Assuming jurisdiction over a foreign defendant in Ontario

The Supreme Court of Canada’s decision in Club Resorts Ltd. v. Van Breda governsĀ  whether a court in Ontario should assume jurisdiction over a foreign defendant. The two main issues in making this determination are:

1. Does the court in Ontario have jurisdiction simpliciter over the defendant? This question turns on the following two-part test:

(a) Do any one of the four following presumptive connecting factors between the subject matter of the litigation and the Ontario forum exist?

  • Is the defendant domiciled or resident in Ontario?
  • Does the defendant carry on business in Ontario?
  • Was a tort committed in Ontario?
  • Was a contract connected with the dispute made in Ontario?

(b) If a presumptive connecting factor exists, then has the defendant rebutted the presumption by showing that the presumptive connecting factor does not point to any real relationship between the subject-matter of the litigation and the forum or points only to a weak relationship between them?

2. If a court in Ontario has jurisdiction simpliciter over the defendant , then should the court nevertheless exercise its authority under s. 106 of the Courts of Justice Act to stay the action on such terms as are considered just, if it determines that another jurisdiction is a more appropriate forum for the action?

William Poulos, Barrister

 

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