On "Black Friday" many American retailers are known to
offer deep discounts which draw a large number of bargain hunting
shoppers. But what happens if a visiting Ontario bargain-seeking
motorist is injured in a collision with a New York motorist and
sues them in Ontario?
The main issue is whether Ontario courts have the jurisdiction
to hear an action filed by this Ontario motorist? This issue is
broken down into two questions:
Can Ontario exercise jurisdiction? (also known
as "assumed jurisdiction"); and,
Should Ontario exercise jurisdiction? (known
as "forum non conveniens").
In a recent decision, Club Resorts Ltd v Van Breda,
2012 SCC 17, the Supreme Court of Canada ("S.C.C.")
reorganized the framework for the first question, namely whether a
Court can assume jurisdiction. The first step is to determine
whether there is a "presumptive connecting factor" that
links the subject matter of the litigation to Ontario. The SCC
lists four non-exhaustive factors:
The defendant is domiciled or resident in the province;
The defendant carries on business in the province;
The tort was committed in the province; and
A contract connected with the dispute was made in the
The S.C.C. specifically rejected several factors including the
presence of the plaintiff and that damage has been sustained in the
jurisdiction. The S.C.C. did note that new factors may be added to
this list where they are analogous to the four listed above.
If a "presumptive connecting factor" is found to
exist, the onus is on the defendant to rebut the presumption.
However, if no recognized presumptive connecting factor (new or
listed) applies, than a court should not assume jurisdiction. The
S.C.C. specifically stated that jurisdiction should not be assumed
on the basis of the combined effect of a number of non-presumptive
connecting factors because this would lead to a return to the
case-by-case discretionary approach.
It is clear from this decision that the S.C.C. it is seeking to
address the uncertainty faced by all litigants with respect to
jurisdictional issues. It is desirable that plaintiffs, and
defendants, have a clearer set of rules for determining when it is
appropriate to commence, or challenge, an Ontario action. It
remains to be seen whether the lower Courts will apply this new
framework in a way which creates this certainty. There are number
of different scenarios which require clarification in light of this
revised framework, such as claims made under the under-insured
motorist endorsement of the standard Ontario Automobile Policy
(OPCF-44R Family Protection Coverage). This is a particularly
important scenario as most American motorists have insurance with
lower policy limits than Ontario drivers.
At present, the Van Breda decision represents a clear
policy statement from the S.C.C. that jurisdictional issues need to
be determined on a principled basis as opposed to a more
discretionary analysis. Insurers should not hesitate to bring
motions to challenge jurisdiction in cases involving
out-of-province accidents. At a minimum, such a motion should
result in the production of damage documentation from the plaintiff
which will enable proper Ontario claims to be resolved at an early
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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