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Private International Law - Tort. Airia v Air Canada
In Airia Brands Inc. v. Air Canada (Ont CA, 2017) the Court of Appeal considers the factors involved in a court taking jurisdiction over a tort matter under the "real and substantial connection" test:[57] Justice Lebel [in Van Breda v. Village Resorts Ltd. (SCC, 2012)] outlined a list of presumptive connecting factors for torts. The onus is on a plaintiff to establish that one or more of the presumptive factors exists. If one or more of the presumptive connecting factors applies, the court should assume that it has jurisdiction over the claim. However, the presumption of jurisdiction is rebuttable. A defendant may rebut the presumptive effect of any of the factors to demonstrate that the court lacks jurisdiction. To do so, the defendant must establish, as outlined at para. 95, that the factor “does not point to any real relationship between the subject matter of the litigation and the forum”, or that the relationship between the subject matter and the forum is weak.
[58] The Supreme Court set out the following four, non-exhaustive presumptive connecting factors for tort cases that, prima facie, entitle a court to assume jurisdiction over a dispute:(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. [59] At para. 91, Lebel J. described the following considerations to assist in identifying new presumptive factors:(a) similarity of the connecting factor with the recognized presumptive connecting factors;
(b) treatment of the connecting factor in the case law;
(c) treatment of the connecting factor in the statute law; and
(d) treatment of the connecting factor in the private international law of other legal systems with a shared commitment for order, fairness and comity. . Kaynes v BP (Ont CA, 2014)
In Kaynes v BP (Ont CA, 2014) the issue was not only where the venue of the case should be, but where the tort occured (which of course feeds into the venue determination):[27] Since Dickson J.’s landmark decision in Moran v. Pyle National (Canada) Ltd., 1973 CanLII 192 (SCC), [1975] 1 S.C.R. 393, Canadian courts have rejected the rigid and unduly mechanical “place of acting” test for determining the place of commission of a tort for purposes of determining jurisdiction. Moran v. Pyle involved a defective light bulb that was manufactured in Ontario and that caused injury in Saskatchewan. The defendant did not carry on business in Saskatchewan, all its manufacturing and assembly operations were in Ontario and it did not directly sell it products in Saskatchewan. The Supreme Court held that the tort was committed in Saskatchewan. As Dickson J. explained at p. 409:[W]here a foreign defendant carelessly manufactures a product in a foreign jurisdiction which enters into the normal channels of trade and he knows or ought to know both that as a result of his carelessness a consumer may well be injured and it is reasonably foreseeable that the product would be used or consumed where the plaintiff used or consumed it, then the forum in which the plaintiff suffered damage is entitled to exercise judicial jurisdiction over that foreign defendant ... By tendering his products in the market place directly or through normal distributive channels, a manufacturer ought to assume the burden of defending those products wherever they cause harm as long as the forum into which the manufacturer is taken is one that he reasonably ought to have had in his contemplation when he so tendered his goods. [28] In my view, the same line of reasoning applies here. By releasing a document outside Ontario that BP knew it was required to send to Ontario shareholders, BP committed an act with sufficient connection to Ontario to qualify as the commission of a tort in Ontario.
[29] I find the reasons of Goudge J.A. in Central Sun Mining Inc. v. Vector Engineering Inc. 2013 ONCA 601 (CanLII), 117 O.R. (3d) 313 (C.A.) instructive on this issue. That case involved a claim for negligent misrepresentation based on reports prepared in the United States and sent to the plaintiff’s office in Vancouver. Decisions relying on those reports were made by senior executives of the plaintiff located in Ontario. There was some question as to whether the reports had been sent to Ontario. This court found that even if they had not, there was a sufficient connection with Ontario to establish a real and substantial connection for purposes of jurisdiction (at para. 33):The respondents foresaw that their studies would be received by the appellant and acted on in Toronto. They should have expected to be called to account in Ontario. In the modern world where corporations have various offices in various locations, corporate defendants should not escape liability simply because they send their studies to an office of the plaintiff outside Ontario with the clear understanding that it will be acted on in Ontario. [30] While the present case does not involve a claim for negligent misrepresentation, I see no reason not to hold, by analogy, that when BP released documents that it was legally required to provide its Ontario shareholders, it committed an act that that had an immediate and direct connection with Ontario, an act that is sufficient to establish a real and substantial connection between the claim of this plaintiff and Ontario. In my view, the legislature could not have intended that a foreign corporation such as BP could avoid the reach of Ontario’s securities regime simply because the initial point of release of the document was outside Ontario.
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