March 10, 2016 by Canadian Underwriter
Canada’s highest court announced Thursday it will not hear an appeal from an Ontario woman injured in a motorcycle accident in British Columbia who unsuccessfully sought to sue the driver in an Ontario court.
So a unanimous finding – that an Ontario court does not have jurisdiction in a tort action against the motorcycle operator – stands. That ruling – which does not apply to the accident victim’s lawsuit against her Ontario auto insurer – was released Nov. 24, 2015 by a five-judge panel of the Court of Appeal for Ontario.
In August, 2012, Rennie Forsythe was a passenger on a motorcycle – driven by Alberta resident Michael Westfall – near Vernon, B.C.
Westfall “says that an unidentified approaching vehicle crossed into his lane of traffic,” Mr. Justice Paul Perell of the Ontario Superior Court of Justice wrote in a ruling released Feb. 2, 2015. “There was no contact between the vehicles, but Mr. Westfall lost control of his motorcycle, and there was an accident.”
Forsythe “suffered a severe concussion and brain injury, as well as injuries to her back, head, left shoulder, left elbow and left bicep,” wrote Madam Justice Jean MacFarland of the Court of Appeal for Ontario.
Forsythe was seeking to sue Westfall and is separately pursuing a lawsuit against her own Ontario auto insurer (AXA, now owned by Intact), seeking coverage under her family protection endorsement. The family protection endorsement provides coverage in cases where at-fault parties are unidentified, uninsured or underinsured.
Forsthye’s “lawyers believe that her tort claim for damages exceeds $200,000,” Justice Perell wrote. “She has been receiving no-fault statutory benefits for her injuries in Ontario.”
Westfall argued that the tort claim against him ought to be tried in B.C. and not Ontario, on the grounds that an Ontario court would lack jurisdiction. Justice Perell agreed and his ruling was upheld on appeal.
Forsythe applied last November to appeal to the Supreme Court of Canada, which announced March 10, 2016 that it was dismissing her leave application, with costs to Westfall.
If Westfall is “not liable and the unidentified driver was the cause of the accident, then the coverage for the unidentified driver would be found in Ms. Forsythe’s policy with Intact” under her OPCF 44R Family Protection Change Form, Justice Perell indicated.
“If Mr. Westfall is culpable to any degree, then he is a liable and an insured driver and there would be no need for uninsured motorist coverage for Ms. Forsythe, but she might need underinsured coverage if his liability limits were insufficient to compensate her for her injuries,” Justice Perell added. “Conversely, if Mr. Westfall is blameless and the unidentified driver culpable to any degree, then Ms. Forsythe would need and have coverage under her uninsured motorist coverage.”
In arguing that an Ontario court should have jurisdiction, Forsythe contended that the Court of Appeal for Ontario should overrule a previous ruling, by the same court, cited as Tamminga vs. Tamminga.
Karen Tamminga, an Ontario resident, had been injured in Alberta while riding in a truck operated by a relative, William Tamminga. Karen Tamminga filed a lawsuit in Ontario against William Tamminga and his company, Tamminga Farms Inc. She also filed a lawsuit against State Farm, her Ontario auto insurer. In a ruling released in July, 2013, the Ontario Superior Court of Justice stayed the proceeding against William Tamminga and Tamminga Farms. That ruling was upheld by the Court of Appeal for Ontario in a decision released in June, 2014.
Related: For Want of Jurisdiction
“Under the established case law, the circumstance that a plaintiff may have an insurance claim associated with a tort claim with which Ontario has no jurisdiction simpliciter does not establish a real and substantial connection between the matter, the parties, and Ontario; there is no jurisdiction simpliciter,” Justice Perell wrote in 2013 in his ruling against Forsythe. “In my opinion, the forum of necessity doctrine also does not apply in these circumstances.”
Another case cited by Justice Perell was a Supreme Court of Canada decision, released April 18, 2012, against Club Resorts Ltd. That decision, cited as Club Resorts vs. Van Breda, was on appeals of two separate lawsuits filed in Ontario against Club Resorts.
In 2003, Morgan Van Breda went on a trip to Cuba with her husband and suffered catastrophic injuries after exercising on a metal structure on a beach, which collapsed. Van Breda became paraplegic. She and her family filed a lawsuit in Ontario against Club Resorts and other defendants.
Club Resorts was also sued in Ontario by the estate and family of Dr. Claude Charron, who drowned while scuba diving in Cuba in February, 2002. The hotel at which Dr. Charron stayed was managed by Club Resorts.
The Court of Appeal for Ontario ruled that the Ontario Superior Court of Justice had jurisdiction to hear both Van Breda’s lawsuit and Charron’s lawsuit against Club Resorts. The Supreme Court of Canada agreed.
Findings of fact by a lower court led “to the conclusion that Club Resorts was carrying on business in Ontario,” Mr. Justice Louis Lebel of the Supreme Court of Canada wrote in 2012.
“In Van Breda, in the context of tort claims, the [Supreme Court of Canada] identified four presumptive factors that would establish a real and substantial connection and jurisdiction simpliciter,” Justice Perell wrote in Forsythe.
Those factors are:
•the defendant is domiciled or resident in the province;
•the defendant carries on business in the province
•the tort was committed in the province; and
•a contract connected with the dispute was made in the province.
The contract between Forsythe and Intact “has nothing to do with Westfall nor with the accident,” Justice MacFarland wrote on behalf of the Court of Appeal for Ontario. “Westfall is not a party to the contract. The contract did not cause or increase the likelihood of the accident. The specific accident was never contemplated by the parties when the contract was entered into.”
Concurring were Madam Justice Eileen Gillese, Mr. Justice Robert Blair, Madam Justice Sarah Pepall and Madam Justice Mary Lou Benotto.
Forsythe and the Ontario Trial Lawyers Association – which had intervener status in her appeal – “argue that if the appellant cannot meet any of the four presumptive connecting factors set out in Van Breda, this court should recognize a new presumptive connecting factor,” Justice MacFarland wrote. “They say this factor should be based on the appellant’s insurance contract, the regulatory requirement, the fact that she resides in Ontario, that she sustained damages in Ontario, and that she is required to bring suit in two jurisdictions, which may give rise to inconsistent verdicts. They submit that recognizing a new presumptive connecting factor in the circumstances would be consistent with the values of order, fairness, efficiency, and comity.”
But those factors do not establish jurisdiction in Ontario, Justice MacFarland wrote.
To establish that an Ontario court would be a “forum of necessity,” a plaintiff “must establish that there is no other forum in which he or she reasonably could obtain access to justice,” Justice Perell wrote.
However, Forsythe “remains free to sue in Ontario to enforce her claim against Intact after, or even before, she obtains access to justice for her claim against Mr. Westfall in British Columbia,” Justice Perell added. “It may be inconvenient that she is denied one-stop access to justice, but there is no room here for the forum of necessity doctrine.”