Recent events in Cuba may have obliterated the eight-factor test for assuming jurisdiction as developed in Muscutt v. Courcelles, but may have made it easier for practitioners to predict whether Ontario constitutes a valid jurisdiction for claims against out-of-province defendants. In Van Breda v. Village Resorts Limited, the Ontario Court of Appeal essentially established a five-member panel to reformulate the long-standing “Real and Substantial Connection Test.”
The decision itself summarizes the Court of Appeal’s reformulation of Muscutt:
- First, the court should determine whether the claim falls under Rule 17.02 of the Ontario Civil Practice (i.e., excepting Subrule (h), Damage Sustained in Ontario, and Subrule (o), Necessary or Proper Party) to determine whether a real and substantial connection with Ontario will be presumed to exist.
- Second, the connection between Ontario and the plaintiff’s claim and the defendant are respectively considered the “core” focus of the analysis.
- Third, remaining considerations, such as those traditionally contained in the other Muscutt factors will be treated as general legal principles that bear upon the analysis. These include: the fairness of assuming or refusing jurisdiction; in some circumstances, the involvement of other parties to the suit; willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis; and whether the case is inter-provincial or international in nature.
- Fourth, inappropriate forum (forum non conveniens) factors should only be considered after consideration of the core analysis and determination of jurisdiction simpliciter.
- Lastly, where there is no other forum in which the plaintiff can reasonably seek relief there is a residual discretion of an Ontario court to assume jurisdiction.
The test for assuming jurisdiction, perhaps now known as the Van Breda test, involves more steps than the Muscutt test. However, the availability of a presumption of jurisdiction based on the service ex juris rule contained in Rule 17.02 provides practitioners and clients with more certainty in regards to whether an Ontario court will assume jurisdiction over a foreign defendant, and which party will bear the onus of rebutting such a presumption.