Court File and Parties

COURT FILE NO.: 19-68339 DATE: 2021-03-04 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Natenon Tongtae, (Plaintiff) A N D: Christian Pottle, Amherstburg Police Services Board, Her Majesty the Queen In Right Of Ontario, Keith Mallory, Madison Township Police Department (Defendants)

BEFORE: The Honourable Justice A.J. Goodman

COUNSEL: N. Rosenthall, for the moving party, Keith Mallory and Madison Township Police Department, Defendants M. Winward, for the Plaintiff

HEARD: February 3, 2021

Endorsement

[1] The defendants, Keith Mallory (“Mallory”) and Madison Township Police Department, (“MTPD”), bring a motion for a determination under Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The defendants argue that the plaintiff has no reasonable cause of action as against them.

[2] The defendants also seek an order dismissing this action for want of jurisdiction forum conveniens and on the basis of forum non conveniens.

[3] For the following reasons, I dismiss the defendants’ motions and order that the action continue in Ontario.

Issues:

[4] This motion raises two issues:

[5] Is there a reasonable cause of action as against Mallory and MTPD?

[6] Is there a jurisdictional question? What is the appropriate forum for this action?

Background:

[7] The plaintiff is a resident of the State of Ohio.

[8] On February 9, 2017, the plaintiff’s father contacted the defendant, Madison Township Police Department in the State of Ohio, to report that the plaintiff had gone missing. The father expressed that his son was experiencing some form of mental breakdown.

[9] On February 13, 2017, the defendant Christian Pottle, (“Pottle”) a police officer with the defendant, Amherstburg Police Services Board, conducted a traffic stop of the vehicle operated by the plaintiff.

[10] During the course of the traffic stop, Pottle determined that the plaintiff had been reported as a missing person in Ohio. He then contacted the defendant, Mallory, a police officer with MTPD. Pottle and Mallory had a conversation, the details of which are unknown to the plaintiff at this stage.

[11] Pottle issued a speeding ticket to the plaintiff and then released the plaintiff.

[12] About seven hours after being released by Pottle, the plaintiff’s motor vehicle was spotted driving in an erratic manner on Highway 401 in Milton. OPP officers attempted, without success, to stop the vehicle.

[13] The plaintiff abandoned his vehicle at the intersection of Bronte Street and Heslop Road in the town of Milton. He then proceeded by foot toward railway tracks located near 300 Bronte Street in Milton. The plaintiff then attempted to climb onto a passing train but fell and was struck by the train, resulting in both of his legs being severed below the knee.

[14] Throughout the time he was missing from his family, it is alleged that the plaintiff was experiencing a delusional and/or psychotic disorder such that he was incompetent to care for himself to the point that he posed a serious risk of harm to himself.

[15] The claim does not allege any direct dealings between any employee, servant or agent of Her Majesty the Queen in the Right of Ontario, (“HMQ”) and the plaintiff, at any time.

Legal Principles:

[16] Rule 21.01(1)(b) provides that a judge may strike out a pleading that discloses no reasonable cause of action. On such a motion, a defendant must show that it is “plain and obvious” that the claim cannot succeed. This test will be met where:

1. A plaintiff pleads allegations that do not give rise to a recognized cause of action;
2. A plaintiff fails to plead a necessary element of a recognized cause of action;
3. The allegations in the pleading are simply conjecture, assumptions or speculation unsupported by material facts, or where, in other instances, mere conclusions of law are asserted: Hunter v. Bravener et al., [2003] O.J. No. 1613, (C.A.) at paras. 3-5, leave to appeal to S.C.C. denied [2003] S.C.C.A. No. 306, McCreight v. Canada, 2013 ONCA 483, 116 O.R. (3d) 429, at paras. 29, 39, 45.

[17] The defendants also move under rr. 21.01(3) and 25.11 to dismiss the action as against them on the ground that the action is frivolous and vexatious.

[18] On a r. 21 motion, the allegations set out in the statement of claim, unless blatantly ridiculous or incapable of proof, must be taken as true. However, vague allegations or allegations that are assumptions or speculations are by their very nature incapable of proof by evidence, and therefore are not to be taken as true: McCreight, at paras. 29, 39.

[19] There is a high onus on a defendant in a r. 21 motion. The defendant must demonstrate, based only on the pleadings, that it is plain and obvious that the pleading discloses no reasonable cause of action. Another way of putting the test is that the claim has no reasonable prospect of success. Where there is a reasonable prospect of success, the matter should be allowed to proceed to trial: R. v. Imperial Tobacco Canada Ltd. 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17.

Discussion:

[20] The failure to properly establish a cause of action can occur in one of two ways. Firstly, it will be found to be legally insufficient when its allegation(s) do not give rise to a recognized cause of action. Secondly, a cause of action is not established if it fails to plead the necessary elements of an otherwise recognized cause of action: Tunney v. 51 Division Toronto Police, 2015 ONSC 6761, at para. 19.

[21] A court may only dismiss an action on the grounds of it being frivolous, vexatious or an abuse of process in the clearest of cases. Actions that are “frivolous”, “vexatious” or “otherwise an abuse of the process of the court” include but are not restricted to those which have “no legal merit or advance claims in respect of which “no reasonable person can reasonably expect to obtain relief”; or suggest claims which are “inconsistent with the objectives of public policy”: Danovic v. Wagner, 2014 ONSC 2664, at paras. 20, 21, and 40.

[22] It is a settled rule that a state is only competent to enforce its laws within its own territorial boundaries. The defendants say that a practice of cooperation between police of different countries does not make the law of one country applicable in the other country. The personal decision of a foreign officer or agency to assist the Canadian police cannot dilute the exclusivity of the foreign state's sovereignty within its territory, where its law alone governs the process of enforcement.

[23] Police officers owe a public duty to investigate. They do not owe a private duty to victims and their families. This point was recently discussed in Connelly v. Toronto (Police Services Board), 2018 ONCA 368, at paras. 5 and 6, leave to appeal refused, [2018] S.C.C.A. No. 215; where the Court of Appeal for Ontario adopted the words of the trial judge in that case, stating: “[w]hile the police owe a duty of care to suspects and to a narrow and distinct group of potential victims of a specific threat, the police do not owe victims of crime and their families a private law duty of care in relation to the investigation of alleged crimes” [Citations omitted].

[24] The plaintiff does not allege that a public or private duty of care was owed by the defendants to him.

[25] The public duty of care of a police officer in Ontario gives rise to the standard of care in the tort of negligent investigation of a police officer.

[26] The appropriate standard of care in the tort of negligent investigation is that of “a reasonable police officer in similar circumstances”: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 73. It is not a standard of perfection nor one assessed with the benefit of hindsight. The relevant context is the prevailing circumstances at the time the officer engaged in the impugned conduct: Hill, at paras. 68, 73. A determination of whether the standard of care has been met is an assessment of police conduct against the standard of care.

[27] Mallory was assigned to investigate the missing persons report of the plaintiff. Pottle learned that the plaintiff had been reported missing and called Mallory. Mallory spoke with Pottle and with the plaintiff directly. Subsequently, Pottle issued a speeding ticket and released the plaintiff.

[28] I disagree with the defendants where they claim that there are no facts or allegations in the Statement of Claim that Mallory or MTPD were cooperating in the investigation of the plaintiff as a missing person, nor are there any facts or allegations that authority and/or jurisdiction was extended to the MTPD to engage in police activities in Ontario. In fact, there was contact made between Pottle and Mallory at a time preceding the injurious event, albeit by several hours. There is some basis to suggest that the plaintiff’s mental health status was discussed.

[29] It may be that the facts plead in the Statement of Claim, assumed to be true, demonstrate that Mallory did not breach the standard of care in his assistance to Pottle. However, that is a matter for trial.

[30] I am satisfied that the Statement of Claim provides that Mallory’s participation, while unspecified at the moment, provided the basis to inform Pottle’s actions with the plaintiff in Ontario.

[31] The next question is whether there a causal connection and proximity between the defendants’ investigation and the plaintiff’s incident and injuries on February 15, 2017.

[32] The Supreme Court of Canada upheld the “but for” test to determine causation. In Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8: “[t]he plaintiff must show on a balance of probabilities that ‘but for’ the defendant’s negligent act, the injury would not have occurred.”

[33] The Supreme Court of Canada outlined the remoteness test by holding that damages are not too remote if it is foreseeable that a person of “ordinary fortitude” would suffer serious injury from the event. The injury needs to be a probable and natural occurrence. Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 SCR 114 at paras. 13-14.

[34] In Gray v. Cotic, 1981 33 O.R. (2d) 256 (C.A.) at pp. 378-79, aff’d, [1983] 2 S.C.R. 2, the Ontario Court of Appeal commented on how an intervening act breaks the chain of causation. If the intervening act is such that it might reasonably have been foreseen or anticipated as the natural and probable result of the original negligence, then the original negligence will be regarded as the proximate cause of the injury, notwithstanding the intervening act.

[35] I do not agree that Mallory and MTPD have demonstrated that it is plain and obvious that the Statement of Claim discloses no reasonable cause of action. Nor do I find that the allegations against the defendants are frivolous and vexatious.

[36] Given that there was some communication between Mallory and Pottle in the hours leading up to the injuries sustained by the plaintiff, the contents of which are still unascertained at the time of this motion, in my view, the cause of action is not remote. In my view, the hours leading up to the injuries and this intervening period of time does not break the chain of causation. With the pleading of mental health issues that were made known to Mallory, damages are foreseeable.

[37] On the facts of this case as pleaded, there is sufficient proximity between the plaintiff and Mallory, and by extension, his employer, MTPD, such that it would be fair and just to impose a duty of care. All of these issues remain to be examined fully at trial.

The Question of Jurisdiction:

[38] The defendants move under r. 21.01(3)(a) to dismiss the action as against them on the ground that the court has no jurisdiction over the subject matter of the action.

[39] The plaintiff relies upon the Negligence Act, R.S.O. 1990, c. N-1 and pleads various common law grounds of negligence against the defendants.

[40] It is a settled rule that a state is only competent to enforce its laws within its own territorial boundaries. The jurisdiction of a nation within its own territory is exclusive and absolute: R. v. Terry, [1996] 2 S.C.R. 207, at para 14. This is determined by the real and substantial connection test which is found in the leading authority in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572 (S.C.C.). The Supreme Court opined on the exercise of jurisdiction in cases involving non-resident defendants and torts or other causes of action occurring outside Ontario.

[41] In Club Resorts Ltd., the Supreme Court of Canada distinguished two issues: Does the court have jurisdiction (jurisdiction simpliciter)? If so, (ii) Should the court decline to exercise its discretion to take jurisdiction under a forum non conveniens analysis?

[42] In Club Resorts Ltd., at para 90, the Supreme Court listed four presumptive factors. They are: (a) the defendant is domiciled or resident in the province; (b) the defendant carries on business in the province; (c) the tort was committed in the province; and (d) a contract connected with the dispute was made in the province.

[43] It is open to the plaintiff to establish one or more factors that exist such that the court could then presume that the claim was properly before it. These presumptive connecting factors not exhaustive and are rebuttable. The defendant can argue that a given connecting factor is inappropriate in the circumstances of the case. The defendant would bear the burden of negating the presumptive connecting effect.

[44] When it comes to a tort claim, the situs of the tort is clearly an appropriate connecting factor. If a presumptive connecting factor does apply to the case before the court, the court should assume jurisdiction unless the defendant can rebut the presumptive connecting factor.

[45] As a general principle, the practice of cooperation between police of different countries does not make the law of one country applicable in the other country. The personal decision of a foreign officer or agency to assist the Canadian police cannot dilute the exclusivity of the foreign state's sovereignty within its territory, where its law alone governs the process of enforcement. The police agency will be governed by the laws of the jurisdiction in which the activity is undertaken. Any attempt to bind foreign police by Canadian law would be impossible to regulate; police are sworn to uphold the law of their own land, not someone else's: Terry, at paras. 18, 19, and 26.

[46] The Plaintiff has generally plead and relies upon the Police Services Act, R.S.O. 1990, c. P.15, and Mental Health Act, R.S.O. 1990, c. M.7.

[47] The defendants argue that none of the alleged training, actions, activities and investigations were undertaken in the State of Ohio. As such, the defendants submit that the Ontario Court has no jurisdiction under the common law over the training procedures, the investigation and alleged actions of Mallory of MTPD. The action ought to be dismissed as Ontario Court has no jurisdiction over the action as it relates to the defendants.

[48] With respect, I am not persuaded by the defendants’ argument. It is true that these defendants operate out of the State of Ohio and did so at all times throughout the brief investigation.

[49] Where I also disagree with the defendants’ position is where they argue that the cooperative telephone discussion between Mallory and Pottle did not dilute the exclusivity of Ohio State’s sovereignty within its territory and over the defendants’ actions. Otherwise, can it not be said that any foreign national tortfeasor who took some indirect action or representations in Ontario situated from outside the Province would be immune for tortious negligence if such were the case?

[50] I am persuaded that the defendants have misstated the claims made against them in the Statement of Claim. The defendants base their argument on the proposition that Ohio police officers have no authority to conduct police activities in Ontario. The Statement of Claim does not suggest that the Ohio defendants do have such authority. Rather, the fundamental allegation as against Mallory is in negligence, in that he had information from the plaintiff’s family concerning the plaintiff’s mental health yet failed to share that information with the defendant Pottle. This is negligence through omission and has no bearing on Mallory’s authority to conduct police investigations in Ontario.

[51] The Statement of Claim further alleges that Mallory failed to make any or reasonable measures to determine the plaintiff’s mental state when he spoke with the plaintiff over the telephone. Again, while the evidence is subject to debate, this allegation does not relate to whether Mallory had the authority to conduct a police investigation in Ontario. Rather, the allegation goes to Mallory’s duty to make reasonable inquiries of the plaintiff based on the information he had from the plaintiff’s family concerning the plaintiff’s mental state.

[52] Relative to the allegations against the MTPD, the Statement of Claim pleads vicarious liability for Mallory’s torts and pleads that it failed to properly train Mallory. The Statement of Claim does not suggest that the MTPD had policing authority in Ontario. The Statement of Claim pleads a cause of action in negligence against both Ohio defendants. The cause of action plead is in negligence and, contrary to the allegations in the defendant’s factum, is not based on whether these defendants had authority to conduct a police investigation in Ontario.

Jurisdictional Issue – Is there a real and substantial connection to Ontario? (forum conveniens).

[53] To meet the common law real and substantial connection test, the party arguing that the court should assume jurisdiction has the burden of identifying that at least one of the four presumptive, prima facie, connecting factors to the forum is present in the subject matter of the litigation: Club Resorts Ltd., at para. 100.

[54] 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.

[55] The defendants state that the court should dismiss the action on the basis that the facts in the Statement of Claim demonstrate that none of the presumptive connecting factors exist.

[56] Mallory and MTPD are domiciled and resident in the City of Groveport, in Ohio. The initial investigation concerning the plaintiff that was undertaken by the defendants in Ohio. MTPD implements and administers its training to its members, including Mallory, in Ohio State.

[57] I do not agree that any and all claims of negligence as plead in the Statement of Claim against Mallory and MTPD arise solely from activities and/or occurrences that took place in the State of Ohio. By inference, there is a claim of negligent activity (by way of communication with Pottle) on behalf of the MTPD, alleged to have occurred in Ontario.

[58] While the facts are left to be determined, at this early stage, the plaintiff has established this claim in the pleadings. While there was no direct contact between MTPD and the Amherstburg Police defendants, including but not limited to any police investigations regarding the missing person case, this tends to ignore what had apparently occurred on February 13, 2017.

Is Ohio a more appropriate jurisdiction?

[59] In any event, the burden lies on the defendants to prove that another jurisdiction is more appropriate. Club Resorts Ltd., at paras. 100, 102, 103 and 104.

[60] In making a determination on forum conveniens, the court may consider the following factors in determining whether another jurisdiction is more appropriate: location of the majority of the parties; location of key witnesses and evidence; contractual provisions that specify applicable law or accord jurisdiction; the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum; the avoidance of a multiplicity of proceedings; the applicable law and its weight in comparison to the factual questions to be decided; geographical factors suggesting the natural forum; whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court; and the enforcement of an eventual judgment.

[61] In the case Gordon v. Deiotte, 2012 ONSC 1973, 109 O.R. (3d) 626, an accident occurred in Michigan, USA. The liability witnesses were located in Michigan and the witnesses concerning damages lived in Ontario as the plaintiff resided in Ontario. The court found that the Ontario courts have jurisdiction over the case (real and substantial connection) and found that Ontario is the more appropriate forum as the damages witnesses were located in Ontario. The court found at para. 58:

It will be considerably less expensive and more convenient for the plaintiffs to prove their damages in Ontario. They have numerous witnesses and these witnesses cannot be compelled to testify in Michigan. If the liability is contested at trial it will likely be a simple matter for [the non-resident defendant] to cross over the international bridge and attend trial. It will be much more difficult for the plaintiffs to arrange or convince their medical providers to travel to a court in Michigan to testify. Any difficulties in ensuring that the medical providers will attend the trial will be prejudicial to the plaintiffs.

[62] The defendants say that the vast majority of the potential medical experts, accounting experts and lay witnesses that will have to testify as to damages are located in Ohio State. That is subject to debate and in any event, may be able to testify remotely.

[63] The location of other key witnesses and evidence is linked to Ontario. With the advent of modern courtroom technologies, the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum is not really a significant concern. Given that the Ontario defendants will be proceeding in this province by holding the trial in Ontario, this will avoid a multiplicity of proceedings. The applicable law and its weight in comparison to the factual questions to be decided can be determined in Ontario.

[64] The defendants say that the cost that will have to be borne by the parties to advance and defend this claim in Canadian currency versus American currency will be an added stress on the parties. Experts will have to be retained in the State of Ohio. The exchange rate between the two countries will cause a significant added cost to the overall litigation expense to all parties. I do not find any validity to this argument.

[65] I am not persuaded by the defendants’ position that they are not subject to the applicable laws of Ontario or that the enforcement of an eventual judgment will also pose a challenge.

[66] The non-pecuniary caps imposed in the Province of Ontario versus the State of Ohio differ. In Ohio, there is no cap on any amount of compensatory damages recoverable in tort if there is permanent and substantial deformity, loss of use of a limb or loss of a bodily organ system: Section 2315.18 of the Ohio Revised Code.

[67] The plaintiff pleads at para. 33 of the Statement of the Claim that he has sought the attention of physician, surgeons, and therapists, and his injuries have resulted in extreme pain and discomfort such that the plaintiff’s day to day functioning has been permanently altered. The plaintiff also pleads that he has incurred expenses for medical and rehabilitation care. The defendants submit that the plaintiff resides in the City of Groveport, Ohio, and therefore the witnesses to the alleged damages, including potential accounting experts, medical professionals and lay witnesses, including family and friends, are all located in the State of Ohio.

[68] Another question is whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court. While the defendants argue otherwise, recall that it is the American plaintiff who chose and desires to litigate this action in Ontario.

[69] The defendants submit that it will be considerably expensive, inconvenient, and difficult for the plaintiff to prove his damages in Ontario. It will be considerably less expensive, and more convenient for the plaintiff to prove his damages in Ohio State. Again, I am not persuaded by these arguments.

[70] In any event, the plaintiff maintains that the presumptive connecting factor that entitles an Ontario court to assume jurisdiction over the Ohio defendants is that the situs of the tort was Ontario. There are two grounds upon which the plaintiff relies: (i) information provided by Mallory was received and acted upon by Pottle in Ontario and (ii) the injury was sustained in Ontario.

[71] I agree with the plaintiff that in the claim before this court, the interaction between the domestic police (Pottle and the Amherstburg Police Services Board) and the foreign police (the Ohio defendants), is critical. Again, to split the action between two different jurisdictions invites inconsistent findings of fact and inconsistent verdicts.

[72] The Ohio defendants were first contacted by the plaintiff’s family to report that he was missing and they were concerned over his mental health. When the Ontario police officer determined that the plaintiff had been reported as missing, he contacted the Ohio defendant, Mallory, to receive information. Whatever Mallory told Pottle in their phone conversation was received and acted upon in Ontario.

[73] I am persuaded that contrary to the Ohio defendants’ position; this is not a simple matter of stating that Mallory’s tortious conduct was committed in Ohio. In the modern era of worldwide and instantaneous communication, whether by telephone, e-mail or text, the situs of where information is received, relied and acted upon is critical.

[74] On the facts of this action, information from Ohio was received and acted upon in Ontario. Ultimately, some hours later, the significant injury occurred. The situs of that injury was most definitely Ontario.

[75] In Central Sun Mining Inc. v. Vector Engineering Inc. 2013 ONCA 601, 117 O.R. (3d) 313, leave to appeal refused, [2013] S.C.C.A. No. 475, the Court of Appeal considered a case where mining studies prepared in Costa Rica were sent to Vancouver and then to Toronto. The plaintiff mining company relied on the studies and when the mine failed, the plaintiff brought a negligent misrepresentation action in Ontario. In concluding that the situs of the tort was Ontario, the court noted that the core of the tort of negligent misrepresentation is that the misrepresentation is received and acted upon. The court went on to state: “The inevitable conclusion is that the misrepresentations were received and relied on in Ontario. The respondents do not contest that if that were so, Ontario is the situs of the tort of negligent misrepresentation. This constitutes a presumptive connection between the action and the respondents in Ontario.” The court went on to note that because a presumptive connecting factor has been established, “Ontario courts are required to take jurisdiction over the entire action, unless the respondent could rebut presumptive connection with Ontario.”

[76] As with Central Sun Mining Inc., in this action, Mallory spoke with the defendant, Pottle, and whatever information was received by Pottle, it was acted upon in Ontario. I am persuaded that Pottle and Mallory are inextricably connected with information that was received and acted upon in Ontario.

[77] In Gulevich v. Miller, 2015 ABCA 411, 609 A.R. 329, a CT scan was done in Ontario and, allegedly, misread by the Ontario radiologist. The plaintiff then moved to Alberta where subsequent scanning revealed a frontal lobe mass. The plaintiff commenced an action in Alberta. The defendant brought a motion arguing that Alberta did not have jurisdiction over the action. In coming to its conclusion that Alberta did have jurisdiction, the Court of Appeal determined the location of the tort by looking at where the injury was sustained. That is to say, the court looked not only as to where the breach in the duty of care may have been, but also where the damages were sustained. Specifically, the court asked at para. 28: “[h]ow do we locate the tort for the purposes of establishing jurisdiction when the breach of the duty of care occurred in Ontario and the injury manifested in Alberta?”

[78] The Court of Appeal ultimately determined that there was no bright line rule that arbitrarily locates the tort in the place where the negligent conduct occurred. Rather, in that case, it was the injury that located the tort to Alberta.

[79] More recently, the Ontario Court of Appeal considered a class action claim following a building collapse in Bangladesh. In Das v. George Weston Limited, 2018 ONCA 1053, 43 E.T.R. (4th) 173, at para. 90, the court noted: “Similarly in this case, it was the injury in Bangladesh that crystallized the alleged wrong. As the Supreme Court reasoned in Moran v. Pyle National (Canada) Ltd. (1973), [1975] 1 S.C.R. 393, at p. 404, a plaintiff does not sue because of the defendant's carelessness, but because he or she has been hurt.”

[80] In that case, the court declined to certify a class action and take jurisdiction because the injuries occurred in Bangladesh and it was the place of the injury that crystalized the alleged wrong.

[81] In the action before this court, there was no actionable wrong until the plaintiff suffered damages, which did not occur until some hours after the plaintiff was released by Pottle, when the plaintiff fell while trying to embark on a moving train. Without any question, the damages occurred in Ontario and, as such, the situs of the actionable wrong is Ontario.

[82] Contrary to the suggestion in the defendants’ factum, the plaintiff’s subsequent injuries were not an intervening event, they were part of the same factual matrix. Regardless, the motion before me is not dealing with intervening causes, it is dealing with the court’s jurisdiction over the action.

[83] It is still open to the Ohio defendants to negate the presumptive factor that the tort occurred in Ontario. However, as the Supreme Court of Canada stated in Club Resorts Ltd., when the presumptive connecting factor is the commission of a tort in the province, rebutting the presumptive jurisdiction would be difficult, albeit not impossible.

[84] The defendant has not met its onus of rebutting the presumptive connecting factor of the commission of a tort in Ontario. There is a real and substantial connection to Ontario for this action.

Forum non conveniens:

[85] The defendants submit that if the court finds that jurisdiction is established, the court must then consider the doctrine of forum non conveniens, specifically, that the State of Ohio is the more appropriate forum to preside over the facts and allegations in the Statement of Claim.

[86] With jurisdiction simpliciter being established, the defendant can still ask the court to decline to exercise its jurisdiction on the basis of forum non conveniens. However, the plaintiff maintains that the defendant has failed in its onus.

[87] The burden is on the defendant to show why a court should decline to exercise its jurisdiction to hear the case in the forum chosen by the plaintiff. In doing so, the defendant must show that the alternative forum is preferable. 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.

[88] The factors that a court may consider in deciding whether to apply forum non conveniens can vary. Factors include location of parties and witnesses, the cost of transferring the case to another jurisdiction, the impact of a transfer to another jurisdiction, the possibility of conflicting judgments and problems related to the recognition and enforcement of judgments.

[89] I am persuaded that an Ohio court is clearly not in a better position to hear this action. I have already referred to several considerations earlier in this endorsement.

[90] Factors that make Ontario a more convenient jurisdiction include the principle issues in this action are going to relate to liability. Virtually all liability witnesses are domiciled in Ontario and the interaction between the plaintiff and Pottle took place in Ontario. Pottle is employed by an Ontario police force and presumably resides in Ontario. Subsequent to being released by Pottle, the plaintiff was pursued by officers from the Ontario Provincial Police and the Halton Regional Police. The injuries occurred in Ontario, all the acute medical treatment was at the Hamilton General Hospital, both relative to the physical injuries and the treatment of the psychosis, and the accident was investigated by the Halton Regional Police Force. In this modern era, the witnesses can testify remotely, thus reducing inconvenience and cost.

[91] As mentioned, an Ontario court should assume jurisdiction over this action. The tort was committed in Ontario and the information provided by Mallory was allegedly received and acted upon in Ontario and the subsequent injury was in Ontario.

[92] The defendant has failed in its onus in establishing that Ontario is not the appropriate forum for this action.

Conclusion:

[93] The defendants’ motion is dismissed.

Costs:

[94] If the parties cannot agree on costs, the plaintiff shall file his costs submissions within 15 days of the release of this endorsement. The defendants shall file their response within 15 days of receipt of the plaintiff’s submissions. The plaintiff may file a brief reply within 10 days thereafter. These submissions shall not exceed three pages in length (not including any bill of costs or Offers to Settle).

A.J. Goodman J.