¹ The Convention is reprinted as Appendix A. On The Hague Conference in general, see Castel, , “Canada and the Hague Conference on Private International Law: 1893–1967,” (1967) 45 Can. Bar Rev. 1.Google Scholar

² Lord Wilberforce in Chaplin v. Boys, [1969] 2 All E.R. 1085, 1104D (H.L.). For the Q.B.D. reference see infra note 83, and for the C.A. reference see infra notes 17 and 83. The case is discussed by Graveson, “Towards a Modern Applicable Law in Tort,” (1969) 85 L.Q.R. 505 Google Scholar; by Pearl, , “Conflict of Laws — Tort — Still a ‘Troubled Area,’” (1969) 27 Cam. L. J. 201 CrossRefGoogle Scholar; and by Reese, , “Choice of Law in Tort Cases : Chaplin v. Boys ” (1970) 18 Am. J. Comp. L. 189 CrossRefGoogle Scholar. For recent developments of the law, see Castel, , Conflict of Laws 897 et seq. (2nd ed., 1968).Google Scholar

³ See, for example, A.-G. for Canada v. A.-G. for Ontario, [1937] A.C. 326 (P.C.), the labour conventions case. See also Castel, supra note 1, at 27. On federal uniform legislation, see Laskin, , Canadian Constitutional Law 438 (3rd ed., 1969).Google Scholar

⁴ See the following publications of the Uniformity Conference (hereafter referred to as Proceedings): 1966 Proceedings 25; 1967 Proceedings 247–49; 1968 Proceedings 61; and 1969 Proceedings 75.

⁵ 1969 Proceedings 54 and 78. At the 1970 meeting of the Uniformity Conference the writer submitted a draft Uniform Act — here reprinted as Appendix B — based on the Convention, together with a report : see 1970 Proceedings 215–63. The Conference recommended the draft for enactment by the provincial and territorial legislatures: ibid., 38, 40, 215 and 263.

⁶ (1870), L.R. 6 Q.B. I, 28–29, per Willes J.

⁷ [1897] 2 Q.B. 231 (C.A.).

⁸ [1945] S.C.R. 62 (from Que.).

⁹ Taschereau J. found, at page 79, that the act complained of was “ ‘wrongful’ dans Ontario, parce qu’il constitue une violation d’un statut provincial” and a quasi-delict in Quebec. In LaVan v. Danyluk (1970), 75 W.W.R. 500 (B.C.) general damages, reduced because of contributory negligence, were awarded, although under the lex loci such negligence constituted a complete bar to the action. For a criticism of McLean v. Pettigrew, see Read, , “What Should Be the Law in Canada Governing Conflict of Laws in Torts,” (1968) I Canadian Legal Studies 277Google Scholar. Crépeau in “De la responsabilité civile extracontractuelle en droit international privé Québécois,” (1961) 39 Can. Bar Rev. 3, 27, calls the decision in McLean v. Pettigrew and similar cases “une injustifiable pénétration d’une solution étrangère dans le système québécois de droit international privé.” He favours the application, in Quebec, of the lex loci basing this preference on the territorial principle that can be deduced from the provisions of Articles 6, 7 and 8 of the Civil Code. He bases, however, his preference of the lex loci also on Phillips v. Eyre, supra note 6, and so does, for the common law, Jaques, F. P., “Motor Accidents Abroad,” (1965–1966) 116 New L. J. 1381 Google Scholar. Canada has no monopoly to inappropriate classifications. See, for example, Dayant who, in a note in (1970) 97 Journal du droit international 96, complains, with respect to the decision in Haguet v. Delassausse (1968), Tribunal de grande instance de Diñan, that “[l]e domaine de la loi du for se trouve enfin élargi par le jeu d’une qualification tendancieuse, qui permet au juge de faire prédominer les principes de son droit interne.”

¹⁰ (1963), 12 N.Y. 2d 473 (Fuld J.). A gratuitous passenger who was injured in Ontario was awarded damages according to New York law on the ground that the accident solely affected New York residents, arose out of the operation of a New York based car, concerned a guest-host relationship created in New York, and happened on a trip that started and was to end in New York.

¹¹ Phillips v. Eyre, supra note 6.

¹² Machado v. Fontes, supra note 7.

¹³ Supra note 8.

¹⁴ Supra note 10.

¹⁵ This is illustrated by the United States case of Walton v. Arabian American Oil Co., 233 F. 2d 541 (1956, U.S. Court of Appeals, Second Circuit), where, in accordance with the lex fori, the court required the plaintiff to prove the laws of Saudi Arabia, that is, the lex loci, although all parties involved were United States citizens and the court (at page 545) conceded that, had the plaintiff proved that the tort “was committed in an uncivilized country … the New York Courts would apply … the substantive ‘law’ of the country which [was] most closely connected with the parties and their conduct … in this case American ‘law’.” For a criticism of this case, see Kahn-Freund, in Dicey, & Morris, , The Conflict of Laws 918 (8th Ed., 1967).Google Scholar

¹⁶ Ehrenzweig, , Conflict of Laws 580 (St. Paul, Minn., 1962).Google Scholar

¹⁷ The dilemma has been aptly expressed by Diplock L. J. in Boys v. Chaplin, [1968] 1 All E.R. 283, 302E (C.A.) : Lex propria delicti, lex fori, lex loci delicti; quot indices tot sententiae. For a criticism of the proper law of the tort, see Beitzke, , “Die 11. Haager Konferenz und das Kollisionsrecht der Strassenverkehrsunfälle”, (1969) 33 RabelsZ 204, 221Google Scholar: “[W]as nach den Umständen des Einzelfalls die geeignetste Rechtsordnung ist, kann in den verschiedenen Staaten und von verschiedenen Gerichten völlig unterschiedlich beurteilt werden.” And again, footnote 52: “[D]ie Verweisung auf ‘the proper law of the tort’ [ist] ein schädlicher Verzicht auf eine Regel. …” (Different courts in different countries may be at great variance in determining the most appropriate law in a given case. The reference to what is called the proper law of the tort amounts to a harmful renunciation of a consistent rule.)

¹⁸ Pearl, supra note 2, at 204. The reference is to Chaplin v. Boys, supra note 2. I agree with Reese, supra note 2, at 193, that the case “raises more questions than it decides.”

¹⁹ Article 4, paragraph (a), last clause. The application of one law facilitates claims for contribution among joint tortfeasors. On the other hand, the requirement of applying, in the case of a plurality of victims, different laws to the same factual circumstances has provoked criticism: Beitzke, supra note 17, at 224.

²⁰ Cp. note by Lépine in (1969) 47 Can. Bar Rev. 509, 524.

²¹ Infra 195.

²² Batiffol, , “La onzième session de la Conférence de la Haye de droit international privé,” (1969) 58 Revue critique de droit international privé; 215, 227.Google Scholar

²³ Rapport explicatif de M. Eric W. Essén (Rapport Essén) 202 [10], préambule, No. 1 Hague 1970; Loussouarn, , “La Convention de la Haye sur la loi applicable en matière d’accidents de la circulation routière,” (1969) 96 Journal du droit international 5 Google Scholar. Certainty of the law is of particular importance to parties who wish to settle out of court: Batiffol, supra note 22, at 231; Newman, , “The Law Applicable to Traffic Accidents,” (1969) 18 Int’l & Comp. L. 643, 644Google Scholar; Beitzke, supra note 17, at 209, 210, 219; Castel, and Crépeau, , “International Developments in Choice of Law Governing Torts: Views from Canada,” (1971) 19 Am. J. Comp. L. 17, 25.CrossRefGoogle Scholar

²⁴ Article 11, Beitzke, supra note 17, at 211.

²³ Nowhere in Canada may an aggrieved party join criminal proceedings as partie civile for the purpose of enforcing a claim for damages. Cf. also Beitzke, supra note 17, at 215.

²⁶ Batiffol, supra note 22, at 231.

²⁷ The recent refusal, by a French court, to apply foreign conflict rules attracted criticism: Dayant, supra note 9, at 723.

²⁸ Rapport Essén 208 [16], No. 9.2.1. For the wording of the French text here referred to, see infra note 37.

²⁹ Rapport Essén 206 [14], No. 6, maintains that “[l]e problème de conflits de lois dans le temps n’a pas été résolu dans la convention”. This is not quite accurate: see text preceding note 28. If we assume that Phillips v. Eyre, supra note 6, is still good law, the law to be applied under the Convention need not necessarily be the law in force at the time of the accident. In that case the acts complained of were made lawful by retrospective legislation.

³⁰ As to the propriety of such reference, see, for example, 1 Oppenheim, , International Law 957 (8th ed. Lauterpacht, , 1955)Google Scholar.

³¹ See, for example, Gosselin v. The King (1902–3), 33 S.C.R. 255, 264.

³² On the interpretation of a statute that implements an international treaty, see Johnson J. A. in Regina v. Sikyea (1964), 43 D.L.R. (2d) 150, 162 N.W.T. C.A.). If the bare text of the Convention were made part of the municipal law, the preparatory material would be excluded from consideration by the courts, and thus the acceptance of the Convention would remain incomplete.

³³ See, for example, infra note 84 and the text preceding it.

³⁴ In Article 1. See infra note 38.

³⁵ In Article 2. For example, Morin v. Canadian Home Assurance Co., [1970] S.C.R. 561 (from Que.), was an appeal arising from an “action récursoire.”

³⁶ In Articles 2 and 8. See infra note 61.

³⁷ For example, in Article 4 where reference is made to liability towards “une victime qui était passager, si elle avait sa résidence habituelle dans un État, autre que celui sur le territoire duquel l’accident est survenu.” The English version uses the present tense: see supra 194. While, in Article 5, the expression “goods” would appear to be more accurate than “biens,” I disagree with Lépine who holds that this could cause misunderstanding: supra note 20, at 524. See infra note 77.

³⁸ The French version of Article 1 speaks of “responsabilité civile extracontractuelle.” While this wording is appropriate for the civil law, it is submitted that for the common law provinces a reference to tortious liability would be more appropriate following Winfield on Tort 2 (8th ed., 1967), where this liability is defined as follows: “Tortious liability arises from the breach of a duty primarily fixed by the law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.” See also Clerk & Lindsell on Torts 1 (13th ed., 1969).

³⁹ Model Acts recommended from 1918 to 1961 inclusive, 275.

⁴⁰ I am inclined to agree with Beitzke, supra note 17, at 216, that the Convention applies to a collision of a car with a railway on a level crossing. I disagree, however, with his suggestion (ibid.), adopted from Rapport Essén 204 [12], No. 3.4, that a riding horse be included in the definition of a vehicle. The Shorter Oxford English Dictionary contains this definition of a vehicle : “A means of conveyance provided with wheels or runners …,” and Le Petit Robert: “Moyen de transport terrestre, le plus souvent autonome et muni de roues.”

⁴¹ 1967 Proceedings 113: “’highway” means any place or way, including any structure forming part thereof, which the public is ordinarily entitled or permitted to use for the passage of vehicles, with or without fee or charge therefor, and includes all the space between the boundary lines of any right-of-way or land taken, acquired or used therefor, but does not include

• (i)

  (i) a privately owned area designed and intended and primarily used for the parking of vehicles and the necessary passage ways thereon, or

• (ii)

  (ii) a publicly owned area designed and intended to be used exclusively for the parking of vehicles and the necessary passage ways thereon.”

⁴² The place of the accident in Gill v. Etwood, [1969] 2 O.R. 49, [1970] 2 O.R. 59, (Ont. CA.) and in Brinton v. Sienïewicz (1970), 7 D.L.R. (3d) 545 (N.S.).

⁴³ If in a case like Gill v. Elwood, supra note 42, a foreign element were present, primary classification should require the inclusion, in the definition of a “public highway,” of a shopping centre so that, on secondary classification, the application of the Highway Traffic Act, R.S.O. 1970, c. 202, and similar statutes, for example, the Motor Vehicle Act, R.S.N.S. 1967, c. 191, is excluded. It is thus conceivable that the primary classification of the place of the accident will differ from the secondary classification. Such apparent anomaly is not unknown in the conflict of laws. See, for example, Re Berchtold, [1923] 1 Ch. 192, where an English freehold held on trust for sale was first classified as an immovable but, on secondary classification, held to be personal estate.

⁴⁴ See text to fns. 48 and 55.

⁴⁵ It follows from Article 12 of the Convention that the reference to a “state” includes a reference to a Canadian province or territory and a state of the Union.

⁴⁶ See infra 200–03.

⁴⁷ Article 15 of the Convention, Beitzke, supra note 17, at 214.

⁴⁸ See, for example, the remark in Procès-verbaux, session of Oct. 23, 1968: [L]e juge tiendre compte … des règles en vigeur de son propre pays, même si la Convention ne le dit pas.” A failure to appreciate this may lead to wrong conclusions. See, for example, the criticism of Lépine, supra note 20, at 522, to the effect that the application of the Convention involves a vicious circle. He says that the applicable law determines who is a victim but in order to find that law one has to refer to the victim’s habitual residence, and this residence cannot be determined before one knows who the victim is. I would answer this criticism by saying that primary classification requires the application of the lex fori.

⁴⁹ Essén, Preliminary document No. 4, at 8, and Beitzke, supra note 17, at 216–17, would exclude from the application of the Convention damage caused by vandals to a stationary car. Beitzke would include injury to a pedestrian caused by his tripping, in darkness, against an unlawfully parked vehicle.

⁵⁰ Gilbert v. Upshall (1970), 12 D.L.R. (3d) 187 (Nfld.): passenger paying regularly, but without being requested to do so, $1 per trip, held not to be a guest without payment. Nichiporik v. Kostiuk (1970), 75 W.W.R. 131 (Alta.): passenger voluntarily and on his own insistence paying $5 for gasoline, held to be a guest without payment.

⁵¹ See, for example, Exchequer Court Act, R.S.C. 1952, c. 98, s. 50, Federal Court Act, S.C. 1970, c. 1, s. 37. On the action per quod, see The Queen v. Murray, [1967] S.C.R. 262, 265; The Queen v. Sylvain, [1965] S.C.R. 164, 173–74; and Schwartz v. Hotel Corp. of America (Manitoba) Ltd. (1970), 75 W.W.R. 664 (Man.). For actions against a master, see infra note 61.

⁵² Loussouarn, supra note 23, at 11.

⁵³ Cf. Beitzke, supra note 17, at 210.

⁵⁴ See Article 10 of the Convention, infra 205–06.

⁵⁵ Key v. Key, [1930] 3 D.L.R. 327 (Ont. CA.), headnote. For an application of this principle, see Young v. Industrial Chemicals Co. Ltd., [1939] 4 D.L.R. 392, 395 (B.C.), Gronlund v. Hansen (1969), 4 D.L.R. (3d) 435, 443 (B.C. CA.) and McCully v. Barbour (1971), 14 D.L.R. (3d) 216 (N.B. CA.). See, however, in this connection, Walton v. Arabian American Oil Co., supra note 15, where the plaintiff’s claim was dismissed because he had failed to provide, as one of the elements of his case, proof of the lex loci.

⁵⁶ Judicature Act, R.S.A. 1955, c. 164, clause 32(s). As to the burden of proving a foreign law, see also the Walton case, supra note 15.

⁵⁷ [1932] A.C. 562, All E.R. Rep. 1 (H.L.).

⁵⁸ For example, Phillips v. Ford Motor Co. of Canada, [1970] 2 O.R. 714, reversed on the facts in [1971] 2 O.R. 637 (CA.).

⁵⁹ For example, Vinnal v. The Queen, [1970] S.C.R. 50a (from Ont.).

⁶⁰ In the light of article 1054 of the Quebec Civil Code (Code Napoléon, article 1384), this excludes the liability of tutors, schoolmasters, curators, and craftsmen for the acts of pupils, of insane persons and of workmen.

⁶¹ The French text speaks of “commettant” only, but the English text of “principal and … master.” If Article 1054 of the Civil Code (C.N. 1384) is any guide, it would appear that the liability referred to in Article 2, No. 3, and in Article 8, No. 7, of the Convention, is the liability of a master for the acts of his servant done in the course of his duties and the liability of a principal for the acts of his agent that were expressly or by implication authorized by the principal: see Rapport Essen 214 [22], No. 10.2. See also Quarman v. Burnett (1840), 6 M. & W. 499, [1835–43] All E.R. Rep. 350 (Ct. of Ex.) and T. G. Bright Co. Ltd. v. Kerr, [1939] S.C.R. 63 (from Ont.). It would follow that a defendant is not liable where the tortfeasor is not his servant but the servant of his contractor.

⁶² Cf. Black v. Hunter, [1925] 4 D.L.R. 285, 287–88 (Sask. C.A.), and Paterson v. Hardy (1968), 62 W.W.R. 219, 226 (Sask.). On the distinction between the liability of a child and that of his parent, see Causey v. McCarron (1968), 63 W.W.R. 680 (B.C. C.A.).

⁶³ In British Columbia, for instance, a person who has obtained a final judgment in a traffic accident case may, under section 105 of the Motor-vehicle Act, R.S.B.C. 1960, c. 253, apply to the Traffic Victims Indemnity Fund, created by S.B.C. 1961, c. 63, for the payment of certain sums of money. If these sums do not exceed the statutory limits and the claim was adjudicated under a law other than the lex loci, the Fund may not refuse payment on the ground that the lex loci would have permitted only a smaller sum or nothing at all. Thus, the Convention may influence the award notwithstanding Article 2, No. 5 thereof, and section 105 of the Motor-vehicle Act. The Act requires that a claim be based on a judgment by a court within the province for a traffic accident that has occurred therein.

⁶⁴ Crépeau, supra note 9; Loussouarn, supra note 23, at 7, note 3; cf. Rapport Essén 205 [13], No. 2. See Castel and Crépeau, supra note 23, at n. 46, 36–38.

⁶⁵ For example, in McLean v. Pettigrew, supra note 8.

⁶⁶ Supra 190.

⁶⁷ Crépeau, supra note 9, at 25. This would support the view that a split in the classification of the connecting factor is indicated in very exceptional cases only as, for example, in Haarbleicher v. Baerselman (1914); 137 L.T.J. 564. See Fischer, , “The Law Concerning Capacity with regard to Bills of Exchange,” (1951) 14 Mod. L. Rev. 144, 149–50CrossRefGoogle Scholar, referred to by Kahn-Freund, supra note 15, at 822, footnote 45.

⁶⁸ For example, a condominium of Belgium and Luxemburg: Rapport Essén 206 [14], No. 7.

⁶⁹ Loussouarn, supra note 23, at 15.

⁷⁰ The rules of the road are factual “data,” not “rules of decision.” See Kahn-Freund, supra note 15, at 928–29. A failure to appreciate this may lead to misunderstanding. See, for example, Amram, , “Report on the Eleventh Session of the Hague Conference on Private International Law,” (1969) 63 Am. J. Int’l L. 521, 525,CrossRefGoogle Scholar who asks how liability can be determined under the law of the state of registration if the Convention requires that the rules of the road of the lex loci are to be taken into account. It is submitted that the expression “rules relating to the control and safety of traffic” used in the Convention is to be taken in a narrow sense. It indicates such matters as local speed limits, keeping to the right and so on and is not intended to be understood in the broader sense given it, for example, in Babcock v. Jackson, supra note 10, at 483, where Fuld J. refers to the provisions of the Ontario Highway Traffic Act, and in particular those relating to gratuitous passengers invoked by the defendants, as “a rule of the road prescribed by Ontario for motorists generally.”

⁷¹ Loussouarn, supra note 23, at 19, Batiffol, supra note 22, at 234, Beitzke, supra note 17, at 231–32.

⁷² The application of the law of the state of registration has been criticized by Lépine, supra note 20, at 517, on the ground that the tortfeasor may be exposed to a law “qui est sans rapport réel avec sa situation personelle.” His example of a jay walker resident in Ontario who causes a Quebec registered car to swerve into a pole in Ottawa does not appear to illustrate an anomaly. In the circumstances described the combined effect of Article 3 and of paragraphs (a) and (c) of Article 4 is that the question of the liability of the Ontario pedestrian will be governed by Ontario law, a result that cannot be called anomalous.

⁷³ The Rapport Essén 208 [16], No. 7.5, speaks of “les coupables possibles” without suggesting how to overcome the above mentioned difficulties. See also Beitzke, supra note 17, at 228.

⁷⁴ Contrary to Lépine, supra note 20, at 524–25, I submit that liability for damage to a vehicle is not regulated by Article 5.

⁷⁵ Procès-verbal No. 5, page 11, Oct. 15, 1968. This reasoning appears to be more convincing than Lépine’s who maintains that “[o]n considère alors le véhicule comme une extension du territoire de l’État où il est immatriculé,” and again, “il est logique de considérer le véhicule … comme une ‘parcelle’ ou une extension du territoire de l’État d’immatriculation du véhicule…”: see supra note 20, at 517 and 519 respectively. If, as it was held in Chung Chi Cheung v. R., [1938] 4 All E.R. 786, 789 (P.C. from Hong Kong), a warship is not to be considered a floating part of the flag state, still less, it is submitted, can a private car be considered to be a rolling particle of the state wherein the car is registered.

⁷⁶ Rapport Essén 211 [19], Article 6, Nos. 3 and 4, suggests that the lex loci be applied where it would be difficult to establish where the vehicle is habitually stationed, for example, in the case of an American tourist who buys a car in Europe with the intention of reselling it prior to his return to the United States or in the case of a Swedish resident who purchases a car in Germany for use in Sweden and who, on the way home, is involved in an accident.

⁷⁷ While I agree with Lépine, supra note 20, at 523–24, that the wording of Article 5 does not make it abundantly clear that all chattels damaged in consequence of a traffic accident (but excluding vehicles — see supra note 74) are contemplated, I disagree with his suggestion that the repeated reference to “biens transportés dans [ou par] le véhicule” could include immovables in addition to movables.

⁷⁸ Article 5, paragraph 1.

⁷⁹ Article 5, paragraph 2.

⁸⁰ Article 5, paragraph 3.

⁸¹ Beitzke, supra note 17, at 217.

⁸² Article 8 : “The applicable law shall determine, in particular.…”

⁸³ See, for example, Boys v. Chaplin, [1967] 2 All E.R. 665, [1968] 1 All E.R. 283 (C.A.), [1969] 2 All E.R. 1085 (H.L.), where general damages under the lex fori in the sum of £2,250 were awarded in addition to the special damages permitted by the lex loci.

⁸⁴ In Aliarà v. Charbonneau, [1953] 2 D.L.R. 442 (Ont. C.A.) the accident occurred in Quebec where the prescription period was two years. In Ontario the limitation period was one year. Action was brought more than one year but less than two years after the date of the accident. The court treated the question of limitation as procedural, applied therefore the lex fori and dismissed the action. The Convention follows the civil law. See, for example, Catellier v. Bélanger, [1924] S.C.R. 436, 440, where Mignault J. held that the “prescription est une véritable déchéance et la loi déniant l’action, les tribunaux peuvent, et j’ajoute doivent, suppléer d’office le moyen résultant de la prescription” (italics added). On the question when an “action récursoire” is outlawed, see Morin v. Canadian Home Assurance Co., supra note 35.

⁸⁵ Article 10.

⁸⁶ Castel, supra note 2, at 183.

⁸⁷ Walton v. Arabian American Oil Co., supra note 15.

⁸⁸ Lord Denning in Boys v. Chaplin, supra notes 2, 17 and 83, [1968] 1 All E.R. 283, 289G.