Usually, the law of a “foreign” jurisdiction (which, in this context, includes that of the other Canadian provinces) has to be proved at an Ontario trial through expert testimony. If the foreign law is not proved, the general rule is that the Ontario court will assume that that law is the same as its own.
In Turek v. Kaycan and Marcotte though, Mr. Justice Donald Ferguson short-circuited this process by granting summary judgment without hearing any oral testimony from experts. Instead, he considered two conflicting opinion letters from Quebec lawyers. He resolved the conflict by accepting one opinion over the other. What was even more adventurous was his finding, that he was entitled to consider directly the caselaw and statutes of the “foreign” jurisdiction (in this case, Quebec).
The plaintiff had sued in Ontario as a result of injuries suffered in Quebec, when he slipped and fell while unloading his transport truck. One defendant had pleaded that the action was barred by the Quebec Automobile Insurance Act. That defendant moved for summary judgment.
On the motion, Ferguson J. had been provided with two written opinions from Quebec counsel. He ruled that he was in as good a position to evaluate their opinions as a motions judge as he would have been had they given oral testimony at trial.
He went further and held that “where, as here, the expert opinions before the court are in conflict, I am entitled to directly consider the Quebec statute and caselaw”. In the end result, Justice Ferguson preferred the evidence of the defence expert over that of the plaintiff’s expert and dismissed the action. In doing so, he looked at the wording of the Quebec statute and considered a decision of the Quebec Court of Appeal.
Justice Ferguson’s willingness to embark upon an analysis of the statutory and jurisprudential law of a “foreign” jurisdiction was perhaps understandable in this case (even though the experts who practise before those courts could not agree on what the law was). This particular action happened to involve the law of a neighbouring province. In theory though, His Honour’s willingness to examine the foreign law directly could apply to any “foreign” law. It could lead to the very odd situation of two Ontario lawyers arguing before an Ontario judge about the U.S. Fifth Circuit Court of Appeals’ interpretation of the Louisiana statute, “Commercial Laws–Negotiable Instruments”.