The Court of Appeal for Ontario has released a decision dealing
with whether Ontario has jurisdiction over a case stemming from a
motor vehicle accident in Alberta.
In Tamminga v. Tamminga, an Ontario resident was
injured when she fell off a truck in Alberta. She commenced an
action in the Ontario Superior Court of Justice against the owner
and operator of the truck, who lives in Alberta, and a corporate
co-owner of the truck, which is registered and carries on business
in Alberta. She also sued her Ontario automobile insurer, claiming
uninsured/underinsured coverage under her policy. The defendants
moved to stay her action on the basis that Ontario courts lacked
jurisdiction to hear the case. They relied upon the Supreme
Court's decision in Club Resorts Ltd. v. Van
In Van Breda, the Supreme Court identified a
non-exhaustive list of "presumptive connecting factors"
to consider in tort cases. One of those factors is that "a
contract connected with the dispute was made in the province."
The plaintiff claimed that her Ontario auto insurance contact was
was a sufficient "presumptive connecting factor" under
Van Breda to give an Ontario court jurisdiction over the
The Court of Appeal agreed with the motions judge that, pursuant
to Van Breda, the Ontario court did not have jurisdiction
over the matter. With respect to the contract in question (the
insurance policy), the Court held:
An automobile insurance
contract "anticipates" accidents generally, but the
tortfeasor will not be identifiable in advance. Unlike the contract
in Van Breda, there is nothing that connects the
appellant's insurance contract to the respondents. They are not
parties to or beneficiaries of the contract. The appellant was not
visiting the farm in Alberta for any reason related to the
contract. The connection between the insurance policy and the
dispute only arises in the aftermath of the tort and its
application is conditional on the outcome of the appellant's
claim against the tortfeasors.
In a word, there is no nexus
between the insurance contract and the respondents.
Under B.C.'s former and current Limitation Act, the limitation period for a Plaintiff's claim can be extended on the basis of a Defendant having acknowledged in writing some liability for the cause of action.
Automobile drivers, like fine wine, tend to get better with age. Older drivers can draw on a wealth of experience from their years on the road to assist them when faced by a variety of dangerous conditions.
The insurance industry will be interested in Ledcor Construction Ltd v. Northbridge Indemnity Insurance Co because of principles the Supreme Court of Canada applied to the "faulty workmanship" exclusion in a Builders' Risk policy.
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