Gordon et al. v. Deiotte et al.
[Indexed as: Gordon v. Deiotte]
109 O.R. (3d) 626
2012 ONSC 1973
Ontario Superior Court of Justice,
Koke J.
April 3, 2012
Conflict of laws -- Forum conveniens -- Plaintiffs living on Ontario side of border city -- Plaintiffs were passengers in vehicle of Ontario resident which was rear-ended on Michigan side of city by resident of that city -- Plaintiffs suing defendant in Ontario -- Ontario convenient forum. [page627]
Conflict of laws -- Jurisdiction -- Plaintiffs living on Ontario side of border city -- Plaintiffs were passengers in vehicle of Ontario resident which was rear-ended on Michigan side of city by resident of that city -- Plaintiffs suing defendant in Ontario -- Ontario having jurisdiction simpliciter -- Strong connection existing between plaintiffs and Ontario -- Connection also existing between defendant and Ontario as he was resident of border city and was aware that there was heavy flow of cross-border traffic -- Assumption of jurisdiction by Ontario court not unfair to defendant and avoiding unfairness to plaintiffs.
The plaintiffs lived in Sault Ste. Marie, Ontario, and the defendant lived in Sault Ste. Marie, Michigan. The cities were separated by the Canada-U.S. border. The plaintiffs were passengers in a vehicle owned and driven by a Sault Ste. Marie, Ontario resident when their vehicle was rear-ended by the defendant's vehicle in Sault Ste. Marie, Michigan. They brought an action against the defendant in Ontario and added their own insurer as a defendant pursuant to the uninsured and underinsured provisions of the policy as they were claiming damages in excess of the defendant's policy limit. The defendant brought a motion to stay the action on the basis that Ontario was not the appropriate jurisdiction and, alternatively, was not the most convenient forum.
Held, the motion should be dismissed.
The Ontario court had jurisdiction to try the action. There was a strong connection between Ontario and the plaintiffs' claim. Not only did they live in Ontario, the vehicle in which they were riding was also licensed and insured in Ontario. Although they received medical treatment initially in Michigan, the balance of their medical treatment was administered in Ontario, and most of their damages had therefore been sustained in Ontario. There was also a connection between the defendant and Ontario. He was aware, as a resident of a border community, that there was a constant stream of automobile traffic flowing over the international bridge to and from Ontario, and it would have been within his expectation that, if he was involved in a motor vehicle accident, the other vehicle might be owned and driven by a resident of Ontario. The assumption of jurisdiction by the Ontario court would not result in unfairness to the defendant. The plaintiffs did not have insurance that covered the costs of having witnesses travel to Michigan, and the additional costs of witness travel might compromise the quality of their evidence. The defendant's insurer was covering the cost of his defence. If the Ontario court did not assume jurisdiction, and the defendant was underinsured, the plaintiffs would have to demonstrate to their insurer that the damages awarded to them were in accordance with the law of Ontario, failing which they might have to commence a separate action against their insurer in Ontario. It was desirable to avoid a multiplicity of proceedings.
Ontario was forum conveniens. It would be considerably less expensive and more convenient for the plaintiffs to prove their damages in Ontario. They had numerous witnesses and those witnesses could not be compelled to testify in Michigan. Moreover, by having the trial in Ontario, it would not be necessary for the plaintiffs to bring proceedings in two jurisdictions.
MOTION for an order staying an action.
Cases referred to Van Breda v. Village Resorts Ltd. (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, 185 A.C.W.S. (3d) 68, 71 C.C.L.T. (3d) 161, 2010 CarswellOnt 549, 77 R.F.L. (6th) 1, apld [page628] Other cases referred to Hunt v. T&N plc, [1993] 4 S.C.R. 289, [1993] S.C.J. No. 125, 109 D.L.R. (4th) 16, 161 N.R. 81, [1994] 1 W.W.R. 129, J.E. 93-1890, 37 B.C.A.C. 161, 85 B.C.L.R. (2d) 1, 21 C.P.C. (3d) 269, 43 A.C.W.S. (3d) 1070; Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, [1990] S.C.J. No. 135, 76 D.L.R. (4th) 256, 122 N.R. 81, [1991] 2 W.W.R. 217, J.E. 91-123, 52 B.C.L.R. (2d) 160, 46 C.P.C. (2d) 1, 15 R.P.R. (2d) 1; Muscutt v. Courcelles (2002), 60 O.R. (3d) 20, [2002] O.J. No. 2128, 213 D.L.R. (4th) 577, 160 O.A.C. 1, 13 C.C.L.T. (3d) 161, 26 C.P.C. (5th) 206, 114 A.C.W.S. (3d) 634 (C.A.) Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 106 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 17.02, (h), (o), 17.06
Brian Gualazzi, for plaintiffs (respondent on motion). Steven G. Shoemaker, for defendant Keith Deiotte (applicant on motion).
Endorsement of KOKE J.
1This motion involves the issue of whether this court should assume jurisdiction over the out-of-province defendant, Keith Deiotte.
Background
2The plaintiffs, Alan and Linda Gordon, live in the City of Sault Ste. Marie, in the Province of Ontario, Canada. The defendant, Keith Deiotte, lives in the City of Sault Ste. Marie, in the State of Michigan, U.S.A. The cities are separated by the St. Mary's River, which comprises the international border between Canada and the United States. Sault Ste. Marie, Ontario is located on the north side of the border and Sault Ste. Marie, Michigan is located on the south side of the border.
3The plaintiffs were passengers in a vehicle which was involved in a collision with a vehicle which was owned and driven by the defendant, Keith Deiotte. The accident occurred on March 11, 2009. Mr. Deiotte's vehicle was registered and insured in the State of Michigan. The collision occurred on the southbound lanes of Hwy I-75 near the City of Sault Ste. Marie, Michigan.
4The vehicle in which the plaintiffs were passengers was owned and driven by Daniel Nystedt, a resident of Sault Ste. Marie, Ontario. Mr. Nystedt's vehicle was registered in the Province of Ontario and was insured in Ontario by Royal and Sun Alliance Insurance Company of Canada ("Royal and Sun Alliance"). [page629]
5In their statement of claim, the Gordons plead that they sustained damages as a result of the collision. They describe the collision as having occurred when the Deiotte vehicle struck their vehicle from behind, propelling their vehicle forward into the rear of a vehicle driven by Lorie Ann Williams, who lives in the town of Rudyard, Michigan.
6The police report refers to the Deiotte vehicle as Vehicle #1, to the Nystedt vehicle as Vehicle #2 and to the Williams vehicle as Vehicle #3. The report describes the accident as having occurred as follows:
#1 S/B 75 lost control . . . rear ended #2, #2 ran into #3 after #1 rear ended #2.
7The report indicates that Mr. Deiotte was issued a citation by the investigating police officer for driving too fast for the conditions. His counsel advises that Mr. Deiotte paid the fine in relation to that citation. No citations were issued to the other two drivers.
8Mr. Deiotte's vehicle was insured with Auto Owners Insurance Group ("Auto Owners Insurance"), an insurance company which is based in the U.S.A. Counsel for Mr. Deiotte advises that the liability limit of his client's insurance policy is $500,000. The plaintiffs claim damages in excess of $1.6 million and have added Royal and Sun Alliance as a defendant pursuant to the "Family Protection" and "Uninsured and Underinsured" provisions of the policy issued by this insurer.
9The plaintiffs have not issued claims against the other two drivers, Mr. Nystedt and Ms. Williams, and they allege that Mr. Deiotte is wholly at fault.
10The plaintiffs claim that their injuries have required them to receive ongoing and extensive therapy and medical care since the date of the accident to the present. Although they were initially treated at War Memorial Hospital in Sault Ste. Marie, Michigan, the balance of their health care and treatment has been obtained in Ontario.
11It is the evidence of the plaintiffs that Alan Gordon will have 25 potential witnesses, including 19 health care professionals, available to give evidence on his behalf at trial and Linda Gordon has 20 potential witnesses, including 13 health care professionals. All of these witnesses are residents of Ontario and cannot be compelled to give evidence in the State of Michigan.
12Following the collision, Mr. Deiotte was put on notice of this claim by the plaintiffs' solicitors on May 26, 2009. The plaintiffs issued their statement of claim in the Superior Court in Sault Ste. Marie, Ontario. Mr. Deiotte was served with the claim [page630] in May 2011. Mr. Deiotte disputes the jurisdiction of this court and brings this motion.
13The motion materials indicate that Mr. Deiotte is disputing liability and wishes to add Ms. Williams as a third party. The parties agree that the first time the potential liability of Ms. Williams was brought to their attention was in relation to this motion.
14The defendant Royal and Sun Alliance does not take a position in this motion and was not represented at the hearing thereof.
Issues
[15] The defendant Deiotte moves to have the action stayed on the basis that the State of Michigan is the appropriate jurisdiction to have this claim tried and that the Province of Ontario is the inappropriate jurisdiction. The issues raised by Deiotte are twofold: (a) Jurisdiction Simpliciter: In the circumstances of this case, does the Ontario court have jurisdiction over the out-of-province individual defendant for damages arising out of the collision? (b) Forum Non Conveniens: If the Ontario court does have jurisdiction, should the action be stayed on the grounds that the Province of Ontario is not the most convenient forum?
16Mr. Deiotte relies upon the provisions of rule 17.06 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (to set aside service) and s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (staying proceedings).
The Legal Framework
17In Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, [1990] S.C.J. No. 135, the Supreme Court of Canada established a common law test for assumed jurisdiction and enforcement of foreign judgments. This test sets out the requirement that there be a "real and substantial connection" to the selected jurisdiction, having regard to the circumstances of the claim and the defendants' connection to the same.
[18] In Muscutt v. Courcelles (2002), 60 O.R. (3d) 20, [2002] O.J. No. 2128 (C.A.), the Ontario Court of Appeal addressed the issue of balancing the necessity for a flexible approach to the application of the real and substantial connection test with the need for clarity and predictability. The court in Muscutt laid [page631] down eight factors to be used to determine whether there was a real and substantial connection, sufficient to support the assumption of jurisdiction in such cases. The factors set out by the court are as follows: (i) the connection between the forum and the plaintiffs' claim; (ii) the connection between the forum and the defendant; (iii) unfairness to the defendant in assuming jurisdiction; (iv) unfairness to the plaintiff in not assuming jurisdiction: (v) the involvement of other parties to the suit; (vi) the court's willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis; (vii) whether the case is inter-provincial or international in nature; and (viii) comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere.
19In Muscutt, the Court of Appeal also distinguished the real and substantial connection test from the "forum non conveniens" test. At para. 43, it stated:
While the real and substantial connection test is a legal rule, the forum non conveniens test is discretionary. The real and substantial connection test involves a fact-specific inquiry, but the test ultimately rests upon legal principles of general application. The question is whether the forum can assume jurisdiction over the claims of plaintiffs in general against defendants in general given the sort of relationship between the case, the parties and the forum. By contrast, the forum non conveniens test is a discretionary test that focuses upon the particular facts of the parties and the case. The question is whether the forum should assert jurisdiction at the suit of this particular plaintiff against this particular defendant.
[20] The court in Muscutt went on to describe the list of factors used by courts in assessing a claim for forum non conveniens, at para. 41. These factors include (i) the location of the majority of the parties; (ii) the location of key witnesses and evidence; (iii) contractual provisions that specify applicable law or accord jurisdiction; [page632] (iv) the avoidance of a multiplicity of proceedings; (v) the applicable law and its weight in comparison to the factual questions to be decided; (vi) geographical factors suggesting the natural forum; (vii) whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court.
21On October 5, 2009, the Ontario Court of Appeal convened a five-judge panel to reconsider the Muscutt test in relation to two appeals which involved the issue of the court's extra-provincial jurisdiction. Both appeals involved claims for personal injury damages occasioned as a result of accidents suffered by Canadian tourists at resorts in Cuba. On February 2, 2010, the Court of Appeal released its decision in Van Breda v. Village Resorts Ltd. (2010), 2010 ONCA 84, 98 O.R. (3d) 721, [2010] O.J. No. 402, 2010 CarswellOnt 549 (C.A.).
22After considering the volume of case law which had emerged post-Muscutt, and with the benefit of the perspective offered by legal scholars and the arguments and submissions of counsel, the court in Van Breda indicated that it was possible and desirable to simplify the test and to provide for more clarity and ease in its application.
23This refined and simplified approach is applied to the facts of this case.
Stage one: Presumed jurisdiction
24Rule 17.02 of the Rules of Civil Procedure sets out the circumstances in which a party to a proceeding may be served with an originating process outside of Ontario. In its analysis, the court in Van Breda stated that with the exception of subrule "(h)" of rule 17.02 ("damage sustained in Ontario") and subrule "(o)" of rule 17.02 ("necessary or proper party"), if one of the connections identified in rule 17.02 is made out, a real and substantial connection is to be presumed. If jurisdiction is presumed, the defendant then bears the burden of demonstrating that a real and substantial connection does not exist. Conversely, if one of the permitted connections cannot be identified, the plaintiff must demonstrate that in the circumstances of the case, the real and substantial connection test is met.
25In this case, the plaintiffs submit that the defendant Deiotte could be served in the State of Michigan because the [page633] plaintiffs' damages were sustained in the Province of Ontario and Mr. Deiotte is a necessary and proper party to the action.
26The connections which permit service of the claim in this case are exceptions to the general rule that the connections in rule 17.02 attract a presumption of a real and substantial connection. The plaintiffs therefore bear the burden of establishing a real and substantial connection between their action and the jurisdiction of Ontario.
Stage two: Have the plaintiffs established a real and substantial connection between the forum, the plaintiffs' claim and the defendant?
27The court in Van Breda refers to stage two as the "core" of the real and substantial connection test. It refers to the remaining considerations or principles such as fairness, the involvement of other parties to the suit, the willingness of the court to recognize and enforce extra-provincial judgments and whether the case is interprovincial or international as "analytic tools to assist the court in assessing the significance of the connections between the forum, the claim and the defendant" (Van Breda, at para. 84). These remaining principles therefore become lenses through which the connections are viewed.
The connection between the forum and the plaintiffs' claim
28In Van Breda, the court confirmed that it would maintain the connection between the plaintiff's claim and the forum as a core element of the real and substantial connection test. In doing so, it referred to its decisions in Muscutt, where it stated [at para. 77]:
The forum has an interest in protecting the legal rights of its residents and affording injured plaintiffs generous access for litigating claims against tortfeasers. In Moran v. Pyle, [1975] 1 S.C.R. 393 at p. 409, Dickson J. spoke of "the important interest a state has in injuries suffered by persons within its territory." The Moran decision and the introduction of the "damage sustained" rule in 1975 were both motivated by the perception that the interests of justice required a more generous approach to assumed jurisdiction. The connection between the forum and the plaintiff's claim is therefore relevant.
29There is a strong connection between the Province of Ontario and the plaintiffs' claim. Not only do the plaintiffs live in the Province of Ontario, the vehicle in which they were riding was also licensed and insured in Ontario. Although the plaintiffs received medical treatment initially in the State of Michigan, the balance of their medical treatment has been administered in [page634] the Province of Ontario, and the majority of the damages have therefore been sustained in this province.
The connection between the forum and defendant
30The applicant lives in Sault Ste. Marie, Michigan. He argues that he has no assets in the Province of Ontario and that there is no connection between him and the Province of Ontario.
31In my view, it is not accurate to say that there is no connection between the defendant and the Province of Ontario. Sault Ste. Marie, Michigan is a border town. There is a constant stream of automobile and truck traffic flowing over the international bridge to and from the Province of Ontario. Many of these vehicles which arrive on the Michigan side of the bridge are owned and driven by residents of Ontario. Many of the vehicles which arrive on the Ontario side of the bridge are owned and driven by residents of Michigan. When southbound vehicles reach the end of the bridge on the Michigan side, these vehicles are on Hwy I-75, just a short distance from where the accident in this case occurred.
32There are many other connections between the residents of the two communities. Residents of Sault Ste. Marie, Ontario regularly cross the border to shop in Michigan and residents of Sault Ste. Marie, Michigan shop in Ontario. It is almost as common to see an Ontario plated vehicle as it is to see a Michigan plated vehicle parked in the Wal-Mart parking lot in Sault Ste. Marie, Michigan. Residents of Michigan own cottages on the north side of the border and residents of Ontario vacation in northern Michigan. Lake Superior State University in Sault Ste. Marie, Michigan attracts students from Sault Ste. Marie, Ontario, and Algoma University in Sault Ste. Marie, Ontario attracts students from Sault Ste. Marie, Michigan. Many of these students cross the border on a daily basis. Furthermore, residents of Michigan work in Sault Ste. Marie, Ontario and residents of Sault Ste. Marie, Ontario work in Michigan.
33The Province of Ontario and the State of Michigan are neighbouring jurisdictions and share a number of border crossings. The cities of Sault Ste. Marie, Ontario and Sault Ste. Marie, Michigan are neighbouring cities. The residents of the border communities in the two jurisdictions naturally share many connections.
Fairness
34In Van Breda, the court adopted the ruling of the Supreme Court in Hunt v. T&N Plc, [1993] 4 S.C.R. 289, [1993] S.C.J. No. 125, where the court stated that the assumption of [page635] jurisdiction "must ultimately be guided by the requirements of order and fairness, not a mechanical counting of contacts or connections" (Hunt, at p. 326 S.C.R.). The court also confirmed its earlier ruling in Muscutt (at para. 86) and stated [at para. 93] that
. . . [a] proper consideration of the defendant's position cannot be accomplished simply by looking at the acts or conduct that would render the defendant subject to the jurisdiction. The quality, strength or significance of those contacts cannot be assessed in a purely mechanical fashion. The inquiry necessarily entails consideration of the fairness or unfairness of asserting jurisdiction against the defendant in light of those contacts.
35Although the court in Muscutt determined that the defendants did not have any connection with Ontario that would justify the assumption of jurisdiction, the court held that [at para. 86]:
The consideration of the defendants' position should not end with an inquiry as to acts or conduct that would render the defendant subject to the jurisdiction. The principles of order and fairness require further consideration, because acts or conduct that are insufficient to render the defendant subject to the jurisdiction may still have a bearing on the fairness of assumed jurisdiction. Some activities, by their very nature, involve a sufficient risk of harm to extra-provincial parties that any unfairness in assuming jurisdiction is mitigated or eliminated.
36The plaintiffs submit that it would be unfair to them if this case was heard in Michigan. They point out that most of the witnesses live in the Province of Ontario, and they cannot be compelled to testify in another jurisdiction. It would also be costly to have them travel to Michigan to testify, and they do not have the benefit of insurance which will cover these transportation costs.
37I do not believe that the difficulties in having witnesses attend to give evidence in Michigan is a proper consideration in relation to the issue of fairness; the difficulties involved in having witnesses testify is a consideration which should be assessed as part of the forum non conveniens test. In Van Breda, the Court of Appeal addressed the issue by stating [at para. 121]:
I respectfully disagree with the way the motion judge dealt with the issue of fairness. In my view, by considering the difficulties the parties would face in arranging for witnesses to testify in either Cuba or Ontario, he conflated the forum non conveniens test with the real and substantial connection.
38The applicant submits that it would be unfair to him to have to defend this case in the Province of Ontario because he could not have foreseen that his conduct of driving on I-75 near his hometown could reasonably lead to harm which would result in him being subject to the court of a foreign jurisdiction. [page636]
39I cannot agree with the applicant's position. As discussed above, a considerable amount of traffic from the Province of Ontario flows across the international bridge and continues on its way southbound on Hwy I-75. Many of the vehicles which cross the bridge are driven by residents of Ontario. The applicant, as a resident of Sault Ste. Marie, Michigan would be aware of this and I believe that there would have been an expectation on his part that if he was involved in a collision with another vehicle on Hwy I-75 just south of Sault Ste. Marie it would be quite possible that the other vehicle would be owned and driven by a resident of Ontario. As stated by the court in Muscutt, "[s]ome activities, by their very nature, involve a sufficient risk of harm to extra-provincial parties that any unfairness in assuming jurisdiction is mitigated or eliminated" (Muscutt, at para. 86). In my view, driving at the location of this accident represents one such activity.
40I am not persuaded that the assumption of jurisdiction by the Ontario court would result in unfairness to the defendant. I note that the defendant is insured. His counsel advises that the insurer is signatory to an agreement by which it undertakes to defend its client in another jurisdiction. Furthermore, it is agreed and understood that the substantive law of the State of Michigan will apply to the claim.
41I have found that the difficulties in having witnesses testify in another jurisdiction is properly a matter to be considered in the context of the forum non conveniens analysis. However, I note that the plaintiffs do not have insurance which will cover the costs of having witnesses travel to the State of Michigan. The defendant's insurer is covering the cost of his defence. I have a concern that the additional costs of having witnesses travel to the State of Michigan may compromise the quality of the plaintiffs' evidence. If this were to be the case, this would result in unfairness to the plaintiffs. I note that financial hardship to the plaintiff was a factor which the court considered in Muscutt, with the court ultimately concluding that a consideration of unfairness favoured the plaintiff (Muscutt, at para. 90).
42In my view, any issue in relation to fairness or unfairness is to be decided in favour of the plaintiffs in the context of this action.
General Principles
Involvement of other parties
43The plaintiffs submit that the terms of their uninsured/underinsured coverage provides that damages are to be [page637] decided by a court in accordance with the law of Ontario. Therefore, if the court in Ontario does not assume jurisdiction, and the defendant is underinsured, the plaintiffs will have to demonstrate to their insurer that the damages awarded to them are in accordance with the law of Ontario, failing which they may have to commence a separate action against their insurer in Ontario. This would result in a multiplicity of proceedings, which should be avoided.
44I believe this is valid concern on the part of the plaintiffs. The court has been advised that the defendant's insurance limits are $500,000. There are two plaintiffs, both of who allege brain injuries and so in my view it was necessary for the plaintiffs to add their own insurer as a defendant.
45The applicant also raises concerns about a multiplicity of proceedings in the event this court assumes jurisdiction. He submits that it is his intention to issue a claim against Ms. Williams and that if this court assumes jurisdiction, he will be unable to add her as a party to this claim. He argues that this will lead to a multiplicity of proceedings, and that this will be unfair to him.
46I note that this was a rear-end collision, in which the applicant was charged and that he paid the fine resulting therefrom. The applicant has not persuaded me that there is any basis for a claim against Ms. Williams. It is now more than three years since the accident occurred and I expect that if the defendant was serious about issuing a claim against Ms. Williams he would already have done so . . . the limitation period for issuing a claim for damages resulting from a motor vehicle accident in the State of Michigan is three years. In my view, and given the facts and circumstance of this accident, it is quite likely that liability will ultimately be admitted and that the matter will proceed forward only on the issue of damages.
47Notwithstanding the foregoing comments under this heading, it is my view that any issues with respect to avoiding a multiplicity of proceedings should be addressed in relation to the analysis under forum non conveniens. The court in Van Breda held that the involvement of other parties to a claim is only relevant in cases where it is asserted as a possible connecting factor and in relation to avoiding a multiplicity of proceedings under forum non conveniens (Van Breda, at para. 102). It is not being asserted as a connecting factor by the parties in this motion, and accordingly I will return to this issue when I deal with the issue of forum non conveniens.
48The defendant submits that the potential third party, Ms. Williams, is a key witness, and she lives in the State of [page638] Michigan. He argues that Ontario courts cannot ensure the appearance of Michigan residents by summons from Ontario, and, as such, it is appropriate that the plaintiffs pursue their claim in Michigan.
49This issue, too, should properly be considered under the forum non conveniens analysis. I note, however, that at this time no claim has been made against Ms. Williams. Quite frankly, I fail to see any basis on which she can be considered to be a key witness. She was the driver of a vehicle which was first in line in relation to a three-vehicle rear-end collision. I expect that she would not have been able to see the collision which took place several cars behind her vehicle.
The court's willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis
50There is no evidence before me to suggest that based on the same juridical facts, an Ontario judgment cannot be enforced in the State of Michigan.
Whether the case is inter-provincial or international in nature
51This is an overarching principle that disciplines the exercise of jurisdiction against extra-provincial defendants (Van Breda, at para. 103). This case is clearly international in nature. Although courts may be less inclined to assume jurisdiction in such cases, this is only one factor that the court must consider. If the case is heard in Ontario, the substantive law of the State of Michigan will still be applied. The nature of the case (rear-end collision) is such that it is unlikely that an Ontario court will have difficulty applying the substantive law of the State of Michigan.
Comity and standards of jurisdiction, recognition and enforcement prevailing elsewhere
52Comity and the encouragement of uniformity or reciprocity are general principles that shape the rules of private international law. The court in Van Breda held that it was appropriate to take foreign law into account in an area of law that has such obvious and immediate application to foreign litigants (Van Breda, at para. 107). The court held, however, that these principles do not belong on a list of several items on a multi-factor list having more or less equal weight with the other factors; they are [page639] to be maintained as relevant to the assessment of real and substantial connection.
53The State of Michigan and Province of Ontario are both common law jurisdictions. There is no evidence before me to indicate that the defendant will be prejudiced in any way by having the case tried in Ontario. As already noted, the defendant's insurer is a signatory to an agreement that he will respond to lawsuits issued against its insured in Ontario. It is a sophisticated corporate entity and I expect that it is experienced in dealing with cross-border claims. I see no prejudice to the defendant if the claim is dealt with in Ontario.
Conclusion: Jurisdiction simpliciter
54I have considered the connection between the forum and the defendant and the forum and the plaintiffs' claim, and I have considered the elements of fairness or unfairness which arise in relation thereto. I have also considered certain general principles which impact on the real and substantial test. Clearly, the plaintiff has a significant connection to the forum. I have also found that there is a connection between the individual defendant and the forum, albeit more of an indirect connection. The plaintiffs reside in Ontario and have received their medical treatments in Ontario. I have found that it is possible that there would be some unfairness to the plaintiffs if they were forced to bring their action in the State of Michigan. I have also noted that it is unlikely that the individual defendant will suffer unfairness if this court accepts jurisdiction. After giving due weight to these issues, I have concluded that in this case the facts favour the assumption of jurisdiction by the Ontario court.
Stage three: Forum non conveniens
55The factors which the court must consider in determining the most appropriate forum are set out in para. 20, above.
56In considering the facts of this case it is clear that the main focus at trial will be the assessment of damages. The plaintiffs' medical providers are all located in Sault Ste. Marie.
57The plaintiffs have included their insurer as a party defendant, pursuant to the under-insured/uninsured provisions of her insurance policy. Pursuant to that policy, any damages claimed in relation to that policy are to be assessed in accordance with the law of Ontario and will therefore have to be proven in the Province of Ontario.
58It will be considerably less expensive and more convenient for the plaintiffs to prove their damages in Ontario. They [page640] have numerous witnesses and these witnesses cannot be compelled to testify in Michigan. If the liability is contested at trial, it will likely be a simple matter for Mr. Deiotte to cross over the international bridge and attend trial. It will be much more difficult for the plaintiffs to arrange or convince their medical providers to travel to a court in Michigan to testify. Any difficulties in ensuring that the medical providers will attend the trial will be prejudicial to the plaintiffs.
59Furthermore, by having the trial in Ontario it will not be necessary for the plaintiffs to bring proceedings in two jurisdictions and it is likely that a multiplicity of proceedings arising from the facts of this accident can be avoided.
60I find that the most convenient forum is the Province of Ontario.
Conclusion
61With respect to the issue of jurisdiction simpliciter, I find that the Superior Court of the Province of Ontario has jurisdiction to try this action. With respect to the issue of forum non conveniens, I find that Ontario is the more convenient forum. In conclusion, the applicant's motion is dismissed.
Costs
62If the parties cannot agree on costs, they may make written submissions. The respondents have 15 days to submit their submission, the applicant has 15 days thereafter to deliver his submissions and the respondents have ten days thereafter to submit a reply, if any.
Motion dismissed.
