An insurance claim associated with a tort claim with which a province has no jurisdiction simpliciter does not establish a real and substantial connection between the matter, the parties, and the province

Insurance law – Conflict of laws – Choice of law – Automobile insurance – Unidentified motorist – Uninsured motorist – Jurisdiction – Location of contract

Forsythe v. Westfall, [2015] O.J. No. 509, 2015 ONSC 758, Ontario Superior Court of Justice, February 2, 2015, P.M. Perell J.

The plaintiff was injured while riding as a passenger on a motorcycle after an unidentified motorist swerved into the motorcycle’s lane. The accident occurred in British Columbia. The insured was a resident of Ontario. The owner of the motorcycle was a resident of Alberta. The witnesses resided in British Columbia, Alberta and the U.S.

The motorcycle had not actually collided with the unidentified vehicle. The motorcycle owner’s insurance policy did not provide uninsured automobile coverage in the absence of physical contact between the unidentified automobile and the motorcycle. As a result, the motorcycle was an uninsured automobile under the plaintiff’s policy. Depending on a determination of whether the motorcycle owner was culpable to any degree, the plaintiff may or may not have had a claim under her own insurance policy for uninsured automobile coverage. If the motorcycle owner was culpable to any degree, then he would be liable and an insured driver and there would be no need for uninsured motorist coverage for the plaintiff, but she may still need underinsured coverage. The plaintiff’s insurance policy required her to litigate her claims against her insurer in Ontario.

The plaintiff commenced an action in Ontario against the motorcycle owner and her insurer for coverage for underinsured and uninsured drivers. To protect her claim from being statute-barred, she also commenced an action in BC against the motorcycle owner. The motorcycle owner brought a motion to stay the Ontario action on the grounds that the court did not have jurisdiction simpliciter.

The issue was whether there was a real and substantial connection to Ontario because of the possibility that the only insurance protection available to the plaintiff for her own injuries may be her own personal insurance policy and her claims against her own insurer must be tried in Ontario. The court found the circumstance that a plaintiff may have an insurance claim associated with a tort claim with which Ontario has no jurisdiction simpliciter does not establish a real and substantial connection between the matter, the parties, and Ontario. The court confirmed that an inclusion of a claim against a plaintiff’s automobile insurer does not serve to “bootstrap” jurisdiction over non-resident defendants. The fact that no party was a resident of British Columbia was not relevant to whether Ontario had a real and substantial connection and jurisdiction simpliciter.

This case was digested by Djuna M. Field and edited by David W. Pilley of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact them directly at dfield@harpergrey.com or dpilley@harpergrey.com or review their biographies at http://www.harpergrey.com.

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