



COURT OF APPEAL FOR ONTARIO

CITATION: Ibrahim v. Robinson, 2015 ONCA 21

DATE: 20150119

DOCKET: C58969

Weiler, Feldman and Benotto JJ.A.

BETWEEN

Fadia
    Maria Nazira Ibrahim

and
    Angela Ibrahim

Plaintiffs (Respondents)

and

William Addison Robinson III

Defendant (Appellant)

B. Chambers, for the appellant

M. Greenaway, for the respondents

Heard: December 12, 2014

On appeal from the order of Justice Steven Rogin of the
    Superior Court of Justice, dated February 21, 2014.

Feldman J.A.:

OVERVIEW

[1]

The appellant is the defendant in a motor vehicle collision action
    commenced in Windsor, Ontario. The accident occurred on January 7, 2008 in
    Michigan. Following the expiry of the three-year limitation period in Michigan,
    the appellant brought a motion to dismiss the Ontario action for want of
    jurisdiction. The motion judge did not dismiss the action, relying on the
    forum of necessity exception referred to by this court in
Van Breda v.
    Village Resorts Limited
, 2010 ONCA 84,
    98 O.R. (3d) 721, at para. 100
. The motion judge noted that the
    Supreme Court in its decision in that case specifically declined to address the
    forum of necessity issue: see
Club Resorts Ltd. v. Van Breda
, 2012 SCC
    17, [2012] 1 S.C.R. 572, at paras. 59, 82, 86, 100.

[2]

The motion judge accepted that under the test for assuming jurisdiction as
    it existed before the Supreme Courts decision in
Van Breda
and when
    this action was commenced, there may well have been sufficient connecting
    factors to Ontario for an Ontario court to assume jurisdiction. He pointed to
    the case of
Gordon v. Deiotte
,
    2012 ONSC 1973, 109 O.R. (3d) 626,
as an example of an Ontario
    court assuming jurisdiction in similar circumstances to this case.

[3]

He found that, because the appellant delayed serving the jurisdiction motion
    until it was too late for the respondents to sue in Michigan, the appellant
    effectively denied the respondents access to the Michigan courts and may have
    lulled them into a false sense of security. He concluded that fairness and
    access to justice for the plaintiffs called for the court to assume
    jurisdiction based on forum of necessity. The appellant brought a subsequent
    motion before the same motion judge seeking to introduce further evidence of
    correspondence and emails to try to demonstrate that the respondents were not
    misled about the appellants intention to challenge jurisdiction. The motion
    judge endorsed the record that the new evidence was available on the original
    motion and the appellants only remedy was to appeal.

[4]

The appellant raises two issues on the appeal. (1) He says Ontario lacks
    jurisdiction
simpliciter
over this action and the forum of necessity
    doctrine does not become available simply because a limitation period in the
    proper forum, Michigan, was missed. He adds that it is not the defendants
    responsibility to ensure that the plaintiffs bring their action in the correct
    forum or in a timely manner. (2) The motion judge erred in refusing to admit
    the fresh evidence and in concluding that the appellant lulled the respondents
    into inaction.

ANALYSIS

Forum of necessity

[5]

Justice Sharpe described the forum of necessity doctrine in this courts
    decision in
Van Breda
, at para. 100:

The forum of necessity doctrine recognizes that there will be
    exceptional cases where, despite the absence of a real and substantial
    connection, the need to ensure access to justice will justify the assumption of
    jurisdiction.  The forum of necessity doctrine does not redefine real and
    substantial connection to embrace forum of last resort cases; it operates as
    an exception to the real and substantial connection test.  Where there is no
    other forum in which the plaintiff can reasonably seek relief, there is a
    residual discretion to assume jurisdiction.  In my view, the overriding concern
    for access to justice that motivates the assumption of jurisdiction despite
    inadequate connection with the forum should be accommodated by explicit
    recognition of the forum of necessity exception rather than by distorting the
    real and substantial connection test.

[6]

The Supreme Court noted in its decision in
Van Breda
that
    Sharpe J.A. had raised considerations of fairness in support of the forum of
    necessity doctrine; however, because the issue did not arise on the appeal,
    there was no need for the court to address it: see paras. 59, 82, 86, 100.

[7]

The accident occurred on January 7, 2008. When this action was commenced
    in Ontario in January 2010, this courts decision in
Muscutt v. Courcelles
(2002), 60 O.R. (3d) 20 (C.A.) still governed the
    assumption of jurisdiction
. Counsel for the appellant conceded that
    at the time the claim was brought in Ontario, an Ontario court could arguably
    have assumed jurisdiction under the
Muscutt
test. The motion judge
    noted that counsel did not seriously dispute that proposition on the motion
    below.

[8]

What is unclear from the record before this court is why, following the
    service of the statement of claim, no steps were taken to proceed with this
    action by either side until this motion was finally heard in September 2013.
    For example, the appeal book contains an order obtained by the respondents, granting
    the appellant an extension of time until October 6, 2010 to serve the statement
    of defence. No statement of defence was filed, ostensibly because the appellant
    intended to bring this motion contesting jurisdiction, but waited years to do
    so, with the apparent acquiescence of the respondents.

[9]

Although the appellant swore an affidavit for the purpose of contesting
    jurisdiction in March 2010, he did not serve the motion until June 2011, by
    which time the relevant three-year limitation period in Michigan had expired.
    The motion was not heard until September 2013, after the Supreme Court of
    Canada had released its decision in
Van Breda
. That decision refined
    the real and substantial connection test for determining jurisdiction, with
    the result that in this case there are effectively no longer any applicable
    factors that would ground the assumption of jurisdiction on that basis.

[10]

Finally,
    since the motion judges decision in this case, this court released its
    decision in
West Van Inc. v. Daisley
, 2014 ONCA 232, 119 O.R. (3d)
    481, leave to appeal refused, [2014] S.C.C.A. No. 236, where, at para. 37, Hoy
    A.C.J.O. stated that the expiry of the limitation period in the proper foreign
    forum does not make Ontario the forum of necessity.

[11]

The
    confluence of factors in this case presents a very unique situation where both
    sides of this litigation have been responsible for some delay, and the law has
    developed during the delay period in two ways, both to the detriment of the respondents.
    The unique circumstances are: 1) there were likely sufficient connecting
    factors for Ontario to assume jurisdiction on the basis of the real and
    substantial connection test when the action was commenced; 2) the motion judge
    found that the appellants delayed in bringing their motion until after the
    expiry of the limitation period in Michigan, possibly lulling the respondents
    into a false sense of security; and 3) the law on assuming jurisdiction and on
    forum of necessity changed before both the motion and the appeal respectively.

[12]

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.

[13]

Had
    the motion judge treated the expiry of the Michigan limitation period as a
    sufficient condition for invoking the doctrine of necessity, then this courts
    comments in
West Van
would speak strongly in favour of allowing the
    appeal. However, in this case, the expired limitation period was not the only
    basis for the motion judges exercise of his residual discretion to assume
    jurisdiction. He also based his decision on considerations of fairness and
    access to justice, including the fact that the change in the common law test
    for assumed jurisdiction occurred only after the expiry of the foreign
    limitation period.

[14]

In
    addition, the motion judge took into consideration the appellants unexplained
    lengthy delay in bringing the jurisdiction motion until after the Michigan limitation
    period had expired, which may have lulled the plaintiffs into a false sense of
    security about the jurisdiction issue. I note that although the respondents
    could have started a second action in Michigan before the expiry of the
    limitation period there, they could not maintain two actions and would have had
    to abandon the Ontario action. Before the Supreme Courts decision in
Van
    Breda
or an order of an Ontario court staying the claim, there was no
    reason to do that.

[15]

Given
    the additional factors that influenced the motion judges decision, that
    decision is not inconsistent with this courts comments in
West Van
,
    and should be accorded deference.

Fresh evidence

[16]

Finally,
    I see no basis to interfere with the motion judges decision on the second
    motion not to admit the proposed fresh evidence on the basis that it was all
    available at the time of the original motion. In any event, the correspondence
    consists of some letters and emails that discuss the appellants intention to
    bring a jurisdiction motion, the last of which is dated December 20, 2010, and
    which proposes a motion to be heard on January 18, 2011, which is after the
    expiry of the Michigan limitation period. That motion was eventually brought in
    June, 2011 and heard in September, 2013. The proposed fresh evidence would not
    assist the appellant.

[17]

I
    would therefore dismiss the appeal with costs fixed at $7,500, inclusive of
    disbursements and HST.

Released: KMW JAN 19, 2015

K. Feldman J.A.

I agree. K.M. Weiler
    J.A.

I agree. M.L. Benotto
    J.A.


