Court File and Parties

COURT FILE NO.: C-1161-17 DATE: 2018-09-24 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RONALD CORMIER AND JACQUELINE CORMIER, Plaintiffs AND: GREYHOUND CANADA TRANSPORTATION ULC, 9227-9702 QUEBEC INC. c/o business as GARE D’AUTOCARS DE MONTRÉAL, AUTORITE REGIONALE DE TRANSPORT METROPOLITAIN, AQUILINI INVESTMENT GROUP INC. and JOHN DOE MAINTENANCE CORPORATION, Defendants

BEFORE: Justice D.A. Broad

COUNSEL: Gordon Harris, for the Plaintiffs David Elmaleh, for the Defendants 9227-9702 Quebec Inc. c/o business as Gare d’Autocars de Montreal, Autorite Regionale de Transport Metropolitain

HEARD: August 9, 2018

Endorsement

[1] The plaintiffs have brought an action against the defendants for damages for alleged injuries suffered by the plaintiff, Ronald Cormier (“Ronald”), arising from a fall which occurred at the bus terminal in Montréal, Québec. The plaintiff, Jacqueline Cormier, is the spouse of Ronald and advances a claim under the Family Law Act.

[2] At the time of the accident Ronald was en route by bus from Trenton, Ontario to Moncton, New Brunswick. He boarded a bus operated by the defendant, Greyhound Canada Transportation ULC (“Greyhound”), at Trenton and disembarked at the Montréal terminal, planning to transfer onto another Greyhound bus from Montréal to Moncton.

[3] The defendant, 9227-9702 Quebec Inc. c/o business as Gare d’Autocars de Montreal (“Gare d’Autocars”), operates the Montréal bus terminal and the defendant, Autorite Regionale de Transport Metropolitain, was allegedly its sole shareholder (collectively the “moving parties”) at the time of the incident.

[4] Ronald alleges that, after disembarking from the Greyhound bus at the Montréal terminal and while he was waiting for his luggage to be unloaded from the bus, he was instructed by an employee of either Greyhound or Gare d’Autocars to back away from the bus. Ronald did as instructed, fell off the concrete platform and suffered the alleged injuries.

[5] The moving parties seek an order dismissing or staying the action against them on the basis that Ontario does not have jurisdiction simpliciter and that, in any event, Québec is the more appropriate forum.

[6] Counsel for the defendant, Greyhound Canada Transportation ULC has provided a letter consenting to the relief sought in the motion and advising that Greyhound is prepared to defend the action in the Quebec court if the plaintiff intends to file there.

Basic Principles

[7] The leading authority on the question of the assumption and exercise of jurisdiction by the Court in cases involving non-resident defendants and torts or other causes of action occurring outside Ontario is the case of Van Breda v. Village Resorts Ltd., 2012 SCC 17, [2012] 1 S.C.R. 572 (S.C.C.).

[8] In Van Breda, the Supreme Court of Canada affirmed a two-stage process for deciding whether the court should assume jurisdiction over a claim. The first stage involves the determination of whether the court is entitled to take jurisdiction based on whether the claim has a real and substantial connection to Ontario (called "jurisdiction simpliciter"). If there is no real and substantial connection, the court may not assume jurisdiction. If the court is entitled to assume jurisdiction by reason of the existence of a real and substantial connection to Ontario, the second stage involves the court determining whether the party opposing the exercise of jurisdiction has met the burden of showing why the court should decline to do so on the basis of forum non conveniens.

(a) Real and Substantial Connection and Jurisdiction Simpliciter

[9] The real and substantial connection test has two stages. First, the plaintiff must show that a presumptive connecting factor, or a new presumptive connecting factor exists and second, the defendant may rebut the presumption resulting from the connecting factor by demonstrating that the presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and the forum, or points to only a weak relationship between them (see Van Breda, paras. 94-95).

[10] The Court in Van Breda identified four presumptive connecting factors in tort actions which establish a real and substantial connection between the claim and the forum, entitling the court to assume jurisdiction, as follows:

(a) the defendant is domiciled or resident in the province; (b) the defendant carries on business in the province; (c) the tort was committed in the province; and (d) a contract connected with the dispute was made in the province.

(see Van Breda, para. 90)

[11] The list of presumptive connecting factors is not closed, leaving open the possibility for the court to identify new factors which may also presumptively entitle a court to assume jurisdiction. The Supreme Court stated that a court, when considering new factors, should look to connections that give rise to a relationship with the forum that are similar in nature to the ones that result from the listed factors (see Van Breda, para. 91).

(b) Forum Non Conveniens

[12] As laid down in Van Breda, once jurisdiction is established, the burden is on the moving defendants to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff. In doing so, the defendants must identify another forum that has an appropriate connection under the conflicts rules, and must demonstrate why the proposed alternative forum should be preferred and considered to be more appropriate. (see Van Breda para. 103). The burden on the moving parties is to show that the alternative forum is clearly more appropriate. This represents an acknowledgement that the normal state of affairs is that the jurisdiction should be exercised, once it is properly assumed. The burden is on the party who seeks to depart from the normal state of affairs to show that it would be fairer and more efficient to do so and that the plaintiff should be denied the benefits of his or her decision to select the forum that is appropriate under the conflicts rules. It is therefore not a matter of flipping a coin between the two alternative jurisdictions (see Van Breda at paras. 108-109).

Positions of the Parties

[13] The moving parties submit that:

(a) there are no presumptive connecting factors that exist; (b) if there is a presumptive connecting factor the presumption has been rebutted; and (c) even if jurisdiction simpliciter is established, the Ontario court should decline to exercise its jurisdiction on the basis of forum non conveniens. Québec is clearly the more appropriate forum.

[14] The plaintiffs submit:

(a) there is a presumptive connecting factor, consisting of the contract for transportation by bus entered into between the plaintiff and Greyhound at Trenton, which is connected with the dispute; (b) the presumption resulting from the connecting factor of the contract which the plaintiff entered into with Greyhound in Ontario has not been rebutted; and (c) the court should not decline to exercise its jurisdiction as the moving parties have not satisfied their onus of showing that Québec is clearly the more appropriate forum.

Analysis

(a) Jurisdiction Simpliciter

[15] The plaintiffs acknowledge that presumptive factors (a), (b) and (c) have no application but say that presumptive factor (d) does apply as there is a contract connected with the dispute that was entered into in the Province of Ontario, namely the purchase of a bus ticket by Ronald from Greyhound for transport from Trenton to Montréal and then on to Moncton.

[16] The Supreme Court of Canada has confirmed in LaPointe Rosenstein Marchand Melancon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30, [2016] 1 S.C.R. 851 (S.C.C.) at para. 32 that all that is required for the fourth factor to apply is a connection between the claim and the contract that was made in the province where jurisdiction is sought to be assumed. A “connection” does not necessarily require that the alleged tortfeasor be a party to the contract.

[17] The moving parties submit that the plaintiffs have failed to satisfy the onus on them to prove the contract, as they have not produced a ticket that may have been purchased by Ronald from Greyhound at Trenton, and the terms and conditions of the contract have not been demonstrated.

[18] I am unable to accept this submission.

[19] Ronald deposed in his Affidavit that he met a relative in Trenton and each purchased tickets to travel by Greyhound bus at a convenience store offering Greyhound tickets. He deposed further that the tickets purchased required a quick change in Montréal and did not allow for him and his relative to stay on the same bus all the way to Moncton. He stated that, according to the tickets they purchased, he had to disembark at the Montréal Terminal, collect his luggage and get it loaded onto the new bus and board the bus for Moncton (emphasis added).

[20] As observed by Goldstein, J. in Colavecchia v. Berkeley Hotel Ltd., 2012 ONSC 4747 (S.C.J.), in order for there to be a valid contract, the elements of offer, acceptance, and consideration must be present. I am satisfied that the plaintiffs have, by Ronald’s Affidavit, established these elements. It is not necessary for present purposes that an actual paper ticket be produced. Ronald’s evidence established that the terms of the ticket required him to change buses at the Montréal Terminal and required him to disembark there, collect his luggage, get it loaded on the new bus headed to Moncton and board that bus.

[21] The fall experienced by Ronald occurred while he was waiting for his luggage to be unloaded from the bus, on which he had travelled from Trenton to Montréal. The first leg of the contract for transportation had therefore not been completed at the time of the fall. Ronald would not have been in the Montréal Terminal had he not entered into the ticket purchase contract with Greyhound (through its agent the convenience store) in Trenton, Ontario. I therefore find that there was a contract in existence which was connected to the dispute.

[22] However, that does not end the enquiry on the real and substantial connection test as the moving parties, as indicated above, may seek to establish facts that demonstrate that the presumptive connecting factor represented by the contract does not point to any real relationship between the subject matter of the litigation and the forum, or points to only a weak relationship between them.

[23] At para. 96 of Van Breda the Court gave some illustrations on how the presumption of jurisdiction can be rebutted, noting in particular that, where the presumptive connecting factor is a contract made in the province, the presumption can be rebutted by showing that the contract has little or nothing to do with the subject matter of the litigation.

[24] The litigation concerns a trip and fall which Ronald says he sustained at the Montréal terminal as a result of which he suffered injury. Although the Statement of Claim pleads that Ronald entered into a contractual relationship with one or more of the defendants where there was “a warranty, implied or express, that he would be provided with safe and competently maintained premises” carrying with it a “reasonable expectation that the defendant property would have competent staff, be properly maintained at all times, and be safe for him and other users of the property,” the pleaded particulars of negligence and breach of contract are coextensive.

[25] In my view, the observations of Mulligan, J. in the case of Cook v. 1293037 Alberta Ltd. (c.o.b. Traveller’s Cloud 9), 2016 ONCA 836, at paras. 14-15 are helpful:

Although the following case was decided prior to Van Breda, I find that the Court of Appeal's decision in Sinclair v. Cracker Barrel Old Country Store Inc., 60 O.R. (3d) 76 (Ont. C.A.) at para. 21 provides guidance:

“To require restaurant owners and operators to litigate the claims of customers wherever they reside would impose a heavy burden that is difficult to justify under the principles of order and fairness expressed in Morguard and Hunt.”

The Court of Appeal made reference to those principles again in Van Breda v. Village Resorts Ltd., 2010 ONCA 84, 98 O.R. (3d) 721 (Ont. C.A.) at para. 89, "Where the defendant confines his activities to its home jurisdiction, it will not ordinarily be subject to the jurisdiction of the forum."

[26] The plaintiffs do not rely upon express terms of the contract entered into between Ronald and Greyhound but allege that terms should be implied into the contract. However, it is noted that the obligations carried by the alleged implied terms mirror the obligations which are alleged against the defendants in negligence.

[27] To require owners and operators of commercial facilities engaged in the transportation sector, who restrict their operations to their home jurisdiction, to litigate the claims of customers or others wherever they reside, based, as in this case, upon alleged implied terms of a transportation contract to which they are not privy, would in the words of the Court of Appeal in Sinclair “impose a heavy burden that is difficult to justify.”

[28] In my view, the connection between Ronald’s contract with Greyhound, based upon alleged implied terms, and the subject matter of the dispute is too weak to support a real and substantial connection between them. On this basis the moving parties have rebutted the presumptive connecting factor represented by the contract with Greyhound and jurisdiction simpliciter has not been established.

(b) Forum Non Conveniens

[29] In light of my finding that jurisdiction simpliciter has not been established, it is not necessary for me to decide whether Ontario should be preferred and considered to be the more appropriate forum. However, based upon the evidence, had jurisdiction simpliciter been found, I would nevertheless have found Quebec to be clearly the more appropriate forum and would have declined to exercise jurisdiction.

Disposition

[30] The moving parties, in their Factum, request an order dismissing or permanently staying the action as against them. They did not urge upon me one disposition over the other.

[31] It is therefore ordered that the action be permanently stayed against the defendants 9227-9702 Quebec Inc. c/o business as Gare d’Autocars de Montreal and Autorite Regionale de Transport Metropolitain.

Costs

[32] The parties are encouraged to agree upon costs.

[33] If the parties are unable to agree upon costs, the defendants 9227-9702 Quebec Inc. c/o business as Gare d’Autocars de Montreal and Autorite Regionale de Transport Metropolitain may make written submissions as to costs within twenty-one (21) days of the release of this Endorsement.

[34] The plaintiffs may have fourteen (14) days after receipt of the said defendants’ submissions to respond.

[35] All such written submissions shall not exceed four (4) double-spaced pages, exclusive of Costs Outlines or Bills of Costs, Offers to Settle and Authorities, and are to be forwarded to me at my Chambers at 85 Frederick Street, 7th Floor, Kitchener, Ontario N2H 0A7. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

D.A. Broad Date: September 24, 2018