



COURT OF APPEAL FOR ONTARIO

CITATION: Cook v. 1293037 Alberta Ltd. (Travellers Cloud 9),
    2016 ONCA 836

DATE: 20161107

DOCKET: C61716

Blair, Epstein and Huscroft JJ.A.

BETWEEN

Gary Cook and Jennifer Corswandt

Plaintiffs (Appellants)

and

1293037 Alberta Ltd. operating

as Travellers Cloud 9

Defendant (Respondent)

Andrew R. Kerr, for the appellants

David W. Powrie and Nick Galanis, for the respondent

Heard and released orally:  November 3, 2016

On appeal from the order of Justice Gregory M. Mulligan
    of the Superior Court of Justice, dated December 21, 2015, with reasons
    reported at 2015 ONSC 7989.

ENDORSEMENT

[1]

The appellants appeal from the order of the motion judge staying their
    action against the respondent corporation on the basis that it has no real and
    substantial connection to Ontario.

[2]

The appellants primary argument is that the motion judge erred in concluding
    that they failed to establish that the action has a real and substantial
    connection to Ontario. The appellants also argue that Ontario should assume
    jurisdiction on the basis of the forum of necessity exception to the real and
    substantial connection test, and that Ontario is a more convenient forum for
    the action.  Finally, they submit that the motion judge should not have heard
    the motion because they were prejudiced by the failure of the respondent to
    provide them with the information necessary for their defence of the motion.

[3]

We reject these arguments.

[4]

None of the presumptive factors set out by the Supreme Court in
Club
    Resorts Ltd.

v.
Van Breda
,

2012 SCC 17,

[2012] 1 S.C.R. 572 is satisfied on
    the facts of this case. The motion judge found that the respondent is an
    Alberta corporation, resident or domiciled in Alberta, and that the accident
    giving rise to the action occurred when the appellant, Gary Cook, was staying
    at the hotel while he worked temporarily in Alberta.

[5]

These findings were open to the motion judge on the record that was
    before him, and they are fatal to the claim that Ontario has jurisdiction
simpliciter
.
    There is no basis to pierce the corporate veil in this case, or to create a new
    presumptive factor, simply because there is evidence that one of the directors of
    the corporation appears to have resided in Ontario for a period of time. The
    corporation is the respondent to the action, not its director, and on this
    record there is no reason to go behind the corporation. There was no evidence
    as to the nature of the respondents hotel business, and in particular no
    evidence as to whether its business was directed at Ontario clients, such that
    it could be said to be conducting its business in Ontario.

[6]

The necessity argument is made because the limitation period for
    bringing the action in Alberta has expired, and the appellants will be unable
    to bring their action if they are not permitted to do so in Ontario. The
    appellants argue that they were unfairly disadvantaged by the change in the law
    following the commencement of this action that resulted from the Supreme
    Courts decision in
Van Breda
. They submit that they would have been
    permitted to bring their action in Ontario under the decision of this court in
Muscutt
    v. Courcelles
,

[2002] O.J. No. 2128 (C.A.), and that they
    should now be permitted to do so pursuant to the necessity doctrine.

[7]

This submission must be rejected.

[8]

The forum of necessity doctrine is an exception to the real and
    substantial connection test, and operates only in extraordinary and exceptional
    circumstances:
Forsythe v. Westfall
, 2015 ONCA 810,

128 O.R. (3d) 124.

[9]

In our view, this is not an appropriate case for the exercise of the courts
    discretion. The appellants made a tactical decision not to bring their action
    in Alberta and it would not be appropriate to relieve them of the consequences
    of that decision. Although the law has changed, we are not persuaded that the
    action could have been brought in Ontario under the old approach. It is not a
    close call under
Van Breda
.

[10]

Finally, we would not give effect to the appellants argument that they
    were prejudiced by the failure of the respondent to provide them with the
    information necessary for their defence of the motion. The appellants did not
    avail themselves of the procedural options open to them.

[11]

In light of these conclusions, there is no need to consider the
forum
    non conveniens
argument.

Disposition

[12]

The appeal is dismissed with costs to the respondent fixed at $7,500,
    inclusive of taxes and disbursements.


R. A. Blair J.A.

Gloria
    Epstein J.A.


Grant
    Huscroft J.A.


