convention is "to make exclusive choice of court agreements as effective as possible in the context of international business. The hope is that the Convention will do for choice of court agreements what the New York Convention of 1958 has done for arbitration agreements." Preliminary draft Convention on exclusive choice of court agreements -- draft report drawn up by Masato Dogauchi and Trevor Hartley (final version of March 2004 on the text resulting from the December 2003 Special Commission (Work. Doc. No 49) <http://www.hcch.net/doc/jdgm_pd25e.pdf>. See also the current draft on choice of court agreements: Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters-April 21-27, 2004 –Draft on Exclusive Choice of Court Agreements, Proposal by Drafting Committee, Hague Conference of Private International Law (Work Doc. No. 110 E, Revised) <http://www.hcch.net/doc/jdgm_wd110_e.pdf>.

14. This article considers concurrent contract and negligent tort (product liability-property damage) from the perspective of application of Articles 4 and 5 of the Convention. For general issues of scope of application, exclusions and gap-filling, see Article 1 (basic rules of applicability, internationality and relation to Contracting States); Article 2 (Exclusions from the Convention); Article 3 (Goods to be manufactured; services) supra, note 6, CISG W3 Database, Pace University School of Law, <http://cisgw3.law.pace.edu/cisg/text/cisg-toc.html>  and legislative history and academic commentary cited therein.

15. Franco Ferrari, in his article "Burden of Proof under the Convention" notes:

"These issues, as well as all the other issues that are excluded from the Convention's sphere of application (which have been referred to as "external gaps," "lacunae praeter legem" or, simply, "issues not governed by the Convention"), must be distinguished from the matters governed by the Convention but which are not expressly settled in it (which have been referred to as "internal gaps" or "lacunae intra legem"). This distinction is necessary since different types of gaps are dealt with differently. Whereas the "external gaps" are to be filled by resorting to the "law applicable by virtue of the rules of private international law," the internal gaps "are to be settled in conformity with the general principles on which the Convention is based." Only where internal gaps cannot be settled in conformity with the general principles on which the Convention is based should recourse to the law applicable by virtue of rules of private international law be possible." CISG W3 database, Pace University School of Law, November 5, 2002 <http://cisgw3.law.pace.edu/cisg/biblio/ferrari5.html>. Also available at Pace Review of the Convention on Contracts for the International Sale of Goods (Convention), Kluwer Law International (2000-2001) 1-8 (citations omitted)

16. Mather, supra, note 2, discussion on filling interstitial Convention gaps and exclusions under Article 7(2) at p. 155.

17. For a critique of the application of the "lex fori" to conflicts in choice of law, see Fabrizio Marrella, Choice of Law in Third-Millennium Arbitrations: The Relevance of the UNIDROIT Principles of International Commercial Contracts, VANDERBILT JOURNAL OF TRANSNATIONAL LAW [Vol. 36:1137], which characterizes the judicial reflex to apply the law of the domestic forum as the "lex cognita" approach.

18. Andreas F. Lowenfeld, Editorial Comment: Forum Shopping, Antisuit Injunctions, Negative Declarations, and Related Tools of International Litigation, 91 AMERICAN JOURNAL OF INTERNATIONAL LAW #2, April 1997. For a discussion of Canadian judicial approaches to recognition and enforcement of foreign judgments and the forum non conveniens doctrine, see Antonin I. Pribetic, "Strangers in a Strange Land": Transnational Litigation, Foreign Judgment Recognition, and Enforcement in Ontario, 13 FLA. ST. U. J. TRANSNAT'L L. & POL'Y 347-388 (2004).

19. Derived from a combination of the traditional conflicts of law terminology of "lex fori" (the "law of the forum") and "lex loci" (contractus or delicti commissi).

20. Albert Kritzer ( in collaboration with Axel H Baum) .Checklist on the Convention. Adapted excerpt from Albert H. Kritzer ed., GUIDE TO PRACTICAL APPLICATIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (Kluwer Law International (1994), "Torts and Quasi-Contracts", available at: <http://cisgw3.law.pace.edu/cisg/biblio/kritzer2.html>, citing the two schools of thought on pre-emption under the Convention: Joseph Lookofsky, Loose Ends and Contorts in International Sales: Problems in the Harmonization of Private Law Rules, 39 AM. J. COMP. L. 407 (1991), available at <http://cisgw3.law.pace.edu/cisg/biblio/lookofsky6.html>, who favours a homeward trend , whereas John O. Honnold, UNIFORM LAW FOR INTERNATIONAL SALES UNDER THE 1980 UNITED NATIONS CONVENTION, 2d ed. (Kluwer 1991), p. 318; Fritz Enderlein & Dietrich Maskow, INTERNATIONAL SALES LAW, (Oceana, 1992), p. 47, available at <http://cisgw3.law.pace.edu/cisg/biblio/enderlein.html>; and Schlechtriem, supra, note 11, all of whom who favor varying degrees of universality.

21. Asante Tech., Inc. v. PMC-Sierra, Inc.164 F.Supp.2d 1142, 1151 (N.D.Cal.2001)

22. Schlechtriem, supra note 11, 473-74 stating that the CISG does not preempt claims for "misrepresentation, fraud, betrayal and intentional harm to economic interests"). Cf., Joseph Lookofsky, CISG Case Commentary on Preemption in Geneva Pharmaceuticals and Stawski (April 2004), CISG W3 database, Pace University School of Law, 2004, available at: <http://cisgw3.law.pace.edu/cisg/biblio/lookofsky8.html>.

23. Mather, supra, note 2, pp. 190-191.

24. See discussion on Canadian Judicial Approach to Choice of Law in Tort, infra, at pp. 28-32.

25. Israel Gilead, Non-Consensual Liability of a Contractual Party: Contract, Negligence, Both, or In-Between?, Negligence in the Law (Part 1) (2002)  THEORETICAL INQUIRIES IN LAW, Vol. 3, No. 2, Article 7 (The Cegla Center for Interdisciplinary Research of the Law, the Buchmann Faculty of Law, Tel Aviv University), at p. 33-34.

26. In Canada (Attorney General) v. Nalleweg, (1998), 165 D.L.R. (4th) 606 (Alta. C.A.) Clark, J.A. (Conrad, J.A. concurring) at page 612-613 held that:

"[I]t is proper that any disputes arising out of that contract be governed by the lex loci contractus. The proper law of the contract is the system of law which has the closest and most real connection to the contract: See Kenton Natural Resources v. Burkinshaw (1983), 47 A.R. 321 at 329 (Q.B.); 243930 Alberta Ltd. v. Wickham (1990), 73 D.L.R. (4th) 474 (Ont. C.A.); Castel, J.G., Canadian Conflict of Laws, 3rd ed. (Toronto: Butterworths, 1994) at 559."

For a discussion of choice of law in contract, see Dean Edgell, PRODUCT LIABILITY LAW IN Canada (Toronto: Butterworths, 2000) at 276-277. For a discussion of choice of forum and exclusive jurisdiction clauses, and related discussion on choice of law in contract, see Pribetic, supra, note 18, at pp. 348-351 and 359-360.

27. Robert A. Hillman, Cross-reference and Editorial Analysis of Convention Article 7, CISG W3 Database, Pace University School of Law <http://cisgw3.law.pace.edu/cisg/text/hillman.html>, September 1997. pp. 1-10. (emphasis added, citations omitted)

28. International Sale of Goods Contracts Convention Act , S.C. 1991, c. 13; An Act to implement the United Nations Convention on Contracts for the International Sale of Goods [Assented to 1st February, 1991] available at:  <http://www.cisg.ca>.

29. J.G. Castel, CANADIAN CONFLICT OF LAWS 596-598 (4th ed. 1997). See also Bank Van Parijs en de Nederlanden Belgie N.V. v. Cabri [1993] O.J. No. 1786 (July 29, 1993) per O'Connor J. at  paragraphs 5 and 8.

30. ABB Power Generation Inc. v. CSX Transportation [1996] O.J. No. 952, (1996) 47 C.P.C. (3d) 381 ["ABB Power"]

31. "Humping" is a railway term to describe the positioning of rail cars within a given grouping.  This involves a built up area of ground, or hump, with track leading up the hump and down the other side.  An engine up the track pushes the rail car on one side of the hump and then gravity causes the car to move down the track on the other side.  Several alternative tracks are available at the bottom of the hump.  Switching determines which track the car will exit upon at the bottom of the hump and, hence, to which particular train the rail car will be coupled. (per Cummings, J. at para. 7)

32. ABB Power, id.

33. Geneva Pharmaceuticals Tech. Corp. v. Barr Labs. Inc. 201 F.Supp.2d 236 (United States Federal District Court [New York] (May 10, 2002) available at: <http://cisgw3.law.pace.edu/cases/020510u1.html>.

34. Joseph Lookofsky, CISG Case Commentary on Preëmption in Geneva Pharmaceuticals and Stawski, CISG W3, Pace University School of Law School, April 2004) available at: <http://cisgw3.law.pace.edu/cisg/biblio/lookofsky8.html>.

35. This may also explain why courts in the province of Québec, (a civil law system) apply "dépeçage" -- the conflicts of law rule that the laws of different states may be applied to different issues -- while courts in the Canadian common-law provinces do not.

36. Peter Schlectriem, The Borderland of Tort and Contract—Opening a New Frontier? 21 CORNELL INTERNATIONAL LAW JOURNAL (1988) 467-476, available at <http://cisgw3.law.pace.edu/cisg/biblio/sclechtriem.html>. See also, S.A. Kruisinga,  (NON-) CONFORMITY IN THE 1980 UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS: A UNIFORM CONCEPT? (Antwerp: Intersentia, 2004) Ch. VI "Concurrent Claims" pp. 187-213.

37. R.S.O. 1990, c.S.15 (as amended), ss.15(1) and 15(2)

38. [1989] 1 S.C.R. 426 (S.C.C.)

39. R.S.O. 1990., c.S.15 (as am.)


41. For e.g., Consumer Protection Act R.S.O. 1990, c.C.31 ("goods" means personal property; ("marchandises")). All Canadian Provinces have sale of goods legislation: In Ontario, see Sale of Goods Act, R.S.O. 1990, c.S.1 ("goods" means all chattels personal, other than things in action and money, and includes emblements, industrial growing crops, and things attached to or forming part of the land that are agreed to be severed before sale or under the contract of sale; ("objets")). In Québec, see Book Five of the Civil Code of Québec.  See also, Business Practices Act, R.S.O. 1990, c.B.18 and Motor Vehicle Repair Act, R.S.O. 1990, c. M.43.

42. Certain Provinces have also enacted much more extensive consumer warranty legislation. See New Brunswick's Consumer Product Warranty and Liability Act (S.N.B. 1978, c. C-18.1) and Part III of Saskatchewan's Consumer Protection Act (S.S. 1996, c. C-30.1).

43. Waddams, infra, note 84, at 119 & 123.

44. [1932] A.C. 562 (H.L.). 

45. C. S. Ritchie, QC, Products Liability Litigation:  A checklist of key considerations, presented at a seminar "Perilous Products, Products Liability Litigation" (The Law Society of Upper Canada, Department of Continuing Legal Education, 1994) p.5.

46. [1972] S.C.R. 569 (S.C.C.)

47. Cf. AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW THIRD, TORTS: PRODUCTS LIABILITY (1998) §2(b) which eliminates the "consumer expectations test" as an independent governing standard in determining whether a product is defectively designed:

"A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design ... and the omission of the alternative design renders the product not reasonably safe."

48. S. Ritchie, supra, note 45, at ,A-6, A-7.

49. See Bow Valley Husky v. Saint John Shipbuilding (1997), 153 D.L.R. (4th) 385 (S.C.C.) regarding the use of warranty, contracting out or limitation of liability waiver clauses to negate a duty to warn consumers of potential risks in using a dangerous product. Edgell, supra, note 26, at 149-155.

50. Bruce Feldthusen, ECONOMIC NEGLIGENCE: THE RECOVERY OF PURE ECONOMIC LOSS, Third Ed. (Toronto: Carswell, 1994)

51. Feldthusen, id., at 205.

52. Moran v. Pyle National (Canada) Ltd, [1975] 1 S.C.R. 393, 408-09 (s.c.c.) ("Moran") (emphasis added)

53. Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon [1994] 3 S.C.R. 1022, (1994) 120 D.L.R. (4th) 289, 305-306 (S.C.C.) per La Forest, J. ("Tolofson") (emphasis added) (cited to D.L.R.)

54. Hunt v. T & N plc, [1993] 109 D.L.R.4th 16 (S.C.C.)

55. Id. at 42.

56. Tolofson, supra note 53, at 311 per LaForest, J.

57. Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077 at 1107-08:

The above rationale is not, as I see it, limited to torts.  It is interesting to observe the close parallel in the reasoning in Moran with that adopted by this Court in dealing with jurisdiction for the purposes of the criminal law; see Libman, supra.  In particular, barring express or implied agreement, the reasoning in Moran is obviously relevant to contracts; indeed, the same activity can often give rise to an action for breach of contract and one in negligence; see Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147.  As Professor Sharpe observes [page1108] in Interprovincial Product Liability Litigation, op. cit., at pp. 19-20:

It is inconsistent to permit jurisdiction in tort claims on the basis that the defendant should reasonably have foreseen that his goods would reach the plaintiff and cause damage within the jurisdiction and, on the other hand, to refuse service out of the jurisdiction in contractual actions where the defendant clearly knows that his goods are going to the foreign jurisdiction.

58. Beals v. Saldanha, [2003] 3 S.C.R. 416, 435-6, (2003) 234 D.L.R. (4th) 1 (S.C.C.) per Major, J. (cited to S.C.R.)

59. Mather, supra, note 2 at p. 188.

60. Mather, supra, note 2, at 175, notes that the " 'interest analysis' approach to choice-of-law problems [proposed by Brainerd Currie] requires an attempt to discern governmental policy behind each state's legal rule and determine whether each state could reasonably assert an interest in having its own rule applied to the particular issue before the court ... usually results in the application of forum law."

61. Tolofson, supra, note 53.

62. Britton v. O'Callaghan (2002) 62 O.R. (3d) 95,99, (2002) 219 D.L.R. (4th) 300, 305 (Ont. C.A.)

63. Hanlan v. Sernesky (1997), 35 O.R. (3d) 603 (Ont. Gen. Div.), aff'd (1998) 38 O.R. (3d) 479 (Ont. C.A.) ["Hanlan"]

64. Hanlan, id, (Gen. Div.) at 610-611.

65. Walker, supra, note 3 at 358-9.

66. Jurisdiction simpliciter is the preliminary question of whether the Ontario court lacks jurisdiction or whether the Ontario court should assume jurisdiction over a foreign defendant.

67. Muscutt v. Courcelles, (2002), 60 O.R. (3d) 20, 35, 213 D.L.R. 4th 577, 605-610  (Ont. C.A.) ("Muscutt" cited to D.L.R.); see also Gajraj v. DeBernardo, [2002] 213 D.L.R. 4th 651, (Ont. C.A.); Leufkens v. Alba Tours International Inc., [2002] 213 D.L.R. 4th 614, (Ont. C.A.); Lemmex v. Sunflight Holidays Inc., [2002] 213 D.L.R. 4th 627 (Ont. C.A.); Sinclair v. Cracker Barrel Old Country Store Inc., [2002] 213 D.L.R. 4th 643 (Ont. C.A.).

68. Amchem Products Inc. v. British Columbia (Workers' Compensation Board) [1993] 1 S.C.R. 897 at 921 and 931 (S.C.C.); Frymer v. Brettschneider (1994), 19 O.R. (3d) 60 (C.A.) per Arbour J.A. (McKinlay J.A. concurring) at page 78 and 84; Eastern Power Ltd. v. Azienda Communale Energia and Ambiente (1999), 178 D.L.R. (4th) 409 at 41per MacPherson J.A. (Ont. C.A.)

69. SDI Simulation Group Inc. v. Chameleon Technologies Inc. (1994), 34 C.P.C. (3d) 346 (Ont. Ct. (Gen. Div.))

70. ABB Power, supra, note 30, at para. 33.

71. See also, Eastern Power Ltd. v. Azienda Communale Energia and Ambiente (1999) 178 D.L.R. (4th) 409, 415, (1999) 39 C.P.C. (4th) 160.

72. Beals, supra, note 58, at 501-502 per Le Bel, J. (dissent).

73. Muscutt, supra, note 67, at 593.

74. In Canada, judicial notice is not taken of foreign law, and evidence rules require experts to be qualified by the court to be permitted to prove the law of a foreign jurisdiction. See,Sopinka and Lederman, THE LAW OF EVIDENCE IN CIVIL CASES (Toronto: Butterworths, 1974) at 311-312.

75. Cf. Edgell, supra note 26 at 279 wherein the author notes: "The issue of choice of law, unlike jurisdiction, in not one that need be decided early in a law suit." (and cases cited therein).

76. Wong v. Lee, (2002), 58 O.R. (3d) 398, 211 D.L.R. (4th) 69 (C.A.) (cited to O.R.)

77. Somers v. Fournier (2002) 60 O.R. (3d) 225, (2002) 214 D.L.R. (4th) 611(C.A.) (cited to O.R.)

78. Wong v. Lee, supra note 76, at 405 (cited by Cronk, J.A. in Somers v. Fournier, at 237-8.)

79. Somers v. Fournier, supra note 77, at 237-238, per Cronk, J.A.

80. Id, at 238 per Cronk, J.A.

81. Id. at p. 229, per Cronk, J.A.

82. Peter Schlechtriem, Extent and Measure of Damages (Articles 74-76) excerpt from UNIFORM SALES LAW -- THE UN-CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, at 96 (Manz, Vienna: 1986) available at <http://cisgw3.law.pace.edu/cisg/biblio/schlechtriem-74.html>.

83. Central Trust Co. v. Rafuse [1986] 2 S.C.R. 147, 206, (1986) 31 D.L.R. (4th) 481, 522 (S.C.C.) per Le Dain, J..

84. Edgell, supra note 26, at 277.

85. S.M. Waddams, PRODUCTS LIABILITY, 3rd ed. (Toronto: Carswell, 1993) at 161.

86. Supra, note 41.

87. The Federal Hazardous Products Act (R.S.C. 1985, c. H-3) and its related regulations provide for nationwide standards of safety for a wide variety of consumer products, ranging from child restraint systems for automobiles, to hockey helmets. The Food and Drugs Act (R.S.C., 1985, c. F-27) regulates the sale in Canada of food, drugs, cosmetics and medical devices.  The Canadian Food Inspection Agency administers a number of statutes and regulations that are designed to ensure the safety of the food supply. Provincial governments may also administer extensive food inspection programs.  The Federal Motor Vehicle Safety Act (R.S.C. 1985, c. M-10) requires automobile manufacturers to adhere to safety standards in manufacturing their products.  The Federal Consumer Packaging and Labelling Act (R.S.C. 1985, c. C-34) ensures that food packages properly identify products -- in terms of quantity and ingredients -- in both official languages.

88. Michael J. Whincup, in Choice of Law, Jurisdiction and the Internet: A Policy Analysis, (1999) NLR 10, at §52, <http://www.lexisnexis.com.au/nlr/Articles/whincop/article.asp> advocates an economic approach to choice of law for internet contracts:

...the place with the closest connection to the contract could only be known by considering where each party carries on business, the terms of the contract, the place of contracting, the place of performance, and so on. A repeated point made in this paper is that much of this information will be invisible in Internet contexts. The economic literature on contracts suggests a possible solution. This would involve supplementing choice of law rules with a proviso that if basic information required for the choice of law rule is not common knowledge between the parties, the plaintiff could invoke the law of his or her place of domicile. This would induce term offerors to specify that information or to offer explicit choice of law clauses. The rule functions as a tax on the party in the best position to fill a gap in the contract. (citations omitted).

See also, The Uniform Electronic Commerce Act, which was adopted by the Uniform Law Conference of Canada on September 30, 1999, and recommended for implementation by governments in Canada, and John D. Gregory, The Proposed UNCITRAL Convention on Electronic Contracts, 59 Business Lawyer (November 2003) 313-343, available at the CISG Canada web-site: <http://www.yorku.ca/osgoode/cisg/writings/gregory.htm>.

89. See Hague Conference on Private International Law, Electronic Commerce and International Jurisdiction, Doc. Prél. No. 12, Summary of discussions prepared by Catherine Kessedjian, Ottawa, 28 February to 1 March 2000, available at: <http://www.hcch.net/doc/jdgmpd12.doc>.

90. Academic support for the argument that Article 5 of the Convention extends to product liability damage claims can be found in Dr. Peter Schlechtriem, Comments on Article 5 excerpts from UNIFORM SALES LAW -- THE UN-CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, Published by Manz, Vienna: 1986, Pace Law School Institute of International Commercial Law, CISG W3 database, Pace University School of Law (Feb.6/98) available at:  <http://www.cisg.law.pace.edu/cisg/biblio/schlechtriem.html>, and see, Professor Jacob S. Ziegel, University of Toronto and Professor Claude Samson, Université Laval July 1981 REPORT TO THE UNIFORM LAW CONFERENCE OF Canada ON CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, Pace Law School Institute of International Commercial Law, CISG W3 database, Pace University School of Law (Last updated Feb. 19/99), available at: <http://cisgw3.law.pace.edu/cisg/wais/db/articles/englisp.html>.  

Shane v. JCB Belgium N.V., (2003) O.J. No. 4497 (unreported) (Ont. SCJ), per Smith, J., available at CISG Canada database: <http://www.yorku.ca/osgoode/cisg/cases/shanejcb.htm>.

92. Tolofson, supra note 53, in obiter, LaForest, J. at 307 notes:

From the general principle that a state has exclusive jurisdiction within its own territories and that other states must under principles of comity respect the exercise of its jurisdiction within its own territory, it seems axiomatic to me that, at least as a general rule, the law to be applied in torts is the law of the place where the activity occurred, i.e., the lex loci delicti.  There are situations, of course, notably where an act occurs in one place but the consequences are directly felt elsewhere, when the issue of where the tort takes place itself raises thorny issues.  In such a case, it may well be that the consequences would be held to constitute the wrong.  Difficulties may also arise where the wrong directly arises out of some transnational or interprovincial activity.  There territorial considerations may become muted; they may conflict and other considerations may play a determining role.  But that is not this case.

93. Supra, note 91, at para. 48, per Smith, J.

94. See also Camilla Baasch Andersen, Reasonable Time in Article 39(1) of the Convention -- Is Article 39(1) Truly a Uniform Provision?, Pace essay  in: Pace ed., Review of the Convention on Contracts for the International Sale of Goods (Convention) 1998, Kluwer Law International (1999) 63-176, available at <http://cisgw3.law.pace.edu/cisg/biblio/andersen.html>.

95. La San Giuseppe v. Forti Moulding Ltd. [1999] O.J. No. 3352, Ontario Superior Court of Justice , Court File No. 98-CV-142493CM (Swinton J.), paragraphs 28 to 31, and 39.

96. Limitations Act, 2002, S.O. 2002, c.24, Schedule B., s.4.

97. For a comprehensive review of the impact of the Limitations Act, 2002 in Ontario, see Rosemary Bocska, ONTARIO LIMITATION PERIODS, 2nd Ed. (Markham:LexisNexis-Butterworths, 2003)

98. Section 23 of the Limitations Act, 2002, S.O. 2002, chapter 24, Schedule B, reads as follows:

"Conflict of laws

23. For the purpose of applying the rules regarding conflict of laws, the limitations law of Ontario or any other jurisdiction is substantive law."   2002, c. 24, Sched. B, s. 23.

99. See Pfeiffer Pty Limited v. David Rogerson (2000) 172 ALR 625 (Aust. H.C.) where the Australian High Court overturned prior authority that damages were "procedural" (Stevens v. Head (1992) 176 CLR 433) and held that the lex loci delicti rule should govern substantive issues for transnational tortious claims, including calculation of damages and application of limitation periods.

100. Amchem Products Inc. v. British Columbia (Workers' Compensation Board) [1993] 1 S.C.R. 897, 914 (S.C.C.). see also Westec Aerospace inc. v. Raytheon Aircraft Co., (1999), B.C.C.A. 0134, leave to appeal granted, 86 A.C.W.S. (3d) 697, reversed (1999), 173 D.L.R. 4th 498 (CA), appeal dismissed without reasons, 2001, S.C.C. 26, ["Westec"] where the Supreme Court of Canada declined to consider directly the relevance of parallel proceedings in determinations of appropriate forum. in Westec, Raytheon obtained summary judgment in its Kansas declaratory action and there was, accordingly, no parallel proceedings on which to base the appeal. see Janet Walker, Parallel Proceedings -- Converging Views: The Westec Appeal, THE CANADIAN YEARBOOK OF INTERNATIONAL LAW 155, 185.

101. While forum shopping has many detractors, some commentators have suggested that resulting inefficiencies or perceived injustice are inherent in the system of private international law. For an economic law analysis based upon the theory of "spontaneous order" developed by the legal theorist, Friedrich Hayek, see Nita Ghei and Francesco Parisi, Adverse Selection and Moral Hazard in Forum Shopping: Conflicts Law as Spontaneous Order, CARDOZO LAW REVIEW, George Mason Law & Economics Research Paper No. 03-42, Forthcoming, available at: <http://ssrn.com/abstract=457500> and fn. 65 references therein.

102. Kreutner v. Waterloo Oxford Cooperative Inc (2000), 50 O.R. (3d) 140 (Ont. C.A.) ["Kreutner"]

103. Supra, note 47.

104. Kreutner, supra, note 102,  at paragraph 8, per Borins, J.A.

105. Nadeau v. Nexacor Realty Management Inc., [2002] O.J. No. 2095 (S.C.J.)

106. Fontaine v. British Columbia (Official Administrator) [1998] 1 S.C.R. 424 (S.C.C.)

107. The terms "locus" and "focus" have well-defined meanings and applications in the study of geometry, biology, anthropology, optics, and computer science (for e.g. see, E..L. Waterworth and J.A. Waterworth, Focus, Locus and Sensus: The Three Dimensions of Virtual Experience,4(2) CYBERPSYCHOLOGY & BEHAVIOR 203-214 (2001)).

108. While the defendant "Manufacturer" of the alleged defective product may/may not be related to the defendant "Seller/Distributor" and is from a non-Contracting State, there is no privity of contract with the "Buyer" such that non-consensual liability is manifest. See Gilead, supra, note 25.

109. Presuming both parties are from Contracting States and the international sales contract is governed by the Convention.

110. Waddams, supra note 85 at p.162, fn.69 (citing Pigeon, J. in Interprov. Co-op Ltd. v. R. note 58 at 515 (S.C.R.)) confirming that the Moran decision did not apply to choice of law questions.

Pace Law School Institute of International Commercial Law - Last updated October 6, 2004
Go to Database Directory || Go to Bibliography