In Tamminga v. Tamminga [2014 ONCA 478], the Court of Appeal considered whether an Ontario resident, who was injured after falling off a truck in Alberta, could maintain a claim in Ontario. Both owners of the truck were located in Alberta. The Plaintiff also named her own automobile insurer in the claim pursuant to the uninsured/underinsured motorist provisions.
The issue before the Court of Appeal was whether Ms. Tamminga’s own insurance contract was a “sufficient presumptive connecting factor” as considered by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda [2012 SCC 17], to permit an Ontario court to have jurisdiction over non-resident tortfeasors and torts.
In Van Breda, Justice LeBel outlined four presumptive connecting factors which were:
The Defendant is domiciled or a resident in the province;
The Defendant carries on business in the province;
The tort was committed in the province; and,
The contract connected with the dispute was made in the province.
The Supreme Court of Canada held that where a presumptive connecting factor was established, the onus shifted to the Defendant to show the connection between the subject matter and the forum was weak.
The Court of Appeal in the present case concluded that there was no nexus between the insurance contract and the Alberta Defendants. The Court noted that Ms. Tamminga’s automobile insurance contract “anticipated” accidents generally but the tortfeasor would not be identifiable in advance. The Court held that there was nothing that connected the insurance contract to the Alberta Defendants. The Alberta Defendants were not parties to or beneficiaries of the contract. The Plaintiff was not visiting the farm where the accident occurred for any reason related to the contract. Instead, the connection between the contract and the dispute only arose after the incident and depended on the Plaintiff’s Claim against the tortfeasors.
The Court of Appeal upheld the motion Judge’s decision to stay the action due to lack of jurisdiction.