Ontario Court Rejects Forum of Necessity Argument

Andrew Ottaway, B.A. (Hons.), LL.B.Cross-Border Litigation, Negligence, Of Interest to US Counsel, Slip & Fall, Travel & Tour Operators0 Comments

In Cook v 1293037 Alberta Ltd., the Ontario Plaintiff was allegedly injured in an incident at the Defendant’s Alberta hotel.  The Plaintiff commenced an action in Ontario respecting the incident nearly two years after the incident occurred.  The Defendant brought a motion to dismiss the Ontario action on the grounds that Ontario did not have jurisdiction over the claim.  By the time the Defendant brought the motion, more than two years had passed since the incident.

The Ontario Court applied the test for jurisdiction simpliciter set out by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda – i.e. whether the claim had a “real and substantial connection” to Ontario.  The Plaintiff argued that the Defendant corporation was “domiciled or resident in Ontario” because one of the corporation’s directors had moved to Toronto, Ontario following the incident.  The Court rejected this argument, stating that there was no evidence that the director had transferred the corporation to Ontario, and that the director’s Ontario residency did not mean the corporation was domiciled or resident in Ontario.  The Plaintiff also argued that because the Defendant corporation “carried on business in Ontario” because its hotel operations catered to temporary workers who may have been from outside of Alberta.  The Court also rejected that argument, on the ground that there was no evidence that the hotel was marketing or soliciting guests outside of Alberta. The Court concluded that Ontario did not have a “real and substantial connection” to the claim.

The Plaintiff further argued that the Ontario Court should assume jurisdiction based on the “forum of necessity” exception – i.e. because the expiry of the two year limitation period in Alberta prevented the Plaintiff from suing in the other forum, Alberta.  The Court rejected this argument as well, stating that the circumstances of the case were not “rare and exceptional”, such as the breakdown of diplomatic of commercial relations with the alternate forum.  Further, the Court stated that this was not a case where the Defendant had lulled the Plaintiff into missing the limitation period.  Rather, the Court found that the Plaintiff had waited until just before the limitation period expired in both Alberta and Ontario to issue a claim in Ontario.  As a result, the Court ordered that the Plaintiff’s action be stayed, and awarded costs of the motion to the Defendant.

Please contact us if you require advice on conflict of laws issues, forum challenges or jurisdiction challenges.


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About the Author
Andrew Ottaway, B.A. (Hons.), LL.B.

Andrew Ottaway, B.A. (Hons.), LL.B.

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