Sinclair v. Venezia Turismo, 2023 ONCA 142, 2025 SCC 27 (40696)
“S held a premium credit card with Amex Canada that gave him access to a concierge and travel agent service. He booked a trip to Europe for himself, his wife and their son using the concierge service associated with his credit card. Then, while in Italy, but prior to arriving in Venice, S called the concierge service to book transportation from the airport in Venice to their hotel, including a water taxi ride. The Amex Canada agent with whom S spoke secured an estimated quote and booking reservation for the Venetian water taxi services from a third‑party travel service provider.
While in transit with S and his family on board, the water taxi crashed into a wooden structure, causing serious injuries to S. S and his wife (the “plaintiffs”) commenced an action in Ontario seeking damages arising out of the accident against a number of defendants, including three Italian companies (the “Italian defendants”), Amex Canada, the third‑party travel service provider and the driver of the water taxi. The Italian defendants brought a motion to dismiss or stay the action as against them on the basis that the Ontario Superior Court of Justice lacked jurisdiction but their motion was dismissed. The motion judge found that the fourth presumptive connecting factor listed in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572 — whether a contract connected with the dispute was made in Ontario — had been established, on the basis of the cardmember agreement between Amex Canada and S and of the contract between Amex Canada and the third‑party travel service provider for the water taxi transportation, and that the plaintiffs had established a good arguable case for the court in Ontario to assume jurisdiction.
The Italian defendants appealed to the Court of Appeal, which unanimously allowed the appeal and held that it would be improper for Ontario to assume jurisdiction. A majority held that the motion judge erred in finding that the fourth presumptive connecting factor from Van Breda had been established and that, even if it had, the presumption of jurisdiction had been rebutted. Another judge, concurring, was of the view that there was an Ontario contract — the cardmember agreement — and therefore that the fourth presumptive connecting factor had been established, but that the Italian defendants had rebutted the presumption. Accordingly, the action against the Italian defendants was stayed.”
The SCC (5:4) dismissed the appeal.
Justice Côté wrote as follows (at paras. 1, 7-9, 41, 47, 81, 141-142):
“This appeal requires an application of the two‑stage test for establishing jurisdiction simpliciter set out in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572. The foundation of any legitimate assumption of jurisdiction is a real and substantial connection between the forum and the dispute. More specifically, this appeal is about whether the fourth presumptive connecting factor identified in Van Breda — “a contract connected with the dispute was made in the province” (para. 90) — has been established or, in other words, whether there is a contractual connection with the province, and, if so, whether the presumption of jurisdiction has been rebutted.
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In cases where parties seek to establish jurisdiction simpliciter in a Canadian forum over a foreign dispute, it is critical that they plead with precision and that courts engage in robust reasoning, which includes a thorough review of the contract being relied upon for the assumption of jurisdiction. Courts should be cautious and not accept tenuous forms of real and substantial connection in the jurisdiction simpliciter context. In cases where there are multiple relevant contracts, courts should analyze each contract, as opposed to relying merely on a vague “constellation of contracts”, which in the present context means a number of related contracts. If the presumptive connecting factor is established, it is for the defendant to assert a rebuttal. The defendant can do so by showing that the presumptive connecting factor does not point to any real relationship between the subject matter of the dispute and the contract made in the province or merely indicates a weak relationship between them.
In the instant case, there are three purported contracts that are said to ground Ontario’s jurisdiction over the dispute: (1) the Centurion Cardmember Agreement between the Sinclairs and Amex Canada; (2) an arrangement between Amex Canada and Carey International to subcontract the procurement of travel services; and (3) a water taxi contract. While I am prepared to accept, for the purposes of this case, that the first contract was formed in Ontario, I cannot make the same determination for the second and third contracts. In light of the basic tenets of contract law, I conclude that the pleadings do not support reliance on the second and third contracts, considered separately or together, to make out Van Breda’s fourth presumptive factor.
As to the Centurion Cardmember Agreement, although I am prepared to accept that it is an Ontario contract, I find that the presumption of jurisdiction has been rebutted because the connection between the dispute and Ontario is very tenuous, if not entirely non‑existent. A real and substantial connection between the dispute and Ontario is simply not present. A conclusion to the contrary would result in jurisdictional overreach and would run counter to the principles of order and fairness espoused by LeBel J. in Van Breda.
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In Kyko Global Inc. v. M/S Crawford Bayley & Co., 2021 ONCA 736, at para. 13, Hoy J.A. held that “the application of the test for jurisdiction simpliciter is a question of mixed fact and law, reviewable for palpable and overriding error, unless an error in the application of the test can be attributed to an extricable question of law”. This Court clarified in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, that, unlike issues involving contractual interpretation, the question of whether a contract was formed is a question of law reviewable on a correctness standard:
- Nonetheless, it may be possible to identify an extricable question of law from within what was initially characterized as a question of mixed fact and law (Housen [v. Nikolaisen, 2002 SCC 33, 2 S.C.R. 235], at paras. 31 and 34‑35). Legal errors made in the course of contractual interpretation include “the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor” (King [v. Operating Engineers Training Institute of Manitoba Inc., 2011 MBCA 80, 270 Man. R. (2d) 63], at para. 21). Moreover, there is no question that many other issues in contract law do engage substantive rules of law: the requirements for the formation of the contract, the capacity of the parties, the requirement that certain contracts be evidenced in writing, and so on. [Emphasis added; para. 53.]
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Writing for a unanimous Court, LeBel J. in Van Breda, at para. 90, set out four factors that presumptively allow a court to assume jurisdiction over a dispute in tort cases:
- (a) the defendant is domiciled or resident in the province;
- (b) the defendant carries on business in the province;
- (c) the tort was committed in the province; and
- (d) a contract connected with the dispute was made in the province.
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Some potential confusion regarding the distinction between jurisdiction simpliciter and forum non conveniens stems from the fact that the jurisdiction simpliciter analysis, as formulated by this Court in Van Breda, itself has two stages: (1) whether there is a presumptive connecting factor; and (2) whether the presumption of jurisdiction can be rebutted. Just as the two stages of the Van Breda test must not be collapsed, special care must be taken not to collapse the rebuttal stage into the distinct doctrine of forum non conveniens. In oral argument, counsel for the British Columbia Chamber of Commerce submitted that the rebuttal stage of the presumptive factor analysis is “concerned with legitimacy and [an assessment of] the strength of the [contractual] connection [to the tort in question], whereas forum non conveniens is concerned with the interests of the parties and the ends of justice” (transcript, at p. 86). I agree with this submission.
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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. 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. This would not be in keeping with the spirit of order and fairness that animated LeBel J. in Van Breda. As such, I find that the presumption has been successfully rebutted.
Accepting that the Centurion Cardmember Agreement was formed in Ontario, I find that the presumption has been successfully rebutted because there is no real and substantial connection between the subject matter of the dispute and the forum. As for the other contracts alleged, they were not formed in Ontario, so there is no presumptive connecting factor to be rebutted. Therefore, Ontario courts do not have jurisdiction over this dispute as it pertains to the Italian defendants.”