Hofstra Law Review


Hans W. Baade


Americans are known to be rather uninterested in things Canadian. To take but one example: None of my 150 students in Conflicts last semester could identify Sir John A. MacDonald, Canada's George Washington and architect of the British North America Act. Some connected him with a well-known hamburger chain; others prudently assumed that he was a British (in distressingly many cases: an English) authority on the conflict of laws; and one student with nary a thought to what went on at Glencoe, committed the ultimate sin of linking him to Campbell's Soups. Yet there was at least one near miss: the student who thought that Sir John A. was the "Prime Minister (sic) of Ontario who wrote that province's guest statute." The reference is, of course, to what is now § 132(3) of the Ontario Highway Traffic Act. It should not really come as a surprise that this statute is the best-known Canadian statute south of the borderbetter known even than the B.N.A. Act. Nor, indeed, should we be too astonished to see Sir John take second place to Mr. Hepburn under whose premiership the Ontario guest statute was passed, for ever since Professor Linden's famous indiscretion, it has been fashionable to see a personal link between the Premier and the statute. And the Ontario guest statute is, of course, the most frequently litigated piece of Canadian legislation in the United States. It has been judicially considered no less than three times by the New York Court of Appeals and once by the Supreme Court of Michigan. In addition to these four decisions of courts of last resort, there have been a number of published decisions of intermediate appellate courts; virtually all of these decisions have given rise to extensive academic comment. It is probably no exaggeration to say that for some time after Babcock v. Jackson broke the ice in 1963, the Ontario guest statute was litigated more frequently in the United States than in Canada. Be that as it may: there can be little doubt that the legislative policy behind this Canadian statute and its scope for conflict-of-laws purposes have been discussed more widely, both judicially and by commentators, in the United States than in Canada.

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