Friday, November 5, 2010

Ontario Proper Forum for Mexican Accident Victims

The Ontario Court of Appeal recently considered the application of the new "Van Breda" test concerning the circumstances under which an Ontario court will assume jurisdiction in an action where multiple jurisdictions are involved in a transaction or occurrence.

In Van Breda v. Village Resorts Limited (2010) 98 O.R. (3d) 721 the Ontario Court of Appeal held that if a case falls within one of the factors enumerated in Rule 17.02 of the Rules of Civil Procedure, the court should presume that there is a real and substantial connection between Ontario and a foreign defendant. The defendant may then prove that despite the existence of the one of the factors, in the particular circumstances of the case, there is no real and substantial connection with Ontario.

The Court of Appeal held that other considerations in the "jurisdiction simpliciter" analysis are no longer to be treated as independent factors, but rather as principles that bear upon the analysis, including (a) the fairness to each party of assuming or refusing to assume jurisdiction; (b) the involvement of other parties in the action; (c) the willingness to recognize and enforce an extra-provincial judgment with similar jurisdictional connections to the forum; (d) comity; and (e) the standards of enforcement in the other jurisdiction.

In Dilkas v. Red Seal Tours Inc the Court of Appeal considered the application of the Van Breda test to Ontario residents who purchased vacation packages from Sunwing in Ontario for vacations in Mexico. The plaintiffs were injured in an accident caused by a Mexican transportation company under agreement with Sunwing to transport the plaintiffs from the airport to their hotel.

The Ontario Court of Appeal upheld the decision of the trial judge and found on the Van Breda test that Ontario should assume jurisdiction. The court distinguished this case from other similar travel cases where the court held that Ontario should not assume jurisdiction because here:
(1) the vacation packages which were purchased in Ontario explicitly included ground transportation services;
(2) the ground transportation agreement between Sunwing and the transportation company was explicitly governed by Ontario law; and
(3) the transportation company entered into an indemnity agreement with Sunwing in respect of any lawsuit brought in Ontario by the injured tourists and agreed that the Ontario courts would have exclusive jurisdiction.

The court also concluded that Mexico was not the more convenient forum.



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