Forsythe v. Westfall et al.,

• Jurisdiction: Ontario
• Judge: Gillese, Blair, MacFarland, Pepall and Benotto, JJ.A.
• Court: Court of Appeal (Ontario)
• Citation: 2015 ONCA 810,(2015), 343 O.A.C. 99 (CA)
• Date: 09 September 2015

Forsythe v. Westfall (2015), 343 O.A.C. 99 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. NO.034

Rennie Forsythe (plaintiff/appellant) v. Michael Westfall, John Doe, Jevco Insurance Company and Intact Insurance Company (defendants/respondents)

(C60047; 2015 ONCA 810)

Indexed As: Forsythe v. Westfall et al.

Ontario Court of Appeal

Gillese, Blair, MacFarland, Pepall and Benotto, JJ.A.

November 24, 2015.

Summary:

Forsythe, an Ontario resident, was a passenger on a motorcycle owned and operated by Westfall, an Alberta resident, when that vehicle was involved in a single vehicle accident in British Columbia. Westfall claimed the accident was caused solely by an unidentified driver. There was no contact between the vehicles. Forsythe sought damages for her injuries and sued Westfall, his insurer, her own insurer and John Doe (unidentified driver). Westfall moved to have the action against him stayed on the basis that the Ontario court lacked jurisdiction over him.

The Ontario Superior Court, in a decision reported at 2015 ONSC 758, permanently stayed the action against Westfall. There was not a real and substantial connection between the matter, the parties, and Ontario. The Court followed Tamminga v. Tamminga (2014) (Ont. C.A.) and held that Forsythe's Ontario automobile insurance policy was not a factor that satisfied the real and substantial connection test. Forsythe appealed, arguing that Tamminga was wrongly decided and should be overturned. The appeal was heard by a five-judge panel.

The Ontario Court of Appeal dismissed the appeal.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter - [See second Insurance - Topic 4113 ].

Conflict of Laws - Topic 614

Jurisdiction - General principles - Forum of necessity doctrine - [See third Insurance - Topic 4113 ].

Conflict of Laws - Topic 7601

Torts - Jurisdiction - Forum conveniens - [See second Insurance - Topic 4113 ].

Conflict of Laws - Topic 7602

Torts - Jurisdiction - Tort occurring outside jurisdiction - [See first Insurance - Topic 4113 ].

Conflict of Laws - Topic 7605

Torts - Jurisdiction - Real and substantial connection - [See first Insurance - Topic 4113 ].

Insurance - Topic 4113

Automobile insurance - Uninsured or underinsured motorist coverage - Out of province accidents - Forsythe, an Ontario resident, was a passenger on a motorcycle owned and operated by Westfall, an Alberta resident, when that vehicle was involved in a single vehicle accident in British Columbia - Westfall claimed the accident was caused solely by an unidentified driver - There was no contact between the vehicles - Forsythe sued Westfall, his insurer, her own insurer and John Doe (unidentified driver) - Westfall successfully moved to have the action against him stayed on the basis that the Ontario court lacked jurisdiction over him - The motion judge followed Tamminga v. Tamminga (2014) (Ont. C.A.) and held that Forsythe's Ontario automobile insurance policy was not a factor that satisfied the real and substantial connection test - On appeal, Forsythe submitted that because s. 4(1)(c) of Ontario Regulation 676 (Uninsured Automobile Coverage) and s. 5.6.3 of her 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" and gave the court jurisdiction over the entire dispute, including her claim against Westfall - The Ontario Court of Appeal dismissed the appeal - "The appellant sues Westfall in tort and in tort only. Absent the motorcycle collision she would have no claim against any of the named respondents including her own insurer. Her potential claim against her insurer arises as the result of a private contract between the appellant and her insurer AXA. Westfall 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. ... I see no principled basis upon which to distinguish among underinsured, uninsured and unidentified drivers. The principles set out in Tamminga are equally applicable to all three types of coverage under a plaintiff's Ontario insurance policy." - See paragraphs 22 to 47.

Insurance - Topic 4113

Automobile insurance - Uninsured or underinsured motorist coverage - Out of province accidents - Forsythe, an Ontario resident, was a passenger on a motorcycle owned and operated by Westfall, an Alberta resident, when that vehicle was involved in a single vehicle accident in British Columbia - Westfall claimed the accident was caused solely by an unidentified driver - There was no contact between the vehicles - Forsythe sued Westfall, his insurer, her own insurer and John Doe (unidentified driver) - Westfall successfully moved to have the action against him stayed on the basis that the Ontario court lacked jurisdiction over him - The motion judge followed Tamminga v. Tamminga (2014) (Ont. C.A.) and held that Forsythe's Ontario automobile insurance policy was not a factor that satisfied the real and substantial connection test - On appeal, Forsythe submitted that recognizing a new presumptive connecting factor in the circumstances would be consistent with the values of order, fairness, efficiency, and comity - The Ontario Court of Appeal stated that "these are not factors that go to jurisdiction simpliciter. They may well be appropriate in a forum non conveniens argument but they do not establish jurisdiction. ... There is no basis on which the facts of this case could establish a new presumptive connecting factor. And the court must be cautious not to confuse jurisdiction simpliciter and the doctrine of forum non conveniens. They are distinct concepts. As Lebel J. noted in Van Breda [Club Resorts Ltd. v. Van Breda (2012) (SCC)] ... '[f]orum non conveniens comes into play when jurisdiction is established. It has no relevance to the jurisdictional analysis itself.'" - See paragraphs 48 to 51.

Insurance - Topic 4113

Automobile insurance - Uninsured or underinsured motorist coverage - Out of province accidents - Forsythe, an Ontario resident, was a passenger on a motorcycle owned and operated by Westfall, an Alberta resident, when that vehicle was involved in a single vehicle accident in British Columbia - Westfall claimed the accident was caused solely by an unidentified driver - There was no contact between the vehicles - Forsythe sued Westfall, his insurer, her own insurer (AXA) and John Doe (unidentified driver) - Westfall successfully moved to have the action against him stayed on the basis that the Ontario court lacked jurisdiction over him - The motion judge followed Tamminga v. Tamminga (2014) (Ont. C.A.) and held that Forsythe's Ontario automobile insurance policy was not a factor that satisfied the real and substantial connection test - On appeal, Forsythe argued that an Ontario court should assume jurisdiction on the basis of the forum of necessity doctrine - She submitted that Ontario should assume jurisdiction to avoid a multiplicity of proceedings and the potential for inconsistent judgments in Ontario and British Columbia, and that the only practical approach was for one court to hear all matters relating to liability and damages - The Ontario Court of Appeal rejected the submission - "The forum of necessity doctrine is available in extraordinary and exceptional circumstances. For Ontario to accept jurisdiction as the 'forum of necessity' the appellant must establish that there is no other forum in which she can reasonably seek relief ... The appellant has failed to establish that she cannot reasonably seek relief elsewhere. She can, and has, pursued a claim against Westfall in British Columbia. She may also continue her claim against AXA in Ontario." - See paragraphs 52 to 55.

Cases Noticed:

Tamminga v. Tamminga et al. (2014), 323 O.A.C. 67; 120 O.R.(3d) 671; 2014 ONCA 478, appld. [para. 5].

Club Resorts Ltd. v. Van Breda - see Van Breda et al. v. Village Resorts Ltd. et al.

Van Breda et al. v. Village Resorts Ltd. et al., [2012] 1 S.C.R. 572; 429 N.R. 217; 291 O.A.C. 201; 2012 SCC 17, refd to. [para. 19].

Somersall v. Friedman et al., [2002] 3 S.C.R. 109; 292 N.R. 1; 163 O.A.C. 201; 2002 SCC 59, refd to. [para. 31].

Johnson and Johnson v. Wunderlich, Wunderlich Estate and Commercial Union Assurance Co. (1986), 18 O.A.C. 89; 57 O.R.(2d) 600; 1986 CanLII 2618 (C.A.), refd to. [para. 31].

Gajraj et al. v. DeBernardo et al. (2002), 16 O.A.C. 60; 60 O.R.(3d) 68 (C.A.), refd to. [para. 31].

West Van Inc. v. Daisley et al. (2014), 317 O.A.C. 294; 119 O.R.(3d) 481; 2014 ONCA 232, leave to appeal refused, [2014] S.C.C.A. No. 236, refd to. [para. 53].

Statutes Noticed:

Insurance Act Regulations (Ont.), Uninsured Automobile Coverage Regulation, R.R.O. 1990, Reg. 676, sect. 4(1)(c) [para. 12 ].

Uninsured Automobile Coverage Regulation - see Insurance Act Regulations (Ont.).

Counsel:

Alan L. Rachlin, for the appellant;

Tracy L. Brooks and Victor Galleguillos, for the respondent, Michael Westfall;

Jason P. Mangano, for the respondent, Intact Insurance Company;

Brian M. Cameron, for the intervener, Ontario Trial Lawyers Association.

This appeal was heard and decided on September 9, 2015, by Gillese, Blair, MacFarland, Pepall and Benotto, JJ.A., of the Ontario Court of Appeal. On November 24, 2015, MacFarland, J.A., delivered the following reasons for judgment of the Court.