Toews v First Choice Canada Inc (Signature Vacations and Selloffvacations.com), 2014 ABQB 784

Court of Queen ’ s Bench of Alberta Citation: Toews v First Choice Canada Inc (Signature Vacations and Selloffvacations.com), 2014 ABQB 784 Date: 20141219 Docket: 1103 02073 Registry: Edmonton Between: Kerry Toews, Todd Toews and Her Majesty the Queen In Right of Alberta, As Represented by the Minister of Health Plaintiffs - and - First Choice Canada Inc.

Operating Under the Trade Names Signature Vacations and Selloffvacations.com, Signature Vacations, Selloffvacations.com, Grand Palladium Vallarta Resort & Spa Formerly Known As Palladium Vallarta Resort & Spa, Fiesta Hotel Group Resorts, Fiesta Hotels & Resport SL, Fiesta Bavaro Hotels, S.A., Punta Mita Servicios.S.C., Desarrollos Dine, S.A. de C.V. dba Hotel Palladium Vallarta, Dominican Entertainment (Luxembourg) S.A.R.L., Dominican Entertainment S.A.R.L. and Dominican Entertainment S.A. and ABC Ltd. Defendants _______________________________________________________ Reasons for Judgment of S. L.

Schulz , Master in Chambers _______________________________________________________

[ 1 ] Two of the Defendants in this action, the Grand Palladium Resort and Spa, formerly known as the Palladium Vallarta Resort and Spa (“Palladium Hotel”), and its sole corporate owner, Desarrollos Dine S.A. de C.V. dba Hotel Palladium Vallarta (“Desarrollos”) brought an application in special chambers to stay this action against both of these Defendants for lack of jurisdiction pursuant to Rule 3.68 of the Alberta Rules of Court , AR 124/2010 ( Rules ) or in the alternative, because Mexico is clearly the more appropriate forum. [ 2 ] This application was brought on behalf of only two of the defendants, the Palladium Hotel and Desarrollos.

Accordingly, these reasons are limited to these two parties and the decision is not binding on the other named Defendants in this action. The involvement of the other Defendants will be discussed only as required for the proper analysis of this application. [ 3 ] For the reasons that follow, I direct that the stay application be dismissed. The Alberta Courts have jurisdiction over this action as against Desarrollos and the Palladium Hotel. Furthermore, I find that Mexico is not a clearly more convenient or appropriate forum for hearing the action.

The Parties [ 4 ] The Plaintiff, Kerry Toews, alleges that she suffered personal injuries in February 2009 while staying at the Palladium Hotel, a resort located in Punta de Mita, Mexico. Her husband, Todd Toews, as well as Her Majesty the Queen in Right of Alberta are also plaintiffs in this action. At all material times, the Toews have been residents of Edmonton, Alberta. [ 5 ] The Defendant, First Choice Canada Inc., is a federal company which provides holiday and travel services in Alberta and operates under the trade names Signature Vacations and selloffvacations.com (collectively “First Choice”).

First Choice is registered extra-provincially in Alberta and has a registered office located in Calgary. [ 6 ] The Palladium Hotel is wholly owned by the Defendant Desarrollos, a Mexican corporation. [ 7 ] The payee under the Booking Contract, as discussed further below, is the Defendant Dominican Entertainment SARL (“Dominican”), a corporate entity located in Luxembourg. Both Desarrollos and Dominican are wholly owned by Promintur BV, a corporate entity located in the Netherlands.

Background [ 8 ] In 2008, First Choice entered into a sale contract for a block booking of several all-inclusive hotel rooms at the Palladium Hotel, the contract being valid for the period January 11, 2008 to December 23, 2009 (the “Booking Contract”).

Pursuant to the Booking Contract, First Choice could market and resell these hotel rooms and accompanying all-inclusive services to Canadian customers. [ 9 ] On January 14, 2009, the Toews entered into an online contract with First Choice (the “Holiday Contract”) from their home computer in Edmonton for the purchase of a superior all-inclusive vacation package at the Palladium Hotel.

The vacation package was paid for with VISA through the First Choice booking website at selloffvacations.com, and included airfare, hotel accommodation, all food and beverages (alcoholic and non-alcoholic), entertainment, taxes, and gratuities for a nine day stay at the Palladium Hotel. [ 10 ] Upon check-in on February 7, 2009, staff at the Palladium Hotel provided the Toews with a Palladium Vallarta Resort & Spa Services Guide . It provided the following information: Mini bar Mini bar is stocked on daily basis with 2 water bottles and 3 soft drink cans. Additional drinks have a cost of $20.00 Mexican pesos.

Water Tap water is being chlorinated and refined but it is not suitable for drinking. Thank you for check[sic] that all faucets are closed before leaving the room. [ 11 ] The Plaintiffs make the following allegations:

a) On the evening of February 9, 2009, Ms. Toews swallowed a portion of the contents of an unmarked, unlabeled water bottle that Mr. Toews had taken out of the mini-bar fridge located in their hotel room. Both Mr. and Ms. Toews believed that it was a bottle of drinking water.

b) The water bottle did not contain water, but rather a caustic, clear, odourless, alkaline substance, presumed to be for cleaning purposes. This identification was made later by the ALS Laboratory Group, located in Edmonton, Alberta.

c) The substance that Ms. Toews ingested caused burning and required emergency medical treatment. She underwent an endoscopy procedure in a Mexican hospital, which disclosed a severe injury to her esophagus as well as a gastric injury. She was quickly air-lifted to Edmonton, where she underwent extensive treatment and eventually, an esophagectomy operation that removed the majority of her injured esophagus. Ms. Toews has required over 70 surgical procedures to date as a result of her injuries. [ 12 ] This action was subsequently commenced against the various Defendants, alleging breach of contract(s), breach of implied

warranties in the relevant contract(s), negligence, gross negligence, misrepresentation and breach of statutory or common law duties. [ 13 ] Effective October 15, 2014, the Plaintiffs and First Choice entered into a Mary Carter Agreement that guaranteed minimum recovery as between them. Pursuant to the Mary Carter Agreement, First Choice remains a fully participating party to this action. [ 14 ] As part of the Mary Carter Agreement, First Choice has admitted: 2(

c) The defendants, First Choice, have attorned to the jurisdiction of the Province of Alberta by the filing of a Statement of Defence in Alberta on June 16, 2011 2(

d) On or about January 14, 2009, the defendants, First Choice, entered into a contract in the Province of Alberta with the plaintiff, Toews, for a vacation package including airfare, hotel accommodations, and all food, beverages, entertainment, taxes and gratuities for a 9 day stay at the defendant ‘superior all-inclusive’ Four Star Palladium Vallarta Resort & Spa located in Puerto Vallarta, which contract is governed by the laws of Alberta. 3.

The defendants, First Choice, admit that they have a real and substantial connection between Alberta and the facts upon which the plaintiff’s claim in this Action is based, and that the Non-Settling Defendants, although outside Alberta, are necessary or proper parties to this Action brought against the defendants, First Choice, who were served in Alberta. [ 15 ] Desarrollos and the Palladium Hotel now bring an application to stay the action as against them on the grounds of jurisdiction simpliciter and forum non conveniens .

Relevant Legislation [ 16 ] The relevant portions of Rule 3.68 of the Rules read as follows: DIVISION 5 SIGNIFICANT DEFICIENCIES IN CLAIMS Court options to deal with significant deficiencies 3.68(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following: ... (

d) that an action, an application or a proceeding be stayed.

(2) The conditions for the order are one or more of the following: (

a) the Court has no jurisdiction; ... [ 17 ] The relevant portions of Rule 11.25 read as follows: DIVISION 5 SERVICE OF DOCUMENTS OUTSIDE ALBERTA Real and substantial connection 11.25(2) A commencement document may be served outside 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 the commencement 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 which a claim in an action is based, in the following circumstances a real and substantial connection is presumed to exist: ... (

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

Issues [ 18 ] The issues raised in this application are: I. What approach is to be taken in an application to stay an action on the grounds of jurisdiction simpliciter and forum non conveniens ? II. Does Alberta have jurisdiction simpliciter ? III. Should Alberta take jurisdiction over this matter? Analysis I. What approach is to be taken in an application to stay an action on the grounds of jurisdiction simpliciter and forum non conveniens ? [ 19 ] The approach to be taken in the analysis of an application to stay an action on the grounds of jurisdiction simpliciter and forum non conveniens is: 1. Where jurisdiction is challenged, “more than a

summary analysis is called for; the court must treat the resulting constitutional sub- text fulsomely”: 1400467 Alberta Ltd v Adderle y , 2014 ABQB 85 at para 39 (Veit, J.), referencing the reasoning of Wakeling, J. (as he then was) in Greenbuilt Group of Companies Ltd v RMD Engineering Inc , 2013 ABQB 297 . 2. The Court should be slower to assume jurisdiction in international circumstances, as compared to inter-provincial ones: Norex Petroleum Ltd v Chubb Insurance Co of Canada , 2008 ABQB 442 at para 42 (Brooker, J.). II. Does Alberta have jurisdiction simpliciter?

Real and Substantial Connection [ 20 ] The Palladium Hotel and Desarrollos are non-resident defendants who have not attorned or submitted to the Alberta courts. A real and substantial connection must be found between the plaintiff’s claim to the forum, the subject matter of the litigation and the defendant(

s) themselves. [ 21 ] The Amended Amended Statement of Claim alleges both breach of contract and tort. The case law sets out the approach to be followed by the court according to the cause of action: 1. When considering a tort claim, the Supreme Court of Canada in Club Resorts Ltd v Van Breda , 2012 SCC 17 (“ Van Breda ”) at para 90 , identified the presumptive real and substantial connecting factors as: (

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. 2. When considering a contract claim, Veit, J. identified four presumptive connecting factors in Bansal v Ferrara Pan Candy Co , 2014 ABQB 384 (“ Bansal ”) at para 31 : (

a) the defendant is resident in Alberta; (

b) the defendant carries on business in Alberta; (

c) a contract or alleged contract is made, performed or breached in Alberta; and, (

d) a tort connected with the contract was committed in Alberta. 3. If one of the presumptive real and substantial connecting factors is found, the onus shifts to the Defendants to rebut the presumption by establishing facts “which demonstrate that the presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and the forum or points only to a weak connection between them”: Van Breda at para 95 .

Where the presumptive connecting factor is a contract made in the province, the presumption can be rebutted by showing that the contract has little or nothing to do with the subject matter of the litigation: Van Breda at para 96 . 4. In a situation where there exists both a contract and a tort , it is not necessary for the court to determine whether a rebuttable presumption relates to either the claim in tort or contract. The court is not limited to hearing the specific part of the case that can be directly connected with the jurisdiction.

The court must assume jurisdiction over all aspects of the case if a substantial connection exists between the forum, the subject matter of the litigation and the defendant. To do otherwise would be “incompatible with any notion of fairness and efficiency”: Van Breda at para 99 .

Application to these Facts [ 22 ] The facts with respect to these Defendants do not support factors 1 (

a) to (

c) inclusive of Van Breda nor any of the factors set out in Bansal . This leaves an examination of factor 1 (

d) in Van Breda : is there a contract connected with the dispute that was made in the province? Is there a contract connected with the dispute that was made in Alberta? [ 23 ] The Defendants allege there is no contract of relevance connected to the matter in dispute, or alternatively, that any contract related to the dispute was made in Mexico. There are three contracts to consider: the Toews and Palladium Hotel contract made on February 7, 2009, the Holiday Contract between the Toews and First Choice, and the Booking Contract. (

a) Place of Contracting and Governing Law [ 24 ] The Defendants argue that the contract between the Toews and the Palladium Hotel was made in Mexico upon check-in at the hotel. They take the position that since the contract was made in Mexico, it cannot be a presumptive factor. To the extent that a contract was made with the Palladium Hotel upon check-in, I agree that this contract was not made in Alberta and cannot be a connecting factor. [ 25 ] The Toews entered into the Holiday Contract from their home computer in Edmonton.

The terms and conditions of the Holiday Contract state in the “Arbitration of all Disputes” clause that Ontario law is to apply in determining any dispute, controversy or claim.” However, this clause appears to be overruled by admissions of First Choice in the Mary Carter Agreement– specifically, that Alberta law is to apply as opposed to Ontario law and that litigation may continue through the courts as opposed to arbitration. Therefore, I find that the Holiday Contract was made in Alberta and is to be governed by the laws of Alberta.

This appears to be uncontested by the parties. [ 26 ] The Booking Contract dictated the sale of the block of rooms. First Choice and Dominican were parties to that contract, but the Palladium Hotel, Desarrollos, and the Plaintiffs were not. It appears uncontested between the parties that Alberta has jurisdiction over the Booking Contract. The contract expressly states in its Terms and Conditions that it is to be governed by the laws of Alberta (more specifically, that it is to be “subject to and shall be construed in accordance with the Laws of the applicable province(

s) and the laws applicable therein”). (

b) Connection of Contract to Dispute [ 27 ] The Plaintiffs take the position that the Holiday Contract and the Booking Contract are both connected to the tort dispute. Sabah Mirza, on behalf of First Choice, gave evidence that First Choice entered into the Booking Contract with the Palladium Hotel directly.

The Plaintiffs submit further that whether or not Desarrollos or the Palladium Hotel were named parties to these contracts, they both fall within the scope of connected contracts such that Alberta should be able to exercise jurisdiction over the action against them. [ 28 ] On the other hand, the Defendants take the position that First Choice alone created the all-inclusive packages which were in turn sold to vacationers.

In particular, they deny that the Palladium Hotel is a party to the Booking Contract. [ 29 ] There is conflicting evidence between the Defendants’ deponents as to whether the Palladium Hotel was a party to the Booking Contract, or whether the Palladium Hotel entered into a separate but closely related contract with Dominican in Luxembourg or with Desarrollos in Mexico. The parties dispute whether First Choice was contracting with Dominican, Desarrollos, or the Palladium Hotel in relation to the Booking Contract.

No contract between Dominican and either Desarrollos or the Palladium Hotel has been produced. [ 30 ] The Booking Contract defines the payee as Dominican Entertainment. Both Desarrollos and Dominican Entertainment are wholly owned by Promintur BV, a corporate entity located in the Netherlands and another named Defendant in this action. The “Property” is identified as the Palladium Hotel, and the “Hotel Chain” is identified as the Fiesta Hotel Group. Presumably, the Palladium Hotel is a part of that group.

The signatory on the Booking Contract is an “owner” by the name of Bill Chlebek, “Commercial Director” (albeit, not in reference to any specific entity and who remains unidentified). [ 31 ] Pere Vidal, on behalf of the Palladium Hotel, stated that Dominican Entertainment had a contract with the Palladium, and that it is Dominican that entered into the Booking Contract with First Choice for the provision of hotel rooms. Luis Fraguas, also on behalf of the Palladium Hotel, stated that First Choice was one of several travel agents/tour packagers who obtained an allotment of rooms at the Palladium Hotel.

As a result, they argue that the Booking Contract is not relevant (or connected) to the Plaintiff’s claim against the Palladium Hotel. [ 32 ] The Defendants describe the Booking Contract largely as a “standard-form” contract providing for a block booking of rooms at the Palladium Hotel, which are then resold to travel agents, such as Signature Vacations.

They also state that Dominican Entertainment negotiates numerous contracts, like the Booking Contract, with a variety of travel agents and other holiday properties, presumably those owned by Promintur BV throughout the world. [ 33 ] It is worth noting that in the Terms and Conditions of the Booking Contract, the parties are defined as the “tour operator” and “the Hotel,” and that the “Agreement” means the “contract concluded between the Tour Operator and the Hotel”.

The Hotel is defined as “the hotel, apartment block or complex, villa condominium or other type of accommodation specified on the contract, and the owners, operators and managers thereof.” [ 34 ] Further, there is an indemnity clause as between “the Hotel” and “the Tour Operator”, whereby “the Hotel agrees to indemnify and hold harmless the Tour Operator of and from any and all expenses, claims, damages, actions, demands, suits or other liabilities of any nature...or kind which the Tour Operator may suffer or incur as a result of (

a) any breach of this Agreement; or (

b) personal injury...suffered by any person for whom the Tour Operator may be responsible for which the Tour Operator may have liability and which arises by reason of the negligent...act or omission...of the Hotel or the Hotel’s employees, agents or representatives to perform pursuant to this Agreement.” [ 35 ] Furthermore, there is an insurance clause whereby the “Hotel” promises to “maintain an insurance policy which should include coverage for personal and bodily injury, death and property damage in an amount considered adequate for such purpose by the Tour Operator, acting reasonably.” [ 36 ] Last, there is a Hotel Standards and Services clause, which states: The Hotel shall provide the Tour Operator’s clients with services, facilities and accommodations at least comparable to that provided to general clientele of the Hotel.

Should the Tour Operator receive any evidence of lessening of service, facilities or accommodation, or any breach of this Agreement, the Tour Operator shall advise the Hotel in writing and provide the Hotel with a reasonable period to remedy the default, failing which the Tour Operator may then terminate the Agreement and obtain reimbursement from the Hotel for all losses incurred in accordance with

Section 9 of this Agreement. [ 37 ] What is clear from the not-so-clear set of inter realationships is that there is a chain of corporate entities that have contracted with each other to provide the accommodations and services that were ultimately contracted for and provided to the Plaintiffs through the Holiday Contract, a contract made in Alberta. [ 38 ] The cases of Levasseur v Authorite de Marches Financiers , 2012 NBQB 409 (“ Levasseur ”) at para 49 , 398 NBR (2d) 128 and Schram v Nunavut , 2013 NBBR 190 (“ Schram ”) at paras 45-46 support the propositions that:

a) not all parties to the action must be parties to the contracts involved in the action;

b) the action need not be brought in contract;

c) to establish the rebuttable presumption, a tort claimant is only required to establish that a contract connected with a dispute was made in the jurisdiction--not that a contract upon which the claim is based was made in the jurisdiction. [ 39 ] I agree with these general principles.

While both Levasseur and Schram involved inter-provincial parties, there is no reason why these principles should not apply to an international non-party, provided any connection made out is not weak or tenuous such that the Court is not “sweeping into [the] jurisdiction claim[s] that have only a limited relationship with the forum”: Van Breda at para 89 . [ 40 ] The Defendants allege that these cases extend the reach of the Van Breda principles and that the application of these principles to these facts would wrongly bring Palladium Hotel and Dessarollos within the scope of the contract(

s) related to the negligent act in question.

The Defendants submit this should not be the case here, as the Booking Contract “relates to the block booking of hotel rooms between Dominican Entertainment and First Choice,” and the Holiday Contract “relates to the all-inclusive holiday package purchased by the Plaintiff from First Choice.” [ 41 ] However, the cases the Defendants rely upon in suggesting that non-parties to a contract cannot be brought into the jurisdiction where that contract was formed involve intervening events and 3 rd party contracts not connected to services provided for by the hotel. [ 42 ] For example, injuries suffered on a horseback riding excursion were at issue in Wilson v Riu , 2012 ONSC 6840 , as were injures suffered on an ATV excursion in Haufler v Hotel Riu Palace Cabo San Lucas , 2013 ONSC 6044 .

These cases involve contracts made at the holiday destination and were for services not provided by the hotel. [ 43 ] Similarly, in Tamminga v Tamminga , 2014 ONCA 478 (“ Tamminga ”), the Court found that the Plaintiff’s automobile insurance policy contract was not a “contract connected with the dispute”, as the potential non-party defendant was unidentifiable (the contract anticipated accidents generally, but the tortfeasor was not identifiable in advance).

The Court commented that “unlike Van Breda , where the plaintiff’s injury occurred in the context of performance of the contract, the insurance contract in this case had nothing to do with the events giving rise to the tort claim.

The insurance contract only became pertinent after the tort had occurred”: Tamminga at para 20 . [ 44 ] The Defendant also relies upon Colavecchia v The Berkely Hotel , 2012 ONSC 4747 (“ Colavecchia ”), a slip and fall case, where the plaintiff wife, a resident of Ontario, made an online room reservation for herself and her husband at the Berkeley Hotel in London, England through the Canadian website, TD Travel Rewards. While at the hotel, the husband slipped and fell in the bathroom.

In rejecting the argument that a contract was made in Ontario with the London Hotel when the plaintiff logged into the TD Travel Rewards website, Goldstein, J. found that a contract connected with the dispute was not made in Ontario as the plaintiff only had a contract with TD for TD to make a booking with the hotel: Colavecchia at para 20 .

He found there was no offer, acceptance, or proper consideration as between the plaintiffs and the hotel, and therefore, there was no contract made in Ontario connected with the dispute. [ 45 ] In Colavecchia , Goldstein, J. went on to comment that even if there was a contract entered into between the plaintiffs in Ontario and the London hotel, it was “merely for accommodations” and had nothing to do with the dispute between the parties, being a “classic action for negligence”: Colavecchia at para 23 . [ 46 ] With the greatest of respect to the Ontario Supreme Court, the Colavecchia case is not binding on this Court.

It appears to take a narrower view of the Van Breda principles than other Canadian court decisions. Colavecchia suggests that one must be a party to the contract, and engage in proper offer, acceptance and consideration to satisfy this presumptive factor, but nowhere in Van Breda does this appear to be required. The test for this presumptive factor has much broader and relaxed wording. The Plaintiffs in the case at bar do not argue that they made a contract directly with the Palladium Hotel or Desarrollos. Rather, they argue that a contract made in Alberta is connected with the dispute and alleged tort.

[ 47 ] The Van Breda factors were created specifically for tort cases. It is difficult to discern what tort disputes a contract might raise to meet the presumptive factor other than the type contemplated in Colavecchia . The slip and fall occurred in the hotel bathroom which was part of the accommodation services purchased by the plaintiff through the contract. With respect, it would appear that the negligent act in the Colavecchia case arose specifically out of the contract contemplated in the dispute. [ 48 ] The facts that gave rise to the action in Van Breda are similar to the facts in this case.

The plaintiff suffered injuries on a beach in Cuba. An action in tort and in contract was brought in Ontario against a number of parties, including Club Resorts Ltd., who managed the hotel where the accident occurred. Despite the fact that the contract was not between the plaintiff and Club Resorts, the motion judge and the Court of Appeal concluded that the contractual relationship between the plaintiff’s spouse, Mr. Berg, and Club Resorts, through a Mr. Denis, created a sufficient connection between the claim and Ontario. Mr.

Denis, who operated a specialized travel agency known as Sport au Soleil, had an agreement with Club Resorts under which he found tennis and squash professionals and sent them to Club Resorts hotels. In exchange for bed and board at a resort, each professional would give a few hours of instruction to guests of the hotel during his or her stay. The Court concluded that the events giving rise to the claim flowed from the relationship created by the “contract,” which was essentially a letter signed by Mr. Denis and addressed to Mr. Berg, confirming the details of the agreement made with Club Resorts Ltd.

The Supreme Court of Canada held that Ontario courts could assume jurisdiction over the action against Club Resorts. [ 49 ] The Supreme Court of Canada found the benefit of the “contract”, being accommodation at the resort, was extended to the plaintiff, who was injured while there in the context of Mr. Berg’s performance of his contractual obligation: Van Breda at para 116 . Therefore, there was a relationship created in Ontario between Mr. Berg, Club Resorts and the plaintiff, who was brought within the scope of this relationship.

This is similar to the fact situation in the case at bar. [ 50 ] The Court in Trillium Motor World Ltd v General Motors of Canada Ltd , 2013 ONSC 2289 (“ Trillium ”), aff’d in 2014 ONCA 497 , similarly noted at para 12 that a court has presumptive jurisdiction over a tort claim brought by a non-party to a contract connected to the dispute in question, if: 1. the non-party can be brought within the scope of the contractual relationship by the terms of the contract and if, 2. the events that give rise to the claim flow from the relationship created by the contract. [ 51 ] In Trillium the Court found it did not matter that the non-contracting party brought within the scope of the Ontario contract was the defendant rather than the plaintiff as in Van Breda .

Instead, what mattered to the Court was that “the non-party defendant was brought within the scope of the relationship created by the Ontario contract and that a sufficient connection has been established between the defendant and the forum”: Trillium , 2013 ONSC 2289 at para 33 . [ 52 ] The question is, do these facts fit within the Van Breda analysis, or do they fall within “the scope of the contractual relationship by the terms of the contract”, as per Trillium ? [ 53 ] First, as discussed previously at paras 25 and 26, it is uncontested that both the Holiday Contract and Booking Contract were both made in Alberta and are to be governed by the laws of Alberta. [ 54 ] It appears the primary consideration running common to situations where a court will not bring non-parties to a contract into a jurisdiction is where they are not identifiable as potential tort defendants in that contract.

Here, however, the Palladium Hotel, and its owner Desarrollos by implication, were clearly identifiable as foreseeable and potential defendants within both the Holiday Contract and the Booking Contract, and the alleged incident was not an intervening event or one brought about by a 3 rd party contract – rather, the alleged wrongdoing occurred directly in the Plaintiff’s hotel room, in the course of her consuming the goods included in the all-inclusive vacation package under the Holiday Contract and the Booking Contract.

Specifically, the alleged wrongdoing occurred in the Palladium Hotel, where the Palladium Hotel provided the all-inclusive services purchased by the Toews in the Holiday Contract and by First Choice in the Booking Contract. It is through the Alberta contracts that the Toews acquired the right to stay at the Palladium Hotel and be provided with food and beverages, which included two (2) water bottles in the mini fridge – supplied by the Palladium Hotel.

The possibility of liability by the Palladium Hotel, and its owner by implication, was expressly contemplated in both the Holiday Contract and the Booking Contract through their respective indemnity clauses. [ 55 ] I also find that the Booking Contract binds both the Palladium Hotel and Desarrollos, whether or not either were signing parties, in terms of providing services, facilities and accommodation to tour operators’ clients. The term “Hotel” clearly includes, by its definition, the Palladium Hotel and Desarrollos.

Therefore, I find that the two Defendants are expressly brought into the scope of the Booking Contract. [ 56 ] Further, it is the chain of contracts, operating together, that led to the Toews’ right to stay at the hotel for their vacation and receive the all-inclusive services, including the purported water bottle in the mini-bar. All contracts were connected, including the contract formed between the Toews and the Palladium Hotel upon check-in; each contemplated the provision of the bottled water consumed by Ms.

Toews through the all-inclusive vacation package, further evidenced by the Palladium Vallarta Resort & Spa Services Guide provided to the Toews directly by the Palladium Hotel. Each contract is a necessary causative link to the alleged injuries. If any of the contract(

s) did not come into existence, Ms. Toews could not have stayed at the Palladium Hotel and could not have been involved in the incident. Further, each contract relates to the sale of the all-inclusive package ultimately sold to Ms. Toews. There was no intervening event or 3 rd party contract not connected to services provided for by the hotel. Contrary to the Defendant’s argument, the alleged negligent act arose specifically out of the subject matter contemplated by the litigation.

Here, the alleged tort is directly connected to the contracts, which pertain to the sale of all-inclusive accommodation, including the water bottle containing the alleged caustic substance. [ 57 ] Accordingly, I find that the Palladium Hotel and Desarrollos come within the scope of the relationships specifically contemplated in making both the booking and the holiday contracts – to provide an “all-inclusive” vacation, and the provision of services that flow as a result. The consumption of the substance in the water bottle that gave rise to the alleged injuries directly flows from the

relationship created by the Holiday Contract and expressly through the Booking Contract. Further, it allegedly occurred in the executionof the Defendants’ performance obligations, as iterated in the indemnity clauses of both the Holiday Contract and Booking Contract. Iconclude that the fourth presumptive factor under Van Breda is met: there are contracts made in Alberta that are connected with thealleged tort in dispute. Additional or New Presumptive Connecting Factors [58] In Van Breda, the Supreme Court of Canada noted that the list of presumptive connecting factors is not closed.

Over time,courts may identify new factors which also presumptively entitle a court to assume jurisdiction. In identifying new presumptive factors, acourt should look to connections that give rise to a relationship with the forum that is similar in nature to the ones which result from thelisted factors. The Court noted at para 91 that relevant considerations include:

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 statute law; and

d) Treatment of the connecting factor in the private international law of other legal systems with a shared commitment to order,fairness and comity. [59] When considering whether a new connecting factor should be given presumptive effect, the values of order, fairness andcomity serve as useful analytical tools to assess the strength of the relationship with the forum that the factor in question points: VanBreda at para 92. [60] The Plaintiffs argue that Alberta’s rule 11.25(3), specifically subsections (

b) and (i), provide guidance as to what constitutes areal and substantial connection with the jurisdiction, and can be applied to matters going beyond service ex juris related applications. [61] The Defendants argue that rule 11.25(3) only applies to service ex juris situations on the basis that the rule is set out in contextwith service under Division 5 – Service of Documents Outside Alberta, the Defendants [62] I do not agree with the Defendants.

This question was directly contemplated by Veit, J. in Bansal, a decision relating to a stayapplication on the basis of jurisdiction simpliciter or, alternatively, forum non conveniens. The application was not for service ex juris,nor did the Defendants seek invalidation of service. In considering whether Alberta had jurisdiction over the contract matter, and indetermining the appropriate connecting factors, Veit, J. stated at para 29: In Club Resorts, the SCC reminded us that existing legislative frameworks might be used to identify presumptive factors.

I agree with theapplicants that Alberta’s Rule 11.25(3) provides some guidance as to what constitutes a real and substantial connection with thejurisdiction. [Emphasis added] [63] This Court also addressed the factors in rule 11.25(3) in Turner v Bell Mobility Inc, 2014 ABQB 36 (“Turner”). The twoSaskatchewan defendants applied to dismiss the action on the basis that Alberta lacked jurisdiction over them. Like Bansal, theapplication was not for service ex juris, nor did the Defendants seek invalidation of service. Mr.

Justice Lee concluded that the VanBreda analytical framework and the Alberta Rules of Court are consistent: Turner at para 16. [64] Mr. Justice Lee also contemplated Greenbuilt at para 91, where Wakeling, J. observed that: ...the new rules, unlike the old ones, expressly incorporate the real and substantial connection concept to which Morguard InvestmentsLtd v De Savoye, (SCC), [1990] 3 SCR 1077 and Hunt v T & C plc, (SCC), [1993] 4 SCR 289, 324accorded constitutional status, into the service ex juris norm. [65] Mr.

Justice Lee went on to consider the relevant legislative provisions and jurisprudence concurrently, treating the applicablefactors (including subsections (

b) and (

i) from 11.25(3)) as new presumptive connecting factors. Specifically, in terms of the level of“analytical recognition” that ought to be given to “necessary and proper party” as a presumptive factor in the determining jurisdictionalcompetence, he stated at para 54: ...since the applicable legislation in Alberta recognizes the consideration of whether a Defendant is a “necessary and proper party” in theprocess of ascertaining real and substantial connection to a jurisdiction, I am satisfied that this factor could be examined as a presumptiveconnecting factor for the purpose of a jurisdictional analysis in this province. (

a) Necessary and Proper Parties [66] Mr. Justice Lee found that the “specter of commonality of the Plaintiff’s claims against all the named Defendants” madeSasktel a “necessary and proper” party: Turner at para 59. This standard is similar in principle to the test applicable to the predecessor torule 11.25(3)(i), former rule 30(j). [67] The Court of Appeal in Boreta v Primrose Drilling Ventures Ltd, 2007 ABCA 212 (“Boreta”), noted that the test is, “if allthe parties resided and were served in Alberta, would the defendant in question be wrongly joined?

Could he successfully move to havehimself struck as a party because of misjoinder?”: Boreta at para 15. The Court found that the old rule 36, regarding joinder ofdefendants, was instructive in applying Rule 30(j). Rule 3.70(1) under the new Rules is substantially the same in substance as rule 36,stating that a plaintiff may make a claim against two or more persons as defendants in an action if the claim arises out of the same

transaction or series of transactions or occurrences, a question of law or fact common to the parties is likely to arise, or the Court permits. [ 68 ] Regarding subsection (i), Palladium and Desarrollos must be considered necessary or proper parties to the action in order for a presumed real and substantial connection to exist. [ 69 ] I am satisfied that if Desarrollos and the Palladium Hotel resided and were served in Alberta, they would be properly joined in the action. There is a specter of commonality of the Plaintiff’s alleged claims against First Choice, Dominican, the Palladium Hotel and Desarrollos.

The claims arise out of the same occurrence – consuming the contents of the water bottle.

A common question of causation will be shared amongst the Defendants as well as the factual question of liability. [ 70 ] In addition to others, there is the common allegation that all the Defendants breached their duty of care to the Plaintiffs by failing to take reasonable or any care to ensure the Plaintiffs would be reasonably safe while at the Resort, and failing to take any or adequate steps to ensure that the Palladium Hotel purchased any adequate comprehensive general liability insurance to respond to catastrophic loss or injury to the Hotel.

Therefore, I am satisfied that both Palladium Hotel and Desarrollos are proper and necessary parties to the action. (

b) Claim Relates to a Contract Made in Alberta [ 71 ] Regarding subsection (

b) and whether the claim relates to a contract made in Alberta, the term “relates” is viewed as setting a low threshold to meet: Adderley at para 58 . I have already found that a contract connected with the dispute was made in Alberta, as per Van Breda principles, and accordingly the lower threshold of relates is met under rule 11.25(3)(b). Conclusion Respecting Jurisdiction Simpliciter [ 72 ] Based on the above, I am satisfied that there are two contracts made in Alberta connected to the dispute.

Both Defendants and their actions are included within the scope of the dispute, such that a presumptive real and substantial connection between the action and this jurisdiction is made out. Alternatively, I am satisfied the presumptive factors under subsections (

b) and (

i) of rule 11.25(3) are established. [ 73 ] The Defendants have failed to rebut these presumptions. They have failed to show that the relevant contracts have little or nothing to do with the subject matter of the litigation nor have they shown a lack of commonality amongst the Plaintiffs’ claims against the named Defendants. Therefore, this Court is entitled to take jurisdiction simpliciter over the entire action as against the Palladium Hotel and Desarrollos. I.

Should Alberta take jurisdiction over this matter? [ 74 ] The Defendants argue that this court should decline to hear this matter on the basis of forum non conveniens because Mexico is clearly more appropriate. [ 75 ] Regarding the burden of proof in a forum non conveniens argument, Ross, J. in Court v Debaie , 2012 ABQB 640 , stated at para 46 : The burden is on the Defendants to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the Plaintiffs.

The Defendants must show what connections the alternative forum has with the subject matter of the litigation and that the alternative forum is ‘clearly more appropriate.’ [ 76 ] In both Van Breda at para 105 and Black v Breeden , 2012 SCC 19 at para 23 , the Supreme Court identified several relevant factors for determining forum non conveniens , drawing upon

section 11 of the Uniform Court Jurisdiction and Proceedings Transfer Act , which include:

a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum;

b) the law to be applied to issues in the proceeding;

c) the desirability of avoiding multiplicity of legal proceedings;

d) the desirability of avoiding conflicting decisions in different courts;

e) the enforcement of an eventual judgment; and

f) the fair and efficient working of the Canadian legal system as a whole. [ 77 ] The Alberta Court of Queen’s Bench has also summarized a list of factors in determining the issue of forum non conveniens , in Norex at para 93, cited in Sears Canada Inc v C & S Interior Designs Ltd , 2012 ABQB 573 at para 17 (Kent, J.) , and Pedwell v SNC-Lavalin Inc , 2014 ABQB 309 at para 39 (Robertson, M.):

a) where each party resides;

b) where each party carries on business;

c) where the cause of action arose;

d) where the loss or damage occurred;

e) any juridical advantage for the plaintiff in this jurisdiction;

f) any juridical disadvantage for the defendant in this jurisdiction;

g) convenience or inconvenience to potential witnesses;

h) the cost of conducting the litigation in this jurisdiction;

i) applicable substantive law; and

j) difficulty on proving foreign law, if necessary. [ 78 ] The Defendants argue that the factors of comparative convenience and expense for parties and witnesses favours the Mexican courts because the key witnesses still reside in Mexico, including hotel staff, the majority of the witnesses who were at the Hotel at the time of the incident, and the initial treating physicians.

Additionally, the original medical records are in Mexico. [ 79 ] An examination of the evidence before the court shows that the Defendants have not yet identified the specific witnesses they will call and have not provided any evidence as to their place of residence, beyond a list of the telephone numbers (with Mexican area codes) for all of the staff who were working at the Palladium Hotel at the time of the incident. It is unknown whether these telephone numbers are up to date or simply have been compiled from 2009 records.

Additionally, the two deponents who filed Affidavits on behalf of the Palladium Hotel do not live in Mexico. Pere Vidal resides in Spain and Luis Fraguas resides in Brazil. Without further and more complete evidence, it is difficult to determine the convenience or inconvenience to potential defence witnesses or the cost of conducting litigation in Mexico as compared to Alberta. [ 80 ] Conversely, the Plaintiffs all reside in Alberta and have deposed that their fact liability witnesses, including Kerry, Todd, Bay and Jaden Toews, reside in Edmonton, Alberta.

Another witness, a neighbouring guest from the Palladium Hotel, resides in British Columbia. All of the Plaintiffs’ professional medical and quantum witnesses are resident in Alberta, as is the chemist who analyzed the substance in the water bottle. Alberta is where Ms. Toews underwent the vast majority of her medical procedures, as she was quickly air- lifted out of Mexico after the alleged incident occurred. Overall, the cost for professional witnesses to travel and stay in Mexico for a trial would be significantly higher than if the action were to proceed in Alberta.

On a relative basis, this factor favours the Plaintiffs. [ 81 ] Regarding applicable law, the Defendant argues that Mexican law applies as to the alleged tort, given that it occurred in Mexico, on the basis of lex loci deliciti . However, the Plaintiffs correctly assert that Alberta law applies to at least two of the relevant contracts in this action, which will be considered in assessing the allegations of breach of implied conditions and misrepresentations. Further, no evidence was put forth by any of the parties as to the difficulty proving either country’s laws.

Therefore, this factor is neutral. [ 82 ] Regarding avoidance of a multiplicity of proceedings and conflicting decisions, the Plaintiffs have filed claims only in Alberta and there is no indication they intend to file in Mexico. First Choice has expressly attorned to the jurisdiction of Alberta and the Holiday Contract entered into by the Toews and First Choice was made in Alberta. Should a stay be granted in favour of the Palladium Hotel and Desarrollos, there would presumably be a need for two proceedings, one being in Alberta against First Choice and one in Mexico against the other Defendants.

Given the similarity of issues in the allegations as against the Defendants, and the desire to avoid multiplicity of proceedings and conflicting decisions, this factor favours the Plaintiffs. [ 83 ] Regarding enforcement of judgments, the Defendants note it is unclear whether the Plaintiffs can enforce a judgment in Alberta against the Palladium Hotel and Desarrollos, whether they will be required to do so, or whether they will be able to obtain a reciprocal judgment to enforce in Mexico.

However, the Defendants have not put anything more forth to show that the Plaintiffs are unlikely to be able to obtain a reciprocal judgment. Therefore, this factor is neutral. [ 84 ] As to whether declining jurisdiction would deprive the Plaintiffs’ of a legitimate juridical advantage available in the domestic court, I have not heard submissions or evidence on Mexican law relating to burdens of proof, admissibility of evidence, availability of a jury trial and the like.

As a result, I cannot comment on this factor. [ 85 ] The Plaintiffs argue that the general principles of fairness, efficiency and comity dictate that Alberta is the more appropriate forum for the litigation of this action, as it would be “virtually impossible for the Plaintiffs to get a fair hearing and an appropriate quantification of damages for their injury claim in Mexico, due to the extreme difficulties with the Mexican justice system.” However, I have not heard or seen sufficient evidence from the Plaintiffs to make out this factor in their favour, nor do I take judicial notice of any inherent difficulties or corruption in the Mexican justice system.

While I do take note that the Plaintiff’s evidence demonstrates impediments to fast and efficient service of pleadings for this action in Mexico, I find overall that this factor is neutral. [ 86 ] Overall, the Defendants have not met the onus on them of demonstrating that Mexico would be a clearly more appropriate forum for the resolution of this action. The application to stay the action on the grounds of forum non conveniens is dismissed. Conclusion [ 87 ] Alberta’s jurisdiction is established by a real and substantial connection between the Toews and the Defendants Palladium Hotel and Desarrollos.

The presumptive Van Breda connecting factor is that a contract connected with the tort was made in Alberta. I am also satisfied the presumptive factors under subsections (

b) and (

i) of rule 11.25(3) factors are established. The Defendants have failed to rebut these presumptions. [ 88 ] Regarding the issue of the forum non conveniens and whether Alberta should exercise its right to hear this matter, the evidence advanced by the Defendants fails to establish that Mexico is a clearly more appropriate forum than Alberta.

[ 89 ] Therefore, the Defendants’ applications are dismissed. The parties may speak to me regarding costs if they are unable to agree. Heard on the 12 th day of November, 2014. Dated at the City of Edmonton, Alberta this 19 th day of December, 2014. S. L. Schulz M.C.C.Q.B.A. Appearances: Kevin Feehan, Q.C. and Sara Hart Dentons Canada LLP for the Plaintiff Bruce Churchill-Smith, QC Borden Ladner Gervais for the Defendants Grand Palladium Vallarta Resort and Spa, et al Kelly Robinson Chomicki Baril Mah LLP for the Defendants , Dominican Entertainment (Luxembourg) S.A.R.L. et al