Endorsement
COURT FILE NO.: CV-13-57501
DATE: 2014/02/27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Abdihakim Ismail, Plaintiff
AND
Pafco Insurance Company and Desjardins Assurance Générales, Defendants
BEFORE: Mr. Justice Robert L. Maranger
COUNSEL: Brenda Hollingsworth, for the Plaintiff, Abdihakim Ismail
Marc E. Smith, for the Defendant, Desjardins Assurance Générales
HEARD: February 12, 2014
ENDORSEMENT
[1] This was a motion by Desjardins Assurance Générales (“Desjardins”) for a stay of proceedings on the basis that the court was without jurisdiction; or alternatively that based upon the principle of forum non conveniens the matter should be litigated in the province of Québec.
[2] The factual background to this matter can be summarized as follows:
• The plaintiff was rendered a paraplegic in a motor vehicle accident that took place in the province of Ontario on January 13, 2007.
• He was a passenger in a car being driven by Ghal Aqiil. The vehicle was owned by the driver’s father, Khalid Aqiil.
• The vehicle was insured by Desjardins with policy limits of $2 million. The plaintiff sued both the driver and his father.
• The plaintiff also sued Pafco Insurance Company (“Pafco”), the automobile insurer of the driver’s sister with whom he lived at the time of the accident. The Pafco policy limits are $1 million.
• On May 25, 2012 the plaintiff together with the Family Law Act claimants obtained a judgment totaling $5,129,000.00 against the Aqiils.
• Desjardins claimed a policy violation and denied the Aqiils coverage and a defence of the 2007 action.
• The judgment was uncollectable as against the Aqills personally.
• Desjardins did pay the statutory minimum payment under the Insurance Act on June 7, 2011, of $200,000.
• In 2013, the plaintiff commenced this action to enforce the judgment against Desjardins and/or Pafco.
• Desjardins is an insurance company operating in Lévis, Québec. The insurance contract was prepared and executed at that location.
[3] It is settled law that there is a two-step analysis when determining whether an Ontario court can accept jurisdiction over an action. First, the court must consider if it can exercise jurisdiction because there is a real and substantial connection between the facts of the case and Ontario. Secondly, the court must consider if it should exercise jurisdiction based on a consideration of a series of factors which relate to the more convenient location to conduct the litigation “forum conveniens”.
[4] Some of the factors to be considered in determining the issue of the more convenient forum include but are not limited to the following: the location where any contract was signed, the law that should apply to the contract, the location of witnesses particularly key witnesses, the location where the bulk of the evidence will come from, the location where the factual matters arose, the residence or place of business of the parties, and the loss of a legitimate juridical advantage. Young v. Tyco International of Canada Ltd., 2008 ONCA 709 at para. 23; Club Resorts Ltd. v. Van Breda, 2012 SCC 17.
[5] After considering the factums, the affidavit evidence filed, and the arguments of counsel I find that there is jurisdiction in Ontario and that it is the more convenient forum to try this matter and I make that finding based upon the following:
• Section 258 of The Insurance Act provides the following:
Any person who has a claim against an insured for which indemnity is provided by contract evidenced by a motor vehicle liability policy, even if such person is not a party to the contract, may, upon recovering the judgment therefor in any province or territory of Canada against the insured, have the insurance money payable under the contract applied in or toward satisfaction of the person’s judgment and of any other judgments or claims against the insured covered by the contract and may, on the person’s own behalf and on behalf of all persons having such judgments or claims, maintain an action against the insured to have the insurance money so applied.
• The matter including the issue of coverage from the Desjardins insurance company is rooted in a motor vehicle accident that took place in January 2007 in the province of Ontario.
• The plaintiff and the other defendant, Pafco Insurance Company, are residents of the province of Ontario.
• There is evidence to suggest that Desjardins operates in some fashion in the province of Ontario.
• In this case Ontario law will apply regarding cost determinations.
• The action is situated in the city of Ottawa approximately 3 km from a superior court in the province of Québec.
• There would be no physical evidence to speak of with respect to the issues to be tried.
• The location of the witnesses in this case is a neutral issue since we are dealing with a large insurance company.
• There would be a loss of the right to a jury trial by the plaintiff if this matter were to proceed in the province of Québec.
• The standard to displace the Plaintiff’s chosen jurisdiction is high.
• An accounting of “order and fairness” overall lends itself to Ontario as the proper forum.
[6] Therefore, the application to stay the proceedings is dismissed.
[7] Should the parties not agree on the issue of costs, I will accept two pages of written argument on the matter to be served and filed within 15 days of the release of this decision failing which there will be no order as to costs.
Justice Robert Maranger
Date: February 27, 2014
COURT FILE NO.: CV-13-57501
DATE: 2014/02/27
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Abdihakim Ismail, Plaintiff
AND
Pafco Insurance Company and Desjardins Assurance Générales, Defendants
BEFORE: Mr. Justice Robert L. Maranger
COUNSEL: Brenda Hollingsworth, for the Plaintiff, Abdihakim Ismail
Marc E. Smith, for the Defendant, Desjardins Assurance Générales
ENDORSEMENT
Mr. Justice Robert L. Maranger
Released: February 27, 2014