In this recent case, the Court of Appeal for Ontario Applied the lex loci delicti principle as set down in the seminal Supreme Court of Canada Case of Tolofson v. Jensen  3 S.C.R. 1022.
Tragically in May 2007 twin-engine plane flying from Oshawa Ontario to Wilmington Delaware crashed in New York State due to engine failure. Two Pilots and one passenger were killed. The estates of the pilots brought an action in Ontario against several defendants, including the companies that inspected (ATC) and maintained (CAR) the aircraft and (CMI), the manufacturer of the engine. ATC and CAR asserted third party and cross-claims against CMI. After examinations for discovery were held, the defendant, CMI moved for summary judgment, relying on the United States federal statute known as the, General Aviation Revitalization Act of 1994 (“GARA”). Generally stated, GARA bars a civil action against any aircraft manufacturer for damages for deaths arising out of an accident involving an aircraft, where the action is brought more than 18 years after the date of delivery of the aircraft to its initial purchaser.
On summary judgment, CMI argued that the law of the U.S. applied as the aircraft crashed in the U.S. and the tortious activity in question occurred there. ATC and CAR argued that the “crux of their claims” against CMI involved allegations of negligent misrepresentation contained in repair instructions periodically published by CMI. All parties agreed that the lex loci delicti (the law to be applied in tors is the law of the place where the activity occurred) principle set down in Tolofson v. Jensen  3 S.C.R. 1022 governs the choice of law in tort. The motions judge agreed with ATC and CAR and dismissed the motion for summary judgment. CMI appealed to the Court of Appeal for Ontario.
On the appeal the key issue was whether the Law of the U.S. applied and had the effect of barring the claims against CMI or whether the law of Ontario applied. The Court of Appeal for Ontario upheld the motions judge’s decision indicating that there was no, “palpable and overriding error” in his characterization of the “crux of the claims..[being]…misrepresentation and the failure to warn…” Hence, the appeal panel held that, “Ontario Law applies to the negligent misrepresentation claims”. The court went on to indicate that: “…the record does not support CMI’s argument that GARA would bar the claims against it in the event New York law applied.” In coming to this conclusion, the Court quoted the United States Court of Appeals, Ninth Circuit, in Blazevska v. Raytheon Aircraft Co, 522 F.3d 948 (2008) at para 9.:
GARA only regulates the ability of a party to seek compensation from general aviation airplane manufacturers in American courts…Congress has no power to tell courts of foreign countries whether they could entertain a suit against an American defendant. It would be up to any foreign court to determine whether it wanted to apply GARA to litigation occurring within its borders.”
Jon-David Giacomelli is a founding partner in Cambridge LLP and the Chair of the Cross-Border and Business Litigation Groups. His practice encompasses a wide range of complex cross-border litigation and alternative dispute resolution, with an emphasis on private international law, conflict of laws, jurisdictional disputes, enforcement of foreign orders, shareholders rights and injunctive relief. Jon-David has represented clients from around the world and is recognized in Canada, the U.S. and abroad as a leading practitioner in the area of cross-border litigation and arbitration.
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