How Can a Defendant Rebut the Presumption of Jurisdiction?

By Munera Lawyers

The Supreme Court in Club Resorts Ltd. v Van Breda [2012] 1 SCC 17 [“Van Breda”] established four presumptive connecting factors to be assessed when determining if a court has jurisdiction over a dispute.[1] These factors are to be used to determine the “real and substantial connection test”. These factors are:

• the defendant is domiciled or resident in the province;
• the defendant carries on business in the province;
• the tort was committed in the province; and
• a contract connected with the dispute was made in the province.[2]

The presence of any one of the factors entitles a court to assume jurisdiction over the dispute.[3] If any one of the factors is present, the party challenging jurisdiction “must establish facts which demonstrate that the presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and the forum or points to only a weak relationship between them.”[4]  For example, Lebel J. proposed that an argument that could be advanced by a defendant is that a contract at issue has little to do with the subject matter of the dispute, or that the subject matter of the litigation is unrelated to the defendant’s business activities in the province.[5]

If the defendant fails to rebut the presumption that results from a connecting factor, the jurisdiction is therefore established and the litigation will proceed in the Court selected by the plaintiff, subject to the Court’s determination of declining jurisdiction on the basis of forum non conveniens. For more on this issue, take a look at MUNERA’s article “The Doctrine of Forum Non Conveniens” (LINK).

This can raise issues in multi-defendant matters. For example, in Khan v Layden, the Court indicated that it would address the question of jurisdiction from the perspective of the overarching dispute, rather than from each defendant.[6] This decision indicates that a defendant without connections to Ontario can be required to litigate in the province if the claim is closely connected to a resident defendant. In this case, a defendant, a Pennsylvania driver who collided with an Ontario drive while in Pennsylvania had to defend the matter in Ontario.

[1] 2012 SCC 17.

[2] Ibid at para 90.

[3] Ibid

[4] Ibid at para 95

[5] Ibid at para 96.

[6] Khan v Layden, 2014 ONSC 6868.

NOTE: This article has been written for general information purposes only and does NOT constitute legal advice. For further questions and/or legal advice please consult a qualified lawyer.