Can a Court assume jurisdiction over a claim when there is no
"real and substantial" connection between the claim, the
defendant and the forum? The Ontario Court of Appeal recognized
such a theoretical possibility, on the basis of the so-called
"forum of necessity" doctrine, in its decision in Van Breda v. Village Resorts Ltd., 2010 ONCA
84. On further appeal, the Supreme Court of Canada did not
directly address this doctrine but left room for its "possible
application" in the future: 2012 SCC 17 at para. 100. The Ontario Court of
Appeal recently revisited and defined the parameters of the forum
of necessity in West Van Inc. v. Daisley, 2014 ONCA 232.
In West Van, the plaintiff sought to sue, in Ontario, a North
Carolina attorney and law firm for alleged professional negligence
in a North Carolina proceeding involving underlying events in
Connecticut. The defendants sought to stay the Ontario proceeding
on the basis that the claim had no real and substantial connection
with Ontario. The plaintiff conceded the absence of a real and
substantial connection with Ontario but argued that Ontario should
nevertheless assume jurisdiction on the basis of the forum of
necessity doctrine. More specifically, the plaintiff put forward
evidence that it had contacted 31 different lawyers in two main
cities in North Carolina who had all refused to take on the
plaintiff's claim given who the proposed defendants were. The
motion judge granted the stay without
addressing the forum of necessity doctrine.
On appeal, the Ontario Court of Appeal engaged in a
comprehensive review of this "relatively new Canadian
doctrine", referring to its origins, its recognition in
various provincial statutes which have codified the doctrine, and
the pertinent (albeit sparse) Canadian jurisprudence addressing the
doctrine. The Court stated that "[a]ll jurisdictions in Canada
that have recognized the forum of necessity [doctrine] have
incorporated a 'reasonableness' test" and that in
Ontario, a plaintiff must establish that "there is no other
forum in which the plaintiff can reasonably seek relief" (at
para. 20). Moreover, the Court observed that this reasonableness
standard has been "stringently construed" (at para. 21).
Significantly, the Court ruled that the forum of necessity doctrine
has been successfully applied in only two Canadian cases as an
independent basis for assuming jurisdiction, noting that the
doctrine is "reserved for exceptional cases" (at para.
Signalling that the doctrine has a narrow ambit, the Court gave
the following examples of situations in which the doctrine has
relevance: "the breakdown of diplomatic or commercial
relations with a foreign State, the need to protect a political
refugee, or the existence of a serious physical threat if the
debate were to be undertaken before the foreign court" (at
para. 40). The plaintiff's alleged inability to obtain counsel
in a private commercial matter therefore did not meet the threshold
for the doctrine's applicability, the Court concluded.
The decision in West Van confirms that it will be very difficult
for plaintiffs to successfully invoke the forum of necessity
doctrine. If a plaintiff cannot bring its case within the
established presumptive real and substantial connecting factors as
a basis for jurisdiction, it will have to successfully urge a Court
to recognize an analogous connecting factor or be precluded from
pursuing its claim in its "choice" of forum.
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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