Court File and Parties

Citation: Allen v. Carnival Corporation, 2008 ONCA 57

Date: 2008-01-28

Docket: C47628

Court of Appeal for Ontario

Before: LaForme, Rouleau and Watt JJ.A.

Between:

Jasmine Allen Plaintiff (Appellant)

and

Carnival Corporation and Carnival PLC, carrying on business as Carnival Cruise Lines Defendants (Respondent)

Counsel: Michelle E. Brown and Murray H. Miskin for the plaintiff/appellant Douglas F. Harrison and Kathy L. Mah for the defendant/respondent

Heard & released orally: January 23, 2008

On appeal from the order of Justice B. Glass of the Superior Court of Justice dated July 27, 2007

Endorsement

[1] This appeal concerns a slip and fall that occurred while the appellant was on a cruise ship owned and operated by the respondent. The appellant brought an action in Ontario for injuries she sustained and served the respondent in Miami Florida pursuant to rule 17.02(h). The motion judge granted the respondent’s motion to stay the action. The appellant argues that the motion judge erred in finding that the contract was enforceable and in finding that the forum selection clause was fair and reasonable.

[2] We disagree. The respondent’s contract was sent to the appellant’s representative well in advance of the cruise and on its face, highlighted the importance of reading the terms and signing it before boarding. The appellant did not raise any issue with the contract until well after the cruise. In our view, she was bound by the forum selection term of the contract.

[3] A forum selection clause applies unless the plaintiff can show strong cause for not giving effect to the clause – Z.I. Pompey Industrie v. ECI-Line N.V, 2003 SCC 27, [2003] S.C.J. No. 23. The appellant has failed to show “strong cause” why it would be unreasonable or unfair to uphold it. This is not an exceptional situation where the court should ignore the clause. As the motion judge found, “the forum selection clause is reasonable and fair”. In the circumstances of this case, we find no basis to interfere with the motion judge’s decision.

[4] The appeal is therefore dismissed with costs to the respondent in the amount of $6,000 inclusive of GST and disbursements.

“H.S. LaForme J.A.”

“Paul Rouleau J.A.”

“David Watt J.A.”