Court of Appeal for Ontario
Date: 2018-07-20
Dockets: C64960, C64961, C64962 and C64963
Panel: Feldman, Hourigan and Brown JJ.A.
Docket: C64960
Between
Daniel Di Gregorio, Mary Di Gregorio and Raymond Di Gregorio
Plaintiffs/Appellants
and
Sunwing Vacations Inc. and AM Resorts, LLC
Defendants/Respondents
Docket: C64961
Between
Natalie Di Gregorio, Finaldo Di Gregorio, Leonarda Di Gregorio, Norelle Di Gregorio, Sara Di Gregorio, Monica Di Gregorio, Carmen Pugliese, Marisa Pugliese, Warren Pitton, Eduarda Pitton, Olivia Pitton, Carla Pitton and Robert J. Dagostino
Plaintiffs/Appellants
and
Sunwing Vacations Inc., AM Resorts, LLC and AMR Resort Management, LLC
Defendants/Respondents
Docket: C64962
Between
Daniel Di Gregorio, Mary Jane Di Gregorio, Raymond Di Gregorio, Johnny Pitton, Armand Pitton and Candida Pitton
Plaintiffs/Appellants
and
AMR Resort Management, LLC
Defendant/Respondent
Docket: C64963
Between
Johnny Pitton, Armand Pitton and Candida Pitton
Plaintiffs/Appellants
and
Sunwing Vacations Inc. and AM Resorts, LLC
Defendants/Respondents
Counsel:
William G. Scott, for the appellants
Theresa Hartley and Irina Sfranciog, for the respondents
Heard: July 5, 2018
On appeal from: The orders of Justice Kim A. Carpenter-Gunn of the Superior Court of Justice, dated January 10, 2018.
Reasons for Decision
A. Introduction
[1] This is an appeal from the orders of the motion judge dismissing the appellants' claims based upon a foreign limitation period. For the reasons that follow, the appeal is allowed.
B. Facts
[2] The motion judge dismissed four actions commenced by the appellants as they relate to the respondents, AMR Resort Management, LLC ("AMR") and AM Resorts, LLC ("AM").
[3] In September 2010, the appellants purchased a vacation package to attend the Dreams Punta Cana Resort and Spa ("Dreams Resort") over the winter holidays. In their statements of claim, the appellants allege that on January 1, 2011, Daniel Di Gregorio and Johnny Pitton were standing on a hotel room balcony at the Dreams Resort when the balcony railing gave way, causing the two men to fall to the ground and sustain injuries.
[4] The appellants purchased their vacation package through their travel agent, from Sunwing Vacations Inc. ("Sunwing"). Sunwing had a contract with Perfect Tours NV ("Perfect Tours") with respect to bookings at the Dreams Resort. Perfect Tours was party to a hotel management agreement between AMR and Inversiones Vilazel, a Dominican company that owned the Dreams Resort. In their statements of claim, the appellants allege that at all material times, AMR and AM operated the Dreams Resort hotel.
[5] As noted above, the appellants commenced four separate actions in relation to this incident, all in Ontario. In two of those actions, the statements of claim were issued on December 28, 2011. In the other two, the statements of claim were issued on December 18, 2012. The respondents AMR and AM, or one of the two, are parties to each of the four actions.
C. The Decision Below
[6] AMR and AM moved to stay or dismiss the actions against them. Collectively, they argued that the Ontario courts do not have jurisdiction over the dispute and are not a convenient forum for the action. Alternatively, if the Ontario courts do have jurisdiction, they submitted that the laws of the Dominican Republic govern the action, and as the limitation period to claim in tort in the Dominican Republic is six months, the actions were statute-barred.
[7] Without addressing the jurisdictional argument, the motion judge first dealt with the limitation issue, calling this a "threshold issue". She determined that the laws of the Dominican Republic applied, that the actions could only be in tort as the appellants had no contractual relationship with AMR or AM, and thus that the actions were statute-barred.
[8] The motion judge dismissed the appellants' four actions as against AMR and AM.
D. Analysis
[9] On the motion, the respondents raised the issue of whether the Ontario courts have jurisdiction. The motion judge declined to consider that issue and inexplicably jumped to an analysis of the law of the Dominican Republic. That was an error in law. The motion judge was obliged to conduct a jurisdictional analysis pursuant to Club Resorts v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572. In the absence of jurisdiction, courts should not be offering their views on cases that may not be properly before them.
[10] Had the motion judge conducted the jurisdictional analysis, she would have recognized that AM attorned to the Ontario courts because it filed a defence. AMR did not file a defence; it simply joined the motion for the stay. The motion judge should have identified the basis for jurisdiction over AMR.
[11] In our view, the relevant jurisdictional connecting factor is the claim pleaded based on an Ontario contract. As will be discussed below, there is a dispute about whether the respondents were parties to that contract. For jurisdictional purposes, however, a contractual connection does not require that an alleged tortfeasor be a party to the contract or that its liability flows immediately from its contractual obligations. All that is required is that a defendant's conduct brings it within the scope of the contractual relationship and that the events that give rise to the claim flow from the contractual relationship: Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30, [2016] 1 S.C.R. 851, at paras. 32 and 44. We conclude that there is a contractual connecting factor to Ontario and our courts have jurisdiction simpliciter over AMR. On appeal, the respondents do not challenge jurisdiction on the basis of forum non conveniens, so we need not consider that issue.
[12] Turning to the motion judge's analysis of the limitation period, there was no issue that the law of the Dominican Republic would apply. There was also no dispute that under the laws of that country, negligence claims are subject to a six-month limitation period and that contract claims are subject to a two-year limitation period. The difficulty lies in the motion judge's analysis of the issue of whether the claim was in tort or in contract.
[13] The first problem is that it is unclear on what basis she was determining the limitation period issue. The parties advised in oral argument that the issue was argued as a summary judgment motion. However, there is no reference to rule 20 in the notice of motion or in the reasons. The test for granting summary judgment is also not referred to in the reasons and there is no analysis of whether it had been met. As noted, however, counsel before the motion judge appear to have treated the motion as one for summary judgment. The moving parties ought to have made the rule they were relying on explicit in their materials.
[14] There is also scant analysis on the issue of whether the appellants have a claim in contract. Instead, the trial judge simply asserts a bald conclusion that there is no contract claim in relation to the respondents. To the extent that any analysis can be discerned it is flawed. For example, the motion judge states that, "the only contractual breach pleaded by the plaintiffs is that between the plaintiffs and the vendor hotel accommodation, the Sunwing defendant…" That is incorrect. The statements of claim include the following plea:
As the vendor of the hotel accommodation which the plaintiffs purchased through Sunwing Vacations Inc., AMR Resort had a contractual obligation to ensure that the purchasers of the hotel accommodation were not exposed to dangers or hazards while exercising their contractual rights to utilize accommodations.
The same plea appears in the actions involving AM, simply with "AM Resorts" substituted for "AMR Resort".
[15] It is plain that a breach of contract claim was being asserted against the respondents.
[16] In addition to this factual error, the motion judge did not address in any meaningful way the appellants' key argument. The appellants relied on the fact that they had a contract with Sunwing, who had a contract with Perfect Tours, who in turn had a contract with the respondents. The appellants' counsel argues that his clients had a contract with respondents via agency or as an implied contract. The motion judge dismissed that submission without analysis. She did not, for example, avert to the contract between the appellants and Sunwing, which provided in part:
HOTEL'S RESPONSIBILITY
The accommodation voucher, or electronic confirmation number, furnished by Sunwing shall constitute the sole contract between the hotels/resorts and you, the passenger. The hotels and resorts depicted in this brochure will not be held liable for any act, omission or event during the time passenger(s) are not staying at their establishments. Neither Sunwing nor these properties are responsible for payment of any refund for unused accommodations or meals as a result of late arrival or non-arrival by passenger(s), regardless of the cause.
[17] At first blush, this provision suggests that there is a contract between the appellants and the hotel. This is inconsistent with the position taken by the respondents. We make these comments to underscore the difficulty we are having in understanding the motion judge's chain of reasoning. We do not suggest that on a proper analysis the contractual arguments made by the appellants cannot be rejected. But legal analysis must be rigorous; a series of conclusory statements is not sufficient.
[18] As a court of error correction, we require reasons that reveal, at a minimum, the decision made, the authority for the decision, the rationale for the decision, and the factual basis for the decision. Where that basic information is not provided or is not readily apparent from the record, the reasons do not permit appellate review.
[19] We conclude that in addition to the palpable and overriding error of fact made by the motion judge, the reasons are inadequate, as they are not amenable to appellate review. They do not enlighten the parties or this court regarding the basis for the decision.
E. Disposition
[20] The appeal is allowed. The orders of the motion judge are set aside. The matters may proceed to trial or for a summary judgment motion as the parties see fit.
[21] The appellants are entitled to their costs below. If there is any issue about the quantum of those costs, the parties shall make submissions to the motion judge.
[22] The appellants are entitled to their costs of the appeal in the agreed upon amount of $7,500, all-inclusive.
"K. Feldman J.A."
"C.W. Hourigan J.A."
"David Brown J.A."