August 23, 2019, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Vahle et al. v. Global Work & Travel Co. Inc., 2019 ONSC 3624 (CanLII)
Date of Decision: June 13, 2019
Heard Before: Schabas J.
JURISDICTION: was a tort committed; where was contract made; is there a real and subtantial connection; where does company carry on business; forum non conveniens; defendant fails to make case; motion to disimiss is dismissed
REASONS FOR DECISION
In the fall of 2015, two sisters, Nora and Marija Vahle aged 19 and 20, decided to teach English in Thailand with the company Global Work and Travel Co. Inc.. Global organized the trip for them and in August 2016 they flew to Thailand. After attending a course and obtaining a certificate to teach, Nora and Marija received job placements and began teaching. They were provided with motor scooters to get around. On October 30, 2016, on a day off work, Marija and Nora were riding together on a scooter when they were struck by an automobile operated by a 17-year-old who failed to stop and remain at the scene of the accident.
Tragically, Marija died within hours of her injuries. Nora survived, but suffered serious injuries. Nora and her parents commenced this action against Global, claiming damages for, among other things, breach of contract, breach of trust, negligence, negligent misrepresentation and other torts.
Global is an international travel agency that facilitates cultural exchanges and working vacations and describe themselves as a “market leader across the world” in facilitating working vacations and experiences around the world. Of note, in addition to its Teach in Thailand program, it also offers working holidays in Canada, which includes placing clients in jobs in Ontario. Global markets itself over the Internet, using social media and has clients from across Canada, including Ontario. According to Global, its marketing is limited to the Internet, and potential clients contact them by email or telephone. Global represents that it has “Destination Offices” in many countries to provide ongoing support, using partner organizations in those countries.
Nora contacted Global on or about October 1, 2015. Over the course of several days she had conversations and email exchanges with Global’s employees in Vancouver. Global represented to Nora on its website, in its materials that it sent her, and in conversations that it runs programs in different parts of the world, and that it was a member of travel industry bodies in Canada and elsewhere.
Global’s Teach in Thailand program, sub-headed “Get paid to teach English in Thailand!” was available to individuals between 21 and 45 who met certain educational and other criteria, such as the ability to get a visa and not have a criminal record. As stated on the Global website, the trip included many things including providing teaching placement, cultural orientation, airport pickup, accommodation during the TESOL course and accommodation assistance during placement, and “24/7” support from English-speaking staff during the program. Nora raised the fact that Marija would be under age 21 and was advised that this would not pose a problem and that it would be safe for Marija to participate. Nora and Marija requested verbally, and in their emails, that they be placed together and were advised that this would be the case. Following Nora’s initial contact with Global on October 1, 2015, by October 7 or 8 the sisters had both completed the required online forms to participate in Global’s program, and both Nora and Marija paid deposits of $595 by credit card. The approximate date of departure was September 2016, for a duration of 5 ½ months
Events in Thailand
Global’s Destination Office in Thailand was operated by its project partner, XploreAsia Co. Ltd. Representatives of XploreAsia met Nora and Marija on arrival and transfered them to a hotel in Bangkok and then took them to Hua Hin for the TESOL course over the next four weeks. Toward the end of the course, Nora and Marija were advised by XploreAsia of their teaching job placements in different towns in Thailand. As well, while attending the course, they were advised that they would need to use motor scooters where they would be working. They were given a presentation on road traffic hazards and the dangers of riding motorbikes in Thailand, but received no instruction on how to use motor scooters, and were advised that they did not require licenses.
Despite Nora’s objections, the sisters began their teaching placements in towns about 70 kilometres apart, during the month of October. They were provided with motor scooters by their schools. Aside from 30 minutes in a parking lot, they were given no formal training on how to use them and received no permits or instructions on road safety laws in Thailand.
XploreAsia is a Thai corporation. Although it acts as Global’s partner in Thailand, and its Managing Director, Mike Volpe, is well-known to the head of Global’s Canadian operation, the full scope of the relationship between Global and XploreAsia is not clear as Global refused to produce any additional records describing the relationship, including its contract with XploreAsia. Global asserts that Nora and Marija entered into separate contracts with XploreAsia, and with the entities that arranged the placements and accommodation, Matthew English Service Partnership Limited (“Matthew English”), and the entity that operates the schools, Education Guide Language Schools (“Education Guide”), which Global said are separate and independent organizations. Global did not produce contracts between these entities and Nora and Marija, other than standard forms that were sent to it by XploreAsia after this litigation commenced, which Global was told were examples of what would have been signed.
Nora and Marija were critically injured. They were taken first to the closest hospital that was not equipped to deal with their injuries because the plaintiffs say travel insurance details were not available. They were then transferred to a better hospital where Marija died about 8 hours after the accident. Nora remained in critical condition. It is alleged that neither woman recieved adequate treatment due to Global’s failure to provide travel insurance details to the hospital. On November 1, 2016, Nora was airlifted to Bumrungrad International Hospital in Bangkok, where she had “extensive surgeries…on multiple areas of her body” and “continues to deal with her injuries and is in a slow recovery process. The girls’ parents learned of the accident and Marija’s death, from friends who read about it on social media posts. Global and its staff, it is alleged, were not “reachable by phone and were not available” to the girls’ parents.
The statement of claim alleges, among other things, that Global breached its duty of care, contractual obligations and fiduciary duties, and acted negligently by making untrue, inaccurate and misleading representations regarding the Teach in Thailand program and Global’s services. Global did not advise Nora and Marija of the requirement of riding motor scooters, and the risks associated with doing so. The plaintiffs also plead that Global failed to provide immediate support, and failed to provide insurance details for Nora and Marija to their Destination Offices, and thereby failed to ensure timely and proper medical care. The plaintiffs also assert that Global did not inform the Canadian Embassy or Marija’s and Nora’s parents of the accident in a timely manner, causing Harold and Drazena “immense distress and panic.” The claim states that by reason of these breaches of contract and tortious conduct, “Global (directly and through its partners/agents) caused serious injuries, Marija’s death and other damages to the plaintiffs.”
Global now brings this motion to dismiss or stay the action on the grounds that the Ontario Superior Court lacks jurisdiction and that Ontario is not the convenient forum for the dispute. For these reasons the motion is dismissed.
There is a real and substantial connection between Ontario and the subject matter of the action, and Global has not satisfied me that Thailand, or any other jurisdiction, is clearly a more appropriate forum for the action.
Global raises three issues to be determined on the motion:
- that the Ontario Superior Court does not have jurisdiction simpliciter;
- that service ought to be set aside because the plaintiffs do not satisfy the test for being permitted to serve Global without leave under Rule 17.02; and
- that Ontario is not an appropriate forum for this action (forum non conveniens).
The argument on this motion focused on the first and third issues. While the statement of claim may have failed to state some of the correct sub-rules, Rule 17.02 was cited as required. The main issue before the Court, and on which the parties made argument, is whether the bases for service which also create a presumption of jurisdiction, exist.
In light of the conclusion below, that the action involves an allegation of a tort committed in Ontario (Rule 17.02(g)), which was specifically pleaded, and that there is a basis to conclude that Global carries on business in Ontario, service outside the jurisdiction without leave is permitted. Accordingly, these reasons only address issues (1) and (3).
Jurisdiction and Forum Non Conveniens: General Principles
The test for jurisdiction and the application of the doctrine of forum non conveniens have been applied, tested and decided in Supreme Court. These decisions make clear that for a court to have jurisdiction there must be a “real and substantial connection” between the forum and the subject matter of the litigation. The purpose of the test is to establish a minimum threshold for the assumption of jurisdiction to ensure order, stability and predictability. The constitutional purpose of the jurisdiction simpliciter test is to establish a minimum threshold for the assumption of jurisdiction in order to prevent improper assumptions of jurisdiction. Its objective is to delineate circumstances in which a court has jurisdiction, not circumstances in which it should exercise it (which is the purpose of forum non conveniens). The prioritization of order and predictability at the jurisdiction simpliciter stage is also consistent with the principle of comity, which is central to Canadian private international law (Van Breda, at para. 74).
If jurisdiction is established, the question becomes whether the Court should exercise it, which requires consideration of the doctrine of forum non conveniens.
The Supreme Court recognized a number of presumptive connecting factors to guide courts on jurisdiction:
- Global is domiciled or resident in the province;
- Global carries on business in the province
- the tort was committed in the province; and
- a contract connected with the dispute was made in the province.
However, the existence of a presumptive connecting factor may be successfully rebutted. As the Court stated:
In determining whether a “real and substantial connection” exists between a chosen forum and the subject matter of the litigation, courts are required to consider two issues. First, a court must consider whether the existence of a recognized presumptive connecting factor has been established (Van Breda, at para. 80). If so, the court must consider whether the party challenging the assumption of jurisdiction has successfully rebutted the presumption (Van Breda, at para. 81).
Accordingly, the onus lies on the plaintiff to show that at least one of the presumptive connecting factors can be established. If so, Global may attempt to rebut the presumption. The starting point in determining whether a presumptive factor exists is “the statement of claim, which … defines the issues and informs the opposing parties of the case they have to meet [citation omitted]. It frames the action for the purposes of analysing the assumption and exercise of jurisdiction”: Haaretz.com at para. 21.
Once jurisdiction has been put in issue there may be an evidentiary burden on the plaintiff to substantiate the presumptive connecting factors, especially where there is “insufficient particularity with respect to the jurisdictional facts”. Put another way, “jurisdiction is not determined solely by the words chosen by the lawyer who drafted the pleading.”
The presumptive factors in issue in this case are whether:
- a contract connected with the dispute was made in the province;.
- a tort was committed in the province; and
- whether Global carries on business in the province.
Where Was The Contract Made?
The plaintiff submits that the contracts Nora and Marija entered into with Global were made in Ontario. This is so, they argue, because Nora and Maria were in Ontario when they entered into the contracts by completing the relevant online forms on the Global website.
Globals rely on the principle that a contract is made where the offeror receives notice of acceptance by the offeree. As Global offered the booking terms and conditions through its website and Nora and Maria communicated their acceptance through the website, and as Global is based in Vancouver, Global submits that the contract was formed in British Columbia.
The general rule applies here. Although there was some back-and-forth between the plaintiffs and Global with respect to the “add-on” request that the sisters have their work placement together, Global was clearly the offeror in this situation and once it received the completed, and accepted, terms from the plaintiffs, in Vancouver, the contract was made in British Columbia.
The plaintiffs also submitted that jurisdiction should be presumed because the contract is, or should be, governed by the laws of Ontario, and because the contract was breached in Ontario. These are not grounds for presuming jurisdiction identified by the Supreme Court, but are a basis for service outside Ontario under Rule 17.02 (f). However, even if they are presumptive factors, they are not established here. Global’s terms refer to the “laws of Canada”, not Ontario. While this favours Ontario over Thailand, applicable law is best considered under forum non conveniens where it is identified as a specific criterion. As for the breach of contract, the statement of claim is vague on precisely how the contract was breached but conduct by Global that may be in breach appears to relate to lack of performance in Thailand and in Canada.
Was A Tort Committed In Ontario?
There is more substance to the argument that torts alleged in the statement of claim were committed in Ontario. The claim alleges the torts of negligence and negligent misrepresentation. The plaintiffs plead that Global represented that it would ensure the living, safety, security and emergency needs of Nora and Marija. The plaintiffs have led evidence of representations that may support this pleading found on the Global website, in pre-departure details sent to Nora and Marija, and in verbal representations made to them before and after entering into the contract in October, 2015. In addition, Global represented that Marija could safely participate in the Teach in Thailand program even though she was under 21. Further, as noted, prior to their departure Global never advised Nora and Marija that they would be required to ride motor scooters in Thailand, or of the dangers associated with that activity.
It is also alleged that Global breached its duty of care and acted negligently in causing Nora and Marija to receive inadequate medical care. Global represented that it would send their insurance details to its agent in Thailand which, it is pleaded, did not happen. This compounded Global’s alleged negligence in responding to the accident, including by failing to arrange for proper medical care, failing to notify the Embassy, insurers and Nora’s and Marija’s parents in a timely manner, the last failure causing psychological and emotional distress.
The parties appear to be in agreement that the tort of negligent misrepresentation is committed “where the representation is received and relied upon.At this early stage it is not for the court to assess the merits of the pleading or the facts of the case beyond being satisfied that there is a “good arguable case”. While the statement of claim may not be a detailed account of the misrepresentations, and may require particulars, it does claim for harm arising from Global’s alleged “misrepresentations regarding the Teach in Thailand program and defendant’s services during Nora’s and Marija’s participation in the Teach in Thailand program.” The statement of claim also provides details of the interaction with, and representations of Global made while the sisters were in Ontario. Among other things, it alleges representations of “24/7 emergency services”, and the failure to disclose material risks, “including the requirement to drive a motor scooter.” As well, Global’s conduct following the accident, which is pleaded, may give rise to claims of negligence involving steps it took or ought to have taken in Ontario, and not just Thailand, including contacting Nora’s and Marija’s parents promptly following the accident.
Accordingly, this presumptive factor applies.
Does Global “Carry on Business” In Ontario?
There is no evidence that Global has a physical presence in Ontario. Its employees are based in British Columbia and it has no office in Ontario. The fact that it has a website that is accessible in Ontario and that its ads and promotions on Google and Facebook are received by people in Ontario does not, on its own, amount to carry on carrying on business here, however, Global engages in e-commerce in Ontario by contacting and contracting with travellers in Ontario. It does more than simply receive inquiries from clients based in Ontario. It also places foreign vacationers coming to Canada in Ontario through its working holiday program in Canada and works with businesses here who may employ those individuals. Global thus actively works with clients and businesses in Ontario.
The Supreme Court has upheld orders of the British Columbia courts in which they exercised jurisdiction over Google even though it did not have servers or offices, or any employees in the province where Google gathered information and data in British Columbia which led to targeted search results and targeted advertising towards residents of British Columbia.
Global’s connections to Ontario are at least comparable to Google’s connections with British Columbia. Once contacted by Ontario residents, Global actively solicits their business, as it did here in what the plaintiffs describe as aggressive sales tactics towards them by email and telephone. Global knew that it was contracting with Ontario residents, and assured its clients that the contracts would be governed by “Canadian law” which may be understood by clients to mean the law of the province in which they are located. Accordingly, the plaintiffs have met the burden of demonstrating a good arguable case that Global carries on business in Ontario and there is a presumption of jurisdiction.
Is the Presumption Rebutted?
To the extent that misrepresentations were communicated over the Internet, it may be argued that there is only a weak relationship between the subject matter of the action and Ontario, which may rebut the presumption. The Supreme Court warned of the need for a careful examination of the connection to a forum in Internet defamation cases “where a presumptive connecting factor can easily be established”, stating that what must be reviewed in such cases is whether it would “be reasonable to expect that Global would be called to answer proceedings in that jurisdiction.
In this case, however, Global knew it was dealing with clients in Ontario. It frequently dealt with travellers coming from Ontario, as well as those wishing to have a working holiday in Ontario. Global’s representatives were aware that any representations they made to Nora and Marija were received by them in Ontario. Further, providing that “Canadian law” would apply suggests that Global contemplated that it may be subject to Ontario law.
Global points to the fact that Global was not involved in providing the plaintiffs with motor scooters or in any of the immediate events leading up to the accident, all of which were handled by entities or individuals in Thailand. It relies on Wilson v. Riu, 2012 ONSC 6840 (CanLII), at para. 13, in which the Thomas Cook travel agency, with a presence in Ontario, rebutted the presumption where it appeared to have had nothing to do with the booking of a horseback riding excursion in the foreign jurisdiction, “by reason only of having sent him or her there as part of a travel package” which consisted only of air and ground transportation and hotel accommodation. In finding against jurisdiction, Broad J. expressed the valid concern about opening the court to “universal assumption of jurisdiction”.
Indeed, an underlying purpose of the “real and substantial connection” test is to address “the risk of jurisdictional overreach”, and it must be applied in a manner that reflects the need for “order and fairness” and reflecting “the need for limits on assumptions of jurisdiction” however in this case Global was not just the package tour operator booking air and hotel accommodation. It is alleged, and the evidence suggests that Global provided, and represented that it provided, a much more far-reaching service to its clients through its Teach in Thailand program, connecting it to the events that occurred there.
Forum Non Conveniens
Having established that this court has jurisdiction over the action, it is necessary to consider the question of forum non conveniens, and determine whether the court should exercise jurisdiction. Here the burden is on Global to satisfy the court that an alternative forum is “clearly more appropriate”. In considering this issue the court must consider the characteristics of the alternative forum, whether it would be fairer and more efficient for the action to proceed there, and whether the plaintiff should be denied the benefits of his or her decision to select this forum, which has jurisdiction. In Haaretz.com, the Supreme Court stated at para. 47:
While the normal state of affairs favours exercising jurisdiction in the forum where it is properly assumed, this should never come at the cost of one party facing unfair or clearly inefficient proceedings. The purpose of forum non conveniens, as discussed above, is to temper any potential rigidity in the rules governing the assumption of jurisdiction and to “assure fairness to the parties and the efficient resolution of the dispute” (Van Breda, at para. 104). Where the evidence indicates that the alternative forum is in a better position to dispose fairly and efficiently of the litigation, the court should grant the stay (Van Breda, at para. 109). This is especially true in cases where the evidence raises doubt as to whether proceeding in the chosen forum will provide Global with a fair opportunity to present its case.
The strength or weakness of the connections at the jurisdiction stage, may inform the forum non conveniens analysis. As the Supreme Court stated in Van Breda, para. 109:
The use of the words “clearly” and “exceptionally” should be interpreted as an acknowledgment that the normal state of affairs is that jurisdiction should be exercised once it is properly assumed. The burden is on a party who seeks to depart from this normal state of affairs to show that, in light of the characteristics of the alternative forum, it would be fairer and more efficient to do so and that the plaintiff should be denied the benefits of his or her decision to select a forum that is appropriate under the conflicts rules. The court should not exercise its discretion in favour of a stay solely because it finds, once all relevant concerns and factors are weighed, that comparable forums exist in other provinces or states. It is not a matter of flipping a coin. A court hearing an application for a stay of proceedings must find that a forum exists that is in a better position to dispose fairly and efficiently of the litigation. But the court must be mindful that jurisdiction may sometimes be established on a rather low threshold under the conflicts rules. Forum non conveniens may play an important role in identifying a forum that is clearly more appropriate for disposing of the litigation and thus ensuring fairness to the parties and a more efficient process for resolving their dispute.
The forum non conveniens doctrine is a “flexible concept” which recognizes that a court has “a residual power to decline to exercise its jurisdiction in appropriate, but limited, circumstances in order to assure fairness to the parties and the efficient resolution of the dispute”. There are at least six factors relevant to forum non conveniens identified by the Supreme Court (Van Breda, para. 105):
- the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum;
- the law to be applied to issues in the proceeding;
- the desirability of avoiding multiplicity of legal proceedings;
- the desirability of avoiding conflicting decisions in different courts;
- the enforcement of an eventual judgment; and
- the fair and efficient working of the Canadian legal system as a whole. [s. 11(2)]
Global’s position is that Thailand is clearly the more appropriate forum, submitting that five of the six factors weigh heavily in favour of Thailand. Global notes that witnesses who can address issues such as what was communicated about road safety to Nora and Marija, what occurred during the job placement and acceptance process in Thailand, the use of the scooter by Nora, who provided scooters, how the accident occurred, and the alleged inadequacy of medical care and timeliness of the proposed provision of insurance information, are in Thailand. Many of these witnesses will not speak English and interpreters will be required. Global also submits that the applicable law is Thailand, but this is based on its position that the appropriate contracts are those involving XploreAsia, Matthew English and Education Guide. Global also says that the desire to avoid a multiplicity of proceedings and conflicting decisions, and ease of enforcement of any judgment, favours Thailand as well.
The plaintiffs’ approach forum non conveniens very differently. The action is against Global, a Canadian company active in Ontario which made representations to the plaintiffs in Ontario. The representatives of Global are based in British Columbia, speak English, and can easily travel to Ontario. Under the contract, Canadian law applies and, if this matter is to be tried in Ontario, it would be appropriate to apply Ontario law based on the contract and the principle of lex loci delicti. The plaintiffs argue that it would be unfair to have to bring a proceeding in Thailand against Global when both parties are in Canada; indeed, Global’s position that its “Destination Office” is run by XploreAsia, not Global, which has no employees in Thailand. This undermines the argument of a connection to Thailand by Global and suggests any enforcement proceeding would need to be brought in Canada, or elsewhere, but certainly not in Thailand.
Based on the evidence Justice Schabas determined that Global has not met the burden of demonstrating that Thailand is a clearly more convenient or appropriate jurisdiction for this action.