ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO. 1396/09
DATE: 20140908
BETWEEN:
Victor Romanko, Teareasa Romanko and Koby Romanko, Noah Romanko and Zane Romanko, minors, by their Litigation Guardian, Victor Romanko
Plaintiffs
– and –
Dennis Nettina and Co-operators General Insurance Company
Defendants
Michelle Han, for the plaintiffs
Stefan Bojeczko, for the defendant Nettina
HEARD: April 4, 2014
Bale J.
Introduction
[1] Victor Romanko and Teareasa Romanko are Ontario residents who were injured in a motor vehicle accident while driving in the State of New York. The minor plaintiffs are Family Law Act claimants. In this action, they have sued Dennis Nettina, the owner and operator of the other vehicle involved in the accident, and Co-operators General Insurance Company, their Ontario automobile insurer. Nettina is a resident of the State of New York.
[2] In addition to commencing this action, the plaintiffs have sued Nettina and Allstate Property and Casualty Insurance Company, his New York automobile insurer, in the Supreme Court of the State of New York. The New York action was commenced in order to avoid the expiry of a limitation period pending the result of a challenge to the jurisdiction of this court.
[3] On this motion, Nettina argues that this court does not have jurisdiction over him, and that this action should therefore be stayed, as against him. In support of the motion, he relies primarily on Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, and says that there are no “presumptive connecting factors”, as set out in that case, that would permit this court to assume jurisdiction.
[4] The plaintiffs argue two points in support of their position that this court does have jurisdiction. First, they argue that their contract of insurance with the Co-operators is a presumptive connecting factor; and second, they argue that even in the absence of a presumptive connecting factor, this court should assume jurisdiction based upon the doctrine of “forum of necessity”.
[5] For the reasons that follow, I conclude that the plaintiffs’ contract of insurance with their automobile insurer is not a presumptive connecting factor, and that this is not a case in which this court should assume jurisdiction based upon the doctrine of “forum of necessity.”
Analysis
Contract with automobile insurer as a presumptive connecting factor
[6] In Van Breda, the Supreme Court identified the following as presumptive connecting factors that will allow a court to assume jurisdiction in tort cases (at para. 90):
• the defendant is domiciled or resident in the province;
• the defendant carries on business in the province;
• the tort was committed in the province; or
• a contract connected with the dispute was made in the province.
[7] The only class of presumptive connecting factor relied upon by the plaintiffs is “a contract connected with the dispute was made in the province”. However, the argument that the plaintiffs’ contract with their automobile insurer is a contract connected with the dispute, and is therefore a presumptive connecting factor, has been laid to rest by the decision of the Court of Appeal for Ontario in Tamminga v. Tamminga, 2014 ONCA 478, 120 O.R. (3d) 671, a decision released following the hearing of this motion.
[8] In Tamminga, the plaintiff had been injured while riding in a truck, in Alberta, and sued both the owner and operator of the truck and her Ontario automobile insurer. As in the present case, the claim against her Ontario automobile insurer was made pursuant to the Family Protection Coverage endorsement (commonly known as underinsured coverage) included in her policy. On appeal from the decision of the motion judge staying the action as against the Alberta defendants, the court held that the there was nothing connecting the plaintiff’s insurance contract to the Alberta defendants (at para. 25):
[The defendants] are not parties to or beneficiaries of the contract. The [plaintiff] was not visiting the farm in Alberta for any reason related to the contract. The connection between the insurance policy and the dispute only arises in the aftermath of the tort and its application is conditional on the outcome of the [plaintiff’s] claim against the tortfeasors.
[9] In the result, the court in Taminga held that there was no nexus between the insurance contract and the Alberta defendants, and upheld the order staying the action against them. In doing so, the Court of Appeal noted that this conclusion was consistent with the prevailing line of authority in this court (at para. 28).
[10] As the same considerations apply in the present case, I conclude that the plaintiffs’ contract with their automobile insurer is not a contract connected with their claim against Nettina, and that there are no presumptive connecting factors that would allow this court to assume jurisdiction over him.
Whether the “forum of necessity” doctrine should be applied in this case
[11] The doctrine of “forum of necessity” allows a domestic court to assume jurisdiction where there is no other forum in which the plaintiff could reasonably seek relief. The existence of this doctrine, as an exception to the real and substantial connection test, was recognized by the Supreme Court of Canada in Van Breda (at para. 100). It is based upon concerns for access to justice in cases where there are no presumptive connecting factors that would otherwise allow the court to assume jurisdiction.
[12] The plaintiffs argue that as a result of Victor Romanko’s criminal record, he is inadmissible into the United States; and that as a result, this court is the only forum in which they can reasonably seek relief. However, on the evidence presented on this motion, they have not met the burden of proving that Mr. Romanko would not be granted permission to enter the U.S., for the limited purpose of dealing with the litigation filed in the State of New York, or that the plaintiffs would otherwise be unable to seek relief in New York.
[13] The forum of necessity doctrine was recently reviewed by the Court of Appeal for Ontario in West Van Inc. v. Daisley, 2014 ONCA 232, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 236.
[14] In Daisley, the plaintiff argued that it could not reasonably seek relief in North Carolina because it could not obtain qualified counsel to represent it; and, even if it could, it was unlikely that it would get a fair trial. The plaintiff wanted to sue a prominent North Carolina lawyer, and had provided the court with a list of 31 law firms in Charlotte or Raleigh, all of which had declined to even discuss the matter. In rejecting the plaintiff’s argument, Hoy A.C.J.O. made the following observations:
• that the doctrine of forum of necessity is a relatively new doctrine in Canada, and that the decision of the Court of Appeal for Ontario in Van Breda was the first time that a common law doctrine of forum of necessity had been explicitly recognized by a Canadian court;
• that the doctrine should be reserved for exceptional cases;
• that the following examples, while not exhaustive, are illustrative of circumstances in which a plaintiff could not reasonably be required to commence a proceeding in a foreign jurisdiction (quoting LeBel J.A., writing for the Quebec Court of Appeal, in Lamborghini (Canada) Inc. v. Automobili Lamborghini S.P.A, 1996 6047 (QC CA), [1997] R.J.Q. 58): the breakdown of diplomatic or commercial relations with a foreign state, the need to protect a political refugee, or the existence of a serious physical threat, if the debate were to be undertaken before the foreign court; and
• that as of the date of her reasons (March 2014), only in one Ontario decision had the court assumed jurisdiction based solely on the doctrine: Bouzari v. Bahremani, [2011] O.J. No. 5009.
[15] In Bouzari, the plaintiffs had been tortured in Iran and the motion judge found that there was “no reasonable basis upon which they [could] be required to commence the action in a foreign jurisdiction, particularly, the state where the torture took place, Iran.”
[16] The cases cited by Hoy A.C.J.O. in West Van Inc. in which Ontario courts had declined to assume jurisdiction under the forum of necessity doctrine were the following:
Van Kessel v. Orsulak, 1010 ONSC 6919 (the plaintiff had been unable to retain counsel in Pennsylvania and had little or no means to conduct a trial in the United States);
Elfarnawani v. International Olympic Committee, 2011 ONSC 6784 (the plaintiff cited practical difficulties in pursuing an action in Switzerland); and
Mitchell v. Jeckovich, 2013 ONSC 7494 (the plaintiff’s personal injury claim was statute-barred in the State of New York).
[17] In their supplementary factum, the plaintiffs attempt to make Victor Romanko out to be a career criminal who would have no chance of gaining entry into the United States:
The plaintiff Victor Romanko has an established history of criminal convictions in Canada. These convictions occurred through the span of his early 20s into his late 40s – essentially through most of his entire adult life. One of his convictions involved a crime of moral turpitude. As a result of the nature and multiplicity of his criminal convictions, at the present time, Victor Romanko is inadmissible to enter the United States.
[18] On this issue, the defendant Nettina filed a legal opinion prepared by Michael Berger, an immigration lawyer with over thirty years of experience, practising in the State of New York. Mr. Berger’s qualifications were not challenged by the plaintiffs and, based upon the contents of his affidavit and curriculum vitae, I am satisfied that he is qualified, by education and experience, to provide this court with an opinion on the issue of whether Victor Romanko would be granted permission to enter the United States, for the limited purpose of dealing with the litigation filed in the Supreme Court of the State of New York.
[19] Mr. Berger’s opinion is that although Mr. Romanko would likely be inadmissible to enter the United States under §212(a)(2) of the U.S. Immigration and Nationality Act absent a valid waiver, he would very likely be eligible to receive a waiver under §212(h) of the Act.
[20] In brief, Mr. Berger’s reasoning is as follows:
[21] First, inadmissibility under §212(a)(2) of the INA is of an alien who has been convicted of a crime of moral turpitude. The three crimes of which Mr. Romanko has been convicted are forgery, impaired driving and mischief. Of those three, only forgery would be considered to be a crime of moral turpitude.
[22] Second, a waiver may be granted, if several elements can be established to the satisfaction of the U.S. Attorney General:
• that the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application for admission;
• that the admission would not be contrary to the national welfare, safety, or security of the United States; and
• that the alien has been rehabilitated.
[23] Third, in Mr. Berger’s opinion, on the conviction related evidence produced by the plaintiffs, the Attorney General would conclude that Mr. Romanko’s admission to the United States would not be contrary to the national welfare, safety, or security of the United States, and that he has been rehabilitated. Accordingly, based upon those conclusions, and because Mr. Romanko’s conviction for forgery was over 25 years ago, he would qualify for a waiver, and would very likely be granted permission to enter the United States, for the limited purpose of dealing with the litigation filed in the Supreme Court of the State of New York.
[24] Mr. Berger’s opinion was served on the plaintiffs in May of 2013. In December of 2013, the plaintiffs delivered an affidavit sworn by Victor Romanko, in which he appears to challenge Mr. Berger’s opinion.
[25] First, he says that in July of 2012, he spoke by telephone to someone at the U.S. Embassy in Ottawa who told him that because his 2009 conviction for mischief was recent, his “chances of being granted a waiver were slim.” However, based upon the opinion of Mr. Berger, this advice was incorrect, since the crime of mischief would not be considered to be a crime of moral turpitude.
[26] Second, he says that in the same telephone conversation, he was also advised that “the multiplicity of [his] convictions would be a negative element of any waiver application [he] might make.” However, again based upon the opinion of Mr. Berger, this advice was incorrect, since Mr. Romanko has never actually served any prison time, and the inadmissibility bar for multiple criminal convictions applies only where there has been at least five years of aggregate confinement.
[27] Third, he says that in November 2013, he spoke with someone at a U.S. Customs and Boarder Service office who “could not answer questions about [his] actual chances of success” but gave him general information including the cost and timing of a waiver application. Based upon this information and some further research he did, he says that “the cost of the waiver application along with associated fees such as the cost of obtaining [his] criminal file from the RCMP and postage would total over $800 CAD.” He says also that if he were to retain an agent to assist him with the application, it would cost him several hundred dollars more, and that he cannot afford to pay these amounts.
[28] I don’t accept that this court should assume jurisdiction, when it otherwise would not, because the cost of applying for a waiver of inadmissibility would be eight hundred or a thousand dollars. The plaintiffs’ claim exceeds $1,000,000 and, whether litigated in New York or Ontario, claims in the nature of those made by the plaintiffs characteristically involve disbursements costing tens of thousands of dollars.
[29] In their supplementary factum, the plaintiffs argue that Nettina’s waiver argument is based upon a hypothetical because Victor Romanko doesn’t have a waiver, and therefore remains inadmissible to enter the United States. They also argue that the processing of a waiver application would take several months, and that the trial of the action would be substantially delayed.
[30] Nettina’s waiver argument is not hypothetical. The argument is not that if Mr. Romanko had something that he doesn’t have, he would then be admissible. Rather, the argument is that where, on the facts of the case, it is “very likely” that a waiver would be granted, this court should not assume jurisdiction, in circumstances where it otherwise would not. I agree. With respect to delay, Mr. Berger says that the usual processing time for a waiver application is about six months. Given that this action was commenced more than four years ago, and that the admissibility argument was raised by the plaintiffs as early as August of 2011, they cannot be heard to complain that a waiver application would cause a further six-month delay.
[31] Because I have found that the plaintiffs have not met the burden of proving that Victor Romanko would not be granted permission to enter the United States, for the limited purpose of dealing with the litigation filed in the Supreme Court of the State of New York, I need not decide whether, in a case where inadmissibility was established, the doctrine of forum of necessity would apply. However, it may be worth noting that it would surely come as a surprise to an Ontario resident, involved in an accident in the vicinity of her home, to learn that she was required to defend herself in a foreign country, solely because the other person involved in the accident had a criminal record and could not return to Ontario to deal with litigation here.
Disposition
[32] For the reasons given, Nettina’s motion is granted and the action is stayed as against him.
[33] If the parties are unable to agree on costs, I will consider brief written argument provided that it is delivered to Judges Reception at the Durham Region Courthouse, no later than October 10, 2014.
“Bale J.”
Released: September 8, 2014
COURT FILE NO. 09/1396
DATE: 20140908
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Victor Romanko, Teareasa Romanko, Koby Romanko, Noah Romanko and Zane Romanko, minors, by their litigation guardian, Victor Romanko
Plaintiffs
– and –
Dennis Nettina and Co-operators General Insurance Company
Defendants
REASONS FOR DECISION
Bale J.
Released: September 8, 2014