A recent Supreme Court of Canada decision means that you may not be able to recover in Ontario for injuries suffered while on vacation, even if the contract for that vacation – or part of it – was made in Ontario. In Sinclair v Venezia Turismo, 2025, SCC 27, the Court dismissed the injured plaintiffs’ appeal as against the Italian defendants for injuries sustained while travelling in a water taxi that crashed into a wooden structure in Venice, Italy. The decision provides guidance for injured plaintiffs on establishing the correct jurisdiction to bring a claim.
In a 5-4 split decision, the Supreme Court held that, while the plaintiffs established a presumptive connection to Ontario through a credit card agreement with Amex, the connection was not sufficient to allow the claim to proceed in Ontario as against the named Italian defendants. The Court emphasized that a contract formed in Ontario is not enough on its own to establish jurisdiction over foreign defendants when there is a lack of a real and substantial connection with respect to the dispute and the choice of forum.
When can an injured plaintiff bring a claim in Ontario?
In any claim for injuries that occurred outside of Ontario (or Canada), the court must be convinced that there are strong ties between Ontario, the claim itself, and the individuals involved in the claim. This is called “jurisdiction simpliciter”, and it makes sure that court cases are not brought in a location that has little or no meaningful link with the claim or the individuals involved in the claim.
The two-stage approach established in Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (“Van Breda”) has long been used by the courts to determine whether a matter being litigated has a real and substantial connection to the respective provincial jurisdiction that the claim is filed.
The first step is for the court to weigh the connecting factors to determine whether a real and substantial connection exists.
The second step, assuming a connecting factor has been established, is for the court to assume jurisdiction over the matter unless the defendant is able to rebut the connecting factor. The defendant can rebut this connection by showing the connecting factor is too weak to establish jurisdiction in the respective province.
In Van Breda, the plaintiff suffered injuries while at a resort in Cuba and tried to sue for those injuries in Ontario. The SCC determined that Ontario had jurisdiction in the case because the contract with the resort was entered into in Ontario, and the events that transpired stemmed from this contract. The resort failed to rebut this presumption.
The four factors that presumptively allow a court to assume jurisdiction over a dispute in tort cases are as follows:
(a) the defendant is domiciled or resident in the province;
(b) the defendant carries on business in the province;
(c) the tort was committed in the province; and
(d) a contract connected with the dispute was made in the province.
The decision in Sinclair focused on the fourth factor: whether the contract connected with the dispute was made in Ontario.
Sinclair v. Venezia Turismo, 2025 SCC 27:
The plaintiffs suffered serious injuries while aboard a Venetian water taxi during a family vacation in Italy (the “Accident”). The Amex card used by the plaintiffs provided for concierge service to book transportation, and Amex coordinated via a third-party travel provider a booking with Italian taxi operators. While the plaintiffs were on board, the water taxi collided with a wooden structure, and the plaintiffs were injured. After returning to Ontario, the plaintiffs brought an action as against three Italian companies (the “Italian defendants”), Amex Canada, the third-party travel service provider, and the driver of the water taxi. The Italian defendants brought a motion to dismiss or stay the action as against them for lack of jurisdiction.
The motion judge found that the fourth presumptive connecting factor under Van Breda, the existence of a contract connected with the dispute made in Ontario, was satisfied. The motion judge pointed to two contracts having been formed: the Amex Cardmember Agreement (the “Agreement”) formed in Ontario, and a second contract between Amex and the plaintiffs or the third-party travel provider for the travel booking services. The motion judge found these connecting factors were enough to give Ontario courts jurisdiction.
The decision was appealed to the Ontario Court of Appeal. The Court of Appeal disagreed with the motion judge, noting that the Italian defendants had rebutted the presumption of jurisdiction even if the Agreement was an Ontario contract.
The plaintiffs appealed to the Supreme Court of Canada. The Court dismissed the appeal and concluded that the connection between the Agreement and the Accident was weak, and that a potential connection between the Italian Defendants and the Agreement was even more remote and difficult to establish.
Key Takeaway Points from the Sinclair Decision:
- Establishing Jurisdiction
Jurisdiction over a foreign defendant depends on whether there is a real and substantial connection between the forum and the dispute guided by the factors set out in Van Breda. The defendant can rebut the presumption of jurisdiction if the connection to the foreign defendant is considered by the court to be weak or remote.
- Rebutting Jurisdiction
The majority for the SCC in Sinclair went on to note that, assuming an Ontario contract existed, the connection between that contract and the Italian defendants was too remote. The tort occurred in Italy, on a water taxi that was owned by an Italian company, dispatched by a different Italian company, operated by an Italian national, and procured by the plaintiffs while on Italian soil with no operations in Canada.
It is anticipated that after this decision, lower courts will scrutinize the rebuttal stage of the two-stage approach in Van Breda even more to avoid cases of jurisdictional overreach with torts occurring outside Canada.
- Pleading a Contract Requires Details
The plaintiffs also failed to plead specific facts to establish that any contract other than the Agreement had been formed in Ontario. Booking a water taxi through Amex while in another country was not considered a new contract, but rather a performance under the Agreement with Amex. Injured plaintiffs suing for injuries that occurred in another country tied to a contract formed in Ontario must ensure the details of the contract formation are clearly defined in the pleadings.
For all your litigation questions, feel free to contact Dylan Zamani and our Litigation team at Soloway Wright LLP.
