COURT OF APPEAL FOR ONTARIO

DATE: 20060516 DOCKET: C44146

RE: GAIL MCLEAN, AUDREY WADDELL and SCOTT MCLEAN (Plaintiffs/Appellants) – and – PAT O’BRIEN’S BAR, INC. (Defendant/Respondent)

BEFORE: MACPHERSON, SHARPE and ROULEAU JJ.A.

COUNSEL: Gary R. Will for the appellant

Timothy Trembley for the respondent

HEARD & ENDORSED: May 12, 2006

On appeal from the order of Justice John C. Murray of the Superior Court of Justice dated August 10, 2005.

APPEAL BOOK ENDORSEMENT

[1] The appellants appeal the judgment of Murray J. decided August 10, 2005 staying their action in Ontario against the respondent, Pat O’Brien’s Bar Inc., the corporate owners of a restaurant in New Orleans.

[2] The appellant Gail McLean, an Ontario resident vacationing in New Orleans, was injured in a slip and fall accident at the restaurant on October 30, 2002. She received medical treatment at a hospital in New Orleans and additional treatment from various doctors and other health care providers upon her return to Ontario. She brought an action against the restaurant owner in Ontario. The respondent brought a motion seeking to set aside the Statement of Claim and permanently stay the action on two grounds: (1) the Ontario superior court has no jurisdiction simpliciter over the action; and (2) the State of Louisiana is a more convenient forum for the trial.

[3] Murray J. granted the motion on the jurisdiction issue. Accordingly, it was unnecessary for him to consider the forum non conveniens issue.

[4] The motion judge carefully considered and applied the factors in the leading case, Muscutt v. Courcelles (2002), 60 O.R. (3d) 20 (C.A.). We can see no error in his analysis. Moreover, in our view, the appellants’ case is, as the motion judge recognized, on all fours with Sinclair v. Cracker Barrel Old Country Store (2002), 60 O.R. (3d) 76 (C.A.). In Sinclair, Sharpe J.A. stated, at para. 21: “Absent special circumstances, to require restaurant owners and operators to defend their conduct in the home jurisdiction of their customers would impose an undue and unreasonable burden on them.”

[5] The appellant asserts that there is a special circumstance in this case – namely, the fact that the respondent has insurance to defend in Canada. We disagree. Placement of liability insurance does not constitute an acknowledgement that the respondent attorns to a jurisdiction identified in the coverage territory. The motion judge properly took into account the fact that the respondent’s insurance coverage mitigates the unfairness of being forced to defend in Ontario (see Sinclair at para. 18), but concluded that when all factors were considered cumulatively, the real and substantial connection test was not met. We see no error in that regard.

[6] The appellants also contend that there is a significant loss of juridical advantage if they are forced to bring their action in Louisiana because it appears that there is a one‑year limitation period in Louisiana which the appellants have missed. This argument is misconceived. As Muscutt and subsequent decisions of this court make clear, juridical advantage is a factor relating to forum non conveniens, not jurisdiction simpliciter.

[7] The appeal is dismissed with costs fixed at $3,000 inclusive of disbursements and GST.