Barrister and Solicitor
Legal Writing and Research
Civil Practice - Venue - Forum Non Conveniens
Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP (SCC, 2016)
In this case the Supreme Court of Canada usefully canvasses the issues of jurisdiction simpliciter, and forum non conveniens, as they bear on determining which geographical (here, which province) venue has jurisdiction over a tort lawsuit:
 Even if the underlying facts involve another jurisdiction, a Canadian court can, if there is a sufficient connection, assume jurisdiction over a tort claim. In Van Breda, this Court identified four “presumptive connecting factors” to assist in making this determination. This appeal focuses on the fourth factor, whereby jurisdiction can be assumed if a contract connected with the dispute was made in the province where the tort claim is brought.
 The specific question in this appeal is whether the Ontario courts should assume jurisdiction over a third party claim brought by an Ontario law firm against several law firms located in Quebec in the context of a national class action.
 Before a court can assume jurisdiction over a claim, a “real and substantial connection” must be shown between the circumstances giving rise to the claim and the jurisdiction where the claim is brought: Van Breda, at paras. 22-24; Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45 (CanLII),  2 S.C.R. 427, at para. 60; Tolofson v. Jensen, 1994 CanLII 44 (SCC),  3 S.C.R. 1022, at p. 1049; Hunt v. T&N plc, 1993 CanLII 43 (SCC),  4 S.C.R. 289, at pp. 325-26 and 328; Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (SCC),  3 S.C.R. 1077, at pp. 1108-10.
 This Court’s decision in Van Breda sets out the refined and revised test for establishing the requisite connection in tort claims. Writing for a unanimous Court, LeBel J. identified four non-exhaustive presumptive connecting factors:
1. The defendant is domiciled or resident in the province; As LeBel J. noted, “[a]ll presumptive connecting factors generally point to a relationship between the subject matter of the litigation and the forum” where jurisdiction is proposed to be assumed: para. 92. The existence of this relationship makes it “reasonable to expect that the defendant would be called to answer legal proceedings in that forum”: para. 92. The burden of establishing the application of a presumptive factor in a given case lies with the party asserting jurisdiction. There is no requirement that more than one factor be shown to apply in a given case. The presumption arising from each of these factors may be rebutted by the party resisting jurisdiction by showing that there is no real relationship — or only a weak relationship — between the subject matter of the litigation and the proposed forum: paras. 95-100; Joost Blom, “New Ground Rules for Jurisdictional Disputes: The Van Breda Quartet” (2012), 53 Can. Bus. L.J. 1, at pp. 9-10 and 14.
2. The defendant carries on business in the province;
3. The tort was committed in the province; or
4. A contract connected with the dispute was made in the province.
 As Van Breda makes clear, the underlying objective of all presumptive connecting factors is to pacify the tension between flexibility and predictability, a “constant theme” in the Canadian law of jurisdiction: para. 66; Tanya J. Monestier, “(Still) a ‘Real and Substantial’ Mess: The Law of Jurisdiction in Canada” (2013), 36 Fordham Int’l L.J. 396, at p. 411.
 Under Van Breda, predictability is ensured by premising the assumption of jurisdiction on objective, factual connecting factors, giving the parties “reasonable confidence” as to whether jurisdiction will be assumed in a given case: para. 73; Monestier, at pp. 397-98 and 411.
 Flexibility is ensured by acknowledging “the need for fairness and justice to all parties engaged in litigation” when selecting and applying the presumptive connecting factors: Van Breda, at para. 75. In LeBel J.’s view, the list of presumptive connecting factors must be updated “as the needs of the system evolve”: para. 82. Van Breda did not purport to set out “a complete code of private international law”; it specifically foresaw that the principles and factors governing jurisdiction would be “developed as problems arise before the courts”: para. 68.
 The four Van Breda factors differ in the way they respectively seek to reconcile flexibility and certainty. The fourth factor promotes certainty by premising the determination of when a contract will be “made” in a given jurisdiction on the traditional rules of contract formation: see Blom, at pp. 16-17; Monestier, at p. 428; Neophytou v. Fraser (2015), 63 C.P.C. (7th) 13, at paras. 4-5; Eco-Tec Inc. v. Lu (2015), 343 O.A.C. 140, at paras. 16-17. These rules are well known, as are their exceptions, limitations and governing principles. The parties’ ability to tailor these rules and principles also ensures “reasonable confidence” as to when jurisdiction will or will not be assumed under the fourth factor. They can, in other words, determine how and where a given contract will be formed.
 The fourth factor also promotes flexibility and commercial efficiency. As seen in Van Breda, all that is required is a connection between the claim and a contract that was made in the province where jurisdiction is sought to be assumed. A “connection” does not necessarily require that an alleged tortfeasor be a party to the contract. To so narrow the fourth presumptive factor would unduly narrow the scope of Van Breda, and undermines the flexibility required in private international law.
 Flexibility in applying the fourth factor does not amount to jurisdictional overreach. Conflict rules vary from one jurisdiction to another. In Quebec, for example, under art. 3148 of the Civil Code of Québec, Quebec authorities have jurisdiction over an action in extra-contractual liability where a fault was committed in Quebec or the injury was suffered there. Nonetheless, under art. 3139, if a Quebec authority has jurisdiction to rule on the principal demand, it would also have jurisdiction to rule on an incidental demand, which could include a third party claim. In a case like the one before us — and subject to any forum non conveniens argument — if the main contract had been made in Quebec and governed by the laws of Quebec, Quebec would have jurisdiction not only over Quebec lawyers sued in the principal demand, but also over any Ontario lawyers sued by the Quebec lawyers in third party claims for any professional fault allegedly committed in Ontario by the Ontario lawyers.
 Further, the real and substantial connection test has never been concerned with showing “the strongest” possible connection between the claim and the forum where jurisdiction is sought to be assumed: Van Breda, at para. 34.
 Nor does the fact that another forum may also be connected with the dispute undermine the existence of a real and substantial connection. Van Breda expressly recognized that there will be “situations in which more than one court might claim jurisdiction”: para. 15. However, the question of whether another forum is more appropriate plays no part in the analysis for assuming jurisdiction. This issue is only relevant once jurisdiction has already been assumed, and where the defendant seeks to convince the court that the other forum is “clearly more appropriate” under the doctrine of forum non conveniens: Van Breda, at paras. 101-2.
 Because this case engages the fourth presumptive connecting factor, namely whether a contract connected with the dispute was made in Ontario, it is necessary to identify the dispute. It must then be determined whether the dispute is connected to a contract “made” in the province where jurisdiction is proposed to be assumed: Van Breda, at para. 90.
 Finding that there is a real and substantial connection does not automatically mean that a court will assume jurisdiction over a claim: Van Breda, at paras. 100-102; Breeden, at para. 22. Once jurisdiction is established, the party contesting jurisdiction may raise the doctrine of forum non conveniens, and attempt to “show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff”: Van Breda, at para. 103.
 The burden is on the defendant to demonstrate that a court of another jurisdiction has a real and substantial connection to the claim and that this alternative forum is “clearly more appropriate” than the one where jurisdiction may be assumed: Breeden, at para. 37 (emphasis in original); and Van Breda, at para. 109 (emphasis added). This threshold will be met where, based on its “characteristics”, the alternative forum “would be fairer and more efficient” for disposing of the litigation: Van Breda, at para. 109. It is not sufficient that the alternative forum merely be “comparable” to the forum where jurisdiction has been found to exist: para. 109. Forum non conveniens is not concerned only with fairness to the party contesting jurisdiction; it is also concerned with efficiency and convenience for the proceedings themselves: Van Breda, at para. 104.
 Several non-exhaustive factors were set out in Van Breda as being relevant to determining whether forum non conveniens should be applied. These may vary depending on the context, and include: the location of the parties and the witnesses; the cost of transferring the case to another jurisdiction; the cost of declining to stay the action; the possibility of conflicting judgments; and the impact of declining jurisdiction on the conduct of litigation or on related parallel proceedings: at para. 110.
 A motions judge’s discretionary decision to refuse to decline jurisdiction on the basis of forum non conveniens is entitled to considerable deference on appeal: Van Breda, at para. 112. As this Court stated in Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18 (CanLII),  1 S.C.R. 636, “an appeal court should intervene only if the motions judge erred in principle, misapprehended or failed to take account of material evidence, or reached an unreasonable decision”: para. 41. Errors of law, as well as “clear and serious error[s]” of fact may also give grounds for intervention: Van Breda, at para. 112. There were no errors in the motions judge’s conclusion here, let alone any warranting intervention.