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In Di Gregorio v
Sun Wing Vacations 2018 ONCA 655 the Ontario Court of Appeal (Feldman, Hourigan
and Brown JJ.A.) reminds us that a contract made in Ontario serves as a
presumptive connecting factor to establish jurisdiction simpliciter even where the foreign defendant is not a party to that
contract. In this case, the court
found jurisdiction even though the claim was for breach of the same
contract.
The plaintiffs had purchased a vacation in the
Dominican Republic from Sun Wing Vacations. They sustained injuries after the
railing of their hotel balcony gave way and they fell. Sun Wing contracted with Perfect Tours to
book hotel rooms at the Dreams Resort.
Perfect Tours had a contract with a hotel management company, AMR Resort
Management (“AMR”). AMR and AM Resorts
(“AM”), both based in the Dominican Republic, operated the Dreams Resort.
The plaintiffs sued Sun Wing Vacations, AMR and AM. AMR and AM moved for a stay of the action on
the grounds that the Ontario courts lack jurisdiction and forum non conveniens. The
motion judge did not address the jurisdictional issue. Instead, it dismissed
the action on the grounds that the plaintiffs had no contract with AMR or AM,
and that a claim based on tort is statute-barred under the limitations law of
the Dominican Republic.
Although AM had attorned to the jurisdiction, AMR had
not, so there was an issue as to whether the court had jurisdiction simpliciter over AMR. The Court of Appeal held that the motion
judge’s failure to address the jurisdiction issue first, before delving in the
limitation period issue, was an error of law.
To establish jurisdiction over AMR, the plaintiffs relied
on for their presumptive connecting factor their claim that a contract had been
made in Ontario. They had also pleaded
that AMR and AM had breached this contract with the plaintiffs. This
claim was tenuous. The plaintiffs never
signed anything with AMR or AM or bought anything directly from either company. The plaintiffs relied on the fact that the contract
with Sun Wing stated “The accommodation voucher… furnished by Sun Wing shall
constitute the sole contract between the hotel/resorts and you, the
passenger. The hotels and resorts … will
not be held liable for any act, omission, or event…” It is far from clear that the plaintiffs had
any contractual relationship with AMR or AM.
Nonetheless, the Ontario Court
of Appeal ruled[i]
that:
For jurisdictional
purposes, however, a contractual connection does not require that an alleged
tortfeasor be a party to the contract or that its liability flows immediately
from its contractual obligations. All
that is required is that a defendant’s conduct brings it within the scope of
the contractual relationship and that the events that give rise to the claim flow
from the contractual relationship.
The Court of Appeal held that there is a contractual
connecting factor, and the Ontario courts can take jurisdiction. The Court overturned the dismissal and
ordered the case to proceed.
The take away is that the connection between the
foreign defendant and the contract made in Ontario can be fairly loose.
Arguably, in these circumstances a more than usually
robust forum non conveniens analysis
is called for. The loose connection is
analogous to internet defamation cases where it is fairly easy to establish
that the tort occurred in Canada because it is enough to prove publication of
the defamatory statement in Canada, even if it was published also overseas. In Haaretz
v Goldhar 2018 SCC 28, an internet defamation case, Cote, Brown and Rowe JJ.
stated that in light of the ease of proving the tort occurred in Canada, “a
judge must conduct a robust and carefully scrutinized review of … forum non conveniens.” (para. 48) In Di Gregorio, the defendants did not allege that Ontario is forum non conveniens, so the Court did
not address this.
[i] Para
11. The Court followed the Supreme Court
of Canada decision in LaPointe Rosenstein
v Cassels Brock 2016 SCC 30
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