Ontario Court Orders Quebec Insurer To Pay Damages In Disputed Claim


Automobile insurance is regulated by the provinces, and there are differences in motor vehicle insurance provisions and providers between the provinces and territories. For example, in some provinces, vehicle owners must obtain private insurance, while in others such as Quebec, the government provides statutory automobile insurance. These differences can affect your rights if you were injured in a car collision.

A recent insurance dispute involved a Quebec automobile insurer and an injured passenger where the vehicle was involved in a collision in Ontario.  In Ismail v Pafco Insurance Company and Desjardins Assurance Générales, the injured passenger and his family obtained a judgement in Ontario in the amount of $5.1 million as against the driver and the owner of the vehicle invovled in the car collision.  The judgement was uncollectable from the 2 individuals so the injured passenger and his family commenced an action against the Quebec insurer of the vehicle, Desjardins, to enforce the judgment.   The Quebec insurer argued that the Ontario did not have jurisdiction over the case and that the action ought to be litigated in Quebec and not Ontario. 

The plaintiff, in this case, was a passenger in a collision that occurred in Ontario and was rendered a paraplegic as a result of the accident.  The vehicle was insured by Desjardins and had a policy limit of $2 million.  The plaintiff sued both the driver and the driver’s father who was the owner of the car.  The plaintiff also sued Pafco Insurance Company which provided coverage up to $1 million to the driver’s sister, with whom the driver was living when the accident occurred.  

Desjardins claimed that there was a policy violation, and accordingly, paid only the statutory minimum payment of $200,000. In 2013, the injured plaintiff and his family commenced an action in Ontario to enforce the Ontario judgement against both insurers, Desjardins and Pafco.

In order to make a determination, the judge outlined a two-step analysis to decide whether an Ontario court has jurisdiction over the case:  

  1. Is there a real and substantial connection between the facts of the case and Ontario?
  2. Based on a series of factors, which location is the more convenient to conduct the litigation (“forum conveniens”)?

Some of the factors the court may consider in determining which is the more convenient forum for a litigation include: the location where the insurance contract was signed, laws that should apply to this contract, the location of key witnesses, the location where the majority of evidence will come from, the location where the case occurred, the various parties’ residences or places of business, and the loss of legal advantage in the administration of justice.  

In considering these factors and the fact that the standard to displace the injured person's chosen jurisdiction is high, the judge decided that there is legitimate jurisdiction in Ontario. Ontario was the more convenient forum to decide the case because of the following:  

  • The motor vehicle accident occurred in the province of Ontario. 
  • Both the plaintiff and the other defendant, Pafco Insurance Company, are residents of Ontario. 
  • Desjardins operates, in some fashion, in Ontario.  
  • The action took place in Ottawa, Ontario (just 3 km from a Quebec Superior Court).
  • There is no physical evidence for the issues being tried.
  • Witness location is a non-issue when dealing with a large insurance company.
  • The plaintiff would lose the right to a jury trial if the case is tried in Quebec.

In accordance with the decision that Ontario is the fairest forum to decide this case, the judge dismissed Desjardins’ application to stay the proceedings.   Therefore, the Quebec insurer was held to the Ontario Court decision.   

At Burn Tucker Lachaîne, our lawyers are well-experienced in favourably resolving disputes with insurance companies.  We often represents Quebec residents who were seriously injured in Ontario.  If you were injured in an accident caused by a negligent person, call Burn Tucker Lachaîne to find out how we can help in obtaining compensation for your losses. 

 

 

By Eliane Lachaîne of Burn Tucker Lachaîne Personal Injury Lawyers on November 03, 2016
Tags: Personal Injury