Watson, Rowbotham and O'Ferrall JJA

11.25: Real and substantial connection

Case Summary

The Plaintiffs commenced a claim against an Ontario doctor alleging negligence. The Defendant doctor allegedly improperly rendered an MRI report in Ontario resulting in Ms. Geluvich’s illness being improperly treated in Alberta. The Defendant doctor was served outside of Alberta pursuant to Rule 11.25 and he sought to overturn the service of documents, arguing that Ontario was the proper forum. The Chambers Judge granted the Defendant doctor’s Application and the Plaintiffs appealed.

Justices Watson and Rowbotham noted that the Supreme Court of Canada has recently provided guidance with respect to the governing test for jurisdiction for a tort. Justices Watson and Rowbotham observed that, in order to determine the place where the tort was committed, the Court may still be informed by the location “most substantially affected by the defendant’s activities or its consequences”. The majority held that, because the allegedly negligent report led to an improper course of treatment and subsequent injury in Alberta, Alberta was the appropriate forum.

Justice O’Ferrall agreed in the result, but indicated that the focus should be on whether there was a “real and substantial connection” under Rule 11.25 and that there should be less focus on the location of the tort. His Lordship noted that the location of the tort is a presumptive connecting factor under Rule 11.25, but not the only factor. Justice O’Ferrall cautioned that undue emphasis on the location of the tort in the majority opinion could erode the test prescribed by Rule 11.25, namely, a real and substantial connection for service ex juris.

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