Reformulating a real and substantial connection.

Author:Pitel, Stephen G.A.
Position:Private international law - Canada

    One of the most important issues in private international law is the question of when a court will take jurisdiction over a civil dispute involving a defendant who is not present in the forum and who does not submit to the proceedings. Since Morguard Investments Ltd. v. De Savoye the requirement has been that there must be "a real and substantial connection" between the dispute and the forum to take jurisdiction in such a case. (1) This phrase is at the heart of the analysis of jurisdiction, both at common law and in recent statutes dealing with the issue.

    By necessity, the real and substantial connection requirement has to be both sufficiently open-ended and flexible to accommodate the wide range of civil cases that come before Canadian courts and sufficiently clear to provide a common flame of reference and produce predictable results. In 2002 the Court of Appeal for Ontario created a framework for analyzing a real and substantial connection, setting out, in Muscutt v. Courcelles, eight factors to consider. (2) This framework became the standard in Ontario and was adopted by appellate courts in some other Canadian provinces. However, in 2009, in preparing to hear two appeals of decisions on motions challenging the court's jurisdiction, (3) the Court of Appeal for Ontario indicated that it was willing to consider whether any changes were required to the Muscutt framework.

    The two cases, consolidated on appeal as Van Breda v. Village Resorts Limited, each concerned serious injuries that were suffered outside of Ontario. (4) In the case of Charron Estate v. Bel Air Travel Group Ltd., Mr. Charron went on a holiday to Cuba and died during a scuba dive. His estate and dependants sued several defendants in Ontario, one of which was Club Resorts Ltd., a Cayman Islands corporation that managed the resort in Cuba and had arranged the scuba diving. In the other case, Ms. Van Breda was on holiday in Cuba. She was using a chin-up bar at a resort when it collapsed, which rendered her a paraplegic. She and her family members sued several defendants in Ontario, including Club Resorts Ltd., which was also the manager of that resort. Club Resorts Ltd. argued before the motion judges and on the appeal that the Ontario court did not have jurisdiction over these claims. The motion judges applied the framework in Muscutt and dismissed the defendants' motions, finding that there was a real and substantial connection between the claim against Club Resorts Ltd., and Ontario. Ultimately the Court of Appeal reached the identical conclusion and dismissed both appeals. It is the appellate court's reasoning, more than the result, that is worthy of close study.


    The Court of Appeal identified five reasons why it was prepared to reconsider the framework from Muscutt. (5) First, the Court could have considered seven years worth of jurisprudence to evaluate how the framework was handling a wide range of factual situations. Second, the Court could take into account subsequent decisions, particularly those of the Supreme Court of Canada, that bear on the issue of taking jurisdiction. Third, and perhaps most importantly, the Court could have compared the common law with recent statutes on jurisdiction adopted in other provinces. At the time of Muscutt, the Uniform Law Conference of Canada had developed its model Uniform Court Jurisdiction and Proceedings Transfer Act, (6) but it had only been adopted in one province. (7) Since Muscutt, support has been growing for the CJPTA and it has been adopted in two other provinces. (8) Fourth, the Court could have assessed the impact of the emerging concept of a "forum of necessity," allowing a court to take jurisdiction even in the absence of a real and substantial connection. (9) Fifth, the Court could take into account the extensive academic literature on the Muscutt framework over the past decade.

    Yet these five reasons, taken separately or together, are not so forceful that a change in the jurisprudence was inevitable. In fact, the Court defended its earlier decision in quite strong terms, noting "With regard to the alleged uncertainty produced by Muscutt, the appellants did not challenge the correctness of the results reached in the Muscutt quintet and were unable to identify conflicting or wrongly decided cases under the Muscutt test." (10) Defendants frequently challenge the jurisdiction of Ontario courts, and so it is remarkable that in all that jurisprudence there are so few examples--if any--of incorrect decisions. This is high praise for the Muscutt framework.

    Despite this apparent success, the Court determined that "it is appropriate to make several clarifications and modifications to the Muscutt test." (11) The Court offered two central reasons for this conclusion. First, it wanted to adopt some of the features of the CJPTA, bringing Ontario into line with the national approach to jurisdiction. Second, it considered itself obliged to address the criticism that the eight-factor test is too complicated and hard to apply. (12)


    In Ontario, rule 17.02 of the Rules of Civil Procedure provides that a plaintiff may serve a defendant outside Ontario with an originating process in certain defined categories of cases. (13) For example, the category in rule 17.02(g) covers claims "in respect of a tort committed in Ontario." Prior to Morguard, the analysis of jurisdiction centered on whether the plaintiff's claim fell within one or more of the enumerated categories. However, Morguard established, and Muscutt confirmed, that rule 17.02 did not in itself create jurisdiction. Separate and...

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