Ontario Civil


Conflict of Laws

Torts

Choice of law

The court held that Ontario did not have jurisdiction simpliciter

Motion judge stayed plaintiffs’ action against defendant on basis that it had no real and substantial connection to Ontario. Plaintiffs appealed. Appeal dismissed. None of presumptive factors set out in certain case law was satisfied on facts of case. Motion judge found that defendant was Alberta corporation, resident or domiciled in Alberta, and that accident giving rise to action occurred when plaintiff GC was staying at hotel while he worked temporarily in Alberta. These findings were open to motion judge on record before him, and they were fatal to claim that Ontario had jurisdiction simpliciter. There was no basis to pierce corporate veil, or to create new presumptive factor, simply because there was evidence that one of directors of corporation appeared to have resided in Ontario for period of time. Necessity argument was made because limitation period for bringing action in Alberta had expired, and plaintiffs would be unable to bring their action if they were not permitted to do so in Ontario. Forum of necessity doctrine was exception to real and substantial connection test, and operated only in extraordinary and exceptional circumstances. This was not appropriate case for exercise of court’s discretion. Plaintiffs made tactical decision not to bring their action in Alberta, and it would not be appropriate to relieve them of consequences of that decision. Effect was not given to plaintiffs’ argument that they were prejudiced by failure of defendant to provide them with information necessary for their defence of motion.

Cook v. 1293037 Alberta Ltd. (2016), 2016 CarswellOnt 17394, 2016 ONCA 836, R.A. Blair J.A., Gloria Epstein J.A., and Grant Huscroft J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 19523, 2015 ONSC 7989, Mulligan J. (Ont. S.C.J.).

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