



COURT OF APPEAL FOR ONTARIO

CITATION: Arsenault v. Nunavut, 2016 ONCA 207

DATE: 20160314

DOCKET: C60865

LaForme, Pardu and Roberts JJ.A.

BETWEEN

Susan Arsenault

Plaintiff (Appellant)

and

Government of Nunavut

Defendant (Respondent)

Michael D. Marin and David Quayat, for the appellant

Jock C. Climie, for the respondent

Heard: March 10, 2016

On appeal from the judgment of Justice Heidi S. Levenson Polowin
    of the Superior Court of Justice, dated July 3, 2015.

ENDORSEMENT

[1]

The appellant sued the Government of Nunavut for wrongful dismissal. The
    motion judge concluded that there was no real and substantial connection
    between the cause of action and Ontario, and that Nunavut had established that
    Nunavut was clearly the more appropriate forum. The appellant does not
    challenge these conclusions on appeal, but submits that the motion judge erred
    in failing to conclude that Ontario was a forum of necessity, because the
    appellant suffers from mental health difficulties, and says she would be
    re-traumatized if her action had to proceed in Nunavut. The appellant made no
    submissions on this issue before the motion judge.

[2]

The appellant stated in her affidavit that harassment by her employer
    caused her to develop severe mental illness. She has filed a report from a
    psychological associate who indicates that a return to Iqaluit could trigger
    symptoms, particularly, if required for legal proceedings. An occupational
    therapist filed a report to the same effect.

[3]

The motion judge dealt with this issue at paras. 84 and 85 of her
    reasons:

The Forum of Necessity Doctrine was briefly referred to in the
    Factum of Ms. Arsenault but her counsel made no further submissions in the oral
    argument of the motion. In
Van Breda
, the Ontario Court of Appeal
    recognized that, in exceptional cases where it is necessary to ensure access to
    justice, a court may assume jurisdiction even in the absence of a real and
    substantial connection to the forum. The Court of Appeal stated that the forum
    of necessity doctrine applies [where] there is no other forum in which the
    plaintiff can reasonably seek relief  (see
Van Breda v. Village Resorts
    Ltd
, 2010 ONCA 84, 98 O.R. (3d) 721 at para. 100). In
West Van Inc. v.
    Daisley
, 2014 ONCA 232, 318 O.A.C. 299, the Ontario Court of Appeal
    reaffirmed the reasonableness test but accepted that reasonableness must be
    strictly construed and that the forum of necessity doctrine is reserved for
    exceptional cases. The Court noted such examples as, the breakdown of
    diplomatic or commercial relations with a foreign State, the need to protect a
    political refugee or the existence of a serious physical threat if the case
    were to be undertaken before a foreign court. The Court stated the doctrine is
    designed for cases like
Bouzari v. Bahremani
, [2011] O.J. No. 5009
    (Ont. Sup. Ct.) [Bouzari]. In
Bouzari
, the Court assumed jurisdiction
    based on the forum of necessity doctrine because it was unreasonable to expect
    the plaintiff, who suffered torture in Iran, to bring his claim in that
    country.

The case at hand is not one of those exceptional cases. While
    Ms. Arsenault has mental health challenges, they do not rise to the level
    contemplated by this doctrine.

[4]

The decision of the motion judge is owed deference. As observed in
Ibrahim
    v. Robinson
, 2015 ONCA 21:

To interfere with the motion judges discretionary decision in
    this case, the court would have to be satisfied that the motion judge
    misdirected himself, gave no or insufficient weight to relevant considerations,
    or came to a decision that is so clearly wrong that it amounts to an injustice
Penner
    v. (Niagara Regional Police Services Board)
, 2013 SCC 19, [2013] 2 S.C.R.
    125, at para. 27.

[5]

We see no error in the motions judges reasons.

[6]

The evidence of the psychological associate was that there was a risk of
    traumatic activation, that it was not advisable for the appellant to return to
    Iqaluit, and that it would be especially challenging for the appellant to
    return to Iqaluit for a legal proceeding. She did not say the appellant could
    not return.

[7]

We note that the respondent is prepared to examine the plaintiff for
    discovery in Ontario. Her counsel noted in his affidavit that examination of a
    trial witness may take place by affidavit or telephone, with leave of the
    court. Should the appellant make the case by admissible evidence on a motion
    before a Nunavut court that her condition requires that she be able to give
    evidence from a remote location, there is no reason to believe that the
    appellants request could not be accommodated.

[8]

Accordingly, the appeal is dismissed with costs to the respondent in the
    agreed sum of $5,000, inclusive of disbursements and applicable taxes.

H.S. LaForme J.A.

G. Pardu J.A.

L.B. Roberts J.A.


