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What happens when Ontario residents are involved in an accident and sustain injuries in another province, or outside of Canada? Can they sue the responsible parties in Ontario? As shown by Sinclair v Amex Canada Inc., it depends.

The starting point for this analysis is the seminal Supreme Court of Canada decision, Club Resorts Ltd. v. Van Breda. However, recently there has been some diverging case law in the application of the Van Breda principles within the lower courts across Canada.

In Sinclair v. Amex Canada Inc., the Ontario Court of Appeal recently weighed in on the application of the Van Breda principles for tort claims that occurred outside Ontario.

The Court of Appeal heard the following fact scenario: a family from Ontario went on vacation to Venice to celebrate their son’s graduation from high school. When they arrived in the city, the water taxi taking them to their hotel crashed into a wooden structure. Family members sustained injuries as a result.

The plaintiffs issued a statement of claim in Ontario, naming the alleged tortfeasors: Amex Canada Inc. (“Amex”), which provided a “concierge” travel service through which the plaintiffs’ trip to Europe was arranged; a subsidiary company of Amex; and a number of Italian companies, including a water taxi dispatching company, the owner of the water taxi involved in the accident, the employer of the driver, and a company that emailed the dispatching company confirming the water taxi booking. The plaintiffs also included the driver of the water taxi as a defendant, but he did not respond to the proceedings.

Three of the four Italian companies that were sued disputed Ontario’s jurisdiction, and their lawyers brought a jurisdiction motion before a judge of the Superior Court.

The Italian Companies Challenge Ontario’s Jurisdiction

The Superior Court judge determined that Ontario courts had jurisdiction to hear this case against the three Italian companies.

The sole issue the motion judge dealt with was the fourth Van Breda presumptive connecting factor: whether “a contract connected with the dispute was made in [Ontario].” The motion judge determined that the plaintiffs’ contract with their credit card provider, Amex, which provided the plaintiffs with “concierge” travel services through which the water taxi was booked, allowed the Ontario court to assume jurisdiction over the claim against the Italian companies. The motion judge further found that the Italian companies were not able to “rebut” the presumptive factor that there was an insufficient connection between the contract and the tort. The Italian companies appealed the decision to the Ontario Court of Appeal.

The Ontario Court of Appeal Weighs In

Was the “contract connected with the dispute” truly made in Ontario?

In the lower court decision in Sinclair, the motions judge determined that the contract between Amex and the plaintiffs had been made in Ontario, and that this contract was “connected” to the dispute. Yet Justice Nordheimer, writing for the majority of the Court of Appeal that included Chief Justice Tulloch, stated that the motion judge did not properly apply the Van Breda test in coming to this conclusion.

Justice Nordheimer emphasized that the Van Breda decision was “focussed on preventing jurisdictional overreach” and expressed concern that in recent years some authorities had “failed to apply the decision with the care and rigour that was intended.”

With respect to the case at hand, Justice Nordheimer writes that the position of each defendant must be looked at independently. The fact that Amex did not dispute jurisdiction of the Ontario court did not mean that the Italian companies were not able to do so. Justice Nordheimer concluded that the Italian companies did not have any contractual obligations with the plaintiffs, either directly or indirectly. The plaintiffs’ contractual agreements were all with Amex – and those contractual agreements did not contemplate or require the involvement of the Italian water taxi companies. Justice Nordheimer determined on this basis that the Italian companies could not “reasonably be swept into the jurisdictional reach of Canadian courts” just because the plaintiffs had a contractual relationship with Amex.

Were the Italian companies able to rebut the presumptive factor?

The motion judge found that the Italian companies were not able to rebut the presumptive connecting factor (i.e., that a contract connected the dispute to Ontario). Here again, the Ontario Court of Appeal disagreed. The Court determined that even if the presumptive connecting factor was established to exist, the Italian companies would still be able to rebut it on the basis that the contract did not have a substantial connection to the litigation.

The Court of Appeal was firm in its finding that there was no substantial connection between any contracts made in Ontario and the Italian companies. Justice Nordheimer further added that if the motion judge’s decision were upheld, it could have “sweeping implications,” namely, that when travel services are booked through credit card companies doing business in Ontario, the jurisdiction of Ontario’s courts could extend “to anyone who may subsequently become involved in those travel arrangements, regardless of where in the world that occurs.”

Notably, there was a concurring opinion in Sinclair, written by Justice Harvison Young. She expressed that while she agreed with the majority of the Court that the Italian companies could rebut the presumptive factor, and thereby that the appeal should be allowed, she disagreed with the majority‘s finding that there was no contract connecting the dispute to Ontario.

Sinclair highlights some of the ongoing judicial uncertainty with respect to these types of complex jurisdictional disputes, and suggests that there may be a further appeal to the Supreme Court of Canada by the plaintiffs.

if the motion judge’s decision were upheld, it could have ‘sweeping implications’