By Munera Lawyers
When an action is brought before the court that involves out-of-province defendants, the defendant(s) can move to stay the proceeding based on lack of jurisdiction. The determination of whether a court should assume jurisdiction over a dispute, or jurisdiction simpliciter, was at the crux of the issue in the Supreme Court of Canada case Club Resorts Ltd. v Van Breda [2012] 1 SCR 572 [“Van Breda”].
Jurisdiction simpliciter is a question of law which involves weighing the strength of the connection between the jurisdiction, the claim and the parties involved. The purpose of the analysis is to ensure that claims are not tried in a jurisdiction that has little or no connection with the dispute or the parties. Its purpose is also to uphold principles of fairness, efficiency and comity by ensuring that an action can be brought in a jurisdiction where there is a real and substantial connection between the defendant and the forum.[1]
In Van Breda, the Plaintiff, Morgan Van Breda, took a trip to Cuba where she stayed at resort that was managed by Club Resorts Ltd., a company located in the Cayman Islands. During the trip, Van Breda became a paraplegic after a soccer goal collapsed on her.[2] Van Breda commenced an action in Ontario and the non-resident defendant moved to stay or dismiss the proceedings on the basis that Ontario was not the proper jurisdiction. Their motion and the subsequent appeal of the motion were both dismissed.[3]
The defendant appealed to the Supreme Court of Canada, where the Court, on a unanimous decision, dismissed the appeal.[4] In the process of reaching its decision, the Court clarified the “real and substantial connection” test for assuming jurisdiction and simplified the test to a three-step analysis:
(1) Does the court have jurisdiction based on presumptive factors?
These factors are:
This list of presumptive connecting factors is not exhaustive. There may be new presumptive factors depending on the specific facts of any case.[6]
The onus is on the party arguing that the domestic court has jurisdiction to establish that any one of the objective presumptive factors are present which would entitle the court to take jurisdiction over a legal dispute.[7]
(2) Has this presumption been rebutted?
If the court finds that it does have jurisdiction over a proceeding, it will assume jurisdiction unless the defendant(s) can rebut this presumption. The onus is on the party challenging jurisdiction to establish that the presumptive factors do not point to a real and substantial connection or point to only a weak connection.[8] For more on this issue, take a look at MUNERA’s article “How Can a Defendant Rebut the Presumption of Jurisdiction” (LINK).
(3) If the presumption has not been rebutted, is there another forum that is clearly more appropriate for the litigation of the action?
At this point, although jurisdiction has been established, the question becomes whether the court should exercise its jurisdiction. The party challenging jurisdiction must demonstrate that an alternative jurisdiction would be a clearly more appropriate forum, meaning that the domestic court is forum non conveniens.[9]
[1] Van Breda at para 26.
[2] Ibid at para 2 and 4.
[3] Ibid at para 9.
[4] Ibid at para 125.
[5] Ibid at para 90.
[6] Ibid at para 91.
[7] Ibid at para 94.
[8] Ibid at para 95.
[9] Ibid at para 103.
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.