Ontario: claim against Mexican hotel stayed for lack of jurisdiction

Michael Wukoschitz's picture

In the spring of 2006, the plaintiff, Angela Haufler, was injured while on vacation in Mexico with her mother, a friend, and the friend's mother. The injury occurred while she was participating in an all-terrain vehicle (“ATV”) excursion. She was immediately flown back to Canada for treatment. As a result of the injuries she sustained, Angela Haufler commenced this action against Rancho Tours, the ATV excursion operator, through her mother as Litigation Guardian, and her mother and father in their own rights, alleging negligence in the supply of a defective ATV, as well as inadequate instruction. However, Rancho Tours is presumed to be bankrupt. It has not responded to the claim. It was not represented and did not take any position on this motion.

The plaintiffs made the same allegations against Hotel Riu Palace Cabo San Lucas, the hotel where Angela and the other vacationers were staying during their Mexican vacation (the “Hotel”). However, the Hotel said it had nothing to do with the ATV excursion and moved for an order staying the action on the basis that the court had no jurisdiction over it, and in the alternative, that the court should decline to exercise its jurisdiction based on the doctrine of forum non conveniens.

The case languished for seven years, because the parties awaited the Supreme Court of Canada’s decision in Club Resorts Limited v. Van Breda , which established a refined test for the assumption of jurisdiction based on a “real and substantial” connection between the foreign defendant and the forum asserting jurisdiction., requiring the plaintiff to demonstrate the existence of one of four rebuttable presumptive connecting factors before a Canadian court will assume jurisdiction over an action involving a foreign defendant:

  1. the defendant is domiciled or resident in  the province;
  2. the defendant carries on business in  the province;
  3. the tort was committed in the province; or,
  4. a contract connected with the dispute was made in the province.

As a result, the court agreed with the Hotel, that there was virtually no connection to Ontario:

  • the hotel did not carry on business in Ontario (in particular, the Court held that the travel wholesaler in Ontario who had sold the vacation to the plaintiffs was an independent entity, and not an agent of the Hotel);
  •  the alleged negligent operation of an ATV excursion had happened in Mexico; and
  • the only contracts of relevance were made in Mexico.

Case: Haufler v. Hotel Riu Palace Cabo San Lucas, 2013 ONSC 6044; full text of judgement available here>>.