The Court of Appeal recently released its highly anticipated
decision in Forsythe v. Westfall.
Forsythe, an Ontario resident, was injured in a single vehicle
accident in British Columbia while riding on a motorcycle owned and
operated by Westfall, an Alberta resident. She was treated for her
injuries first in British Columbia and Alberta and subsequently in
Westfall alleged the accident may have been caused by an
unidentified driver. Forsythe pursued damages for her
injuries against Westfall (in tort), an Alberta based
uninsured/unidentified motorist carrier (Westfall’s insurer),
and her own underinsured motorist carrier insurer (44R) in
Ontario. Westfall was also sued in tort in British
Columbia in an effort to prevent her claim from becoming
Like all 44R policies issued in Ontario, Forsythe’s policy
required she litigate her claim for underinsured coverage against
her insurer in Ontario.
Westfall brought a motion in the Ontario action on the basis
that Ontario lacked jurisdiction simpliciter in respect of
the tort allegations made against him.
The Lower Court Decision
The Court followed its approach in
Tamminga and reasoned that having an
insurance claim associated with a tort claim with which Ontario had
no jurisdiction simpliciter does not establish a real and
substantial connection between the matter, the parties, and the
province. It also held that the forum of necessity doctrine did not
apply because Forsythe was able to sue in Ontario to enforce her
claim against her own 44R. The Court recognized that this
potentially denied her of a convenient “one-stop access to
Forsythe’s appeal was heard by a five-judge panel. The
appellant first argued that the policy constituted a
“contract connected with the dispute” and was thus
satisfactory as a presumptive connecting factor to establish
jurisdiction simpliciter pursuant to the Supreme Court of
Canada’s decision in Van
The Court rejected this argument and instead found that
Forsythe’s action against Westfall was based in tort only and
that her own insurance policy had no nexus to Westfall. The Court
further rejected Forsythe’s interpretation of
Tamminga and explained that it stood for
the proposition that a contract between a plaintiff and her insurer
is not a presumptive connecting factor that would give an Ontario
Court jurisdiction over a claim against an extra-provincial
defendant. Indeed, to decide otherwise would expand the
Court’s jurisdiction beyond the boundaries established in
The Court then disagreed with the intervener and appellant that
it should recognize a new presumptive connecting factor. While the
appellant’s own insurance contract, the applicable regulatory
requirements, her residence, that she sustained damages in Ontario
and the requirement that she bring suits in multiple jurisdictions
might be appropriate in an argument for forum non
conveniens, they were not appropriate in assessing
Finally, the Court rejected the appellant’s submission
that Ontario should assume jurisdiction pursuant to the forum of
necessity doctrine. Building on the lower Court’s reasoning,
the Court of Appeal confirmed that the appellant failed to
establish that she could not reasonably seek relief elsewhere. The
doctrine is applied in only extraordinary and exceptional cases and
Forsythe was still able to seek redress in British Columbia.
The Court of Appeal has removed any doubt that, while uninsured
motorist coverage for Ontario residents will be litigated in
Ontario, the tort itself will be litigated where the accident
occurred in accordance with the private international law
principles applied in Ontario. This decision demonstrates
that Ontario’s jurisdiction to address insurance coverage
issues does not impact the jurisdiction simpliciter
analysis of the underlying tort. Leave to appeal at the
Supreme Court of Canada has been sought.
Jason P. Mangano was counsel for the Respondent
underinsured motor vehicle carrier at first instance and the
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