Christopher Morrison

The moving party sought an order dismissing the plaintiffs’ claims and various crossclaims against a defendant business entity whose operator had not been located or served.

The third party opposed the motion, arguing that dismissal would effectively extinguish its contribution and indemnity claim because any new fourth party proceeding would likely be barred by the limitation period.

The court considered the interaction of Rules 28, 29.05, and 29.11 of the Rules of Civil Procedure and the principle in Rule 1.04 that the rules should be liberally construed to secure determination on the merits.

Although the third party had procedurally advanced its claim by crossclaim rather than fourth party claim, the court declined to eliminate what could be a potentially meritorious claim on purely procedural grounds.

The motion to dismiss the claims against the absent defendant was therefore refused.

The defendant brought a motion to stay an Ontario action arising from a motor vehicle accident that occurred in Alberta, arguing the Ontario court lacked jurisdiction.

The plaintiffs attempted to establish a presumptive connecting factor based on the fact that the defendant’s insurer was an Ontario corporation and might ultimately be liable under the Insurance Act.

Applying the framework recently articulated in Club Resorts Ltd. v. Van Breda, the court held that none of the recognized presumptive connecting factors were present.

The court rejected the proposed new factor relating to the insurer’s domicile, finding it inconsistent with the principles of certainty, order, and predictability in private international law.

The Ontario court therefore lacked jurisdiction and the action was stayed.