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Lecture Slides:

Welcome to YouCounsel.

Forum of Necessity is a common law doctrine. It is a very interesting doctrine because it allows a court, which ordinarily does not have jurisdiction over a case to take jurisdiction of that case because of the necessity of the circumstances.  What does that exactly mean we will explain that in this lecture.

This lecture is for educational purposes only.  If you have any specific questions about your case, you should contact a lawyer or a paralegal or the Law Society of Ontario.

When you believe that you have a claim against another party one of the 1st questions you have to decide is which court has the appropriate jurisdiction to deal with your case.  Generally speaking it is a straightforward matter. For example, if you are involved in an accident in Ontario all parties and witnesses were in Ontario, then it makes sense for the Ontario Court to have jurisdiction.  You will commence an action in Ontario.  This gets complicated, especially, in this day and age where mobility across jurisdictions is very common. For example, you are a resident of Ontario and you buy a vacation package from a company that is based in California to go to the Bahamas for a week.  When you are in the Bahamas you suffer some injuries due to the negligence of the resort that you are staying at.  You come back to Ontario and you want to bring a court action against the party—the resort in the Bahamas. What place has the appropriate jurisdiction to deal with your matter? Is that the court in the Bahamas? Is that the court in Ontario? or Is it the court in California?

In this specific example, when you have purchased a vacation package, most likely there is a contract that goes with your purchase and in the fine print of that contract you will find that the contract specifies which jurisdiction will have the exclusive right to have the matter adjudicated there. Most likely, in this particular example, the contract would say that all disputes arising from the purchase of your vacation package would be adjudicated exclusively in California—that may most likely happen.  But in these scenarios where the disputes are happening across multiple jurisdictions because a party resides in one place; was visiting another place; the party who was involved in the action (in the dispute) was from a 3rd jurisdiction, the issue of jurisdiction becomes live and this is one of the things that lawyers have to decide whether the right jurisdiction has been addressed in your case.  

In this lecture we’re dealing with one specific part of the jurisdictional debate which is a complicated area of law and is covered under Conflict of Laws and Forum of Necessity is only but one doctrine that deals with the issue of jurisdiction.  The Forum of Necessity essentially says:

“Where there is no other forum in which the plaintiff can reasonably seek relief, there is a residual discretion to assume jurisdiction.”

This is very broad language. What do we mean by reasonably seek relief? How does the court exercise this residual discretion?  

Let’s look into this by way of some of the court cases in Canada so we can understand how the courts in Canada have applied this concept / this doctrine Forum of Necessity of exception.  There are 3 examples given in Canadian cases where the Forum of Necessity can be exercised. One is if there is a breakdown of diplomatic, commercial relationship with a foreign state; Two: where there is the need to protect a political refugee; and Three: where serious physical threat if the debate was to be undertaken before the foreign courts.  These are 3 examples given in a Canadian case where the Forum of Necessity discretion may be exercised.  This is not an exhaustive list. This is an example given by the court—where the court may consider it appropriate to exercise their discretion and take the jurisdiction of that matter under the Forum of Necessity.

Let’s look at some of the cases where the Forum of Necessity exception was granted in Canada.  There are, literally, 3 cases so far in Canada where this exception was granted.  This gives you a sense of how narrow this exception is and how rarely it is granted by the Canadian courts. The 1st case is called Bouzari v. Bahremani; 2nd is Josephson v. Balfour and the 3rd case Mohammad v. Tarraf (which is literally a case that came out from the Superior Court of Ontario a few months ago).

1. Bouzari v. Bahremani: In this case the defendant is the son of a former Iranian President, Hashemi Rafsanjani.  The plaintiff claimed that the defendant tortured the plaintiff in Iran or instigated the torture of the plaintiff in Iran. The plaintiff became a Canadian citizen. He wanted to bring a court action in Ontario. The defendant had no relationship with Canada; he had never been to Canada; in fact he was denied a visa entry to Canada when he had applied for it previously.  There was no real or substantial connection of this case to Ontario because every disputed issue had occurred in Iran and the defendant had no connection with Ontario.  When the court reviewed this case it applied the 1st test which is called the real and substantial connection to Ontario and found that there was no connection to Ontario whatsoever.  Then the court looked at the Forum of Necessity and decided that in this specific case the Forum of Necessity had the application and it granted the jurisdiction to the plaintiff and granted, in fact, the default judgment at the 1st instance.  Now the claim (this case) became complicated (there were a few cases. I have given you a link for these cases that you can review on Canlii):

https://www.canlii.org/en/on/onsc/doc/2013/2013onsc6337/2013onsc6337.html?resultIndex=4

            https://www.canlii.org/en/on/onca/doc/2015/2015onca275/2015onca275.html?resultIndex=2

But what happened was in the 1st situation the court granted the Forum of Necessity and granted the default judgment. Then the defendant brought a motion to set aside the default judgment. It was set aside. Then the defendant argued that the appropriate jurisdiction for this case to be argued is England not Canada.  Both parties agreed that Iran was not the appropriate place to argue this case. At the 1st instance, the motion judge denied the defendant’s position and said that Canada had taken jurisdiction and Canada was the appropriate forum.  At the Court of Appeal level, the Ontario Court of Appeal overturned the motion judge’s Decision and then granted that Canada was not an appropriate forum and England was indeed the appropriate forum for this case.

The thrust of my point today is that at the 1st instance the default judgment level, the motion judge did in fact apply the doctrine of Forum of Necessity and granted the Forum of Necessity jurisdiction to Ontario. 

2. The 2nd case, it’s also quite interesting it’s called Josephson v. Balfour. This case / this action was commenced in British Columbia. Both the plaintiff and the defendant were Idaho residents they were visiting Canada (British Columbia).  They were playing golf at a golf course in British Columbia. The defendant was driving the golf cart in which the plaintiff was sitting and at some point the plaintiff falls out of the golf cart and gets injured. He was treated in the British Columbia Hospital and then later on transferred to Idaho hospital where he received further treatment. The plaintiff commenced a court action against the defendant in British Columbia and then the defendant claimed contribution / indemnity from the hospital and doctors in Idaho because the defendant believed that those hospitals and doctors exacerbated the plaintiff’s injuries or were negligent professionally (negligent in the treatment of the plaintiff) and therefore the defendant sought contribution and indemnity from them.

 Because the plaintiff was treated in Idaho (by the hospitals and by Idaho doctors) ordinarily the defendant should issue a claim in Idaho for contribution indemnity damages.  But in this specific case the defendant could not commence a claim against those hospitals and doctors in Idaho because the defendant himself was not a patient of those doctors or that hospital.  Idaho law did not allow a non-patient to sue the doctor or hospital.  The plaintiff was not interested in suing the hospital or doctors himself.  What to do in that case?  The defendant brought a 3rd party claim in British Columbia against the doctors and hospital of Idaho. Then court had to decide whether it has jurisdiction or not.  Obviously, Idaho hospital and doctors argued that the court had no jurisdiction over this matter.  In a final decision the court granted the exceptional Forum of Necessity and allowed the jurisdiction of the British Columbia court in this matter. 

This case again had many twists and turns. The trial was scheduled and the plaintiff then brought a motion to argue that his main action should be severed from the defendant’s 3^rd party action because the trial was already scheduled and if the matter was to proceed then the trial will be delayed.  The Court of Appeal in British Columbia agreed with the plaintiff and it severed the 2 actions.  It basically said that the main action between the plaintiff and the defendant will proceed while the 3^rd party action between the defendant and the 3rd parties i.e. the Idaho hospital and doctors will be stayed until the 1st case is decided.  I’ve provided links with these cases and you’re welcome to review them on line.

3. Third case was Mohammed v. Tarraf. This is a case where all of the relevant facts occurred in Dubai and Dubai had proper jurisdiction of this case. Plaintiff and Defendant were business partners in a joint venture. The Defendant was supposed to make some payments to the Plaintiff. He did not do so and instead he threatened the Plaintiff, coerced the plaintiff’s family.  The defendant had relationship with the royal family of Dubai.  He caused the plaintiff and his family to be held by the security forces; he caused their utilities to be cut off from their residence; he caused the plaintiff’s children to be expelled from their school and so the plaintiff along with his family immigrated to Canada as refugees.  Then he brought this action in Canada against the defendant and argued that he could not go and seek a proper and fair trial in Dubai. He feared for his safety. In that case the court reviewed all of the evidence and granted the Forum of Necessity in this case.

Cases where the courts have not granted: I’ll give you some examples where the court refused to grant Forum of Necessity. In one case parties argued that they were unable to obtain counsel in the US; the courts said that doesn’t matter, you will have to go and argue this case in the US.  We will not grant you a Forum of Necessity in Canada. Similarly someone argued that they could not obtain counsel in Australia; someone argued that they had a personal injury claim in New York but they could not proceed with the claim because it was statute-barred due to the limitation period in New York; someone else argued that the trial was too expensive in the US; another party argued that they could not commence a family law dispute in Trinidad because there was high crime rate and risk of personal safety. On these 2 issues the evidence was controverted and therefore the court did not grant the exception. Someone argued that the trial was too costly and inconvenient in Italy, etc. These are examples of cases where the court refused to grant an exception; refused to grant a Forum of Necessity exception and you will find a lot of cases where parties have tried to argue Forum of Necessity and the court has not granted it.

In essence what you want to remember is that this doctrine exists but it is rarely granted and applied only in exceptional circumstances.

Thank-you for watching.