20 LEXPERT MAGAZINE
|
JANUARY 2019
Appeal rejected these arguments and ap-
plied the standard lex loci delicti approach
to choice of law in torts.
In the Court of Appeal, the Plaintiffs
also argued that the lex loci delicti prin-
ciple should not apply because there had
been a change in Bangladeshi law that
would result in the Bangladeshi case being
barred by the applicable limitation period.
e Court of Appeal rejected this argu-
ment as well.
e Court of Appeal's decision stands
as a good reminder of the need to be sensi-
tive to choice of law issues. e mere fact
that a case is brought in Canada does not
mean that substantive law to be applied is
Canadian law. In many cases, that foreign
law may be more advantageous to defen-
dants than is Ontario law, either by more
favourable substantive rules or by a shorter
limitation period.
It is also noteworthy that while the
Court is obligated in such cases to accept
the factual allegations in the Statement of
Claim as true, the Court is not obligated
to accept the Plaintiffs' characterization
of where the tort had occurred. e Court
of Appeal held that this was a conclusion
based on pleaded facts. e Court noted
that the judge is only obligated to accept
factual pleadings, not legal conclusions.
Consequently, the Plaintiffs could not im-
munize themselves from a Rule 21 motion
by pleading that the torts occurred in On-
tario rather than Bangladesh.
PHOTO:
SHUTTERSTOCK
"In the Court of Appeal,
the Plaintiffs also argued
that the lex loci delicti principle
should not apply because there
had been a change in Bangla-
deshi law that would result in the
Bangladeshi case being barred
by the applicable limitation
period. The Court of Appeal
rejected this argument as well."
The Interpretation of Foreign Law
Aer concluding that Bangladeshi law
applied to the Plaintiffs' claims, both
the motion judge and the Court of Ap-
peal held that it was plain and obvious
that Bangladeshi law did not provide
the Plaintiffs with a cause of action. In-
terestingly, because Bangladeshi law was
relatively undeveloped on this point, and
because English law is treated as persua-
sive within Bangladesh, both the expert
witnesses and the Court conducted anal-
yses of the relevant English law. Based
on that analysis, the Court concluded it
was plain and obvious that there was no
duty of care owed in these circumstances
by Loblaws as a parent company for the
health and wellbeing of the workers of the
Rana Plaza Factory.
Interesting to note is that the Court was
willing to consider certain English cases
which were not referred to in the evidence
of the expert witnesses called by the par-
ties. e Court reasoned that both experts
agreed the Bangladeshi court would turn
to English law as persuasive authority in
deciding whether to recognize a duty of
care. e Court noted that "Canadian
courts routinely consider English jurispru-
dence when applying domestic law in the
absence of expert evidence on the English
jurisprudence". Consequently, the Court
felt capable of interpreting and applying
additional English law without expert evi-
dence from those witnesses, as would typi-
cally be required to prove foreign law.
is was a somewhat unusual devel-
opment. While it is true that Canadian
courts interpret English law as persuasive
for the purpose of determining unresolved
questions of Canadian law, it is an entirely
different matter for the courts to interpret
English law as a means of determining the
content of foreign law, as is the case here.
e Court of Appeal's decision seems to
suggest some flexibility for courts to con-
sider and apply English law uniquely on
such issues without the need for expert evi-
dence to interpret it. While this holding
seems somewhat unusual, it may be that
this interpretation will be limited to the
facts of this case.
PAUL-ERIK VEEL
LENCZNER SLAGHT ROYCE
SMITH GRIFFIN LLP
