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Page 14 OctOber 6, 2014 • Law Times www.lawtimesnews.com Tamminga v. Tamminga appeal court rejects jurisdiction for accident in alberta By marg. Bruineman For Law Times hen someone has insurance in On- tario but suffers an accident in an- other province, which court has jurisdiction? That was a key question in a recent case considering jurisdic- tion issues in insurance matters. While residents of one prov- ince have coverage from their own insurance if they're in an accident somewhere else, the Ontario Court of Appeal up- held a decision in Tamminga v. Tamminga to stay the case in Ontario, despite the fact the plaintiff had an Ontario-based insurance policy, because there was no link here to the out-of- province defendants. "The court proceeded on the basis that the only presumptive connecting factor was her in- surance company," says Patrick Monaghan of Monaghan Reain Lui Taylor LLP. And, it concluded, that wasn't enough to have the issue heard in Ontario. "The real crux of this matter is the courts are in- creasingly being strict" in approaching jurisdictional issues, says Monaghan, add- ing that the law has evolved a great deal over the past sev- eral years. Karen Tamminga suf- fered injuries when she fell off a truck in Alberta. She launched an action in the Ontario Superior Court of Justice against the owner and operator of the truck, who lives in Alberta, as well as a corporate co-owner of the vehicle registered in Alberta. She also had a claim against her Ontario automobile in- surer. The question was whether her contract claims against her insurer in connection with her accident were enough for the courts to assume jurisdic- tion against the non-resident respondents. The issue before the court, then, was whether her insurance contract was a suffi- cient "presumptive connecting factor." Rahool Agarwal, who pra ctises commercial litiga- tion at Norton Rose Fulbright Canada LLP, says the decision offers some practical guidance in situations involving mul- tijurisdictional disputes and ex- pands upon the Supreme Court of Canada's 2012 decision Club Resorts Ltd. v. Van Breda. "It provides further clarity on the contract-connected factor," says Agarwal, who acted for the respondents in the case. "That factor has not received a great deal of atten- tion from appellate courts since it was established as a presumptive connecting fac- tor in Van Breda. Tamminga will help litigants choose where to commence litiga- tion and avoid unnecessary jurisdictional motions. The court states quite clearly that there needs to be nexus be- tween the contract and tort for the contract to determine jurisdiction. A tangential connection to the dispute is not enough." The decision should there- fore help put an end to purely tactical attempts to use a con- tract claim to obtain jurisdic- tion over a non-resident defen- dant, according to Agarwal. "It raises an issue whether or not Ontario had the jurisdic- tion to deal with it," says Daniel Strigberger, a partner with Mill- er Thomson LLP's Waterloo, Ont., office. There is a tendency, he says, for people to bring cases where they happen to be unless there's a clear benefit to pursuing them elsewhere. In Tamminga, the Court of Appeal found the involvement of the Ontario-based insurer wasn't a satisfactory connection to capture the Alberta case and it therefore couldn't proceed in Ontario. In citing Van Breda, the court referred to several presumptive connecting factors allowing it to assume jurisdiction: the de- fendant lives in this province or carries on business here; the acci- dent happened here; or a contract connected with the dispute was made in this province. But in this case, it didn't accept the fact that the plaintiff lives in this province as a sufficient connection. While it examined the con- tractual connecting factor in Tamminga, the court found the Ontario insurance contract had to have some connection with the Alberta family. "An automobile insurance contract 'anticipates' accidents generally, but the tortfeasor will not be identifiable in advance. Unlike the contract in Van Breda, there is nothing that con- nects the appellant's insurance contract to the respondents. They are not parties to or bene- ficiaries of the contract. The ap- pellant was not visiting the farm in Alberta for any reason related to the contract. The connection between the insurance policy and the dispute only arises in the aftermath of the tort and its application is conditional on the outcome of the appellant's claim against the tortfeasors," wrote Chief Justice George Strathy. "In a word, there is no nexus between the insurance contract and the respondents." Although the court found Tamminga to be missing that crucial link, lawyer Patrick Brown hopes Strathy's reasons aren't the last word on the issue of jurisdiction. He sees the potential for three separate court actions by Tam- minga: the lawsuit involving the driver in Alberta; another in Ontario for accident benefits; and a third in this province un- der the underinsured provisions of her own insurance company. Brown, a partner at McLeish Orlando LLP, expects that given another set of facts, the court would decide differently. He sees some potential for a change in jurisdiction if the driver's policy limit is much lower than that of the accident victim in order to make up the difference in the case of a catastrophic in- jury. And if that difference far exceeds the amount available through a provider in another province and the bulk of the claim is in Ontario, there's an argument to have the case heard here, he suggests. "I think, overall, the Ontario Court of Appeal is taking a re- strictive approach," says Brown. "There is a window still on certain factual cases where the court may order that a connec- tion was made. I think it's go- ing to be really tough now for people making these actions in Ontario." LT Contact our Medical Malpractice Litigation Team at 416-868-3100 or 1-888-223-0448 or visit us online at thomsonrogers.com/medical-malpractice. For over seventy years, the experts at Thomson, Rogers have been representing children affected by birth trauma including brain damage, cerebral palsy and brachial plexus. We are leaders in the field and experts on the subject. If your client is faced with the unthinkable, refer them to the experts. The team at Thomson, Rogers is the right choice. When the unthinkable happens YOUR ADVANTAGE, in and out of the courtroom Trust the experts to handle birth trauma cases. W 'Tamminga will help litigants choose where to commence litigation and avoid unnecessary jurisdic- tional motions,' says Rahool Agarwal. A Sept. 29 article, "Lessons from Ford defamation case," mixed up the attribution of two quotes. Lawyer Gil Zvulony said, "Cor- porations don't lose sleep over their reputations. ere's no such thing as hurt feelings," rather than Brian Radnoff of Lerners LLP. As to the quote, " e judge said that Baker could not rely on the responsible communication defence," that was from Radnoff rather than Zvulony. CORRECTION FOCUS