This paper will first discuss how a defendant may intentionally or unintentionally subject itself to a foreign jurisdiction, known as attorning to the jurisdiction, which can be a frustrating ordeal for a litigant. It is thus crucial to examine the choices available to the defendant when facing a foreign action, whether it is to contest or to attorn to jurisdiction. The discussion will further examine the options a defendant has if it did indeed unintentionally acquiesce to the foreign jurisdiction. These same considerations apply when a foreign defendant is being sued in Ontario.
Secondly, the paper will discuss the legal test for finding and challenging jurisdiction in Ontario, as enunciated by the Supreme Court of Canada in Van Breda v. Club Resorts Ltd.1 The discussion will also touch on the legal principle of forum non conveniens, which presents another method to stay a foreign action for being brought in an improper forum.
As a final note, the paper will discuss how properly drafted forum selection clauses and governing law clauses can be effective tools in managing the certainty and predictability of claims arising out of a given policy, and how such a clause may be interpreted by an Ontario court. While they may not prevent all actions from being commenced in a foreign jurisdiction, a proper forum selection clause can afford certainty to insurers in terms of where claims brought against them by their insured could be litigated. Governing law clauses are useful as well to provide guidance and certainty as to which set of laws has been chosen to resolve the dispute arising out of the contract, regardless of the forum in which the claim was commenced.
I. Making the Decision: To Contest or to Attorn?
By way of example: an American couple from the state of Kentucky plans a canoe and hiking trip to Georgian Bay, Ontario. The husband makes the booking online through a travel website and uses his credit card to pay for the vacation, including the hotel. During their excursion in Ontario, organized by the hotel, the wife sustains injuries from a boating accident wherein a hotel employee acted in a negligent manner. She receives medical treatment in Ontario and upon returning home to Kentucky, the couple decides to sue the Ontario hotel in a Kentucky court. The hotel's insurer now faces a claim commenced outside of Ontario. At this stage, before taking any steps, the insurer has two options: to contest or to attorn to Kentucky's jurisdiction. Attornment to a particular jurisdiction refers to instances where the defendant in an action consents (intentionally or unintentionally) to the jurisdiction in which the plaintiff has commenced the action.
A. Deciding to Contest
It is crucial that this decision is made before any steps are taken in response to the foreign claim. This is because attornment to jurisdiction can occur by filing a consequent pleading, such as a Statement of Defence, or by participating in the litigation process. In Ontario, another example of how attornment can happen is through the service and filing of a Notice of Intent to Defend.2 In our Kentucky example, the hotel's insurer would need to look to the laws of Kentucky to determine what responding pleadings should be filed and the effect of same on attorning to the jurisdiction of that state.
Therefore, if jurisdiction is to be contested, this should be done before the delivery of a pleading. In our example, once the Kentucky plaintiffs' claim from the foreign jurisdiction is received, the Ontario hotel defendant and its insurer should consider whether they would like to contest jurisdiction or to attorn before responding to the claim. Moreover, it is important that the case not be engaged on its merits, which may also constitute attorning to the jurisdiction.3 Engaging the case on its merits involves litigating with respect to the substance of the legal dispute, versus dealing with the technicalities that can affect a lawsuit, such as jurisdiction
... it may be in the interest of a party to attorn, particularly where the law in the foreign jurisdiction is more favourable than the law in the home jurisdiction. |
B. Deciding to Attorn
In some cases, it may be in the interest of a party to attorn, particularly where the law in the foreign jurisdiction is more favourable than the law in the home jurisdiction. For example, in our American couple case, the foreign jurisdiction, Kentucky, might have more favourable discovery rules compared to Ontario. Undoubtedly, making such a decision is inherently complex. It requires understanding the legislation and case law in both Ontario, as the home jurisdiction, and in Kentucky, as the relevant foreign jurisdiction. This involves interpreting foreign law according to that country's methods as well as understanding the hierarchy of courts in a given region. Even Canadian jurisdictions outside of Ontario may have differing procedural and substantive laws that require consideration if that is the relevant foreign jurisdiction. This would likely require retaining counsel in that foreign jurisdiction. Likewise, attornment to the jurisdiction of Ontario must be carefully considered when an action is brought in Ontario relating to an accident occurring outside of the province. Counsel should also be consulted in making such a decision in Ontario.
1. Limitation Periods
Where a tort has occurred in a jurisdiction with a shorter limitation period than Ontario's two year limitation period4, it may be beneficial for a defendant to plead that jurisdiction's law. Doing so may mean that the claim will be dismissed for being outside of the shorter limitation period. Thus, in our case with the American couple, it may be to the advantage of the Ontario insurer to attorn to the jurisdiction of Kentucky if it happens to have a shorter limitation period than the one in Ontario for the particular type of claim being made.
The opposite could also be true. In other words, it may be in a defendant's best interest to plead the law of the jurisdiction with a longer limitation period than that of the defendant's home jurisdiction. For example, this could be the case where a defendant wishes to issue a third party claim against another party, but requires additional time to do so.
2. Damages Calculation/Assessment Considerations
There may be financial advantages to a plaintiff who pleads the law of the relevant foreign jurisdiction. For instance, in making the decision to attorn or to contest jurisdiction, one pertinent consideration is the different heads of damages that may be available in different jurisdictions, and the calculation of said damages in that jurisdiction.
One illustration of how damages can play into decisions with respect to jurisdiction comes from the case of Hanlan v Sernesky.5 In that case, one of the plaintiffs was injured in Minnesota in a motorcycle accident. That plaintiff sued the driver of the motorcycle on which he was a passenger for damages arising from personal injury, while the other plaintiffs brought claims under Ontario's Family Law Act. Justice Platana used his discretion to apply Ontario law rather than Minnesota law. In his reasoning, he noted that there was a connection to this action in both Minnesota and Ontario. However, he found that the only real connection to Minnesota was that the accident took place there. Not only were the parties all residents of Ontario, but the defendant's motorcycle was registered in Ontario and subject to a motor vehicle liability policy that was issued in Ontario. As a result of the Court concluding that the law of Ontario was to be applied, Ontario's Family Law Act6 applied and the plaintiff's family was able to pursue compensation pursuant to Ontario's Family Law Act that it would not have been entitled to under Minnesota law, as Minnesota law prohibits "Family Law Act type" claims.7
Another case dealing with financial benefits in different jurisdictions is Brown v Kerr-McDonald.8 In that case, the issue was whether the laws of Alberta or those of Saskatchewan should apply. The plaintiff pointed out that the pain and suffering portion of her claim would be unavailable under Saskatchewan's no-fault scheme, but it was available in Alberta. Naturally, the plaintiff wanted the laws of Alberta to apply.
Financial incentives can also be dependent on jurisdiction in terms of damages for loss of a deceased's future income. For instance, in Alberta, a plaintiff can claim damages for loss of a deceased's future income, while the same is not true in BC.9
Another jurisdictional consideration with respect to damages is demonstrated in Wong v Lee,10 the plaintiff was injured in a motor vehicle accident in New York State. The plaintiff and all defendants were residents of Ontario. The Ontario Court of Appeal applied New York law and found this meant pecuniary damages would be available to the plaintiff, which was not the case under the applicable legislation in Ontario at the time this accident occurred.11
... damages can play an important role for defendants when deciding whether to attorn or to contest jurisdiction, as they may be calculated differently from one jurisdiction to another. |
Thus, damages can play an important role for defendants when deciding whether to attorn or to contest jurisdiction, as they may be calculated differently from one jurisdiction to another.
3. Practical Considerations
Another consideration in deciding whether to attorn to a "foreign jurisdiction" is a practical one. Research into the laws of the foreign jurisdiction is imperative, as is appropriate statutory interpretation. Local counsel may need to be retained and damages assessments appropriately adjusted. Given the significant differences between Ontario and foreign jurisdictions, an Ontario based claim handler would require assistance with respect to those foreign laws and procedures.
C. After You Have Attorned, What Happens Next?
By way of example: Assume that a plaintiff living in Ontario sues a Manitoba defendant in Ontario. Before considering the issue of jurisdiction, and without realizing the impact of his or her actions, the Manitoba defendant files a Statement of Defence in accordance with the laws of Ontario.12 The defendant has now unknowingly attorned to Ontario's jurisdiction.
Once, either intentionally or unintentionally, the parties have attorned to Ontario's jurisdiction; the matter may still be decided under the law of the jurisdiction where the tort occurred. In fact, the Supreme Court of Canada in Tolofson v Jensen13 determined that in general, the law of the territory where the tort occurred should apply. More precisely, Justice La Forest, in his majority decision, stated:
From the general principle that a state has exclusive jurisdiction within its own territories and that other states must under principles of comity respect the exercise of its jurisdiction within its own territory, it seems axiomatic to me that, at least as a general rule, the law to be applied in torts is the law of the place where the activity occurred, i.e., the lex loci delicti.14
However, in Tolofson, Justice La Forest also noted an exception. He stated that he was "not averse to retaining discretion in the court to apply our own law to deal with such circumstances".15 He added, though, that he could not think of many cases where this would be necessary. For example, in Wong, the Ontario Court of Appeal found that was not a case where discretion should be used to diverge from the general rule and therefore applied the law of where the tort occurred, namely New York law.16
Nevertheless, this discretion has been used in some cases. For example, in Hanlan: although the motor vehicle accident took place in Minnesota, both parties were Canadian citizens and residents of Ontario.17 The vehicle was registered and insured in Ontario and all of the treatment and resulting damages were incurred in Ontario. With the exception of the fact that the incident occurred in Minnesota, there was no other link to the United States. For that reason, the Ontario Court of Appeal determined that the motion judge was correct to use their discretion and apply Ontario law.18 Thus, while typically the law of the territory where the tort occurred will apply,19 there are occasionally exceptions.
As such, the same damages considerations mentioned above also apply when deciding whether to plead the law of another jurisdiction (i.e. Ontario, where the tort occurred in our California example) once attornment has already occurred.
II. Contesting Jurisdiction
Imagine a scenario where travellers from Alberta vacation in Ontario and engage in canoeing lessons. One of them sustains an injury after falling into the water and hitting his head on a rock. The traveller receives some immediate medical attention in Ontario, but returns to Alberta in order to receive treatment at home. He then decides to commence an action against the Ontario lesson provider in Alberta. Given this situation, the defendant company and its insurer have decided to contest jurisdiction and argue that the lawsuit should have been brought in Ontario. In order to succeed with such an argument, the test formulated by the Supreme Court of Canada in Van Breda must be analyzed.
A. Van Breda Test - Real and Substantial Connection
In Canada, the test for finding whether a court has proper jurisdiction over a claim was set forth by the Supreme Court in Van Breda v. Club Resorts Ltd.20 In the ruling that addressed two tort claims, the Court clarified the test for when an action should be stayed for lack of jurisdiction. The Court held that a "real and substantial connection" between the claim and the jurisdiction must exist for there to be a proper exercise of jurisdiction.
The Van Breda cases involved two plaintiffs, both Canadian citizens residing in Ontario who vacationed in Cuba. While vacationing, one suffered catastrophic injuries and the other died while scuba diving. The actions were commenced in Ontario against the Cuban resorts. In finding that the Ontario court had jurisdiction over the defendants, the Supreme Court gave a list of presumptive connecting factors that would suggest real and substantial connection to a jurisdiction, in this case, Ontario. They are:
1. The defendant is domiciled or resident in the province;
2. The defendant carries on business in the province;
3. The tort was committed in the province; and
4. The contract connected with the dispute was made in the province.21
In formulating this list, the Court noted that these factors generally point to a relationship between the subject matter of the litigation and the forum. If any one of these factors is identified to link the litigation to the forum, then there is a presumption that the real and substantial connection test is met, thus suggesting proper jurisdiction. The Court further noted that new presumptive connective factors could be recognized in the future if certain considerations were met.
Once the presumption of jurisdiction is established, the burden then shifts to the defendant to rebut the presumption. A party may do so by demonstrating that the connecting factor, although present, does not provide a real relationship between the subject matter of the claim and the subject court.
B. Applying Van Breda
The application of the Van Breda is heavily fact-dependent. Taking the aforementioned example of the Albertan travellers, an analysis of the presence of each connecting factor would be necessary. In the example, assuming that the Ontario defendant, or their head office, was not incorporated in Alberta, factor one (that the defendant is domiciled or resident in the province) cannot be satisfied. In addition, as the alleged tort was not committed in Alberta, factor three (the tort was committed in the province) likewise cannot be satisfied.
However, the plaintiff may argue that the defendant hotel had a virtual presence via a website, or that the booking was made in Alberta, thereby satisfying factor two (the Ontario defendant carried on business in Alberta). Furthermore, if the plaintiff had booked his canoe lesson online, he may argue that the underlying contract to the dispute was made in Alberta, and satisfied factor four (the contract connected with the dispute was made in the province). Such arguments would not be novel.
For example, in Colavecchia v The Berkeley Hotel,22 the plaintiffs made an online reservation at
the defendant hotel in the United Kingdom using their TD Visa rewards card. The husband
suffered injuries from a slip and fall while in the United Kingdom and sued in Ontario. Before
delivering its defence, the defendant hotel brought a motion to dismiss for want of jurisdiction. It
argued that there was no real and substantial connection with Ontario even though the online
booking was done in Ontario. The Ontario Superior Court agreed and stated that the TD Travel
Rewards website was merely a booking agent at best. It did not find that this was enough to
consider the hotel as "carrying on business" in Ontario. It distinguished the facts of Van Breda,
where the defendant Cuban resort had marketed specifically to Ontario residents for one plaintiff
and had entered into a special contract for racquet professionals with the second plaintiff's
husband.
Moreover, the Court in Colavecchia found that, even if a contract was entered into between the
hotel and plaintiffs through the online booking in Ontario, the contract had nothing to do with the
dispute between the parties, which the Court noted was "a classic action for negligence".23 The Court described the transaction as one where the plaintiffs had a contract with TD for TD to make a booking with the hotel. In other words, the plaintiffs did not directly contract with the defendant hotel. Other recent and similarly decided cases in Ontario demonstrate that the contract must be sufficiently connected to the dispute to raise the presumption of real and substantial connection, a fact-dependent investigation.24
In a similarly decided case, the Ontario Superior Court in Kornhaber v. Starwood Hotels and Restaurants Worldwide, Inc.25 did not consider the defendant's 23 Westin Hotels owned and operated in Ontario to be sufficient to subject the defendant to Ontario jurisdiction. The claim arose from a food poisoning incident that occurred at a Westin Hotel in China. The plaintiffs were Toronto residents and argued that the defendant hotel had an online presence and operated business in Ontario, satisfying one of the presumptive connecting factors of Van Breda. The Court found the presumption rebutted since the subject matter of the claim had no real relationship with the business operated in Ontario by the defendant. Therefore, the Court found that the action could not continue in Ontario.
Haufler (Litigation Guardian Of) v. Hotel Riu Palace Cabo San Lucas26 is another recent
example of the analysis involved pursuant to the Van Breda factors. In the decision, the Ontario
Superior Court extensively reviewed the factual circumstances under which the plaintiffs made
their vacation booking. He analyzed the online presence of the defendant hotel, its worldwide
brand, and various advertising avenues and business relationships it had with local travel
agencies to determine whether the defendant hotel carried on business in Ontario. Justice
Quigley ultimately found that the facts did not demonstrate a sufficient connection to Ontario. In
the absence of any of the four Van Breda connective factors, he granted the defendants' motion
to stay the action.
As demonstrated, in order to establish jurisdiction, the Van Breda test requires analysis into the
factual circumstances of the alleged incident. In the canoe lesson example where the action was
advanced in Alberta, the relevant facts to consider may include whether there indeed was a
contract made in Alberta, and if so, whether this contract related to the ultimate claim. The
analysis would likely also consider whether the defendant carried on business in Alberta. Such
queries are far from straightforward and require factual analysis and supported legal
argumentation.
C. Forum Non Conveniens
...a court still has the discretion to stay the action under the principle of "forum non conveniens". |
Even if a real and substantial connection is found pursuant to the Van Breda factors, a court still
has the discretion to stay the action under the principle of "forum non conveniens". This principle
applies where there is a better jurisdiction to hear the action, despite a nexus existing between the
action and the original jurisdiction. While not frequently employed by courts, this principle
should be considered by defendants where the tort occurred entirely in Ontario and where all of
the witnesses are in Ontario, and not the foreign jurisdiction.
For example, in Wilson v. RIU,27the plaintiff suffered injuries from falling off a horse while at a
resort in Jamaica. Although the Ontario Superior Court found a real and substantial connection to
Ontario, the situation posed "logistical and immigration issues" since all the witnesses were in
Jamaica.28 Moreover, as Jamaican law would apply, Jamaica was deemed to be the more
appropriate forum for the action. As such, the Ontario action was stayed against the defendants.
III. Forum Selection Clauses
One method by which insurers have achieved some certainty with respect to the appropriate
forum for potential actions is through the inclusion of contractual clauses in their insurance contracts. Forum selection clauses provide a pre-determined location where parties to the
contract would litigate any disputes arising from the contract.
Forum selection clauses provide a pre-determined location where parties to the contract would litigate any disputes arising from the contract. |
Forum selection clauses generally fall under two types: exclusive and non-exclusive. An
exclusive forum selection clause provides for the selected forum to have jurisdiction over the
dispute to the exclusion of all others. By contract, a non-exclusive jurisdiction clause does not
restrict where a plaintiff may commence his or her claim. However, it does restrict a defendant's
ability to contest jurisdiction if that jurisdiction is one provided for in the forum selection
clause.29 This is due to the fact that courts prefer not to interfere with contractual terms agreed
upon between parties.
A. Forum Selection Clauses and the Jurisdictional Challenge
In Ontario, non-signatory parties to the contract are typically not bound to forum selection
clauses.30 This means that such clauses in an insurance contract cannot be used to restrict all
claims against the insured, as the plaintiff is almost always not a signatory. Nevertheless,
including these clauses in an insurance contract would at least ensure that any disputes between
the insured defendant and its insurer would occur only in the forum selected, even if the action
on the merits may be commenced in a foreign jurisdiction.
For instance, in the canoe lesson example provided above, recall that the Alberta plaintiffs
commenced the action in Alberta against the Ontario defendant. Presuming an enforceable forum
selection clause, should the defendant's insurer and the defendant have a dispute regarding
coverage, that dispute would be confined to the selected forum rather than being tied to the
foreign jurisdiction.
In other words, if the Ontario defendant hotel did attorn to Alberta's jurisdiction, then the action
in Alberta would continue. Should the defendant's insurer make the decision that coverage
would not be provided to the defendant insured, then the insured may commence a third party
claim or initiate a separate action against the insurer to claim a duty to defend and to indemnify.
In such a scenario, the insurer could then plead that a valid forum selection clause was in the
insurance contract.
To succeed in removing or staying the action in the foreign jurisdiction, the insurer would have
to specifically plead reliance upon the clear and unambiguous forum selection clause. Once the
forum selection clause is shown to be effective, the onus is then on the plaintiff to show a "strong
cause" to not rely upon the clause.31 The Supreme Court of Canada confirmed the use of the
"strong cause" test in determining whether to enforce the forum selection clause in its decision of
Momentous.ca Corp. v. Canadian American Association of Professional Baseball Ltd. Unless
there is a "strong cause" as to why the domestic court should exercise jurisdiction, order and fairness are better achieved when parties are held to their bargains.32 The courts have
acknowledged that forum selection clauses are generally encouraged by the courts as they create
certainty and security.33 The Supreme Court recognized that courts should give full weight to the
desirability of holding contracting parties to their agreement.34 Therefore, plaintiffs have to
establish sufficiently strong reasons for deviating from this principle.35 In that decision, the Court
further held that a party who delivers a Statement of Defence on the merits of the claim is not
precluded from relying upon a forum selection clause.36
IV. Conclusion
As people can travel across borders more easily and cheaply, the likelihood of claims being
brought outside of Ontario is increasing. As such, it is prudent to take preventative measures,
such as seeking legal advice before making the decision as to whether to attorn or to contest
jurisdiction. It is also crucial to seek legal advice in order to avoid unintentionally attorning to a
foreign jurisdiction. If attorning has already occurred, it is also prudent to consider whether to
plead the law of the jurisdiction where the tort took place.
Furthermore, actions commenced in Ontario against a foreign defendant also require careful
consideration before deciding whether to defend or attorn to Ontario's jurisdiction. Moreover,
Van Breda has emphasized the necessity of engaging in an extensive factual analysis of the case
in question in order to contest jurisdiction. Should the plaintiff demonstrate that there is a
presumption from one of the four Van Breda connecting factors, the defendant may rebut the
assumption of jurisdiction by showing that there is no real relationship between the jurisdiction
and the claim. Since Van Breda, parties have made arguments for the recognition of new
presumptive factors. Courts so far have been reluctant to easily recognize new presumptive
connecting factors. While there have been some new developments, such as statutory torts,37 it
will be interesting to see how courts continue to treat such arguments.
The laws in these areas are complex and require expertise to properly defend an action and to
obtain a preferred result. By carefully examining the considerations outlined above, insurers
defending their insureds in actions brought in Ontario for accidents arising outside of Ontario or
defending their Ontario insureds in actions brought outside of Ontario can ensure that they are
making an informed decision with respect to jurisdiction and are not unintentionally attorning to
a foreign jurisdiction. We will continue to monitor further developments in this interesting area
of the law as they unfold.
1 Van Breda v Club Resorts Ltd., 2012 SCC 17.
2 Wilson v Servier Canada Inc., [2000] 50 OR (3d) 219.
3 Damme v Gelber, 2013 ONSC 388, 288 ACWS (3d) 91.
4 Ontario has a general two year limitation period but there are many exceptions to this general rule. A full review of the relevant legislation is required to ascertain the applicable limitation period.
5 Hanlan v Sernesky, 38 OR (3d) 479, 1998 CanLII 5809 (ONCA).
6 Family Law Act, RSO 1990, c F.3
7 Ibid at para 9.
8 Brown v Kerr-McDonald, 2002 ABQB 955.
9 Throness Estate v Kerr, 1998 ABQB 1132.
10 Wong v Lee, [2002] OJ No 885.
11 This decision was considered under the framework of Bill 164 in Ontario, effective from January 1, 1994 to October 31, 1996, which barred recovery in tort for pecuniary losses against an owner, occupant or other protected person.
12 As noted, this paper is not intended to provide legal advice with respect to jurisdictions outside of Ontario. When dealing with laws of a province or state other than Ontario, it is necessary to consult a lawyer within that jurisdiction for advice and with respect to the relevant laws of that jurisdiction.
13 Tolofson v Jensen, [1994] 3 SCR 1022
14 Tolofson, at para 43.
15 Ibid. at para 50.
16 Wong, supra note 10.
17 Supra note 5.
18 In Hanlan, the exception was grounded in the concept of an injustice that would require the court to exercise the discretion, something beyond the ordinary differences between the laws of the forums. See Anand v Rumpal, 2014 ONSC 6030 at para 36.
19 For examples of Ontario decisions applying foreign law, see e.g. Wong supra note 10; Long (Litigation Guardian of) v Dundee Resort Development LLC, 2013 ONSC 4238 (applying Colorado substantive law); and Benson v Belair Insurance Co., 2015 CarswellOnt 16108 (FSCO Arb) (applying British Columbia law in Ontario).
20 Supra note 1.
21 Supra note 1, at para 90.
22 Colavecchia v. The Berkeley Hotel, 2012 ONSC 4747.
23 Ibid. at para 23.
24 See e.g. Export Packers Co. v. SPI International Transportation, 2012 ONCA 481; Tamminga v. Tamminga, 2014 ONCA 478; but see Toews v. First Choice Canada Inc., 2014 ABQB 784.
25 Kornhaber v. Starwood Hotels and Restaurants Worldwide, Inc., 2014 ONSC 6182.
26 Haufler (Litigation Guardian Of) v. Hotel Riu Palace Cabo San Lucas, 2013 ONSC 6044.
27 Wilson v. RIU, 2012 ONSC 6840.
28 Ibid., at para 14.
29 See Sugar v. Megawheels Inc., [2006] O.J. No. 4493.
30 Aldo Group Inc. v. Moneris Solutions Corporation, 2013 ONCA 725.
31 Momentous.ca Corp. v. Canadian American Association of Professional Baseball Ltd. 2012 SCC 9, at para 10-13.
32 Ibid. at para 9.
33 See e.g. Z.I. Pompey Industry v ECU-Line N.V., 2003 SCC 27, at para 20.
34 Ibid.
35 See 2249659 Ontario Ltd. Et al. v. Sparkasse Siegen et al., 2012 ONSC 3128, at para 18-19.
36 Momentous, supra note 30 at para 10-13.
37See Ontario v Rothmans Inc., 2013 ONCA 253, at para 40-45, indicating that the contravention of the Tobacco
Act may be considered a statutory tort and sufficiently analogous to a tort committed in Ontario to constitute a new
connecting factor.
