Vahle et al. v. Global Work & Travel Co. Inc.

[Indexed as: Vahle v. Global Work & Travel Co. Inc.]

Ontario Reports Ontario Superior Court of Justice Schabas J. June 13, 2019 146 O.R. (3d) 511 | 2019 ONSC 3624

Case Summary

Conflict of laws — Forum conveniens — N and M contracting with defendant to participate in "Teach in Thailand" program — Ontario residents N and M required to use motor scooters while teaching in Thailand — M being fatally injured and N being seriously injured when their scooter was struck by motor vehicle — Plaintiffs suing defendant in Ontario — Ontario being forum conveniens.

Conflict of laws — Jurisdiction — Defendant being British Columbia Company with offices in Vancouver which marketed itself over Internet — N and M contracting with defendant to participate in "Teach in Thailand" program by filling out forms online — N and M required to use motor scooters while teaching in Thailand — M being fatally injured and N being seriously injured when their scooter was struck by motor vehicle — Plaintiffs suing defendant in Ontario for damages for negligent misrepresentation and breach of contract — Real and substantial connection existing between Ontario and subject matter of action — Ontario having jurisdiction simpliciter.

The defendant, a company that specialized in working holidays, had an office in British Columbia and marketed itself over the Internet. M and N were Ontario residents who entered into a contract with the defendant to participate in its "Teach in Thailand" program by filling out forms online. The contract stated that it was governed by "the laws of Canada". N and M were required to use motor scooters while teaching in Thailand. M was fatally injured and N was seriously injured when their scooter was struck by a motor vehicle. N, her parents and M's estate sued the defendant in Ontario for damages for, among other things, negligent misrepresentation, negligence, breach of contract and breach of trust. The defendant brought a motion to stay or dismiss the action on the grounds that the Ontario court lacked jurisdiction and that Ontario was not the convenient forum for the dispute.

Held, the motion should be dismissed.

Two presumptive factors applied. The tort of negligent misrepresentation is committed where the representation is received and relied upon, which in this case was Ontario. The defendant also carried on business in Ontario, as it engaged in e-commerce in Ontario by contacting and contracting with travellers in Ontario. The presumption of jurisdiction was not rebutted. The defendant knew it was dealing with clients in Ontario, and its representatives were aware that any representations they made to N and M were received by them in Ontario. Providing that "Canadian law" would apply suggested that the defendant contemplated that it might be subject to Ontario law. There was a real and substantial connection between Ontario and the subject matter of the action. The Ontario court had jurisdiction simpliciter.

The plaintiffs and the defendant were located in Canada. Much of the subject matter of the action related to the interpretation of the contract between the parties, the duties and obligations between the parties, and the representations [page512] made by the defendant to N and M. The defendant had not demonstrated that Thailand was clearly a more convenient forum for the action than Ontario.

Cited Cases

• Club Resorts Ltd. v. Van Breda, [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, 2012 SCC 17, apld
• Google Inc. v. Equustek Solutions Inc., [2017] 1 S.C.R. 824, [2017] S.C.J. No. 34, 2017 SCC 34, 410 D.L.R. (4th) 625, [2017] 10 W.W.R. 1, 98 B.C.L.R. (5th) 1, 72 B.L.R. (5th) 100, 154 C.P.R. (4th) 1, 279 A.C.W.S. (3d) 822, 3 C.P.C. (8th) 219, affg [2015] B.C.J. No. 1193, 2015 BCCA 265, 386 D.L.R. (4th) 224, [2015] 11 W.W.R. 45, 373 B.C.A.C. 240, 75 B.C.L.R. (5th) 315, 39 B.L.R. (5th) 175, 71 C.P.C. (7th) 215, 135 C.P.R. (4th) 173, 254 A.C.W.S. (3d) 325, consd
• 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.), distd

Other cases referred to

• 2249659 Ontario Ltd. v. Sparkasse Siegen (2013), 115 O.R. (3d) 241, 2013 ONCA 354
• Breeden v. Black, [2012] 1 S.C.R. 666, [2012] S.C.J. No. 19, 2012 SCC 19
• Central Sun Mining Inc. v. Vector Engineering Inc., [2012] O.J. No. 6137, 2012 ONSC 7331, 18 C.L.R. (4th) 189, 98 C.C.L.T. (3d) 291, 224 A.C.W.S. (3d) 308 (S.C.J.)
• Eastern Power Ltd. v. Azienda Communale Energia and Ambiente, [1999] O.J. No. 3275, 178 D.L.R. (4th) 409, 125 O.A.C. 54, 50 B.L.R. (2d) 33, 39 C.P.C. (4th) 160, 90 A.C.W.S. (3d) 862
• Freshway Services Inc. v. CdEnviro Ltd., [2017] O.J. No. 5738, 2017 ONSC 6591, 21 C.P.C. (8th) 205, 285 A.C.W.S. (3d) 751 (S.C.J.)
• Haaretz.com v. Goldhar, [2018] 2 S.C.R. 3, [2018] S.C.J. No. 28, 2018 SCC 28
• Hembruff v. Ontario Municipal Employees Retirement Board (2005), 78 O.R. (3d) 561, [2005] O.J. No. 4667 (C.A.)
• Inukshuk Wireless Partnership v. NextWave Holdco LLC (2013), 117 O.R. (3d) 206, [2013] O.J. No. 4014, 2013 ONSC 5631 (S.C.J.)
• Schreiber v. Mulroney, [2007] O.J. No. 4997, 88 O.R. (3d) 605, 288 D.L.R. (4th) 661, 162 A.C.W.S. (3d) 949, 2007 CarswellOnt 8274 (S.C.J.)
• Singh v. Howden Petroleum Ltd., [1979] O.J. No. 4249, 24 O.R. (2d) 769, 100 D.L.R. (3d) 121, 11 C.P.C. 97, [1979] 2 A.C.W.S. 298 (C.A.)

Rules and regulations referred to

• Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 17.02, (f), (g)

Counsel

• Vibhu Sharma, for plaintiff.
• Elizabeth Bowker and Chris Afonso, for defendant.

SCHABAS J.: —

Introduction

[1] In the fall of 2015, two sisters, Nora and Marija Vahle ("Nora" and "Marija"), then aged 19 and 20, decided they wished to travel to Thailand and teach English there. They contacted the defendant, Global Work and Travel Co. Inc. ("Global"), a company that specializes in working holidays and which offered a "Teach in Thailand" experience. Global organized the trip for them and in August 2016, they flew to Thailand. After attending a course and [page513] obtaining a certificate to teach, Nora and Marija received job placements and began teaching. They were provided with motor scooters to get around. On one of their days off in late October 2016, while riding a motor scooter together, they were struck by a car. Tragically, Marija died within hours of her injuries. Nora survived, but suffered serious injuries. Nora and her parents commenced this action against the defendant, claiming damages for, among other things, breach of contract, breach of trust, negligence, negligent misrepresentation and other torts.

[2] The defendant now brings this motion to dismiss or stay the action on the grounds that the Ontario Superior Court lacks jurisdiction and that Ontario is not the convenient forum for the dispute. For the reasons that follow, the motion is dismissed.

[3] In my view, there is a real and substantial connection between Ontario and the subject matter of the action, and the defendant has not satisfied me that Thailand, or any other jurisdiction, is clearly a more appropriate forum for the action.

Background Facts

The parties

[4] In 2015, Nora and Marija lived in Richmond Hill with their parents, while attending Ryerson University in Toronto. At that time, Nora was 20 and Marija was 19. The two sisters were interested in travelling, having seen posters at the university for opportunities to teach in other countries. Nora contacted Global which promoted a Teach in Thailand program. Within days, Nora and Marija had contracted with Global to participate in the program for several months commencing in the fall of 2016. Nora and Marija each paid Global $3,185 to participate in the program, which did not include the price of air tickets, or travel insurance.

[5] Global is an international travel agency that facilitates cultural exchanges and working vacations. Although the parent company is based in Australia, the defendant is a British Columbia corporation and has offices and employees in Vancouver. Global's representative described the company as a "market leader across the world" in facilitating working vacations and experiences around the world. Of note, in addition to its Teach in Thailand program, it also offers working holidays in Canada, which includes placing clients in jobs in Ontario.

[6] Global markets itself over the Internet, using social media such as Facebook and Google. It has clients from across Canada, including Ontario. According to Global, its marketing is limited to the Internet, and potential clients contact them by e-mail or [page514] telephone. Global represents that it has "Destination Offices" in many countries to provide ongoing support, using partner organizations in those countries.

Nora and Marija's contact with Global

[7] Nora contacted Global on or about October 1, 2015. Over the course of several days she had conversations and e-mail exchanges with Global's employees in Vancouver. Global represented to Nora on its website, in its materials that it sent her, and in conversations that it runs programs in different parts of the world, and that it was a member of travel industry bodies in Canada and elsewhere.

[8] Global's Teach in Thailand program, sub-headed "Get paid to teach English in Thailand!" was available to individuals between 21 and 45 who met certain educational and other criteria, such as the ability to get a visa and not have a criminal record. As stated on the Global website, the trip included providing the Teaching English to Speakers of Other Languages certification (the "TESOL" course), orientation material, visa support, teaching placement, cultural orientation, airport pickup, accommodation during the TESOL course and accommodation assistance during placement, and "24/ 7" support from English-speaking staff during the program.

[9] Nora raised the fact that Marija would be under age 21 during the program, and was advised that this would not pose a problem and that it would be safe for Marija to participate. Nora and Marija requested verbally, and in their e-mails, that they be placed together and were advised that this would be the case. Following Nora's initial contact with Global on October 1, 2015, by October 7 or 8 the sisters had both completed the required online forms to participate in Global's program, and both Nora and Marija paid deposits of $595 by credit card. The approximate date of departure was September 2016, for a duration of 5 1/2 months

[10] As is common in the Internet era, the contract consisted of Nora and Marija completing forms online. Global provided that all bookings were subject to their booking terms and conditions in addition to their website terms of use. The booking terms and conditions provided that Global would help organize overseas travel arrangements, including arrival and ongoing support services. The terms provided that the "agreement is governed by the laws of Canada". Nora's affidavit states that "Global Work represented that it would ensure our living, safety, security and emergency needs." Over time, prior to departure, Gobal provided [page515] additional details of the program including arrival arrangements, the TESOL course, accommodation and placement.

[11] Nora and Marija made their own flight and travel insurance arrangements. As required by Global, they provided those details to Global which represented that the insurance details would be sent to Global's Destination Office in Thailand. As the date for departure approached, Global also provided medical and other forms to facilitate participation in teaching and also provided letters to assist in obtaining visas.

Events in Thailand

[12] Global's Destination Office in Thailand was operated by its project partner, XploreAsia Co. Ltd. ("XploreAsia"). Representatives of XploreAsia met Nora and Marija on arrival and transfered them to a hotel in Bangkok, before taking them to Hua Hin, where they took the TESOL course over the next four weeks. Toward the end of the course, Nora and Marija were advised by XploreAsia of their teaching job placements in different towns in Thailand. As well, while attending the course, they were advised that they would need to use motor scooters where they would be working. They were given a presentation on road traffic hazards and the dangers of riding motorbikes in Thailand, but received no instruction on how to use motor scooters, and were advised that they did not require licences.

[13] XploreAsia is a Thai corporation. Although it acts as Global's partner in Thailand, and its managing director, Mike Volpe, is well known to the head of Global's Canadian operation, the full scope of the relationship between Global and XploreAsia is not clear as Global refused to produce any additional records describing the relationship, including its contract with XploreAsia. Global asserts that Nora and Marija entered into separate contracts with XploreAsia, and with the entities that arranged the placements and accommodation, Matthew English Service Partnership Limited ("Matthew English"), and the entity that operates the schools, Education Guide Language Schools ("Education Guide"), which Global said are separate and independent organizations. Global did not produce contracts between these entities and Nora and Marija, other than standard forms that were sent to it by XploreAsia after this litigation commenced, which Global was told were examples of what would have been signed.

[14] Despite Nora's objections, the sisters began their teaching placements in towns about 70 kilometres apart, during the month of October. Nora was in Tak and Marija was in Kamphaeng Phet. They were provided with motor scooters by their schools. Aside [page516] from 30 minutes in a parking lot, they were given no formal training on how to use them, and received no permits or instructions on road safety laws in Thailand.

The accident and the claim

[15] On October 30, 2016, on a day off work, Marija and Nora were riding together on a scooter to Sukhotai Treasure Resort and Spa, together with other participants in the Teach in Thailand program, when they were struck by an automobile operated by a 17-year-old who failed to stop and remain at the scene of the accident.

[16] Nora and Marija were critically injured. They were taken first to Sukhotai Hospital which, it is pleaded, had inadequate facilities, but was the closest hospital and the only option because, the plaintiffs say, travel insurance details were not available. They were then transferred to Buddhachinaraji Hospital in Phitsanlok where Marija died about eight hours after the accident. Nora remained in critical condition, and, it is alleged, she and Marija did not receive adequate treatment due to the defendant's failure to provide travel insurance details to the hospital. On November 1, 2016, Nora was airlifted to Bumrungrad International Hospital in Bangkok, where she had "extensive surgeries . . . on multiple areas of her body" and "continues to deal with her injuries and is in a slow recovery process".

[17] Nora's and Marija's parents, the plaintiffs Harold Vahle and Drazena Mamic, learned of the accident, including Marija's death, from friends who read about it on social media posts. The defendant and its staff, it is alleged, were not "reachable by phone and were not available" to the girls' parents.

[18] The statement of claim alleges, among other things, that the defendant breached its duty of care, contractual obligations and fiduciary duties, and acted negligently by making untrue, inaccurate and misleading representations regarding the Teach in Thailand program and the defendant's services. The defendant did not advise Nora and Marija of the requirement of riding motor scooters, and the risks associated with doing so. The plaintiffs also plead that the defendant failed to provide immediate support, and failed to provide insurance details for Nora and Marija to their Destination Offices, and thereby failed to ensure timely and proper medical care. The plaintiffs also assert that the defendant did not inform the Canadian Embassy or Marija's and Nora's parents of the accident in a timely manner, causing Harold and Drazena "immense distress and panic". The claim states that by reason of these breaches of contract and tortious conduct, "the [page517] defendant (directly and through its partners/ agents) caused serious injuries, Marija's death and other damages to the plaintiffs".

Issues

[19] The defendant raises three issues to be determined on the motion:

(1) that the Ontario Superior Court does not have jurisdiction simpliciter;

(2) that service ought to be set aside because the plaintiffs do not satisfy the test for being permitted to serve the defendant without leave under rule 17.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; and

(3) that Ontario is not an appropriate forum for this action (forum non conveniens).

[20] The argument on this motion focused on the first and third issues. While the statement of claim may have failed to state some of the correct sub-rules, rule 17.02 was cited as required. The main issue before the court, and on which the parties made argument, is whether the bases for service which also create a presumption of jurisdiction, exist. In light of the conclusion below, that the action involves an allegation of a tort committed in Ontario (rule 17.02(g)), which was specifically pleaded, and that there is a basis to conclude that the defendant carries on business in Ontario, service outside the jurisdiction without leave is permitted. Accordingly, these reasons only address issues (1) and (3).

Analysis

Jurisdiction and forum non conveniens: General principles

[21] The test for jurisdiction and the application of the doctrine of forum non conveniens have been the subject of much recent discussion by the courts, including the Supreme Court of Canada: see, e.g., Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17; Breeden v. Black, 2012 SCC 19, [2012] 1 S.C.R. 666, [2012] S.C.J. No. 19; Haaretz.com v. Goldhar, 2018 SCC 28, [2018] 2 S.C.R. 3, [2018] S.C.J. No. 28. These decisions make clear that for a court to have jurisdiction there must be a "real and substantial connection" between the forum and the subject matter of the litigation. The purpose of the test is to establish a minimum threshold for the assumption of jurisdiction to ensure order, stability and predictability. As the Supreme Court stated, at para. 30 of Haaretz.com: [page518]

The constitutional purpose of the jurisdiction simpliciter test is to establish a minimum threshold for the assumption of jurisdiction in order to prevent improper assumptions of jurisdiction (Van Breda, at para. 26; see also Hunt v. T&N plc, [1993] 4 S.C.R. 289, at p. 325). Its objective is to delineate circumstances in which a court has jurisdiction, not circumstances in which it should exercise it (which is the purpose of forum non conveniens). The prioritization of order and predictability at the jurisdiction simpliciter stage is also consistent with the principle of comity, which is central to Canadian private international law (Van Breda, at para. 74).

[Emphasis in original]

[22] If jurisdiction is established, the question becomes whether the court should exercise it, which requires consideration of the doctrine of forum non conveniens. As the Supreme Court continued in Haaretz.com, at para. 32:

The purpose of the forum non conveniens analysis is to temper any potential rigidity in the rules governing the assumption of jurisdiction and "to assure fairness to the parties and the efficient resolution of the dispute" (Van Breda, at para. 104). This is necessary given this Court's recognition that jurisdiction "may sometimes be established on a rather low threshold" (Van Breda, at para. 109). By focusing "on the contexts of individual cases", the forum non conveniens stage plays an important role in striking a balance between order and fairness (Van Breda, at para. 105).

[23] In Van Breda, the Supreme Court recognized a number of presumptive connecting factors to guide courts on jurisdiction [at para. 90]:

(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.

[24] However, the existence of a presumptive connecting factor may be successfully rebutted. As the court stated in Haaretz.com, at para. 34:

In determining whether a "real and substantial connection" exists between a chosen forum and the subject matter of the litigation, courts are required to consider two issues. First, a court must consider whether the existence of a recognized presumptive connecting factor has been established (Van Breda, at para. 80). If so, the court must consider whether the party challenging the assumption of jurisdiction has successfully rebutted the presumption (Van Breda, at para. 81).

[25] Accordingly, the onus lies on the plaintiff to show that at least one of the presumptive connecting factors can be established. If so, the defendant may attempt to rebut the presumption. The starting point in determining whether a presumptive factor exists is "the statement of claim, which . . . defines the issues and informs the opposing parties of the case they have to [page519] meet [citation omitted]. It frames the action for the purposes of analysing the assumption and exercise of jurisdiction": Haaretz.com, at para. 21.

[26] Once jurisdiction has been put in issue there may be an evidentiary burden on the plaintiff to substantiate the presumptive connecting factors, especially where there is "insufficient particularity with respect to the jurisdictional facts". Put another way, "jurisdiction is not determined solely by the words chosen by the lawyer who drafted the pleading". This does not mean that the motion judge is to assess the merits of the case, but he or she must at least be satisfied that there is a "good arguable" case supporting a presumptive factor: Schreiber v. Mulroney, [2007] O.J. No. 4997, 88 O.R. (3d) 605 (S.C.J.), at paras. 26-28 and 32; Singh v. Howden Petroleum Ltd., [1979] O.J. No. 4249, 24 O.R. (2d) 769, 100 D.L.R. (3d) 121 (C.A.), at para. 37.

Jurisdiction simpliciter

[27] The presumptive factors in issue in this case are whether

(1) a contract connected with the dispute was made in the province; (2) a tort was committed in the province; and (3) whether the defendant carries on business in the province.

Where was the contract made?

[28] The plaintiff submits that the contracts Nora and Marija entered into with Global were made in Ontario. This is so, they argue, because Nora and Maria were in Ontario when they entered into the contracts by completing the relevant online forms on the Global website.

[29] The defendants, on the other hand, rely on the principle that a contract is made where the offeror receives notice of acceptance by the offeree: Eastern Power Ltd. v. Azienda Communale Energia and Ambiente, [1999] O.J. No. 3275, at para. 22. Although there is an exception to this rule, known as the postal acceptance rule "that when contracts are to be concluded by post the place of mailing the acceptance is to be treated as the place where the contract was made", this exception has not been applied to facsimile transmissions or to e-mails: Eastern Power, at paras. 22-23; Freshway Services Inc. v. CdEnviro Ltd, [2017] O.J. No. 5738, 2017 ONSC 6591 (S.C.J.), at paras. 22-23; Inukshuk Wireless Partnership v. NextWave Holdco LLC (2013), 117 O.R. (3d) 206, [2013] O.J. No. 4014, 2013 ONSC 5631 (S.C.J.), at para. 29. As Global offered [page520] the booking terms and conditions through its website and Nora and Maria communicated their acceptance through the website, and as Global is based in Vancouver, Global submits that the contract was formed in British Columbia.

[30] The general rule applies here. Although there was some back-and-forth between the plaintiffs and Global with respect to the "add-on" request that the sisters have their work placement together, Global was clearly the offeror in this situation and once it received the completed, and accepted, terms from the plaintiffs, in Vancouver, the contract was made in British Columbia.

[31] The plaintiffs also submitted that jurisdiction should be presumed because the contract is, or should be, governed by the laws of Ontario, and because the contract was breached in Ontario. These are not grounds for presuming jurisdiction identified by the Supreme Court, but are a basis for service outside Ontario under rule 17.02(f). However, even if they are presumptive factors, they are not established here. Global's terms refer to the "laws of Canada", not Ontario. While this favours Ontario over Thailand, applicable law is best considered under forum non conveniens where it is identified as a specific criterion. As for the breach of contract, the statement of claim is vague on precisely how the contract was breached, but conduct by Global that may be in breach appears to relate to lack of performance in Thailand and in Canada.

Was a tort committed in Ontario?

[32] There is more substance to the argument that torts alleged in the statement of claim were committed in Ontario. The claim alleges the torts of negligence and negligent misrepresentation. The plaintiffs plead that Global represented that it would ensure the living, safety, security and emergency needs of Nora and Marija. The plaintiffs have led evidence of representations that may support this pleading found on the Global website, in pre-departure details sent to Nora and Marija, and in verbal representations made to them before and after entering into the contract in October 2015. In addition, Global represented that Marija could safely participate in the Teach in Thailand program even though she was under 21. Further, as noted, prior to their departure Global never advised Nora and Marija that they would be required to ride motor scooters in Thailand, or of the dangers associated with that activity.

[33] It is also alleged that the defendant breached its duty of care and acted negligently in causing Nora and Marija to receive inadequate medical care. Global represented that it would send their insurance details to its agent in Thailand which, it is pleaded, [page521] did not happen. This compounded Global's alleged negligence in responding to the accident, including by failing to arrange for proper medical care, failing to notify the Embassy, insurers and Nora's and Marija's parents in a timely manner, the last failure causing psychological and emotional distress.

[34] The parties appear to be in agreement that the tort of negligent misrepresentation is committed "where the representation is received and relied upon": Central Sun Mining Inc. v. Vector Engineering Inc., [2012] O.J. No. 6137, 2012 ONSC 7331 (S.C.J.), at para. 41; 2249659 Ontario Ltd. v. Sparkasse Siegen (2013), 115 O.R. (3d) 241, 2013 ONCA 354, at para. 31. However, the defendant argues that this presumptive factor should not apply because the elements of the torts are not pleaded precisely enough or, alternatively, that they are not sufficiently made out on the evidence: Hembruff v. Ontario Municipal Employees Retirement Board (2005), 78 O.R. (3d) 561, [2005] O.J. No. 4667 (C.A.), at paras. 76-77.

[35] At this early stage it is not for the court to assess the merits of the pleading or the facts of the case beyond being satisfied that there is a "good arguable case". While the statement of claim may not be a detailed account of the misrepresentations, and may require particulars, it does claim for harm arising from Global's alleged "misrepresentations regarding the Teach in Thailand program and defendant's services during Nora's and Marija's participation in the Teach in Thailand program". The statement of claim also provides details of the interaction with, and representations of Global made while the sisters were in Ontario. Among other things, it alleges representations of "24/7 emergency services", and the failure to disclose material risks, "including the requirement to drive a motor scooter". As well, Global's conduct following the accident, which is pleaded, may give rise to claims of negligence involving steps it took or ought to have taken in Ontario, and not just Thailand, including contacting Nora's and Marija's parents promptly following the accident. Accordingly, this presumptive factor applies.

Does the defendant "carry on business" in Ontario?

[36] There is no evidence that Global has a physical presence in Ontario. Its employees are based in British Columbia and it has no office in Ontario. The fact that it has a website that is accessible in Ontario and that its ads and promotions on Google and Facebook are received by people in Ontario does not, on its own, amount to carry on carrying on business here. As the Supreme Court stated in Van Breda, at para. 87: [page522]

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 Web site 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.

[37] Here, the defendant engages in e-commerce in Ontario by contacting and contracting with travellers in Ontario. It does more than simply receive inquiries from clients based in Ontario. It also places foreign vacationers coming to Canada in Ontario through its working holiday program in Canada and works with businesses here who may employ those individuals. Global thus actively works with clients and businesses in Ontario.

[38] Since Van Breda, the Supreme Court has upheld orders of the British Columbia courts in which they exercised jurisdiction over Google even though it did not have servers or offices, or any employees in the province: Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, [2017] 1 S.C.R. 824, [2017] S.C.J. No. 34, affg [2015] B.C.J. No. 1193, 2015 BCCA 265. In that case, Google did, however, gather information and data in British Columbia which led to targeted search results and targeted advertising towards residents of British Columbia.

[39] Global's connections to Ontario are at least comparable to Google's connections with British Columbia. Once contacted by Ontario residents, Global actively solicits their business, as it did here in what the plaintiffs describe as aggressive sales tactics towards them by e-mail and telephone. Global knew that it was contracting with Ontario residents, and assured its clients that the contracts would be governed by "Canadian law" which may be understood by clients to mean the law of the province in which they are located. Accordingly, the plaintiffs have met the burden of demonstrating a good arguable case that Global carries on business in Ontario and there is a presumption of jurisdiction.

Is the presumption rebutted?

[40] To the extent that misrepresentations were communicated over the Internet, it may be argued that there is only a weak relationship between the subject matter of the action and Ontario, which may rebut the presumption. The Supreme Court warned of [page523] the need for a careful examination of the connection to a forum in Internet defamation cases "where a presumptive connecting factor can easily be established", stating that what must be reviewed in such cases is whether it would "be reasonable to expect that the defendant would be called to answer proceedings in that jurisdiction": Haaretz.com, at paras. 40 and 43, citing Van Breda, at paras. 81, 92, 95 and 97.

[41] In this case, however, Global knew it was dealing with clients in Ontario. It frequently dealt with travellers coming from Ontario, as well as those wishing to have a working holiday in Ontario. Global's representatives were aware that any representations they made to Nora and Marija were received by them in Ontario. Further, providing that "Canadian law" would apply suggests that Global contemplated that it may be subject to Ontario law.

[42] The defendant points to the fact that Global was not involved in providing the plaintiffs with motor scooters or in any of the immediate events leading up to the accident, all of which were handled by entities or individuals in Thailand. It relies on Wilson v. Riu, [2012] O.J. No. 5679, 2012 ONSC 6840 (S.C.J.), at para. 13, in which the Thomas Cook travel agency, with a presence in Ontario, rebutted the presumption where it appeared to have had nothing to do with the booking of a horseback riding excursion in the foreign jurisdiction, "by reason only of having sent him or her there as part of a travel package", which consisted only of air and ground transportation and hotel accommodation. In finding against jurisdiction, Broad J. expressed the valid concern about opening the court to "universal assumption of jurisdiction".

[43] Indeed, an underlying purpose of the "real and substantial connection" test is to address "the risk of jurisdictional overreach", and it must be applied in a manner that reflects the need for "order and fairness" and reflecting "the need for limits on assumptions of jurisdiction": Van Breda, at paras. 22 and 27. But the facts of this case are different from Wilson v. Riu. Global was not just the package tour operator booking air and hotel accommodation. It is alleged, and the evidence suggests that Global provided, and represented that it provided, a much more far-reaching service to its clients through its Teach in Thailand program, connecting it to the events that occurred there. In all of the circumstances, it cannot be said that the presumptive connecting factors do "not point to any real relationship between the subject matter of the litigation and the forum or points only to a weak relationship between them": Van Breda, at para. 95. [page524]

Forum non conveniens

[44] Having established that this court has jurisdiction over the action, it is necessary to consider the question of forum non conveniens, and determine whether the court should exercise jurisdiction. Here the burden is on the defendant to satisfy the court that an alternative forum is "clearly more appropriate". In considering this issue the court must consider the characteristics of the alternative forum, whether it would be fairer and more efficient for the action to proceed there, and whether the plaintiff should be denied the benefits of his or her decision to select this forum, which has jurisdiction. In Haaretz.com, the Supreme Court stated, at para. 47:

While the normal state of affairs favours exercising jurisdiction in the forum where it is properly assumed, this should never come at the cost of one party facing unfair or clearly inefficient proceedings. The purpose of forum non conveniens, as discussed above, is to temper any potential rigidity in the rules governing the assumption of jurisdiction and to "assure fairness to the parties and the efficient resolution of the dispute" (Van Breda, at para. 104). Where the evidence indicates that the alternative forum is in a better position to dispose fairly and efficiently of the litigation, the court should grant the stay (Van Breda, at para. 109). This is especially true in cases where the evidence raises doubt as to whether proceeding in the chosen forum will provide the defendant with a fair opportunity to present its case.

[45] The strength or weakness of the connections at the jurisdiction stage, may inform the forum non conveniens analysis. As the Supreme Court stated in Van Breda, para. 109:

The use of the words "clearly" and "exceptionally" should be interpreted as an acknowledgment that the normal state of affairs is that jurisdiction should be exercised once it is properly assumed. The burden is on a party who seeks to depart from this normal state of affairs to show that, in light of the characteristics of the alternative forum, 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 a forum that is appropriate under the conflicts rules. The court should not exercise its discretion in favour of a stay solely because it finds, once all relevant concerns and factors are weighed, that comparable forums exist in other provinces or states. It is not a matter of flipping a coin. A court hearing an application for a stay of proceedings must find that a forum exists that is in a better position to dispose fairly and efficiently of the litigation. But the court must be mindful that jurisdiction may sometimes be established on a rather low threshold under the conflicts rules. Forum non conveniens may play an important role in identifying a forum that is clearly more appropriate for disposing of the litigation and thus ensuring fairness to the parties and a more efficient process for resolving their dispute.

[46] The forum non conveniens doctrine is a "flexible concept" which recognizes that a court has "a residual power to decline to exercise its jurisdiction in appropriate, but limited, circumstances in order to assure fairness to the parties and the [page525] efficient resolution of the dispute": Van Breda, at para. 104. There are at least six factors relevant to forum non conveniens identified by the Supreme Court (Van Breda, para. 105):

(a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum; (b) the law to be applied to issues in the proceeding; (c) the desirability of avoiding multiplicity of legal proceedings; (d) the desirability of avoiding conflicting decisions in different courts; (e) the enforcement of an eventual judgment; and (f) the fair and efficient working of the Canadian legal system as a whole. [s. 11(2)]

[47] The evidence led on this application, as well as the submissions on the motion, did not focus in detail on the forum non conveniens issue. Not surprisingly, however, the parties have very different views on the issue that will arise and what evidence is relevant to inform the issue of which forum is appropriate.

[48] The defendant's position is that Thailand is clearly the more appropriate forum, submitting that five of the six factors weigh heavily in favour of Thailand. Global notes that witnesses who can address issues such as what was communicated about road safety to Nora and Marija, what occurred during the job placement and acceptance process in Thailand, the use of the scooter by Nora, who provided scooters, how the accident occurred and the alleged inadequacy of medical care and timeliness of the proposed provision of insurance information, are in Thailand. Many of these witnesses will not speak English and interpreters will be required. The defendant also submits that the applicable law is Thailand, but this is based on its position that the appropriate contracts are those involving XploreAsia, Matthew English and Education Guide. The defendant also says that the desire to avoid a multiplicity of proceedings and conflicting decisions, and ease of enforcement of any judgment, favours Thailand as well.

[49] The plaintiffs' approach forum non conveniens very differently. The action is against Global, a Canadian company active in Ontario which made representations to the plaintiffs in Ontario. The representatives of Global are based in British Columbia, speak English, and can easily travel to Ontario. Under the contract, Canadian law applies and, if this matter is to be tried in Ontario, it would be appropriate to apply Ontario law based on the contract and the principle of lex loci delicti. The plaintiffs argue that it would be unfair to have to bring a proceeding in [page526] Thailand against Global when both parties are in Canada; indeed, the defendant's position that its "Destination Office" is run by XploreAsia, not Global, which has no employees in Thailand. This undermines the argument of a connection to Thailand by the defendant and suggests any enforcement proceeding would need to be brought in Canada, or elsewhere, but certainly not in Thailand.

[50] In my view, the defendant has not met the burden of demonstrating that Thailand is a clearly more convenient or appropriate jurisdiction for this action.

[51] The plaintiffs and the defendant are both located in Canada. Much of the subject matter of the action relates to the interpretation of the contract between the parties, the duties and obligations between the parties, and the representations made by Global to Nora and Marija. Ontario is a more convenient location for determination of those issues than Thailand. Global, as an international business, is in a position to, if necessary, call evidence from XploreAsia and others who may be, or have been, in Thailand, to a trial in Canada. To the extent that witnesses and evidence may be required from others in Thailand regarding the accident and medical care, the defendant has provided limited evidence on what witnesses would be required and any inconvenience to them in either coming to Ontario, or potentially obtaining that evidence in Thailand. The plaintiff may also need to bring witnesses from Thailand, suggesting a degree of inconvenience to both parties, but that is the plaintiff's choice. Medical evidence may also be led from treating physicians and experts, who may be in both Thailand and Ontario, or elsewhere. The need for interpreters will arise in either country. To the extent that some witnesses may not be able to travel, and there is no evidence of that, in the 21st century there are many ways in which evidence can be obtained in foreign countries for use in proceedings in Ontario.

[52] With respect to applicable law, as this is a case between Canadian plaintiffs and a Canadian-based defendant which states that Canadian law will apply to its contracts, this factor favours Ontario over Thailand. The defendant notes that the substantive law that governs torts is the law of where the wrong occurred, or lex loci delicti. From the defendant's standpoint, the tort is where the activity occurred. However, as has been reviewed, the plaintiffs' case is that misrepresentations were made in Ontario, and so Ontario law would apply. To the extent that other tortious acts or breach of contract by Global may have been committed elsewhere, such as in British Columbia, this does not point strongly towards moving the case to Thailand. [page527]

[53] In the same vein, the defendant argues that the relevant contracts are between Nora and Marija and entities in Thailand, which provide that Thai law applies, and so the case should proceed there. But, again, Nora and Marija are not suing over those contracts which, in any event, have not been produced by Global. The action is between the plaintiffs and Global, who are in Canada, not Thailand, and Global itself specified that Canadian law should apply. There was no evidence on the law of Thailand; however, as in Van Breda (at para. 118) it is possible that the plaintiffs may suffer some juridical disadvantage if they are required to bring an action in Thailand and be subject to unfamiliar law and procedures.

[54] The concern to avoid a multiplicity of proceedings and conflicting decisions are not significant here. Although the defendant asserts that XploreAsia and the Thai companies are necessary parties, there is no evidence of any proceedings going on in Thailand which would make this a concern. And in terms of enforcement, should the plaintiffs obtain judgment, Global is based in British Columbia, not Thailand, so this does not favour Thailand either.

[55] Stepping back, one must consider the broader issues of fairness to the parties and efficiency. In this regard, I find the comments of the Supreme Court addressing the facts and outcome in Van Breda, at para. 118, compelling and applicable here:

Whether the Superior Court of Justice should have declined jurisdiction on the basis of the doctrine of forum non conveniens remains to be determined. Club Resorts had the burden of showing that a Cuban court would clearly be a more appropriate forum. I recognize that a sufficient connection exists between Cuba and the subject matter of the litigation to support an action there. The accident happened on a Cuban beach, at a hotel managed by Club Resorts. The initial injury was suffered there. Some of the potential defendants reside in Cuba. However, other issues related to fairness to the parties and to the efficient disposition of the claim must be considered. A trial held in Cuba would present serious challenges to the parties. There may be problems with witnesses, concerns about the application of local procedures, and expenses linked to litigating there. All things considered, the burden on the plaintiffs clearly would be far heavier if they were required to bring their action in Cuba. They would face substantial additional expenses and would be at a clear disadvantage relative to the defendants. They might also suffer a loss of juridical advantage. But on this point the evidence is far from clear and satisfactory. In the end, the appellant has not shown that a Cuban court would clearly be a more appropriate forum. I agree that the motion judge made no reviewable error in deciding not to decline to exercise his jurisdiction, and I would affirm the Court of Appeal's judgment dismissing the appeal from that decision.

(Emphasis added)

[56] Similar points were made by the Supreme Court about the facts of Charron, the companion case heard and decided with Van Breda: see Van Breda, at paras. 119-124. [page528]

[57] The same concerns apply in this case. Accordingly, I conclude that the defendants have not met their burden of demonstrating that Thailand is clearly the more convenient forum for this action than Ontario.

[58] The motion is therefore dismissed.

[59] Unless there is agreement on costs, the parties shall make written submissions to me. Submissions shall not exceed three pages, not including supporting material. The plaintiffs' submissions shall be due within 14 days of the release of these reasons and the defendant's submissions shall be due seven days later.

Motion dismissed.

End of Document