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Injured on Vacation

Friday, July 22nd, 2011

Canadians love to travel. 

In particular, Statistics Canada recently reported that travel by Canadians to foreign countries included these top fifteen destinations: United States, United Kingdom, Mexico, France, Cuba, Dominican Republic, Italy, Germany, Netherlands, Spain, China, Hong Kong, Japan, Switzerland and Austria.

Travel to the USA included these top fifteen destinations: New York, Michigan, Washington, California, Ohio, Pennsylvania, Massachusetts, Minnesota, Illinois, Florida, Texas, New Jersey, Wisconsin, Maine and Oregon.

But accidents sometimes occur to Ontario residents while they are travelling to or from, visiting, working or vacationing in other provinces or countries. 

Examples of Vacation Accidents

Road, Rail and Air Accidents and Injuries
Bus Accidents and Injuries
Water Accidents and Injuries – Beach and Swimming Pool Accidents
Cruise Accidents, Injury and Illness
Maritime Accidents – Boat and Jet-Ski Injuries
Boating Accidents, including Small Craft and Sailing Accidents
Water Sports Injuries – Diving, Scuba and Snowboarding Injuries
Winter Sports Accidents – Snowmobile, Ski, Snowboard and Climbing Accidents
Equestrian Activities – Riding and Equestrian Sports
Spectator Injury 
Amusement Park Ride Accidents
Victim of Assault or other Criminal Activity
Food Poisoning and Illness

Suppose that during a vacation or while working outside Ontario or abroad, injury, harm or loss was caused to you or a member of your family by one or more of the following: tour operators, travel agents, ship and boat owners and operators and cruise lines, airlines, hotels, restaurants, sports venues, amusement and theme parks, entertainment venues, or ski and snowboard resort owners and operators.  Or you want to present a claim to your travel insurers for injury, death, harm or loss caused during a holiday or travel excursion.

Claims by Ontario residents from events arising in other provinces or other countries often involve complex issues of jurisdiction (where the lawsuit must be started) and questions as to which country’s laws should apply. We can provide an opinion as to whether or not the laws of Ontario apply to your situation, and whether or not the courts in Ontario have jurisdiction to hear your case or whether you must go to a court in a place other than Ontario to seek damages or other remedies. 

In cases where you are required to pursue your accident claim in a province other than Ontario or in the country where it occurred, we cannot provide legal advice or representation, but we can be retained to assist you in the choice and appointment of a lawyer to handle your case in the country where the accident occurred. 

Please note that it is important to seek and obtain legal advice of a competent lawyer in the appropriate jurisdiction as soon as possible, since time limitation periods to give notice of claims and to commence legal proceedings will vary across Canada and throughout the world and in some cases these time limits are very short.

Richard Hayles, B.A., J.D. 

David Alderson,  LL.B, LL.M 

Admitted in Ontario, Canada and New York, USA.
Also admitted (but not practicing) in Bermuda, England and Wales.
Practiced with Legal Consultants in Dubai.

 

Brief informational summaries about commercial and other litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.

 

Posted in Civil Litigation, Construction Disputes, Enforcement of Foreign Judgments & Decrees, Insurance & Reinsurance, International & Cross-Border, Litigation Law, Negligence, Passenger Claims, Personal Injury, Travel & Tour Operators, Uncategorized, Urgent Legal Assistance | 4 Comments »

No “Fourth Defence” to Enforcement of Foreign Injunctions (Non-Money Judgments) in Ontario

Thursday, October 14th, 2010

Recently, the Ontario Court of Appeal in United States of America v. Yemec, 2010 ONCA 414 considered the following interesting issues:

1.      whether there is a fourth defence to enforcement of a foreign judgment based on the “loss of a meaningful opportunity to be heard”;

2.      whether a foreign equitable remedy (an injunction) is enforceable by courts in Ontario; and

3.      whether the Defendants’ damages inquiry relating to the U.S. government’s undertakings made to the Ontario Superior Court in support of obtaining a Mareva injunction (freezing order) and an Anton Piller order (civil seizure order) should proceed.

While addressing the first issue, the Court refused to add a fourth defence – a meaningful opportunity to be heard – to the three central defences in common law in Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416 , namely, fraud, denial of natural justice and public policy.

The Court discussed Beals, in which the Supreme Court of Canada held that, whilst “the list of available defences is not closed” the new defence of  “loss of a meaningful opportunity to be heard” must be different in scope and content from the natural justice defence; and that it must relate not to the process and procedures of the foreign court but to some significant unfairness in the way the litigation has proceeded or has been conducted.

The Court found that the fourth defence raised in this case was indistinguishable from the natural justice defence. In addition, the Court stated that the defendants were not to be deprived of a meaningful opportunity to be heard in the U.S. court proceedings.

Whilst dealing with the second issue, the Court followed Pro Swing Inc. v. Elta Golf Inc., [2006] 2. S.C.R. 612, where the Supreme Court of Canada ruled that courts in Canada may now enforce foreign equitable orders such as foreign injunctions (not just foreign money judgments) and enumerated the following factors to consider in determining enforceability:

a.       Are the terms of the order clear and specific enough to ensure that the defendant will know what is expected from him or her?

b.      Is the order limited in its scope and did the originating court retain the power to issue further orders?

c.       Is the enforcement the least burdensome remedy for the Canadian justice system?

d.      Is the Canadian litigant exposed to unforeseen obligations?

e.       Are any third parties affected by the order?

f.       Will the use of judicial resources be consistent with what would be allowed for domestic litigants?

In considering the third issue, the Court held that the defendants’ damages inquiry should proceed. The Court stressed the “serious nature of a damages undertaking” and held that the Plaintiff “could not seek to avoid an inquiry into damages on the basis that the undertakings were worthless from the outset since there could be no damages flowing from the termination of an illegal operation”.

Indeed, the Court noted that “it may be difficult for the defendants to prove that they have suffered compensable damages” due to the illegality of the defendants’ business. Nonetheless, the Court held that the defendants should not be “denied the opportunity to present their evidence and make full argument”.

Citations:         United States of America v. Yemec, 2010 ONCA 414

Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416

Pro Swing Inc. v. Elta Golf Inc., [2006] 2. S.C.R. 612

David Alderson, LL.B, LL.M (Lond.)

Masha Loftus, M.A., J.D


Brief informational summaries about commercial litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.

Posted in Enforcement of Foreign Judgments & Decrees, Injunction & Specific Performance, International & Cross-Border, Litigation Law, Urgent Legal Assistance | 1 Comment »