In Tamminga v. Tamminga [2014 ONCA 478], the Court of
Appeal considered whether an Ontario resident, who was injured
after falling off a truck in Alberta, could maintain a claim in
Ontario. Both owners of the truck were located in Alberta. The
Plaintiff also named her own automobile insurer in the claim
pursuant to the uninsured/underinsured motorist provisions.
The issue before the Court of Appeal was whether Ms.
Tamminga's own insurance contract was a "sufficient
presumptive connecting factor" as considered by the Supreme
Court of Canada in Club Resorts Ltd. v. Van Breda [2012 SCC 17], to
permit an Ontario court to have jurisdiction over non-resident
tortfeasors and torts.
In Van Breda, Justice LeBel outlined four presumptive
connecting factors which were:
The Defendant is domiciled or a resident in the province;
The Defendant carries on business in the province;
The tort was committed in the province; and,
The contract connected with the dispute was made in the
The Supreme Court of Canada held that where a presumptive
connecting factor was established, the onus shifted to the
Defendant to show the connection between the subject matter and the
forum was weak.
The Court of Appeal in the present case concluded that there was
no nexus between the insurance contract and the Alberta Defendants.
The Court noted that Ms. Tamminga's automobile insurance
contract "anticipated" accidents generally but the
tortfeasor would not be identifiable in advance. The Court held
that there was nothing that connected the insurance contract to the
Alberta Defendants. The Alberta Defendants were not parties to or
beneficiaries of the contract. The Plaintiff was not visiting the
farm where the accident occurred for any reason related to the
contract. Instead, the connection between the contract and the
dispute only arose after the incident and depended on the
Plaintiff's Claim against the tortfeasors.
The Court of Appeal upheld the motion Judge's decision to
stay the action due to lack of jurisdiction.
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.
For the first time in BC, a Court has decided that an insured is entitled to special costs, rather than the lower tariff costs, solely because they were successful in a coverage action against their insurer.
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