The Supreme Court of Canada recently announced that they will not hear an appeal from an Ontario women injured in a 2012 motorcycle accident in British Columbia. This decision effectively upholds the finding of Ontario’s Superior Court of Justice in the case of Forsythe v. Westfall, 2015 ONSC 758.
Forsythe was a resident of Ontario and a passenger on a motorcycle for a road trip through B.C. The driver of the motorcycle, Westfall, was a resident of Alberta. Westfall lost control of the motorcycle, resulting in injuries to both parties. Westfall claims that an unidentified oncoming vehicle swerved into his lane, ultimately causing the accident.
Forsythe had entered into a contract of insurance with her provider, Intact, in Ontario.
Forsythe commenced an action in Ontario for damages against Westfall. She also sought coverage under her family protection endorsement which provides coverage in cases where at-fault parties are unidentified, uninsured or underinsured. She argued that, because her contract of insurance was entered into in Ontario, that was the appropriate place for the matter to be tried.
Westfall, however, brought a motion to stay the proceedings on the basis that an Ontario court did not have jurisdiction over the dispute – he was neither a resident of Ontario nor did the accident occur there. The Ontario Superior Court agreed with Westfall and held that Ontario was not the right place for Forsythe to sue Westfall. Ultimately, it was determined that her policy of insurance was irrelevant to the issue of where to sue the Alberta resident arising from an accident that occurred in B.C.
Forsythe also attempted to rely upon the doctrine of “forum of necessity,” which allows a court to dismiss a case where another court is much better suited to hear the case. To that end, she argued that trying the matter in B.C. would force her to litigate her tort claim in that province while pursuing her contractual claim against Intact in Ontario. Trying both matters in one jurisdiction would prevent a multiplicity of proceedings arising from the same incident. To the contrary, the Court held that Forsythe was not without a forum to advance her claim – she was free to pursue her action in a B.C. court. Although the Court acknowledged the inconvenience this may pose, inconvenience is not sufficient to require application of the doctrine.
The Superior Court decision was upheld on appeal to the Court of Appeal. The Supreme Court’s recent decision not to hear a further appeal affirms that an insured must sue their own insurer in Ontario and sue the tortfeasor in the province where the accident occurred or where the tortfeasor resides.