Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20200318 DOCKET: C67199

Simmons, van Rensburg and Harvison Young JJ.A.

BETWEEN

Nora Vahle, Harold Vahle, Drazena Mamic and Estate of Marija Vahle, deceased Plaintiffs (Respondents)

and

Global Work & Travel Co. Inc. Defendant (Appellant)

Counsel: Elizabeth Bowker and Christopher Afonso, for the appellant Allan Morrison and Vibhu Sharma, for the respondents

Heard: February 20, 2020

On appeal from the order of Justice Paul B. Schabas of the Superior Court of Justice, dated June 13, 2019, with reasons reported at 2019 ONSC 3624.

Reasons for Decision

[1] In the autumn of 2015, two sisters, aged 19 and 20, decided they wanted to travel to Thailand to teach English. In August of 2016, they flew to Thailand to participate in a "Teach in Thailand" experience arranged through the appellant, a British Columbia company with offices and employees in Vancouver.

[2] After completing their teaching course, the sisters were assigned to different towns and given motor scooters for transportation.

[3] Tragically, while riding together on a motor scooter on a day off in October 2016, the sisters were struck by another motorist and seriously injured. The younger sister succumbed to her injuries; the older sister continues to suffer the lasting effects of the accident.

[4] The respondents commenced an action in Ontario against the appellant, claiming damages for breach of contract, breach of fiduciary duty, negligence, negligent misrepresentation and other torts.

[5] The motion judge dismissed a motion to dismiss or stay the action based on lack of jurisdiction simpliciter and forum non conveniens.

[6] The motion judge applied the test from Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, considering the various presumptive connecting factors. Among other things, the motion judge found a presumptive connecting factor in the form of torts committed in Ontario. He concluded that the appellant had not rebutted the presumption of a “real and substantial connection” between the subject matter of the litigation and Ontario. After determining that Ontario had jurisdiction simpliciter, he concluded that the appellant had failed to establish that another forum was clearly more appropriate.

[7] On appeal, the appellant concedes that the motion judge summarized correctly the law relating to jurisdiction simpliciter and forum non conveniens. However, the appellant argues that the motion judge erred in his application of the relevant principles.

[8] We reject the appellant's arguments that the trial judge erred in relying on the torts of negligent misrepresentation and negligence having been committed in Ontario as presumptive connecting factors; in holding that the respondents met the “good arguable case” threshold; and in concluding that the appellant had not rebutted the presumption of a real and substantial connection between the subject matter of the litigation and Ontario.

[9] While acknowledging that the claims for negligent misrepresentation may require particulars, the motion judge found there was a good arguable case supporting a presumptive factor in respect of the claim for harm suffered arising from the appellant's alleged misrepresentations to the sisters in Ontario about the "Teach in Thailand" program. These included representations that the appellant would ensure the living, safety, security and emergency needs of the sisters. In addition, claims concerning the appellant's post-accident conduct in Ontario concerning contacting the sisters' parents could support a claim in negligence.

[10] We see no error in the motion judge's conclusion that the appellant failed to rebut the real and substantial connection created by the presumptive connecting factors established by a tort committed in Ontario. In order to rebut a presumptive connecting factor, a defendant must “establish facts which demonstrate that the presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and the forum or points only to a weak relationship between them”: Van Breda, at para. 95. The motion judge noted the potential weakness of internet representations as a connecting factor. However, he pointed out that the appellant was well-aware that it was attracting Ontario clients through representations made in Ontario. He also considered the potential minimal role of a travel agent when this type of accident occurs in a foreign jurisdiction, but concluded that the allegations concerning the appellant were that it provided, and represented that it provided, a much more far-reaching service than that of a simple travel agent.

[11] We also see no error in the motion judge’s application of the “good arguable case” test. The appellant argues that the motion judge erred because (1) the facts pleaded by the respondents were not capable at law of constituting the cause of action pleaded (concerning the claims for negligent misrepresentation, the appellant says that the older sister acknowledged on cross-examination that all she was told in telephone calls with the appellant was that she “would be safe”, that this amounts to no more than a “forecast” that is not at law capable of being a misrepresentation and that the motion judge’s reliance on the appellant’s omission to advise the sisters about the requirement to ride motor scooters and the dangers associated with that activity is not actionable as a misrepresentation); and (2) on the evidence before the motion judge, any viable claims against the appellant that are connected to Ontario are not supported.

[12] We disagree. As the motion judge pointed out at para. 26 of his reasons, while there is an evidentiary burden on the plaintiff to substantiate the presumptive connecting factors, especially where there is insufficient particularity in the statement of claim with respect to the jurisdictional facts, “this does not mean that the motion judge is to assess the merits of the case, but he or she must at least be satisfied that there is a “good arguable” case supporting a presumptive factor ” (emphasis added), taking account of both the allegations in the statement of claim and the evidence, where evidence is led.

[13] The requirement that there be a “good arguable case supporting a presumptive factor” is easily met in this case. The sisters were in Ontario when they responded to internet advertisements from Global. At least some of the misrepresentations relied on are alleged to have been made to them in Ontario, and before they left for Thailand. Further, the motion judge’s finding that there was evidence that may support the misrepresentations pleaded and that they occurred in Ontario is supported by the record. While the appellant contends that some (not all) of the alleged misconduct was that of a Thai company, XploreAsia and other entities for which it is not responsible, at para. 13 of his reasons, the motion judge noted that the appellant’s evidence in that regard was deficient. In any event, it is unnecessary on a jurisdiction motion for the court to determine whether all of the alleged misconduct was that of the appellant, as pleaded, or that all of the alleged misconduct is connected to Ontario: Van Breda, at para. 99. It is also unnecessary and inappropriate to treat a jurisdiction motion as a r. 21 motion or to weigh evidence going to the merits of the litigation. Rather, the questions on a jurisdiction motion are whether the statement of claim asserts the core elements of a cause of action known to law and appears capable of amendment to cure any pleadings deficiencies and whether the claimant has established a good arguable case that the cause of action is sufficiently connected to Ontario to found jurisdiction. As this court noted in Ontario (Attorney General) v. Rothmans Inc., 2013 ONCA 353, 115 O.R. (3d) 561, at para. 106, leave to appeal refused, [2013] S.C.C.A. No. 327:

[O]n a jurisdiction motion, the motion judge is not required to subject the pleadings to the scrutiny applicable on a rule 21 motion. So long as a statement of claim advances the core elements of a cause of action known to law and appears capable of being amended to cure any pleadings deficiencies such that the claim will have at least some prospect of success, the issue for the motion judge is whether the claimant has established a good arguable case that the cause of action is sufficiently connected to Ontario to permit an Ontario court to assume jurisdiction.

It is necessary for the purpose of a jurisdiction motion for the court to determine whether there is a “real and substantial connection” between Ontario and the claims, when considered as a whole.

[14] Finally, on our review of his reasons, the motion judge conducted a thorough forum non conveniens analysis and considered all the relevant factors. Given the nature of the claims the respondents are advancing, in particular, negligent misrepresentation and negligence in Ontario, we see no basis on which to interfere with his conclusion. It is not for us to reweigh his assessment of the relevant factors.

[15] For these reasons the appeal is dismissed. Costs to the respondents in the sum of $25,000, inclusive of disbursements and HST.

“Janet Simmons J.A.”

“K. van Rensburg J.A.”

“A. Harvison Young J.A.”