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Private International Law - Tort

. Integrated Team Solutions PCH Partnership v. Mitsubishi Heavy Industries, Ltd.

In Integrated Team Solutions PCH Partnership v. Mitsubishi Heavy Industries, Ltd. (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, this from a dismissal of a motion brought by a tort class action defendant "seeking an order staying the proceedings against them on the basis that the Ontario Superior Court of Justice either lacks jurisdiction ... ":
(1) Standard of Review

[7] Absent an extricable error of law, the motion judge’s application of the test for jurisdiction and interpretation of the forum selection clause is reviewable for palpable and overriding error. See Kyko Global Inc. v. M/S Crawford Bayley & Co., 2021 ONCA 736, at para. 13; Savanta v. Hilditch, 2022 ONCA 890, at para. 11, citing Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 52.

....

(2) Jurisdiction

[8] An Ontario court has jurisdiction if the plaintiff establishes a good arguable case to assume it, based either on the allegations in the statement of claim or a combination of the pleadings and jurisdiction motion evidence. The plaintiff need not call evidence unless the defendant adduces evidence to challenge the allegations, the pleaded claim appears to be devoid of merit, or it fails to establish that a presumptive connecting factor has an air of reality. See Ontario (Attorney General) v. Rothmans Inc., 2013 ONCA 353, 115 O.R. (3d) 561, at paras. 54, 113, leave to appeal refused, [2013] S.C.C.A. No. 327; Kyko, at paras. 31-32.

[9] The following four presumptive connecting factors prima facie entitle a court to assume jurisdiction over a dispute concerning a tort:
1. The defendant is domiciled or resident in the province;

2. The defendant carries on business in the province;

3. The tort was committed in the province; or

4. A contract connected with the dispute was made in the province.

See Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, at para. 90.
[10] The motion judge found that he had jurisdiction under the third factor because the alleged torts occurred in Ontario. He determined that the claims were primarily grounded in tort, not in contract, and that they were sufficiently pleaded and not merely conclusory. Next, relying on the principle from Moran v. Pyle National (Canada) Ltd., 1973 CanLII 192 (SCC), [1975] 1 S.C.R. 393, at p. 409, he concluded that the alleged torts occurred in Ontario because the damage to the generators did too.

[11] The appellants argue that the motion judge erred in law by applying an incorrect and unduly low threshold to establish jurisdiction. Relying on Abaxx Technologies Inc. v. Pasig and Hudson Private Limited, 2024 ONCA 164, they submit that the respondent plaintiffs needed to plead sufficient material facts to establish all the elements of negligence.

[12] I disagree. A jurisdictional analysis does not assess pleadings for trial purposes. Rather, the statement of claim must only (1) assert the core elements of a cause of action known to law; (2) enable the court to accurately characterize the claims and properly assess their connection to Ontario; and (3) if it contains deficiencies, be capable of amendment to cure them. See Vahle v. Global Work & Travel Co. Inc., 2020 ONCA 224, at para. 13; 2249659 Ontario Ltd. v. Sparkasse Siegen, 2013 ONCA 354, 115 O.R. (3d) 241, at paras. 27-28.

[13] These conditions are met. The motion judge found that the respondent plaintiffs pleaded all elements of negligence and sufficient facts to assess the claims’ connection to Ontario. As well, he found that the pleadings were not deficient, so he did not need to consider whether they were capable of amendment.

[14] The decision in Abaxx does not assist the appellants because that case is factually distinguishable. In that case, the defendants rebutted the presumptive connecting factor with evidence, which the plaintiffs failed to counter. Here, no such evidence was introduced by the appellants.

[15] We also reject the argument that the motion judge failed to consider the jurisdictional question from Kohler’s perspective. The appellants are, of course, correct that the respondent plaintiffs were required to establish jurisdiction against Kohler as well as S.D.M.O. See Sinclair v. Amex Canada Inc., 2023 ONCA 142, 478 D.L.R. (4th) 683, at para. 19, leave to appeal granted, [2023] S.C.C.A. No. 154. But they did so by pleading that Kohler “carried on business” and acted “collectively” with S.D.M.O., an allegation which the appellants called no evidence to rebut. As well, the appellants brought the jurisdiction motion jointly and did not distinguish their positions, except with respect to the contract with GAL Power. While Kohler does not appear to be a party to this contract, that does not make the respondent plaintiffs’ allegations patently ridiculous or incapable of proof because, as the motion judge found, their claims were grounded primarily in tort rather than contract.
. 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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Last modified: 23-04-25
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