Ontario Court Of Appeal Interprets Van Breda Test In The Context Of Tort Actions In Sinclair v Amex Canada Inc.

• Law Firm: McMillan LLP
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Contracts and Commercial Law, Arbitration & Dispute Resolution
• Author: Rachel Cooper and Shahnaz Dhanani
• Published date: 23 May 2023

In the recent decision of Sinclair v Amex Canada Inc.¹, the Ontario Court of Appeal ("ONCA") allowed the appeal from three defendant Italian companies (the "Foreign Defendants") and stayed the tort action on the basis that the Ontario Superior Court of Justice lacked jurisdiction over these defendants.

Background

On July 25, 2017, the Canadian plaintiffs were injured in a water taxi accident while on holiday in Venice, Italy. After returning to Canada, the plaintiffs brought an action in negligence for damages arising out of the incident against Amex Canada Inc. ("Amex Canada"), which provided travel-related services to individuals in Canada, the Foreign Defendants, which were three Italian companies (Venezia Turismo, Venice Limousine S.R.L., and Narduzzi e Solemar S.L.R.) that had been contacted by Amex Canada or its subsidiaries to provide transport services to the plaintiffs, and the Italian water taxi driver.

The Foreign Defendants brought a motion to dismiss or, alternatively, stay the action, on the basis that the Ontario Superior Court of Justice lacked jurisdiction over them. The motion was dismissed and it was held that pursuant to the fourth presumptive connecting factor enumerated by the Supreme Court of Canada in Van Breda², the contract connected with the dispute was made in the province, allowing the provincial court to assume jurisdiction over the Foreign Defendants with respect to plaintiffs' action. The Foreign Defendants appealed the decision.

The Appeal Decision

The Court of Appeal unanimously allowed the appeal and stayed the action against the Foreign Defendants.

The majority of the Court of Appeal emphasized that the application of the presumptive connecting factors is to be viewed from the perspective of the defendant who is disputing jurisdiction, whereby the position of each defendant must be looked at independently and there must be a presumptive connecting factor that attaches to each individual defendant.³

On this basis, it found that the fourth presumptive connecting factor did not create a real and substantial connection between the dispute and the court assuming jurisdiction because the contract between the plaintiffs and Amex Canada did not create a direct or indirect contractual relationship between the plaintiffs and the Foreign Defendants nor required their involvement, and was not pleaded with any particularity.⁴ The Foreign Defendants could not be "bootstrapped" into the court's jurisdiction solely through their...