The Ontario Court of Appeal upheld the decision of the motion judge, Justice Paul B. Schabas, dismissing a motion to dismiss or stay the action.
This is another case dealing with the jurisdictional issues that arise in tort and in contract when injuries have been suffered outside of Ontario but the litigation has been commenced in Ontario. It explores the doctrine of forum non conveniens.
The underlying facts were tragic - two sisters, 19 and 20 years of age - traveled to Thailand to teach English. In a motor vehicle accident in Thailand, one sister was killed and the other sister seriously injured.
The decision reviews and applies the seminal decision from the SCC - Club Resorts Ltd. v. Van Breda - and offers an example of when the presumptive connecting factors to Ontario are strong enough to create the necessary “real and substantial connection” to sustain an action in Ontario. Here the facts supported there being such a connection:
- Plaintiffs were in Ontario when they responded to job advertisements for work in Thailand
- Certain misrepresentations were made in Ontario, which included the suggestion that Global Work provided a much more far-reaching service than a simple travel agent
- on the Rule 21 jurisdiction motion below, it was not necessary or appropriate to weigh the evidence going towards the merits of the litigation
- rather, the statement of claim did outline the core elements of a cause of action and the plaintiffs’ did satisfy a sufficient connection to Ontario.
For plaintiffs in travel cases seeking to keep their action in Ontario, this will be a helpful precedent illustrating the type of factual background that rises to the requisite degree of connection. The fact there was an employment relationship that was created helped to elevate this particular case above the many forum non conveniens cases where jurisdiction rests outside of Ontario.