Dilkas v. Red Seal Tours Inc. et al., (2010) 267 O.A.C. 363 (CA)

• Judge: Feldman, MacFarland and Karakatsanis, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 30, 2010
• Jurisdiction: Ontario
• Citations: (2010), 267 O.A.C. 363 (CA);2010 ONCA 634

Dilkas v. Red Seal Tours Inc. (2010), 267 O.A.C. 363 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. OC.004

Olga Dilkas and Minas Dilkas (plaintiffs/respondents) v. Red Seal Tours Inc. operating as Sunwing Vacations (defendant/respondent) and Viajes Beda S.A. de C.V. operating as Best Day Tours (defendant/appellant)

John May, Carolyn May, and Dylan May a minor by his Litigation Guardian, Carolyn May (plaintiffs/respondents) v. Red Seal Tours Inc. operating as Sunwing Vacations (defendant/respondent) and Viajes Beda S.A. de C.V. operating as Best Day Tours (defendant/appellant)

(C51541; 2010 ONCA 634)

Indexed As: Dilkas v. Red Seal Tours Inc. et al.

Ontario Court of Appeal

Feldman, MacFarland and Karakatsanis, JJ.A.

October 4, 2010.

Summary:

Best Day Tours, which operated in Mexico, had a contract with Sunwing Vacations, a company headquartered in Toronto, to provide transport between a Cancun resort and the Cancun airport for Sunwing tour guests. The Dilkas and the Mays were on a Sunwing tour package from Ontario. On the way from the resort to the airport, they suffered serious injuries when the bus was in a one-vehicle accident. The Dilkas and the Mays each commenced an action in Ontario against Sunwing and Best Day. Sunwing cross-claimed against Best Day for contribution and indemnity, based primarily on an indemnification agreement that they signed following the accident. Best Day commenced a motion challenging both the jurisdiction of the Ontario court and the convenience of the Ontario forum.

The Ontario Superior Court, applying the test from the "Muscutt quintet", dismissed the motion. Best Day appealed. The appeal was argued based on the law as revised in the post motion decision of the Court of Appeal in Van Breda et al. v. Village Resorts Ltd. et al.

The Ontario Court of Appeal dismissed the appeal.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter (territorial competence) - The plaintiffs commenced actions in Ontario against Sunwing Vacations, a company headquartered in Toronto, and Best Day, a company operating in Mexico - Sunwing cross-claimed against Best Day for contribution and indemnity - Best Day challenged the convenience of the Ontario forum - A motion judge dismissed the challenge - Best Day appealed - The Ontario Court of Appeal noted that the motion judge had referred to factors that she had considered in her jurisdiction simpliciter analysis - One of those factors was the location and convenience of many medical witnesses in Ontario - That factor was relevant only to the forum conveniens analysis and was not to be considered when deciding whether there was jurisdiction simpliciter - See paragraph 28.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter (territorial competence) - Best Day Tours, which operated in Mexico, had a contract with Sunwing Vacations, a company headquartered in Toronto, to provide transport between a Cancun resort and the Cancun airport for Sunwing tour guests - On the way from the resort to the airport, the plaintiffs suffered serious injuries when the bus was in a one-vehicle accident - They commenced actions in Ontario against Sunwing and Best Day - Sunwing cross-claimed against Best Day for contribution and indemnity - Best Day challenged the jurisdiction of the Ontario court - A motion judge applying the test from the "Muscutt quintet", dismissed the challenge - Best Day appealed - The Ontario Court of Appeal, applying the revised analysis as set out in Van Breda et al. v. Village Resorts Ltd. et al. (Ont. C.A.), concluded that the court had jurisdiction simpliciter - There were three factors that distinguished these cases from two similar cases which were part of the "Muscutt quintet" and which concluded that Ontario should not assume jurisdiction - First the vacation packages here were purchased in Ontario - Second, Best Day's transportation agreement with Sunwing provided that Ontario law would govern - Third, and most significantly, Best Day entered into indemnity agreements with Sunwing and a company which it had subcontracted the bus service to - By doing so, it acknowledged the expectation that the claims arising out of the accident would be brought and litigated in Ontario - Together, those three factors established the necessary real and substantial connection between the claims and Best Day and the Ontario forum - Any unfairness to Best Day was overridden by the indemnity agreement with Best Day - Although there might be problems enforcing a judgment in Mexico, the plaintiffs had proceeded in the face of any difficulties - If liability was established on a joint and several basis, the plaintiffs could enforce their judgment against Sunwing in Ontario - See paragraphs 12 to 26.

Conflict of Laws - Topic 7281

Contracts - Jurisdiction - General - [See both Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 7284

Contracts - Jurisdiction - Forum conveniens - Best Day Tours, which operated in Mexico, had a contract with Sunwing Vacations, a company headquartered in Toronto, to provide transport between a Cancun resort and the Cancun airport for Sunwing tour guests - On the way from the resort to the airport, the plaintiffs suffered serious injuries when the bus was in a one-vehicle accident - They commenced actions in Ontario against Sunwing and Best Day - Sunwing cross-claimed against Best Day for contribution and indemnity - Best Day challenged the convenience of the Ontario forum - A motion judge recognized factors that made both Ontario and Mexico potentially available fora - However, she declined to exercise her jurisdiction to move the actions from Ontario - Best Day appealed - The Ontario Court of Appeal stated that the motion judge's decision was an exercise of judicial discretion and was subject to deference on appeal - As noted by the judge, although all the liability witnesses were in Mexico, the major issue here was the extent and quantification of damages - The judge also noted that, if necessary, witnesses could appear via video conference - Having said that, the plaintiffs had seen several medical practitioners and medical service providers in Ontario - The key loss of income and collateral benefits witnesses were also in Ontario - The plaintiffs might suffer a juridical disadvantage in Mexico because of the passage of the limitation period in that jurisdiction and the issue of multiplicity of actions as the actions against Sunwing would proceed in Ontario - Finally, the judge noted that the plaintiffs and Sunwing were willing to take on the burden of enforcing any judgment in Mexico - The court concluded that there was no basis to interfere with the judge's determination - See paragraphs 27 to 31.

Conflict of Laws - Topic 7285

Contracts - Jurisdiction - Real and substantial connection - [See second Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 7601

Torts - Jurisdiction - Forum conveniens - [See first Conflict of Laws - Topic 603 and Conflict of Laws - Topic 7284] .

Conflict of Laws - Topic 7602

Torts - Jurisdiction - Tort occurring outside jurisdiction - [See second Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 7605

Torts - Jurisdiction - Real and substantial connection - [See second Conflict of Laws - Topic 603 ].

Cases Noticed:

Muscutt et al. v. Courcelles et al. (2002), 160 O.A.C. 1; 60 O.R.(3d) 20 (C.A.), refd to. [para. 2, footnote 1].

Leufkens v. Alba Tours International Inc. et al. (2002), 160 O.A.C. 43; 60 O.R.(3d) 84 (C.A.), dist. [para. 2, footnote 1].

Lemmex v. Bernard et al. (2002), 160 O.A.C. 31; 60 O.R.(3d) 54 (C.A.), dist. [para. 2, footnote 1].

Sinclair et al. v. Cracker Barrel Old Country Store Inc. (2002), 160 O.A.C. 54; 60 O.R.(3d) 76 (C.A.), refd to. [para. 2, footnote 1].

Gajraj et al. v. DeBernardo et al. (2002), 160 O.A.C. 60; 60 O.R.(3d) 68 (C.A.), refd to. [para. 2, footnote 1].

Van Breda et al. v. Village Resorts Ltd. et al. (2010), 264 O.A.C. 1; 98 O.R.(3d) 721 (C.A.), appld. [para. 2].

Craven v. Strand Holidays (Canada) Ltd., [1982] O.J. No. 3599 (C.A.), refd to. [para. 25, footnote 3].

Counsel:

Timothy J. Law and Assunta Mazzota, for the defendant/appellant, Viajes Beda S.A. de C.V. o/a Best Day Tours;

Wendy Moore Johns, for the plaintiffs/respondents, John May et al;

Eugene G. Mazzuca, for the defendant/respondent, Red Seal Tours Inc. o/a Sunwing Vacations.

This appeal was heard on June 30, 2010, by Feldman, MacFarland and Karakatsanis, JJ.A., of the Ontario Court of Appeal. Feldman, J.A., released the following judgment for the court on October 4, 2010.