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

• Author: Rachel Cooper and Shahnaz Dhanani
• Law Firm: McMillan LLP
• 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

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