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The law as enunciated in McLean v. Pettigrew has remained the basic rule in Canada ever since. However, its fundamental weaknesses began to be revealed in a series of Ontario cases beginning in the 1980s. The first requiring discussion is Going v. Reid Brothers Motor Sales Ltd. (1982), 35 O.R. (2d) 201 (H.C.). There the plaintiffs were seriously injured in a collision with the defendant's vehicle in Quebec owing to the negligence of the defendant. All the parties resided in Ontario. In an action in Ontario, Henry J. held that the plaintiffs were entitled to recover damages in accordance with Ontario law despite the fact that the no-fault scheme in Quebec, where the accident took place, extinguished any action in respect of bodily injuries arising out of the accident. Had there been no breach of Quebec law of any kind the action would not have been maintainable in Ontario; see Walpole v. Canadian Northern Railway Co., [1923] A.C. 113 (P.C.). However, in Going, the defendant had been in breach of the Quebec Highway Traffic Code, R.S.Q. 1977, c. C-24. Thus the action was not "justifiable" in Quebec so, following the rule in McLean v. Pettigrew, the plaintiffs could recover under Ontario law. Henry J. noted that the effect was that the defendants, who had no relationship with the plaintiffs apart from the accident, were deprived of the protection of the law accorded them in Quebec where the action occurred; moreover, he added, the rule encouraged forum shopping. Had either the British rule in Chaplin v. Boys, supra, or the American rule (which applied the proper law of the tort), been in effect, that would not have been the case. I note in passing that in this and the cases that followed, reference is made to rules in other countries, but in none of these cases was the rule approached on the basis of Canadian constitutional imperatives.
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