Haufler, an infant under the age of 18 years by her Litigation Guardian, Haufler et al. v. Hotel Riu Palace Cabo San Lucas et al.

[Indexed as: Haufler (Litigation Guardian of) v. Hotel Riu Palace Cabo San Lucas]

Ontario Reports

Ontario Superior Court of Justice,

M.G. Quigley J.

September 27, 2013

117 O.R. (3d) 275 | 2013 ONSC 6044

Case Summary

Conflict of laws — Jurisdiction — Real and substantial connection — Ontario resident suing Mexican hotel for injuries sustained on ATV excursion while she was staying at hotel in Mexico — Ontario court not having jurisdiction — Company responsible for ATV excursion having no relationship with hotel — Hotel selling blocks of rooms to Spanish company which in turn sold them to travel wholesaler — Plaintiff's friend purchasing room from wholesaler in Ontario — Hotel not advertising in Ontario and having no electronic presence in Ontario at time of accident — Wholesaler not an agent of hotel — Hotel not carrying on business in Ontario.

The plaintiff, an Ontario resident, was injured during an ATV excursion while on vacation in Mexico. She brought an action in Ontario against the operator of the excursion (which did not respond to the claim and which was presumed to be bankrupt) and the hotel where she was staying at the time of the accident. The hotel brought a motion for an order staying the action on the basis that the Ontario court did not have jurisdiction over it and, alternatively, [page276] asked the court not to exercise its jurisdiction based on the doctrine of forum non conveniens.

Held, the motion should be granted.

The parties agreed that three of the four presumptive connecting factors did not apply here: the alleged tort occurred in Mexico; there was no contract of relevance connected to the matter in dispute to which the hotel was a party tying the hotel to Ontario, and if there was, it was made in Mexico, not in Ontario; and the hotel was a resident and domiciliary of Mexico. The fourth connecting factor -- that the hotel carried on business in Ontario -- was not made out. At the relevant time, the hotel sold rooms to a Spanish company, which in turn sold them to travel wholesalers. The plaintiff's friend purchased a room from a travel wholesaler in Ontario, not from the hotel directly. The hotel did not advertise in Ontario and had no electronic presence in Ontario at the time of the accident. The wholesaler was not an agent of the hotel as it did not have any legal authority or capacity to bind the hotel. The "Hotel Riu" trademark used by the hotel was owned by a Spanish company, and a representative of that company occasionally attended trade shows and product launches and visited wholesalers in Canada, but she did not act for and was not a representative of the hotel, and her limited presence in Canada, and still more limited presence in Ontario, did not establish that the hotel carried on business in Ontario. The Ontario court did not have jurisdiction simpliciter.

Club Resorts Ltd. v. Van Breda, [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, 2012 SCC 17, 291 O.A.C. 201, 2012EXP-1452, J.E. 2012-788, EYB 2012-205198, 429 N.R. 217, 343 D.L.R. (4th) 577, 91 C.C.L.T. (3d) 1, 10 R.F.L. (7th) 1, 17 C.P.C. (7th) 223, 212 A.C.W.S. (3d) 712, apld

Colavecchia v. Berkeley Hotel Ltd. (2012), 112 O.R. (3d) 287, [2012] O.J. No. 3952, 2012 ONSC 4747, 353 D.L.R. (4th) 343, 220 A.C.W.S. (3d) 336 (S.C.J.); United States of America v. Yemec, [2012] O.J. No. 3956, 2012 ONSC 4207, 41 C.P.C. (7th) 362, 222 A.C.W.S. (3d) 636 (S.C.J.), consd

Ontario College of Pharmacists v. 1724665 Ontario Inc., 2012 ONSC 4295, [2013] O.J. No. 1247, 2013 ONSC 4295, 360 D.L.R. (4th) 299, 225 A.C.W.S. (3d) 1154 (S.C.J.), distd

Other cases referred to

Craven v. Strand Holidays (Canada) Ltd. (1982), 1859 (ON CA), 40 O.R. (2d) 186, [1982] O.J. No. 3599, 142 D.L.R. (3d) 31, 17 A.C.W.S. (2d) 356 (C.A.); Gardner v. Ontario (1984), 1941 (ON SC), 45 O.R. (2d) 760, [1984] O.J. No. 3162, 7 D.L.R. (4th) 464, [1984] 3 C.N.L.R. 72, 25 A.C.W.S. (2d) 162 (H.C.J.); Garofoli v. Air Canada Vacation, [2012] O.J. No. 3885, 2012 ONSC 4698, 6 B.L.R. (5th) 275, 219 A.C.W.S. (3d) 1002 (S.C.J.); Wilson v. Riu, [2012] O.J. No. 5679, 2012 ONSC 6840, 98 C.C.L.T. (3d) 337, 222 A.C.W.S. (3d) 653 (S.C.J.)

Statutes referred to

Canada-United States Tax Convention Act, 1984, S.C. 1984, c. 20 [as am.], art. V, paras. 5, 6

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 39.02(4) (b)

Authorities referred to

Fridman, G.H.L., Canadian Agency Law, 2nd ed. (Markham, Ont.: LexisNexis, 2012) [page277]

MOTION for an order staying an action.

J. David Sloan, for responding parties/plaintiffs.

Robert L. Love and Katherine Ayre-Tanchak, for moving party and defendant, Hotel Riu Palace Cabo San Lucas.

M.G. QUIGLEY J.: —

Overview

[1] In the spring of 2006, the plaintiff Angela Haufler was injured while on vacation in Mexico with her mother, a friend and the friend's mother. The injury occurred while she was participating in an all-terrain vehicle ("ATV") excursion. She was immediately flown back to Canada for treatment.

[2] As a result of the injuries she sustained, Angela Haufler commenced this action against Rancho Tours, the ATV excursion operator, through her mother as litigation guardian, and her mother and father in their own rights, alleging negligence in the supply of a defective ATV, as well as inadequate instruction. However, Rancho Tours is presumed to be bankrupt. It has not responded to the claim. It was not represented and did not take any position on this motion.

[3] The plaintiffs make the same allegations against Hotel Riu Palace Cabo San Lucas, the hotel where Angela and the other vacationers were staying during their Mexican vacation (the "Hotel"). However, the Hotel says it had nothing to do with the ATV excursion.

[4] It has not filed a defence, but instead moves for an order staying this action on the basis that this court has no jurisdiction over it and, in the alternative, that this court should decline to exercise its jurisdiction based on the doctrine of forum non conveniens.

[5] It is over seven years since this accident occurred. This motion is only being heard now because the parties have awaited the seminal decision of the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda.[^1] Before Van Breda, the test in Canada for the assumption of jurisdiction over an action required the existence of a "real and substantial" connection between the foreign defendant and the forum asserting jurisdiction. Now, a new test has been articulated requiring a plaintiff to demonstrate the existence of one of four rebuttable presumptive connecting [page278] factors before a court in this country will take jurisdiction over an action involving a foreign defendant.

[6] The parties agree that three of the four presumptive connecting factors do not apply here. Nonetheless, the plaintiffs argue that this court should assume jurisdiction on the basis that the Hotel carries on business in Ontario.

[7] I have rejected the claim that the Hotel carries on business in Canada, either on its own or through agency relationships. Even if the Hotel does engage in a considerable amount of business with Ontarians, the existing legal relationships between the Hotel, the owner of the Hotel and Sunquest Tours at the end of the line in Canada are not sufficient to establish that the Hotel carries on business in Ontario. As such, the plaintiffs have failed to meet their evidential burden. In the absence of any of the four connecting factors described in Van Breda, this court must decline to exercise jurisdiction over the Hotel. The defendant's motion succeeds.

Summary and Findings on Background Facts

[8] At the time that she sustained her injuries and this action arose, the plaintiffs lived in Toronto. During the March 2006 vacation in Mexico when Angela Haufler was injured, she and her mother were staying at the Hotel, along with her mother's friend Sandra Mulcahy, who had booked the vacation, and Ms. Mulcahy's daughter.

[9] Rancho Tours was a sightseeing tour operator located in Cabo San Lucas, Los Cabos, Mexico. It provided the ATV excursion during which the plaintiff Angela Haufler was injured.

[10] "Hotel Riu" is a trademark owned by a Spanish company which is headquartered in Palma de Mallorca, Spain. There are hotels around the world that operate under the Hotel Riu trademark, including in Mexico, the Dominican Republic, Cuba and elsewhere. The Hotel, the defendant in this action, is one such international hotel. It is an all-inclusive holiday resort catering to tourists from Mexico and abroad. The owner of the hotel is MX RIUSA II, S.A. de C.V. (the "owner"), a company that was incorporated in Mexico and that is domiciled in Mexico. The Hotel is managed by another company incorporated and domiciled in Spain that is not named as a defendant in this action.

[11] Legally significant, the Hotel itself did not actually sell or market its rooms outside of Mexico in March of 2006 when this injury occurred. Instead, for the 2005-2006 season, it sold blocks of rooms to Visantilla S.A., a company located in and domiciled in Palma de Mallorca, Spain. It sold those rooms under a December 30, 2005 sales and marketing agreement. Visantilla's business [page279] activities consist of the sale of hotel rooms to arm's-length travel wholesalers, such as Thomas Cook Canada Ltd. ("Thomas Cook").

[12] Under the sales and marketing agreement, which was a contract concluded in Mexico, the owner granted Visantilla the right to sell and market 1,100 hotel rooms. The affidavit evidence establishes that that block of rooms for 2006 was sold by Visantilla to Thomas Cook and other travel wholesalers. Relative to this particular case, the affidavit evidence shows that Visantilla entered into an agreement in Mexico with Thomas Cook, operating as "Sunquest Tours" ("Sunquest"), for the period November 1, 2005, to April 30, 2006. There was an allotment of 277 rooms of those 1,100 rooms at the Hotel that were thereby made available for purchase by Thomas Cook's travelling clientele across Canada.

[13] Once the rooms were sold by Visantilla to Thomas Cook and others, the Hotel removed itself from the process of selling its hotel rooms to potential travellers. At that point, the rooms had been fully paid for by Visantilla, regardless of whether the travel wholesalers who bought the rooms from it, such as Thomas Cook, were successful in marketing those rooms to Canadian or other tourists around the world. If Thomas Cook was unsuccessful in selling rooms at the Hotel to its Canadian clientele, the loss would be its loss alone to bear. The Hotel had already received its proceeds for the sale of its rooms.

[14] In Canada, Sunquest Vacations took those rooms and packaged them with airfare, ground transportation and other goods and services, such as excursions. It then marketed that aggregation of goods and services as "all-inclusive vacation packages". However, it was up to Thomas Cook and Sunquest alone to decide how to promote and market those vacation packages, and it was Thomas Cook and Sunquest Vacations who sold a Mexican vacation package through its controlled agency, Belair Travel, in Toronto to Suzanne Haufler's friend, Ms. Sandra Mulcahy, in March of 2006.

[15] The affidavit evidence establishes that the Hotel did not receive any payment from any of the plaintiffs for the purchase of the plaintiffs' Sunquest Vacations travel package. The contract for the plaintiffs' travel package, as well as all discussions and prior representations, occurred between two parties that are not litigants in this action, Ms. Mulcahy and Thomas Cook or Sunquest Vacations through the Belair agency. The Hotel had no role in any representations made to the plaintiffs, had no involvement in any negotiations and did not participate in the conclusion of any travel contract with them. [page280]

[16] Significantly, Rancho Tours, the agency responsible for the ATV excursion purchased by the plaintiffs during which Angela Haufler sustained her injuries, had no relationship with the Hotel. Paragraphs 7 to 12 of the affidavit of Angel Navarro, the area delegate, who was effectively the hotel manager, sworn October 19, 2012, shows that there was a total legal separation between the Rancho Tours excursion and the Hotel. Mr. Navarro's evidence shows that no contract or legal connection existed between them.

[17] However, it is true that the excursion was purchased after the plaintiffs arrived at the Hotel, and not as part of the initial vacation package purchased from Sunquest. The moving party, the Hotel, say that excursion was sold to the plaintiffs by a Sunquest representative, but the plaintiffs claim that the excursion was purchased from someone else operating a booth in the Hotel lobby on the mezzanine. They assert this person was either a representative of the Hotel and/or sold the excursion as a Hotel sponsored or approved activity. Nonetheless, and regardless of which of those alternatives were the case, it is not disputed that the ATV excursion itself was purchased in Mexico. Thus, to the extent that the existence of a contract for that excursion is relevant to the plaintiffs' claim, the contract was formed in Mexico and not in Ontario.

[18] Beyond that, however, the Hotel insists that it had no involvement with the contract entered into by the plaintiffs for the ATV excursion, and that it did not sponsor or participate in the ATV excursion in any way. It was Mr. Navarro's affidavit evidence that the Hotel did not contract with the local operators, such as Rancho Tours, and that it had no control or involvement in how local excursions were operated. Moreover, and importantly to my mind, the excursion operated off-site. It was not run on any property owned, operated, controlled or maintained by the Hotel. Further, Mr. Navarro gave evidence that the Hotel did not employ Rancho Tours, or any individuals associated with Rancho Tours, nor did it receive any compensation in respect of any ATV excursion that might have been purchased by the plaintiffs, even if the location of that purchase was a booth located in the mezzanine lobby of the Hotel.

[19] Counsel for the defendant Hotel argued before me that the affidavit evidence of Mr. Navarro, and the other senior Hotel Riu representative, Armin Kaestner, sworn October 26, 2012, was uncontradicted. However, this position was adamantly opposed by counsel for the plaintiffs.

[20] It is true that the plaintiffs did not conduct any cross-examination of the defendant Hotel Riu's affiants, Mr. Navarro [page281] and Mr. Kaestner. However, counsel for the plaintiffs insists that it is incorrect to say that the evidence is uncontroverted. Rather, he takes the position that the defendant Hotel should be penalized from an evidentiary perspective because counsel for that defendant made it impossible for the Hotel representatives to be cross-examined.

[21] Mr. Navarro resides in Mexico. Mr. Kaestner is the vice president of sales and contracting for Riu Hotels & Resorts Caribbean and Mexico. He resides in the Dominican Republic. The defendants agreed to produce these representatives of the Hotel for cross-examination by videoconference, but the plaintiffs would not agree to cross-examine using that format, allegedly because of the cost involved which they would be made to bear. Instead, counsel for the plaintiffs submitted a series of questions, 15 for Mr. Navarro and 18 for Mr. Kaestner.

[22] While the plaintiffs' counsel acknowledges that Mr. Kaestner dealt with some of the questions that were put to him, he argued that the defendant's counsel nonetheless improperly blocked his right of cross-examination. The plaintiffs ask me to draw an adverse inference against the evidence of Mr. Navarro and Mr. Kaestner on the basis that their right of cross-examination was improperly blocked by the defendant's unwillingness to pay for the costs of videoconferencing. They allege this resulted in a less satisfactory process of interrogation.

[23] Respectfully, however, I do not draw any adverse inference against the defendant Hotel on that basis. I do not accept that the plaintiffs' rights to cross-examine have been interfered with by the defendant's position. Rule 39.02(4)(b) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] stipulates that a party who cross-examines on an affidavit is responsible for the costs of that cross-examination as incurred by the adverse parties, regardless of the outcome of the proceeding, unless the court orders otherwise. It seems to me that the rule specifically contemplates that the costs associated with cross-examining these affiants on their affidavits were costs that should fall to the plaintiffs. Those costs could have involved the cost of travelling to either Mexico and the Dominican Republic to cross-examine the deponent's there, but instead, the defendants offered to make their deponents available through a video examination.

[24] While no evidence was put before me on this hearing about the relative costs, I cannot imagine that the cost of the proposed video cross-examination would not have been materially less than the cost of counsel travelling to and attending at a remote location for the purposes of cross-examination. Moreover, the foreign defendant is entitled under Canadian law to bring a [page282] motion seeking an order to stay this action on the basis that this court has no jurisdiction over it. Just because the plaintiffs have commenced their action in Ontario does not mean that all costs associated with that action, including the costs of producing a foreign defendant's witnesses for cross-examination on a motion such as this must be provided to the plaintiffs here in Ontario and free of charge.

[25] If counsel for the plaintiffs concluded that the cost of a video cross-examination session was too high to justify it, and I emphasize that there is no evidence of that other than counsel's proclamations before me, then it was open to the plaintiffs to adopt less costly methods of obtaining a form of cross-examination, as they did here, by submitting written interrogatories to the two deponents on the contents of their affidavits, and receiving their answers in reply.

[26] To my mind, proceeding in this way was a decision that was made, either as a strategic matter by counsel for the plaintiffs for whatever reason, or based on economic dictates by the plaintiffs to their counsel. However, it provides no basis for any adverse inferences to be drawn against the defendants, even if it may be true that the affidavit evidence of those deponents is plainly not entirely uncontested.

[27] I accept the evidence of the two deponents concerning the existing legal relationships relative to the sale of hotel rooms through Visantilla to Thomas Cook, to be sold by its emanation, Sunquest Vacations, after repackaging and marketing, and that those contracts were formed outside of Ontario. Also, for the purposes of determining the appropriate forum rather than liability, I accept the evidence of the deponents that the person who sold the excursion to the plaintiffs was not likely either a hotel employee or agent, and that there was no legal relationship between the ATV excursion provider, Rancho Tours, and the Hotel. Whether the Hotel could face liability on some other ground will remain to be determined at trial on the entirety of the evidence adduced at that time.

Does the Hotel Carry on Business in Ontario?

[28] This factual background frames the focus of the Hotel's motion to stay this action in Ontario. The defendant Hotel claims that none of the four presumptive factors are present here that can connect the Hotel to Ontario under the analysis mandated by Van Breda. The plaintiffs agree that three of those four presumptive connecting factors do not apply here.

[29] In sum, it is agreed that jurisdiction cannot be asserted by Ontario in this particular case because (i) the alleged tort [page283] occurred in Mexico; (ii) there is no contract of relevance connected to the matter in dispute to which the Hotel is a party tying the hotel to Ontario, and if there was, it was made in Mexico, not in Ontario; and (iii) the Hotel is a resident and domiciliary of Mexico. That leaves the final Van Breda factor to be considered -- whether the foreign defendant carries on business in Ontario.

[30] The plaintiff claims that the court should exercise jurisdiction over the Hotel on the basis that the Hotel carries on business in the Province of Ontario. The burden to establish the requisite degree of connection lies on the plaintiffs. If they do establish that the foreign defendant is carrying on business here, then the existence of a real and substantial connection is presumed. That will allow the court to assume jurisdiction on a prima facie basis, unless this defendant can rebut that presumption by demonstrating that the connection is weak, or more importantly that it does not point to a real connection between the subject matter of the litigation and Ontario.

[31] The defendant Hotel denies that it carries on business in Ontario, on its own or through any agency relationship. It insists that there is no connection between the Hotel and Ontario, let alone a real and substantial connection. Accordingly, recognizing the principles of private international law and Canadian constitutional restraint, it insists that there is no basis upon which an Ontario court should assume jurisdiction over the Hotel.

[32] However, the plaintiffs make four principal arguments in support of their position that the Hotel is connected to Ontario by reason of carrying on business here:

(i) that the extensive advertising conducted in Ontario relative to the Hotel establishes the existence of the fourth connecting factor. That advertising by Sunquest Vacations allegedly entices Canadian vacationers to come to the Hotel in Mexico and to participate in all that it has to offer, including extracurricular excursions. The plaintiffs argue that those advertising activities constitute the carrying on of business in Ontario by the Hotel;

(ii) that the active presence in Ontario from time to time of a business development manager responsible for the marketing of the worldwide chain of "Hotel Riu" branded properties in Canada constitutes the carrying on of business in Ontario by the Hotel;

(iii) that the activities of Thomas Cook in Ontario relative to selling vacation packages to the Hotel constitute the carrying [page284] on of business in Ontario of the Hotel itself through an agent; and

(iv) that the existence of an Internet website where Ontario resident vacationers can now book their all-inclusive vacation packages at the Hotel constitutes a business presence of the Hotel in Ontario that amounts to carrying on business under the test in Van Breda.

[33] Returning to the general principles that govern whether the defendant Hotel carries on business in Ontario, I turn now to para. 87 of Van Breda. Justice LeBel acknowledged that carrying on a business in a jurisdiction is an appropriate connecting factor, but he also expressed caution relative to the problems this line of inquiry may create:

Carrying on business in the jurisdiction may also be considered an appropriate connecting factor. But considering it to be one may raise more difficult issues. Resolving those issues may require some caution in order to avoid creating what would amount to forms of universal jurisdiction in respect of tort claims arising out of certain categories of business or commercial activity. Active advertising in the jurisdiction or, for example, the fact that a website can be accessed from the jurisdiction would not suffice to establish that the defendant is carrying on business there. The notion of carrying on business requires some form of actual, not only virtual, presence in the jurisdiction, such as maintaining an office there or regularly visiting the territory of the particular jurisdiction. But the court has not been asked in this appeal to decide whether, and if so, when e-trade in the jurisdiction would amount to a presence in the jurisdiction. With these reservations, "carrying on business" within the meaning of rule 17.02 (p) may be an appropriate connecting factor.

[34] Since the decision in Van Breda, two Ontario cases have considered the meaning of "carrying on business" in this context. Both are directly relevant to the question on this motion whether the Hotel carried on business in Ontario. The decision of Goldstein J. in Colavecchia v. Berkeley Hotel Ltd.[^2] is a case very similar to this one, as is the decision of Belobaba J. in United States of America v. Yemec.[^3]

[35] In Colavecchia, an Ontario resident made an online room reservation for the Berkeley Hotel in London, England, through his TD Visa credit card travel rewards program. The hotel did not have an office or employees in Ontario, and there was no [page285] evidence that it marketed its services specifically to Ontario residents. It was simply one of the many hotel choices that came up online if one did a search on the TD Visa Travel Rewards website. While staying at the Berkeley Hotel, the plaintiff slipped and fell in the bathroom.

[36] Goldstein J. found that the hotel was not carrying on business in Ontario. At its highest, TD Travel Rewards was merely a booking agent of the Berkeley Hotel. Indeed, he noted that the possibility of foreign businesses establishing websites on their own or through other programs to permit travellers to make bookings, such as bank-related customer rewards programs, specifically allowed the foreign defendant not to be required to carry on business in the foreign jurisdiction in order to attract clientele.[^4] Moreover, he found that no contract existed between the Berkeley Hotel and the plaintiff, but concluded instead that the only contract present existed between the plaintiff and TD Visa, since they were the contracting parties to the hotel booking.

[37] In Yemec, the court made the important distinction between an extra-provincial business doing business in Ontario and carrying on business with an Ontario-based plaintiff. In that case, the defendant was the New Brunswick-based Atlantic Lottery Corporation, a company that ran various national lotteries and oversaw authorized lottery ticket retailers in the Maritime provinces. The plaintiffs worked with one such authorized dealer, namely, the Lottery Store. The plaintiffs' company would repackage lottery tickets and sell shares in these lottery pools through telemarketing to U.S. consumers. The plaintiffs' company would pay the P.E.I.-based Lottery Store for lottery tickets and the Lottery Store would then forward revenues to the ALC. Confronted with an American judgment obtained on misleading affidavit evidence enforceable on them personally, the plaintiffs sued the defendant the ALC for contribution and indemnity based on a claim of unjust enrichment. Essentially, the plaintiffs claimed they had generated more than $20 million in revenues for the ALC.

[38] However, the ALC moved for the action to be stayed on jurisdictional grounds on the basis that it did not carry on business in Ontario. ALC maintained that it had never had any establishment in Ontario, no physical presence there, did not advertise there and never sold tickets to Ontario residents. At the most, it had two employees visit Ontario for a short period of time to conduct an audit of the Ontario reseller's business operation to [page286] ensure that the sale of lottery tickets occurred in P.E.I., that the tickets remained there as required, and to verify that the plaintiff's company was complying with the applicable rules and regulations. In short, ALC submitted that apart from appointing a P.E.I.-based authorized retailer that did business with the plaintiff's telemarketing operation and insisting that the lottery tickets remain in P.E.I., the ALC had no further involvement in the plaintiff's telemarketing operation.

[39] The court declined to exercise jurisdiction and accepted that these factors were insufficient indicators that the defendant was carrying on business in Ontario. Rather, Belobaba J. found that the defendant ALC was simply doing business with an Ontario-based corporation rather than carrying on business in Ontario. Quoting from Lebel J.'s reasons in Van Breda, he added that carrying on business in Ontario requires some form of actual presence in the province and is distinct from simply doing business with Ontario-based companies.

[40] I agree with the defendant Hotel that the facts in this case are much closer to those of Colavecchia and Yemec, rather than those of Van Breda, where a connecting factor was found to be present. Van Breda was a different case because jurisdiction was found to exist owing to the physical presence that the defendant maintained in Ontario in the form of an office and a contact person. Indeed, in that case, the defendant's representative admitted that the defendant was in the business of carrying out activities in Canada.[^5] However, before concluding that the carrying on business factor cannot be said to exist here, I turn to each of the specific claims of connection made by the plaintiffs.

(i) Do the advertising brochures establish a business connection to Ontario?

[41] In Van Breda, the Supreme Court of Canada explicitly rejected the notion that the presence of advertising in Canada alone could constitute the carrying on of business sufficient to establish the carrying on business test. Justice Lebel stated as follows relative to the significance of advertising as an indicator of carrying on business in the jurisdiction:

Advertising is often international, if not global. It is ubiquitous, crossing borders with ease. It does not, on its own, establish a connection between the claimant and the forum. If advertising sufficed to create a connection with a forum, commercial organizations of certain size could be sued in courts everywhere and anywhere in the world. The courts of the victim's [page287] place of residence would possess an almost universal jurisdiction over diverse and vast classes of consumer claims.[^6]

[42] While the plaintiffs acknowledge that advertising is insufficient on its own to establish an Ontario connection, they take the view that the advertising brochures in this case went far beyond the advertising referred to in Van Breda. Suzanne Haufler obtained brochures published both by Sunquest Vacations, and more recently by another member of the Thomas Cook group, Signature Vacations, which contain substantial advertisements relative to the Hotel, which extensively detail the accommodations and benefits of staying at the Hotel. The plaintiffs also assert there were substantial efforts to target Ontario residents in particular by establishing the Hotel Riu brand as luxurious and first class, the kind of accommodation that could only be obtained at a Hotel Riu.

[43] It is important to acknowledge, however, that regardless of how persuasive the advertising relative to the Hotel and the Hotel Riu brand may have been, as contained in the brochures produced by Signature Vacations that was before the court, it was not the advertising that persuaded Ms. Haufler to take the trip to the Hotel in March 2006, but rather the fact that she had previously stayed at a Hotel Riu elsewhere on another trip.

[44] The plaintiffs insist that the type of advertising referred to here is not what caused the Supreme Court to express concern or caution that advertising not become an open door to universal legal jurisdiction. Rather, the plaintiffs say that these brochures were distributed by Thomas Cook solely within Canada and not globally. Indeed, they note that the language contained in the advertisements cheekily ventured to describe Hotel Riu as possibly being "Canada's number one resort?"

[45] Moreover, the plaintiffs seek to associate the advertising with the Riu chain of hotels by noting that Mr. Kaestner acknowledges in his supplementary affidavit that when Thomas Cook prepared a brochure directed towards Ontario or Canadian residents, that Hotel Riu would review a draft of the information to be included. Indeed, Suzanne Haufler claimed, in para. 12 of her affidavit, that "[the brochure] displayed . . . the exact nature of the accommodation . . . This is something we relied upon at the time of booking our trip."

[46] The defendant Hotel argues that the advertising issue itself is irrelevant to the jurisdictional analysis based on the caution expressed by the Supreme Court in Van Breda that a [page288] business connection cannot be established solely on the basis of advertising. Nevertheless, even if it could be an influential factor in combination with other indicators of connection, there are further problems with the plaintiffs' assertions. Their assertions relative to the advertising being directly carried out by the Hotel are inaccurate and misleading based on the examples filed with the record. This is so not only relative to content but also timing, since at the time of the injury sustained by Angela Haufler, the Hotel and the Hotel Riu chain did not advertise in Ontario at all. The only advertising carried out in Ontario at that time, even if it was relative to hotels and resorts contained within and operated under the Hotel Riu brand, was carried out by Thomas Cook or Sunquest Vacations, or later Signature Vacations, and other international travel wholesalers. Advertising carried out by those travel wholesalers existed to assist them in marketing the rooms that they had legally purchased from the Hotel, and which they alone had the legal power to sell to travelling consumers in Canada and elsewhere. Moreover, as noted, the advertising had little or no impact on the decision of the plaintiffs to stay at the Hotel.

[47] Further, I found other aspects of the interpretation the plaintiffs sought to attribute to this advertising evidence to be less than persuasive, and potentially misleading. It is not surprising to me that Mr. Kaestner would indicate in his affidavit that Thomas Cook would "ask Hotel Riu (i.e., the Hotel Riu and Resort chain) to review a draft of the information to be included" in the advertising brochures. However, in my view the assertion that his statements contradict the evidence of Mr. Navarro, when he said that the Hotel played no role whatsoever in any representations made to the plaintiffs, is an overreaching by the plaintiffs when looked at in context. Mr. Kaestner operates at an executive level in the Riu corporate group. Surely, it is at that level, and not at the level of the local resort manager, that a review of draft advertising would be conducted. For this reason, it is not surprising that Mr. Kaestner would be aware and Mr. Navarro would not.

[48] Neither is there any contradiction between Mr. Kaestner's acknowledgment that the Hotel Riu group reviewed "drafts of information" relative to the various hotels in the Hotel Riu chain that were offered by Signature Vacations and that were included in the 227-page vacation brochure that was produced before this court, and his earlier statement that the advertising was carried out by Thomas Cook. One would expect that when Thomas Cook, or its various alter egos, produced such a massive document of the various "all inclusive vacations" on offer, it would want to ensure that it was not creating a problem for itself [page289] contractually by describing accommodations or services available at any of the Riu hotels inaccurately. Stated plainly, Mr. Kaestner strongly dismisses the plaintiffs' claim relative to advertising, at para. 9 of his affidavit:

In paragraph 11 of the Suzanne Haufler's Affidavit, Ms. Haufler speculates that Hotel Riu created and published brochures. This is not correct. At no time did Hotel Riu create, publish or distribute any marketing brochures. As indicated above, it was up to Thomas Cook to decide how to promote and advertise its vacation packages that it created. In 2006 and before that time, Thomas Cook would publish and distribute brochures on its tour packages. This was done for its' own business purposes and was not initiated or directed by Hotel Riu. At no time did Hotel Riu pay for or contribute towards the publishing of the brochures, and there was no marketing agreement in place between Hotel Riu and Thomas Cook for the publication or distribution of any brochures.

[49] Further, even beyond this denial, to assert that the brochures, of which the Signature Vacations brochure is an example, constitute direct advertising by the Hotel itself or the Hotel Riu chain, seems to me to be overreaching and factually incorrect, based on the brochure's contents. The particular Signature Vacations brochure is 227 pages long -- hardly a brochure. It refers to and describes the accommodations and amenities at 33 Riu brand hotels and resorts located in Mexico and the Caribbean islands.

[50] For example, at pp. 26-27 of that Signature Vacations travel book, reference is made to "Riu-topia", but it is described as "Canada's favourite all-inclusive resorts. Exclusively from Signature Vacations for you!" (my emphasis). Thirteen of these are "Riu Palace Resorts" made available "Exclusively from Signature." In promoting that chain of hotels, the operative principal advertiser is plainly Signature Vacations. Further, I note that in that same travel book, Signature Vacations lists and describes vacations and accommodations at a total of 96 other hotels that are individually owned, or owned and offered by other hotel chains such as Radisson, Hyatt, Westin Hotels, Wyndham Hotels, Couples Resorts and Sonesta Resorts, among others.

[51] I find that the Hotel did not carry out any advertising on its own in Ontario at the time that these plaintiffs purchased the vacation in question. Any such advertising was carried out by Thomas Cook, or by Sunquest Vacations (or later by Signature Vacations), in order to market vacation packages put together after purchasing rooms from the Hotel. I find that the Hotel did not create, publish or distribute any marketing brochures, and that it did not pay or contribute towards the publishing of brochures. Neither did it have an agreement in place with the travel wholesalers, such as Thomas Cook, for the publication or distribution of brochures. In short, the existence of [page290] the advertising brochures that the plaintiffs allege are persuasive in this case do not establish the requisite business connection to Ontario and, as such, the plaintiffs have not discharged their burden of establishing that the Hotel carries on business in Ontario.

(ii) Does the presence in Ontario of any Hotel Riu representatives to market and solicit business establish a business connection to Ontario under the Van Breda test?

[52] The plaintiffs claim that the Hotel hired representatives to travel to Ontario and other locations to promote "the Hotel". It notes that Mr. Kaestner deposed in his affidavit that Ms. Nova-Lee Black, an employee of Solar Solimanche S.A. de C.V., travelled to Canada four to six times a year, for a total of about 60 days, and spent about 14 days in Ontario "to market the Hotel Riu brand" by attending trade shows and visiting travel agencies. Solar Solimanche is a Mexican company, located in Cancun, Mexico, that markets Hotel Riu hotels and resorts in Canada and the United States. Ms. Black is responsible for marketing in Canada of all of the international Hotel Riu properties. She works primarily out of her office located in Merida, Mexico.

[53] The plaintiffs observe the Supreme Court noted in Van Breda that along with advertising campaigns, there would need to be additional links to Ontario in order to establish a business connection to Canada. There, relative to the Charron plaintiffs, the owner of the foreign hotel had entered into a management agreement with the foreign defendant and, as a result, was required to market the hotel in Ontario. In order to fulfill the obligation, that entity had representatives travel regularly to Ontario to promote the hotel. On this basis, the court held that the resort conducted significant commercial activities in Ontario because it was directly involved in activities to solicit business. Here, the plaintiffs claim that Ms. Black serves an equivalent capacity in Ontario for the Hotel defendant.

[54] I disagree. I reject that the limited presence of Ms. Black in Canada, and more limited presence in Ontario, establishes that the Hotel carried on business in Canada for the purposes of the Van Breda test. Ms. Black does not act for and is not a representative of this Hotel specifically. The evidence indicated that Ms. Black does not visit Ontario on every trip, and that she generally stayed only two to three days in Ontario on trips to Canada when she did visit Ontario. Her purpose in coming to Canada was to attend trade shows, to attend product launches, to spend time visiting various travel agencies and wholesalers, such as Thomas Cook and its emanation, Sunquest, who are in the business of [page291] selling repackaged products, such as Belair Travel. Her job for her employer, a Spanish company that markets the international Hotel Riu brands, is to market the resorts and hotels operated in the Caribbean and Mexico under the Hotel Riu brand.

[55] At the most, this amounts to a Spanish company that owns the Hotel Riu trademark, as distinct from the Hotel defendant in this case, contracting with a third party to visit Ontario for a few days a year to market the Hotel Riu brand to travel wholesalers, and to attend occasional trade shows. Here, there is even less presence in Canada or Ontario than that of the Atlantic Lottery Corporation auditors of the Yemec agency who spent a total of two weeks present in Ontario, reviewing its entire business operations, but which Belobaba J. concluded could not constitute the carrying on of business in Ontario.[^7] In my view, the quality of connection contemplated in the Van Breda test requires more than this occasional visitation and solicitation relative to the promotion of the international chain of Riu Hotels and Resorts.

(iii) Does the Hotel have a real and substantial connection to Ontario through agency relationships in Ontario?

[56] The plaintiffs contend that the Hotel acted as a principal in an agency relationship with Thomas Cook through representations that were made by Thomas Cook and its emanations to prospective travellers in Ontario. It claims that Canadian law supports the legal proposition that the requirement of apparent authority can be found in a principled representation by an alleged principal to third parties that it intends to be bound by the acts of the imputed agent.[^8]

[57] In Ontario College of Pharmacists v. 1724665 Ontario Inc.,^9 as in this case, there was no express agency agreement between the alleged principal and agent. However, Wilson J. of this court recognized, as White J. noted almost 30 years earlier in Gardner v. Ontario,[^10] that the existence of a principal agency relationship need not be publicly proclaimed or explicitly stated. Rather, the manner in which the parties conduct themselves as [page292] a matter of factual record will more likely be determinative of whether the parties have created an agency relationship between themselves. A careful focus on the factual record of their dealings and, in particular, whether the party who is alleged to be agent can enter into binding contracts on behalf of the principal, will enable the nature of the parties' relationship to be characterized. In the end, Wilson J. concluded that the key distinction between an agent and an independent contractor will depend on whether the party who is said to be an agent can enter into binding contracts on behalf of the alleged principal.

[58] Similar concepts are used in the international taxation context to determine whether a non-resident enterprise may be considered to be carrying on business in Canada and thereby become subjected to Canadian taxing jurisdiction. In the context of international taxation treaties, the conception of "permanent establishment" is employed to resolve the issue of taxing jurisdiction between competing sovereign states. A permanent establishment is generally defined as an office, or other business location displaying elements of permanence. Relative to the concept of agency, however, the permanent establishment concept brings into play elements of intention, permanence and the presence of contracting authority by the agent in Canada before Canada can acquire taxing jurisdiction -- the mere presence of independent agents in Canada or the presence of advertising, the supply of information or other similar activities having a preparatory or auxiliary character are inadequate to constitute a permanent establishment in Canada of the foreign enterprise.[^11] These are the same elements that are key to whether an agency relationship exists under the law generally and under Van Breda, and if it does, whether the foreign entity carrying on business in Canada does so through the auspices of the agent.

[59] The plaintiffs rely on Ontario College of Pharmacists for the proposition that the existence of agency can be established where there is merely the appearance that an entity can sell products on behalf of the principal. In that case, the court held there to be an apparent agency relationship because representations were made to third-party consumers that the agent was entitled to sell them medications. Here, the plaintiff claims that similar circumstances exist. In particular, the plaintiffs claim that Thomas Cook conveyed the appearance to prospective travellers that it was acting on behalf of them and Riu Hotels in [page293] selling its hotel rooms. The rooms were featured in advertising brochures using the Riu Hotels logo, even if plainly published by Sunquest Vacations, or Signature Vacations, rather than Riu Hotels, and the brochures contained a very extensive description of the terms and features of a stay at one of the hotels. Indeed, the plaintiffs take the position that the brochure advertisements were presented to appear as if they were prepared on behalf of the Hotel rather than Thomas Cook, Sunquest Vacations or Signature Vacations.

[60] However, there is a fundamental difference between Ontario College of Pharmacists and the case at bar. Contrary to the position of the plaintiffs, under the principles established by the Ontario College of Pharmacists and other relevant decisions, I find there is no agency relationship between Thomas Cook or any of its emanations, and the Hotel, which could cause it to be regarded as carrying on business in Canada. That relationship cannot be present here due to an absence of the critical ingredient of authority:

Authority is at the core of agency, and results either from actual authority, from an agreement that the agent can bind the principal, or from apparent or ostensible authority, from a principles representation to third parties that it intends to be bound by the agent's acts[.][^12]

(Citation omitted)

[61] Plainly, representations have been made by Thomas Cook and Sunquest Vacations to their customers and clientele. Based on the evidence, it is equally plain they have communicated with the Hotel and other hotels whose accommodations they offer before making those representations to ensure that a factually accurate description of each particular hotel, its accommodations, its services and its amenities is presented in Thomas Cook's marketing materials. This does not, however, establish Thomas Cook as an agent of the Hotel or indeed of any of the hotels that are featured in its marketing materials. Neither is there any cogent evidence of ostensible authority present here. In order for an apparent or ostensible agency relationship to exist, the principal must make representations relied upon by the third party, not the agent.[^13]

[62] The circumstances here are not materially different from those before Goldstein J. in Colavecchia. There is no actual [page294] authority because the evidence relative to the contracts shows that the Hotel has engaged in an outright sale of rooms to Thomas Cook. Subject to each of them having an equal interest in ensuring the factual accuracy of information provided to prospective travellers, the Hotel has left the packaging and marketing of those rooms entirely to the discretion of Thomas Cook. It has not created agency relationships between itself and Thomas Cook relative to the sale of all inclusive vacations. Rather, in the context of this case, Thomas Cook and its emanations act as independent contractors.[^14] They have purchased rooms from the Hotel and other hotels in the Riu group, and indeed from hotels operated by other hotel operators in the course of carrying on their business as travel accommodation wholesalers.

[63] The presence of an agent in the jurisdiction can only cause a foreign principal to be considered to be carrying on business in that jurisdiction in circumstances where the agent has contracting authority on behalf of the non-resident entity, as opposed to in its own capacity as principal. Here it is plain that neither Thomas Cook nor its vacation related entity at that time, Sunquest Vacations, has any legal authority or capacity to bind the Hotel. They can sell nothing more than what they purchased from the Hotel. They purchased spaces in hotel rooms for a particular period of time. It was through their action, not the actions of the Hotel, that the all-inclusive vacation packages were created and sold to vacationers and tourists in Canada. I am not persuaded that the Hotel should be considered to be carrying on business in Canada by reason of the existence of an agency relationship between it and any of the Thomas Cook entities.

(iv) Is the Hotel carrying on of a business in Ontario through its Internet website?

[64] The plaintiffs' final line of argument against the defendants' motion to stay this action in Ontario relates to a claimed virtual presence of the Hotel in Ontario adequate to meet the requirements of Van Breda. It focuses on the development of the Internet, and the existence today of Internet websites as locations from which potential travellers located in Canada may access hotel, transport, activity and accommodation packages. [page295]

[65] At para. 87 of Van Breda, as noted above, at para. 29, LeBel J. raised the prospect of a virtual presence amounting to the carrying on of business by the foreign defendant in the Canadian jurisdiction. He observed, and I paraphrase to relate his observation to these circumstances, that the fact that a website relating to a hotel might be accessed from Ontario would not suffice to establish that a hotel is carrying on business here. In this regard, he emphasized that the notion of carrying on business requires actual, not only virtual, presence in the jurisdiction. However, he also noted rhetorically that the court had not been asked in that case to decide whether e-trade in Ontario might amount to a presence here.

[66] Here, the plaintiffs include a reference to a website known as "Travelzoo", which arranges worldwide hotel and special lodging deals for travellers in Canada and the United States. Counsel for the plaintiffs notes that if one visits that site, and views the hotel and vacation options, it provides access to a message instructing the viewer to "[c]lick here to book on-line at Hotel Riu Palace Cabo San Lucas". They included printouts from that website for February 29, 2012 and March 14, 2012 in their record.

[67] The plaintiffs also put forward the existence of a Hotel Riu website, <www.riu.com>, as evidence of the defendants business presence in Canada, which the plaintiffs claim is the type of e-trade to which LeBel J. alluded, at para. 87 of Van Breda, and which they say should be construed by me as amounting to the carrying on of business in Canada by Hotel Riu.

[68] There are several problems with this line of argument. The first is that the existence of the presumptive connecting factors between the foreign defendant and a jurisdiction such as Ontario as contemplated in the Van Breda decision is not an inquiry made in a vacuum or unrelated to the subject matter of the litigation. Indeed, the very question that the Van Breda analysis seeks to answer is whether there is one of the four presumptive connecting factors present to permit the assumption of jurisdiction over a party, but only specifically in relation to the subject matter of the litigation.

[69] The subject matter of this litigation is the injuries that were sustained by Angela Haufler in March 2006 while engaged in an ATV excursion off-site of the Hotel where she, her mother and her friends were vacationing. To my mind, that is the time frame that is engaged in this analysis, not whether Hotel Riu has a website in 2012, or whether travellers in Canada and the United States can make direct online bookings in February or March of 2012 to stay at Hotel Riu in Mexico using travel booking websites such as Travelzoo or any number of [page296] other travel-focused websites, such as TripAdvisor.com, Expedia.com and others.

[70] Relative to the time frame in which the subject matter of this litigation occurred, however, I accept the affidavit evidence of Mr. Kaestner, as set out at paras. 13 and 14 of his supplementary affidavit sworn June 6, 2013. In those paragraphs, Mr. Kaestner emphasizes, as he had previously indicated in his October 26, 2012 affidavit, that the Hotel Riu's website was not available prior to 2010. In fact, he is emphatic that the Hotel did not sell any rooms directly to tourists in 2006, but rather, all rooms were sold to a travel wholesaler. In 2006, he states plainly that the plaintiffs would not have been able to access Hotel Riu through a webpage such as that which was included as an exhibit to Suzanne Haufler's affidavit. References in her affidavit to Travelzoo and its website where foreign hotel rooms and vacations can be booked online from the comfort of one's home in Ontario have no relevance in this case for the same reason. Hotel Riu did not sell or advertise on the Internet in 2006 or before that time, directly or indirectly.

[71] In my view, the availability in 2012 of online booking facilities for Hotel Rio vacation properties in Mexico or at any time after the relevant period in 2006 during which Angela Haufler sustained her injuries is of no relevance to the question of whether the fourth of the connecting factors contemplated in Van Breda provides a presumptive foundation for this court to assume jurisdiction over the Hotel as a foreign defendant. I accept that a foreign defendant could potentially be subjected to Ontario jurisdiction if it was carrying on trade in Ontario through the use of electronic means, or through e-trade, as LeBel J. described it. However, in the context of this case where the injuries sustained by the plaintiffs are alleged to have occurred in March 2006, before the foreign defendants had any direct or indirect electronic presence in this jurisdiction, I see no basis upon which the existence of electronic presence six years after the events in question could establish the connecting factor necessary to permit this court to assume jurisdiction.

(v) Summary of carrying on business analysis

[72] As noted in the preceding sections, I have found that none of the four separate grounds advanced by the plaintiffs supports their contention that the Hotel carries on business in Ontario for the purposes of establishing a presumptive connecting factor as required in Van Breda that could permit this court to assume jurisdiction over that foreign defendant. In my view, there is no meaningful difference between the circumstances in this case [page297] and those that were in front of Goldstein J. in the Colavecchia case, where the Ontario plaintiff entered into a contract for the hotel room with his bank travel rewards program, an entity that was plainly unrelated to and totally independent of the hotel.

[73] Further, it is important for the sake of completeness to note that a case involving factual circumstances virtually identical to the present has already been decided by this court in Wilson v. Riu.[^15]

[74] In that case, the injured plaintiff's travelling companion had booked a vacation with Thomas Cook, operating under the "Sunquest" trade name, through Thomas Cook's travel agency, Belair. As in this case, Thomas Cook had purchased an allotment of rooms at a Hotel Riu in Jamaica and packaged it together with air and ground transportation. After checking into the hotel, the plaintiff booked and purchased an off-site excursion for horseback riding made through a person who was permitted to maintain a desk in the lobby of the hotel to make bookings for excursions for guests of the hotel. The hotel was owned by a local company in Jamaica and managed by a Riu group of companies headquartered in Spain. As in this case, the hotel did not carry on business in Ontario and did not market its business in Ontario except through a Mexican-based independent contractor that did marketing for Riu hotels in Canada and the United States, and that had an employee visit Canada periodically for that purpose.

[75] I emphasize and acknowledge again that the case was unopposed there, but nevertheless, in those circumstances and applying the Van Breda test, Broad J. found that none of the four presumptive factors were present in respect of the hotel and the tour operator. On this basis, he concluded that the Ontario court could not have jurisdiction, and accordingly, the action was stayed. As well, Broad J. found that there was no contract "connected with the dispute". The operative contract would either have been the booking of the horseback riding excursion, or the payment for that excursion at the off-site location, but neither of those events took place in Ontario.

[76] In conclusion, on this aspect of the motion, I agree with the moving party, the Hotel, that there is virtually no connection to Ontario in this case. The tort action itself involves the alleged negligent operation of an ATV excursion in Mexico by a Mexican entity that offered the excursion in Mexico, Rancho Tours. In its [page298] action, the plaintiffs seek to attach legal responsibility for those events to this foreign defendant, the Hotel. Plainly, the tort did not take place in Ontario, and the Hotel is a resident and domiciliary of Mexico. As such, Ontario could only assume jurisdiction over this litigation under the test established in Van Breda provided one of the two remaining connecting factors applied. In order for either of those two factors to apply, a contract entered into in Ontario regarding the subject matter of this litigation would have to exist or there would need to be evidence that the Hotel was carrying on business in Ontario.

[77] However, as the foregoing analysis shows, the only contracts of relevance here were made in Mexico. There was no contract concluded in Ontario between the Hotel and these plaintiffs. Their contract was with an independent third-party, Thomas Cook or its Sunquest Vacations alter ego. Further to this, the plaintiffs have failed to discharge the burden that rests upon them alone to show on the evidence that the Hotel carries on business in Ontario. At most, as the defendants argued, a separate company which markets the Riu trademark does occasional business with the Canadian business, Thomas Cook. But even this cannot provide the necessary connection as any existing connection is unrelated to the subject matter of the litigation. Given the absence of any of the four connecting factors required by Van Breda, Ontario cannot assume jurisdiction over this litigation and the motion to stay this action is therefore granted.

Application of the Doctrine of Forum Non Conveniens

[78] Finally, the plaintiffs argue relative to the doctrine of forum non conveniens, that Ontario is the more convenient jurisdiction in the circumstances of this case. Simply put, their position is that even though all of the defendants' witnesses may be in Mexico or otherwise outside of Ontario, all of the evidence of the participants in this action relative to the damage sustained by the plaintiffs is in Ontario. This includes the evidence of her mother and the other vacationers who accompanied her, as well as the evidence of the treating physicians at the Hospital for Sick Children. Thus, they say, Ontario ought to assume jurisdiction over this case.

[79] Not surprisingly, in the event that a connecting factor had been found, the foreign defendant disputes this position advanced by the plaintiffs and argues in favour of Mexico being the more convenient jurisdiction. It does so on the basis that all of the liability evidence and witnesses in relation to the incident are located in Mexico, except the plaintiffs themselves, and there was no evidence that anyone other than Angela Haufler, who [page299] sustained the injuries, saw what took place. Further, even if it may be bankrupt and has not taken a position in this litigation, the fact is that Rancho Tours is domiciled in Mexico, and witnesses related to the Hotel are located in Mexico and other parts of the Caribbean. Further, even though there is no doubt that the bulk of the medical records relative to Angela Haufler's treatment will be found at the Hospital for Sick Children and elsewhere in Ontario, having been generated after she was brought back to Ontario very soon after the injuries were sustained, original medical records generated immediately after the incident occurred are located in Mexico.

[80] It seems likely that each of the parties can advance reasoning to support its position relative to convenience. In the circumstances of this case, it would be inappropriate to express a view on which jurisdiction might be the more convenient. Plainly, following the changed framework of analysis mandated by Van Breda, the question of convenience only arises provided that one of the four presumptive connecting factors, or some other adequate factor which might be found in the future, is found to be present. No such factor has been found to be present here and, as such, the question of relative convenience of the competing jurisdictions is moot.

Conclusion

[81] For the reasons set out above, I have concluded that this is not a case where jurisdiction can be assumed by Ontario under the new framework established in Van Breda. I have not found any connective factor adequate between the Hotel and Ontario for the purposes of the Van Breda test to be present in this case.

[82] In my view, the Hotel was not carrying on business in Canada, either on its own or through agency relationships. Even if it does carry on business with Ontarians, the legal relationships that exist between the owner of the Hotel and other relevant parties ending with Sunquest Tours at the end of the line in Canada, do not establish that it is carrying on business in Ontario. Accordingly, in the absence of any of the four connecting factors described in Van Breda, this court must decline to exercise jurisdiction over the Hotel. The defendants' motion is granted.

[83] As the successful party, the defendant Hotel is presumptively entitled to its costs of this application. It shall deliver its costs outline to the plaintiffs within 14 days of this decision. Thereafter, if the parties are unable to resolve the question of costs between themselves, acting reasonably, they may contact the court for further directions.

Motion granted.

[^1]: Club Resorts Ltd. v. Van Breda, [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, 2012 SCC 17.

[^2]: Colavecchia v. Berkeley Hotel Ltd. (2012), 112 O.R. (3d) 287, [2012] O.J. No. 3952, 2012 ONSC 4747 (S.C.J.).

[^3]: United States of America v. Yemec, [2012] O.J. No. 3956, 2012 ONSC 4207 (S.C.J.).

[^4]: Colavecchia, at para. 17.

[^5]: Van Breda, at para. 122.

[^6]: Ibid., at paras. 87 and 114.

[^7]: Yemec, at paras. 24-25 and 32.

[^8]: Ontario College of Pharmacists v. 1724665 Ontario Inc., 2012 ONSC 4295, [2013] O.J. No. 1247, 2013 ONSC 4295, 360 D.L.R. (4th) 299, at paras. 100-104.

[^10]: Gardner v. Ontario (1984), 1941 (ON SC), 45 O.R. (2d) 760, [1984] O.J. No. 3162, 7 D.L.R. (4th) 464 (H.C.J.), as cited, ibid., at para. 101.

[^11]: See art. V, paras. 5 and 6 of the Canada-United States Tax Convention Act, 1984, S.C. 1984, c. 20, as amended.

[^12]: Ontario College of Pharmacists, above, at para. 104, referring to G.H.L. Fridman, Canadian Agency Law, 2nd ed. (Markham, Ont.: LexisNexis, 2012), at para. 1.14.

[^13]: Ibid., at para. 106, and cases cited therein.

[^14]: Craven v. Strand Holidays (Canada) Ltd. (1982), 1859 (ON CA), 40 O.R. (2d) 186, [1982] O.J. No. 3599 (C.A.); Garofoli v. Air Canada Vacation, [2012] O.J. No. 3885, 2012 ONSC 4698, 6 B.L.R. (5th) 275 (S.C.J.).

[^15]: Wilson v. Riu, [2012] O.J. No. 5679, 2012 ONSC 6840, 98 C.C.L.T. (3d) 337 (S.C.J.).