Right to Sue for Injuries Sustained Abroad

With summer just around the corner, many Calgarians are preparing for holidays around the world. While most vacationers are focused on travel arrangements, itineraries, and packing, few consider the uncomfortable possibility of suffering an injury while on vacation and the impact which the location of that injury may have on their ability to claim compensation for their losses. As a general rule, a personal injury action must be commenced within the jurisdiction where the injury occurred - meaning that Alberta courts have jurisdiction over claims for injuries sustained in Alberta, Ontario courts over injuries sustained in Ontario, and California courts over injuries sustained in California. This jurisdictional question can pose significant practical and logistical issues for Canadians injured abroad, especially in those popular vacation destinations with entirely different legal systems and legal rights - such as Mexico, the Caribbean, and even the United States.

However, the Supreme Court of Canada and Alberta Court of Appeal have recently held that local Canadian jurisdictions may be deemed the appropriate forum for litigation - even where the actual injury occurred in another jurisdiction - based on the broader circumstances of the events leading up to the injury. In the 2012 decision of Van Breda v Village Resorts Ltd., 2012 SCC 17, the Supreme Court of Canada found that Ontario was the appropriate forum for a personal injury action relating to catastrophic injuries sustained by the Plaintiff while vacationing in Cuba, given that there was a “real and substantial connection” between Ontario and the facts on which the claim was based. Specifically, the Court found that although the Defendant resort was physically located in Cuba, the company operating the resort had (1) taken out advertisements in Ontario and (2) communicated with travel agents in Ontario, and (3) that the contractual agreement relating to the Plaintiff’s vacation had been formed in Ontario. Ultimately, the Supreme Court noted the general rule that the forum where the injury occurred is presumed to be the appropriate jurisdiction for litigation, but nevertheless concluded that the facts of the case were sufficient to overturn that presumption and find that Ontario was, in fact, the appropriate jurisdiction for litigation.

The Alberta Court of Appeal reached a similar conclusion in the 2016 case of Toews v Grand Palladium Vallarta Resort & Spa, 2016 ABCA 408. In that case, the Plaintiff suffered a very serious injury while on vacation in Mexico, after taking an unmarked water bottle from the minibar in her hotel room and drinking what she presumed to be water but was in fact an industrial cleaning solution. The Plaintiff was rushed to the hospital and diagnosed with severe burns to her esophagus, before undergoing more than 80 corrective surgeries upon her return to Edmonton. The Plaintiff sought to commence action against the Mexican resort, and the Court was asked to determine whether Alberta or Mexico was the appropriate forum for litigation. The Court of Appeal acknowledged the general presumption that the appropriate forum is that in which the injury occurred, and also considered the Supreme Court of Canada’s decision in Van Breda for guidance. Ultimately, the Alberta Court of Appeal concluded that the Van Breda “real and substantial connection” test was the appropriate means of determining the issue, and held that since the contract relating to the purchase of the hotel package was made in Alberta and was governed by the laws of Alberta (a fact which the Defendant resort acknowledged), there was a “real and substantial connection” to the Province of Alberta. Accordingly, the Court found that Alberta was the appropriate forum for litigation, and that the Plaintiff could proceed with their action in the Queen’s Bench of Alberta.

It is important to note that while the above cases represent important exceptions to the general rule, it remains the case that the most appropriate forum for litigation will often be the jurisdiction in which the injury occurred. However, as the Van Breda and Towes decisions illustrate, this general rule may not always prove true, and it is therefore important that you seek legal advice in situations where you or a loved one have sustained injuries in foreign jurisdictions. Please do not hesitate to contact the experienced personal injury lawyers at Rodin Law Firm if you have any questions about your entitlement to commence action in Alberta for injuries sustained abroad. We can be reached online, or by telephone at (403) 216-0385.

Ellie Staniloff