Court File and Parties

Court File No.: 10-24512
Date: 2012/11/29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Donald Wilson and Tammy Papetti v.

RIU and RIU Hotels et al

BEFORE: The Honourable Mr. Justice D.A. Broad

COUNSEL:
Plaintiffs Self-Represented but not in attendance
John A. Olah, for the RIU Defendants
Jamie A. Macdonald, for the Thomas Cook Defendants
Robert L. Love, for the Chukka Defendants

DATE HEARD: November 28, 2012

E N D O R S E M E N T

[ 1 ] The moving Defendants, being all the Defendants with the exception of Exclusive Holidays, which has not appeared, seek an Order staying the action against them on the basis that the Ontario court lacks jurisdiction over them, or in the alternative, if the Ontario court does have jurisdiction over them, the court should decline exercising jurisdiction on the basis of forum non conveniens.

[ 2 ] The Plaintiffs did not appear and filed no materials in response to the motions. By a separate endorsement I gave reasons for proceeding with argument of the motions notwithstanding the failure of the Plaintiffs to appear.

[ 3 ] Notwithstanding the failure of the Plaintiffs to appear, the motions were fully argued for approximately two hours, during which time counsel for the moving parties directed the court’s attention to the relevant evidence on the record and the applicable legal authorities. Both the facts and the law were comprehensively canvassed in the moving parties’ respective factums.

[ 4 ] The action, commenced in this court on December 22, 2010 arises from an injury alleged to have been sustained by the male Plaintiff (Mr. Wilson) while participating in a horseback riding excursion while on vacation in Jamaica. In summary, the vacation was booked by Mr. Wilson’s traveling companion Ms. Faiazza with Thomas Cook, operating under its trade name “Sunquest”, through Thomas Cook’s travel agency business Bel Air. Thomas Cook markets travel packages consisting of air and ground transportation as well as hotel accommodation.

[ 5 ] Thomas Cook purchased an allotment of rooms at a hotel in Jamaica Riu Ocho Rios (the “Hotel”) through Delta Holidays. On arrival in Jamaica the Mr. Wilson and Ms. Faiazza were assigned a room which had been booked by Thomas Cook as part of its total allotment.

[ 6 ] On the day after checking into the Hotel, the Mr. Wilson and Ms. Faiazza booked and purchased a horseback riding and swim tour, operated by Chukka. The booking and purchase was made through Exclusive Holidays which was permitted to maintain a desk in the lobby of the Hotel to take bookings for excursions for guests of the Hotel.

[ 7 ] On the day following the booking of the excursion, the Mr. Wilson and Ms. Faiazza were transported by a Chukka driver to the location of the tour at which time Mr. Wilson signed a release prior to commencement of the tour. According to the Statement of Claim, Mr. Wilson fell off the horse he was riding on the tour and was injured.

[ 8 ] The Hotel is owned by a Jamaican company Port Marly and is managed by one of the Riu group of companies. All of the Riu companies are headquartered in Spain and operate hotels there and in the Caribbean. However, it does not carry on business in Canada and does not market its business in Canada, except through a Mexican-based independent contractor that does marketing for the Riu defendants in Canada and the United States, and which has an employee visit Canada periodically for that purpose.

[ 9 ] The Chukka defendants carry on business exclusively in Jamaica, have no connection with Canada, carry on no business in Ontario and do not engage in any marketing directed to Ontario residents. Thomas Cook is incorporated in Ontario and carries on business in Ontario.

[ 10 ] The moving Defendants rely on the recent landmark Supreme Court of Canada case of Club Resorts Ltd. v Van Breda 2012 SCC 17. In Van Breda the Supreme Court held that jurisdiction must be established on the basis of objective factors connecting the subject matter of the action to the forum. The Court clarified that a plaintiff sustaining damages in Ontario or being situate in Ontario does not constitute such a connection.

[ 11 ] I am satisfied that, based upon the record, none of the four presumptive factors listed by LeBel, J. in Van Breda, namely (a) the defendant being domiciled or resident, (b) the defendant carrying on business, (c) the tort being committed, or (d) a contract connected with the dispute being made, in the province, are present with respect to the Riu and Chukka defendants.

[ 12 ] In particular, on the evidence, I am satisfied that there was no contract “connected with the dispute” made in Ontario. There was a layered series of contracts entered into with the various parties, which led to the male Plaintiff being at the Hotel in Jamaica and participating in the horseback riding excursion. It is not necessary, nor desirable, for the Court on this matter, particularly since the Plaintiffs did not appear to argue the motions, to define the parameters of what is meant by “a contract connected with the dispute” for the purposes of a Van Breda analysis. At paragraph 80 of Van Breda, it is made clear that the onus is on the plaintiff to establish that one or more of the listed presumptive factors exists. The Plaintiffs here made no response to the motions and led no evidence. There is nothing in the Defendants’ material which would suggest that a contract connected with the dispute was made in Ontario. The operative contract appears to be either the contract by which the Plaintiff booked the horseback riding excursion or alternatively the contract, including the release, entered into by Mr. Wilson at the excursion site, neither of which were made in Ontario.

[ 13 ] With respect to the Thomas Cook defendants, the first presumptive connecting factor is present, namely that they carry on business in Ontario. However, I am satisfied on the evidence that they have discharged the onus on them to rebut the presumption. Thomas Cook packaged the air and ground transportation as well as the hotel accommodation for the male Plaintiff’s trip, but had nothing to do with the booking of the horseback riding excursion. To require a tour packager like Thomas Cook to have to respond to claims in Ontario when some type of misfortune is experienced in a foreign jurisdiction by a patron, by reason only of having sent him or her there as part of a travel package, would open the Ontario court to universal assumption of jurisdiction.

[ 14 ] Even if it can be argued that the court has jurisdiction, I find that it should decline jurisdiction on the basis of forum non conveniens. The events occurred in Jamaica, creating the need for the testimony of a considerable number of Jamaican witnesses. It is expected that there would be logistical and immigration issues involved in bringing numerous witnesses to Ontario for trial. The Plaintiffs are in a much better position to travel to Jamaica for trial. Since Jamaican law would apply, it would generally be more appropriate to have the matter dealt with by the Jamaican court. Any judgment recovered against all but the Thomas Cook Defendants would be in Jamaica or some other jurisdiction than Ontario. I am satisfied that the Defendants have shown that Jamaica is clearly the more appropriate forum.

[ 15 ] For the foregoing reasons it is ordered that the action be stayed against all of the moving defendants, being all of the defendants with the exception of Exclusive Holidays. The moving parties shall have costs of the action and of the motion against the Plaintiffs in an amount to the fixed on a partial indemnity basis.

[ 16 ] The moving defendants may submit Costs Outlines by January 7, 2013 for the purpose of fixing costs. The Costs Outlines are to be provided to the Judges’ Secretaries at Hamilton.

D.A. Broad, J.

DATE: November 30, 2012