A Broader Approach to Real and Substantial Connection

Not a huge development, but I wanted to note that the Ontario Court of Appeal in 582556 Alberta Inc. v. Canadian Royalties Inc., 2008 ONCA 58, has once again confirmed the eight jurisdiction simpliciter factors elucidated in Muscutt v. Courcelles.

Muscutt was an interesting case because its approach to establishing jurisdiction simpliciter was arguably more similar to testing forum non conveniens rather than a real and substantial connection. Specifically, while Sharpe J.A. discussed jurisdiction simpliciter in terms of minimum suitability:

The forum need only meet a minimum standard of suitability, under which it must be fair for the case to be heard in the province because the province is a “reasonable place for the action to take place”.

The eight factors he listed strongly resembled a forum non conveniens test:

1. The connection between the forum and the plaintiff’ss 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 extra-provincial judgment rendered on the same jurisdictional basis.
7. Whether the case is interprovincial or international in nature.
8. Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere

Compare the above with the forum non conveniens factors in s. 11 of the Court Jurisdiction and Proceedings Transfer Act:

(2) A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including

(a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum,

(b) the law to be applied to issues in the proceeding,

(c) the desirability of avoiding multiplicity of legal proceedings,

(d) the desirability of avoiding conflicting decisions in different courts,

(e) the enforcement of an eventual judgment, and

(f) the fair and efficient working of the Canadian legal system as a whole.

Nevertheless, Muscutt has been followed and cited, including by the B.C. Court of Appeal. Indeed, the Muscutt approach appears to be consistent with UniNet Technologies Inc. and Poker.com, Inc., 2005 BCCA 114, where the BCCA noted that something more may be needed to prove RaSC beyond the presumptive RaSC situations listed in s. 10 of the CJaPTA (then R. 13(1) of the Rules of Court):

[20] … the only test for jurisdiction simpliciter is, to quote this court in Marren v. Echo Bay, “whether the plaintiff has established there is a ‘real and substantial connection between the court and either the defendant or the subject-matter of the litigation’”. (Para. 10.) Indeed it was held in Marren that the application of one or more of the subrules of R. 13(1) does not even give rise to a rebuttable presumption of jurisdiction simpliciter. Huddart J.A. stated for the Court:

As I noted at para. 24 in Teja v. Rai 2002 BCCA 16 (CanLII), (2002), 97 B.C.L.R. (3d) 44, 2002 BCCA 16 (B.C.C.A.), the real and substantial connection test can be seen as including the traditional elements as relevant connecting factors, but the traditional tests are no longer determinative of jurisdiction simpliciter. They are, as La Forest J. observed at 325-6 in Hunt [v. T & N plc 1993 CanLII 43 (S.C.C.), [1993] 4 S.C.R. 289], “a good place to start.” The same can be said of the provisions of Rule 13(1).

….

[31] In my view, the cumulative weight of the connecting factors in this case between the province and the circumstances giving rise to the cause of action as pleaded is sufficient to support the conclusion that British Columbia courts have jurisdiction simpliciter, and that whether or not the case falls within any of the subrules of R. 13(1), jurisdiction should be recognized and leave granted nunc pro tunc under R. 13(3).