International Travel and Jurisdiction
It is every vacationer’s worst nightmare – during their trip, they fall ill or have an accident resulting in injury.
The trip is cut short, and what was supposed to be a time for relaxation, adventure, and fun in the sun becomes a trip filled with foreign hospital visits, expensive international calls to insurance companies, and mountains of paperwork. Things can get even more complicated if you are not at fault for the accident. In cases where an accident occurs overseas or out of province, with the at-fault party also living outside of Ontario, can civil claims still be filed, and if so, how?
In one recent case, a family attempted to sue the Mexican resort where they were staying for negligence, after an ATV accident injured their young child. However, the resort was able to successfully prevent the case from being heard in Canada, as they were not located in nor did they carry on business in Canada. According to a recent case from the Supreme Court of Canada, to establish that Ontario courts have jurisdiction to hear a claim arising from an injury suffered while on vacation outside of Ontario it requires that one of the four factors below be demonstrated:
1) The defendant is domiciled or resident in the province;
2) The defendant carries on business in the province;
3) The tort was committed in the province; or,
4) A contract connected with the dispute was made in the province.
As the event in that case occurred outside of Canada and involved a company who worked through an intermediary to sell rooms in Canada, the Courts agreed that the civil case was not within the jurisdiction of the Canadian courts.
In motor vehicle cases, the laws are somewhat different, provided that the insurance companies for both parties are Canadian or have Canadian subsidiaries. In some previous cases, the courts have found that if the insurance company provides for out of province or out of country coverage, then the plaintiff’s home province (for example, Ontario) would have jurisdictional rights over the case. Other contributing factors in deciding jurisdiction include the difficulty or inconvenience to the plaintiff pursuing litigation outside of Ontario, due to injuries sustained in the accident, as well as the fact that an injured plaintiff may require medical attention and experiences prolonged suffering primarily in Ontario. That said, a recent decision of the Ontario Court of Appeal precluded a Plaintiff from Ontario injured in Alberta from pursuing a claim through the Ontario courts.
Cases where the accident occurred outside of Canada can be far more complicated, and tend to turn on whether or not the insurance policy provides for payouts in foreign disputes, and whether the at-fault party in the accident agrees to Ontario jurisdiction.
Navigating the intricacies of foreign and inter-provincial insurance law can be difficult