Court of Appeal for Ontario

Citation: Cook v. 1293037 Alberta Ltd. (Traveller’s Cloud 9), 2016 ONCA 836

Date: 2016-11-07

Docket: C61716

Before: Blair, Epstein and Huscroft JJ.A.

Between:

Gary Cook and Jennifer Corswandt

Plaintiffs (Appellants)

and

1293037 Alberta Ltd. operating as Traveller’s Cloud 9

Defendant (Respondent)

Counsel:

Andrew R. Kerr, for the appellants

David W. Powrie and Nick Galanis, for the respondent

Heard and released orally: November 3, 2016

On appeal from the order of Justice Gregory M. Mulligan of the Superior Court of Justice, dated December 21, 2015, with reasons reported at 2015 ONSC 7989.

Endorsement

[1] The appellants appeal from the order of the motion judge staying their action against the respondent corporation on the basis that it has no real and substantial connection to Ontario.

[2] The appellants’ primary argument is that the motion judge erred in concluding that they failed to establish that the action has a real and substantial connection to Ontario. The appellants also argue that Ontario should assume jurisdiction on the basis of the forum of necessity exception to the real and substantial connection test, and that Ontario is a more convenient forum for the action. Finally, they submit that the motion judge should not have heard the motion because they were prejudiced by the failure of the respondent to provide them with the information necessary for their defence of the motion.

[3] We reject these arguments.

[4] None of the presumptive factors set out by the Supreme Court in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572 is satisfied on the facts of this case. The motion judge found that the respondent is an Alberta corporation, resident or domiciled in Alberta, and that the accident giving rise to the action occurred when the appellant, Gary Cook, was staying at the hotel while he worked temporarily in Alberta.

[5] These findings were open to the motion judge on the record that was before him, and they are fatal to the claim that Ontario has jurisdiction simpliciter. There is no basis to pierce the corporate veil in this case, or to create a new presumptive factor, simply because there is evidence that one of the directors of the corporation appears to have resided in Ontario for a period of time. The corporation is the respondent to the action, not its director, and on this record there is no reason to go behind the corporation. There was no evidence as to the nature of the respondent’s hotel business, and in particular no evidence as to whether its business was directed at Ontario clients, such that it could be said to be conducting its business in Ontario.

[6] The necessity argument is made because the limitation period for bringing the action in Alberta has expired, and the appellants will be unable to bring their action if they are not permitted to do so in Ontario. The appellants argue that they were unfairly disadvantaged by the change in the law following the commencement of this action that resulted from the Supreme Court’s decision in Van Breda. They submit that they would have been permitted to bring their action in Ontario under the decision of this court in Muscutt v. Courcelles, 2002 CanLII 44957 (ON CA), [2002] O.J. No. 2128 (C.A.), and that they should now be permitted to do so pursuant to the necessity doctrine.

[7] This submission must be rejected.

[8] The forum of necessity doctrine is an exception to the real and substantial connection test, and operates only in extraordinary and exceptional circumstances: Forsythe v. Westfall, 2015 ONCA 810, 128 O.R. (3d) 124.

[9] In our view, this is not an appropriate case for the exercise of the court’s discretion. The appellants made a tactical decision not to bring their action in Alberta and it would not be appropriate to relieve them of the consequences of that decision. Although the law has changed, we are not persuaded that the action could have been brought in Ontario under the old approach. It is not a close call under Van Breda.

[10] Finally, we would not give effect to the appellants’ argument that they were prejudiced by the failure of the respondent to provide them with the information necessary for their defence of the motion. The appellants did not avail themselves of the procedural options open to them.

[11] In light of these conclusions, there is no need to consider the forum non conveniens argument.

Disposition

[12] The appeal is dismissed with costs to the respondent fixed at $7,500, inclusive of taxes and disbursements.

“R. A. Blair J.A.”

“Gloria Epstein J.A.”

“Grant Huscroft J.A.”