Defendant engaged in e-commerce in Ontario
A company that runs working holidays for Canadians overseas lost a recent bid to stay an action launched against it after an Ontario woman died following a motor scooter crash in Thailand on one of its trips.
In Vahle et al. v. Global Work & Travel Co. Inc., 2019 ONSC 3624, the Ontario Superior Court of Justice dismissed a motion by Global to stay the action brought by the family of the dead 19-year-old woman, Marija Vahle.
The court heard Marija Vahle and her sister Nora Vahle had gone to Thailand in 2016 on a “Teach in Thailand” trip and were given motor scooters for transportation. However, in October 2016, a car struck the pair while they were out driving on a motor scooter together, killing Marija and seriously injuring her sister.
After the death, the family of Marija launched the action against the company and claimed damages for “breach of contract, breach of trust, negligence, negligent misrepresentation and other torts.”
The company brought a motion to have the action dismissed, arguing that the Ontario Superior Court did not have jurisdiction over the matter and that Ontario was not a “convenient forum for the dispute,” but it failed in that attempt.
“In my view, there is a real and substantial connection between Ontario and the subject matter of the action, and the defendant has not satisfied me that Thailand, or any other jurisdiction, is clearly a more appropriate forum for the action,” said the ruling.
Global is an international travel agency that has a parent company based in Australia. Global’s Destination Office in Thailand was run by a partner, XploreAsia Co. Ltd., a Thai corporation.
“[T]he full scope of the relationship between Global and XploreAsia is not clear as Global refused to produce any additional records describing the relationship, including its contract with XploreAsia,” said the ruling.
The court noted that Global also had offices and employees in Vancouver, B.C. and is recognized as a corporation in the province.
The company offered overseas trips to Canadians and had a program offering working holidays within Canada, where people could work in jobs in Ontario.
“The plaintiffs and the defendant are both located in Canada. Much of the subject matter of the action relates to the interpretation of the contract between the parties, the duties and obligations between the parties, and the representations made by Global to Nora and Marija. Ontario is a more convenient location for determination of those issues than Thailand,” said the ruling.
Justice Paul Schabas noted that the presumptive factors in the case were determining if “a contract connected with the dispute was made in the province” and if “a tort was committed in the province” as well as if “the defendant carries on business in the province.”
It noted that the company “markets itself over the Internet, using social media such as Facebook and Google.”
“The defendant engages in e-commerce in Ontario by contacting and contracting with travellers in Ontario. It does more than simply receive inquiries from clients based in Ontario. It also places foreign vacationers coming to Canada in Ontario through its working holiday program in Canada and works with businesses here who may employ those individuals. Global thus actively works with clients and businesses in Ontario,” said the ruling.
Chloe Snider, a partner at Dentons LLP in the dispute resolution and transformative technology groups, says that, in her view, the most interesting part of the ruling’s analysis is “the section that deals with whether the defendant carried on business in the province, one of the presumptive connecting factors that can establish a real and substantial connection.
“In this case, the court found that online presence, including a website available to people in Ontario and promotions on social media to people in Ontario, was sufficient to establish that the defendant conducted business in the province — even where there was no physical presence,” she says. “To me, this suggests that courts are becoming more willing to find that a party carries on business in a particular jurisdiction even where it does so only online.”
Snider also pointed to a section of the ruling related to the convenient forum analysis.
“The court commented that that the defendant had provided ‘limited evidence’ on certain issues dealing with the convenient forum analysis,” she says. “This demonstrates the importance of tendering evidence in support of a jurisdiction motion. This, in turn, requires up-front consideration of what your case is likely to look like.”
Hassan Ahmad, a Toronto lawyer, says that, in the era of digital marketing, Canadian courts are required to look at the level of a company's activities within a province.
“Tenuous online connections between a company and a province will not suffice,” he says.
Ahmad also says there are “likely valid concerns about the ability of Thailand's legal system to provide the plaintiffs with their day in court,” even though that wasn’t addressed directly by the court.
“The adequacy of a developing country's legal system is routinely at issue in transnational tort cases,” he says.
“Previous cases in which [forum non conveniens] motions succeeded have essentially meant an end to the litigation.”
Elizabeth Bowker of Stieber Berlach LLP, who represented the defendant, says she has no comment on the ruling.
“As we are in the appeal period for this ruling, I am unable to offer any comments at this time,” she says.