On August 11, 2012, Mr. Westfall was driving his motorcycle near the City of Vernon, British Columbia. Ms. Forsythe was a passenger. They were on a road trip to visit the hot springs. Suddenly, Westfall lost control of his motorcycle and there was an accident allegedly caused by an unidentified driver. Forsythe suffered a severe concussion and brain injury, as well as injuries to her back, head, left shoulder, left elbow and left bicep. Here is where things get interesting. Neither Forsythe nor Westfall had any connection to the jurisdiction where the tort had occurred, British Columbia.
Forsythe was an Ontario resident; Westfall, an Alberta resident. Forsythe was treated for injuries initially in British Columbia and Alberta and subsequently in her home province of Ontario. So, where did Forsythe start her action? Forsythe started her action in Ontario against the driver, Westfall, his Alberta-based insurer, the unidentified driver (“John Doe”), and her own Ontario-based insurer because if the unidentified driver was entirely at fault she could have coverage under her own policy. Not surprisingly, Westfall moved to have the action against him stayed on the basis that the Ontario court lacked jurisdiction over him. But, isn’t the absence of any connection of the parties to British Columbia or Forsythe’s action against her Ontario-based insurer enough to give Ontario courts’ jurisdiction over her entire action? The Court of Appeal in their recently released decision, Forsythe v. Westfall 2015 ONSC 758 did not seem to think so. The Court of Appeal rejected the appellant’s argument that Ontario had jurisdiction simpliciter or that it was the forum of necessity.
The appellant argued that her Ontario automobile insurance policy required that an Ontario court determine issues of liability and damages under section 4(1) of Regulation 676 – Uninsured Automobile Coverage and, therefore, the policy was a presumptive connecting factor (e.g. a contract connected with the dispute made in the province) that satisfied the real and substantial connection test laid out in Van Breda v. Village Resorts Ltd.,  O.J. No. 402. Therefore, the court must assume jurisdiction over all aspects of the case, including the claim against Westfall, otherwise the appellant would be obliged to conduct litigation in multiple jurisdictions which would be contrary to Van Breda.
The Court of Appeal did not accept this argument because the appellant sued Westfall in tort only and absent the motorcycle accident she would have no claim against any of the named defendants including her own insurer. In other words, her claim against her insurer arises as a result of a private contract between the appellant and her insurer, and has nothing to do with Westfall. The Court of Appeal relied on Tamminga v. Tamminga, 2014 ONCA 478 and held that there was no nexus between the appellant’s insurance contract and the respondents, and therefore the insurance contract was not a factor that satisfied the real and substantial connection test. The Court of Appeal also relied on Gajraj v. DeBernardo (2002), 60 O.R. (3d) 68 and held that “jurisdiction over claims against extra-provincial defendants should not be bootstrapped by such a secondary and contingent claim against a provincial defendant”. The Court of Appeal also pointed out that these cases did not interfere with the appellant’s right to pursue a claim against her insurer in Ontario.
The appellant and intervener (Ontario Trial Lawyers Association) then argued that if the appellant could not meet any of the four presumptive connecting factors set out in Van Breda, then the Court of Appeal ought to recognize a new presumptive connecting factor based on the following: (i) the appellant’s insurance contract; (ii) the Regulation; (iii) she resides in Ontario; (iv) she sustained damages in Ontario; and (v) she is required to bring actions in two provinces which may give rise to inconsistent awards. Recognizing a new presumptive connecting factor in these circumstances, they argued, would be consistent with the values of order, fairness, efficiency, and comity.
The Court of Appeal rejected this argument too as these were not factors that go into a jurisdiction simpliciter analysis. As Lebel J. noted in Van Breda at para. 82, “[j]urisdiction must … be established primarily on the basis of objective factors that connect the legal situation or the subject matter of the litigation with the forum. …Abstract concerns for order, efficiency or fairness in the system are no substitute for connecting factors that give rise to a ‘real and substantial’ connection…”
Finally, the appellant argued that an Ontario court should assume jurisdiction on the basis of the forum of necessity doctrine, i.e. Ontario should assume jurisdiction to avoid a multiplicity of proceedings and the potential for inconsistent judgments in Ontario and British Columbia. The Court of Appeal did not agree with this argument because for Ontario to accept jurisdiction as the “forum of necessity” the appellant must establish that there is no other forum in which she can reasonably seek relief: West Van Inc. v. Daisley, 2014 ONCA 232, at para. 20, leave to appeal refused,  S.C.C.A. No. 236. The appellant failed to do this as she had pursued a claim against Westfall in British Columbia (presumably to protect her claim from being statute-barred) and she could still continue her claim against her own insurer in Ontario.
The Court of Appeal upheld the stay imposed by the initial motion court decision. An Application for Leave to Appeal to the Supreme Court has been filed. For now, however, it is clear that including a secondary claim against an Ontario automobile insurer is not enough for Ontario courts to assume jurisdiction over the entire action which also includes claims against extra-provincial defendants. The claim for uninsured motorist coverage will be litigated in Ontario, while the tort will be litigated where the accident happened. In the Court’s eyes, it may be inconvenient, but the Plaintiff will have access to justice.
Freda Vanopoulos is an associate at Virk Personal Injury Law with extensive experience in personal injury litigation including motor vehicle accident injuries, statutory accident benefits claims, slip and fall accidents, defective product injuries and long-term disability insurance claims. She can be reached at: