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Private International Law - Jurisdiction Simpliciter (2). Sinclair v. Venezia Turismo
In Sinclair v. Venezia Turismo (SCC, 2025) the Supreme Court of Canada dismissed an appeal, this from an Ontario Court of Appeal ruling that held that an Ontario lawsuit relating to a tort case largely centred in Italy was out of the Ontario court's jurisdiction.
Here the court comments on jurisdiction simpliciter:[1] This appeal requires an application of the two‑stage test for establishing jurisdiction simpliciter set out in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572. The foundation of any legitimate assumption of jurisdiction is a real and substantial connection between the forum and the dispute. More specifically, this appeal is about whether the fourth presumptive connecting factor identified in Van Breda — “a contract connected with the dispute was made in the province” (para. 90) — has been established or, in other words, whether there is a contractual connection with the province, and, if so, whether the presumption of jurisdiction has been rebutted.
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[7] In cases where parties seek to establish jurisdiction simpliciter in a Canadian forum over a foreign dispute, it is critical that they plead with precision and that courts engage in robust reasoning, which includes a thorough review of the contract being relied upon for the assumption of jurisdiction. Courts should be cautious and not accept tenuous forms of real and substantial connection in the jurisdiction simpliciter context. In cases where there are multiple relevant contracts, courts should analyze each contract, as opposed to relying merely on a vague “constellation of contracts”, which in the present context means a number of related contracts. If the presumptive connecting factor is established, it is for the defendant to assert a rebuttal. The defendant can do so by showing that the presumptive connecting factor does not point to any real relationship between the subject matter of the dispute and the contract made in the province or merely indicates a weak relationship between them. . Sinclair v. Venezia Turismo [ESSENTIAL]
In Sinclair v. Venezia Turismo (SCC, 2025) the Supreme Court of Canada dismissed an appeal, this from an Ontario Court of Appeal ruling that held that an Ontario lawsuit relating to a tort case largely centred in Italy was out of the Ontario court's jurisdiction.
Here the court distinguishes between the essential PRIL concepts of 'jurisdiction simpliciter' and 'forum non conveniens':(3) Distinguishing Between Jurisdiction Simpliciter and Forum Non Conveniens
[77] Before turning to the application of the two stages of the Van Breda test in the instant case, it is important to recall that both of these stages, which together make up the test for jurisdiction simpliciter, are analytically distinct from the issue of forum non conveniens. The issue of forum non conveniens is not before our Court in this appeal, but it nonetheless bears recalling the distinction between the two doctrines.
[78] Forum non conveniens is a common law doctrine that allows a court to stay a civil action when the court has jurisdiction over the case and the parties. In other words, this doctrine operates only once jurisdiction has already been assumed. Forum non conveniens is a discretionary remedy which allows a court properly seized with jurisdiction to decline to exercise it. This remedy is adopted on occasions where an alternative appropriate forum would be a more convenient venue in which to try the action. As a doctrine, it has no bearing on the jurisdictional analysis itself, as it comes into play only after jurisdiction has been established (Van Breda, at para. 102).
[79] As explained by our Court in Van Breda, the doctrine of forum non conveniens “tempers the consequences of a strict application of the rules governing the assumption of jurisdiction” (para. 104). This purpose is grounded in recognition of the fact that the assumption of jurisdiction is based on objective factual connections, which could at times produce rigid or inflexible results that fail to consider the actual circumstances of the parties. As such, the doctrine of forum non conveniens recognizes the residual discretion of courts to decline to exercise their jurisdiction (once established) where fairness to the parties and the efficient resolution of the dispute so require (Van Breda, at para. 104).
[80] Jurisdiction simpliciter is not discretionary. This is a key distinction with the doctrine of forum non conveniens. Jurisdiction is assumed on the basis of objective factors. If the assumption of jurisdiction results in unfairness or inefficiency, a party can seek to move the matter to a different forum. In this way, forum non conveniens can be relied upon to address the case‑specific, subjective interests of the parties, but it does not bear on the assumption of jurisdiction itself. The two frameworks should not be confused nor conflated.
[81] Some potential confusion regarding the distinction between jurisdiction simpliciter and forum non conveniens stems from the fact that the jurisdiction simpliciter analysis, as formulated by this Court in Van Breda, itself has two stages: (1) whether there is a presumptive connecting factor; and (2) whether the presumption of jurisdiction can be rebutted. Just as the two stages of the Van Breda test must not be collapsed, special care must be taken not to collapse the rebuttal stage into the distinct doctrine of forum non conveniens. In oral argument, counsel for the British Columbia Chamber of Commerce submitted that the rebuttal stage of the presumptive factor analysis is “concerned with legitimacy and [an assessment of] the strength of the [contractual] connection [to the tort in question], whereas forum non conveniens is concerned with the interests of the parties and the ends of justice” (transcript, at p. 86). I agree with this submission. . 778938 Ontario Limited v. EllisDon Corporation
In 778938 Ontario Limited v. EllisDon Corporation (Ont CA, 2023) the Court of Appeal allowed a venue appeal, here between Ontario and Nova Scotia, even though the Ontario court had 'jurisdiction simpliciter'. The case is also notable for considering venue, jurisdiction simplicter and forum non conveniens in an inter-provincial context, not an international one.
In this quote the court considers jurisdiction simpliciter:(i) Jurisdiction simpliciter
[12] EllisDon did not seriously challenge that jurisdiction simpliciter is established in this case by the presence of one or more of the presumptive connecting factors that underlie the real and substantial connection test articulated by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, at paras. 82, 90.[1] EllisDon conceded that the parties are headquartered, domiciled and carry on business in Ontario. This is not the case of an out-of-town defendant.
[13] However, EllisDon argues that this jurisdiction is presumptive, and is rebutted because there is a very weak connection between the subject matter of the action and Ontario.
[14] We reject EllisDon’s argument for the following reasons.
[15] We are not persuaded that EllisDon has demonstrated that there is such a weak relationship between the forum and the subject-matter of the litigation that the proposed assumption of jurisdiction would be inappropriate: Van Breda, at paras. 81, 97.
[16] In our view, assumed jurisdiction is clearly made out here by the real and substantial connection between the subject matter of the action and the forum. In addition to the presence of the parties in Ontario, there are other connecting factors. The contract was negotiated by the parties in Ontario and signed in Ontario by The Roy, at its headquarters in Ontario. There is no evidence as to where EllisDon signed the contract other than that the signatory was an employee resident in Nova Scotia who had come to Ontario during the contract negotiations. However, there is no issue that EllisDon is an Ontario registered corporation. It is therefore a fair inference that, regardless of who actually signed the contract, the corporate decision to enter into the contract was made by its corporate decision-makers located in EllisDon’s head office in Ontario. Moreover, the respondents’ unchallenged evidence is that in addition to EllisDon’s personnel in Halifax, consultants from EllisDon located in Ontario worked on the project, and the overall supervision of the project was by upper management of EllisDon located in Ontario. As a result, the alleged breach of contract and negligent supervision are asserted to have taken place in Ontario, as well as in Halifax.
[17] Accordingly, we agree with the motion judge’s conclusion that the Ontario court “has clear jurisdiction.”
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