Court of Appeal for Ontario
MacPherson, Sharpe and Rouleau JJ.A.
BETWEEN:
Nancy Mynerich and John Sproule
Plaintiffs (Respondents)
and
Hampton Inns Inc. operating as Hampton Inn & Suites Laval
Defendant (appellant)
Counsel: Daniel J. Reisler for the respondents Christopher Bialkowski for the appellant
Heard & released orally: April 2, 2009
On appeal from the judgment of Justice Gordon E. Lemon of the Superior Court of Justice dated April 4, 2008.
ENDORSEMENT
1This appeal relates to the jurisdiction of the Ontario courts to entertain a claim by an Ontario resident for damages arising from a slip and fall injury at a hotel in Québec. The plaintiff alleges that she suffered a complex knee injury. The Québec defendant moves to stay or dismiss the action on the grounds
(1) that there is no “real and substantial connection” to support jurisdiction simpliciter, and
(2) that jurisdiction should be declined on the ground of forum non-conveniens.
2We are not persuaded that the motion judge erred in relation to the real and substantial connection test.
3While deference is ordinarily owed to the discretionary decision on forum non-conveniens, in our view, the motion judge failed to apply the correct legal test in deciding this issue.
4First, the motion judge conflated the test for jurisdiction simpliciter with the test for forum non-conveniens by stating that the same factors applied. While there may be some similarity and overlap between the two, the test forum non-conveniens is different and distinct.
5Second, the motion judge does not appear to have considered all relevant factors pertaining to forum non-conveniens. Had he done so, we are persuaded that the inevitable conclusion would have been that Quebec is clearly the more appropriate forum.
6The following factors identified in Muscutt v. Courcelles (2002), 2002 CanLII 44957 (ON CA), 60 O.R. (3d) 20 at para. 41 pertain to this case:
the location of the majority of the parties
the location of key witnesses and evidence
the avoidance of a multiplicity of proceedings
the applicable law and its weight in comparison to the factual questions to be decided
geographical factors suggesting the natural forum
whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court
7The motion judge failed to take into account factors 1 and 5. Given the likelihood of third party proceedings, factor 1 favoured Quebec. As the alleged tort occurred in Quebec, under factor 5 there was a geographical factor suggesting Quebec as the natural forum. The motion judge erred in relation to factor 4. The application of Quebec law was not neutral but rather favoured Quebec jurisdiction. With respect to factor 6, in his reasons on real and substantial connection, the motion judge appears to have considered the fact that the defendant would be unable to request a jury trial as a factor favouring Ontario jurisdiction. As the defendant was resisting Ontario jurisdiction, this reasoning misapplied the loss of juridical advantage factor.
8When all relevant factors are considered, none favour Ontario, two are neutral - the location of key witnesses and evidence and loss of juridical advantage, and the other four all favour Québec.
9Accordingly, the appeal is allowed and the action is stayed on grounds of forum non-conveniens. The appellant is entitled to costs for the motion below and this appeal fixed at $4,000, inclusive of disbursements and GST.
Robert J. Sharpe J.A.
J.C. MacPherson J.A.
Paul Rouleau J.A.