Une pensée d’avance
Think Ahead
2012-2013
Formation Continue
Faculty of Law
Private International Law: Where to Sue after the Supreme
Court decision in
Club Resorts Ltd. v. Van Breda
29 January 2013
Professor Catherine Walsh
Club Resorts Ltd. v. Van
Breda, 2012 SCC 17
 consolidated appeal from the ONCA’s decisions
in Club Resorts Ltd. v. Van Breda and Charron
Estate v. Village Resorts Ltd.
 actions by Canadian residents for injuries
sustained in Cuba at resorts operated by the
defendant Club Resorts, a company
incorporated in the Cayman Islands
 Club Resorts argued Ont. Courts did not have
jurisdiction; alternatively, forum non conveniens
doctrine favoured Cuban courts.
Common LawJurisdiction –
pre-Morguard
Pre-Morguard bases of jurisdiction
 Presence of defendant at time of service of process
 Consent (explicit or implicit)
 Service ex juris rules
Morguard
 Federalism requires full faith and credit to be
given to sister province judgments exercising
appropriately restrained jurisdiction
 Absent presence or consent, principles of order
and fairness require a “real and substantial
connection” for jurisdiction over an out-ofprovince defendant
 Hunt: Morguard principles are “constitutional
imperatives”
Post-Morguard Responses
 Post Morguard, service ex juris rules do not
automatically confer jurisdiction - R&S
connection required
 ULCC - Uniform CJPTA Act – lists presumptive R+S
connections – enacted only by some provinces
 Courts in other provinces including Ontario left to
grapple with interaction between service ex juris
rules and R&S test
Muscutt v Courcelles
(ONCA, 2002)
 8 factor test – no one factor determinative
 Factors to be weighed included considerations
such as fairness to each party and comity
 Judicial and academic criticism of test as
uncertain, complicated, plaintiff-biased, and as
conflating distinction between jurisdiction
simpliciter and forum non conveniens
Van Breda (ONCA, 2010)
 ONCA sought to simplify test: 8 factor Muscutt
test replaced by a presumptive connection
approach based on service ex juris heads
(except for “damages” and “necessary and
proper party”
 Presumptions rebuttable and other R+S
connections could also ground jurisdiction
 “Fairness” considerations still part of the analysis
Van Breda (SCC, 2012) –
dual role of R+S requirement
 distinction between the “real and substantial
connection” principle as: (1) a constitutional rule;
and (2) a conflict of laws rule.
 as a constitutional principle, R+S principle limits
territorial reach of courts by requiring a sufficient
connection to the forum
 as a conflict of laws principle, it sets the outer
boundaries of, but does not determine, the
content of jurisdictional rules
Presumptive connecting
factor approach
 stability and predictability require that the
common law jurisdictional rules should be based
on the identification of specific objective
presumptive connecting factors
 If jurisdiction challenged, plaintiff must identify a
“presumptive connecting factor.” In the absence
of a presumptive connecting factor, the court
does not have jurisdiction.
Presumptive connections for
tort claims
 (1) The defendant is domiciled or resident in the
province;
 (2) The defendant carries on business in the
province;
 (3) The tort was committed in the province; and
 (4) A contract connected with the dispute was
made in the province.
Jurisdiction held to be established on the basis of
(4) in Charron and (2) in Van Breda
Development of new
connecting factors
 Factor (1) - domicile or residence in the forum likely not limited to tort claims
 List of presumptive connecting factors not closed
but courts should be cautious in recognizing new
factors
 Courts should consider the similarity of the
proposed factor with currently recognized
factors, with its treatment in case law or statute
law, and with and its treatment in the
jurisdictional approach taken by other legal
systems with a shared commitment to order,
fairness and comity.
Defendant may rebut
presumptive connections
 If a recognized presumptive connecting factor
applies, the court must assume jurisdiction unless
the defendant can rebut the presumption.
 To rebut the presumption, the defendant 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 only to a
weak relationship between them.“
What are not presumptive
connecting factors?
 Plaintiff’s presence in the forum
 Damages sustained in the forum
Interpretation of tort
connecting factors
 When is a tort committed in the forum?
 What constitutes sufficient “carrying on business”
in the forum?
 When is a contract sufficiently connected to the
tort dispute?
Is a presumptive connection
always needed?
 Combined tort and contract claims?
 Necessary and proper parties?
 Forum of necessity cases?
Impact on traditional
common law bases?
 Van Breda states that new approach does not
replace traditional jurisdictional grounds of
“defendant’s presence in the jurisdiction or
consent to submit to the court’s jurisdiction.”
 But is defendant’s mere transitional presence
sufficient at constitutional level?
Impact on recognition and
enforcement
 Sister province judgments (RECJA vs. common
law)
 Foreign country judgments (Beals v. Saldanha,
[2003] 3 S.C.R. 416)
Forum non conveniens
Impact of Van Breda not as radical:
 Forum non conveniens is distinct from jurisdiction
simpliciter
 Onus is on defendant to show that the
alternative forum is “clearly more appropriate”
not “simply comparable”
 List of relevant factors not exhaustive and
requires a “contextual analysis”
 Juridical advantage and disadvantage factor
may be a less important consideration
Concluding Remarks
 Presumptive connecting factors approach does
provide a more structured framework for courts
and litigants
 Rebuttable nature of presumptive connections
still leaves considerable latitude for uncertainty
 But gives courts flexibility to find no jurisdiction in
cases where presumptive connecting factor
establishes only a very weak connection that
would result in the court overstepping the
constitutional limits on the exercise of its
jurisdiction