Court rules jurisdiction over tort claims grounded due to defendant company’s e-commerce activities

In Vahle et al v. Global Work and Travel Co., Inc., two Ontario sisters had gone to Thailand on a work/travel excursion, brokered via the BC-based defendant company. They were injured in an accident while driving a scooter to their employment, and one sister was killed. The plaintiffs (the surviving sister and her parents) brought a number of tort actions in Ontario against Global, including negligence, negligent misrepresentation, and breach of contract and fiduciary obligations. All dealings between the sisters and Global were conducted through Global’s website. Global argued on a motion that the Ontario Superior Court did not have jurisdiction simpliciter and was not the most convenient forum for the actions.

Justice Paul Schabas of the Ontario Superior Court first noted the Supreme Court of Canada’s jurisprudence on jurisdiction simpliciter included a number of connecting factors which could establish jurisdiction presumptively (though all were rebuttable). On the first, the plaintiffs argued that the contract between the sisters and Global had been made in Ontario, but Justice Schabas applied the usual rule that the contract is made in the jurisdiction where the offeror receives notice of the offeree’s acceptance. The “postal acceptance” exception to the rule did not apply to faxes or emails. On the second presumptive factor, that a tort was committed in Ontario, the plaintiffs had pleaded that substantial negligent misrepresentations were made to them in Ontario, by Global via its website; and that Global’s negligence included failure to notify the parents after the accident and other steps which it should have taken in Ontario. Accordingly, this presumptive factor was made out.

Justice Schabas then turned to the contentious factor of whether Global was “carrying on a business” in Ontario. It was not sufficient that Global had a website that was accessible in Ontario, or that its online ads and promotions were received in Ontario via Google and Facebook. However:

[37] Here, 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.

[38] Since Van Breda, the Supreme Court has upheld orders of the British Columbia courts in which they exercised jurisdiction over Google even though it did not have servers or offices, or any employees in the province: Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 (CanLII), [2017] 1 SCR 824, affirming 2015 BCCA 265 (CanLII). In that case, Google did, however, gather information and data in British Columbia which led to targeted search results and targeted advertising towards residents of British Columbia.

[39] Global’s connections to Ontario are at least comparable to Google’s connections with British Columbia. Once contacted by Ontario residents, Global actively solicits their business, as it did here in what the plaintiffs describe as aggressive sales tactics towards them by email and telephone. Global knew that it was contracting with Ontario residents, and assured its clients that the contracts would be governed by “Canadian law” which may be understood by clients to mean the law of the province in which they are located. Accordingly, the plaintiffs have met the burden of demonstrating a good arguable case that Global carries on business in Ontario and there is a presumption of jurisdiction.

The defendant argued that the internet-based connection was weak and rebutted the presumptive factors. Justice Schabas held:

In this case, however, Global knew it was dealing with clients in Ontario. It frequently dealt with travellers coming from Ontario, as well as those wishing to have a working holiday in Ontario. Global’s representatives were aware that any representations they made to Nora and Marija were received by them in Ontario. Further, providing that “Canadian law” would apply [via the website] suggests that Global contemplated that it may be subject to Ontario law.

The connecting factors were made out, and Justice Schabas further found that Ontario was not forum non conveniens. In the result, the motion to dismiss for want of jurisdiction was dismissed.