Court File and Parties

COURT FILE NO.: CV-20-00637363-0000 DATE: 20210315

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: ANNIE BEAULE Plaintiff – and – THE MANUFACTURERS LIFE INSURANCE COMPANY Defendant

Counsel: Michael Hazan, lawyer for the plaintiff Marc C. Petrick, lawyer for the defendant

HEARD: In Writing

Endorsement

DIAMOND J.:

Overview

[1] The defendant brings this motion seeking an order dismissing and/or staying the plaintiff’s action. In its notice of motion, the defendant argues that (a) the subject matter of the plaintiff’s action has no real and substantial connection to the province of Ontario, and therefore this Court should decline jurisdiction, or in the alternative (b) the province of Quebec is the more appropriate and convenient forum for this action.

[2] This motion proceeded in writing. Upon reviewing the defendant’s materials, including paragraphs 19 through 22 of its factum, the defendant has apparently conceded that the province of Ontario does have jurisdiction simpliciter over the subject matter of this action, but the Court should nevertheless exercise its discretion to find Ontario to be forum non conveniens and have this matter stayed or dismissed in favour of the plaintiff proceeding in Quebec.

Summary of Relevant Facts

[3] The salient facts given rise to this motion are not in significant dispute.

[4] The plaintiff resided and continues to reside in Gatineau, Quebec. At all material times, she was employed by L’Equippeur, a subsidiary of Canadian Tire Corporation Limited (“Canadian Tire”), located in Hull, Quebec.

[5] As an employee of L’Equippeur, the plaintiff was insured under group policy #0030277 issued by the defendant to Canadian Tire (“the policy”).

[6] On or about May 24, 2018, the plaintiff applied for short-term disability benefits with the defendant. According to the defendant, the plaintiff’s short-term disability claim was adjudicated by Sophie Roy, a disability case manager based out of the defendant’s Montreal office. Ms. Roy resides in Quebec.

[7] In any event, the plaintiff was approved for short term disability benefits, and received those benefits until September 26, 2018.

[8] On December 17, 2018, the plaintiff became eligible for long-term disability benefits, and applied for same. The plaintiff’s claim for long-term disability benefits was assigned to Liliana Sanabria, who was also based out of the defendant’s Montreal office and a resident of Quebec.

[9] The plaintiff’s long-term disability application was then approved retroactively to September 20, 2018.

[10] The plaintiff’s file was subsequently transferred to a new case manager, also based out of the defendant’s Montreal office and a resident of Quebec.

[11] The defendant’s head office is located in Toronto, Ontario. According to the plaintiff, the defendant’s long-term disability claims are handled out of the defendant’s office in Waterloo, Ontario. The defendant states that its Waterloo office is an administrative site only, as claims are typically outsourced to regional offices outside Ontario (which apparently occurred in this case).

[12] On February 10, 2020, the defendant terminated the plaintiff’s long-term disability benefits. It is the defendant’s position that the plaintiff had only responded sporadically to the defendant’s requests for updated treatment and pharmacological information, and as such the plaintiff’s file became impossible to oversee and manage.

[13] The record before the Court discloses that in November 2019, the plaintiff provided the defendant with some medical records and a report from her psychologist, who works out of Ottawa, Ontario. The plaintiff’s other treating physician works out of Ottawa, Ontario as well.

[14] The plaintiff’s pharmacy (which provided a pharmacological list to the defendant) is located in Gatineau, Quebec.

[15] On March 3, 2020, the plaintiff commenced the within proceeding in the Ontario Superior Court of Justice. The defendant never attorned to the province of Ontario, and took the position in early April 2020 that this Court lacked jurisdiction.

Issue #1 Does this Court have jurisdiction to hear this proceeding?

[16] As held by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, the Court’s assessment of jurisdiction is premised upon whether there is a “real and substantial connection” to the province in which an impugned claim is issued.

[17] In Van Breda, the Supreme Court of Canada held that if one of four presumptive connecting factors exists, the Court will assume jurisdiction over the legal proceeding unless the moving party can demonstrate an absence of a real and substantial connection. The four presumptive connecting factors entitling this Court to assume jurisdiction are:

(a) the defendant is domiciled or resident in Ontario; (b) the defendant carries on business in Ontario; (c) the tort (or breach of contract as subsequent jurisprudence has found) was committed in Ontario; and, (d) the contract connected with the dispute between the party was made in Ontario.

[18] The plaintiff need only establish the existence of one of the presumptive four connecting factors. In the case before me, it is clear that the defendant has operated out of the province of Ontario for many years, maintaining offices in several locations throughout Ontario including its head office in Toronto.

[19] There is also no dispute that the policy was issued by the defendant in Ontario.

[20] There are several presumptive connecting factors in this case, and as such this Court may, and in my view should, assume jurisdiction over this action. While the defendant argues that the presumptive connecting factors are “tenuously related to the facts and events” giving rise to this action, I do not find the defendant to have discharged its onus to demonstrate the absence of a real substantive connection to Ontario.

[21] The defendant’s attempt to characterize its presence in Ontario as “administrative in nature” is far too narrow and restricted a view of the evidence establishing a connection to Ontario. The subject matter of this litigation is related to the defendant’s business activities in Ontario, and the defendant cannot rebut the presumption of jurisdiction.

[22] Accordingly, the answer to Issue #1 is “Yes”.

Issue #2 If this Court has jurisdiction, should the Court nevertheless decline to exercise its jurisdiction and recognize Quebec as the more convenient forum?

[23] Even though I have found that Ontario has jurisdiction to hear this action, I am still charged with determining whether the Court should nevertheless decline jurisdiction by reason of Ontario being the forum non conveniens, and Quebec being the forum conveniens.

[24] The overarching inquiry is whether there is a more (or perhaps most) appropriate forum for this action to be heard, having regard to all the factors connecting the litigation and the parties to the competing jurisdictions. As held in Van Breda, the Court must engage in a contextual analysis, but refrain from leaning to extensively in favour of its own jurisdiction.

[25] I now embark upon an analysis of the Van Breda factors to determine whether the defendant has met its onus of displacing Ontario as the forum conveniens.

The Location of the Majority of the Parties

[26] The plaintiff resides in Quebec. The defendant is a federally incorporated company, and carries on business in numerous provinces including both Ontario and Quebec. While the defendant’s head office is located in Toronto, it does carry on business in Quebec and has employees in Montreal who adjudicate and manage disability claims arising in Quebec (such as the plaintiff’s claims for short-term and long-term disability benefits).

[27] In my view, this factor is slightly in favour of Quebec.

The Location of Key Witnesses and Evidence

[28] The defendant submits that the Manulife employees who adjudicated and managed the plaintiff’s file are all residents and work in Quebec.

[29] The two witnesses for the plaintiff, namely her treating physicians, are both based out of Ottawa, Ontario.

[30] In my view, this factor is neutral at best. While the defendant states that it will likely require expert medical evidence from their own doctors, there is no evidence at this stage that any such doctors reside or work in Quebec.

Are there Contractual Provisions or Concerns that address Applicable Law or a Court’s Jurisdiction?

[31] The defendant agrees that it carries on business in accordance with the laws of each provincial jurisdiction in which it operates. A review of the policy discloses that there are no contractual terms that speak to any applicable law or choice of forum clause.

[32] The policy does not provide that either Ontario or Quebec law should be applied for the disposition or resolution of any disputes. There is a reference in the policy to life insurance and a Quebec’s Pension Plan, but that alone does not appear to be determinative of the issues in this proceeding.

[33] Both Ontario and Quebec would be equally adept at applying the law of the other should the need arise.

[34] In my view, this is a neutral factor.

The Avoidance of a Multiplicity of Proceedings

[35] There is no current ongoing Quebec proceeding. The defendant argues that the plaintiff would suffer no legal or procedural prejudice by bringing her claim in Quebec.

[36] As I have already found Ontario has jurisdiction to hear this proceeding, maintaining Ontario’s jurisdiction should not inherently produce any risk of multiplicity of proceedings.

[37] As such, this factor is in favour of Ontario.

The Enforcement of any Potential Judgment

[38] This Court’s ability to enforce a judgment obtained in the Quebec Superior Court is simply not an issue in this proceeding. Presumably, the same can be said for enforcement of an Ontario judgment in Quebec, although I have no specific evidence on this issue in the record before me.

[39] As such, I find this to be a neutral factor.

Will Declining Jurisdiction deprive the Applicant of a Legitimate Judicial Advantage available in the Domestic Court?

[40] A loss of juridical advantage is a difficulty that may arise should the action be stayed in favour of proceeding in Quebec. I have little evidence before me with respect to the presence of a loss of judicial advantage if this proceeding is dismissed or stayed. The defendant submits that as many of the relevant documentation are written in the French language, there would be no need to have them translated for their use in Quebec. Since the plaintiff has (to date) not requested that her action be pursued and/or tried in French language, there could be delay and expense incurred in having those documents translated.

[41] This does not amount to a judicial advantage one way or the other, as parties in Ontario are entitled to have their cases tried in either the English or French languages. The plaintiff gave evidence that most of the relevant documents produced to date are in the English language in any event, including the policy, claim forms and the defendant’s denial letter.

[42] The plaintiff gave further evidence that unlike Quebec, legal proceedings in Ontario are subject to the mandatory mediation rule, whereby the Civil Code of Quebec does not have such a corresponding rule, and any potential mediation is voluntary.

[43] In my view, this could quantify as a loss of judicial advantage, and as such I find that this factor slightly favours Ontario.

Conclusion

[44] Taking all of the relevant Van Breda factors into account, for the reasons set out above I do not believe that the defendant has discharged its onus to show that Ontario is forum non conveniens. The weighing of the Van Breda factors leads to the conclusion that it is more convenient to hear this proceeding in Ontario.

[45] Accordingly, the answer to Issue #2 is “No”. The defendant’s motion is dismissed.

Costs

[46] I would urge the parties to exert the necessary efforts to come to an agreement on the costs of this motion. If they are unable to do so, they may serve and file written costs submissions (totaling no more than five (5) pages, including a Costs Outline) in accordance with the following schedule:

(a) the plaintiff’s cost submissions shall be served and filed within ten (10) business days of the release of this Endorsement; and (b) the defendant shall have an additional ten (10) business days from the receipt of the plaintiff’s written costs submissions to serve and file its own written costs submissions.

Diamond J.

Released: March 15, 2021