Rennie Forsythe v. Michael Westfall, et al.

(Ontario) (Civil) (By Leave)




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Courts — Jurisdiction — Presumptive connecting factors — Forum non conveniens — Forum of necessity doctrine — An Ontario resident was a passenger on an Alberta resident’s motorcycle when they were involved in an accident in British Columbia — Whether the Ontario resident’s insurance contract is a presumptive connecting factor that gives Ontario jurisdiction over the entire dispute, including her claim against the Alberta resident? — Whether the Ontario Court of Appeal’s decision in Tamminga v. Tamminga, 2014 ONCA 478, should be overruled or distinguished? — Whether the motion judge erred by not extending the forum of necessity doctrine to the circumstances of this case?

The applicant, Ms. Rennie Forsythe, was a passenger on a motorcycle owned and operated by the respondent Mr. Michael Westfall, an Alberta resident, when they were involved in a single vehicle accident in British Columbia in 2012. Mr. Westfall claims the accident was caused solely by an unidentified driver. Ms. Forsythe was injured in the accident. She is an Ontario resident. She was treated for her injuries initially in British Columbia and Alberta, and thereafter in her home province of Ontario. Ms. Forsythe seeks damages for her injuries and commenced an action against Mr. Westfall, his insurer Jevco Insurance Company, her own insurer AXA Insurance (Canada), and John Doe, representing the unidentified driver. Mr. Westfall moved to have the action against him stayed on the basis that the Ontario court lacked jurisdiction over him. The motion judge agreed with Mr. Westfall’s position that there was not a real and substantial connection between the matter, the parties and Ontario. He followed the Ontario Court of Appeal’s decision in Tamminga v. Tamminga, 2014 ONCA 478, and held that Ms. Forsythe’s Ontario automobile insurance policy was not a factor that satisfied the real and substantial connection test. Ms. Forsythe appealed that decision. Her argument was that the Tamminga decision was wrongly decided and should be overturned. For that reason, the appeal was heard by a five-judge panel of the Court of Appeal. The appeal was dismissed.

Lower Court Rulings

February 2, 2015
Ontario Superior Court of Justice

CV-14-502989, 2015 ONSC 758
Motion to stay action against respondent Michael Westfall granted.
September 9, 2015
Court of Appeal for Ontario

C60047, 2015 ONCA 810
Appeal dismissed.