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Constitution (Non-Charter) - Comity. Irving Consumer Products Limited v. Singh
In Irving Consumer Products Limited v. Singh (Ont Divisional Ct, 2024) the Ontario Court of Appeal allowed a JR, this from a WSIAT decision and associated reconsideration that a respondent could sue a corporation and it's employee under WSIA s.28 ['Certain rights of action extinguished'] "for compensation for injuries suffered by Mr. Singh in the course of his employment".
Here the court considers 'comity' as an aspect of the multi-provincial Canadian workers' compensation regime:[82] Justice Whitten then turned to the law of “comity” involving, broadly speaking, the recognition of one state for the acts of another. He quoted from the decision of LaForest J. in Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (SCC):[33] Justice La Forest wrote [at para. 31] that part of this recognition is based on the idea of "comity" and quoted the United States Supreme Court in Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139 (1895), at pp. 163-64 U.S.:Comity in the legal sense is neither a matter of absolute obligation on the one hand, nor of mere courtesy and goodwill, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation having due regard both to international law and convenience, and to the rights of its own citizens or other persons who are within the protection of its laws. (Emphasis added)
[34] Justice La Forest believed that "[t]he considerations underlying the rules of comity apply with much greater force between the units of a federal state, and I do not think it much matters whether one calls these rules of comity or simply relies directly on the reasons of justice, necessity and convenience . . . " (ref. ibid., at paras. 35 and 36).
[35] In La Forest J.'s view, "[i]t seems anarchic and unfair that a person should be able to avoid legal obligations arising in one province simply by moving to another province" (ref. ibid., at para. 41).
4) The provincial superior courts
[36] Justice La Forest in Morguard described the Canadian federal court scene in the following [at para. 37]:The Canadian judicial structure is so arranged that any concerns about differential quality of justice among the provinces can have no real foundation. All superior court judges -- who also have superintending control over other provincial courts and tribunals -- are appointed and paid by the federal authorities . . . all are subject to final review by the Supreme Court of Canada, which can determine when the courts of one province have appropriately [page115] exercised jurisdiction in an action and the circumstances under which the courts of another province should recognize such judgments. [83] Justice Whitten drew on the importance of the trade-off that underlies workers’ compensation schemes in the context of the Canadian federal system to conclude as follows:[78] The provision of WCB insurance is country wide. Each plan incorporates a provision that reflects the historical tradeoff, or compromise as Sopinka J. described in Pasiechnyk reiterated by Lebel and Karakatsanis JJ. in Marine Services International Ltd.
[79] As was noted in Morguard Investments Ltd. v. De Savoye, La Forest J. indicates that rules of comity are even more applicable amongst units of a foreign state. In fact, the underlying focus for comity relies on reasons of justice, necessity and convenience.
[80] The existence of such plans across the country exist for the protection of workers and facilitate access to a ready source of monthly benefits in contrast to the ponderous obtaining of same pursuant to a tort action. Additionally, employers possess a similar [page121] certainty of exposure by contributing to such plans. For the employers, it is analogous to the purchase of a form of insurance.
[81] As La Forest J. observed in Morguard [at para. 41], it would "seem[page122] anarchic and unfair that a person should be able to avoid legal obligations arising in one province by simply moving to another province".
[82] The existence of principles of comity and the existence of the IJA, compelled Freeman J. in Spencer v. Mansour to find that a tort action by an employee was barred by the intent of Nova Scotian statute. This court is inclined to follow the precedent established by Freeman J. by the Nova Scotia Court of Appeal. To hold otherwise would threaten the fabric of WCB regimes across the country. There is no good reason to establish a tort haven amongst provinces that would encourage the circumventing of the statute and the historical tradeoff by simply moving to a different province.
[83] Therefore, by applying principles of comity and for reasons of justice, necessity and convenience this court finds that the plaintiff is statue-barred with respect to his tort action in this province.
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