Insurance Claim Does Not Ground Jurisdiction Over Tort Claim – By Alan Melamud

The potential claim for coverage from an Ontario based insurer arising from a tort otherwise unconnected to Ontario cannot ground jurisdiction. This was the conclusion of the Ontario Superior Court of Justice in Forsythe v. Westfall, 2015 ONSC 758. The case provides an interesting review of the law of jurisdiction simpliciter, as the Court’s conclusion arose in circumstances where neither the Plaintiff nor the Defendant had any connection to the jurisdiction where the tort had occurred, British Columbia.

In Forsythe, the Plaintiff, a resident of Ontario, had been injured while a passenger on a motorcycle owned and driven by the Defendant, a resident of Alberta. The two were on a road trip in British Columbia when they were injured in an accident. The Defendant claimed that the accident was the result of an oncoming vehicle crossing into his lane of traffic. No contact had occurred however, and following the accident, none of the witnesses could confirm the involvement of the unidentified vehicle.

The unique confluence of circumstances created a situation where to ensure full compensation, the Ontario Plaintiff needed to sue her Ontario-based insurer. This was necessary because if the unidentified driver was entirely at fault, the absence of contact precluded coverage from the Defendant’s Alberta-based insurance but not from the Plaintiff’s insurer. If, however, the Defendant had any degree of responsibility, then his insurance would answer, but the Plaintiff might still require access to her own coverage if the coverage held by the Defendant was insufficient to compensate her fully. Finally, to add further complexity, the Plaintiff’s insurance policy required that any claim against the insurer be brought in Ontario, but the law did not require the Plaintiff to await a determination of liability vis-à-vis the Defendant to commence the action against her insurer.

Accordingly, the Plaintiff commenced her action in Ontario. The Defendant, not wanting to come to Ontario, argued that Ontario lacked jurisdiction simpliciter and that the action should be tried in British Columbia.

The Court rejected the Plaintiff’s argument that Ontario had jurisdiction simpliciter or that it was the forum of necessity. The Court found that neither the absence of any connection of the parties to British Columbia nor the Plaintiff’s Ontario-based insurer could give Ontario jurisdiction simpliciter. Relying on two decisions of the Ontario Court of Appeal, Tamminga v. Tamminga, 2014 ONCA 478 and Gajraj v. DeBernardo (2002), 60 O.R. (3d) 68 (C.A.), the Court held that “the inclusion of a claim against the plaintiff’s automobile insurer did not serve to “bootstrap” jurisdiction over non-resident defendants.” As a matter of principle, the Court held that (1) the absence of a connection between the parties and place of tort does not give a different place jurisdiction simpliciter, and (2) jurisdiction simpliciter over a contract claim does not give jurisdiction over a tort that occurred elsewhere. It is of note, however, that the contract claim in Forsythe was not directly connected to the tort, but rather arose in the aftermath of the tort and was conditional on the resolution of the facts underlying the accident. Both of these factors were central to the Court of Appeal’s conclusion in Tamminga.

Finally, the Court rejected the Plaintiff’s reliance on the forum of necessity doctrine. The Plaintiff was not without a forum where to pursue her rights, but rather was free to pursue her insurer in Ontario and the driver in British Columbia. The Court acknowledged that this might be inconvenient, but inconvenience was not sufficient to require application of the doctrine.


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