-Jefferson v. MacKlem, 2013 NLTD(G) 106.

The defendant, MacKlem, made an application pursuant to Rule 6.07(7) seeking to have the service of a statement of claim set aside and the proceeding stayed. The plaintiff, Jefferson, had commenced an action in Newfoundland and Labrador with respect to an MVA alleged to have occurred in Ontario. At the time of the alleged accident, both Jefferson and MacKlem were resident in Ontario. Jefferson and her family moved to Newfoundland approximately 10 months after the accident. Most, if not all, of her relevant medical treatment occurred in Ontario.

Rule 6.07(2) of the Rules of Court requires a plaintiff to seek leave of the court prior to serving a statement of claim outside of the jurisdiction unless one of the exceptions found in subsection 6.07(1) applies. While Jefferson initially relied on the exception set out in subsection 6.07(1)(o), which allows for service ex juris where expressly permitted by statute, she abandoned this position at or before the application. Instead, Jefferson attempted to seek the forgiveness available under Rule 6.07(8) which allows the court to validate service ex juris where leave would likely have been granted had it been previously sought. Jefferson’s revised position led the court to consider whether or not a real and substantial connection to the jurisdiction had been established. The court relied on the four presumptive connecting factors outlined by the Supreme Court of Canada in Van Breda v. Village Resorts Limited, 2012 SCC 17:

(a) The defendant is domiciled or resident in the province;
(b) The defendant carried on business in the province;
(c) A tort was committed in the province; and
(d) A contract connected with the dispute was made in the province.

As none of these factors could be said to apply, the court then looked at Jefferson’s medical history to search for a real and substantial connection to the jurisdiction. The court found that Jefferson had been treated in Ontario by a family physician, physiotherapist and orthopedic surgeon, all treatments being somewhat related to the MVA. Despite moving to Newfoundland in September of 2010, the court could find no record of medical treatment related to the accident prior to the statement of claim being filed in December, 2012. The only connection between the action and the jurisdiction at that time was the ongoing pain and suffering that Jefferson allegedly endured. The court determined that the law does not recognize continuing suffering alone to be a factor giving rise to a real and substantial connection between an action and the jurisdiction. As such, it set aside the service ex juris of the defendant and dismissed the statement of claim.