



COURT OF APPEAL FOR ONTARIO

CITATION: Di Gregorio v. Sunwing Vacations Inc., 2018 ONCA
    655

DATE: 20180720

DOCKET: C64960, C64961, C64962 and C64963

Feldman, Hourigan and Brown JJ.A.

DOCKET: C64960

BETWEEN

Daniel Di Gregorio, Mary Di Gregorio

and Raymond Di Gregorio

Plaintiffs/Appellants

and

Sunwing
    Vacations Inc. and
AM Resorts, LLC

Defendants/
Respondent

DOCKET: C64961

BETWEEN

Natalie Di Gregorio, Finaldo Di Gregorio, Leonarda Di Gregorio,

Norelle Di Gregorio, Sara Di Gregorio, Monica Di Gregorio,

Carmen
    Pugliese, Marisa Pugliese, Warren Pitton, Eduarda Pitton,

Olivia
    Pitton, Carla Pitton and Robert J. Dagostino

Plaintiffs/Appellants

and

Sunwing
    Vacations Inc.,
AM Resorts, LLC. and

AMR
    Resort Management, LLC.

Defendants/
Respondents

DOCKET: C64962

BETWEEN

Daniel Di Gregorio, Mary Jane Di Gregorio, Raymond Di
    Gregorio,

Johnny Pitton, Armand Pitton and Candida Pitton

Plaintiffs/Appellants

and

AMR
    Resort Management, LLC

Defendant/Respondent

DOCKET: C64963

BETWEEN

Johnny Pitton, Armand Pitton and Candida Pitton

Plaintiffs/Appellants

and

Sunwing
    Vacations Inc. and
AM Resorts, LLC

Defendants/
Respondent

William G. Scott, for the appellants

Theresa Hartley and Irina Sfranciog, for the respondents

Heard: July 5, 2018

On appeal from the orders of Justice Kim A. Carpenter-Gunn
    of the Superior Court of Justice, dated January 10, 2018.

REASONS FOR
    DECISION

A.

introduction

[1]

This is an appeal from the orders of the motion judge dismissing the
    appellants claims based upon a foreign limitation period. For the reasons that
    follow, the appeal is allowed.

B.

Facts

[2]

The motion judge dismissed four actions commenced by the appellants as
    they relate to the respondents, AMR Resort Management, LLC (AMR) and AM
    Resorts, LLC (AM).

[3]

In September 2010, the appellants purchased a vacation package to attend
    the Dreams Punta Cana Resort and Spa (Dreams Resort) over the winter
    holidays. In their statements of claim, the appellants allege that on January
    1, 2011, Daniel Di Gregorio and Johnny Pitton were standing on a hotel room
    balcony at the Dreams Resort when the balcony railing gave way, causing the two
    men to fall to the ground and sustain injuries.

[4]

The appellants purchased their vacation package through their travel
    agent, from Sunwing Vacations Inc. (Sunwing). Sunwing had a contract with
    Perfect Tours NV (Perfect Tours) with respect to bookings at the Dreams
    Resort. Perfect Tours was party to a hotel management agreement between AMR and
    Inversiones Vilazel, a Dominican company that owned the Dreams Resort. In their
    statements of claim, the appellants allege that at all material times, AMR and
    AM operated the Dreams Resort hotel.

[5]

As noted above, the appellants commenced four separate actions in
    relation to this incident, all in Ontario. In two of those actions, the
    statements of claim were issued on December 28, 2011. In the other two, the
    statements of claim were issued on December 18, 2012. The respondents AMR and
    AM, or one of the two, are parties to each of the four actions.

C.

The decision below

[6]

AMR and AM moved to stay or dismiss the actions against them.
    Collectively, they argued that the Ontario courts do not have jurisdiction over
    the dispute and are not a convenient forum for the action. Alternatively, if
    the Ontario courts do have jurisdiction, they submitted that the laws of the
    Dominican Republic govern the action, and as the limitation period to claim in
    tort in the Dominican Republic is six months, the actions were statute-barred.

[7]

Without addressing the jurisdictional argument, the motion judge first
    dealt with the limitation issue, calling this a threshold issue. She
    determined that the laws of the Dominican Republic applied, that the actions
    could only be in tort as the appellants had no contractual relationship with
    AMR or AM, and thus that the actions were statute-barred.

[8]

The motion judge dismissed the appellants four actions as against AMR
    and AM.

D.

Analysis

[9]

On the motion, the respondents raised the issue of whether the Ontario
    courts have jurisdiction. The motion judge declined to consider that issue and
    inexplicably jumped to an analysis of the law of the Dominican Republic. That
    was an error in law. The motion judge was obliged to conduct a jurisdictional
    analysis pursuant to
Club Resorts v. Van Breda
, 2012 SCC 17,
[2012] 1 S.C.R. 572. In
    the absence of jurisdiction, courts should not be offering their views on cases
    that may not be properly before them.

[10]

Had
    the motion judge conducted the jurisdictional analysis, she would have
    recognized that AM attorned to the Ontario courts because it filed a defence.
    AMR did not file a defence; it simply joined the motion for the stay. The
    motion judge should have identified the basis for jurisdiction over AMR.

[11]

In
    our view, the relevant jurisdictional connecting factor is the claim pleaded
    based on an Ontario contract. As will be discussed below, there is a dispute
    about whether the respondents were parties to that contract. For jurisdictional
    purposes, however, a contractual connection does not require that an alleged
    tortfeasor be a party to the contract or that its liability flows immediately
    from its contractual obligations. All that is required is that a defendants
    conduct brings it within the scope of the contractual relationship and that the
    events that give rise to the claim flow from the contractual relationship:
Lapointe
    Rosenstein Marchand Melanç
on LLP. v. Cassels Brock & Blackwell LLP
,
    2016 SCC 30, [2016] 1 S.C.R. 851, at paras. 32 and 44. We conclude that there
    is a contractual connecting factor to Ontario and our courts have jurisdiction
simpliciter
over AMR. On appeal, the respondents do not challenge jurisdiction on the basis
    of
forum non conveniens
, so we need not consider that issue.

[12]

Turning
    to the motion judges analysis of the limitation period, there was no issue
    that the law of the Dominican Republic would apply. There was also no dispute
    that under the laws of that country, negligence claims are subject to a six-month
    limitation period and that contract claims are subject to a two-year limitation
    period. The difficulty lies in the motion judges analysis of the issue of
    whether the claim was in tort or in contract.

[13]

The
    first problem is that it is unclear on what basis she was determining the
    limitation period issue. The parties advised in oral argument that the issue
    was argued as a summary judgment motion. However, there is no reference to rule
    20 in the notice of motion or in the reasons. The test for granting summary
    judgment is also not referred to in the reasons and there is no analysis of
    whether it had been met. As noted, however, counsel before the motion judge
    appear to have treated the motion as one for summary judgment. The moving parties
    ought to have made the rule they were relying on explicit in their materials.

[14]

There
    is also scant analysis on the issue of whether the appellants have a claim in
    contract. Instead, the trial judge simply asserts a bald conclusion that there
    is no contract claim in relation to the respondents. To the extent that any
    analysis can be discerned it is flawed. For example, the motion judge states
    that, the only contractual breach pleaded by the plaintiffs is that between
    the plaintiffs and the vendor hotel accommodation, the Sunwing defendant That
    is incorrect. The statements of claim include the following plea:

As the vendor of the hotel accommodation which the plaintiffs
    purchased through Sunwing Vacations Inc., AMR Resort had a contractual
    obligation to ensure that the purchasers of the hotel accommodation were not
    exposed to dangers or hazards while exercising their contractual rights to
    utilize accommodations.

The same plea appears in the actions involving AM,
    simply with AM Resorts substituted for AMR Resort.

[15]

It
    is plain that a breach of contract claim was being asserted against the
    respondents.

[16]

In
    addition to this factual error, the motion judge did not address in any
    meaningful way the appellants key argument. The appellants relied on the fact
    that they had a contract with Sunwing, who had a contract with Perfect Tours,
    who in turn had a contract with the respondents. The appellants counsel argues
    that his clients had a contract with respondents via agency or as an implied contract.
    The motion judge dismissed that submission without analysis. She did not, for
    example, avert to the contract between the appellants and Sunwing, which
    provided in part:

HOTELS RESPONSIBILITY

The accommodation voucher, or electronic confirmation
    number, furnished by Sunwing shall constitute the sole contract between the
    hotels/resorts and you, the passenger. The hotels and resorts depicted in this
    brochure will not be held liable for any act, omission or event during the time
    passenger(s) are not staying at their establishments. Neither Sunwing nor these
    properties are responsible for payment of any refund for unused accommodations
    or meals as a result of late arrival or non-arrival by passenger(s), regardless
    of the cause.

[17]

At
    first blush, this provision suggests that there is a contract between the
    appellants and the hotel. This is inconsistent with the position taken by the respondents.
    We make these comments to underscore the difficulty we are having in
    understanding the motion judges chain of reasoning. We do not suggest that on
    a proper analysis the contractual arguments made by the appellants cannot be
    rejected. But legal analysis must be rigorous; a series of conclusory
    statements is not sufficient.

[18]

As
    a court of error correction, we require reasons that reveal, at a minimum, the
    decision made, the authority for the decision, the rationale for the decision,
    and the factual basis for the decision. Where that basic information is not
    provided or is not readily apparent from the record, the reasons do not permit
    appellate review.

[19]

We
    conclude that in addition to the palpable and overriding error of fact made by
    the motion judge, the reasons are inadequate, as they are not amenable to
    appellate review. They do not enlighten the parties or this court regarding the
    basis for the decision.

E.

Disposition

[20]

The
    appeal is allowed. The orders of the motion judge are set aside. The matters
    may proceed to trial or for a summary judgment motion as the parties see fit.

[21]

The
    appellants are entitled to their costs below. If there is any issue about the
    quantum of those costs, the parties shall make submissions to the motion judge.

[22]

The
    appellants are entitled to their costs of the appeal in the agreed upon amount
    of $7,500, all-inclusive.

K.
    Feldman J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.


