



COURT OF APPEAL FOR ONTARIO

CITATION: Tamminga v. Tamminga, 2014 ONCA 478

DATE: 20140618

DOCKET: C57444

Juriansz, Tulloch and Strathy JJ.A.

BETWEEN

Karen Tamminga

Plaintiff (Appellant)

and

William Tamminga
,
Tamminga Farms Ltd
.
    and State Farm Mutual Automobile Insurance Company

Defendants (
Respondents
)

John J. Adair, for the appellant

Rahool P. Agarwal and Guy White, for the respondents

Heard: May 2, 2014

On appeal from the order of Justice Lois B. Roberts of
    the Superior Court of Justice, dated July 8, 2013, with reasons reported at
    [2013] O.J. No. 4515.

Strathy J.A.:

Introduction

[1]

An Ontario resident was injured when she fell off a truck in Alberta.
    She commenced an action in the Ontario Superior Court of Justice against the
    owner
and operator of the truck, who lives in Alberta, and a corporate co-owner of
    the truck, which is registered and carries on business in Alberta. She also
    sued her Ontario automobile insurer. The issue is whether her insurance
    contract is a sufficient presumptive connecting factor under
Club Resorts
    Ltd. v. Van Breda
, 2012 SCC 17, [2012] 1 S.C.R. 572 to give this court
    jurisdiction over the non-resident defendants. For the reasons that follow, I
    conclude that it is not and would dismiss this appeal from the motion judges
    order staying the action against those defendants.

The facts

[2]

The appellant, Karen Tamminga, lives in Ontario. She was injured in
    Alberta while a passenger on a truck operated by her relative, the respondent William
    Tamminga. Mr. Tamminga and his company, the respondent Tamminga Farms Inc.,
    owned the truck. Mr. Tamminga is an Alberta resident and Tamminga Farms carries
    on business exclusively in Alberta.

[3]

The appellant had surgery in Alberta after the accident and returned to
    Ontario where she had additional treatments.

[4]

Several months after the accident, the appellant commenced an action against
    the respondents in the Superior Court of Justice. She sued State Farm in the
    same action, claiming uninsured or underinsured coverage under her standard
    automobile policy.
[1]
In response, the respondents brought a motion to stay the proceeding based on absence
    of jurisdiction or, alternatively,
forum non conveniens
. The appellant
    subsequently amended her pleading to include a claim against State Farm for
    statutory accident benefits.

The motion judges reasons

[5]

The motion judge granted the respondents motion and stayed the
    proceeding against them. She concluded the court lacked jurisdiction
simpliciter
over the respondents. The appellants residence in Ontario and the damages she suffered
    in Ontario were not presumptive connecting factors under
Van Breda
. Nor
    was the fact that the respondents might be proper parties to the claim against
    State Farm.

[6]

The motion judge rejected the appellants submission that the arrangement
    she made with Mr. Tamminga to visit him on his farm was a contractual
    connecting factor. Nor was her insurance contract with State Farm a contract
    connected with the dispute between the appellant and the respondents. The
    respondents were not parties to the insurance contract and the appellant had a
    direct right of action against State Farm without having to join the respondents.

[7]

Having found the appellant had not discharged the burden of identifying
    a presumptive connecting factor, the motion judge stayed the action. Although
    not required to address the
forum conveniens

issue, she found
    that Alberta was, in any event, the convenient forum.

[8]

I will begin by summarizing the
Van Breda

decision.

Van Breda

[9]

Van Breda

is the leading authority on jurisdiction over
    non-resident tortfeasors and torts occurring outside Ontario. There, the
    Supreme Court of Canada set out a framework for the assumption of jurisdiction
    in tort cases that was intended to address the need for certainty and
    predictability. It identified a list of connecting factors that would permit
    the court to presumptively assume jurisdiction.

[10]

Justice
    LeBel, who gave the judgment on behalf of the Supreme Court, identified the
    following as presumptive connecting factors in tort cases, at para. 90:

(a) the
    defendant is domiciled or resident in the province;

(b) the
    defendant carries on business in the province;

(c) the tort
    was committed in the province; and

(d) a
    contract connected with the dispute was made in the province.

[11]

LeBel
    J. also identified certain factors that are
not

presumptively
    connecting. The presence of the plaintiff in the jurisdiction is
not
a
    presumptive connecting factor: para. 86. Nor is the fact that damages were
    sustained in the jurisdiction: para. 89. Nor is the combined effect of a number
    of non-connecting factors: para. 93.

[12]

Where
    a presumptive connecting factor is established, the burden shifts to the
    defendant to show the connection between the subject matter of the litigation
    and the forum is weak. Justice LeBel suggested that in the case of a contractual
    connecting factor, the presumption of jurisdiction can be rebutted by showing
    that the contract has little or nothing to do with the subject matter of the
    litigation: para. 96.

[13]

If
    jurisdiction is established, the inquiry turns to
forum conveniens
.

[14]

Justice
    LeBel noted that the list of presumptive connecting factors is not necessarily
    complete. Over time, new factors may be identified that would give presumptive
    jurisdiction. In identifying such factors, the court will look to the degree of
    similarity between the connecting factor and the established factors, and the
    treatment of the proposed connecting factor in the case law, in statute law and
    in private international law and other legal systems: para. 91. The new
    presumptive connecting factor must point to a relationship between the subject
    matter of the litigation and the forum such that it would be reasonable to
    expect that the defendant would be called to answer legal proceedings in that
    forum: para. 92. The strength of the relationship can be assessed using the
    values of order, fairness and comity.

[15]

Justice
    LeBel summarized the new approach at para. 100 as follows:

To recap, to meet the common law
    real and substantial connection test, the party arguing that the court should
    assume jurisdiction has the burden of identifying a presumptive connecting
    factor that links the subject matter of the litigation to the forum. In these
    reasons, I have listed some presumptive connecting factors for tort claims.
    This list is not exhaustive, however, and courts may, over time, identify
    additional presumptive factors. The presumption of jurisdiction that arises
    where a recognized presumptive connecting factor - whether listed or new -
    exists is not irrebuttable. The burden of rebutting it rests on the party challenging
    the assumption of jurisdiction. If the court concludes that it lacks
    jurisdiction because none of the presumptive connecting factors exist or
    because the presumption of jurisdiction that flows from one of those factors
    has been rebutted, it must dismiss or stay the action, subject to the possible
    application of the forum of necessity doctrine, which I need not address in
    these reasons. If jurisdiction is established, the claim may proceed, subject
    to the court's discretion to stay the proceedings on the basis of the doctrine
    of
forum non conveniens
.

[16]

The
    facts of
Van Breda

give some guidance about the role of a
    contract connected with the dispute as a connecting factor. Ms. Van Breda
    sustained catastrophic injuries while at a resort in Cuba, allegedly as a
    result of the negligence of the resort operator, Club Resorts. Although she and
    her spouse were Ontario residents, they moved to Alberta after the accident and
    then to British Columbia, where most of her damages and pain and suffering
    occurred. Club Resorts was incorporated in the Cayman Islands. There was little
    evidence of factual connections to Ontario and LeBel J. did not accept that
    Club Resorts advertising in Ontario gave rise to a connection.

[17]

However,
    Ms. Van Bredas spouse, Mr. Berg, was a professional squash player and had a
    contractual relationship with a travel agency that recruited squash and tennis
    professionals for Club Resorts. Mr. Berg was to give lessons to guests at the
    resort in exchange for free room and board for himself and Ms. Van Breda. Thus,
    LeBel J. found at para. 116 that Ontario had jurisdiction because [a] contract
    was entered into in Ontario and a relationship was thus created in Ontario
    between Mr. Berg, Club Resorts and Ms. Van Breda, who was brought within the
    scope of this relationship by the terms of the contract.  He added at para.
    117 that [T]he events that gave rise to the claim flowed from the relationship
    created by the contract. The contract was a presumptive connecting factor that
    entitled the court to assume jurisdiction over the out-of-province defendant.

The parties positions on appeal

[18]

The
    appellant acknowledges that, absent her insurance contract with State Farm,
Van

Breda

does not support jurisdiction in this case. She does not suggest
    that there is any basis for the recognition of a new presumptive connecting
    factor.

[19]

The
    appellant submits the motion judge erred in finding that State Farms insurance
    policy was not a contract connected with the dispute and thus a presumptive
    connecting factor under
Van Breda
.
She submits that the
    threshold to establish a presumptive connecting factor is a low one. Relying on
    the facts of
Van Breda

itself, she submits that the defendant need
    not be a party to the contract. Moreover, the strength of the connection between
    the contract and the dispute is a factor to be considered at the second stage
    of the
Van Breda
analysis, when the defendant may rebut the
    connection, and not the first stage. She says that, having established the
    presumptive connecting factor, the onus was on the respondents to show that the
    connection was a weak one. The respondents failed to discharge their burden and
    the action should have been permitted to proceed in Ontario.

[20]

The
    respondents submit the motion judge correctly found that the appellants
    insurance contract was not connected to the dispute so as to bring them under
    Ontarios jurisdiction. Unlike
Van Breda
, where the plaintiffs injury
    occurred in the context of performance of the contract, the insurance contract
    in this case had nothing to do with the events giving rise to the tort claim.
    The insurance contract only became pertinent
after
the tort had
    occurred. The appellant could pursue her direct right of action against State
    Farm in Ontario without any need to involve the respondents. Even if the
    contract were somehow connected to the tort claim, the speculative and
    contingent nature of the claim against State Farm would make it a weak and
    hypothetical connection.

Analysis

[21]

This
    court considered the contractual connecting factor in
Export Packers Co. v.
    SPI International Transportation,
2012 ONCA 481. The plaintiff, a dealer in
    food products, had purchased a shipment of pork in Quebec and stored it
    temporarily in a warehouse used by the vendor and operated by a Quebec company
    called EDN. The plaintiff then sold the pork to a Florida company and contracted
    with the defendant, SPI, to arrange for the transportation of the pork from EDNs
    warehouse to Florida. SPI, in turn, engaged an Ontario company to actually
    truck the cargo. Unfortunately, EDN mistakenly released the cargo to a
    fraudster, who absconded with it.

[22]

The
    plaintiff sued SPI in Ontario and SPI in turn brought third party proceedings
    against EDN, asserting that it negligently released the cargo to the fraudster
    without obtaining proper identification.

[23]

This
    court affirmed the motion judges dismissal of the claim against EDN on the
    basis of lack of jurisdiction. The appellant had argued that there were several
    contracts connected with the dispute. This court noted, however, that the
    contracts in question had no connection with the proposed third party:

The three contracts relied upon by
    the appellant relate to arrangements between the owner, the broker and the
    proposed carrier of the cargo. They have no connection to EDN other than they
    anticipate that the cargo would be picked up at EDN's warehouse in Quebec. The
    dispute in issue between SPI and EDN relates solely to the alleged negligence
    of EDN in releasing the cargo. The contracts relied upon do not address the
    issue of release of the cargo by EDN as storer. That dispute will be resolved
    according to the laws of Quebec. (para. 14)

[24]

This
    court concluded, at para. 16, that there was no contract sufficiently
    connected to the dispute to raise a presumption of a real and substantial
    connection to Ontario. Moreover, the contract between EDN and its customer, the
    company that had sold the pork to the plaintiff, was expressly subject to the
    law and jurisdiction of Quebec.

[25]

In
    comparison with
Export Packers Co.
, the contract in the present case is
    even further removed from the events giving rise to the dispute. An automobile
    insurance contract anticipates accidents generally, but the tortfeasor will
    not be identifiable in advance. Unlike the contract in
Van Breda
,
    there is nothing that connects the appellants insurance contract to the
    respondents. They are not parties to or beneficiaries of the contract. The
    appellant was not visiting the farm in Alberta for any reason related to the
    contract. The connection between the insurance policy and the dispute only
    arises in the aftermath of the tort and its application is conditional on the
    outcome of the appellants claim against the tortfeasors.

[26]

In
    a word, there is no nexus between the insurance contract and the respondents.

[27]

This
    conclusion is consistent with the decision of this court in
Gajraj v.
    DeBernardo
(2002), 60 O.R. (3d) 68 (C.A.), one of the
Muscutt

companion
    cases. There, Sharpe J.A., writing for the court, held that the inclusion of a
    claim against the plaintiffs automobile insurer did not serve to bootstrap
    jurisdiction over the non-resident defendants:

In my view, on the facts of this case, the claim against
    Allstate does not fortify the case for assuming jurisdiction against the New
    York defendants. At this stage of the proceedings, the claim against Allstate
    is entirely speculative in nature. Counsel for the plaintiffs conceded that
    joining Allstate was a purely precautionary measure and that the plaintiffs do
    not at present know whether or not the New York defendants have adequate
    insurance coverage. It seems to me that this situation is very different from
    the situation in
McNichol Estate v. Woldnik

(2001), 150 O.A.C. 68
.
    In
McNichol
, the core of the plaintiff's claim was against the domestic
    defendants and adding the foreign defendant was necessary to avoid a
    multiplicity of proceedings. By contrast, here the core of the claim is against
    the New York defendants and the claim against the Ontario defendant is entirely
    secondary and contingent. Jurisdiction over claims against extra-provincial
    defendants should not be bootstrapped by such a secondary and contingent claim
    against a provincial defendant. (para. 20)

[28]

It
    is also consistent with the prevailing line of authority in the Ontario Superior
    Court of Justice. In three recent cases of Ontario residents involved in


automobile accidents in the state of New York, judges
    of that court have held that the plaintiffs insurance policy is not a
    contract connected with the dispute:
Misyura v. Walton
, 2012 ONSC 5397;

Paraie v. Cangemi
,
2012 ONSC 6341;
Mitchell v. Jeckovich
,
2013 ONSC 7494
.
In both
Misyura
and
Paraie,
the court
    was influenced by the speculative and contingent nature of claims for uninsured
    and underinsured coverage, as discussed in
Gajraj
.

[29]

An
    exception is
Cesario v. Gondek
, 2012 ONSC 4563, relied upon by the
    appellant, but distinguished by the motion judge on the basis that the
    plaintiffs had been in two accidents, there were joint tortfeasors allegedly
    responsible for the plaintiffs damages and those damages were considered
    inseparable. She noted that the presence of the plaintiffs insurer in Ontario
    was not a factor that entered into the determination. The case was clearly
    distinguishable, for those reasons.

[30]

I
    conclude, therefore, that the motion judge correctly stayed the action against
    the respondents.

[31]

Both
    parties also made submissions on the issue of
forum conveniens
. As I
    would dismiss the appeal on the jurisdictional ground, it is unnecessary to
    deal with this issue.

Disposition

[32]

For
    these reasons, I would dismiss the appeal. The respondents are entitled to
    their costs fixed at $7500, inclusive of disbursements and all applicable
    taxes.

Released: June 18, 2014 (M.T.)                    G.R.
    Strathy J.A.

I
    agree R.G. Juriansz J.A.

I
    agree M. Tulloch J.A.





[1]
The respondents have not provided any information concerning their insurance
    coverage, if any. Accordingly, it is uncertain whether State Farm will be
    required to provide uninsured or underinsured coverage.


