West Van Inc. v. Daisley et al.

[Indexed as: West Van Inc. v. Daisley]

Ontario Reports

Court of Appeal for Ontario,

Hoy A.C.J.O., LaForme and Pardu JJ.A.

March 27, 2014

119 O.R. (3d) 481 | 2014 ONCA 232

Case Summary

Conflict of laws — Jurisdiction — Forum of necessity — Ontario-resident plaintiff bringing action in Ontario against North Carolina lawyer and law firm for professional negligence and breach of contract arising out of their unsuccessful defence of action against plaintiff in North Carolina — Motion judge staying claim on basis that Ontario courts did not have jurisdiction — Motion judge erring in failing to consider whether court should exercise its residual discretion to assume jurisdiction based on forum of necessity exception to real and substantial connection test — Plaintiff's appeal dismissed — High bar that must be met in order for court to assume jurisdiction through forum of necessity doctrine not met on basis of plaintiff's alleged inability to obtain counsel to act for it in North Carolina.

The Ontario-resident plaintiff brought an action in Ontario against a North Carolina lawyer and the lawyer's firm for damages for professional negligence and breach of contract arising out of their unsuccessful defence of an action against the plaintiff in North Carolina. The defendants did not carry on business in Ontario. The motion judge granted the defendants' motion to stay the action on the basis that the Ontario courts did not have jurisdiction as the claim did not have a real and substantial connection to Ontario. The plaintiff appealed.

Held, the appeal should be dismissed.

The motion judge erred in failing to consider whether the court should exercise its residual discretion to assume jurisdiction based on the common law forum of necessity exception to the real and substantial connection test. However, the plaintiff had not met the high threshold required before an Ontario court will assume jurisdiction through the forum of necessity doctrine. The plaintiff was required to establish that there was no other forum in which it could reasonably seek relief. Despite claiming that it was unsuccessful in retaining counsel in North Carolina after contacting a significant number of lawyers who held themselves out as having expertise in professional misconduct matters, the plaintiff had not discharged that onus. The doctrine of forum of necessity is unlikely to be successfully invoked in what is essentially a private, commercial matter on the basis of inability to retain counsel. Moreover, the plaintiff had not sought counsel in North Carolina outside of the two main cities, and had not addressed the feasibility of having out-of-state counsel act for it.

Lamborghini (Canada) Inc. v. Automobili Lamborghini S.P.A., 1996 CanLII 6047 (QC CA), [1996] J.Q. no 4175, [1997] R.J.Q. 58, J.E. 97-156, EYB 1996-65621, 68 A.C.W.S. (3d) 62 (C.A.); Van Breda v. Village Resorts Ltd., [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, 2012 SCC 17, 291 O.A.C. 201, 2012EXP-1452, J.E. 2012-788, EYB 2012-205198, 429 N.R. 217, 343 D.L.R. (4th) 577, 91 C.C.L.T. (3d) 1, 10 R.F.L. (7th) 1, 17 C.P.C. (7th) 223, 212 A.C.W.S. (3d) 712, affg (2010), 98 O.R. (3d) 721, [2010] O.J. No. 402, 2010 ONCA 84, 264 O.A.C. 1, 316 D.L.R. (4th) 201, 81 C.P.C. (6th) 219, 71 C.C.L.T. (3d) 161, 77 R.F.L. (6th) 1, 185 A.C.W.S. (3d) 68, apld

Aleong v. Aleong, [2013] B.C.J. No. 1754, 2013 BCSC 1428, 45 C.P.C. (7th) 334, [2014] 2 W.W.R. 290, 231 A.C.W.S. (3d) 673; [page482] Bouzari v. Bahremani, [2011] O.J. No. 5009 (S.C.J.); Elfarnawani v. International Olympic Committee, [2011] O.J. No. 5059, 2011 ONSC 6784, 20 C.P.C. (7th) 412, 209 A.C.W.S. (3d) 539 (S.C.J.); Josephson (Litigation guardian of) v. Balfour Recreation Commission, [2010] B.C.J. No. 756, 2010 BCSC 603, 91 C.P.C. (6th) 1, 10 B.C.L.R. (5th) 369; Lailey v. International Student Volunteers, Inc., [2008] B.C.J. No. 1921, 2008 BCSC 1344, 88 B.C.L.R. (4th) 357, 51 B.L.R. (4th) 239, 62 C.P.C. (6th) 217, 172 A.C.W.S. (3d) 359 (S.C.); Mitchell v. Jeckovich, [2013] O.J. No. 5644, 2013 ONSC 7494, [2014] I.L.R. I-5537 (S.C.J.); Obégi Chemicals LLC v. Kilani, [2011] O.J. No. 1351, 2011 ONSC 1636 (S.C.J.); Sooparayachetty v. Fox, [2010] B.C.J. No. 237, 2010 BCSC 185; Van Kessel v. Orsulak, [2010] O.J. No. 5690, 2010 ONSC 6919, 9 C.P.C. (7th) 434 (S.C.J.); Wolfe v. Pickar, [2011] O.J. No. 2035, 2011 ONCA 347, 282 O.A.C. 64, 92 C.P.R. (4th) 208, 84 C.C.L.T. (3d) 167, 332 D.L.R. (4th) 157, affg [2010] O.J. No. 2434, 2010 ONSC 2368, 84 C.P.R. (4th) 43 (S.C.J.), consd

Other cases referred to

Anvil Mining Ltd. v. Association canadienne contre l'impunité, [2012] Q.J. No. 368, 2012 QCCA 117, 2012EXP-513, J.E. 2012-277, EYB 2012-201106, [2012] R.J.Q. 153; Bouzari v. Bahremani, [2013] O.J. No. 5690, 2013 ONSC 6337 (S.C.J.); Bouzari v. Iran (2004), 2004 CanLII 871 (ON CA), 71 O.R. (3d) 675, [2004] O.J. No. 2800, 243 D.L.R. (4th) 406, 220 O.A.C. 1, 122 C.R.R. (2d) 26, 132 A.C.W.S. (3d) 275 (C.A.); R. v. M (R.E.), [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52, 2008 SCC 51, 235 C.C.C. (3d) 290, 83 B.C.L.R. (4th) 44, EYB 2008-148153, J.E. 2008-1861, [2008] 11 W.W.R. 383, 260 B.C.A.C. 40, 60 C.R. (6th) 1, 380 N.R. 47, 297 D.L.R. (4th) 577, 79 W.C.B. (2d) 321

Statutes referred to

Civil Code of Québec, S.Q. 1991, c. 64, s. 3136

Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, s. 6

Court Jurisdiction and Proceedings Transfer Act, S.N.S. 2003 (2nd Sess.), c. 2, s. 7

Court Jurisdiction and Proceedings Transfer Act, S.S. 1997, c. C-41.1

Court Jurisdiction and Proceedings Transfer Act, S.Y. 2000, c. 7, s. 6

State Immunity Act, R.S.C. 1985, c. S-18 [as am.]

Authorities referred to

Monestier, Tanya J., "A 'Real and Substantial' Improvement? Van Breda Reformulates the Law of Jurisdiction in Ontario", in Todd L. Archibald and Justice Randall Scott Echlin, Annual Review of Civil Litigation 2010 (Toronto: Carswell, 2010)

Uniform Law Conference of Canada, Court Jurisdiction and Proceedings Transfer Act (1994), s. 6

APPEAL from the order of E.M. Macdonald J. of the Superior Court of Justice dated July 16, 2013 staying an action.

Maurice J. Neirinck, for plaintiff (appellant).

Paul Emerson, for defendants (respondents).

The judgment of the court was delivered by

HOY A.C.J.O.: — [page483]

I Overview

[1] The appellant, West Van Inc., concedes that its claim against the respondents, Michel C. Daisley and Wells Daisley Rabon, P.A., does not have a real and substantial connection to Ontario. At issue on this appeal is whether the court should exercise its residual discretion to assume jurisdiction based on the common law forum of necessity exception to the real and substantial connection test recognized by this court in Van Breda v. Village Resorts Ltd. (2010), 98 O.R. (3d) 721, [2010] O.J. No. 402, 2010 ONCA 84, at para. 100.

[2] The motion judge stayed the appellant's claim on the basis that the courts of Ontario do not have jurisdiction without considering the forum of necessity exception argued by the appellant. The parties agreed that if this court concludes that the motion judge erred by failing to do so, it should consider the appellant's forum of necessity argument on the basis of the record before the application judge.

[3] The motion judge erred by failing to consider the application of the forum of necessity doctrine -- the sole ground relied on by the appellant. However, for the reasons that follow, I am not persuaded that this is the exceptional case where an Ontario court should assume jurisdiction based on the forum of necessity doctrine. I accordingly agree with the motion judge that the appellant's claim against the respondents should be stayed, and would dismiss this appeal.

[4] Below, I set out the relevant background and the evidence relied upon by the appellant in asserting that Ontario is the forum of necessity, and briefly discuss the trial judge's failure to address the appellant's forum of necessity argument. Then, I provide an overview of the doctrine of forum of necessity. I conclude by considering its application in this case.

II The Background and Relevant Evidence

[5] The appellant is a corporation incorporated under the laws of Ontario. Its only offices are in Ontario.

[6] The respondents are the appellant's former counsel. Michel C. Daisley is a resident of North Carolina. His law firm, Wells Daisley Rabon, P.A., is located in Charlotte, North Carolina. They do not carry on business in Ontario.

[7] The respondents unsuccessfully defended the appellant in an action in North Carolina (the "North Carolina action") that claimed that the appellant had wrongfully discharged a lien registered in Connecticut against an aircraft. The plaintiff in the North Carolina action obtained judgment against the [page484] appellant in the amount of US$512,525.78. That judgment was not appealed.

[8] The appellant commenced this action (the "Ontario action"), alleging that (1) the plaintiff in the North Carolina action obtained judgment against the appellant because of the professional negligence of, and breach of contract by, the respondents, in their conduct of the defence of the North Carolina action; (2) the respondents negligently failed to advise the appellant that it had only 30 days within which to appeal the judgment in the North Carolina action; and (3) the respondents breached their contract with the appellant with respect to fees.

[9] The respondents then moved for an order staying the Ontario action, arguing that it does not have a real and substantial connection to Ontario. The motion judge agreed and granted the respondents' motion.

[10] On appeal, the appellant does not argue that the motion judge erred in concluding that the Ontario action does not have a real and substantial connection to Ontario. Indeed, as noted above, it concedes that it does not. Rather, it argues that the motion judge failed to address its position on the motion, namely, that, despite the absence of a real and substantial connection, the court should exercise its residual discretion to assume jurisdiction, based on the forum of necessity doctrine. The respondents, in turn, concede that the motion judge failed to expressly address the appellant's position on the motion, although they argue that despite this her reasons are sufficient. However, their main argument is that the appellant has not met the high threshold required before an Ontario court will exercise its residual discretion to assume jurisdiction, based on the forum of necessity doctrine.

[11] The appellant argues that it cannot reasonably seek relief in North Carolina because it cannot obtain qualified counsel in North Carolina to represent it, and, even if it could, it is dubious that it would get a fair trial in North Carolina.

[12] It relies on the affidavit of its vice-president, Rick Kloepfer, who deposed as follows:

I contacted most, if not all, the law firms in Charlotte, North Carolina, the biggest city in North Carolina where Daisley carries on his law practice and where the North Carolina Action was tried, who held themselves out as dealing with professional misconduct matters to see if they would be prepared to consider an action against Daisley and his firm. In all cases, the firms declined to even discuss the matter upon asking for the name of the proposed Defendant and upon being given Daisley's name. I am informed by Mr. Gladden and verily believe to be true that the same thing occurred when he started to similarly contact law firms in the second largest city of North Carolina, namely, Raleigh, and that he gave up calling law firms in Raleigh after all of those he called similarly declined to discuss a possible action against Daisley and his firm. [page485]

[13] The appellant provided lists of a total of 31 law firms that Mr. Kloepfer and Mr. Gladden recalled contacting.

[14] Mr. Kloepfer further deposed that, "possibly because [the appellant] is a Canadian company but in any case by reason of all of the aforesaid refusals to even consider discussing and pursuing an action against the [respondents], I doubt that [the appellant] could even get a fair trial of its claims against the [respondents] in North Carolina".

III The Sufficiency of Reasons

[15] The motion judge failed to address [the] appellant's only argument -- that the court should assume jurisdiction based on the forum of necessity doctrine. It is true that a court's reasons need not address every argument made by the parties, and that reasons should be read as a whole and in context: see R. v. M. (R.E.), [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52, 2008 SCC 51. However, the failure to directly address the sole argument made by the plaintiff's counsel is an error of law.

[16] With that established, I turn to the doctrine of the forum of necessity.

IV The Doctrine of Forum of Necessity

[17] In Van Breda, Sharpe J.A. said the following about the doctrine of forum of necessity [at para. 100]:

The forum of necessity doctrine recognizes that there will be exceptional cases where, despite the absence of a real and substantial connection, the need to ensure access to justice will justify the assumption of jurisdiction. The forum of necessity doctrine does not redefine real and substantial connection to embrace "forum of last resort" cases; it operates as an exception to the real and substantial connection test. Where there is no other forum in which the plaintiff can reasonably seek relief, there is a residual discretion to assume jurisdiction. In my view, the overriding concern for access to justice that motivates the assumption of jurisdiction despite inadequate connection with the forum should be accommodated by explicit recognition of the forum of necessity exception rather than by distorting the real and substantial connection test.

[18] This relatively new Canadian doctrine was derived from art. 3 of the Swiss Private International Law and first incorporated in s. 3136 of the Civil Code of Québec, S.Q. 1991, c. 64 ("CCQ"), which was enacted in 1991 and came into force in 1994. It was then included in s. 6 of the Uniform Law Conference of Canada's ("ULCC") model Court Jurisdiction and Proceedings Transfer Act (1994). This model Act was intended to promote uniform rules by which Canadian courts would establish jurisdiction over proceedings. Unlike the Swiss Private International Law and s. 3136 of CCQ, s. 6 of the ULCC model Act does not [page486] require that the dispute have a "sufficient connection" to the jurisdiction before the doctrine can be invoked. The model Act, including s. 6, has since been adopted with minor variations in Yukon, Nova Scotia and British Columbia: Court Jurisdiction and Proceedings Transfer Act, S.Y. 2000, c. 7, s. 6; Court Jurisdiction and Proceedings Transfer Act, S.N.S. 2003 (2nd Sess.) c. 2, s. 7; Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, s. 6 ("CJPTA").[^1] At the time of Van Breda, Ontario had not, and has not since, adopted the model law. Van Breda was the first time that a common law forum of necessity doctrine was explicitly recognized by a Canadian court: Tanya Monestier, "A 'Real and Substantial' Improvement? Van Breda Reformulates the Law of Jurisdiction in Ontario", in Justice Todd L. Archibald and Justice Randall Scott Echlin's Annual Review of Civil Litigation 2010 (Toronto: Carswell, 2010), at pp. 215-16.

[19] On the appeal of Van Breda to the Supreme Court, the Supreme Court left the possible application of the forum of necessity doctrine open: Club Resorts Ltd. v. Van Breda, [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, 2012 SCC 17, at para. 100. LeBel J., for the court, wrote that where the real and substantial test is not met, the court "must dismiss or stay the action, subject to the possible application of the forum of necessity doctrine, which I need not address in these reasons".

[20] All jurisdictions in Canada that have recognized the forum of necessity have incorporated a "reasonableness" test. In Ontario, under Van Breda, the plaintiff must establish that "there is no other forum in which the plaintiff can reasonably seek relief". Section 3136 CCQ provides as follows:

3136. Even though a Québec authority has no jurisdiction to hear a dispute, it may hear it, if the dispute has a sufficient connection with Québec, where proceedings cannot possibly be instituted outside of Québec or where the institution of such proceedings outside Québec cannot reasonably be required.

And s. 6 of the ULCC's model law provides as follows:

6. A court that under section 3 lacks territorial competence in a proceeding may hear the proceeding despite that section if it considers that

(a) there is no court outside [enacting province or territory] in which the plaintiff can commence the proceeding, or [page487]

(b) the commencement of the proceeding in a court outside [enacting province or territory] cannot reasonably be required.

[21] The "reasonableness" requirement has been stringently construed. To date, only one Ontario court has assumed jurisdiction based solely on the forum of necessity doctrine: see Bouzari v. Bahremani, [2011] O.J. No. 5009 (S.C.J.). Elsewhere in Canada, only the British Columbia Supreme Court has done so, and, in that case, on the basis of s. 6 of its CJPTA, which is in the form of s. 6 of the ULCC's model law: see Josephson (Litigation guardian of) v. Balfour Recreation Commission, [2010] B.C.J. No. 756, 2010 BCSC 603, 10 B.C.L.R. (5th) 369.

[22] LeBel J.A., writing for the Quebec Court of Appeal in Lamborghini (Canada) Inc. v. Automobili Lamborghini S.P.A., 1996 CanLII 6047 (QC CA), [1996] J.Q. no 4175, [1997] R.J.Q. 58 (C.A.), described the high bar that applies to a plaintiff seeking to rely on art. 3136 of the Québec Civil Code, at paras. 44-47:

According to its legislative history, this provision represents a narrow exception to the usual rules governing jurisdiction. It is not intended to allow a Quebec court to seize a power that it would not otherwise possess. It is intended to settle issues of access to justice for a litigant on Quebec territory, when the foreign forum that would normally have jurisdiction is unavailable for exceptional reasons such as a nearly absolute legal or practical impossibility. This includes, for example, the breakdown of diplomatic or commercial relations with a foreign State, the need to protect a political refugee, or the existence of a serious physical threat if the debate were to be undertaken before the foreign court.

Article 3136 C.C.Q. sets out an exception based on the demonstrated impossibility of obtaining access to the foreign court in a dispute that is sufficiently connected to Quebec.

(Translation)[^2] [page488]

[23] In Lamborghini, that bar was not met. The cost and inconvenience of a trial in Italy, and the impact it would have on the plaintiff's tactical position, were not enough.

[24] The Quebec Court of Appeal in Anvil Mining Ltd. v. Association canadienne contre l'impunité, supra, subsequently applied Lamborghini, and the British Columbia Supreme Court used it to inform its interpretation of forum of necessity in Josephson.

[25] In Anvil, the proposed representative plaintiff in a class action argued that it was not able to find attorneys in Australia to represent the class. The Quebec Court of Appeal noted, at para. 102, that "no information whatsoever [had] been presented regarding the steps taken to this end".[^3] It concluded, at para. 103, that the plaintiff had "not shown that it would be impossible to gain access to a foreign court and does not establish that the dispute has a sufficient connection with Quebec".[^4]

[26] In Bouzari v. Bahremani, the only Ontario case to successfully invoke forum of necessity, the motion judge found in a default judgment that the plaintiffs were tortured in Iran by the defendant or at his instigation. The motion judge further found, at para. 5, that there was "no reasonable basis upon which [the plaintiffs could be] required to commence the action in a foreign jurisdiction, particularly, the state where the torture took place, Iran", and went on to adopt this court's reasoning in Van Breda. At para. 54 of Van Breda, Sharpe J.A. referred to Bouzari v. Iran (2004), 2004 CanLII 871 (ON CA), 71 O.R. (3d) 675, [2004] O.J. No. 2800 (C.A.), a case based on the same factual scenario as in Bouzari v. Bahremani but brought against the Islamic Republic of Iran rather than individuals, as "hinting" at the concept of forum of necessity. In that case, the court concluded that the plaintiff's claim based on torture in a foreign state was barred by the State Immunity Act, R.S.C. 1985, c. S-18. It therefore did not need to address the question of whether the courts of Ontario could assume jurisdiction: see Bouzari v. Iran, at paras. 36-38. [page489]

[27] In Bouzari v. Bahremani, the defendant later had the default judgment set aside, and challenged jurisdiction, claiming that England was a more appropriate forum: both the plaintiff and defendant agreed that the action could not be heard in Iran. The court denied the defendant's request. Ontario had assumed jurisdiction based on the forum of necessity -- which the defendant did not initially challenge -- and the defendant had not met his burden of establishing that England was clearly a more appropriate forum: Bouzari v. Bahremani, [2013] O.J. No. 5690, 2013 ONSC 6337 (S.C.J.).

[28] Josephson -- the only other case where the doctrine of forum of necessity has been successfully invoked -- involved a unique constellation of facts. Josephson was a passenger in a golf cart driven by Clark on a golf course in British Columbia. Both Josephson and Clark were residents of Idaho. Josephson was thrown from the golf cart and injured. He was first treated in a hospital in British Columbia, and then transferred to a hospital in Idaho. His condition worsened after his transfer to the Idaho hospital. Josephson sued Clark in British Columbia. Josephson did not sue or intend to sue the Idaho hospital or any of its doctors. However, Clark alleged that Josephson received negligent medical treatment in Idaho, and that it contributed to the damages suffered by Josephson. He sought to claim contribution and indemnity from the Idaho hospital and its treating doctors in the action in British Columbia. The Idaho doctors then moved to stay Clark's third party claim against them in the British Columbia action.

[29] The parties agreed that in Idaho a non-patient could not bring an action for contribution and indemnity from a physician or hospital, and that Idaho had abolished joint and several liability in most tort actions, including medical malpractice. Accordingly, unless Clark was able to sue the Idaho third parties in the British Columbia action, he risked being found 100 per cent liable for all of the damages sustained by Josephson, and having no ability to claim against the Idaho hospital and its doctors.

[30] The motion judge concluded that the third party claim did not meet the real and substantial connection test. It concerned a tort committed by the Idaho third parties in Idaho, not in British Columbia. However, in the circumstances, the court could, and should, assume jurisdiction under s. 6 of the CJPTA.

[31] First, Clark could not bring an action for contribution and indemnity in Idaho because he was not the patient. "To argue that s. 6 does not apply because Mr. Clark can commence his action and not be successful, does not reflect a fair, large, and [page490] liberal construction of the CJPTA or an interpretation that best ensures the attainment of its objects": at para. 96.

[32] Second, even if Clark in theory could bring an action in Idaho, he could not be reasonably required to do so. He did not choose British Columbia as the forum. He was sued there by Josephson. Under British Columbia law, Clark would be liable for 100 per cent of the damages suffered by Josephson. If Josephson had instead sued in Idaho, Clark would only be liable for his proportionate share of the liability. Moreover, the hospital and its doctors would not be substantively prejudiced if they were added as third parties in the British Columbia action. They would only be liable to pay their proportionate share.

[33] Third, the factual matrix of the third party claims was closely connected with the main action in British Columbia. In the circumstances, the only practical approach was for one court to hear all of the matters.

[34] There are numerous cases from both Ontario and British Columbia where the courts have declined to assume jurisdiction using the forum of necessity doctrine -- the Ontario cases relying on the common law doctrine, and the British Columbia cases on s. 6 of the CJPTA: see Van Kessel v. Orsulak, [2010] O.J. No. 5690, 2010 ONSC 6919 (S.C.J.); Elfarnawani v. International Olympic Committee, [2011] O.J. No. 5059, 2011 ONSC 6784 (S.C.J.); Mitchell v. Jeckovich, [2013] O.J. No. 5644, 2013 ONSC 7494 (S.C.J.); Lailey v. International Student Volunteers, Inc., [2008] B.C.J. No. 1921, 2008 BCSC 1344, 88 B.C.L.R. (4th) 357; Sooparayachetty v. Fox, [2010] B.C.J. No. 237, 2010 BCSC 185; and Aleong v. Aleong, [2013] B.C.J. No. 1754, 2013 BCSC 1428. A review of these cases reinforces the high bar plaintiffs must meet in order for the court to assume jurisdiction through the forum of necessity doctrine.

[35] In Van Kessel, the motion judge held that the facts that the plaintiff had not succeeded in retaining counsel in Pennsylvania after contacting four lawyers, and had little or no means to conduct a trial in the United States, did not warrant the court exercising its discretion to assume jurisdiction based on the forum of necessity doctrine. In Elfarnawani, the motion judge concluded that the practical difficulties cited by the plaintiff demonstrated no more than that it would be inconvenient to pursue his action in Switzerland. This was insufficient to establish jurisdiction based on forum of necessity. In Mitchell, at para. 49, the motion judge held that the fact that the Ontario plaintiff's personal injury claim was statute-barred in New York, where the accident had occurred, was not "an exceptional circumstance warranting the use of residual discretion". [page491]

[36] In Lailey, the court concluded that British Columbia had territorial competence in the proceedings brought by two of the three plaintiffs. Because all three of the plaintiffs could have commenced their action in California, it rejected the argument of the third plaintiff that it would be unreasonable for her to commence a proceeding outside of British Columbia as it would result in a multiplicity of proceedings and unnecessary expense. In Sooparayachetty, the plaintiffs had also commenced actions in Alberta, and were therefore unable to establish that British Columbia was a "forum of last resort". Finally, in Aleong, the court rejected controverted evidence of a party to a family law dispute that she could not reasonably commence her proceeding in Trinidad because of the level of crime and the risk to her safety.

[37] Two other Ontario cases -- Obégi Chemicals LLC v. Kilani, [2011] O.J. No. 1351, 2011 ONSC 1636 (S.C.J.) and Wolfe v. Pickar, [2010] O.J. No. 2434, 2010 ONSC 2368 (S.C.J.), affd [2011] O.J. No. 2035, 2011 ONCA 347, 282 O.A.C. 64 -- found that the defendants had a real and substantial connection to Ontario, but added, in obiter, that, if incorrect in so concluding, the doctrine of forum of necessity would have permitted the assumption of jurisdiction. In Obégi, the plaintiffs sought to enforce foreign judgments in Ontario. The defendants challenged the jurisdiction of the courts of Ontario to freeze their assets. The analysis of forum of necessity was minimal. The motion judge appeared to have reasoned that only Ontario could freeze the defendants' Ontario bank account and was therefore the forum of necessity. It would seem to me that there is no need to resort to the forum of necessity doctrine when a plaintiff seeks to freeze a defendant's assets located in Ontario. The existence of assets within Ontario is surely an un-rebuttable presumptive connecting factor linking the action to freeze those assets to the jurisdiction of Ontario, and entitling Ontario to assume jurisdiction based on the real and substantial connection test. The motion judge in Wolfe seemingly concluded that the forum of necessity would permit Ontario to assume jurisdiction because the action commenced in the foreign jurisdiction was statute-barred. This court agreed with the motion judge that there was a real and substantial connection and accordingly did not assess whether the assumption of jurisdiction could be justified by the doctrine of necessity. However, Mitchell, discussed above, subsequently squarely and soundly rejected the argument that the expiry of a foreign limitation period is a sufficient basis to invoke the forum of necessity doctrine.

[38] With this overview of the law, I now turn to the facts of this case. [page492]

V Should the Forum of Necessity Exemption be Applied in this Case?

[39] The onus is on the appellant to establish that it cannot reasonably seek relief in North Carolina. In my view, despite the fact that it was unsuccessful in retaining counsel after contacting a significant number of counsel who held themselves out as having expertise in professional misconduct matters, the appellant has not discharged that onus.

[40] As Sharpe J.A. made clear in Van Breda, the forum of necessity is reserved for exceptional cases. LeBel J.A. explained in Lamborghini that the "reasonableness" requirement is very stringently construed. The examples of the exceptional reasons why a proceeding could not be reasonably required in a foreign jurisdiction that he provided, while not exhaustive, are illustrative: "the breakdown of diplomatic or commercial relations with a foreign State, the need to protect a political refugee, or the existence of a serious physical threat if the debate were to be undertaken before the foreign court".[^5] It is this type of claim that prompted this court to recognize the forum of necessity: see Van Breda, at para. 54 (C.A.). The doctrine is designed for cases like Bouzari v. Bahremani, which are very different from the case at hand.

[41] The doctrine of forum of necessity is unlikely to be successfully invoked on what is in essence a private, commercial matter, on the basis of inability to obtain counsel. This is especially so within the United States of America -- a country with many lawyers, in large centres and small, and what is often characterized as a litigation-hungry culture. And it cannot be done so in this case: the appellant did not seek counsel in North Carolina outside of its two main centres, and did not address the feasibility of having out-of-state counsel either act for it in North Carolina or, without becoming counsel of record, "back up" local counsel without particular expertise in professional misconduct matters.

[42] Nor do the appellant's expressed doubts that -- as a Canadian company suing a "home-team" law firm -- it will receive a fair trial in North Carolina satisfy the heavy onus upon it. [page493]

[43] Without endorsing or disagreeing with the reasoning in Josephson, I will simply say that this case is very different from Josephson. The appellant has not satisfied me that it could not be reasonably required to bring its action in North Carolina, and the factual matrix of the Ontario action is not interwoven with any other Ontario action.

VI Disposition and Costs

[44] I would accordingly dismiss this appeal, and award costs of the appeal to the respondents in the agreed upon amount, $7,500, inclusive of HST and disbursements.

Appeal dismissed.

Notes

[^1]: While Saskatchewan generally adopted the model Act [as Court Jurisdiction and Proceedings Transfer Act, S.S. 1997, c. C-41.1], it did so without s. 6.

[^2]: This translation is found at para. 98 of Anvil Mining Ltd. v. Association canadienne contre l'impunité, [2012] Q.J. No. 368, 2012 QCCA 117, [2012] R.J.Q. 153 (unofficial translation). The official French version is as follows:

Selon ses sources législatives, cette disposition représente plutôt une exception étroite aux règles normales de compétence. Elle ne vise pas à permettre au tribunal québécois de s'approprier une compétence qu'il ne posséderait pas autrement. Elle veut régler certains problèmes d'accès à la justice, pour un plaideur qui se trouve dans le territoire québécois, lorsque le forum étranger normalement compétent lui est inaccessible pour des raisons exceptionnelles, comme une impossibilité en droit ou une impossibilité pratique, presqu'absolue. Ainsi, on peut penser à celles résultant de la rupture des relations diplomatiques ou commerciales avec un État étranger ou de la nécessité de la protection d'un réfugié politique, ou à l'existence d'un danger physique sérieux, si l'on entame un débat devant le tribunal étranger.

L'article 3136 C.C.Q. exprime une règle d'exception basée sur l'impossibilité démontrée d'avoir accès au tribunal étranger, dans un litige qui possède un lien suffisant avec le Québec.

[^3]: Official French version: "On ne sait d'aucune façon quelles démarches ont été entreprises à cette fin."

[^4]: Official French version: "L'ACCI ne démontre pas l'impossibilité d'avoir accès à un tribunal étranger et n'établit pas que le litige possède un lien suffisant avec le Québec".

[^5]: Official French version: "la rupture des relations diplomatiques ou commerciales avec un État étranger ou de la nécessité de la protection d'un réfugié politique, ou à l'existence d'un danger physique sérieux, si l'on entame un débat devant le tribunal étranger".

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