Residents of Ontario, Canada enjoy travelling, particularly to escape the winter weather. While these sun soaked vacations are usually great experiences, there are some occasions when injury occurs while out of the country. This can be due to a car accident, or an injury that occurs while on a vacation resort. The question that is often asked by the Ontario resident is, can I bring a lawsuit in Ontario for an accident that happened in a foreign country? This is an excellent question, and one that has been the subject of consideration by the Supreme Court of Canada. The answer, unfortunately, is it depends. Like many issues in law, there are many factors that need to be considered when determining where a lawsuit can be filed. This area of law is known as conflicts of law, and it requires a careful analysis of the facts and circumstances in the particular case.
In the leading case of Club Resorts Ltd v Van Breada, 2012 SCC 17 (CanLII),  1 SCR 572 the Supreme Court of Canada enumerated factors to be considered when assessing whether an Ontario court could exercise jurisdiction for an accident that occurred abroad. In this case, the accident occurred while on a resort in Cuba. The defendants argued that Ontario courts did not have jurisdiction and that Cuba was the more appropriate forum. In rejecting that position, the Supreme Court of Canada found that, under the circumstances, the Ontario court did have jurisdiction to hear the case.
According to the Supreme Court, the common law real and substantial connection test, requires that the party arguing that the court should assume jurisdiction has the burden of identifying a presumptive connecting factor that links the subject matter of the litigation to the forum. In the case of a tort (personal injury matter), the Court outlined the following factors as presumptive connecting factors 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.
If jurisdiction is established according to the factors listed above, the claim may proceed, subject to the court’s discretion to stay the proceedings on the basis of the doctrine of forum non conveniens. That means, the defendant will still have the opportunity to have the case dismissed on the basis that there is a more appropriate or convenient forum. As the Supreme Court of Canada noted in Club Resorts Ltd v Van Breada:
"If a defendant raises an issue of forum non conveniens, the burden is on him or her to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff. The defendant must show that the alternative forum is clearly more appropriate and that, in light of the characteristics of the alternative forum, it would be fairer and more efficient to choose an alternative forum and to deny the plaintiff the benefits of his or her decision to select a forum. "
As the above reveals, cross border injury cases are unique and present special factors that need to be thoroughly explored. We are leaders in cross-border injury litigation. We have represented countless Canadians injured outside of Canada, and we may be able to help you . To learn more, call us for a Free Consultation. Our phone lines are answered 24/7 - call us now toll free at 866-234-6093 or complete our online contact form here to get started.
Andrew Iacobelli is an experienced personal injury lawyer who established Iacobelli Law Firm with offices located in Ontario, Canada and Florida, U.S.A. Andrew restricts his practice to the representation of personal injury victims in claims involving serious injuries and wrongful death in Canada and the United States. Andrew is the author of "Are You a Canadian Injured in the United States? Claim the Damages and Insurance Coverage the Right Way".
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