Ref: Mohammad v. Tarraf et al, 2019 ONSC 1701, Gray J.

When bringing a claim against a foreign party or based on foreign facts or wrongs, a Court will generally engage in a two-step analysis:

  • Jurisdiction Simplicitur: the Court first inquires as to whether there is a real and substantial connection between the forum and the facts and parties disputing the case: if there is no real and substantial connection the Court will not take jurisdiction.
  • Forum non conveniens: If the court has jurisdiction simplicitur, it must weigh a series of factors in order to determine whether the Court is an appropriate or convenient forum for hearing the dispute given the circumstances and nature of the dispute.

The doctrine of “forum of necessity” permits a Court to exercise its discretion to take jurisdiction of a case over which it would not otherwise have jurisdiction if there is no other forum can reasonably seek relief and obtain a fair trial. As noted by Justice Sharpe in Van Breda v Village Resorts:

The forum of necessity doctrine recognizes that there will be exceptional cases where, despite the absence of a real and substantial connection, the need to ensure access to justice will justify the assumption of jurisdiction.  The forum of necessity doctrine does not redefine real and substantial connection to embrace “forum of last resort” cases; it operates as an exception to the real and substantial connection test.  Where there is no other forum in which the plaintiff can reasonably seek relief, there is a residual discretion to assume jurisdiction. 

Van Breda v. Village Resorts Ltd., 2010 ONCA 84 (CanLII), 98 O.R. (3d) 721, at para. 100

Facts: In the present case, the plaintiff claimed losses from the defendant owing to non-payment of fees and expenses under an agreement whereby the plaintiff and defendant would act as joint operators of a poultry farm in which the plaintiff would hold a 49% interest. The plaintiff and defendant were both citizens of Dubai, with the farm also being located in the United Arab Emirates.

The plaintiff further claimed that after the poultry farm became operational the defendant refused to pay any monies owing and transferred the ownership to another privately held corporation, entirely depriving him of his ownership, pay, and profits. Following this, he claimed he and his family were subject to a course of threats and intimidation by the defendant, who it was alleged had a close relationship with the royal family of Dubai. As a result of this campaign of harassment and intimidation the plaintiff left Dubai, coming to Canada as a refugee with his family; they have since become Canadian citizens.

Decision: The Court was quick to note that it would not have jurisdiction to hear this claim under the usual heads of jurisdiction: the mere presence of the plaintiff in Ontario is not sufficient to establish jurisdiction simplicitur of the Ontario Courts over foreign wrongs, and with no real and substantial connection to the facts and parties the Court would normally lack jurisdiction.

The Court then turned to the decision of Justice Hoy (ACJO) in West Van Inc v. Daisley 2014 ONCA 232, which established a “reasonableness” test for application of the doctrine: The plaintiff must establish that there is no other forum in which the plaintiff can reasonably seek relief (at para 20 of the original judgment). Examples of the exceptional reasons provided by the Court are illustrative:

“…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”.

Lamborghini (Canada) Inc. v. Automobili Lamborghini S.P.A.1996 CanLII 6047 (QC CA) per Label JA, at 44-47.

The court concluded that the plaintiff’s concerns were very much like those identified as being exceptional reasons justifying invocation of the doctrine: the plaintiff reasonably believed he would be subject to physical danger and reasonably believed he could not get a fair trial in the forum in which the wrongs had taken place.

In the result, judgment was granted to the plaintiff in the amount of CAD$16,500,000.00.

Conclusion: While this case does not significantly develop the law in respect of the doctrine of necessity in Canada, it provides an important precedent within that body of law, as in the prior principal cases on which the jurisprudence has developed (including Van Breda and West Van Inc.) the Court has declined to exercise its discretion to take jurisdiction.

Accordingly, while it remains both exceptional and discretionary, the decision confirms that the doctrine of necessity is alive and well in Canada.