Toews v First Choice Canada Inc (Signature Vacations), 2016 ABQB 130

Court of Queen ’ s Bench of Alberta Citation: Toews v First Choice Canada Inc (Signature Vacations), 2016 ABQB 130 Date: 20160304 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 Respondents (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 & Resort 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.

Appellants (Defendants) _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.J. Gill _______________________________________________________

Appeal from the Judgment by S.L. Schulz, Master in Chambers Dated the 19 th day of December, 2014 ( 2014 ABQB 784 , Docket: 1103 02073) Table of Contents I. Introduction . 3 II. Background . 3 1. Parties to the Action . 3 2. Mary Carter Agreement between Toews and First Choice . 4 3. Incident of February 9, 2009 . 5 4.

Summary of Contracts between the parties . 6 III. Issues . 6 IV. Standard of Review .. 6 V. Legal Framework . 6 VI. Analysis of Issues . 7 1. Do the Alberta Courts have jurisdiction over this action? . 7 A. Analysis . 8 B. Rule 11.25(3)(i) 9 C. Has the Presumption of Jurisdiction been rebutted? . 9 D. Conclusion on Issue No. 1 . 9 2. Is Alberta the most convenient forum in which to hear this action? . 9 A. Analysis . 10 B. Location of the witnesses and parties and the comparative expense and convenience for these parties 10 C. Avoidance of multiplicity of proceedings and conflicting decisions . 12 D.

The applicable law relating to the dispute, and what weight is to be given to legal issues in comparison to the factual issues? . 12 E. Juridical advantage for the plaintiff in Alberta, and the juridical disadvantage for the defendant in Alberta 13 F. Conclusion on Issue No. 2 . 13 VII.

Summary . 13

I. Introduction [ 1 ] This appeal arises as a result of a claim for personal injury allegedly suffered by the Plaintiff/Respondent, Kerry Toews (“Mrs.

Toews”), while vacationing at the Palladium Vallarta Hotel and Spa, located in Punta de Mita, Mexico on February 9th, 2009. [ 2 ] The Plaintiffs/Respondents, Kerry Toews, Todd Toews and her Majesty the Queen in Right of Alberta (the “Toews”), have claimed against a number of Defendants, including the Grand Palladium Resort and Spa, formerly known as Palladium Vallarata resort and Spa (“Palladium”), Desarrollos Dine, S.A. de C.V. dba Hotel Palladium Vallarta (“Desarrollos”). [ 3 ] On December 11th, 2012, Palladium and Desarrollos filed an application before the presiding Master in Chambers pursuant to Rule 3.68 of the Alberta Rules of Court, Alta Reg 124/2010 (“Rules of Court”), asking for a stay of the action against them for lack of jurisdiction.

In the alternative, Palladium and Desarrollos sought an Order staying this action on the grounds that Mexico is the appropriate forum. [ 4 ] The matter was heard on November 12, 2014, and on December 19, 2014, Master Schulz found (the “Master’s Decision”) that Alberta Courts have the jurisdiction to hear this matter, and further found Alberta the most convenient forum for this matter. This is an appeal of the Master’s Decision by the Defendants/Appellants, Palladium and Desarrollos. II. Background [ 5 ] There are extensive affidavits and transcripts of questioning on affidavits filed in this matter.

The majority of the key facts are not in dispute. The

summary of facts contained in the Respondent’s Brief sets out many of the facts relevant to this application, a part of that

summary is reproduced in this judgement. 1. Parties to the Action [ 6 ] The Plaintiffs/Respondents, Mrs. Kerry Toews and Mr. Todd Toews, are individuals residing in the City of Edmonton, in the Province of Alberta. [ 7 ] On January 14, 2009, the Toews entered into a contract online, from their home in Edmonton, Alberta with the Defendants (not a party to this appeal), First Choice Canada Inc., Operating Under the Trade Names Signature Vacations and Selloffvacations.Com, (“First Choice”). [ 8 ] The contract was for the purchase of a superior all-inclusive vacation package at Palladium (“the Holiday Contract”).

The Palladium resort is located in Punta de Mita, Mexico. [ 9 ] The vacation package was paid for with a VISA card, through the First Choice booking website, at selloffvacations.com. The package included airfare, hotel accommodation, all food, all beverages (both alcoholic and non-alcoholic), entertainment, taxes, and gratuities for the nine-day stay at the Palladium Hotel. [ 10 ] First Choice, is a federally incorporated company which provides holiday and travel services in the Province of Alberta.

It is registered extra-provincially in the Province of Alberta, and has a registered office located in Calgary, Alberta. [ 11 ] Palladium, is an all-inclusive holiday resort located in Punta de Mita, Mexico.

It is wholly owned by Desarrollos, which is a Mexican corporation. [ 12 ] Although there is a dispute on this issue, it appears that at all material times, Palladium either had a contract with First Choice, as alleged by First Choice, or alternatively , as outlined in paragraph 17 of this decision, Desarollos had a contract with the Defendants (not a party to this appeal), Dominican Entertainment (Luxembourg) S.A.R.L, Dominican Entertainment S.A.R.L, and Dominican Entertainment S.A.; (“Dominican”), as alleged by Palladium and Desarrollos. [ 13 ] In turn, Dominican had a contract with First Choice (“the Booking Contract”), for the sale of all-inclusive hotel rooms to individual vacationers at Palladium.

Palladium’s all-inclusive hotel rooms are sold through third party providers and not to individual vacationers. [ 14 ] Palladium is one of many hotels that form part of the Defendant (not a party to this appeal), Fiesta Hotel Group Resorts, Fiesta Hotels & Resort Sl, and Fiesta Bavaro Hotels (“Fiesta”). Fiesta is a partial owner of Promintur BV. Promintur BV wholly owns the Defendants, Desarrollos and Dominican. [ 15 ] Promintur BV is located in the Netherlands.

Desarrollos and Dominican are both a part of the family of corporate entities which form the Fiesta and Palladium hotel groups: see attached corporate chart prepared by the Appellants ( Appendix A ). [ 16 ] The Defendant (not a party to this appeal), Punta Mita Servicios S.C. (“ Punta Mita’) is a Mexican company, with which Desarrollos had a contract for the provision and payment of employees, in particular the housekeeping staff who worked at Palladium.

[ 17 ] Desarrollos, is the 100% owner of Palladium. According to the version of contracts indicated by Pere Vidal, the corporate representative of Palladium and Desarrollos, it was through Desarrollos that the all-inclusive hotel rooms at Palladium were sold. His evidence is that Desarrollos had a contract with Dominican for the sale of the all-inclusive hotel rooms at Palladium. The contract between Desarrollos and Dominican is governed by the laws of the Dominican Republic.

At no time was a hotel room booked independently of the all-inclusive food, beverage, entertainment and activity package included with the room booking. [ 18 ] Upon check-in on February 7, 2009 (“the Mexican Contract”), staff at the Palladium Hotel provided the Plaintiffs/Respondents, the Toews, with a Palladium Vallarta Resort & Spa Services Guide. The Services Guide contained the following information (quoting verbatim): 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. 2. Mary Carter Agreement between Toews and First Choice [ 19 ] As of October 15, 2014, the Plaintiffs/Respondents, the Toews, and the Defendant (not a party to this appeal), First Choice, entered into a Mary Carter Agreement. Pursuant to which, First Choice remains a fully participating party to this action. In the Mary Carter Agreement, First Choice admits that (quoting verbatim): ... 2 (

a) Signature Vacations and Selloffvacations.com are registered trade names of First Choice Canada Inc. in the Province of Alberta and First Choice carries on business in the Province of Alberta through those trade names; (

b) The defendants, First Choice, have been properly served in the Province of Alberta with the Statement of Claim and the Amended Statement of Claim in the action; (

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; and (

d) On or about January 14, 2009, the defendants, First Choice, entered into a contract in the Province of Alberta with the plaintiffs, 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 plaintiffs’ 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. ... 3.

Incident of February 9, 2009 [ 20 ] In this action, the Plaintiffs/Respondents, the Toews, make the following allegations:

a) On the evening of February 9, 2009, Mrs. 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 Mrs. Toews believed that it was a bottle of drinking water.

b) The bottle did not contain water. Rather, it contained a caustic, clear, odourless, alkaline substance presumably used for cleaning purposes. This identification was made later by the ALS Laboratory Group, located in Edmonton, Alberta.

c) The substance that Mrs. 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 esophagostomy operation that removed the majority of her injured esophagus. Mrs. Toews has had over 87 surgical procedures to date as a result of her injuries. [ 21 ] This action was subsequently commenced against all the Defendants, alleging breach of contract(

s) and breach of implied warranties. The issues in this action include whether any or all of the Defendants breached the contracts and the implied warranties in the contracts, in relation to the quality of the goods purchased, in particular, the water bottles in the mini-bar fridge. Other issues are whether any or all of the Defendants were negligent, grossly negligent, or in breach of other common law or statutory duties, due to their alleged failure in ensuring the safety of all beverages and bottles purchased by the Toews as a part of their all-inclusive vacation package. 4.

Summary of Contracts between the parties [ 22 ] A useful

summary of the alleged contracts involved in the sale of the holiday package at Palladium to the Toews is contained

in the attached diagram prepared by the Respondents (Appendix B) . III. Issues [ 23 ] Two issues are germane to this appeal: 1. Do Alberta Courts have jurisdiction over this Action? 2. If Alberta Courts have jurisdiction, is Alberta the most convenient forum in which to hear this action? IV. Standard of Review [ 24 ] Both parties submit that the standard of review on an appeal of a Masters decision is correctness and fresh evidence can be admitted as the appeal is considered a hearing de novo . I agree. V. Legal Framework [ 25 ] This appeal raises the issue of jurisdiction over an action.

In Club Resorts Ltd v Van Breda , 2012 SCC 17 [Van Breda], the Supreme Court addressed issues of jurisdiction arising from inter-jurisdictional disputes. The real and substantial connection test is now well-established as the common law test for a court to assume jurisdiction over a claim (at para 67). The party arguing that a Court should assume jurisdiction has the burden of identifying a presumptive connecting factor that links the subject matter of the litigation to the forum (at para 80).

At para 90, the Supreme Court of Canada enumerated a number of presumptive connective factors that entitle a Court to assume jurisdiction over a dispute, in cases concerning a tort: To recap, 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. [ 26 ] This list of presumptive connective factors is not closed (at para 100). When addressing the issue of jurisdiction, legislatures and courts across the county may adopt various solutions to meet constitutional requirements and the objectives of efficiency and fairness (at paras 68, 71). [ 27 ] The presumption of jurisdiction is rebuttable, but the burden of rebutting the presumption rests on the party challenging the assumption of jurisdiction (at para 95). VI. Analysis of Issues 1.

Do the Alberta Courts have jurisdiction over this action? [ 28 ] Master Schulz found that Alberta’s jurisdiction was established by a real and substantial connection between the Plaintiffs/Respondents, the Toews, and the Defendants/Appellants, Palladium and Desarrollos. Master Schulz found a presumptive connecting factor, that a contract connected with the tort was made in Alberta. Master Schulz was also satisfied that the presumptive factors under Rule 11.25(3) (b) & (

i) were established. [ 29 ] The Appellants/Defendants, Palladium and Desarrollos, submit that none of the presumptive connecting factors apply to this case. They submit that the primary issues in this appeal are “whether or not there is a contract connected with the dispute that was made in the Province” and if the Plaintiff has established a new presumptive connecting factor. [ 30 ] The Appellants/Defendants, Palladium and Desarrollos, submit that no contract connected to the dispute was made in Alberta.

In the alternative, if one or more of these contracts constitutes a presumptive connecting factor, then the presumption is rebutted on the facts of this case. [ 31 ] The Appellants/Defendants, Palladium and Desarrollos, note that in Van Breda , the Court analyzed two companion cases with two distinct fact patterns: Charron Estate v. Village Resorts Ltd and Van Breda v Village Resorts Ltd. They suggest that the facts of the Charron case are analogous to this case. [ 32 ] In Charron , there was no contract connected to the dispute; the Defendant was found to be carrying on a business in Ontario.

The Appellants/Defendants, Palladium and Desarrollos, submit that in this case there is no evidence that they were carrying on business in Alberta or that First Choice was acting as their agent in Alberta. [ 33 ] The Appellants/Defendants, Palladium and Desarrollos, also point to the fact that Palladium and Desarollos were not parties

to the two contracts, the Holiday Contract and the Booking Contract, that were allegedly made in Alberta. They refer to a number ofcases from other jurisdictions to support their position including the Nova Scotia Supreme Court’s decision in Brown v Mar Tainosa,2015 Carswell INS 971. [34] The Appellants/Defendants, Palladium and Desarrollos, argue that in order to constitute a presumptive connecting factor, thecontract must create a relationship where the defendants owe a duty of care to the plaintiff.

They refer to Colavecchia v The BerkelyHotel, 2012 ONSC 4747; Haufler v Hotel Riu Palace Cabo San Lucas, 2013 ONSC 6044; and Wilson v Riu, 2012 ONSC 6840, whereharm to the Plaintiff was not reasonably foreseeable because the Defendant was not a party to the relevant contract. [35] The Appellants/Defendants, Palladium and Desarrollos, argue that it is only through the Mexican Contract that the Toewsacquired an enforceable right to stay at the hotel. [36] In

summary, they argue that the only contracts entered into by Palladium or Desarrollos were either not connected to thedispute and/or were not made in Alberta. A. Analysis [37] The Appellants/Defendants, Palladium and Desarrollos, focus on the fact that they were not a party to either the BookingContract (which is disputed) or the Holiday Contract. These are the two contracts that were clearly made in Alberta. [38] This submission is not persuasive. To be a presumptive connecting factor in relation to a tort, there is no requirement that thecontract create a direct relationship with the defendant.

Privity of contract is not a requirement. It is sufficient that the contract be“connected” to the tort. [39] In Van Breda there was no contract between the plaintiff and the defendant. Rather, the “contract” which created jurisdiction,was a letter between the plaintiff’s partner Mr. Berg, and Mr.

Dennis who represented the defendant resort. [40] The key aspect of a contract as a presumptive connecting factor, under the Van Breda test, is that a plaintiff’s claim is“connected with”, or under Rule 11.25 (3)(b) “relates to”, a contract made in Alberta. [41] In Slattery (Trustee Of) v Slattery, (SCC), [1993] 3 SCR 430 at pp 445-446, the Supreme Court interpreted asimilar phrase, “relating to”, from the Income Tax Act and concluded that these types of phrases import “the widest of any expressionintended to convey some connection between two related subject matters”.

Alberta Courts have also emphasised that the phrase “relatedto” has a very broad meaning: Bow Valley Insurance Services 1992 Ltd v Shah, 2005 ABCA 304; Dow Chemical Canada Inc v NovaChemicals Corp, 2010 ABQB 524; Rochwerg, v Truster, (2002) (ON CA), 58 OR (3d) 687. [42] In this case the alleged tort arose as a result of Mrs. Toews drinking from a bottle, of what she assumed was water, in her hotelroom. The reason that Mrs. Toews went to the hotel, and was ultimately in the hotel room where she drank the liquid, was because shehad entered into the Holiday Contract with First Choice in Alberta.

In addition, the only reason First Choice was in a position to sell theroom and related services to the Toews was because it had entered into the Booking Contract in Alberta. It is as a result of, or through,the contracts signed in Alberta that the Toews acquired the right to stay at Palladium Hotel and further acquired the right to be providedwith food and beverages.

These contracts clearly “relate to” or are “connected with” the Toews’ claim against Palladium andDesarrollos. [43] The Holiday Contract and the Booking Contract are a direct link to the Toews’ journey to Mexico and to obtaining the roomand services at the Palladium which resulted in the alleged tort and injuries. “But for” these contracts, the Toews would not have been inthat hotel room at Palladium. [44] I also find that if one looks at all the relevant contracts involved in the sale of the holiday package at Palladium, and at thecorporate relationships between the various contracting parties , it is obvious the that the Holiday Contract and the Booking Contract arerelevant and directly connected to the issues and matters in dispute in this action.

It is also clear that these contracts directly connect theAppellants/Defendants, Palladium and Desarrollos, to the action. [45] Also of significance, for Alberta Courts to have jurisdiction over a defendant, there is no requirement that the defendant carryon business within Alberta. [46] I conclude that the Respondents, the Toews, have established a real and substantial connection between the Toews andPalladium Hotel and Desarrollos based on the presumptive Van Breda connecting factor: that there is a contract, made in Alberta, whichis connected with the tort.

I am also satisfied that a real and substantial connection with Alberta has been established under Rule 11.25(3)(b). B. Rule 11.25(3)(i) [47] The Respondents, the Toews, also submit that Rule 11.25(3)(

i) applies in this case, because Palladium and Desarrolos are necessary or proper parties to the action brought against another person who was served in Alberta. Master Schulz agreed with thissubmission and found that Rule 11.25(3)(

i) is a new presumptive connecting factor. The Appellants submit that Master Schulz erred bymaking this finding. [48] I have found that a presumptive connecting factor has been met by application of the fourth Van Breda criteria and under Rule11.23(3)(b). [49] As a result, there is no need for this Court to consider the

interpretation, applicability, enforceability or constitutionality ofRule 11.25(3)(i).

C. Has the Presumption of Jurisdiction been rebutted? [ 50 ] As noted at para 95 of Van Breda , the presumption of jurisdiction that arises is rebuttable: [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 of jurisdiction.

That party must establish 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 relationship between them. [ 51 ] In this case the Appellants/Defendants, Palladium and Desarrollos, have not established facts to rebut the presumption of jurisdiction. Rather, the facts establish a strong relationship between the subject matter of the litigation and Alberta. The contracts signed in Alberta are clearly relevant to the subject matter of the litigation.

In addition, the Plaintiffs reside in Alberta and have no connection to Mexico. [ 52 ] Therefore, the Appellants/Defendants, Palladium and Desarrollos, have failed to rebut the presumption that the Alberta Courts have jurisdiction in this action. D. Conclusion on Issue No. 1 [ 53 ] The Respondents/Plaintiffs, the Toews, have established a real and substantial connection between the Toews and Palladium and Desarollos. The Appellants/Defendants, Palladium and Desarrollos, have failed to rebut the presumption that the Alberta Courts have jurisdiction in this action.

Therefore, Alberta courts have jurisdiction in this matter. 2. Is Alberta the most convenient forum in which to hear this action? [ 54 ] Having found that a real and substantial connection exists, this Court must determine whether this court should nonetheless decline to exercise its jurisdiction because another court is a more appropriate forum. [ 55 ] The Appellants/Defendants, Palladium and Desarrollos, argue that this Court should decline to exercise jurisdiction because Mexico is the most convenient forum to hear this matter.

In support of this position, the Appellants rely on the affidavits of Luis Fraguas sworn on Feb 1, 2013 and November 23, 2015. The Affidavits, state that a number of key witnesses are located in Mexico and these potential witnesses are expected to provide evidence required in Palladium and Desarrollo’s defence of this claim. They further argue, these witnesses are likely Mexican residents that do not hold international travel documents.

As a result, it would be difficult to have these individuals travel to Alberta to give evidence. [ 56 ] The Appellants/Defendants, Palladium and Desarrollos, rely on the factors outlined in Pedwell v SNC-Lavalin , 2014 ABQB 309 , and in Prince v ACE Aviation Holdings Inc , 2014 ONCA 285 . In particular, they point to the fact that Palladium carries on business in Mexico, and because the cause of action arose in Mexico, Mexican law will apply, therefore necessitating experts to interpret Mexican law if the matter were to proceed in Alberta. A.

Analysis [ 57 ] The burden of proof in a forum non conveniens argument rests on the Defendants, as was stated by the Supreme Court in Van Breda at paragraph 109 : ... The burden is on a party who seeks to depart from this normal state of affairs to show that, in light of the characteristics of the alternative forum, it would be fairer and more efficient to do so and that the plaintiff should be denied the benefits of his or her decision to select a forum that is appropriate under the conflicts rules.

The court should not exercise its discretion in favour of a stay solely because it finds, once all relevant concerns and factors are weighed, that comparable forums exist in other provinces or states. It is not a matter of flipping a coin. [ 58 ] Various factors have been enumerated in the case law that are relevant in determining the question of forum non conveniens: Van Breda at para 105 ; Blac v Breeden , 2012 SCC 19 at para 23 ; Pedwell v SNC-Lavalin Inc , 2014 ABQB 309 at para 39 . [ 59 ] The following factors are relevant to this case:

a) Location of the witnesses and parties and the comparative expense and convenience for these parties;

b) Avoidance of multiplicity of proceedings and conflicting decisions

c) The applicable law relating to the dispute, and what weight is to be given to legal issues in comparison to the factual issues; and

d) Juridical advantage for the plaintiff in Alberta, and the juridical disadvantage for the defendant in Alberta. [ 60 ] Each of these factors is analyzed below. B. Location of the witnesses and parties and the comparative expense and convenience for these parties [ 61 ] The Plaintiffs/Respondents, the Toews, have identified a precise and lengthy list of witnesses, along with the type of evidence that each of these witnesses are expected to provide: The list is: 1. All the named Plaintiffs reside in the Province of Alberta;

2. Four fact liability witnesses reside in Alberta: Kerry, Todd, Bay and Jaden Toews; 3. One fact liability witness, the neighbour at Palladium, resides in British Columbia; 4. One Expert liability witness, the chemist who analyzed the substance ingested by Mrs. Toews, resides in Alberta: Dr. D.A. Birkholz; 5. Seven professional medical witnesses reside in Alberta: Dr. Nandanie Weerasinghe (GP), Dr. Alice Bedard (family medicine), Dr. Chris Keeling (dermatologist), Dr. Kenneth Stewart (thoracic and esophageal surgeon), Dr. Kim Boldt (dentist), Dr. Cynthia Blackman (psychologist), and Dr.

Howard Saslove (psychologist); and 6. Four professional expert witnesses providing evidence relating to quantum of damages reside in Alberta: Dr. Brenda Munro (loss of housekeeping services capacity), Rashid Kashani (occupational therapy, functional capacity assessment and cost of future care), Dr. Alexander Jenkins (labour economist), and Bob McNally (quantification of the claims). [ 62 ] All of the witnesses identified as required for the Plaintiff’s case, reside in either Alberta or British Columbia. Necessitating this large number of witnesses to travel to Mexico would be very expensive.

The cost of proceeding with this action in Albera would be substantially lower than if these witnesses were required to travel to Mexico. [ 63 ] Conversely, the Appellants/Defendants, Palladium and Desarrollos, have provided a list of potential witnesses that they assert are required for the assessment of liability against them. Luis Farguas, the corporate representative of Palladium and Desarrollos, was cross examined on an Affidavit he swore with respect to this list of witnesses. Under cross examination he confirmed that the Appellants/Defendants:

a) have not spoken to the witnesses;

b) cannot confirm which of these witnesses, if any, will be called at trial;

c) cannot identify what evidence, if any, these witnesses will be able to provide at trial;

d) are unable to confirm where these individuals reside; and

e) are presuming that these individuals will have relevant knowledge and are further presuming that these individuals do not have international travel documents. [ 64 ] The Appellants/Defendants, Palladium and Desarrollos, argue that it is far too early in the litigation to have clearly determined the final list of witnesses and the evidence that these witnesses will give.

They further argue that it is sufficient, at this point, to identify potential witnesses. [ 65 ] This argument is unpersuasive, because the burden rests on the Appellants/Defendants in this forum non convenience argument: Van Breda ; Court v Debaie , 2012 ABQB 640 at para 46 . The Appellants/Defendants have not provided sufficient evidence with respect to this part of the analysis. The Plaintiffs/Respondents have provided clear evidence on this issue. [ 66 ] Therefore, this factor favours Alberta as being the most convenient forum. C.

Avoidance of multiplicity of proceedings and conflicting decisions [ 67 ] The Appellants, rely on Currie v Farr’s Coach Lines Ltd , 2015 ONSC 2352 , a case in which a number of Ontario and Michigan residents purchased bus tickets, from an American company, to go to New York. While in New York an accident occurred and many of them suffered injuries. The defendants, in that case, argued that Ontario was the forum conveniens.

The court held that although it has jurisdiction because the tickets were purchased in Ontario, it declined to exercise jurisdiction because of the existing actions in New York, the applicability of New York Law and the desirability to avoid multiple proceedings. [ 68 ] This case can be distinguished on the basis that a large number of passengers commenced an action in New York, while a smaller number of passengers wanted to commence a later action in Ontario. [ 69 ] In this case, First Choice, one of the Defendants (not a party in this action), has attorned to the jurisdiction of Alberta.

Therefore, the litigation against First Choice will proceed in Alberta. [ 70 ] If litigation is allowed in Mexico with respect to the Respondents, two proceedings would be required, one proceeding in Mexico against the Appellants/Defendants, Palladium and Desarrollos, and one proceeding in Alberta against the Defendants, First Choice. [ 71 ] In Van Breda at para 99 , the Court addressed the issue of multiplicity of proceedings as follows: I should add that it is possible for a case to sound both in contract and in tort or to invoke more than one tort.

Would a court be limited to hearing the specific part of the case that can be directly connected with the jurisdiction? Such a rule would breach the principles of fairness and efficiency on which the assumption of jurisdiction is based. The purpose of the conflicts rules is to establish whether a real and substantial connection exists between the forum, the subject matter of the litigation and the defendant. If such a connection exists in respect of a factual and legal situation, the court must assume jurisdiction over all aspects of the case.

The plaintiff should not be obliged to litigate a tort claim in Manitoba and a related claim for restitution in Nova Scotia. That would be incompatible with any notion of fairness and efficiency. [ 72 ] Since the action against First Choice, will be heard in Alberta, in order to avoid multiplicity of proceedings and conflicting

results, all claims should be heard in Alberta. [ 73 ] As a result, this factor favours Alberta as the most convenient forum. D. The applicable law relating to the dispute, and what weight is to be given to legal issues in comparison to the factual issues? [ 74 ] Although the tort occurred in Mexico, Alberta law will apply to the two relevant contracts connected to this action, the Holiday Contract and the Booking Contract. These contracts will be the basis for the breach of implied conditions and misrepresentation claims by the Plaintiffs.

Neither party has provided evidence with respect to the difficulty of proving either country’s laws. This is therefore a neutral factor. E.

Juridical advantage for the plaintiff in Alberta, and the juridical disadvantage for the defendant in Alberta [ 75 ] The Plaintiffs/Respondents, the Toews, argue that it will 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, including the extreme difficulties experienced by the Plaintiffs to date with effecting service of pleadings in this action, and the overall likelihood of corruption and an unfair disposition of the claim. [ 76 ] There is no evidence to support the allegation of potential corruption and I cannot take judicial notice of this fact.

Furthermore, although there is evidence of difficulties in service of documents, it is not enough to find that the Mexican justice system will result in an unfair disposition of the claim. Due to a lack of evidence of any juridical advantage or disadvantage in either jurisdiction, this is a neutral factor. F. Conclusion on Issue No. 2 [ 77 ] Due to the location of the witnesses, and the need to avoid multiple proceedings, I am satisfied that the most appropriate forum is Alberta.

The Appellants/Defendants, Palladium and Desarrollos, have failed to demonstrate that Mexico is a more appropriate forum for this action. VII.

Summary [ 78 ] I find that the Alberta Courts have jurisdiction over this action. The Plaintiffs/Respondents, the Toews, have established a real and substantial connection between the Toews and the Appellants/Defendants, Palladium Hotel and Desarrollos. I reach this conclusion on consideration of the Van Breda presumptive connecting factor: there is a contract made in Alberta, which is connected with the tort. I am also satisfied that the presumptive factor under Rule 11.25(3)(

b) is established. The Appellants/Defendants, Palladium and Desarrollos, have failed to rebut these presumptions. [ 79 ] I am also satisfied that Alberta is the most convenient forum in which to hear this action based on the Application of forum non conveniens . [ 80 ] As such, the Master’s Decision was correct. The Appellant’s/Defendant’s applications are therefore dismissed. The parties may speak to costs if they are unable to agree. Heard on the 4th day of February 2016. Dated at the City of Edmonton, Alberta this 4 th day of March, 2016. J.J. Gill J.C.Q.B.A. Appearances: Kevin P. Feehan, Q.C. and Sara E. Hart From Dentons Canada LLP for the Respondents/Plaintiffs

Bruce Churchill-Smith, Q.C. and Justine Blanchet From Borden Ladner Gervais LLP for the Appellants/Defendants Grand Palladium Vallarta Resort & Spa, Desarrollos Dine S.A. de C.V., et al Ryan Krushelnitzky and Sharon Stefanyk From Field LLP for the Defendants, First Choice Canada Inc., et al Kelly J. Robinson From Chomicki Baril Mah LLP for the Defendants, Dominican Entertainment, et al