COURT FILE NO.: 129/19
DATE: 20201022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AHMAD AL HAMMURI
Plaintiff
– and –
MAJD AL HAMMURI
Defendant
M. Reid, for the Plaintiff
E. J. de Man, for the Defendant
HEARD: July 22, 2020
MCARTHUR, M.D., J.
Overview
[1] The plaintiff was a passenger in a motor vehicle operated by the defendant that struck the rear of another vehicle on a roadway in Calgary, Alberta on January 3, 2017. The plaintiff was injured as a result of the collision.
[2] The plaintiff and the defendant were brothers. The plaintiff was visiting the defendant at the time of the collision. The plaintiff resided in London, Ontario at the time of and since the collision. The defendant resided in Alberta at the time and since the accident.
[3] The plaintiff has not commenced an action in Alberta as a result of the collision. The plaintiff has commenced an action in Ontario against the defendant claiming damages for injuries sustained in the collision.
[4] The defendant seeks an order striking the plaintiff’s claim or, in the alternative, a stay of proceedings on the basis that the courts in Ontario have no jurisdiction over the dispute.
The Issues
[5] The legal issues are whether the courts in Ontario have jurisdiction in this matter based on a real and substantial connection, and, even if Ontario is not the presumptive jurisdiction, whether Ontario is the convenient jurisdiction. Another issue is whether the actions of the defendant amounted to attornment to the court in Ontario.
[6] For reasons I will outline below, I find the courts in Ontario do not have jurisdiction and this action shall be stayed.
Positions of the parties
[7] The defendant submits Ontario is not the proper forum; none of the four presumptive connecting factors are present in this case to establish a real and substantial connection to Ontario nor are there any new presumptive factors that could do so. The defendant also submits he has brought this motion in a timely manner under rule 21.01(3) and has not otherwise attorned to the jurisdiction of Ontario.
[8] The plaintiff submits the proper forum is Ontario and this case establishes a new presumptive factor upon which jurisdiction can be found. Alternatively, the plaintiff submits the defendant attorned to the jurisdiction of Ontario courts by filing a notice of intent to defend and a statement of defence.
Factual Background
[9] The facts are largely not in dispute. An agreed statement of facts was submitted involving most of the facts.
[10] The defendant was insured by an automobile insurance policy in effect at the time of the collision. The insurance company for the defendant put the plaintiff on notice of the limitation period to present a claim and specifically informed that a statement of claim needed to be filed before January 3, 2019. The plaintiff authorized a licenced paralegal in Ontario to represent him in his claim for bodily injuries.
[11] The plaintiff has been under the care of his family doctor for injuries sustained in the accident and has attended chiropractic and rehabilitation therapy in relation to these injuries. All the medical professionals and treatment services for the plaintiff are located in London, Ontario.
[12] On January 2, 2019, the paralegal for the plaintiff sent a written message to the representative of the defendant’s insurer acknowledging the limitation period of January 3, 2019.
[13] On January 17, 2019, the plaintiff commenced an action in Ontario claiming damages for injuries and losses from the accident by way of a Notice of Action.
[14] On February 15, 2019, the Notice of Action and Statement of Claim were served on the defendant at his residence in Alberta. The defendant did not obtain an order granting leave to serve the defendant outside of Ontario as required under Rule 17.
[15] On December 20, 2019, the plaintiff through counsel demanded a defence from defendant through the defendant’s insurer’s representative.
[16] On January 8, 2020, counsel for the defendant wrote to plaintiff’s counsel to confirm facts relevant to jurisdiction over the claim and, specifically, the residence of the parties.
[17] On January 15, 2020, the defendant entered a defence to this action which pled that Ontario had no jurisdiction over the claim and, in the alternative, that Alberta was the better forum.
[18] On January 16, 2020 counsel for the defendant wrote to plaintiff’s counsel and set out his position on jurisdiction, specifically that Ontario did not have jurisdiction over the dispute and advising his intention to bring a Rule 21 motion.
[19] Approximately two weeks later, on consent, an amended statement of defence was granted to correct the date of loss.
[20] This motion was initially scheduled for February 21, 2020 and adjourned since it was not able to be heard until the date of the hearing by audio teleconference in view of the COVID-19 pandemic and suspension of services of the court.
The Applicable Law
[21] Rule 21.01(3) (a) of the Rules of Civil Procedure provides as follows:
(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that, (a) the court has no jurisdiction over the subject matter of the action.
[22] The common law conflicts test for whether a court should assume jurisdiction over a dispute is whether there is a real and substantial connection to a particular forum.
[23] The Supreme Court of Canada in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572 established the analytic framework and the legal principles for assuming jurisdiction (jurisdiction simpliciter) and for when to decline to exercise it (forum non-conveniens), four enumerated factors and a framework identifying others. The court established four objective presumptive connecting factors. These are:
i. The defendant is domiciled or resident in the province;
ii. The defendant carries on business in the province;
iii. The tort was committed in the province; and
iv. A contract connected with the dispute was made in the province.
[24] The party arguing that the court should assume jurisdiction has the burden of identifying a presumptive connecting factor that links the legal situation or subject matter of the litigation with the forum. Jurisdiction must be established primarily on the basis of objective factors that connect the legal situation or the subject matter of the litigation with the forum. 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. See R. v. Van Breda, supra, at para 82.
[25] The court may identify and recognize new connecting factors. In Van Breda, the court outlined that the connections that give rise to a relationship with the forum should be similar in nature to the ones which result from the previously-listed presumptive connecting factors. The relevant factors to consider are:
i. similarity of the connecting factors with the recognized presumptive connecting factors;
ii. treatment of the connecting factors in the case law;
iii. treatment of the connecting factors in the statue law; and
iv. treatment of the connecting factors in the private international law of other legal systems with a shared commitment to order, fairness and comity. R. v. Van Breda, supra, at para 91.
[26] In Van Breda, the plaintiff suffered catastrophic injuries on a beach in Cuba. In its companion case, Charron, the plaintiff died while scuba diving in Cuba. The defendant in both actions was a company incorporated in the Cayman Islands. The court found in Van Breda that the contract between the parties was made in Ontario and this was a presumptive connecting factor. In the companion matter, the defendant was carrying on business in Ontario where its commercial activities went beyond brand promotion and advertising and included an office and staff presence in the province. This was one of the additional presumptive connecting factors.
[27] In both of these cases before the Supreme Court of Canada, neither of the defendants had rebutted the presumption of jurisdiction being Ontario nor demonstrated that Cuba would clearly be a more appropriate forum. That is not unlike the situation here.
Analysis and Discussion
[28] In this case, the defendant was neither domiciled nor resident in Ontario and did not carry on business in Ontario. The accident did not occur in Ontario. There was no contractual relationship between the parties. There are no presumptive connecting factors that entitle a court in Ontario to assume jurisdiction in this matter.
[29] Furthermore, it is well-established that motor vehicle insurance policies do not qualify as presumptive connecting factors: See Tamminga v. Tamminga, 2014 ONCA 478, [2014] OJ No 2915.
[30] The plaintiff submits that the earlier decision of the Ontario Court of Appeal in the case of Muscutt v. Courcelles, 2002 CanLII 44957 applied and that he has established there is a sufficient connection between Ontario and the plaintiff’s claim not unlike that encountered in the Muscutt case.
[31] Even though both Muscutt and Van Breda involve the test of a real and substantial connection to a particular forum, the Supreme Court of Canada’s decision in Van Breda specifically enumerated four presumptive connecting facts to establish presumptive jurisdiction over a dispute and also set out the framework to identify other presumptive connecting factors.
[32] As to the recognition and application of a presumptive factor, in R. v. Van Breda the plaintiff suffered damages in a province from a tort committed outside the province. The fact that the tort was committed outside the province was found insufficient to allow the court to assume jurisdiction since this was not a presumptive connecting factor.
[33] The plaintiff relies on the Ontario Court of Appeal decision in Muscutt, however, Muscutt can be distinguished on the basis that it was a case where assumed jurisdiction arose out of the initiation of the service of the court’s process of the jurisdiction pursuant to the Rules of Civil Procedure. In addition, the Supreme Court of Canada gave explicit consideration of the Muscutt in Van Breda, and expressly modified the roles and number of factors to consider. See Van Breda, supra at para 64. Van Breda determined four presumptive connecting factors to establish presumptive jurisdiction over a dispute.
[34] As to whether new presumptive factors arise in this case, Van Breda established the framework to identify additional presumptive connecting factors. For the plaintiff to succeed, he must rebut the presumptive jurisdiction that flows for the recognized presumptive factor of the place where the tort was committed and must identify new connecting factors that support presumptive jurisdiction, mindful that that test is one of a real and substantial connection.
[35] A review of decided cases since Van Breda has neither recognized nor identified as yet any new connecting factors.
[36] I find the connecting factor in this case based on Van Breda is the commission of the discrete tort in Alberta. The presumptive jurisdiction in this case is Alberta.
[37] I find the plaintiff has not negated the presumptive effect of the place where the tort was committed. I also find the plaintiff has not met the burden of proving the proposed assumption of Alberta would be inappropriate.
[38] This case does not raise a novel fact scenario involving a multijurisdictional tort. Rather, this is a case of a discrete tort that arose in another specific Canadian province.
[39] The plaintiff has not been able to either rebut the presumptive jurisdiction being Alberta nor identified new connecting factors that support a new presumptive factor in this case. If the court was to assume jurisdiction of the Ontario court based on a number of non-presumptive connecting factors, as the plaintiff essentially submits, this would run counter to the prohibition specifically mentioned in Van Breda at para 93.
Forum Non Conveniens
[40] Forum non conveniens comes into play when jurisdiction is established. The burden is on the plaintiff in this case to show why the court should decline to exercise its jurisdiction and displace the forum mentioned by the defendant. The plaintiff must show that the alternate forum is clearly more appropriate.
[41] In this case, the plaintiff submission at its highest is that there is a sufficient connection between the Ontario and the plaintiff’s claim on the basis that the plaintiff’s pain and suffering, his medical attention and economic loss stem from his work in Ontario. The defendant continues to reside in Alberta.
[42] However, the plaintiff must meet the burden that Ontario is clearly the more appropriate forum. It is the substantive laws of Alberta that will apply to this dispute based on the principle of lex loci delicti. See Tolofson v. Jensen, 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022.
[43] I find the plaintiff has not met the burden to prove that Ontario is in a better position to dispose of the litigation fairly and effectively than Alberta.
Attornment
[44] Even if the real and substantial test is not met, this does not oust the other bases for jurisdiction. Jurisdiction may be based on traditional grounds like the defendant’s presence in the jurisdiction or consent to submit to the court’s jurisdiction, if these are established. See Van Breda, supra at para. 79.
[45] The plaintiff’s position was that the defendant submitted to the jurisdiction of Ontario by filing a Notice of Intent to Defend, Jury Notice, Statement of Defence and Amended Statement of Defence in relation to this action.
[46] The plaintiff maintained that the defendant defended the action without first challenging jurisdiction by bringing a motion with the court. The plaintiff submits the defendant should have first challenged the service of the defendant in Alberta under Rule 17 prior to filing the Notice of Intent to Defend or Statement of Defence since the court can make an order declaring that Ontario is not a convenient forum for the hearing of the proceeding.
[47] The defendant submits r. 21.01(3)(a) applies and that the actions of the defendant at no time attorned to the jurisdiction of the court in Ontario.
[48] Rule 17.06 provides as follows:
17.06 (1) A party who has been served with an originating process outside Ontario may move, before delivering a defence, notice of intent to defend or notice of appearance,
(a) for an order setting aside the service and any order that authorized the service; or
(b) for an order staying the proceeding.
(2) The court may make an order under subrule (1) or such other order as is just where it is satisfied that,
(a) service outside Ontario is not authorized by these rules;
(b) an order granting leave to serve outside Ontario should be set aside; or
(c) Ontario is not a convenient forum for the hearing of the proceeding.
(3) Where on a motion under subrule (1) the court concludes that service outside Ontario is not authorized by these 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 the service.
(4) The making of a motion under subrule (1) is not in itself a submission to the jurisdiction of the court over the moving party.
[49] Once engaged and required to file pleadings, defendant’s counsel soon after, on January 8, 2020, wrote to the plaintiff’s counsel to confirm facts relevant to jurisdiction over the claim.
[50] As outlined earlier, on January 15, 2020, the defendant entered a defence to this action which pled that Ontario had no jurisdiction over the claim and, in the alternative, that Alberta was the better forum.
[51] On January 16, 2020, defendant’s counsel wrote plaintiff’s counsel and indicated that Ontario did not have jurisdiction over the dispute and expressed his intention to bring a Rule 21 motion in relation to jurisdiction.
[52] The plaintiff submits that the following decisions support its position:
a. the Divisional Court decision in Visram v. Chandarana 2008 CanLII 15780 which holds that a defendant attorns to the Ontario jurisdiction by filing a statement of defence;
b. the decision of Kinch v. Pyle 2004 CanLII 48169 which holds, where the defendants served and filed a Notice of Intent to Defend after having been served with the Statement of Claim that did not purport to be limited in any respect nor was there suggestion in the document itself that the Defendants intended to challenge the jurisdiction of the court, the defendant attorned to the jurisdiction;
c. the Ontario Court of Appeal decision in Wolfe v. Pickar 2011 ONCA 347 at para 13 which holds that where a party to an action appears in court and goes beyond challenging the jurisdiction of the court, the party will be regarded as appearing voluntarily and thus giving the court consent-based jurisdiction;
d. the Ontario Court of Appeal case of Muscutt, supra, which held at para 19 that there are three ways in which jurisdiction may be asserted against an out of province defendant: (1) presence-based jurisdiction, (2) consent-based jurisdiction; and (3) assumed jurisdiction. Consent-based jurisdiction occurs where an extra-provincial defendant consents, whether by voluntary submission, attornment by appearance and defence, or prior agreement to submit disputes to the jurisdiction to the domestic court.
[53] The defendant submitted the following decisions in support of its position that it had not attorned to the jurisdiction of Ontario courts:
a. Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2004 CanLII 14550 (ON SC), [2004] O.J. No. 1396 where a stay was granted where the defendant’s insurer filed a notice of intent to defend without the defendant’s consent. The court found there was no clear intent by the defendant to attorn to the jurisdiction of Ontario;
b. Momentous.ca Corp. v. Canadian American Assn. of Professional Baseball Ltd., 2010 ONCA 722, where it was found the filing of a notice of intent to defend and a statement of defence did not preclude relying on a choice of forum clause in an agreement. The court found this action did not amount to attornment by the defendant. The Supreme Court of Canada upheld the Ontario Court of Appeal decision and specifically found that a statement of defence that pleads a forum selection clause (as was the case there) does not amount to consent that Ontario assume jurisdiction. See [2012] 1 S.C.R. 360;
c. Kheng v. Zhuo, 2018 ONCA 2073, articulated that test is “whether the party appears in court and goes beyond challenging the jurisdiction of the court based on jurisdiction simpliciter and forum non conveniens”. The court found that serving a notice of intent to defend does not necessarily preclude a defendant from challenging the court’s jurisdiction under either s. 106 of the Courts of Justice Act or r. 31.01(3) of the Rules.
[54] I find the conduct of the defendant did not, at any point to time, establish a presence-based jurisdiction, a consent-based jurisdiction nor assumed jurisdiction. The defendant moved quickly and efficiently with the focus on the issue of jurisdiction throughout. I find there was no attornment to Ontario courts by the defendant at any time.
Summary and conclusion
[55] For these reasons, I find that the defendant has not attorned to the jurisdiction of the Ontario courts.
[56] I also find that the Ontario courts decline to assume jurisdiction on the grounds that there is no real and substantial connection between the plaintiff and defendant, the legal situation or the subject matter of the litigation and the forum of Ontario.
[57] There shall be an order staying this action.
[58] The parties, if unable to agree to costs within 10 days of the date of this decision, the defendant may make submissions as to costs within 15 days of the date of this decision and the plaintiff may make submissions as to costs within 20 days of the date of this decision, with both parties submissions in writing limited to 2 pages excluding any bill of costs and case law.
Justice M. D. McArthur
Released: October 22, 2020
COURT FILE NO.: 129/19
DATE: 20201022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AHMAD AL HAMMURI
Plaintiff
– and –
MAJD AL HAMMURI
Defendant
REASONS FOR JUDGMENT
MCARTHUR J.
Released: October 22, 2020