Court of Appeal for Ontario

Citation: Arsenault v. Nunavut, 2016 ONCA 207

Date: 2016-03-14

Docket: C60865

Before: LaForme, Pardu and Roberts JJ.A.

Between:

Susan Arsenault

Plaintiff (Appellant)

and

Government of Nunavut

Defendant (Respondent)

Counsel:

Michael D. Marin and David Quayat, for the appellant

Jock C. Climie, for the respondent

Heard: March 10, 2016

On appeal from the judgment of Justice Heidi S. Levenson Polowin of the Superior Court of Justice, dated July 3, 2015.

Endorsement

[1] The appellant sued the Government of Nunavut for wrongful dismissal. The motion judge concluded that there was no real and substantial connection between the cause of action and Ontario, and that Nunavut had established that Nunavut was clearly the more appropriate forum. The appellant does not challenge these conclusions on appeal, but submits that the motion judge erred in failing to conclude that Ontario was a “forum of necessity”, because the appellant suffers from mental health difficulties, and says she would be re-traumatized if her action had to proceed in Nunavut. The appellant made no submissions on this issue before the motion judge.

[2] The appellant stated in her affidavit that harassment by her employer caused her to develop severe mental illness. She has filed a report from a “psychological associate” who indicates that a return to Iqaluit could trigger symptoms, particularly, if required for legal proceedings. An occupational therapist filed a report to the same effect.

[3] The motion judge dealt with this issue at paras. 84 and 85 of her reasons:

The Forum of Necessity Doctrine was briefly referred to in the Factum of Ms. Arsenault but her counsel made no further submissions in the oral argument of the motion. In Van Breda, the Ontario Court of Appeal recognized that, in exceptional cases where it is necessary to ensure access to justice, a court may assume jurisdiction even in the absence of a real and substantial connection to the forum. The Court of Appeal stated that the forum of necessity doctrine applies “[where] there is no other forum in which the plaintiff can reasonably seek relief …” (see Van Breda v. Village Resorts Ltd, 2010 ONCA 84, 98 O.R. (3d) 721 at para. 100). In West Van Inc. v. Daisley, 2014 ONCA 232, 318 O.A.C. 299, the Ontario Court of Appeal reaffirmed the “reasonableness” test but accepted that reasonableness must be strictly construed and that the forum of necessity doctrine is reserved for exceptional cases. The Court noted such examples as, 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 case were to be undertaken before a foreign court. The Court stated the doctrine is designed for cases like Bouzari v. Bahremani, [2011] O.J. No. 5009 (Ont. Sup. Ct.) [Bouzari]. In Bouzari, the Court assumed jurisdiction based on the forum of necessity doctrine because it was unreasonable to expect the plaintiff, who suffered torture in Iran, to bring his claim in that country.

The case at hand is not one of those exceptional cases. While Ms. Arsenault has mental health challenges, they do not rise to the level contemplated by this doctrine.

[4] The decision of the motion judge is owed deference. As observed in Ibrahim v. Robinson, 2015 ONCA 21:

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 SCC 19, [2013] 2 S.C.R. 125, at para. 27.

[5] We see no error in the motions judge’s reasons.

[6] The evidence of the psychological associate was that there was a risk of traumatic activation, that it was not advisable for the appellant to return to Iqaluit, and that it would be “especially challenging” for the appellant to return to Iqaluit for a legal proceeding. She did not say the appellant could not return.

[7] We note that the respondent is prepared to examine the plaintiff for discovery in Ontario. Her counsel noted in his affidavit that examination of a trial witness may take place by affidavit or telephone, with leave of the court. Should the appellant make the case by admissible evidence on a motion before a Nunavut court that her condition requires that she be able to give evidence from a remote location, there is no reason to believe that the appellant’s request could not be accommodated.

[8] Accordingly, the appeal is dismissed with costs to the respondent in the agreed sum of $5,000, inclusive of disbursements and applicable taxes.

“H.S. LaForme J.A.”

“G. Pardu J.A.”

“L.B. Roberts J.A.”