Dilkas v Red Seal Tours Inc. (Sunwing Vacations) 2010 ONCA 63,
Released 4 October 2010
Jurisdiction – Forum Conveniens –
Application of New Test Set out in Van Breda
This was an appeal from a decision dismissing a motion
challenging jurisdiction of the Ontario court and the convenience
of the Ontario forum. The plaintiffs brought an action in Ontario
for damages against Sunwing and Best Day after suffering serious
injuries in Mexico on a bus tour. Sunwing cross-claimed against
Best Day for contribution and indemnity, primarily based on the
indemnification agreement executed after the accident to deal with
claims arising out of accident.
Best Day brought a motion challenging both Ontario jurisdiction
and the convenience of the Ontario forum. The motion was decided
and dismissed by applying the test articulated in Muscutt v
Courcelles (2002), 60 OR (3d) 20. Subsequent to the release of
the motion judge's decision, the Court of Appeal released its
decision in Van Breda v Village Resorts Ltd (2010), 98 OR
(3d) 721. Applying the new test in Van Breda, the Court of
Appeal dismissed the appeal.
With respect to the jurisdiction analysis, the key connecting
factor identified in Van Breda is the connection of the
claims and of the defendants to Ontario. Other considerations in
the jurisdiction simpliciter analysis are no longer to be treated
as independent factors, but rather as principles that bear upon the
analysis, including fairness to each party of assuming or refusing
to assume jurisdiction, the involvement of other parties in the
action, willingness to recognize and enforce an extra-provincial
judgment with similar jurisdictional connections to the forum,
comity, and the standards of enforcement in the other
Here, the Court of Appeal found that the vacation packages were
purchased in Ontario; Best Day's transportation agreement with
Sunwing was to be governed by the law of Ontario; and most
significantly, Best Day entered into indemnity agreements with
Sunwing following the accident, which was made in respect of any
lawsuit that might be brought in Ontario by one of the tourists
injured in the bus accident. Accordingly, Best Day expected and
contemplated that the plaintiff's claims would be litigated in
Ontario. These factors establish the necessary and real substantial
connection between the plaintiff's claims, the defendant Best
Day, and the Ontario forum.
Unlike the jurisdiction issue which is a question of law
involving the weighing of factors and application of overarching
principles, whether there is a more convenient and appropriate
forum is an exercise of judicial discretion and is subject to
deference on appeal. The location and convenience of witnesses is a
factor relevant only to the forum conveniens analysis and
is not to be considered when deciding whether there is jurisdiction
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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