Ibrahim et al. v. Robinson

[Indexed as: Ibrahim v. Robinson]

Ontario Reports

Court of Appeal for Ontario,

Weiler, Feldman and Benotto JJ.A.

January 19, 2015

124 O.R. (3d) 106 | 2015 ONCA 21

Case Summary

Conflict of laws — Jurisdiction — Real and substantial connection — Forum of necessity — Plaintiffs bringing action in Ontario arising from Michigan motor vehicle accident — Sufficient connecting factors for Ontario to assume jurisdiction on basis of real and substantial connection test likely existing when action was commenced — Defendant delaying bringing motion to dismiss action for want of jurisdiction until Michigan limitation period had expired — Motion judge relying on forum of necessity exception to real and substantial connection test and dismissing motion — Defendant's appeal dismissed — Law on assuming jurisdiction and forum of necessity exception changing to plaintiffs' detriment before motion was heard — Motion judge not exercising residual discretion to assume jurisdiction based solely on expiry of Michigan limitation period but also basing decision on considerations of fairness and access to justice.

The plaintiffs brought an action in Ontario for damages arising out of a Michigan motor vehicle accident. After the three-year Michigan limitation period expired, the defendant brought a motion to dismiss the Ontario action for want of jurisdiction. Relying on the forum of necessity exception to the real and substantial connection test, the motion judge dismissed the motion. He found that, because the defendant delayed serving the jurisdiction motion until it was too late to sue in Michigan, he effectively denied the plaintiffs access to the Michigan courts and may have lulled them into a false sense of security. He concluded that fairness and access to justice for the plaintiffs called for the court to assume jurisdiction based on the forum of necessity. The defendant appealed.

Held, the appeal should be dismissed.

There were likely sufficient connecting factors for Ontario to assume jurisdiction on the basis of the real and substantial connection test as it existed when the action was commenced. The law on assuming jurisdiction and forum of necessity had changed to the plaintiffs' detriment before the motion was heard. The defendant had delayed bringing the jurisdiction motion until after the expiry of the Michigan limitation period. The motion judge did not commit the error of treating the expiry of the Michigan limitation period as a sufficient condition for invoking the doctrine of necessity. Rather, he also based his decision on considerations of fairness and access to justice. His decision was entitled to deference. [page107]

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

Muscutt v. Courcelles (2002), 2002 CanLII 44957 (ON CA), 60 O.R. (3d) 20, [2002] O.J. No. 2128 (C.A.); West Van Inc. v. Daisley (2014), 119 O.R. (3d) 481, [2014] O.J. No. 1424, 2014 ONCA 232, 55 C.P.C. (7th) 61, 317 O.A.C. 294, 239 A.C.W.S. (3d) 924 [Leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 236], consd

Other cases referred to

Gordon v. Deiotte (2012), 109 O.R. (3d) 626, [2012] O.J. No. 1488, 2012 ONSC 1973, 8 C.C.L.I. (5th) 290, 214 A.C.W.S. (3d) 105 (S.C.J.); Penner v. Niagara (Regional Police Services Board), [2013] 2 S.C.R. 125, [2013] S.C.J. No. 19, 2013 SCC 19, 304 O.A.C. 106, 442 N.R. 140, 2013EXP-1164, J.E. 2013-639, EYB 2013-220248, 49 Admin. L.R. (5th) 1, 32 C.P.C. (7th) 223, 356 D.L.R. (4th) 595, 226 A.C.W.S. (3d) 139

APPEAL from the order of Rogin J. of the Superior Court of Justice dated February 21, 2014 dismissing a motion to dismiss an action for want of jurisdiction.

B. Chambers, for appellant.

M. Greenaway, for respondents.

The judgment of the court was delivered by

FELDMAN J.A.: —

Overview

[1] The appellant is the defendant in a motor vehicle collision action commenced in Windsor, Ontario. The accident occurred on January 7, 2008 in Michigan. Following the expiry of the three-year limitation period in Michigan, the appellant brought a motion to dismiss the Ontario action for want of jurisdiction. The motion judge did not dismiss the action, relying on the "forum of necessity exception" referred to 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. The motion judge noted that the Supreme Court in its decision in that case specifically declined to address the forum of necessity issue: see Club Resorts Ltd. v. Van Breda, [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, 2012 SCC 17, at paras. 59, 82, 86, 100.

[2] The motion judge accepted that under the test for assuming jurisdiction as it existed before the Supreme Court's decision in Van Breda and when this action was commenced, there may well have been sufficient connecting factors to Ontario for an Ontario court to assume jurisdiction. He pointed to the case of Gordon v. Deiotte (2012), 109 O.R. (3d) 626, [2012] O.J. No. 1488, 2012 ONSC 1973 (S.C.J.) [page108] as an example of an Ontario court assuming jurisdiction in similar circumstances to this case.

[3] He found that, because the appellant delayed serving the jurisdiction motion until it was too late for the respondents to sue in Michigan, the appellant effectively denied the respondents access to the Michigan courts and may have lulled them into a false sense of security. He concluded that fairness and access to justice for the plaintiffs called for the court to assume jurisdiction based on forum of necessity. The appellant brought a subsequent motion before the same motion judge seeking to introduce further evidence of correspondence and e-mails to try to demonstrate that the respondents were not misled about the appellant's intention to challenge jurisdiction. The motion judge endorsed the record that the new evidence was available on the original motion and the appellant's only remedy was to appeal.

[4] The appellant raises two issues on the appeal. (1) He says Ontario lacks jurisdiction simpliciter over this action and the forum of necessity doctrine does not become available simply because a limitation period in the proper forum, Michigan, was missed. He adds that it is not the defendant's responsibility to ensure that the plaintiffs bring their action in the correct forum or in a timely manner. (2) The motion judge erred in refusing to admit the fresh evidence and in concluding that the appellant lulled the respondents into inaction.

Analysis

Forum of necessity

[5] Justice Sharpe described the forum of necessity doctrine in this court's decision in Van Breda (C.A.), 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.

[6] The Supreme Court noted in its decision in Van Breda that Sharpe J.A. had raised considerations of fairness in support of the forum of necessity doctrine; however, because the issue did [page109] not arise on the appeal, there was no need for the court to address it: see paras. 59, 82, 86, 100.

[7] The accident occurred on January 7, 2008. When this action was commenced in Ontario in January 2010, this court's decision in Muscutt v. Courcelles (2002), 2002 CanLII 44957 (ON CA), 60 O.R. (3d) 20, [2002] O.J. No. 2128 (C.A.) still governed the assumption of jurisdiction. Counsel for the appellant conceded that at the time the claim was brought in Ontario, an Ontario court could arguably have assumed jurisdiction under the Muscutt test. The motion judge noted that counsel did not seriously dispute that proposition on the motion below.

[8] What is unclear from the record before this court is why, following the service of the statement of claim, no steps were taken to proceed with this action by either side until this motion was finally heard in September 2013. For example, the appeal book contains an order obtained by the respondents, granting the appellant an extension of time until October 6, 2010 to serve the statement of defence. No statement of defence was filed, ostensibly because the appellant intended to bring this motion contesting jurisdiction, but waited years to do so, with the apparent acquiescence of the respondents.

[9] Although the appellant swore an affidavit for the purpose of contesting jurisdiction in March 2010, he did not serve the motion until June 2011, by which time the relevant three-year limitation period in Michigan had expired. The motion was not heard until September 2013, after the Supreme Court of Canada had released its decision in Van Breda. That decision refined the "real and substantial connection" test for determining jurisdiction, with the result that in this case there are effectively no longer any applicable factors that would ground the assumption of jurisdiction on that basis.

[10] Finally, since the motion judge's decision in this case, this court released its decision in West Van Inc. v. Daisley (2014), 119 O.R. (3d) 481, [2014] O.J. No. 1424, 2014 ONCA 232, leave to appeal to S.C.C. refused [2014] S.C.C.A. No. 236, where, at para. 37, Hoy A.C.J.O. stated that the expiry of the limitation period in the proper foreign forum does not make Ontario the forum of necessity.

[11] The confluence of factors in this case presents a very unique situation where both sides of this litigation have been responsible for some delay, and the law has developed during the delay period in two ways, both to the detriment of the respondents. The unique circumstances are (1) there were likely sufficient connecting factors for Ontario to assume jurisdiction on the basis of the real and substantial connection test when the action [page110] was commenced; (2) the motion judge found that the appellants delayed in bringing their motion until after the expiry of the limitation period in Michigan, possibly lulling the respondents into a false sense of security; and (3) the law on assuming jurisdiction and on forum of necessity changed before both the motion and the appeal respectively.

[12] To interfere with the motion judge's discretionary decision in this case, the court would have to be satisfied that the motion judge misdirected himself, gave "no or insufficient weight to relevant considerations", or came to a decision that is so clearly wrong that it amounts to an injustice: Penner v. Niagara (Regional Police Services Board), [2013] 2 S.C.R. 125, [2013] S.C.J. No. 19, 2013 SCC 19, at para. 27.

[13] Had the motion judge treated the expiry of the Michigan limitation period as a sufficient condition for invoking the doctrine of necessity, then this court's comments in West Van would speak strongly in favour of allowing the appeal. However, in this case, the expired limitation period was not the only basis for the motion judge's exercise of his residual discretion to assume jurisdiction. He also based his decision on considerations of fairness and access to justice, including the fact that the change in the common law test for assumed jurisdiction occurred only after the expiry of the foreign limitation period.

[14] In addition, the motion judge took into consideration the appellant's unexplained lengthy delay in bringing the jurisdiction motion until after the Michigan limitation period had expired, which may have lulled the plaintiffs into a false sense of security about the jurisdiction issue. I note that although the respondents could have started a second action in Michigan before the expiry of the limitation period there, they could not maintain two actions and would have had to abandon the Ontario action. Before the Supreme Court's decision in Van Breda or an order of an Ontario court staying the claim, there was no reason to do that.

[15] Given the additional factors that influenced the motion judge's decision, that decision is not inconsistent with this court's comments in West Van, and should be accorded deference.

Fresh evidence

[16] Finally, I see no basis to interfere with the motion judge's decision on the second motion not to admit the proposed fresh evidence on the basis that it was all available at the time of the original motion. In any event, the correspondence consists of some letters and e-mails that discuss the appellant's intention to bring a jurisdiction motion, the last of which is dated December 20, 2010, [page111] and which proposes a motion to be heard on January 18, 2011, which is after the expiry of the Michigan limitation period. That motion was eventually brought in June 2011 and heard in September 2013. The proposed fresh evidence would not assist the appellant.

[17] I would therefore dismiss the appeal with costs fixed at $7,500, inclusive of disbursements and HST.

Appeal dismissed.

End of Document