In Vahle et al v. Global Work & Travel Co. Inc., the court determined that Ontario has jurisdiction over a lawsuit related to an accident that occurred in Thailand.
Two sisters from Ontario went to Thailand to teach English. The teaching program was organized by the defendant.
While riding a motor scooter, the sisters were struck by a car. One sister died and the other sustained serious injuries. A lawsuit was commenced in Ontario.
The defendant is an international travel agency. Its parent company is based in Australia, and it has offices and employees in Vancouver, British Columbia.
The defendant argued that the Ontario court lacked jurisdiction and that Ontario was not the convenient forum.
Justice Schabas noted that the onus lies on a plaintiff to show that at least one of the presumptive connecting factors can be established. The presumptive connecting factors were outlined by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda:
- The defendant is domiciled or resident in the province.
- The defendant carries on business in the province.
- The tort was committed in the province.
- A contract connected with the dispute was made in the province.
Justice Schabas held that two of the presumptive connecting factors applied.
First, there was at least a “good arguable case” that a tort was committed in Ontario. A misrepresentation by the defendant may have occurred in Ontario. The tort of negligent misrepresentation is committed “where the representation is received and relied upon”. Further, the defendant’s conduct following the accident could give rise to claims of negligence involving steps that it took or ought to have taken in Ontario.
Secondly, although the defendant does not have a physical presence in Ontario, Justice Schabas noted that it engages in e-commerce in Ontario by contacting and contracting with travellers in Ontario. There was a “good arguable case” that the defendant carries on business in Ontario.
As a result, it was presumed that Ontario has jurisdiction. Justice Schabas held that the defendant did not rebut the presumption.
Justice Schabas then examined the question of forum non conveniens and held that the defendant did not satisfy the burden of showing that Thailand was clearly the more appropriate forum for the lawsuit.