Civil Litigation/Torts: Jurisdiction Simpliciter and Forum Non ConveniensVahle v. Global Work & Travel Co. Inc., 2020 ONCA 224 (CanLII)
Keywords: “Teach in Thailand”; MVA; jurisdiction simpliciter; forum non conveniens
Two sisters travel to Thailand to participate in a “Teach in Thailand” experience arranged through a British Columbia company (the appellant, Global Work & Travel Co. Inc.) with offices and employees in Vancouver. The sisters are each assigned to different towns and provided motor scooters for transportation. While riding together on a motor scooter, the sisters are struck by another motorist. The younger sister dies while the older sister suffers “lasting effects”.
An action is commenced in Ontario claiming damages for breach of contract, breach of fiduciary duty, negligence, negligent misrepresentation, and other torts. The appellant brings a motion to dismiss or stay the action based on lack of jurisdiction simpliciter and forum non conveniens. The motion judge dismisses the motion.
The appellant appeals, alleging the motion judge erred in his application of the test by relying on the torts of negligent misrepresentation and negligence having been committed in Ontario as presumptive connecting factors. The Court of Appeal agrees with the motion judge’s decision, finding no error in the motion judge’s application of the “good arguable case” test, Club Resorts Ltd. v. Van Breda, 2012 SCC 17,  1 S.C.R. 572, and conclusions.
This case provides a helpful summary of the law of jurisdiction in Canada. As noted by the motion judge (see Vahle et al. v. Global Work & Travel Co. Inc., 2019 ONSC 3624 (CanLII) at para. 21), the test for jurisdiction and the application of the doctrine of forum non conveniens has been the subject of much recent discussion the Supreme Court of Canada. See, for example, Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (CanLII), Breeden v. Black, 2012 SCC 19 (CanLII), and Haaretz.com v. Goldhar, 2018 SCC 28 (CanLII).
As summarized by the motion judge at paras. 21-26 of Vahle et al. v. Global Work & Travel Co. Inc., 2019 ONSC 3624 (CanLII), in general, for a court to have jurisdiction there must be a “real and substantial connection” between the court and the subject matter of the litigation. The purpose of the jurisdiction simpliciter test is to establish when a court has jurisdiction, while the purpose of forum non conveniens is to determine whether the court should exercise it (on an assessment of the presumptive connecting factors set out by the Supreme Court of Canada in Van Breda). On appeal, the appellant conceded the motion judge’s summary was correct. (See para. 7).
The legal dispute in this case arose from the application of these relevant principles. For the Court of Appeal, the motion judge appropriately found “there was a good arguable case supporting a presumptive factor” in favour of jurisdiction – in particular, the Court noted the appellant had made representations to the sisters in Ontario that it would “…ensure the living, safety, security and emergency needs”. In addition, the Court of Appeal determined “claims concerning the appellant's post-accident conduct in Ontario concerning contacting the sisters’ parents could support a claim in negligence.” (See para. 9).
For the Court of Appeal, the appellant had failed to rebut the real and substantial connection created by these presumptive connecting factors. Citing Van Breda at para. 95, the Court of Appeal noted that a defendant must “establish 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”. (See para. 10). The Court of Appeal agreed with the motion judge’s determination that “the appellant was well-aware that it was attracting Ontario clients through representations made in Ontario” and that the appellant represented it would provide “a much more far-reaching service than that of a simple travel agent.” (See para. 10).
With respect to the motion judge’s application of the “good arguable case” test, the Court of Appeal found the requirement was “easily met in this case”. For the Court,
…it is unnecessary on a jurisdiction motion for the court to determine whether all of the alleged misconduct was that of the appellant, as pleaded, or that all of the alleged misconduct is connected to Ontario: Van Breda, at para. 99. It is also unnecessary and inappropriate to treat a jurisdiction motion as a r. 21 motion or to weigh evidence going to the merits of the litigation. Rather, the questions on a jurisdiction motion are whether the statement of claim asserts the core elements of a cause of action known to law and appears capable of amendment to cure any pleadings deficiencies and whether the claimant has established a good arguable case that the cause of action is sufficiently connected to Ontario to found jurisdiction. (See para. 13).
With respect to the motion judges forum non conveniens analysis, the Court of Appeal found no basis to interfere and noted “[i]t is not for us to reweigh his assessment of the relevant factors.” (See para. 14).
Both the motion judge and the Court of Appeal set out a detailed legal analysis on an issue of fundamental importance to the administration of justice in Canada – namely, the jurisdiction of the courts. It remains to be seen whether this particular application of the test, in this particular context, for jurisdiction simpliciter and/or forum non conveniens will be addressed at the Supreme Court of Canada in an application for leave to appeal.
Counsel for the Appellant: Elizabeth Bowker and Christopher Afonso (Stieber Berlach LLP, Toronto)
Counsel for the Respondents: Allan Morrison (Morrison Law, Toronto) and Vibhu Sharma