Ramona and Andrew Roy (the plaintiffs) sought a declaration that the applicable law governing their personal injury claim relating to a cruise was that of Ontario. North American Leisure Group Inc and Airtours Plc (the defendants) argued that the applicable law was English or, in the alternative, Bahamanian law.

The choice of law was significant. If the applicable law were found to be that of England, a two-year limitation period would apply due to the incorporation of the Athens Convention 1974. Similarly if the law of Bahamas applied a two-year limitation period would apply pursuant to the Athens Convention 1974 to which the Bahamas is a signatory. If the law of Ontario applied, the action would not be barred because the two-year limitation period would not apply.

The defendants argued that the contract signed by the plaintiffs expressly provided that English law applies. The plaintiffs argued that the provisions were not drawn to their attention, nor were they advised of the details of the terms and conditions of the ticket or given any reasonable explanation about the choice of law clause.

The defendants also argued that the Athens Convention 1974 has been part of Canadian law since 2001 so that the limitation period should apply in any event. It is not obvious to a layperson entering into a contract in Canada that the laws of Canada were to have no connection to the contract.

Held: Motion granted.

Ontario law applies. It is clear that Ontario has the most real and substantial connection in this case. The action commenced in 2000 before the Athens Convention 1974 became part of Canadian law. The application of the Athens Convention 1974 is irrelevant.

The plaintiffs have demonstrated sufficient injustice to warrant an exception to the lex loci delicti rule. They would be denied a remedy if the law of England or Bahamas applies to the action.

[For the successful appeal to the Ontario Court of Appeal, see Roy v North American Leisure Group (2004) CanLII 43078 (On CA) (CMI1023).]