) ) Janice Cardinali Plaintiff (Respondent on Motion) – v. –, 2010 ONSC 2503

CITATION : Cardinali v. Strait, 2010 ONSC 2503 COURT FILE NO.: 24850/09 DATE: 2010-04-28 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Janice Cardinali Plaintiff (Respondent on Motion) – and – Whitney Strait, Julie Strait and Allstate Insurance Company of Canada Defendants (Applicant on Motion) ) ) ) ) ) ) ) ) ) Brian Gualazzi, for the Plaintiff (Respondent on Motion) Bruce Chambers, for the Defendants, Whitney and Julie Strait (Applicants on Motion) ) ) ) HEARD: April 22, 2010 Mr. Justice Edward J. Koke Motion : Reasons for Decision Introduction 1 .

This motion involves the issue of whether the Ontario Court should assume jurisdiction over the out-of-province defendants, Whitney and Julie Strait. Background 2 . The Plaintiff lives in the City of Sault Ste. Marie, in the Province of Ontario. Sault Ste. Marie is located on the north side of the international border which divides the State of Michigan, U.S.A. from the Province of Ontario, Canada. 3 . The Plaintiff was a passenger in a vehicle which was involved in a collision with a vehicle driven by the defendant, Whitney Strait.

The vehicle driven by Whitney Strait was owned by Whitney’s mother, the defendant, Julie Strait. The Straits live in Traverse City, Michigan, which is located about 163 miles south of the Canadian border. The collision occurred a short distance from Traverse City, in the State of Michigan. 4 . The vehicle in which the Plaintiff was a passenger was owned and operated by Ronald Henderson, who is also a resident of Sault Ste. Marie, Ontario. His vehicle was registered in the Province of Ontario and was insured with Allstate Insurance Company of Canada (“Allstate Canada”).

Allstate Canada has been added as a defendant pursuant to the “Underinsured/Uninsured” and “Family Protection” provisions of the policy. The Strait vehicle was registered in the State of Michigan and was insured with a related insurer, the Allstate Insurance Company which is incorporated and licensed in the U.S.A. (“Allstate U.S”). 5 . The Plaintiff’s claim is based on the fact that she sustained significant injuries as a result of the accident. It would appear that all of her injuries and treatment have been addressed in the Province of Ontario. 6 .

It would appear that the Henderson vehicle was rear ended by the Strait vehicle. The Plaintiff has not issued a claim against Ronald Henderson. Issues 7 . The issues raised by the defendant/applicant are twofold:

a) Jurisdiction Simpliciter : In the circumstances of this case, does the Ontario court have jurisdiction over the out-of-province individual defendants for damages arising out of the collision?

b) Forums Non Conveniens : If the Ontario court does have jurisdiction, should the action be stayed on the grounds that the Province of Ontario is not the most convenient forum? The Law

Recent Developments 8. Until recently, the test to determine when a court in Ontario can assume jurisdiction against an out-of-province defendant was set out in the OntarioCourt of Appeal decision in Muscutt v. Courcelles, (ON CA), 2002 CarswellOnt 1756. On February 2, 2010, the Ontario Court ofAppeal modified and reformulated the test in Van Breda v. Village Resorts Ltd., 2010 ONCA 84 , 2010 CarswellOnt 549. 9. This is one of the first cases which seeks to apply this modified Muscutt test.

To assist in understanding the changes to the test and how they are tobe applied to the facts of this case, I have decided that it would be of benefit to undertake a review of this area of the law. In doing so I will firstlyreview some of the cases preceding Muscutt, then I will review the test as it is formulated in the Muscutt decision, then I discuss the modifications to thetest as they are set out in the Van Breda decision and then finally I will apply the modified test to the facts before me. The Decision in Morguard: The Real and Substantial Test 10. In Morguard Investments Ltd. v.

De Savoye, (SCC), [1990] 3 S.C.R. 1077, the Supreme Court of Canada established a common lawtest for assumed jurisdiction and enforcement of foreign judgments. This test sets out the requirement that there be a “real and substantial connection” tothe selected jurisdiction, having regard to the circumstances of the claim and the defendants’ connection to the same.

Following Morguard, not onlywas the reach of provincial jurisdiction to extra-provincial defendants limited to cases that met the real and substantial connection test, but courts of oneProvince were also required to recognize and enforce judgments of another Province where the jurisdiction asserted by that other Province satisfied thistest. 11. Three years later, in Hunt v.

T&N PLC, (SCC), [1993] 4 S.C.R. 289 the Supreme Court noted that in determining whether a real andsubstantial connection exists, the court is not expected to apply a rigid test but the court “must ultimately be guided by the requirements of order andfairness, not a mechanical counting of contacts or connections.” (Hunt at p.325). 12. In Beals v. Saldhana, 2003 SCC 72 , [2003] 3 S.C.R. 416 the Supreme Court confirmed that the real and substantial connection test alsoapplied to the recognition and enforcement of foreign judgments. 13.

A review of the jurisprudence reveals that the courts have consistently held that the test should be applied using a flexible approach, therebyallowing it to be applied to various evolving circumstances. Notwithstanding this requirement for flexibility, the courts have also been consistent inmaintaining that the requirement of flexibility be balanced against the need for order and predictability. In Morguard, the court held that “fairness tothe defendant requires that the judgment be issued by a court acting through “fair process” and with “properly restrained jurisdiction.” (Morguard atp.1103).

The Muscutt Decision: Formulating the Test 14. In Muscutt v. Courcelles, (ON CA), 2002 Carswellont 1756, 60 O.R. (3rd) 20, the Ontario Court of Appeal addressed the issueof balancing the necessity for a flexible approach with the need for clarity and predictability. The court considered this case, together with four othercases in which it was argued that the court should assume jurisdiction against an out-of-province defendant. In each of these cases the damages weresustained in Ontario as a result of a tort committed elsewhere.

The court in Muscutt laid down 8 factors to be used to determine whether there was a realand substantial connection, sufficient to support the assumption of jurisdiction in such cases. The factors set out by the court are as follows: (

i) The connection between the forum and the plaintiff’s claim; (ii) The connection between the forum and the defendant; (iii) Unfairness to the defendant in assuming jurisdiction; (iv) Unfairness to the plaintiff in not assuming jurisdiction: (

v) The involvement of other parties to the suit; (vi) The court’s willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis (vii) Whether the case is inter-provincial or international in nature; and (viii) Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere. 15. In Muscutt, the Court of Appeal also distinguished the real and substantial connection test from the “forums non conveniens” test. At para. 43 itstated: “While the real and substantial connection test is a legal rule, the forum non conveniens test is discretionary.

The real and substantial connection testinvolves a fact-specific inquiry, but the test ultimately rests upon legal principles of general application. The question is whether the forum can assumejurisdiction over the claims of plaintiffs in general against defendants in general given the sort of relationship between the case, the parties and theforum. By contrast, the forum non conveniens test is a discretionary test that focuses upon the particular facts of the parties and the case.

The questionis whether the forum should assert jurisdiction at the suit of this particular plaintiff against this particular defendant.” 16. The court in Muscutt went on to describe the list of factors used by courts in assessing a claim for forum non conveniens at para 41. These factorsinclude: (

i) The location of the majority of the parties (ii) The location of key witnesses and evidence (iii) Contractual provisions that specify applicable law or accord jurisdiction (iv) The avoidance of a multiplicity of proceedings (

v) The applicable law and its weight in comparison to the factual questions to be decided

(vi) Geographical factors suggesting the natural forum (vii) Whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court. The Van Breda Decision: the Reformulated Muscutt Test 17. On October 5, 2009, the Ontario Court of Appeal convened a 5 judge panel to reconsider the Muscutt test in relation to two appeals which involvedthe issue of the Court’s extra-provincial jurisdiction. Both appeals involved claims for personal injury damages occasioned as a result of accidentssuffered by Canadian tourists at resorts in Cuba.

On February 2, 2010 the Court of Appeal released its decision in Van Breda v. Village Resorts Ltd.,2010 ONCA 84 , 2010 CarswellOnt 549 (CA). 18. In Van Breda, Sharpe J.A. writing for the full 5 member panel, pointed out that since Muscutt had been decided in 2002, there had been a number ofdevelopments that made it appropriate for the court to consider whether the test it adopted then should now be retained, modified, simplified orabandoned in favour of a different approach. At paras. 50-58 Sharpe J.A. summarized these developments as follows: (

a) The five cases which were considered in the Muscutt judgment all dealt with “assumed jurisdiction” in circumstances where the damages weresustained within the Province of Ontario. However the decision became a precedent for assessing the real and substantial connection in all cases ofassumed jurisdiction, opening up a significant body of case law which could now be used to assess the applicability of the Muscutt test in a wide varietyof circumstances. (

b) Since Muscutt was decided, there have been other developments in the case law and Muscutt has been considered and referred to in decisions ofboth the Supreme Court and the Provincial Appellate Courts. Although the Muscutt test has generally been applied, it has not escaped criticism. (

c) The Uniform Law Conference of Canada has developed a model Court Jurisdiction and Proceedings Transfer Act (“CJPTA”). This act has beenadopted in four Canadian jurisdictions and adoption is being considered in several others. (

d) After the decision in Muscutt, the concept of “forum of necessity” or “forum of last resort” has emerged as a significant jurisdictional test. This testallows the assumption of jurisdiction in situations where there is no real other forum where the plaintiff can seek relief, notwithstanding the absence of areal and substantial connection. (

e) The Muscutt test has received critical analysis by a significant number of legal scholars. Some scholars assert that the Muscutt test is undulycomplex and lacks predictability.

Others support Muscutt on the basis that the test is consistent with the principles of order and fairness, properlybalances fairness to the plaintiff against fairness to the defendant, can be applied to the wide range and diversity of cases which find their way before thecourts, and maintains an appropriate distinction between the factors which are included in the more discretionary forums non conveniens analysis and thefactors which are considered in the less discretionary real and substantial connection test. 19.

After considering the volume of case law which had emerged post Muscutt, and with the benefit of the perspective offered by legal scholars and thearguments and submissions of counsel, the court in Van Breda indicated that it was possible and desirable to simplify the test and to provide for moreclarity and ease in its application. The refined and simplified approach to the test set out by the Court in Van Breda can be summarized as follows:

(1) Presumed Jurisdiction 20. Firstly, the court should ask itself the question as to whether a real and substantial connection can be presumed on the grounds that the case fallswithin a connection specified in Rule 17.02 of the Ontario Rules of Practice (“Service Outside of Ontario without Leave”). In its analysis, the Courtstated that with the exception of subrule “h”, (“damage sustained in Ontario”) and subrule “o”, (“necessary or proper party”), if one of the connectionsidentified in rule 17.02 is made out, a real and substantial connection is to be presumed.

If jurisdiction is presumed, the defendant then bears the burdenof demonstrating that a real and substantial connection does not exist. Conversely, if one of the permitted connections cannot be identified, the plaintiffmust demonstrate that in the circumstances of the case, the real and substantial connection test is met. 21. With respect to the exclusion of subrules “h” and “o”, the court noted that neither of these is included in S. 10 of the CJPTA and this is an indicationthat neither has gained general acceptance as a sufficiently reliable indicator of a real and substantial connection.

(2) The Connection between the Forum, the Plaintiff’s claim and the Defendant 22. The court in Van Breda refers to this as the “core” of the real and substantial connection test. It refers to the remaining considerations or principlesas “analytic tools to assist the court in assessing the significance of the connections between the forum, the claim and the defendant.” (Van Breda atpara. 84). 23. The court endorsed the Supreme Court of Canada’s rejection of the notion that there is a precise or mechanical test to define the nature or degree ofconnections required.

At para. 85 the court referred to pp. 1104-1109 of Morguard where the Supreme Court variously described a real and substantialconnection as a connection “between the subject-matter of the action and the territory where the action is brought”, “between the jurisdiction and thewrongdoing”, “between the damages suffered and the jurisdiction”, “between the defendant and the forum province”, “with the transaction of theparties”, and “with the action” (emphasis added). (

i) The Forum and the Defendant: 24. The court specifically rejected the argument that assumed jurisdiction should focus solely or primarily upon the nature and extent of the defendants’contacts with the jurisdiction. The court referred to its decision in Muscutt where it stated that “[w]hile the defendants’ contact with the jurisdiction is animportant factor, it is not a necessary factor.” (Van Breda at para.74).

The court held that: “ a personal subjection test based exclusively on the defendants’ contacts would be unduly restrictive, would fail to pay adequate heed to the interests ofthe injured plaintiff, would be inconsistent with a substantial body of case law reviewed in Muscutt, at paras. 63-74, and would be contrary to theSupreme Court of Canada’s emphasis on the need for flexibility, It would also be inconsistent with CJPTA, s. 3(e), which confers jurisdiction if “thereis a real and substantial connection between the [forum] and the facts on which the proceedings against that person is based.” (Van Breda at para. 86). 25.

The court in Van Breda held that when assessing the connection between the forum and the defendant, the primary focus is on things done by thedefendant within the jurisdiction, and that when a defendant confines its activities to its home jurisdiction, it will not ordinarily be subject to the

jurisdiction of the forum. The court referred to the Supreme Court of Canada decision in Moran v. Pyle National (Canada) Ltd., (SCC), [1975] 1 S.C.R. 393 however and affirmed its position that: “physical presence or activity is not always required.

In circumstances where a defendant could reasonably foresee that its conduct would cause harmwithin the forum by putting a product into the normal channels of trade and knows or ought to know that the product would be used in the forum and thatif defective could harm a consumer in the forum, jurisdiction may be assumed.” (Van Breda at para. 89). (ii) The Forum and the Plaintiff’s Claim 26. The court confirmed that it would maintain the connection between the plaintiff’s claim and forum as a core element of the real and substantialconnection test.

In doing so it referred to its decisions in Muscutt where it stated: “The forum has an interest in protecting the legal rights of its residents and affording injured plaintiffs generous access for litigating claims againsttortfeasors. In Moran v. Pyle [Moran v.

Pyle National (Canada) Ltd., (SCC), [1975] 1 S.C.R. 393] at p. 409, Dickson J. spoke of “theimportant interest a state has in injuries suffered by persons within its territory.” The Moran decision and the introduction of the “damage sustained”rule in 1975 were both motivated by the perception that the interests of justice required a more generous approach to assumed jurisdiction. Theconnection between the forum and the plaintiff’s claim is therefore relevant.”(Muscutt at Para. 77). 27. In the Moran case, the plaintiff was a resident of the Province of Saskatchewan.

Her husband was electrocuted while removing a spent light bulb. She alleged that the light bulb was defective. The bulb was manufactured by the defendant in Ontario. The only connection the defendant had to theProvince of Saskatchewan was that it sold its light bulbs in that Province.

The Supreme Court pointed out that the predominating element was damagesuffered and that by tendering his products in the marketplace directly or through normal distributive channels, a manufacturer ought to assume theburden of defending those products wherever they caused harm as long as the forum into which the manufacturer was taken was one that he reasonablyought to have had in his contemplation when he so tendered his goods. The court therefore ruled that the Saskatchewan court had jurisdiction toentertain the action. 28.

The Court in Van Breda held however that it “would maintain the distinction made in Muscutt, at para. 83, between the degree of foreseeability motivating Moran and the situation where a wrongfulact and injury occur outside the jurisdiction and the plaintiff returns home and continues to suffer consequential damage. The fact that it was foreseeablethat a visiting plaintiff will return home and continue to suffer damages from the injury does not, by itself, make the defendant subject to the plaintiff’shome jurisdiction under the Moran principle.

On the other hand, acts or conduct short of residence or carrying on business will often support a real and substantial connection. As stated in Beals, atpara. 32, “a defendant can reasonably be brought within the embrace of a foreign jurisdiction’s law where he or she has participated in something ofsignificance or was actively involved in that foreign jurisdiction.” (Van Breda at paras. 91-92). (iii) Fairness 29. The court in Van Breda discussed this issue at paragraphs 93-101 of the judgment.

It held that it would maintain consideration of the fairness ofassuming or refusing jurisdiction as a consideration that bears upon the real and substantial connection test. However, it clarified and explained itsdecision in Muscutt and limited the extent to which fairness considerations applied as follows: Firstly, it determined that factors 3 (unfairness to the defendant in assuming jurisdiction) and 4 (unfairness to the plaintiff in not assuming jurisdiction)should be considered together.

Secondly, the consideration of fairness should not be seen as a separate inquiry unrelated to the core of the test i.e. the connection between the forum, theplaintiff’s claim and the defendant. The court held that consideration of fairness should rather serve as an analytic tool to assess the relevance, qualityand strength of those connections i.e. whether they amount to a real and substantial connection, and whether assuming jurisdiction accords with theprinciples of order and fairness.

Thirdly, unfairness to the plaintiff in not assuming jurisdiction does not amount to an independent factor capable of trumping the want of a real andsubstantial connection between the forum and the plaintiff’s claim and /or the defendant. (iv)General Principles: 30. (

i) The Relevance of the Involvement of Other Parties to the Suit: The involvement of other parties is only a factor in so far as it remains relevant tothe real and substantial connection test. It should not be viewed as a presumptive connecting factor. It remains one of the factors at the forum nonconveniens stage, as a consideration in avoiding a multiplicity of proceedings. 31. (ii) The Court’s Willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis.

The court held thewillingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis is an overarching principle that disciplinesthe exercise of jurisdiction against extra-provincial defendants.

At paragraph 103 of its decision the court stated that “if the court would not be preparedto recognize and enforce an extra-provincial judgment against an Ontario defendant rendered on the same jurisdictional basis, it should not assumejurisdiction against the extra-provincial defendant.” 32. (iii) Whether the Case is Inter-provincial or International in Nature; Comity and Standards of Jurisdiction, Recognition and EnforcementPrevailing Elsewhere: The court held that these are relevant considerations but should not be viewed as independent factors which have more or lessequal weight with the others, but as general principles which bear upon the

interpretation and application of the real and substantial connection test.

(3) Relationship between Jurisdiction Simpliciter and Forum Non Convenience; 33. Different factors are to be considered when determining Jurisdiction Simpliciter and Forum Non Conveniens. These factors are independent ofeach other and the Forum Non Conveniens factors should only be considered after jurisdiction Simpliciter has been established.

(4) Forum of Necessity and Forum of Last Resort 34. The court has a residual discretion to assume jurisdiction where there is no other forum where the plaintiff can seek relief. The application of thistest should be viewed as an exception however and should not be used as part of the real and substantial connection analysis.

Application of the Reformulated Muscutt Test to the Facts and Circumstances of this Case 1) Should a Real and Substantial Connection be presumed on the ground that the Case falls within a Connection specified in Rule 17.02? 35. The plaintiff Janice Cardinali lives in the Province of Ontario. The collision occurred in the state of Michigan. The damages have been suffered bythe plaintiff in Ontario. Rule 17.02(

h) of the Ontario Rules of Civil Procedure permits service of an originating process on a party outside the Provinceof Ontario where the proceeding is in respect of damages sustained in Ontario arising from a tort. However, as indicated above, under the reformulatedMuscutt test, Rule 17.02(

h) is not one of the Rule 17 connections that confers presumptive jurisdiction. 36. It is therefore necessary for the plaintiff to demonstrate a real and substantial connection if she wishes the court to assume jurisdiction over theclaim. 2) Did the Plaintiff establish a Real and Substantial Connection? (

i) The Connection between the Forum and the Plaintiff’s claim 37. The Plaintiff lives and works in the Province of Ontario. She argues that she has sustained significant injuries. Her injuries and treatment havebeen addressed entirely in the Province of Ontario and future treatment is expected to be in Ontario. All her health care providers, which currently total10, reside in Ontario. 38. The Plaintiff has issued an under-insured/uninsured claim against her own insurance company.

In order to be compensable, the damages pertainingto this claim must be proven in accordance with the law of the Province of Ontario. 39. In my view, there is a significant connection between the plaintiff’s claim and the Province of Ontario. (ii) The Connection between the Forum and the Defendant 40. The defendants live in Traverse City, Michigan and do not have any assets in the Province of Ontario. The defendants argue that there is noconnection between the forum and the individual defendants. 41.

The defendants submit that when assessing the connection between the selected forum and the defendants, the primary focus should be on what wasdone by the defendant within the forum, for instance: (

a) Where did the tort occur? (

b) Was the defendant actively involved in the forum, by way of business activity or commerce? (

c) Ought the defendant reasonably to have contemplated being called to account for the tort in the forum the plaintiff has selected? 42. The defendants rely on Van Breda in asserting that where the defendant confines its activities to its home jurisdiction, it will not ordinarily besubject to the jurisdiction of the foreign forum (Van Breda at para.89).

Also, they rely on the dicta in Van Breda in arguing that the fact that it wasreasonably foreseeable that the defendant might be in a car accident in Michigan, with an Ontario resident is not, by itself, sufficient to establishjurisdiction. (Van Breda at para. 91). 43. In my view, the fact that it was foreseeable that the plaintiff would return home after sustaining an injury does not bring this case within theprinciple enunciated in Moran. Moran was a very different case.

In Moran, the defendant manufacturer had shipped the allegedly defective light bulbto Saskatchewan and the injuries were sustained in that Province. The defendant had therefore conducted commerce in Saskatchewan. This factestablished a connection. No such connection exists in the present case. 44. I will revisit the issue or the connection between the forum and the defendants below under the heading: “The Involvement of Other Parties.” (iii) Fairness 45. In Muscutt, the plaintiff had moved to the Province of Alberta three weeks before he was injured in a motor vehicle accident in that Province.

Hereturned to the Province of Ontario following his release from hospital in Alberta and he continued to receive extensive treatment for his injuries inOntario. The plaintiff argued that the Ontario court had jurisdiction to hear his claim. The court in Muscutt determined that the defendants did not haveany connection with Ontario that would justify the assumption of jurisdiction. The court held however that “the consideration of the defendants’ position should not end with an inquiry as to acts or conduct that would render the defendant subject to thejurisdiction.

The principles of order and fairness require further consideration, because acts or conduct that are insufficient to render the defendantsubject to the jurisdiction may still have a bearing on the fairness of assumed jurisdiction.. Some activities, by their very nature, involve a sufficient riskof harm to extra-provincial parties that any unfairness in assuming jurisdiction is mitigated or eliminated” (Muscutt at para. 86). 46. The court in Muscutt determined that the assumption of jurisdiction by the Ontario court would not result in any significant unfairness to thedefendant.

It based this finding on the fact that there was evidence that the defendants were insured and the terms of their insurance contemplatedcoverage for suits in other Canadian Provinces. The court noted that these insurance arrangements reflect the reasonable expectations of the drivingpublic. 47. In considering the issue of unfairness to the defendants in Subramaniam v. Shelter (ON SC), [2002] O.J.

No. 3426, Lane J.referred to the above dicta in Muscutt with approval and noted that since the defendants in that case were insured, the burden of the defence would fallupon their insurer who would be bound to defend the suit. Lane J. noted that there was no evidence that the defendants’ insurer would refuse to defendthem in Ontario. 48. In Subramaniam, the plaintiffs, who were residents of Ontario, were injured in a motor vehicle accident which occurred in the state of Nebraska,U.S.A. The defendants disputed the jurisdiction of the Ontario court.

The defendants deposed that it would be unfair to them if the action was tried in

Ontario, citing that they were afraid of prejudice from being subjected to the procedures of a foreign court and jury. In response to this argument Lane J.pointed out that “Ontario’s court system is built on the same English tradition as is the system in the United States and offers the same standard of impartial independentjudges and juries as is found there. Further, the Ontario courts will normally apply the tort law of the place where the tort was committed; in this caseNebraska: Tolofson v. Jensen (SCC), [1994] 3 S.C.R. 1022. There is no unfairness arising from the court system” (Subramanian atpara. 11). 49.

In my view, there is no unfairness arising to the defendants by the assumption of jurisdiction by the Ontario court in the circumstances of this case. There is no evidence that the defendants’ insurer will not defend them in the Province of Ontario. In this regard, I note that the defendants’ insurer(Allstate U.S.A.) is related to the Plaintiff’s insurer (Allstate Canada) which is also bound to provide uninsured/underinsured protection to the Plaintiffs. Also, as indicated in Subramaniam above, the substantive law of the state of Michigan will still apply.

I note as well that the evidence before meestablishes that this accident occurred when the vehicle in which the plaintiff was a passenger was struck from behind by the defendants’ vehicle. Liability may very well be admitted at trial and if it is, I expect that the individual defendants may not even have to attend to give evidence. 50. With respect to the issue of unfairness to the plaintiff if the Ontario court does not exercise jurisdiction, the plaintiff points out that she hasundergone extensive treatment in the Province of Ontario.

She submits that as many as 10 health care professionals, as well as her employer, will haveto travel to the state of Michigan if the Ontario court does not assume jurisdiction. In my view, these considerations relate primarily to the issue of forumnon conveniens, which will be discussed later. I do note however, that unlike the defendants, the plaintiff does not have the benefit of an insurer to assisther with her legal expenses. In the circumstances, it is quite possible that the additional costs of having her witnesses travel to the state of Michigan maycompromise the quality of her evidence.

I note that financial hardship to the plaintiff was a factor which the court considered in Muscutt, with the courtultimately concluding that a consideration of unfairness favoured the plaintiff (Muscutt at para. 90). (iv) General Principles The Involvement of Other Parties 51. The plaintiff has included her insurer, Allstate Canada as a defendant in her claim. Her claim against her insurer is based on her entitlement tounderinsured/uninsured and family protection coverage. 52. The defendants have coverage through Allstate U.S.

The plaintiff suggests in her affidavit evidence that the two insurance companies are one andthe same. Although the exact nature of the relationship between the two insurers is uncertain, I do accept that they are related corporate entities. 53. I am prepared to take judicial notice of the fact the statutory minimum coverage in the different states in the U.S.A. varies widely. It is therefore notunreasonable for the plaintiff to have included her own insurer in her claim for damages. 54.

The terms of the uninsured/underinsured coverage provide that the damages be decided by a court in accordance with the law of Ontario. Damageassessments vary from jurisdiction to jurisdiction. In the event the court in Ontario does not assume jurisdiction, and the defendant is underinsured, theplaintiff will have to demonstrate to the satisfaction of Allstate Canada that the damages awarded to her in the State of Michigan are in accordance withthe law of the Ontario, failing which she may have to commence a separate action against Allstate Canada in the Province of Ontario. 55.

The desirability of avoiding a multiplicity of proceedings is an issue which is more properly dealt with in the context of a discussion relating toforum non conveniens, a discussion which should properly take place after it is established that the Ontario court can exercise jurisdiction. However, theissue as it arises in this case involves more not just an avoidance of multiple proceedings. It also relates to the issues of fairness and connectivitybetween the individual defendants and the forum. 56.

The Plaintiff is faced with a situation where Allstate Insurance, when it is wearing one hat, is attempting to compel her to bring her action in theState of Michigan, and when it is wearing another hat, will indemnify her only if her damages are assessed in accordance with the law of Ontario. Therefore, in the event the Ontario court declines jurisdiction, the plaintiff may be obliged to bring two proceedings, for the same damages, arising outof the same set of circumstances, involving the same plaintiffs, in two separate jurisdictions against related corporations. 57.

As we have seen, one corporate Allstate entity is integrally involved in the defence of the claim on behalf of the individual defendants. A relatedcorporation provides uninsured/underinsured coverage and protection to the plaintiff in the Province of Ontario and is also involved in the claim, as anamed defendant. In my view, the fact that the defendants are represented by an insurer which effectively carries on business on both sides of theborder, (albeit through a related corporation), establishes a very real connection between the defendants and the forum.

Although this connection isvicarious, it is not insignificant. In practical terms, this insurer becomes the “face” of the defendants. This insurer will be integrally involved in everyaspect of the claim. Furthermore, this Insurer has experience and expertise in administering claims on both sides of the border. The Court’s Willingness to Recognize and Enforce an Extra-Provincial Judgment rendered on the same Jurisdictional basis. 58.

The court in Van Breda points out that “An important discipline on the real and substantial connection inquiry and check on jurisdictionaloverreaching is to ask whether Ontario would be willing to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basisas that being asserted here.”(Van Breda at para. 124). 59. Most Canadians live within a one day automobile drive from the U.S. border. Many residents of Ontario cross the border into Michigan from SaultSte. Marie, Sarnia and Windsor daily.

The risk of accidents with and injury to the residents of another Province or state is inherent in motor vehicletravel. The terms of the Standard Ontario Automobile Insurance policy reflects this risk. There is no evidence before me that an Ontario judgment,rendered on the same juridical facts, cannot be enforced in the state of Michigan. Whether the case is Inter-provincial or International in Nature. 60. This case is clearly international in nature. Although courts may be less inclined to assume jurisdiction in such cases, this is only one factor that thecourt must consider.

Also, there is no evidence that an Ontario judgment cannot be enforced in the state of Michigan. Comity and Standards of Jurisdiction, Recognition and Enforcement prevailing Elsewhere 61. The court in Muscutt noted that the minimum contacts test of American law appears to require

an act or conduct on the part of the defendant thatamounts to personal subjection to the jurisdiction and, standing by itself, damage sustained in the jurisdiction will not satisfy the minimum contacts test(Muscutt at para 105).

62 . It may be that the test in the U.S.A. would not be met on the facts of this case, although in the absence of any evidence with respect to Michigan law, I cannot say this with any certainty. However, I note that this is only one consideration in the overall analysis, and not as an independent factor having more or less equal weight with the other factors which relate directly to a real and substantial connection ( Van Breda at para. 108 ).

Furthermore, in my view, the defendants’ insurance arrangements are such that attornment to Ontario jurisdiction is likely to follow, thereby removing the issue of enforcement as a concern. Conclusion: Jurisdictional Issue 63 . I have considered the connection between the forum and the defendants and the forum and the plaintiff’s claim and I have considered the elements of fairness or unfairness which arise in relation thereto. I have also considered certain general principles which impact on the real and substantial test. Clearly, the plaintiff has a significant connection to the forum.

The individual defendants also have a connection to the forum through their insurer. The plaintiff resides in Ontario, has received her medical treatments in Ontario and is employed in this province and I have found that there would likely be some unfairness to her in the form of financial prejudice if she was forced to incur the costs of having her witnesses travel to Michigan. I have also noted that it is unlikely that the individual defendants would suffer a significant degree of unfairness if this court accepts jurisdiction.

After giving due weight to these issues, I have concluded that in this case the facts favour the assumption of jurisdiction by the Ontario court. 3) Forums Non Conveniens 64 . The factors which the court must consider in determining the most appropriate forum are set out in paragraph 16 above. 65 . In considering the facts of this case it is clear that the main focus at trial will be the assessment of damages. The plaintiff’s medical providers are all located in Sault Ste. Marie, as is her employer. 66 .

The Plaintiff has included her insurer as a party defendant, pursuant to the under-insured/uninsured provisions of her Insurance policy. Pursuant to that policy, any damages claimed in relation to that policy are to be assessed in accordance with the law of Ontario and may therefore have to be to be proven in the Province of Ontario. 67 . It will be considerably less expensive and more convenient for the plaintiff to prove her damages in Ontario, than it would be if her medical providers would be obliged to travel to a court in Michigan to testify.

Furthermore, by having the trial in Ontario, the damages will be assessed in accordance with the laws of the Province of Ontario and it will not be necessary to bring proceedings in two jurisdictions. 68 . I find that the most convenient forum is the Province of Ontario. Costs 69 . I do not know if either of the parties have served a settlement offer and in the circumstances I will not make an order as to costs at this time. If the parties cannot agree on this issue, they may make written submissions to me within 60 days, or in the alternative,

schedule an appointment before me with the trial co-ordinator. I wish to express my gratitude to counsel for their excellent and helpful submissions. Mr. Justice Edward J. Koke Released: May 12, 2010 CITATION : Cardinali v. Strait, 2010 ONSC 2503 COURT FILE NO.: 24850/09 DATE: 2010-04-28 BETWEEN:

Janice Cardinali Plaintiff (Respondent on Motion) – and – Whitney Strait, Julie Strait and Allstate Insurance Company of Canada Defendants (Applicants on Motion) Brian Gualazzi, for the Plaintiff (Respondent on Motion) Bruce Chambers, for the Defendant (Applicant on Motion) Released: May12, 2010