Law times • OctOber 5/12, 2009
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he Ontario Court of Appeal is getting set to reconsider a leading Ca- nadian case on jurisdiction over non-resident defendants. "Th is suggests that the court
Appeal court revisits key ruling on jurisdiction over non-residents T
BY JULIUS MELNITZER For Law Times
between the subject matter of the action and Ontario existed. According to Jerome Morse
of Toronto's Adair Morse LLP, who with colleague John Adair represents the plaintiff s in Char- ron, the academic commentary reveals four common criti- cisms of Muscutt: that it creates
has already determined that Muscutt [v. Courcelles] should possibly be reversed, at least in part," says Borden Ladner Ger- vais LLP's Barry Glaspell. Nevertheless, Glaspell argues the 2002 case that outlined the so-called real and substantial connection test for determining whether the court has jurisdiction is an important one. "Th e Muscutt quintology demonstrated, for the fi rst time, a careful integration of private and customary international law concepts, leaving a considerable degree of judgment to the courts as to the application of the real and substantial connection test to a given set of facts. "Th e decision works well in practice and is likely the most per- suasive and infl uential of its kind by the Ontario Court of Appeal in the past decade. It has been widely followed by judges across Canada, including many at the Supreme Court of Canada." Th e test arising from Muscutt
is a fl exible one involving eight factors, none of which is deter- minative by itself and all of which must be weighed. Th e eight factors are: the con- nection between Ontario and the plaintiff 's claim; the connection between Ontario and the defen- dant; unfairness to the defendant in assuming jurisdiction; unfair- ness to the plaintiff in not as- suming jurisdiction; involvement of other parties in the suit; the court's willingness to recognize and enforce a similar judgment against a domestic defendant rendered on the same jurisdic- tional basis; whether the case is international or interprovincial in nature; and comity and the stan- dards of jurisdiction, recognition, and enforcement elsewhere. It appears, however, that the
current Court of Appeal has had second thoughts about the Mus- cutt test or at least some of its components. Prompted, it seems, by academic criticism of the case, including an oft-cited article by professor Tanya Monestier, the court will be reconsidering the Muscutt framework at a hearing set for this week. Th e issue arose following ar- guments in Charron v. Bel Air Travel Group Ltd. and Van Breda v. Village Resorts Limited. In both cases, the trial judges had applied Muscutt to fi nd jurisdiction, but the defendants appealed. After reserving judgment in both cases, the Court of Appeal advised that it had "become aware of certain developments in the law that may warrant this court revisiting aspects of its decision in Muscutt v. Courcelles." A fi ve-judge panel will con- sider the issue. Charron arose from the plain-
tiff 's purchase of an all-inclusive package holiday to Cuba from a
Carthy_OAP (LT 1-3x4).indd 1
uncertainty and unpredictability; it increases the cost and complex- ity of litigation because it requires parties to adduce evidence of for- eign law; it confl ates the jurisdic- tion simpliciter analysis with the forum non conveniens analysis; and developments in other prov- inces, notably the adoption of
GILBERTSON DAVIS EMERSON LLP BARRISTERS AND SOLICITORS
practice restricted to CIVIL LITIGATION, INSURANCE LAW
Barry Glaspell calls Muscutt one of the most 'influential' Court of Appeal decisions in recent years.
resort owned by a Cuban com- pany. While taking advantage of the free scuba diving at the resort, the plaintiff died. Th e trial judge concluded that one of the defendant companies, resident in the Cayman Islands, had a real and substantial con- nection to Ontario because it had provided the accommodation in Cuba pursuant to an agreement with a tour operator here. Th e incident that gave rise to
Van Breda also occurred in Cuba when the female plaintiff suff ered permanent injuries as a result of an accident at a beach resort. Th e trial judge ruled that the
resort, domiciled in the Cayman Islands, might have entered into the contract with the male plain- tiff through a representative here. He noted the potential unfair- ness of a Communist regime's judicial system and the fact that none of the defendants were Cu- ban. He therefore concluded that a real and substantial connection
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uniform legislation, mean that Ontario's approach to jurisdic- tion is not consistent with the approach taken elsewhere. But Morse vows to attack the academic literature. "I've never seen a single case
where a court has said that Mus- cutt is unworkable," he says.
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