2010 ONSC 2401, 2010 ONSC 2401

CITATION : Dennis v. Farrell, 2010 ONSC 2401 COURT FILE NO.: 07-32846 DATE: 2010-04-23 SUPERIOR COURT OF JUSTICE - ONTARIO RE: AMY ELIZABETH DENNIS, WILLIAM DENNIS AND VICTORIA DENNIS v. SHANE FARRELL, DERRICK CHARLES BRADSHAW, WHISTLER FIREWOOD, AND THE DOMINION OF CANADA GENERAL INSURANCE COMPANY BEFORE: FESTERYGA J. COUNSEL: D. Smye, Q.C., for the Plaintiffs S. Stringer, Esq., for the proposed statutory third party, Insurance Corporation of British Columbia J.

Graham, Esq., for the Dominion of Canada General Insurance Company HEARD: April 19, 2010 ENDORSEMENT [ 1 ] No one appearing for Shane Farrell, Derrick Charles Bradshaw or Whistler Firewood. The Preliminary Matters [ 2 ] The action was dismissed on consent by my order as against the Dominion of Canada General Insurance Company on a without costs basis at the opening of argument of this motion. Prayer for Relief in this Motion [ 3 ] The statutory third party, Insurance Corporation of British Columbia (ICBC), brings this motion for the following relief: 1.

An order setting aside the service and any order that authorized the service of the Statement of Claim on the defendants; 2. An order staying the action on the ground that Ontario is not the convenient forum for the hearing of these proceedings;

3. In the alternative, if jurisdiction and forum are assumed, an order striking the Family Law Act claims made by the plaintiffs, William Dennis and Victoria Dennis, on the ground that such claims are not tenable at law in British Columbia, with the British Columbia being the applicable substantive law; 4.

An order that the ICBC be added as a statutory third party pursuant to the provisions of Section 258(14) of the Insurance Act , R.S.O. 1990, c.I.8 , as amended with all rights which are conferred by Section 258(15) , including the right to make offers of settlement and deliver a Jury Notice to the main action; 5. An order that the ICBC be added to the title of proceedings to be described as follows: Insurance Corporation of British Columbia, added by order pursuant to Section 258(14) of the Insurance Act , R.S.O. 1990, c.I.8 , Third Party. 6.

An order permitting the proposed statutory third party, the ICBC, to deliver a Statement of Defence and Jury Notice within 60 days from the date of this order, and that the plaintiff shall deliver a reply thereto, if any, within 20 days after the service of the Statement of Defence of the statutory third party; 7.

An order that the said proposed statutory third party be bound by any judgment in this action obtained relating to the defendants, Shane Farrell and Derrick Charles Bradshaw, with the question of rights and obligations as between the said defendants and the ICBC to be disposed of after the trial and in such manner as directed by the trial judge; 8. An order that the fact that the ICBC has been added as a statutory third party to these proceedings shall not be disclosed to a jury trying this action; 9. An order for costs on a substantial indemnity basis by any party who opposes this motion.

Facts [ 4 ] This action arises out of a motor vehicle accident which occurred on or about the 6 th of August 2006 on Highway 99 in the city of Squamish, in the province of British Columbia. The Statement of Claim was issued on the 1 st of August, 2007 in Ontario wherein it is pleaded that Amy Elizabeth Dennis (Amy) sustained personal injuries as a result of that accident. [ 5 ] Amy was a resident in Vancouver, British Columbia at the time of the accident and had just completed a Masters degree from the University of British Columbia.

She was scheduled to commence a teaching position in British Columbia effective September the 1 st , 2006. She did take that position and remained in British Columbia until October 27 th , 2006. [ 6 ] The plaintiff, William Dennis (William), is the father of Amy and makes his claim pursuant to the Family Law Act of Ontario . He was the operator of the motor vehicle in which Amy was a passenger at all material times.

William was visiting British Columbia but normally he was a resident of Burlington, Ontario. [ 7 ] The plaintiff, Victoria Dennis (Victoria), is the mother of the plaintiff Amy and makes her claim pursuant to the Family Law Act of Ontario . Victoria resides in Burlington, Ontario. [ 8 ] The defendant, Shane Farrell (Shane), was the driver of the motor vehicle in question that was in collision with the vehicle in which Amy was a passenger.

He is a resident of British Columbia. [ 9 ] The defendant, Whistler Firewood (Whistler), is a sole proprietorship owned by the defendant Shane and is located in British Columbia. Whistler is not insured by the ICBC. [ 10 ] The defendant, Derrick Charles Bradshaw (Derrick), was the owner of the vehicle in question operated by Shane and at all material times was a named insured on the policy of insurance with the ICBC and he resides in British Columbia. [ 11 ] None of the defendants has delivered a Statement of Defence.

The ICBC has denied coverage to its insured and seeks to add itself as a third party in due course upon the determination of the proper jurisdiction of this action. [ 12 ] In the statement of claim, the plaintiffs, William and Victoria claim loss of guidance, care and companionship because of the injuries sustained by Amy and in addition they claim: (

a) Travelling expenses to visit and care for Amy; (

b) Providing nursing, housekeeping, driving and other services to Amy; (

c) Providing and incurring such further and other services and expenses counsel may advise. [ 13 ] They allege that they are entitled to the value of services performed, income loss, opportunity loss to earn income, and expenses incurred. They plead the Family Law Act , R.S.O. 1990, c.F.3 . [ 14 ] Liability for the accident has been admitted on behalf of the defendants Farrell and Bradshaw, and therefore that issue will not have to be determined at the trial of this action. In the affidavit of Gregory P.

McKenna sworn on the 13 th of April, 2010, it is alleged that Amy sustained the following injuries as a result of the accident: a severe flexion extension injury to the cervical spine with resulting headaches, neck pain, upper back pain, low back pain, left shoulder pain, left arm pain, left hip pain, injuries to her head, brain, right knee, abrasions, contusions, impaired reading ability, impaired vision, loss of coordination and balance, stress, anxiety, depression,

nervousness, fear of driving, confusion, forgetfulness, inability to focus on tasks and sleeplessness. [15] Amy received some preliminary treatment in British Columbia. However, the vast majority of her treatment was in Ontario. [16] Various medical professionals from Joseph Brant Memorial Hospital in Burlington, including Dr. T. L. Lad, Neurologist; Dr.Stephanie Girard, Radiologist; and Dr. Melinda Nichols, Psychiatrist, provided care. In addition to them, the following people haveprovided treatment for Amy: Dr.

Scott Lee, Chiropractor in Burlington, Physiotherapist from Advance Physiotherapy in Burlington,Ontario, Dr. Kim Hughes, Chiropractor in Toronto, Dr. E. I. Kudrym, Psychiatrist at Psychotherapy and Counselling Centre in Toronto,Ontario, Dr. Alan Finlayson, Neurologist in Dundas, Ontario, Dr. J. A. Taylor, Family Physician in Burlington, Ontario, Dr. H. Sarsam,Family Physician in Oakville, Ontario, Dr. Kussin, Psychiatrist, and Dr. Paul Freedman, Social Worker both at Toronto WesternHospital, Maria Ross, Occupational Therapist in Hamilton, Ontario, Dr.

Vikas Pandith, Rheumatologist from JBN Medical DiagnosticServices Inc. in Burlington, Ontario. There will be various medical professionals from Acquired Brain Injury Program at ChedokeHospital in Hamilton, Ontario, including Dr. Hiten Lad, Neuropsychologist, and Dr. Flor Maria Muniz, Physical Medicine andRehabilitation Specialist, and Dr. Diana Velikonja, Psychologist in Burlington, Ontario. Discussion [17] I find that that the Statement of Claim was properly issued in Ontario and served on the defendants outside of Ontario pursuant toRule 17.02(h). No order was required to authorize the service.

I find nothing improper with respect to the Statement of Claim andtherefore dismiss the first request by the moving parties for an order setting aside service and any order that authorized the service of theStatement of Claim on the defendants. [18] With respect to the claims of William and Victoria under the Family Law Act, I rely on the sworn affidavit of Mr. Guy P.

Brownwith respect to the law of British Columbia. [19] Counsel agreed that the substantive law for liability and damages is with respect to the law as it exists in British Columbia at thetime of the accident. [20] I find that there is no independent right of action available to William and Victoria in British Columbia for the injuries sufferedby Amy for loss of care, guidance and companionship. [21] I further find that in British Columbia the courts can make in trust awards to compensate the parents, William and Victoria, fortheir housework, nursing and domestic assistance to Amy.

The trust claims have been allowed by the principles set out by the BritishColumbia Supreme Court in Bystedt (guardian ad litem of) v. Hay 2001 BCSC 1735. This decision was affirmed by the Court of Appealin 2004 BCCA 124 , 2004 BCCA, page 124. I therefore dismiss the claims of the plaintiffs, William and Victoria as set out inparagraph 21 and 22 for loss of care, guidance and companionship. However, I am of the view that the following claims should be leftfor the trial judge to determine, and they are as follows: (

a) expenses for travelling to visit and care for Amy, (

b) providing nursing, housekeeping, driving and other services to Amy, and (

c) providing and incurring such further and other services and expenses as counsel may advise and the trial judge may permit. [22] For the reasons that will follow, I dismiss the moving party’s request for an order staying the action on the ground that Ontario isnot a convenient forum for the hearing of these proceedings. [23] Since I have dismissed the request to stay the action, I am making an order as requested in paragraphs four, five, six, seven andeight of the moving party’s motion record. [24] The law that I am bound to apply is as set out in Muscutt v. Courcelles, (ON CA), [2002] 60 O.R. (3d) 20O.J.

No. 2128 (Ont. C.A.) and Van Breda v. Village Resorts Ltd., 2010 ONCA 84 , [2010] O.J. No. 402 (Ont. C.A.). [25] The facts before me are on all fours with the facts as set out in the Muscutt case. [26] As pointed out by the court, jurisdiction can only be asserted against an out of province defendant on the basis of a “real andsubstantial connection”. The words “damage sustained” set out in the rule has to be given a generous and liberal

interpretation. TheSupreme Court has ruled that real and substantial connection is deliberately general to allow for flexibility in the application of the test. No test can be rigidly applied. [27] The real and substantial connection test requires only a real and substantial connection, not the most real and substantialconnection. [28] The connection must be with the subject matter of the action. This is a motor vehicle accident in which the liability has beenadmitted and therefore only the damages suffered by the plaintiff will be an issue in my view.

The damages suffered by the plaintiffcannot be ignored in the assessment of the real and substantial connection. [29] I find that the plaintiff, Amy, has required extensive medical attention in Ontario and endured pain and suffering in Ontario. Ifind as the court did in Muscutt that damages represented a significant connection with Ontario. [30] On my reading of Van Breda v. Village Resorts Ltd., the Court of Appeal and in particular the Honourable Mr. Justice R. J.

Sharpwho wrote both decisions in Muscutt and Van Breda does not change the law as set out in Muscutt. [31] In Van Breda Justice Sharpe held that the defendant’s contact with the jurisdiction is an important factor but it is not a necessaryfactor. This was the finding that he made in the Muscutt decision as well.

[ 32 ] I find that the Ontario Court has jurisdiction to hear this matter and I make the specific findings as follows: 1. There is a real and substantial connection between Ontario and the plaintiffs’ claim for damages, liability having been admitted. 2.

There is some connection between Ontario and the defendants in that ICBC insured the defendants Bradshaw and Farrell and the said entity undertook in filing its power of attorney and undertaking to appear and to be bound by the laws of Ontario in defending any claim under its motor vehicle liability policy. [ 33 ] I find that there would be no unfairness to the defendant in Ontario assuming the jurisdiction since liability has been admitted and it is merely an assessment of damages. [ 34 ] There would be unfairness to the plaintiffs in not assuming a jurisdiction because if jurisdiction were refused the plaintiff would be compelled to litigate in British Columbia which would undoubtedly be inconvenient for her, especially given her injuries and unlike the defendants, the plaintiff does not have the benefit of an insurer to cover the cost of litigation. [ 35 ] There are no other parties involved in this suit. [ 36 ] The court is willing to recognize and enforce an extra-provincial judgment. [ 37 ] Considering all the factors discussed above, I find that there is a real and substantial connection of this action to Ontario and therefore it has jurisdiction. [ 38 ] I find that the plaintiff has satisfied the onus that Ontario has a real and substantial connection to the proceedings herein. [ 39 ] Since I have decided that Ontario is the proper jurisdiction, I have to consider the issue of forum non-conveniens .

The onus is on the moving party to establish that Ontario is a forum of non-conveniens . [ 40 ] I find that the moving parties have not satisfied the onus for the following reasons: (

a) The location of the majority of the parties is Ontario; (

b) The location of key witnesses and evidence is Ontario; (

c) The applicable law is from British Columbia, however, experts can satisfy the court with respect to what the proper B.C. law should be applied; (

d) Declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court with respect to the expenses incurred by the plaintiffs William and Victoria. Conclusion [ 41 ] The request for an order staying the action on the ground that Ontario is not a convenient forum for the hearing of these proceedings is dismissed. Costs [ 42 ] If the parties are unable to agree on costs, they may make written submissions not to exceed 10 pages including draft bills of costs. The text shall be on one side only and Rule 4.01 shall apply as to format.

The plaintiff shall provide me with their submissions within 10 days of the release of these reasons and the moving party shall provide me with their submissions within 5 days after receiving the plaintiffs’ submissions. ___________________________ Festeryga J. DATE: April 23, 2010 CITATION : Dennis v. Farrell, 2010 ONSC 2401 COURT FILE NO.: 07-32846 DATE: 2010-04-23

SUPERIOR COURT OF JUSTICE - ONTARIO RE: AMY ELIZABETH DENNIS, WILLIAM DENNIS AND VICTORIA DENNIS v. SHANE FARRELL, DERRICK CHARLES BRADSHAW, WHISTLER FIREWOOD, AND THE DOMINION OF CANADA GENERAL INSURANCE COMPANY BEFORE: The Honourable Mr. Justice W. J. Festeryga COUNSEL: D. Smye, Q.C., for the Plaintiffs S. Stringer, Esq., for the proposed statutory third party, Insurance Corporation of British Columbia J. Graham, Esq., for the Dominion of Canada General Insurance Company ENDORSEMENT Festeryga J. WJF:mg DATE: April 23, 2010