Executive Summary: Key Legal and Evidentiary Issues

• Whether Ontario courts had jurisdiction over foreign defendants under the Van Breda “real and substantial connection” test.

• How to identify a “contract connected with the dispute” for the fourth presumptive connecting factor.

• The sufficiency of pleadings and evidence to establish where relevant contracts were formed.

• The scope of rebuttal and what qualifies as a weak or tenuous connection to the forum.

• The proper characterization of the dispute (tort alone versus torts flowing from contracts).

• Fairness, comity, and avoidance of jurisdictional overreach in cross-border travel claims.

Facts and procedural background

Duncan and Michelle Sinclair, Canadians, planned a European vacation using the concierge and travel service attached to Mr. Sinclair’s American Express Centurion credit card issued by Amex Canada. Through that service, and via a third-party travel supplier (Carey International), Mr. Sinclair obtained an estimated quote and a reservation for a water-taxi transfer from Venice Marco Polo Airport to their hotel. The water taxi—owned by Venice Limousine S.R.L., dispatched by Venezia Turismo, and operated by an Italian driver—crashed into a wooden structure while the Sinclairs were aboard, causing serious injuries. After returning to Canada, the Sinclairs sued multiple defendants in Ontario, including Amex Canada, Carey International, and three Italian companies (Venezia Turismo, Venice Limousine, and Narduzzi e Solemar S.L.R.). The Italian defendants moved to dismiss or stay the action against them on the basis that Ontario lacked jurisdiction. The motion judge dismissed that motion, finding a presumptive connecting factor based on contracts said to have been made in Ontario. The Italian defendants appealed to the Ontario Court of Appeal, which unanimously allowed the appeal and stayed the action against them. The Sinclairs then appealed to the Supreme Court of Canada.

Issues before the Supreme Court

The Court was asked to determine whether Ontario courts could assume jurisdiction simpliciter over the Italian defendants. The governing framework is the “real and substantial connection” test from Club Resorts Ltd. v. Van Breda, which uses presumptive connecting factors—one of which is whether a contract connected with the dispute was made in the province—and allows defendants to rebut the presumption by showing the connection is weak.

Contracts and policy/terms

The Sinclairs relied primarily on the Centurion Cardmember Agreement with Amex Canada, which provided concierge and travel-agent services, and on an alleged arrangement between Amex Canada and Carey International to procure travel services. The record showed that Mr. Sinclair, while in Italy, contacted the Amex concierge, received an estimated quote and “reservation” from Carey International, and later boarded a water taxi in Venice. The majority accepted for purposes of analysis that the cardmember agreement was an Ontario contract, but emphasized that it merely contemplated general travel-agent services and did not dictate the location or nature of specific travel or create obligations between the Sinclairs and the Italian providers. The Court found the alleged water-taxi contract was not shown to have been formed in Ontario and that any arrangement with Carey International did not demonstrate that Venezia Turismo or Venice Limousine were parties to, or within the scope of, an Ontario contract.

Majority reasoning and outcome

Per the majority, even assuming the Centurion Cardmember Agreement was formed in Ontario, the presumption of jurisdiction was rebutted. The connection between that contract and the subject matter of the dispute—an accident on a Venetian water taxi—was too weak. The events occurred in Italy; the service providers were Italian; and the only Ontario link was the use of a Canadian credit-card concierge to obtain a non-binding reservation. Accepting jurisdiction on those facts would risk jurisdictional overreach and offend principles of order and fairness. The Court therefore held that Ontario courts do not have jurisdiction over the Italian defendants.

Dissenting reasons

The dissent would have allowed the appeal and restored the motion judge’s order. It characterized the dispute as interconnected torts flowing from contracts made in Ontario, including allegations that Amex Canada and Carey International undertook to organize safe transportation and negligently engaged or supervised the Italian providers. On that view, the fourth presumptive connecting factor was met and not rebutted because the pleaded duties and alleged negligence flowed from the Ontario contractual relationship.

Final disposition and consequences

The Supreme Court dismissed the Sinclairs’ appeal. As a result, the action against the Italian defendants was stayed for lack of jurisdiction in Ontario. The successful parties at the Supreme Court were the Italian respondents (Venezia Turismo, Venice Limousine, and Narduzzi e Solemar S.L.R.), and the appeal was dismissed with costs. There was no damages or monetary award on the merits ordered in this jurisdictional decision; accordingly, no total monetary award in favour of a plaintiff can be determined from this decision beyond costs on the appeal, the quantum of which is not specified in the reasons.