What should you do if you’ve been injured outside of Ontario? An update on Club Resorts Ltd v Van Breda

Introduction

A motor vehicle accident is a stressful event, but if you are involved in one outside of your home province it can be even more confusing. If legal action is necessary to get the compensation you deserve, it isn’t always immediately clear if you should sue in Ontario or in the place you were injured. In March 2012, the Supreme Court of Canada (“SCC”) released Club Resorts Ltd v Van Breda (“Van Breda”) which hoped to clarify the issue. Since then, there have been several decisions in the Ontario courts relying on Van Breda. This article will outline the cases and discuss the factors to consider when deciding where to sue.

Discussion

In Canada, the standard for determining jurisdiction has long been the existence of a ‘real and substantial connection’. This broad definition was clarified by the SCC in Van Breda¹. The decision provides four presumptive factors that should exist in order for a court to have jurisdiction over a matter. That list is not exhaustive, but if established, the plaintiff should be able to bring his or her action in that court and the court can hear the matter. The SCC opined that a court should not assume jurisdiction where there are no existing or new connecting factors².

These factors include:

1. the defendant is domiciled or resident in the province;
2. the defendant carries on business in the province;
3. the tort was committed in the province; and
4. a contract connected with the dispute was made in the province³.

Therefore, if a plaintiff can establish the four factors above, he or she would likely be able to establish jurisdiction in the province where he or she lives and bring a law suit. The burden of proving these connecting factors is on the party (plaintiff) who should argue that the court in question has jurisdiction. The presence of connecting factors is rebuttable by the defendant. It is difficult to rebut the presumption of jurisdiction where the factor relied upon is the location of the commission of a tort⁴. If there is no presumptive connecting factor, or it is successfully rebutted by the defendant, the court lacks jurisdiction and the matter should be set aside in favour of another jurisdiction⁵.

We represent many Ontario clients injured in accidents in New York. Take for instance if an Ontario resident was injured in an accident that occurred in New York with a New York driver. Van Breda suggests that if an Ontario resident is involved with a New York driver in an accident in New York State that Ontario resident may have to bring his or her action in New York unless the New York driver has other connections with Ontario.

Other factors may exist that a court must consider when determining whether or not Ontario is the proper place for the matter to be heard as opposed to another jurisdiction.

Some recent case law examples are as follows

Cesario v Gondek⁶:

• Plaintiff was an Ontario resident. The court held that Ontario had jurisdiction despite the accident occurring in New York with New York residents because there was a second accident in Ontario. The plaintiff sued an Ontario insurer and driver of vehicle. In denying the stay, the Court held that to not do so could result in three separate actions in two different jurisdictions.
• A tort suffered outside of Ontario, but the subsequent damages suffered inside Ontario, will not suffice as a presumptive connecting factor.
• Where there are multiple defendants, the residency of the defendants should not be analyzed on an individual basis. To do so could split the case as the defendants could each be from a different jurisdiction. The principle of fairness and justice referenced by LeBel J. in Van Breda caused this court to conclude that where there are multiple defendants, at least one of whom is resident in the Province of Ontario, or domiciled in the Province of Ontario 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. See para. 28.
• This rationale supported keeping all the actions in Ontario.

Paraie v Cangemi⁷:

• Plaintiff was an Ontario resident. Accident occurred in New York with New York resident. All medical treatment occurred in Ontario. The plaintiff sued his own insurer to realize any damages above the cap set by the defendant’s insurer.
• Court denied Ontario jurisdiction. If Plaintiff’s insurer refused to pay difference owed to Plaintiff, then Plaintiff could commence action in Ontario. Insurance contract was not a presumptive connecting factor.

Gordon v Deiotte⁸:

• The Court held that given the proximity and nature of the Ontario and Michigan border, the residents of the two border communities (Sault Ste. Marie) naturally share many connections.

Wilson v Riu⁹:

• Court held that the Ontario travel agency carried on business in Ontario, this presumption was rebutted by the remoteness of the horseback riding contract entered into by the plaintiffs. In the event that the Court did have jurisdiction, Jamaica was the more appropriate forum.

Haufler v Hotel Riu Palace Cabo San Lucas¹⁰:

• Personal injury claim arose out of accident at a Mexican resort. The Court held that there were no presumptive connecting factors. The Court held that the resort was not carrying on business in Ontario through any agency relationship and that having a relationship with the vacation provider, Sunquest, was not sufficient to establish a connection.

Conclusion

It is crucial that injured Ontario residents speak with a personal injury lawyer because an injured party may have to bring his or her action in another jurisdiction other than Ontario. Further jurisdictions like New York and Ontario, have different limitation periods. Limitation periods are the periods of time in which a plaintiff must bring an action against a defendant. Failing to bring an action within the limitations period will preclude a plaintiff from suing a defendant. Besides different limitation periods, injured parties in a motor vehicle accident are entitled to Accident Benefits through their motor vehicle insurer and those Benefits are different in Ontario and New York and other jurisdictions.

It is important that you speak with a personal injury lawyer about your accident as location, date of accident and identity of involved parties are crucial in determining your rights and the most appropriate jurisdiction for you to bring an action.

¹ 2012 SCC 17.

² Van Breda at 94.

³ Van Breda at 91.

⁴ Van Breda at 96-98.

⁵ Van Breda at 101.

⁶ 2012 ONSC 4563.

⁷ 2012 ONSC 6341.

⁸ 2012 ONSC 1973.

⁹ 2012 ONSC 6840.

¹⁰ 2013 ONSC 6044.