The Second Opinion: Appeal Court Confirms the Narrow Scope of the “Forum of Necessity” Doctrine
Can a Court assume jurisdiction over a claim when there is no “real and substantial” connection between the claim, the defendant and the forum? The Ontario Court of Appeal recognized such a theoretical possibility, on the basis of the so-called “forum of necessity” doctrine, in its decision in Van Breda v. Village Resorts Ltd., 2010 ONCA 84. On further appeal, the Supreme Court of Canada did not directly address this doctrine but left room for its “possible application” in the future: 2012 SCC 17 at para. 100. The Ontario Court of Appeal recently revisited and defined the parameters of the forum of necessity in West Van Inc. v. Daisley, 2014 ONCA 232.
In West Van, the plaintiff sought to sue, in Ontario, a North Carolina attorney and law firm for alleged professional negligence in a North Carolina proceeding involving underlying events in Connecticut. The defendants sought to stay the Ontario proceeding on the basis that the claim had no real and substantial connection with Ontario. The plaintiff conceded the absence of a real and substantial connection with Ontario but argued that Ontario should nevertheless assume jurisdiction on the basis of the forum of necessity doctrine. More specifically, the plaintiff put forward evidence that it had contacted 31 different lawyers in two main cities in North Carolina who had all refused to take on the plaintiff’s claim given who the proposed defendants were. The motion judge granted the stay without addressing the forum of necessity doctrine.
On appeal, the Ontario Court of Appeal engaged in a comprehensive review of this “relatively new Canadian doctrine”, referring to its origins, its recognition in various provincial statutes which have codified the doctrine, and the pertinent (albeit sparse) Canadian jurisprudence addressing the doctrine. The Court stated that “[a]ll jurisdictions in Canada that have recognized the forum of necessity [doctrine] have incorporated a ‘reasonableness’ test” and that in Ontario, a plaintiff must establish that “there is no other forum in which the plaintiff can reasonably seek relief” (at para. 20). Moreover, the Court observed that this reasonableness standard has been “stringently construed” (at para. 21). Significantly, the Court ruled that the forum of necessity doctrine has been successfully applied in only two Canadian cases as an independent basis for assuming jurisdiction, noting that the doctrine is “reserved for exceptional cases” (at para. 40).
Signalling that the doctrine has a narrow ambit, the Court gave the following examples of situations in which the doctrine has relevance: “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” (at para. 40). The plaintiff’s alleged inability to obtain counsel in a private commercial matter therefore did not meet the threshold for the doctrine’s applicability, the Court concluded.
The decision in West Van confirms that it will be very difficult for plaintiffs to successfully invoke the forum of necessity doctrine. If a plaintiff cannot bring its case within the established presumptive real and substantial connecting factors as a basis for jurisdiction, it will have to successfully urge a Court to recognize an analogous connecting factor or be precluded from pursuing its claim in its “choice” of forum.
The McCarthy Tétrault Opinions Group consists of members of the firm’s litigation department whose practices focus on written advocacy and the provision of strategic advice and opinions in the context of complex business disputes and transactions. The members of the Opinions Group are Anthony Alexander, Martin Boodman, Brandon Kain, Hovsep Afarian and Kirsten Thompson.
2014 ONCA 232 Daisley forum forum of necessity doctrine jurisdiction simpliciter real and substantial connection stay Van Breda Van West