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

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]

60 O.R. (3d) 54

[2002] O.J. No. 2131

Docket No. C37455

Court of Appeal for Ontario,

Rosenberg, Feldman, and Sharpe JJ.A.

May 29, 2002

Conflict of laws -- Forum non conveniens -- Plaintiff claiming damage sustained in Ontario as a result of tort committed elsewhere -- Plaintiff [page55] being Ontario resident -- Out-of-province defendant -- Real and substantial connection test -- Multiple factors relevant to determining whether forum has real and substantial connection -- Motion to stay allowed -- Courts of Justice Act, R.S.O. 1990, c. 43, s. 106 -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 17.02, 17.06.

Richard Lemmex, his wife and daughter, all Ottawa residents, purchased a vacation package from the defendant Sunflight Holidays Inc. ("Sunflight"), a Canadian corporation. The package was for a Caribbean cruise operated by the defendant Premier Cruises Ltd., Inc. ("Premier"), a Florida corporation. For the cruise, Premier selected George F. Huggins & Co. (Grenada) Ltd. ("Huggins Ltd.") as a provider of excursions on the Island of Grenada, and the Lemmexes purchased tickets from Premier for a tour on the island. The ship arrived in Grenada, and the Lemmexes were taken on the tour in a minivan driven by the defendant George Bernard. During the drive, Mr. Lemmex collapsed as a result of carbon monoxide poisoning. He suffered personal injuries. After their return to Ontario, the Lemmexes commenced two actions. In June 1998, they sued Sunflight and Premier alleging negligence, breach of contract and negligent misrepresentation. Premier commenced third party proceedings against Huggins Ltd. and Bernard. On December 29, 1999, the Lemmexes sued Huggins Ltd. and Bernard alleging negligence. The parties agreed to consolidate the two actions, but Huggins Ltd. and Bernard brought a motion pursuant to rule 17.06 for an order setting aside the service ex juris or staying the action and third party proceedings against them. McKinnon J. dismissed their motion. Leave having been granted by Aitken J., they appealed to the Divisional Court. The Divisional Court (O'Leary J. dissenting) dismissed the appeal. Huggins Ltd. and Bernard appealed to the Court of Appeal.

Held, the appeal should be allowed.

The Divisional Court erred in affirming McKinnon J.'s decision that the Ontario Superior Court could assume jurisdiction against the out-of-province defendants. The issues of assumption of jurisdiction (jurisdiction simpliciter) and forum non conveniens should be kept distinct, and O'Leary J. was correct in holding that jurisdiction could not be assumed in the immediate case. In the simultaneously released judgment in Muscutt v. Courcelles, the court sets out the legal principles relating to assumed jurisdiction in cases involving damages sustained in Ontario as a result of a tort committed elsewhere. The judgment in Muscutt identifies eight factors to be considered when determining whether the real and substantial connection test and the principles of order and fairness have been satisfied for a court to assume jurisdiction. Applying the Muscutt analysis to the circumstances of this case indicated that Ontario courts cannot assume jurisdiction against Huggins Ltd. and Bernard. Accordingly, the appeal should be allowed.

APPEAL from a judgment of the Divisional Court (O'Leary, Southey and Gillese JJ.) (2001), 55 O.R. (3d) 657 affirming the dismissal of a motion to stay an action against out-of-province defendants.

Cases referred to Hunt v. T & N plc, [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), 53 O.R. (3d) 112, 4 C.C.L.T. (3d) 300 (S.C.J.); McNichol Estate v. Woldnik (2001), 13 C.P.C. (5th) 61, 150 O.A.C. 68 (C.A.); affg (2000), 52 O.R. (3d) 49, 5 C.P.C. (5th) 333 (S.C.J.); Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393, [1974] 2 W.W.R. 586, 43 D.L.R. (3d) 239, 1 N.R. 122; Morguard Investments Ltd. v. De Savoye, [1990] 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 [page56] 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, rules 17.02(h), (o), 17.06

S. Gordon McKee and Lise G. Favreau, for appellants. Howard Yegendorf, for respondents Richard and June Lemmex. Paul Jacobs, for respondent Sunflight Holidays Inc. Paul Henry and R.L. Lawson, for respondent Premier Cruises Ltd., Inc.

The judgment of the court was delivered by

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

Facts

[2] On January 1, 1998, the plaintiff Richard Lemmex was injured during a shore excursion on the Island of Grenada while on a Caribbean cruise vacation.

[3] Mr. and Mrs. Lemmex are residents of Ottawa, Ontario. In December 1997, Mr. Lemmex, Mrs. Lemmex and their daughter purchased a vacation package from the defendant Sunflight Holidays Inc. ("Sunflight"), which is incorporated in Canada. The vacation package included airfare and a week-long Caribbean cruise for the week of December 24, 1997 to January 4, 1998. The cruise liner was operated by the defendant Premier Cruises Ltd., Inc. ("Premier"), which is incorporated in Florida. The Premier cruise liner carried other passengers in addition to those on the Sunflight tour. [page57]

[4] Prior to their departure, the Lemmexes' travel agent provided them with pamphlets from Sunflight indicating that passengers would be able to take shore excursions at various ports of call, including excursions on the Island of Grenada. After the Lemmexes paid for their vacation package, they received literature indicating that descriptions of the shore excursions would be available in their cabin aboard the cruise liner. When the Lemmexes boarded the cruise liner on December 28, 1997, they found pamphlets from Premier describing the shore excursions and an order form. The pamphlets stated that Premier acted only as an agent for the providers of the excursions.

[5] Premier had selected a Grenadian company, George F. Huggins & Co. (Grenada) Ltd. ("Huggins Ltd."), to be the provider of shore excursions in Grenada. Huggins Ltd. had given Premier the descriptions of the excursions and fixed the prices of the excursions and had arranged to have its vans and drivers meet the cruise liner to take passengers on the excursions.

[6] One of the shore excursions involved a tour to the Mountain Rain Forest/Grand Etang Lake on the Island of Grenada. While at sea, the Lemmexes bought tickets for this excursion from a representative of Premier.

[7] When the cruise liner moored in Grenada on January 1, 1998, the Lemmexes went ashore, together with a number of other passengers. An employee of Huggins Ltd. directed the passengers to vehicles. The Lemmexes were among the last of the passengers assigned to vehicles and were assigned to an old, dilapidated- looking blue Nissan minivan driven by the defendant George Bernard. Bernard is a taxi driver and resides in Grenada.

[8] During the drive, Richard Lemmex smelled exhaust fumes. When the minivan stopped at the top of a mountain, Mr. Lemmex exited and collapsed. Because there was no alternative way of returning to the cruise liner, the Lemmexes returned in the same minivan.

[9] In the evening, a doctor on board the cruise liner examined Mr. Lemmex. The doctor reported that Mr. Lemmex had a rapid pulse, high blood pressure and a low oxygen level. Mr. Lemmex was given oxygen.

[10] When the Lemmexes returned to Ottawa, Mr. Lemmex received medical treatment for carbon monoxide poisoning. He was treated by his family doctor, a neurologist and two psychologists.

[11] The Lemmexes commenced two actions. On June 10, 1998, they commenced an action against Sunflight and Premier, alleging negligence, breach of contract and negligent misrepresentation. [page58] Premier then commenced a third party claim against Huggins Ltd. and Bernard, seeking contribution and indemnity on the basis of negligence and breach of contract. On December 29, 1999, the Lemmexes commenced an action against Huggins Ltd. and Bernard, alleging negligence. The parties have agreed to consolidate the two actions.

[12] In both actions, Mr. Lemmex alleges that after his return to Ottawa, he began to experience fatigue, impatience, irritability, difficulty concentrating and recurrent nightmares. He also alleges that his ability to work as a lecturer in the family business, Lemmex and Associates Limited, has been impaired. He seeks damages, inter alia, for pain and suffering, loss of employment and amenities of life, future care, past and future income, loss of economic advantage and future loss resulting from impairment. Mrs. Lemmex seeks damages for loss of care, guidance and companionship pursuant to the Family Law Act, R.S.O. 1990, c. F.3. The Lemmexes' children have discontinued their claims.

[13] Premier has attorned to Ontario's jurisdiction. In both actions, Huggins Ltd. and Bernard were served in Grenada. Premier served its third party claim pursuant to rule 17.02(o) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Lemmexes served their statement of claim pursuant to rules 17.02(o) and 17.02(h). [See Note 2 at end of document]

[14] On June 22, 2000, Huggins Ltd. and Bernard brought a motion pursuant to rule 17.06 for an order setting aside the service ex juris or staying the claim and third party proceedings against them. They argued that Ontario courts lack jurisdiction over the action against them and that Ontario is not the convenient forum for the action. [page59]

[15] On July 12, 2000, the motions court judge, McKinnon J., dismissed the motion by Huggins Ltd. and Bernard. See (2000), 49 O.R. (3d) 598 (S.C.J.).

[16] The motions court judge considered the reasoning in Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, 76 D.L.R. (4th) 256 and Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393, 43 D.L.R. (3d) 239. At p. 604 [49 O.R.], he held that the reasoning in those cases was applicable to the provision of foreign services and that Huggins Ltd. and Bernard could reasonably have foreseen that an accident involving buses in Grenada might result in serious injury to North American passengers:

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.

[17] The motions court judge held that "the assessment of what constitutes a 'real and substantial connection' necessarily involves the assessment of what constitutes the convenient forum". He further held that Ontario was the convenient forum for the action. In particular, at p. 607 [49 O.R.], he found that the vast majority of the witnesses are from Ontario, that the medical and accounting records are in Ontario, that the balance of convenience favours Ontario, that an Ontario judge could apply the law of Grenada with respect to the alleged negligence, and that trying the action in Ontario would be a juridical advantage to Mr. Lemmex.

[18] Huggins Ltd. and Bernard brought a motion for leave to appeal to the Divisional Court. On November 10, 2000, Aitken J. granted leave. See 51 O.R. (3d) 164 (Div. Ct.).

[19] On July 24, 2001, the Divisional Court (O'Leary J. dissenting) dismissed the appeal. See (2001), 55 O.R. (3d) 657. For the majority, Gillese J. held that the motions court judge did not err [page60] in his consideration of the issue of jurisdiction simpliciter or in finding as a fact that Premier's passengers predominantly came from North America.

[20] With respect to the issue of jurisdiction simpliciter, Huggins Ltd. and Bernard had argued that the motions court judge had erred in considering the question of forum non conveniens without first considering whether there was a real and substantial connection between the subject matter of the action and Ontario. The majority agreed 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, the majority held that the motions court judge had addressed both concepts.

[21] The majority quoted La Forest J.'s statement at p. 326 S.C.R. of [Hunt v. T & N plc., [1993] 4 S.C.R. 289, 109 D.L.R. (4th) 16] that "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." At pp. 664 [55 O.R.], the majority held that "[t]here 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 majority added that the substantial overlap in the criteria governing jurisdiction simpliciter and forum non conveniens also suggested that a deferential standard of appellate review was appropriate for decisions as to jurisdiction simpliciter.

[22] The majority held that the real and substantial connection test had been satisfied. In so holding, the majority specifically affirmed the motions court judge's finding that it was within the reasonable contemplation of Huggins Ltd. and Bernard that providing services to passengers who were injured might result in being sued in the passengers' home jurisdiction. At pp. 666 [55 O.R.], the majority held:

The 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.

[23] O'Leary J. disagreed. In his view, the appropriate standard of appellate review for decisions as to jurisdiction simpliciter is [page61] correctness. Further, at pp. 673-74 [55 O.R.], O'Leary J. held that the real and substantial connection test had not been satisfied:

In 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.

The 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.

I 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.

The 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.

There 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.

[24] O'Leary J. further held, at p. 675 [55 O.R.], that the fact that Mr. Lemmex had endured suffering in Ontario did not suffice to create a real and substantial connection with Ontario:

In 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.

[25] Huggins Ltd. and Bernard appeal to this court from the decision of the Divisional Court. [page62]

Issue

[26] This appeal raises the following issue:

(1) Did the Divisional Court err in affirming the motion court judge's decision that the Ontario Superior Court can assume jurisdiction against the out-of-province defendants?

Analysis

[27] This appeal was heard together with the appeals in Muscutt v. Courcelles (C35934) and Gajraj v. DeBernardo (C36992) and this judgment is being released at the same time as the judgment in Muscutt and the judgments in Gajraj, Sinclair v. Cracker Barrel Old Country Store, Inc. (C35699) and Leufkens v. Alba Tours International Inc. (C36006). In Muscutt, I discussed the legal principles relating to assumed jurisdiction on the basis of damages sustained within Ontario as a result of a tort committed elsewhere, and the doctrine of forum non conveniens. Instead of repeating the discussion of those issues here, I will proceed directly to apply the analysis in Muscutt to the issues raised on this appeal.

[28] Huggins Ltd. and Bernard submit that the majority of the Divisional Court erred in applying a deferential standard of review to the motions court judge's decision as to jurisdiction simpliciter. I agree with the majority that the real and substantial connection test is a flexible test that involves the exercise of considerable judgment in weighing the factors that bear on jurisdiction simpliciter. I also agree that some of the factors relevant to jurisdiction simpliciter are also relevant to forum non conveniens. However, I would distinguish jurisdiction simpliciter and forum non conveniens for the purposes of appellate review.

[29] As explained in Muscutt, the issues of jurisdiction simpliciter and forum non conveniens are distinct. The majority relied on La Forest J.'s reference in [Hunt] at p. 326 S.C.R. to "the assumption of and the discretion not to exercise jurisdiction". In my view, this was a reference to two distinct issues: the assumption of jurisdiction (jurisdiction simpliciter) on the one hand, and the discretion not to exercise jurisdiction (forum non conveniens) on the other. In Jordan v. Schatz (2000), 2000 BCCA 409, 77 B.C.L.R. (3d) 134, 189 D.L.R. (4th) 62 (C.A.), the British Columbia Court of Appeal held that a decision as to jurisdiction simpliciter is not discretionary and that a correctness standard of appellate review applies. I find helpful O'Leary J.'s discussion of the implications of the flexible test for jurisdiction: [page63]

Because "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.

[30] For the reasons that follow, I also agree with O'Leary J. that the motions court judge erred in holding that the Ontario Superior Court can assume jurisdiction over the out-of- province defendants in this case. In Muscutt, I identified eight factors to be considered when determining whether the real and substantial connection test and the principles of order and fairness articulated in Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, 76 D.L.R. (4th) 256 and Hunt v. T & N plc., [1993] 4 S.C.R. 289 have been satisfied. In my view, the application of those factors to the facts of this case indicates that Ontario courts cannot assume jurisdiction against Huggins Ltd. and Bernard.

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

[31] The plaintiff Richard Lemmex is a resident of Ontario. He alleges that he has suffered fatigue, impatience, irritability, difficulty concentrating and recurrent nightmares in Ontario. He has received medical attention from several practitioners in Ontario, including his family doctor, a neurologist and two psychologists. His damages and the medical attention he has received represent a significant connection with Ontario. However, as noted in Muscutt, this is only one of the factors to be considered.

(2) The connection between the forum and the defendant

[32] In my view, there is no significant connection between Ontario and the defendants. Neither Huggins Ltd. nor Bernard has had any direct contact with Ontario. Huggins Ltd. does not carry on business in Ontario and there is no evidence that either Huggins Ltd. or Bernard has property or assets in Ontario. There was no act or conduct on the part of Huggins Ltd. or Bernard that could amount to subjection or submission to the jurisdiction of Ontario courts.

[33] Because they offered services specifically designed for tourists, Huggins Ltd. and Bernard could certainly foresee the risk that negligence on their part could lead to injury to foreign tourists who would return home and suffer consequential damages. However, as noted by Aitken J. when granting leave to appeal to the Divisional Court, there is no evidence that the [page64] Premier cruise passengers came predominantly from North America, let alone Canada or Ontario. At pp. 175-76 [51 O.R.], Aitken J. further stated:

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.

[34] For the reasons given in Muscutt, the foreseeability that an injured tourist will bring a claim in his or her jurisdiction does not bring the case within the principle articulated in Moran v. Pyle National (Canada) Ltd., supra. In my view, this factor does not weigh in favour of finding a real and substantial connection.

(3) Unfairness to the defendant in assuming jurisdiction

[35] In my view, there would be an element of unfairness to Huggins Ltd. and Bernard if the Ontario Superior Court were to assume jurisdiction in this case. Both Huggins Ltd. and Bernard have confined their activities to the Island of Grenada. Although they offer a service aimed specifically at tourists, it would be unduly onerous to require them to defend actions in the home jurisdictions of each of their customers. I agree with the passage quoted above at para. 23 from the dissenting reasons of O'Leary J., who held that the assumption of jurisdiction would be unfair to the defendants. In this respect, this case is analogous to Sinclair, in which I found that a restaurant cannot reasonably be expected to litigate in any jurisdiction that its customers call home even though the restaurant owner and operator knows that the restaurant caters to the travelling public.

[36] I note that the record in this case does not indicate whether Huggins Ltd. or Bernard has insurance coverage or what the nature and extent of any coverage might be. If they had insurance coverage fully indemnifying them against an Ontario judgment, that would be a relevant factor to consider. In any event, as in Leufkens, this is not a case like Muscutt where both parties are engaged in the same activity involving reciprocal risks of harm and there are mandatory insurance arrangements to protect against those risks.

(4) Unfairness to the plaintiff in not assuming jurisdiction

[37] If this court holds that Ontario courts cannot assume jurisdiction against Huggins Ltd. and Bernard, the plaintiffs will be required to bring their action against these defendants in Grenada. Such a holding would inconvenience the plaintiffs, particularly [page65] given the injuries that Richard Lemmex alleges to have sustained. However, such a holding would not, in my view, result in significant unfairness to the plaintiffs. In Leufkens, I concluded on similar facts that there was no significant unfairness to the plaintiffs. The Lemmexes chose to go on a Caribbean cruise and chose to participate in an optional excursion on the Island of Grenada offered by a Grenadian company and involving a vehicle driven by a Grenadian driver.

[38] On this point, I would adopt the following passage from the reasons of Aitken J. at p. 178 [51 O.R.], granting leave to appeal to the Divisional Court:

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.

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?

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?

[39] In the circumstances of this case, I respectfully disagree with the majority of the Divisional Court that the parties could reasonably have expected that the Lemmexes would be able to sue the Grenadian company and Grenadian driver in Ontario courts if they were injured in Grenada.

[40] With respect to Premier's third party claim, refusing to assume jurisdiction against Huggins Ltd. and Bernard will compel Premier to pursue its claim against the Grenadian defendants in Grenada. There is an element of unfairness to Premier in dividing the proceedings in this manner. On the other hand, Premier had a direct contractual relationship with Huggins Ltd. and could have insisted that Huggins Ltd. agree to attorn to foreign jurisdiction in the event of a suit such as the present one. [page66]

(5) The involvement of other parties to the suit

[41] The plaintiffs brought two actions, which have been consolidated. Premier has brought a third party claim. The Ontario courts have jurisdiction over the Canadian defendant Sunflight, and the American defendant Premier has attorned to Ontario's jurisdiction. Refusing to assume jurisdiction over Huggins Ltd. and Bernard could result in more than one proceeding, with the possibility of inconsistent outcomes in the proceedings.

[42] However, the core of this action lies in Grenada. The alleged injury occurred entirely in Grenada and the action centres around a claim in negligence for harm inflicted in Grenada by Grenadian defendants. In this regard, I would distinguish this case from McNichol Estate v. Woldnik (2001), 150 O.A.C. 68, 13 C.P.C. (5th) 61 (C.A.), in which the action centred around the alleged negligence of the Ontario-based defendant. As in Leufkens, all defendants would be amenable to the jurisdiction of the foreign courts, in this case, the courts of Grenada.

[43] I agree with the passage quoted above at para. 23 from the dissenting reasons of O'Leary J., who held that the involvement of Sunflight and Premier does not provide a strong basis for the assumption of jurisdiction against the Grenadian defendants.

[44] With regard to the third party claim, I have already considered the question of unfairness to Premier if Ontario courts do not assume jurisdiction against Huggins Ltd. and Bernard. Premier's third party claim lends some weight to assumed jurisdiction. In the end, however, the significance of the third party claim must be assessed from the perspective that the Lemmexes' action is, in essence, an action in negligence against Grenadian defendants for harm suffered in Grenada. Accordingly, I am not persuaded that Premier's third party claim adds a great deal of support for the finding of a real and substantial connection in this case.

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

[45] Because of the connection between assumed jurisdiction and recognition and enforcement, the assumption of jurisdiction in this case would require Ontario courts to recognize and enforce the judgments of foreign courts for damages arising from the provision of tourism services to tourists in Ontario. In her reasons for granting leave to appeal to the Divisional Court, Aitken J. posed the following questions at p. 179 [51 O.R.]: [page67]

The flip side of the question before [the motions court judge] 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.

[46] Recognition and enforcement of foreign judgments in such circumstances would impose an unreasonable burden on providers of tourism services in Ontario. Providers of tourism services who confine their activities to Ontario are entitled to expect that actions against them will be litigated in Ontario courts. They should not be compelled to defend such actions in foreign courts or face enforcement of a default judgment against them. Accordingly, this factor weighs against assuming jurisdiction in this case.

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

[47] As explained in Muscutt, the assumption of jurisdiction is more difficult to justify in international cases than in interprovincial cases. Further, as explained below, considerations of comity and respect for generally accepted principles of private international law do not favour the assumption of jurisdiction in the present case.

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

[48] The standards of jurisdiction, recognition and enforcement prevailing elsewhere do not support the assumption of jurisdiction in this case. As explained in Muscutt, under international standards, there are only limited circumstances in which damages sustained within the jurisdiction as a result of a wrong committed elsewhere are accepted as a basis for assumed jurisdiction. Since the parties presented no evidence as to the applicable rules for jurisdiction, recognition and enforcement in Grenada, there is no basis to conclude that Grenadian rules are less restrictive than the rules that prevail elsewhere.

Conclusion

[49] While the plaintiff has suffered significant damages in Ontario and while Premier's third party claim adds some weight [page68] to the assumption of jurisdiction against Huggins Ltd. and Bernard, the remaining factors do not support the assumption of jurisdiction. Accordingly, I find that the real and substantial connection test has not been satisfied. I therefore conclude that the Divisional Court erred in affirming the motions court judge's decision that the Ontario Superior Court can assume jurisdiction against Huggins Ltd. and Bernard.

Disposition

[50] For the foregoing reasons, I would allow the appeal and stay the action and third party claim against Huggins Ltd. and Bernard. In order to fix costs of the appeal, the court will entertain brief written submissions dealing with all aspects of the award of costs. Counsel for the appellants shall deliver submissions and a bill of costs no later than seven days from the date of this judgment. Counsel for the respondents may deliver a response, if any, within seven days thereafter.

Order accordingly.

Notes

Note 1: Sinclair v. Cracker Barrel Old Country Store, Inc. (C35699); Muscutt v. Courcelles (C35934); Leufkens v. Alba Tours International Inc. (C36006); Gajraj v. DeBernardo (C36992).

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

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

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