Kornhaber v. Starwood Hotels, 2014 ONSC 6182

By D.L. Corbett, J.
Ontario Superior Court
Oct 14, 2014


                        - and -

                        STARWOOD HOTELS AND RESTAURANTS WORLDWIDE, INC., Defendant

COUNSEL:   Jeffrey C. Goldberg, for the Plaintiffs

B. Robin Moodie, for the Defendant


[1]               The defendant moves to dismiss this action for want of jurisdiction or on the basis of forum non conveniens.  The plaintiffs argue that there is jurisdiction simpliciter or necessity for Ontario to take jurisdiction, and that Ontario is a convenient forum.

[2]               The plaintiffs both live in Toronto.

[3]               The case concerns an incident of alleged food poisoning when the plaintiffs ate at Prego Restaurant in the Guangzhou Westin Hotel in China.

[4]               The defendant is an international hotel company.  It is incorporated in the State of Maryland and has its corporate headquarters in the State of Connecticut.  It owns, operates, and/or manages, directly or indirectly, hotels under the brand name “Westin”.  It does not own the Guangzhou Westin Hotel directly or indirectly, and it does not operate the hotel directly: rather, the hotel is managed by one of the defendant’s U.S. subsidiaries.

[5]               I conclude there is no jurisdiction in Ontario.  For the reasons that follow the motion is granted and the action is dismissed with costs.

No Jurisdiction Simpliciter

 [6]               The test for jurisdiction simpliciter is set out in the Supreme Court of Canada’s decision in Van Breda.[1]  It starts by requiring this court to assess whether any of four “presumptive connecting factors” are present to give this court jurisdiction over this case:

a.      Is the defendant domiciled or resident in Ontario?

b.      Does the defendant carry on business in Ontario?

c.      Was a tort committed in Ontario?

d.      Was a contract connected with the dispute made in Ontario?

[7]               The answers to (a), (c) and (d) are “no”.  The defendant is resident in Maryland and/or Connecticut and not in Ontario.  The causes of action took place in China, whether characterized in tort or contract. 

[8]               The answer to (b) is “yes”.  The defendant carries on business in Ontario by virtue of 23 hotels it owns and/or operates in Ontario.  Thus the third presumptive factor is made out.  This then leads to the second stage of the analysis under Van Breda.  The defendant may rebut the presumption of jurisdiction if it shows that its carrying on business in Ontario does not point to any real relationship, or only a weak relationship, between the subject-matter of the litigation and Ontario.

[9]               I am satisfied that, although the defendant carries on business in Ontario, the alleged food poisoning in a restaurant in a hotel managed by one if its subsidiaries in China is not related to the defendant’s business activities in Ontario.  The plaintiffs note that the defendant’s hotels are branded under various names, including “Westin”, with the purpose of enhancing the reputation and profile of each hotel bearing that name.  Brand recognition of the “Westin” name is virtually global, and serves to market Westin hotels around the world within Ontario by virtue of the defendant’s business activities in Ontario.  I accept this argument in its general thrust: that would seem to be one of the points of having a branded hotel chain. 

[10]           The plaintiffs also note that the plaintiff maintains a common internet site for Westin hotels, so that it is possible to book hotel room and restaurant reservations at any Westin hotel around the world from Ontario.  Again, I accept the general thrust of the plaintiffs’ contention that Westin is present in Ontario through its internet presence.

[11]           These points go no further than establish that the defendant and its subsidiaries promote the “Westin” brand in Ontario by operating hotels under that name in Ontario, and by marketing (including internet marketing) aimed at persons in Ontario.  I also accept that as a result of the defendant’s business activities in Ontario under the “Westin” name, and marketing of the “Westin” name in Ontario, the plaintiffs may have been influenced in part to go to the Guangzhou Westin for dinner while they were in China.  I do not consider that this makes their claim to have suffered food poisoning at a Westin hotel in China to be related to the business the defendant operates in Ontario.  The alleged poisoning from mushroom risotto prepared at a particular restaurant on a particular day in Huanhzhou, China, is not related to the defendant’s operations in Ontario.

[12]           The defendant has rebutted the presumption of jurisdiction arising from its carrying on business in Ontario, and therefore Ontario does not have jurisdiction simplicter over the plaintiffs’ claims.

No Necessity to Assume Jurisdiction

[13]           The plaintiffs argue that if there is no jurisdiction simpliciter, then this court should assume jurisdiction on the basis of necessity. 

[14]           The test for necessity is set out in Sharpe J.A.’s analysis in the Ontario Court of Appeal’s decision in the Van Breda case: the plaintiffs must establish that “there is no other forum in which the plaintiff[s] can reasonably seek relief”.[2]  I agree with the plaintiffs that necessity is a basis on which this court could assume jurisdiction where it otherwise would have none.  And I agree that the test for necessity is set out in Sharpe J.A.’s decision in Van Breda.  I do not, however, agree that the doctrine of necessity applies in this case.

[15]           In their factum, the plaintiffs argue that necessity arises because the insurer for the Westin Hotel in Guangzhou did not respond to this action in Ontario, “requiring Starwood’s counsel through its insurer to deliver a Notice of Intent to Defend”.  The plaintiffs have only sued the American parent company, and not the insured owner or manager of the Guangzhou Westin Hotel.  Therefore, I see no basis to draw an inference about the manner in which the defendants may respond to a claim pursued in China.  Certainly it is not a basis to suppose that the courts of China will not take jurisdiction, do justice, render a decision, or that the decision so rendered could not be enforced in China. 

[16]           In the plaintiffs’ argument on forum non conveniens, they assert an argument to the effect that justice is either not possible in the courts of China, or that there would be a material loss of juridical advantage if they are required to pursue their claims in China.  As noted by the plaintiffs, the court may well scrutinize juridical disadvantages posed by foreign jurisdictions more closely than ones in “foreign” domestic jurisdictions.  But the mandate to scrutinize an issue more closely is not authorization to proceed without any evidence of juridical disadvantage at all.  I have no evidence of the relevant law of China. 

[17]           I have no evidence of any practical or legal constraints on accessing the Chinese justice system in a case like this, aside from the obvious point that the plaintiffs are here and China is a long ways away.  There are no notorious factual circumstances of which I can take notice that give rise to a finding a juridical disadvantage (such as the foreign jurisdiction being in a state of war with Canada).  China is not a western democratic country, but that alone is not sufficient for this court to conclude that the plaintiffs could not obtain justice in China in respect to this claim.  Finally, what little evidence I do have in respect to this matter shows that an insurer in China responded to this claim, and was willing to negotiate, but considered the plaintiffs’ position on the value of their claim to be unreasonably high.  This does not establish that justice is not available in China.

[18]           The necessity basis for assuming jurisdiction, where there otherwise is none, is narrowly circumscribed.  On the record before me, China does not fit within that category: the plaintiffs will not be “left without a place to sue” if they are required to pursue their claims in China.[3]

[19]           I conclude this court should not assume jurisdiction by reason of necessity.

Forum Non Conveniens

[20]           The alleged food poisoning took place in China.  Whether the claim is in tort or in contract, Chinese law applies to it.  The witnesses, other than the plaintiffs themselves, are in China.  Primary medical treatment was provided in China.  The only persons for whom Ontario is a convenient forum are the two plaintiffs, and that because they live here.[4]  The plaintiffs have not established that any juridical advantage they have in Ontario should weigh in the balance on the issue of forum non conveniens.[5]

[21]           I conclude that the convenient forum for this case is China.[6]  The motion is granted and the action dismissed.


[22]           If the parties cannot agree on costs the defendant shall provide brief written submissions by November 15, 2014, and the plaintiffs shall provide brief responding submissions by November 30, 2014.  There shall be no reply or oral submissions unless I subsequently direct otherwise.



D.L. CORBETT J.                             

Date:   October 23, 2014


[1] Club Resorts L:td. V. Van Breda, 2012 SCC 17 (CanLII), [2012] 1 S.C.R. 572.

[2] Quoted with approval from Sharpe J.A.’s decision in Van Breda in West Van Inc. v. Daisley2014 ONCA 232 (CanLII), per Hoy A.C.J.O.

[3] Bouzari v. Islamic Republic of Iran (2004), 2004 CanLII 871 (ON CA), 71 O.R. (3d) 675 (C.A.) at para. 37.

[4] The plaintiffs have pleaded that there are continuing medical effects from the food poisoning, the materiality of which are not yet clear.  As a result, medical witnesses from Ontario may be required at the trial.  No particulars have been provided by the plaintiffs of these potential witnesses, and the need for their evidence is speculative at this point..

[5] See Black v. Breeden2012 SCC 19 (CanLII) at paras. 26-27.

[6] See Van Breda, at paras. 102-109; Sullivan v. Four Seasons Hotels Limited et al., 2013 ONSC 4622 (CanLII), para. 50.