6.17: Payment of allowance
11.25: Real and substantial connection

Case Summary

This Action arose from an accident that occurred while the Plaintiff was vacationing at a hotel in the Dominican Republic. Upon the Plaintiff’s return to Edmonton, she filed a claim against the resort in the Dominican Republic as well as the tour operators that carry on business in Alberta. The resort Defendants claimed that the Dominican Republic is the proper forum and filed an Application to have the proper forum determined pursuant to Rule 11.25. Prior to the Court hearing the Application to determine the proper forum, the resort Defendants applied to have the Plaintiff provide conduct money, pursuant to Rule 6.17, to pay for the expense of Questioning its witnesses.

In deciding the resort Defendants’ Application for conduct money, the Court reviewed Rule 11.25 and found that two of the presumptive connective factors provided in Rule 11.25 applied to the Action. The Court relied on the case of Van Breda v Village Resorts Ltd, 2012 SCC 17, for the proposition that when there are presumptive factors arising from Rule 11.25 that apply, the Applicant will have the onus of rebutting the presumption. Therefore, in the Application to determine the proper forum, the resort Defendants would have the onus to prove that Alberta was not the proper forum. The Court dismissed the resort Defendants’ Application for conduct money and provided the following reasons for its Decision:

(i)         The resort Defendants were the Applicants in determining the proper forum;

(ii)        Providing conduct money would likely create a hardship for the Plaintiff;

(iii)       The resort Defendants did not demonstrate that the witnesses, for which they were requesting conduct money, were the only ones that could provide the evidence in question; and

(iv)       The resort Defendants could speak to Costs if they were successful in their Application to determine the proper forum.

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