Can I sue if I’m injured while vacationing?
With winter well underway, Canadians of all stripes are making their way down South for the winter. From families off to Disneyland, to snowbirds going to Mexico, travelling abroad can be exciting for everyone… However, when personal injuries happen abroad, things can turn south in a hurry. Take for example the case of Ms. Van Breda. Ms. Van Breda was vacationing with her partner in Cuba when as a result of an accident she became a paraplegic.
At first glance, many would think that Ms. Van Breda could only sue in Cuba. This however, is not the case. The law in Canada states that victims of international personal injury are able to sue back at home in Canada, if they meet a certain set of connecting factors.
A connecting factor is a real and substantial fact that helps connect an incident with a particular jurisdiction. In other words, an “Ontario” connecting factor helps someone bring a lawsuit back to a court in Ontario.
But what would be considered an “Ontario” connecting factor? There are no hard and fast rules here, but rather the courts have set out four, non-exhaustive presumptive factors:
(a) The defendant is domiciled or is a resident in the province
In other words, is the person that is being sued living in Ontario? If the defendant is a business, do they have a building in Ontario?
(b) The defendant carries on business in the province
Does the person being sued, or the company being sued conduct business in Ontario?
(c) The tort was committed in the province
Did the accident occur in Ontario?
(d) A contract connected with the dispute was made in the province
Did you sign a contract with a travel agent in Ontario? When you purchased your booking, did you do so in Ontario? Did you buy your ticket online in Ontario?
If one of these factors are triggered, a court may assume jurisdiction, and continue with a trial in Ontario.
There are two things to remember here. One; these presumptions are rebuttable. Two; you can win at trial here in Ontario, but it may still be very difficult to collect damages from a foreign party, especially if the other party is not from the United States.
International tort law is a complex field, and it is highly suggested that you seek legal advice from experienced counsel.