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CONFLICTS BY LEGAL AREA - Law of the place of the tort - Exceptions

Wednesday, February 13, 2019 @ 8:47 AM  


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Appeal by the plaintiffs from the striking out of their proposed class action. Application by the Law Foundation of Ontario for leave to appeal the costs order of $2,335,602 made against the plaintiffs. The plaintiffs commenced their action in 2013, seeking damages for the individuals who were killed or injured in the collapse of a building in Bangladesh in 2013. The collapse killed 1,130 people and injured 2,520 others. Most of the killed and injured were factory workers who made garments for the respondent Loblaws. The respondent Bureau Veritas had conducted two limited audits of the premises for Loblaws. Loblaws had retained another inspection firm, which was scheduled to conduct its first audit on the day of the collapse. The motion judge found the injury occurred in Bangladesh. He determined the action was governed by the law of Bangladesh, relying on the lex loci delicti rule, and was statute-barred because it was commenced after the expiry of the applicable one-year limitation period under Bangladeshi law. In the alternative, he found the claims in negligence and vicarious liability did not disclose a reasonable cause of action under Bangladeshi law. The plaintiffs had obtained funding from the Class Proceedings Fund administered by the Law Foundation of Ontario, who was liable for the costs award.

HELD: Appeal dismissed; application for leave to appeal allowed. The motion judge properly applied the plain and obvious test, based on the pleaded facts he accepted as true. The motion judge did not misapply the lex loci delicti test in concluding that the place where the wrongful activity occurred was Bangladesh. He did not err in refusing to exercise his discretion to decline to apply Bangladeshi law under the injustice exception. Bangladeshi law applied to the claims. The motion judge did not err in his analysis of the applicable limitation period. The motion judge correctly dismissed the action. He made no error in concluding it was plain and obvious under Bangladeshi law that the negligence and vicarious liability claims had no reasonable prospect of success. The motion judge did not err in concluding the novelty of the issues did not mitigate the otherwise appropriate cost consequences. However, he took into account irrelevant factors in discounting the impact of public interest considerations on his costs assessment. To reflect the public interest component of the claim, the costs awarded were reduced by 30 per cent.

Das v. George Weston Ltd., [2018] O.J. No. 6742, Ontario Court of Appeal, D.H. Doherty and K.N. Feldman JJ.A. and D.K. Gray J. (ad hoc), December 20, 2018. Digest No. TLD-February112019006