A high court majority found no 'real and substantial connection' between the dispute and Ontario
The Supreme Court of Canada ruled Thursday that Ontario’s courts do not have jurisdiction over a dispute between an American Express cardholder and three Italian companies, which the cardholder sued after he was seriously injured on a Venice water taxi that he booked through an Amex concierge service.
In the 5-4 decision, a high court majority found that while the cardholder held an Ontario-based contract with Amex Canada, which supported the notion that Ontario’s courts have jurisdiction over the dispute, that presumption of jurisdiction is discredited because “there is no real and substantial connection between the subject matter of the dispute and the forum.”
The majority said that if making a reservation for the water taxi through an Amex Canada agent was “enough to establish a connection with Ontario, it would follow that any travel reservation made using a credit card travel service would provide a sufficient basis for Ontario to assume jurisdiction over foreign disputes based on torts.
“Service providers in tourist industries spanning the globe would have no way of knowing if and when they could be hauled before an Ontario court simply because, unbeknownst to them, one of their clients had arranged for their services using an Ontario credit card,” the majority said. They added that such a situation would amount to unfairness, unpredictability, and jurisdictional overreach.
Justice Suzanne Côté wrote the opinion for the majority. Justice Mahmud Jamal authored the dissent, supported by Justices Andromache Karakatsanis, Sheilah Martin, and Nicholas Kasirer.
The dispute can be traced back to 2017, when Toronto residents Duncan and Michelle Sinclair booked a trip to Europe with their son through Amex Canada’s Centurion Travel Service. The Sinclairs had access to the travel service because they had the Centurion Card, an invitation-only credit card issued by an Amex Canada affiliate.
In July of that year, Duncan Sinclair called the Centurion Travel Service to book transportation for his family from the Venice airport to their hotel. The resulting travel arrangements included a water taxi reservation, which was booked by a third-party travel service provider contacted by Amex Canada. While the family was on the water taxi, the taxi crashed, seriously injuring Duncan Sinclair.
In 2019, the Sinclairs sued Amex Canada and a number of other defendants, including three Italian companies, in Ontario Superior Court seeking damages for their injuries.
The Italian companies moved to dismiss or stay the action as it pertained to them, arguing that the court lacked jurisdiction. The court dismissed their motion, but the Ontario Court of Appeal unanimously allowed their appeal, concluding that it would be inappropriate for Ontario to assume jurisdiction over the Italian defendants. The Sinclairs appealed to the SCC.
The SCC majority sided with the OCA, dismissing the Sinclairs’ appeal.
Côté wrote that in order to assume jurisdiction over a claim, a court must conclude that there is a “real and substantial connection” between the circumstances that led to the claim and the forum it was filed in.
To determine whether such a connection exists, courts should use the test that the SCC set out in a 2012 decision called Club Resorts Ltd. v. Van Breda, Côté said. If a plaintiff can prove their claim meets one of the four presumptive connecting factors in the Van Breda test, they have established a “real and substantial connection” between the matter and the jurisdiction.
However, the test has a second stage if a plaintiff meets one of the four presumptive connecting factors: the defendant can then try to rebut the presumption of jurisdiction.
The majority found that because the Sinclairs were Amex Canada cardholders, and Amex Canada is an Ontario corporation, it is likely that their cardmember agreement with the company is an Ontario contract. The majority added that this contract is connected to the water taxi accident at the center of the dispute, because Duncan Sinclair used Amex Canada’s concierge service to reserve the water taxi.
The majority concluded that the Sinclairs’ Ontario contract with Amex Canada supports the presumption that Ontario has jurisdiction over the dispute.
However, the majority also found that the Italian companies successfully rebutted this presumption by demonstrating that the existence of the Ontario contract does not establish a real and substantial connection between Ontario and the dispute in Italy. The court noted that the Italian defendants – two of which owned and dispatched the water taxi – had no relationship with Amex Canada, and it is unclear if they had a connection to the third-party travel service provider that booked the water taxi.
“In sum, accepting that the Centurion Cardmember Agreement is an Ontario contract, the inescapable conclusion is that its connection to this dispute is weak, if not non-existent,” Côté wrote. “To hold otherwise would be to vastly expand the ability of Ontario to assume jurisdiction on the basis of simple credit card transactions made by Ontarians while travelling around the world.”
Côté added, “I find that the presumption has been successfully rebutted.”
In the dissent, Jamal said he would have allowed the Sinclairs’ appeal and sided with the Ontario Superior Court motion judge.
While Jamal also found that the Sinclairs satisfied the first stage of the Van Breda test and established that a contract connected with the dispute was made in Ontario, he said the Italian defendants failed to rebut the presumption of jurisdiction.
“The Italian defendants made effectively no submissions to the motion judge on rebuttal, and in any event, the connection between these two contracts and the dispute is sufficiently strong to allow the Ontario court to assume jurisdiction,” he wrote.
The case “alleges that the Sinclairs engaged a specialized Ontario travel service provider and relied on its representations and expertise to organize a safe, seamless travel experience by engaging competent travel service providers in Italy, who would perform their duties with reasonable care and diligence,” Jamal said.
“It does not involve jurisdictional overreach to hold that the Sinclairs’ allegations of negligence against the Italian defendants flowing out of their contracts made in Ontario should be adjudicated in Ontario.”
In a statement to Canadian Lawyer on Thursday, David Zuber of Zuber & Company LLP, who represented the Italian defendants, said, “We are pleased with the analysis and decision of the majority of the Supreme Court of Canada.
“The majority of the court reaffirmed the analysis in Van Breda and helped clarify the Court’s decision in Lapointe [Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP],” Zuber said. “We will continue to defend the case on behalf of Amex Canada.”
Counsel for the Sinclairs did not respond to a request for comment.
