



COURT OF APPEAL FOR ONTARIO

CITATION: Vahle v. Global Work & Travel
    Co. Inc., 2020 ONCA 224

DATE: 20200318

DOCKET: C67199

Simmons, van Rensburg and
    Harvison Young JJ.A.

BETWEEN

Nora
    Vahle, Harold Vahle, Drazena Mamic

and
    Estate of Marija Vahle, deceased

Plaintiffs (Respondents)

and

Global Work & Travel Co.
    Inc.

Defendant
    (Appellant)

Elizabeth Bowker and Christopher Afonso,
    for the appellant

Allan Morrison and Vibhu Sharma, for
    the respondents

Heard: February 20, 2020

On appeal from the order of Justice Paul B. Schabas of the Superior
    Court of Justice, dated June 13, 2019, with reasons reported at 2019 ONSC 3624.

REASONS FOR DECISION

[1]

In the autumn of 2015, two sisters, aged 19 and
    20, decided they wanted to travel to Thailand to teach English. In August of
    2016, they flew to Thailand to participate in a "Teach in Thailand"
    experience arranged through the appellant, a British Columbia company with
    offices and employees in Vancouver.

[2]

After completing their teaching course, the
    sisters were assigned to different towns and given motor scooters for
    transportation.

[3]

Tragically, while riding together on a motor
    scooter on a day off in October 2016, the sisters were struck by another
    motorist and seriously injured. The younger sister succumbed to her injuries; the
    older sister continues to suffer the lasting effects of the accident.

[4]

The respondents commenced an action in Ontario
    against the appellant, claiming damages for breach of contract, breach of fiduciary
    duty, negligence, negligent misrepresentation and other torts.

[5]

The motion judge dismissed a motion to dismiss
    or stay the action based on lack of jurisdiction
simpliciter
and
forum
    non conveniens
.

[6]

The motion judge applied the test from
Club
    Resorts Ltd. v. Van Breda
, 2012 SCC 17, [2012] 1 S.C.R. 572,
    considering the various presumptive connecting factors.
Among
    other things, the motion judge found a presumptive connecting factor in the
    form of torts committed in Ontario. He concluded that the appellant had not
    rebutted the presumption of a real and substantial connection between the
    subject matter of the litigation and Ontario. After determining that Ontario
    had jurisdiction
simpliciter
, he concluded that the appellant had
    failed to establish that another forum was clearly more appropriate.

[7]

On appeal, the appellant concedes that the
    motion judge summarized correctly the law relating to jurisdiction
simpliciter
and
forum non conveniens
. However, the appellant argues that the
    motion judge erred in his application of the relevant principles.

[8]

We reject the appellant's arguments that the
    trial judge erred in relying on the torts of negligent misrepresentation and
    negligence having been committed in Ontario as presumptive connecting factors;
    in holding that the respondents met the good arguable case threshold; and in
    concluding that the appellant had not rebutted the presumption of a real and
    substantial connection between the subject matter of the litigation and Ontario.

[9]

While acknowledging that the claims for
    negligent misrepresentation may require particulars, the motion judge found
    there was a good arguable case supporting a presumptive factor in respect of
    the claim for harm suffered arising from the appellant's alleged
    misrepresentations to the sisters in Ontario about the "Teach in
    Thailand" program. These included representations that the appellant would
    ensure the living, safety, security and emergency needs of the sisters. In
    addition, claims concerning the appellant's post-accident conduct in Ontario
    concerning contacting the sisters' parents could support a claim in negligence.

[10]

We see no error in the motion judge's conclusion
    that the appellant failed to rebut the real and substantial connection created
    by the presumptive connecting factors established by a tort committed in
    Ontario. In order to rebut a presumptive connecting factor, a defendant must
    establish facts which demonstrate that the presumptive connecting factor does
    not point to any real relationship between the subject matter of the litigation
    and the forum or points only to a weak relationship between them:
Van
    Breda
, at para. 95. The motion judge noted the potential weakness of
    internet representations as a connecting factor. However, he pointed out that
    the appellant was well-aware that it was attracting Ontario clients through
    representations made in Ontario. He also considered the potential minimal role
    of a travel agent when this type of accident occurs in a foreign jurisdiction,
    but concluded that the allegations concerning the appellant were that it
    provided, and represented that it provided, a much more far-reaching service
    than that of a simple travel agent.

[11]

We also see no error in the motion judges
    application of the good arguable case test. The appellant argues that the
    motion judge erred because (1) the facts pleaded by the respondents were not
    capable at law of constituting the cause of action pleaded (concerning the
    claims for negligent misrepresentation, the appellant says that the older
    sister acknowledged on cross-examination that all she was told in telephone
    calls with the appellant was that she would be safe, that this amounts to no
    more than a forecast that is not at law capable of being a misrepresentation and
    that the motion judges reliance on the appellants omission to advise the
    sisters about the requirement to ride motor scooters and the dangers associated
    with that activity is not actionable as a misrepresentation); and (2) on the
    evidence before the motion judge, any viable claims against the appellant that
    are connected to Ontario are not supported.

[12]

We disagree. As the motion judge pointed out at
    para. 26 of his reasons, while there is an evidentiary burden on the plaintiff
    to substantiate the presumptive connecting factors, especially where there is
    insufficient particularity in the statement of claim with respect to the
    jurisdictional facts, this does not mean that the motion judge is to assess
    the merits of the case, but he or she must at least be satisfied that there is
    a good arguable case
supporting a presumptive factor
 (emphasis added),
    taking account of both the allegations in the statement of claim and the
    evidence, where evidence is led .

[13]

The requirement that there be a good arguable
    case supporting a presumptive factor is easily met in this case. The sisters
    were in Ontario when they responded to internet advertisements from Global. At
    least some of the misrepresentations relied on are alleged to have been made to
    them in Ontario, and before they left for Thailand. Further, the motion judges
    finding that there was evidence that may support the misrepresentations pleaded
    and that they occurred in Ontario is supported by the record. While the
    appellant contends that some (not all) of the alleged misconduct was that of a
    Thai company, XploreAsia and other entities for which it is not responsible, at
    para. 13 of his reasons, the motion judge noted that the appellants evidence
    in that regard was deficient. In any event, it is unnecessary on a jurisdiction
    motion for the court to determine whether
all
of the alleged
    misconduct was that of the appellant, as pleaded, or that
all
of the
    alleged misconduct is connected to Ontario:
Van Breda,
at para. 99. It
    is also unnecessary and inappropriate to treat a jurisdiction motion as a r. 21
    motion or to weigh evidence going to the merits of the litigation. Rather, the
    questions on a jurisdiction motion are whether the statement of claim asserts
    the core elements of a cause of action known to law and appears capable of
    amendment to cure any pleadings deficiencies and whether the claimant has
    established a good arguable case that the cause of action is sufficiently
    connected to Ontario to found jurisdiction. As this court noted in
Ontario (Attorney
    General) v. Rothmans Inc.
, 2013 ONCA 353, 115 O.R. (3d) 561, at para. 106,
    leave to appeal refused, [2013] S.C.C.A. No. 327:

[O]n a jurisdiction motion, the motion judge
    is not required to subject the pleadings to the scrutiny applicable on a rule
    21 motion. So long as a statement of claim advances the core elements of a
    cause of action known to law and appears capable of being amended to cure any
    pleadings deficiencies such that the claim will have at least some prospect of
    success, the issue for the motion judge is whether the claimant has established
    a good arguable case that the cause of action is sufficiently connected to
    Ontario to permit an Ontario court to assume jurisdiction.

It is necessary for the purpose of a
    jurisdiction motion for the court to determine whether there is a real and
    substantial connection between Ontario and the claims, when considered as a
    whole.

[14]

Finally, on our review of his reasons, the
    motion judge conducted a thorough
forum non conveniens
analysis and
    considered all the relevant factors. Given the nature of the claims the
    respondents are advancing, in particular, negligent misrepresentation and
    negligence in Ontario, we see no basis on which to interfere with his
    conclusion. It is not for us to reweigh his assessment of the relevant factors.

[15]

For these reasons the appeal is dismissed. Costs
    to the respondents in the sum of $25,000, inclusive of disbursements and HST.

Janet
    Simmons J.A.

K.
    van Rensburg J.A.

A. Harvison
    Young J.A.


