In Van Breda, the Court of Appeal agreed that after seven years, the Muscutt framework was due for a "tune-up." The Court reviewed an extensive body of judicial and academic commentary containing criticisms that the Muscutt factors —especially "fairness"— led to uncertainty, unnecessary complication and conflation of jurisdiction simpliciter with forum non conveniens. Furthermore, the court observed that there had been considerable development in other provinces through the enactment of the Uniform Law Conference of Canada’s Court Jurisdiction and Proceedings Transfer Act (CJPTA), which attempts to codify and clarify the rules for jurisdiction following Morguard and its progeny. The Van Breda Court adopted an approach modelled in part on the CJPTA. The essence of the Van Breda test may be summarized as follows:

• First, the court must decide whether the claim falls within Rule 17.02 of the Ontario Rules of Civil Procedure (which permit service ex juris without leave) to determine whether a real and substantial connection with Ontario is presumed. If one of the connections identified in Rule 17.02 is made out, the defendant bears the burden of showing that a real and substantial connection does not exist. If none of the Rule 17.02 connections are made out, the burden falls to the plaintiff to demonstrate that the real and substantial connection test is met. Rules 17.02(h) (damages sustained in Ontario) and 17.02(o) (necessary or proper party) do not have presumptive effect.
• At the second stage, the "core" of the real and substantial connection analysis rests upon the connections between: (a) Ontario and the plaintiff’s claim (e.g., whether the plaintiff suffered damages in Ontario, or entered into a contract with the defendant in Ontario); and (b) Ontario and the defendant (e.g., whether the defendant could reasonably foresee that its conduct would harm a person within Ontario, with the primary focus being upon the actions of the defendant or its agents in Ontario). The remaining considerations for jurisdiction simpliciter set out in Muscutt "should not be treated as independent factors having more or less equal weight … but as general legal principles that bear upon the analysis," in the form of "analytic tools to assist the court in assessing the significance of the connections between the forum, the claim and the defendant." In particular, the fairness of assuming or refusing jurisdiction – while not a "free-standing factor capable of trumping weak connections" – is a "necessary tool in assessing the strengths of the connections between the forum and the plaintiff’s claim and the defendant."
• The distinction between jurisdiction simpliciter (a question of law) and forum non conveniens (a question of judicial discretion) should be maintained. The forum non conveniens analysis should not be replicated in determining whether the court has jurisdiction simpliciter.

The Van Breda test has been applied by the Ontario Court of Appeal in two recent cases. In Black v. Breeden, 2010 ONCA 547, the plaintiff brought several libel actions in Ontario against a U.S. company’s directors, officers and advisors. The plaintiff alleged that the company’s website posted defamatory statements about him that were downloaded, read and published by newspapers in Ontario, damaging his reputation in that province. The court found that a presumption of a real and substantial connection arose, since the tort of defamation was committed in Ontario pursuant to Rule 17.02(g). The court clarified that the core sub-test for a connection between Ontario and the plaintiff’s claim should focus only upon ties that are relevant to the claim, or to the subject matter of the suit (and not upon ties between Ontario and the plaintiff in the abstract, such as whether the plaintiff is an Ontario resident). Since the plaintiff’s claim in Black alleged publication in Ontario, and damage to his reputation in Ontario, there was a significant connection between Ontario and the claim, even though the plaintiff was not resident in Ontario. This, coupled with the connection between Ontario and the defendants (arising from the fact that the statements were directed towards the Ontario media), supported the presumption of a real and substantial connection. The court also placed great emphasis upon considerations of fairness, treating this as the most important of the "analytical tools" from Muscutt. In the court’s view, it would be unfair to deprive the plaintiff of a trial in the community where his reputation was damaged, and fair to require that the defendants defend in the place where both the tort and the damages occurred.

Subsequently, in Dilkas v. Red Seal Tours Inc. (Sunwing Vacations), 2010 ONCA 634, the Ontario Court of Appeal applied the Van Breda test to a claim arising out of a bus accident occurring in Mexico. The claim was brought by Ontario tourists against a Mexican defendant (Best Day), who had subcontracted the bus service to a non-party, pursuant to a contract between the defendant and another defendant that had served as the plaintiffs’ Ontario tourist agency (Sunwing). The court relied upon contracts between Best Day and these parties in finding that there was a real and substantial connection. The contracts included: (1) a bus transportation contract between Best Day and Sunwing, entered into before the accident, which contained an Ontario choice of law clause; and (2) indemnity agreements among the parties entered into after the accident, which contained Ontario choice of law and forum selection clauses. In rejecting Best Day’s motion to dismiss the claim, the court found that these agreements amounted to an acknowledgment by Best Day that it expected claims arising out of the accident could be brought in Ontario, even though the plaintiffs were not party to any of them. Further, the Court observed that Best Day had agreed to litigate in Ontario against Sunwing, an essential party to the action. Because Sunwing had brought a cross-claim against Best Day seeking indemnity, Best Day would be brought into the action as a third party in any event. The court appeared to regard these factors as determinative with respect to the jurisdiction simpliciter inquiry, even though there was no presumption of a real and substantial connection under Rule 17.02. The court also noted that it would not be "unfair" for Best Day to defend against the plaintiffs in Ontario in light of the agreements.

Please note that, as of the date of this publication, the Supreme Court of Canada has granted leave to appeal in Black v. Breeden.

McCarthy Tétrault Notes

• In the wake of Van Breda, Black and Dilkas, the test for jurisdiction simpliciter in Ontario involves a two-part inquiry that must be kept distinct from the subsequent forum non conveniens test. The first part requires the court to determine whether the claim falls within Rule 17.02, in which case a rebuttable presumption of a real and substantial connection will arise (and failing which the plaintiff bears the onus of establishing jurisdiction simpliciter). The second part requires the court to assess the connections between: (a) Ontario and the plaintiff’s claim; and (b) Ontario and the defendant. The remaining considerations from Muscutt should not be considered as independent factors, but as analytical tools used to assist the court in assessing the significance of the connections between Ontario, the claim and the defendant. The most important "tool" appears to be the "fairness" of the Ontario court’s decision to assert jurisdiction.
• In assessing the connection between Ontario and the plaintiff’s claim, the court should focus only upon ties that are relevant to the plaintiff’s claim, or to the subject matter of the suit (e.g., whether the plaintiff suffered damages in Ontario, entered into a contract with the defendant in Ontario, or sued another party who brought a cross-claim against the defendant over which the Ontario courts had jurisdiction), and not upon ties between the plaintiff and Ontario in the abstract (e.g., whether the plaintiff is an Ontario resident). In assessing the connection between Ontario and the defendant, the primary focus is on things done by the defendant or its agents within the forum. However, other matters may also be relevant (e.g., whether the defendant released a product or statement that it could reasonably foresee would injure a person in Ontario, or entered into a contract with a third party disclosing an expectation that the plaintiff’s claim would be brought in Ontario).
• The Van Breda test clarifies the test for jurisdiction and is a welcome improvement over Muscutt. The focus on connections between Ontario the plaintiff’s claimi.e. and Ontario and the defendant’s claim should simplify jurisdiction simpliciter and avoid duplication of analysis at the forum non conveniens stage. The move to a category-based approach under Rule 17.02 will also go some way towards assisting litigants and courts in identifying the types of situations in which a real and substantial connection will be satisfied. However, the fact that the Rule 17.02 presumptions are rebuttable and non-exhaustive will require courts to consider whether there is a "real and substantial connection" in all the circumstances of each case, such that the inquiry will remain in large part discretionary. Furthermore, despite the de-emphasis of the peripheral Muscutt factors, Van Breda, Black and Dilkas suggest that the inherently unpredictable notion of "fairness" continues to play a key role in the analysis of jurisdiction simpliciter. Accordingly, despite the Van Breda "tune-up," a considerable degree of uncertainty will remain in the law of jurisdiction simpliciter unless and until the Supreme Court of Canada performs a total overhaul of the "deliberately general" concept of a real and substantial connection.