Lemmex et al. v. Sunflight Holidays Inc. et al.; George F. Huggins & Co. (Grenada) Ltd. et al., Third Parties Lemmex et al. v. Bernard et al. [Indexed as: Lemmex v. Bernard]
55 O.R. (3d) 657
[2001] O.J. No. 3023
Docket Nos. 98-CV-6294A, 00-DV-529, 99-CV-12366
and 00-DV-528
Ontario Superior Court of Justice
Divisional Court
O'Leary, Southey and Gillese JJ.
July 24, 2001*
- Note: This judgment was recently brought to the attention
of the editors.
Conflict of laws -- Jurisdiction -- Ontario plaintiff purchased package holiday organized by Canadian company which included sea cruise operated by Florida corporation -- Cruise operator had entered into arrangement for provision of shore tours by independent Grenadian company -- Plaintiff allegedly suffered carbon monoxide poisoning in vehicle operated by Grenadian resident while on shore trip organized by Grenadian company -- Plaintiff sued package holiday organizer, sea cruise operator, Grenadian company and Grenadian driver in Ontario -- Grenadian defendants also subject to third party proceedings by other defendants -- Motions judge dismissed motion by Grenadian defendants for stay of proceedings -- Appeal dismissed -- Motions judge did not confuse issue of jurisdiction simpliciter with issue of forum conveniens -- Real and substantial connection existed between Ontario and subject matter of action -- Motions judge entitled to conclude that Ontario had jurisdiction simplicite r and that Ontario was most convenient forum.
The plaintiff and his wife and daughter, who were all residents of Ontario, purchased a package holiday from S Inc., an Ontario company. The package included a cruise operated by P Ltd., a Florida corporation. While the ship was at sea, the plaintiff and his wife and daughter bought tickets for a shore excursion on Grenada. The excursion was operated by H Ltd., a Grenadian company which had an arrangement with P Ltd. for the provision of shore tours. When they went ashore, the plaintiff and his family were assigned to an old, dilapidated-looking vehicle operated by B, a taxi driver resident in Grenada. The plaintiff became ill from the vehicle's exhaust fumes. When he returned to Ontario, he began to experience the serious effects of exposure to the fumes and received treatment for carbon monoxide poisoning.
The plaintiffs brought an action against S Inc. and P Ltd. in Ontario for damages for pain and suffering and loss of past and future income. His wife and daughter claimed damages under the Family Law Act, R.S.O. 1990, c. F.3. P Ltd. brought a third party claim against H Ltd. and B in which it sought contribution and indemnity. The plaintiffs commenced a second action against H Ltd. and B in which they alleged that those parties were negligent in failing to ensure that the vehicle used in Grenada was in safe working condition. The Grenadian defendants were served with the statement of claim in Grenada pursuant to rule 17.02(h) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. They brought a motion for a stay of proceedings on the basis that Ontario had no jurisdiction as the events giving rise to the claim occurred on Grenada and there was no real and substantial connection between the subject matter of the claim and Ontario. The motion was dismissed. The Grenadian defendants appealed, submitting that the motions judge considered facts and issues related to the selection of the most convenient forum without first considering the question of jurisdiction simpliciter.
Held, the appeal should be dismissed.
Per Gillese J. (Southey J. concurring): It is preferable to follow a two-step analysis, dealing first with the matter of jurisdiction simpliciter and, thereafter, with the question of forum conveniens. On a careful reading of his reasons, the motions judge did address both concepts. The decision as to jurisdiction simpliciter requires the exercise of judgment by the court on matters of fact and mixed questions of fact and law. Another judge might have arrived at a different conclusion than did the motions judge in this case, without either judge having made a reversible error. It was quite likely that the courts of both Ontario and Grenada had jurisdiction simpliciter, and the plaintiffs had the right to choose between the two forums. The question of jurisdiction simpliciter was dependent upon there being a real and substantial connection between Ontario and the subject matter of the action. The undefined nature of the real and substantial connection test permits a flexible approach to the factors to be considered, one that is to be guided by the requirements of order and fairness. Such an approach will often lead to an overlap in the criteria to be considered in the two steps. In this case, a majority of the parties were residents of Ontario or had attorned to the jurisdiction, and most of the damages had been sustained in Ontario. Virtually all of the evidence going to the proof of such damages was located in Ontario. If the actions were stayed in Ontario as against the third parties, the defendants would have to commence an action in Grenada in order to pursue their claims for indemnity, thereby duplicating the proceedings already commenced in Ontario. Many of the witnesses in the Ontario trial would have to be brought to Grenada for a second trial. With the duplication of proceedings, the possibility of inconsistent verdicts arose. The reasonable expectation of the parties was relevant to a determination of jurisdiction simpliciter. It mu st reasonably have been in the contemplation of the Grenadian defendants that the provision of their services through contracts with those accessing cruise lines who suffered injury might result in their being sued in the passengers' home jurisdiction. The trial judge did not err in concluding that Ontario had jurisdiction simpliciter. The same was true for his decision that Ontario was the most convenient forum.
Per O'Leary J. (dissenting): Whether Ontario has jurisdiction to entertain an action is not a matter of discretion. Either it has jurisdiction or it does not. A judge cannot be more or less correct on this point. There was no real and substantial connection between Ontario and the Grenadian defendants or the subject matter of the action. The plaintiff did not allege that he had a contract with either defendant. The tort on which his claim was based was complete when he suffered injury in Grenada because of the defendants' alleged negligence. The fact that the plaintiff had suffered from his injuries since returning to Ontario did not create any connection between Ontario and the place where the wrong caused his injuries. The international community could not be expected to accept that Ontario had jurisdiction to entertain the plaintiff's claim. No member of that community could be expected to abdicate its guardianship of the rights of its own citizens or others under protection of its laws, and let those rights be determined in another state just because those citizens, or others protected by its laws, provided services to a visitor from that other state who claims to have been injured because the services were provided negligently. Ontario was without jurisdiction in this matter and the action and third party claim should be stayed.
APPEAL from an order of McKinnon J. (2000), 2000 29030 (ON SC), 49 O.R. (3d) 598 (S.C.J.) dismissing a motion for a stay of proceedings.
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; Oakley v. Barry, 1998 NSCA 68, [1998] N.S.J. No. 122 (C.A.), consd Other cases referred to Equity Waste Management of Canada Corp. v. Halton Hills (Town) (1997), 1997 2742 (ON CA), 35 O.R. (3d) 321, 40 M.P.L.R. (2d) 107 (C.A.), revg (1994), 22 M.P.L.R. (2d) 167 (Ont. Gen. Div.), supp. reasons (1995), 1995 7182 (ON SC), 22 O.R. (3d) 796, 27 M.P.L.R. (2d) 123 (Gen. Div.); Hilton v. Guyot, 159 U.S. 113 (1895); 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; Jordan v. Schatz (2000), 2000 BCCA 409, 77 B.C.L.R. (3d) 134, 189 D.L.R. (4th) 62, [2000] 7 W.W.R. 442 (C.A.); Leufkens v. Alba Tours International Inc. (2001), 2001 28038 (ON SC), 53 O.R. (3d) 112 (S.C.J.); Moran v. Pyle National (Can.) Ltd. (1974), 1973 192 (SCC), [1975] 1 S.C.R. 393, 43 D.L.R. (3d) 239, 1 N.R. 122, [1974] 2 W.W.R. 586; Spencer v. R., 1985 4 (SCC), [1985] 2 S.C.R. 278, 11 O.A.C. 207, 21 D.L.R. (4th) 756, 62 N.R. 81, 21 C.C.C. (3d) 385, 48 C.R. (3d) 265, 85 DTC 5446; Tolofson v. Jensen, 1994 44 (SCC), [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 Statutes referred to Family Law Act, R.S.O. 1990, c. F.3 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 17.02(h) Authorities referred to Clerk, J.F. (1848-1931), Clerk & Lindsell on Torts, 6th ed. (London: Sweet & Maxwell, 2000) Scoles, E.F., and P. Hay, Conflict of Laws, 3rd ed., Hornbrook Series (St. Paul, Minn.: West Group, 2000)
Lise G. Favreau, for appellants. Howard Yegendorf, for respondents (plaintiffs). Paul Henry, for respondents (defendants and third parties).
1GILLESE J.(SOUTHEY J. concurring): -- On July 12, 2000, McKinnon J. dismissed a motion to stay proceedings brought by the appellants George Bernard ("Mr. Bernard") and George F. Huggins & Co. (Grenada) Ltd. or George F. Huggins & Co. (G'DA) Ltd. ("Huggins Ltd."). Mr. Bernard and Huggins Ltd. appeal from that order and ask for a stay of the third party claim against them in court file no. 98-CV-6294A and for a stay of the action in court file no. 99-CV-12366.
Background
2In 1997, Richard Lemmex, his wife June Lemmex and daughter Joanne Lemmex purchased a Sunflight Holidays Inc. package holiday through a travel agent in Ottawa, where they live. The Sunflight package included air flight from Toronto to the Dominican Republic and a week-long cruise on an ocean liner named "Island Breeze". The defendant, Premier Cruises Ltd., Inc. operates the cruise liner.
3The Lemmexes received Sunflight pamphlets entitled "Classic Cruising" that made it clear that they would be able to take shore excursions on the Island of Grenada.
4After paying for their holiday packages, but while still in Ottawa, the Lemmexes received folders containing additional literature and their tickets for the air flight and cruise. The folder was entitled "Everything You Need to Know" and contained the following statement:
The shore excursions are operated independently and costs vary. You will find information describing these tours in your cabin and a briefing will be held by the cruise staff before the ship arrives at each destination.
5When the Lemmexes boarded the "Island Breeze" on December 28, 1997, they found pamphlets in their cabins entitled "Shoreside Discoveries" that described various trips available at ports of call, and an order form. While the ship was at sea, they bought tickets from a Premier representative for a shore excursion to the Mountain Rain Forest/Grand Etang Lake on Grenada.
6The Premier pamphlet stated that Premier acted only as an agent for the providers of the shoreside excursion. Huggins Ltd. is a corporation incorporated under the laws of Grenada, which provides passenger transportation services on that island. Huggins Ltd. had provided Premier with the descriptions of the shore excursions contained in the pamphlets, placed in the cabins of the "Island Breeze", fixed the prices and arranged to have its vans and drivers meet the ship to take a prearranged number of international visitors on various excursions.
7Huggins Ltd. had sent a fax to Premier at its Miami, Florida offices on October 3, 1997, with information about their shoreside excursions. The document concluded with a "guarantee" of the highest level of service. On November 30, 1997, Premier sent a fax from its Miami office to Huggins Ltd. in Grenada confirming acceptance of a number of the tours offered by Huggins Ltd., including the tour that the Lemmexes took.
8The documents that passed between Huggins Ltd. in Grenada and Premier in Miami show an ongoing relationship and refer to the terms negotiated in the previous seasons. None of the documents place any limitations on what court is to have jurisdiction over disputes or the law to be applied in resolution of disputes.
9On January 1, 1998"Island Breeze" moored in Grenada. The Lemmexes, along with a large number of international passengers, went ashore. The Lemmexes were among the last in line and they were assigned to an old, dilapidated looking vehicle, variously described as a van and a taxi. The vehicle was operated by Mr. Bernard, who is a taxi driver resident in Grenada.
10While in the vehicle, Richard Lemmex could smell exhaust fumes. When it stopped at the top of a mountain, he exited and collapsed. Because there was no alternative way to return to the cruise ship, the Lemmexes rode back in the vehicle with Richard Lemmex occupying the same place as he had originally.
11That evening, while on board the ship, Richard Lemmex was briefly examined by the ship's doctor who reported a rapid pulse, high blood pressure and low oxygen level. He was given oxygen.
12After returning to Ottawa, Richard Lemmex received medical attention for carbon monoxide poisoning. It was not until he had returned to Ottawa that he began to experience the serious effects of exposure to the exhaust fumes such as fatigue, impatience, irritability, difficulty concentrating and recurrent nightmares. Apart from the one examination on board the ship, he received all medical treatment in Ontario. He has seen numerous doctors and specialists, all of whom reside in Ontario.
13Richard Lemmex alleges that he has suffered neurological and psychological impairment as a result of the carbon monoxide poisoning. He claims damages for pain and suffering and loss of past and future income. The income losses have been sustained in Ontario in relation to the family business, Lemmex and Associates Limited, as Richard Lemmex's ability to work as a lecturer in the training and development business of the company has allegedly been impaired.
14Pat Day, a forensic accountant obtained by the plaintiffs on the issue of damages, resides in Ottawa. Premier has retained John Segal of Price Waterhouse in Toronto in that regard.
15June Lemmex is also a resident of Ontario and an eyewitness to the incident on January 1, 1998. She claims damages pursuant to the Family Law Act, R.S.O. 1990, c. F.3.
16Joanne Lemmex will be a witness at the trial. She was present during the incident. She, too, is a resident of Ontario and claims damages pursuant to the Family Law Act.
17One of the defendants, Premier Cruises, is resident in Florida but has attorned to the jurisdiction of Ontario. The other defendant, Sunflight Holidays, is resident in Ontario. The appellants are the taxi driver and taxi company. They reside in Grenada.
18The plaintiffs issued their original claim against Sunflight and Premier. Premier commenced a third party claim against Mr. Bernard and Huggins Ltd. in which it seeks contribution and indemnity. Premier claims on the basis of breach of contract and in negligence.
19The Lemmexes commenced a second action against only the appellants, Mr. Bernard and Huggins Ltd., in which they allege that the appellants were negligent in failing to ensure that the van used in Grenada was in safe working condition.
20The plaintiffs have requested a consolidation of the two actions. No objection to that request has been made.
21The appellants were served with the Statement of Claim in Grenada pursuant to rule 17.02(h) of the rules of Civil Procedure, R.R.O. 1990, Reg. 194.
22Most of the witnesses at the trial of the action will be residents of Ontario. They include Richard, June and Joanne Lemmex, Richard Lemmex's treating physicians, the specialist physicians who examined Richard Lemmex pursuant to defence medical examinations, medical experts on the likelihood that Richard Lemmex's problems are due to carbon monoxide poisoning, the Ottawa travel agent, the forensic accountants retained by the plaintiffs and Premier Cruises, the accountants and solicitors who prepared financial statements and tax returns for Lemmex and Associates and who handled the corporate restructuring of that firm, and employees, neighbours, business associates and friends who can attest to the impact of the carbon monoxide poisoning on Richard Lemmex. Premier anticipates calling the following former employees who are not resident in Ontario: the ship's doctor, the cruise director and those employees who checked the references of Huggins Ltd. and negotiated the contracts with Huggins Ltd.
23The plaintiffs will experience financial hardship if they are forced to litigate the action in Grenada.
Did The Motions Judge Err?
24The appeal focused on two alleged errors by the motions judge.
25The essence of the first is that the courts of Ontario have no jurisdiction because the events giving rise to the claims occurred on the Island of Grenada and there is no real and substantial connection between the subject matter of the claims and Ontario. The appellants argue that the motions judge considered facts and issues related to the selection of the most convenient forum without first considering whether there was a real and substantial connection between the subject matter of the claim and Ontario.
26Second, the appellants argue that the motions judge erred when concluding that passengers carried by the appellants were predominantly from North America. They submit that this finding of fact is unsupported on the evidence.
27As to the first alleged error, I accept that it is preferable to follow a two-step analysis, dealing first with the matter of jurisdiction simpliciter and, thereafter, with whether Ontario is the most convenient forum. However, on a careful reading of the motion judge's reasons, I find that he did address both concepts. The motions judge quoted from the decision of La Forest J. in Hunt v. T & N plc, 1993 43 (SCC), [1993] 4 S.C.R. 289, 109 D.L.R. (4th) 16 in which the "real and substantial connection" test for jurisdiction was reiterated and in which the difficulties in applying that test were mentioned. Referring to Morguard [Morguard Investments Ltd. v. De Savoye, 1990 29 (SCC), [1990] 3 S.C.R. 1077, 76 D.L.R. (4th) 256] and Moran [Moran v. Pyle National (Can.) Ltd. (1974), 1973 192 (SCC), [1975] 1 S.C.R. 393, 43 D.L.R. (3d) 239], La Forest J. [at pp. 325-26 S.C.R.] said in the passage quoted:
The exact limits of what constitutes a reasonable assumption of jurisdiction were not defined, and I add that no test can perhaps ever be rigidly applied; no court has ever been able to anticipate all of these. However, though some of these may well require reconsideration in light of Morguard, the connection relied on under the traditional rules are a good place to start. . . .
Whatever approach is used, the assumption of and the discretion not to exercise jurisdiction must ultimately be guided by the requirements of order and fairness, not a mechanical counting of contacts or connections.
(Emphasis added)
28There is not always only one correct answer to the question of jurisdiction simpliciter to be obtained from the application of the appropriate legal principles to the facts of a case. The statement of Cumming J.A., delivering the judgment of the British Columbia Court of Appeal in Jordan v. Schatz (2000), 2000 BCCA 409, 77 B.C.L.R. (3d) 134 at p. 141, 189 D.L.R. (4th) 62 (C.A.) that "[j]urisdiction simpliciter is not a matter of discretion" appears somewhat inconsistent with the reference to "discretion" in the words of La Forest J. quoted above. Be that as it may, I am satisfied that the decision as to jurisdiction simpliciter requires, in a case like the present, the exercise of judgment by the court on matters of fact and mixed questions of law and fact. Another judge might have arrived at a different conclusion than did the motions judge in this case, without that hypothetical judge or the motions judge having made a reversible error. This results from the fact that it is q uite likely the courts of both Ontario and Grenada have jurisdiction simpliciter in the case at bar. The plaintiffs had the right to choose between those two forums.
29The standard of review to be applied on this appeal is that stated by the Court of Appeal in Equity Waste Management of Canada Corp. v. Halton Hills (Town) (1997), 1997 2742 (ON CA), 35 O.R. (3d) 321 at p. 336, 40 M.P.L.R. (2d) 107 (C.A.):
Therefore, although the entire record before a trial judge or a motion judge consists of documentary or written evidence, as it does in this case, the judge's factual findings are entitled to deference on appeal. What standard of deference applies in such a case? It is not easy to articulate a standard less deferential than "manifest error" but falling short of "correctness". I suggest that it may simply be a matter of weight or emphasis, or that, plausibly, a uniform standard of appellate review should be applied to a trial judge's findings of fact, whether the evidence is entirely oral, entirely documentary or, more typically, a combination of the two.
What is important for this appeal is the kind of error that justifies intervention by an appellate court. An error of law obviously justifies intervention. An appellate court may interfere with a finding of fact if the trial judge or motion judge disregarded, misapprehended, or failed to appreciate relevant evidence, made a finding not reasonably supported by the evidence, or drew an unreasonable inference from the evidence.
30The question of jurisdiction simpliciter, in this case, is dependent upon there being a real and substantial connection between Ontario and the subject matter of the action. The undefined nature of the real and substantial connection test permits a flexible approach to the factors to be considered, one that is to be guided by the requirement of order and fairness. Such an approach, in my view, will often lead to an overlap in the criteria to be considered in the two steps. The motions judge recognized the almost inevitable overlap when he concluded "the assessment of what constitutes a 'real and substantial connection' necessarily involves the assessment of what constitutes the convenient forum." This statement does not demonstrate a failure to appreciate the distinction between the two steps. Rather, it recognizes that many of the same considerations relevant to the determination of jurisdiction simpliciter are to be taken into account when determining the most convenient forum.
31The recent decision of the Nova Scotia Court of Appeal in Oakley v. Barry, 1998 NSCA 68, [1998] N.S.J. No. 122 (C.A.) explicitly recognizes that flexibility in the real and substantial connection test permits a consideration of some of the same factors as in the determination of the most convenient forum.
32In Oakley, physicians in New Brunswick misdiagnosed the plaintiff with contagious Hepatitis B. She then moved to Nova Scotia, where she suffered psychological damage due to the diagnosis and where the discovery of the misdiagnosis was made. The Nova Scotia Court of Appeal stated that the Morguard formula is "open ended" in that the decision did not define the factors that inform the real and substantial test. The court wrote that while issues such as juridical advantage are usually considered on a forum non-conveniens issue, it is appropriate and relevant to consider them in the matter of jurisdiction simpliciter.
33The Court of Appeal upheld the motions judge's decision that there was a real and substantial connection between the plaintiff and Nova Scotia.
34The real and substantial connection test requires the court to take a broad perspective of the subject matter of the action, one that is not limited to a consideration of the event of the accident alone. The test is not designed to determine the connection between Ontario and the tort but between Ontario and the subject matter of the action.
35Taking this broader perspective, it is apparent that the action is founded in contract, as well as in tort; the chain of events involves some five contracts entered into in various jurisdictions, beginning with one or more contracts that appear to have been concluded in Ontario; the third parties, as the alleged direct wrongdoers, are properly parties and necessary to just determination of the action; and majority of the parties are residents of Ontario or have attorned to its jurisdiction; and, most of the damages have been sustained in Ontario, although the accident and injury occurred outside Ontario. In that regard, all of the economic loss and the vast majority of the pain and suffering and Family Law Act damages were suffered in Ontario. Virtually all of the evidence going to the proof of such damages is located in Ontario.
36If the actions are stayed in Ontario as against the third parties, the defendants will have to commence an action in Grenada in order to pursue their claims for indemnity, thereby duplicating the proceedings already commenced in Ontario. Many of the witnesses in the Ontario trial would have to be brought to Grenada for a second trial, several of whom are senior medical practitioners. With the duplication of proceedings, the possibility of inconsistent verdicts arises.
37The reasonable expectations of the parties are relevant, as well, to a determination of jurisdiction simpliciter. The motions judge found that it must reasonably have been in the contemplation of the appellants that the provision of their services through contracts with those accessing cruise lines and who suffer injury might result in the appellants being sued in the passengers' home jurisdiction. I agree. When Huggins Ltd. contracted with Premier to sell tickets on the high seas and to provide descriptions of Huggins Ltd. excursions in pamphlets provided to international travellers before they reached Grenada, it must have been reasonably in the contemplation of Huggins Ltd. that breaches of the resulting contracts might lead to litigation in the jurisdiction in which the traveller normally resides.
38While the appellants argue that a number of these factors are only properly considered in a determination of the most convenient forum, in my view, the broad perspective required to determine jurisdiction simpliciter in this case warrants their consideration at both steps.
39In my opinion, the reasons for judgment of the motions judge do not disclose any reversible error on the issue of jurisdiction simpliciter. The same is true for his decision respecting convenient forum. I note that it would be strange, indeed, if Ontario were the most convenient forum but it did not have jurisdiction simpliciter to hear the matter.
40The alleged factual error made by the motions judge is based on his statement that the Premier "passengers predominantly come from North America". The motions judge had before him a copy of the contract between Premier and Huggins Ltd., correspondence between the two and a copy of the description of the tours offered to the cruise passengers. The point of significance is that it is unlikely that Premier passengers were from Grenada and that Huggins Ltd. was aware that, when dealing with Premier passengers, it was dealing with foreign tourists, not Grenadians. In this context, it cannot be said that the motions judge made a finding of fact that was palpably wrong.
41For these reasons, I would dismiss the appeal. The parties may make written submissions on costs within 60 days of the release of the reasons for judgment of the court.
1O'LEARY J.: (dissenting) -- The only issue that need be dealt with is whether Ontario has jurisdiction to entertain an action brought in Ontario by an Ontario resident who alleges he was injured in Grenada by the negligence of the two defendants who reside in and provide transportation services to tourists solely in Grenada. In my view, there is no real and substantial connection between Ontario and the defendants or the subject matter of the action and so Ontario is without jurisdiction and the action should be stayed. I would therefore reverse the decision of the motions court judge who held that Ontario does have jurisdiction.
The Facts
2While the action (being 99-CV-12366) was brought against the two Grenadian defendants by Richard Lemmex, his wife and children, since the children have discontinued the action and the wife's claim is derivative, I will deal only with Richard Lemmex and the action brought by him.
3Richard Lemmex ("Lemmex") resides in Carp, Ontario. The statement of claim in this action reads in part:
The Defendant, George Bernard ("Bernard"), is a taxi driver on the island of Grenada. At all material times Bernard was the driver of a blue Nissan minivan and transported the Plaintiffs Richard, June and Joanne Lemmex on a shore excursion tour in Grenada on January 1, 1998.
The Defendant, George F. Huggins & Co. (G'da) Ltd. ("Huggins & Co."), is a corporation incorporated pursuant to the laws of Grenada. At all material times Huggins & Co. had a contract with Premier Cruises Ltd., Inc. ("Premier") and/or Sunflight Holidays Inc. ("Sunflight"), to provide taxi services for a shore excursion tour in Grenada on January 1, 1998. Premier and Sunflight are Defendants in the action commenced by the Plaintiffs in the Ontario Superior Court of Justice as Court File No. 98-CV-6294.
In the month of December 1997, the Plaintiffs Richard, June and Joanne Lemmex booked a Caribbean cruise with Sunflight and Premier. The cruise was scheduled to take place from December 28th, 1997 until January 4th, 1998.
The cruise arranged by Premier and Sunflight included shore excursions on various Caribbean islands. In this regard Premier and Sunflight contracted with a local Grenadian tour operator for a shore excursion on the island of Grenada.
While on the cruise, the Plaintiffs, Richard, June and Joanne Lemmex arranged and contracted with Premier and Sunflight to go on the shore excursion in Grenada which was essentially a bus tour of the island. On January 1, 1998, these Plaintiffs along with the other passengers landed on Grenada for the bus tour. An employee of Premier directed them to a large parking lot where taxis were awaiting to transport the passengers to their various tours. A representative of Huggins & Co. directed Richard, June and Joanne Lemmex to a blue Nissan minivan, the bus driven by Bernard. This bus, provided to the Plaintiffs by Huggins & Co. for the shore excursion, was old, unreliable, unsafe and defective.
During the bus tour the engine of the bus emitted a noxious gas through the rear seat and windows where Richard was sitting, as a result of the aforesaid defective condition of the bus. This noxious gas caused Richard to become dizzy, light headed and pale, and shortly thereafter during one of the scheduled rest stops it caused him to lose consciousness.
[sic] The Plaintiffs state that the Defendants Bernard and Huggins & Co., which is in law vicariously responsible for the negligence of Bernard, were negligent in their provision of taxi services during the shore excursion tour of January 1, 1998. . . .
Thereafter is pleaded specific acts of negligence against both Bernard and Huggins & Co., all relating to the use by them of an unsafe bus:
- [sic] As a result of the noxious gas incident Richard has suffered grave, serious and permanent injuries including but not limited to brain damage, neurological damage, cognitive impairment, depression, psychological impairment, dizziness, nightmares and anxiety.
4It is apparent then that Lemmex does not allege he had a contract with either defendant. His claim is based on the allegation that he was injured by their negligence. It is also apparent, indeed it was conceded by his counsel on the appeal that the tort on which his claim is based was complete when he suffered injury in Grenada because of their negligence. The tort took place solely in Grenada. No part or aspect of the wrongful act or the infliction of injury took place anywhere else, though of course Lemmex alleges his pain and suffering has continued and increased since he left Grenada and returned to Ontario.
5As appears from para. 8 of the statement of claim quoted above, Lemmex, his wife and children, before bringing action against the two Grenadian defendants, had brought an action against Sunflight Holidays Inc. and Premier Cruises Ltd., Inc.
6The statement of claim in that action (being 98-CV-6294) reads in part:
The Defendant Sunflight Holidays Inc. ("Sunflight") is a corporation incorporated pursuant to the laws of Ontario.
The Defendant Premier Cruises Ltd., Inc. ("Premier") is a corporation incorporated pursuant to the laws of the State of Florida. Its head office is in Miami, Florida, United States of America.
In the month of December 1997, the Plaintiffs Richard, June and Joanne Lemmex booked a Caribbean cruise with the Defendants. The cruise was scheduled to take place from December 28th, 1997 until January 4th, 1998.
The cruise arranged by the Defendants included shore excursions on various Caribbean islands. In this regard the Defendants contracted with a local Grenadian tour operator for a shore excursion on the island of Grenada.
While on the cruise, the Plaintiffs, Richard, June and Joanne Lemmex arranged and contracted with the Defendants to go on the shore excursion in Grenada which was essentially a bus tour of the island. On December 31st, 1997, these Plaintiffs landed on the island of Grenada for the bus tour. The bus provided to them for the shore excursion was old, unreliable, unsafe and defective.
So, even if it could be said there was a contractual relationship between Lemmex and the Grenadian defendants (and Lemmex makes no such allegation), since Lemmex did not decide to take the particular Grenadian side trip until he was part way through the Caribbean cruise which started in the Dominican Republic, Ontario had no connection with the creation of any contract between Lemmex and the Grenadian defendants.
7In the earlier action, the defendant Premier Cruises Ltd., Inc. issued and served a third party claim against Geo F. Huggins & Co. (Grenada) Ltd. and George Bernard, which claim reads in part:
The Defendant, Premier Cruises Ltd., Inc., (hereinafter referred to as "Premier Cruises") entered into an agreement with the Third Party, Geo F. Huggins & Co. (Grenada) Ltd. (hereinafter referred to as "Huggins"), whereby Huggins as an independent contractor would supply mini vans, buses or taxis to the passengers of Premier Cruises when its vessels visited the Island of Grenada. It was arranged that Premier Cruises would sell tickets or vouchers to its passengers that could be delivered to the drivers of Huggins in exchange for different tours on the Island of Grenada. . . .
On or about January 1, 1998, the Plaintiffs, Richard, June and Joanne Lemmex, while on a shore excursion used tickets or vouchers that they had purchased from Premier Cruises in order to take a bus tour on a vehicle owned and operated by Huggins, the particulars of which are known to Huggins and to its driver, the Third Party, George Bernard.
Should the Plaintiffs succeed against this Defendant it will be as a result of the Third Parties' breach of duty and breach of contract in its having provided and [sic] unsafe vehicle for the purpose of transporting the Plaintiffs, and, in regards to the Third Party, Huggins, its failure to properly inspect the vehicles it provided and its failure to ensure that the vehicle was safe and fit to transport passengers on excursions. Accordingly, this Defendant is entitled to the indemnify [sic] claimed.
Whatever might be said about the connection between Ontario and the Grenadian defendants in the action brought by Lemmex against them, there is not even a hint of a connection between Ontario and the third party claim made in the earlier action. Premier Cruises Ltd., Inc. is not resident in Ontario. The third parties are not resident in Ontario. None of the dealings between Premier Cruises Ltd., Inc. and the third parties took place in Ontario and the alleged breach of contract took place in Grenada. Only should it be decided Ontario has jurisdiction to entertain the action by Lemmex against the Grenadian defendants would it be arguable that the third party action ought, as a matter of convenience, be tried in Ontario. I will say no more about the third party claim.
8In the affidavit of Anthony Picciurro filed in this matter on behalf of Premier Cruises Ltd., Inc. we find the following:
- After paying the cost of the package holidays, the Lemmexs received a folder containing additional literature and their tickets for the air flight to the Dominican Republic and for the ocean cruise. A folder entitled "Everything You Need To Know" was supplied to the Lemmexs in Ottawa and contained the following information:
The shore excursions are operated independently and costs vary. You will find information describing these tours in your cabin and a briefing will be held by the cruise staff before the ship arrives at each destination.
- On board the Island Breeze, the Lemmexs found in their cabins, pamphlets entitled "Shoreside Discoveries" describing various shoreside trips that were available at ports of call. One of the excursions involved a trip to the "Mountain Rain Forest/Grand Etang Lake" on Grenada. There was also an order form enclosed. While the ship was at sea, the Lemmexs bought tickets from a representative of Premier Cruises for the shore excursion to the Mountain Rain Forest/Grand Etang Lake. . . .
The Law
9The Supreme Court of Canada has given considerable guidance as to when a Canadian court can assume jurisdiction over a lawsuit when the defendant resides outside the forum the plaintiff has chosen. In Morguard Investments Ltd. v. De Savoye, supra, a case dealing with the recognition to be given by the courts of one province to a judgment of the courts in another province, there is dicta by La Forest J. that is helpful in determining the issue of jurisdiction in this action. He noted that modern states cannot live in splendid isolation, that common interests impel sovereign states to mutual intercourse, that the rules of private international law are grounded in the need in modern times to facilitate the flow of wealth, skill and people across state lines in a fair and orderly manner, that if each community exhausted every possibility of insisting on its parochial interests, injustice would result and the normal patterns of life would be disrupted, that what must underlie a modern system of private international law are principles of order and fairness; principles that ensure security of transactions with justice.
10For La Forest J., the requirements of comity, the informing principle of private international law which has been stated to be the deference and respect due by other states to the actions of a state legitimately taken within its territory, [are] well described in words found in Hilton v. Guyot, 159 U.S. 113 (1895), at pp. 163-64 and cited by Estey J. in Spencer v. R., 1985 4 (SCC), [1985] 2 S.C.R. 278 at p. 283, 21 D.L.R. (4th) 756, as follows:
"Comity" in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws . . .
At p. 1097 S.C.R., La Forest J. accepts "that the content of comity must be adjusted in the light of a changing world order", stating at p. 1098 S.C.R.:
The world has changed since the [comity] rules were developed in 19th century England. Modern means of travel and communications have made many of these 19th century concerns appear parochial. The business community operates in a world economy and we correctly speak of a world community even in the face of decentralized political and legal power. Accommodating the flow of wealth, skills and people across state lines has now become imperative. Under these circumstances, our approach to the recognition and enforcement of foreign judgments would appear ripe for reappraisal. Certainly, other countries, notably the United States and members of the European Economic Community, have adopted more generous rules for the recognition and enforcement of foreign judgments to the general advantage of litigants.
At pp. 1102-07 S.C.R., La Forest J. repeats his theme that principles of order and fairness must underlie a modern system of private international law stating as follows:
I referred earlier to the principles of order and fairness that should obtain in this area of the law. Both order and justice militate in favour of the security of transactions. It seems anarchic and unfair that a person should be able to avoid legal obligations arising in one province simply by moving to another province. Why should a plaintiff be compelled to begin an action in the province where the defendant now resides, whatever the inconvenience and costs this may bring, and whatever degree of connection the relevant transaction may have with another province? And why should the availability of local enforcement be the decisive element in the plaintiff's choice of forum?
These concerns, however, must be weighed against fairness to the defendant. . . . It may meet the demands of order and fairness to recognize a judgment given in a jurisdiction that had the greatest or at least significant contacts with the subject-matter of the action. But it hardly accords with principles of order and fairness to permit a person to sue another in any jurisdiction, without regard to the contacts that jurisdiction may have to the defendant or the subject- matter of the suit; . . . Thus, fairness to the defendant requires that the judgment be issued by a court acting through fair process and with properly restrained jurisdiction.
This poses no difficulty . . . where the defendant was within the jurisdiction at the time of the action or when he submitted to its judgment whether by agreement or attornment. In the first case, the court had jurisdiction over the person, and in the second case by virtue of the agreement. No injustice results.
The difficulty, of course, arises where, as here, the defendant was outside the jurisdiction of that court and he was served ex juris. . . .
A case in this Court, Moran v. Pyle National (Canada) Ltd., 1973 192 (SCC), [1975] 1 S.C.R. 393, though a tort action, is instructive as to the manner in which a court may properly exercise jurisdiction in actions in contracts as well. In that case, an electrician was fatally injured in Saskatchewan while removing a spent light bulb manufactured in Ontario by a company that neither carried on business nor held any property in Saskatchewan. The company sold all its products to distributors and none to consumers. It had no salesmen or agents in Saskatchewan. The electrician's wife and children brought action against the company under The Fatal Accidents Act of Saskatchewan claiming the company had been negligent in the manufacture of the light bulb and in failing to provide an adequate safety system to prevent unsafe bulbs from leaving the plant and being sold or used. . . .
Dickson J. gave the reasons of the Court. . . .
. . . [H]e rejected any rigid or mechanical theory for determining the situs of the tort. Rather, he adopted "a more flexible, qualitative and quantitative test", posing the question, as had some English cases there cited, in terms of whether it was "inherently reasonable" for the action to be brought in a particular jurisdiction, or whether, to adopt another expression, there was a "real and substantial connection" between the jurisdiction and the wrongdoing. Dickson J. thus summarized his view, at pp. 408-9:
. . . By tendering his products in the market place directly or through normal distributive 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. [Emphasis added.]
At pp. 1108-09 S.C.R., La Forest J. concludes:
It seems to me that the approach of permitting suit where there is a real and substantial connection with the action provides a reasonable balance between the rights of the parties. . . .
. . . Professor Hogg [states]
. . . the rule which [Dickson J.] announced could serve satisfactorily as a statement of the constitutional limits of provincial-court jurisdiction over defendants outside the province, requiring as it does a substantial connection between the defendant and the forum province of a kind which makes it reasonable to infer that the defendant has voluntarily submitted himself to the risk of litigation in the courts of the forum province.
I must confess to finding this approach attractive . . . .
Discussion and Arguments
11In this case, I see no real and substantial connection between the Grenadian defendants and Ontario that would make it reasonable to infer that the defendants have voluntarily submitted themselves to the risk of litigation in the courts of Ontario.
12The defendants offered to tourists land transportation services that could be performed only in Grenada. Thus, it cannot be said of the defendants that any alleged misconduct by them in performing their services, or any damages they allegedly caused ought to be determined, not in Grenada, but where the tourist happened to reside.
13I do not see how it can be fair or just because a tourist pays $21 for a bus-tour in Grenada, that he can require the Grenadian tour operator and the bus driver to come to Ontario to defend themselves against a claim for damages based on an alleged tort committed by them in Grenada.
14The Grenadian bus-tour was not part of the cruise holiday package arranged by Sunflight Holidays Inc. and paid for by Lemmex before the cruise began. The bus-tour was optional, purchased while on the high seas and of course paid for as an extra to the cost of the holiday package. Just because Ontario has jurisdiction to entertain the claim against Sunflight Holidays Inc. and Premier Cruises Ltd., Inc. has attorned to the jurisdiction, is no excuse for saying Sunflight Holidays Inc. and Premier Cruises Ltd., Inc. and the contracts between them and Lemmex so connect the Grenadian defendants to Ontario as to give Ontario jurisdiction over the Grenadians as well. The contracts between Lemmex and Sunflight Holidays Inc. and Premier Cruises Ltd., Inc. only explain how Richard Lemmex came to be on the Grenadian tour-bus. They do not connect the alleged wrong to Ontario.
15There is always a chain of events that leads anyone to take a sight-seeing bus-tour in Grenada. That chain of events, because it starts in Ontario where the tourist resides, does not mean there is any connection, let alone a real and substantial connection, between Ontario and the Grenadian defendants, or their alleged wrong causing damages (the subject matter of this action) so as to make it fair and just that the Grenadians must come to Ontario to defend themselves.
16An example of what constitutes a real and substantial connection between a Canadian province and a defendant residing outside that province, and also an example of when it is fair and just for the province where the plaintiff resides to entertain jurisdiction, is found in Moran v. Pyle, already referred to, where Dickson J. stated at pp. 408-09 S.C.R.:
Cheshire, 8th ed., 1970, p. 281, has suggested . . . that it would not be inappropriate to regard a tort as having occurred in any country substantially affected by the defendant's activities or its consequences and the law of which is likely to have been in the reasonable contemplation of the parties. Applying this test to a case of careless manufacture, the following rule can be formulated: 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. This rule recognizes the important interest a state has in injuries suffered by persons within its territory. It recognizes that the purpose of negligence as a tort is to protect against carelessly inflicted injury and thus that the predominating element is damage suffered. By tendering his products in the market place directly or through normal distributive 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.
17I emphasize that in the passage just quoted, Dickson J. is saying that in the circumstances outlined by him, the forum where the product causes harm is entitled to exercise jurisdiction over the foreign defendant. In using the words "the forum in which the plaintiff suffered damage""injuries suffered by persons within its territories" and "the predominating element is damage suffered", Dickson J., in each case, is talking about the place where the wrong caused the damage.
18The argument put forward on behalf of Richard Lemmex that Dickson J. was referring to pain and suffering endured in, though not caused in the forum, is, in my view, without merit.
19Dickson J. was not suggesting, and the approval of his words by La Forest J. in Morguard does not suggest, that where the wrong of the defendant causes injury to the plaintiff outside the forum, that the endurance of pain, suffering and expense associated therewith within the forum, gives jurisdiction to the court of the forum to entertain the plaintiff's action.
20In my view, the fact [that] Lemmex has suffered from his injuries since returning to Ontario does not create any connection between Ontario and the place where the wrong caused his injuries. Lemmex will suffer from the injuries caused in Grenada wherever he goes, and so, there will always be a connection of place between wherever he is and that suffering. It will be said he is suffering in that place. But that in no way connects the place of suffering with the place where the suffering was caused.
21It is not enough to give jurisdiction to Ontario, that an imaginative and fertile mind can draw a tenuous and tortuous connection between Ontario and the Grenadian defendants or the place where their alleged wrong caused the harm, or that same mind can think up a reason why it should be said that those defendants should have thought when the plaintiff boarded their tour bus in Grenada, that in justice and fairness, he would be able to sue them in Ontario if they harmed him through their negligence.
22The musings of that mind must withstand the test of acceptability to the international community. As was said by La Forest J. in Tolofson v. Jensen, 1994 44 (SCC), [1994] 3 S.C.R. 1022 at pp. 1046-49, 120 D.L.R. (4th) 289:
The truth is that a system of law built on what a particular court considers to be the expectations of the parties or what it thinks is fair, without engaging in further probing about what it means by this, does not bear the hallmarks of a rational system of law. . . .
It is to the underlying reality of the international legal order, then, that we must turn if we are to structure a rational and workable system of private international law. . . .
As Morguard and Hunt also indicate, the courts in the various states will, in certain circumstances, exercise jurisdiction over matters that may have originated in other states. . . .
To prevent overreaching, however, courts have developed rules governing and restricting the exercise of jurisdiction over extraterritorial and transnational transactions. In Canada, a court may exercise jurisdiction only if it has a "real and substantial connection" (a term not yet fully defined) with the subject matter of the litigation; see Moran v. Pyle National (Canada) Ltd., 1973 192 (SCC), [1975] 1 S.C.R. 393; Morguard, supra; and Hunt, supra. This test has the effect of preventing a court from unduly entering into matters in which the jurisdiction in which it is located has little interest. . . .
23La Forest J. had expressed similar sentiments in Hunt v. T & N plc, supra, at pp. 325-26 S.C.R.:
Morguard was careful to indicate . . . that a court must have reasonable grounds for assuming jurisdiction. . . . [I]deas of "comity" are . . . grounded in notions of order and fairness to participants in litigation with connections to multiple jurisdictions.
In Morguard, a more accommodating approach to recognition and enforcement was premised on there being a "real and substantial connection" to the forum that assumed jurisdiction and gave judgment. . . . I . . . considered the test developed in Moran v. Pyle National (Canada) Ltd., supra, for products liability cases as an example of where jurisdiction would be properly assumed. The exact limits of what constitutes a reasonable assumption of jurisdiction were not defined, and I add that no test can perhaps ever be rigidly applied; no court has ever been able to anticipate all of these. However, though some of these may well require reconsideration in light of Morguard, the connections relied on under the traditional rules are a good place to start. More than this was left to depend on the gradual accumulation of connections defined in accordance with the broad principles of order and fairness; . . .
Whatever approach is used, the assumption of and the discretion not to exercise jurisdiction must ultimately be guided by the requirements of order and fairness, not a mechanical counting of contacts or connections. . . .
24It has been submitted on behalf of Lemmex that the sentence last quoted means there is a discretion in the court as to whether it has jurisdiction to entertain his action, that the motions judge has not been shown to have acted on a wrong principle and that accordingly his discretion to accept jurisdiction on behalf of the courts of Ontario should not be disturbed on appeal.
25In my view, La Forest J. does not suggest in that last sentence that there is any discretion as to jurisdiction simpliciter. What he is saying is that in assuming jurisdiction as in deciding not to exercise that jurisdiction, say, because there is a more convenient forum, the court must be guided by the requirements of order and fairness. There may often be discretion as to whether Ontario is the most convenient forum, but, in my view, whether Ontario has jurisdiction to entertain an action is not a matter of discretion. Either it has jurisdiction or it does not. A judge cannot be more or less correct on this point.
26I agree with the opinion of Cumming J.A. in Jordan v. Schatz, supra, at pp. 141-42 B.C.L.R.:
Jurisdiction simpliciter is not a matter of discretion. Either a court has it or it does not based on the existence of a real and substantial connection between the jurisdiction and the defendant or the cause of action. In rejecting the plaintiff's case in Ell, supra, Hollinrake J.A. stated at p. 184:
To adopt this submission of the plaintiff [regarding the application of forum conveniens principles to principles of jurisdiction] would, in my opinion, be a denial of the principles enunciated by this Court in the Nitsuko case and would lead to jurisdiction simpliciter becoming a matter of discretion.
On the other hand, the forum non conveniens test does involve an exercise of discretion on the part of the court in deciding whether to assume or decline jurisdiction. Only after jurisdiction simpliciter is established should forum non conveniens be considered. . . .
27Because "the exact limits of what constitutes a reasonable assumption of jurisdiction" have not been defined and such limits have been "left to depend on the gradual accumulation of connections defined in accordance with the broad principles of order and justice", there may often be uncertainty as to what circumstances will give jurisdiction. Until such uncertainty is resolved, it will be difficult to say in some cases whether jurisdiction lies. That simply means it may be hard to get the answer right, not that there is more than one right answer.
28However, this is not one of those difficult cases. Here, in my view, Ontario has no connection with either the defendants or their alleged tort or breach of contract (that is to say the subject matter of the action). Where the alleged negligence of the defendants and injury to the plaintiff took place in Grenada, where the defendants reside there and offer their services to tourists only in Grenada, where any contract for their services was made on the high seas or in Grenada, I see no connection to Ontario. While the plaintiff returned to Ontario and has continued to suffer from his injuries, that only means Ontario is connected with that suffering, not with the event that caused it.
29To give jurisdiction to Ontario in such circumstances could not be in accordance with fairness and order and would not in my opinion be acceptable to the international community. A Toronto taxi driver should not have to defend himself in Australia or Japan or Grenada because his tourist passenger alleges he was injured through the taxi driver's negligence. And if the taxi driver were sued in one of those courts, the courts of Ontario ought not, in my opinion, recognize that such foreign court had jurisdiction to entertain the suit.
30If, as stated by La Forest J. in Tolofson [at pp. 1048-49 S.C.R.]"[i]t is to the underlying reality of the international legal order, that we must turn if we are to structure a rational and workable system of private international law", then we should examine what he describes in Morguard as "the more generous rules for the recognition and enforcement of foreign judgments" adopted in the United States and by the members of the European Economic Community.
31In the European Economic Community:
. . . in tort, the defendant may be sued either where he is domiciled, or, in the country where the "harmful" event occurred. "Harmful" has been interpreted by the European Court of Justice to mean either the place where the wrongdoing occurred, or the place where resulting damage ensued. Thus in Shevill v. Presse Alliance SA, the European Court of Justice ruled that in defamation, claimants have the options of suing either in the place where a libel originates, or in any place where damage occurs, albeit only to the extent that the claimant suffers damage in that place.
Clerk and Lindsell on Torts, 6th ed. (London: Sweet and Maxwell, 2000).
32In the United States, a defendant will only be:
. . . subject to jurisdiction if it has "certain minimum contacts" with the forum in order to "not offend" traditional notions of fair play and substantial justice.
. . . the mere fact that a defendant's negligent action is alleged to have caused effect or injury in the forum state does not, by itself, satisfy the minimum contacts test. A fortiori, in cases in which the injury or principal effect of the alleged negligence takes place out of state, the mere fact that the plaintiff is a forum domiciliary does not satisfy the minimum contacts test. Specific jurisdiction in a negligence case can be constitutionally established only through forum state conduct or effects, and some purposeful effort on the part of the defendant to affiliate with the state, such as through directly serving a commercial market in the state. Without an element of a purposeful connection between the defendant and the forum, Asahi, World-Wide and a host of lower court cases make clear that any attempted exercise of jurisdiction by a forum state court will cross the constitutional line.
Conflict of Laws, 3rd ed., by Scoles, Hay, Borchers and Symeonides, Hornbrook Series (St. Paul, Minn.: West Group, 2000), pp. 289, 363-64.
33It is obvious then that neither in the European Economic Community nor in the United States can a court assume jurisdiction simply because the plaintiff, domiciled in and resident in the forum state, though injured elsewhere by the negligence of the defendant, is suffering and incurring monetary damages in the forum state.
34I am fully aware that there are authorities both in Ontario and in other provinces on both sides of the issue as to whether the mere suffering (i.e. enduring of suffering) of damages in a province, when the defendant resides and his negligent act and the plaintiff's injury occurred outside the province, gives the province where the plaintiff resides and continues to suffer, jurisdiction to entertain his action.
35I obviously disagree with those who have decided that in such circumstances jurisdiction exists in the province where the injured plaintiff resides. I suspect that in at least some of those cases the court was attempting to lighten the burden of the seriously disabled plaintiff by allowing him to bring his action in the forum most convenient for him.
36But the Supreme Court of Canada has not suggested that the forum of convenience should be a factor, let alone the determining factor in deciding whether the province has jurisdiction. Rather in Morguard, Hunt and Tolofson, as was stated by Swinton J. in Leufkens v. Alba Tours International Inc. (2001), 2001 28038 (ON SC), 53 O.R. (3d) 112 (S.C.J.), at para. 17 [p. 118 O.R.], La Forest J., speaking for the Supreme Court of Canada"drew a distinction between jurisdiction and the doctrine of forum non conveniens".
37I am in agreement with the views of Swinton J. in Leufkens where, on facts quite similar to the facts of this case, she found the Ontario Court to be without jurisdiction. In particular, I agree with her concerns (paras. 25-27 [pp. 120-21 O.R.]) about the reasoning of McKinnon J. from whom this appeal is brought:
In Moran v. Pyle, supra, the Supreme Court of Canada looked to the reasonable expectations of the defendant in determining whether there was jurisdiction in the domestic forum to deal with a tort action involving defective products used in that jurisdiction, which caused injury there. In Lemmex, McKinnon J. applied the same reasoning to the provision of services. He held that it was reasonable for a tour operator in Grenada to expect that a foreign tourist would want to bring a claim in her or his home jurisdiction if injured while on vacation. Reliance was placed on the passage in Moran quoted earlier in these reasons, where Dickson J. spoke of the reasonable expectations of a manufacturer, in a products liability suit, with respect to products distributed in another jurisdiction that caused a tort there. McKinnon J. likened the provision of services to foreign tourists to the distribution of consumer products in the channels of commerce, and concluded that the provider could reasonably foresee that the foreign tourist might wish to sue in his or her home jurisdiction (supra, at p. 604).
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 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.
In my view, the proper question is not whether it was reasonably foreseeable to the . . . defendants that they would be sued in Ontario, should an Ontario resident with whom they had dealings . . . be injured . . . 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 [Grenada].
Conclusion
38In my view, the Ontario courts do not have jurisdiction to entertain Lemmex's claim because:
(a) There is no connection and so no real and substantial connection between Ontario and the Grenadian defendants or the cause of action.
(b) The international community cannot be expected to accept that Ontario has jurisdiction to entertain Lemmex's claim. No member of that community could be expected to abdicate its guardianship of the rights of its own citizens or others under protection of its laws, and let those rights be determined in another state just because those citizens, or others protected by its laws, provided services to a visitor from that other state who claims to have been injured because the services were provided negligently.
39I would then allow the appeal, set aside the order of McKinnon J., stay the third party claim in action 98-CV-6294 and stay action 99-CV-12366.
Appeal dismissed.