Forsythe v. Westfall et al.

[Indexed as: Forsythe v. Westfall]

Ontario Reports

Ontario Superior Court of Justice,

Perell J.

February 2, 2015

125 O.R. (3d) 135 | 2015 ONSC 758

Case Summary

Conflict of laws — Jurisdiction — Real and substantial connection — Ontario-resident plaintiff suing Alberta-resident defendant for damages arising from British Columbia motor vehicle accident which was allegedly caused by unidentified driver — Plaintiff also suing her own automobile insurer under uninsured and underinsured provisions of policy — Action dismissed for lack of jurisdiction — Inclusion of claim against insurer not establishing real and substantial connection between matter, parties and Ontario — Forum of necessity doctrine not applying as plaintiff was not denied access to justice — Plaintiff remaining free to sue insurer in Ontario.

The plaintiff, a resident of Ontario, was a passenger on the Alberta-resident defendant's motorcycle in British Columbia when the defendant lost control of the motorcycle, allegedly because an unidentified driver crossed into his lane of traffic. The plaintiff sued the defendant in Ontario and also sued her own automobile insurer under the uninsured and underinsured provisions of the policy. The defendant brought a motion to dismiss the action for lack of jurisdiction.

Held, the motion should be granted.

There was no real and substantial connection between the matter, the parties and Ontario. While the plaintiff was required to sue her own insurer in Ontario, the inclusion in this action of the claim against the insurer did not establish the requisite real and substantial connection. The forum of necessity exception to the real and substantial connection test did not apply. That exception is very narrow: a plaintiff must establish that there is no other forum in which he or she could reasonably obtain access to justice. The plaintiff remained free to sue in Ontario to enforce her claim against her insurer after, or even before, she sued the defendant in British Columbia.

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, 91 C.C.L.T. (3d) 1, 10 R.F.L. (7th) 1, 17 C.P.C. (7th) 223, 212 A.C.W.S. (3d) 712, 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, 71 C.C.L.T. (3d) 161, 77 R.F.L. (6th) 1, 185 A.C.W.S. (3d) 68, apld [page136]

Other cases referred to

Bouzari v. Bahremani, [2011] O.J. No. 5009 (S.C.J.); Craig v. Allstate Insurance Co. of Canada (2002), 2002 CanLII 44956 (ON CA), 59 O.R. (3d) 590, [2002] O.J. No. 2124, 214 D.L.R. (4th) 103, 161 O.A.C. 140, 39 C.C.L.I. (3d) 91, 25 M.V.R. (4th) 143, 114 A.C.W.S. (3d) 304 (C.A.); Dahl v. Alberta (Motor Vehicle Accident Claims Act, Administrator), 1995 CanLII 9167 (AB KB), [1995] A.J. No. 1216, [1996] 1 W.W.R. 74, 33 Alta. L.R. (3d) 189, 175 A.R. 277, 30 C.C.L.I. (2d) 175, 41 C.P.C. (3d) 179 (Q.B.); Elfarnawani v. International Olympic Committee, [2011] O.J. No. 5059, 2011 ONSC 6784, 20 C.P.C. (7th) 412, 209 A.C.W.S. (3d) 539 (S.C.J.); Gajraj v. DeBernardo (2002), 2002 CanLII 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.); Misyura v. Walton (2012), 112 O.R. (3d) 462, [2012] O.J. No. 4457, 2012 ONSC 5397, 40 M.V.R. (6th) 114, 13 C.C.L.I. (5th) 22, 40 C.P.C. (7th) 342, 221 A.C.W.S. (3d) 83 (S.C.J.); Mitchell v. Jeckovich, [2013] O.J. No. 5644, 2013 ONSC 7494, [2014] I.L.R. I-5537, 28 C.C.L.I. (5th) 229, 235 A.C.W.S. (3d) 671 (S.C.J.); Paraie v. Cangemi (2012), 113 O.R. (3d) 231, [2012] O.J. No. 5390, 2012 ONSC 6341, 41 M.V.R. (6th) 318, 222 A.C.W.S. (3d) 385 (S.C.J.); Tamminga v. Tamminga (2014), 120 O.R. (3d) 671, [2014] O.J. No. 2915, 2014 ONCA 478, 375 D.L.R. (4th) 190, 66 M.V.R. (6th) 173, 323 O.A.C. 67, 35 C.C.L.I. (5th) 242, 241 A.C.W.S. (3d) 128; Van Kessel v. Orsulak, [2010] O.J. No. 5690, 2010 ONSC 6919, 9 C.P.C. (7th) 434 (S.C.J.); West Van Inc. v. Daisley (2014), 119 O.R. (3d) 481, [2014] O.J. No. 1424, 2014 ONCA 232, 55 C.P.C. (7th) 61, 317 O.A.C. 294, 239 A.C.W.S. (3d) 924

MOTION to dismiss an action for want of jurisdiction.

Alan L. Rachlin, for plaintiff.

Tracy Brooks, for defendant Michael Westfall.

Jason P. Mangano, for defendant Intact Insurance Company.

PERELL J.: —

[1] The plaintiff, Rennie Forsythe, who is a resident of Ontario, was injured in a motor vehicle accident in British Columbia. Ms. Forsythe was a passenger on a motorcycle owned and driven by the defendant Michael Westfall, who is a resident of Alberta.

[2] On August 11, 2012, Mr. Westfall was driving his motorcycle near Kalamalka Lake near the City of Vernon, British Columbia. Ms. Forsythe was a passenger. They were on a road trip to visit hot springs in the province. Mr. Westfall says that an unidentified approaching vehicle crossed into his lane of traffic. There was no contact between the vehicles, but Mr. Westfall lost control of his motorcycle, and there was an accident. Both he and Ms. Forsythe were injured. Mr. Westfall does not admit his negligence. Mr. Westfall blames the unidentified driver.

[3] The Vernon RCMP attended at the scene of the accident. A motor vehicle traffic collision police investigation report was completed by the attending officer. The accident was witnessed by (a) Nancy Hewitt of Coldstream, British Columbia; (b) Karly [page137] Eurich of Lumby, British Columbia; (c) Celine Nesjan of Edmonton, Alberta; and (d) William Coutu of the United States.

[4] Ms. Nesjan and Mr. Coutu were on another motorcycle travelling behind Mr. Westfall's motorcycle. The police report indicates that none of the witnesses observed the unidentified vehicle driven by John Doe.

[5] A peculiar feature of the case now before the court is that while British Columbia has a locality-connection to the accident and to some of the witnesses to the accident and possibly to a John Doe defendant, it has no in personam-connection to the plaintiff, Ms. Forsythe, and to the defendant Mr. Westfall, both of whom were visiting British Columbia and who would have to visit it again for any trial. Thus, should an action be tried in British Columbia, both the plaintiff and the defendants, save possibly for a John Doe defendant, would be foreign parties.

[6] Ontario's connection to the case is that Ms. Forsythe and her personal automobile insurer are located here and most of her medical treatment for her injuries was received here.

[7] Following the accident, Ms. Forsythe and Mr. Westfall were treated at the Vernon Jubilee Hospital, in Vernon, British Columbia, and then they went to Alberta, where Ms. Forsythe was treated at Royal Alexandra Hospital in Edmonton, on August 16, 2012, after which she returned to Ontario for further care. Ms. Forsythe sustained a severe concussion and brain injury as well as injuries to her back, head, left shoulder, left elbow and left bicep. She has required accommodation at her work as a clerk for Service Canada, and she is contemplating taking early retirement due to the injuries sustained in the accident. Her lawyers believe that her tort claim for damages exceeds $200,000. She has been receiving no-fault statutory benefits for her injuries in Ontario.

[8] Ms. Forsythe sues Mr. Westfall, and she also sues her personal insurer, Intact Insurance Company, formerly Axa Insurance (Canada). Her claim is based on her Ontario Owner's Automobile Insurance Policy with Axa Insurance that includes an OPCF 44R Family Protection Change Form, which provides coverage for underinsured and uninsured drivers. Intact Insurance Company purchased Axa Insurance after the accident, and this explains why she is suing Intact. She, however, is moving to correct the misnomer by adding Axa Insurance as a party defendant. For present purposes, I shall just refer to Intact.

[9] Mr. Westfall does not wish to come to Ontario, and he submits that the motor vehicle accident tort claim ought to be tried in British Columbia. Mr. Westfall brings a motion to stay Ms. Forsythe's Ontario action on the grounds that the court does [page138] not have jurisdiction simpliciter. In the alternative, Mr. Westfall submits that if the Ontario court does have jurisdiction simpliciter, it is not forum conveniens.

[10] The test for whether an Ontario court has jurisdiction simpliciter is whether there is a real and substantial connection between the matter, the parties and Ontario: Club Resorts Ltd. v. Van Breda, [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, 2012 SCC 17.

[11] In Van Breda, in the context of tort claims, the court identified four presumptive factors that would establish a real and substantial connection and jurisdiction simpliciter: (1) the defendant is domiciled or resident in the province; (2) the defendant carries on business in the province; (3) the tort was committed in the province; and (4) a contract connected with the dispute was made in the province.

[12] Putting aside Ms. Forsythe's contract insurance claim against Intact, none of the presumptive factors apply in the immediate case to establish jurisdiction simpliciter for her tort claim. Thus, the issues for this jurisdiction motion narrow to whether in the circumstances of this case, where the only insurance protection available to Ms. Forsythe for her injuries from the tort may be her own personal insurance policy and where her claims against her own issuer must be tried in Ontario: (a) is there a real and substantial connection between the matter, the parties and Ontario; or (b) does the forum of necessity doctrine apply?

[13] In understanding the matter of the insurance available for the accident, it is a significant circumstance that there was no collision between Mr. Westfall's motorcycle and the unidentified driver's vehicle. Although Ms. Forsythe was a passenger on Mr. Westfall's motorcycle, she is not an insured under Mr. Westfall's insurance policy in these circumstances. See Dahl v. Alberta (Motor Vehicle Accident Claims Act, Administrator), 1995 CanLII 9167 (AB KB), [1995] A.J. No. 1216, 33 Alta. L.R. (3d) 189 (Q.B.).

[14] If Mr. Forsythe is not liable and the unidentified driver was the cause of the accident, then the coverage for the unidentified driver would be found in Ms. Forsythe's policy with Intact (formerly Axa). As noted above, Ms. Forsythe's insurance policy included an OPCF 44R Family Protection Coverage Form. For present purposes, the relevant provisions of the insurance policy and the Family Protection Endorsement are as follows:

UNINSURED AUTOMOBILE COVERAGE

Introduction

5.1.1 Uninsured Automobile Coverage Schedule

This Section of the policy describes the terms and conditions of the coverage set out in the Uninsured Automobile Coverage Schedule under the Insurance Act (Ontario). If there is a difference between the interpretation of the wording of this Section and the interpretation of the wording in the Schedule, the Schedule prevails. However, 5.3.3 in this Section is an addition to the coverage provided by the Schedule.

5.1.2 What is an Uninsured Automobile?

An uninsured automobile is one for which neither the owner nor driver has liability insurance to cover bodily injury or property damage arising out of its ownership, use or operation, or the insurance is not collectible. However, this does not include an automobile owned by or registered in the name of the insured person or their spouse.

5.1.3 What is an Unidentified Automobile?

An unidentified automobile is one whose owner or driver cannot be determined.

5.2 What We Will Cover

5.2.1 Claims by You or Other Insured Persons for Bodily Injury

We will pay any amounts you or other insured persons have a legal right to recover as damages from the owner or driver of an uninsured or unidentified automobile for bodily injury resulting from an accident involving an automobile, up to the limits in this Section.

Claims for Bodily Injury or Death

5.3.1 Who is Covered?

The following are insured persons for bodily injury or death:

-- Any person who is an occupant of the automobile.

You, your spouse, and any dependent relative of you or your spouse,

-- when an occupant of an uninsured automobile, or

when not in an automobile, streetcar or railway vehicle if hit by an unidentified or uninsured automobile.

5.6 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

FAMILY PROTECTION ENDORSEMENT

DEFINITIONS

1. Subject to section 2, in this endorsement, . . . [page140]

1.3 "eligible claimant" means

(a) the person who sustains bodily injury; and

(b) any other person who, in the jurisdiction in which an accident occurs, is entitled to maintain an action against the inadequately insured motorist for damages because of bodily injury to or death of an insured person.

1.4 "family protection coverage" means the insurance provided by this endorsement and any similar indemnity provided under any other contract of insurance.

1.5 "inadequately insured motorist" means

(a) the identified owner or identified driver of an automobile for which the total motor vehicle liability insurance or bonds, cash deposits or other financial guarantees as required by law in lieu of insurance, obtained by the owner or driver is less than the limit of family protection coverage; or

(b) the identified owner or identified driver of an uninsured automobile as defined in Part D of the Policy[.]

INSURING AGREEMENT

3. ln consideration of a premium of $............................................... or as stated in the Certificate of Insurance to which this endorsement is attached, the insurance 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 or death of an insured person arising directly or indirectly from the use or operation of an automobile.

[15] Because of the absence of a collision and assuming that the unidentified driver was the sole cause of the accident in British Columbia, it follows that for the purposes of Ms. Forsythe's insurance policy, that Mr. Westfall may be an uninsured driver notwithstanding that he has an automobile insurance policy in Alberta. This follows because Mr. Westfall's personal insurance policy does not provide uninsured automobile coverage in the absence of "physical contact" between the unidentified automobile and Mr. Westfall's motorcycle. Mr. Westfall's motorcycle is, therefore, on the facts of this case, an "uninsured automobile" within the meaning of s. 5.3.1 of Ms. Forsythe's insurance policy, and she would be entitled to uninsured motorist coverage.

[16] For present purposes, the point to note is that depending on a determination of whether Mr. Westfall was culpable to any degree, Ms. Forsythe may or may not have a claim under her uninsured automobile coverage. Visualize, if Mr. Westfall is culpable to any degree, then he is a liable and an insured driver and there would be no need for uninsured motorist coverage for Ms. Forsythe, but she might need underinsured coverage if his liability limits were insufficient to compensate her for her [page141] injuries. Conversely, if Mr. Westfall is blameless and the unidentified driver culpable to any degree, then Ms. Forsythe would need and have coverage under her uninsured motorist coverage.

[17] A further complication that Ms. Forsythe relies on both for her jurisdiction simpliciter argument and her forum of necessity doctrine argument is that under the provisions of her insurance policy she must litigate her claims against her insurer in Ontario and she need not await the outcome of any proceedings in British Columbia.

[18] In Craig v. Allstate Insurance Co. of Canada (2002), 2002 CanLII 44956 (ON CA), 59 O.R. (3d) 590, [2002] O.J. No. 2124 (C.A.), at para. 14, the court held that an Ontario insured has a direct right of action against his or her insurer without a prior judicial determination of liability against the tortfeasor, and without first exhausting all remedies against the tortfeasor. And to still further complicate the situation, Ms. Forsythe points out that if she must sue in Ontario to determine whether she has coverage or not there will be multiple proceedings and the embarrassing prospect of inconsistent findings in British Columbia and Ontario.

[19] In this regard, it is convenient here to note that to protect her claim from being statute-barred, Ms. Forsythe has commenced an action in British Columbia against Mr. Westfall. Intact Insurance is not a party to the British Columbia action and, as already mentioned, under its insurance policy with Ms. Forsythe, its liability to her must be determined by an Ontario court.

[20] Such being the background circumstances, Ms. Forsythe argues that the Ontario court has jurisdiction simpliciter or it should assume jurisdiction under the forum of necessity doctrine.

[21] In my opinion, these arguments do not succeed. The established case law stands against her arguments. Under the established case law, the circumstance that a plaintiff may have an insurance claim associated with a tort claim with which Ontario has no jurisdiction simpliciter does not establish a real and substantial connection between the matter, the parties, and Ontario; there is no jurisdiction simpliciter. In my opinion, the forum of necessity doctrine also does not apply in these circumstances.

[22] In Tamminga v. Tamminga (2014), 120 O.R. (3d) 671, [2014] O.J. No. 2915, 2014 ONCA 478, the plaintiff, an Ontario resident, was injured in an accident in Alberta. She commenced an action in Ontario against the owner of the vehicle, which was an Alberta corporation, and the operator of the truck, an Alberta resident. She also sued her Ontario automobile insurer, claiming [page142] uninsured/underinsured coverage under her policy. The defendants successfully moved to have the Ontario action stayed. The Court of Appeal rejected the argument that the Ontario automobile insurance policy was a factor that satisfied the real and substantial connection standard. At para. 25 of its judgment, the Court of Appeal stated:

An automobile insurance contract "anticipates" accidents generally, but the tortfeasor will not be identifiable in advance. Unlike the contract in Van Breda, there is nothing that connects the appellant's insurance contract to the respondents. They are not parties to or beneficiaries of the contract. The appellant 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 appellant's claim against the tortfeasors.

[23] See, also, Gajraj v. DeBernardo (2002), 2002 CanLII 44959 (ON CA), 60 O.R. (3d) 68, [2002] O.J. No. 2130 (C.A.), where Justice Sharpe, writing for the court, held that the inclusion of a claim against the plaintiff's automobile insurer did not serve to "bootstrap" jurisdiction over non-resident defendants.

[24] In Paraie v. Cangemi (2012), 113 O.R. (3d) 231, [2012] O.J. No. 5390, 2012 ONSC 6341 (S.C.J.), the plaintiff, an Ontario resident, was injured in a car accident in the United States with a vehicle owned and operated by a New York resident. It was possible that the New York defendant was underinsured, and, thus, the plaintiff would have to resort to his underinsured coverage in an insurance policy made in Ontario. The court held that the Ontario court did not have jurisdiction simpliciter and was forum non-conveniens. See, also, Misyura v. Walton (2012), 112 O.R. (3d) 462, [2012] O.J. No. 4457, 2012 ONSC 5397 (S.C.J.) and Mitchell v. Jeckovich, [2013] O.J. No. 5644, 2013 ONSC 7494 (S.C.J.).

[25] Ms. Forsythe argues that the above cases are distinguishable because in each of those cases: (a) a defendant resided in the jurisdiction of the accident; and (b) the claims under uninsured/underinsured automobile coverages were considered speculative or contingent. However, Ms. Forsythe's claims under the Intact (Axa) insurance policy remain speculative and contingent but, more to the point, the authorities establish that these contract claims in Ontario would not provide Ontario with jurisdiction simpliciter to adjudicate the tort claim for an accident outside Ontario.

[26] Further, it does not follow from the fact that no party resides in the jurisdiction where the accident occurred, i.e., in this case British Columbia, that Ontario would acquire a real and substantial connection and jurisdiction simpliciter. That no party resides in British Columbia might be relevant to the [page143] jurisdiction of the British Columbia court, but it does not change the analysis for the Ontario court, which has no presumptive connecting factor with the tort or the parties to it.

[27] I see no room for the operation of the forum of necessity doctrine. This doctrine is an exception to the real and substantial connection test that recognizes that there will be extraordinarily and exceptional cases where the need to ensure access to justice will justify the domestic court's assumption of jurisdiction: West Van Inc. v. Daisley (2014), 119 O.R. (3d) 481, [2014] O.J. No. 1424, 2014 ONCA 232, at paras. 17-38; Van Breda v. Village Resorts Ltd. (2010), 2010 ONCA 84, 98 O.R. (3d) 721, [2010] O.J. No. 402 (C.A.), at para. 100, affd S.C.C. (sub nom. Club Resorts Ltd. v. Van Breda), supra.

[28] The exception is very narrow, and the plaintiff must establish that there is no other forum in which he or she reasonably could obtain access to justice: Bouzari v. Bahremani, [2011] O.J. No. 5009 (S.C.J.). Typically, the doctrine is unavailable because of its high bar, and its availability has been rejected in numerous cases: West Van Inc. v. Daisley, supra; Van Kessel v. Orsulak, [2010] O.J. No. 5690, 2010 ONSC 6919 (S.C.J.); Elfarnawani v. International Olympic Committee, [2011] O.J. No. 5059, 2011 ONSC 6784 (S.C.J.); Mitchell v. Jeckovich, supra. The doctrine is reserved for exceptional cases such as where there has been a breakdown in diplomatic or commercial relations with the foreign state or where the plaintiff would be exposed to a risk of serious physical harm if the matter was litigated in the foreign court.

[29] There is no chance in the immediate case that Ms. Forsythe will be denied access to justice. She remains free to sue in Ontario to enforce her claim against Intact after, or even before, she obtains access to justice for her claim against Mr. Westfall in British Columbia. It may be inconvenient that she is denied one-stop access to justice, but there is no room here for the forum of necessity doctrine.

[30] I, therefore, conclude that Ontario has no jurisdiction simpliciter and the Ontario action should be stayed. In these circumstances, it is not necessary to consider whether Ontario is forum conveniens or non-conveniens.

[31] For the above reasons, I grant Mr. Westfall's motion.

[32] If the parties cannot agree about the matter of costs, they may make submissions in writing, beginning with Mr. Westfall's submissions within 20 days of the release of these reasons for decision followed by Ms. Forsythe's submissions within a further 20 days.

Motion granted.

End of Document