Ontario Courts Refuse to Stay Action Against Nigerian Defendants

The Court of Appeal for Ontario released its decision in James Bay Resources Limited v. Mak Mera Nigeria Limited, 2015 ONCA 781  this week.  This is an appeal by Nigerian appellants who had lost a motion to stay an action brought by James Bay Resources Limited (“James Bay Resources”) on the ground that the Ontario courts lacked “jurisdiction simpliciter” and Ontario was not the convenient forum for the determination of the dispute between the parties. 

 

James Bay Resources entered into a Memorandum of Understanding (“MOU”) with the appellant, Adewale Olorunsola (“Sola”) on March 3, 2011.  The MOU was negotiated and signed in Ontario.  It set out an arrangement between the parties with respect to the acquisition of Nigerian oil and gas assets. 

 

On February 12, 2012, James Bay Resources and the appellant, Mak Mera Limited (“Mak Mera”) entered into a letter agreement which replaced the MOU (“Agreement”).  The Agreement was far more detailed than the MOU.  Sola signed both the MOU and the Agreement.

 

A dispute arose between the parties in respect of the contractual arrangements.  The dispute was fueled by a letter sent by Mak Mera to Royal Dutch Shell PLL on July 2, 2014.  The letter was copied to James Bay Resources, as well as to many others, including the Nigerian Ambassador to Canada and a number of officials of the Nigerian government.  Madam Justice MacFarland of the Court of Appeal found that absence truth, the statements made in the letter were "quite clearly defamatory" of James Bay Resources.

 

On September 4, 2014, James Bay Resources commenced proceedings against Mak Mera and Sola in Ontario.  On September 16, 2014, Mak Mera, Sola and Sola’s father-in-law (a Nigerian resident and Chairman of Mak Mera), commenced an action in Nigeria against numerous parties including James Bay Resources and its CEO, Stephen Shafsky.  Some of the claims in the Nigerian action were similar to those in the Ontario action. 

 

James Bay Resources moved in The Federal High Court of Nigeria to strike the Nigerian action on the grounds that the Nigerian court lacked jurisdiction.  It was unsuccessful.  James Bay Resources is appealing that order.

 

On March 2, 2015, Mak Mera and Sola moved to strike or permanently stay the Ontario action.  Justice Paul Perell of the Ontario Superior Court of Justice concluded that Ontario had jurisdiction simpliciter and identified several presumptive factors that would apply, including that Sola is an Ontario resident and both the MOU and the Agreement were negotiated and signed in Ontario.  Justice Perell also found that the Agreement provides that it is governed by Ontario law and contains a choice of forum clause that names Ontario as the jurisdiction where any disputes would be resolved.  He noted, “Neither Mak Mera nor Mr. Sola has advanced any cogent argument that there is a rebuttal of the contractual connection as a presumptive factor.  Their arguments may be relevant to the issue forum conveniens, but jurisdiction is not rebutted.”.  Mak Mera and Sola appealed to the Court of Appeal. 

 

The appellants made no oral submissions rebutting the contractual connection as a presumptive factor.  Justice MacFarland held that the arguments raised on appeal went to the merits of the claims, not to jurisdiction of the Ontario courts.  Those issues did not displace or challenge the fact that both agreements (the MOU and the Agreements) were negotiated and signed in Ontario and that Sola is an Ontario resident – both are strong, presumptive factors.   

 

The appellants also argued that Justice Perell had erred in law by failing to specifically consider comity in his analysis.  Justice MacFarland embarked on a detailed analysis of the goal of comity in jurisdictional motions.  She referred to the decision of the Supreme Court of Canada in Van Breda v. Village Resorts, [2012] 1 SCR572:

 

The goal of the modern conflicts system is to facilitate exchanges and communications between people in different jurisdictions that have different legal systems.  In this sense it rests on the principle of comity.  But comity itself is a very flexible concept.  It cannot be understood as a set of well-defined rules, but rather as an attitude of respect for and deference to other states and, in the Canadian context, respect for and deference to other provinces and their courts.  Comity cannot subsist in private, international law without order, which requires a degree of stability and predictability in the development and application of the rules governing international or inter-provincial relationships.  Fairness and justice are necessary characteristics of a legal system, but they cannot be divorced from the requirements of predictability and stability which assure order in the conflicts system.   In the words of LaForest J., in Morguard, “what must underlie a modern system of private, international law and principles or order and fairness, principles that ensure security of transactions with justice”.

 

Accordingly, Justice MacFarland found that comity is not a stand-alone factor.  She held that it was part and parcel of the forum non conveniens assessment in a given case.  In dismissing the appeal, Justice MacFarland held that Justice Perell had considered the issue of comity in his analysis.  He had done so implicitly when he outlined and considered all of the relevant factors in coming to his conclusion that Nigeria was not the more convenient forum. 

 

Justice Perell was aware of the Nigerian litigation which was started after the Ontario action.  He was aware that James Bay Resources had filed a statement of defence in that action, and brought an unsuccessful motion to strike and was appealing the dismissal of its motion.  The appellants had cited no law for their argument that by filing a statement of defence in the Nigerian action, James Bay Resources had attorned to the jurisdiction of the Nigerian courts. 

 

Justice MacFarland agreed with Justice Perell’s conclusion that “balancing all factors, Nigeria is not clearly the appropriate forum for the dispute and Ontario is not forum non conveniens.”.

Regards,

Blair

 

 

Ontario Court Enforces New York Court's Judgment for Specific Performance

The Ontario Court of Appeal recently recognized and enforced an judgment of a New York court for specific performance (Van Damme v. Gelber, 2013 ONCA 388).

 

The defendant in the case, Nahum Gelber is a very successful businessman and philanthropist.  He is a Canadian citizen and lives in Monaco.  Late in 2006, Mr. Gelber was approached about the possibility of selling a very valuable painting that he owned.  The plaintiff, Alexandre Van Damme claimed to have entered into an agreement through his agent with Mr. Gelber's agent to purchase the painting.  Mr. Gelber however refused to deliver the painting, contending that the person who purported to sell the painting on his behalf had no authority to do so.  

 

Mr. Van Damme commenced an action for specific performance in New York requiring Mr. Gelber to complete the transaction and deliver the painting for the price agreed upon in the contract.  Mr. Van Damme relied on the forum selection clause in the contract that included, "this transaction shall be governed by and construed in accordance with the laws of the state of New York without giving effect to its choice of law rules.  In the event of a dispute, the parties consent to the exclusive jurisdiction of the state and federal courts sitting in the state of New York...The parties hereto consent and submit to the jurisdiction of the and state and federal courts sitting in the state of New York."  

 

The painting is hanging in the home of Mr. Gelber's son in Toronto.  At the same time he commenced the action in New York, Mr. Van Damme commenced an application in the Ontario Superior Court of Justice for an order preserving the painting and prohibiting its sale or movement outside of Ontario pending the outcome of the New York litigation.  In a cross-motion, Mr. Gelber took the position that Ontario was forum non conveniens and New York was the more appropriate forum in which to resolve the dispute between the parties.

 

The Ontario application did not proceed to a hearing.  The parties agreed to an order that prohibited the movement of the painting pending the outcome of the New York litigation.  The consent order also provided that the order was made without prejudice to any arguments the parties might make contesting the jurisdiction of "any court in the state of New York or elsewhere to hear this matter".

 

Mr. Gelber subsequently brought a motion in the New York action challenging the jurisdiction of that court.  He maintained that he was not a party to the relevant contract and therefore was not bound by it or by its forum selection clause. 

 

The New York court declined to decide jurisdiction as a preliminary matter but instead ordered Mr. Gelber to file his statement of defence and to proceed with relevant depositions and discoveries.  Mr. Gelber complied with the order and raised many and various standard defences.  After all depositions and discoveries were completed the parties both moved for summary judgment in the New York court.  The judge granted Mr. Van Damme's summary judgment motion and denied Mr. Gelber's summary judgment motion.

 

Mr. Gelber's summary judgment motion went well beyond the jurisdiction issue.  He advanced several arguments that went to the substantive merits of Mr. Van Damme's claim.

 

Mr. Gelber subsequently brought a variety of motions for a rehearing and appeals challenging the New York judgment.  All of the motions and appeals failed.  After the judgment was entered, Mr. Gelber instituted further proceedings challenging the judgment.  Those appeals were still outstanding when the Ontario motion was heard.  However, when the matter went before the Court of Appeal, the New York judgment was final. 

 

The Court of Appeal held that Mr. Gelber had attorned to the jurisdiction of the New York court by his conduct in the course of that litigation.  It cited another decision of the court (Wolfe v. Pickar, 2011 ONCA 347) where Justice Goudge said, "When a party to an action appears in court and goes beyond challenging the jurisdiction of the court based on jurisdiction simpliciter and forum non conveniens, the party will be regarded as appearing voluntarily, thus giving the court consent-based jurisdiction."  

 

The court held that Mr. Gelber's conduct in advancing his motion for summary judgment dismissing Mr. Van Damme's claims went far beyond his jurisdictional challenges.  Mr. Gelber chose to advance substantive defences on the merits.  In doing so he implicitly accepted that the New York court has jurisdiction to decide those issues.  He raised and argued the merits of several contract-based defences to the claim brought by Mr. Van Damme.

 

The Ontario Court of Appeal also held that the fact that the New York judgment was a judgment for specific performance, as opposed to a money judgment, was not a bar to enforcing it here.  The court held that had the matter been tried in Ontario and had an Ontario court made the same finding as the New York court, specific performance would have been an appropriate remedy having regard to the nature of the property, the nature of Mr. Gelber's obligation and the ready availability of the property.  

 

Regards,

 

Blair

 

 

Man can sue in Ontario for Lashes given in Qatar

Earlier this month, Master R.A. Muir, of the Ontario Superior Court of Justice, refused to stay an action commenced in Ontario by Fakhrul Islam Kazi against Qatar Airlines and others, as a result of his alleged treatment at the hands of officials in Qatar's criminal justice system. The Master found that the defendants had not met the burden of showing why the court should decline to exercise its jurisdiction and displace Ontario as the forum chosen by the plaintiff with another forum, i.e. Qatar.   

In the case (reported at Kazi v. Qatar Airlines, 2013, ONSC1370), the plaintiff boarded an Air Canada flight from Toronto to London's Heathrow airport. His ultimate destination was Dhaka, Bangladesh. However, his itinerary included a connecting flight between Heathrow to Doha, Qatar, on a flight operated by the defendant, Qatar Airlines.

During the course of the flight from London to Qatar, the plaintiff was involved in a dispute with members of the flight crew who alleged that he was smoking in a lavatory, consuming alcohol and behaving in an unruly and disruptive fashion. As a result, the flight crew notified airport security and the plaintiff was detained upon landing in Doha.

Mr. Kazi was charged with two offences under the laws of Qatar:

(a) drinking wine while being a Muslin; and

(b) disturbing the peace as a result of alcohol consumption.

Mr. Kazi was incarcerated in Qatar for almost two months. He was found guilty and sentenced to receive 40 lashes and pay a fine of approximately $550.

After returning to Canada, Mr. Kazi alleges that he suffered numerous injuries and damages as a result of his treatment while detained. He commenced a lawsuit against the defendants alleging that they had a duty to warn him of the prevailing laws of Qatar with respect to the consumption of alcohol by Muslims and that they had failed to take all reasonable steps to ensure that he was properly informed of such laws.

The defendants subsequently brought a motion seeking to stay the action on the basis that Qatar was the more appropriate forum in which to litigate the dispute.

In reviewing the law as set out by the Supreme Court of Canada's decision in Club Resorts Ltd. v. Van Breda, 2012, SCC17,  the Master concluded that Qatar was not clearly a more appropriate forum for disposing of the issues raised in the action. The Master reviewed factors such as the location of the witnesses and the expense required for them to travel to the place of trial and  the issue of the law to be applied to the claim, both of which he saw were neutral factors.  In applying the test set out in Van Breda, the Master reaffirmed that courts should use an analytical approach to establish the existence of a real and substantial connection between the case and  Ontario, and determine whether there was a similar connection to Qatar.  In this instance, the defendant had not shown that Qatar was clearly "in a better position to dispose fairly and efficiently of the litigation".

Regards,

Blair

Ontario Court refuses to assume jurisdiction in a New York MVA

In a recently released decision, Mr. Justice Perell of the Ontario Superior Court of Justice permanently stayed an action brought by a plaintiff who resided in Ontario, but who was struck by a motor vehicle while she was crossing a street in New York state. Justice Perell found that none of the presumptive factors which would give Ontario "jurisdiction simpliciter", i.e. a real and substantial connection to the action, were present in the case.

The plaintiff sued the driver of the motor vehicle for negligence. She also sued her insurance company under the under-insured coverage of her standard motor vehicle insurance policy. The defendant moved to have the plaintiff's action permanently stayed on the grounds that the Ontario Court did not have jurisdiction simpliciter, or alternatively, that Ontario was not the convenient forum for litigating the action.

The plaintiff did not oppose the motion. However, her insurance company which had cross-claimed against the defendant opposed the motion.

Justice Perell ruled that the Ontario Court did not have jurisdiction simpliciter over either the main action or the crossclaim. Because there was no jurisdiction simpliciter it was not necessary to rule on whether Ontario was "forum conveniens" - i.e. the more appropriate forum in which to litigate. However, since there may be an appeal, he ruled that Ontario is forum non-conveniens (i.e. not the more appropriate forum for litigating the action) and that New York was the proper forum in which to litigate the tort claim against the defendant.

After reviewing the facts, Justice Perell held that there were three ways in which the court could assert jurisdiction against an out of province defendant in a tort claim:

1. based on the defendant's presence in the jurisdiction;

2. based on the defendant's consent; and

3. based on the court's assumption of jurisdiction.

In the circumstances, this case was about "assumed jurisdiction".

Assumed jurisdiction arises when the court takes jurisdiction because the action has a real and substantial connection to Ontario. Justice Perell reviewed the recent decision of the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda and the "analytical framework and legal principles" set out by the court in that case.

In concluding there was no jurisdiction simpliciter to Ontario, the judge reviewed the "presumptive" factors established by the Supreme Court and found that, the defendant was not domiciled or resident in Ontario; the defendant did not carry on business in Ontario; the tort was committed outside Ontario; and there was no contract connected with the dispute which was made in Ontario.

As for the factor that there was no contract connected with the dispute which was made in Ontario, Justice Perell concluded that the defendant was not a party to the contract between the insurance company and the plaintiff . The plaintiff's claim under her insurance policy could be tried without the defendant as a party (that might explain why the plaintiff was not opposing the defendant's motion). She intended to litigate in Ontario and leave the insurance company with the problem of re-litigating the issue in the United States.

The insurance company argued that the plaintiff's contract action against it had to be brought in Ontario and therefore the insurance company had a right of subrogation against the defendant. It argued that if the Ontario action was stayed against the defendant, it would have to litigate in two different jurisdiction with the possible of inconsistent judgments. Essentially, the insurance company's argument for assumed jurisdiction was that the defendant was a necessary party to the crossclaim and that his presence in the Ontario action was necessary to avoid a multiplicity of proceedings.

Justice Perell rejected the insurance company's argument based on the Ontario Court of Appeal's reasoning in the Club Resorts case.  The Ontario Court of Appeal held that damages being sustained Ontario or the fact that the foreign defendant was a necessary party are not presumptive factors that the court should take into account.

With respect to the issue of forum conveniens, Justice Perell reviewed the list of factors that the courts may consider in determining which forum was the more appropriate forum for the action: The defendant and two witnesses were in New York; the tort occurred in New York;  American law will govern liability; and quantification of damages would be governed by Ontario law. Considering all of these circumstances, the judge declined to exercise the court's jurisdiction. He ruled "It does not strike me as fair or unreasonable to make Ms. Misura travel to the jurisdiction where the action occurred and where the tortfeasor resides".

Regards,

Blair

Supreme Court of Canada - Conrad Black can sue for defamation in Ontario

Breeden v. Black, 2012 SCC 19

Conrad Black ("B") is a well‑known business figure who established a reputation as a newspaper owner and publisher in Canada and internationally. While B served as the chairman of a publicly traded U.S. company, the legitimacy of certain payments that had been made to B were questioned. A special committee formed to conduct an investigation concluded that the company had made unauthorized payments to B. The committee’s report was posted on the company’s website, which was accessible worldwide, along with press releases containing contact information directed at Canadian media. Statements were also published in the company’s annual report summarizing the committee’s findings.
B commenced six libel actions in the Ontario Superior Court against the ten appellants, who are directors, advisors and a vice‑president of the company. B alleges that the press releases and reports issued by the appellants and posted on the company’s website contained defamatory statements that were downloaded, read and republished in Ontario by three newspapers. He claims damages for injury to his reputation in Ontario.

The appellants brought a motion to have the actions stayed on the grounds that there was no real and substantial connection between the actions and Ontario, or, alternatively, that a New York or Illinois court was the more appropriate forum. The motion judge dismissed the motion, finding that a real and substantial connection to Ontario had been established and that Ontario was a convenient forum to hear the actions. The Court of Appeal unanimously dismissed the appeal. It found that a real and substantial connection was presumed to exist on the basis that a tort was committed in Ontario, and that the appellants had failed to rebut this presumption. It also found that there was no basis on which to interfere with the motion judge’s exercise of discretion with regard to forum non conveniens.

Applying the Van Breeda analysis, the SCC dismissed the appeal. The issue of assumption of jurisdiction was determined based on a presumptive connecting factor ― the alleged commission of the tort of defamation in Ontario. It is well established in Canadian law that the tort of defamation occurs upon publication of a defamatory statement to a third party, which, in this case, occurred when the impugned statements were read, downloaded and republished in Ontario by three newspapers. It is also well established that every repetition or republication of a defamatory statement constitutes a new publication, and that the original author of the statement may be held liable for the republication where it was authorized by the author or where the republication is the natural and probable result of the original publication. The republication in the three newspapers of statements contained in press releases issued by the appellants clearly falls within the scope of this rule. In the circumstances, the appellants have not displaced the presumption of jurisdiction that results from this connecting factor.

Having found that a real and substantial connection exists between the action and Ontario, the court considered whether the Ontario court should decline to exercise its jurisdiction on the ground that the court of another jurisdiction was clearly a more appropriate forum for the hearing of the actions. Under the forum non conveniens analysis, the burden is on the party raising the issue to demonstrate that the court of the alternative jurisdiction is a clearly more appropriate forum. The factors to be considered by a court in determining whether an alternative forum is clearly more appropriate are numerous and will vary depending on the context of each case. The forum non conveniens analysis does not require that all the factors point to a single forum, but it does require that one forum ultimately emerge as clearly more appropriate. The decision not to exercise jurisdiction and to stay an action based on forum non conveniens is a discretionary one, and the discretion exercised by a motion judge will be entitled to deference from higher courts, absent an error of legal principle or an apparent and serious error on the determination of relevant facts.

The Court found that both the courts of Illinois and Ontario are appropriate forums for the trial of the libel actions. The factors of comparative convenience and expense for the parties and witnesses, location of the parties, avoidance of a multiplicity of proceedings and conflicting decisions and enforcement of judgment favour the Illinois court as a more appropriate forum, whereas the factors of applicable law and fairness to the parties favour the Ontario court. In the end, however, considering the combined effect of the relevant facts, and in particular the weight of the alleged harm to B’s reputation in Ontario, and giving due deference to the motion judge’s decision, the Illinois court did not emerge as a clearly more appropriate forum than an Ontario court for the trial of the libel actions.

Here is a link to the decision http://scc.lexum.org/en/2012/2012scc19/2012scc19.html

Regards,

Blair

Supreme Court Rules on Ontario's Jurisdiction to hear Foreign Proceedings

Jurisdiction of Canadian Courts to hear Actions against Foreign Travel Companies

In this decision released this morning the Supreme court of Canada held that Ontario had jurisdiction to hear two cases against tour companies offering vacations in Cuba in circumstances where the tourists were injured in Cuba.

Here is an extract from the decision.

Club Resorts Ltd. v. Van Breda, 2012 SCC 17

In separate cases, two individuals were injured while on vacation outside of Canada. Morgan Van Breda suffered catastrophic injuries on a beach in Cuba. Claude Charron died while scuba diving, also in Cuba. Actions were brought in Ontario against a number of parties, including the appellant, Club Resorts Ltd., a company incorporated in the Cayman Islands that managed the two hotels where the accidents occurred. Club Resorts sought to block those proceedings, arguing that the Ontario courts lacked jurisdiction and, in the alternative, that a Cuban court would be a more appropriate forum on the basis of the doctrine of forum non conveniens. In both cases, the motion judges found that the Ontario courts had jurisdiction with respect to the actions against Club Resorts. In considering forum non conveniens, it was also held that the Ontario court was clearly a more appropriate forum. The two cases were heard together in the Court of Appeal. The appeals were both dismissed.
Held: The appeals should be dismissed.

This case concerns the elaboration of the “real and substantial connection” test as an appropriate common law conflicts rule for the assumption of jurisdiction. In determining whether a court can assume jurisdiction over a certain claim, the preferred approach in Canada has been to rely on a set of specific factors which are given presumptive effect, as opposed to a regime based on an exercise of almost pure and individualized judicial discretion. Given the nature of the relationships governed by private international law, the framework for the assumption of jurisdiction cannot be an unstable, ad hoc system made up on the fly on a case‑by‑case basis – however laudable the objective of individual fairness may be. There must be order in the system, and it must permit the development of a just and fair approach to resolving conflicts.

To meet the common law real and substantial connection test, the party arguing that the court should assume jurisdiction has the burden of identifying a presumptive connecting factor that links the subject matter of the litigation to the forum. Jurisdiction must be established primarily on the basis of objective factors that connect the legal situation or the subject matter of the litigation with the forum. Abstract concerns for order, efficiency or fairness in the system are no substitute for connecting factors that give rise to a “real and substantial” connection for the purposes of the law of conflicts. In a case concerning a tort, the following factors are presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute:

(a) the defendant is domiciled or resident in the province;

(b) the defendant carries on business in the province;

(c) the tort was committed in the province; and

(d) a contract connected with the dispute was made in the province.

Although the factors set out in the list are considered presumptive, this does not mean that the list of recognized factors is complete, as it may be reviewed over time and updated by adding new presumptive connecting factors. When a court considers whether a new connecting factor should be given presumptive effect, the values of order, fairness and comity can serve as useful analytical tools for assessing the strength of the relationship with a forum to which the factor in question points. These values underlie all presumptive connecting factors, whether listed or new. In identifying new presumptive factors, a court should look to connections that give rise to a relationship with the forum that is similar in nature to the ones which result from the listed factors. Relevant considerations include:

(a) Similarity of the connecting factor with the recognized presumptive connecting factors;

(b) Treatment of the connecting factor in the case law:

(c) Treatment of the connecting factor in statute law; and

(d) Treatment of the connecting factor in the private international law of other legal systems with a shared commitment to order, fairness and comity.

The presumption of jurisdiction that arises where a recognized connecting factor — whether listed or new — applies is not irrebuttable. The burden of rebutting the presumption of jurisdiction rests, of course, on the party challenging the assumption of jurisdiction. That party must negate the presumptive effect of the listed or new factor and convince the court that the proposed assumption of jurisdiction would be inappropriate. This could be accomplished by establishing facts which demonstrate that the presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and the forum or points only to a weak relationship between them.

If the court concludes that it lacks jurisdiction because none of the presumptive connecting factors — whether listed or new — apply or because the presumption of jurisdiction that flows from one of those factors has been rebutted, it must dismiss or stay the action, subject to the possible application of the forum of necessity doctrine. If jurisdiction is established, the claim may proceed, subject to the court’s discretion to stay the proceedings on the basis of the doctrine of forum non conveniens.

In Van Breda, a contract was entered into in Ontario. The existence of a contract made in Ontario that is connected with the litigation is a presumptive connecting factor that, on its face, entitles the courts of Ontario to assume jurisdiction in this case. Club Resorts has failed to rebut the presumption of jurisdiction that arises where this factor applies. Therefore, there was a sufficient connection between the Ontario court and the subject matter of the litigation. Club Resorts has not discharged its burden of showing that a Cuban court would clearly be a more appropriate forum. While a sufficient connection exists between Cuba and the subject matter of the litigation to support an action there, issues related to the fairness to the parties and to the efficient disposition of the claim must be considered. A trial held in Cuba would present serious challenges to the parties. All things considered, the burden on the plaintiffs clearly would be far heavier if they were required to bring their action in Cuba.

In Charron, the facts supported the conclusion that Club Resorts was carrying on a business in Ontario which is a presumptive connecting factor. Club Resorts’ commercial activities in Ontario went well beyond promoting a brand and advertising. Its representatives were in the province on a regular basis and it benefitted from the physical presence of an office in Ontario. It therefore follows that it has been established that a presumptive connecting factor applies and that the Ontario court is prima facie entitled to assume jurisdiction. Club Resorts has not rebutted the presumption of jurisdiction that arises from this connecting factor and therefore the Ontario court has jurisdiction on the basis of the real and substantial connection test. Furthermore, Club Resorts failed to discharge its burden of showing that a Cuban court would clearly be a more appropriate forum in the circumstances of this case. Considerations of fairness to the parties weigh heavily in favour of the plaintiffs.

Here is a link to the decision http://scc.lexum.org/en/2012/2012scc17/2012scc17.html


Regards,

Blair

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.

Regards,

Blair