Muscutt v. Courcelles (2002), 160 O.A.C. 1 (CA)
MLB headnote and full text
Temp. Cite: [2002] O.A.C. TBEd. MY.065
Chris Muscutt and Daisy Johnston (plaintiffs/respondents) v. Daniel Andrew Courcelles, Timothy Robert Simpson, John Paul Ducharme-Gullins and Guardian Ambulance (defendants/appellants)
(C35934)
Indexed As: Muscutt et al. v. Courcelles et al.
Ontario Court of Appeal
Rosenberg, Feldman and Sharpe, JJ.A.
May 29, 2002.
Summary:
The plaintiff was injured in a motor vehicle accident in Alberta. The defendants were Alberta residents. Following the accident, the plaintiff returned to Ontario. He commenced an action in Ontario and served the statement of claim on the defendants in Alberta. Two defendants moved to set aside service out of jurisdiction and to stay the action, arguing that Ontario lacked jurisdiction, or, alternatively, should decline jurisdiction on the ground that Ontario was not the convenient forum. The defendants also argued that rule 17.02(h) of the Rules of Civil Procedure (permitting service outside of Ontario without leave) was ultra vires the province of Ontario.
The Ontario Superior Court, in a decision reported at [2001] O.T.C. 55, dismissed the defendants’ motion respecting the proper jurisdiction. In a subsequent endorsement, the court held that rule 17.02(h) was not ultra vires. The defendants appealed.
The Ontario Court of Appeal dismissed the appeal.
Conflict of Laws – Topic 603
Jurisdiction – General principles – Jurisdiction simpliciter – The Ontario Court of Appeal stated that “While the real and substantial connection test is a legal rule, the forum non conveniens test is discretionary. The real and substantial connection test involves a fact-specific inquiry, but the test ultimately rests upon legal principles of general application. The question is whether the forum can assume jurisdiction over the claims of plaintiffs in general against defendants in general given the sort of relationship between the case, the parties and the forum. By contrast, the forum non conveniens test is a discretionary test that focuses upon the particular facts of the parties and the case. The question is whether the forum should assert jurisdiction at the suit of this particular plaintiff against this particular defendant. … The real and substantial connection test requires only a real and substantial connection, not the most real and substantial connection. … Further, the residual discretion to decline jurisdiction also suggests that the consideration of fairness and efficiency is not exhausted at the stage of assumed jurisdiction and that there is scope for considering these factors at the forum non conveniens stage. The residual discretion therefore provides both a significant control on assumed jurisdiction and a rationale for lowering the threshold required for the real and substantial connection test.” – See paragraphs 43 and 44.
Conflict of Laws – Topic 603
Jurisdiction – General principles – Jurisdiction simpliciter – The Ontario Court of Appeal discussed the personal subjection approach to determining whether a court should assume jurisdiction against an out-of-province defendant – This approach required a significant degree of contact between the defendant and the forum – The court preferred a broader approach whereby the real and substantial connection test would be interpreted as requiring a connection either between the forum and the defendant or between the forum and the subject matter of the action – The defendant’s contact to the forum was not determinative, but simply a relevant factor to be considered with other factors – See paragraphs 56 to 74.
Conflict of Laws – Topic 603
Jurisdiction – General principles – Jurisdiction simpliciter – At issue was whether Ontario could assume jurisdiction in an action arising from an Alberta motor vehicle accident involving out-of-province defendants – The Ontario Court of Appeal considered the following factors in determining whether Ontario had a real and substantial connection with the subject matter of the action: 1) connection between the forum and the plaintiff’s claim, 2) connection between the forum and the defendant, 3) unfairness to the defendant in assuming jurisdiction, 4) unfairness to the plaintiff in not assuming jurisdiction, 5) involvement of other parties to the suit, 6) the court’s willingness to recognize and enforce an extra-provincial judgment against a domestic defendant rendered on the same jurisdictional basis, 7) whether the case was interprovincial or international in nature, 8) comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere – See paragraphs 75 to 110.
Conflict of Laws – Topic 603
Jurisdiction – General principles – Jurisdiction simpliciter – The Ontario Court of Appeal held that one of the factors to be considered in applying the real and substantial connection test for assumed jurisdiction was the connection between the forum and the defendant – The court stated that “Moran v. Pyle [S.C.C.] holds that conduct outside the territory may render the defendant subject to the jurisdiction of the forum where it was reasonably foreseeable that the defendant’s conduct would result in harm within the jurisdiction. This foreseeability should be distinguished from a situation in which the wrongful act and injury occur outside the jurisdiction and the plaintiff returns and suffers consequential damage. It seems to me that in the latter situation, the fact that it was foreseeable that the plaintiff would return home does not bring the case within the Moran principle.” – See paragraph 83.
Conflict of Laws – Topic 603
Jurisdiction – General principles – Jurisdiction simpliciter – The Ontario Court of Appeal stated that in determining whether to assume jurisdiction, “the involvement of other parties bears upon the real and substantial connection test. The twin goals of avoiding a multiplicity of proceedings and avoiding the risk of inconsistent results are relevant considerations. Where the core of the action involves domestic defendants … the case for assuming jurisdiction against a defendant who might not otherwise be subject to the jurisdiction of Ontario courts is strong. By contrast, where the core of the action involves other foreign defendants, courts should be more wary of assuming jurisdiction simply because there is a claim against a domestic defendant.” – See paragraph 91.
Conflict of Laws – Topic 603
Jurisdiction – General principles – Jurisdiction simpliciter – The Ontario Court of Appeal stated that “In considering whether to assume jurisdiction against an extra-provincial defendant, the court must consider whether it would recognize and enforce an extra-provincial judgment against a domestic defendant rendered on the same jurisdictional basis, whether pursuant to common law principles or any applicable legislation. Every time a court assumes jurisdiction in favour of a domestic plaintiff, the court establishes a standard that will be used to force domestic defendants who are sued elsewhere to attorn to the jurisdiction of the foreign court or face enforcement of a default judgment against them. … It follows that where a court would not be willing to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis, the court cannot assume jurisdiction, because the real and substantial connection test has not been met.” – See paragraph 93.
Conflict of Laws – Topic 603
Jurisdiction – General principles – Jurisdiction simpliciter – The Ontario Court of Appeal discussed the factors to be considered in applying the real and substantial connection test for assumed jurisdiction, including comity – The court stated that “One aspect of comity is that in fashioning jurisdictional rules, courts should consider the standards of jurisdiction, recognition and enforcement that prevail elsewhere. In interprovincial cases, this consideration is unnecessary, since the same standard necessarily applies to assumed jurisdiction, recognition and enforcement within Canada. However, in international cases, it may be helpful to consider international standards, particularly the rules governing assumed jurisdiction and the recognition and enforcement of judgments in the location in which the defendant is situated.” – See paragraph 102.
Conflict of Laws – Topic 1001
Service out of jurisdiction – General principles applicable – Rule 17.02(h) of the Rules of Civil Procedure permitted a party to serve a claim outside Ontario without leave for, inter alia, damages sustained in Ontario – Defendants argued that rule 17.02(h) was ultra vires because it asserted jurisdiction against extra-provincial defendants – The Ontario Court of Appeal rejected the argument – Rule 17.02(h) was procedural in nature and did not by itself confer jurisdiction on the court – Service in accordance with provincial rules of court did not determine the issue of jurisdiction – Service merely ensured that parties to an action received timely notice – Rule 17.02.(h) was part of a procedural scheme that operated within the limits of the real and substantial connection test – A party served under rule 17.02(h) had several means of challenging the court’s jurisdiction on the basis that the test was not met – See paragraphs 46 to 53.
Conflict of Laws – Topic 1661
Actions – General – Forum conveniens – General – The Ontario Court of Appeal stated that “Where more than one forum is capable of assuming jurisdiction, the most appropriate forum is determined through the forum non conveniens doctrine, which allows a court to decline to exercise its jurisdiction on the ground that there is another forum more appropriate to entertain the action.” – The court stated that factors to be considered in determining the most appropriate forum included “the location of the majority of the parties, the location of key witnesses and evidence, contractual provisions that specify applicable law or accord jurisdiction, the avoidance of a multiplicity of proceedings, the applicable law and its weight in comparison to the factual questions to be decided, geographical factors suggesting the natural forum and whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court” – See paragraphs 40 and 41.
Conflict of Laws – Topic 1661
Actions – General – Forum conveniens – General – [See first
Conflict of Laws – Topic 603
].
Conflict of Laws – Topic 1664
Actions – General – Forum conveniens – Considerations – [See first
Conflict of Laws – Topic 1661
].
Conflict of Laws – Topic 7601
Torts – Jurisdiction – Forum conveniens – The plaintiff commenced an action in Ontario arising from an Alberta motor vehicle accident – The defendants were Alberta residents – The Ontario Court of Appeal affirmed that the real and substantial connection test for jurisdiction had been met – Further, the motions judge did not err in refusing to decline jurisdiction – Ontario was the most convenient forum – The inconvenience that would result to the plaintiff if he had to bring the action in Alberta outweighed the defendants’ inconvenience in defending an Ontario action – An Alberta action would require significant effort and expense, since the plaintiff was an Ontario resident and his medical witnesses were in Ontario – For the defendants to defend in Ontario involved minimal inconvenience – Since the action involved a damages assessment rather than a liability dispute and the defendants were insured, it was unlikely that the defendants would need to participate in the trial – See paragraphs 113 to 115.
Conflict of Laws – Topic 7602
Torts – Jurisdiction – Tort occurring outside jurisdiction – The plaintiff, an Ontario resident, commenced an action in Ontario arising from an Alberta motor vehicle accident – The defendants were Alberta residents – The Ontario Court of Appeal held that the real and substantial connection test was met and Ontario could assume jurisdiction – The plaintiff had a substantial connection with Ontario (he had required extensive medical attention in Ontario and his claim was for, inter alia, pain and suffering in Ontario) – Although the defendants did not have a connection to Ontario, assuming jurisdiction would not cause any significant unfairness to the defendants, whose insurance covered suits involving accidents with extra-provincial parties – Not assuming jurisdiction was unfair to the plaintiff, who otherwise would have to litigate in Alberta – Ontario would recognize and enforce judgments from other provinces rendered on the same jurisdictional basis – The fact that it was an interprovincial case weighed in favour of assuming jurisdiction – See paragraphs 75 to 112.
Cases Noticed:
Moran et al. v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393; 1 N.R. 122, consd. [para. 8].
Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81, consd. [para. 9].
Hunt v. T & N plc et al. – see Hunt v. Lac d’Amiante du Québec Ltée et al.
Hunt v. Lac d’Amiante du Québec Ltée et al., [1993] 4 S.C.R. 289; 161 N.R. 81; 37 B.C.A.C. 161; 60 W.A.C. 161, consd. [para. 9].
Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241, consd. [para. 16].
Amchem Products Inc. et al. v. Workers Compensation Board (B.C.), [1993] 1 S.C.R. 897; 150 N.R. 321; 23 B.C.A.C. 1; 39 W.A.C. 1, consd. [para. 17].
Hewitson and Milner v. Fabre (1888), 21 Q.B.D. 6, refd to. [para. 21].
Vaudrey et al. v. Nathan, [1928] W.N. 154 (C.A.), refd to. [para. 21].
Jenner v. Sun Oil Co., [1952] O.R. 240 (H.C.), refd to. [para. 22].
Abbott-Smith v. Governors of University of Toronto (1964), 45 D.L.R.(2d) 672 (N.S.S.C.), refd to. [para. 22].
Ship Hagen, Re, [1908] P. 189, refd to. [para. 23].
Jannock Corp. v. Tamblyn (R.T.) & Partners Ltd. (1975), 8 O.R.(2d) 622 (C.A.), leave to appeal dismissed, [1975] 1 S.C.R. xiii; 8 O.R.(2d) 622, refd to. [para. 24].
Singh v. Howden Petroleum Ltd. (1979), 24 O.R.(2d) 769 (C.A.), refd to. [para. 26].
Vile v. Von Wendt (1979), 26 O.R.(2d) 513 (Div. Ct.), refd to. [para. 28].
Poirier v. Williston (1981), 31 O.R.(2d) 320 (C.A.), affing. (1980), 29 O.R.(2d) 303 (Div. Ct.), refd to. [para. 28].
Indyka v. Indyka, [1969] 1 A.C. 33 (H.L.), refd to. [para. 34].
Lemmex v. Bernard et al. (2001), 149 O.A.C. 343; 51 O.R.(3d) 164 (Div. Ct.), refd to. [para. 43].
Duncan et al. v. Neptunia Corp. et al., [2001] O.T.C. 264; 53 O.R.(3d) 754 (Sup. Ct.), not folld. [para. 47].
International Shoe Co. v. Washington (State) (1945), 326 U.S. 310, refd to. [para. 60].
World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, refd to. [para. 61].
Long v. Citi Club, [1995] O.J. No. 1411 (Gen. Div.), refd to. [para. 62].
MacDonald v. Lasnier (1994), 21 O.R.(3d) 177 (Gen. Div.), refd to. [para. 62].
Jean-Jacques v. Jarjourai, [1996] O.J. No. 5174 (Gen. Div.), refd to. [para. 62].
Brookville Transport Ltd. et al. v. Maine et al. (1997), 189 N.B.R.(2d) 142; 482 A.P.R. 142 (T.D.), refd to. [para. 62].
Negrych v. Campbell’s Cabins (1987) Ltd. et al., [1997] 8 W.W.R. 270; 119 Man.R.(2d) 216 (Q.B.), refd to. [para. 62].
Oakley v. Barry et al. (1998), 166 N.S.R.(2d) 282; 498 A.P.R. 282; 158 D.L.R.(4th) 679 (C.A.), consd. [para. 63].
O’Brien v. Canada (Attorney General) et al. (2002), 201 N.S.R.(2d) 338; 629 A.P.R. 338 (C.A.), refd to. [para. 66].
McNichol Estate v. Woldnik et al. (2001), 150 O.A.C. 68; 13 C.P.C.(5th) 61 (C.A.), refd to. [para. 67].
Ell v. Con-Pro Industries Ltd. and Kowalsky (1992), 11 B.C.A.C. 174; 22 W.A.C. 174 (C.A.), refd to. [para. 69].
Jordan v. Schatz (2000), 140 B.C.A.C. 86; 229 W.A.C. 86; 77 B.C.L.R.(3d) 134 (C.A.), refd to. [para. 69].
Pacific International Securities Inc. v. Drake Capital Securities Inc. et al. (2000), 145 B.C.A.C. 221; 237 W.A.C. 221; 194 D.L.R.(4th) 716 (C.A.), refd to. [para. 69].
Cook et al. v. Parcel, Mauro, Hultin & Spaanstra, P.C. (1997), 87 B.C.A.C. 97; 143 W.A.C. 97; 143 D.L.R.(4th) 213 (C.A.), refd to. [para. 69].
Hughes Communications Inc. v. Spar Aerospace Ltd. et al., [2000] J.Q. No. 1717 (C.A.), leave to appeal granted (2000), 270 N.R. 198 (S.C.C.), refd to. [para. 71].
Feigelman et al. v. Aetna Financial Services Ltd., Lax and Burke, [1985] 1 S.C.R. 2; 56 N.R. 241; 32 Man.R.(2d) 241, refd to. [para. 98].
Aetna Financial Services Ltd. v. Feigelman et al. – see Feigelman et al. v. Aetna Financial Services Ltd., Lax and Burke.
Hilton v. Guyot (1895), 159 U.S. 113, refd to. [para. 101].
Flaherty v. Girgis, [1985] 4 N.S.W.L.R. 248 (C.A.), affd. on other grounds (1987), F.C. 87/017 (H.C.A.), refd to. [para. 104].
Shevill v. Presse Alliance S.A., [1995] 2 A.C. 18 (E.C.J.), refd to. [para. 106].
Shevill v. Presse Alliance S.A., [1996] A.C. 959 (H.L.), refd to. [para. 106].
Handelskwerkerij G.J. Bier BV v. Mines de potasse d’Alsace SA, [1976] E.C.R. 1735, refd to. [para. 106].
Antares Shipping Corp. v. Ship Capricorn et al., [1977] 2 S.C.R. 422; 7 N.R. 518, refd to. [para. 114].
Statutes Noticed:
Rules of Civil Procedure (Ont.), rule 17.02(h), rule 17.06 [para. 3].
Authors and Works Noticed:
Black, V., Territorial Jurisdiction Based on the Plaintiff’s Residence: Dennis v. Salvation Army Grace General Hospital (1998), 14 C.P.C.(4th) 222, p. 232 [para. 79].
Black, V., The Other Side of Morguard: New Limits on Judicial Jurisdiction (1993), 22 C.B.L.J. 4, pp. 21, 22 [para. 99].
Blom, J., The Enforcement of Foreign Judgments: Morguard Goes Forth into the World (1997), 28 C.B.L.J. 373, pp. 375, 376 [para. 99]; 377, 378 [para. 43].
Blom, J., Case Comment on Morguard Investments Ltd. et al. v. De Savoye (1991), 70 Can. Bar Rev. 733, p. 741 [para. 57].
Castel, J.-G., and Walker, J., Canadian Conflict of Laws (5th Ed. 2002), para. 1.40 [para. 44].
Coakeley, S., Finkle, P., and Barrington, L., Morguard Investments Ltd.: Emerging International Implications (1992), 15 Dal. L.J. 537, generally [para. 99].
Edinger, Elizabeth, Morguard v. De Savoye: Subsequent Developments (1993), 22 C.B.L.J. 29, p. 33 [para. 43].
Hogg, Peter W., Constitutional Law in Canada (2000) (Looseleaf), pp. 13 to 15 [para. 49].
Watson, G.D. and Au, F., Constitutional Limits on Service Ex Juris: Unanswered Questions from Morguard (2000), 23 Adv. Q. 167, pp. 198 to 211 [para. 72]; 211 to 214 [para. 44].
Watson, G.D. and Jeffrey, L., Holmstead and Watson: Ontario Civil Procedure (2001), p. 17-9 [para. 51].
Counsel:
Malcolm N. Ruby, for the appellants, Simpson and Ducharme-Gullins;
Leonard P. Collier, for the appellants, Courcelles and Guardian Ambulance;
Stephen R. Schenke and Julie Lee for the respondents;
Michel Y. Hélie for the intervener, Attorney General of Ontario.
This appeal was heard on February 7, 2002, by Rosenberg, Feldman and Sharpe, JJ.A., of the Ontario Court of Appeal. Sharpe J.A., delivered the following decision on May 29, 2002.
