In Orum v. Maksuta, 2021 ONSC 2974, the plaintiff was struck by a motor vehicle in Michigan. He commenced an action in Ontario against the driver and also against his Ontario insurer for uninsured/underinsured coverage. He did not commence an action in Michigan and the limitation period to do so expired.
The defendant driver brought a motion for a dismissal or stay of the action against her on the basis that the Ontario court does not have jurisdiction or, alternatively, that Ontario is not the convenient forum.
In Club Resorts Ltd. v. VanBreda, 2017 SCC 17, the Supreme Court of Canada outlined four presumptive connecting factors that entitle a court to assume jurisdiction over a dispute:
- The defendant is domiciled or resident in the province;
- The defendant carries on business in the province;
- The tort was committed in the province; and
- A contract connected with the dispute was made in the province.
Justice Hebner held that the insurance contract between the plaintiff and his insurer does not permit the plaintiff to sue the defendant driver in Ontario. Justice Hebner stated that nothing about the insurance contract between the plaintiff and his insurer links the subject matter of the litigation to Ontario as it pertains to the plaintiff’s claim against the driver.
Justice Hebner noted that, if she were to conclude otherwise, then every motor vehicle accident in another jurisdiction involving an Ontario resident could be litigated in Ontario simply by adding the plaintiff’s own Ontario insurance company as a defendant.
Moreover, Justice Hebner rejected the plaintiff’s argument that Ontario is the “forum of necessity”. Her Honour noted that the doctrine of forum of necessity is a very narrow exception to the real and substation connection test. The plaintiff must establish that there is no other forum in which he or she reasonably could obtain access to justice.
Justice Hebner agreed with prior decisions that the expiry of a limitation period in the proper foreign forum does not make Ontario the forum of necessity. Justice Hebner held that the plaintiff ought to have commenced two actions: a tort action in Michigan against the driver and a contract action in Ontario against the insurer.
Lastly, Justice Hebner rejected the plaintiff’s argument that the defendant driver should have brought the jurisdiction motion prior to the expiry of the limitation period in Michigan. Her Honour said that she would not place this responsibility on the defendant. Moreover, the plaintiff was aware that jurisdiction was an issue and did nothing to pursue his case within the limitation period in Michigan. This was not the defendant’s fault.
As a result, the action was stayed against the defendant driver.