McAlpine v. McAlpine

108 O.R. (3d) 672
2012 ONSC 297

Ontario Superior Court of Justice,
Hockin J.
January 12, 2012

Conflict of laws -- Forum conveniens -- Plaintiff suing defendant in Ontario for damages for historical sexual assault which allegedly occurred in Ontario -- Defendant having resided in Manitoba since early 1970s and being unwell -- Plaintiff residing in Middle East and not having lived in Ontario for 30 years -- Ontario not forum conveniens. [page673]

Conflict of laws -- Jurisdiction -- Real and substantial connection -- Plaintiff suing defendant in Ontario for damages for historical sexual assault which allegedly occurred in Ontario -- Defendant having resided in Manitoba since early 1970s and being unwell -- Plaintiff residing in Middle East and not having lived in Ontario for 30 years -- No real and substantial connection existing between claim and Ontario -- Plaintiff's Ontario lawyers' extensive experience with cases of this nature not amounting to real and substantial connection -- Proceedings stayed.

The plaintiff brought an action in Ontario for damages for a sexual assault which was allegedly committed in London, Ontario in 1962. The defendant had resided in Manitoba since the early 1970s. He was 67 years old. He had a heart transplant in 2007, and he was being followed regularly at a Winnipeg hospital. The plaintiff lived in the Middle East and had not lived in Canada for 30 years. She owned no property in Canada. The defendant brought a motion for an order setting aside service of the statement of claim and staying the proceeding.

Held, the motion should be granted.

The "real and substantial connection" test for jurisdiction was not met. The connection between the plaintiff and Ontario was insignificant. Beyond an allegation of a single act of assault 50 years ago, the defendant had no connection to Ontario. There was no unfairness in refusing jurisdiction. The plaintiff's lawyers' extensive experience in cases of this nature did not amount to a real and substantial connection, and their representation of the plaintiff was not necessary for the proper prosecution of the claim.

The defendant was unwell and wished to be close to his health care providers. The plaintiff could fly to Winnipeg from the Middle East almost as easily as she could to Toronto. As between Ontario and Manitoba, the better forum was Manitoba.

MOTION for an order setting aside service of the statement of claim and for an order staying the proceedings.

Cases referred to
Muscutt v. Courcelles (2002), 60 O.R. (3d) 20
Van Breda v. Village Resorts Ltd., 2010 ONCA 84
Other cases referred to
Auto Workers' Village (St. Catharines) Ltd. v. Blaney, McMurtry, Stapells, Friedman

Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 17.02, (g), (h), (o), 17.06(1), (2)

Kevin J. Souch, for plaintiff/responding party.
Anthony Bedard, for defendant/moving party.

HOCKIN J.: -- A. The Motion

[1] The defendant moves under rule 17.06(1) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 ] for an order setting [page674] aside service of the statement of claim or for an order staying the proceeding.

[2] The court's jurisdiction is set out in rule 17.06(2), which reads as follows:

17.06(2) The court may make an order under subrule (1) or such other order as is just when it is satisfied that, (a) service outside Ontario is not authorized by these rules; (b) an order granting leave to serve outside Ontario should be set aside; or (c) Ontario is not a convenient forum for the hearing of the proceeding.

B. Background

[3] The statement of claim was issued at London, Ontario on April 21, 2011. It was served on the defendant at his place of residence in the Town of Winnipeg Beach in the Province of Manitoba on April 29, 2011.

[4] The record on the motion consists of the statement of claim, the defendant's affidavit and an affidavit from a law clerk in the plaintiff's solicitor's law firm.

[5] The subject of the action is a claim for damages arising from a sexual assault which the plaintiff alleges was committed upon her by the defendant in 1962 at her uncle's home in London. The defendant is described in the statement of claim as the plaintiff's "adoptive brother".

[6] The damages claimed are substantial: for non-pecuniary general damages, $100,000; for past and future pecuniary damages, $1,200,000; for special damages, $100,000; for emotional and mental distress, $50,000; and for punitive and exemplary damages, $500,000.

[7] In 1962, the plaintiff was nine years of age and the defendant 17 years of age. Today, they are respectively, 59 years of age and 67 years of age.

[8] The damages and losses particularized in the statement of claim include the now well-known consequences from such an event. They have been present, it is alleged in the statement of claim, over the plaintiff's life although it is pled that the plaintiff "has only recently realized the problems and difficulties in her life are related to the abuse suffered by her" (see para. 20 of the statement of claim).

[9] The affidavit filed on the plaintiff's behalf makes the point that she retained the Ledroit Beckett firm because it has extensive experience in cases of this nature. [page675]

[10] The defendant, Robert McAlpine, in his affidavit of August 26, 2011, has described his present circumstances and history as follows.

[11] After graduating from the Royal Military College in Kingston in 1967, he was a member of the Canadian military for five years. In 1972, he became a teacher in Winnipeg. For the last 25 years of his career, he was principal of a school. He retired from teaching in 2007. In 2007, he had a heart transplant. He is followed regularly for his heart condition at the Heart Failure Clinic in Winnipeg.

[12] With respect to his stepsister, the plaintiff, he understands her history to include the following. She has lived away from Canada for more than 30 years. She owns property in France and has been employed as an educator in the Middle East for approximately 30 years. At one point, she owned property in Canada but it was sold. She told her mother at the time of its sale that her intention was never to live in Canada. He is unaware of where she resides now but by Google search, he believes she teaches in Dubai.

[13] For the purpose of determining this motion, I accept these facts as accurate. Mr. McAlpine's affidavit is dated August 26, 2011. It was served on the plaintiff's firm with the notice of motion on October 11, 2011. The responding affidavit of the law clerk, Mr. Meharg, was sworn on November 25, 2011. There is nothing in his affidavit which takes issue with Mr. McAlpine's affidavit.

C. The Law

1. Real and substantial connection test

[14] Muscutt v. Courcelles (2002), 60 O.R. (3d) 20 is still good law but it has been refined and clarified by Sharpe J.A., its author, in Van Breda v. Village Resorts Ltd., 2010 ONCA 84. I take from Van Breda, this guidance: (1) There is a clear distinction between legal jurisdiction simpliciter and the discretionary test for forum non conveniens. (2) Legal jurisdiction simpliciter may be presumed if the case falls into one of the grounds set out in rule 17.02. At para. 72 of Van Breda, Sharpe J.A. points out that "there are now several reasons that justify elevating the weight to be given rule 17.02 by saying that, with the exception of subrules 17.02 (h) ("damages sustained in Ontario") and (o) ("a necessary or proper party"), if a case falls within one of the connections listed in rule 17.02, a real and substantial connection for the purposes of assuming jurisdiction against the defendant shall [page676] be presumed to exist". Where the presumption applies, the defendant bears the burden of showing that a real and substantial connection does not exist. (3) The presumption does "not preclude a plaintiff from proving a real and substantial connection in other circumstances and does not preclude the defendant from demonstrating that, notwithstanding the fact that the case falls under rule 17.02, in the particular circumstances of the case, the real and substantial connection test is not met": see para. 72 (emphasis added). (4) The [at para. 84] "core of the real and substantial connection test" is the "connection that the plaintiff's claim has to the forum and the connection of the defendant to the forum, respectively". This is not a precise or mechanical test. At paras. 85 and 87 of Van Breda, Sharpe J.A. returned to Muscutt to elaborate as follows:

As we explained in Muscutt, at para. 36, the Supreme Court of Canada has rejected the notion that there is a precise or mechanical test to define the nature or degree of connections required. In Morguard, at pp. 1104-1109, the Court variously described a real and substantial connection as a connection "between the subject-matter of the action and the territory where the action is brought", "between the jurisdiction and the wrongdoing", "between the damages suffered and the jurisdiction", "between the defendant and the forum province", "with the transaction or the parties", and "with the action" [emphasis in original]. . . .

As we put it in Muscutt, at para. 77, when explaining the importance of defining the real and substantial connection test broadly enough to embrace consideration of the connection between the forum and the plaintiff's claim:

The forum has an interest in protecting the legal rights or its residents and affording injured plaintiffs generous access for litigating claims against tortfeasors. In Moran v. Pyle 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. At para. 89, he added that "[w]hen assessing the connection between the forum and the defendant, the primary focus is on things done by the defendant within the jurisdiction". (5) The notion of order and fairness is central to the question of a real and substantial connection. The fairness of assuming or refusing jurisdiction should be considered together: see [page677] para. 97, Van Breda. Consideration of fairness is [at para. 98] "not a separate inquiry unrelated to the core of the test . . . [It is] an analytical tool to assess the relevance, quality and strength of [the] connections" between the forum, the claim and the defendant. Finally, "unfairness to the plaintiff in not assuming jurisdiction does not amount to an independent factor capable of trumping the want of a real and substantial connection between the forum and the plaintiff's claim and/or the defendant": see para. 99, Van Breda.

2. Forum non conveniens

[15] The following factors are often taken into account by courts in determining the better forum for the action [Muscutt, at para. 41]:

-- the location of the majority of the parties
-- the location of key witnesses and evidence
-- contractual provisions that specify applicable law or accord jurisdiction
-- the avoidance of a multiplicity of proceedings
-- the applicable law and its weight in comparison to the factual questions to be decided
-- geographical factors suggesting the natural forum
-- whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court

[16] The 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" (see para. 43, Muscutt).

D. Position of the Parties

[17] The position of the defendant is set out succinctly in the grounds for the motion. They are described as follows: (1) The plaintiff and the defendant reside away from this jurisdiction. (2) There is no evidence to be heard here which requires a trial in Ontario. (3) There are no witnesses in Ontario. (4) The only connection this case has with Ontario is an allegation of sexual assault which occurred 49 years ago. [page678] (5) Ontario is not the convenient forum but Manitoba is.

[18] The position of the plaintiff is set out in the affidavit of Darren Meharg, law clerk, as follows. The plaintiff's choice of law firm is important to her. It has extensive experience in sexual abuse cases. None of its lawyers is licensed to practise law in Manitoba. The plaintiff would be deprived of her choice of counsel if this matter proceeds in Manitoba. As well, counsel for the plaintiff in correspondence to a physician and an accountant dated November 25, 2011 advised them that he will retain them as expert witnesses "as this matter gets closer to trial". The plaintiff's brother is named as a witness although there is no mention of the relevance of his evidence. Finally, the law clerk offers the view that the "majority of the witnesses to testify at trial reside in Ontario".

E. Decision

[19] For the reasons which follow, an order is granted setting aside service and staying the proceeding.

Section I -- The real and substantial connection test

[20] Although a real and substantial connection may be presumed in this case under the ground of a tort committed in Ontario, rule 17.02(g), I am satisfied that in the circumstances of this case, the real and substantial connection test is not met.

1. The connection between Ontario and the plaintiff's claim

[21] The only evidence on the plaintiff's present place of residence is the defendant's affidavit evidence that the plaintiff lives in Dubai and has worked in the Middle East for 30 years. She has no property in Canada. In a geographic sense, there is no connection between the plaintiff and Ontario.

[22] The plaintiff's claim is a damages claim arising out of an allegation of sexual assault. The predominating element in cases of this nature is the damage suffered. Where the place and nature of the event may be described shortly and there are no surviving witnesses, the plaintiff's history of emotional difficulty will take the trier from her early adulthood to early old age, from Canada, overseas and eventually to the Middle East. I find, therefore, the connection between the plaintiff's claim and Ontario insignificant.

2. The connection between Ontario and the defendant

Beyond an allegation of a single act of assaultive behaviour 50 years ago, the defendant has no connection to Ontario. [page679]

3. Fairness

[23] On balance, I see no unfairness in refusing jurisdiction. The only connection to Ontario, to repeat, is an allegation of an historically remote event within the home of a relative of the parties. I see no disadvantage to the plaintiff if this short event and place are described by the plaintiff in a court room in Manitoba rather than Ontario. The relevance, quality and strength of this single connection with Ontario and the plaintiff's claim are insignificant.

[24] In the post-Muscutt view of jurisdiction simpliciter, the forum of necessity doctrine should be taken into account despite the absence of a real and substantial connection. The rule is that "[w]here there is no other forum in which the plaintiff can reasonably seek relief, there is a residual discretion to assume jurisdiction": see para. 100 from Van Breda.

[25] I mention this because counsel for the plaintiff attempted in argument to elevate the background and experience of his firm in cases of this nature to a level of importance to the plaintiff which amounted to a real and substantial connection, or suggested that their representation of the plaintiff was necessary for the proper prosecution of the claim. If that was his purpose, it is rejected. This case and, in general, cases of this nature are based on the simplest of torts, an assault and the proof of injury and damage is the same as any injury case. I am not prepared to find that the bar in Manitoba is incapable of representing the plaintiff. In any event, the plaintiff's firm under the Law Society of Manitoba's Law Society Rules, Part 3, Division 6 may provide legal services in Manitoba without a permit to a maximum of 100 business days.

[26] The general principles of comity and private interprovincial law are not factors to be taken into account in this case.

[27] For these reasons, I conclude that there is no real and substantial connection between the plaintiff's claim and this jurisdiction. The test is not met. Subject to the consideration of the issue of forum non conveniens, there is nothing unfair about requiring the plaintiff to prosecute her claim in Manitoba.

Section II -- Forum non conveniens

[28] The defendant's position is that the better forum as between Ontario and Manitoba is Manitoba, and in the result, the Ontario action should be stayed. I agree.

[29] The plaintiff has no connection with Ontario. The defendant in his affidavit suggests that the plaintiff lives in the Middle East, probably Dubai. The responding affidavit from the [page680] plaintiff's law clerk does not take issue with this. In fact, it is silent with respect to her place of residence. There is no mention of her location in the statement of claim. If she is in Dubai, she may fly to Winnipeg almost as easily as she may to Toronto.

[30] The defendant has lived in Winnipeg, Manitoba since 1970. He has been unwell. He had a heart transplant in 2007 and is followed regularly in Winnipeg in the Heart Failure Clinic. He prefers to deal with his defence where he lives, in order to be close to his health care providers.

[31] The only possible witness to the assault or to evidence of opportunity to commit an assault is the plaintiff's uncle who is deceased. The clerk's affidavit, at para. 15, suggests that the "majority of the witnesses to testify at trial reside in Ontario". I attach no weight to this. No one is named and the affidavit on this issue, the location of key witnesses, and their evidence, is baseless. In any event, it should have been the affidavit of the plaintiff's lawyer. The source of this information and the fact of the clerk's belief are absent. An affidavit from a clerk in this circumstance is to be accorded little, if any, weight. (See Auto Workers' Village (St. Catharines) Ltd. v. Blaney, McMurtry, Stapells, Friedman, [1997] O.J. No. 3126, 72 A.C.W.S. (3d) 1016 (Gen. Div.), at para. 13.)

[32] The two experts, Dr. Jaffe and the accountant Karen Dalton, were asked only five days before the motion, in effect, to set themselves aside for this case and advised that they might be consulted at some point as the trial approached. I find that they were contacted by correspondence for the purpose of shoring up the plaintiff's position on this motion.

[33] This will in likelihood be a long trial but the time taken up on the issue of liability will be short. A great number of witnesses will be damage witnesses or persons who have known the plaintiff overseas. The location of these witnesses is a neutral fact.

[34] The applicable law is simple on both liability and damages. There is no suggestion that there is an inter- jurisdictional difference on the law of assault or damages.

[35] It is not suggested that there is a loss of juridical advantage to the plaintiff if jurisdiction is declined.

[36] Finally, there is the defendant's present medical circumstance and the great inconvenience which will fall to him if jurisdiction is not declined.

[37] I conclude, therefore, that the better forum is Manitoba.

[38] In short, the only connection the plaintiff has with this jurisdiction is the location of her lawyer's firm. That is not enough. It cannot be that the plaintiff's choice of lawyer confers jurisdiction. [page681]

[39] Therefore, an order may issue setting aside service and staying this proceeding.

F. Costs

[40] There is no reason why costs should not reflect this result. Therefore, costs to the defendant, which I fix at $3,000 for fees plus HST of $390. The disbursements are $199.51, plus HST of $15.20. The total costs recoverable are therefore $3,604.71, payable forthwith.

Motion granted.