In January 2010, two plaintiffs commenced an action in Ontario
arising from a car accident that had occurred almost two years
earlier in Michigan. More than a year after the action was
commenced, the defendant moved to dismiss the action on the basis
that Ontario courts lacked jurisdiction over a claim that the defendant
said should instead be tried in Michigan.
For the plaintiffs in Ibrahim v. Robinson (2015 ONCA 21), this jurisdictional challenge
raised two major issues. Most significantly, by the time the
defendant's motion was brought Michigan's 3-year limitation
period had expired and it was too late to sue there. Secondly and
almost as significantly, during the year after the action was
commenced the law governing when Ontario courts can assume
jurisdiction over foreign-based claims had been largely re-written
by Ontario Court of Appeal in its
2010 decision in Van Breda v. Village Resorts Limited (2010 OBCA 84); a decision that
was upheld by the Supreme Court of Canada in 2012 (2012 SCC 17). It was acknowledged by the
parties that Ontario courts likely had jurisdiction over the case
under the rules that existed when the action was commenced but
jurisdiction became much more tenuous after Van Breda.
Hence the possibility that plaintiffs who, at least initially,
chose correctly to sue in Ontario could later be denied the ability
to continue in Ontario due to a lack of jurisdiction and also
denied the ability to sue in Michigan due to an expired limitation
Fortunately for the plaintiff, the Court of Appeal in Van
Breda had left open the "forum of necessity" exception, which
applies in "exceptional cases where, despite the absence of a
real and substantial connection, the need to ensure access to
justice will justify the assumption of
jurisdiction." [Notably, the Supreme Court of Canada
expressly declined to comment the "forum of necessity" exception when it
upheld the Ontario Court of Appeal's decision in Van
Breda because it was not necessary to the
appeal.] In the case of Ibrahim v. Robinson, the
Court of Appeal upheld the decision below that Ontario was a forum
of necessity. In doing so, the Court of Appeal observed that this
was "a very unique situation" where the defendants'
delay in challenging jurisdiction had been accompanied by both
changes to the law and an expired Michigan limitation period that
occurred during that delay. To deny jurisdiction would clearly
deprive the plaintiffs of their day in court and this could not be
Any discussion of this case warrants warnings to both plaintiffs
and defendants. Plaintiffs must realize that the mere expiry of a
limitation period in the proper forum for a case is not itself
enough to trigger the "forum of necessity" exception and
a plaintiff who waits for a foreign limitation period to expire
before suing in Ontario is likely out of luck (West Van Inc. v. Daisley, 2014 ONCA 232). Defendants have to
understand that the tactic of delaying a jurisdictional challenge
and waiting for a foreign limitation period to expire and eliminate
a claim is also likely to fail. It is best to either bring a
jurisdictional challenge quickly or, if the expiry of a foreign
limitation period is imminent, offer to toll (or, in other words,
extend) that limitation period as a way to defuse the
plaintiff's forum of necessity argument (keeping in mind that
not all foreign jurisdictions allow/recognize tolling agreements
–for example, Quebec).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This paper discusses contract law issues including decisions of relevance to commercial lawyers and business leaders giving a snapshot of particular principles of interest that arose in case law over the past 12 months.
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