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PRIL - 'Real and Substantial Connection'
MORE CASES
Part 2
. Sinclair v. Venezia Turismo [local contract]
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 considers the fourth connecting factor to establish a presumption of 'real and substantial connection' - ie. 'a contract connected with the dispute was made in the province', and whether the presumption has been rebutted:(a) Stage One: Was a Contract Connected With the Dispute Made in the Province?
[52] The first stage of the analysis is to determine whether a contract “connected with the dispute” was made in the province (Van Breda, at para. 90).
[53] I agree with my colleague in dissent that the existence of a presumptive connecting factor between the subject matter of the litigation and the forum is key to this first stage of the inquiry (para. 204). My colleague is also of the view that the first step a court should take on a motion challenging jurisdiction is to examine what he calls the “nucleus of the claim” (para. 213; see also para. 240). This step is not drawn from Van Breda but rather finds its roots in Lapointe, at paras. 37‑38, where Abella J. held that “[t]he first step is identifying the dispute” and proceeded to offer two sentences to describe the “nucleus of the claim”. In essence, she briefly set out the dispute before engaging in further analysis. I agree that identifying the dispute is important, as this will necessarily serve as the backdrop for the analysis, but I do not agree that Abella J.’s reasons can be read as requiring the identification of the “nucleus of the claim” as an additional “step”. Rather, it is important that a court’s reasons set out the dispute and demonstrate an understanding of the nature of the claim, as I am doing in these reasons.
[54] Establishing the existence of a contract formed in the relevant jurisdiction is a precondition for the rest of the analysis. It is a critical step and must not be glossed over. A contract is a legal construction and must be established by reference to legal principles. Except in cases where the existence of the Ontario contract is obvious and undisputed, it is incumbent on parties seeking to rely on the fourth presumptive factor to plead the facts necessary to make out the essential elements of a contract — namely, offer, acceptance, and consideration (see Lapointe, at paras. 40‑42). Merely a general sense that a contractual relationship exists is insufficient. A failure to plead with sufficient particularity the existence of a contract will necessarily foreclose a finding of a real and substantial connection on the basis of that contract. However, pleading the essential elements of a contract connected with the dispute does not require the plaintiff to plead breach of contract. As with the third‑party claims in Lapointe, the statement of claim can be founded entirely in tort.
[55] If a party pleads a connection on the basis of multiple contracts, the court should assess each contract to determine if it can support a connection between the forum and the dispute. Parties should not take this as an invitation to plead on the basis of a vague “constellation of contracts”. Multiple contracts that are each, on their own, insufficient to support the establishment of jurisdiction cannot, together, be taken to ground a real and substantial connection. The question has always been whether there is a contract formed in the relevant forum that is connected with the dispute. Without such, there is no pathway to establishing the real and substantial connection between the forum and the dispute, which animated LeBel J. in Van Breda.
[56] In many if not most cases, it will be unnecessary for courts to undertake a formal contractual analysis to determine whether a contract exists and where it was formed. Typically, the existence and features of a contract will be obvious from the pleadings (see Van Breda and Lapointe). In other instances, however, it will not be immediately apparent from the pleadings whether a contract exists, who the parties to that contract are, and where the contract was formed. It is imperative that a court sort out any ambiguity in these details before conducting the rest of the analysis because these details will inform the assessment of the strength of the connection based on the contract.
[57] On the subject of pleadings, I agree with my colleague in dissent that pleadings, in the absence of contradictory evidence, may be accepted for their factual assertions, as I do throughout these reasons. But they cannot be accepted for bare legal propositions or conclusions (Abaxx Technologies Inc. v. Pasig and Hudson Private Ltd., 2024 ONCA 164, at para. 17).
[58] Once the court is satisfied that there is indeed a contract that was formed in the relevant forum, the next question is whether that contract is “connected with the dispute”. Our Court’s decision in Lapointe applied Van Breda’s fourth presumptive connecting factor, holding that a contract formed in the relevant forum will be connected with the dispute if “a defendant’s conduct brings him or her within the scope of the contractual relationship and [if] the events that give rise to the claim flow from the relationship created by the contract” (Lapointe, at para. 44; see also Van Breda, at paras. 116‑17). A tortfeasor need not be a party to the contract nor have his or her liability flow immediately from his or her contractual obligations (Lapointe, at para. 32).
[59] Establishing this presumptive connecting factor is an objectively ascertainable and relatively low bar (Haaretz.com v. Goldhar, 2018 SCC 28, [2018] 2 S.C.R. 3, at para. 30). My colleague refers to Ontario case law that links — without explanation — our Court’s guidance respecting the threshold to establish jurisdiction simpliciter with the “good arguable case” standard that has emerged within Ontario’s jurisprudence. Despite the fact that the motion judge applied the “good arguable case” standard at first instance in Van Breda, it did not form part of the Court of Appeal’s judgment, nor did it factor into our Court’s seminal reasons in that case. “Good arguable case” is also absent from Lapointe, Haaretz.com, and the respective decisions below in those cases. Similarly, in the instant case, while the motion judge applied the “good arguable case” standard (at paras. 29‑31), neither the majority nor the concurring reasons of the Court of Appeal engage with it. More importantly, as my colleague himself acknowledges, the parties have not raised a question as to whether the standard of the “good arguable case” should apply within the Van Breda framework (para. 229). This is, quite evidently, not the appropriate case to pronounce on the applicability of this standard.
[60] Contrary to my colleague’s assertion, whether the “good arguable case” standard applies to jurisdiction simpliciter is far from being settled. My colleague relies on S. G. A. Pitel, Conflict of Laws (3rd ed. 2025), at pp. 114‑15, for the proposition that invoking the “good arguable case” standard is the “orthodox approach” on a jurisdiction simpliciter motion (Jamal J.’s reasons, at para. 228). However, what Pitel merely states is that where there is a factual contradiction between the plaintiff’s and the defendant’s pleadings, the plaintiff must show a good arguable case that its view of the facts will prevail. It is noteworthy that Pitel goes on to reject emphatically the application of the “good arguable case” standard to the legal question of whether a presumptive connecting factor has been established:It is important to appreciate the specific context in which the lower, good arguable case standard is being used. This should not be conflated with the broader issue of whether the court has jurisdiction simpliciter. An example of this error can be seen in cases that require the plaintiff to show a good arguable case that a presumptive connecting factor has been established at common law or that there is a real and substantial connection under the [Court Jurisdiction and Proceedings Transfer Act]. To take jurisdiction, the court should at least have to consider that the plaintiff’s side of the argument on the issue is stronger than the defendant’s. After all, for the other bases of jurisdiction, it needs to be more than just arguable that the defendant was present or resident in the forum or has attorned. [Emphasis added; footnote omitted; p. 115.] [61] Using mere “arguability” as the standard would mean that courts could assume jurisdiction even where the plaintiff’s case in favour of jurisdiction, though arguable, is plainly weaker than the defendant’s case against jurisdiction. This standard would make sense, for instance, in the context of a motion for interlocutory relief. By contrast, using the standard of “arguability” to actually decide an issue that is totally different in terms of its finality — one as fundamental as jurisdiction simpliciter — would raise serious concerns respecting the legitimacy of judicial authority that would require real examination.
[62] With great respect, my colleague’s venture to justify the “good arguable case” standard in the context of jurisdiction simpliciter, including his reliance on a cluster of Ontario cases that do not grapple with the propriety of its rationale, only highlights the need for proper submissions on the issue. For the purposes of this appeal, where the parties did not raise the issue and were not on notice that it would be adjudicated upon — suffice it to say that the standard for establishing a presumptive factor is low.
[63] In cases where there are multiple defendants, jurisdiction should be examined from the perspective of each defendant rather than in light of the factual and legal situation writ large. The reason for examining jurisdiction from the perspective of each defendant is that, when a court takes jurisdiction over a claim, it assumes the authority not only to adjudicate the claim but also to make orders against each defendant. For this power to be exercised legitimately, the court must be satisfied that the requisite connection exists in respect of each defendant who may be subject to that power. An assumption of jurisdiction without the requisite connection amounts to judicial overreach. As such, there should be no “bootstrapping”, where the legitimate establishment of jurisdiction over one defendant is taken uncritically to imply jurisdiction over all defendants. This includes cases where, as here, one defendant attorns to the court’s jurisdiction but the others resist it. There must be a presumptive connecting factor that applies to each defendant.
[64] Despite my colleague’s statement that I am applying a “narrow interpretation” of the fourth presumptive connecting factor, I say with certainty that this is not the case (see Jamal J.’s reasons, at para. 250). Rather, I am offering thorough and principled reasons by faithfully applying Van Breda and drawing on the application of that case by the majority in Lapointe. I must also add that I agree with the concurring judge’s statement, at para. 49 of her reasons, that “the more broadly one approaches the question of the existence of a presumptive connecting factor, the more relevant is the question of what should be considered at the rebuttal stage”.
[65] If stage one is satisfied, a court has presumptive jurisdiction and can proceed on that basis. The defendant bears the onus of asserting a rebuttal argument.
(b) Stage Two: Has the Presumption of Jurisdiction Been Sufficiently Rebutted?
[66] At this stage, the onus shifts to the defendant challenging jurisdiction, who must prove that the strength of the contract’s connection with the forum, the subject matter of the dispute, and the defendant is non‑existent or weak (Van Breda, at paras. 81, 92 and 95‑97; Lapointe, at para. 27; Haaretz.com, at para. 40). This stage tests the strength, as opposed to the existence, of the connection between the contract and the forum, the subject matter of the dispute, and the defendant.
[67] First, the contract’s relationship to the forum and the subject matter of the dispute can be assessed with regard to factors such as contract formation, how and where the contract contemplated performance, the situs of the tort, and the location of the parties. These considerations will allow a court to gauge the strength of the connection between the underlying contract on which the plaintiff relies to ground jurisdiction and the forum in which jurisdiction has been presumptively assumed.
[68] While the details of contract formation are critical to establishing the existence of a connection at the first stage, they, too, can be relevant to analyzing the strength of that connection at the rebuttal stage as well. For instance, if a contract was formed in a forum for little more than technical reasons and its subject matter and terms pertain entirely to another jurisdiction, the relationship between the contract and the forum may be said to be weak. Conversely, a contract that is meaningfully tied to the forum in which it was formed will provide a stronger basis for that forum’s assumption of jurisdiction.
[69] The connection between the contract and the subject matter of the dispute will similarly depend on the specific terms of the contract. Where the dispute flows directly from the obligations set out in the contract, as in Van Breda, the relationship between the contract and the dispute will be strong. By contrast, if the contract is connected with the dispute only remotely through a chain of contracts formed in other jurisdictions, or if the contract does not instruct or govern the defendant in a capacity relevant to the dispute, the contract may be said to bear a weaker relationship with the dispute.
[70] Another factor relevant to the degree of connection between the contract and the subject matter of the dispute is whether the court would need to interpret or adjudicate the contract to decide the dispute. I agree with the Sinclairs that where the contract is merely peripheral or adds context to the dispute but does not itself bear on whether or why the defendant’s conduct was tortious, the relationship may be seen to be weak (A.F., at para. 107).
[71] Second, the presumption of jurisdiction may be rebutted as against a defendant if there is no connection or only a weak connection between the contract and that defendant. If a contract bears only a remote connection to any particular defendant, that contract cannot be said to support the legitimate exercise of judicial authority over that defendant. It may be useful for a court, in asking this question, to consider whether the defendant would have reasonably expected to be subject to the forum’s jurisdiction for reasons relating to the contract.
[72] My colleague states that “the rebuttal test does not inquire into the defendant’s reasonable expectations; instead, the legal consequence of rebutting a presumptive connecting factor is that it is unreasonable to expect the defendant to be called to answer proceedings in the forum” (para. 218 (emphasis in original)). With respect, I find this distinction formalistic. Asking about the defendant’s reasonable (that is, objective) expectations is simply another way of thinking about whether the defendant is meaningfully connected to the forum. I see no reason why courts should not be able to invoke this line of thought when it is useful. Nor do I find this to be prevented, as my colleague in dissent does (at paras. 205 and 218), by the fact that, in Van Breda, LeBel J. cited La Forest J.’s caution from Tolofson against constructing a system of law based on the expectations of the parties. LeBel J. cited that passage in his overview of the origins of the real and substantial connection test and, despite doing so, went on later in his reasons to hold that the reasonable expectations of the defendant are a legitimate factor to consider at the rebuttal stage.
[73] The factors set out above are merely examples of factors that may be relevant to whether the defendant has rebutted the presumption of jurisdiction. The analysis is case‑specific, contextual, and always ultimately concerned with whether the contract does or does not, in substance, ground a real and substantial connection between Ontario and the dispute. In other words, care must be taken not to lose sight of the forest for the trees.
[74] The Sinclairs, relying on Ewert v. Höegh Autoliners AS, 2020 BCCA 181, 38 B.C.L.R. (6th) 99, and Giustra v. Twitter, Inc., 2021 BCCA 466, 59 B.C.L.R. (6th) 55, argue that the rebuttal stage imposes a “heavy” burden on the defendant (A.F., at para. 95). I disagree. As the intervener the British Columbia Chamber of Commerce puts it, “[t]he rebuttal stage of the Van Breda framework involves a shift in burden and perspective, not a shift in difficulty” (I.F., at para. 18 (emphasis deleted)). This observation highlights the fact that the two stages of the test work in tandem with an ultimate view to establishing whether there is a real and substantial connection.
[75] In the same vein, the rebuttal analysis must be sensitive to the approach taken at the first stage. In the court below, the concurring judge stated that our Court has “taken an increasingly functional approach to the question of whether there is a contract ‘connected to’ the dispute” (para. 49). I agree with her that “the more broadly one approaches the question of the existence of a presumptive connecting factor, the more relevant is the question of what should be considered at the rebuttal stage” (para. 49). Again, the two stages are complementary, both aimed at ensuring that there is a real and substantial connection between the forum and the dispute.
[76] There has been some academic commentary observing that courts do not reliably address the rebuttal stage but instead focus exclusively on the first stage of the Van Breda test (Pitel, at pp. 107‑9). It is important that parties plead with sufficient precision to make their positions on each stage of the test clear and that courts offer responsive reasons that address all of the relevant arguments. I hope that the guidance set out in these reasons will facilitate the ability of litigants and courts to do so.
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(1) Stage One: Was a Contract Connected With the Dispute Made in the Province?
[82] I turn now to the application of the Van Breda test to the facts of this case. While my colleague is correct to note that both Amex Canada and Carey International have attorned to Ontario’s jurisdiction (at paras. 148, 167 and 172), I disagree that this attornment can be used to “establis[h] a presumption that the Ontario court has jurisdiction over the claims against the Italian defendants” (para. 152).
[83] The first step in applying the fourth presumptive factor is to identify the contract, or all contracts, that could potentially be relevant. I stress again that the exercise of identifying contracts requires specificity; merely a general sense that a contractual relationship arose is not enough. Nor is it sufficient for the plaintiff to show that some sort of non‑contractual agreement was reached. This means that a court must be satisfied that offer, acceptance, and consideration — the necessary ingredients of a contract — were present before concluding that a particular contract exists. Again, courts should consider each relevant contract as opposed to more broadly considering the combined effect of a “constellation of contracts”.
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[136] If the fact that Mr. Sinclair made a reservation through his Amex Canada agent were enough to establish a connection with Ontario, it would follow that any travel reservation made using a credit card travel service would provide a sufficient basis for Ontario to assume jurisdiction over foreign disputes based on torts. This would “impose a heavy burden that is difficult to justify” (Cormier v. Greyhound Canada Transportation ULC, 2018 ONSC 5600, at para. 27, quoting Sinclair v. Cracker Barrel Old Country Store, Inc. (2002), 2002 CanLII 44955 (ON CA), 60 O.R. (3d) 76 (C.A.), at para. 21). Service providers in tourist industries spanning the globe would have no way of knowing if and when they could be hauled before an Ontario court simply because, unbeknownst to them, one of their clients had arranged for their services using an Ontario credit card. This would amount to precisely the picture of unfairness, unpredictability, and jurisdictional overreach that LeBel J. sought to circumvent in Van Breda through his emphasis on a real and substantial connection.
[137] In Van Breda, Mr. Berg had entered into a contract whereby Club Resorts Ltd. was to provide him and his wife, Ms. Van Breda, with room and board at a resort in Cuba and, in exchange, Mr. Berg was to provide tennis lessons to the resort’s guests. Ms. Van Breda suffered catastrophic injuries while exercising at the resort in Cuba. She and Mr. Berg sued in both contract and tort. In the instant case, by contrast, the Centurion Cardmember Agreement merely contemplated the provision of travel agent services in general. It did not dictate the location or nature of travel for cardmembers, nor did Amex Canada have any particular relationship with Italy as Club Resorts did with Cuba. By comparison with the contract in Van Breda, it is clear that the connection between the Centurion Cardmember Agreement and this dispute is weak, to say the least.
[138] This weak connection is compounded when considered in light of this Court’s holding in Lapointe. In that case, wind‑down agreements between General Motors of Canada Ltd. and a number of its dealerships across the country contained a clause requiring each dealer to obtain independent legal advice before the agreements could be executed. A slew of dealers later started a national class action and alleged that they had received negligent legal advice. Firms inside and outside of Ontario were implicated, and when several Quebec law firms challenged Ontario’s jurisdiction over the claims against them, our Court affirmed the jurisdiction because the contract in that case clearly contemplated the involvement of third-party lawyers, despite the Quebec law firms not being parties to the wind‑down agreements. My colleague holds, albeit in relation to the first stage, that the “relevant circumstances allowing a court to assume jurisdiction based on a connected contract will vary with the contract” (para. 215(4) (emphasis added)). I certainly agree with him. Indeed, in Lapointe, the source of liability for the Quebec law firms — the independent legal advice they provided — was far closer to the main contract than in the instant case, where the source of liability is a water taxi ride not even contemplated at the time of the Sinclairs’ original Italian travel booking. This, again, indicates a weak connection between the Centurion Cardmember Agreement and this dispute.
[139] Weaker yet is the connection between the contract and the Italian defendants. Unlike in Van Breda, where the defendant was a party to the Ontario contract, the Italian defendants were not parties to the Centurion Cardmember Agreement and were not informed that Mr. Sinclair had used an Amex Canada agent to make a reservation. In fact, they had no relationship with Amex Canada, and it is unclear if they had any connection at all to Carey International, whose connection with Amex Canada is itself unclear. The Italian defendants provide water taxi services in a heavily trafficked tourist destination to travelers from across the globe, many of whom arrange for their travels using credit cards. It cannot be said that, simply by virtue of working with tourists, the Italian defendants must be prepared to answer legal proceedings in far‑flung jurisdictions. Again, this result would distort the imperative of a meaningful connection grounding the legitimate assumption of jurisdiction.
[140] The rebuttal stage is a critical component of the Van Breda test, given that it tests the strength of the real and substantial connection. It is for this reason that courts should not overlook it. My colleague in dissent says the factors I rely on, as does a unanimous Court of Appeal, to weigh the strength of the connection at the rebuttal stage are “irrelevant” (Jamal J.’s reasons, at para. 273; see also para. 283). I obviously do not agree. My colleague also disagrees with the Court of Appeal’s unanimous view that the motion judge erred in failing to consider the rebuttal stage (C.A. reasons, at paras. 32 and 81). He appears to take the position that the motion judge’s passing reference to the defendant’s ability to rebut the presumption is sufficient to show that she considered the issue, and that her failure to elaborate implies that she concluded that the burden was not discharged. With respect, it is not sufficient for a motion judge to merely state the law, but fail to engage with it.
[141] In sum, accepting that the Centurion Cardmember Agreement is an Ontario contract, the inescapable conclusion is that its connection to this dispute is weak, if not non‑existent. To hold otherwise would be to vastly expand the ability of Ontario to assume jurisdiction on the basis of simple credit card transactions made by Ontarians while travelling around the world. This would not be in keeping with the spirit of order and fairness that animated LeBel J. in Van Breda. As such, I find that the presumption has been successfully rebutted. At paras 82-129 the court applies the facts to the first part (whether the contracts are a connecting factor) of the Van Breda 'jurisdiction simpliciter' test, and at paras 130-142 to the second part (rebuttal).
. Shirodkar v. Coinbase Global, Inc.
In Shirodkar v. Coinbase Global, Inc. (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from a class action motion order finding that Ireland was the "preferable forum for the adjudication of the appellant’s claims".
The court considered the Van Breda test, here regarding 'real and substantial connection':(2) The motion judge did not err in declining to assume jurisdiction over the non-Canadian respondents based on the “real and substantial connection” test
[46] The Van Breda framework requires the court to review factors that arguably connect the subject matter of the litigation to the forum. Once established, a connecting factor gives rise to a presumption of jurisdiction. To rebut this presumption, the defendant “must establish facts which demonstrate 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”: Van Breda, at para. 95. If the presumption is rebutted, the action should be stayed or dismissed: Van Breda, at paras. 97, 100.
(a) The motion judge’s analysis of the Van Breda factors
[47] The appellant relied on two presumptive connecting factors. He argued that the respondents carried on business in Ontario and that they committed a statutory tort in Ontario by failing to comply with s. 71(1) of the Securities Act.
[48] Relying on findings made in her analysis of presence-based jurisdiction, the motion judge found that none of the non-Canadian respondents was carrying on business in Ontario.
[49] Reviewing the elements of the statutory tort alleged in the statement of claim, she found that:. The appellant’s purchase of the alleged securities took place in Ireland through Coinbase Europe;
. The contractual relationship between the appellant and Coinbase Europe was formed in Ireland;
. The steps to accept, execute, and fulfill the appellant’s trades in digital assets on the Coinbase platform occurred outside of Ontario;
. The physical server infrastructure used to operate the Coinbase platform is located outside of Ontario;
. The appellant accessed the Coinbase platform to execute trades in digital assets from his home computer in France and later from his home computer in Ontario; and
. The appellant allegedly suffered damages in Ontario. [50] The motion judge noted that, at para. 89 of Van Breda, the Supreme Court held that an allegation that a plaintiff has suffered damages in Ontario does not constitute a presumptive connecting factor. This left the appellant’s accessing of the Coinbase platform from Ontario as the sole presumptive connecting factor. The motion judge found that the respondents had rebutted the presumption arising from this weak connection, reasoning that:If the [appellant]’s choice to use his home computer in Ontario to conduct trades on the Coinbase Platform were sufficient to ground jurisdiction, every jurisdiction in the world where anyone purchased digital assets on the Coinbase Platform would also have jurisdiction. This universal jurisdiction is exactly what our courts have cautioned against. [Citations omitted.] [51] The motion judge concluded that, “viewed practically, it would not be reasonable for the [respondents] to expect that they would be called to answer proceedings in Ontario in the circumstances where almost every element of the alleged tort occurred outside Ontario and only a relatively minor element of the tort occurred in Ontario”.
[52] The motion judge rejected the appellant’s argument that Ontario should assume jurisdiction over the non-Canadian respondents based on the impact of Coinbase’s activities in this province. The appellant relied on evidence that the Coinbase trading platform is popular in Canada and that Canadian securities regulators have taken steps to regulate crypto-trading platforms. The motion judge found that this evidence fell short of establishing that Ontario is substantially affected by the conduct of the non-Canadian respondents.
(b) The motion judge did not commit an error in principle or palpable and overriding error in applying the Van Breda test
[53] The appellant has not persuaded me that the motion judge erred in applying Van Breda.
[54] It was open to the motion judge to find that the non-Canadian respondents did not carry on business in Ontario, and that the only element of the statutory tort alleged by the appellant besides his damages was his access to the Coinbase platform from his home computer in Ontario. It was likewise open to her to find that access to a global internet platform from Canada is, at best, a weak presumptive connecting factor, which the respondents had rebutted. Although the activity in question is somewhat different in this case, her conclusion on the latter point is consistent with the principles articulated in Yip v. HSBC Holdings plc, 2017 ONSC 5332, at para. 211, aff’d 2018 ONCA 626, 141 O.R. (3d) 641, at paras. 45-50, leave to appeal refused, [2018] S.C.C.A. No. 410.
[55] The appellant argues that Sharp v. Autorité des marchés financiers, 2023 SCC 29, 487 D.L.R. (4th) 467, establishes that provincial securities legislation applies to foreign defendants whose cross-border conduct adversely affects domestic investors and capital markets, and that this links the subject-matter of his action to Ontario. This argument confuses adjudicative and legislative jurisdiction. In Sharp, the question was whether the Quebec Securities Act, C.Q.L.R., c. V-1.1, applied extra-territorially (legislative jurisdiction), not whether Quebec courts had jurisdiction over the defendant (adjudicatory jurisdiction): at paras. 115, 123 and 136.
[56] The motion judge properly focused her analysis on whether Ontario had adjudicative jurisdiction. She correctly found that the appellant’s assertion of a cause of action under an Ontario statute does not automatically mean that an Ontario court has jurisdiction over the claim.
[57] The appellant contends that the respondents’ dealings with provincial securities regulators prove that they expected that they could be subject to claims in Ontario. The motion judge canvassed the evidence and argument on this point at length in her analysis of consent-based jurisdiction. She rejected the appellant’s submission that, by taking steps to obtain limited registration from Canadian securities regulators, the non-Canadian respondents consented to the jurisdiction of Ontario courts with respect to claims by private citizens. I see no error in her reasoning.
[58] The appellant contends that the motion judge was bound to find that the respondents collectively carry on business in Ontario given the interconnected nature of the respondents’ operations. He relies on Sakab Saudi Holding Company v. Jabri, 2022 ONCA 496, at para. 44, for the proposition that there is “no need to expressly and mechanically run through the Van Breda factors with respect to each defendant where the defendants are alleged to have acted in an interconnected way and under the direction of a single controlling mind”.
[59] The motion judge properly rejected this argument. The circumstances in Sakab are distinguishable from this case. In Sakab, the defendant corporations allegedly orchestrated a massive fraud under the direction of a single controlling mind. The motion judge in Sakab found a prima facie case of conspiracy carried out from Ontario collectively by the defendants. In these circumstances, it was unnecessary to consider the possible presumptive connecting factors between each defendant and Ontario.
[60] The situation is different here. There is no allegation of a single controlling mind and no allegation of fraud and conspiracy. This is a statutory claim, and “each defendant occupies different roles in the Coinbase group structure”. The motion judge accordingly determined that “undertaking the Van Breda analysis for each defendant would not be a ‘mechanical’ exercise, as the court found it would have been in Sakab.”
[61] Nor is there any suggestion that this is an oppression case like Stubbs v. ATS International BV, 2010 ONCA 879, 272 O.A.C. 386, on which the appellant also relies. The motion judge found that the activities of the non-Canadian respondents are not enmeshed with those of Coinbase Canada, and sorting their roles would not be akin to “trying to unscramble an egg”, as in Stubbs.
[62] In these circumstances, I agree with the motion judge that, as reaffirmed recently in Sinclair v. Amex Canada Inc., 2023 ONCA 142, 478 D.L.R. (4th) 683, at para. 18, the court had to find an unrebutted presumptive connecting factor linking each defendant who opposed the claim proceeding in Ontario before it could assume jurisdiction over that defendant.
[63] I would accordingly not grant the appeal on this ground. . Abaxx Technologies Inc. v. Pasig and Hudson Private Limited
In Abaxx Technologies Inc. v. Pasig and Hudson Private Limited (Ont CA, 2024) the Court of Appeal considered 'venue' based on the Van Breda 'real and substantial connection' test, and as well a related contrasting of the standard for such a motion ['good arguable case'] compared both the distinct R20 ['summary judgment'] standard ('genuine issue for trial'), and R21 ['determination of issue before trial'] ('plain and obvious'):[13] The respondents brought companion motions to dismiss the claim on the ground that the claim lacks a real and substantial connection to Ontario that would ground jurisdiction over the claim in this province, and, in the alternative, that Singapore would be the preferable forum.
[14] None of the respondents have a presence in Ontario nor did they attorn to the jurisdiction.
[15] The motion judge correctly identified the test to establish the requisite jurisdictional connection to Ontario as set out in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, at para. 90, namely that (i) the defendant is domiciled or resident in the jurisdiction, (ii) the defendant carries on business in the jurisdiction, (iii) the tort was committed in the jurisdiction, or (iv) a contract connected with the dispute was entered into in the jurisdiction.
[16] He noted that the moving party must demonstrate a “good arguable case” on the basis of the pleadings and/or the evidence filed on the jurisdiction motion: Ontario (Attorney General) v. Rothmans Inc., 2013 ONCA 353, 115 O.R. (3d) 561, at para. 54, leave to appeal refused, British American Tobacco P.L.C. v. Ontario, [2013] S.C.C.A. No. 327. The presumption of jurisdiction arising from these factors may be rebutted by showing that there is at most, a weak relationship between the subject matter of the litigation and the proposed forum: Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30, [2016] 1 S.C.R. 851, at para. 27.
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[24] We see no error in the motion judge’s articulation of the test, his application of the test to the evidence, or his findings of fact. The appellants had the opportunity to lead evidence to challenge the rebuttal of the presumption of jurisdiction but failed to do so. We therefore agree with the motion judge that the appellants did not demonstrate that there was a “good arguable case” made out on the pleadings and or evidence filed on the motion. Nor do the demands of fairness, efficiency and justice augur in favour of the court in Ontario assuming jurisdiction over this claim, as the appellants have not demonstrated that Ontario should assume jurisdiction over any of the parties or any of the claims.
[25] Finally, we do not agree that the motion judge improperly embarked on a “disguised, unrequested and premature Rule 20 and/or Rule 21 motion.” The threshold posed by a “good arguable case” is commensurate with a genuine issue to be tried and is a higher threshold than the plain and obvious standard applied on a Rule 21 motion.
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