Court File and Parties

COURT FILE NO.: CV-19-2395-00 DATE: 2022 04 14 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Karamjeet Thind, Plaintiff AND: Polycon Industries, a Division of Manga Exteriors and Interiors Corp., Trade-Mark Industrial Inc. and MPW Industrial Services Inc., Defendants

BEFORE: Doi J.

COUNSEL: Anna Iourina, for the Moving Defendant, MPW Industrial Services Inc. Yousef Jabbour, for the Plaintiff Bradley Remigis, for the Defendant, Polycon Industries, a Division of Manga Exteriors and Interiors Corp. Marcus Rozsa, Student-at-Law, for the Defendant Trade-Mark Industrial Inc.

HEARD: January 27, 2022

Endorsement

Overview

[1] The Plaintiff, Karamjeet Thind, is a truck driver who was hired to transport some heavy equipment from Guelph, Ontario to Hebron, Ohio. After arriving in Hebron, the cargo dislodged from his flatbed trailer while it was being unstrapped and struck him causing injury. In this personal injury action, the Plaintiff alleges that the cargo was negligently loaded onto his vehicle in Ontario which caused the accident in Ohio.

[2] On this motion, the Defendant MPW Industrial Services Inc. (“MPW”) seeks to dismiss or stay the action on the basis that Ontario lacks jurisdiction and is not a convenient forum.

[3] For the reasons that follow, I am satisfied that Ontario has jurisdiction based on a real and substantial connection with the subject matter of the action. I also find that MPW has not shown that Ohio is clearly a more appropriate forum. Accordingly, the motion is dismissed.

Background

The Parties

[4] The Plaintiff, Karamjeet Thind, is a long haul truck driver based in Brampton, Ontario.

[5] MPW, the moving Defendant, operates a business that provides industrial cleaning, water treatment and other services across North America. It has a facility in Hebron, Ohio.

[6] The Defendant Polycon Industries (“Polycon”) is a global automotive supplier in Guelph, Ontario.

[7] The Defendant Trade-Mark Industrial Inc. (“Trade-Mark”) is a multi-trade contractor that operates from Cambridge, Ontario.

The Transport Arrangement and Incident

[8] On June 2, 2017, the Plaintiff was checking the internet for transport work opportunities when he saw a website posting by Scott Logistics LLC (“Scott Logistics”), a freight company in Farberg, Missouri, seeking to have a shipment transported from Polycon’s facility in Guelph, Ontario to MPW’s location in Hebron, Ohio. The Plaintiff was in Brampton and available to haul the load. He contacted Scott Logistics and entered into an agreement to transport the shipment.

[9] On June 3, 2017, the Plaintiff attended Polycon’s facility in Guelph with his flatbed trailer to pick up the shipment, which consisted of two (2) electric water pump switchboards on pallets weighing about 3,500 lbs each. Using a forklift, workers loaded the switchboards on the flatbed. The Plaintiff asked to have the switchboards loaded “flat down” on the trailer, but the cargo was loaded “upright” by the workers. The cargo was secured to the flatbed with straps.

[10] On June 6, 2017, the Plaintiff arrived at MPW’s facility in Ohio. After reporting his arrival at the receiving office, the Plaintiff parked his vehicle and began to unstrap the shipment. As he unstrapped the cargo, one of the switchboards fell and hit his back causing injury. First responders took the Plaintiff to two (2) hospitals in Ohio, initially Licking Memorial Hospital and later Ohio State University Wexner Medical Centre, where his injuries were diagnosed and treated. He was discharged from hospital on June 7, 2017 and returned home to Brampton, Ontario.

[11] On June 9, 2017, the Plaintiff attended Brampton Civic Hospital where he was diagnosed with the same injuries and discharged home. He went on to receive medical care and rehabilitation treatment in Brampton and Mississauga for his injuries, which included fractures to his back.

[12] On June 6, 2019, the Plaintiff brought this personal injury action against the Defendants. Among other things, the statement of claim pleads that the Defendants negligently loaded the switchboards onto his vehicle in Ontario, negligently failed to take reasonable care to properly secure the cargo, negligently failed to give proper instructions, and thereby negligently created a danger that caused his injuries for which they are liable.

[13] As a result of the alleged negligence, the Plaintiff claims a direct causal link between the switchboards being loaded onto his vehicle in Ontario and the injuries that he suffered when the cargo fell and struck him in Ohio.

Issues

[14] The issues arising on this motion are as follows:

a. Whether service of the statement of claim and crossclaims on MPW are valid;

b. Whether this court has jurisdiction simpliciter; and

c. Whether Ontario is an appropriate forum under the forum non conveniens analysis.

Service Outside Ontario

[15] For the reasons that follow, I find that Rule 17.02(g) confers authority for service of the statement of claim and the crossclaims on MPW in Ohio, and that any technical non-compliance with the requirements of Rule 17.04(1) should be waived to allow a determination of the action on its merits.

[16] Rule 17.01 of the Rules of Civil Procedure provides:

17.01 In rules 17.02 to 17.06, “originating process” includes a counter-claim against only parties to the main action, and a crossclaim.

[17] Rule 17.03(g) provides:

17.02 A party to a proceeding may, without a court order, be served outside Ontario with an originating process or notice of a reference where the proceeding against the party consists of a claim or claims,

(g) in respect of a tort committed in Ontario.

[18] Rule 17.04(1) states:

17.04 (1) An originating process served outside Ontario without leave shall disclose the facts and specifically refer to the provision of rule 17.02 relied on in support of such service.

[19] Rule 17.06 provides:

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.

[20] It is fairly settled that the requirements of Rules 17.02 and 17.04(1) are not to be rigidly applied: 1248671 Ontario Inc. c.o.b. Maccartney Farms v. Michael Foods Inc. (2000), 51 OR (3d) 789 (SCJ) at para 16, citing Davidson Partners Ltd. v. Kirsh (1990), 72 OR (2d) 450 (Master); Latner v. Latner, [2009] OJ No 4344 (Master) at para 13; Goldmart Farms Inc. v. Fasig-Tipton Co., 2010 ONSC 1631 at para 25; Ramnarain v. Saunders, 2021 ONSC 3951 at para 26. Where at least one of the claims in the statement of claim actually fall without the causes of action enumerated in Rule 17.02, service outside the jurisdiction should not be set aside, even if the specific clause is not referred to in the originating process, so as to place more importance on substance over form: Maccartney Farms at paras 16-19; Ramnarain at para 26.

[21] In this case, the Plaintiff, Polycon and Trade-Marks did not strictly comply with the requirements of Rule 17.04(1) as the statement of claim and the crossclaims do not specifically refer to any of the provisions under Rule 17.02 that support service outside of Ontario without leave. However, as noted above, and in keeping with Rule 1.04(1) which calls for the rules to be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits, the requirements of Rules 17.02 and 17.04(1) are not rigidly applied.

[22] Having considered the statement of claim and the crossclaims, I find that the language used in the pleadings was adequate to convey that the Plaintiff, Polycon and Trade-Marks all relied on an alleged tort in Ontario (i.e., arising from alleged negligent acts or omissions related to the cargo being loaded onto the Plaintiff’s transport vehicle in Guelph), to authorize service of the pleadings outside of Ontario without leave under Rule 17.02(g). Given my finding below that the action involved an alleged tort in Ontario, which is a cause of action that authorizes service outside of Ontario without leave under Rule 17.02(g), I am satisfied that service of the statement of claim and the crossclaims on MPW in Ohio without leave was so authorized. In my view, the failure by the Plaintiff, Polycon and Trade-Marks to explicitly refer to Rule 17.02(g) in the claim and the crossclaims as required by Rule 17.04(1) is an irregularity that should not result in the pleadings being set aside despite the lack of strict compliance as the underlying requirements were met. Accordingly, I find that strict compliance with Rule 17.04(1) should be dispensed with to cure any technical defects and validate service: Ramnarain at paras 26 and 40; Goldmart at para 25; Rules 1.04(1), 2.01 and 2.03.

Jurisdiction Principles

[23] On a jurisdiction motion by a foreign defendant, a central issue is whether the court has jurisdiction simpliciter based on a “real and substantial connection” between the subject matter of the litigation and Ontario: Van Breda v. Village Resorts Ltd., 2012 SCC 17 at paras 79-80; Haaretz.com v. Goldhar, 2018 SCC 28 at para 27. The “real and substantial connection” test promotes order, stability and predictability by relying on objective connecting factors to assume jurisdiction: Goldhar at para 28. Jurisdiction simpliciter also sets a minimum threshold for assuming jurisdiction to prevent improper assumptions of jurisdiction, which is consistent with the principle of comity: Van Breda at para 26; Goldhar at para 30. Absent a “real and substantial connection,” an action should be stayed or dismissed for lack of jurisdiction.

[24] Should jurisdiction simpliciter be established, the court may apply the doctrine of forum non conveniens to decline jurisdiction in favour of another “clearly more appropriate” forum: Goldhar at paras 27-28 and 31. Using a flexible case-by-case approach, the forum non conveniens analysis emphasizes fairness and efficiency in considering whether the court should decline its jurisdiction in favour of a different forum that is “clearly more appropriate:” Goldhar at paras 27-28. In considering the appropriate forum, the goal is to ensure fairness to the parties and allow for an efficient process for resolving their dispute: Bouzari v. Bahremani, 2015 ONCA 275 at para 47; Van Breda at para 109; Goldhar at para 32.

Jurisdiction Simpliciter

[25] To assume jurisdiction over a proceeding, a court must find that a “real and substantial connection” exists between the subject matter of the litigation and the forum in which it is brought: Van Breda at paras 22-34. This analysis has two stages: (i) determining whether a presumptive connecting factor exists that prima facie entitles the court to assume jurisdiction over the litigation; and, if so (ii) deciding whether the presumption of jurisdiction is rebutted on the facts of the case: Van Breda at paras 80-81; Goldhar at para 34.

[26] Certain objective factors will trigger a presumption of a real and substantial connection between the subject matter of the litigation and the chosen forum: Van Breda at para 82. The presumptive connecting factors that prima facie allow the court to assume jurisdiction over a dispute include:

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.

Van Breda at para 90. Jurisdiction simpliciter may be grounded on any one or more of these presumptive factors: Van Breda at para 80. The list of presumptive connecting factors is not exhaustive and allows for new factors to be identified that may also presumptively allow the court to assume jurisdiction: Ibid.

[27] The party arguing that the court should assume jurisdiction has the burden of identifying a connecting factor between the litigation and the forum: Van Breda at para 80.

[28] By focusing on the context of a case, the forum non conveniens analysis strikes an important balance between order and fairness: Van Breda at para 105. A plaintiff’s mere presence in Ontario is not, on its own, a connecting factor that allows a court to have jurisdiction: Van Breda at para 86. Similarly, the fact that damages were sustained in the jurisdiction is not a presumptive connecting factor: Van Breda at para 89. Moreover, the courts have not given presumptive effect to the concept of a necessary and proper party: Van Breda at para 55; Misyura v. Walton, 2012 ONSC 5397 at paras 31 and 38; Khan v. Layden, 2014 ONSC 6868 at para 14. Jurisdiction may not be assumed based on the combined effect of a number of non-presumptive connecting factors: Van Breda at para 93.

[29] Jurisdiction simpliciter may be grounded on a relatively low threshold: Van Breda at para 109; Goldhar at para 32. To successfully establish jurisdiction simpliciter, the plaintiff need only show a “good arguable case” that a connecting factor applies for the court to assume jurisdiction: Ontario v. Rothmans Inc., 2013 ONCA 353 at paras 53-54 and 106; leave to appeal denied [2013] SCCA No. 327; Vahle v. Global Work & Travel Co. Inc., 2020 ONCA 224 at paras 12-13. This is not a high threshold and only requires the plaintiff to show “a serious question to be tried,” or a “genuine issue,” or that the case has “some chance of success”: Tucows.Com Co. v. Lojas Renner S.A., 2011 ONCA 548 at para 36; leave to appeal denied [2011] SCCA No 450; Vahle at para 13. To show a “good arguable case” that a connecting factor applies, the plaintiff may rely upon the facts pleaded in the statement of claim without additional evidence unless the allegation is challenged or seems devoid of merit or lacks an air of reality: Rothmans at paras 110-113.

[30] A presumption of jurisdiction based on a recognized connecting factor may be rebutted: Van Breda at para 95; Goldhar at para 40. The burden of rebutting the presumption of jurisdiction is on the party challenging the assumption of jurisdiction who must adduce facts to show that the presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and the forum, or points only to a weak relationship: Van Breda at paras 81 and 95; Goldhar at para 42. The circumstances must show that the relationship between the forum and the subject matter of the litigation make it unreasonable to expect the defendant to be called to answer proceedings in the jurisdiction: Van Breda at para 97; Goldhar at para 43.

[31] If the court lacks jurisdiction simpliciter, the action must be stayed or dismissed.

[32] At the hearing, the parties focussed their submissions on first and third presumptive connecting factors.

Presumptive Connection by Domicile or Residence of Two Defendants

[33] Given the nature of the action, I find that the court has jurisdiction simpliciter under the first presumptive connecting factor because two of the Defendants, namely Polycon and Trade-Mark, are domiciled or resident in Ontario.

[34] Under the jurisdiction simpliciter analysis, the court should consider not only whether jurisdiction may be assumed over individual defendants but also whether jurisdiction should be assumed over the claim or the dispute: Van Breda at paras 17 and 90. As Broad J. observed in Khan at paras 16 and 17:

[16] In my view, the enquiry should not be focused only on whether the court is entitled to assume jurisdiction over the individual defendants but should also focus on whether jurisdiction should be assumed over the claim or the dispute. At para 17 of Van Breda, Justice LeBel identified the two issues in the appeals as follows, “First, were the Ontario courts right to assume jurisdiction over the claims of [the plaintiffs] and over [the defendant]. Second, were they right to exercise the jurisdiction and dismiss an application for a stay based on forum non conveniens?” (underlining added). At para. 90, Justice LeBel introduced the list of presumptive connecting factors as factors that prima facie “entitle the court to assume jurisdiction over a dispute” (underlining added). At para. 99 he stated that “the purpose of the conflicts rules is to establish whether a real and substantial connection exists between the forum, the subject matter of the litigation and the defendant” (underlining added) The first presumptive factor considers whether the defendant is domiciled or resident in the province: Van Breda at para 90.

[17] The fact that the enquiry is concerned with assumption of jurisdiction over the dispute, and not simply on the circumstances of the individual defendants, is further exemplified by the fact that two of the presumptive connecting factors, (c) and (d), have nothing directly to do with the situation of the moving defendants and their connection to the forum. [Emphasis in original]

[35] The importance of considering the claim or dispute in the jurisdiction simpliciter analysis is emphasized by LeBel J.’s reasons in Van Breda at para 99 which noted the following:

I should add that it is possible for a case to sound both in contract and in tort or to invoke more than one tort. Would a court be limited to hearing the specific part of the case that can be directly connected with the jurisdiction? Such a rule would breach the principles of fairness and efficiency on which the assumption of jurisdiction is based. The purpose of the conflicts rules is to establish whether a real and substantial connection exists between the forum, the subject matter of the litigation and the defendant. If such a connection exists in respect of a factual and legal situation, the court must assume jurisdiction over all aspects of the case. The plaintiff should not be obliged to litigate a tort claim in Manitoba and a related claim for restitution in Nova Scotia. That would be incompatible with any notion of fairness and efficiency. [Emphasis added]

[36] Similarly, R.A. Blair J.A. writing for the Court of Appeal in M.J. Jones Inc. v. Kingsway General Insurance Co., 2004 ONCA 10547 at para 22 noted that in a case with multiple defendants and claims, some having an extra-territorial dimension, the jurisdiction simpliciter analysis must consider the claim as a whole without treating the claim against the foreign defendant as a separate action: see also Incorporated Broadcasters Ltd. v. Canwest Global Communications Corp. (2003), 2003 ONCA 52135, 63 OR (3d) 431 (CA) at para 38, leave to appeal denied [2003] SCCA No 186. In addition, Blair J.A. acknowledged the need to assess the connection with Ontario having regard to the subject matter of the litigation to include both the claim against the foreign defendant and the claims against the domestic defendants, with the guiding factors under the real and substantial connection test being order and fairness: M.J. Jones at para 23. Where the requirements of order and fairness are served by trying the foreign claim together with the claims that are clearly rooted in Ontario, the foreign claim will meet the real and substantial connection test, even if that claim would fail the test if it were constituted as a separate action: McNichol Estate v. Woldnik, 2001 ONCA 5679 at para 13. This allows the court the flexibility to balance the globalization of litigation against the problems of a defendant who is sued in a foreign jurisdiction: Ibid.

[37] The Plaintiff and Polycon rely on Cesario v. Gondek, 2012 ONSC 4563 to support their position that jurisdiction simpliciter is met where one or more defendants is domiciled or resident in Ontario, even if another defendant is not. That case involved a driver husband and his passenger wife who brought an Ontario action for two (2) motor vehicle accidents, the first occurring in New York State and the second occurring in Ontario. Both plaintiffs claimed against the New York driver in the New York accident, the Ontario driver in the Ontario accident, and their Ontario insurer. The wife also claimed against her husband as the driver in both accidents. The New York defendants moved to stay the action against them in Ontario for lack of jurisdiction.

[38] Applying principles of fairness and efficiency as articulated by LeBel J. in Van Breda at para 99, Edwards J. held in Cesario at paras 23-24 that a sufficient real and substantial connection exists between a claim and Ontario for the court to assume jurisdiction over all aspects of a case involving multiple defendants where at least one is domiciled or resident in Ontario:

[23] As to the first presumptive factor whether "the defendant is domiciled or resident in the province", this motion raises for determination whether the Supreme Court of Canada in Van Breda was referring to "the defendant" being domiciled or resident in the province as being the moving defendant or whether any defendant in the action domiciled or resident in the province was sufficient for a connecting factor. The answer to this question can be found in para. 99 of Van Breda, which provides:

I should add that it is possible for a case to sound both in contract and in tort or to invoke more than one tort. Would a court be limited to hearing the specific part of the case that can be directly connected with the jurisdiction? Such a rule would breach the principles of fairness and efficiency on which the assumption of jurisdiction is based. The purpose of the conflicts rules is to establish whether a real and substantial connection exists between the forum, the subject matter of the litigation and the defendant. If such a connection exists in respect of a factual and legal situation, the court must assume jurisdiction over all aspects of the case. The plaintiff should not be obliged to litigate a tort claim in Manitoba and a related claim for restitution in Nova Scotia. That would be incompatible with any notion of fairness and efficiency.

[24] If the position of the New York defendants was accepted, the plaintiffs could be forced to litigate three separate actions; one of which would be heard in the State of New York and two of which would be heard in the Province of Ontario. Such a situation would, adopting the language of Van Breda [at para. 99], "breach the principles of fairness and efficiency on which the assumption of jurisdiction is based". In addition, adopting the concluding words of LeBel J. in Van Breda [at para. 124]: ". . . keeping the case in the Ontario courts will probably avert a situation in which the proceedings against the various defendants are split". It would raise the real and quite unjust prospect of inconsistent verdicts. [Emphasis added]

[39] Subsequent decisions found the Cesario decision to be grounded on the first presumptive connecting factor in Van Breda at para 90: Best v. Palacios, 2016 NBCA 59 at paras 19-20, and Mitchell v. Jeckovich, 2013 ONSC 7494 at para 35. Another held that Cesario identified a new presumptive connecting factor for the court to assume jurisdiction where one of several defendants are domiciled or resident in Ontario: Mannarino v. Brown Estate, 2015 ONSC 3167 at para 33.

[40] Where there are multiple defendants, some in Ontario and others outside of the jurisdiction, who are joint tortfeasors in an action having inseparable damages, I accept that the court in Ontario may assume jurisdiction simpliciter on the basis of the first presumptive factor: Cesario at paras 23-24; Best at paras 19-20; see also Stapper v. Taylor, 2021 ONSC 243 at para 33. Otherwise, a plaintiff would be forced to litigate in Ontario and bring separate actions against defendants in other jurisdictions, which makes little sense and raises the real and unjust prospect of inconsistent verdicts: Cesario at paras 24 and 27; Khan at para 22. In contrast, hearing the action in Ontario would avoid fragmented litigation and align with the overarching principles of fairness and efficiency on which the assumption of jurisdiction simpliciter is based: Van Breda at para 99. To this end, I share the reasoning of Edwards J. in Cesario at paras 27-28:

[27] … To force an Ontario litigant to split his or her case between more than one jurisdiction would not be doing justice between the parties. As LeBel J. in Van Breda noted [at para. 75]:

Stability and predictability in the branch of law of conflicts should turn primarily on the identification of objective factors that might link a legal situation or the subject matter of litigation to the court that is seized of it. At the same time, the need for fairness and justice to all parties engaged in litigation must be borne in mind in selecting these presumptive connecting factors.

[28] The principle of fairness and justice referenced by LeBel J. in Van Breda causes this court to conclude that where there are multiple defendants, at least one of whom is resident in the Province of Ontario, or domiciled in the Province of Ontario (as is the case on the facts before this court, i.e., the defendant Domenic Cesario, the defendant Elizabeth Ruth Stoutz and the defendant Security National Insurance Company), then there is a sufficient real and substantial connection existing such that the court should assume jurisdiction over all aspects of the case, including that aspect of the case involving the New York defendants. [Emphasis added]

[41] In this case, two of the three Defendants, Polycon and Trade-Mark, are located in Ontario and named as joint tortfeasors in the same action in which the Plaintiff is claiming inseparable or indivisible damages. On this basis, and applying the Van Breda principle of fairness and justice, I find that a sufficient real and substantial connection exists for the court to assume jurisdiction over all aspects of this action, including the aspect that involves MPW which is located in Ohio: Cesario at paras 23-24 and 28; Khan at paras 21-23. A dominant consideration for the real and substantial connection analysis is that the other Defendants, Polycon and Trade-Marks, are located in Ontario and, subject to the forum non conveniens test, their trial will take place here: Canwest at para 38. After evaluating the entire action, I find that the underlying requirements of order, fairness and justice would be served by trying the foreign claims against MPW together with the various claims against Polycon and Trade-Marks in Ontario, including the crossclaims in the action. Accordingly, I find that it would be appropriate for the court to assume jurisdiction over the entire action including the extraterritorial claims: McNichol Estate at para 12; Canwest at para 38; M.J. Jones at para 22.

[42] MPW seeks to rebut the presumption of jurisdiction arising from the domiciled Defendants, Polycon and Trade-Marks, based on its pursuit of a third party claim against Scott Logistics, a company in Missouri, for insurance and indemnity under their Freight Broker Agreement which contains a venue clause favouring Ohio, as detailed later in these reasons. However, the fact that a plaintiff’s insurer is named as a defendant is not a sufficient presumptive connecting factor to confer jurisdiction, and a claim against the insurer does not serve to “bootstrap” jurisdiction over a non-resident defendant: Tamminga v. Tamminga, 2014 ONCA 478 at paras 1 and 27-28; Gajraj v. DeBernardo (2002), 2002 ONCA 44959, 60 OR (3d) 68 (CA) at para 20; Khan at para 12; Stapper at para 25. In turn, I find that a third party claim for insurance or indemnity against a non-resident party should not displace the court’s jurisdiction which is grounded by the domiciled Defendants in this action. Having regard to the real and substantial connection between them and the forum, I am satisfied that the presumption of jurisdiction is not rebutted.

Presumptive Connection in Tort

[43] In my view, the Plaintiff has shown a good arguable case for a presumptive connecting factor based on a tort committed in Ontario.

[44] Under the jurisdiction simpliciter analysis, a real and substantial connection can exist in Ontario even if another jurisdiction also has such a connection. The real and substantial connection test has never required the strongest possible connection between the claim and the forum where jurisdiction is sought to be assumed, or that the connections must all point in the same direction: Van Breda at para 34; Canwest at para 38. The fact that another forum may also be connected with the dispute will not undermine the existence of a real and substantial connection, as it is contemplated that there will be situations in which more than one court might claim jurisdiction: Van Breda at paras 15 and 34: Lapointe Rosenstein Marchand Melancon LLP v Cassels Brock & Blackwell, 2016 SCC 30 at paras 34-35.

[45] The place of a tort is clearly an appropriate connecting factor: Van Breda at para 88. Accordingly, in considering the jurisdiction simpliciter analysis in respect of a tort claim, the key issue is whether the alleged tort was committed in Ontario: Moran v. Pyle National (Canada) Ltd., [1975] 1 SCR 393 at 397. The difficulty in ascertaining the place of a tort arises where different elements of the tort occur in different jurisdictions: S.G.A. Pitel and N. Rafferty, Conflict of Laws (2nd ed. 2016) at p. 87. To this end, Dickson J., as he then was, noted in Moran at p. 398:

Logically, it would seem that if a tort is to be divided and one part occurs in state A and another in state B, the tort could reasonably for jurisdictional purposes be said to have occurred in both states or, on a more restrictive approach, in neither state. It is difficult to understand how it can properly be said to have occurred only in state A.

[46] In the jurisdictional context, there is no need to locate one place of a tort since several jurisdictions might appropriately assume jurisdiction: Pitel at p. 87. On this point, the “thorny issues” associated with the place of the tort where an act occurs in one place and its consequences are directly felt elsewhere were acknowledged in Tolofson v. Jensen; Lucas (Litigation Guardian) v. Gagnon, [1994] 3 SCR 1022 at p. 1050:

There are situations, of course, notably where an act occurs in one place but the consequences are directly felt elsewhere, when the issue of where the tort takes place itself raises thorny issues. In such a case, it may well be that the consequences would be held to constitute the wrong. Difficulties may also arise where the wrong directly arises out of some transnational or interprovincial activity. There territorial considerations may become muted; they may conflict and other considerations may play a determining role.

[Emphasis added].

[47] In deciding the place of a tort, the key approaches have centred on: a) where the negligent act or omission took place; and alternatively b) where the harm occurred. However, Dickson J. in Moran at p. 408 rejected both approaches as being too arbitrary and inflexible. He also rejected the more restrictive approach of requiring every element of a tort to have occurred in the forum to ground jurisdiction: Moran at p. 406. Instead, in deciding jurisdiction in the context of a product liability tort case, Dickson J. in Moran at pp. 408-409 adopted a flexible approach that comprised the contemporary real and substantial connection test:

Generally speaking, in determining where a tort has been committed, it is unnecessary, and unwise, to have resort to any arbitrary set of rules. The place of acting and the place of harm theories are too arbitrary and inflexible to be recognized in contemporary jurisprudence. In the Distillers’ case and again in the Cordova case a real and substantial connection test was hinted at. Cheshire, 8th ed., 1970, p. 281, has suggested a test very similar to this; the author says that it would not be inappropriate to regard [Page 409]a tort as having occurred in any country substantially affected by the defendant’s activities or its consequences and the law of which is likely to have been in the reasonable contemplation of the parties. Applying this test to a case of careless manufacture, the following rule can be formulated: where a foreign defendant carelessly manufactures a product in a foreign jurisdiction which enters into the normal channels of trade and he knows or ought to know both that as a result of his carelessness a consumer may well be injured and it is reasonably foreseeable that the product would be used or consumed where the plaintiff used or consumed it, then the forum in which the plaintiff suffered damage is entitled to exercise judicial jurisdiction over that foreign defendant. This rule recognizes the important interest a state has in injuries suffered by persons within its territory. It recognizes that the purpose of negligence as a tort is to protect against carelessly inflicted injury and thus that the predominating element is damage suffered. By tendering his products in the market place directly or through normal distributive channels, a manufacturer ought to assume the burden of defending those products wherever they cause harm as long as the forum into which the manufacturer is taken is one that he reasonably ought to have had in his contemplation when he so tendered his goods. This is particularly true of dangerously defective goods placed in the interprovincial flow of commerce. [Emphasis added]

[48] Importantly, Van Breda at para 24 credited Moran for introducing the real and substantial connection concept as set out in the above-reproduced passage. It follows that Moran is authority for assuming jurisdiction simpliciter over a tort in a place substantially affected by a defendant’s activities or its consequences: Gulevich v. Miller, 2015 ABCA 411 at para 46; Thorne v. Hudson, 2016 ONSC 5507 at para 28. This is illustrated in cases involving other torts. For example, in negligent misrepresentation cases, courts have accepted that the location of the tort is where the misrepresentation or misinformation is received and relied on or acted upon: Central Sun Mining Inc. v Vector Engineering Inc., 2013 ONCA 601 at paras 30 and 34, leave to appeal denied ; 2249659 Ontario Ltd. v. Sparkasse Siegan, 2013 ONCA 354 at para 31. Similarly, in considering the tort of failure to warn, which is closely related to negligent misrepresentation, the location of the tort is where the warning ought to have been received which may be where the user is located or where the goods are used: Air Canada v. McDonnell Douglas Corp., [1989] 1 SCR 1554 at 1569.

[49] As Morgan J. aptly noted in Thorne at para 30, “just as there is no actionable wrong without the injury … there is no recoverable injury without the wrongful act.” Moreover, it has been suggested that the basis upon which the place of a tort is decided may well vary from tort to tort: Gulevich at paras 49, citing P.M. North and J.J. Fawcett, Cheshire and North Private International Law (11th ed. 1987) at 538-544 which rejected having fixed rules for determining jurisdiction over a tort (i.e., as it may not always be possible to localize a defendant's conduct or the ensuing harm to one location) and interpreted Moran as adopting a jurisdictional test for torts based on the place substantially affected by the defendant's activities or its consequences and whose law is likely to have been in the reasonable contemplation of the parties. A similar flexible tort-specific approach for determining the location of a tort is favoured in J. Walker, ed, Castel & Walker, Canadian Conflict of Laws (6th 2006) at §11.6(c) (Torts Occurring in the Forum); Gulevich at para 50.

[50] In this case, the statement of claim pleads, among other things, that all of the Defendants had the requisite information, experience and knowledge on how to safely load the switchboards onto the Plaintiff’s flatbed trailer in Ontario. It also pleads that the Defendants were jointly and severally negligent based on their acts or omissions when the cargo was loaded. In addition, the crossclaims seek contribution and indemnity for alleged negligence during the loading process.

[51] The statement of claim alleges a direct causal link between the switchboards being loaded in Ontario and the cargo falling in Ohio. It claims no break in causation. In addition, it claims that the switchboards remained strapped and did not otherwise shift or change position until the cargo was unstrapped upon arriving in Ohio. On these alleged facts, which the Defendants have not contested on the motion, and from the Plaintiff’s evidence in response to the motion, I find that the Plaintiff has met his relatively modest burden of showing a good arguable case for assuming jurisdiction based on the alleged negligent acts or omission when the cargo was loaded onto his vehicle in Ontario. To this end, I accept the Plaintiff has established a serious or genuine question to be tried that is not devoid of merit, has an air of reality, and shows some chance of success: Rothmans at paras 53-54 and 106; Tucows.Com at para 36.

[52] Relying on SSAB Alabama Inc. v. Canadian National Railway Company, 2020 SKCA 74 at paras 58, leave to appeal denied [2020] SCCA No 336, MPW seeks to rebut the presumption of jurisdiction by submitting that the alleged tort cannot be found to have taken place in Ontario where the cargo was loaded. Respectfully, I am not persuaded by this submission.

[53] The action in SSAB arose from a train derailment in Saskatchewan after steel plates loaded onto a flatbed rail car in Alabama slid off the car as the train was travelling through a curve. CN brought the action in Saskatchewan claiming, among other things, that SSAB had negligently loaded the cargo in Alabama. In response, SSAB brought a jurisdiction motion and argued that the place of the tort was Alabama where the cargo was loaded. Rejecting SSAB’s arguments, the Saskatchewan Court of Appeal upheld the motion judge’s finding that the fact that the flatbed railcar was loaded and secured in Alabama did not necessarily mean that the tort took place there. To succeed in a negligence claim, the Saskatchewan Court of Appeal found that a plaintiff must establish all of the requisite elements, namely: a) a duty of care owed by the defendant to the plaintiff; b) a failure by the defendant to meet the standard of care; and c) damage flowing from the breach. Characterizing damage to be an essential element of the tort, the court held that proving negligent conduct alone was insufficient to establish a negligence claim: SSAB at para 61. Instead, the court held that the tort of negligence crystallized when the cargo fell or slipped from the flatcar and caused the derailment in Saskatchewan which was the precipitating event that triggered all of CN’s ensuing damages from the derailment. On this basis, the Court of Appeal upheld the motion judge’s finding that the alleged tort occurred in Saskatchewan which established a real and substantial connection and conferred jurisdiction in the province.

[54] In my view, the reasoning in SSAB does not preclude Ontario from assuming jurisdiction in this case given the alleged negligent acts or omissions that occurred in Guelph. As explained earlier, Dickson J. in Moran rejected a rigid or mechanical approach in deciding the place of a tort by applying arbitrary or inflexible theories, such as those requiring every element of the alleged tort, or at least the last one, to take place in the forum for the tort to have been committed there: Moran at pp. 406-408. Instead, Dickson J. adopted a flexible test by which a tort may occur in a jurisdiction which is substantially affected by the defendant’s activity or consequences and the law of which was likely reasonably contemplated by the parties: Moran at p. 409. This approach remains a permanent feature in the jurisprudence: Van Breda at para 24. It follows that the circumstances of the alleged tort must be considered to properly locate the tort and determine whether Ontario was substantially affected by it: Walker at §11.6(c); Pitel at p. 88. Importantly, the Supreme Court in Tolofson at para 43 explicitly acknowledged the complexities of international torts and refrained from making a definitive statement that the place of the tort is always where the harm was suffered: Silver v. Imax Corporation, 2009 ONSC 72334 at para 151, leave to appeal denied 2011 ONSC 1035 (Div Ct). More recently, the Supreme Court in Van Breda at para 89 noted the difficulty associated with always attributing the place of a tort to where damage is sustained:

[89] The use of damage sustained as a connecting factor may raise difficult issues. For torts like defamation, sustaining damage completes the commission of the tort and often tends to locate the tort in the jurisdiction where the damage is sustained. In other cases, the situation is less clear. The problem with accepting unreservedly that if damage is sustained at a particular place, the claim presumptively falls within the jurisdiction of the courts of the place, is that this risks sweeping into that jurisdiction claims that have only a limited relationship with the forum. An injury may happen in one place, but the pain and inconvenience resulting from it might be felt in another country and later in a third one. As a result, presumptive effect cannot be accorded to this connecting factor. [Emphasis added]

[55] On this reasoning, I am satisfied that Ontario is not deprived of jurisdiction simply because the injury to complete the elements of the alleged tort occurred in Ohio, as MPW submits. In my view, this case raises competing considerations in determining the place of the alleged tort due to its international nature.

[56] From the record and the pleaded allegations in the claim, I find that the Plaintiff has shown a good arguable case that Ontario has a real and substantial connection given the alleged negligent acts or omissions by the Defendants when the cargo was loaded in Guelph that purportedly caused the cargo to fall and injure him in Hebron, Ohio. The alleged tort is multijurisdictional based on a wrongful act or omission in the jurisdiction and an injury outside the forum. For the limited purpose of deciding the motion, I accept that the Plaintiff relied on all of the Defendants, including MPW, to have the cargo properly loaded onto his vehicle in Ontario, as pleaded. I also accept that Ontario was substantially affected by the alleged acts or omissions by the Defendants whose law was likely contemplated, certainly by the Plaintiff, Polycon and Trade-Marks: Moran at p. 408; Pitel at pp. 88-89. While the pleaded facts are allegations that remain to be litigated, the Plaintiff may rely on them for the jurisdiction simpliciter analysis: Rothmans at paras 110-113. Taking this all into account, I am satisfied that the court may assume jurisdiction based on a real and substantial connection to the alleged tort based on the negligent acts or omissions that occurred in Ontario.

Forum Non Conveniens

[57] Having found that the court has jurisdiction, I turn to the forum non conveniens doctrine to determine whether the court should exercise jurisdiction.

[58] Under the forum non conveniens doctrine, the defendant has the burden to show why jurisdiction should be declined to displace the plaintiff’s chosen forum: Van Breda at para 103. Normally, jurisdiction is exercised once it is properly assumed: Van Breda at para 109; Goldhar at para 47. The standard to displace a plaintiff’s chosen forum is high: Young v. Tyco International of Canada Ltd., 2008 ONCA 709 at para 28.

[59] A defendant seeking to depart from the normal assumption of jurisdiction bears the onus of identifying an alternate forum with an appropriate connection to the subject matter of the litigation that should be preferred to dispose of the action: Van Breda at para 103; Pitel at pp. 121-122. The alternate forum must be “clearly more appropriate” so that it would be “fairer and more efficient” to proceed there to decide the dispute: Van Breda at paras 108-109; Goldhar at para 46; Bouzari v. Bahremani, 2015 ONCA 275 at para 47.

[60] The court should not stay proceedings merely because a comparable forum exists in another jurisdiction: Van Breda at para 109. However, as jurisdiction simpliciter is sometimes established on a relatively low threshold, forum non conveniens may be important in identifying a forum that is clearly more appropriate, fairer and more efficient for resolving the dispute between the parties: Ibid. The strength or weakness of the connecting factors under the jurisdiction simpliciter analysis may inform the forum non conveniens analysis.

[61] Forum non conveniens is a flexible doctrine which addresses the court’s residual authority to decline to exercise its jurisdiction in appropriate, but limited, circumstances to assure fairness to the parties and the efficient resolution of the dispute: Van Breda at para 104. At least six (6) factors inform the forum non conveniens analysis:

a. 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;

b. The law to be applied to issues in the proceeding;

c. The desirability of avoiding multiplicity of proceedings;

d. The desirability of avoiding conflicting decisions in different courts;

e. The enforcement of an eventual judgment; and

f. The fair and efficient working of the Canadian legal system as a whole.

Van Breda at para 105 and 110-111; Breeden v. Black, 2012 SCC 19 at paras 23 and 25. These factors are not individually determinative but are considered globally: Breeden at para 25.

[62] As a forum non conveniens motion is brought early in the proceeding, the court should adopt a cautious approach to its fact finding: Beijing Hehe Fengye Investment Co. Limited v. Fasken Martineau Dumoulin LLP, 2020 ONSC 934 at para 67; Young at para 31. Where the more convenient forum cannot be decided by relying exclusively on uncontested or agreed-upon facts and competing versions of the facts must be addressed, the court should accept a plaintiff’s version so long as it has a reasonable basis in the record: Silvestri v. Hardy, 2009 ONCA 400 at para 7.

[63] I accept that the courts of Ontario and Ohio, being MPW’s proposed alternate forum, may both be appropriate to hear the action. As explained below, certain factors favour proceeding in Ohio while others favour Ontario. On balance, however, I am not persuaded that MPW has shown that Ohio is a clearly more appropriate forum.

Comparative Convenience and Expense for Parties and Witnesses

[64] From the record, I find that the comparative convenience and expense for the parties and potential third-parties is a neutral factor in this case.

[65] The Plaintiff resides in Ontario where he brought the action. Two of the Defendants, Polycon and Trade-Mark, are located in Ontario where they carry on business. Their witnesses, including those who were involved in loading the cargo onto the Plaintiff’s vehicle, are located in Ontario. In addition, certain health professionals who treated the Plaintiff’s post-accident injuries are found in Ontario.

[66] MPW and its witnesses to the incident when the switchboards fell and injured the Plaintiff are in Ohio where the accident took place. The first responders and health professionals who initially cared for the Plaintiff after the accident are in Ohio. MPW submits that further witnesses in Ohio may be identified during the discovery phase of the litigation, although the number of witnesses and the nature of their anticipated evidence is unclear and speculative at this time.

[67] Taking this all into account, I am not persuaded that the comparative convenience or expense to the parties and their witnesses strongly favour one jurisdiction over the other.

Applicable Law

[68] As set out below, I find that the applicable law factor does not favour one forum over the other in this case.

[69] The substantive law governing a law tort claim is generally the law of the place where the relevant acts or omissions occurred. However, as the Supreme Court acknowledged in Tolofson at p. 1050, determining the place of the wrongful conduct for a tort claim is challenging in cases involving multi-jurisdictional activities. Given the multi-jurisdictional nature of the alleged negligence in this tort case, I find that competing considerations arise in respect of the place of the alleged tort due to its international character involving events in both Ontario and Ohio.

[70] The law of Ontario may apply to the extent that the Plaintiff’s tort claim is based on events in Guelph where the cargo was loaded, which would make the court well placed to apply Ontario law as may be required in this matter. Should it become necessary to apply the law of negligence in Ohio, I accept that Ontario courts would be able to apply foreign law without insurmountable difficulty: Victory v. Sattar, 2014 ONSC 641 at para 57; Re Essar Steel Algoma Inc., 2016 ONSC 595 at para 80; Neger v. Neger, 2018 ONSC 6739 at para 36.

[71] In any event, the applicable law factor is accorded rather limited weight under the forum non conveniens analysis in cases where jurisdiction is established based on the situs of a tort:

In circumstances where the situs of the tort leads to the assumption of jurisdiction in the chosen forum, lex loci delicti will inevitably also point to the chosen forum on the question of applicable law. This could be problematic, as this Court has clearly directed that the jurisdiction simpliciter and forum non conveniens analyses should be based on different factors. Accordingly, applicable law is of little value in determining whether an alternate forum is clearly more appropriate in cases where jurisdiction is established on the basis of the situs of the tort. [Emphasis added, citations omitted.]

Goldhar at para 90.

[72] Having regard to the cross-border nature of the tort claim in this matter, I accept that both Ontario and Ohio law may be implicated. That said, and given the limited weight attributed to the applicable law factor under this part of the analysis, I find the applicable law to be a neutral factor in applying the forum non conveniens doctrine.

Avoiding a Multiplicity of Proceedings and Conflicting Decisions

[73] In my view, the considerations regarding a multiplicity of proceedings and conflicting decisions do not clearly favour Ohio as the convenient forum.

[74] On April 28, 2014, MPW entered into a freight broker agreement with Scott Logistics (“Freight Broker Agreement”) in Hebron, Ohio. Under the agreement, Scott Logistics was engaged to provide hauling services for MPW. Section 10 of the agreement contains a governing law and venue provision which states as follows:

Governing Law and Venue. This Agreement shall be governed and construed in accordance with the internal substantive laws of the State of Ohio, without regard to principles of conflicts of laws. The parties agree that the most appropriate forum for the resolution of any disputes arising under this Agreement are the federal and state courts located in Franklin County, Ohio, having competent jurisdiction over such disputes. Accordingly, to the extent that the parties are not otherwise subject to personal jurisdiction of such federal or state courts, acceptance of the terms and conditions of this Agreement constitutes consent of both parties that this Agreement constitutes minimum contacts with the State of Ohio to satisfy the exercise of such jurisdiction. [Emphasis added].

[75] On its face, the choice of law provision requires the agreement to be interpreted and applied in accordance with Ohio law. However, the venue language simply confirms that the parties have agreed that the Freight Broker Agreement constitutes sufficient minimum contact with Ohio to satisfy the ability of the federal and state courts in Franklin County, Ohio to assume jurisdiction.

[76] Section 21 of the Freight Broker Agreement allowed Scott Logistics to hire subcontractors to perform the hauling services, and required them be bound by the terms of the Freight Broker Agreement as follows:

Subcontractors. CONTRACTOR shall furnish to MPW in writing the names and addresses of its proposed subcontractors, suppliers and agents, of whatever tier (“Subcontractor”, and collectively, the “Subcontractors”), if any, who will perform any portion of the Services described in this Agreement. CONTRACTOR shall not contract with any person or entity as to which MPW has made objection. The performance of any part of the Services by a Subcontractor shall not relieve CONTRACTOR from any liability or obligation under this Agreement and CONTRACTOR shall be responsible for the acts and omissions of each Subcontractor and its agents and employees as fully as if they were the acts, defaults or neglects of CONTRACTOR or its agents or employees. Through an appropriate written agreement, CONTRACTOR shall require each Subcontractor to be bound to CONTRACTOR by the terms of this Agreement and to assume toward CONTRACTOR all the obligations and responsibilities that CONTRACTOR assumes toward MPW. Such agreement shall preserve and protect the rights of MPW under this Agreement with respect to the Services to be performed by the Subcontractor so that the subcontracting of such Services will not prejudice MPW’s rights. The omission of a reference to a Subcontractor in connection with any of CONTRACTOR’S responsibilities or obligations in this Agreement shall not be construed to diminish, abrogate or limit any responsibilities or obligations of CONTRACTOR in connection with any subcontract.

[77] Scott Logistics apparently engaged the Plaintiff, through his trucking company, Australian Carriers, as a subcontractor to haul the switchboards from Ontario to Ohio on June 3, 2017 when the Freight Broker Agreement was in force. In addition, it seems that the incidents in Ontario and Ohio which implicate the Plaintiff’s tort claim occurred while he was acting through Australian Carriers as a subcontractor to Scott Logistics. However, there is no evidence that the Plaintiff or Australian Carriers are bound by any of the terms under the Freight Broker Agreement, including its governing law or venue provisions. Similarly, there is no evidence to show that Scott Logistics required its subcontractor, Australian Carriers, let alone the Plaintiff personally, to be bound by any of its terms upon entering into an agreement to haul the switchboards from Ontario to Ohio. In my view, there is no basis to find that the Plaintiff was required to bring his tort action in Ohio.

[78] In defending the Ontario action, MPW intends to pursue a third party claim against Scott Logistics, a company in Missouri, to enforce its rights under the insurance, indemnity and other terms of the Freight Broker Agreement despite Ohio being the forum under its venue provision. Given the impending expiry of the limitation period for bringing its third party claim against Scott Logistics in Ontario, MPW obtained a consent order on January 27, 2022 to issue the third party claim without attorning to Ontario’s jurisdiction or otherwise waiving its right to challenge jurisdiction in the main action or crossclaims: Lilydale Cooperative Limited v. Meyn Canada Inc., 2019 ONCA 761 at para 57; Joyce v. MtGox Inc., 2016 ONSC 581 at para 6. Based on this, MPW submits that it could find itself facing a jurisdictional challenge with a possible multiplicity of proceedings if the Ontario action continues and Scott Logistics opposes Ontario’s jurisdiction over the third party claim based on the venue provision in the Freight Broker Agreement. In my view, however, this action may continue in Ontario despite the consent by MPW and Scott Logistics to litigate disputes under the Freight Broker Agreement in Ohio.

[79] The venue provision under the Freight Broker Agreement does not expressly require this action or MPW’s third party claim to be brought in Ohio. Instead, it simply confirms that MPW and Scott Logistics agree that the Freight Broker Agreement, “constitutes minimum contacts with the State of Ohio to satisfy the exercise of such jurisdiction.” Although the language in the venue provision may well satisfy Ohio jurisdiction, as it purports to do, I find that the provision, without more, does not necessarily clearly favour Ohio over Ontario as MPW must show to displace the Plaintiff’s selected forum under the forum non conveniens analysis: Van Breda at para 103.

[80] Based on the foregoing, I am not persuaded that avoiding a multiplicity of proceedings or conflicting decisions are significant considerations in this case. In my view, these considerations are neutral factors to the forum non conveniens analysis.

Enforcement

[81] In my view, enforcement-related concerns are not significant in this case. Although this factor was not the focus of argument on the motion, I accept that enforcement considerations do not strongly favour the action being heard in Ohio. As stated earlier, Polycon and Trade-Marks are both located in Ontario where a judgment by the court would be enforceable. Although MPW and Scott Logistics are located in Ohio and Missouri, respectively, there is no evidence to suggest that an Ontario judgment would not be enforced in either state or that these entities would not recognize or comply with an Ontario judgment in this action.

Fairness and Efficiency

[82] A final consideration under the forum non conveniens analysis is the fair and efficient working of the Canadian legal system. In my view, this consideration favours Ontario as the appropriate or convenient forum.

[83] Under this arm of the analysis, the court must balance the broader issues of fairness and efficiency of a particular forum with the justice of that choice to the parties in this case: Van Breda at para 118; Beijing at para 67. I recognize that a connection exists between the tort claim and Ohio which may support an action there. The cargo fell and injured the Plaintiff at MPW’s facility in Ohio. The potential witnesses to the accident and the first responders and health professionals who initially cared for the Plaintiff are all located in Ohio. In addition, MPW’s dispute with Scott Logistics favours Ohio as the convenient forum. However, other issues related to fairness for the parties and the efficient disposition of the claim must also be considered.

[84] The Plaintiff resides in Ontario where his trucking business is located. His claim alleges that tortious acts or omissions occurred in Ontario when the switchboards were loaded onto his vehicle that caused in the accident in Ohio which led to his injuries. Both Polycon and Trade-Marks are located in Ontario and their witnesses who loaded the cargo onto the Plaintiff’s vehicle are found in the province. In addition, other health professionals in Ontario cared for the Plaintiff after the accident and are expected to give evidence. The forum has an interest in protecting the legal rights of its residents and affording injured plaintiffs generous access for litigating claims against tortfeasors: Canwest at para 40, citing Muscutt v. Courcelles, 2002 ONCA 44957 at para 77; Moran at p. 409. To this end, the case for assuming jurisdiction is strengthened when a defendant has done anything in the forum that bears upon a claim advanced by the plaintiff: Canwest at para 41; Muscutt at para 82.

[85] If jurisdiction were to be refused, the Plaintiff would be required to litigate in Ohio. In my view, the Plaintiff’s burden would likely be more onerous if he is required to bring the tort action in Ohio given the associated added expense that would likely place him at a real disadvantage in relation to the Defendants given their apparent sophistication and available financial resources, although the evidence on this is less than clear.

[86] The only party in Ohio is MPW. The Plaintiff, Polycon and Trade-Marks are located in Ontario, while Scott Logistics is found in Missouri. As previously noted, the involvement of other parties in Ontario is an important consideration that supports a real and substantial connection to the forum and favours the province as an appropriate forum in this case. Although the Plaintiff was injured in Ohio, where many witnesses to the accident are found, his tort claim encompasses the alleged negligent acts or omissions when the cargo was loaded in Ontario where the factual matters arose and where a number of witnesses who will likely testify at trial are located. In addition, much of the Plaintiff’s post-accident medical care was received in Ontario, although first responders and other health professionals in Ohio also cared for him there. There is no evidence to suggest that MPW will lose any juridical advantage if its third party claim is brought in Ontario, notwithstanding the choice of law and venue terms in the Freight Broker Agreement. Moreover, there is no suggestion that the Plaintiff is forum shopping.

[87] After considering all of the factors, I acknowledge that some may favour Ohio as a more convenient forum to Ontario. Ultimately, however, I am not persuaded that MPW has met its onus of showing Ohio to be a clearly more appropriate forum than Ontario.

Outcome

[88] Based on the foregoing, the motion is dismissed.

[89] If the parties are unable resolve the issue of costs for this motion, the Plaintiff may deliver costs submissions of up to 2 pages (excluding any costs outline or offer to settle) within 20 days, and the Defendants may deliver responding submissions on the same terms within a further 20 days. Reply submissions may not be delivered without leave.

Doi J. Date: April 14, 2022