A ‘Real and Substantial’ Improvement? Van Breda Reformulates the Law of Jurisdiction in Ontario
Annual Review of Civil Litigation, Vol. 2010, p. 185, 2010
38 Pages Posted: 10 Feb 2011 Last revised: 24 Sep 2015
Date Written: February 7, 2011
In February 2010, the Ontario Court of Appeal released the much-anticipated Van Breda v. Village Resorts Ltd. decision, which radically reformulated the real and substantial connection test for the assumption of personal jurisdiction over a defendant. Prior to Van Breda, the approach adopted in Ontario – and indeed, much of Canada – was that based on the Court of Appeal’s 2002 decision in Muscutt v. Courcelles.
This article explores whether the Ontario Court of Appeal’s decision in Van Breda represents a “real and substantial” improvement over the jurisdictional approach which prevailed under Muscutt. It examines the presumptive categories framework for the assertion of jurisdiction, the content of the re-conceptualized real and substantial connection test, the role of “analytic factors,” and the newly formulated forum of necessity doctrine. The article concludes that although Van Breda’s formulation of the jurisdictional test appears to be an improvement over Muscutt, it will take some time to see whether Van Breda’s guidance is implemented effectively by lower courts – if indeed the Van Breda formulation of jurisdiction survives scrutiny by the Supreme Court of Canada.
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