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This summer, the Supreme Court of Canada (“SCC”) dismissed the appeal in Sinclair v Venezia Turismo, 2025 SCC 27 [Sinclair]. In a 5-4 ruling, the majority clarified how to determine a court’s jurisdiction simpliciter. This case has significant implications for businesses offering services to Canadians abroad.
Facts
Duncan Sinclair (“Mr. Sinclair”) had an American Express credit card with Amex Canada Inc. (“Amex Canada”). Amex Canada granted Mr. Sinclair access to concierge and travel agent benefits through Centurion Travel Service (“Centurion”) (Sinclair, para 4). In short, Amex Canada operated under Centurion’s name.
In July 2017, Mr. Sinclair asked Centurion to help him book a European family vacation that included a stay in Italy. While abroad, Mr. Sinclair called Centurion to organize his transportation from the Venice airport to his hotel. A Centurion agent booked Mr. Sinclair and his family a water taxi service through a third-party supplier, Carey International Inc. (Sinclair, para 5). The water taxi was owned by Venice Limousine S.R.L., dispatched by Venezia Turismo, and operated by Cristian Dordit (the “Italian defendants”) (Sinclair, para 5).
Mr. Sinclair was seriously injured when the water taxi struck a wooden structure en route to the hotel (Sinclair, para 18). Following the vacation, the Sinclair family (the “Sinclairs”) commenced an action in Ontario for damages against Amex Canada and the Italian defendants (Sinclair, para 6). The Italian defendants moved to dismiss or stay the action on jurisdictional grounds (Sinclair, para 6).
Judicial History
The Trial Court’s Decision
At the Ontario Superior Court of Justice (“ONSC”), Ramsay J dismissed the Italian defendants’ motion. Citing Club Resorts Ltd. v Van Breda, 2012 SCC 17 [Van Breda], the motion judge applied the two-step test to determine whether the ONSC had jurisdiction over the claim (Sinclair, para 20). For a more in-depth discussion of the Van Breda test, please see Adam Wyville’s “Appeal-Watch” article on Sinclair.
First, Mr. Sinclair had to establish that one of the four non-exhaustive factors described in Van Breda enabled the court to assume jurisdiction over the dispute. Accordingly, Mr. Sinclair argued that the fourth Van Breda factor—that there was a contract made in Ontario connected with the dispute—allowed the court to assume jurisdiction (Sinclair, para 20). Then, at the second stage of the test, the Italian defendants had an opportunity to rebut the connection by arguing there was no real relationship to the forum (Sinclair, para 20).
Ramsay J held that the water taxi booking between Mr. Sinclair and Amex Canada, alongside the Centurion agreement between Mr. Sinclair and Amex Canada, both constituted contracts. Mr. Sinclair had a “good arguable case” that these contracts had some connection with the dispute for the ONSC to assume jurisdiction (Sinclair, paras 21-22). The motion judge ultimately concluded that the Italian defendants did not rebut the presumption established under the first step of the Van Breda test (Sinclair, para 23).
The Italian defendants appealed.
The Court of Appeal’s Decision
The Court of Appeal for Ontario (“ONCA”) allowed the appeal. The majority and concurring justices agreed that the ONSC lacked jurisdiction over the dispute (Sinclair, para 25). The majority specifically held that any presumption of jurisdiction that might exist had been successfully rebutted (Sinclair, para 25).
Writing for the majority, Nordheimer JA found that Ramsay J did not apply the Van Breda test properly. The ONSC’s jurisdiction does not extend to international parties who organize travel arrangements associated with Canadian credit card companies. Doing so would undermine restraints on jurisdictional overreach expressed in Van Breda.
The majority clarified that the presumptive connecting factors considered at the first step of the test should focus on the defendant’s perspective (Sinclair, para 27). Nordheimer JA held that a presumptive factor connecting one defendant to the forum that later accepts the ONSC’s jurisdiction does not necessarily extend jurisdiction to the defendants challenging jurisdiction. In other words, Amex Canada’s acceptance of the ONSC’s jurisdiction does not confer jurisdiction over the Italian defendants. Accordingly, a presumptive connecting factor outlined in Van Breda must apply to each defendant (Sinclair, para 28).
Nordheimer JA concluded that, even if the Sinclairs established a presumptive connection, the Italian defendants rebutted it at the second step of the Van Breda test. He reasoned that the contract between Amex Canada and the Sinclairs had “little or nothing to do” with the litigation (Sinclair, para 32). The Sinclairs’ pleadings did not demonstrate that the contract between them and Amex Canada contemplated the Italian defendants’ involvement, nor was there any connection to the claim against the Italian defendants (Sinclair, para 33).
The Sinclairs appealed.
Issue
The two issues before the SCC were:
(1) Is there an Ontario contract that is connected with the dispute?
(2) If the presumptive connecting factor is established, has the presumption of jurisdiction been successfully rebutted? (Sinclair, para 40).
The SCC’s Decision
Writing for a narrow majority, Côté J dismissed the Sinclairs’ appeal. Côté J held that the Sinclairs failed to establish jurisdiction simpliciter. Of the three contracts at issue, only one satisfied the fourth Van Breda connecting factor (Sinclair, para 127), and the Italian defendants successfully rebutted that presumption at step two (Sinclair, para 130). Accordingly, Ontario courts lack jurisdiction over the Italian defendants (Sinclair, para 142).
Step One of the Van Breda Test
The majority concluded that the fourth Van Breda presumptive factor—whether there is an Ontario contract connected with the dispute—was established. The SCC found that only the Centurion Cardmember Agreement was an Ontario contract, which satisfied the fourth factor (Sinclair, para 127). The other two contracts did not. This point is worth clarifying because the exercise of identifying contracts requires specificity (Sinclair, para 83). The SCC then found that the Centurion Cardmember Agreement was “...sufficient to ground the assumption of jurisdiction at the first stage of the test” because all the events “flowed” from the Agreement.
Only after determining that a contract exists can the court assess whether it was “connected with” the dispute (Sinclair, para 128). Côté J held that the standard to establish this connection is a “relatively low bar” (Sinclair, para 59). Contrary to the dissent, the majority determined that the “good arguable case” standard was not at issue in this case, despite the trial judge applying it at step one of the Van Breda test. While the dissent reasoned that the “good arguable case” standard is the “orthodox approach” in Ontario, the majority found that applying an “arguability” standard to questions of jurisdiction simpliciter raises concerns over judicial authority (Sinclair, paras 61, 228).
The majority also held that jurisdiction should be determined from the perspective of each defendant rather than the dispute at writ large (Sinclair, para 63). As a matter of policy, to exercise its power to make orders against each defendant, a court must ensure there is a requisite connection for all defendants in a dispute (Sinclair, para 63). Even in circumstances when one defendant attorns jurisdiction but other defendants resist it, it is necessary to examine the presumptive connection factor for each defendant.
Step Two of the Van Breda Test
Côté J concluded that the Italian defendants rebutted the presumption of jurisdiction because the Centurion Cardmember Agreement does not demonstrate a real and substantial connection between Ontario and the accident (Sinclair, para 131). The majority held that the second step tests the strength of the connection between the contract and the forum, the subject matter of the dispute, and the defendant (Sinclair, para 66).
When determining the strength of the connection underlying the contract, a court may consider contract formation, how and where the contract contemplated performance, alongside the location of the tort and parties (Sinclair, para 67). For example, a contract formed in a forum for mere technical reasons but applies entirely to another jurisdiction indicates a weak connection between the contract and the forum (Sinclair, para 68).
Moreover, the presumption of jurisdiction will be rebutted when the defendant demonstrates that there is no connection or only a weak connection between the contract and the defendant (Sinclair, para 71). To answer this question, a court can ask whether the “…defendant would have reasonably expected to be subject to the forum’s jurisdiction for reasons relating to the contract” (Sinclair, para 71).
While the dissent found that the second step does not engage a reasonable expectations analysis, the majority concluded that a defendant’s expectations are a legitimate factor at the rebuttable stage (Sinclair, para 72). Crucially, Côté J held that this stage does not impose a “heavy” burden on the defendant. Instead, it reflects only a shift in burden and perspective (Sinclair, para 74). The majority reminded litigants to plead their positions precisely on each stage of the test to address all relevant arguments (Sinclair, para 76).
Analysis
In my view, the majority’s holding falls short because it fails to grapple meaningfully with an underlying access to justice issue. Côté J’s reasons may encourage motion judges to adopt a narrow lens in assessing the threshold to establish a presumptive connecting factor. Specifically, suppose motion judges reject the “good arguable case” standard established in Ontario law in favour of the undefined “low” standard endorsed by the majority. In that case, plaintiffs seeking relief in Ontario’s courts are left wondering what is required to demonstrate a presumptive connecting factor.
My argument follows in two parts.
Reason #1: the good arguable case is settled law
Jamal J., writing for the dissent, makes clear that the “good arguable case” standard is settled law. He identifies its roots in a 1951 House of Lords decision that garnered attention in Ontario courts only a year later (Sinclair, para 229). The dissent’s reasons—rich with detailed citations—provide compelling evidence that the “good arguable case” standard is not only a workable standard but also accepted by courts and leading scholars. It is a common law framework with a deep history, serving as a valuable guidepost for jurisdictional motions.
By contrast, the majority held that the standard is “far from being settled” (Sinclair, para 60). Côté J concluded that it was satisfactory to establish the standard as simply “low” given that the parties on appeal did not raise the issue (Sinclair, para 62). In my opinion, there are two flaws with this argument.
First, the parties and interveners may not have raised this issue on appeal because it is settled law. After all, as noted earlier, Ramsay J had no problem applying this standard in her decision. Second, Côté J’s dismissal of the “good arguable case” standard begs the question: where should plaintiffs look in the common law to assess jurisdiction? If a plaintiff cannot rely on the detailed list of cases cited by the dissent that adopt the “good arguable case” standard, then what cases should guide a plaintiff who is drafting pleadings? The majority’s characterization of the standard as simply “low” creates ambiguity rather than clarity.
Reason #2: the good arguable case is practical
It is also helpful to contemplate when jurisdictional challenges to a plaintiff’s claim are adjudicated in the litigation process. As the dissent found, “…jurisdictional challenges are dealt with early in the proceedings when the record is incomplete” (Sinclair, para 233). Thus, the standard ensures jurisdictional motions do not transform into a merits trial. Jamal J found that this practical consideration motivated the House of Lords’ decision that first introduced the standard in 1951 (Sinclair, para 233). Redefining the Van Breda standard without reference to precedent is a setback for access to justice. Sinclair leaves both plaintiffs and defendants uncertain about the factors needed to establish a presumptive connecting factor. To conclude, the majority’s reasons in Sinclair risk undermining access to justice despite purporting to avoid muddying the waters with a legal issue not contemplated by the parties on appeal.