In this long-awaited decision, the Supreme Court of Canada (SCC) provides clarity on the "real and substantial connection" test used by courts in determining whether to assume jurisdiction over a matter. While the underlying facts and circumstances do not involve mining, the decision is of great relevance for mining companies that are engaged in business in multiple jurisdictions within Canada or around the world.
The facts were as follows: in separate cases, two Canadians were injured while on vacation in Cuba. Ms. Morgan Van Breda suffered catastrophic injuries on a beach, and Mr. Claude Charron died while scuba diving. Actions were brought in Ontario against a number of parties, including the appellant, Club Resorts Ltd. (Club Resorts), a company incorporated in the Cayman Islands that managed the two hotels where the incidents occurred.
Club Resorts sought to have the proceedings in Ontario stayed or dismissed, arguing that the Ontario courts lacked jurisdiction and, in the alternative, that a Cuban court would be a more appropriate forum on the basis of the doctrine of forum non conveniens. In both cases, the motion judges found that the Ontario courts had jurisdiction with respect to the actions against Club Resorts and that the Ontario courts were clearly a more appropriate forum. The two cases were heard together in the Ontario Court of Appeal (ONCA) and both appeals were dismissed, with the ONCA finding that Ontario courts had jurisdiction over the claims and the parties, and that Ontario courts should not decline jurisdiction on the basis of forum non conveniens. Club Resorts then appealed to the SCC. In each case, the SCC found that there was a sufficient connection between Ontario and the subject matter of the litigation to justify the Ontario courts assuming jurisdiction, and the appeals were dismissed.
In reaching its decision, the SCC attempted to create a more stable and predictable test for establishing whether there is a real and substantial connection between the action and the forum selected by the plaintiff. To satisfy the new real and substantial connection test, the burden first falls to the plaintiff to identify a presumptive connecting factor that links the subject matter of the action to the forum. The SCC identified two categories of presumptive connecting factors: "existing factors" and "new factors" that must be analyzed according to values of order, fairness and comity.
If a plaintiff succeeds in identifying a presumptive connecting factor, there is a presumption that jurisdiction exists, but that presumption is rebuttable by the party challenging jurisdiction. If a presumptive connecting factor is not rebutted, the claim may proceed, subject to the court's discretion to stay proceedings on the basis of forum non conveniens. But if a court concludes that it lacks jurisdiction because none of the presumptive connecting factors exist or because the presumption of jurisdiction has been rebutted, it must dismiss or stay the action.
A defendant who seeks to invoke the doctrine of forum non conveniens must identify another forum that is in a better position to dispose of the action fairly and efficiently. Factors relevant to this question will vary depending on the context, but may include, among others, the locations of parties and witnesses, related or parallel proceedings, and the recognition and enforcement of judgments.
This decision should be read in conjunction with the companion cases released at the same time: Breeden v. Black and Éditions Écosociété Inc. v. Banro Corp.
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