Court File and Parties
COURT FILE NO.: CV-20-83755
DATE: 2022/12/28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: FRITO NESTON, Plaintiff
-and-
ADBULAHI AJIBOLA QUADRI, Defendant
BEFORE: Justice H. Williams
COUNSEL: Mario Mannarino, Counsel for the plaintiff Natalie Gajewski, Counsel for the defendant
HEARD: September 20, 2022
ENDORSEMENT
OVERVIEW
[1] The plaintiff was involved in a motor vehicle accident in December 2018 in the province of Quebec.
[2] Both the plaintiff and the defendant are residents of Ontario.
THE PARTIES’ POSITION
[3] The defendant has brought a motion under Rule 21.01(1) of the Rules of the Civil Procedure for the determination of a question of law raised by a pleading that may dispose of all or part of the action. The defendant argues that because the accident took place in Quebec, Quebec law applies, and the plaintiff has no right to bring a civil action for her injuries.
[4] As required by the Rule, the issue was raised by a pleading. In its statement of defence, the defendant pleaded that Quebec law applies and that the plaintiff has no cause of action for damages resulting from the accident because of Quebec’s Automobile Insurance Act.
[5] The plaintiff argues that Ontario has jurisdiction over his claim because the defendant is a resident of Ontario. The plaintiff argues that one of the factors presumptively connecting the subject matter of litigation to a forum is whether the defendant is domiciled or resident in the province. (Club Resorts Ltd. v. Van Breda, 2012 SCR 573, at para. 90.)
[6] The plaintiff also argues that it would be unfair (“an egregious injustice”) to deprive the plaintiff of a right to sue in Ontario, given that both parties are residents of Ontario.
ANALYSIS
[7] Despite Mr. Mannarino’s impassioned argument, I find that this motion turns not on jurisdiction or a fairness argument, but on the choice of law rule.
[8] Quebec’s Automobile Insurance Act, s. 83.57, provides that no action may be brought to recover damages from an at-fault driver for bodily injury caused by a motor vehicle accident that takes place in Quebec.
[9] The Supreme Court of Canada has held that residents of Ontario injured in motor vehicle accidents in Quebec are barred by Quebec substantive law from bringing a legal action to recover damages. (Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, 1994 CanLII 44 (SCC), [1994] 3 SCR 1022.)
[10] Lucas, like the case before me, involved two Ontario residents involved in a motor vehicle accident in Quebec.
[11] In Lucas, the Supreme Court of Canada confirmed that the Quebec legislature intended the Automobile Insurance Act “to apply to all [emphasis in original] persons who have an accident in Quebec regardless of their province of residence.”
[12] In Leonard v. Houle (1997) 1997 CanLII 1218 (ON CA), 36 O.R. (3d) 357, the plaintiff attempted to allege grounds of negligence that were independent of the negligent operation of an automobile. The Court of Appeal held that the law of Quebec barred recovery for any injury caused by an automobile, regardless of how it was pleaded or characterized.
[13] In Demers v. Cousineau, 2010 ONSC 3370, the court relied on Tolofson and Leonard to dismiss the action of an Ontario resident who had sued two other Ontario residents for injuries suffered in a motor vehicle accident in Quebec. The court held that the authorities were clear that the action was barred by the laws of Quebec; even though the parties all resided in Ontario, they could not sue in tort. The court found that the plaintiff was not without a remedy, however, because she could access no-fault accident benefits through her own insurer, on the scale provided under the Quebec legislation.
DISPOSITION
[14] I am satisfied that, because the accident in which the plaintiff was injured took place in Quebec, Quebec law applies, and the plaintiff has no right to sue. The defendant’s motion is granted. The plaintiff’s action is dismissed.
COSTS
[15] In accordance with the parties’ agreement, the defendant shall have costs fixed in the amount of $2,500, inclusive of fees, disbursements and HST.
Justice H. J. Williams
Date: December 28, 2022
COURT FILE NO.: CV-20-83755
DATE: 2022/12/28
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: FRITO NESTON, Plaintiff
-and-
ADBULAHI AJIBOLA QUADRI, Defendant
BEFORE: Justice H. Williams
COUNSEL: Mario Mannarino, Counsel for the plaintiff
Natalie Gajewski, Counsel for the defendant
HEARD: September 20, 2022
ENDORSEMENT
Williams J.
Released: December 28, 2022