Insurance law – Automobile insurance – Practice – Jurisdiction – Location of contract – Unidentified motorist – Statutory provisions

Forsythe v. Westfall

The plaintiff appealed a jurisdictional ruling which found no real and substantial connection between the parties, the accident in which the plaintiff was injured and Ontario.  A five judge panel of the Ontario Court of Appeal dismissed the appeal and affirmed Tamminga v. Tamminga, 2014 ONCA 478, which stands for the principle that a plaintiff’s Ontario automobile insurance policy is not a factor that satisfies the real and substantial connection test.

[2015] O.J. No. 6134

December 29, 2015

Ontario Court of Appeal

E.E. Gillese, R.A. Blair, J.L. MacFarland, S.E. Pepall and M.L. Benotto JJ.A.

The plaintiff was a passenger on a motorcycle near the City of Vernon, British Columbia, when the driver, Michael Westfall, lost control and there was an accident. The plaintiff allegedly suffered a brain injury as well as injuries to her back, head, left shoulder, left elbow and left bicep. Mr. Westfall denied liability and said an unidentified vehicle crossed into his lane of traffic and caused the accident.

There was no contact between Mr. Westfall’s motorcycle and the unidentified automobile and Mr. Westfall’s automobile insurance policy only provided coverage when an unidentified automobile was involved in an accident and there was contact between the two vehicles.

The plaintiff commenced an action in Ontario against Mr. Westfall and her automobile insurer. The plaintiff alleged the accident was caused solely by an unidentified driver or in the alternative, the accident was caused or contributed to by the negligence of Mr. Westfall. The plaintiff’s standard automobile policy required an action for uninsured and unidentified automobile accident benefits coverage to be brought in Ontario. The plaintiff’s standard automobile policy reflected the language of s. 4(1) of Uninsured Automobile Coverage, R.R.O. 1990, Reg. 676, made under the Insurance Act, R.S.O. 1990, c. I.8.

In addition, the plaintiff commenced an action in British Columbia against Mr. Westfall in order to protect her claim from being statute‑barred.

Mr. Westfall’s insurer brought an application to have the Ontario action stayed on the basis the court lacked jurisdiction. The plaintiff argued the Ontario court had jurisdiction simpliciter over her claim against Mr. Westfall or, in the alternative, the Ontario court should assume jurisdiction under the forum of necessity doctrine.

The motion judge followed the decision in Tamminga v. Tamminga, 2014 ONCA 478, and found that the plaintiff’s Ontario automobile insurance policy was not a factor that satisfied the real and substantial connection test set out by the Supreme Court in Club Resorts Ltd. v. Van Breda, 2012 SCC 17. In respect of the forum of necessity doctrine, the motion judge concluded the test was not met because the plaintiff was able to pursue her claim against Mr. Westfall in British Columbia and pursue her insurer in Ontario.

On appeal, the plaintiff argued the court’s decision in Tamminga v. Tamminga was wrongly decided and should be overturned. For that reason, the appeal was heard by a five‑judge panel.

The plaintiff argued that because s. 4(1)(c) of Regulation 676 and her automobile insurance policy required that an Ontario court determine issues of liability and damages, her policy was a presumptive connecting factor that satisfied the real and substantial connection test set out in Van Breda and gave the Ontario court jurisdiction over the entire dispute, including the plaintiff’s claim against Mr. Westfall. The Court of Appeal rejected the plaintiff’s submission on this issue. The plaintiff’s claim against Mr. Westfall was in tort only and jurisdiction over claims against extra‑provincial defendants should not be bootstrapped by a secondary and contingent claim against a provincial defendant. Whatever the terms of the contract between the plaintiff and her insurer, the contract had nothing to do with Mr. Westfall nor the accident. Mr. Westfall was not a party to the contract and the contract did not cause or increase the likelihood of the accident. Further, this specific accident was never contemplated by the parties when they entered into the contract.

The plaintiff argued in the alternative that if she could not meet any of the four presumptive connecting factors set out in Van Breda, then the Court of Appeal should recognize a new presumptive connecting factor based on the plaintiff’s insurance contract, the regulatory requirement, the fact that she resides in Ontario and the fact she is required to bring suit in two jurisdictions, which may give rise to inconsistent verdicts. The Court of Appeal found that these were not factors that were considered when assessing jurisdiction simpliciter.

Lastly, the plaintiff argued Ontario should assume jurisdiction on the basis of the forum of necessity doctrine. The forum of necessity doctrine is an exception to the real and substantial connection test that is available in extraordinary and exceptional circumstances. For Ontario to accept jurisdiction as the forum of necessity, the plaintiff must establish that there is no other forum in which she can reasonably seek relief.

The Court of Appeal rejected the plaintiff’s arguments because she remained free to pursue her claim against Mr. Westfall in British Columbia and pursue her action in Ontario against her insurer.

This case was digested by Aaron D. Atkinson and edited by David W. Pilley of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact them directly at aatkinson@harpergrey.com or dpilley@harpergrey.com or review their biographies at http://www.harpergrey.com.