Club Resorts Ltd. Appellant v. Morgan Van Breda, Viktor Berg, Joan Van Breda, Tony Van Breda, Adam Van Breda and Tonnille Van Breda, 2012 SCC 17

SUPREME COURT OF CANADA Citation: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572 Date: 20120418 Docket: 33692, 33606 Between: Club Resorts Ltd. Appellant and Morgan Van Breda, Viktor Berg, Joan Van Breda, Tony Van Breda, Adam Van Breda and Tonnille Van Breda Respondents - and - Tourism Industry Association of Ontario, Amnesty International, Canadian Centre for International Justice, Canadian Lawyers for International Human Rights and Ontario Trial Lawyers Association Interveners And Between: Club Resorts Ltd.

Appellant and Anna Charron, Estate Trustee of the Estate of Claude Charron, deceased, the said Anna Charron, personally, Jennifer Candace Charron, Stephanie Michelle Charron, Christopher Michael Charron, Bel Air Travel Group Ltd. and Hola Sun Holidays Limited Respondents - and - Tourism Industry Association of Ontario, Amnesty International, Canadian Centre for International Justice, Canadian Lawyers for International Human Rights and Ontario Trial Lawyers Association Interveners Coram: McLachlin C.J. and Binnie,* LeBel, Deschamps, Fish, Abella, Charron,* Rothstein and Cromwell JJ. (* Binnie and Charron JJ. took no

part in the judgment.) Reasons for Judgment: (paras. 1 to 125): LeBel J. (McLachlin C.J. and Deschamps, Fish, Abella, Rothstein and Cromwell JJ. concurring)

Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572 Club Resorts Ltd. Appellant v. Morgan Van Breda, Viktor Berg, Joan Van Breda, Tony Van Breda, Adam Van Breda and Tonnille Van Breda Respondents and Tourism Industry Association of Ontario, Amnesty International, Canadian Centre for International Justice, Canadian Lawyers for International Human Rights and Ontario Trial Lawyers Association Interveners - and - Club Resorts Ltd. Appellant v.

Anna Charron, Estate Trustee of the Estate of Claude Charron, deceased, the said Anna Charron, personally, Jennifer Candace Charron, Stephanie Michelle Charron, Christopher Michael Charron, Bel Air Travel Group Ltd. and Hola Sun Holidays Limited Respondents and Tourism Industry Association of Ontario, Amnesty International, Canadian Centre for International Justice, Canadian Lawyers for International Human Rights and Ontario Trial Lawyers Association Interveners Indexed as: Club Resorts Ltd. v. Van Breda 2012 SCC 17 File Nos.: 33692, 33606. 2011: March 21; 2012: April 18.

Present: McLachlin C.J. and Binnie, [*] LeBel, Deschamps, Fish, Abella, Charron, * Rothstein and Cromwell JJ. on appeal from the court of appeal for ontario Private international law — Choice of forum — Court having jurisdiction — Forum non conveniens — Respondents injured while vacationing in Cuba — Actions for damages brought in Ontario — Defendants bringing motion to stay actions on grounds that Ontario court lacks jurisdiction, or alternatively, should decline to exercise jurisdiction on basis of forum non conveniens — Whether Ontario court can assume jurisdiction over actions — If so, whether Ontario court should decline to exercise its jurisdiction on ground that court of another jurisdiction is clearly a more appropriate forum for hearing of actions.

In separate cases, two individuals were injured while on vacation outside of Canada. Morgan Van Breda suffered catastrophic injuries on a beach in Cuba. Claude Charron died while scuba diving, also in Cuba. Actions were brought in Ontario against a number of

parties, including the appellant, Club Resorts Ltd., a company incorporated in the Cayman Islands that managed the two hotels where the accidents occurred. Club Resorts sought to block those proceedings, arguing that the Ontario courts lacked jurisdiction and, in the alternative, that a Cuban court would be a more appropriate forum on the basis of the doctrine of forum non conveniens . In both cases, the motion judges found that the Ontario courts had jurisdiction with respect to the actions against Club Resorts.

In considering forum non conveniens , it was also held that the Ontario court was clearly a more appropriate forum. The two cases were heard together in the Court of Appeal. The appeals were both dismissed. Held : The appeals should be dismissed. This case concerns the elaboration of the “real and substantial connection” test as an appropriate common law conflicts rule for the assumption of jurisdiction.

In determining whether a court can assume jurisdiction over a certain claim, the preferred approach in Canada has been to rely on a set of specific factors which are given presumptive effect, as opposed to a regime based on an exercise of almost pure and individualized judicial discretion. Given the nature of the relationships governed by private international law, the framework for the assumption of jurisdiction cannot be an unstable, ad hoc system made up on the fly on a case-by-case basis — however laudable the objective of individual fairness may be.

There must be order in the system, and it must permit the development of a just and fair approach to resolving conflicts. Justice and fairness are undoubtedly essential purposes of a sound system of private international law. But they cannot be attained without a system of principles and rules that ensure security and predictability in the law governing the assumption of jurisdiction by a court.

The identification of a set of relevant presumptive connecting factors and the determination of their legal nature and effect will bring greater clarity and predictability to the analysis of the problems of assumption of jurisdiction, while at the same time ensuring consistency with the objectives of fairness and efficiency that underlie this branch of the law.

From this perspective, a clear distinction must be maintained between, on the one hand, the factors or factual situations that link the subject matter of the litigation and the defendant to the forum and, on the other hand, the principles and analytical tools, such as the values of fairness and efficiency or the principle of comity. To meet the common law real and substantial connection test, the party arguing that the court should assume jurisdiction has the burden of identifying a presumptive connecting factor that links the subject matter of the litigation to the forum.

Jurisdiction must be established primarily on the basis of objective factors that connect the legal situation or the subject matter of the litigation with the forum. Abstract concerns for order, efficiency or fairness in the system are no substitute for connecting factors that give rise to a “real and substantial” connection for the purposes of the law of conflicts. In a case concerning a tort, the following factors are presumptive connecting factors that, prima facie , entitle a court to assume jurisdiction over a dispute: (

a) the defendant is domiciled or resident in the province; (

b) the defendant carries on business in the province; (

c) the tort was committed in the province; and (

d) a contract connected with the dispute was made in the province. Although the factors set out in the list are considered presumptive, this does not mean that the list of recognized factors is complete, as it may be reviewed over time and updated by adding new presumptive connecting factors. When a court considers whether a new connecting factor should be given presumptive effect, the values of order, fairness and comity can serve as useful analytical tools for assessing the strength of the relationship with a forum to which the factor in question points.

These values underlie all presumptive connecting factors, whether listed or new. In identifying new presumptive factors, a court should look to connections that give rise to a relationship with the forum that is similar in nature to the ones which result from the listed factors. Relevant considerations include: (

a) Similarity of the connecting factor with the recognized presumptive connecting factors; (

b) Treatment of the connecting factor in the case law; (

c) Treatment of the connecting factor in statute law; and (

d) Treatment of the connecting factor in the private international law of other legal systems with a shared commitment to order, fairness and comity. The presumption of jurisdiction that arises where a recognized connecting factor — whether listed or new — applies is not irrebuttable. The burden of rebutting the presumption of jurisdiction rests, of course, on the party challenging the assumption of jurisdiction. That party must negate the presumptive effect of the listed or new factor and convince the court that the proposed assumption of jurisdiction would be inappropriate.

This could be accomplished by establishing 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. If the court concludes that it lacks jurisdiction because none of the presumptive connecting factors — whether listed or new — apply or because the presumption of jurisdiction that flows from one of those factors has been rebutted, it must dismiss or stay the action, subject to the possible application of the forum of necessity doctrine.

If jurisdiction is established, the claim may proceed, subject to the court’s discretion to stay the proceedings on the basis of the doctrine of forum non conveniens . A clear distinction must be drawn between the existence and the exercise of jurisdiction. Once jurisdiction is established, if the defendant does not raise further objections, the litigation proceeds before the court of the forum. The court cannot decline to exercise its jurisdiction unless the defendant invokes forum non conveniens . The decision to raise this doctrine rests with the parties, not with the court seized of the claim.

If a defendant raises an issue of forum non conveniens , the burden is on him or her to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff. The defendant must show that the alternative forum is clearly more appropriate and that, in light of the characteristics of the alternative forum, it would be fairer and more efficient to choose an alternative forum and to deny the plaintiff the benefits of his or her decision to select a forum. When it is invoked, the doctrine

of forum non conveniens requires a court to go beyond a strict application of the test governing the recognition and assumption ofjurisdiction. It is based on a recognition that a common law court retains a residual power to decline to exercise its jurisdiction inappropriate, but limited, circumstances in order to assure fairness to the parties and the efficient resolution of the dispute. The courthowever, should not exercise its discretion in favour of a stay solely because it finds, once all relevant concerns and factors are weighed,that comparable forums exist in other provinces or states.

It is not a matter of flipping a coin. A court hearing an application for a stayof proceedings must find that a forum exists that is in a better position to dispose fairly and efficiently of the litigation. On the otherhand, a court must refrain from leaning too instinctively in favour of its own jurisdiction. The doctrine focuses on the contexts ofindividual cases and the factors that a court may consider in deciding whether to apply forum non conveniens may vary depending on thecontext.

Such factors might include the locations of parties and witnesses, the cost of transferring the case to another jurisdiction or ofdeclining the stay, the impact of a transfer on the conduct of the litigation or on related or parallel proceedings, the possibility ofconflicting judgments, problems related to the recognition and enforcement of judgments, and the relative strengths of the connections ofthe two parties. Ultimately, the decision falls within the reasoned discretion of the trial court.

This exercise of discretion will be entitledto deference from higher courts, absent an error of law or a clear and serious error in the determination of relevant facts which takes placeat an interlocutory or preliminary stage. In Van Breda, a contract was entered into in Ontario. The existence of a contract made in Ontario that is connected with thelitigation is a presumptive connecting factor that, on its face, entitles the courts of Ontario to assume jurisdiction in this case. ClubResorts has failed to rebut the presumption of jurisdiction that arises where this factor applies.

Therefore, there was a sufficientconnection between the Ontario court and the subject matter of the litigation. Club Resorts has not discharged its burden of showing thata Cuban court would clearly be a more appropriate forum. While a sufficient connection exists between Cuba and the subject matter ofthe litigation to support an action there, issues related to the fairness to the parties and to the efficient disposition of the claim must beconsidered. A trial held in Cuba would present serious challenges to the parties.

All things considered, the burden on the plaintiffsclearly would be far heavier if they were required to bring their action in Cuba. In Charron, the facts supported the conclusion that Club Resorts was carrying on a business in Ontario, which is apresumptive connecting factor. Club Resorts’ commercial activities in Ontario went well beyond promoting a brand and advertising. Itsrepresentatives were in the province on a regular basis and it benefitted from the physical presence of an office in Ontario.

It thereforefollows that it has been established that a presumptive connecting factor applies and that the Ontario court is prima facie entitled toassume jurisdiction. Club Resorts has not rebutted the presumption of jurisdiction that arises from this connecting factor and thereforethe Ontario court has jurisdiction on the basis of the real and substantial connection test. Furthermore, Club Resorts failed to dischargeits burden of showing that a Cuban court would clearly be a more appropriate forum in the circumstances of this case.

Considerations offairness to the parties weigh heavily in favour of the plaintiffs. Cases Cited Explained: Muscutt v. Courcelles (2002), (ON CA), 60 O.R. (3d) 20; referred to: Breeden v. Black,2012 SCC 19, [2012] 1 S.C.R. 666; Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, [2012] 1 S.C.R. 636; British Columbia v.Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473; Castillo v. Castillo, 2005 SCC 83, [2005] 3 S.C.R. 870; UnifundAssurance Co. v. Insurance Corp. of British Columbia, 2003 SCC 40, [2003] 2 S.C.R. 63; Moran v.

Pyle National (Canada) Ltd., (SCC), [1975] 1 S.C.R. 393; Morguard Investments Ltd. v. De Savoye, (SCC), [1990] 3 S.C.R. 1077; Hunt v.T&N plc, (SCC), [1993] 4 S.C.R. 289; Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416; Tolofson v. Jensen, (SCC), [1994] 3 S.C.R. 1022; McLean v. Pettigrew, (SCC), [1945] S.C.R. 62; Spar Aerospace Ltd. v.American Mobile Satellite Corp., 2002 SCC 78, [2002] 4 S.C.R. 205; Amchem Products Inc. v. British Columbia (Workers’Compensation Board), (SCC), [1993] 1 S.C.R. 897; Lemmex v. Bernard (2002), (ON CA), 60 O.R.(3d) 54; Gajraj v.

DeBernardo (2002), (ON CA), 60 O.R. (3d) 68; Sinclair v. Cracker Barrel Old Country Store,Inc. (2002), (ON CA), 60 O.R. (3d) 76; Leufkens v. Alba Tours International Inc. (2002), (ONCA), 60 O.R. (3d) 84; Coutu v. Gauthier Estate, 2006 NBCA 16, 296 N.B.R. (2d) 34; Fewer v. Ellis, 2011 NLCA 17, 305 Nfld. &P.E.I.R. 39; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; Spiliada Maritime Corp. v. Cansulex Ltd., [1987] 1 A.C. 460; Teck ComincoMetals Ltd. v. Lloyd’s Underwriters, 2009 SCC 11, [2009] 1 S.C.R. 321; Oppenheim forfait GMBH v. Lexus maritime inc., .

Statutes and Regulations Cited Civil Code of Québec, S.Q. 1991, c. 64, arts. 3076 to 3168, 3135, 3148. Constitution Act, 1867, s. 92. Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, s. 11. Court Jurisdiction and Proceedings Transfer Act, S.N.S. 2003 (2nd Sess.), c. 2. Court Jurisdiction and Proceedings Transfer Act, S.S. 1997, c. C-41.1. Court Jurisdiction and Proceedings Transfer Act, S.Y. 2000, c. 7 [not yet in force]. Family Law Act, R.S.O. 1990, c. F.3. Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 17.02.

Authors Cited Blom, Joost, and Elizabeth Edinger. “The Chimera of the Real and Substantial Connection Test” (2005), 38 U.B.C. L. Rev. 373. Briggs, Adrian. The Conflict of Laws, 2nd ed. Oxford: Oxford University Press, 2008.

Brun, Henri, Guy Tremblay et Eugénie Brouillet. Droit constitutionnel, 5e éd. Cowansville, Qué.: Yvon Blais, 2008. Castel, Jean-Gabriel. “The Uncertainty Factor in Canadian Private International Law” (2007), 52 McGill L.J. 555. Emanuelli, Claude. Droit international privé québécois, 3e éd. Montréal: Wilson & Lafleur, 2011. Goldstein, Gérald, et Ethel Groffier. Droit international privé, t. I, Théorie générale. Cowansville, Qué.: Yvon Blais, 1998. Hogg, Peter W. Constitutional Law of Canada, vol. 1, 5th ed. Scarborough, Ont.: Thomson/Carswell, 2007. Manitoba. Law Reform Commission.

Private International Law, Report #119. Winnipeg: The Commission, 2009. Monestier, Tanya. “A ‘Real and Substantial’ Improvement? Van Breda Reformulates the Law of Jurisdiction in Ontario”, in Todd L.Archibald and Randall Scott Echlin, eds., Annual Review of Civil Litigation, 2010. Toronto: Carswell, 2010, 185. Perell, Paul M., and John W. Morden. The Law of Civil Procedure in Ontario. Markham, Ont.: LexisNexis Canada, 2010. Pitel, Stephen G. A., and Nicholas S. Rafferty. Conflict of Laws. Toronto: Irwin Law, 2010. Talpis, Jeffrey A., with the collaboration of Shelley L.

Kath. “If I am from Grand-Mère, Why Am I Being Sued in Texas?” Respondingto Inappropriate Foreign Jurisdiction in Quebec-United States Crossborder Litigation. Montréal: Thémis, 2001. Uniform Law Conference of Canada. Uniform Court Jurisdiction and Proceedings Transfer Act (online: http://www.ulcc.ca/en/us/Uniform_Court_Jurisdiction_+_Proceedings_Transfer_Act_En.pdf). Walker, Janet. “Reforming the Law of Crossborder Litigation: Judicial Jurisdiction”, Consultation Paper, Law Commission of Ontario,March 2009 (online: http://www.ontla.on.ca/library/repository/mon/23003/290663.pdf).

Yntema, Hessel E. “The Objectives of Private International Law” (1957), 35 Can. Bar Rev. 721. APPEALS from a judgment of the Ontario Court of Appeal (O’Connor A.C.J.O. and Weiler, MacPherson, Sharpe andRouleau JJ.A.), 2010 ONCA 84, 98 O.R. (3d) 721, 264 O.A.C. 1, 316 D.L.R. (4th) 201, 71 C.C.L.T. (3d) 161, 77 R.F.L. (6th) 1, 81C.P.C. (6th) 219, [2010] O.J. No. 402 (QL), 2010 CarswellOnt 549 (sub nom. Van Breda v. Village Resorts Ltd. and Charron Estate v.Village Resorts Ltd.), affirming a decision of Pattillo J., 60 C.P.C. (6th) 186, , [2008] O.J. No. 2624 (QL), 2008CarswellOnt 3867 (sub nom. Van Breda v.

Village Resorts Ltd.), and affirming a decision of Mulligan J., 92 O.R. (3d) 608,, [2008] O.J. No. 4078 (QL), 2008 CarswellOnt 6165 (sub nom. Charron Estate v. Bel Air Travel Group Ltd.). Appeals dismissed. John A. Olah, for the appellant (33692). Chris G. Paliare, Robert A. Centa and Tina H. Lie, for the respondents Morgan Van Breda et al. (33692). Peter J. Pliszka and Robin P. Roddey, for the appellant (33606). Jerome R. Morse, Lori Stoltz and John J. Adair, for the respondents Anna Charron et al. (33606). Howard B.

Borlack, Lisa La Horey and Sabine Kharabian, for the respondent Bel Air Travel Group Ltd. (33606). Catherine M. Buie, for the respondent Hola Sun Holidays Limited (33606). John Terry and Jana Stettner, for the intervener the Tourism Industry Association of Ontario (33606 and 33692). François Larocque, Michael Sobkin, Mark C. Power and Lauren J. Wihak, for the interveners Amnesty International, theCanadian Centre for International Justice and the Canadian Lawyers for International Human Rights (33606 and 33692). Allan Rouben, for the intervener the Ontario Trial Lawyers Association (33606 and 33692).

The judgment of the Court was delivered by LeBel J. — I. Introduction [1] Tourism has grown into one of the most personal forms of globalization in the modern world. Canadians lookelsewhere for the sun, or to see new sights or seek new experiences. Trips are planned and taken with great expectations. But personaltragedies do happen. Happiness gives way to grief, as in the situations that resulted in these appeals. A young woman, Morgan VanBreda, suffered catastrophic injuries on a beach in Cuba. A family doctor and father, Dr. Claude Charron, died while scuba diving, alsoin Cuba.

Actions were brought in Ontario against a number of parties, including the appellant Club Resorts Ltd. (“Club Resorts”), acompany incorporated in the Cayman Islands that managed the two hotels where the accidents occurred. Club Resorts sought to blockthose proceedings, arguing that the Ontario courts lacked jurisdiction and, in the alternative, that a Cuban court would be a moreappropriate forum on the basis of the doctrine of forum non conveniens. The same issues have now been raised in this Court.

I will beginby summarizing the events that led to the litigation, the conduct of the litigation and the judgments of the courts below. I will thenconsider the principles that should apply to the assumption of jurisdiction and the doctrine of forum non conveniens under the commonlaw conflicts rules of Canadian private international law. Finally, I will apply those principles to determine whether the Ontario courtshave jurisdiction and, if so, whether they should decline to exercise it.

II. Background and Facts A. Van Breda [2] In June 2003, the respondent Viktor Berg and his spouse, Ms. Van Breda, went on a trip to Cuba, where they stayedat the SuperClubs Breezes Jibacoa resort managed by Club Resorts. Mr. Berg, a professional squash player, had made arrangements fora one-week stay for two people at this hotel through René Denis, an Ottawa-based travel agent operating a business known as Sport auSoleil. [3] Mr. Denis’s business involved arranging for racquet sport professionals for, among others, Club Resorts, inexchange for undisclosed compensation. Mr.

Denis also received a fee from each professional. Once the arrangements for Mr. Berg werefinalized, Mr. Denis sent him a letter on letterhead bearing the words “SuperClubs Cuba — Tennis”, which confirmed the details of theagreement with Club Resorts: Mr. Berg was to provide two hours of tennis lessons a day in exchange for bed and board and otherservices for two people at the hotel. [4] The accident happened on the first day of their stay. Ms. Van Breda tried to do some exercises on a metal structureon the beach, but the structure collapsed. She suffered catastrophic injuries and, as a result, became paraplegic.

After spending a fewdays in a hospital in Cuba, she returned to Canada, going to Calgary where her family lived. She is now living in British Columbia withMr. Berg. They never returned to Ontario, which they had planned to do after their holiday. [5] In May 2006, Ms. Van Breda, her relatives and Mr. Berg sued several defendants, including Mr. Denis, ClubResorts, and some companies associated with Club Resorts in the SuperClubs group, in the Ontario Superior Court of Justice. Theirclaim was framed in contract and in tort.

They sought damages for personal injury, damages for loss of support, care, guidance andcompanionship pursuant to the Family Law Act, R.S.O. 1990, c. F.3, and punitive damages. [6] Some of the parties, including those who were served outside Ontario under rule 17.02 of the Rules of CivilProcedure, R.R.O. 1990, Reg. 194, moved to dismiss the action for want of jurisdiction. In the alternative, they asked the Superior Courtof Justice to decline jurisdiction on the basis of forum non conveniens. B. Charron [7] In January 2002, Dr.

Charron and his wife booked a vacation package through a travel agent, Bel Air Travel GroupLtd. (“Bel Air”). This package was offered by Hola Sun Holidays Ltd. (“Hola Sun”), which sold packages offered by, among others,SuperClubs. It was an all-inclusive package — at the Breezes Costa Verde hotel in Cuba — that featured scuba diving. The hotel wasowned by Gaviota SA (Ltd.) (“Gaviota”), a Cuban corporation, but was managed by the appellant, Club Resorts. Dr. and Mrs. Charronreached the Breezes Costa Verde on February 8, 2002. Four days later, Dr. Charron drowned during his second scuba dive. [8] Mrs.

Charron and her children sued for breach of contract and negligence. Dr. Charron’s estate sought damages forloss of future income, and the individual plaintiffs also sought damages for loss of love, care, guidance and companionship pursuant tothe Family Law Act. The statement of claim was served on the Ontario defendants, Bel Air and Hola Sun. It was also served outsideOntario on several foreign defendants, including Club Resorts, under rule 17.02 of the Rules of Civil Procedure. The parties servedoutside Ontario included the diving instructor and the captain of the boat.

Club Resorts and an associated company, Village ResortsInternational Ltd., which owned the SuperClubs trademark, moved to dismiss the action on the ground that the Ontario courts lackedjurisdiction or, in the alternative, to stay the action on the grounds that Ontario was not the most appropriate forum. C. Judicial History

(1) Van Breda — Ontario Superior Court of Justice (2008), (ON SC), 60 C.P.C. (6th) 186 [9] In Van Breda, Pattillo J. held that Club Resorts’ motion turned on whether there was a real and substantialconnection in accordance with the test laid out by the Ontario Court of Appeal in Muscutt v. Courcelles (2002), (ONCA), 60 O.R. (3d) 20. He found that there was a connection between Ontario and Club Resorts by virtue of the activities the companyengaged in in Ontario through Mr. Denis. He also found on a prima facie basis that the agreement between Mr. Berg and Club Resortshad actually been concluded in Ontario.

After reviewing the other factors from Muscutt, including unfairness to the defendants inassuming jurisdiction, unfairness to the plaintiffs in not doing so and the involvement of other parties to the suit, he held that there was asufficient connection between Ontario and the subject matter of the litigation. Pattillo J. then considered the issue of forum nonconveniens. Although he accepted that Cuba also had jurisdiction, he concluded that it had not been established that a Cuban court wouldclearly be a more appropriate forum.

For these reasons, he held that the Ontario Superior Court of Justice should entertain the action asagainst Club Resorts.

(2) Charron — Ontario Superior Court of Justice (2008), (ON SC), 92 O.R. (3d) 608 [10] In Charron, Mulligan J. held against Club Resorts. In his opinion, a contract had been entered into between Dr.Charron and Bel Air. The travel agency had booked an all-inclusive package at the Cuban hotel through Hola Sun, which had anagreement with Club Resorts. These facts weighed in favour of assuming jurisdiction. Mulligan J. also found that there was a connectionbetween Ontario and the defendants. In his view, the resort relied heavily on international travellers to ensure its profitability.

ClubResorts marketed the resort in Ontario by way of an agreement with Hola Sun. I note that the record indicated that Club Resorts or oneof its associated companies had an office in Richmond Hill, Ontario. After reviewing the other factors from Muscutt, Mulligan J. heldthat the Ontario courts had jurisdiction with respect to Club Resorts. In considering forum non conveniens, Mulligan J. weighed severalfactors.

He took into account the fact that more parties and witnesses were located in Ontario than in Cuba, that the damage had beensustained in Ontario and that a liability insurance policy was available to the foreign defendants in Ontario. In addition, Mrs. Charron andher children would lose the benefit of statutory family law remedies if the case were to proceed in Cuba. For these reasons, Mulligan J.held that the Ontario court was clearly a more appropriate forum than a Cuban court.

(3) Ontario Court of Appeal, 2010 ONCA 84 , 98 O.R. (3d) 721 [ 11 ] The two cases were heard together in the Court of Appeal. After ordering a rehearing, the Court of Appeal, in reasons written by Sharpe J.A., took the opportunity to review and reframe the Muscutt test.

I will discuss this new framework below in reviewing the evolution of the common law policy relating to conflicts of jurisdiction and conflicts of laws. [ 12 ] Suffice it to say at this stage that, after recasting the Muscutt test, the Court of Appeal unanimously held, in both cases, that the Ontario courts had jurisdiction over the claims and the parties.

It then decided that the Ontario courts should not decline jurisdiction on the basis of forum non conveniens principles, because a Cuban court would not clearly be a more appropriate forum. [ 13 ] The appeals in Van Breda and Charron were also heard together in this Court. They were heard during the same session as two other appeals involving the issues of jurisdiction and forum non conveniens , which concerned actions in damages for defamation ( Breeden v. Black , 2012 SCC 19 , [2012] 1 S.C.R. 666, and Éditions Écosociété Inc. v. Banro Corp. , 2012 SCC 18 , [2012] 1 S.C.R. 636). III. Analysis Issues

(1) Nature and Scope of Private International Law [ 14 ] These appeals raise broad issues about the fundamental principles of the conflict of laws, as this branch of the law has traditionally been known in the common law, or “private international law” as it is often called now (A. Briggs, The Conflict of Laws (2nd ed. 2008), at pp. 2-3; Manitoba Law Reform Commission, Private International Law , Report #119 (2009), at p. 2; J.-G.

Castel, “The Uncertainty Factor in Canadian Private International Law” (2007), 52 McGill L.J. 555). [ 15 ] Although both appeals raise issues concerning both the determination of whether a court has jurisdiction (the test of jurisdiction simpliciter ) and the principles governing a court’s decision to decline to exercise its jurisdiction (the doctrine of forum non conveniens ), those issues may have an impact on the development of other areas of private international law.

Private international law is in essence domestic law, and it is designed to resolve conflicts between different jurisdictions, the legal systems or rules of different jurisdictions and decisions of courts of different jurisdictions. It consists of legal principles that apply in situations in which more than one court might claim jurisdiction, to which the law of more than one jurisdiction might apply or in which a court must determine whether it will recognize and enforce a foreign judgment or, in Canada, a judgment from another province (S. G. A. Pitel and N. S.

Rafferty, Conflict of Laws (2010), at p. 1). [ 16 ] Three categories of issues — jurisdiction, forum non conveniens and the recognition of foreign judgments — are intertwined in this branch of the law. Thus, the framework established for the purpose of determining whether a court has jurisdiction may have an impact on the choice of law and on the recognition of judgments, and vice versa. Judicial decisions on choice of law and the recognition of judgments have played a central role in the evolution of the rules related to jurisdiction.

None of the divisions of private international law can be safely analysed and applied in isolation from the others. This said, the central focus of these appeals is on jurisdiction and the appropriate forum.

(2) Issues Related to Jurisdiction: Assumption and Exercise of Jurisdiction [ 17 ] Two issues arise in these appeals. First, were the Ontario courts right to assume jurisdiction over the claims of the respondents Van Breda and Charron and over the appellant, Club Resorts? Second, were they right to exercise that jurisdiction and dismiss an application for a stay based on forum non conveniens ? [ 18 ] To be able to resolve these issues, I must first discuss the evolution of the rules of jurisdiction simpliciter in Canadian private international law.

It will be necessary to review the approach the Ontario Court of Appeal adopted in respect of the questions of assumption of jurisdiction and forum non conveniens in its judgments in the cases at bar and, in particular, its reconsideration of the principles that it had previously set out in Muscutt . [ 19 ] I will then propose an analytical framework and legal principles for assuming jurisdiction (jurisdiction simpliciter ) and for deciding whether to decline to exercise it ( forum non conveniens ).

On that basis, I will review the facts of the cases at bar to determine whether the Ontario courts made any reviewable errors when they decided to retain jurisdiction over them. [ 20 ] Before turning to these issues, however, it is important to consider the constitutional underpinnings of private international law in Canada. This part of the analysis is necessary in order to explain the origins of the “real and substantial connection test” as it is now known, its nature, and its impact on the development of the principles of private international law.

(3) Constitutional Underpinnings of Private International Law [ 21 ] Conflicts rules must fit within Canada’s constitutional structure. Given the nature of private international law, its application inevitably raises constitutional issues. This branch of the law is concerned with the jurisdiction of courts of the Canadian provinces, with whether that jurisdiction should be exercised, with what law should apply to a dispute, and with whether a court should recognize and enforce a judgment rendered by a court of another province or country.

The rules of private international law can be found, in the common law provinces, in the common law and in statute law and, in Quebec, in the Civil Code of Québec , S.Q. 1991, c. 64, which contains a well-developed set of rules and principles in this area (see Civil Code of Québec , Book Ten, arts. 3076 to 3168). The interplay between provincial jurisdiction and external legal situations takes place within a constitutional framework which limits the external reach of provincial laws and of a province’s courts. The Constitution assigns powers to the provinces.

But these powers are subject to the restriction that they be exercised within the province in question (see P. W. Hogg, Constitutional Law of Canada (5th ed. 2007), vol. 1, at pp. 364-65 and 376-77; H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel (5th ed. 2008), at p. 569; British Columbia v. Imperial Tobacco Canada Ltd. , 2005 SCC 49 , [2005] 2 S.C.R. 473, at paras. 26-28 , per Major J.), and they must be exercised in a

manner consistent with the territorial restrictions created by the Constitution (see Castillo v. Castillo, 2005 SCC 83, [2005] 3 S.C.R. 870,at para. 5, per Major J.; Unifund Assurance Co. v. Insurance Corp. of British Columbia, 2003 SCC 40, [2003] 2 S.C.R. 63, at para. 51,per Binnie J.).

(4) Origins of the Real and Substantial Connection Test [22] The real and substantial connection test arose out of decisions of this Court that were aimed at establishing broad andflexible principles to govern the exercise of provincial powers and the actions of a province’s courts. It was focussed on two issues: (1)the risk of jurisdictional overreach by provinces and (2) the recognition of decisions rendered in other jurisdictions within the Canadianfederation and in other countries.

In developing the real and substantial connection test, the Court crafted a constitutional principle ratherthan a simple conflicts rule (see G. Goldstein and E. Groffier, Droit international privé, vol. I, Théorie générale (1998), at p. 47). However, the test was born as a general organizing principle of the conflict of laws. Its constitutional dimension appeared only later. Courts have used the expression “real and substantial connection” to describe the test in both senses, and often in the same judgment.

This has produced confusion about both the nature of the test and the constitutional status of the rules and principles of privateinternational law. A clearer distinction needs to be drawn between the private international law and constitutional dimensions of this test. [23] From a constitutional standpoint, the Court has, by developing tests such as the real and substantial connection test,sought to limit the reach of provincial conflicts rules or the assumption of jurisdiction by a province’s courts. However, this test does notdictate the content of conflicts rules, which may vary from province to province.

Nor does it transform the whole field of privateinternational law into an area of constitutional law. In its constitutional sense, it places limits on the reach of the jurisdiction of aprovince’s courts and on the application of provincial laws to interprovincial or international situations. It also requires that all Canadiancourts recognize and enforce decisions rendered by courts of the other Canadian provinces on the basis of a proper assumption ofjurisdiction.

But it does not establish the actual content of rules and principles of private international law, nor does it require that thoserules and principles be uniform. [24] The first mention of a “real and substantial connection test” in the Court’s modern jurisprudence can be found in thereasons of Dickson J. in Moran v. Pyle National (Canada) Ltd., (SCC), [1975] 1 S.C.R. 393. That case concerned a tortaction with respect to manufacturer’s liability. The main issue was whether the courts of Saskatchewan had jurisdiction over the claimand, if so, what substantive law governed it.

Dickson J. suggested that the English courts seemed to be moving towards some form of“real and substantial connection test” (pp. 407-8) to resolve issues related to the assumption of jurisdiction by a province’s courts and theappropriate choice of the law applicable to a tort. The test was formally adopted in Morguard Investments Ltd. v. De Savoye, (SCC), [1990] 3 S.C.R. 1077. As had been the case in Moran, the Court’s intention in Morguard was to develop anorganizing principle of Canadian private international law, albeit with constitutional overtones.

The test’s constitutional role in theCanadian federation was confirmed a few years later in Hunt v. T&N plc, (SCC), [1993] 4 S.C.R. 289. Its Janus-likenature — with a private international law face on the one hand and a constitutional face on the other — crystallized in Hunt andremained a permanent feature of the subsequent jurisprudence. [25] In retrospect, it can be seen that in Morguard, the Court initiated a major shift in the framework governing the conflictof laws in Canada by accepting the validity of the real and substantial connection test as a principle governing the rules applicable toconflicts.

In view of its importance, the case merits closer consideration. At issue in Morguard was an application to enforce, in BritishColumbia, a judgment rendered in Alberta against a resident of British Columbia. The claim related to a debt secured by a mortgage onproperty in Alberta. The parties were resident in Alberta at the time the loan was made. La Forest J., writing for a unanimous Court,called for a re-evaluation of relationships between the courts of the provinces within the Canadian federation.

The creation of theCanadian federation established an internal space within which exchanges should occur more freely than between independent states.The principle of comity and the principles of fairness and order applicable within a federal space required that the rules of privateinternational law be adjusted (Morguard, at pp. 1095-96). [26] In Morguard, the Court held that the courts of a province must recognize and enforce a judgment of a court of anotherprovince if a real and substantial connection exists between that court and the subject matter of the litigation.

Another purpose of the testwas to prevent improper assumptions of jurisdiction by the courts of a province. Thus, the test was designed to ensure that claims are notprosecuted in a jurisdiction that has little or no connection with either the transactions or the parties, and it requires that a judgmentrendered by a court which has properly assumed jurisdiction in a given case be recognized and enforced. La Forest J. did not seek todetermine the precise content of this real and substantial connection test (Morguard, at p. 1108), nor did he elaborate on the strength ofthe connection.

Rather, he held that the connections between the matters or the parties, on the one hand, and the court, on the other, mustbe of some significance in order to promote order and fairness. They must not be “tenuous” (p. 1110). La Forest J. added that therequirement of a real and substantial connection was consistent with the constitutional imperative that provincial power be exercised “inthe province” (p. 1109).

Because the appeal had not been argued on constitutional grounds, however, he refrained from determiningwhether the real and substantial connection test should be considered a constitutional test. [27] The Court’s subsequent judgment in Hunt confirmed the constitutional nature of the real and substantial connectiontest. That case concerned the application of a “blocking” statute enacted by the Quebec legislature that prohibited the transfer to otherjurisdictions of certain documents kept by corporations in Quebec, even in the context of court litigation.

The Court found that the statutewas not applicable to litigation conducted in British Columbia. It held that assumptions of jurisdiction by a province and its courts mustbe grounded in the principles of order and fairness in the judicial system. The real and substantial connection test from Morguardreflected the need for limits on assumptions of jurisdiction by a province’s courts (Hunt, at p. 325). Any improper assumption ofjurisdiction would be negated by the requirement that there be a “real and substantial connection” (p. 328; see C.

Emanuelli, Droitinternational privé québécois (3rd ed. 2011), at p. 38). [28] Since Hunt, the real and substantial connection test has been recognized as a constitutional imperative in theapplication of the conflicts rules. It reflects the limits of provincial legislative and judicial powers and has thus become more than aconflicts rule. Its application was extended to the recognition and enforcement of foreign judgments in Beals v. Saldanha, 2003 SCC 72,[2003] 3 S.C.R. 416.

[29] But, in the common law, the nature of the conflicts rules that would accord with the constitutional imperative hasremained largely undeveloped in this Court’s jurisprudence. Although the real and substantial connection test has been consistentlyapplied both as a constitutional test and as a principle of private international law, since Hunt, the Court has generally declined toarticulate the content of the private international law rules that would satisfy the test’s constitutional requirements or to develop aframework for them.

The Court has continued to affirm the relevance and importance of the test and has even extended it to foreignjudgments, but without attempting to elaborate upon the rules it requires (see Beals, at paras. 23 and 28, per Major J.). [30] So the test does exist. But what does it mean? What rules would satisfy its status as a constitutional imperative? Twoapproaches are possible. One approach is to view the test not only as a constitutional principle, but also as a conflicts rule in itself.

If it isviewed as a conflicts rule, its content would fall to be determined on a case-by-case basis by the courts in decisions in which they wouldattempt to implement the objectives of order and fairness in the legal system. The other approach is to accept that the test imposesconstitutional limits on provincial powers, but to seek to develop a system of connecting factors and principles designed to make theresolution of conflict of laws issues more predictable in order to reduce the scope of judicial discretion exercised in the context of eachcase.

Some academic commentators view the second approach as critical in order to maintain order, efficiency and predictability in thisarea of the law. Indeed, the real and substantial connection test itself has been criticized as being much too loose and unpredictable tofacilitate an orderly resolution of conflicts issues (see J.-G. Castel; J. Blom and E. Edinger, “The Chimera of the Real and SubstantialConnection Test” (2005), 38 U.B.C. L.

Rev. 373). [31] Thus, in the course of this review, we should remain mindful of the distinction between the real and substantialconnection test as a constitutional principle and the same test as the organizing principle of the law of conflicts. With respect to theconstitutional principle, the territorial limits on provincial legislative competence and on the authority of the courts of the provincesderive from the text of s. 92 of the Constitution Act, 1867. These limits are, in essence, concerned with the legitimate exercise of statepower, be it legislative or adjudicative.

The legitimate exercise of power rests, inter alia, upon the existence of an appropriaterelationship or connection between the state and the persons who are brought under its authority.

The purpose of constitutionallyimposed territorial limits is to ensure the existence of the relationship or connection needed to confer legitimacy. [32] As can be observed from the jurisprudence, in Canadian constitutional law, the real and substantial connection test hasgiven expression to the constitutionally imposed territorial limits that underlie the requirement of legitimacy in the exercise of the state’spower of adjudication. This test suggests that the connection between a state and a dispute cannot be weak or hypothetical.

A weak orhypothetical connection would cast doubt upon the legitimacy of the exercise of state power over the persons affected by the dispute. [33] The constitutionally imposed territorial limits on adjudicative jurisdiction are related to, but distinct from, the real andsubstantial connection test as expressed in conflicts rules. Conflicts rules include the rules that have been chosen for deciding whenjurisdiction can be assumed over a given dispute, what law will govern a dispute or how an adjudicative decision from anotherjurisdiction will be recognized and enforced.

The constitutional territorial limits, on the other hand, are concerned with setting the outerboundaries within which a variety of appropriate conflicts rules can be elaborated and applied.

The purpose of the constitutionalprinciple is to ensure that specific conflicts rules remain within these boundaries and, as a result, that they authorize the assumption ofjurisdiction only in circumstances representing a legitimate exercise of the state’s power of adjudication. [34] This case concerns the elaboration of the “real and substantial connection” test as an appropriate common lawconflicts rule for the assumption of jurisdiction.

I leave further elaboration of the content of the constitutional test for adjudicativejurisdiction for a case in which a conflicts rule is challenged on the basis of inconsistency with constitutionally imposed territorial limits. To be clear, however, the existence of a constitutional test aimed at maintaining the constitutional limits on the powers of a province’slegislature and courts does not mean that the rules of private international law must be uniform across Canada.

Legislatures and courtsmay adopt various solutions to meet the constitutional requirements and the objectives of efficiency and fairness that underlie our privateinternational law system. Nor does this test’s existence mean that the connections with the province must be the strongest ones possibleor that they must all point in the same direction. [35] Turning to the search for appropriate conflicts rules, the trend is towards retaining or establishing a system ofconnecting factors informed by principles for applying them, as opposed to relying on almost pure judicial discretion to achieve orderand fairness.

This trend is apparent in the laws passed by certain provincial legislatures and is reflected in a number of judicial decisions.These decisions include the important jurisprudential current that the Ontario Court of Appeal has been developing since Muscutt, whichis in issue in the cases at bar. The real and substantial connection test should be viewed not in isolation, but rather in the context of itshistorical roots, contemporary legislative developments, the academic literature and initiatives aimed at developing and modernizingCanada’s conflicts rules.

The test was not born ex nihilo, without any awareness of the methods and techniques that evolved in the fieldof private international law. In this respect, both the common law and the civil law have relied largely on the selection and use of anumber of specific objective factual connections. [36] In Hunt, La Forest J. cautioned against casting aside all the traditional connections.

In commenting on the difficultiesof framing an appropriate test for a reasonable assumption of jurisdiction and on the development of the real and substantial connectiontest, he wrote: The exact limits of what constitutes a reasonable assumption of jurisdiction were not defined, and I add that no test canperhaps ever be rigidly applied; no court has ever been able to anticipate all of these.

However, though some of these may well requirereconsideration in light of Morguard, the connections relied on under the traditional rules are a good place to start. [p. 325] [37] Not long after Hunt, the Court rendered its judgment in Tolofson v. Jensen, (SCC), [1994] 3 S.C.R.1022, a case concerned mainly with determining what law should apply to a tort. In it, too, the Court’s concern was to assurepredictability in the application of the law of conflicts to tort claims. The Court established a new conflicts rule in respect of torts,abandoning the rule it had adopted in McLean v.

Pettigrew, (SCC), [1945] S.C.R. 62, that favoured the law of the forum(lex fori) and holding that, in principle, the law governing the tort should be that of the place where the tort occurred (lex loci delicti).The situs of the tort would also justify the assumption of jurisdiction by the courts of a province. The Court did not at that time relysolely on the real and substantial connection test as a conflicts rule. In a sense, it held that in this context, the objectives of fairness and

efficiency in the conflicts system would be better served by relying on factual connections with the place where the tort occurred. [ 38 ] In La Forest J.’s opinion, Morguard prevented courts from overreaching by entering into matters in which they had little or no interest ( Tolofson , at p. 1049). But he also cautioned against building a system of private international law based solely on the expectations of the parties and concerns of fairness in a specific case, as such a system could hardly be considered rational.

A degree of predictability or reliability must be assured: The truth is that a system of law built on what a particular court considers to be the expectations of the parties or what it thinks is fair, without engaging in further probing about what it means by this, does not bear the hallmarks of a rational system of law. Indeed in the present context it wholly obscures the nature of the problem. In dealing with legal issues having an impact in more than one legal jurisdiction, we are not really engaged in that kind of interest balancing.

We are engaged in a structural problem. [pp. 1046-47] To La Forest J. in Tolofson , order was needed in the conflicts system, and was even a precondition to justice (p. 1058). Certainty was one of the key purposes being pursued in framing a conflicts rule (p. 1061). With this in mind, the Court crafted what it hoped would be a clear conflicts rule for torts that would bring a degree of certainty to this part of tort law and private international law (pp. 1062-64).

Subject to the constitutional requirement established in Morguard , this rule would make it possible to identify some connecting factors linking the court or the law to the matter and to the parties. The presence of such factors would not necessarily resolve everything. Specific torts might raise particular difficulties that could require crafting carefully defined exceptions (p. 1050). Such difficulties indeed arise in the companion cases of Breeden and Éditions Écosociété Inc. Nevertheless, a conflicts rule based on specific connections seemed likely to introduce greater certainty into the

interpretation and application of private international law principles in Canada. [ 39 ] Legislative action since Morguard and Hunt points in the same direction. Without entering into the details of the complex, often flexible and nuanced, system of conflicts rules that became part of the Civil Code of Québec in 1994, it is worth mentioning that the Civil Code sets out a number of specific conflicts rules that identify connecting factors to be applied in various international or interprovincial situations. This Court has discussed the Civil Code ’s scheme on a number of occasions.

In particular, in Spar Aerospace Ltd. v. American Mobile Satellite Corp. , 2002 SCC 78 , [2002] 4 S.C.R. 205, it reviewed the scheme applicable to the assumption by Quebec courts of jurisdiction over situations involving delictual or quasi-delictual liability in an international or interprovincial context. [ 40 ] Across Canada, various initiatives have been undertaken to flesh out the real and substantial connection test.

For example, the Uniform Law Conference of Canada proposed a uniform Act to govern issues related to jurisdiction and to the doctrine of forum non conveniens (see Uniform Court Jurisdiction and Proceedings Transfer Act (“ CJPTA ”) (online)). [ 41 ] The CJPTA focusses mainly on issues related to the assumption of jurisdiction.

Section 3(

e) provides that a court may assume jurisdiction if “there is a real and substantial connection between [enacting province or territory] and the facts on which the proceeding against that person is based” (text in brackets in original).

Section 10 enumerates a variety of circumstances in which such a connection would be presumed to exist. For example, it lists a number of factors that might apply where the purpose of the proceeding is the determination of property rights or rights related to a contract. In the case of tort claims, s. 10(

g) provides that the commission of a tort in a province would be a proper basis for the assumption of jurisdiction by that province’s courts.

Section 10 states that the list of connecting factors would not be closed and that other circumstances might be proven in order to establish a real and substantial connection. The CJPTA also includes specific provisions regarding forum of necessity (s. 6) and forum non conveniens ( s. 11 ). A number of subsequent provincial statutes are clearly based on the CJPTA (see, e.g., Court Jurisdiction and Proceedings Transfer Act , S.B.C. 2003, c. 28; Court Jurisdiction and Proceedings Transfer Act , S.S. 1997, c.

C-41.1; Court Jurisdiction and Proceedings Transfer Act , S.N.S. 2003 (2nd Sess.), c. 2; Court Jurisdiction and Proceedings Transfer Act , S.Y. 2000, c. 7 (not yet in force)). [ 42 ] In these statutes, the legislative scheme proposed in the CJPTA has been adopted, with some differences in wording, as they include non-exhaustive lists of prescriptive connecting factors which are presumed to establish a real and substantial connection.

Unlike with Book Ten of the Civil Code of Québec , the legislatures that enacted them did not attempt to codify the entire field of private international law, but attached particular importance to issues related to the assumption and exercise of jurisdiction. [ 43 ] Unlike in these other provinces, the Ontario legislature has not enacted a statute based on the CJPTA . However, the province has established its own set of connecting factors for the purposes of service outside Ontario, which are set out in the Ontario Rules of Civil Procedure .

These factors, which are found in rule 17.02 , are similar, in part, to those of the CJPTA and of the statutes based on the CJPTA . It has been observed, though, that rule 17.02 is purely procedural in nature and does not by itself establish jurisdiction in a case (P. M. Perell and J. W. Morden, The Law of Civil Procedure in Ontario (2010), at p. 121).

(5) Understanding the Real and Substantial Connection Test — The Ontario Court of Appeal in Muscutt [ 44 ] Given the absence of statutory rules, the Ontario Court of Appeal endeavoured to establish a common law framework for the application of the real and substantial connection test in its important judgment in Muscutt . At issue in that case was a claim in tort. An Ontario resident had been injured in a car crash in Alberta. The four defendants lived in Alberta at the time. One of them moved to Ontario after the accident. The plaintiff returned to Ontario and sued all the defendants in Ontario.

Two of the Alberta defendants moved to stay the action for want of jurisdiction and, in the alternative, on the basis of forum non conveniens . They argued that the action should be stayed for want of jurisdiction. They also challenged the constitutional validity of the provisions of the Ontario rules on service outside the province. In their opinion, those provisions were ultra vires the province of Ontario because they had an extraterritorial effect. The Ontario Superior Court of Justice dismissed the constitutional challenge and assumed jurisdiction.

The matter was then appealed to the Court of Appeal, which took the opportunity to consider the constitutional issues, although the main focus of its decision was on the content and the application of the real and substantial connection test. [ 45 ] The Court of Appeal quickly disposed of the argument that rule 17.02 (

h) was unconstitutional. It acknowledged that the real and substantial connection test imposed constitutional limits on the assumption of jurisdiction by a province’s courts. But in its opinion, rule 17.02 (

h) was purely procedural and did not by itself determine the issue of the jurisdiction of the Ontario courts. The rule applied within the limits of the real and substantial connection test and did not resolve the issue of the assumption of jurisdiction

(Muscutt, at paras. 50-52). [46] The Court of Appeal then turned to the central issue in the case: whether it was open to the Superior Court of Justiceto assume jurisdiction. Sharpe J.A. first sought to draw a clear distinction between the assumption of jurisdiction itself and forum nonconveniens, which concerns the court’s discretion to decline to exercise its jurisdiction. He cautioned against conflating what he viewedas different analytical stages in a situation in which the assumption of jurisdiction is in issue.

A court must determine whether it hasjurisdiction by applying the appropriate principles governing the assumption of jurisdiction.

If it does have jurisdiction, it might thenhave to consider whether it should decline to exercise that jurisdiction in favour of a more appropriate forum (Muscutt, at paras. 40-42).The critical step in this process consists in determining when a court can properly assume jurisdiction in light of the constitutional limitsimposed by the real and substantial connection test. [47] Sharpe J.A. emphasized the importance of this Court’s decisions — from Morguard to Amchem Products Inc. v.British Columbia (Workers’ Compensation Board), (SCC), [1993] 1 S.C.R. 897 — in the re-crafting of the traditionalapproaches to the resolution of conflicts in private international law.

The adoption of the real and substantial connection test mandated aflexible approach to the assumption of jurisdiction informed by the underlying requirements of order and fairness. This approachrequired a concrete analysis of a number of factors that would allow a court to decide whether a sufficient connection existed betweenthe forum and the subject matter of the litigation rather than with the parties. The court was to look not for the strongest possibleconnection with the forum, but for a minimum connection sufficient to meet the constitutional requirement that the matter be linked tothe forum (para. 44).

The Court of Appeal held that a court should consider a variety of factors to determine whether it has jurisdiction.Sharpe J.A. recommended taking a broad approach to jurisdiction. The defendant’s relationship with the forum might be an “important”connecting factor, but not a “necessary” one (para. 74 (emphasis deleted)). [48] Although the Court of Appeal acknowledged the importance of flexibility, it stressed that clarity and certainty are alsonecessary characteristics of the conflicts system.

It accordingly developed a list of eight factors to be considered when deciding whetheran assumption of jurisdiction is justified: (1) the connection between the forum and the plaintiff’s claim; (2) the connection between the forum and the defendant; (3) unfairness to the defendant in assuming jurisdiction; (4) unfairness to the plaintiff in not assuming jurisdiction; (5) the involvement of other parties to the suit; (6) the court’s willingness to recognize and enforce an extraprovincial judgment rendered on the same jurisdictional basis; (7) whether the case is interprovincial or international in nature; and (8) comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere. [49] In the Court of Appeal’s opinion, no single factor should be determinative.

In Sharpe J.A.’s words, “all relevantfactors should be considered and weighed together” (Muscutt, at para. 76). The Court of Appeal held that the Superior Court of Justicecould assume jurisdiction in the case before it. It turned briefly to the issue of forum non conveniens, but found that an Alberta courtwould not be a more appropriate forum (para. 115). [50] At the same time as its decision in Muscutt, the Court of Appeal applied this new template to four other cases in whichthe assumption of jurisdiction and forum non conveniens were in issue.

In those appeals, it held that the Ontario courts should not assumejurisdiction, because the connections with Ontario were too insignificant to satisfy the real and substantial connection test. All four casesinvolved Ontario residents who had suffered injuries in accidents outside Canada and filed suits in Ontario courts (Lemmex v. Bernard(2002), (ON CA), 60 O.R. (3d) 54; Gajraj v. DeBernardo (2002), (ON CA), 60 O.R. (3d) 68;Sinclair v. Cracker Barrel Old Country Store, Inc. (2002), (ON CA), 60 O.R. (3d) 76; Leufkens v. Alba ToursInternational Inc. (2002), (ON CA), 60 O.R. (3d) 84).

All the actions were dismissed in respect of the foreigndefendants. The Court of Appeal found that the facts that the plaintiffs resided in Ontario and had sustained damage in the province didnot create a real and substantial connection between the litigation and the Ontario courts. Since the courts lacked jurisdiction, there wasno need for the Court of Appeal to consider the forum non conveniens arguments.

(6) Reconsideration of Muscutt by the Ontario Court of Appeal [51] A few years after Muscutt, the Court of Appeal decided that, in the cases now before this Court, a review of theexisting framework for the assumption of jurisdiction by Ontario courts and of issues related to forum non conveniens had becomenecessary. Since Muscutt, Ontario courts had consistently been applying the framework adopted in that case. Outside Ontario, Muscuttwas considered an influential authority, and its framework was often accepted as an appropriate one for resolving issues related to theassumption of jurisdiction.

But as I mentioned above, a number of common law provinces preferred to adopt the framework proposed inthe CJPTA. On occasion, courts outside Ontario expressed reservations about certain aspects of the Muscutt framework (Coutu v.Gauthier Estate, 2006 NBCA 16, 296 N.B.R. (2d) 34, at paras. 67-68; Fewer v. Ellis, 2011 NLCA 17, 305 Nfld. & P.E.I.R. 39). It wassuggested that the Muscutt test gave judges too much latitude in exercising their discretion on a case-by-case basis and was thusincompatible with the objectives of order and predictability in the assumption of jurisdiction.

The wide parameters of this broadjurisdiction might also lead a court to conflate the jurisdictional analysis and the application of the doctrine of forum non conveniens in asearch for the better or more appropriate forum in any given case. The analysis under the Muscutt test could also generate an instinctivebias in favour of the forum chosen by the plaintiff.

(7) The New Van Breda-Charron Approach of the Ontario Court of Appeal

[ 52 ] As the Court of Appeal noted, it had heard a variety of opinions and conflicting suggestions regarding the need to reframe the Muscutt test and how this should be done. Some of the litigants wanted to retain Muscutt as it was; others proposed the adoption of a test based on a list of presumptive connecting factors similar to that of the CJPTA ( Van Breda- Charron , paras. 56-57 ). The Court of Appeal declined to craft a common law rule that would in substance reproduce the content of the CJPTA .

Sharpe J.A. expressed the view that the unpredictability of the Muscutt test had been exaggerated, as had the degree of certainty and predictability that would result if the CJPTA scheme were adopted (para. 68). He proposed what he saw as a middle way. The Court of Appeal would retain the Muscutt test, but would modify it by simplifying it and bringing it closer to the CJPTA model.

Sharpe J.A. stated: “In refining the Muscutt test, we can look to CJPTA as a worthy attempt to restate and update the Canadian law of jurisdiction . . . and, in so doing, bring Ontario law into line with the emerging national consensus on appropriate jurisdictional standards” (para. 69). [ 53 ] On that basis, the Court of Appeal reframed the Muscutt test in part. The first change, as Sharpe J.A. stated, moved the existing framework closer to that of the CJPTA . It was the creation of a category-based presumption of jurisdiction modelled on s. 10 of the CJPTA .

In the absence of statutory connecting factors, the court decided to rely for this purpose on the factors governing service outside Ontario set out in rule 17.02 of the Ontario Rules of Civil Procedure (para. 71). Sharpe J.A. asserted that most of the connecting factors enumerated in rule 17.02 , such as the fact that a contract was made in Ontario (rule 17.02(f)) or a tort was committed in the province (rule 17.02(g)), would presumptively confirm the jurisdiction of the Ontario court (para. 72).

In other words, whenever one of these factors was established, a real and substantial connection justifying the assumption of jurisdiction by an Ontario court would be presumed to exist. [ 54 ] Sharpe J.A. added that where the presumption applied, it would be rebuttable. It would be open to a party to argue that, even though a presumptive connection existed, the real and substantial connection test had not been met (para. 72). Sharpe J.A. stated that these changes would be consistent with the incremental approach to the development of common law rules.

In addition, almost all the post- Muscutt cases that he had reviewed seemed to have been resolved by one or another of the factors listed in rule 17.02 (paras. 74-75). [ 55 ] According to this view, the appropriate factors generally operate as reliable markers of jurisdiction at common law. The adoption of these markers would mitigate the complexity and unpredictability of the Muscutt test. Sharpe J.A. noted that the jurisprudence on service ex juris provides support for the use of these factors as indicators of a real and substantial connection.

For example, in Hunt , La Forest J. had observed that, even if some of the traditional rules of jurisdiction might have to be recast in light of Morguard , the established factors could nevertheless be viewed as “a good place to start” (p. 325; see also Spar Aerospace , at paras. 55- 56, on the provisions of the Civil Code of Québec applicable to the assumption by Quebec courts of jurisdiction over situations involving delictual and quasi-delictual liability).

But Sharpe J.A. declined to give presumptive effect to the factors set out in rules 17.02(h) (damage sustained in Ontario) and 17.02(o) (necessary or proper party). Neither of these factors is included in the CJPTA . Nor have they gained broad acceptance as reliable indicators of jurisdiction.

Indeed, the Court of Appeal found in Muscutt and its companion cases that the factor of “damage sustained in Ontario” was often not reliable and significant enough to justify an assumption of jurisdiction by an Ontario court. [ 56 ] Sharpe J.A. reaffirmed the need to draw a clear distinction between assuming jurisdiction and deciding whether to decline to exercise it on the basis of the forum non conveniens doctrine.

He cautioned against confusing these two different steps in the resolution of a conflicts issue and emphasized that the factors that would justify a stay in the forum non conveniens analysis should not be worked into the jurisdiction simpliciter analysis (paras. 81-82 and 101). The conflation of the two analyses may have been the result of an unduly broad

interpretation of the fairness factors of the Muscutt analysis (para. 81 ). [ 57 ] Building on this first principle that recognized the list of presumptive connecting factors, Sharpe J.A. re-crafted the Muscutt test. He retained part of the Muscutt analysis, merged some of its factors and reviewed the roles of other principles governing the assumption of jurisdiction. The defendants’ connection with the court seized of the action continued to be a valid and important consideration.

However, the connection between the plaintiffs’ claim and the forum was maintained as a core element of the real and substantial connection test (paras. 87-88). A test based solely on the defendant’s contacts with the jurisdiction would be “unduly restrictive” (para. 86). [ 58 ] The Court of Appeal merged the two factors related to fairness to the parties of assuming or declining jurisdiction into a single one. At the same time, it recommended that judges avoid treating the consideration of fairness as a separate inquiry distinct from the core of the test, since fairness cannot compensate for weak connections.

Sharpe J.A. understood, however, the need to retain fairness to the plaintiff and to the defendant as an analytical tool in assessing the relevance, quality and strength of the connections with the forum in order to determine whether assuming jurisdiction would accord with the principles of order and fairness (paras. 93, 95-96 and 98). [ 59 ] Sharpe J.A. went on to observe that considerations of fairness would support the view that the forum of necessity doctrine is an exceptional basis for assuming jurisdiction (para. 100).

I add that the forum of necessity issue is not before this Court in these appeals, and I will not need to address it here. [ 60 ] According to Sharpe J.A., the involvement of other parties would remain a relevant factor, but its importance would be downgraded.

It should not be routinely considered but would become relevant only if a party raised it as a connecting factor (para. 102). [ 61 ] He accepted that acts or conduct short of residence that take place in the jurisdiction will often support a finding that a real and substantial connection has been established (para. 92). [ 62 ] In the future, Sharpe J.A. stated, whether the courts would be willing to recognize and enforce a foreign judgment should not be treated as a separate factor to be weighed against the other connecting factors in determining jurisdiction.

Rather, it is a general and overarching principle that constrains, or “disciplines”, as he wrote, the assumption of jurisdiction against extraprovincial defendants. A court should not assume jurisdiction if it would not be prepared to recognize and enforce a foreign judgment rendered on the same jurisdictional basis (para. 103). Whether the case is international or interprovincial was also removed from the list of factors.

This would be treated as a question of law liable to be considered in the real and substantial connection analysis (para. 106). The court adopted the same approach in respect of comity and the standards of jurisdiction and of recognition and enforcement of judgments prevailing elsewhere. These considerations, while remaining relevant to the real and substantial connection analysis, would no longer serve as specific factors (paras. 107-8). [ 63 ] Finally, the Court of Appeal held that considerations related to foreign law remain relevant to the issue of the assumption of jurisdiction.

In Sharpe J.A.’s view, evidence on how foreign courts would treat such cases might be helpful (para. 107). I note in passing, however, that undue emphasis on juridical disadvantage as a factor in the jurisdictional analysis appears to be hardly consonant with the principle of comity that should govern legal relationships between modern democratic states, as this Court held in Beals .

In particular, such an emphasis would seem hard to reconcile with the principle of comity that should govern relationships between the courts of different provinces within the same federal state, as this Court held in Morguard and Hunt . [ 64 ] In

summary, the Van Breda - Charron approach offers a simplified test in which the roles of a number of the factors of the Muscutt test have been modified. In short, when one of the presumptive connecting factors applies, the court will assume jurisdiction unless the defendant can demonstrate the absence of a real and substantial connection. If, on the other hand, none of the presumptive connecting factors are found to apply to the claim, the onus rests on the plaintiff to prove that a sufficient relationship exists between the litigation and the forum.

In addition to the list of presumptive and non-presumptive factors, parties can rely on other connecting factors informed by the principles that govern the analysis. [ 65 ] I will now turn to the issue of whether the Court of Appeal was right to hold that it was open to the Ontario courts to assume jurisdiction in the two cases now before us. If I conclude that it was open to them to do so, I will then discuss whether they should have declined to exercise their jurisdiction under the principles of forum non conveniens .

(8) Framework for the Assumption of Jurisdiction [ 66 ] In this Court, as in the Court of Appeal, the parties and the interveners have expressed sharply different views about whether and how the law of conflicts should be changed in respect of the assumption of jurisdiction. As might be expected, the disagreements extend to the impact of possible changes on the outcome of these appeals.

The conflicting approaches articulated in this Court reflect the tension between a search for flexibility, which is closely connected with concerns about fairness to individuals engaged in litigation, and a desire to ensure greater predictability and consistency in the institutional process for the resolution of conflict of laws issues related to the assumption and exercise of jurisdiction.

Indeed, striking a proper balance between flexibility and predictability, or between fairness and order, has been a constant theme in the Canadian jurisprudence and academic literature since this Court’s judgments in Morguard , Hunt , Amchem and Tolofson . [ 67 ] The real and substantial connection test is now well established. However, it is clear that dissatisfaction with it and uncertainty about its meaning and conditions of application have been growing, and that there is now a perceived need for greater direction on how it applies.

I adverted above to the need to draw a distinction between the constitutional test and the rules of private international law — two aspects of the law of conflicts that have sometimes been conflated in previous cases.

At this point, it is necessary to clarify the rules of the conflict of laws in a way that is consistent with the constitutional constraints on the provinces’ courts but does not turn every private international law issue into a constitutional one. [ 68 ] The legislatures of several provinces, as well as the Ontario Court of Appeal in Muscutt and Van Breda-Charron , have responded to these concerns and attempted to provide guidance for the application of the real and substantial connection test. We can build upon these legislative developments and judgments.

Indeed, Sharpe J.A. referred in Van Breda-Charron to what he described, perhaps with some optimism, as an emerging consensus in Canadian law on how to resolve these issues. On the basis of this perhaps fragile consensus and these developments and judgments, this Court must craft more precisely the rules and principles governing the assumption of jurisdiction by the courts of a province over tort cases in which claimants sue in Ontario, but at least some of the events that gave rise to the claims occurred outside Canada or outside the province.

I will also consider how jurisdiction should be exercised or declined under the doctrine of forum non conveniens . This said, I remain mindful that the Court is not of course tasked with drafting a complete code of private international law. Principles will be developed as problems arise before the courts.

Moreover, all my comments about the development of the common law principles of the law of conflicts are subject to provisions of specific statutes and rules of procedure. [ 69 ] When a court considers issues related to jurisdiction, its analysis must deal first with those concerning the assumption of jurisdiction itself. That analysis must be grounded in a proper understanding of the real and substantial connection test, which has evolved into an important constitutional test or principle that imposes limits on the reach of a province’s laws and courts.

As I mentioned above, this constitutional test reflects the limited territorial scope of provincial authority under the Constitution Act, 1867 . At the same time, the Constitution acknowledges that international or interprovincial situations may have effects within a province.

Provinces may address such effects in order to resolve issues related to conflicts with their own internal legal systems without overstepping the limits of their constitutional authority (see Castillo ). [ 70 ] The real and substantial connection test does not mean that problems of assumption of jurisdiction or other matters, such as the choice of the proper law applicable to a situation or the recognition of extraprovincial judgments, must be dealt with on a case-by-case basis by discretionary decisions of courts, which would determine, on the facts of each case, whether a sufficient connection with the forum has been established.

Judicial discretion has an honourable history, and the proper operation of our legal system often depends on its being exercised wisely. Nevertheless, to rely completely on it to flesh out the real and substantial connection test in such a way that the test itself becomes a conflicts rule would be incompatible with certain key objectives of a private international law sy

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