Dilkas v Red Seal Tours Inc. (Sunwing Vacations) 2010 ONCA 63,
Released 4 October 2010
Jurisdiction – Forum Conveniens –
Application of New Test Set out in Van Breda
This was an appeal from a decision dismissing a motion
challenging jurisdiction of the Ontario court and the convenience
of the Ontario forum. The plaintiffs brought an action in Ontario
for damages against Sunwing and Best Day after suffering serious
injuries in Mexico on a bus tour. Sunwing cross-claimed against
Best Day for contribution and indemnity, primarily based on the
indemnification agreement executed after the accident to deal with
claims arising out of accident.
Best Day brought a motion challenging both Ontario jurisdiction
and the convenience of the Ontario forum. The motion was decided
and dismissed by applying the test articulated in Muscutt v
Courcelles (2002), 60 OR (3d) 20. Subsequent to the release of
the motion judge's decision, the Court of Appeal released its
decision in Van
