chelsea harris, a minor, by her father v. guardian, 2022 NLSC 53

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Harris v. Hillyer , 2022 NLSC 53 Date : March 28, 2022 Docket : 200601T3132 Between: chelsea harris, a minor, by her father and guardian ad litem , stephen harris Plaintiff And: Victor J. Hillyer First Defendant And: Parsons and Sons Transportation Limited Second Defendant - AND - Docket: 200701T1157 Between: James W. Butler Plaintiff And: Victor J. Hillyer First Defendant And: Parsons and Sons Transportation Limited Second Defendant - AND -

Docket: 200701T1158 Between: Sharon Stanley, IN HER OWN RIGHT First Plaintiff And: Amanda Stanley, an infant, by her guardian ad litem , sharon stanley Second Plaintiff And: Stephanie Stanley, an infant, by her guardian ad litem , sharon stanley Third Plaintiff And: Victor J. Hillyer First Defendant And: Parsons and Sons Transportation Limited Second Defendant And: Axa general insurance / axa assurance generales Third Defendant - AND - Docket: 200701T1159 Between: Brenda Tilley, in her own right First Plaintiff And: Brittany Tilley, an infant, by her guardian ad litem , brenda tilley Second Plaintiff And: Victor J. Hillyer

First Defendant And: Parsons and Sons Transportation Limited Second Defendant And: L'Union Canadienne, compagnie d'assurances / THE CANADIAN UNION INSURANCE COMPANY Third Defendant Before: Justice Vikas Khaladkar Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: March 11, 2022

Summary: The Plaintiffs were injured in a single vehicle accident in the Province of Nova Scotia. The driver of the vehicle was a resident of the Province of Newfoundland and Labrador, as was the registered owner. The action was brought in the Province of Newfoundland and Labrador. It was held that the general damages for non-pecuniary loss should be quantified in accordance with the laws of the Province of Newfoundland and Labrador despite a cap on those damages in the Province of Nova Scotia. Heads of damage were governed by the place of the tort.

The quantification of the damages is governed by the laws of the jurisdiction where the action is commenced. Appearances: Gregory F. Kirby, Q.C. Appearing on behalf of Chelsea Harris Joseph J. Thorne Appearing on behalf of Victor J. Hillyer & Parsons and Sons Transportation Limited Colin D. Feltham Appearing on behalf of James W. Butler, Sharon Stanley, Amanda Stanley, Stephanie Stanley, Brenda Tilley & Brittany Tilley Melissa L.H.

Murphy Appearing on behalf of Axa General Insurance /Axa Assurance Generales No appearance No appearance on behalf of L’Union Canadienne, Compagnie d’Assurances / The Canadian Union Insurance Company Authorities Cited:

CASES CONSIDERED: Tolofson v. Jensen, (SCC), [1994] 3 S.C.R. 1022; Wong v. Wei, (BC SC),[1999] 10 W.W.R. 296, 65 B.C.L.R. (3d) 222 (S.C.); Somers v. Fournier, (2002), (ON CA), 214 D.L.R. (4th) 611,60 O.R. (3d) 225 (C.A.); Stevens v. Head, [1993] HCA 19 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D TEXTS CONSIDERED: G.C. Cheshire & P.M. North, Cheshire and North’s Private International Law, 12th ed. (London:Butterworths, 1992) REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] The facts are not complicated.

The Plaintiffs, also referred to as the Respondents, in these various actions were passengers on abus that was driven, and owned, by the First and Second Defendants in each of those actions. The bus was involved in a single vehiclecollision in the Province of Nova Scotia. [2] All of the Plaintiffs and all of the Defendants, collectively referred to as the Parties, are domiciled in Newfoundland andLabrador, and the action has been brought in this Province. [3] Liability is not in issue.

Entitlement to general damages is also not in issue. [4] The Province of Nova Scotia has passed legislation limiting the award for general, non-pecuniary, damages in respect of minorinjuries. [5] The Parties have requested the Court to provide a ruling on a point of law, pursuant to Rule 38.01 of the Rules of the SupremeCourt, 1986, S.N.L. 1986, c. 42, Sch. D. They seek this Court’s advice with respect to the law to be applied in calculating the Plaintiffs’damages in these actions. The ruling will undoubtedly govern the next steps that the Parties intend to take.

For the reasons that follow, Ihave decided that the laws of the Province of Newfoundland and Labrador should apply to the calculation of damages in this matter. ISSUE [6] Are damages to be calculated by reference to the lex loci delicti or the lex fori? ANALYSIS [7] The leading case in Canada dealing with conflict of laws was the Supreme Court of Canada’s decision in Tolofson v. Jensen, (SCC), [1994] 3 S.C.R. 1022. La Forest J. wrote the decision for the majority of the Court. [8] In Tolofson, the Court dealt with two appeals concerning choice of law rules.

The first appeal was a case in which the Courthad to decide whether a more restrictive limitation period and standard of care for gratuitous passengers in the Province ofSaskatchewan, the place of the tort, would govern. The second appeal was a case in which the Court had to decide whether the Provinceof Quebec’s no fault insurance plan would apply to non-residents involved in an accident in that Province.

In both cases the lex fori wasnot the lex loci delicti. [9] Paraphrasing La Forest J. at paragraph 43 of the Court’s judgment in Tolofson, he stated that civil liability for a wrong derivesits birth from the law of the place where it occurred and its character is defined by that law. It is in that law where we must seek itsdefining character, that defines its legal consequences. [10] La Forest J. indicated, at paragraph 44 in Tolofson, that favouring the lex loci delicti has the advantage of certainty.

In addition,he indicated that as a practical matter ordinary people expect their activities to be governed by the law of the place where they happen tobe. And, at paragraph 50, while he indicated that he would not be averse to retaining a discretion in the Court to apply its own laws incircumstances where it could give rise to an injustice, however, he could imagine few cases where this would be necessary. [11] La Forest J. summed up by stating, at paragraph 67 in Tolofson, “On the whole, I think there is little to gain and much to lose in

creating an exception to the lex loci delicti in relation to domestic litigation.” [12] La Forest J. at paragraph 77 of Tolofson, cited with approval a passage from G.C. Cheshire & P.M. North, Cheshire andNorth’s Private International Law, 12th ed. (London: Butterworths, 1992), at pp. 74-75: One of the eternal truths of every system of private international law is that a distinction must be made between substance and procedure,between right and remedy.

The substantive rights of the parties to an action may be governed by a foreign law, but all mattersappertaining to procedure are governed exclusively by the law of the forum. [13] And, at paragraph 86 of Tolofson, La Forest J. stated, “… the purpose of substantive/procedural classification is to determinewhich rules will make the machinery of the forum court run smoothly as distinguished from those determinative of the rights of bothparties.” [14] The Respondents in this Application have urged me to find that the quantification of general damages for non-pecuniary loss isa procedural matter, one that does not affect substantial rights. [15] In support of that proposition, I was referred to a number of authorities.

In Wong v. Wei, (BC SC), [1999] 10W.W.R. 296, 65 B.C.L.R. (3d) 222 (S.C.), Kirkpatrick J. held that the exception noted by La Forest J. in the Tolofson case (seeparagraph 12 above) would apply. [16] Kirkpatrick J. was considering a case in which residents of the Province of British Columbia were involved in a motor vehicleaccident in the State of California.

He held that the lower Canadian limits for non-pecuniary losses should apply and outlined the reasonswhy a departure from the general rule favouring the lex loci delicti was warranted. [17] Kirkpatrick J. perhaps, explained it best when he said, at paragraph 25: In my view, however, this aspect of Tolofson v. Jensen is distinguishable from the case at bar for two reasons. First, Tolofson v. Jensenconcerned the choice between laws of two Canadian provinces. It is clear from the decision of La Forest J. that the lex loci delicti ruleshould apply without exception in the Canadian inter-provincial context.

The case at bar, of course, involves international jurisdiction, towhich, as discussed above, the exception clearly applies. [18] The case of Wong v. Wei is somewhat distinguishable from the case at bar. We are not dealing with a case of internationaldimensions. All Parties are resident Canadians. Kirkpatrick J. applied the laws of the lex fori in an attempt to reduce the damages thatwould have otherwise been payable by the defendant.

He did this in the context of a tort that had occurred on the other side of aninternational border, but held, nevertheless, that the quantification of damages was a procedural matter and, therefore, the laws of theProvince of British Columbia applied. [19] In contrast, I am being asked to adopt the laws of the forum, in a case with no international dimension, with a view toincreasing the damages that would otherwise be payable in the Province of Nova Scotia. [20] I must determine, for the purposes of this Application, whether the Province of Nova Scotia’s cap on the recovery of damagesfor minor injuries is substantive or procedural. [21] The Respondents argue that the quantification of damages is procedural.

I was referred to a decision of the Ontario Court ofAppeal. The case of Somers v. Fournier (2002), (ON CA), 214 D.L.R. (4th) 611, 60 O.R. (3d) 225 (C.A.). In thatcase the plaintiff residents of the Province of Ontario were injured in a motor vehicle accident in the State of New York. At issue, amongother matters, was the calculation of non-pecuniary general damages and whether the laws of the Province of Ontario or the State of NewYork should apply in that calculation. [22] In Australia, the majority of the High Court held in Stevens v.

Head, [1993] HCA 19 at paragraph 12 that the quantification ofdamages to be awarded in respect of the tort is a matter for the law of the forum. It said that the quantification of damages is a matterdistinct from the kind of civil liability in respect of which damages are to be quantified.

The statutory limit, in that case, wascharacterized as a matter of quantification of damages, not an issue relating to heads of damage. [23] While I am not bound by dicta from the Ontario Court of Appeal or the High Court of Australia, I find their logic compelling.In broad strokes the jurisdiction where the tort occurred determines whether damages are available and, if so, under what heads. This issubstantive. It is the definition of a right. The forum, on the other hand, determines how to assess the damages under the heads that areavailable. This is procedural.

It is the awarding, through calculation, of a remedy. conclusion [24] I am persuaded that the laws of the Province of Newfoundland and Labrador apply, without restriction, to the calculation of thegeneral, non-pecuniary damages in this matter. [25] In the result, the Application is dismissed with costs to the Respondents to be calculated under Column III of the

Schedule ofCosts. _____________________________ Vikas Khaladkar Justice