Report No. 193
Canada: Tolofson v. Jensen, (1994) (3) SCR 1022
The Canadian Supreme Court did not wait for the change by the legislature and in the leading judgment, in Tolofson v. Jensen, 1994(3) SCR 1022, the Court made strides in the direction of treating the law of limitation of the foreign country as part of the substantive law thereby requiring the Court in which the action is filed to apply the law of limitation of the country of the cause.
La Forest J starts stating that the distinction between substantive and procedural laws no doubt remains in private international law. While 'The substantive rights of the parties may be governed by the foreign law but all matters appertaining to procedure are governed exclusively by the law of the forum'. The crucial question is how do we distinguish a substantive law from a procedural one. When does the question of inconvenience in applying the foreign law come in?
After referring to the historical origins of the rule in England from 1686 treating statutes of limitation as procedural and barring the remedy while keeping the right alive, La Forest J states that this is a 'mystified view'. The learned Judge states:
"Such reasoning mystified continental writers such as M. Jean Michel (La Prescription Liberatoire en Droit International Prive, Thesis, University of Paris, 1911, paraphrased in Ailes, (1933) 31 Mich L Rev 474 or 494) who contended that the 'distinction is a specious one, turning upon the language rather than upon the sense of limitation acts.' In the continental view, all statutes of limitation destroy substantive rights."
The learned Judge, while welcoming the continental approach stated that Canadian courts have begun to shatter the 'mystique' which rested upon the notion that statutes of limitation are directed against the remedy and not the right. He pointed out that the Privy Council in the judgment of Lord Brightman in Yew Bon Tew v. Kenderaan Bas Mara, 1983(1) AC 553 (PC) at 563 had, in fact, accepted that at the termination of the limitation period, the defendant acquires a vested right even though it arises under an act which is procedural but that the Privy Council "continued to cling to the old English view that statutes of limitation are procedural. Nonetheless, the case seems to me to demonstrate the lack of substance in the approach. The British Parliament obviously thought so. The following year, the rule was swept away by legislation: The Foreign Limitation Periods Act, 1984 (UK) c. 16, declared that foreign limitation periods are substantive."
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