Leufkens et al. v. Alba Tours International Inc. et al. [Indexed as: Leufkens v. Alba Tours International Inc.]

60 O.R. (3d) 84

[2002] O.J. No. 2129

Docket No. C36006

Court of Appeal for Ontario,

Rosenberg, Feldman, and Sharpe JJ.A.

May 29, 2002

Conflict of law -- Forum non conveniens -- Plaintiff claiming damage sustained in Ontario as a result of tort committed elsewhere -- Plaintiff being Ontario resident -- Out-of- province defendant -- Real and substantial connection test -- Multiple factors relevant to determining whether forum has real and substantial connection -- Motion to stay allowed -- Courts of Justice Act, R.S.O. 1990, c. 43, s. 106 -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 17.02, 17.06. [page85]

In 1998, while on a holiday in Costa Rica, the plaintiff ML was injured during an excursion tour, when he fell during an activity in which he used a harness and guide wires to move between platforms in a canopy of trees. He, his wife and their two sons, all of whom were residents of Pickering, Ontario, brought an action in Ontario in negligence against the following parties: the Canadian tour companies from which they had purchased the vacation package; Swiss Travel Service, the Costa Rican company that sold the excursion tour; the owner and operator of the tour; the Red Cross of Costa Rica; and the Costa Rican medical professionals who treated ML in Costa Rica. The defendant Swiss Travel Service moved to stay the action as against it. Swinton J. granted the motion and the plaintiffs appealed.

Held, the appeal should be dismissed.

In the simultaneously released judgment in Muscutt v. Courcelles, the court sets out the legal principles relating to assumed jurisdiction in cases involving damages sustained in Ontario as a result of a tort committed elsewhere. The judgment in Muscutt identifies eight factors to be considered when determining whether the real and substantial connection test and the principles of order and fairness have been satisfied for a court to assume jurisdiction. Applying the Muscutt analysis to the circumstances of this case indicated that the Ontario courts cannot assume jurisdiction against the Swiss Travel Service. Accordingly, the appeal should be dismissed.

APPEAL from an judgment of Swinton J. (2001), 2001 28038 (ON SC), 53 O.R. (3d) 112, 4 C.C.L.T. (3d) 300 (S.C.J.) staying an action.

Cases referred to Hunt v. T & N plc, 1993 43 (SCC), [1993] 4 S.C.R. 289, 85 B.C.L.R. (2d) 1, 109 D.L.R. (4th) 16, [1994] 1 W.W.R. 129, 21 C.P.C. (3d) 269; Lemmex v. Bernard (2001), 2001 38747 (ON SCDC), 55 O.R. (3d) 657 (Div. Ct.), affg (2000), 2000 29030 (ON SC), 49 O.R. (3d) 598, 2 C.P.C. (5th) 168 (S.C.J.); McNichol Estate v. Woldnik (2001), 2001 5679 (ON CA), 13 C.P.C. (5th) 61, 150 O.A.C. 68 (C.A.), affg (2000), 2000 26983 (ON SC), 52 O.R. (3d) 49, 5 C.P.C. (5th) 333 (S.C.J.); Moran v. Pyle National (Canada) Ltd., 1973 192 (SCC), [1975] 1 S.C.R. 393, [1974] 2 W.W.R. 586, 43 D.L.R. (3d) 239, 1 N.R. 122; Morguard Investments Ltd. v. De Savoye, 1990 29 (SCC), [1990] 3 S.C.R. 1077, 52 B.C.L.R. (2d) 160, 76 D.L.R. (4th) 256, 122 N.R. 81, [1991] 2 W.W.R. 217, 46 C.P.C. (2d) 1, 15 R.P.R. (2d) 1 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 17.02(h), 17.06(2)(c), 21.01(3)

Tricia McAvoy, for appellants. S. Gordon McKee and Lise G. Favreau, for respondent Swiss Travel Service.

The judgment of the court was delivered by

[1] SHARPE J.A.: -- This appeal, argued together with four other appeals, [See Note 1 at end of document] involves the important issue whether the Ontario [page86] courts should assume jurisdiction over out-of-province defendants in claims for damage sustained in Ontario as a result of a tort committed elsewhere.

Facts

[2] On January 31, 1998, the plaintiff Michael Leufkens was injured during an excursion tour called the "Tree Top Trail" while on a package holiday in Costa Rica. Mr. Leufkens, his wife and their two sons brought an action in negligence against several defendants: the Canadian tour companies from which they purchased the vacation package, the Costa Rican company from which they purchased the excursion tour, the owner and operator of the excursion tour, the Red Cross of Costa Rica, and the Costa Rican medical professionals who treated Mr. Leufkens in Costa Rica.

[3] Mr. Leufkens is a firefighter in Toronto, Ontario and resides in Pickering, Ontario with his wife and two sons. The Leufkens purchased their package to Costa Rica from Alba Tours and Sunquest Vacations, both of which carry on business in Ontario. In 1997, Alba and Sunquest amalgamated to form the Canadian Leisure Group, which also carries on business in Ontario.

[4] For the duration of tourists' stays in Costa Rica, Alba and Sunquest arranged for a Costa Rican company, Swiss Travel Service, to provide ground transportation and arrange optional local excursions. One optional excursion is the "Tree Top Trail", which involves using a harness and guide wires to mount to a canopy of trees, using cables to move from one platform to another while at the level of the tree tops, and finally rappelling from a platform approximately fifty feet above the ground. The defendant Rincon de la Vieja Cabin is the owner and operator of the "Tree Top Trail". Swiss Travel Service acted as an intermediary between Rincon and the participants of the excursion, making bookings and providing transportation to the site of the excursion.

[5] While in Costa Rica, the Leufkens arranged to participate in the "Tree Top Trail" excursion. They purchased the excursion from a Swiss Travel Service representative at their hotel.

[6] During the "Tree Top Trail" excursion, Mrs. Leufkens and the couple's two sons rappelled before Mr. Leufkens. Mr. Leufkens alleges that when it was his turn to rappel, a guide offered to modify his safety harness to permit a "quick descent". Mr. Leufkens fell, landing on his back and neck and striking his head. As a result of his fall, he sustained fractures to his scapula, sternum and two neck vertebrae. He also sustained a tear in his [page87] left lung, a possible closed head injury, and contusions to his back, buttocks, elbows, heels and knees.

[7] A Red Cross ambulance transported Mr. Leufkens to a hospital in Costa Rica, where he was treated before being transported to a hospital in Toronto approximately 12 hours later.

[8] The plaintiffs' action names three Canadian companies as defendants: Alba, Sunquest and the Canadian Leisure Group. The action also names several Costa Rican companies and individuals as defendants: Swiss Travel Service, Rincon, the Red Cross of Costa Rica and the Costa Rican medical professionals who treated Mr. Leufkens. Rincon, the Red Cross of Costa Rica and the medical professionals have not defended the action in Ontario.

[9] Swiss Travel Service was served with the plaintiffs' statement of claim in Costa Rica pursuant to rule 17.02(h) [See Note 2 at end of document] of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Swiss Travel Service brought a motion to stay the action under rule 21.01(3) on the basis that Ontario courts lack jurisdiction. In the alternative, Swiss Travel Service argued that the action should be stayed under rule 17.06(2)(c) on the basis that Ontario is not the convenient forum for the action.

Judgment Below

[10] On February 23, 2001, Swinton J. granted Swiss Travel Service's motion and stayed the action against Swiss Travel Service.

[11] The motions court judge held that where a foreign defendant has been served with a statement of claim and moves to set the service aside, there are two distinct issues: 1) whether the domestic court lacks jurisdiction over the action; and 2) whether the domestic court is not the convenient forum (forum non conveniens). She concluded that the action against Swiss Travel Service should be stayed on the basis of both issues. [page88]

[12] On the issue of jurisdiction, the motions court judge found that Swiss Travel Service is a Costa Rican company with no connection to Ontario. The plaintiffs had argued that Swiss Travel Service operated in partnership with Alba and Sunquest on the basis of a letter given to them on their arrival in Costa Rica, which stated: "In Costa Rica, Sunquest and Alba have partnered with Swiss Travel Service, a local tour company, to provide you with transportation and optional tours during your stay." However, the motions court judge found that Swiss Travel Service does not operate in partnership with Alba or Sunquest. She found that Swiss Travel Service does not carry on business in Ontario and that any arrangement between Swiss Travel Service and Alba or Sunquest was contractual and based in Costa Rica.

[13] The motions court judge found that Ontario courts could only assume jurisdiction on the basis of a "real and substantial connection between Ontario and the subject matter of the action". At p. 120 O.R., she found that the subject matter of the action was "the alleged negligence which occurred in Costa Rica":

In my view, the subject matter of the litigation is the alleged negligence which occurred in Costa Rica. Even if the claims against Alba/Sunquest have a basis in contract, this is essentially a tort action, because the allegations are of a lack of due care and attention and negligence. The accident giving rise to the litigation occurred in Costa Rica, where Swiss Travel carries on its business. The plaintiffs purchased their tickets for the excursion from Swiss Travel there, and all the allegations of negligence arise out [of] events during the Tree Top Trail tour or immediately following the fall, because of the quality of the emergency care provided and the quality of the medical care before Mr. Leufkens was evacuated.

[14] The motions court judge further found that there was no real and substantial connection between the subject matter of the action and Ontario. In so holding, she questioned McKinnon J.'s application of the Supreme Court of Canada's reasoning in Moran v. Pyle National (Canada) Ltd., 1973 192 (SCC), [1975] 1 S.C.R. 393, 43 D.L.R. (3d) 239 to the facts in Lemmex v. Bernard (2001), 2000 29030 (ON SC), 49 O.R. (3d) 598, 2 C.P.C. (5th) 168 (S.C.J.), affd (2001), 2001 38747 (ON SCDC), 55 O.R. (3d) 657 (Div. Ct.). McKinnon J. had applied Moran v. Pyle to find that Ontario courts had jurisdiction over a provider of services to foreign tourists on the basis that the provider could reasonably foresee that the foreign tourists might wish to sue in their home jurisdiction. However, at pp. 120-21 O.R., the motions court judge held that Moran v. Pyle was inapplicable:

With all due respect to McKinnon J., I do not see the reasoning in Moran to be applicable here, so as to justify an Ontario court assuming jurisdiction. It is significant, in Moran, that the defendant had manufactured and sold a deficient product, which then caused an injury in Saskatchewan. It was foreseeable to the manufacturer, having put the defective product into the [page89] marketplace, that an accident might occur in the place in which the product was consumed. On facts such as those, the province in which the accident occurred was held to have a real and substantial connection with the tort action.

Here, we are dealing with the provision of services in Costa Rica which allegedly caused injury there -- not goods sent into Ontario, which caused injury in Ontario. This is a case where the plaintiffs travelled to Costa Rica for a vacation. The accident and the negligent actions which allegedly aggravated the initial injury all occurred in Costa Rica. All the defendants except the Canadian Leisure Group defendants are in Costa Rica. In my view, the proper question is not whether it was reasonably foreseeable to the Costa Rican defendants that they would be sued in Ontario, should an Ontario resident with whom they had dealings in Costa Rica be injured there. Rather, the proper inquiry is whether it was reasonably foreseeable that the services provided would cause an injury in Ontario. Clearly, it was not, as the injury occurred in Costa Rica.

[15] The motions court judge noted that since the alleged negligence and damage occurred in Costa Rica, Costa Rican law would apply. She further held that several of the key witnesses on the question of liability are in Costa Rica, including employees of Swiss Travel Service, Rincon, the Red Cross of Costa Rica and the hospital where Mr. Leufkens was treated. At p. 121 O.R., she concluded that although Mr. Leufkens suffered damages in Ontario, this did not suffice to create a real and substantial connection between Ontario and the subject matter of the action against Swiss Travel Service:

Clearly, the plaintiffs have a connection with Ontario, and have suffered damage here. The medical evidence with respect to the injuries is predominantly here. However, cases such as MacDonald v. Lasnier [(1994), 1994 7340 (ON SC), 21 O.R. (3d) 177 (Gen. Div.)], Long [Long v. Citi Club, [1995] O.J. No. 1411 (Gen. Div.)] and Jean-Jacques [Jean-Jacques v. Jarjoura, [1996] O.J. No. 5174 (Gen. Div.)], referred to above, have held that the mere fact that the plaintiff continues to suffer damages in Ontario after sustaining an injury as a result of a tort committed outside the jurisdiction does not create a real and substantial connection between Ontario and the action. In my view, this is a case where there is not a real and substantial connection between the subject matter of the action against Swiss Travel and Ontario; rather, it is Costa Rica which has the real and substantial connection with the subject matter of the litigation.

[16] Accordingly, the motions court judge stayed the action against Swiss Travel Service on the basis that Ontario courts lack jurisdiction.

[17] The motions court judge also would have stayed the action on the basis of forum non conveniens. She held that there is a significant overlap in the factors considered with respect to jurisdiction simpliciter and forum non conveniens. She outlined the following factors relevant under the forum non conveniens analysis: the residence or place of business of the parties, the jurisdiction in [page90] which the factual matters arose, the location from which the bulk of the evidence will come, the location in which the bulk of the witnesses reside, the location of key witnesses, the governing law, the location where relevant agreements are made, and any juridical advantage or disadvantage to a party.

[18] The motions court judge then found that the application of these factors militated against Ontario and in favour of Costa Rica as the convenient forum for the action. She found that all of the defendants except Alba, Sunquest and the Canadian Leisure Group were in Costa Rica; that the dispute centred around events that occurred in Costa Rica; that Costa Rican law would apply; that Swiss Travel Service's key witnesses were in Costa Rica; that Swiss Travel Service would suffer significant juridical disadvantage if it had to litigate in Ontario; that the Leufkens would not suffer significant juridical disadvantage if they had to litigate in Costa Rica; and that litigating the action in Ontario would give rise to a multiplicity of proceedings. In particular, at pp. 122-23 O.R., the motions court judge held as follows:

In this case, the four plaintiffs are in Ontario. As well, the Canadian Leisure defendants are here. While they are technically three defendants, they are, in practical terms, one defendant. All of the other defendants reside in Costa Rica, and Alba and Sunquest have a permanent presence there.

The dispute centres around events which occurred in Costa Rica, since the particulars of negligence relate to the operation of the Tree Top Tour, the emergency medical treatment at the site, the ambulance service, and the medical treatment at the hospital in Costa Rica. In this case, the law of Costa Rica will apply to the tort claims, and if the action were to proceed in Ontario, would require expert witnesses on the law of Costa Rica, who would very likely come from Costa Rica.

Swiss Travel's key witnesses on the issue of liability, including those who can testify as to the safety of the tour and the medical attention provided after the accident, are in Costa Rica. As well, Swiss Travel has indicated that it will cross-claim against Rincon and the other Costa Rican defendants, and the evidence of the witnesses in Costa Rica is key to the determination of a cross-claim. These witnesses include some of its own employees, but also employees of Alba/Sunquest in Costa Rica, Rincon, and the Red Cross, and the treating doctors at the hospital.

The plaintiffs claim that they may call some 27 witnesses, of whom 20 are in Ontario. It appears that there is overlap between these witnesses, and I doubt that all would be called, either with respect to liability or damages. Clearly, Michael and Elaine Leufkens are key witnesses, and they reside in Ontario. The plaintiffs' witnesses with respect to his medical condition after he arrived in Ontario and the loss of future income are also in Ontario.

Wherever the action is tried, one issue will be the quality of the medical care provided in Costa Rica, which will require expert witnesses on the standard of care with respect to medical treatment in that country. [page91]

Swiss Travel also alleges that it will suffer a significant juridical disadvantage if it has to litigate in Ontario, since the Red Cross and other medical defendants have indicated that they do not intend to defend here. Rincon has not yet been served, but it is unlikely that it will defend here. Therefore, Swiss Travel is likely to face serious obstacles in obtaining evidence from key witnesses in an Ontario proceeding. As well, Swiss Travel's insurer has indicated that it will not defend an action in Ontario, other than the current motion. This constitutes a further juridical disadvantage for Swiss Travel.

The plaintiffs have not indicated that they will suffer a juridical disadvantage beyond the costs of litigating in Costa Rica. There is no indication that they face a limitation period if they have to proceed in Costa Rica.

One of the considerations, in determining the appropriate forum, is the avoidance of a multiplicity of proceedings. It is apparent that if Swiss Travel is required to continue these proceedings in Ontario and a finding of liability is made, it will have to implement proceedings in Costa Rica as well, in order to seek indemnity from the other defendants. This raises the risk of inconsistency in the findings of fact and conclusions on damages.

Having considered all the factors, I conclude that Costa Rica is clearly the more appropriate forum in which to determine this action, which is in essence a claim for damages arising from events in Costa Rica to be decided under Costa Rican law, and in which many of the key witnesses are in Costa Rica and not easily compellable in an Ontario proceeding. I am satisfied that Swiss Travel will face a juridical disadvantage if it has to proceed here.

[19] Accordingly, the motions court judge stayed the action against Swiss Travel Service on the basis of forum non conveniens as well as lack of jurisdiction.

Issues

[20] This appeal raises the following issues:

(1) Did the motions court judge err in finding that the Ontario Superior Court could not assume jurisdiction against the out-of-province defendant?

(2) Did the motions court judge err in finding that jurisdiction should be refused on the ground of forum non conveniens?

Analysis

[21] The plaintiffs' appeal to this court was first heard on October 10, 2001. At that time, we also heard argument in Sinclair v. Cracker Barrel Old Country Store, Inc. (C35699). Shortly thereafter, another appeal dealing with similar issues, Muscutt v. Courcelles (C35934), came before a different panel. That appeal, together with appeals in Lemmex v. Sunflight Holidays Inc. (C37455) and Gajraj v. DeBernardo (C36992), were rescheduled [page92] to be argued before the same panel that initially heard this appeal. The three appeals were heard on February 7 and 8, 2002 and the parties to this appeal and the appeal in Sinclair v. Cracker Barrel Old Country Store, Inc. were afforded the opportunity to present further argument.

[22] This judgment is being released at the same time as the judgment in Muscutt v. Courcelles and the judgments in the other three related appeals. In Muscutt, I discussed the legal principles relating to assumed jurisdiction on the basis of damages sustained within Ontario as a result of a tort committed elsewhere, as well as the doctrine of forum non conveniens. Instead of repeating the discussion of those issues here, I will proceed directly to apply the analysis in Muscutt to the issues raised on this appeal.

Issue 1: Did the motions court judge err in finding that the Ontario Superior Court could not assume jurisdiction against the out-of-province defendant?

[23] In Muscutt, I identified eight factors to be considered when determining whether the real and substantial connection test and the principles of order and fairness articulated in Morguard Investments Ltd. v. De Savoye, 1990 29 (SCC), [1990] 3 S.C.R. 1077, 76 D.L.R. (4th) 256 and Hunt v. T & N plc., 1993 43 (SCC), [1993] 4 S.C.R. 289, 109 D.L.R. (4th) 16 have been satisfied. In my view, the application of those factors to the facts of this case indicates that Ontario courts cannot assume jurisdiction against the out-of-province defendant Swiss Travel Service.

(1) The connection between the forum and the plaintiff's claim

[24] The plaintiff Michael Leufkens is a resident of Ontario. He has required extensive medical attention in Ontario and his statement of claim alleges, inter alia, pain and suffering in Ontario. These damages represent a significant connection with Ontario. However, as noted in Muscutt, this is only one factor to consider.

(2) The connection between the forum and the defendant

[25] Swiss Travel Service has had no direct contact with Ontario. Swiss Travel Service does not carry on business in Ontario nor does it have property or assets in Ontario. There is no evidence of any act or conduct by Swiss Travel Service within the territory of Ontario. The motions court judge found that any arrangement between Swiss Travel Service and Alba or Sunquest was contractual and based in Costa Rica. [page93]

[26] As a company offering services specifically designed for tourists, Swiss Travel Service could certainly foresee the risk that negligence on its part could lead to injury to foreign tourists who would return home and suffer consequential damages. Moreover, given its contractual relationship with Canadian tour companies, Swiss Travel Service could foresee that residents of Ontario could be the foreign tourists in question. However, for the reasons given in Muscutt, I agree with the finding of the motions court judge that the foreseeability of a claim being made in an injured tourist's jurisdiction does not bring the case within the principle articulated in Moran v. Pyle National (Canada) Ltd., 1973 192 (SCC), [1975] 1 S.C.R. 393. As the motions court judge explained"the proper question is not whether it was reasonably foreseeable to the Costa Rican defendants that they would be sued in Ontario" but rather "whether it was reasonably foreseeable that the services provided would cause an injury in Ontario". Accordingly, I conclude that there is no significant connection between the defendant and the forum.

(3) Unfairness to the defendant in assuming jurisdiction

[27] In my view, there would be an element of unfairness to Swiss Travel Service if the Ontario Superior Court were to assume jurisdiction. Swiss Travel Service has confined its activities to Costa Rica. While Swiss Travel Service offers a service aimed specifically at tourists, to require Swiss Travel Service to defend actions in the home jurisdiction of each of its customers would be unduly onerous. In my view, this case is analogous to Sinclair, in which I found that although a restaurant owner and operator knows that the restaurant caters to the travelling public, the restaurant cannot reasonably be expected to litigate in any jurisdiction that its customers call home.

[28] Although the existence of insurance coverage could mitigate the element of unfairness to the defendant in being required to litigate in a foreign court, we do not know the nature and extent of Swiss Travel Service's insurance coverage. Counsel for Swiss Travel Service did not deny the suggestion that Swiss Travel Service has insurance coverage at least for the purpose of challenging jurisdiction. However, there is nothing in the record that indicates whether Swiss Travel Service has insurance coverage that would extend to indemnify it against any judgment by an Ontario court in this case. In any event, as in Lemmex, this is not a case like Muscutt where both parties are engaged in the same activity involving reciprocal risks of harm and there are mandatory insurance arrangements to protect against those risks. [page94]

(4) Unfairness to the plaintiff in not assuming jurisdiction

[29] The plaintiff Michael Leufkens sustained serious injuries and would undoubtedly prefer to have access to the Ontario Superior Court for his claim against Swiss Travel Service. While refusing jurisdiction would result in inconvenience to the plaintiff, I cannot see how it would result in significant unfairness. In Lemmex, I concluded on similar facts that there was no significant unfairness to the plaintiffs. Here, the plaintiff travelled to Costa Rica as a tourist and availed himself of the services of a Costa Rican company offering an excursion within Costa Rica. In these circumstances, it seems to me that the plaintiff could have no reasonable expectation that he would be able to sue the Costa Rican company in the courts of Ontario if he was injured in Costa Rica.

(5) The involvement of other parties to the suit

[30] In the present case, the assessment of this factor is complex. The plaintiffs have sued a multiplicity of parties. The Ontario-based defendants are clearly subject to the jurisdiction of Ontario courts. Swiss Travel Service has appeared in Ontario to contest jurisdiction, but the other Costa Rican defendants have not. The assertion of jurisdiction against Rincon, the Red Cross of Costa Rica, and the Costa Rican medical professionals who treated Mr. Leufkens will almost certainly be contentious, whether the issue arises in Ontario if jurisdiction is challenged or in Costa Rica when a judgment is enforced.

[31] On these facts, the motions court judge concluded that the only effective way of avoiding a multiplicity of proceedings was to bring the action in Costa Rica where all defendants would be amenable to the jurisdiction. The motions court judge found that the plaintiffs' action was essentially a claim in negligence against Costa Rican defendants for harm suffered in Costa Rica. I find her analysis persuasive. In my view, the core of this action lies in Costa Rica and concerns Costa Rican defendants, and the involvement of other parties must be assessed from that perspective. This case is distinguishable from McNichol Estate v. Woldnik (2001), 2001 5679 (ON CA), 150 O.A.C. 68, 13 C.P.C. (5th) 61 (C.A.). There, the action centred on the alleged negligence of the Ontario-based defendant and the foreign defendant was a secondary albeit necessary party. Here, the action centres on the alleged negligence of the foreign defendants and the Ontario defendants are secondary.

[32] I therefore conclude that the involvement of other parties to this suit does not support the finding of a real and substantial connection and, indeed, weighs against such a finding. [page95]

(6) The court's willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis

[33] When assessing the real and substantial connection test and the principles of order and fairness, it is important to consider the interests of potential Ontario defendants as well as those of Ontario plaintiffs. In light of Morguard and Hunt, finding that the real and substantial connection test has been met would require Ontario courts to enforce foreign judgments rendered on the same jurisdictional basis against Ontario defendants who offer tourism services to visitors of this province. In my view, we should not adopt such a rule, since it would impose an unreasonable burden on providers of tourism services in Ontario. To take the example mentioned during oral argument, it would seem harsh to require an Algonquin Park canoe rental operator to litigate the claim of an injured Japanese tourist in Tokyo. Although negligent operators should certainly be held to account for their negligence, if they confine their activities to Ontario, they are entitled to expect that claims will be litigated in the courts of this province.

[34] In my view, this factor therefore weighs against finding a real and substantial connection in this case.

(7) Whether the case is interprovincial or international in nature

[35] For the reasons given in Muscutt, the fact that this is an international case rather than an interprovincial case renders the assumption of jurisdiction more difficult to justify. In addition, as discussed below, considerations of comity and respect for generally accepted principles of private international law do not favour the assumption of jurisdiction in the present case.

(8) Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere

[36] The assumption of jurisdiction in this case would not accord with the standards of jurisdiction, recognition and enforcement prevailing elsewhere. As explained in Muscutt, sustaining consequential damages within the jurisdiction as a result of a wrong committed elsewhere is not generally accepted as a valid basis for assumed jurisdiction. Counsel were unable to assist us with respect to the rules for jurisdiction, recognition and enforcement applicable in Costa Rica. In the absence of evidence to the contrary, there is no reason to expect that Costa Rican [page96] rules are more generous than those generally prevailing elsewhere. If an Ontario judgment against the Costa Rican defendants would not be enforceable in Costa Rica, there would be little or no advantage in allowing the Ontario plaintiffs to litigate their claims here.

[37] Accordingly, this factor weighs against finding a real and substantial connection on the facts of the present case.

Conclusion

[38] While the plaintiff has suffered significant damages in Ontario, the analysis of the other factors does not support the finding of a real and substantial connection to justify the assumption of jurisdiction against Swiss Travel Service. Nor would such a finding accord with the principles of order and fairness. I therefore conclude that the motions court judge did not err in staying the action on the ground that Ontario courts could not assume jurisdiction against Swiss Travel Service.

Issue 2: Did the motions court judge err in finding that jurisdiction should be refused on the ground of forum non conveniens?

[39] Since I have concluded that there is no basis for assuming jurisdiction against Swiss Travel Service, it is unnecessary to consider this issue.

Disposition

[40] For the foregoing reasons, I would dismiss the appeal. In order to fix costs of the appeal, the court will entertain brief written submissions dealing with all aspects of the award of costs. Counsel for the respondent shall deliver submissions and a bill of costs no later than seven days from the date of this judgment. Counsel for the appellants may deliver a response, if any, within seven days thereafter.

Appeal dismissed.

Notes

Note 1: Sinclair v. Cracker Barrel Old Country Store, Inc. (C35699); Muscutt v. Courcelles (C35934); Lemmex v. Sunflight Holidays Inc. (C37455); Gajraj v. DeBernardo (C36992).

Note 2: 17.02 A party to a proceeding may, without a court order, be served outside Ontario with an originating process or notice of a reference where the proceeding against the party consists of a claim or claims,

(h) Damage sustained in Ontario -- in respect of damage sustained in Ontario arising from a tort, breach of contract, breach of fiduciary duty or breach of confidence wherever committed;