COURT FILE NO.: 11-CV-441483

MOTION HEARD: April 27, 2012

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 11-CV-441483 Alexander v. Alexander

BEFORE: Master Joan Haberman

COUNSEL:
Danson, P. for the moving party

Gogna, T.J. for the responding party

REASONS

Master Haberman:

[ 1 ] The defendant, Paul Buettell moves to set aside service of the statement of claim, or in the alternative to stay the action.

[ 2 ] The matter came before me on April 27, 2012, at which time I granted the primary relief sought with Reasons to follow. Here are my Reasons.

Context

[ 3 ] On December 12, 2009, the plaintiff, Juliet Alexander, was a passenger in her sister Yvette’s car. The two were traveling in the US and at some point that day, Yvette’s vehicle collided with a car owned and operated by the defendant, Buettell.

[ 4 ] The accident took place in the Township of Summit, Erie County, in the State of Pennsylvania, where Buettell resides. Both Juliet and her sister reside in Ontario- Juliet in Brampton, Yvette in Toronto.

[ 5 ] Juliet allegedly sustained injuries in the accident and she commenced suit in Toronto, Ontario on December 8, 2011. She has sued her sister, Yvette, but, apparently she has not yet served her. She has also sued the CAA, in their capacity as Yvette’s auto insurer, claiming against them only on the basis of the uninsured, underinsured and unidentified motorist provisions of the policy. They are therefore only a contingent player in the action at this time.

[ 6 ] It appears that liability for the accident remains in issue and, according to an affidavit sworn by Buettell’s counsel, it will be hotly contested. Though Yvette claimed that Buettell had been driving at a high rate of speed just prior to the collision, she was the one charged with making an improper or careless (left) turn. There was, however, an eye witness who apparently supported Yvette’s version of events.

[ 7 ] As Buettell sees it, there will be two important liability witnesses, both of whom reside in Pennsylvania – the investigating officer and the eye witness. Despite submissions to the contrary by Juliet’s counsel, both of these individuals are clearly identified in the “Police Crash Report” appended as an exhibit to the moving party’s record.

[ 8 ] Juliet agrees that liability remains in dispute, but claims the eye witness cannot be located so should not factor into the discussion. In his responding affidavit, Mr. Zarolia states that the address of the independent witness was “not provided.”

[ 9 ] That is not accurate – it is right there in the police report, typed in clear, bold letters and perfectly legible. Mr. Gogna so conceded when he was confronted with this in court. Regardless of who prepared the draft affidavit, I am troubled that counsel would swear to its truth without first satisfying himself that its contents were accurate.

[ 10 ] Juliet hangs her hat on damages. In his responding affidavit, Mr. Zarolia states:

The Plaintiff Juliet Alexander currently requires on-going medical care and treatment, which she is receiving in the Province of Ontario.

[ 11 ] Aside from the fact that not one report, clinical note or record is appended as an exhibit, Mr. Zarolia provides no information at all regarding the nature or extent of Juliet’s injuries. It is not clear if she fractured a bone, sustained soft tissue injuries or ruptured her spleen.

[ 12 ] There is no assertion that Juliet was actually treated by any medical practitioners as a result of injuries allegedly sustained in this accident. Instead, her counsel has appended an OHIP summary, setting out the names of the various doctors who have treated Juliet since the accident. His evidentiary segue is as follows:

The plaintiff intends to call a number of medical witnesses with respect to the motor vehicle accident.

[ 13 ] The areas of practice of these doctors are not identified and there is no indication, aside from the OHIP summary coded information, what each treated her for. The summary is therefore not terribly helpful as the wording is not specific, but only reflects a code that has been plugged in by the doctor for billing purposes. Nonetheless, it is important to examine what each of the doctors on Mr. Zarolia’s list saw Juliet for and when.

[ 14 ] Although the accident did not take place until December 2009, Juliet had already been treated by Dr. Berhiya for “other sprains and strains” in December 2008. She also saw Dr. Teper before this accident - in June 2009, for “chest pain”. I presume (though no evidence has been provided to clarify) that Dr. Teper is Juliet’s family doctor, as she saw him frequently for issues related to her pregnancy, as well.

[ 15 ] A third doctor referred to by Mr. Zarolia is Dr. Francesco Martino. He, too, saw Juliet before this accident, in May 2009, for “supportive otitis media” (an ear infection).

[ 16 ] Thus, three of the five doctors referred to by Mr. Zarolia had already seen Juliet before she sustained any injuries in this accident, one for pre-existing orthopaedic issues and one for an ear infection.

[ 17 ] That leaves two others: Dr. Garay and Dr. Gand. The OHIP summary is out-of date – about a year old, at this, point, so it is not possible to follow Juliet’s progress. However, a review of the portions that have been produced show that Dr. Garay saw her only once, in May 2010, for “abrasions, bruises, contusions and other superficial injury”. In the year that followed (the record goes to May 2011), he does not appear to have seen her again.

[ 18 ] There is no reference at all to a Dr. Gand on the OHIP summery. Juliet was seen by a Dr. Graham on May 19, 2010, for “sprains, strains, other trauma-knee, leg”. Thereafter, the only doctor she has seen has been her family physician, Dr. Teper.

[ 19 ] In view of the nature of the action and the fact that Juliet seeks to have the action tried here because of the damage issue, she ought to have supported her position with medical reports, addressing what her medical issues are.

[ 20 ] Juliet’s counsel repeatedly advised that no medical reports had been provided as it was too early to get reports regarding her condition. That is simply not accurate. It has been more than two years since these events so, to the extent that her injuries involved soft tissue, they have likely reached their plateau by now. In any event, any of Juliet’s treating physicians could have easily opined at this time as to her initial and current complaints, their observations, their diagnosis and prescribed treatment, if any, and her prognosis. A definitive report was not required for the purpose of this motion.

[ 21 ] Even if Juliet wished to avoid the cost of a obtaining a medical report at this time, her counsel could have ordered copies of her physicians’ clinical notes and records. These would have given the court some idea as to the nature and extent of her injuries and provided some context within which to assess how many witnesses were likely to be called at trial to address Juliet’s injuries. On the basis of the scanty information that has been provided, it is not possible to make any assessment as to which, if any, of the doctors referred to by Mr. Zarolia in his affidavit are likely to be witnesses at trial.

[ 22 ] Mr. Zarolia goes on to say:

All three of Juliet Alexander’s housekeeping providers reside in Ontario. These include her friends Tiny and Osa and her husband Antonio Martin.

[ 23 ] Again, there is no indication as to the nature or extent of Juliet’s injuries, let alone an alleged disability, such that three housekeepers are or were needed. There is no evidence as to what each is doing or has done for her and why she was unable to do these things herself.

[ 24 ] Mr. Zarolia concludes by stating that evidence regarding her employment and alleged income loss would be found in Ontario and that both of her supervisors reside in Toronto. He states:

... Juliet Alexander is a machine operator at KIK Custom Products (hereinafter “KIK”) in Toronto. She has been an employee at this company since 1999. She is currently employed at KIK full time and works forty hours a week.

[ 25 ] There is no evidence at all that Juliet actually lost time from work or income. Though her accident occurred on December 12, 2009, the OHIP summery indicates she sought no medical attention until December 17, at which time she saw Dr. Teper, presumably her family doctor. She does not appear to have seen anyone else regarding her alleged injuries until May 2010 and thereafter, she has only seen her family doctor. All that is clear from this evidence is that Juliet is now working full time as a machine operator.

[ 26 ] Buettell maintains that Juliet has provided no evidence of her damages as yet. That appears to be borne out by how she has responded to this motion. Buetell has no connection to Ontario – he has been served in Pennsylvania with respect to an accident that took place there.

[ 27 ] As I have stated in many previous cases, regardless of the law in an area, a motion cannot succeed unless the court is provided with evidence to facilitate an assessment of the facts of the case within the applicable legal test. Counsel appears to have lost sight of that in preparing for this motion.

The Law

[ 28 ] Pursuant to Rule 17.02, a party to a proceeding may be served outside Ontario without leave of the court if he falls within at least one of 18 prescribed scenarios. However, where leave has not been sought, Rule 17.04(1) mandates that the party purporting to effect service without leave must:

... disclose the facts and specifically refer to the provision of rule 17.02 relied on in support of such service.

[ 29 ] Neither aspect of the Rule has been met in this statement of claim, nor was there a cross-motion to amend the pleading. The first and only reference to the subrule relied on to support service beyond Ontario is found in Juliet’s factum, where her counsel states that service was effected pursuant to Rule 17.02(n).

[ 30 ] That subrule actually has no application at all to these facts – it deals with service beyond Ontario where it has been authorised by statute. No factual basis has been established to support that contention, nor does it appear to be what Juliet intended, as she refers to the subrule, then states that this provision allows for service beyond Ontario where the damages have been sustained here. In fact, this is provided for in subrule (h).

[ 31 ] There is, however, a reference to Rule 17.02(n) in one of the cases provided. That was either a typographical error in that case or the Rule has since been changed. In either case, this is sloppy drafting.

[ 32 ] The Court of Appeal has recently revisited Muscutt and the factors articulated in that case in Van Breda v. Village Resorts Ltd. 2010 ONCA 84 , [2010] OJ No. 402. There, two Ontario residents sued for personal injuries sustained while on vacation at two Cuban resorts. In both cases, the resort had hired Ontario promoters to prepare travel brochures and to enter into contracts on their behalf with Ontario operators to advertise their venues.

[ 33 ] The court began its analysis by reformulating the Muscutt test as follows:

1. The starting point of the analysis is whether the claim falls within Rule 17.02 (except subrules (h)- (o)) to determine if a real and substantial connection to Ontario is presumed to exist;

2. Where it is not presumed, the plaintiff has the onus of establishing it with reference to the factors;

3. The factors should not be treated as independent of one another with equal weight. Instead, they have to be reviewed as part of a general legal principle within which to consider the case;

4. While fairness is one of the factors that comes into play, again, it is not an independent factor which overrides the rest, but simply part of the analysis;

5. The jurisdiction simplicitor and real and substantial connection test is separate and distinguishable from the forum non conveniens test;

6. If our court would not be prepared to recognize and enforce an extra-provincial judgment rendered against an Ontario resident on the same jurisdictional basis, we should not assume jurisdiction when the plaintiff is an Ontario resident;

7. Forum non conveniens should only be considered after and if the court finds there is a real and substantial connection with Ontario;

8. Where there is no other forum in which a plaintiff can reasonably seek relief, the court can exercise its residual discretion and assume jurisdiction.

[ 34 ] In Van Bredan , the court accepted the trial judge’s view that a real and substantial connection had been made out by the plaintiff. In arriving at his conclusion, the trial judge focused, among other things, on the fact that these resorts relied heavily on the Canadian market. Each resort had a contractual arrangement with an Ontario service provider to facilitate their ability to capture that market by actively soliciting Ontario business. This contract was viewed as an important connection.

[ 35 ] Looking at cases decided since Van Bredan , in Mehmood v. Gray et al , 2011 ONSC 1735 , a case similar to this one, the action was stayed on the basis of the plaintiff’s inability to establish a real and substantial connection to Florida, the location of his motor vehicle accident. He, too, was an Ontario resident, who claimed to have suffered damages here.

[ 36 ] In that case, the court found the only connection between the defendants and Ontario was a tenuous link to a business from which the defendant had rented the vehicle he was operating at the time of the accident.

[ 37 ] On the issue of fairness, the court stated that it would not be unfair for the plaintiffs to advance their claims in Florida. Having traveled there, they ought to have assumed that Florida law would apply if they were involved in an accident in that state.

[ 38 ] Following a consideration of all of the relevant factors, the Ontario action was stayed.

[ 39 ] Similarly, in Van Kessel v. Orsulak et al 2010 ONSC 6919 , the court considered whether the Ontario plaintiff in that case could pursue his tort action against a Pennsylvania defendant following a motor vehicle accident, and after reviewing all relevant factors, concluded that service should be set aside.

[ 40 ] In terms of the first factor - the plaintiff’s connection to Ontario - the court agreed that, in that case, there was a significant connection in view of the plaintiff’s damages having been sustained here. However, Tranmer J. also pointed out that proof of damages s ustained in Ontario was not, on its own, a significant factor to establish a real and substantial connection to this jurisdiction. It was simply one factor among others to be considered.

[ 41 ] When reviewing whether Pennsylvania-based defendants could be said to have any connection to Ontario, the court stated:

No act or conduct on the part of these Defendants caused this Plaintiff to be travelling through Pennsylvania at the time of the crash. There is nothing in her conduct that could amount to subjection or submission to the jurisdiction of the Ontario courts.

[ 42 ] The court then looked at the issue of fairness from both sides. From the plaintiff’s perspective, Tranmer J. points out that the plaintiff provided evidence that the cost of litigating in Pennsylvania would be insurmountable to him , given the cost of having to hire a lawyer and retain lay and expert witnesses in that jurisdiction. His efforts to retain counsel in Pennsylvania had not borne fruit to-date and the limitation period was fast approaching .

[ 43 ] From the defendants’ perspective, the court found they had a reasonable expectation that any action arising from this accident would be litigated in Pennsylvania. It was also likely that there would be crossclaims, one involving a party that could only be sued in Pennsylvania (this is not explained in the decision), which would lead to a multiplicity of proceedings.

[ 44 ] Tranmer J. also engaged in the “let’s turn the facts” around approach, concluding that:

...by engaging in the everyday act of driving a motor vehicle in Ontario, a driver should not be taken to have assumed the risk of defending his or her conduct in a foreign court.

[ 45 ] The same question could be asked of a Pennsylvania driver in this case: why would a Pennsylvania driver face this situation as a result of driving in his home state?

[ 46 ] The case of Furtado v. Cannon Express Corporation [2001] OJ No. 3390 put forward by Juliet is distinguishable. There, Power J. made it clear that though liability had not been admitted, it was not going to be a contentious issue going forward, so that the focus of the case was on the assessment of damages. The court also failed to consider jurisdiction simpliciter there as distinct from forum non conveniens , ultimately relying on criteria that related to the latter, rather than the former case.

[ 47 ] This decision was released well before Van Bredan , when there was still a certain degree of confusion regarding how to apply the Muscutt factors. It is therefore not helpful, factually or legally.

Analysis and Conclusion

[ 48 ] The first part of the analysis must be a consideration of whether service out of the jurisdiction was permitted, on the basis of the real and substantial connection test. As service in this case falls with Rule 17.02(h), this connection is not presumed so must be proven by the plaintiff. However, on the facts of this case as proven, the results would not be different even if there had been such a presumption.

The connection of the plaintiff, the defendant and other parties to the forum

[ 49 ] Juliet is an Ontario resident, Buettell resides in Pennsylvania. Yvette, also an Ontario resident, has not yet been served and there is no evidence regarding Juliet’s intentions. It is not a given that she will pursue her sister and she has filed no evidence to explain this state of affairs.

[ 50 ] As for the CAA, their liability only arises if there is no other defendant to respond or inadequate coverage. No evidence was provided regarding either Juliet’s injuries or alleged income loss, nor was Buettell cross-examined, to determine whether he is insured and, if so, his policy limits. There is therefore no reason to conclude, at this stage, that CAA will even be an active player in the action.

[ 51 ] Though it as foreseeable that Juliet would return home after sustaining her alleged injuries that, alone, is not a sufficient connection to this jurisdiction to justify suing here (see Gajraj v. DeBernardo 2002 44959 ).

Fairness

[ 52 ] From the defendant’s perspective, it would not be fair to a Pennsylvania driver operating his vehicle in Pennsylvania to be dragged into another jurisdiction to respond to a law suit. This is not considered as falling within his reasonable expectations (see Van Kessel , supra ).

[ 53 ] The limitation period in Pennsylvania has apparently expired but there is no evidence as to why the action was started here, or only here for that matter. The state of Ontario law regarding service ex juris was clear at the time the action was started on December 8, 2011, the eve of the expiry of the limitation period in both jurisdictions. It ought to have been clear that issuing in Ontario was a risky prospect.

[ 54 ] However, this was a decision made with the assistance of counsel who actually specializes in the area of personal injury law, rather than by an unsophisticated litigant on her own. A plaintiff cannot tilt the balance in her favour by making a decision that puts her in this position – in other words, the expiry of the limitation period in Pennsylvania cannot be the governing criterion that overrides all others. If it were, all plaintiffs in this position would wait until the eve of the limitation period to sue here in cases where both jurisdictions share a 2-year period. Clearly, that would not be fair.

[ 55 ] As a result, the termination of the limitation period is but one factor among many to be considered.

[ 56 ] There is no evidence from the plaintiff regarding her concerns about costs and the evidence she has filed about her general and special damages in order to show the number of witnesses that would have to travel Pennsylvania is vague and unsupported.

[ 57 ] As a result, I conclude that it would be unfair to Buettell to have to respond to this action here. By the same token, it is not unfair to the plaintiff to set aside service ex juris on these facts and on the basis of this evidentiary record.

This Court’s willingness to recognize and enforce an extra--provincial judgment rendered on the same jurisdiction basis

[ 58 ] If Ontario accepted jurisdiction in this case or cases like it, our court would be obliged to recognize and enforce decisions made in foreign courts involving their residents who were involved in accidents in Ontario while passing through. Our courts must be cautious before adopting a position that could lead to Ontario residents facing suits in foreign courts as a result of driving their cars on our roads.

[ 59 ] This factor also operates in favour of Buettell’s position.

International case

[ 60 ] In Gajraj , supra) , the Court of Appeal was of the view that the problems created by foreign accidents should not be governed entirely by Canadian jurisdictional standards as they are more complex. Instead, the court stated that we must look to the norms that prevail in the other jurisdiction.

Comity

[ 61 ] Here the question essentially comes down to whether there would be reciprocity in the other jurisdiction - in other words, if Buettell had come to Ontario and sustained injuries in an accident here, would Pennsylvania accept jurisdiction if Buettell chose to sue Yvette in Pennsylvania? There is no reason to expect that would occur.

[ 62 ] On the basis of all of the foregoing and a balancing of these factors, I am of the view that service of this claim in Pennsylvania was not proper and I therefore order that it is set aside. As a result of my findings in this regard, I am not required to consider the forum non conveniens test.

[ 63 ] The moving party is entitled to his costs, fixed at $6000 and payable within 30 days.

Master Joan M. Haberman

Released: May 11, 2012