The Conflict of Laws and Judicial Perspectives on Federalism: A Principled Defence of Tolofson v. JensenJASON HERBERT
ABSTRACT
In a series of recent decisions, culminating in La Forest J.'s 1994 majority judgment in Tolofson v. Jensen, the Supreme Court of Canada has embarked upon a radically new, principled approach to interprovincial conflicts of laws, which is closely informed by structural imperatives of the Canadian federal system. In Tolofson, La Forest J. adopted as a categorical rule the lex locus delicti (law of the place of the tort) as the choice of law for torts, and rejected the availability of any flexible exception to that rule in interprovincial cases This article provides a critical response to the academic commentary on the Supreme Court's approach to interprovincial conflicts of laws, focusing on the generally unfavourable commentary on Tolofson and, in particular, on John Swan's comments on that decision. The author argues that the adjudication of interprovincial conflicts of laws cases involves courts in a unique role as horizontal umpires of the federal system, in contrast to the vertical umpire role of courts in constitutional division of powers cases. In exercising this horizontal umpire role, courts can legitimately rely on structural considerations related to the Canadian federal system, as the Supreme Court of Canada has done. Furthermore, this type of structural analysis may legitimately be informed by policy considerations arising from the relationship between Canadian federalism and core political values, such as the character of political communities, democracy, efficiency, and the protection of individual rights. The author argues that La Forest J.'s judgment in Tolofson represents a legitimate and principled exercise of the horizontal umpire role. The judgment is consistent with the Supreme Court's earlier decisions on interprovincial conflicts of laws and reflects a rich vision of Canadian federalism sensitive to the complex interplay of political values that define its structure.
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Citation: (1998) 56(1) U.T. Fac. L. Rev. 3.
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