In a closely divided 5-4 decision, the Supreme Court of Canada in Sinclair v Venezia Turismo, 2025 SCC 27 considered whether Ontario courts could assume jurisdiction over foreign defendants in a travel-related tort that occurred entirely abroad, where the trip had been arranged using a Canadian credit card concierge service. This decision provides guidance on the limits of contract-based jurisdiction in cross-border travel claims.

Background

Mr. Sinclair booked a trip to Europe for himself, his wife and their son using a concierge/travel agent service associated with his credit card company, Amex Canada. When Mr. Sinclair arrived in Italy he again contacted the concierge service to book transportation from the airport to their hotel. The Amex concierge agent subsequently obtained a reservation for a water taxi through a third-party service provider, Carey International. 

While the Plaintiffs were traveling on the water taxi, it crashed into a wooden structure, which allegedly resulted in personal injuries to the Plaintiffs. As a result, the Plaintiffs brought an action in Ontario against numerous defendants, including three Italian companies (the “Italian Defendants”), who challenged Ontario’s assumption of jurisdiction. 

The motion judge dismissed the Italian Defendants’ motion for an order dismissing the action for damages, or in the alternative, staying the action on the basis that the Ontario Superior Court of Justice lacked jurisdiction over them. On appeal, the Court of Appeal overturned the motion judge’s decision and stayed the action against the Italian Defendants. The Plaintiffs then appealed to the Supreme Court of Canada. 

The Law: Jurisdiction Simpliciter

The foundation of any legitimate assumption of jurisdiction is a real and substantial connection between the forum (court) and the dispute. The two-stage test for establishing whether a court assumes jurisdiction over tort claims where some of the events giving rise to the claim occurred outside Canada (or outside the province) was set out in Club Resorts Ltd v Van Breda, 2012 SCC 17:

1. The plaintiff must show a real and substantial connection, established by a presumptive connecting factor; and
2. The defendant may rebut the presumption by showing no real relationship to the forum. 

Simply put, the first stage of test identifies the existence of a presumptive connecting factor and the second stage evaluates its strength. 

With respect to the fourth presumptive factor – whether a contract connected with the dispute was made in the province – the Court emphasized that plaintiffs must plead the essential elements of a contract: offer, acceptance, and consideration, except where the existence of the contract is obvious and undisputed. 

Analysis

The Court’s analysis focused on Van Breda’s fourth presumptive connecting factor – whether a contract connected with the dispute was made in Ontario.

The Court identified three possible contracts that could exist: (1) the cardholder agreement between Mr. Sinclair and Amex, (2) the water taxi booking between Mr. Sinclair and Amex Canada, and (3) the “contract” between Amex and Carey International to subcontract the procurement of travel services. However, upon review of each possible contract, the Court only accepted the existence of one – the agreement between Mr. Sinclair and Amex.

While the Court found that the cardholder agreement between Mr. Sinclair and Amex was an Ontario contract, thereby meeting the first stage of the test, it held the Italian Defendants rebutted the presumption of jurisdiction as the agreement did not demonstrate a real and substantial connection between Ontario and the water taxi incident. Notably, the tort occurred entirely in Italy, on an Italian water taxi, owned, dispatched, and operated by Italian entities, and procured while Mr. Sinclair was physically in Italy. 

Ultimately, the Court concluded the cardholder agreement’s connection to the dispute was weak, bordering on non-existent, and therefore insufficient to ground jurisdiction over the Italian Defendants. The Court further cautioned that accepting jurisdiction on the basis that a plaintiff used a Canadian credit card concierge service would risk significant jurisdictional overreach. Given the foregoing, the Supreme Court of Canada dismissed the appeal.

The Dissent

Four justices dissented from the majority’s conclusion that there was insufficient connection to ground the Italian Defendants. The dissent was under the view the Italian Defendants had not successfully rebutted the presumption of jurisdiction and found two of the contracts (pleaded to have been made in Ontario) to be intimately related to the dispute. 

The dissent expressed concern that the majority interpreted the pleadings too narrowly (i.e.: a tort on a water taxi in Italy) and did not examine the claims pleaded as a whole. When examined as a whole, the claims included interconnected torts which flowed from contracts made in Ontario. 

The Plaintiffs alleged that they relied on Amex’s expertise and representations to organize a high quality and safe travel experience. The Plaintiffs further asserted that all defendants were jointly and severally liable for negligently engaging incompetent persons to provide transportation services and that those services were negligently provided. As such, the dissent found there was sufficient connection between the contracts and the dispute to allow Ontario to assume jurisdiction. 

In addition, the dissent noted the Italian Defendants made “effectively no submissions” to the motion judge on rebuttal, which further supported the dissent’s finding on jurisdiction. 

Takeaways

While contractual relationships formed in a province may ground a presumptive connection, courts will closely scrutinize the strength of that connection, particularly where foreign defendants are concerned. 

For insurers, travel service providers, and multi-national defendants, Sinclair provides clarity that the mere use of Canadian-based concierge or booking services will not automatically expose foreign actors to litigation in Canadian courts.