Ontario Court of Appeal “tweaks” the forum conveniens law: lawyer

The “real and substantial” test in forum non conveniens law has been modified by the Ontario Court of Appeal in Van Breda v. Village Resorts Ltd., according to David A. Bertschi, a partner at Bertschi Orth Smith LLP.
“That, from my perspective – and I would hope from your perspective – is somewhat significant, because the real and substantial connection test is tweaked,” he said at the Canadian Defence Lawyers Annual Meeting & Conference, The Alchemy of Advocacy, in Toronto.
Forum non conveniens law addresses the appropriate jurisdiction in which to hear a case. According to the law, a case must have a “real and substantial” connection to the court jurisdiction in which it is heard.
Van Breda concerns two separate incidents in which Ontarians were injured or killed while travelling in Cuba. The case relates to whether or not an Ontario court should assume jurisdiction over out-of-province defendants.
Previously, the Muscutt test – which has eight factors – was used to determine whether a case had a “real and substantial” to the court in which it is heard, Bertschi said.
The Ontario Court of Appeal has now made several clarifications and modifications to the Muscutt test, Bertschi added.
First, the court has basically dropped two of the eight factors in Muscutt.
Six of the original Muscutt factors remain in the reformulated test. However, the Appeal Court ruled they should no longer be treated as independent factors, but as general legal principles that bear upon the analysis.
Finally, the court for the first time made specific reference to Rule 17.02 of the Ontario Rules of Civil Procedure to determine whether a real and substantial connection with Ontario is presumed to exist. [This does not include sub rules (h) ‘damages sustained in Ontario’ and (o) ‘a necessary or proper party.’]
If one of the connections identified in rule 17.02 is made [with the exception of sub rules (h) and (o)], the defendant must show a real and substantial connection does not exist.
If one of those connections is not made, however, the burden falls on the plaintiff to demonstrate that the real and substantial connection test is met.