Court Finds Foreign Hotel Operator Properly Served in Ontario

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Civil Litigation, Cross-Border Litigation, Travel & Tour Operators0 Comments

In Klein v. Occidental Hotels & Resorts, 2014 ONSC 2221, the Ontario Superior Court of Justice addressed the issue of whether a foreign hotel operator was properly served with a claim made in Ontario with respect to an accident that occurred at its hotel in the Dominican Republic.  In this case, the Plaintiff purportedly served the claim on the receptionist at the address of the hotel operator’s office in Toronto.  The hotel operator argued that it does not have any offices in Ontario nor does it carry on business in Ontario, and the location where the claim was purportedly served was the address of the marketing company it uses in Ontario.  The hotel operator maintained that the marketing company was not its agent.

In considering whether the hotel operator was properly served, Justice Healey considered the three-part test to determine whether a corporation is carrying on business in Ontario: (i) has the corporation carried on business in the jurisdiction for a sufficiently substantial period of time; (ii) has the corporation’s acts in carrying on business been done at a fixed place of business; and (iii) is the corporation present in the jurisdiction by a person who carries on business for the corporation in the jurisdiction.  Justice Healey noted that the Toronto address in question was listed on the hotel operator’s own website, mail sent to the hotel operator at that address was not returned or redirected, and the hotel operator maintained the telephone number associated with that address.  Further, the marketing company provided an extensive array of services to the hotel operator and was authorized to represent the hotel operator at trade shows.

Justice Healey found that the hotel operator had operated a sales and marketing office in Toronto for at least 12 years, and the office was staffed by the marketing company as its agent which was performing tasks that were integral to the business.  As a result, Justice Healey held that the hotel operator was carrying on business in Ontario and was properly served at the Toronto address.

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About the Author
Nick P. Poon, B.Sc. (Hons.), B.A., J.D.

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.

Practitioner in Civil Litigation with a focus in insurance defence and commercial litigation. Bio | Contact

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