Lemmex et al. v. Bernard et al.

Lemmex et al. v. Sunflight Holidays Inc. et al.

[Indexed as: Lemmex v. Bernard]

51 O.R. (3d) 164

[2000] O.J. No. 4350

Court File Nos. 99-CV-12366 and 98-CV-6294A

Ontario Superior Court of Justice

Divisional Court

Aitken J.

November 10, 2000

Civil procedure -- Service ex juris -- Motion to set aside service ex juris -- Distinguishing jurisdiction simpliciter from forum non conveniens test -- Motions judge dismissing motion to set aside service ex juris -- Motions judge not separating his analysis of whether Ontario court had jurisdiction simpliciter and whether Ontario was convenient forum -- Different tests applying in determining jurisdiction simpliciter and forum non conveniens -- Motions judge erroneously concluding that Ontario had real and substantial connection to subject matter of action based only on fact that plaintiffs resident in Ontario and continuing to suffer damages in Ontario -- Leave to appeal granted.

The plaintiff, with his wife and daughter, purchased a package holiday through an Ottawa travel agent which included a flight to the Dominican Republic and a cruise on an ocean liner. The Canadian packager of the holiday provided literature describing shore excursions which were available to passengers. The cruise ship operator, a Florida corporation, also provided such literature, making it clear that it was acting only as agent for the providers of the shore excursions. H Ltd., a company incorporated in Grenada with its head office in Grenada, was allegedly selected by the cruise ship operator to be the shore provider of excursions in Grenada. The plaintiff, his wife and daughter signed up for a shore excursion in Grenada. They were assigned to an older vehicle, driven by B, a resident of Grenada. The plaintiff alleged that he sustained a brain injury as a result of exposure to carbon monoxide on the trip. He and his wife and daughter sued H Ltd. and B directly in one action. In a second action by the plaintiff against the packager of the holiday and the cruise ship operator, B and H Ltd. were third parties. H Ltd. and B were served in Grenada with the statement of claim in the first action without leave in reliance on rule 17.02(h) (damage sustained in Ontario) and rule 17.02(o) (necessary or proper party) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. They were served in Grenada with the third party claim in the second action without leave in reliance on rule 17.02(o). B and H Ltd. brought a motion to set aside service ex juris and to stay the claims against them. The motion was dismissed. They brought a motion for leave to appeal to the Divisional Court.

Held, the motion should be granted.

The question of whether Ontario had jurisdiction to hear the actions (that is, the question of jurisdiction simpliciter) was different from the question of whether the Ontario court should decline to exercise its jurisdiction because another forum was more convenient (that is, the question of forum non conveniens). The tests to apply in determining jurisdiction simpliciter and forum non conveniens are different. In his decision, the motions judge did not separate his analysis of these two concepts. Instead, after starting with the premise that H Ltd. and B had been properly served without leave pursuant to rule 17.02(h), he went on to consider whether a real and substantial connection existed with Ontario at the same time as he considered whether Ontario was the most convenient forum for the hearing of the actions under rule 17.06(2)(c). In doing so, he implied that the test for jurisdiction simpliciter and the test for forum non conveniens are really one and the same. This approach was in conflict with numerous other judgments, both in Ontario and in other provinces. Moreover, it was desirable for leave to appeal to be granted due to the extensive case law in this area, which indicates that the issue of service ex juris and the correlative concepts of jurisdiction simpliciter and forum non conveniens are frequently being considered by the court. It is important that no confusion exist in regard to the relevant principles that should govern the courts' treatment of these matters.

The mere presence of a plaintiff in a forum and the fact that the plaintiff is allegedly continuing to experience pain and suffering in that forum or is continuing to receive medical treatment in that forum for an injury sustained elsewhere has been held to be insufficient to create a real and substantial connection to that forum justifying the assumption of jurisdiction in an action relating to the injury. It was unclear from the motions judge's decision what, if any, additional facts he considered in arriving at the conclusion that Ontario had a real and substantial connection with the subject matter of the first action, aside from the fact that the plaintiff was resident in Ontario and continued to suffer damage and receive treatment for his condition in Ontario. This aspect of his decision was in conflict with the other decisions that have held that these factors were insufficient to justify an Ontario court accepting jurisdiction. In regard to the second action, in which the holiday packager and the cruise ship operator were the defendants, the motions judge considered at least one additional factor, namely, the alleged existence of at least one contract entered into in Ontario, relevant to the issue of liability. Therefore, this aspect of his decision was not in conflict with the case law.

MOTION for leave to appeal a decision of McKinnon J. (2000), 49 O.R. (3d) 598 (S.C.J.) dismissing a motion to set aside service ex juris.

Cases referred to Amchem Products Inc. v. British Columbia (Workers' Compensation Board), [1993] 1 S.C.R. 897, 77 B.C.L.R. (2d) 62, 102 D.L.R. (4th) 96, 150 N.R. 321, [1993] 3 W.W.R. 441, 14 C.P.C. (3d) 1; Bonaventure Systems Inc. v. Royal Bank of Canada (1986), 57 O.R. (2d) 270, 18 O.A.C. 112, 32 D.L.R. (4th) 721, 16 C.P.C. (2d) 32 (Div. Ct.); Canadian International Marketing Distributing Ltd. v. Nitsuko (1990), 56 B.C.L.R. (2d) 130, 68 D.L.R. (4th) 318 (C.A.); Cook v. Parcel, Mauro, Hultin & Spaanstra, P.C. (1997), 31 B.C.L.R. (3d) 24, 143 D.L.R. (4th) 213, [1997] 5 W.W.R. 299 (C.A.) [Leave to appeal to S.C.C. refused (1997), 223 N.R. 79n]; de Vlas v. Bruce (1994), 18 O.R. (3d) 493, 1 L.W.R. 542, 25 C.P.C. (3d) 140, 3 M.V.R. (3d) 115 (Gen. Div.); Dunlop v. Connecticut College (1996), 50 C.P.C. (3d) 109 (Ont. Gen. Div.); Eastern Power Ltd. v. Azienda Comunale Energia & Ambiente (1999), 178 D.L.R. (4th) 409, 50 B.L.R. (2d) 33, 39 C.P.C. (4th) 160 (Ont. C.A.); Ell v. Con- Pro Industries Ltd., [1992] B.C.J. No. 513 (QL) (C.A.); Frymer v. Brettschneider (1994), 19 O.R. (3d) 60, 115 D.L.R. (4th) 744, 28 C.P.C. (3d) 84 (C.A.); Greg Lund Products Ltd. v. Husband Transport Ltd. (1981), 34 O.R. (2d) 777 (Co. Ct.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110, 30 O.A.C. 53, 28 C.P.C. (2d) 294 (Div. Ct.); Jean-Jacques v. Jarjura, [1996] O.J. No. 5174 (QL) (Gen. Div.); Jordan v. Schatz (2000), 2000 BCCA 409, 77 B.C.L.R. (3d) 134, [2000] 7 W.W.R. 442 (C.A.); Kay v. Posluns, [1993] O.J. No. 188 (QL) (Gen. Div.); Long v. City Club, [1995] O.J. No. 1411 (QL) (Gen. Div.); MacDonald v. Lasnier (1994), 21 O.R. (3d) 177 (Gen. Div.); Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393, 43 D.L.R. (3d) 239, [1974] 2 W.W.R. 586, 1 N.R. 122; Morguard Investments Ltd. v. De Savoye, [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; Negrych v. Campbell's Cabins (1987) Ltd. (1997), 119 Man. R. (2d) 216, [1997] 8 W.W.R. 270, 30 C.C.E.L. (2d) 68, 38 C.C.L.T. (2d) 207 (Q.B.); Oakley v. Barry (1998), 1998 NSCA 68, 166 N.S.R. (2d) 282, 158 D.L.R. (4th) 679, 498 A.P.R. 282, 25 C.P.C. (4th) 286 (C.A.) [Leave to appeal to S.C.C. refused (1998), 233 N.R. 397n, 175 N.S.R. (2d) 400n, 534 A.P.R. 400n]; Ontario New Home Warranty Program v. General Electric Co. (1998), 36 O.R. (3d) 787, 17 C.P.C. (4th) 183 (Gen. Div.); Poirier v. Williston (1981), 31 O.R. (2d) 320, 118 D.L.R. (3d) 576 (C.A.), affg (1980), 29 O.R. (2d) 303, 113 D.L.R. (3d) 252 (Div. Ct.); Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569, 13 C.P.C. (2d) 192 (H.C.J.); Ronald A. Chisholm Ltd. v. Agro & Diverses Souscriptions Internationales - ADSI - SA (1991), 4 O.R. (3d) 539, 2 C.P.C. (3d) 120 (Gen. Div.); Tolofson v. Jensen, [1994] 3 S.C.R. 1022, 100 B.C.L.R. (2d) 1, 120 D.L.R. (4th) 289, 175 N.R. 161, [1995] 1 W.W.R. 609, 22 C.C.L.T. (2d) 173, 32 C.P.C. (3d) 141, 7 M.V.R. (3d) 202; Vile v. Von Wendt (1979), 26 O.R. (2d) 513, 103 D.L.R. (3d) 356, 14 C.P.C. 121 (Div. Ct.) Statutes referred to Family Law Act, R.S.O. 1990, c. F.3, s. 61 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 17.02, 17.06(2)(c), 62.02(4)

Howard Yegendorf, for plaintiffs. Lise G. Favreau, for defendants, George Bernard and George F. Huggins & Co. (G'da) Ltd., and for third parties. Paul R. Henry, for defendants, Premier Cruises Ltd., Inc.

AITKEN J.: --

Nature of Proceedings

[1] This is a motion made by George Bernard ("Bernard") and George F. Huggins & Co. (G'da) Ltd. ("Huggins") for leave to appeal to the Divisional Court from the decision of McKinnon J. of July 12, 2000 [reported at 49 O.R. (3d) 598], in which he dismissed their motion to set aside service ex juris in two actions and to stay the claim against Bernard and Huggins in one action and the third party proceedings against them in the other. In the first action, Bernard and Huggins had been sued directly by Richard Lemmex ("Lemmex") and other members of his family. In the second action, in which Lemmex and other members of his family were plaintiffs and Sunflight Holidays Inc. ("Sunflight Holidays") and Premier Cruises Ltd., Inc. ("Premier Cruises") were defendants, Bernard and Huggins had been named as third parties.

Facts and Allegations

[2] In late 1997, Lemmex, together with his wife and daughter, purchased a package holiday through an Ottawa travel agent. Sunflight Holidays, a Canadian corporation, was the packager of the holiday. The packaged holidays included the air flight from Toronto to the Dominican Republic and a week-long cruise on an ocean liner named Island Breeze operated by Premier Cruises, a Florida corporation. It is alleged Lemmex, his wife and his daughter received pamphlets from their travel agent entitled "Classic Cruising" which had been prepared by Sunflight Holidays. The pamphlets advertised that passengers would be able to take shore excursions offered by independent contractors during various stops, including that at the island of Grenada. It is alleged that following payment of the packaged holidays, Lemmex received a folder containing additional literature and the tickets for the air flight to the Dominican Republic and the ocean cruise.

[3] It is alleged that on board the Island Breeze, Lemmex found in his cabin pamphlets entitled "Shore Side Discoveries" describing various shore side trips that were available at the various ports of call. One of the excursions advertised involved a trip to the "Mountain Rain Forest/Grand Etang Lake" on the island of Grenada. There was an order form. Lemmex, his wife and his daughter bought tickets from a representative of Premier Cruises for the shore excursion to the Mountain Rain Forest/Grand Etang Lake. In the literature, Premier Cruises stipulated that it was acting only as agent for the provider of the shore excursion.

[4] It is alleged that Premier Cruises had selected Huggins to be the shore side provider of excursions in Grenada and that representatives of Premier Cruises had checked Huggins' references and had found them satisfactory. On October 3, 1997, Huggins sent information by fax to Premier Cruises concluding with the words, "We guarantee your organisation the highest level of service . . ." On or about November 30, 1997, Premier Cruises sent a fax to Huggins informing it that it would be including in its brochures tours provided by Huggins, and it asked Huggins to confirm prices. Premier Cruises in turn provided the scheduled arrival of its vessels.

[5] On January 1, 1998, the Island Breeze moored in the harbour of St. George's, Grenada. Lemmex, his wife and his daughter were among a large party of passengers who went ashore to take an excursion. Lemmex makes the following allegations regarding the excursion on Grenada:

(a) Lemmex, his wife and his daughter were among the last of the passengers assigned to vehicles.

(b) Most vehicles were fairly modern.

(c) Lemmex, his wife and his daughter were assigned to an older, dilapidated-looking van, driven by Bernard.

(d) Lemmex could smell exhaust fumes.

(e) There was damage to the rear of the vehicle.

(f) By the time the vehicle stopped at a spice factory, Lemmex felt unwell; when the vehicle stopped at the top of a rain forest, Lemmex collapsed.

(g) No alternative transportation was available. The plaintiff rode on the same seat on the return trip and re-embarked on the ship.

(h) Lemmex was examined by the ship's doctor and given oxygen.

[6] Lemmex alleges that he has sustained an injury to his brain resulting from carbon monoxide poisoning and that he now lacks stamina, suffers irritability, is unable to concentrate and suffers from nightmares. He alleges that his ability to work as a lecturer for his company has been impaired and that he has suffered severe economic loss which is continuing.

[7] Lemmex has been treated by his family doctor, a neurologist and two psychologists in Ottawa, and has been examined by a defence physician in Toronto. In addition, a defence anesthesiologist who practises in Toronto has prepared an opinion that Lemmex's problems arise due to carbon monoxide poisoning. Lemmex's business records, medical records and experts are all located in Ottawa. Premier Cruises anticipates calling the accountants, employees and associates of Lemmex as witnesses. Premier Cruises has also retained an Ontario expert in the area of damages. They also anticipate calling the cruise director, who lives in Miami, Florida, the ship's doctor, who practises in Texas, and a witness who lives in Miami and who was responsible for making the arrangement between Premier Cruises and Huggins.

[8] The action against Sunflight Holidays and Premier Cruises is based on breach of contract, negligence and negligent misrepresentation, and in regard to the plaintiffs other than Lemmex, it is based on s. 61 of the Family Law Act, R.S.O. 1990, c. F.3. The third party claim against Huggins and Bernard is based on breach of contract and negligence. The action directly against Huggins and Bernard is based on negligence, and in regard to the plaintiffs other than Lemmex, it is based on s. 61 of the Family Law Act.

[9] The contracts that are alleged in one or other of the claims to have existed are:

1. a contract between Lemmex, his wife and his daughter with Sunflight Holidays, entered through the agency of their travel agent in Ottawa;

2. a contract between Lemmex, his wife and his daughter with Premier Cruises to provide the ocean cruise portion of the packaged holiday;

3. a contract between Sunflight Holidays and Premier Cruises whereby Premier Cruises agreed to provide the cruise portion of the packaged holiday offered by Sunflight Holidays;

4. a contract between Premier Cruises and Huggins whereby Premier Cruises agreed to act as agent for the sale of shore excursions offered by Huggins;

5. a contract between Lemmex, his wife and his daughter with Huggins while the Island Breeze was at sea whereby Huggins agreed to provide a shore excursion on Grenada to Lemmex. Premier Cruises acted as agent for Huggins in selling the shore excursion ticket to Lemmex.

[10] Huggins and Bernard were served in Grenada with the Statement of Claim in the first action, the plaintiffs relying on rule 17.02(h) (damage sustained in Ontario) and rule 17.02(o) (necessary or proper party) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as establishing their right to serve Huggins and Bernard outside of Ontario. Huggins and Bernard were served in Grenada with the Third Party Claim in the second action, Sunflight Holidays and Premier Cruises relying on rule 17.02(o) (necessary or proper party) as establishing their right to serve Huggins and Bernard outside of Ontario.

[11] Huggins is a company incorporated in Grenada with its head office in St. George's, Grenada. All of its officers and directors are residents of Grenada. Bernard is a resident of Grenada and is employed by The Taxi Owners and Drivers Association, which supplies the transportation services in Grenada to Huggins. Huggins and Bernard did not attorn to the Ontario jurisdiction. Before McKinnon J., both Huggins and Bernard took the position that service out of Ontario was not authorized under rule 17.02, and furthermore that Ontario was not a convenient forum for the hearing of the proceedings.

[12] Premier Cruises and Sunflight Holidays attorned to Ontario's jurisdiction and argued that Ontario was the most convenient forum for the hearing of the proceedings.

Decision of McKinnon J.

[13] The grounds for the motion before McKinnon J. were that the Ontario courts had no jurisdiction to hear either action or, alternatively, Ontario was not a convenient forum to litigate the issues in either action.

[14] After reviewing the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and case law dealing with service out of Ontario, "real and substantial connection" and the forum of convenience, McKinnon J. concluded [at p. 607 O.R.]:

I have already found that it must reasonably have been in the contemplation of the third parties that the provisions of their services through contract with those accessing cruise lines and who suffer injury may well choose to sue from their home jurisdiction. On the facts before me, Ontario is clearly the most convenient forum to litigate the issues. The vast majority of witnesses are from Ontario. Almost all expert witnesses reside in Ontario. The witnesses from Miami and Texas have attorned to the jurisdiction of Ontario. All medical records and accounting records are in Ontario.

The third parties submit that they have some nine witnesses who will be essential to the trial including a representative of the defendant's corporation, the driver of the vehicle, the president of the union who is knowledgeable about the selection and maintenance of vehicles, bus drivers who were present at the time of the alleged injury, someone knowledgeable about inspection and maintenance of the vehicle in question, a mechanic who most recently serviced the bus and an expert on Grenadian law.

I suspect there is some overlap in the witnesses whom the third parties alleged are necessary to the trial of the action. Some might easily testify by videoconference. In any event, the balance of convenience overwhelmingly points to Ontario as the appropriate forum. As well, there is competing law with respect to the various contracts involved and in that regard, the defendants, Sunflight Holidays Inc. and Premier Cruises Ltd. wish to have the action tried in Ontario. There is no doubt that an Ontario judge can apply the Grenadian law with respect to the alleged negligence of the independent supplier of the bus. Clearly, there is a juridical advantage to the plaintiff in having the dispute tried in Ontario. In my opinion, it would be inappropriate to require the plaintiff, if he is indeed suffering as he alleges, to attend in Grenada for trial.

In the result, the motion to set aside the service of the claim and third party proceedings is dismissed with costs.

Grounds to Seek Leave to Appeal

[15] Leave to appeal from the decision of McKinnon J. is being sought on the following grounds:

(a) Mr. Justice McKinnon erred in finding that the same factors are to be considered when deciding whether Ontario courts have jurisdiction over the subject matter of these actions and whether Ontario is a convenient forum for this action.

(b) There are decisions which conflict with Mr. Justice McKinnon's decision on the factors to be considered when deciding whether there is a real or substantial connection between the subject matter of an action and the jurisdiction in which the action is brought and, in particular, there are decisions which specifically hold that the mere residence of the plaintiff in the jurisdiction in which an action is brought and the fact that the plaintiff continues to suffer damages in that jurisdiction are not sufficient to confer jurisdiction.

(c) Mr. Justice McKinnon made findings of fact which were unsubstantiated by the evidence before him.

(d) Mr. Justice McKinnon erred in finding that Ontario is the convenient forum for this action.

Leave to Appeal to the Divisional Court

[16] Pursuant to rule 62.02(4) of the Rules of Civil Procedure:

Grounds on which leave may be granted

62.02(4) Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[17] The two requirements set out in each of rule 62.02(4)(a) and rule 62.02(4)(b) are conjunctive (Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110, 28 C.P.C. (2d) 294 (Div. Ct.)).

Rule 62.02(4)(a)

[18] Counsel for Huggins and Bernard suggest that this ground for leave to appeal is met for two reasons: (1) McKinnon J. did not differentiate between the test for determining whether the court of a forum has jurisdiction and the test for determining whether the court should decline jurisdiction on the ground that another forum is the more convenient forum, and there are cases both in Ontario and elsewhere in Canada which state that such a differentiation is critical; and (2) McKinnon J. decided Ontario had jurisdiction based only on the fact that the plaintiffs are resident in Ontario and continue to suffer damages in Ontario, and there are cases both in Ontario and elsewhere in Canada which state that these factors are insufficient to establish jurisdiction in the forum.

[19] All counsel agree that the question of whether Ontario has jurisdiction to hear these actions is a different question from whether this court should decline to exercise its jurisdiction because another forum is the more convenient forum. Using other terminology, the concept of jurisdiction simpliciter is different from that of forum non conveniens. The second question of whether Ontario should decline to exercise jurisdiction because another forum is the more convenient forum only needs to be considered once an Ontario court has determined that it has jurisdiction to hear the action. If an Ontario court decides it does not have jurisdiction, then it need not proceed to question whether another forum would be more convenient (Canadian International Marketing Distributing Ltd. v. Nitsuko (1990), 56 B.C.L.R. (2d) 130, 68 D.L.R. (4th) 318 (C.A.)).

[20] It has been held that the tests to apply in determining jurisdiction simpliciter and forum non conveniens are different (Ell v. Con-Pro Industries Ltd., [1992] B.C.J. No. 513 (QL) (C.A.)); though it has also been held certain factors are properly considered under both headings (Oakley v. Barry (1998), 1998 NSCA 68, 166 N.S.R. (2d) 282, 158 D.L.R. (4th) 679, [1998] N.S.J. No. 122 (QL) (C.A.)). Certainly the language used by La Forest J. in Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, 76 D.L.R. (4th) 256 regarding "real and substantial connection" is very similar to the language used by Arbour J.A. in Frymer v. Brettschneider (1994), 19 O.R. (3d) 60 at p. 79, 115 D.L.R. (4th) 744 (C.A.), where she states that the choice of forum is designed to ensure that the action is tried in the jurisdiction that has the closest connection with the action and the parties.

[21] In his decision, McKinnon J. did not separate his analysis of these two concepts, as has been done in many other decisions. (See for example Tolofson v. Jensen, [1994] 3 S.C.R. 1022 at p. 1048, 120 D.L.R. (4th) 289; Jordan v. Schatz (2000), 2000 BCCA 409, 77 B.C.L.R. (3d) 134, [2000] 7 W.W.R. 442, [2000] B.C.J. No. 1303 (QL) (C.A.); Cook v. Parcel, Mauro, Hultin & Spaanstra, P.C. (1997), 31 B.C.L.R. (3d) 24, 143 D.L.R. (4th) 213, [1997] B.C.J. No. 428 (QL) (C.A.); Nitsuko, supra; Ell, supra; Jean- Jacques v. Jarjura, [1996] O.J. No. 5174 (QL) (Gen. Div.); Long v. City Club, [1995] O.J. No. 1411 (QL) (Gen. Div.); MacDonald v. Lasnier (1994), 21 O.R. (3d) 177 (Gen. Div.); Negrych v. Campbell's Cabins (1987) Ltd. (1997), 119 Man. R. (2d) 216, [1997] 8 W.W.R. 270, [1997] M.J. No. 284 (QL) (Q.B.).) Instead, after starting with the premise that Huggins and Bernard had been properly served without leave pursuant to rule 17.02(h) (a claim "in respect of damage sustained in Ontario arising from tort, breach of contract, breach of fiduciary duty or breach of confidence, wherever committed"), McKinnon J. went on to consider whether a real and substantial connection existed with Ontario at the same time as he considered whether Ontario was the most convenient forum for the hearing of the actions under rule 17.06(2)(c). In doing so, he implied that the test for jurisdiction simpliciter and the test for forum non conveniens are really one and the same. In doing so, he looked to the decision of Winkler J. in Ontario New Home Warranty Program v. General Electric Co. (1998), 36 O.R. (3d) 787, 17 C.P.C. (4th) 183 (Gen. Div.), another case where the concepts of jurisdiction simpliciter and forum non conveniens were blended.

[22] I conclude that the approach of McKinnon J. to these two issues, as expressed in his decision in this case, is in conflict with numerous other judgments both in Ontario and in other provinces. I also conclude that it is desirable for leave to appeal to be granted due to the extensive case law in this area, which indicates that the issue of service ex juris and the correlative concepts of jurisdiction simpliciter and forum non conveniens are frequently being considered in this court. It is important that no confusion exist in regard to the relevant principles that should govern our treatment of these matters, especially in this age of ". . . jet travel, instantaneous communication, multinational business relationships and the world-wide web . . ." (to borrow some language from the decision of McKinnon J. [at p. 603]).

[23] The second ground under s. 62.02(4)(a) relied on by Huggins and Bernard is that McKinnon J. decided Ontario had a real and substantial connection to the subject matter of the action based only on the fact that the plaintiffs are resident in Ontario and continue to suffer damages in Ontario, and there are cases both in Ontario and elsewhere in Canada which state that these factors are insufficient to establish jurisdiction in the forum. The cases of MacDonald v. Lasnier, supra; Long v. City Club, supra; Jean-Jacques v. Jarjura, supra, and Negrych v. Campbell's Cabins (1987) Ltd., supra, to which I was referred by counsel for Huggins and Bernard, taken at their highest, stand for the proposition that the mere presence of a plaintiff in a forum and the fact that the plaintiff is allegedly continuing to suffer pain and suffering in that forum or is continuing to receive medical treatment in that forum for an injury sustained elsewhere is insufficient to create a real and substantial connection to that forum justifying the assumption of jurisdiction in an action relating to the injury.

[24] In regard to the first action in which Huggins and Bernard are defendants, McKinnon J. found as a fact that the passengers on the Premier Cruise ships were predominantly from North America, and Huggins and Bernard would reasonably have contemplated that they might have to defend their actions in the home jurisdiction of a tourist if their actions were negligent and caused damage to the tourist. He quoted from the judgment of Dickson J. (as he then was) in Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393, 43 D.L.R. (3d) 239, where he stated at p. 409 of the S.C.R. reference:

. . . where a foreign defendant carelessly manufactures a product in a foreign jurisdiction which enters into the normal channels of trade and he knows or ought to know both that as a result of his carelessness a consumer may well be injured and it is reasonably foreseeable that the product would be used or consumed where the plaintiff used or consumed it, then the forum in which the plaintiff suffered damage is entitled to exercise judicial jurisdiction over that foreign defendant . . . By tendering his products in the market place directly or through normal channels, a manufacturer ought to assume the burden of defending those products wherever they cause harm as long as the forum into which the manufacturer is taken is one that he reasonably ought to have had in his contemplation when he so tendered his goods. This is particularly true of dangerously defective goods placed in the interprovincial flow of commerce.

[25] In applying the Morguard and Moran decisions, McKinnon J. stated at p. 604:

The present case involves the distribution of services, not goods. Nonetheless, there is no good reason to restrict the ratio of Moran or Morguard to a discussion of goods, when the modern world deals ever more frequently in the trade of services. It must be assumed that an independent contractor in Grenada who contracts with a cruise line whose passengers predominantly come from North America must reasonably contemplate that serious injury may result to such passengers in the event of accident through the use of buses in Grenada. One would assume that the independent contractor would insure against such obvious risks. Putting the case at its highest, a North American tourist touring Grenada as a result of a Grenadian company's relationship with a cruise line who is rendered quadriplegic through the independent contractor's negligence should not be expected to return to Grenada in order to litigate the injury. I read Morguard as being authority for the proposition that what is reasonably in the contemplation of the foreign supplier, be it of goods or services, must be assessed in determining whether there is a real and substantial connection to the forum chosen by the plaintiff.

(Emphasis in original)

[26] One problem arising from this section of Justice McKinnon's decision is that there was no evidence before him that Premier Cruises' passengers predominantly came from North America. Nor was there evidence that it was in the contemplation of either Huggins or Bernard that any litigation arising from any negligence on their part dealing with tourists who disembarked from a Premier Cruises ship would be heard in the place of residence of the tourist. The passage quoted from the judgment of Dickson J. in Moran spoke of the situation where a defendant who manufactures goods in one jurisdiction knowing they will be used in another jurisdiction, and either directly or through normal distributive channels, markets them in that other jurisdiction, cannot complain about having to go to that other jurisdiction to defend an action based on the careless manufacturing of those goods, "as long as the forum into which the manufacturer is taken is one that he reasonably ought to have had in his contemplation when he so tendered his goods". Even if the word "goods" is replaced by the word "services", it is arguable that the evidence here is not sufficient to bring this case under the Moran principle. Neither Bernard nor Huggins was marketing services that could be used in Ontario; they were marketing services that could only be used in Grenada. There is no evidence that either had any idea from where the plaintiffs came prior to their undertaking to perform services on their behalf.

[27] Setting aside this factor of what was or should have been in the contemplation of Huggins and Bernard, it is unclear from the decision of McKinnon J. what, if any, additional factors he considered in arriving at the conclusion that Ontario had a real and substantial connection with the subject matter of the first action, aside from the fact that Lemmex was resident in Ontario and continued to suffer damage and receive treatment for his condition in Ontario. As such, this aspect of his decision is in conflict with the other decisions quoted above, where these factors were considered insufficient to justify an Ontario court accepting jurisdiction.

[28] In regard to the second action, in which Sunflight Holidays and Premier Cruises are the defendants, McKinnon J. considered at least one additional factor to residence and ongoing damage in the jurisdiction, namely, the alleged existence of at least one contract (and possibly more) entered in Ontario, relevant to the issue of liability. Therefore I do not take this aspect of the decision of McKinnon J. as being in conflict with those that say that the mere presence of a plaintiff in the forum, coupled with ongoing pain and suffering, is insufficient to base a claim of jurisdiction in that forum.

Rule 62.02(4)(b)

[29] McKinnon dismissed the motion of Huggins and Bernard to set aside service of them in Grenada under rule 17.06(2)(c) on the ground that Ontario is not a convenient forum and, secondly, to stay the actions as against Huggins and Bernard on the grounds that Ontario does not have jurisdiction to hear these actions. Counsel for Huggins and Bernard argue that there is good reason to doubt the correctness of the order of McKinnon J. in regard to both issues. In order to conclude there is good reason to doubt the correctness of the order, I do not need to determine that the order is wrong or probably wrong but simply that the correctness of the order is open to very serious debate (Kay v. Posluns, [1993] O.J. No. 188 at para. 18 (QL) (Gen. Div.)).

[30] The starting point in the analysis required of the questions before McKinnon J. is rule 17.02, which allows a party to a proceeding, without a court order, to be served outside Ontario where the proceeding against the party consists of a claim:

(f) in respect of a contract where,

(i) the contract was made in Ontario, . . . ;

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

(o) against a person outside Ontario who is a necessary or proper party to a proceeding properly brought against another person served in Ontario;

(q) properly the subject matter of a counterclaim, crossclaim or third or subsequent party claim under these rules;

[31] The first action against Huggins and Bernard was properly served on them in Grenada because the plaintiffs allegedly sustained damage in Ontario arising out of the alleged tort of negligence that occurred in Grenada. It has been held that the phrase "damage sustained in Ontario" includes injury, but it also includes all of the different heads of damage and various expenses that may be suffered as a result of tortious conduct (Vile v. Von Wendt (1979), 26 O.R. (2d) 513 at p. 518, 103 D.L.R. (3d) 356 (Div. Ct.); Poirier v. Williston (1980), 29 O.R. (2d) 303, 113 D.L.R. (3d) 252 (Div. Ct.); Dunlop v. Connecticut College (1996), 50 C.P.C. (3d) 109, [1996] O.J. No. 2344 (QL) (Gen. Div.)). Therefore, I do not question that what is alleged in these actions is that the plaintiffs sustained "damage" in Ontario.

[32] The third party claim against Huggins and Bernard in the second action was properly served on them in Grenada for the same reason, but also because the claim against them was a third party claim and they were necessary and proper parties to the proceedings brought against Sunflight Holidays and Premier Cruises. There could be a needless multiplicity of proceedings if all of the parties who are potentially liable in some respect in regard to the injury allegedly suffered by Lemmex were not involved in one action. Therefore I do not doubt the correctness of this part of the order of McKinnon J. to the effect that service of the claim and third party claim on Huggins and Bernard was authorized under rule 17.02.

[33] The next stage of the analysis is whether, despite the appropriateness of service out of Ontario under rule 17.02, Ontario lacks jurisdiction to hear either of the actions because it does not have "a real and substantial connection with the subject matter of the litigation" (Moran v. Pyle National (Canada) Ltd., supra; Morguard Investments Ltd. v. De Savoye, supra; Tolofson v. Jensen, [1994] 3 S.C.R. 1022 at pp. 1048-49, 120 D.L.R. (4th) 289). If such a finding were made, then service out of the jurisdiction would have to be set aside.

[34] As stated above, McKinnon J. did not differentiate his analysis of jurisdiction simpliciter from forum non conveniens, and in this respect there is reason to doubt the correctness of his decision.

[35] Assuming that there was no evidence to support the finding of fact by McKinnon J. that most of the tourists on the Premier Cruises were from North America and it was reasonably within the contemplation of Huggins and Bernard that they might have to defend a negligence action in the home jurisdiction of a tourist from a Premier Cruise ship taking one of their tours, then there is reason to doubt the correctness of the decision of McKinnon J. that Ontario had a real and substantial connection to the subject matter of the action against Huggins and Bernard. Possibly to a lesser extent, there would also be reason to doubt the correctness of the decision of McKinnon J. in regard to the second action against Sunflight Holidays and Premier Cruises.

[36] International travel has become financially feasible for many residents of Ontario. Some reasons for travel include to learn about other countries and cultures, to experience new adventures, and to find more favourable climates. These goals take Ontario residents to the far corners of the world, often to countries economically less developed than Canada, many of whose citizens are financially very significantly disadvantaged in comparison with Canadians. Many individuals in those countries, who may provide goods or services to Ontario tourists during their stay, have never travelled outside of the boundaries of their region or country, for social, cultural or financial reasons.

[37] Lemmex, his wife and his daughter chose to leave Ontario and travel to Grenada for a vacation. They chose to take a tour on Grenada offered by a Grenadian company. They were aware that injuries could be sustained in Grenada, just like they could be anywhere else one goes. Was it reasonable for them to expect that if one of them was injured through the negligence of a Grenadian, an action would be heard in Ontario, the law of Grenada would have to be proven in the Ontario court, and Grenadian witnesses might have to travel to Ontario to give their evidence?

[38] Do Ontario courts foster order and fairness by assuming jurisdiction in the first action where Huggins and Bernard are defendants? Is it fair to expect Bernard, a local taxi driver in Grenada, to come to Ontario to defend this action? What importance should be attached to the initial arrangement made between Sunflight Holidays and the Lemmex family that is the basis for the second action? Does the existence of those arrangements, initiated in Ontario, give Ontario a sufficient connection to any alleged negligence that occurred on a tour operated by an independent contractor on Grenada when the tour was paid for separately by the Lemmex family while it was in the Caribbean? Does Ontario gain its connection to the subject matter of this action because the Lemmex family got to Grenada through a package tour arranged in Ontario rather than through their own independent travel arrangements? Would two Ontario tourists on a Huggins tour in Grenada, one who flew to Grenada independently and one who arrived in Grenada on a cruise arranged through an Ontario company, have different rights to access Ontario courts in the case of alleged negligence on the part of Huggins? Put another way, is the desire not to have a multiplicity of proceedings relevant in regard to the question of whether Ontario has a real and substantial connection to the subject matter of the actions? Finally, should the fact that the motions before McKinnon J. were heard when there were two distinct actions instead of a consolidated action affect the outcome of the motions?

[39] The flip side of the question before McKinnon J. is: "Would Ontario courts recognize the judgment of a foreign court that assumed jurisdiction in the reverse circumstances?" For example, if someone from India came to Canada on a group tour organized by an Indian travel company during which time he or she, on the advice of the Indian company, independently made arrangements to take a tour of the Thousand Islands with one of the local Ontario tour boat companies, and if during the tour the Indian tourist was injured through the negligence of the Ontario tour boat company, would Ontario courts recognize the judgment of an Indian court relating to that alleged negligence? If Ontario courts accept jurisdiction in the within actions, they must be prepared to recognize the judgment of foreign courts given in reverse scenarios.

[40] The second prong of the test under rule 62.02(4)(b) is that the questions raised in this appeal involve matters of such importance that leave should be granted. For the matter to be of importance, it has to transcend the immediate interest of the parties and involve a question of general or public importance which requires resolution by higher judicial authorities (Greslik v. Ontario Legal Aid Plan, supra; Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569, 13 C.P.C. (2d) 192 (H.C.J.)). The questions regarding jurisdiction are of interest to everyone who travels abroad, either under their own auspices, or through a package tour. They are questions that are not simply of importance to the parties to this litigation.

[41] The final stage of the analysis is whether Ontario should decline jurisdiction based on the doctrine of forum non conveniens, in other words, based on the conclusion that there is a more convenient or appropriate forum elsewhere to hear the litigation. Counsel for Huggins and Bernard argue that Grenada is the more appropriate forum for both actions.

[42] The onus of proof is on the plaintiffs to establish that Ontario is the more appropriate forum (Frymer v. Brettschneider (1994), 19 O.R. (3d) 60, 115 D.L.R. (4th) 744 (C.A.)). The standard of proof is the civil standard; however, the existence of a more appropriate forum must be clearly established to displace the forum chosen by the plaintiffs (Amchem Products Inc. v. British Columbia (Workers' Compensation Board), [1993] 1 S.C.R. 897 at p. 921, 102 D.L.R. (4th) 96; Frymer, supra, at p. 79; Eastern Power Ltd. v. Azienda Comunale Energia & Ambiente (1999), 178 D.L.R. (4th) 409, 39 C.P.C. (4th) 160 at p. 165 (Ont. C.A.)). A plaintiff's choice of forum, where, as here, more than one is available, should be overridden only if justice can be done between the parties at "substantially" less inconvenience or expense in a different forum (Bonaventure Systems Inc. v. Royal Bank of Canada (1986), 57 O.R. (2d) 270, 32 D.L.R. (4th) 721 (Div. Ct.); de Vlas v. Bruce (1994), 18 O.R. (3d) 493, 25 C.P.C. (3d) 140 (Gen. Div.)).

[43] The determination of whether Ontario is the most appropriate forum for the hearing of the actions is a matter within the discretion of the judge hearing the motion. All factors to the issue of whether the forum chosen by the plaintiffs has the closest connection with the action and the parties should be considered (Frymer, supra). In this case, McKinnon J. considered many of the factors that had been identified in earlier case law as being relevant to the issue of forum non conveniens, such as: the location of the majority of the parties and key evidence; the location of key witnesses; the avoidance of multiplicity of proceedings; the applicable law and its weight compared with the factual questions to be decided; whether certain witnesses or parties will have to travel a considerable distance in any event; and juridical advantage to the plaintiffs. (See Ronald A. Chisholm Ltd. v. Agro & Diverses Souscriptions Internationales - ADSI - SA (1991), 4 O.R. (3d) 539, 2 C.P.C. (3d) 120 (Gen. Div.); de Vlas v. Bruce, supra; Dunlop v. Connecticut College, supra; Greg Lund Products Ltd v. Husband Transport Ltd (1981), 34 O.R. (2d) 777 (Co. Ct.).)

[44] There is no reason to doubt the correctness of the decision of McKinnon J. in regard to which forum is the most convenient forum; but this is assuming that the Ontario courts have jurisdiction simpliciter.

Conclusion

[45] Leave to appeal to the Divisional Court is granted. The costs of this motion are left to the Divisional Court.

Motion granted.