January 12, 2016

Forsythe v. Westfall – An Inconvenient Jurisdictional Connection

Laura Camarra

 

Laura Camarra

An Ontario resident (Forsythe) was in a car crash in BC. The other driver (Westfall) was from Alberta. Where is the appropriate place to sue? The Ontario resident wanted to sue in Ontario, citing the fact her contract of car insurance was entered into in Ontario and the fact she would be suing her own car insurer for under/uninsured coverage in Ontario.

The Ontario Court of Appeal said no, the crash occurred in BC, and the defendant is from Alberta. Ontario was not the right place to sue. Just because an Ontarian has an Ontario car insurance policy does not mean all issues relating to the crash must be dealt with in Ontario. Her policy of insurance is not relevant to the issue of where to sue the Alberta resident for a BC crash.

The Court also rejected the argument the Ontario court should assume jurisdiction by relying on the “forum of necessity doctrine”, which recognizes there will be extraordinary and exceptional cases where the need to ensure access to justice will justify the domestic court’s assumption of jurisdiction. The exception is very narrow, and the plaintiff must establish there is no other forum in which he or she could reasonably obtain access to justice. The Court of Appeal quoted the motions judge:

There is no chance in the immediate case that Ms. Forsythe will be denied access to justice. She remains free to sue in Ontario to enforce her claim against Intact after, or even before, she obtains access to justice for her claim against Mr. Westfall in British Columbia. It may be inconvenient that she is denied one-stop access to justice, but there is no room here for the forum of necessity doctrine.

Implications

The lesson: sue your own insurer in Ontario, and sue the other driver/owner in the province where the crash occurred or where he or she resides or carries on business.

 

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