- Zaia S. Daniel
Legal Wrongs Committed Outside Canada & Jurisdiction of the Courts
Victims of a legal wrong committed outside of Canada may be able to commence legal proceedings in the Ontario's courts.
In Vahle v. Global Work & Travel Co., two sisters decided to travel to Thailand to teach English. In August of 2016, they flew to Thailand to participate in a “Teach in Thailand” experience arranged through the appellant, a British Columbia company with offices and employees in Vancouver. The sisters were in Ontario when they responded to internet advertisements from Global. The company made representations that it would ensure the living, safety, security, and emergency needs of the sisters.
After completing their teaching course, the sisters were assigned to different towns and given motor scooters for transportation. While riding together on a motor scooter, the sisters were struck by another motorist and seriously injured. The younger sister succumbed to her injuries; the older sister continued to suffer the lasting effects of the accident.
The Plaintiffs brought an action in Ontario against Global claiming damages for breach of contract and tort claims. The motion judge dismissed the Defendant’s motion to dismiss or stay the action based on the lack of jurisdiction and forum non conveniens.
The Van Breda Test
The motion judge in this case applied the real and substantial test from Club Resorts Ltd. v Van Breda in order to determine Ontario’s jurisdiction. The test requires that the party arguing for assuming jurisdiction has the burden of identifying a presumptive connecting factor linking the subject matter of the litigation to the forum. The three-step analysis for determining jurisdiction:
Does the court have presumptive jurisdiction?
Can the court’s presumptive jurisdiction be rebutted?
If the court has jurisdiction, should it decline to exercise its jurisdiction in favour of a clearly more appropriate forum?
The test requires an analysis of the “real and substantial connection” between the forum and the claim by using a non-exhaustive list of presumptive factors that connect the subject matter of the legislation to the province.
The court recognized “existing factors” that prima facie entitle a court to assume jurisdiction, they are:
The defendant is domiciled or resident in the province;
The defendant carries on business in the province;
The tort was committed in the province; and
A contact connected with the dispute was made in the province.
The court went on to create a framework for analyzing “new factors” that courts may consider in determining whether it is presumptively entitled to assume jurisdiction. The relevant considerations are:
Similarity of the connecting factor with the recognized presumptive connecting factors;
Treatment of the connecting factor in the case law;
Treatment of the connecting factor in statute law; and
Treatment of the connecting factor in the private international law of other legal systems with a shared commitment to order, fairness and comity.
Once the court establishes jurisdiction, a party can raise the doctrine of forum non conveniens. The burden lies with the party raising the doctrine to show why the court should decline its jurisdiction. The party must identify another forum that has an appropriate connection under the conflicts rules and displace the plaintiff.
The court in Van Breda stated that the existence of a contract made in Ontario that is connected with the litigation was a presumptive factor that entitled the court to assume jurisdiction. Failing to rebut the presumptive connecting factor created a sufficient connection between the Ontario court and the subject matter of the litigation. Club Resorts subsequently failed in its burden to show that a Cuban court would clearly be a more appropriate forum. The court subsequently dismissed Club Resorts’ appeal.
The Court’s Application of the Van Breda Test in Vahle v. Global Work & Travel Co.
In this case, the motion judge found a presumptive connection factor in the form of torts committed in Ontario. The motion judge concluded that the appellant had not rebutted the presumption of a “real and substantial connection” between the subject matter of the litigation and Ontario. After determining that Ontario had jurisdiction simpliciter, he concluded that the appellant had failed to establish that another forum was clearly more appropriate.
On appeal, Global Work & Travel Inc. argued that the motion judge erred in relying on the torts of negligent misrepresentation and negligence being committed in Ontario as presumptive connecting factors.
The Court stated that the burden, in the form of a good arguable case supporting a presumptive factor, was met in this case. The sisters were in Ontario when they responded to advertisements from Global. A certain number of misrepresentations relied on are alleged to have been made to them in Ontario before they left for Thailand. The Court found that respondents met the real and substantial connection test by showing a good arguable case supporting a presumptive factor.
A wrongful act leading to civil liability committed outside of Ontario may still be subject to Ontario’s jurisdiction. The standard of determining jurisdiction is not based on assessing the merits of the case. Instead, the judge must at least be satisfied that there is a “good arguable case” supporting a presumptive factor.
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 Vahle v Global Work & Travel Co.,  OJ No 1184.
 Club Resorts Ltd v Van Breda,  SCJ No 17.