Are We There Yet?: Towards a New Rule for Choice of Law in Tort

Abstract

The Supreme Court of Canada's effort in Tolofson to establish certainty in choice of law in tort failed because the lex loci rule inadequately accounts for the social and legal context in which torts occur. Fairer, and more likely to create certainty, would be a rule that gave primacy to the legal system most closely connected with the relationship that gave rise to the duty of care. Such a rule would serve better than a rule that treated this factor as the basis for an exception or one that rejected its relevance altogether.

Keywords: conflict of laws, choice of law in tort

JEL Classification: K41, K33