NEWMARKET COURT FILE NO.: CV-18-00138123

DATE: 20190909

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LINDA ROSENBLATT, also known as LINDA EHRLICH

Plaintiff / Responding Party

– and –

MAYA PELED, TAMAR PELED and DANIEL PELED in their capacity as Estate Trustees of the Estate of MOSHE PELED, and MAYA PELED, Trustee of the Estate of RUTH BURSZTYN

Defendants / Moving Party

Syed Abid Hussain, Counsel for the Plaintiff / Responding Party

Tanisha G. Tulloch, Counsel for the Defendants / Moving Party

HEARD: July 31, 2019 and August 23, 2019

RULING ON MOTION

CHRISTIE j.

[1] This motion arises out of a statement of claim brought by the Plaintiff, Linda Rosenblatt (Ehrlich). The statement of claim, issued in Ontario on November 15, 2018, makes numerous allegations, and requests various declarations and orders from this court, including, in summary:

(a) The sum of $5,000,000 or such other amount being the value of the Estate due to the Plaintiff, being her share of the estate of Ruth Bursztyn pursuant to the last will and testament of Ruth Bursztyn, the mother of the Plaintiff;

(b) The sum of $32,189.22 with interest personally from Moshe Peled for the transfer of funds to Marvin Rosenblatt in trust following the sale and purchase of plaintiff’s condominiums;

(c) Various breaches of trust and breaches of fiduciary duty owed to the Plaintiff by the trustees, Moshe Peled and Maya Peled;

(d) The failure of the trustees to report and disclose information to the Plaintiff regarding her mother’s estate;

(e) The inappropriate use of funds by the trustees;

(f) An increase in the monthly payments made to the Plaintiff;

(g) Change of trustees from the defendants who reside in Quebec and British Columbia to a trustee in Ontario where the Plaintiff resides;

(h) General and punitive damages;

(i) Immediate use of trust funds for the purpose of paying costs of the action.

The statement of claim includes allegations regarding the testator’s capacity to make a will, allegations of undue influence over the testator in the making of the will, and allegations with respect to the conduct of the trustees regarding the administration of the estate and trust.

[2] The Defendants request that this court stay or dismiss the within action on the basis that the Ontario court does not have jurisdiction over the subject matter of the action, as there is no real and substantial connection between the subject matter of the litigation and the forum. Alternatively, the Defendants seek an Order staying or dismissing the action on the basis that Ontario is a forum non conveniens and the matter ought to be litigated in Quebec. The Defendants also seek an Order setting aside service of the statement of claim outside of Ontario without leave and staying this action on the basis that service was not authorized under the Rules of Civil Procedure and Ontario is not a convenient forum for hearing this action.

[3] Counsel for the Plaintiff argued that Ms. Rosenblatt (Ehrlich), the object of the trust, has lived in Ontario most of her life, including to the present day. She suffers from multiple sclerosis. Ms. Rosenblatt (Ehrlich) is the beneficiary of a trust that her mother created for her benefit. She is physically incapable of traveling to Quebec and on account of her limited financial means, she does not have the ability or means to travel to Quebec to litigate this matter. The Plaintiff argued that allowing this motion will effectively deprive her of her rights before those rights can be determined by a judge on their merits.

FACTS

People Involved

[4] Ruth Bursztyn passed away on February 3, 2012 in the Province of Quebec, as demonstrated by the death certificate. Prior to her death, Ms. Bursztyn had been ordinarily resident at 6500 Mackle, Apartment 606, Côte Saint-Luc, Québec.

[5] Linda Rosenblatt (Ehrlich), the Plaintiff, is the youngest of two daughters to Ruth Bursztyn and Nathan Rosenblatt. The older daughter, the Plaintiff’s older sister, was Terry Rosenblatt, also known as Terry Peled. Terry Peled (Rosenblatt) passed away in 2005.

[6] Moshe Peled was Ruth Bursztyn’s son-in-law, having been married to Terry until Terry’s death. Moshe Peled lived in Montreal, Quebec at the time of his death on July 10, 2019. Moshe Peled and Terry Peled have three children, Maya, Tamar and Daniel. Maya Peled lives in Vancouver, British Columbia.

[7] When this action commenced, the Defendants, Moshe Peled and Maya Peled were joint trustees for a trust created in favour of the Plaintiff, Linda Rosenblatt (Ehrlich), in the Last Will and Testament of the late Ruth Bursztyn. Since the passing of Moshe Peled, the Defendants brought and were granted an Order to continue the litigation without prejudice to their motion. This order was entered on July 24, 2019 which allowed this matter to procced and that the title of the proceedings would change the Defendants to Maya Peled, Tamar Peled and Daniel Peled, in their capacity as estate trustees of the estate of Moshe Peled, and Maya Peled, trustee of the estate of Ruth Bursztyn.

Wills and Trusts

[8] Nathan Rosenblatt prepared a will on June 7, 2002, leaving everything to his wife Ruth Bursztyn. That will was prepared by a Quebec notary, Mtre. Valerie Teroux in Montreal, Quebec. In the event that his wife predeceased him, which did not happen, he left some money to his grandchildren, and then the remainder as follows:

FIFTY PERCENT (50%) of the said remainder of my property, moveable and immovable as heretofore provided, to my daughter Terry ROSENBLATT, with representation in favour of her issue and failing issue, with accretion in trust to my daughter Linda ROSENBLATT according to the terms and conditions set forth in subparagraph (b) of the article.

FIFTY PERCENT (50%) of the said remainder of my property, moveable and immovable as heretofore provided (hereinafter called “Trust Property”), in trust to my Trustee, hereinafter named, in trust, for the following purposes, namely…

g. To disburse monthly to my daughter Linda ROSENBLATT the sum of FIVE THOUSAND CANADIAN DOLLARS ($5,000.00)

j. If my daughter Linda Rosenblatt should die leaving children in the first degree surviving her and, without having received the whole of her share, such share or the undelivered part thereof shall be held in trust for said descendants.

My Trustee shall divide such property into as many equal shares as there

are such children in the first degree. The said trust shall be subject to the

same terms and conditions as the trust created for Linda ROSENBLATT

subject to the following modifications, namely:

My Trustee shall make monthly disbursements of Two thousand five

hundred dollars ($2,500.00) to each such child form the share allotted to him or her.

My Trustee will make the said disbursements until each such child attains the age of thirty (30) years or until the depletion of his or her share, whichever event occurs sooner.

It was unclear to this court exactly when Nathan Rosenblatt passed away, but it was a few

months prior to February 2005.

[9] Ruth Bursztyn’s will was made in the province of Quebec on February 10, 2005. Her will was prepared by the same Quebec notary, Mtre. Valerie Teroux, who continues to reside in the province of Quebec. Ms. Bursztyn named her oldest daughter, Terry, to be her testamentary liquidator and executor. In the event of Terry’s passing, which occurred later in 2005, Ms. Bursztyn named the children of Moshe and Terry Peled, namely, Maya, Tamar and Danny. If Maya, Tamar or Danny declined to act, Moshe Peled was named as a replacement for the one that had declined.

[10] Maya Peled initially declined to act as testamentary liquidator and executor. In her place, Maya Peled confirmed that according to the terms of the will, Moshe Peled was to act in her place. Maya Peled signed an authorization to this effect on May 9, 2013. However, with the passing of Moshe, Maya Peled has returned to this role, having never renounced. Therefore, Maya, Tamar and Daniel Peled are the current estate trustees for Ruth Bursztyn’s estate.

[11] Ruth Bursztyn’s will, similar to that of her late husband, Nathan Rosenblatt, provides for the trust to the benefit of Linda. However, there would appear to be significant differences between the two wills. In summary, after dealing with debts and some money to her grandchildren, Ms. Bursztyn leaves the remainder of her property to her daughter, Terry, amounting to 50%, and the remaining 50% in trust with Linda as a beneficiary of that trust. Article VI of the will states in part as follows:

FIFTY PERCENT (50%) of the said remainder of my property, moveable and immovable as heretofore provided, unto my daughter Terry ROSENBLATT, with representation in favour of her issue and failing issue, with accretion in Trust according to the terms and conditions set forth in subparagraph (ii) of this article.

FIFTY PERCENT (50%) of the said remainder of my property, moveable and immovable as heretofore provided (hereinafter called “Trust Property”), in trust unto my Trustee, hereinafter named, in trust, for the following purposes, namely…

g. To disburse monthly to my daughter Linda ROSENBLATT the sum of FIVE THOUSAND CANADIAN DOLLARS ($5,000.00)

k. My Trustee shall have sole and absolute discretion to sell all of the rights, titles and interests in all of the immovables in the Trust Property and this at the time and for the consideration she deems acceptable.

l. Within two (2) years of the death of my daughter Linda ROSENBLATT, my Trustee shall disburse ONE HUNDRED THOUSAND DOLLARS ($100,000.00) to each of my grandchildren, Sandy ERLICH and Steven ERLICH.

The distribution of such capital may be effected at any time within such period at the Trustee’s discretion.

m. Upon the distribution of the capital to Sandy ERLICH and Sandy ERLICH as set forth in sub-paragraph “l” of this Article, the balance of the Trust Property shall be distributed to my daughter Terry ROSENBLATT or her issue by representation.

[12] The trustees of the trust for Linda Rosenblatt (Ehrlich) were initially Terry and Moshe Peled. (See Article IX of Ruth Bursztyn’s will) When Terry passed away, the replacement was Maya Peled. Therefore, until Moshe Peled’s death, the trustees were Moshe and Maya Peled. Given the death of Moshe Peled, the remaining trustees of the trust were Maya Peled and Dr. Ruby Friedman, who was named as the replacement for Moshe Peled in the will. Dr. Friedman has declined to act and has signed a renunciation. The remaining trustee of the trust is, therefore, Maya Peled.

[13] According to an inventory of the estate, including the trust, completed by the testamentary liquidators and executors, all of the assets of Ms. Bursztyn’s estate are situated in the province of Quebec.

[14] The Plaintiff believes that there was undue influence exerted over her mother in making this will and in fact her mother did not have the capacity to make this will. Ruth Bursztyn executed her new will only five months after the death of her husband. According to the Plaintiff, the will of Ruth Bursztyn fundamentally alters the Plaintiff’s share, such that upon the Plaintiff’s death, the will gives $100,000 to each of the children of Linda Rosenblatt (Ehrlich), with the remainder to Linda’s sister, Terry.

Plaintiff’s Personal Circumstances

[15] The Plaintiff, Linda Rosenblatt (Ehrlich) is 63 years old. She came to Canada from Israel in or about 1957, when she was two years old. She lived with her parents in Montreal, Quebec. She has a high school education. After her marriage in 1977, she and her husband moved to Windsor, Ontario for him to continue his education from about 1979 to 1982. After he finished his education, they moved to Toronto, Ontario. They divorced in 1991, which led to a precarious financial situation for Ms. Rosenblatt (Ehrlich) and her children, therefore, her parents assisted her. She continued to live in Toronto until about 1998. From 1998 to 2001 she lived in Montreal, Quebec. From 2001 to 2009, she lived in Toronto, Ontario. As a result of her mother’s failing health, Ms. Rosenblatt (Ehrlich) moved to Montreal to be with her mother from 2009 to 2012. After her mother passed away in 2012, she returned to Toronto, Ontario and has been living there since that time.

[16] Medical evidence presented to this court demonstrated that Ms. Rosenblatt (Ehrlich) has been diagnosed with multiple sclerosis, severe anxiety, chronic pain, and a history of hypertension. She has mobility issues and relies on the use of a wheelchair.

[17] In a report dated July 16, 2019, Dr. Sherief Marzouk provided her neuropsychiatry progress, which stated in part as follows:

Mental Status Examination:

Cooperative, pleasant and compliant. Her affect is euthymic. Her speech is fluent and of high pitch, loud volume and regressed tone. Thought process involves organized and logical connections and thought content lacks any delusions or perceptual disturbances. She denies any suicidal or homicidal ideations. She is alert and oriented in all 3 spheres. Her insight and judgment are intact.

Assessment:

Bipolar disorder type II, most recent episode hypomanic, in full

Remission.

Anxiety NOS, Stable.

Multiple sclerosis.

The same comments were made in a neuropsychiatry progress note from January 24, 2019.

[18] Dr. Shalini Rastogi provided a letter dated July 26, 2019 in which she discusses the health concerns of Ms. Rosenblatt (Ehrlich). It is stated in part:

…She is nearly immobile at age 63 and needs a wheelchair for ambulation. She needs 24/7 assistance with all her activities of daily living. She does not have any support during the day except CCAC care giver who provides limited support once a day. During day time for her daily needs, she relies on her son, Steven Ehrlich, who is not trained for personal care giving.

….Linda is not able to travel for any distance and does not have emotional and physical capacity to travel to Quebec for a court hearing. I have advised her not to travel because she can reach a breaking point psychologically going through stress of a legal hearing. She is under considerable distress thinking about her future and future of her son and daughter.

[19] In a letter dated July 30, 2019, Dr. Marzouk stated in part:

Unfortunately, in my professional opinion, I do not think that she will be able to testify properly owing to severe and debilitating anxiety. In addition, she struggles with some cognitive symptoms with difficulty concentrating and sustaining attention which would shape another hindering factor for her to genuinely be able to testify in a fair manner to her.

[20] Further, Ms. Ehrlich fell on Monday August 19, 2019 and severely injured her back. She was taken to North York General Hospital for emergency care. To return home, she needed an ambulance and the hospital had to call the trustee to pay for the ambulance. Ms. Ehrlich continues to be in pain as a result of injuries from that fall.

[21] With respect to her financial situation, the plaintiff provided financial information to demonstrate that she has no savings and her cost of living far exceeds her available funds.

ANALYSIS

[22] There is no question that the will and trust at issue in these proceedings was created in Quebec. There is no question that the testator’s domicile at the time of her death was Quebec. There is no question that the property and assets of this will and trust are located in Quebec.

[23] The essential validity of a will of movables is governed by the law of the testator's domicile at the time of death. The essential validity of a will of immovables is governed by the location of the item at issue.

Jurisdiction – Real and Substantial connection

[24] A party arguing that the court should assume jurisdiction has the burden of identifying a connection between the subject matter of the litigation and the location of the litigation. In other contexts, apart from estates litigation, the courts have applied the common law “real and substantial connection” test when considering the appropriate jurisdiction for a proceeding.

[25] In Morguard Investments Ltd. v. DeSavoye, 1990 29 (SCC), [1990] 3 S.C.R. 1077, the issue to be decided was the recognition to be given by the courts in one province (British Columbia) to a judgment of the courts in another province (Alberta) in an action brought in the latter province at a time when the defendant did not live there. Specifically, the appeal dealt with judgments granted in foreclosure proceedings for deficiencies on the sale of mortgaged property. This case was the first formal adoption by the court of the real and substantial connection test. In Morguard, the Court held that the courts of one province must recognize and enforce a judgment of a court of another province if a real and substantial connection exists between that court and the subject matter being litigated. The Court in Morguard, however, did not provide a clear test to be followed and also did not confirm the constitutional nature of such a test. LaForest J. stated:

[51] … It seems to me that the approach of permitting suit where there is a real and substantial connection with the action provides a reasonable balance between the rights of the parties. It affords some protection against being pursued in jurisdictions having little or no connection with the transaction or the parties. In a world where even the most familiar things we buy and sell originate or are manufactured elsewhere, and where people are constantly moving from province to province, it is simply anachronistic to uphold a "power theory" or a single situs for torts or contracts for the proper exercise of jurisdiction.

[52] The private international law rule requiring substantial connection with the jurisdiction where the action took place is supported by the constitutional restriction of legislative power "in the province"…I must confess to finding this approach attractive, but as I noted earlier, the case was not argued in constitutional terms and it is unnecessary to pronounce definitively on the issue…

[53] There are as well other discretionary techniques that have been used by courts for refusing to grant jurisdiction to plaintiffs whose contact with the jurisdiction is tenuous or where entertaining the proceedings would create injustice, notably the doctrine of forum non conveniens and the power of a court to prevent an abuse of its process…

[26] A few years after Morguard, the Court confirmed the constitutional nature of the test in Hunt v. T&N plc, 1993 43 (SCC), [1993] 4 S.C.R. 289. In that case, the court also held that assumptions of jurisdiction by a province and its courts are not without limits and must be grounded in the principles of order and fairness. Still, however, there was no specific test established by the court.

[27] Finally in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, the Supreme Court of Canada, in the context of a tort case, provided a more concrete test to be followed when considering the appropriate jurisdiction for a case. The court developed a list of presumptive factors that, when present, will allow the court to assume jurisdiction. When one of the presumptive connecting factors applies, the court will assume jurisdiction unless the defendant can demonstrate the absence of a real and substantial connection. If none of the presumptive connecting factors are present, the onus rests on the plaintiff to prove that a sufficient relationship exists between the litigation and the forum. This will be addressed as part of the forum non conveniens argument below.

[28] In Club Resorts, two individuals were injured while on vacation outside of Canada. Actions were brought in Ontario against a number of parties including Club Resorts Ltd, a company incorporated in the Cayman Islands that managed the two hotels in Cuba where the accidents occurred. Club Resorts argued that the Ontario courts lacked jurisdiction and, in the alternative, that a Cuban court would be a more appropriate forum on the basis of the doctrine of forum non conveniens.

[29] The Supreme Court of Canada made it clear in Club Resorts that if it is determined that the court lacks jurisdiction because there is no real and substantial connection, the court must decline to hear the case. At para. 70, the court stated:

[70] The real and substantial connection test does not mean that problems of assumption of jurisdiction or other matters, such as the choice of the proper law applicable to a situation or the recognition of extraprovincial judgments, must be dealt with on a case-by-case basis by discretionary decisions of courts, which would determine, on the facts of each case, whether a sufficient connection with the forum has been established. Judicial discretion has an honourable history, and the proper operation of our legal system often depends on its being exercised wisely. Nevertheless, to rely completely on it to flesh out the real and substantial connection test in such a way that the test itself becomes a conflicts rule would be incompatible with certain key objectives of a private international law system.

Fairness concerns are not a substitute for the real and substantial connection test. The Court stated at para. 82, “Abstract concerns for order, efficiency or fairness in the system are no substitute for connecting factors that give rise to a "real and substantial" connection for the purposes of the law of conflicts.”

[30] The Court looked at a number of things that should not be presumptive connective factors or at least could be problematic to consider as such. The location of the Plaintiff in the jurisdiction is not, on its own, a sufficient connecting factor. Carrying on business in the jurisdiction may be considered an appropriate connecting factor, however, the court warned against it, especially if the presence of the business is simply virtual as opposed to actual. Further, the use of damage sustained as a connecting factor is discouraged.

[31] The Court concluded that, in tort cases, the following are presumptive connective factors:

(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.

The Court also held that the list of presumptive connecting factors was not closed, and suggested that 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 the private international law of other

legal systems with a shared commitment to order, fairness and comity.

In determining whether a new connecting factor should be given presumptive effect, the values of order, fairness and comity may be considered.

[32] A good summary of the principles to be taken from Club Resorts can be found in para.100, wherein the court stated as follows:

[100] To recap, to meet the common law real and substantial connection test, the party arguing that the court should assume jurisdiction has the burden of identifying a presumptive connecting factor that links the subject matter of the litigation to the forum. In these reasons, I have listed some presumptive connecting factors for tort claims. This list is not exhaustive, however, and courts may, over time, identify additional presumptive factors. The presumption of jurisdiction that arises where a recognized presumptive connecting factor - whether listed or new - exists is not irrebuttable. The burden of rebutting it rests on the party challenging the assumption of jurisdiction. If the court concludes that it lacks jurisdiction because none of the presumptive connecting factors exist or because the presumption of jurisdiction that flows from one of those factors has been rebutted, it must dismiss or stay the action, subject to the possible application of the forum of necessity doctrine, which I need not address in these reasons. If jurisdiction is established, the claim may proceed, subject to the court's discretion to stay the proceedings on the basis of the doctrine of forum non conveniens….

[33] In determining whether and how to apply the analysis from Club Resorts to a wills and estates context, this court has considered whether this test is logically applicable to the considerations in that type of litigation. This court was not provided with any case law which established the use of the Club Resorts presumptive factors in the context of wills and estates litigation. Having said that, however, the test established in Club Resorts would seem to logically apply in the wills and estates context, given that there is already a consideration of similar concepts in this area of law, such as:

1. The location of the creation of the will / trust

2. The location of the property and assets of the will / trust

3. The testator’s domicile at the time of death.

[34] In the case at bar, there are no presumptive connecting factors between the subject matter of this litigation and the province of Ontario to engage the jurisdiction of the Ontario court. In fact, apart from the location of the Plaintiff, there is no connection at all. The following factors weigh against Ontario assuming jurisdiction and toward the fact that Quebec is the appropriate jurisdiction:

a. Ruth Bursztyn was ordinarily resident in Quebec at the time of her death. She in fact died in Quebec.

b. The will and trust were made in Quebec and will be evaluated according to Quebec law. Any misconduct or undue influence, as alleged by the Plaintiff, should be assessed in Quebec according to Quebec law as it would have occurred in Quebec.

c. All of the assets of the estate, including all of the assets of the trust are all situated in the province of Quebec.

d. Witnesses needed as part of this litigation are all located in Quebec, including the notary who prepared the will continues to practice in Quebec.

e. There are no witnesses on behalf of the Defendants that are located in the province of Ontario.

f. Moshe Peled, prior to his death, was not ordinarily residence in Ontario, nor did he carry on business in Ontario. Moshe Peled is now deceased and his estate trustees are Maya, Tamar and Danny Peled, none of whom reside in or carry on business in Ontario.

g. Maya Peled lives in and is employed in Vancouver, British Columbia.

h. The Plaintiff has resided in Quebec at various times, including from 1998 to 2001 and again from 2009 to 2012. The Plaintiff currently resides in Ontario by her own choice.

[35] There are no presumptive connecting factors that apply in this case. Further, the Defendants have demonstrated the complete absence of any real and substantial connection to Ontario. The only thing that connects this case in any way to Ontario is the fact that the Plaintiff resides in Ontario. The location of the Plaintiff must not trump the connecting factors as outlined by the court. This would lead to a great deal of uncertainty about the appropriate forum, and jurisdiction would be determined at the whim and will of the Plaintiff given their choice of residence at any given time. To assume jurisdiction in this case would fly in the face of the direction provided by the Supreme Court of Canada as to the application of the real and substantial connection test. The application of this test must have some consistency.

Forum Non Conveniens

[36] Forum non conveniens comes into play when jurisdiction is established. It has no relevance to the jurisdictional analysis itself: See Club Resorts, para. 101.

[37] If this issue is raised by a party, the burden is on that party to show why the court should decline to exercise its jurisdiction and displace the forum chosen. The party must identify another forum that has an appropriate connection under the conflicts rules and that should be allowed to dispose of the action. In Club Resorts, the court held:

[103] …The defendant must show, using the same analytical approach the court followed to establish the existence of a real and substantial connection with the local forum, what connections this alternative forum has with the subject matter of the litigation. Finally, the party asking for a stay on the basis of forum non conveniens must demonstrate why the proposed alternative forum should be preferred and considered to be more appropriate.

See also: Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), 1993 124 (SCC), [1993] 1 S.C.R. 897.

[38] In Club Resorts, after discussing the real and substantial connection test, the court explained how the doctrine of forum non conveniens still allows the Court to exercise discretion in appropriate circumstances. The court stated:

[104] … When it is invoked, the doctrine of forum non conveniens requires a court to go beyond a strict application of the test governing the recognition and assumption of jurisdiction. It is based on a recognition that a common law court retains a residual power to decline to exercise its jurisdiction in appropriate, but limited, circumstances in order to assure fairness to the parties and the efficient resolution of the dispute. The court can stay proceedings brought before it on the basis of the doctrine.

[105] A party applying for a stay on the basis of forum non conveniens may raise diverse facts, considerations and concerns. Despite some legislative attempts to draw up exhaustive lists, I doubt that it will ever be possible to do so. In essence, the doctrine focusses on the contexts of individual cases, and its purpose is to ensure that both parties are treated fairly and that the process for resolving their litigation is efficient.

[108] Regarding the burden imposed on a party asking for a stay on the basis of forum non conveniens, the courts have held that the party must show that the alternative forum is clearly more appropriate….

[109] The use of the words "clearly" and "exceptionally" should be interpreted as an acknowledgment that the normal state of affairs is that jurisdiction should be exercised once it is properly assumed. The burden is on a party who seeks to depart from this normal state of affairs to show that, in light of the characteristics of the alternative forum, it would be fairer and more efficient to do so and that the plaintiff should be denied the benefits of his or her decision to select a forum that is appropriate under the conflicts rules. The court should not exercise its discretion in favour of a stay solely because it finds, once all relevant concerns and factors are weighed, that comparable forums exist in other provinces or states. It is not a matter of flipping a coin. A court hearing an application for a stay of proceedings must find that a forum exists that is in a better position to dispose fairly and efficiently of the litigation. But the court must be mindful that jurisdiction may sometimes be established on a rather low threshold under the conflicts rules. Forum non conveniens may play an important role in identifying a forum that is clearly more appropriate for disposing of the litigation and thus ensuring fairness to the parties and a more efficient process for resolving their dispute.

[110] As I mentioned above, the factors that a court may consider in deciding whether to apply forum non conveniens may vary depending on the context and might include the locations of parties and witnesses, the cost of transferring the case to another jurisdiction or of declining the stay, the impact of a transfer on the conduct of the litigation or on related or parallel proceedings, the possibility of conflicting judgments, problems related to the recognition and enforcement of judgments, and the relative strengths of the connections of the two parties.

[39] In Frymer v. Brettschneider, 1994 1685 (ON CA), [1994] O.J. No. 1411 (C.A.), the Plaintiff, who lived in Ontario, had served a statement of claim on one defendant (the trustee of the trust) in Alberta and one defendant (wife of the deceased) in Quebec. The appeal involved questions of the appropriate forum for the litigation of an action involving, among other things, the interpretation of a trust instrument drafted in Florida by Florida lawyers and a deceased who was also residence in Florida at the time of death. The court invoked the forum non conveniens doctrine and concluded that Florida was the most appropriate forum.

[40] In the case at bar, Quebec is clearly the more appropriate forum. As previously stated, there is absolutely no connection to Ontario, apart from the fact that the Plaintiff has chosen to live in Ontario. Every other factor indicates that the more appropriate forum is Quebec, including that the residence of the deceased at the date of death was Quebec, the will/trust were created in Quebec by a Quebec notary with witnesses from Quebec, and the location of the property and assets that make up the will and trust are located in Quebec. The presence of Ms. Rosenblatt (Ehrlich) in Ontario does not make Ontario the preferred and more appropriate forum.

[41] The applicable law that governs the will and trust is that of the last place of residence of the deceased and the location of the property, which was and is Quebec. The Plaintiff submitted that in Article XIII of the will there is reference to Ontario law, specifically, it states:

….Moreover, no bequest made herein shall form part of any Legatee’s net family property for any purpose or purposes of the Family Law Act, 1986, in the Province of Ontario and any amendments thereto or any successive legislation thereto.

This does not mean that the will and trust will be interpreted according to Ontario law as the Plaintiff suggested. This was obviously a reflection of the fact that the Plaintiff was living in Ontario and some benefit under the will or trust may end up in Ontario or enforcement may occur in Ontario. This clause would, arguably, protect the beneficiary from having to share this property with a spouse in the event of a separation or divorce. This reference does not create jurisdiction for the Ontario court.

[42] Quebec is the most appropriate forum for this litigation.

Necessity

[43] The Plaintiff argues that the forum of necessity should lead the court to assume jurisdiction in Ontario. It is argued that the Plaintiff is physically incapable of traveling to Quebec and due to her financial distress, she does not have the means to bring or maintain an action in Quebec. Because the object of the trust is the welfare of the beneficiary, who is an Ontario resident, and in this case the beneficiary is incapable of travelling, any matters related to the trust ought to be litigated in Ontario. The Plaintiff submitted that allowing this motion would effectively deny her of her rights before they can be determined substantively by a judge. She will lose her right to be heard by a judge forever.

[44] In Club Resorts, the Supreme Court of Canada left open the possibility of the forum of necessity doctrine but did not address it in any detail in that case.

[45] In West Van Inc. v. Daisley, 2014 ONCA 232, 119 O.R. (3d) 481 (C.A.), an Ontario resident plaintiff brought an action in Ontario against a North Carolina lawyer and the lawyer’s firm for damages for professional negligence and breach of contract arising out of their unsuccessful defence of an action against the plaintiff in North Carolina. The motion judge granted the defendants’ motion to stay the action as there was no real and substantial connection to Ontario. On appeal, the court of appeal held that the motion judge erred in failing to consider the forum of necessity exception to the test. However, the appeal was dismissed as the court determined that the plaintiff had not met the high threshold required to establish the forum of necessity. The Court referred to the Club Resorts case and stated:

[20] All jurisdictions in Canada that have recognized the forum of necessity have incorporated a “reasonableness” test. In Ontario, under Van Breda, the plaintiff must establish that “there is no other forum in which the plaintiff can reasonably seek relief”.

[21] The “reasonableness” requirement has been stringently construed. To date, only one Ontario court has assumed jurisdiction based solely on the forum of necessity doctrine: Bouzari v. Bahremani, [2011] O.J. No. 5009 (S.C.J.). Elsewhere in Canada, only the British Columbia Supreme Court has done so, and, in that case, on the basis of s. 6 of its CJPTA, which is in the form of s.6 of the ULCC’s model law: see Josephson (Litigation guardian of) v. Balfour Recreation Commission, 2010 BCSC 603, 10 B.C.L.R. (5th) 369.

[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 (C.A.). The doctrine is designed for cases like Bouzari v. Bahremani, which are very different from the case at hand.

[41] The doctrine of forum of necessity is unlikely to be successfully invoked on what is in essence a private, commercial matter, on the basis of inability to obtain counsel.

[46] In Bouzari v. Bahremani, [2011] O.J. No. 5009 (S.C.J.) the court determined that the plaintiffs were tortured in Iran by the defendant or at the defendant’s request and, therefore, the plaintiffs should not be required to commence the action in the foreign jurisdiction where the torture took place.

[47] In Josephson (Litigation guardian of) v. Balfour Recreation Commission, 2010 BCSC 603, 10 B.C.L.R. (5th) 369, the plaintiff was a passenger in a golf cart driven by Clark on a golf course in British Columbia. Both were residents of Idaho. Josephson was thrown from the cart and injured. He was initially treated in British Columbia, then transferred to Idaho. His condition worsened after the transfer. Josephson sued Clark in British Columbia and did not intend to sue the Idaho hospital. Clark on the other hand claimed that the treatment received in Idaho was negligent and that it contributed to the damages. He sought to claim contribution and indemnity from the Idaho hospital and its treating doctors in the action in British Columbia. It was determined that the only way Clark could bring the action for contribution and indemnity would be if the matter proceeded in British Columbia. In that case, the only practical approach was for one court to hear all matters.

[48] The physical limitations of an individual, including the possibility that there would be an exacerbation of a mental disorder leading to self-harm, has been held not to satisfy the forum of necessity doctrine. In Goodings (Litigation guardian of) v. Lubin, [2018] O.J. No. 152 (S.C.), Justice Spies held:

[91] For the reasons I have given, the plaintiffs have not satisfied me that Jasmine would be exposed to a real risk of serious physical harm if this matter is litigated in British Columbia or for that matter that there exists a serious physical threat if the Action were to be undertaken in British Columbia. Having reviewed the case law that has dealt with the test for when a court will invoke the forum of necessity doctrine to assert jurisdiction, even the plaintiffs' evidence at its highest falls far short of establishing the type of exceptional circumstances that would justify applying the doctrine to this case. As A.C.J.O. Hoy said in West Van, at para. 40, the doctrine is designed for cases like Bouzari which are very different from the case at hand. This is not one of those exceptional cases in which Ontario must assume jurisdiction in order to ensure Jasmine's access to justice.

See also: Arsenault v. Nunavut, [2015] O.J. No. 3494 (S.C)

[49] With respect to the forum of necessity doctrine, the onus is on the party seeking to invoke this doctrine to demonstrate that they cannot reasonably seek relief in the forum at issue, in this case Quebec. There is no evidence in this case to meet that onus.

[50] The Plaintiff’s medical issues will all exist no matter where the proceedings take place. Her mobility issues will continue and may be challenging whether she is travelling to Quebec or simply travelling to the courthouse in Newmarket. There is no evidence that Ms. Rosenblatt (Ehrlich) has attempted to be accommodated in any way by the Quebec courts, as in appearing by video link or seeking other accessibility arrangements if she attends personally. There is no reason to believe that Quebec would not accommodate any limitations suffered by the Plaintiff to ensure her access to justice. There is no reason to believe that the court in Quebec will not accommodate the Plaintiff in the same way that a court in Ontario would accommodate her. Further, it is quite possible that the Plaintiff could stay in Ontario throughout the proceedings and instruct counsel in Quebec. Examinations could take place in Ontario to be used in Quebec. Litigants live in one area and yet litigate in another area all the time. If a judgment is obtained in Quebec, it can be enforced for the Plaintiff’s benefit in Ontario. There is no evidence that Ms. Rosenblatt (Ehrlich) has attempted to secure counsel in Quebec or even what if any inquiries have been made in this regard.

[51] Ms. Rosenblatt (Ehrlich) has submitted evidence to suggest that she will have difficulty testifying in these proceedings. This challenge is not specific to any jurisdiction.

[52] The Plaintiff submitted that she has suffered financial disadvantages living under the trust, which the Defendants dispute, however, even if true, this fact does not assist the Plaintiff in her argument. There is no evidence to show the cost difference between litigating this matter in Quebec versus litigating in Ontario. There is no evidence to suggest that she has attempted to ask for funds from the trust for legal fees.

[53] This case involves two provinces in Canada. As stated by Justice Spies at para. 89 in Goodings, “There is nothing about Canada’s individual provincial forums that would render it near absolutely impossible for plaintiffs to seek relief therein. Specifically, there is unlikely ever to be a case where a Canadian forum gives rise to “Bouzari type” concerns. In a federation like Canada, safety and the rule of law are virtually uniform.” There is certainly no danger to Ms. Rosenblatt (Ehrlich) posed by having this matter heard in the province of Quebec.

[54] The Plaintiff has not established that there is no other forum in which she can reasonably seek relief”.

Setting aside service under Rule 17.06

[55] Service outside of Ontario without leave may be made where the proceeding involves a claim listed in Rule 17.02 of the Rules of Civil Procedure. The onus of setting aside service ex juris under Rule 17.06(2)(c) is on the Defendant. See Frymer v. Brettchneider, 1994 1685 (ON CA), [1994] O.J. No. 1411 (C.A.), para. 5.

[56] This proceeding does not involve a claim for any matters listed in Rule 17.02. None of the property which forms the estate and trust is located in Ontario. All of the assets of the estate and trust are in Quebec. Ruth Bursztyn, the deceased, at the time of her death, was not resident in Ontario, but rather was resident in Quebec. Further, the document that forms the subject of this dispute, the will and trust, were not created in Ontario, but rather in Quebec. Also, the parties to the will and trust have not agreed that the courts of Ontario are to have jurisdiction over legal proceedings in respect of the will or trust. Finally, there is no suggestion or evidence before this court that any breach of contract was committed in Ontario.

[57] Under Rule 17.06, the party served outside Ontario may move for an order setting aside the service or for an order staying the proceeding. The Court must be 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.

Pursuant to Rule 17.06(3), if the court is satisfied that service outside Ontario is not authorized by the rules, but the case is one in which it would have been appropriate to grant leave to serve outside Ontario under Rule 17.03, the court may make an order validating service. In 17.06(4), it is clear that bringing a motion under 17.06(1) does not amount to submitting to the jurisdiction.

[58] I am satisfied that service outside of Ontario on the Defendants, without leave, was not authorized under the Rules and Ontario is not an appropriate forum for the subject matter of this action for the reasons stated above regarding the real and substantial connection test, forum non conveniens, and forum of necessity.

Conclusion

[59] This matter concerns an estate and trust for someone ordinary resident in Quebec at the time of her death. The will and trust were made in Quebec with a Quebec notary. All assets of the estate and trust are located in Quebec. The administration of the trust, prior to the death of Moshe Peled, was taking place in Quebec. None of the defendants, live or are ordinarily resident or carry on business in Ontario. The only link to Ontario is that Linda Rosenblatt (Ehrlich), the Plaintiff, lives in Ontario. This does not create a connection to Ontario.

[60] In summary, Ontario does not have jurisdiction based on the real and substantial connection test. Further, Quebec is the more appropriate jurisdiction based on a consideration of the forum non conveniens doctrine. Finally, the Plaintiff has not established that it is necessary to have this litigation occur in Ontario, as she can reasonably seek relief in Quebec. In addition, service outside of Ontario was improper.

[61] For all of these reasons, the matter is stayed, without prejudice to the Plaintiff bringing an action in another jurisdiction.

Costs

[62] The Defendants seek costs in the amount of $22,487.73, on a substantial indemnity basis, to be paid from the trust assets of the Plaintiff. The Defendants take the position that this should be seen as an expense of managing this trust and they should not be out of pocket for same.

[63] The Plaintiff takes the position that these costs are exorbitant.

[64] The Defendants were successful on this motion. The Defendants should not be substantially out of pocket as a result of their role in managing the trust and, therefore, should be reimbursed on a substantial indemnity basis. However, in my view, the costs appear to be somewhat high based on the nature of the motion. Costs are payable to the Defendants in the amount of $15,000.00 to be paid from the trust assets of the estate within 90 days.

Justice V. Christie

Released: September 9, 2019