Overview
Sinclair v. Venezia Turismo, 2025 SCC 27, dealt with the question of jurisdiction under the real and substantial connection test, focusing specifically on whether a contract connected to the dispute at issue was made in the province.
In 2017, the Sinclair family went on vacation to Europe, during which time Mr. Sinclair was injured in a water taxi accident. The Sinclair family had booked the trip through the Centurion Travel Service which Mr. Sinclair had access to through his American Express Centurion credit card. Three Italian companies associated with the water taxi service were listed as defendants in the action on the basis that the contract between the Sinclair family and these defendants was formed in Ontario.
The majority of the Supreme Court of Canada was willing to accept that the contract between the Centurion Cardmember Agreement and Mr. Sinclair was formed in Ontario. However, the presumption of jurisdiction was rebutted because there wasn’t a real and substantial connection between Ontario and the water taxi accident.
Facts
In 2017, Duncan Sinclair booked a vacation to Europe for his family through the Centurion Travel Service (Centurion), which he had access to through his American Express Centurion credit card.
Centurion provided various services, including arranging travel plans from Marco Polo Airport in Venice to the Westin Europa Hotel via water taxi for the Sinclair family.
Carey International, a third‑party supplier contacted by Amex Canada, provided a quote for this trip. The water taxi trip itself was conducted by Venezia Turismo and Venice Limousine, while Narduzzi provided port services for ships, vessels and boats in Venice.
During the trip, the water taxi struck a large wooden structure, causing serious injuries to Mr. Sinclair. The Sinclair family then started an action including Venezia Turismo, Venice Limousine and Narduzzi as defendants, together known as the Italian Defendants.
The Italian Defendants brought a motion to dismiss or stay the action against them on the basis that the Ontario Superior Court of Justice lacked jurisdiction over the matter.
Procedural History
Ontario Superior Court of Justice
The Sinclair Family was initially successful at the Superior Court of Justice after the motion judge dismissed the Italian Defendants’ motion.
The motion judge reasoned that the contract booking the water taxi had been formed in Ontario as it was formed through Centurion and Amex Canada.
Turning to rebutting the presumption of jurisdiction, the motion judge included in their reasons that Amex Canada had defended and crossclaimed against the other defendants and that Carey International had delivered a notice of defence, and so Ontario was a suitable jurisdiction.
Court of Appeal for Ontario
The Italian Defendants appealed, and the Court of Appeal, was unanimous in its decision that Ontario lacked jurisdiction over this dispute. While the majority and concurring reasons differed over whether a presumptive connecting factor had been established, both agreed that any presumption of jurisdiction was rebutted.
The majority’s reasoning centered around the fact that a presumptive connecting factor tying one defendant to the forum, although they may not dispute it, does not automatically extend jurisdiction over other defendants who challenge it. To do so would have sweeping implications by extending the jurisdiction of Ontario’s courts to anyone who became injured through travel arrangements made via a credit card company operating in Ontario and providing travel services.
In the Sinclair Family’s case, nothing in the Sinclair’s pleadings showed that the contractual arrangements they had with Amex Canada contemplated or required the involvement of the Italian Defendants. And so, the Italian Defendants couldn’t be brought within the jurisdictional reach of Canadian courts based on the fact the Sinclair Family had a contractual relationship within Canada.
Issues on Appeal
The issues on appeal were:
- Was there an Ontario contract connected with the dispute?
- If the presumptive connecting factor outlined in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572 (Van Breda) was established, had the presumption of jurisdiction been successfully rebutted?
Standard of Review and Real and Substantial Connection Test
This majority first cited Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, to show that the question of whether a contract was formed is a question of law reviewable on a correctness standard, and this appeal hinged on the question of whether and where a contract was formed.
The case of Van Breda established four factors that presumptively allow a court to assume jurisdiction over a dispute in tort cases:
(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.
Once the plaintiff has established one of the presumptive connecting factors, the defendant may then rebut the presumption of jurisdiction by showing that in the circumstances of the case, the factor doesn’t point to a real relationship between the dispute and the forum.
The majority wrote that the assessment of whether a presumptive connecting factor has been established is concerned with the existenceof a connection between the jurisdiction and the dispute, whereas the assessment of whether the presumption has been rebutted is concerned with the strengthof that connection.
Issue #1: Was a Contract Connected with the Dispute Made in the Province?
After considering the parties’ submissions and the procedural history, the majority found there was consensus on the existence of three possible contracts:
- The Centurion Cardmember Agreement between Mr. Sinclair and Amex Canada;
- The water taxi booking between Mr. Sinclair and Amex Canada; and
- The contract between Amex Canada and Carey International to subcontract the procurement of travel services.
The Centurion Cardmember Agreement between Mr. Sinclair and Amex Canada
The majority found that nothing connected the location of where the Centurion Cardmember Agreement was formed to Ontario beyond the assertion made in the Sinclair Family’s statement of claim that the damages they allegedly suffered arose from a contract made in Ontario.
However, the majority noted that despite the lack of sufficient particularity in the Sinclair Family’s pleadings, this assertion wasn’t contested by Amex. And so, when reading the pleadings generously, it was likely that the Centurion Cardmember Agreement was formed in Ontario. For those reasons, the majority were prepared to accept that the contract was formed in Ontario.
The Water Taxi Booking Between Mr. Sinclair and Amex Canada
The majority found the record did support the existence of this contract. The majority focused on how the scope of the Centurion Cardmember Agreement, as explained in Amex Canada’s Statement of Defence and Crossclaim, was such that Cardmembers enjoy a number of benefits, such as travel services, all bookings of which are made through Centurion Travel Service. However, there was no indication that cardmembers have to pay an additional fee to access these services. There then couldn’t be the requisite consideration for a contract, as a cardmember does not form a new contract when travel booking. Rather, the act of booking through Centurion is an instance of performance by Amex Canada of the underlying cardmember agreement.
The Contract Between Amex Canada and Carey International to Subcontract the Procurement of Travel Services
The majority reasoned that when Amex Canada contacted Carey International to form a reservation for the Sinclair family, Amex Canada was not acting on its own behalf, but instead as an agent for Mr. Sinclair, as clarified in Friedmann Equity Developments Inc. v. Final Note Ltd., 2000 SCC 34, [2000] 1 S.C.R. 842.
The majority went on to further discuss how a reservation can constitute a contract but the facts necessary to establish that the reservation from Carey International constituted a contract with Mr. Sinclair weren’t alleged. To establish that a contract existed, the Sinclair Family would have to show that Mr. Sinclair compensated or agreed to compensate Carey International for the reservation service. While Carey provided an estimate of what Mr. Sinclair would pay for the taxi trip, this quote did not amount to a fee owing to Carey International for the trip.
Issue #2: If the Fourth Presumptive Connecting Factor is Satisfied, is it Properly Rebutted?
Assuming the fourth presumptive factor had been made out with respect to the Centurion Cardmember agreement, the majority held that the Italian Defendants had rebutted the presumption of jurisdiction because the existence of the Centurion Cardmember Agreement did not demonstrate a real and substantial connection between Ontario and the water taxi accident. The majority primarily took issue with the strength of the connection between the contract and the subject matter of the dispute.
The majority first re-iterated that although Amex Canada had not disputed Ontario’s jurisdiction over the claim, and Carey International attorned to Ontario’s jurisdiction, the assertion made by one or more defendants could not be used to bind other defendants.
In this instance, the dispute arose from a tort that occurred in Italy on a water taxi owned by an Italian company, dispatched by a different Italian company and operated by an Italian national. The only connection between the Centurion Cardmember Agreement and the dispute was that Mr. Sinclair made a non‑binding reservation through Carey International through an Amex Canada agent.
The majority echoed the concerns of the majority of the Court of Appeal of Ontario, that if the fact that Mr. Sinclair made a reservation through his Amex Canada agent were enough to establish a connection with Ontario, it would follow that any travel reservation made using a credit card travel service would provide a sufficient basis for Ontario to assume jurisdiction over foreign disputes based on torts. This would impose a heavy burden that is difficult to justify.
Takeaways
The majority have sent the message loud and clear in this case, that the fact a presumptive connecting factor tying one defendant to the forum, although they may not dispute it, does not automatically extend jurisdiction over other defendants who challenge it.
As well, the majority has cautioned against judicial overreach stemming from the real and substantial connection test, finding that the reasoning of the motion judge would amount to the picture of unfairness, unpredictability and jurisdictional overreach which Van Breda was meant to circumvent.
OTLA Intervention!
Thank you to OTLA member, Duncan Embury from Neinstein Personal Injury Lawyers and Tina Lie and Chris Paliare from Paliare Roland Rosenberg Rothstein LLP, for your work on intervening in this case!
