With cross border travel restrictions lifted for fully‑vaccinated Canadians, many are traveling in their cars to the United States to shop, for short stays, or for longer trips to avoid the winter months. Each year many Canadians are involved in car accidents while travelling in the States. Bringing a claim for compensation after a car accident in the United States can involve complex issues, such as where a civil action should be started, and which jurisdiction’s laws will apply.
If you are from Ontario, and are involved in an accident in the United States, you may be able to commence an action in Ontario, in the State in which the accident occurred, or both. A recent decision of the Ontario Superior Court of Justice in Orum v. Maksut 2021, ONSC 2974, 2021 has confirmed that your right to sue in Ontario will depend upon several factors, including what insurance is available to the parties involved and the particular facts of each case.
How Jurisdiction is Determined in Ontario
Determining whether an Ontario Court has jurisdiction to hear your action involves a two-part test:
Firstly, the Court will determine if there are any “presumptive connecting factors” linking the lawsuit to Ontario. If you wish to have your case heard in Ontario, it is your responsibility to demonstrate the existence of one or more of these connecting factors:
The Supreme Court of Canada established the following four presumptive connecting factors:
- The wrongful act was committed in the province;
- The Defendant lives in or is a resident of the province;
- The Defendant carries on business in the province; and,
- A contract connected with the dispute was made in the province.
In Orum v. Maksuta, the Plaintiff, while in Michigan, was crossing an intersection in a crosswalk when she was struck by a vehicle driven by the Defendant. The Plaintiff started an action in Ontario within the provincial two‑year limitation period but did not start an action in Michigan. Unfortunately, the one‑year limitation period in Michigan had expired. The Defendant’s insurer paid the full Michigan policy limits of $100,000 to the Plaintiff. It then brought a motion to dismiss the Ontario action for want of jurisdiction.
The court proceeded to consider whether there were are any “presumptive connecting factors” linking the lawsuit to Ontario. It concluded that there were not because:
- The accident did not take place in Ontario;
- The Defendant was not domiciled in Ontario;
- The Defendant did not carry on business in Ontario; and
- There was no contract between the Plaintiff and the Defendant that was entered into in Ontario.
The Court concluded that there was no connecting factor to allow the Plaintiff to sue in Ontario and therefore Ontario did not have jurisdiction over the action.
Furthermore, the Court concluded that the expiration of the Michigan limitation period did not amount to “rare and exceptional circumstances to find forum of necessity”. The Court was not prepared to find that the “application of forum of necessity doctrine was triggered when the limitation period expired in foreign jurisdiction” because “that conclusion would be contradictory to objectives of order, certainty, and predictability for fair and principled private international law system”. As a result, the Plaintiff’s action was stayed.
Secondly, if Ontario is found to have jurisdiction over an action, the court considers whether or not Ontario is the most convenient place for the lawsuit. This is referred to as “forum non conveniens” and is based on an understanding that courts have the power to decline to hear an action in appropriate circumstances to assure fairness to the parties and the efficient resolution of disputes. The court may consider issues, such as the difficulty or inconvenience of having to pursue litigation outside of Ontario, or if the Plaintiff requires ongoing medical attention in Ontario. The opposing party will have the burden of showing that another forum is clearly more appropriate than Ontario.
Is My Case Worth Less in Other Jurisdictions?
We have all heard of the large jury awards handed out in the United States. Unfortunately, many States require only minimal auto insurance coverage for their drivers. For example, in Orum, the Defendant only had $100,000 of motor vehicle liability insurance. Therefore, if you are injured in the United States, your access to the other driver’s insurance may be of limited value even if your damages are much higher. Fortunately, you may still be able to recover additional compensation under the Family Protection Endorsement (OCPF-44R) in your own auto insurance policy. This coverage may increase your protection against uninsured or underinsured US drivers. You may also be entitled to receive accident benefits through your own policy.
Be Aware of Limitation Periods
The law of the place where the accident occurred is the law which determines who is at fault for an accident. This law also determines the limitation period, the time within which you must bring your action as against the at-fault driver. American limitation periods are often shorter than the periods which apply in Ontario. Therefore, it is crucial to contact a personal injury lawyer as soon as possible following the accident. If you miss the U.S. limitation period, you may find that you are unable to bring an action in Ontario.
Assess Your Insurance Needs
It is also important to discuss your auto and travel insurance needs with your agent before travelling outside of Ontario. You may need travel insurance to cover any unexpected medical bills while in the United States. You may want to increase your auto insurance limits and purchase optional accident benefits in order to protect yourself against the often inadequate insurance carried by US motorists.