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Since its founding in 1991, OTLA has vigorously pursued its mission “to fearlessly champion through the pursuit of the highest standards of advocacy the cause of those who have suffered injury or injustice.” Whether it be through law reform efforts, continuing education programs, roundtables, the OTLA Update and Litigator magazines or an active list serve, the goal throughout has been on the sharing of information for the benefit of members.

Equally important, but perhaps less well known, have been the interventions in which OTLA has been involved over the years. With a mandate to follow strict criteria relating to access to justice, a committee of the Board of Directors carefully monitors legal developments to determine the appropriateness of proposed interventions. During the past several years in particular, under the outstanding leadership of Board Member Duncan Embury, OTLA has sought and been granted leave to intervene in a wide range of cases of importance to clients that OTLA members might represent. The purpose of this paper is to highlight these efforts.

In Demiroglu v. Kwarteng, [2000] O.J. No. 4526 (Div. Ct.), the Court considered the issue of who should bear the cost of producing answers to undertakings. While the Court declined to lay down a general rule, OTLA’s submissions were described as “helpful to the Court and in the public interest.” Whiten v. Pilot Insurance Company, [2002] 1 S.C.R. 595 (S.C.C.) involved an award of punitive damages in a fire loss insurance claim. The Insurance Council of Canada intervened and argued that awards of punitive damages would over deter insurers from reviewing claims, would lead to the payment of unmeritorious claims and would cause insurance premiums to rise. OTLA Presidents Robert Munroe and Tom Connolly, as well as Andrew Spurgeon, appeared on OTLA’s behalf to answer these submissions. Their position and that of the Plaintiffs prevailed and the jury’s punitive damage award of $1,000,000 was reinstated. In Persofsky v. Liberty Mutual, [2003] O.F.S.C.D. No. 11, OTLA intervened in an appeal before the Financial Services Commission involving an allegation of institutional bias against its panel of Arbitrators. Stewart Gillis appeared on OTLA’s behalf and his submissions and those of the Plaintiff were accepted by FSCO. InMcIntyre Estate v. Ontario (Attorney General) (2003), 61 O.R. (3d) 257 (C.A.), the Court of Appeal considered the lawfulness of contingency fees in Ontario. The submissions of OTLA President James Vigmond and Brian Cameron were accepted by the Court and led to legislative reform in this area. The Court stated: “There can be no doubt that from a public policy standpoint, the attitude towards permitting the use of contingency fee agreements has undergone enormous change over the last century. The reason for the change in attitude is directly tied to concerns about access to justice. Over time, the costs of litigation have risen significantly and the unfortunate result is that many individuals with meritorious claims are simply not able to pay for legal representation unless they are successful in the litigation.”

1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2007), 82 O.R. (3d) 757 (C.A.) involved the issue of whether a party with counsel appearing on a pro bono basis should be entitled to an award of costs. The views of OTLA, the Advocates’ Society and Pro Bono Law Ontario were sought. OTLA’s interests were again represented by James Vigmond and his submissions as well as those of the other legal organizations were accepted by the Court. Feldman J.A. stated: “It is clear from the submissions of the amici representing the views of the profession, as well as from the developing case law in this area, and I agree, that in the current costs regime, there should be no prohibition on an award of costs in favour of pro bono counsel in appropriate cases. Although the original concept of acting on a pro bono basis meant that the lawyer was volunteering his or her time with no expectation of any reimbursement, the law now recognizes that costs awards may serve purposes other than indemnity. To be clear, it is neither inappropriate, nor does it derogate from the charitable purpose of volunteerism, for counsel who have agreed to act pro bono receive some reimbursement for their services from the losing party in the litigation.”

Legroulx v. Pitre, [2008] O.J. No. 443 (S.C.J.) involved a Special Case in which the
insurer claimed that the discretion given to judges to strike out a jury on grounds of complexity contravened the Charter of Rights and Freedoms. OTLA and the Advocates’ Society were again invited to participate. I was privileged to act on OTLA’s behalf. The insurer’s position was that the wording in Rule 47.02 permitting a judge to strike out a jury in a “proper case” was unconstitutionally vague. In considering this position, it seemed to me that acceptance of this view would strike at the heart of judicial discretion and call into question a large number of rules, statutes and legal concepts which are equally open ended and are necessary in our common law legal tradition. This point was accepted by Justice Power as “valid and compelling” and the insurer’s application was dismissed, as was an appeal to the Court of Appeal and an application for leave to appeal to the Supreme Court of Canada.

Liu v. 1226071 Ontario Inc. (2010), 97 O.R. (3d) 95 (C.A.) involved the interpretation of the catastrophic impairment designation in the context of the Glasgow Coma Scale. O. Reg. 461/96 s. 5(1)(e)(i) provides that “catastrophic impairment means brain impairment that, as a result of the incident, results in a score of 9 or less on Glascow Coma Scale,…according to a test administered within a reasonable period of time after the incident by a person trained for that purpose.” The Plaintiff’s initial score after the accident was 3/15 but climbed to 8/15, 12/15 and 14/15 shortly thereafter. Once again, James Vigmond and Brian Cameron acted on OTLA’s behalf and assisted the Court on the interpretation of the legislation. Their position and that of the Plaintiffs was accepted, with the effect that the Plaintiff was declared catastrophically impaired and entitled to the health care benefits awarded by the jury.

Van Breda v. Village Resorts Limited and Charron (Estate) v. Bel Air Travel Group Ltd.(2010), 98 O.R. (3d) 721 (C.A.), to be discussed in more detail below, involved claims arising out of accidents in Cuba. In both cases, the Cuban resort owner brought a motion to stay the action on grounds that Ontario courts did not have jurisdiction over the action. The motions were dismissed. Subsequent appeals brought by the Defendants were heard together. While the appeals were under reserve, the Court of Appeal decided to convene a five judge panel to reconsider the Muscutt test for the assumption of jurisdiction. OTLA sought and was granted leave to intervene, and I was again privileged to represent OTLA’s interests. The appeals were dismissed and the Muscutt test was retained with modifications. The Defendants have since obtained leave to appeal the decisions to the Supreme Court of Canada.

Liebig v. Guelph General Hospital, 2010 ONCA 450 (C.A.) involved an appeal by the Canadian Medical Protective Association from an order declaring that a physician owed a duty of care to a fetus in the course of labour and delivery. OTLA President Richard Halpern represented OTLA’s interests on this important issue. The Court accepted the submissions of the Plaintiffs and OTLA that physicians may be found liable to a child who is born alive for negligence that occurs during the course of labour and delivery.

In addition to these significant cases, OTLA intends to seek to intervene in a number of upcoming matters which are of concern to OTLA members. The decision in Gyoffry v. Druryinvolves the interpretation of the Insurance Act and an appeal to the Divisional Court from the decision of Justice Lemon holding that corroboration beyond that of a physician is required in order to meet the threshold. Silveira v. Regional Municipality of York involves an application to the Superior Court of Justice challenging the validity of the Minimum Maintenance Standards enacted pursuant to the Municipal Act and relied upon by municipalities to defend actions where there is an allegation of inadequate maintenance of roads and highways under their control and direction. Augello v. Economical Mutual Insurance Company, [2009] O.F.S.C.D. No. 142 involves the issue of whether physical and psychological impairments can be combined for purposes of a finding of catastrophic impairment under the Statutory Accident Benefits Schedule. Pastore v. Aviva Canada Inc., [2009] O.F.S.C.D. No. 163 involves the interpretation of section 2(1.1)(g) of the SABS and whether a marked impairment in only one of the four areas of function referred to in the AMA Guidelines can result in a finding of catastrophic impairment. Both of these decisions are under appeal to the Divisional Court, and it is OTLA’s intention to seek leave to intervene on these important matters once the appeals have been perfected.

It can be seen from this review that OTLA has been vigilant in seeking out cases affecting its members in which OTLA can potentially offer assistance to the Court. It would appear that Courts have concluded OTLA can indeed provide such assistance, as OTLA’s submissions have frequently been accepted. As mentioned above, I was fortunate to have been involved in the interesting appeals regarding the jurisdiction of Ontario Courts for accidents occurring outside the Province. Before discussing the appeals, some background to the issue may be appropriate.

In 2002, the Court of Appeal for Ontario took the unusual step of consolidating five appeals each of which shared a common feature: an Ontario resident is injured in an accident outside the province and suffers damage and a loss of income upon their return. The cases involved varied circumstances: a car accident in Alberta, a slip and fall in Buffalo, a car accident in New York State and injuries sustained on excursions in the Caribbean. The question at issue in each one of the cases was whether it was appropriate for Ontario courts to assume jurisdiction over the action. The Court of Appeal had undoubtedly considered it necessary to consolidate the appeals in order to bring needed clarity to this difficult and complex area of the law. In taking on the task, the Court was faced with competing models of jurisdiction and little guidance from the Supreme Court of Canada, beyond the propositions that a court can assume jurisdiction where there is a real and substantial connection between the forum and the cause of action and that decisions in the area must be guided by principles of order and fairness.

The five cases came to be known as the Muscutt quintet, after the lead case of Muscutt v. Courcelles (2002), 60 O.R. (3d) 20. In his outstanding reasons on behalf of the Court, Mr. Justice Robert Sharpe undertook a historical review of the issue, reviewed academic commentary and proceeded to lay down the now familiar set of eight factors to be taken into account in deciding whether a court should assume jurisdiction over an out of province defendant: the connection between Ontario and the plaintiff’s claim; the connection between Ontario and the defendant; unfairness to the defendant in assuming jurisdiction; unfairness to the plaintiff in not assuming jurisdiction; involvement of other parties to the suit; the court’s willingness to recognize and enforce a judgment against a domestic defendant rendered on the same jurisdictional basis; whether the case is international or inter provincial; comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere.

The Muscutt decision had an enormous impact. Given the learning and authority behind it, the reasons were bound to attract a wide following. Not all of it was favourable. Academics in particular criticized the decision, saying that the multi-factored test lead to uncertain decision making and gave too much discretion to judges. A further criticism was that, by including fairness in the list of factors to consider, the Court blurred the lines between jurisdiction and the doctrine of forum non conveniens. Perhaps the most hard hitting critique came from Professor Tanya Monestier, whose article entitled “A ‘Real and Substantial Mess’: The Law of Jurisdiction in Canada” (2007) 33 Queen’s L.J. 179 neatly summarized her point of view.

Despite these criticisms, over the next seven years Muscutt came to be cited with approval hundreds of times in all manner of circumstances. With the exception of New Brunswick – seeCoutu v. Gauthier (Estate) (2006), 264 D.L.R. (4th) 319 (N.B.C.A.) – the decision was followed by courts in other provinces and was referred to in subsequent decisions of the Supreme Court of Canada: Beals v. Saldhana, [2003] 3 S.C.R. 416 and Castillo v. Castillo, [2005] 3 S.C.R. 870. There appeared to be little judicial appetite to change the Muscutt test.
Morgan Van Breda was 25 years old when she accompanied her common law spouse Victor Berg on a working holiday in Cuba. Mr. Berg was a squash professional and had been hired to give tennis lessons at a Cuban resort. The contract was arranged by a firm in Ottawa and provided that Mr. Berg and a guest of his choice would be entitled to accommodations and meals at the resort in exchange for lessons to be given to patrons. On their first day there, Ms. Van Breda and Mr. Berg took a walk along the beach. They came upon an apparatus described as a   soccer goal. When Ms. Van Breda attempted to do chin-ups, the structure collapsed on top of her. Tragically, she suffered spinal cord injuries and was rendered a paraplegic. Her resulting claim against the Ottawa firm and the Cuban resort manager was brought in the Superior Court of Justice. The manager of the resort, Club Resorts Ltd., brought a motion to stay the action. In his reasons dismissing the motion, Mr. Justice Laurence Pattillo held that a contract had been made in Ontario by virtue of the arrangements between the Ottawa firm on behalf of Club Resorts and Mr. Berg, and that the Superior Court could properly assume jurisdiction over the action: Van Breda v. Village Resorts Limited (2008), 60 C.P.C. (6th) 186. CRL appealed the decision.

Claude Charron and his family purchased an all-inclusive vacation at a Cuban resort through a travel agent in Barrie. Mr. Charron was an avid scuba diver and wanted to ensure this was part of the vacation package. On his second day participating in a scuba diving excursion, Mr. Charron died tragically. The resulting claim brought by his family and estate was commenced in the Superior Court of Justice and included Club Resorts Ltd. as a defendant. CRL’s motion to stay the action was heard by Mr. Justice Gregory Mulligan. In his reasons dismissing the motion, Justice Mulligan held that the actions of CRL in entering into a marketing agreement with an Ontario tour operator to advertise and promote its Cuban resorts created a real and substantial connection with the province and permitted the Superior Court to assume jurisdiction over the action: Charron Estate v. Bel Air Travel Group Ltd. (2008), 92 O.R. (3d) 608. CRL appealed the decision.

Once again, the appeals were consolidated and were argued on April 30, 2009. No one called the Muscutt test into question in their submissions to the Court. However, while the decisions were under reserve, the Court advised counsel that in view of the academic literature on Muscutt, subsequent decisions of the Supreme Court of Canada and the enactment of the Court Jurisdiction and Proceedings Transfer Act in four provinces, the appeals would be reargued before a five judge panel of the Court. Counsel were asked to address their submissions to the continuing appropriateness of the Muscutt test. I became involved in the matter at that point as counsel for OTLA. Given the potential implications of the decisions for access to justice, OTLA sought leave to intervene in the appeals. By order dated August 6, 2009, over the objections of CRL, Mr. Justice Paul Rouleau permitted OTLA to intervene for the purpose of making submissions on the Muscutt test. The Tourism Industry Association of Ontario had earlier been granted intervenor status on the appeals.

OTLA’s position on the matter was simple: If it ain’t broke, don’t fix it. The Muscutt test provided a useful framework for analysis in the myriad circumstances in which the issue of jurisdiction could arise. The academic criticisms of the decision were misguided and the pleas for certainty in this area of the law were misplaced. In the absence of a bright line test that only the courts where an accident occurred would have jurisdiction over the action – a test which no one was arguing for – discretion and uncertainty were inevitable. The major focus of criticism seemed to be on the inclusion of fairness as part of the test for jurisdiction. OTLA’s submission was that considerations of fairness were in keeping with the jurisprudence of the Supreme Court of Canada, which has emphasized that the assumption of jurisdiction must be guided by principles of order and fairness. Professor Janet Walker put the matter well in “Beyond Real and Substantial Connection: The Muscutt Quintet” (2002), Annual Review of Civil Litigation 61:

“Clearly, a consideration of fairness could not be pre-empted in a jurisdictional determination that proceeds in accordance with the constitutional requirements of order and fairness. If the interposition of the real and substantial connection test could pre-empt the consideration of fairness because the test did not encompass considerations of fairness, then the test simply cannot be comprehensive of the grounds of jurisdiction prescribed by the principles of order and fairness.”

The criticism that fairness was properly considered only within the forum non conveniensanalysis overlooked the fact that, if the test for jurisdiction were not met, the court would not need to consider forum non conveniens. Fairness would thus be left out of the equation.

CRL asked the Court to adopt a model of jurisdiction similar to that set out in the Court Jurisdiction and Proceedings Transfer Act, enacted in Nova Scotia, Saskatchewan, British Columbia and Yukon. Under section 10 of the Act, there is a list of circumstances in which a court is presumed to have jurisdiction. In section 6, the Act provides that a court can assume jurisdiction in the absence of a real and substantial connection if there is no other jurisdiction in which the plaintiff can commence the proceeding or commencing the proceeding outside the jurisdiction “cannot reasonably be required.” This provision reflects the “forum of necessity” doctrine. The Act makes clear that the list of presumed categories of jurisdiction is not closed. The opening words of section 10 state “Without limiting the right of the plaintiff to prove other circumstances that constitute a real and substantial connection…” and goes on to recite the presumptive categories, which are similar to Rule 17.02 of the Ontario Rules of Civil Procedure.

CRL’s submission was that adopting the CJPTA model for jurisdiction would lead to more predictable outcomes and would be in keeping with the need for harmonization of the law across the country. OTLA’s submission was that adopting the CJPTA model would lead to increased litigation, as section 10 leaves open the categories of jurisdiction and section 6 leaves open the circumstances in which the forum of necessity doctrine should be applied. OTLA further submitted that harmonization of the law was unnecessary and in any event could only be accomplished by legislative enactment not judicial action. If the Court were to consider reforming the Muscutt test, OTLA submitted that factors 6 to 8 of the test were of less importance in light of the Supreme Court of Canada decision in Beals v. Saldhana on the recognition of foreign judgments and might no longer need to be given as much weight. The plaintiffs also supported retention of the Muscutt test with possible minor modifications

The appeals were reargued on October 5 and 6, 2009. Members of the panel had clearly thought through the issues and had carefully reviewed the abundant materials before the hearings commenced. A number of academics interested in the area, aware the Court was reconsidering the Muscutt test, rushed papers into print to add their voices to the debate. The stage was set for a stimulating argument and the panel of the Court did not disappoint. It was an honour to have been involved on OTLA’s behalf.

The Court of Appeal’s reasons for decision were released on February 2, 2010 and are reported at (2010), 98 O.R. (3d) 721. It was appropriate that Justice Robert Sharpe, author of the Muscutt quintet who had been added to the panel after the appeals were set to be reargued, wrote the decisions. Justice Sharpe began by citing a commentator’s view: “It is not surprising that after seven years in the trenches, Muscutt would be due for a tune up.” He addressed the academic criticism and submissions of CRL on the uncertainty created byMuscutt, and reached this important conclusion: “In my view, the submissions of the appellants exaggerate both the degree of uncertainty produced by Muscutt and the degree of certainty and predictability that would be achieved by adopting CJPTA.”

Justice Sharpe acknowledged that the Muscutt test might be overly complicated and he proceeded to make “clarifications and modifications” to the test for the purpose of tightening the analysis. He emphasized that factors 1 and 2 – the connection between Ontario and the plaintiff’s claim and the connection between Ontario and the defendant – were now to be considered as the core of the jurisdictional test and the remaining factors were to be treated as “analytic tools” to help guide the analysis. In keeping with the approach set out in the CJPTA, the categories of claims found in Rule 17.02 of the Rules of Civil Procedure, with the exceptions of Rule 17.02(h) and 17.02(o), were now to be given presumptive effect as real and substantial connections sufficient to justify the assumption of jurisdiction.

Rule 17.02(h) – damage sustained in Ontario arising from a tort, breach of contract, breach of fiduciary duty or breach of confidence wherever committed – and Rule 17.02(o) – a necessary or proper party to a proceeding properly brought against another person served in Ontario – were not given presumptive effect because those categories of claims have not received wide enough acceptance to constitute a real and substantial connection. Justice Sharpe was careful to note that the category based approach did not close off the possibility of asserting those types of claims in Ontario: “I emphasize, however, that I disagree with the appellant’s suggestion that plaintiffs should essentially be confined to the enumerated categories. That is not the case under CJPTA and to impose such a limit would be inconsistent with the entire thrust of the jurisprudence I have already reviewed emphasizing the need for flexibility in this area of law.”

As indicated, factors 1 and 2 are now considered the core of the test for jurisdiction.  Regarding plaintiffs, Justice Sharpe reaffirmed the holding in Muscutt that damage sustained in Ontario as a result of an accident occurring elsewhere is a substantial connection. He reiterated the statement in Muscutt that “The forum has an interest in protecting the legal rights of its residents and affording injured plaintiffs generous access for litigating claims against tortfeasors.” Regarding defendants, Justice Sharpe stated “When assessing the connection between the forum and the defendant, the primary focus is on things done by the defendant within the jurisdiction. Where the defendant confines its activities to its home jurisdiction, it will not ordinarily be subject to the jurisdiction of the forum.” This is in keeping with the results in the Muscutt quintet, where only one out of the five cases – the car accident in Alberta – was held to have been properly brought in Ontario. Justice Sharpe emphasized however that “acts or conduct short of residence or carrying on business will often support a real and substantial connection. As stated in Beals, at para. 32, ‘a defendant can reasonably be brought within the embrace of a foreign jurisdiction’s law where he or she has participated in something of significance or was actively involved in that foreign jurisdiction.’”

On the contentious issue of fairness, Justice Sharpe rejected the proposition that fairness should not form part of the test for jurisdiction, stating: “The principles of order and fairness apply equally to the plaintiff and, as stated in Muscutt, at para. 89, the entire thrust of modern jurisprudence, from Moran to Morguard and beyond, has been to broaden the inquiry beyond the contacts the defendant has with the jurisdiction and to include consideration of fairness to the plaintiff.” However, Justice Sharpe went on to clarify that considerations of fairness should not be seen as a separate inquiry from the core of the test, and that fairness alone cannot overcome the absence of a real and substantial connection between the forum and the plaintiff’s claim or the defendant. The fact that a defendant is insured also cannot overcome the absence of a real and substantial connection, as insurance is a matter to be considered under forum non conveniens.

Regarding factors 5 through 8, Justice Sharpe concluded that, while the involvement of other parties to the action might be relevant, this was not a presumptive ground for jurisdiction, and factors 6 through 8 should no longer be given equal weight to factors 1 and 2, but rather should be considered as general legal principles which help guide the analysis.

The net effect of this reformulation of the Muscutt test is that the connections between the forum and the plaintiff and defendant are now the core factors which will determine the outcome of the real and substantial connection test. In the context of tort actions, the damage sustained by the plaintiff as a result of the injury occurring elsewhere will usually constitute the substantial connection under factor 1. Under factor 2, the search for connections between the forum and the defendant will focus on things done by the defendant within the forum, whether that be advertising, entering into contracts with local businesses or placing a product into the forum’s stream of commerce.

The particularly difficult cases will arise where the plaintiff has suffered serious injuries but the defendant does not have any connection with the forum, such that factors 1 and 2 are evenly balanced. In these circumstances, I believe considerations of fairness might properly come into play, especially where liability is not seriously in dispute. It is noteworthy that the appellants were unsuccessful in both appeals and the actions were allowed to proceed in Ontario, although it must be said that in both cases the Court found CRL had significant connections with Ontario.

It is apparent from this review of the Van Breda and Charron decisions that the Court of Appeal did not accept the broad based attack on Muscutt mounted by the appellants and academic commentators. Speaking for myself, I believe it would have been better if the Court had retained the Muscutt test, since changes to a legal standard can often lead to complications and unnecessary litigation. Muscutt was a carefully thought through decision, and in my view the test was working well in practice. Indeed, as the Court noted, the appellants were unable to point to any cases wrongly decided in which the Muscutt test had been applied.

That said, suggestions that the Van Breda and Charron decisions amount to a repudiation ofMuscutt are misconceived. The Court intended, as it said, to make clarifications and modifications to the Muscutt test and it now remains only to be seen how these will be applied in practice. It will be particularly interesting to see how courts apply the distinction between a factor to consider and an analytical tool.

In the meantime, CRL sought and has been granted leave to appeal the decisions to the Supreme Court of Canada. As it has done so often in the past, OTLA will be seeking to intervene in the appeals for the benefit of its members.

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