Une pensée d’avance Think Ahead 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-of- province 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