ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: Mannarino v. The Estate of Jane Brown, 2015 ONSC 3167
COURT FILE NO.: 10-20966
DATE: 2015-05-22
B E T W E E N:
LUIGI MANNARINO
Stephen S. Newell, for the Plaintiff
Plaintiff
- and -
THE ESTATE OF JANE BROWN through her personal representative, CHARLOTTE HEBING
Sachin Kumar, for the Defendant
Defendant
HEARD: May 15, 2015
REASONS FOR JUDGMENT
Justice Skarica
Overview
[1] Luigi Mannarino is 77 years old. He is a resident of Ontario. In 2006, he was involved in an accident in Stoney Creek, Ontario (“First Accident”). On May 23, 2008, a statement of claim was issued in Ontario regarding the First Accident.
[2] On July 5, 2008, he was involved in another accident this time in Penfield, New York (“Second Accident”). Mr. Mannarino was a passenger in a vehicle being driven by a New York resident. The other car was being driven by Jane Brown, also a New York resident. On June 28, 2010, a second statement of claim was issued in Ontario against the defendant Jane Brown, who had become deceased about a year after the accident.
[3] On April 9, 2015, the defendant brought a motion to either stay or dismiss the claim for the Second Accident on the grounds that there are no connective factors that give the courts of Ontario jurisdiction in this matter.
[4] The defendant says that the State of New York is the more appropriate forum for the hearing of this matter. However, the three year limitation period in New York expired on July 5, 2011 and for all practical purposes, a lawsuit initiated there at this time would be statute-barred and have no chance of success.
Facts
[5] The plaintiff Luigi Mannarino was born on February 1, 1938 and is now 77 years old. At all material times, he has been a resident of Ontario.
[6] The First Accident occurred on May 24, 2006. Luigi Mannarino was driving in Stoney Creek and his car collided with another vehicle being driven by Milos Zlojutro, who resided in the City of Hamilton. All of the important players and places involved in the First Accident are in the province of Ontario and it is undisputed that this claim was properly brought in Ontario.
[7] Accordingly, a statement of claim was filed in the Ontario Superior Court of Justice in Hamilton on May 23, 2008, regarding the First Accident.
[8] On May 5, 2011, the plaintiff’s physician observed, regarding the injuries suffered by the plaintiff in the First Accident, that the airbags failed to deploy and the plaintiff smashed his left arm through the windshield. The plaintiff felt a pulling sensation in his left shoulder. There was a bruise over the left shoulder and he was in treatment through physiotherapy for approximately 2 years.
[9] On July 5, 2008 Mr. Mannarino was a passenger in a car being driven in Penfield, New York by Loreta Misseritti, a resident of Webster, New York. There was a motor vehicle collision (the Second Accident) involving another New York resident, the defendant Jane Brown, who lived in Rochester, New York.
[10] The plaintiff says that liability is not an issue in the Second Accident and that the defendant will likely be liable for the Second Accident.
[11] However, no charges were laid for the Second Accident by the New York police. The officer’s notes indicate that the plaintiff’s vehicle was sideswiped by the defendant’s vehicle. Ms. Brown, the defendant, told the police that the plaintiff vehicle drifted into her lane and she did not have enough time to avoid the oncoming vehicle. Further investigation revealed that Ms. Brown lost consciousness at the wheel of her vehicle.
[12] Given the comments made by the police in the motor vehicle collision report, it appears that liability may well be a live issue at the trial of the Second Accident.
[13] Ms. Brown died on February 21, 2009. The administrator of her estate is Charlotte Hebing, who is a resident in Rochester, New York.
[14] On June 28, 2010 a statement of claim was issued in the Hamilton Superior Court of Justice regarding Ms. Brown’s alleged negligence in the Second Accident and the claim relies on a number of Ontario statutes.
[15] On February 8, 2011, the plaintiff obtained an ex parte Order extending time for service of the statement of claim regarding the Second Accident.
[16] On May 5, 2011, Dr. Ennis, the plaintiff’s doctor, delivered his report that the plaintiff suffered a left shoulder injury in the first accident when his left arm smashed through the windshield. There was a bruise over the left shoulder and he was in physiotherapy for approximately 2 years, which he found helpful. Dr. Ennis indicated that the plaintiff reported a significant injury to the left shoulder as result of the Second Accident and that since that time, he cannot use his arm to do much of anything and suffers from a pain disorder associated with both psychological factors and general medical condition.
[17] On July 5, 2011, the three year limitation period for instituting an action in New York expired.
[18] On September 6, 2011, the plaintiff obtained another ex parte Order allowing the plaintiff to substitutionally serve Ms. Brown’s insurer, State Farm Insurance Company at One State Farm Plaza, Bloomington, Illinois.
[19] To date, no statement of defence has been filed regarding the Second Accident.
[20] On April 9, 2015, as previously indicated, the defendant brought a motion to either stay or dismiss the claim for the Second Accident on the grounds that there are no connective factors that apply to give the Ontario courts jurisdiction in this matter.
Issues and the Position of the Parties
[21] The moving party, the defendant, claims that this court lacks jurisdiction to hear this matter, that New York is the more appropriate forum, and that Ontario is not the forum of last resort.
[22] The plaintiff claims that this court has jurisdiction, and that the injuries from the two accidents cannot be separately identified and assessed. If I accept the plaintiff’s claims, the next step would be to consolidate the two actions pursuant to Rule 6.01(1) (d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 so that the plaintiff can have his damages assessed at the same proceeding. There would also be an opportunity, if the parties agree, to pursue a section 258 Insurance Act, R.S.O. 1990, c. I.8 mediation on a global basis.
Analysis
[23] Both parties rely on the leading case of Club Resorts Ltd. v. Van Breda, 2012 SCC 17. Lebel J. outlines, at paragraph 90, four presumptive factors that, prima facie, entitle a court to assume jurisdiction over a dispute:
- To recap, in a case concerning a tort, the following factors are presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute:
(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.
[24] Regarding the four factors outlined above, the evidence clearly establishes:
The defendant Jane Brown and/or her estate is not domiciled or resident in Ontario but is domiciled and resident in New York state;
The defendant does not carry on business in the province of Ontario. The defendant’s insurance company is an American company that also carried on business in Ontario at the time of the accident. The impact of this alleged connecting factor has been considered by the case law to be largely irrelevant. – see Cugalj et al v. Wick, 2012 ONSC 2407 (S.C.J.). The impact of insurance will be discussed subsequently;
The tort was committed, if at all, in New York state and not in the province of Ontario, and;
There is no contract connected with the dispute made in Ontario.
[25] There are a number of irrelevant considerations when considering connecting factors to the province of Ontario. The presence of the plaintiff in the jurisdiction is not, of its own, a connecting factor. Absent other considerations, the presence of the plaintiff in the jurisdiction will not create a presumptive relationship between the forum and either the subject matter of the litigation or the defendant – see Club Resorts Ltd. v. Van Breda at para. 86.
[26] Presumptive effect cannot be given to the connecting factor of damages. An injury may happen in one place (i.e. New York) but the pain and inconvenience resulting may be felt in a second country (i.e. Ontario) and later in a third one. The Supreme Court of Canada has concluded that presumptive effect cannot be given to damages as a connecting factor – see Club Resorts v. Van Breda at para. 89.
[27] What impact does insurance have? As indicated earlier, insurance does not create a presumptive link to create jurisdiction. Justice Hourigan (as he then was) in Cugalj et al v. Wick dealt squarely with this issue at paras. 11-18 as follows:
I note that the Court held that unless a case falls within one of the presumptive connecting factors, whether new or old, a motions judge should not consider the issues that are part of the forum conveniens analysis. A clear distinction must be maintained between the existence and the exercise of jurisdiction (see paragraph 101 of Club Resorts v. Van Breda).
Counsel for the plaintiffs quite fairly concedes that this case does not fit within any of enumerated presumptive connecting factors. However, he argues that a new factor should be recognized in this case because it is very similar to the connecting factors regarding the residence of a defendant and a defendant carrying on business in the jurisdiction.
Counsel submits that a new presumptive link should be recognized because the insurance company who is defending on behalf of the defendant is an Ontario corporation. He argues that in reality it and not the defendant is conducting the lawsuit and ultimately a judgment may be collected against the insurance company directly pursuant to section 258(1) of the Insurance Act, R.S.O. 1990, c. I8.
I reject this argument for the following reasons.
First, the fact is that the insurance company is a stranger to this action. It is hardly surprising that insurance may be available to respond to a whole host of tort claims from motor vehicles actions, to slip and falls to defamation actions. I know of no authority which, on the basis that a non-party responding insurance company is domiciled in a location, has grounded a finding that such location has prima facie jurisdiction over the subject matter of the litigation.
Second, there is no guarantee that there will be an obligation to indemnify in this case. The plaintiffs plead that the defendant was under the influence of alcohol at the time of the accident. That fact, if proven at trial, may result in a situation where there is no coverage and, therefore, no ability for the plaintiffs to claim directly against the insurance company.
Third, and most importantly, the recognition of the new presumptive factor urged upon me by counsel for the plaintiffs runs contrary to spirit and stated intention of the Supreme Court of Canada in its formulation of the new jurisdiction test:
[73] Given the nature of the relationships governed by private international law, the framework for the assumption of jurisdiction cannot be an unstable, ad hoc system made up 'on the fly' on a case-by-case basis -- however laudable the objective of individual fairness may be. As La Forest J. wrote in Morguard, there must be order in the system, and it must permit the development of a just and fair approach to resolving conflicts. Justice and fairness are undoubtedly essential purposes of a sound system of private international law. But they cannot be attained without a system of principles and rules that ensures security and predictability in the law governing the assumption of jurisdiction by a court. Parties must be able to predict with reasonable confidence whether a court will assume jurisdiction in a case with an international or interprovincial aspect. The need for certainty and predictability may conflict with the objective of fairness. An unfair set of rules could hardly be considered an efficient and just legal regime. The challenge is to reconcile fairness with the need for security, stability and efficiency in the design and implementation of a conflict of laws system.
- The Court has made plain that there is need for certainty and predictability on the issue of the assumption of jurisdiction. To accept the argument that jurisdiction can be assumed on the basis of where a non party insurance company is domiciled would only lead to less certainty. It would result in an increase in jurisdiction and forum conveniens motions as plaintiffs would sue in jurisdictions which have only the most tangential of connections to the litigation.
[28] In the present case, the defendant’s insurer, State Farm is not a party to the action. The fact that State Farm may have offices in Ontario and may carry on business here is an irrelevant factor, particularly since the defendant’s contract with State Farm was entered into with the American operations of that American insurance company.
[29] The plaintiff here accordingly cannot fit itself into any of the four presumptive factors outlined by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda. But that is not the end of the day. The Supreme Court indicated that the list of presumptive factors is not limited to the four they have outlined. New ones can be created. The court at para. 91, 92 outlines the criteria:
- As I mentioned above, the list of presumptive connecting factors is not closed. Over time, courts may identify new factors which also presumptively entitle a court 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 listed 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.
- When a court considers whether a new connecting factor should be given presumptive effect, the values of order, fairness and comity can serve as useful analytical tools for assessing the strength of the relationship with a forum to which the factor in question points. These values underlie all presumptive connecting factors, whether listed or new. All presumptive connecting factors generally point to a relationship between the subject matter of the litigation and the forum such that it would be reasonable to expect that the defendant would be called to answer legal proceedings in that forum. Where such a relationship exists, one would generally expect Canadian courts to recognize and enforce a foreign judgment on the basis of the presumptive connecting factor in question, and foreign courts could be expected to do the same with respect to Canadian judgments. The assumption of jurisdiction would thus appear to be consistent with the principles of comity, order and fairness.
[30] The best argument advanced by the plaintiff is under the heading, “the treatment of the connecting factor in the case law”. The plaintiff relies on Cesario v. Gondek, 2012 ONSC 4563, a decision of the very learned Justice Edwards. In that case, there were, as here, two accidents, one in Ontario and the other in New York separated by one month.
[31] However, there is a major factual difference from the present case. In Cesario v. Gondek, the plaintiff wife (the passenger in both accidents) was also suing, in a separate action, her plaintiff husband (the driver in both accidents). Further, the plaintiffs also sued their own insurer, an Ontario insurer, “TD Insurance”, pursuant to the underinsured provisions of their automobile insurance policy. The plaintiff husband and wife were both Ontario residents. The plaintiff argued, among other things, that two of the defendants directly related to the first accident, in New York, were domiciled and resident in the province of Ontario.
[32] Justice Edwards held at para. 28:
- The principle of fairness and justice referenced by LeBel J. in Van Breda causes this court to conclude that where there are multiple defendants, at least one of whom is resident in the Province of Ontario, or domiciled in the Province of Ontario (as is the case on the facts before this court i.e., the defendant Domenic Cesario, the defendant Elizabeth Ruth Stoutz, and the defendant Security National Insurance Company) then there is a sufficient real and substantial connection existing such that the court should assume jurisdiction over all aspects of the case, including that aspect of the case involving the New York defendants.
[33] In essence, Edwards J. recognized a new presumptive connecting factor for assuming jurisdiction where one of multiple defendants are resident or domiciled in the jurisdiction. So, in the case before me, the pertinent question becomes: Are there multiple defendants, at least one of whom is resident in the province of Ontario?
[34] This motion was brought on the Second Accident claim involving Luigi Mannarino as plaintiff and the estate of Jane Brown, as the sole defendant. The estate of Jane Brown has absolutely no connecting factors to Ontario.
[35] The plaintiff says that there is another law suit brought from the First Accident that involves an Ontario defendant or defendants. Rule 6.01(1) (d) of the Rules of Civil Procedure allows that a court “may” order consolidation. The statement of claims in the First Accident and the Second Accident were filed on May 23, 2008 and June 28, 2010 respectively. No motion for consolidation has ever been brought. There was no cross-motion filed before me requesting an order under Rule 6.01(1)(d). Certainly, in hindsight, it would have been advisable to have brought this motion before the 3-year New York limitation expired on July 5, 2011.
[36] I am not dealing with the situation outlined in Cesario v. Gondek where the New York accident also involved Canadian defendants. The New York accident which I am dealing with has only one American defendant which has no connecting factors to Ontario at all. Cesario v. Gondek is distinguishable on its facts.
[37] The defendant in the Second Accident was resident in New York and was involved in a motor vehicle accident in New York with a vehicle being driven by another New York resident. I find it is not reasonable for Ms. Brown or her estate to expect that she would be called to answer legal proceedings in Ontario because one of the passengers in the other vehicle was an Ontario resident. There is no relationship that existed between Mrs. Brown and and/or her estate and Ontario.
[38] In the result, I find that there are no presumptive connecting factors present in the circumstances before me that would give jurisdiction to the Ontario courts to deal with the Second Accident that occurred in New York. Nor should this court recognize a new connecting factor on the facts of this case.
[39] Given that this case does not fall within any presumptive connecting factors, either new or old, I need not consider the issues that are part of the forum conveniens analysis – see Club Resorts Ltd. v. Van Breda, at para.100, 101, Cugalji et al v. Wick at para. 11, and Mitchell v. Jeckovich, 2013 ONSC 7494 (S.C.J.) at para. 44.
[40] The extremely troubling aspect of finding that Ontario has no jurisdiction to deal with the Second Accident, which occurred in New York, is the practical effect that the plaintiff really has no remedy. He cannot pursue the New York defendants in New York since the limitation period has long since passed. Does this unfortunate circumstance raise the possibility of the application of the forum of necessity doctrine as referred to by the Supreme Court in Club Resorts Ltd.. v. Van Breda?
[41] My colleague Milanetti J. grappled with this issue in Mitchell v. Jeckovich, 2013 ONSC 7494 wherein she indicated at paras. 45-49:
The thorny issue in the case before me is the passage of the New York limitation period. It is clear that if this case were to be dismissed for lack of jurisdiction, the plaintiff's American action would be statute barred, and she would be left with a $100,000 deductible in her contract dispute with Pembridge with no means to fill that gap. Does this amount to necessity such that this court must assume jurisdiction even if the real and substantial test has not been satisfied?
The Court of Appeal's commentary on the forum of necessity doctrine in Van Breda v. Village Resorts Ltd., 2010 ONCA 84, was left largely untouched by the Supreme Court. The Court of Appeal wrote the following on this doctrine at paragraph 100:
... The forum of necessity doctrine recognizes that there will be exceptional cases where, despite the absence of a real and substantial connection, the need to ensure access to justice will justify the assumption of jurisdiction. The forum of necessity doctrine does not redefine real and substantial connection to embrace "form of last resort" cases; it operates as an exception to the real and substantial connection test. Where there is no other forum in which the plaintiff can reasonably seek relief, there is a residual discretion to assume jurisdiction. In my view, the overriding concern for access to justice that motivates the assumption of jurisdiction despite inadequate connection with the forum should be accommodated by explicit recognition of the forum of necessity exception rather than by distorting the real and substantial connection test.
The only case provided to me by counsel was the decision of Justice Kenneth Campbell in Elfarnawani v. International Olympic Committee and Ethics Commission, 2011 ONSC 6784 ("Elfarnarwani"). In that decision, Justice Campbell denied jurisdiction, and went on to consider the missed limitation period as a potential basis for the forum of necessity analysis.
In Elfarnawani, Justice Campbell was unable to conclude that there was no other forum in which the plaintiffs could reasonably seek relief. I do not have that situation. I have been persuaded that a New York action would be barred at this stage.
That being said, I do not accept that I should be relying on a perhaps tactical decision on the part of plaintiff's counsel not to commence an action in the appropriate jurisdiction, to engage the forum of necessity doctrine and assume jurisdiction despite the absence of a real and substantial connection. I do not believe that a missed limitation period, which I add could have been avoided, is an exceptional circumstance warranting the use of residual discretion. To borrow language from the Supreme Court in Van Breda, doing so, I believe, would "undermine the objectives of order, certainty and predictability that lie at the heart of a fair and principled private international law system" (Van Breda, para. 93.
[42] I adopt these comments in their entirety. I note as well that Mitchell v. Jeckovich was recently cited with approval by the Ontario Court of Appeal in West Van Inc. v. Daisley, 2014 ONCA 232 at para. 34,35. In the evidence before me, the statement of claim with respect to the Second Accident was filed in Ontario a year before the limitation period expired in New York. It appears to me it would have been a relatively simple matter to file a simultaneous claim in New York and sort out the details later. A consolidation motion has never been brought in Ontario even though, at this point, five years have passed since the filing, in Ontario, of the statement of claim, regarding the Second Accident, in New York.
[43] Hoy A.C.J.O. in West Van Inc. v. Daisley held that the forum of necessity exemption to jurisdiction is reserved for exceptional cases. Hoy A.C.J.O. indicates at para. 40:
- As Sharpe J.A. made clear in Van Breda, the forum of necessity is reserved for exceptional cases. LeBel J.A. explained in Lamborghini that the "reasonableness" requirement is very stringently construed. The examples of the exceptional reasons why a proceeding could not be reasonably required in a foreign jurisdiction that he provided, while not exhaustive, are illustrative: "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."[^5] It is this type of claim that prompted this court to recognize the forum of necessity: see Van Breda, at para. 54. The doctrine is designed for cases like Bouzari v. Bahremani, which are very different from the case at hand.
[44] This case could have been pursued in New York before the expiration of the limitation period. Accordingly, this is not one of the exceptional cases that would invoke the forum of necessity exemption to jurisdiction.
Disposition and Costs
[45] For the reasons outlined herein, the defendant’s motion is granted. The within action is dismissed for lack of jurisdiction.
[46] Costs are awarded to the defendant on a partial indemnity basis. If the parties cannot agree upon an appropriate costs disposition with respect to this motion, the parties may contact the trial coordinator to arrange a time to argue the issue of costs.
Justice Skarica
Released: May 22, 2015
CITATION: Mannarino v. The Estate of Jane Brown, 2015 ONSC 3167
COURT FILE NO.: 10-20966
DATE: 2015-05-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LUIGI MANNARINO
Plaintiff
- and –
THE ESTATE OF JANE BROWN through her personal representative, CHARLOTTE HEBING
Defendant
REASONS FOR JUDGMENT
Justice Skarica
Released: May 22, 2015
[^5]: