The Supreme Court of Canada recently handed down a decision in Van Breda v. Club Resorts Ltd. 2012 SCC 17. Ms. Van Breda was rendered a paraplegic when a metal apparatus she exercising on at a Cuban resort collapsed. Her husband, Mr. Berg, had booked their trip through an Ottawa-based travel agent. A contract was entered-into between Mr. Berg and SuperClubs Cuba, confirming that he, a professional squash player, was to provide 2 hours of tennis lessons per day at the Breezes resort in exchange for bed, board and other services during their stay in Cuba.

An action was brought in Ontario against a number of defendants including Club Resorts Ltd, a company incorporated in the Cayman Islands. This defendant sought to block these proceedings arguing that Ontario courts lacked jurisdiction, and, in the alternative, that a Cuban Court would be more appropriate on the basis of the doctrine of forum non conveniens.

This decision modifies and simplifies some of the factors in the Muscutt v. Courcelles ‘real and substantial connection’ test when determining appropriate jurisdiction of an action. The non-exhaustive list of presumptive connecting factors that prima facie entitle a court to assume jurisdiction over a dispute includes: the defendant is domiciled or a resident or carries on business in the province (which requires some form of actual, not only virtual, presence in the jurisdiction); a tort was committed in the province; and/or a contract connected with the dispute was made in the province. When one of these factors apply, the court will assume jurisdiction unless the defendant can show the absence of a real and substantial connection. The presence of the plaintiff in the jurisdiction will not, in and of itself, create a presumptive relationship.

When jurisdiction is established, the defendant can still raise the issue of forum non conveniens, and the burden is on it to show that another more appropriate forum has a real and substantial connection to the subject matter. Some factors in this consideration include; the location of the parties and witnesses; the cost of transferring the case to another jurisdiction or of declining the stay; the impact of a transfer on the conduct of the litigation or on related or parallel proceedings; the possibility of conflicting judgments; problems related to the recognition and enforcement of judgments, and; the relative strengths of the connections of the two parties.

In Van Breda, the Supreme Court of Canada upheld the lower court decisions that Ontario had jurisdiction in this case due to the fact that the contract between Van Breda’s husband and Superclubs Cuba was entered into in Ontario, and the events that gave rise to the claim flowed from it. Club Resorts failed to rebut this presumption.

The Court agreed that Club Resorts did not meet the burden of showing that a Cuban court would clearly be a more appropriate forum. Although, some of the potential defendants reside in Cuba, a consideration of fairness to the parties and the efficient disposition of the claim found that a Cuban trial may pose problems with respect to witnesses, concerns about applying local procedures, increased expenses and possible loss of juridical advantage to the plaintiffs.

Howie, Sacks & Henry LLP – Personal Injury Law – Meghan M. Hull JacquinThe reasoning in this decision was similar to that of Madame Justice Conway in the decision in Eid v. Hola Sun Holidays Ltd, 2006 CarswellOnt 8583 (S.C.J.), argued successfully by Meghan Hull of Howie, Sacks & Henry LLP. For more information on these cases, please contact Meghan at mhull@hshlawyers.com.

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