Misyura v. Walton et al. [Indexed as: Misyura v. Walton]

112 O.R. (3d) 462
2012 ONSC 5397

Ontario Superior Court of Justice

Perell J.
September 25, 2012

Conflict of laws -- Jurisdiction -- Ontario-resident plaintiff struck by vehicle owned and driven by resident of New York State while visiting that state -- Plaintiff suing owner/ driver in Ontario and also suing her own automobile insurer under underinsured coverage of policy -- Insurer bringing cross-claim against owner/driver -- Claim and cross-claim permanently stayed -- Ontario not having jurisdiction simpliciter.

While visiting New York State, the plaintiff, a resident of Ontario, was struck by a New York-registered vehicle owned and driven by the defendant W, a resident of that state. W was insured by a company that was not licensed to write insurance in Ontario and whose policy provided coverage of US$50,000 per claimant. The plaintiff was insured by the defendant Economical. She sued W in Ontario, and also sued Economical under the underinsured coverage of her standard automobile insurance policy. Economical brought a cross-claim against W, who brought a motion for an order staying the action and cross- claim on the grounds that the Ontario court did not have jurisdiction simpliciter and, alternatively, that Ontario was forum non conveniens. Economical resisted the motion, relying on the factor that W was a necessary party to its cross-claim as the basis for the Ontario court having jurisdiction simpliciter.

Held, the motion should be granted.

A real and substantial connection to Ontario will be presumed to exist in all the situations listed in rule 17.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, except for subrules 17.02 (h) ("damages sustained in Ontario") and 17.02(o) ("a necessary and proper party"). Even if W was a proper party for the main action and a necessary party to the cross- claim, a presumptive connecting factor was thus not established. In the context of tort claims, there are four presumptive factors: (a) the defendant is domiciled or resident in the province; (b) the defendant carries on business in the province; (c) the tort was committed in the province; and (d) a contract connected with the dispute was made in the province. None of those factors applied in this case. Ontario did not have jurisdiction simpliciter.

Even if Ontario did have jurisdiction, it was forum non conveniens.

Cases referred to

Club Resorts Ltd. v. Van Breda, [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, 212 A.C.W.S. (3d) 712, 91 C.C.L.T. (3d) 1, 10 R.F.L. (7th) 1, 17 C.P.C. (7th) 223, 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, 185 A.C.W.S. (3d) 68, 71 C.C.L.T. (3d) 161, 77 R.F.L. (6th) 1, apld Silvestri v. Hardy (2009), 95 O.R. (3d) 555, [2009] O.J. No. 1948, 2009 ONCA 400, distd

Other cases referred to

Cugalj v. Wick, [2012] O.J. No. 1719, 2012 ONSC 2407 (S.C.J.); Gajraj v. DeBernardo (2002), 2002 44959 (ON CA), 60 O.R. (3d) 68, [2002] O.J. No. 2130, 213 D.L.R. (4th) 651, 160 O.A.C. 60, 40 C.C.L.I. (3d) 163, 114 A.C.W.S. (3d) 636 (C.A.); [page463] Muscutt v. Courcelles (2002), 2002 44957 (ON CA), 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

Comprehensive Motor Vehicle Insurance Reparations Act (New York State), 5104
Insurance Act, R.S.O. 1990, c. I.8, ss. 265 [as am.], 267.5(1), (2), (3) [as am.], (5)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 17.02, (a), (h), (o)

MOTION for an order staying the claim and the cross-claim.

Y. Silberman, for plaintiff.
M. Wilson, for defendant Rubin Walton.
J. Small, for Economical Insurance Group.

A. Introduction

1While crossing a street in New York State, Tetyana Misyura, a Canadian visiting the United States, was struck by a motor vehicle owned and driven by Rubin Walton. Ms. Misyura returned to Ontario, and she sues Mr. Walton for negligence. And she sues her insurance company, Economical Insurance Group, under the underinsured coverage of her standard motor vehicle insurance policy. Mr. Walton now moves to have Ms. Misyura's action permanently stayed on the grounds that the Ontario court does not have jurisdiction simpliciter or, in the alternative, that Ontario is forum non conveniens.

2Ms. Misyura does not oppose Mr. Walton's motion.

3Economical, her insurance company, which has a cross- claim against Mr. Walton, opposes his motion, and it submits that this court has jurisdiction simpliciter in the main action and in the cross-claim and that Ontario is the convenient forum. It submits that it and Ms. Misyura should not be forced to litigate in two jurisdictions with the spectre of inconsistent outcomes.

4Economical also submits that even if this court stays Ms. Misyura's action against Mr. Walton, this would not affect Economical's cross-claim.

5For the reasons that follow, I rule that this court does not have jurisdiction simpliciter over the main action or over the cross-claim.

6Because there is no jurisdiction simpliciter, strictly speaking, it is not necessary to rule on whether Ontario is forum non conveniens. However, since there may be an appeal, I rule that Ontario is forum non conveniens for the action and [page464] for the cross-claim. New York is the proper forum for the tort claim against Mr. Walton.

B. Factual and Procedural Background

7On December 27, 2009, Ms. Misyura, who is normally resident in Ontario, was crossing North Main Street in Canandaigu, New York State when she was struck by a New York- registered motor vehicle owned and operated by Mr. Walton. Ms. Misyura suffered personal injuries and claims $1 million in damages.

8There were three witnesses to the accident. Two of the witnesses are residents of the United States.

9Ms. Misyura was transported from the accident scene to a local hospital where she was released without apparent injury. Upon her return to Toronto, where she is employed as a mathematics teacher at Centennial College, however, she could not work for eight months, and then she could only work part- time because of difficulty standing. She continues to receive medical treatment in Ontario.

10Mr. Walton is an American citizen, who has never resided outside the United States. He has no business or personal connections with Ontario, and he has never even visited the province.

11At the time of the accident, Mr. Walton was insured by Progressive Direct Insurance Company. Progressive is an Ohio corporation that is not licensed to write insurance in Ontario. Mr. Walton's insurance policy provides coverage of US $50,000 per claimant. Progressive is prepared to pay to its policy limits. Mr. Walton, however, is unable or unwilling to accept liability for a $1 million judgment and denies liability.

12At the time of the accident, Ms. Misyura was an eligible claimant under an insurance policy issued by Economical. Economical carries on business in Ontario and does not carry on business in New York State. Ms. Misyura has $1 million in coverage.

13At the time of the accident, Ms. Misyura was insured under Ontario Automobile Policy (OAP 1), Owners Automobile Policy issued by Economical. The policy included an OPCF 44R Family Protection Change Form. For present purposes, the relevant provisions of OPCF 44R -- Family Protection Coverage are as follows:

OPCF 44R -- FAMILY PROTECTION COVERAGE

Definitions

1.3 "eligible claimant" means (a) the insured person who sustains bodily injury[.] [page465]

Insuring Agreement

3. In consideration of a premium of $ . . . or as stated in the Certificate of Automobile Insurance to which this change form is attached, the insurer shall indemnify an eligible claimant for the amount that he or she is legally entitled to recover from an inadequately insured motorist as compensatory damages in respect of bodily injury to or death of an insured person arising directly or indirectly from the use or operation of an automobile

Amount Payable per Eligible Claimant

6. The amount payable to an eligible claimant under this change form shall be calculated by determining the amount of damages the eligible claimant is legally entitled to recover from the inadequately insured motorist, and deducting from that amount the aggregate of the amounts referred to in Section 7 of this change form, but in no event shall the insurer by obliged to pay an amount in excess of the limit of coverage under Sections 4 and 5 of this change form.

Determination of the Amount Recoverable

9. The amount that an eligible claimant is entitled to recover shall be determined in accordance with the procedures set forth for determination of the issues of quantum and liability under Section 5 of the Policy "Uninsured Automobile Coverage".

10. In determining the amount that an eligible claimant is entitled to recover from the inadequately insured motorist, issues of quantum shall be decided in accordance with the law of Ontario, and issues of liability shall be decided in accordance with the law of the place where the accident occurred.

Procedures

16. Where an eligible claimant commences a legal action for damages for bodily injury death against any other person owning or operating an automobile involved in the accident, copy of initiating process shall be delivered or sent by registered mail immediately to the chief agent or head office of the insurer in Ontario together with particulars of the insurance and loss

. . . . . . [page466]

Subrogation

20. Where a claim is made under this change form, the insurer is subrogated to the rights of the eligible claimant by whom a claim is made, and may maintain an action in the name of that person against the inadequately insured motorist[.]

Assignment of Rights of Action

21. Where a payment is made under this change form, the insurer is entitled to receive from the eligible claimant an assignment of all rights of action, whether judgment is obtained or not, and the eligible claimant undertakes to cooperate with the insurer, except in a pecuniary way, in the pursuit of any subrogated action or any right of action so assigned

OAP 1 -- Ontario Automobile Policy

Settling a Claim

5.6.3 In Court -- The matter may be decided in a lawsuit brought against us by you or other insured persons in an Ontario court. If so, we have the right to ask the court to decide who is legally responsible and the amount of compensation owing, unless another Ontario court has already done so in an action that was defended.

14On November 12, 2010, Ms. Misyura commenced this action against Mr. Walton and Economical. She claims damages of $1 million.

15In her claim, Ms. Misyura pleads that her injuries were caused by the negligence of Mr. Walton. Further, she pleads that to the extent that her damages exceed Mr. Walton's insurance coverage ($50,000), Economical is liable under the underinsured motorist coverage in her policy of insurance.

16Ms. Misyura pleads that this court has jurisdiction simpliciter with respect to her claims against Mr. Walton. Paragraph 16 of her statement of claim states:

16. The Plaintiff further pleads and relies upon subrule 17.02 (g)(h) and (o) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended. The Plaintiff states that her claims against the non-resident Defendant are in respect of damages sustained by her in Ontario arising from a tort, breach of contract and/or breach of fiduciary duty committed in the State of New York, in the United States of America. The Plaintiff further pleads that the non-resident Defendant is a necessary or proper party to the proceeding.

17In its statement of defence and counterclaim, Economical denies that Mr. Walton caused the accident. It asserts that if Ms. Misyura sustained injuries, they were exclusively caused by her own negligence. It pleads that it is not liable for (a) non-pecuniary damage; (b) damages for income loss; and (c) damages for healthcare expenses by reason of 5104 of the [page467] Comprehensive Motor Vehicle Insurance Reparations Act of the State of New York or, in the alternative, by s. 267.5(1), (2), (3) and (5) of the Insurance Act, R.S.O. 1990, c. I.8.

18In its cross-claim against Mr. Walton, Economical claims an indemnity for any amount the court may order it to pay Ms. Misyura and it claims an indemnity pursuant to s. 265 of the Insurance Act under s. 20 of the OPCF 44R -- Family Protection Change Form.

19In support of his motion, Mr. Walton delivered an opinion from an American attorney, Jeffrey F. Basse, who opined that a New York court would not assume jurisdiction if a New York resident was injured in Ontario and that a New York court would not enforce a default judgment granted against Mr. Walton.

C. Discussion

20There are three ways in which Ontario's Superior Court of Justice court can assert jurisdiction against an out-of- province defendant: (1) presence-based jurisdiction; (2) consent-based jurisdiction; and (3) assumed jurisdiction: Muscutt v. Courcelles (2002), 2002 44957 (ON CA), 60 O.R. (3d) 20, [2002] O.J. No. 2128 (C.A.). In the case at bar, there is no presence-based jurisdiction and no consent-based jurisdiction. In the case at bar, the issue is whether Ontario should assume jurisdiction over this litigation. This case is about assumed jurisdiction.

21Assumed jurisdiction arises when the court takes jurisdiction because the foreign litigation has a "real and substantial connection" to Ontario and in that circumstance, the Ontario court is said to have "jurisdiction simpliciter". See Club Resorts Ltd. v. Van Breda, [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, 2012 SCC 17. The real and substantial connection test for assumed jurisdiction was designed to ensure that claims are not prosecuted in a jurisdiction that has little or no connection with either the transactions or the parties, and the test requires that a judgment rendered by a court which has properly assumed jurisdiction in a given case be recognized and enforced: Club Resorts Ltd. v. Van Breda, supra, at para. 26.

22In Club Resort, the Supreme Court of Canada developed an analytical framework and legal principles for assuming jurisdiction (jurisdiction simpliciter) and for deciding whether to decline to exercise it (forum non conveniens). The analytical framework was designed to bring some certainty and predictability to the domestic law (private international law) about how to resolve conflicts between different jurisdictions. Those conflicts of law are about (a) assuming jurisdiction over a matter; (b) determining what law to apply when the law from more than one jurisdiction might apply; and (c) recognizing and enforcing the judgments of other courts.

23To achieve order and fairness, which is a major goal of private international law, courts (and, in some provinces, legislatures) have developed a system of connecting factors informed by principles for applying them, as opposed to relying on almost pure judicial discretion or an ad hoc approach based on fairness to decide whether a court should assume jurisdiction: Club Resort Ltd. v. Van Breda, supra, at paras. 30-35, 73-79. In Club Resort, at para. 82, the Supreme Court stated that abstract concerns for order, efficiency or fairness in the system are no substitute for concrete connecting factors that give rise to a real and substantial connection.

24The Club Resort Ltd. v. Van Breda analytical framework begins by identifying circumstances where a court may presumptively assume jurisdiction on the basis of a real and substantial connection with the litigation: Club Resorts Ltd. v. Van Breda, supra, paras. 83 and 92. The underlying idea to all presumptive factors is that there are some circumstances where there would be a relationship between the subject matter of the litigation and the forum where it would be reasonable to expect that the defendant appear to answer the claim made against him or her in that forum.

25The list of presumptive connecting factors, however, is not closed, but the court should not adopt an ad hoc approach to assuming jurisdiction based upon the circumstances of a particular case. The court may, however, identify new factors that will establish a new presumptive connection, which can be used in other cases presumptively to assume jurisdiction. In identifying new presumptive factors, a court should look to connections that give rise to a relationship with the forum that is similar in nature to the ones which result from the established factors. Relevant considerations include (a) similarity of the connecting factor with the recognized presumptive connecting factors; (b) treatment of the connecting factor in the case law; (c) treatment of the connecting factor in statute law; and (d) treatment of the connecting factor in the private international law of other legal systems with a shared commitment to order, fairness and comity.

26If a presumptive connection (established or newly established) applies, the connection can be rebutted by the defendant through evidence that the connection is weak: Club Resorts Ltd. v. Van Breda, supra, at paras. 95-98. The burden of rebutting the presumption of jurisdiction rests on the defendant. [page469]

27If and only if the court has jurisdiction simpliciter may it go on to consider the matter of forum conveniens. When determining the existence of jurisdiction, a motion judge should not consider the issues that are part of the forum non conveniens analysis: Club Resorts Ltd. v. Van Breda, supra, at paras. 91 and 101; Cugalj v. Wick, [2012] O.J. No. 1719, 2012 ONSC 2407 (S.C.J.), at para. 11.

28Where a court concludes that it lacks jurisdiction because none of the presumptive connecting factors exist, or because the presumption of a connection has been rebutted, the court does not exercise any discretion and subject to the forum of necessity doctrine, where the court assumes jurisdiction as a matter of necessity, the court must dismiss or stay the action: Club Resorts Ltd. v. Van Breda, supra, at paras. 91-101. Conversely, if the court has jurisdiction, the action may proceed, subject to the court's discretion to stay the proceedings on the basis of the doctrine of forum non conveniens.

29In Club Resorts, at para. 64 of the Supreme Court's judgment, Justice LeBel summarized the analytical framework as follows:

In summary, the . . . approach offers a simplified test in which the roles of a number of the factors of the Muscutt test have been modified. In short, when one of the presumptive connecting factors applies, the court will assume jurisdiction unless the defendant can demonstrate the absence of a real and substantial connection. If, on the other hand, none of the presumptive connecting factors are found to apply to the claim, the onus rests on the plaintiff to prove that a sufficient relationship exists between the litigation and the forum. In addition to the list of presumptive and non- presumptive factors, parties can rely on other connecting factors informed by the principles that govern the analysis.

30Before the Club Resort case reached the Supreme Court, the Ontario Court of Appeal had already begun the process of establishing presumptive categories and of identifying situations where there is no presumption of a connection between the domestic court and a foreign litigant. In Club Resort, the Court of Appeal stated that a real and substantial connection should be presumed to exist in all the situations listed in rule 17.02 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194 except for subrules 17.02 (h) ("damages sustained in Ontario") and 17.02(o) ("a necessary and proper party").

31I foreshadow to say that for the purposes of the case at bar, the point that not all of situations listed in rule 17.02 create presumptive situations of assumed jurisdiction is particularly important because, as I will explain below, Economical essentially is relying on the factor that Mr. Walton is a necessary party to its cross-claim as the basis for the Ontario court having [page470] jurisdiction simpliciter. However, in light of the Court of Appeal's and the Supreme Court of Canada's decision in Club Resort, this factor is not a basis upon which to assume jurisdiction.

32In Club Resort, the Supreme Court continued the process of identifying presumptive factors. The situs of tort, contracts made in the domestic jurisdiction and carrying on business in the jurisdiction, with the qualification that the business must have an actual and not a virtual presence, were appropriate presumptive connecting factors: Club Resorts Ltd. v. Van Breda, supra, at paras. 86-88. In in the context of tort claims, the court identified four presumptive factors: (a) the defendant is domiciled or resident in the province; (b) the defendant carries on business in the province; (c) the tort was committed in the province; and (d) a contract connected with the dispute was made in the province: Club Resorts Ltd. v. Van Breda, supra, at para. 90.

33The Supreme Court also continued the process of indicating that some factors are not sufficient to establish a real and substantial connection. Thus, the presence of the plaintiff in the jurisdiction does not create a presumptive factor: Club Resorts Ltd. v. Van Breda, supra, at para. 86. The place where damages were sustained does not create a presumptive connecting factor: Club Resorts Ltd. v. Van Breda, supra, at para. 89.

34Coming to the situation of the case at bar, it can be seen that none of the four connective factors for tort cases applies, except possibly the fourth factor that there is a contract connected with the dispute. As to the contract factor, Mr. Walton, however, is not a party to the contract between Economical and Ms. Misyura, and it would appear that the insurance contract between Ms. Misyura and Economical envisions that she can have her claim against Economical determined without joining Mr. Walton as a party to the litigation.

35This last point follows from the fact that art. 5.6.3 of OAP 1 provides Economical with the right to ask the court to decide who is legally responsible and the amount of compensation owing. And art. 10 of OPCF 44R specifies that in determining the amount that an eligible claimant is entitled to recover from the inadequately insured motorist, issues of quantum shall be decided in accordance with the law of Ontario, and issues of liability shall be decided in accordance with the law of the place where the accident occurred.

36This point, that the contract claim may be tried without Mr. Walton as a party, may explain why Ms. Misyura is not opposing Mr. Walton's motion. She will litigate in Ontario and leave Economical with the problem of relitigating in the United [page471] States. In this regard, see, also, Gajraj v. DeBernardo (2002), 2002 44959 (ON CA), 60 O.R. (3d) 68, [2002] O.J. No. 2130 (C.A.), at para. 10.

37Economical submits that Ms. Misyura's contract action must be brought in Ontario and that Economical has a right of subrogation against Mr. Walton. It submits that if the Ontario action is stayed against Mr. Walton, it will have to litigate in two different jurisdictions with the spectre of inconsistent judgments. Essentially, Economical's argument for assumed jurisdiction is that Mr. Walton is a necessary party to the cross-claim and his presence is necessary to avoid a multiplicity of proceedings.

38In my opinion, Economical's argument fails and there is no basis for the court to assume jurisdiction. As I foreshadowed above, the Court of Appeal's decision in Club Resorts Ltd. v. Van Breda, which was affirmed by the Supreme Court of Canada, holds that the circumstances of damages in Ontario or the circumstance of necessary parties are not presumptively connections to Ontario. In this regard, Justice Sharpe, who wrote the Court of Appeal's decision in Van Breda [(2010), 2010 ONCA 84 (), 98 O.R. (3d) 721, [2010] O.J. No. 402 (C.A.)] stated, at paras. 78 and 79:

I would not give subrules 17.02(h) or (o) presumptive effect for the following reasons. The fact that neither is included in s. 10 of CJPTA indicates that neither has gained general acceptance as a sufficiently reliable indicator of a real and substantial connection. See also Janet Walker, "Beyond Real and Substantial Connection: The Muscutt Quintet", at pp. 71-74. The "damages sustained" rule was adopted to relieve against the very narrow view taken in the case law of the reach of the rule allowing for service ex juris "in respect of a tort committed in Ontario" before that area was liberalized by Moran. It is clear from the reasoning and the results in the Muscutt quintet that there are many situations where "damages sustained in Ontario" will not serve as a reliable indicator of a real and substantial connection. In my view, this position is not changed by Spar, which dealt with injurious acts committed outside Quebec that caused damages within Quebec and not the Muscutt situation where a plaintiff was injured outside the forum and then came to the forum and subsequently suffered damages: see Janet Walker, "Must there be Uniform Standards for Jurisdiction within a Federation?" (2003), 119 L.Q.R. 567, at p. 570.

With respect to rule 17.02(o), given the very generous scope of Rule 5 for the joinder of parties, the fact that a foreign defendant qualifies as a "necessary or proper party" to a proceeding is not, by itself, a reliable indicator that there is a real and substantial connection to support the assertion of jurisdiction over that defendant. The CJPTA Drafters' Comment to section 10 is apposite:

[S]uch a rule would be out of place in provisions that are based, not on service, but on substantive connections between the proceeding and the enacting jurisdiction. If a plaintiff wishes to bring proceedings against [page472] two defendants, one of whom is ordinarily resident in the enacting jurisdiction and the other of whom is not, territorial competence over the first defendant will be present . . . . Territorial competence over the second defendant will not be presumed merely on the ground that that person is a necessary or proper party to the proceeding against the first person. The proceeding against the second person will have to meet the real and substantial connection test. [Emphasis in original]

39Thus, even if Mr. Walton is a proper party for the main action brought by Ms. Misyura and a necessary party to the cross-claim, a presumptive connecting factor has not been established. Convenience and ad hoc notions of what is fair for Economical do not establish a connecting factor.

40In support of its argument that Ontario has jurisdiction simpliciter, Economical relies on the decision of the Court of Appeal in Silvestri v. Hardy (2009), 95 O.R. (3d) 555, [2009] O.J. No. 1948, 2009 ONCA 400, where an Ontario resident was injured in a motor vehicle accident in Michigan and the lower court ruled that Michigan and not Ontario was the forum conveniens. The Court of Appeal ruled that the motion judge erred because he did not consider the claim as a whole, including the prospect that there might be inconsistent judgments of two courts. The Silvestri case, however, is not helpful to Economical because the jurisdiction of the Ontario courts to try the claim was conceded, and thus it is entirely a case about forum conveniens.

41A case that supports Mr. Walton's argument and my conclusion that the Ontario court does not have jurisdiction simpliciter is Gajraj v. DeBernardo, supra. In this case, Mr. Gajraj was involved in a motor vehicle accident on an expressway in Queens, New York City. Mr. Gajraj sued the other drivers involved in the accident, Ms. DeBernardo and Mr. Manusami, who were residents of New York, and he sued Allstate Insurance pursuant to the underinsured motorist coverage endorsement. The American defendants moved to have the action in Ontario stayed. Allstate supported the plaintiffs' position and argued that the American defendants motion should be dismissed. In this pre-Club Resorts Ltd. case, Justice Sharpe applied the Muscott factors and concluded that there was no jurisdiction simpliciter. At para. 22 of his judgment, he stated:

To assume jurisdiction in the present case would create a rule requiring Ontario courts to recognize and enforce judgments of foreign courts for damages arising from Ontario motor vehicle accidents. In my view, Ontario courts should hesitate to adopt a jurisdictional rule requiring Ontario motorists to defend themselves in foreign courts against suits for damages arising from accidents in Ontario or face enforcement of a default judgment against them. I do not think that by engaging in the everyday act of driving a motor vehicle in Ontario, a driver should be taken to have assumed the [page473] risk of defending his or her conduct in a foreign court. As explained below, I would distinguish this case from Muscutt, which involved a motor vehicle accident in another Canadian province.

42Justice Sharpe concluded that the involvement of Allstate Insurance did not change the conclusion that Ontario did not have jurisdiction simpliciter. At para. 20 of his judgment, he stated:

In my view, on the facts of this case, the claim against Allstate does not fortify the case for assuming jurisdiction against the New York defendants. At this stage of the proceedings, the claim against Allstate is entirely speculative in nature. Counsel for the plaintiffs conceded that joining Allstate was a purely precautionary measure and that the plaintiffs do not at present know whether or not the New York defendants have adequate insurance coverage. It seems to me that this situation is very different from the situation in McNichol Estate v. Woldnik (2001), 2001 5679 (ON CA), 150 O.A.C. 68. In McNichol, the core of the plaintiff's claim was against the domestic defendants and adding the foreign defendant was necessary to avoid a multiplicity of proceedings. By contrast, here the core of the claim is against the New York defendants and the claim against the Ontario defendant is entirely secondary and contingent. Jurisdiction over claims against extra-provincial defendants should not be bootstrapped by such a secondary and contingent claim against a provincial defendant.

43Economical argues that Gajraj actually supports its argument of jurisdiction simpliciter because unlike the situation in that case, in this case at this stage of the proceedings, there is nothing speculative about the underinsured claim or its subrogated claim in the cross-claim. Economical's argument, however, misses the point that in light of the Club Resorts Ltd. v. Van Breda judgments, the necessary parties argument does not establish a presumptive connection to Ontario, and the courts have already rejected it as a new presumptive factor.

44The above conclusions also answers Economical's unattractive technical argument that Mr. Walton's notion of motion did not expressly seek to stay the counterclaim. The above analysis leads to the conclusion that the assertion of a domestic cross-claim cannot provide jurisdiction over Mr. Walton.

45The above conclusions also answers Economical's reliance on a passage from Justice LeBel's judgment in Club Resorts, where he makes the point that where there is a concurrent claim in tort and contract against a defendant and there is jurisdiction simpliciter for one but not both claims, the court will have jurisdiction simpliciter for both claims. At para. 99, Justice LeBel stated:

I should add that it is possible for a case to sound both in contract and in tort or to invoke more than one tort. Would a court be limited to hearing the specific part of the case that can be directly connected with the jurisdiction? Such a rule would breach the principles of fairness and efficiency on which the assumption of jurisdiction is based. The purpose of the [page474] conflicts rules is to establish whether a real and substantial connection exists between the forum, the subject matter of the litigation and the defendant. If such a connection exists in respect of a factual and legal situation, the court must assume jurisdiction over all aspects of the case[.]

46This passage does not help Economical. It would be helpful to it, if there was jurisdiction simpliciter for any claim against Mr. Walton, in which case, the other claims would be assumed. In the case at bar, however, there is no jurisdiction simpliciter over Mr. Walton in either the tort claim or in the cross-claim. I, therefore, conclude that there is no jurisdiction simpliciter in the case at bar.

47I will be brief about the matter of forum conveniens. In his Muscutt v. Courcelles, supra, at paras. 41-42, judgment, Sharpe J.A. noted that the courts have developed a list of factors that may be considered in determining the most appropriate forum for the action, including the location of the majority of the parties; the location of the key witnesses and evidence; contractual provisions that specify applicable law or accord jurisdiction; the avoidance of multiplicity of proceedings; the applicable law and its weight in comparison to the factual questions to be decided; geographical factors suggesting the natural forum; and whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage in the domestic court.

48Liability in the immediate case is disputed, and the defendant Mr. Walton and two witnesses are in New York. The tort occurred in New York, and American law will govern liability and the quantification of damages will be governed by Ontario law, although it seems that in this regard the heads of damages are similar. Ms. Misyuara and her doctors are in Ontario, which is a factor in her favour, but I am not aware of any juridical advantages or disadvantages to Ontario. In all these circumstances, assuming there was jurisdiction simpliciter, as a matter of discretion, I would decline to exercise the court's jurisdiction. It does not strike me as fair or unreasonable to make Ms. Misyura travel to the jurisdiction where the accident occurred and where the tortfeasor resides.

D. Conclusion

49For the above reasons, I grant Mr. Walton's motion, and I permanently stay the claims in the main action and in the cross-claim.

50If the parties cannot agree about the matter of costs, they may make submissions in writing, beginning with Mr. Walton's submissions and Ms. Misyura's, if any, within 20 days of the [page475] release of these reasons, followed by Economical's submissions within a further 20 days.