Court File and Parties

COURT FILE NO.: CV-15-532414

DATE: November 16, 2016

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHARBONNEAU, Plaintiff/Moving Party

AND:

FIRST CHOICE CANADA INC. et al, Defendants/Responding Parties

BEFORE: MASTER RONNA M. BROTT

COUNSEL: K. MacDonell, for the Plaintiff Fax: (416) 361-0083

A. Mazzotta, for the Defendants Sunwing Vacations Inc. Fax: (416) 368-3133

HEARD: November 4, 2016

ENDORSEMENT

[1] This action arises out of a slip and fall incident that occurred at the Memories Pariaso Azul Beach Resort located in Cayo Santa Maria, Cuba, on December 5, 2013. The plaintiff allegedly sustained serious personal injuries. The Statement of Claim alleges negligence of the defendants on the basis that they were responsible for the management of the resort.

[2] The defendant, Sunwing Vacations Inc., has brought a summary judgment motion returnable January 24, 2017, to dismiss the action as against the first three named defendants, First Choice Canada Inc., Signature Vacations Inc. and Sunwing Holdings, on the basis that they are not legal persons. Having admitted that it was the tour operator that sold the plaintiff the vacation in question, Sunwing Vacations Inc. is also seeking to dismiss the claim as against it as tour operator.

[3] The plaintiff sought to serve all of the defendants at the offices of Sunwing Vacations Inc. By email dated September 16, 2015, Sabah Mirza (“Mirza”) of Sunwing Vacations Inc. confirmed to the solicitors for the plaintiff that she was not aware of any entity entitled Sunwing Holdings, but that there was a holding company without operations called Sunwing Travel Group Inc. which was not named in the Statement of Claim. Mirza also advised them that Signature Vacations was a registered trade name of Sunwing Vacations Inc. and further, that First Choice Canada Inc. no longer existed.

[4] Neither of the defendants Blue Diamond nor Memories Resorts & Spa have been served. Sunwing Vacations Inc. delivered the only Statement of Defence in this action. It states in its Statement of Defence that it carries on business as Signature Vacations. It does not mention any of the other defendants.

The Motion

[5] There were initially two issues on this motion. The issue of production by Sunwing Vacations Inc. of a particularized Schedule “B” was resolved prior to the hearing. The only remaining issue is the plaintiff’s request for leave pursuant to Rule 39.03(1) to cross-examine Roald (Max) Veldhuis, a customer relations coordinator of Sunwing Vacations Inc./Signature Vacations. The plaintiff is seeking information with respect to the relationship between the defendants.

[6] Rule 39.03(1) states:

Before a Hearing

(1) Subject to subrule 39.02(2), a person may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of his or her evidence available for use at the hearing.

[7] The onus on the party seeking to conduct the examination pursuant to Rule 39.03(1) is a low threshold. The moving party must demonstrate that the examination would be conducted on issues that are relevant to the pending motion and that the witness is in a position to offer relevant evidence. The request for the examination must be more than a fishing expedition. The moving party must show that on the examination, there will likely be evidence obtained that is relevant to the defendants’ motion.

[8] Once the right to examine is established, that right can be displaced if the party resisting the examination can demonstrate that the examination would be an abuse of process or is being used for an ulterior or improper purpose.

[9] The plaintiff relies on an email from Mr. Veldhuis of Sunwing Vacations Inc. dated January 28, 2014 wherein he stated:

For clarification, both Sunwing Vacations and Blue Diamond Resorts are under the umbrella of Sunwing Holdings; however they are independent companies, and despite the affiliation, have no direct influence over each other’s operations. Many resort management companies do require that all inquiries regarding guests concerns go through the tour operator; however you are free to contact Blue Diamond directly, should you wish to do so.

We are currently awaiting a response from the resort’s management regarding the request for reconsideration, and will be sure to advise you as soon as we have their response. Because all resorts in Cuba are owned in the majority by the Cuban government.

[10] The plaintiff relies on a number of documents to demonstrate a link between Sunwing Vacations, Signature Vacations and Blue Diamond Resorts which, in its submission, must be determined at the hearing of the summary judgment motion. Because Mr. Veldhuis has knowledge of the facts and issues in dispute, and knows about the relationship between the defendants, the plaintiff submits that leave be granted to examine him.

[11] Sunwing Vacations Inc. asserts that the plaintiff is really seeking to obtain information in relation to the corporate structure of the defendants and of Blue Diamond specifically. It submits that its summary judgment motion does not raise any issue of the links between the defendants and that its request to dismiss the claim is not based on any link between them but rather simply because they are not legal persons who can be sued. Further, their motion to dismiss against Sunwing Vacations Inc. is based on the lack of a valid claim against it. Based on the Court of Appeal decision in Craven v. Strand, 1982 CanLII 1859 (ON CA), [1982] O.J. 3599 (Ont.C.A) where the vacation package provider arranges for the performance of services, that provider fulfills it obligations in both contract and tort, if it exercises due care in the selection of the independent contractor which provides the services.

[12] Sunwing Vacations Inc. submits that because the Statement of Claim fails to make allegations with respect to the defendants being linked or with respect to their corporate structure, issues of a corporate link or the structure are irrelevant both to the summary judgment motion and to the action. As well, the claim is silent regarding Sunwing’s alleged duty of care and/or breach thereof. The moving defendant characterizes the request to examine Mr. Veldhuis as a fishing expedition and/or simply to obtain information with respect to Blue Diamond. As Blue Diamond is not part of the summary judgment motion and nothing in relation to it is relevant to the motion, to permit Mr. Veldhuis to be examined in relation to Blue Diamond would amount to an abuse of process.

[13] The Affidavit of Joanne Dhue produced in support of the defendants’ summary judgment motion, does bring into issue the relationship between the parties named in the action. Further, Blue Diamond Hotels & Resorts shares the same LinkedIn profile address of where Sunwing Vacations Inc. was served with the claim. There is evidence of Blue Diamond Hotel & Resorts being a division of Sunwing Travel group with corporate offices in Toronto. There is also evidence of Sunwing Travel Group announcing that Blue Diamond Resorts is a subsidiary of its company, whereas other evidence indicates that it is owned by Sunwing.

[14] The threshold on a 39.03(1) motion is not high. Even though Blue Diamond is not a party to the summary judgment motion, I am satisfied that the plaintiff has established that the link between Sunwing Vacations Inc. and Signature Vacations and Blue Diamond Resorts & Hotels is relevant to the issues to be determined at the summary judgment motion. The evidence provided establishes a possible link between the defendants. As well, Mr. Veldhuis has information and knowledge about the relationship between Sunwing Vacations Inc. and Blue Diamond Resorts & Hotels and Signature Vacations. The plaintiff’s request is clearly more than a fishing expedition and given the relevance of the information sought to the issues on the summary judgment motion, it is not an abuse of process.

[15] Leave is hereby granted to the plaintiff to examine Roald Veldhuis in advance of the summary judgment motion pursuant to rule 39.03.

[16] Counsel each prepared Costs Outlines which were exchanged after the hearing. It was agreed between them that the court is at liberty to fix costs on a partial indemnity basis at the time of the release of the Endorsement. The plaintiff seeks costs in the amount of $2645.25 while the defendant’s costs outline has costs at $2822.98. Costs shall follow the event. The defendant Sunwing Vacations Inc. shall pay forthwith to the plaintiff costs fixed in the amount of $2645.25.

(original signed)__

MASTER RONNA M. BROTT

Date: November 16, 2016.