Brown v. Mar Taino S.A. et al., 2015 NSSC 348

• Judge: Moir, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 02, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSSC 348;(2015), 367 N.S.R.(2d) 253 (SC)

Brown v. Mar Taino SA (2015), 367 N.S.R.(2d) 253 (SC);

    1157 A.P.R. 253

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. DE.012

Arthur Reginald Brown (plaintiff) v. Mar Taino S.A., Cadena Mar S.L., Thomas Cook Travel Inc., and Vision 2000 Travel Management Inc. (defendants)

(Hfx. No. 407094; 2015 NSSC 348)

Indexed As: Brown v. Mar Taino S.A. et al.

Nova Scotia Supreme Court

Moir, J.

December 2, 2015.

Summary:

Brown sued in Nova Scotia for injuries he suffered while staying at a resort in the Dominican Republic. Two of the defendants, Mar Taino S.A., a Dominican corporation, and Cadena Mar S.L., a Spanish corporation, had some connection with the hotel. The owner was Tureymar S.A., another Dominican corporation. Cadena Mar owned Mar Taino and Tureymar. Mar Taino and Cadena Mar moved for an order dismissing the action for want of territorial jurisdiction or staying the action on the basis of forum non conveniens.

The Nova Scotia Supreme Court allowed the application on the basis of a lack of territorial jurisdiction. Had territorial jurisdiction been established, the court would not have stayed the action on the ground of forum non conveniens.

Conflict of Laws - Topic 7601

Torts - Jurisdiction - Forum conveniens - [See second Conflict of Laws - Topic 7605 ].

Conflict of Laws - Topic 7605

Torts - Jurisdiction - Real and substantial connection - Brown sued in Nova Scotia for injuries he suffered while staying at a resort in the Dominican Republic - Two of the defendants, Mar Taino S.A., a Dominican corporation, and Cadena Mar S.L., a Spanish corporation, had some connection with the hotel - The owner was Tureymar S.A., another Dominican corporation - Cadena Mar owned Mar Taino and Tureymar - Mar Taino and Cadena Mar moved for an order dismissing the action for, inter alia, want of territorial jurisdiction - Section 11 of the Court Jurisdiction and Proceedings Transfer Act allowed for territorial jurisdiction whenever there was a real and substantial connection, but it also provided a rebuttable presumption of real and substantial connection in any of 12 sets of circumstance - The Nova Scotia Supreme Court stated that "The presumption in s. 11(e) of the Court Jurisdiction and Proceedings Transfer Act concerns claims in contract, not tort. Further, the presumption does not concern place of contract. Instead, the principle is place of substantial performance in s. 11(e)(i), with express adoption of Nova Scotia law and certain contracts for the sales of goods in (ii) and (iii). Whatever the contract between Mr. Brown and the hotel may have been, substantial performance occurred in the Dominican Republic. Subsection 11(e) does not assist Mr. Brown." - See paragraph 67.

Conflict of Laws - Topic 7605

Torts - Jurisdiction - Real and substantial connection - Brown sued in Nova Scotia for injuries he suffered while staying at a resort in the Dominican Republic - Two of the defendants, Mar Taino S.A., a Dominican corporation, and Cadena Mar S.L., a Spanish corporation, had some connection with the hotel - The owner was Tureymar S.A., another Dominican corporation - Cadena Mar owned Mar Taino and Tureymar - Mar Taino and Cadena Mar moved for an order dismissing the action for want of territorial jurisdiction or staying the action on the basis of forum non conveniens - The Nova Scotia Supreme Court allowed the application on the basis of a lack of territorial jurisdiction - Any presumption of territorial jurisdiction raised by the contract made by Brown in Nova Scotia and Vision 2000 Travel Management Inc. in Alberta was rebutted by the fact that contract was made only partly in Nova Scotia coupled with the remoteness of that contract from: the facts of the alleged tort or delict, which took place in the Dominican Republic; the companies allegedly responsible for the delict, who did not do business in Nova Scotia; and the law of the Dominican Republic, which applied to the alleged delict - No other presumption of territorial jurisdiction assisted Brown - Had territorial jurisdiction been established, the court would not have stayed the action on the ground of forum non conveniens - The suffering of loss in Nova Scotia and the number of Nova Scotia witnesses would have outweighed the considerations in favour of the Dominican Republic, including the presence there of the hotel's witnesses and the applicability of the Republic's laws.

Cases Noticed:

Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393; 1 N.R. 122, refd to. [para. 24].

Li v. MacNutt & Dumont (2015), 356 N.S.R.(2d) 176; 1126 A.P.R. 176; 2015 NSSC 53, refd to. [para. 25].

Club Resorts Ltd. v. Van Breda - see Van Breda et al. v. Village Resorts Ltd. et al.

Van Breda et al. v. Village Resorts Ltd. et al., [2012] 1 S.C.R. 572; 429 N.R. 217; 291 O.A.C. 201; 2012 SCC 17, refd to. [para. 25].

Toews et al. v. First Choice Canada Inc. et al. (2015), 603 A.R. 296; 2014 ABQB 784, refd to. [para. 37].

Schram v. Nunavut (2013), 406 N.B.R.(2d) 168; 1053 A.P.R. 168; 2013 NBQB 190, refd to. [para. 42].

Export Packers Co. v. SPI International Transportation (2012), 294 O.A.C. 319; 2012 ONCA 481, refd to. [para. 46].

Haufler v. Hotel Riu Palace Cabo San Lucas et al., [2013] O.T.C. Uned. 6044; 2013 ONSC 6044, refd to. [para. 50].

Levasseur et al. v. New Brunswick Securities Commission, [2012] N.B.R.(2d) Uned. 58; 2012 NBQB 137, refd to. [para. 57].

Trillium Motor World Ltd. v. General Motors of Canada Ltd. et al., [2013] O.T.C. Uned. 2289; 2013 ONSC 2289, refd to. [para. 63].

Penny v. Bouch (2009), 281 N.S.R.(2d) 238; 893 A.P.R. 238; 2009 NSCA 80, refd to. [para. 68].

Infineon Technologies AG et al. v. Option consommateurs et al., [2013] 3 S.C.R. 600; 450 N.R. 355; 2013 SCC 59, refd to. [para. 70].

Statutes Noticed:

Court Jurisdiction and Proceedings Transfer Act, S.N.S. 2003, c. 2, sect. 11(e) [para. 22].

Counsel:

Brian J. Hebert, for the plaintiff;

Arie Odinocki, for the defendants, Mar Taino S.A. and Cadena Mar S.L.;

Tyana Caplan, for the defendant, Thomas Cook Travel Inc.

This case was heard on June 2, 2015, by Moir, J., of the Nova Scotia Supreme Court, who delivered the following decision on December 2, 2015.