By Sandra Train, Associate
We recently attended before Master Dash to respond to a jurisdiction motion. Our client had been seriously injured in New York State when the vehicle in which he was a passenger was rear-ended by a transport truck.
The Plaintiffs’ vehicle was owned by a company whose head office is located in Mississauga. This was also the employer of the Plaintiff’s spouse. The Plaintiff’s son was operating the vehicle at the time. All were resident in Ontario.
The company that owned the truck was located in New York State, as was the driver. The foreign Defendants sought an Order setting aside service of the Statement of Claim and staying the proceedings, or, in the alternative, for an Order that Ontario was not the proper forum.
The foreign Defendants would not admit liability and insisted that the actions of the Plaintiffs’ son were partially to blame for the collision.
Based on the SCC 2012 decision in Club Resorts Ltd. v. Van Breda, the Plaintiffs needed to establish one of four connecting factors for the Court to assume jurisdiction.
In this case, the Plaintiffs met two out of four connecting factors. The Defendant driver of the Plaintiff’s vehicle was a resident of Ontario, as was the Defendant corporation, who carried on business in the province. However, counsel for the foreign defendants argued that the SCC’s reference to “the” in the first two factors applied only to the moving party. Our position was that the court meant “any” of the Defendants could be resident of Ontario/carrying on business in Ontario.
Once the Court accepted that Ontario had jurisdiction, it fell to the foreign Defendants to show “clearly” why New York State was the proper forum for the litigation. They were not successful. While it could be argued that each side had a similar number of liability witnesses, the damages witnesses were almost all in Ontario.
If the foreign Defendants had accepted liability, the Plaintiffs would not have had any connecting factors to Ontario and would have been forced to litigate in New York State. The cost of litigating in the US can be prohibitive for Plaintiffs in these circumstances.
It was a costly exercise for the foreign Defendants, with both the Plaintiffs and co-Defendants being awarded costs of the motion.