Toews et al. v. First Choice Canada Inc. et al., 2014 ABQB 784

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 12, 2014
• Citations: 2014 ABQB 784;(2014), 603 A.R. 296 (QBM)

Toews v. First Choice Can. Inc. (2014), 603 A.R. 296 (QBM)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JA.060

Kerry Toews, Todd Toews and Her Majesty the Queen in Right of Alberta, as Represented by the Minister of Health (plaintiffs) v. First Choice Canada Inc. Operating Under the Trade Names Signature Vacations and Selloffvacations.com, Signature Vacations, Selloffvacations.com, Grand Palladium Vallarta Resort & Spa Formerly Known as Palladium Vallarta Resort & Spa, Fiesta Hotel Group Resorts, Fiesta Hotels & Resorts SL, Fiesta Bavaro Hotels, S.A., Punta Mita Servicios.S.C., Desarrollos Dine, S.A. de C.V. dba Hotel Palladium Vallarta, Dominican Entertainment (Luxembourg) S.A.R.L., Dominican Entertainment S.A.R.L. and Dominican Entertainment S.A. and ABC Ltd. (defendants)

(1103 02073; 2014 ABQB 784)

Indexed As: Toews et al. v. First Choice Canada Inc. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Schulz, Master

December 19, 2014.

Summary:

Toews, a resident of Alberta, booked an all-inclusive vacation through a Canadian company at a Mexican resort (Palladium Hotel) which was wholly owned by a Mexican corporation (Desarrollos). Toews sustained injuries at the resort after she drank a caustic cleaning solution which was left in a water bottle found in her hotel room fridge. Toews commenced an action against, inter alia, the Palladium Hotel and Desarrollos (the defendants), alleging breach of contract, breach of implied warranties, negligence, gross negligence, misrepresentation, and breach of statutory or common law duties. The defendants applied to stay the action as against them on the grounds of jurisdiction simpliciter and forum non conveniens.

The Alberta Court of Queen's Bench dismissed the applications.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter (territorial competence) - The Alberta Court of Queen's Bench stated that "The approach to be taken in the analysis of an application to stay an action on the grounds of jurisdiction simpliciter and forum non conveniens is: 1. Where jurisdiction is challenged, 'more than a summary analysis is called for; the court must treat the resulting constitutional sub-text fulsomely' ... 2. The Court should be slower to assume jurisdiction in international circumstances, as compared to inter-provincial ones ..." - See paragraph 19.

Conflict of Laws - Topic 1665

Actions - Forum conveniens - Procedure for determining forum conveniens - [See Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 7284

Contracts - Jurisdiction - Forum conveniens - [See Conflict of Laws - Topic 7601 ].

Conflict of Laws - Topic 7285

Contracts - Jurisdiction - Real and substantial connection - [See first Conflict of Laws - Topic 7605 ].

Conflict of Laws - Topic 7601

Torts - Jurisdiction - Forum conveniens - A Canadian company (First Choice) entered into a Booking Contract with Dominican Entertainment to purchase a block of rooms at a Mexican resort (Palladium Hotel) that was owned by a Mexican corporation (Desarrollos) - Dominican Entertainment and Desarrollos were owned by the same corporation - Toews, a resident of Alberta, booked a vacation at the resort through First Choice (the Holiday Contract) - Toews sustained injuries at the resort after she drank a caustic cleaning solution which was left in a water bottle in her hotel room fridge - Toews and others commenced an action in contract and tort against, inter alia, the Palladium Hotel and Desarrollos (the defendants) - The defendants applied to stay the action as against them, arguing that the court should decline to hear the matter on the basis of forum non conveniens because Mexico was clearly more appropriate - The Alberta Court of Queen's Bench dismissed the applications - The defendants had not yet identified the specific witnesses they would call nor provided any evidence as to their place of residence - Conversely, the plaintiffs all resided in Alberta - Their fact liability witnesses also resided in Alberta while a further witness, who was a neighbouring guest at the resort, resided in British Columbia - The plaintiffs' medical and expert witnesses resided in Alberta - Alberta was where Toews underwent the vast majority of her medical procedures - First Choice had expressly attorned to the jurisdiction of Alberta and the Holiday Contract was made in Alberta - If a stay was granted in favour of the defendants, there would presumably be a second proceeding in Mexico dealing with similar issues and allegations - See paragraphs 74 to 86.

Conflict of Laws - Topic 7602

Torts - Jurisdiction - Tort occurring outside jurisdiction - [See Conflict of Laws - Topic 7601 and second and third Conflict of Laws - Topic 7605 ].

Conflict of Laws - Topic 7605

Torts - Jurisdiction - Real and substantial connection - The Alberta Court of Queen's Bench reviewed the approach to be followed when determining whether a real and substantial connection existed between a claim and the forum, depending on the cause of action - If a presumptive connecting factor was found, the onus shifted to the defendant to rebut the presumption by establishing facts which demonstrated that the connecting factor did not point to any real relationship or only a weak connection between the subject matter of the litigation and the forum - Where the connecting factor was a contract made in the province, the presumption could be rebutted by showing that the contract had little or nothing to do with the subject matter of the litigation - In a situation where both a contract and a tort existed, it was not necessary to determine whether a rebuttable presumption related to either the claim in tort or contract - The court was not limited to hearing the specific part of the case that could be directly connected with the jurisdiction - The court had to assume jurisdiction over all aspects of the case if a substantial connection existed between the forum, the subject matter of the litigation and the defendant - See paragraph 21.

Conflict of Laws - Topic 7605

Torts - Jurisdiction - Real and substantial connection - A Canadian company (First Choice) entered into a Booking Contract with Dominican Entertainment to purchase a block of rooms at a Mexican resort (Palladium Hotel) that was owned by a Mexican corporation (Desarrollos) - Dominican Entertainment and Desarrollos were owned by the same corporation - Toews, a resident of Alberta, booked a vacation at the resort through First Choice (the Holiday Contract) - Toews sustained injuries at the resort after she drank a caustic cleaning solution which was left in a water bottle in her hotel room fridge - Toews commenced an action against, inter alia, the Palladium Hotel and Desarrollos (the defendants), alleging, inter alia, negligence - The defendants applied to stay the action as against them, arguing that Alberta did not have jurisdiction simpliciter - The Alberta Court of Queen's Bench dismissed the applications - There was a presumptive real and substantial connection between the action and Alberta - The Booking Contract and the Holiday Contract were both made in Alberta, governed by the laws of Alberta, and connected with the dispute and the alleged tort - Although the defendants were not parties to the contracts, they were clearly identifiable as foreseeable and potential defendants within both contracts - Toews' consumption of the substance in the water bottle flowed directly from the relationship created by the Holiday Contract and expressly through the Booking Contract - Further, the incident allegedly occurred in the execution of the defendants' performance obligations as iterated in the indemnity clauses of both contracts - See paragraphs 23 to 57.

Conflict of Laws - Topic 7605

Torts - Jurisdiction - Real and substantial connection - A Canadian company (First Choice) entered into a Booking Contract with Dominican Entertainment to purchase a block of rooms at a Mexican resort (Palladium Hotel) that was owned by a Mexican corporation (Desarrollos) - Dominican Entertainment and Desarrollos were owned by the same corporation - Toews, a resident of Alberta, booked a vacation at the resort through First Choice (the Holiday Contract) - Toews sustained injuries at the resort after she drank a caustic cleaning solution which was left in a water bottle in her hotel room fridge - Toews commenced an action against, inter alia, the Palladium Hotel and Desarrollos (the defendants), alleging, inter alia, negligence - The defendants applied to stay the action as against them, arguing that Alberta did not have jurisdiction simpliciter - The Alberta Court of Queen's Bench dismissed the applications - Two of the presumptive connecting factors under rule 11.25(3) of the Alberta Rules of Court were established - First, the defendants were necessary and proper parties to the action (rule 11.25(3)(i)) - They would be properly joined in the action if they resided and were served in Alberta - There was a spectre of commonality of Toews' claims against First Choice, Dominican Entertainment, the Palladium Hotel and Desarrollos - The claims arose out of the same occurrence - A common question of causation would be shared amongst the defendants as well as the factual question of liability - Second, the claim related to the Booking Contract and the Holiday Contract which were made in Alberta (rule 11.25(3)(b)) - See paragraphs 58 to 71.

Cases Noticed:

1400467 Alberta Ltd. et al. v. Adderley et al. (2014), 585 A.R. 149; 2014 ABQB 85, refd to. [para. 19].

Greenbuilt Group of Companies Ltd. v. RMD Engineering Inc. (2013), 563 A.R. 1; 2013 ABQB 297, refd to. [para. 19].

Norex Petroleum Ltd. et al. v. Chubb Insurance Co. of Canada et al. (2008), 444 A.R. 102; 2008 ABQB 442, refd to. [para. 19].

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

Van Breda et al. v. Village Resorts Ltd. (2012), 429 N.R. 217; 291 O.A.C. 201; 2012 SCC 17, refd to. [para. 21].

Bansal v. Ferrara Pan Candy Co., 2014 ABQB 384, refd to. [para. 21].

Levasseur et al. v. Autorité des Marchés Financiers et al. (2012), 398 N.B.R.(2d) 128; 1032 A.P.R. 128; 2012 NBQB 409, agreed with [para. 38].

Schram v. Nunavut (2013), 406 N.B.R.(2d) 168; 1053 A.P.R. 168; 2013 NBQB 190, agreed with [para. 38].

Wilson et al. v. Riu Hotels & Resorts et al., [2012] O.T.C. Uned. 6840; 2012 ONSC 6840, dist. [para. 42].

Haufler v. Hotel Riu Palace Cabo San Lucas et al., [2013] O.T.C. Uned. 6044; 2013 ONSC 6044, dist. [para. 42].

Tamminga v. Tamminga et al. (2014), 323 O.A.C. 67; 2014 ONCA 478, dist. [para. 43].

Colavecchia et al. v. Berkeley Hotel Ltd., [2012] O.T.C. Uned. 4747; 2012 ONSC 4747, not folld. [para. 44].

Trillium Motor World Ltd. v. General Motors of Canada Ltd. et al., [2013] O.T.C. Uned. 2289; 2013 ONSC 2289, refd to. [para. 50].

Turner v. Bell Mobility Inc. et al. (2014), 581 A.R. 1; 2014 ABQB 36, refd to. [para. 63].

Boreta v. Primrose Drilling Ventures Ltd. et al. (2007), 422 A.R. 159; 415 W.A.C. 159; 2007 ABCA 212, refd to. [para. 67].

Court et al. v. Debaie (2012), 550 A.R. 231; 2012 ABQB 640, refd to. [para. 75].

Black v. Breeden et al. (2012), 429 N.R. 192; 291 O.A.C. 311; 2012 SCC 19, refd to. [para. 76].

Sears Canada Inc. v. C & S Interior Designs Ltd. et al. (2012), 543 A.R. 191; 2012 ABQB 573, refd to. [para. 77].

Pedwell v. SNC-Lavalin Inc. et al., [2014] A.R. Uned. 333; 2014 ABQB 309 (Master), refd to. [para. 77].

Counsel:

Kevin Feehan, Q.C., and Sara Hart (Dentons Canada LLP), for the plaintiff;

Bruce Churchill-Smith, Q.C. (Borden Ladner Gervais), for the defendants, Grand Palladium Vallarta Resort and Spa et al.;

Kelly Robinson (Chomicki Baril Mah LLP), for the defendants, Dominican Entertainment (Luxembourg) S.A.R.L. et al.

These applications were heard on November 12, 2014, before Schulz, Master, of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on December 19, 2014.