DATE: 20010921 DOCKET:C35522
COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O., ABELLA AND GOUDGE JJ.A.
B E T W E E N:
LOUIS MCNICHOL, deceased, by his Estate Trustee, Barbara McNichol, BARBARA MCNICHOL, JOANNE JACQUELINE MCNICHOL, by her Litigation Guardian, Barbara McNichol, PAMELA LOUISE MCNICHOL, ANTHONY EDWARD MCNICHOL, BILL MCNICHOL AND GWEN MCNICHOL
Christopher Prince for the appellant
Plaintiffs (Respondents)
- and -
DR. MARK WOLDNIK, DR. ROSEMARY SCHWARZ, DR. ADRIANUS A. VAN WALRAVEN, DR. H. PERCIVAL, DR. DAVID R. PUENTES, SEAFORTH COMMUNITY HOSPITAL AND STRATFORD GENERAL HOSPITAL
Allison Swindles-Webster for the respondent
Defendant (Appellant)
Heard: May 24, 2001
On appeal from the order of Justice Kenneth F. Ross dated December 4, 2000.
GOUDGE J.A.:
[1] On December 4, 1998, Louis McNichol died of a massive heart attack while on vacation in Florida. In this lawsuit, his widow and his dependants have sued those responsible for his health care over the last six months of his life, starting on June 7, 1998 when he first exhibited symptoms of cardiovascular disease. The last in the sequence of those treating Mr. McNichol was the defendant Dr. Puentes, a Florida chiropractor who saw Mr. McNichol only once, on the day before his death, when Mr. McNichol came to his office in Florida complaining of chest pains. The other defendants are all Ontario doctors and Ontario hospitals.
[2] While Dr. Puentes did not question the validity of the ex juris service upon him, he moved for a stay of the action as against him on two bases. First, pursuant to s. 106 of the Courts of Justice Act, he argued that the court had no jurisdiction over the claim against him because of an absence of a real and substantial connection between that claim and Ontario. Second, pursuant to rule 17.06(2)(c) he said that in any event Ontario is a forum non conveniens.
[3] Ross J. decided against Dr. Puentes on both points. For the reasons that follow, I agree with his conclusion.
[4] The pleadings disclose that prior to his death Mr. McNichol was a resident of the Town of Mitchell, Ontario. On June 7, 1998, he was admitted to the Seaforth Community Hospital for observation and treatment of chest pains. Several days later he was transferred to the Stratford Community Hospital for further investigation. He returned to the Seaforth Hospital for follow-up treatment, including an exercise stress test, and, later in the fall, surgery on his toe. Dr. Woldnik and Dr. Schwarz treated him at the Seaforth Hospital. Dr. Percival is also a doctor at that hospital. At the Stratford Hospital he was treated by Dr. Van Walraven. The two hospitals and the four doctors are the other defendants in this lawsuit in addition to Dr. Puentes.
[5] The essence of the plaintiff’s case is that in the sequence of treatment accorded to Mr. McNichol from June 7 to December 3, 1998, the defendants provided him with inadequate care which caused his death. Apart from the claim on behalf of Mr. McNichol by his wife as trustee of his estate, the plaintiffs seek damages pursuant to the Family Law Act, R.S.O. 1990 c. F-3.
[6] The four doctors have filed a defence denying the allegations and cross-claiming against the two hospitals and Dr. Puentes. The hospitals have done the same, denying the allegations and cross-claiming against the four Ontario doctors and Dr. Puentes. Dr. Puentes has not yet filed a defence.
ANALYSIS
[7] While the respondent’s factum raised the question of whether the order appealed from was interlocutory or final, this was not advanced in argument and I therefore do not deal with it. That leaves the two issues raised by the appellant, namely whether Ross J. was correct in concluding that the action should not be stayed as against Dr. Puentes either for want of jurisdiction or because Ontario is a forum non conveniens. I will deal with each of these in turn.
THE JURISDICTION QUESTION
[8] The modern test for determining if an Ontario court can properly take jurisdiction over an action with an extra-territorial dimension has its genesis in the well-known case of Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (SCC), [1990] 3 S.C.R. 1077.
[9] Speaking for the court, La Forest J. explained that as globalization brings ever greater international flows of products, wealth and people, courts must move beyond the simple criterion of territoriality in determining whether jurisdiction is properly taken, while continuing to recognize that being sued in a foreign jurisdiction may pose a problem for a defendant. At p. 1108 of that judgment he said this:
It seems to me that the approach of permitting suit where there is a real and substantial connection with the action provides a reasonable balance between the rights of the parties. It affords some protection against being pursued in jurisdictions having little or no connection with the transaction or the parties.
[10] In Hunt v. T. & N. plc, 1993 CanLII 43 (SCC), [1993] 4 S.C.R. 289, La Forest J. again, speaking for the court, makes clear (at p. 325) that the exact limits of what would constitute a real and substantial connection between the subject matter of the litigation and the domestic forum were not defined nor could the test be rigidly applied. Importantly, he went on at (p.326) to underline that the proper assumption of jurisdiction must ultimately be guided by the requirements of order and fairness, not a mechanical counting of the contacts or connections with the domestic forum.
[11] While the appellant accepts the “real and substantial connection” test for jurisdiction, he contends that it should be applied to the claim against him as if that claim were a separate lawsuit. He argues for an assessment confined to the connection between Ontario and the claim advanced solely against Dr. Puentes.
[12] I do not agree that where an action has some claims with an extra-territorial dimension, and others which have none, the former must be separated and tested in isolation. To do so would, in my opinion, be contrary to the direction set by Morguard and Hunt. It would be a step backwards, towards a focus on territoriality and away from the recognition of the increasingly complex and interdependant nature of the modern world community which lies at the heart of La Forest J.’s reasoning. Moreover, it would introduce a rigidity to a test clearly designed to be flexible. Finally, it would mute the influence of the underlying requirements of order and fairness by preventing an assessment of the entire action against these requirements to determine whether they made it proper to take jurisdiction over the action as framed by the plaintiffs, including the extraterritorial claim.
[13] Rather, I think that the approach prescribed by Morguard and Hunt requires the court to evaluate the connection with Ontario of the subject matter of the litigation framed as it is to include both the claim against the foreign defendant and the claims against the domestic defendants. In doing so, the courts must be guided by these requirements of order and fairness. If it serves these requirements to try the foreign claim together with the claims that are clearly rooted in Ontario, then the foreign claim meets the “real and substantial connection” test. This is so even if that claim would fail the test if it were constituted as a separate action. This approach goes beyond showing that the foreign defendant is a proper party to the litigation. It rests on those values, namely order and fairness, that properly inform the real and substantial connection test and allows the court the flexibility to balance the globalization of litigation against the problems for a defendant who is sued in a foreign jurisdiction.
[14] It remains to apply that approach to this case. The subject matter of this litigation is the death of Mr. McNichol and the relative responsibilities of his health care providers for that death. The litigation must examine that health care over the six months prior to his death, which is a story told very largely in Ontario. Only the last chapter, that involving Dr. Puentes, takes place in Florida. Moreover, Ontario is where the damages alleged by Mr. McNichol’s dependants arise. Indeed, apart from the claim against Dr. Puentes the litigation is virtually entirely domestic.
[15] Given the need to resolve the relative responsibilities, if any, of the seven defendants and the cross-claims amongst them, I think order and fairness require that resolution all be done in a single action. To require the plaintiffs to sue Dr. Puentes separately in Florida would be unfair to them and to the cross-claiming defendants. It would also set up the disorderly and undesirable prospect of inconsistent decisions about those relative responsibilities. In my view, these considerations outweigh the only arguable unfairness, namely that Dr. Puentes is compelled to participate in an action in what for him is a foreign jurisdiction.
[16] Dr. Puentes is clearly a proper party to this action, which is otherwise uncontestably one properly within the jurisdiction of the Ontario court. The requirements of order and fairness yield the conclusion that the claim against Dr. Puentes is properly resolved in the action as framed and therefore that claim has the necessary real and substantial connection to Ontario. This ground of appeal therefore fails.
THE FORUM NON CONVENIENS QUESTION
[17] The second issue raised by the appellant is that of forum non conveniens. While involving considerations which overlap with the question of jurisdiction, this is a separate doctrine under which a court may exercise its discretion to stay an action where there is a more convenient or appropriate forum elsewhere. See Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022 at 1048-50.
[18] Drawing on the seminal case of Amchem Products Inc. v. British Columbia (Workers Compensation Board), 1993 CanLII 124 (SCC), [1993] 1 S.C.R. 897, Arbour J.A. put the doctrine as follows in Frymer v. Brettschneider (1994), 1994 CanLII 1685 (ON CA), 19 O.R. (3d) 60 at 79:
In all cases, the test is whether there clearly is a more appropriate jurisdiction than the domestic forum chosen by the plaintiff in which the case should be tried. The choice of the appropriate forum is designed to ensure that the action is tried in the jurisdiction that has the closest connection with the action and the parties. All factors pertinent to making this determination must be considered.
[19] Again here, the appellant accepts this test, but says that the trial judge was wrong not to apply the test to the claim against Dr. Puentes alone, isolated from the remainder of the action as framed. The respondent says that the trial judge was correct not to do so. I agree. The objective is to have the action tried in the jurisdiction that had the closest connection with it and the parties, not just one of the parties.
[20] As I have said, Dr. Puentes is clearly a proper party to this litigation. Given this circumstance, it makes no more sense to use the doctrine of forum non conveniens to require the plaintiffs to sue him separately in Florida than it would to use the test for jurisdiction simpliciter to force that result.
[21] Indeed, in Amchem itself, Sopinka J., speaking for the court, held that where in a Texas action only one of the defendants was in a foreign jurisdiction, British Columbia there was no basis for differentiating between that defendant and the other defendants for the purposes of determining whether Texas was the convenient forum, given that the British Columbia defendant was a proper party to the litigation. As he said at p. 940 of that judgment, “[i]t would make little sense to require the claimants to pursue a separate action against one company in British Columbia.”
[22] Moreover, avoiding a multiplicity of proceedings has always been one of the considerations in determining the appropriate forum.
[23] Taken as framed, this action and the parties to it are overwhelmingly most closely connected with Ontario. All the plaintiffs and all but one of the defendants are located here. The factual core of the action is the medical care accorded to Mr. McNichol, most of which occurred in Ontario, and the damages said to accrue here to the plaintiffs as a result. There is no suggestion that the plaintiffs are forum shopping or that Dr. Puentes loses a juridical advantage if the action proceeds against him in Ontario. I would therefore conclude that this ground of appeal also fails.
[24] As a result, the appeal must be dismissed with costs.
Released: September 21, 2001 “RRM”
“S.T. Goudge J.A.”
“I agree R.R. McMurtry C.J.O.”
“I agree R. S. Abella J.A.”