Canada: Forsythe v Westfall: Forum Of Necessity & Access To Justice

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:

[23] 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:

  1. the defendant is domiciled or resident in the province;
  2. the defendant carries on business in the province;
  3. the tort was committed in the province; and
  4. 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:

[100] 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, [2011] 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.

[emphasis added]

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:

General discretion

7 A court that under Section 4 lacks territorial competence in a proceeding may hear the proceeding notwithstanding that Section if it considers that

  1. there is no court outside the Province in which the plaintiff can commence the proceeding; or
  2. 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.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.