Sachin Kumar

The Personal Insurance Company appealed a motion judge's decision striking out a third party claim against the plaintiffs' lawyers.

The plaintiffs had sued the insurer for negligence in failing to preserve a vehicle that might have helped prove their case in a personal injury action.

The insurer sought contribution and indemnity from the lawyers, alleging they breached their duty to preserve evidence.

The Court of Appeal upheld the striking of the third party claim, holding that the lawyers' alleged negligence fell within the scope of their retainer and was therefore attributable to the plaintiffs.

Where a third party's negligence is attributable to the plaintiff, no cause of action for contribution and indemnity exists against that third party.

The defendant estate moved to stay or dismiss an Ontario action arising from a New York motor vehicle accident for lack of jurisdiction.

Applying the presumptive connecting factors in Van Breda, the court held that none of the recognized factors connected the dispute to Ontario, and declined to recognize a new factor based on the existence of a separate Ontario action arising from an earlier accident.

The court distinguished authority involving multiple defendants with Ontario connections and held that the defendant estate had no real relationship with Ontario.

The forum of necessity doctrine was also rejected because the plaintiff could have commenced a timely New York action before the limitation period expired.

The action was dismissed for lack of jurisdiction, with partial indemnity costs to the defendant.