Sinclair v Amex Canada Inc., 2023 ONCA 142
Background
In 2022, the Court of Appeal for Ontario delivered its decision of Sinclair v Amex Canada Inc., 2023 ONCA 142 (CanLII), which now stands as the seminal case regarding the jurisdiction of Canadian courts to hear tort cases involving out-of-province tortfeasors.
This matter concerned the Sinclair family, who planed a trip to Venice to celebrate their son’s graduation from high school. The family booked the trip using Amex Canada Inc., which operates as “Centurion Travel Service”.
Mr. Sinclair had booked transportation from the Venice airport to their Venice hotel. He made this request to Centurion, as their members enjoy the benefits of concierge and travel agent services during Centurion trips. This request led to Centurion contacting Carey International Inc., who in turn contacted Venezia Turismo, who in turn contacted Venice Limousine S.R.L., the owner of the water taxi that was to transport the Sinclairs from the airport to their hotel. These parties were all individually named as defendants in the pleadings.
On July 25, 2017, the Sinclair family travelled from Florence to Venice by plane. A van transported the Sinclairs from the Venice airport to the water taxi terminal where they boarded the water taxi. During the journey, the water taxi was involved in a collision with a wooden structure which resulted in injuries to the Sinclair family, with severe injuries to Duncan Sinclair.
A motion for summary judgment was brought by three of the Italian entities, Venezia Turismo, Venice Limousine S.R.L., and Narduzzi e Solemar S.L.R, that were named as Defendants on the grounds that the Ontario Superior Court of Justice did not have jurisdiction over them. The lower court dismissed a motion.
The Court of Appeal of Ontario overturned this decision, allowed the appeal, and granted a dismissal of the action against these three defendants.
Analysis
The crux of the appeal was focussed on an examination of the “presumptive connecting factors” found in Club Resorts Ltd. v Van Breda, 2012 SCC 17, found at paragraph 90 of the decision delivered by Justice LeBel:
- “To recap, in a case concerning a tort, the following factors are presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute:
- 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.”
These factors, known as the Van Breda Factors, if found to be true to a sufficient degree, allow Canadian courts to exercise their jurisdiction over tort matters that may have occurred outside of the Province, or internationally as was the case with this matter. In Van Breda, the Court noted that the test is “focussed on preventing jurisdictional overreach” and was “intended to place limits on the assumption of jurisdiction by a Province’s courts”1. This is demonstrative of the fact that the test is intended to be restrictive, rather than permissive.
The primary factor considered in the Van Breda decision was the fourth, (d), factor, as the court determined that a contract was formed between the resort and Van Breda, as she was the spouse of tennis instructor contracted to work at a resort owned by Club Resorts Ltd. and, as such, was included as a spouse in the terms of his room and board agreement.
A companion case to Van Breda, Charron was decided in a similar fashion, albeit with key differences at play. Charron also dealt with a claim against Club Resorts Ltd. However, Charron was decided on the second of the above factors, in that Club Resorts Ltd. was found to have business operations ongoing in Ontario.
The Court of Appeal for Ontario took note of the key differences between the Van Breda/Charron cases and the facts at issue in Sinclair:
- First and foremost, the action brought by Van Breda was based in both contract and tort law; whereas Sinclair was only in tort.
- Second, the defendants in Van Breda were all companies related to Club Resorts Ltd.
- Third, in Charron, there were non-Ontario defendants who were not related to Club Resorts Ltd. Namely, a boat captain and SCUBA diving instructor who were Cuban nationals and did not participate in the proceedings.
The important distinction made in Sinclair was the need to separate each defendant from one another. Although the court in Charron did not need to weigh the SCUBA instructor and boat captain’s relationship to Club Resorts because they did not participate in the proceedings, the Court of Appeal noted that there is nothing in the Supreme Court decision of Van Breda/Charron that indicates that there would have automatically been jurisdiction over those parties.
The court made it clear that each individual defendant needs to be connected to the action within the Van Breda factors. It is not sufficient for a chain of connections to imply that an
international party is brought within the jurisdiction of Canadian courts, merely by virtue of association with Canadian entities.
Respondent’s Rebuttal
The Respondent unsuccessfully argued that the SCC decision of Lapointe Rosenstein Marchand Melancon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30, should be applied in Sinclair, as that case was alleged to have broadened the scope of the restrictions enumerated at paragraph 90 of Van Breda. However, the Court of Appeal rejected this argument as Sinclair’s claim was based entirely in tort – the contractual relationship with Amex Canada was not relied on in the Statement of Claim. In Cassels, the claim was based entirely in contract, and therefore the scope of the “connecting factors” was wider. It was also noted that the Cassels dispute was inter-provincial and not international.
The respondents in Sinclair also argued that Amex Canada Inc. was vicariously liable for the actions of the appellants. The court noted that vicariously liability is a concept of tort law, not contract law, and therefore did not assist the respondents as they had failed to assert a claim in contract in the pleadings.
The court clarified that the purpose of the “presumptive connecting factor” test was to limit the territorial reach of Canadian courts. This effort was mode with a view to ensure that “Canadian courts only assumed jurisdiction over disputes that had a real and substantial connection to Canada on the facts and to prevent Canadian courts from assuming jurisdiction where that connection did not exist.”2
In Sinclair, the Court of Appeal found that the appellants did not have any contractual obligations to the respondents, either directly or indirectly. The contractual agreements between Amex Canada and the respondents did not include or contemplate the involvement of the appellant parties. The court ultimately held that the appellants should not be brought within the scope of Canadian jurisdiction merely due to having a relationship with Amex Canada.
While the Court of Appeal concluded that the fourth Van Breda factor should not apply, an inquiry into the appellant’s rebuttal was also undertaken based on the understanding that the Van Breda factors are presumptive in their jurisdictional reach. In this inquiry, the Court of Appeal determined that any contract between the Sinclairs and Amex Canada had little or nothing to do with the action made against the appellants. For this reason, the court found that the Italian appellants were not contemplated in the contract between the respondents and Amex, and therefore were not found to be within Canadian jurisdiction.
The Court of Appeal provided the following breakdown of the issues:
- None of the appellants would reasonably be expected to be called to answer legal proceedings in Ontario.
- The task was to be undertaken in Italy.
- The underlying events occurred in Italy.
- The companies (appellants) are Italian.
- The driver of the water taxi was Italian.
- Nothing connects the appellants to Ontario.
In closing, the ONCA provided the following summary of the decision:
- “If the decision of the motion judge were to be upheld, it would have sweeping implications. It would mean that any person who books a trip through a credit card company that provides travel services and carries on business in Ontario would, through that fact alone, extend the jurisdiction of this province’s courts to anyone who may subsequently become involved in those travel arrangements, regardless of where in the world that involvement occurs. In my view, that result would constitute the very type of jurisdictional overreach that the decision in Van Breda was cautioning against.”3
Conclusion
This case stands as a keystone in the structure of Canadian jurisdictional disputes. While counsel may try to use clever maneuvering to assert that international tortious conduct should be tried in Canadian courts, there needs to be a clear connection between the accused tortfeasor and Canadian plaintiff to successfully put forward a claim in Ontario. The Sinclair decision has narrowed the scope of tort claims that can be advanced in Canadian Courts, and has further clarified the jurisdictional bounds of the courts.
Counsel who intend to bring an action against a party outside Canada must ensure that one of the four categories found in Van Breda clearly applies to the facts, and, specifically, to the defendant(s) claimed against.
David A. Zuber and Tobin B. Horton
1 Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (CanLII), [2012] 1 SCR 572, at para 23.
2 Sinclair v. Amex Canada Inc., 2023 ONCA 142 (CanLII), at para 26.
3 Sinclair v. Amex Canada Inc., 2023 ONCA 142 (CanLII), at para 44
