Introduction: Did Ontario have jurisdiction?
Arguments about access to justice are not enough to oust the general principles of jurisdiction, according to a recent Ontario case. In Forsythe v Westfall, 2015 ONCA 810, the Court of Appeal for Ontario confirmed that the forum of necessity doctrine—which is influenced by access to justice concerns—does exist, but can only be applied in the narrowest and most exceptional of circumstances. This case wasn't one of them.
The end result? The courts of Ontario did not have jurisdiction to entertain the plaintiff's tort claim.
Facts leading to the jurisdiction motion
The plaintiff, Forsythe, was an Ontario resident.
She had been injured in a motorcycle accident in British Columbia, allegedly caused by an unidentified driver. The motorcycle's driver / owner, Westfall, was an Alberta resident and insured through an Alberta policy.
The plaintiff sued in Ontario, naming as defendants: "John Doe," the unidentified driver who allegedly caused the accident; her own insurer (because, if the accident was truly caused by an unidentified driver, she could have coverage under her own policy); the motorcycle driver, as the plaintiff was alleging in the alternative that his negligence caused the accident; and the driver's insurer.
The driver moved for a stay, arguing that the Ontario Superior Court of Justice had no jurisdiction over him. The motion judge accepted that argument and imposed the stay, and the plaintiff appealed to the ONCA.1
The ONCA's reasoning on jurisdiction and forum of necessity
(a) No Van Breda presumptive connecting factor
This dispute had interprovincial elements, and therefore created a potential conflict of laws. In this area (aka "private international law") the first "central question" is "whether a court has jurisdiction to hear a particular dispute" (Stephen GA Pitel & Nicholas S Rafferty, Conflict of Laws (Toronto: Irwin Law, 2010) at 1).
That was the question at issue in Forsythe: Could the courts of Ontario assume jurisdiction over the plaintiff's tort claim?
Club Resorts Ltd v Van Breda, 2012 SCC 17 is the leading case on the assumption of jurisdiction at common law.
(Recall that Ontario does not have a statute like Nova Scotia's Court Jurisdiction and Proceedings Transfer Act, which tells the Court how to determine whether it has jurisdiction – or what the CJPTA calls "territorial competence.")
Justice MacFarland in Forsythe listed Van Breda's "presumptive connecting factors" in tort cases; if one is present, there is likely a real and substantial connection to the jurisdiction:
 Lebel J., writing for the court, set out four presumptive connecting factors in Van Breda, at para. 90:
[I]n a case concerning a tort, the following factors are presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute:
- 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 province.
The plaintiff tried to slot her case into the fourth category, suggesting that her Ontario automobile insurance policy was "a contract connected with the dispute [that] was made in the province" (para 24) and entitled the Ontario courts to assume jurisdiction over the case, including jurisdiction over the Alberta defendant.
Accepting this argument would have required the ONCA to overturn, or at least distinguish, its recent decision in Tamminga v Tamminga, 2014 ONCA 478, which it refused to do (even though it sat a panel of five in Forsythe to properly consider the question: para 6).
Consistent with Tamminga, then, the Court maintained that a plaintiff's own automobile insurance policy, even though it is a contract made in the province, is not the kind of presumptive connecting factor that could tie an out-of-province defendant to the jurisdiction.
As Justice MacFarland explained, the Alberta defendant "is not a party to that contract, he is not a named insured under the provisions of that contract – in short, it has nothing to do with him" (para 25; see also para 41).
This was the case even though the plaintiff had sued other defendants, including her own insurer, and not just the Alberta driver. However, the Court noted that the plaintiff could have still brought a separate direct contractual claim in Ontario against her own insurer (para 31). Otherwise, her "claims against [the] extra-provincial defendants should not be bootstrapped by such a secondary and contingent claim against a provincial defendant" (para 32, citing Gajraj v DeBernardo, 2002 CanLII 44959 (ONCA)).
(b) No new presumptive connecting factor
The SCC in Van Breda gave the lower courts permission to develop new presumptive connecting factors in certain cases and on a principled basis.
Here, the ONCA declined to recognize any new presumptive connecting factors that could give Ontario jurisdiction (e.g. based on the fact that the plaintiff lived in Ontario and suffered damages there). In doing so, the Court cautioned against confusing jurisdiction with the related-but-distinct doctrine of forum non conveniens. That doctrine is only triggered once the court finds it has jurisdiction, but is asked to refrain from exercising it (paras 48-51).
(c) No need to apply "forum of necessity" doctrine
The "forum of necessity" doctrine means just that: The forum court (where the proceeding is brought) can take jurisdiction even if there is no real and substantial connection, if it is necessary for it to do so. Of course, the trouble lies in defining when it will be truly necessary.
The ONCA had itself opened the door to forum of necessity in Van Breda (2010 ONCA 84), drawing the explicit connection between necessity and access to justice:
 The forum of necessity doctrine recognizes that there will be 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. The forum of necessity doctrine does not redefine real and substantial connection to embrace "forum of last resort" cases; it operates as an exception to the real and substantial connection test. Where there is no other forum in which the plaintiff can reasonably seek relief, there is a residual discretion to assume jurisdiction. In my view, the overriding concern for access to justice that motivates the assumption of jurisdiction despite inadequate connection with the forum should be accommodated by explicit recognition of the forum of necessity exception rather than by distorting the real and substantial connection test.
In the SCC's Van Breda decision, Justice LeBel said that forum of necessity was not at issue so he did not have to deal with it (para 59).
The ONCA again considered forum of necessity in West Van Inc v Daisley, 2014 ONCA 232, leave to appeal to SCC refused, 2014 CanLII 51414 (SCC), where it reviewed the history of the doctrine, and its limited success in the case law (paras 18-38). Only "exceptional cases" would qualify – like "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" (para 40 of West Van, quoting the Quebec case of Lamborghini (Canada) inc c Automobili Lamborghini S.P.A., 1996 CanLII 6047 (QCCA)).
The Court in West Van went on to say that: "The doctrine of forum of necessity is unlikely to be successfully invoked on what is in essence a private, commercial matter..." (para 41).
After Forsythe, it is clear that the ONCA will not be expanding the boundaries of the exception anytime soon. There must be "no other forum in which [the plaintiff] can reasonably seek relief," the Court reiterated (para 53). Justice MacFarland adopted the motion judge's analysis on this point (para 55):
The exception is very narrow, and the plaintiff must establish that there is no other forum in which he or she reasonably could obtain access to justice: Bouzari v. Bahremani,  O.J. No. 5009 (S.C.J.). Typically, the doctrine is unavailable because of its high bar, and its availability has been rejected in numerous cases: West Van Inc. v. Daisley, supra... The doctrine is reserved for exceptional cases such as where there has been a breakdown in diplomatic or commercial relations with the foreign state or where the plaintiff would be exposed to a risk of serious physical harm if the matter was litigated in the foreign court.
There is no chance in the immediate case that Ms. Forsythe will be denied access to justice. She remains free to sue in Ontario to enforce her claim against Intact after, or even before, she obtains access to justice for her claim against Mr. Westfall in British Columbia. It may be inconvenient that she is denied one-stop access to justice, but there is no room here for the forum of necessity doctrine.
One final note, for provinces like Nova Scotia that rely on jurisdiction statutes rather than the common law test in Van Breda: The CJPTA contains a discretionary "forum of necessity" provision. Section 7 of the NS CJPTA provides:
7 A court that under Section 4 lacks territorial competence in a proceeding may hear the proceeding notwithstanding that Section if it considers that
- there is no court outside the Province in which the plaintiff can commence the proceeding; or
- the commencement of the proceeding in a court outside the Province cannot reasonably be required.
Because of the similar "cannot reasonably be required" language in the CJPTA, it is likely a NS Court would draw on Ontario cases like Forsythe to determine whether it should exercise this discretion to hear a proceeding even though it "lacks territorial competence."
Conclusion: Inconvenience, but access to justice
In the end, the Court of Appeal agreed that the plaintiff's action had no real and substantial connection to Ontario and upheld the stay imposed in the Court below.
It is not necessarily a bad thing that a doctrine arising out of access to justice concerns will not be applied in many cases. That is because of the broader policy interests at stake in private international law, including order, comity, and predictability (see, generally, the SCC's decision in Van Breda). Limiting the forum of necessity doctrine to extreme cases is one way to promote these principles.
As a result, if the plaintiff can have her day in court in another province, her home province will probably not be a "forum of necessity." Justice can still be accessed, even if it might be inconvenient.
1. For ease of reference I will still call her "the plaintiff" in discussing the appeal decision.
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