A 'Real and Substantial' Mess: The Law of Jurisdiction in Canada
39 Pages Posted: 23 Apr 2008 Last revised: 20 May 2008
Date Written: 2007
In Morguard Investments Ltd. v. De Savoye, the Supreme Court of Canada established that a court could assert jurisdiction over an out-of-province defendant in cases where there was a real and substantial connection between the forum and the action. Years later, the Ontario Court of Appeal in Muscutt v. Courcelles attempted to provide guidance on the content of the real and substantial connection test by enumerating eight factors for a court to consider in deciding whether to assume jurisdiction over an ex juris defendant. Most provincial courts have enthusiastically and uncritically embraced the Muscutt approach to jurisdiction.
The author argues that the Muscutt factors have obscured what the Supreme Court intended to be the core of the jurisdictional analysis: the need for a real and substantial connection, in the sense of a link or nexus, between the action and the forum. The Court envisaged that it was through such a connection that jurisdictional determinations would achieve the policy goals of order and fairness. By superimposing considerations extraneous to the existence of a connection between the action and the forum onto the jurisdictional analysis, Muscutt has effectively transformed the question of whether a court can hear a case (jurisdiction simpliciter) into the question of whether a court should hear a case (forum non conveniens). This invites inconsistency of results and creates uncertainty for parties involved in international litigation. Even leaving aside these major structural limitations of the Muscutt framework, the author suggests that many of the individual factors themselves are problematic on both a practical and a theoretical level. She further maintains that Muscutt has unnecessarily increased the procedural complexity of jurisdictional determinations and opened the door to litigation on a new front: that of jurisdiction simpliciter.
Given the inherent limitations of the Muscutt jurisdictional analysis, the author suggests that courts should return to a pre-Muscutt approach to determining jurisdiction simpliciter. A possible model for reform can be found in the Uniform Court Jurisdiction and Proceedings Transfer Act, recently enacted in British Columbia.
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