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Private International Law - Forum of Necessity

. Bowles v. Al Mulla Group

In Bowles v. Al Mulla Group (Ont CA, 2020) the Court of Appeal considered the forum of necessity to a case that admittedly had no real or substantial connection with Ontario:
The Forum of Necessity Doctrine

[5] While the appellant concedes that his action has no real and substantial connection to Ontario, he submits the motion judge erred by failing to assume jurisdiction in accordance with the forum of necessity doctrine, which is also known as the “forum of last resort”: Van Breda v. Village Resorts Limited, 2010 ONCA 84, 316 D.L.R. (4th) 201, at paras. 54, 100, aff’d on other grounds 2012 SCC 17, [2012] 1 S.C.R. 572. The appellant says that the motion judge erred by failing to consider his refugee status and the threat to his safety if he were to pursue his claim in Kuwait.

[6] We do not accept these submissions. The motion judge correctly considered and applied the forum of necessity doctrine to the evidentiary record before him and declined to exercise his discretion to assume jurisdiction. Absent a misdirection, a lack of weight given to relevant considerations, or a decision so clearly wrong amounting to an injustice, the motion judge’s discretionary decision is entitled to deference on appeal: Ibrahim v. Robinson, 2015 ONCA 21, 380 D.L.R. (4th) 306, at para. 12, citing Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125, at para. 27; Arsenault v. Nunavut, 2016 ONCA 207, at para. 4.

[7] As the motion judge correctly noted, the forum of necessity doctrine operates as an exception to the real and substantial connection test in extraordinary circumstances where there is no other forum in which the plaintiff can reasonably seek relief: Van Breda, at para. 100; West Van Inc. v. Daisley, 2014 ONCA 232, 372 D.L.R. (4th) 613, at paras. 20, 40, leave to appeal refused, [2014] S.C.C.A. No. 236; Forsythe v. Westfall, 2015 ONCA 810, 393 D.L.R. (4th) 141, at paras. 53, 55, leave to appeal refused, [2015] S.C.C.A. No. 460. It allows courts a residual discretion to assume jurisdiction where, despite the absence of a real and substantial connection, there is the need to ensure access to justice: Van Breda, at para. 100. It is well established that this doctrine is “very stringently construed” and “reserved for exceptional” cases, and therefore typically unavailable because of its high bar: West Van Inc., at para. 40; Forsythe, at para. 55.

The Alleged Physical Threat to the Appellant’s Safety

[8] The onus was squarely on the appellant to establish through cogent evidence that his was an exceptional case justifying the court’s rare assumption of jurisdiction on the basis of the forum of necessity doctrine: West Van Inc., at para. 39. ...
. West Van Inc. v Daisley

In West Van Inc. v. Daisley (Ont CA, 2014) the Court of Appeal extensively considered the 'forum of necessity' exception to the "real and substantial connection" venue test when deciding if a case was properly heard in Ontario, as opposed to another jurisdiction:
[17] In Van Breda, Sharpe J.A. said the following about the doctrine of forum of necessity:
... The forum of necessity doctrine recognizes that there will be exceptional cases where, despite the absence of a real and substantial connection, the need to ensure access to justice will justify the assumption of jurisdiction. The forum of necessity doctrine does not redefine real and substantial connection to embrace “forum of last resort” cases; it operates as an exception to the real and substantial connection test. Where there is no other forum in which the plaintiff can reasonably seek relief, there is a residual discretion to assume jurisdiction. In my view, the overriding concern for access to justice that motivates the assumption of jurisdiction despite inadequate connection with the forum should be accommodated by explicit recognition of the forum of necessity exception rather than by distorting the real and substantial connection test.
[18] This relatively new Canadian doctrine was derived from art. 3 of the Swiss Private International Law and first incorporated in art. 3136 of the Civil Code of Québec (C.C.Q.), which was enacted in 1991 and came into force in 1994. It was then included in s. 6 of the Uniform Law Conference of Canada’s (“ULCC”) model Court Jurisdiction and Proceedings Transfer Act, 1994. This model act was intended to promote uniform rules by which Canadian courts would establish jurisdiction over proceedings. Unlike the Swiss Private International Law and art. 3136 C.C.Q., s. 6 of the ULCC does not require that the dispute have a “sufficient connection” to the jurisdiction before the doctrine can be invoked. The model act, including s. 6, has since been adopted with minor variations in the Yukon, Nova Scotia and British Columbia: Court Jurisdiction and Proceedings Transfer Act, S.Y. 2000, c. 7, s. 6; Court Jurisdiction and Proceedings Transfer Act, S.N.S. 2003, c. 2, s. 7; Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, s. 6.[1] At the time of Van Breda, Ontario had not, and has not since, adopted the model law. Van Breda was the first time that a common law forum of necessity doctrine was explicitly recognized by a Canadian court: Tanya Monestier, “A “Real and Substantial” Improvement? Van Breda Reformulates the Law of Jurisdiction in Ontario”, in Justice Todd L. Archibald and Justice Randall Scott Echlin’s 2010 Annual Review of Civil Litigation (Toronto: Carswell 2010) 185, at pp. 215-216.

[19] On the appeal of Van Breda to the Supreme Court, the Supreme Court left the possible application of the forum of necessity doctrine open: Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (CanLII), [2012] 1 S.C.R. 572, at para. 100. LeBel J., for the court, wrote that where the real and substantial test is not met, the court “must dismiss or stay the action, subject to the possible application of the forum of necessity doctrine, which I need not address in these reasons.”

[20] All jurisdictions in Canada that have recognized the forum of necessity have incorporated a “reasonableness” test. In Ontario, under Van Breda, the plaintiff must establish that “there is no other forum in which the plaintiff can reasonably seek relief.” Article 3136 C.C.Q. provides as follows:
Even though a Québec authority has no jurisdiction to hear a dispute, it may hear it, if the dispute has a sufficient connection with Québec, where proceedings cannot possibly be instituted outside of Québec or where the institution of such proceedings outside Québec cannot reasonably be required.
And s. 6 of the ULCC’s model law provides as follows:
6. A court that under section 3 lacks territorial competence in a proceeding may hear the proceeding despite that section if it considers that
(a) there is no court outside [enacting province or territory] in which the plaintiff can commence the proceeding, or

(b) the commencement of the proceeding in a court outside [enacting province or territory] cannot reasonably be required.
[21] The “reasonableness” requirement has been stringently construed. To date, only one Ontario court has assumed jurisdiction based solely on the forum of necessity doctrine: see Bouzari v. Bahremani, [2011] O.J. No. 5009. Elsewhere in Canada, only the British Columbia Supreme Court has done so, and, in that case, on the basis of s. 6 of its Court Jurisdiction and Proceedings Transfer Act, (the “CJPTA”), which is in the form of s. 6 of the ULCC’s model law: see Josephson v. Balfour, 2010 BCSC 603 (CanLII), 10 B.C.L.R. (5th) 369.

[22] LeBel J.A., writing for the Québec Court of Appeal in Lamborghini (Canada) Inc. v. Automobili Lamborghini S.P.A., 1996 CanLII 6047 (QC CA), [1997] R.J.Q. 58 (C.A.), described the high bar that applies to a plaintiff seeking to rely on art. 3136 of the Québec Civil Code, at paras. 44-47:
According to its legislative history, this provision represents a narrow exception to the usual rules governing jurisdiction. It is not intended to allow a Québec court to seize a power that it would not otherwise possess. It is intended to settle issues of access to justice for a litigant on Québec territory, when the foreign forum that would normally have jurisdiction is unavailable for exceptional reasons such as a nearly absolute legal or practical impossibility. This includes, for example, the breakdown of diplomatic or commercial relations with a foreign State, the need to protect a political refugee, or the existence of a serious physical threat if the debate were to be undertaken before the foreign court.

...

Article 3136 C.C.Q. sets out an exception based on the demonstrated impossibility of obtaining access to the foreign court in a dispute that is sufficiently connected to Québec.

[translation][2]
[23] In Lamborghini, that bar was not met. The cost and inconvenience of a trial in Italy, and the impact it would have on the plaintiff’s tactical position, were not enough.

[24] The Québec Court of Appeal in Anvil Mining Ltd. v. Association canadienne contre l’impunité, 2012 QCCA 117 (CanLII), subsequently applied Lamborghini, and the British Columbia Supreme Court used it to inform its interpretation of forum of necessity in Josephson.

[25] In Anvil, the proposed representative plaintiff in a class action argued that it was not able to find attorneys in Australia to represent the class. The Québec Court of Appeal noted, at para. 102, that “no information whatsoever [had] been presented regarding the steps taken to this end.”[3] It concluded at para. 103 that the plaintiff had “not shown that it would be impossible to gain access to a foreign court and does not establish that the dispute has a sufficient connection with Québec.”[4]

[26] In Bouzari v. Bahremani, the only Ontario case to successfully invoke forum of necessity, the motion judge found in a default judgment that the plaintiffs were tortured in Iran by the defendant or at his instigation. The motion judge further found, at para. 5, that there was “no reasonable basis upon which [the plaintiffs could be] required to commence the action in a foreign jurisdiction, particularly, the state where the torture took place, Iran”, and went on to adopt this court’s reasoning in Van Breda. At para. 54 of Van Breda, Sharpe J.A. referred to Bouzari v. Islamic Republic of Iran (2004), 2004 CanLII 871 (ON CA), 71 O.R. (3d) 675 (C.A.), a case based on the same factual scenario as in Bouzari v. Bahremani but brought against the Islamic Republic of Iran rather than individuals, as “hinting” at the concept of forum of necessity. In that case, the court concluded that the plaintiff’s claim based on torture in a foreign state was barred by the State Immunity Act, R.S.C. 1985, c. S-18. It therefore did not need to address the question of whether the courts of Ontario could assume jurisdiction: see Bouzari v. Islamic Republic of Iran, at paras. 36-38.

[27] In Bouzari v. Bahremani, the defendant later had the default judgment set aside, and challenged jurisdiction, claiming that England was a more appropriate forum: both the plaintiff and defendant agreed that the action could not be heard in Iran. The court denied the defendant’s request. Ontario had assumed jurisdiction based on the forum of necessity – which the defendant did not initially challenge – and the defendant had not met his burden of establishing that England was clearly a more appropriate forum: Bouzari v. Bahremani, 2013 ONSC 6337 (CanLII).

[28] Josephson – the only other case where the doctrine of forum of necessity has been successfully invoked – involved a unique constellation of facts. Josephson was a passenger in a golf cart driven by Clark on a golf course in British Columbia. Both Josephson and Clark were residents of Idaho. Josephson was thrown from the golf cart and injured. He was first treated in a hospital in British Columbia, and then transferred to a hospital in Idaho. His condition worsened after his transfer to the Idaho hospital. Josephson sued Clark in British Columbia. Josephson did not sue or intend to sue the Idaho hospital or any of its doctors. However, Clark alleged that Josephson received negligent medical treatment in Idaho, and that it contributed to the damages suffered by Josephson. He sought to claim contribution and indemnity from the Idaho hospital and its treating doctors in the action in British Columbia. The Idaho doctors then moved to stay Clark’s third party claim against them in the British Columbia action.

[29] The parties agreed that in Idaho a non-patient could not bring an action for contribution and indemnity from a physician or hospital, and that Idaho had abolished joint and several liability in most tort actions, including medical malpractice. Accordingly, unless Clark was able to sue the Idaho third parties in the British Columbia action, he risked being found 100% liable for all of the damages sustained by Josephson, and having no ability to claim against the Idaho hospital and its doctors.

[30] The motion judge concluded that the third party claim did not meet the real and substantial connection test. It concerned a tort committed by the Idaho third parties in Idaho, not in British Columbia. However, in the circumstances, the court could, and should, assume jurisdiction under s. 6 of the CJPTA.

[31] First, Clark could not bring an action for contribution and indemnity in Idaho because he was not the patient. “To argue that s. 6 does not apply because Mr. Clark can commence his action and not be successful, does not reflect a fair, large, and liberal construction of the CJPTA or an interpretation that best ensures the attainment of its objects”: at para. 96

[32] Second, even if Clark in theory could bring an action in Idaho, he could not be reasonably required to do so. He did not choose British Columbia as the forum. He was sued there by Josephson. Under British Columbia law, Clark would be liable for 100% of the damages suffered by Josephson. If Josephson had instead sued in Idaho, Clark would only be liable for his proportionate share of the liability. Moreover, the hospital and its doctors would not be substantively prejudiced if they were added as third parties in the British Columbia action. They would only be liable to pay their proportionate share.

[33] Third, the factual matrix of the third party claims was closely connected with the main action in British Columbia. In the circumstances, the only practical approach was for one court to hear all of the matters.

[34] There are numerous cases from both Ontario and British Columbia where the courts have declined to assume jurisdiction using the forum of necessity doctrine – the Ontario cases relying on the common law doctrine, and the British Columbia cases on s. 6 of the CJPTA: see Van Kessel v. Orsulak, 2010 ONSC 6919 (CanLII); Elfarnawani v. International Olympic Committee, 2011 ONSC 6784 (CanLII); Mitchell v. Jeckovich, 2013 ONSC 7494 (CanLII); Lailey v. International Student Volunteers, Inc., 2008 BCSC 1344 (CanLII), 88 B.C.L.R. (4th) 357; Sooparayachetty v. Fox, 2010 BCSC 185 (CanLII); and Aleong v. Aleong, 2013 BCSC 1428 (CanLII). A review of these cases reinforces the high bar plaintiffs must meet in order for the court to assume jurisdiction through the forum of necessity doctrine.

[35] In Van Kessel, the motion judge held that the facts that the plaintiff had not succeeded in retaining counsel in Pennsylvania after contacting four lawyers, and had little or no means to conduct a trial in the United States, did not warrant the court exercising its discretion to assume jurisdiction based on the forum of necessity doctrine. In Elfarnawani, the motion judge concluded that the practical difficulties cited by the plaintiff demonstrated no more than that it would be inconvenient to pursue his action in Switzerland. This was insufficient to establish jurisdiction based on forum of necessity. In Mitchell, at para. 49, the motion judge held that the fact that the Ontario plaintiff’s personal injury claim was statute-barred in New York, where the accident had occurred, was not “an exceptional circumstance warranting the use of residual discretion.”

[36] In Lailey, the court concluded that British Columbia had territorial competence in the proceedings brought by two of the three plaintiffs. Because all three of the plaintiffs could have commenced their action in California, it rejected the argument of the third plaintiff that it would be unreasonable for her to commence a proceeding outside of British Columbia as it would result in a multiplicity of proceedings and unnecessary expense. In Sooparayachetty, the plaintiffs had also commenced actions in Alberta, and were therefore unable to establish that British Columbia was a “forum of last resort”. Finally, in Aleong, the court rejected controverted evidence of a party to a family law dispute that she could not reasonably commence her proceeding in Trinidad because of the level of crime and the risk to her safety.

[37] Two other Ontario cases – Obégi Chemicals LLC v. Kilani, 2011 ONSC 1636 (CanLII) and Wolfe v. Pickar, 2010 ONSC 2368 (CanLII), aff’d 2011 ONCA 347 (CanLII), 282 O.A.C. 64 – found that the defendants had a real and substantial connection to Ontario, but added, in obiter, that, if incorrect in so concluding, the doctrine of forum of necessity would have permitted the assumption of jurisdiction. In Obégi, the plaintiffs sought to enforce foreign judgments in Ontario. The defendants challenged the jurisdiction of the courts of Ontario to freeze their assets. The analysis of forum of necessity was minimal. The motion judge appeared to have reasoned that only Ontario could freeze the defendants’ Ontario bank account and was therefore the forum of necessity. It would seem to me that there is no need to resort to the forum of necessity doctrine when a plaintiff seeks to freeze a defendant’s assets located in Ontario. The existence of assets within Ontario is surely an un-rebuttable presumptive connecting factor linking the action to freeze those assets to the jurisdiction of Ontario, and entitling Ontario to assume jurisdiction based on the real and substantial connection test. The motion judge in Wolfe seemingly concluded that the forum of necessity would permit Ontario to assume jurisdiction because the action commenced in the foreign jurisdiction was statute barred. This court agreed with the motion judge that there was a real and substantial connection and accordingly did not assess whether the assumption of jurisdiction could be justified by the doctrine of necessity. However, Mitchell, discussed above, subsequently squarely and soundly rejected the argument that the expiry of a foreign limitation period is a sufficient basis to invoke the forum of necessity doctrine.


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Last modified: 03-12-20
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