Court File and Parties
CITATION: Currie v. Farr’s Coach Lines Ltd., 2015 ONSC 2352
COURT FILE NO.: 1102/13
DATE: 2015/04/23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Leota Leigh-Anne Currie, Raymond A. Currie, Miranda Leigh Currie and Kelsey Rae Currie, Minors by their Litigation Guardian Leota Leigh-Anne Currie, Plaintiffs
AND:
Farr’s Coach Lines Ltd., Rene J. Bissen, Matrix Expedited Service, The Estate of Timothy James Hume, Daimler A. G., Setra and 336726 Ontario Limited c.o.b. as Tarten Equipment Limited, Defendants
BEFORE: Justice M. Garson
COUNSEL: Vicki Edgar and Matthew Reid, for the plaintiffs Joseph M. Dillon, Q.C., for the defendants, Matrix Expedited Service and The Estate of Timothy James Hume Dan Rabinowitz, for the defendants, Farr’s Coach Lines Ltd. and Rene J. Bissen Teresa Dufort, for the defendants, Daimler A. G. and Setra T. Chapman, for the defendant 336726 Ontario Limited c.o.b. as Tarten Equipment Limited
HEARD: March 23, 2015
ENDORSEMENT
Introduction
[1] A bus trip to New York City (“NYC”) for 44 London Life employees turned tragic when the tour bus they were riding in was rear ended by a transport truck. Both vehicles burst into flames.
[2] The driver of the transport truck, Timothy James Hume, was killed and many of the 44 passengers were injured.
[3] While all of the plaintiffs and three of the defendants are domiciled in Ontario, several other defendants carry on business in Ontario.
[4] Two of the defendants, the Estate of Timothy James Hume (“Hume”) and Matrix Expedited Service (“Matrix”) are normally domiciled in the State of Michigan.
[5] The plaintiff, Leota Leigh-Anne Currie (“LC”) brings a motion, initially under Rule 20.04(2), and upon further consideration, under Rule 17.06,[^1] for an order affirming the jurisdiction and forum on the Ontario Superior Court of Justice in Middlesex County.
[6] The defendants, Matrix and Hume, bring a cross-motion under the same rule for an order that service of the statement of claim be set aside or staying the Ontario action on the basis that the Ontario Courts have no jurisdiction to hear the actions, or in the alternative, that Ontario is not a convenient forum for the hearing of this proceeding.
[7] For the reasons that follow, I am satisfied that this court has jurisdiction over the matter. However, at this time, the court will decline to exercise its jurisdiction in favour of the courts in the State of New York. In other words, Ontario is forum non conveniens and the State of New York is the proper forum for this tort claim.
Background and Facts
[8] The parties proceeded by way of an Agreed Statement of Facts. For the purposes of the motion and the cross-motion, I need only briefly summarize the facts.
[9] The plaintiff, LC, was one of the 44 London Life employees who chartered a bus from Farr’s Coach Lines (“Farr’s”) for a weekend shopping and sightseeing trip to NYC. The bus was operated by Rene Bissen (“Bissen”).
[10] At approximately 1:25 a.m. on the morning of July 22, 2011, the bus emerged from the shoulder of the I-90 in upstate New York to continue with the trip when it was struck in the rear by a transport truck owned by Matrix and operated by Timothy James Hume.
[11] All bus passengers were able to evacuate the burning bus. Sadly, Mr. Hume perished inside the cab of his truck.
[12] LC suffered a number of fractures, various abrasions and bruises as a result of the accident. She was initially treated at the University of Rochester Medical Centre in New York State and was transferred a few days later to London Health Sciences Centre in London, Ontario where she later underwent surgery.
[13] LC has received the bulk of her treatment and therapy for her injuries in London, Ontario.
[14] Thirty-five of the 44 passengers on the bus have commenced an action in New York State Supreme Court, Oneida County, for damages for injuries suffered in the accident.
[15] The remaining nine passengers have commenced an action in Ontario. They have also started an action in New York State Supreme Court on a without prejudice basis in order to protect their rights under the New York State limitation period.
[16] The defendant, Daimler AG, is a multi-national corporation with their head office in Germany and manufactured the bus that was involved in the collision.
[17] The defendant, Setra, is a subsidiary of Daimler and sells, leases, inspects and repairs buses sold in Ontario.
[18] The defendant, 336726 Ontario Limited, c.o.b. as Tarten Equipment Limited (“Tarten”) diagnoses, repairs and tests Setra buses and was involved in maintenance and inspection of the bus prior to the collision.
[19] The parties have agreed that LC will be the test case for all nine Ontario plaintiffs.
[20] Additional actions have been started in the Federal District Court for the Western District of New York by Hume, and by Traveler’s Insurance, (the later with respect to the damage to the bus).
[21] The New York actions have not yet proceeded to discovery.
[22] The defendants, Daimler and Tarten, brought motions challenging the jurisdiction of the New York State Supreme Court. The motions were denied based on forum non conveniens and motions for personal jurisdiction are scheduled for June 18, 2015.
[23] The defendants, Matrix and Hume, have not filed a statement of defence or a notice of intent to defend in Ontario.
Issues
[24] The issues to be determined are:
(i) Does this court have jurisdiction to hear this action?
(ii) If yes to (i), should this action in Ontario be stayed on the basis that New York is a more convenient jurisdiction to hear this action?
Position of the Parties
[25] LC argues that she resides in London, that the bulk of the medical witnesses reside in London and that fairness dictates that the matter be heard in London.
[26] Simply put, she argues that this is a “real and substantial connection” between the action and London, and that London is the more appropriate and convenient forum for this action.
[27] The defendants, Matrix and Hume, argue that 35 of the 44 passengers have commenced an action in New York, that the accident happened in New York, that New York law applies to the accident and that there exists a serious risk of inconsistent verdicts if this court assumes jurisdiction.
[28] The defendants Daimler and Setra, consent to this motion. The defendants Tarten, Farr’s and Bissen, take no position on this motion.[^2]
Discussion
Jurisdiction
[29] Given that the accident did not occur here, and all of the parties do not consent, I must determine whether Ontario should assume jurisdiction over this litigation. Simply put, I must decide whether LC has established a “real and substantial connection” between the action and Ontario.
[30] The Ontario Court of Appeal in Muscutt v. Courcelles[^3] sets out a list of eight factors to consider in assessing whether there is a “real and substantial connection” between the litigation and the foreign defendants. The factors include:
(a) the connection between the forum and the plaintiff’s claim;
(b) the connection between the forum and the moving party;
(c) unfairness to the moving party in assuming jurisdiction;
(d) unfairness to the plaintiff in not assuming jurisdiction;
(e) involvement of other parties in the lawsuit;
(f) the court’s willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis;
(g) whether the case is inter-provincial or international in nature; and
(h) comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere.
[31] In Van Breda v. Village Resorts Ltd.[^4] the Supreme Court of Canada identified a series of non-exhaustive relevant presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute. These factors are:
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.
[32] The burden rests with the party asking the court to assume jurisdiction, in this case LC, to identify a presumptive connecting factor that links the subject matter of the litigation to the forum.
[33] Not all of the eight factors outlined in Muscutt or the four factors outlined in Van Breda need to be met in order to meet the “real and substantial connection” test. After examining the connection between the proposed forum and the parties, the court must also consider the principles of fairness and justice.
[34] On the evidence before me, I am satisfied that there are sufficient presumptive connecting factors to support a conclusion that Ontario has jurisdiction simplicitor based on the following:
(i) LC resides in Ontario;
(ii) the contract to rent the bus was made in Ontario and LC boarded in Ontario for the trip to NYC;
(iii) the bus driver, the bus company that owns the bus, the bus maintenance and repair company, and the Ontario supplier of the bus all normally carry on business in Ontario;
(iv) the medical rehabilitation and damages evidence and witnesses are primarily situate in Ontario; and
(v) the majority of the defendants are either domiciled in, or carry on business in, Ontario.
[35] Matrix and Hume presented very little resistance to the jurisdiction arguments advanced by LC. While not conceding jurisdiction, they acknowledge that some of the presumptive factors in Van Breda that allow this court to assume jurisdiction exist on the agreed facts presented to me.[^5]
[36] Although the accident occurred in the State of New York, I am satisfied that LC has provided a sufficient basis with respect to three of the four presumptive factors in Van Breda to establish a real and substantial connection between Ontario and LC’s claim and Ontario and the defendants.
Forum Conveniens
[37] Having found that Ontario has jurisdiction based on a real and substantial connection, I must now determine the most appropriate forum for the action. In other words, can Matrix and Hume satisfy me that I should decline to exercise jurisdiction based on forum non conveniens.
[38] There is a clear distinction between the two tests as I now must focus on a comparison of the strength of the connection with another available jurisdiction, namely, New York.
[39] The following factors are noteworthy in this consideration:
(i) liability is strenuously disputed in this matter;
(ii) although none of the defendants are domiciled in the State of New York, the accident occurred in the State of New York and American law will govern the determination of liability;[^6]
(iii) thirty-five of the 44 passengers have chosen the State of New York as the forum to bring their actions;
(iv) the bus driver has commenced his action in the State of New York;
(v) the injured parties, including LC, were initially treated at New York hospitals;
(vi) the accident was investigated by New York police officials and responded to by New York first responders;
(vii) there is at least one independent witness to the accident; and
(viii) defendants Daimler and Tarten have already brought motions to challenge the jurisdiction of the New York State and Supreme Court which denied the motion based on forum non conveniens and will hear a further motion on June 18, 2015.[^7]
[40] The burden rests with the defendants, Matrix and Hume, to show why I should decline to exercise jurisdiction and why New York is a more appropriate forum.
[41] LC argues that Ontario is the more convenient forum because:
(i) many of the witnesses, including the plaintiffs and much of the medical and rehabilitation evidence are from Ontario and it would be both inconvenient and costly for them to have to continue this proceeding in New York;[^8]
(ii) many of the medical witnesses and experts from Ontario required to prove damages are not compellable witnesses in a New York court; and
(iii) the costs of continuing litigation in New York are very onerous and LC is of limited financial means.
[42] In Muscott, the court identified a non-exhaustive list of factors to be considered in assessing a claim for forum non conveniens:[^9]
location of the majority of the parties;
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; and
whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court.[^10]
[43] Similarly, the Van Breda decision speaks to a similar list of non-exhaustive factors at para. 110 including:
(a) the location of the parties and witnesses;
(b) the cost of transferring the case to another jurisdiction or of declining the stay;
(c) the impact of a transfer on the conduct of the litigation or on related or parallel proceedings;
(d) the possibility of conflicting judgments;
(e) problems related to the recognition and enforcement of judgements; and
(f) the relative strength of the connection of the two parties.
[44] I will deal in turn with many of the factors set forth in Muscott and Van Breda. This is not a mathematical assessment and not all factors will be relevant or afforded the same weight.
Location of the Parties
[45] Although some parties reside in London, Ontario, many of the defendants are not resident in Middlesex County and will have to travel to the location of a trial in either jurisdiction. Farr’s, Bissen, Daimler, Setra, Tarten and Royal and Sun Alliance are not resident in Middlesex County. Hume and Matrix are both from Michigan. This factor does not weigh heavily in favour of either location.
Location of key witnesses
[46] There are key witnesses in both Ontario and New York. Given that liability is vigorously disputed, a number of accident witnesses and first responders will be required at trial. Many of the damages witnesses reside in Ontario. I would hope that in 2015 courts in both jurisdictions would consider technology as an enabler to allow for videotapes depositions or tendering of evidence. I am also mindful that some witnesses may not be compellable in some jurisdictions (i.e. Ontario medical experts in New York and New York experts in Ontario.) On the evidence before me, I cannot say with precision how many liability witnesses are required from New York and how many damages witnesses are required from London. This factor does not significantly favour either location.
Contractual Provisions that Specify Applicable Law
[47] The parties did not provide any submissions in this regard and this does not appear to be a relevant factor in these circumstances.
Avoidance of a Multiplicity of Proceedings
[48] This situation will be a challenge in any jurisdiction, in light of the many factors and locations already referred to in this action. Any determination of appropriate forum should attempt to reduce the multiplicity of proceedings and the potential for inconsistent verdicts. This is an international case, involving a New York accident, a German multi-national defendant, Ontario medical experts and plaintiffs, and multiple defendants who are domiciled in either Ontario or Michigan.
[49] I am mindful that the existing proceedings in New York are well underway and that the vast majority of plaintiffs and some defendants have chosen to commence their actions in New York. This raises a real possibility of inconsistent verdicts, or conflicting judgments.
[50] Although there already appears to be multiple New York proceedings in separate courts, there also appears to be some recognition that consolidation of the existing matters is likely to occur with time. Although no evidence was presented to me, I can reasonably infer that there is a not insignificant cost associated with potentially having to transfer the extensive existing New York actions to Ontario. This factor favours the New York forum.
Applicable Law
[51] The parties agree that liability will be determined in accordance with New York law. At a minimum, if the action were to be heard in Ontario, an expert in New York law would be required to give evidence. This factor also favours the New York forum.
Geographical Factors Suggesting the Natural Forum
[52] I have already discussed the witnesses and issues that are found in each location. As the accident occurred in New York and was responded to by New York police, ambulance and hospital personnel, this factor also favours New York.
Juridical Advantage
[53] LC argues that Canadian courts are less litigious, have shorter proceedings, bear cost consequences for improper or inappropriate behaviour and discourage protracted proceedings. I am equally mindful that there appears to be no deductibles, no thresholds, and no cap on general damages in New York.
[54] Neither party presented evidence to suggest that an eventual judgment in either forum could not be equally enforceable in the other forum.
[55] Differences between legal systems, particularly between Ontario and New York, are not prima facie signs of inferiority of one jurisdiction to another. Rather, systems that have the same or similar basic values and laws should be afforded appropriate comity and an attitude of respect in determining the appropriate form.[^11] Aside from the distinctions referred to above, the laws in this regard are very similar between Ontario and New York.
[56] I am also mindful that in balancing the above factors, juridical advantage should not weigh too heavily in the forum non conveniens analysis.[^12] Although this factor, particularly dealing with the issue of costs awards, may slightly favour Ontario, it may well be argued that other differences in the amount of damages available may offer some advantage to New York.
Summary
[57] In balancing the above factors, I conclude that the balance tips in favour of the defendants, Matrix and Hume, who have successfully established that New York is the more appropriate forum. Although I acknowledge that each jurisdiction has compelling arguments as to why they are better situated to deal fairly and efficiently with the action. I am swayed by the extent of existing actions in New York, the applicability of New York law, and the desirability to avoid a multiplicity of proceedings and conflicting decisions in different courts. The New York State Supreme Court, having already heard many of the arguments presented to me, has already denied a similar motion based on forum non conveniens.
[58] Although having to litigate this action in New York may, and in fact likely will, be inconvenient, and potentially more costly, I am not persuaded that it would cause unfairness. Simply put, if a party travels to New York and is involved in an accident there it is reasonable to expect that litigation arising from that accident will take place in New York.[^13] The location of the dispute is a factor that I give significant weight to in relation to other factors such as location of some of the parties.[^14]
[59] I am mindful that the standard to displace LC’s chosen jurisdiction is a high standard and that the moving defendants must clearly establish a more appropriate forum.[^15] I must also consider the principles of fairness and justice to the parties.
[60] Unlike the facts in the cases of Casario,[^16] Gordon[^17] and Khan,[^18] I am faced with a situation where 35 plaintiffs and two defendants have already commenced actions in New York arising out of the same incident.
[61] I am satisfied that, although this court has jurisdiction simpliciter, fairness and justice require that I decline to exercise jurisdiction over this matter in favour of New York which is the more appropriate and convenient forum for hearing this action.
Disposition
[62] For the above reasons, I dismiss the plaintiffs’ motion and grant the moving defendants’ cross-motion and order a stay of LC’s action. As the parties have agreed that this action will serve as the test case for all nine Ontario actions, this ruling applies to the other eight Ontario plaintiffs involved in related actions resulting from this collision.
[63] In the event that the motion of June 18, 2015 results in the New York courts not accepting jurisdiction over this matter, I will remain seized of the jurisdiction issue and the parties may arrange to appear before me, if necessary, to further address the issue.
Costs
[64] If the parties cannot agree on costs, they may make submissions in writing to me, not to exceed three typewritten pages (exclusive of Bills of Costs and Offers to Settle) by the defendants, Matrix and Hume, within 30 days of these reasons, and by the plaintiff, LC, within a further 30 days thereafter.
“Justice M. A. Garson”
Justice M. A. Garson
Date: April 23, 2015
[^1]: Rule 17.06 of the Rules of Civil Procedure states: (1) A party who has been served with an originating process outside Ontario may move, before delivering a defence, notice of intent to defend or notice of appearance, (a) for an order setting aside the service and any order that authorized the service; or (b) for an order staying the proceeding. (2) The court may make an order under subrule (1) or such other order as is just where 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.
[^2]: Daimler Buses of North America has advised New York Judge Hesler that they would consent to the jurisdiction of the Canadian Courts.
[^3]: 2002 CanLII 44957 (ON CA), 2002 CarswellOnt. 1756 (Ont. C.A.) at paras. 77-110
[^4]: Van Breda v. Village Resorts Ltd. 2012 SCC 17, 2012, CarswellOnt. 4268 (S.C.C.) at paras. 86-90
[^5]: See Casario v. Gondek 2012 CarswellOnt 1502 (S.C.J.) at para. 21 where the court was also faced with multiple defendants from different jurisdictions. See also Khan v. Layden et al 2014 ONSC 6868 (S.C.J.) at para. 23
[^6]: Heads of damages and the law of damages are somewhat similar between Ontario and New York, with some modifications regarding deductibles, thresholds, caps on quantum of damages and cost consequences.
[^7]: See reasons of Justice Hesler at the State of New York Supreme Court, Fifth Judicial District, County of Oneida, dated January 29, 2015 and appended to the Agreed Statement of Facts.
[^8]: See Gordon v. Deiotte, 2012 CarswellOnt 4170 (S.C.J.) at para. 33 where the court identified expense as a consideration in these situations.
[^9]: See para. 41
[^10]: A non-exhaustive list of similar factors can also be found at s. 11(2) of the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003 c. 28; (a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum; (b) the law to be applied to issues in the proceeding; (c) the desirability of avoiding multiplicity of legal proceedings; (d) the desirability of avoiding conflicting decisions in different courts; (e) the endorsement of an eventual judgment; and (f) the fair and efficient working of the Canadian legal system as a whole.
[^11]: See Bouzari v. Bahremani, 2015 ONCA 275 at para. 46, citing Prince v. ACE Aviation Holdings Inc., 2014 ONCA 285, [2014] O.J. No. 1792 (C.A.) at para. 64.
[^12]: See Black v. Breeden, 2012 SCC 19, [2012] 1 S.C.R. 666 @ para. 26
[^13]: See Gajraj v. DeBernardo, 2002 CarswellOnt 1766 (Ont. C.A.) at para. 18
[^14]: See Incorporated Broadcasters Ltd. v. Canwest Global Communications Corp. 2003 CanLII 52135 (ON CA), [2003] O.J. No. 560 (Ont. C.A.) at para. 72
[^15]: See Young v. Tyco International of Canada Ltd. 2008 ONCA 709 at para. 28
[^16]: infra at footnote 5
[^17]: infra at footnote 8
[^18]: infra at footnote 5