Ibrahim v. Robinson, 2015 ONCA 21

• Judge: Weiler, Feldman and Benotto, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 12, 2014
• Jurisdiction: Ontario
• Citations: 2015 ONCA 21;(2015), 329 O.A.C. 129 (CA)

Ibrahim v. Robinson (2015), 329 O.A.C. 129 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JA.023

Fadia Maria Nazira Ibrahim and Angela Ibrahim (plaintiffs/respondents) v. William Addison Robinson III (defendant/appellant)

(C58969; 2015 ONCA 21)

Indexed As: Ibrahim v. Robinson

Ontario Court of Appeal

Weiler, Feldman and Benotto, JJ.A.

January 19, 2015.

Summary:

The parties were involved in a motor vehicle accident, in Michigan, U.S.A., on January 7, 2008. The plaintiffs commenced an action in Ontario. At the time, a court could arguably have assumed jurisdiction under the test set out in Muscutt et al. v. Courcelles et al. (2002, Ont. C.A.). Following the expiry of the three year limitation period in Michigan, the defendant moved to dismiss the Ontario action for want of jurisdiction. Meanwhile, Van Breda et al. v. Village Resorts Ltd. et al. (2012, S.C.C.) refined the "real and substantial connection" test for determining jurisdiction, with the result that there were effectively no longer any applicable factors that would ground the court's assumption of jurisdiction.

The Ontario Superior Court dismissed the motion, holding that fairness and access to justice called for the court to assume jurisdiction based on the "forum of necessity exception". The court held that the defendant had delayed in bringing the motion until after the expiry of the Michigan limitation period, possibly lulling the plaintiffs into a false sense of security. The defendant moved to introduce further evidence of correspondence and emails to demonstrate that the plaintiffs had not been misled about his intention to challenge jurisdiction.

The Ontario Superior Court dismissed the motion. The defendant appealed the decisions. Meanwhile, West Van Inc. v. Daisley et al. (2014, Ont. C.A., leave to appeal denied) held that the expiry of a limitation period in the proper foreign forum did not make Ontario the forum of necessity.

The Ontario Court of Appeal dismissed the defendant's appeal.

Conflict of Laws - Topic 614

Jurisdiction - General principles - Forum of necessity doctrine - The parties were involved in a motor vehicle accident, in Michigan, U.S.A., on January 7, 2008 - At the time, a court could arguably have assumed jurisdiction under the test set out in Muscutt et al. v. Courcelles et al. (2002, Ont. C.A.) - The plaintiffs commenced an action in Ontario - Following the expiry of the three year limitation period in Michigan, the defendant moved to dismiss the Ontario action for want of jurisdiction - Meanwhile, Van Breda et al. v. Village Resorts Ltd. et al. (2012, S.C.C.) refined the "real and substantial connection" test for determining jurisdiction, with the result that there were effectively no longer any applicable factors that would ground the assumption of jurisdiction in Ontario - The motion judge dismissed the motion, holding that fairness and access to justice called for the assumption of jurisdiction based on the "forum of necessity exception" - The defendant appealed - Meanwhile, West Van Inc. v. Daisley et al. (2014, Ont. C.A., leave to appeal denied) held that the expiry of a limitation period in the proper foreign forum did not make Ontario the forum of necessity - The Ontario Court of Appeal dismissed the defendant's appeal - The motion judge did not rely solely on the expiry of the Michigan limitation period to invoke the doctrine of necessity - He also considered fairness and access to justice, including the fact that the change in the test for assumed jurisdiction had occurred only after the expiry of the foreign limitation period - He also considered the defendant's unexplained lengthy delay in bringing the jurisdiction motion, which might have lulled the plaintiffs into a false sense of security - Although the plaintiffs could have started a second action in Michigan before the expiry of the limitation period there, they could not maintain two actions and would have had to abandon the Ontario action - Before the Van Breda decision or an order of an Ontario court staying the claim, they had no reason to do that - Given the additional factors that influenced the judge's decision, the decision was not inconsistent with the West Van Inc. decision and was to be accorded deference.

Cases Noticed:

Van Breda et al. v. Village Resorts Ltd. et al. (2010), 264 O.A.C. 1; 98 O.R.(3d) 721; 2010 ONCA 84, affd. (2012), 429 N.R. 217; 291 O.A.C. 201; 2012 SCC 17, refd to. [para. 1].

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

Muscutt et al. v. Courcelles et al. (2002), 160 O.A.C. 1; 60 O.R.(3d) 20; 2002 CarswellOnt 1756 (C.A.), refd to. [para. 7].

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. 10].

Penner v. Niagara Regional Police Services Board et al., [2013] 2 S.C.R. 125; 442 N.R. 140; 304 O.A.C. 106; 2013 SCC 19, refd to. [para. 12].

Counsel:

B. Chambers, for the appellant;

M. Greenaway, for the respondents.

This appeal was heard on December 12, 2014, by Weiler, Feldman and Benotto, JJ.A., of the Ontario Court of Appeal. Feldman, J.A., released the following decision for the court on January 19, 2015.