Each year, many Ontarians are involved in car accidents while travelling outside of the province. These claims often involve complex issues such as where a civil action should be started and which jurisdiction’s laws should apply.
If you are from Ontario and are involved in an accident in the United States, you may be able to commence an action in Ontario, in the state in which the accident occurred, or both. Your ability to do so will depend upon many factors, including any insurance available to the parties involved and the particular facts of each case.
How Jurisdiction is Determined in Ontario
Determining whether an Ontario Court has jurisdiction to hear your action involves a two-part test. First, the Court will determine if there are any “presumptive connecting factors” linking the subject matter of the action to Ontario. If you wish to have your case heard in Ontario, it is your responsibility to demonstrate the existence of one or more of these connecting factors.
The Supreme Court of Canada established the following four presumptive connecting factors in a case called Club Resorts Ltd. v. Van Breda:
- The defendant lives in or is a resident of the province;
- The defendant carries on business in the province;
- The wrongful act was committed in the province; and,
- A contract connected with the dispute was made in the province.
Where Ontario is found to have jurisdiction over an action, the second part of the test considers what is referred to as forum non conveniens. Forum non conveniens is based on an understanding that courts have the power to decline to hear an action in appropriate, but limited, circumstances in order to assure fairness to the parties and the efficient resolution of the dispute. At this stage, the Court may consider issues such as the difficulty or inconvenience of having to pursue litigation outside of Ontario or if you require ongoing medical attention in Ontario. The opposing party will have the burden of showing that the other forum is clearly more appropriate than Ontario.
Is My Case Worth Less in Other Jurisdictions?
Unfortunately, many States require only minimal auto insurance coverage for their drivers. Therefore, if you are injured in the U.S., your access to insurance funds may be limited even if your damages are much higher. Fortunately, you may still be able to access accident benefits through your own policy, including under the Family Protection Endorsement (OCPF-44R). This coverage may increase your protection against uninsured or underinsured drivers.
Be Aware of Limitation Periods
The law of the place where the accident occurred (also known as the “substantive law”) is the law which determines who is at fault for an accident. The substantive law also determines the timeframe within which you must bring your action (also known as the “limitation period”) as against the at-fault driver. American limitation periods are often shorter than the periods that apply in Ontario. As such, it is crucial to contact a personal injury lawyer as soon as possible following the accident. If you miss the U.S. limitation period, you may not be able to bring an action in Ontario.
It is also important to discuss your insurance coverage with your agent before travelling outside of Ontario.