Case Update: Cesario v. Gondek
The Plaintiffs were involved in a motor vehicle accident in New York State in the United States of America and in a second accident four weeks later in Ontario. The Plaintiffs brought an action for damages arising out of both accidents and are also suing their own insurer pursuant to under insured provisions of their automobile insurance policy. The New York Defendants insurer is registered with the Financial Services Commission of Ontario have an address in Toronto for consumer clients.
The issue here was whether or not the courts in Ontario were the appropriate jurisdiction for the matter to be heard.
For the Superior Court of Justice (“SCJ”), Edwards J held that there was a real and substantial connection between Ontario and the actions existing where at least one of multiple defendants’ is resident, domiciled, or ordinarily does business in Ontario.
In Club Resorts Ltd. v. Van Breda (“Van Breda”) the Supreme Court of Canada (“SCC”) made it clear that the fact that the plaintiffs may be suffering damages in Ontario, arising out of a tort committed outside of the province, will not suffice to allow the SCJ of Ontario to assume jurisdiction. As to the first presumptive factor whether the defendant is domiciled or resident in the province, his motion raises for determination whether the SCC in Van Breda was referring to the defendant being domiciled or resident in the province as being the moving defendant or whether any defendant in the action domiciled or resident in the province was sufficient for a connecting factor.
If the position of the New York defendants was accepted, the plaintiffs could be forced to litigate three separate actions; one of which would be heard in the State of New York and two of which would be heard in Ontario. Such a situation would, adopting the language of Van Breda, breach the principles of fairness and natural justice.
During the course of the argument, the trial judge posed to counsel a hypothetical situation which highlights the potential absurdity of who the moving party might be seeking to fall within the language of a connecting factor being “the defendant”. If the facts before this court had involved a motor vehicle accident occurring in New York involving a plaintiff resident in Ontario, a defendant resident in Ontario and a defendant resident in New York, and if the moving party was the New York resident defendant, then that party could argue that he or she not being domiciled or resident in the province clearly was not a connecting factor and Ontario should not assume jurisdiction. If on the other hand the moving party was the Ontario defendant, then that defendant could argue that he or she was domiciled or resident in the province and there would be a connecting factor to Ontario. In the situation where the moving party was the New York defendant, there would be no presumptive connecting factor established and this would result in the inevitable splitting of the case, which is precisely what the SCC intended to avoid with a multiplicity of proceedings.
Unquestionably, the need for predictability and stability reference by the court in Van Breda are critical ingredients for a conflict system. The reality of this case as it relates to the New York defendants is really a fight between the plaintiffs and Liberty Mutual (“LM”), the insurer of the New York defendants. LM is registered with the FSCO. LM must have known that there could be a day when one of its insured would be involved in an accident with an Ontario resident. It must have been within the contemplation of LM that their New York State insured could be involved in a global assessment of damages arising out of more than one motor vehicle accident. These are precisely the types of cases that end up before our courts. To force an Ontario litigant to split his or her case between more than one jurisdiction would not be doing justice between the parties.
The principle fairness and justice referenced by the court in Van Breda caused the court to conclude that where there are multiple defendants, at least one of whom is resident in Ontario, or domiciled in Ontario (as were the facts of this case), then there is a sufficient real and substantial connection existing such that the court should assume jurisdiction over all aspects of the case, including that aspect of the case involving the New York defendants.
The New York defendants did not address the doctrine of forum non-conveniens (that is, there exists a more appropriate jurisdiction) and the exercise of the court’s jurisdiction. Forum non-conveniens comes into play once jurisdiction has been established. It is has no relevance to the jurisdictional analysis itself. In fact, as pointed out in Van Breda, once jurisdiction has been established, if the defendant does not raiser further objections, the litigation proceeds before the court of the forum. The court cannot decline to exercise its jurisdiction unless the defendant invokes forum non-conveniens. The decision to raise this doctrine rests with the parties, not with the court seized of the claim.
As this issue was not raised by the New York defendants, in accordance with the aforesaid comments from Van Breda, this court shall remain seized of the claim. Thus, court dismissed the motion by the defendants.
Nicholson Gluckstein Lawyers