Saveva v. Flight Centre, 2012 ABQB 477

Court of Queen ’ s Bench of Alberta Citation: Saveva v. Flight Centre, 2012 ABQB 477 Date: 20120724 Docket: 1003 09267 Registry: Edmonton Between: Boryana Todorova Saveva Plaintiff - and - The Flight Centre, The Flight Shops Inc. Carrying on Business As Flight Centre, Barcelo Puerto Plata and Barcelo Corporacion Empersarial S.A. Carrying on Business As Barcel ó Group and Transat Tours Canada Inc., Playa Flamenco B.V. and Hotelera Bavaro, S.A. Defendants ______________________________________________________ Memorandum of Decision of W. S.

Schlosser, Master in Chambers _______________________________________________________ [ 1 ] There was an accident at the hotel in the Dominican Republic when the Plaintiff was on vacation. She was hoping for an enjoyable time in the sun. But things went terribly wrong. On the night she arrived she was rendered unconscious by carbon monoxide in her room. She languished for several days but recovered. Her companion died. At least that is what is alleged in the Statement of Claim. [ 2 ] When Ms.

Saveva returned to Edmonton she sued the Resort ( ‘ the Resort Defendants ’ ) and those involved with her package vacation. [ 3 ] The Resort Defendants do not want to be sued in Alberta. They have applied to set aside service of the Statement of Claim and argue that the Dominican Republic is the proper forum. The other Defendants are neutral. They apparently prefer to be sued here if they are to be sued anywhere. The jurisdiction application is scheduled for December 10.

[4] The Resort Defendants have five Affidavits in support of their application: two from Fairfax, Virginia and three from theDominican Republic. Two of the three witnesses are employees or officers of the Resort Defendants. The third is from a DominicanRepublic lawyer who provides facts and opinions about the Dominican Republic’s legal system. He has been at the bar for nine yearsand would prefer a translator. [5] The Plaintiff wants to examine on these Affidavits. The Resort Defendants want conduct money. [6] The Plaintiff is of modest means and income.

She has provided evidence of her income in opposition to the ResortDefendants’ application for conduct money. She has also provided financial information about some of the Resort Defendants andargues that they are wealthy International Corporations best able to afford the expenses of their witnesses. [7] The Plaintiff argues that there is a broad unfettered discretion to do what is fair. She cites Nickol v. McKay Brothers FarmImplements Ltd., (1995) (AB KB), 26 Alta. L.R. (3d) 355 (Alberstat M).; W.R. Carpenter North America Inc. v.Skyreach Equipment Inc., 2003 ABQB 259 (Breitkreuz M.); JED.

Executive Services Ltd. v. UT Quality Inc., 2009 ABQB 606 (LeeJ.); and, Parwinn Developments Ltd. v. 375069 Alberta Ltd., 1998 ABCA 388 , 228 AR 348, [1998] A.J No. 1353 (C.A.). [8] The Resort Defendants argue that there is a general rule within the otherwise unfettered discretion, which is that the partywith the onus pays the conduct money. At least that is the starting point. (W. R. Carpenter (above) at para 12). They cite Van Breda v.Village Resorts Ltd. 2012 SCC 17 and say that the onus is on the Plaintiff with respect to the forum.

Therefore, the Plaintiff should haveto pay the conduct money to bring these three witnesses to Alberta. [9] It was estimated that the conduct money could be in the range of $5,500.00. As an alternative, the Resort Defendants haveoffered to produce the witnesses by video teleconference at their expense. [10] The question is whether I should dispense with conduct money pursuant to Rule 6.17(1). Onus [11] Rule 11.25 provides: 11.25

(2) A commencement document may be served outside of Canada only if (

a) a real and substantial connection exists between Alberta and the facts on which a claim in an action is based and thecommencement document is accompanied with a document that sets out the grounds for service of the document outside Canada, or

(3) Without limiting the circumstances in which a real and substantial connection may exist between Alberta and the facts on whicha claim in an action is based, in the following circumstances a real and substantial connection is presumed to exist: (

a) the claim relates to land in Alberta; (

b) the claim relates to a contract or alleged contract made, performed or breached in Alberta; (

c) the claim is governed by the law of Alberta; (

d) the claim relates to a tort committed in Alberta; (

e) the claim relates to the enforcement of a security against property other than land by the sale, possession or recovery of theproperty in Alberta; (

f) the claim relates to an injunction in which a person is to do or to refrain from doing something in Alberta;

(

g) the defendant is resident in Alberta; (

h) the claim relates to the administration of an estate and the deceased died while ordinarily resident in Alberta; (

i) the defendant, although outside Alberta, is a necessary or proper party to the action brought against another person who was served in Alberta; (

j) the claim is brought against a trustee in relation to the carrying out of a trust in any of the following circumstances; (

i) the trust assets include immovable or movable property in Alberta and the relief claimed is only as to that property; (ii) the trustee is ordinarily resident in Alberta; (iii) the administration of the trust is principally carried on in Alberta; (iv) by the express terms of a trust document, the trust is governed by the law of Alberta; (

k) the action relates to a breach of an equitable duty in Alberta. (emphasis added) [ 12 ] Only the presumption set out in 11.25(3)(

i) applies here. [ 13 ] The Defendant Flight Centre and Transat Tours are alleged to be carrying on business in the Province and were served here. [ 14 ] LeBel, J., writing for the Court in the Van Breda case, said (at para. 100 ): . . . to meet the common law real and substantial connection test, the party arguing that the court should assume jurisdiction has a burden of identifying a presumptive connecting factor that links the subject matter of the litigation to the forum. [ 15 ] The presumptive factors are as follows: 90 . . . in a case concerning a tort, the following factors are 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. [ 16 ] Two of the presumptive connecting factors: (

a) and (d), apply to this case. [ 17 ] The Court went on to say: 95 The presumption of jurisdiction that arises where a recognized connecting factor - whether listed or new - applies is not

irrebuttable. The burden of rebutting the presumption of jurisdiction rests, of course, on the party challenging the assumption ofjurisdiction. That party must establish facts which demonstrate that the presumptive connecting factor does not point to any realrelationship between the subject matter of the litigation and the forum or points only to a weak relationship between them. (emphasisadded) [18] In these circumstances, the Resort Defendants will have the onus of showing that Alberta is not the appropriate forum. Theywill have to rebutt the presumptions arising from Rule 11.25(3)(

i) and factors (

a) and (

d) in para. 90 of the Van Breda case (see also VanBreda at para.103). [19] The discretion to decline conduct money or an allowance is fact dependant. The discretion is unfettered. ‘What is fair in onesituation may not be in another’ (Parwinn Developments at para. 3). [20] I am not inclined to order that the Plaintiff provide an allowance to bring the Resort Defendants’ witnesses here to beexamined on their Affidavits, presuming, of course, that she does not avail herself of their offer of video teleconferencing. The facts andfactors that have prompted my decision include the following:

i) The Resort Defendants will be the Applicants (see Nickol at paras. 14, 17) and will have the onus of displacing the Plaintiff’schoice of forum; ii) Although the Plaintiff has not demonstrated that providing conduct money would create an insurmountable obstacle, it is likely tocreate a hardship. The Resort Defendants have significantly greater financial wherewithal. iii) It is not demonstrated that these witnesses are the only ones that could provide the evidence in question. (Total v. Oxford (1999)1999 ABQB 39 , 240 A.R. 387 per Quinn, M. and Canada (AG) v. Sanford, (1995) (AB KB), 175 A.R. 118,per Miller J.).

It is not clear, for example, that the witness from Fairfax, Virginia could not provide much of the evidence furnished bythe witnesses from the Dominican Republic, or that there are no suitable comparative lawyers in the Province. iv) Conduct money is paid in advance to secure attendance. If the Resort Defendants are successful in their application, costs anddisbursements of the examinations on affidavits will be taken into account. [21] It is ordered that: a.

The Applications of Barcelo Puerto Plata and Barcelo Corporacion Empersarial S.A. carrying on business as Barceló pursuant to their Applications dated September 3rd, 2012 (respectively) are set for hearing on December 10, 2012 in Master’s Special Chambers. b. Written Briefs shall be filed in accordance with Civil Practice Note 2. c. Any Affidavits which Barceló wishes to file in support of the Applications shall be filed and served by no later than August 7,2012. d. Any Affidavit to be filed by any other Defendant shall be filed and served by no later than August 14, 2012. e.

Cross-examination on any Affidavits which have been filed shall take place by no later than September 28, 2012 and shall takeplace at the offices of Oshry & Company, Barristers and Solicitors, 1004, 10404 - 103 Avenue, Edmonton, Alberta T5J OH8. There shallbe no witness fees or conduct money or any other costs payable in advance to the Deponents who are cross-examined on any Affidavitsfiled on behalf of Barceló and they shall be produced accordingly.

f. Any Affidavit to be filed by the Plaintiff shall be filed and served by no later than October 12, 2012. g. Cross-examination on an Affidavits which have been filed by the Plaintiff shall take place by no later than October 19, 2012 in Edmonton at a location chosen by Barcel ó ’ s Counsel. h. In the event any Deponent to an Affidavit does not appear in accordance with this Order or as further ordered by this Court, his or her Affidavit shall be struck. [ 22 ] If the parties cannot agree, costs of this application may be spoken to at the application scheduled for December 10, 2012.

Heard on the 16 th day of July, 2012. Dated at the City of Edmonton, Alberta this 24 th day of July, 2012. W. S. Schlosser M.C.C.Q.B.A. Appearances: Aaron Oshry Oshry & Company for the Plaintiff Todd Lee Miles Davison LLP for the Defendant, Barcel ó Puerto Plata and Barcelo Corporacion Empersarial S.A. Laura Freeman Parlee McLaws LLP for the Defendant, Transat Tours Canada Inc. Bradley Nattrass

Brownlee LLP for the Defendant, The Flight Centre, The Flight Shops Inc., carrying on business as Flight Centre