As the temperature drops, many Canadians leave the country and head off to warm beaches and relaxing cruises. However, a wonderful trip abroad can quickly become stressful if you are injured. If you are involved in a motor vehicle accident, a slip and fall or are otherwise injured outside of Ontario, it can be difficult to get the compensation you deserve. In some cases, you will not be able pursue your action in Ontario and will have to sue in the country where you were injured.
Determining the Right Jurisdiction
The Supreme Court of Canada set the standard for determining the proper jurisdiction in Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (“Van Breda”). In this case, the plaintiff, Ms. Van Breda, was doing exercises on a metal structure on the beach at a Cuban resort managed by Club Resorts Ltd. The structure collapsed, causing Ms. Van Breda to become paraplegic.
The Supreme Court held that a court should assume jurisdiction when the action had a “real and substantial connection” to the jurisdiction. The Court distinguished between two steps of the test: first, whether the court has jurisdiction, and second, whether the court is the more appropriate forum.
In determining whether the Ontario court has jurisdiction, the court will look at several “connecting factors”, including:
- Whether the defendant resides in Ontario;
- Whether the defendant carries on business in Ontario;
- Whether the tort (e.g. the negligence) was committed in Ontario; and
- Whether a contract connected with the dispute was made in Ontario.
Even if the Ontario court has jurisdiction over an action, it may decline to hear the matter on the basis that another jurisdiction is the more appropriate forum. This doctrine is called “forum non conveniens” and is up to the discretion of the court.
In Van Breda, it was determined that the plaintiff entered into the contract with Club Resorts Ltd. in Ontario, and the defendant failed to show that Cuba would be the more appropriate forum. Additionally, the Supreme Court noted that a trial held in Cuba would not be fair or efficient for the parties. For these reasons, the Supreme Court found that Ontario had jurisdiction and was the most appropriate forum.
Examples of Ontario Courts Declining Jurisdiction
Although Ms. Van Breda successfully brought her action in Ontario, this may not always be possible. The Supreme Court cautioned in Van Breda that the plaintiff’s place of residence and damages did not constitute a connecting factor. In other words, the fact that the plaintiff lived in Ontario and sustained an income loss or medical bills in Ontario was not sufficient to direct the Ontario court to assume jurisdiction. The Supreme Court also held that “carrying on business requires some form of actual, not only virtual, presence in the jurisdiction, such as maintaining an office there or regularly visiting”.
In Wilson v. Riu, 2012 ONSC 6840, the plaintiff booked a trip to Jamaica through a travel agent in Ontario. While in Jamaica, the plaintiff booked a horseback riding tour through a separate company which maintained a desk in the lobby of the hotel. The plaintiff was injured during the horseback riding tour. The court held that the contract in issue (i.e. the booking of the horseback riding tour) was made in Jamaica. As there were no other connecting factors linking the action to Ontario, the court declined to assume jurisdiction.
In Haufler v. Hotel Riu Palace Cabo Sun Lucas, 2014 ONSC 2686, the plaintiff was involved in an ATV accident at a Mexican resort. The court held that Ontario did not have jurisdiction over the action because there were no connecting factors. The resort did not carry on business in Ontario and the fact that the plaintiff paid for and arranged the trip thought a travel agent in Ontario was not sufficient to establish a connection.
If you are injured on a trip to another country or province, it is critical to speak to knowledgeable personal injury lawyers as soon as possible. Often, the most appropriate forum is fact-specific and different limitation periods may apply.