Mr. Justice Paul Perell, a recent appointee to the Ontario Superior Court, has ruled that an Ontario resident who fell and injured herself at her brother’s Quebec home, can nevertheless pursue a claim for damages in an Ontario court.
In Marabella v. Pietracupa, the defendant had moved to dismiss the Ontario action, arguing that the claim should be tried in Quebec, where the accident had occurred. Justice Perell (who, while he was in practice, was an extremely prolific author of numerous articles in legal journals) held that the legal analysis had two steps. First, the court had to determine whether Ontario had “jurisdiction simpliciter“. In other words, can an Ontario court take jurisidiction over this particular type of case, with these parties and this factual background?
Assuming that an Ontario court could assume jurisidiction, the second stage of the analysis would be to determine whether or not that court should take jurisdiction. As Justice Perell noted, the second part of the analysis (often referred to by lawyers as a “forum conveniens” issue) is a discretionary decision.
Justice Perell answered both questions in the plaintiff’s favour and dismissed the defendant’s motion. He held that a number of factors had to be taken into account for purposes of the forum conveniens issue. He declined to apply what he called a “quantitative analysis” (simply adding up the factors pointing one way or the other) in favour of a “qualitative” one. Using this approach, he held that “it would be more feasible, convenient, and fair to bring the Quebec witnesses to Ontario to testify about liability, including evidence about Quebec law, than to bring the Ontario witnesses to Quebec to testify about the nature and quantum of the plaintiff’s compensable losses”.