Simon's Megalomaniacal Legal Resources

PRIL - Real and Substantial Connection (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 considers the 'real and substantial connection' test:

(2) The Real and Substantial Connection Test

[43] In order to assume jurisdiction over a claim, a court must be satisfied that there is a real and substantial connection between the circumstances giving rise to the claim and the forum in which it is brought (Moran v. Pyle National (Canada) Ltd., 1973 CanLII 192 (SCC), [1975] 1 S.C.R. 393, at pp. 407‑8; Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (SCC), [1990] 3 S.C.R. 1077, at pp. 1108‑10; Hunt v. T&N plc, 1993 CanLII 43 (SCC), [1993] 4 S.C.R. 289, at pp. 325 and 328; Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416, at paras. 23 and 28; Tolofson v. Jensen, 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022, at p. 1054; Van Breda, at paras. 22‑50 and 67).

[44] The real and substantial connection test seeks to mitigate the jurisdictional overreach that can arise when the connection between the forum, the subject matter of the dispute, and the defendant is not sufficient for a court to assume jurisdiction (Van Breda, at para. 99). Just as Canadian law requires proof of a real and substantial connection to a foreign jurisdiction to recognize foreign judgments, comity dictates that Canadian courts not decide matters without a real and substantial connection here (see Beals, at paras. 28 and 34‑38).

[45] In setting out rules for establishing whether a real and substantial connection exists, courts should bear in mind the objectives of order and fairness. Orderly conflict of laws rules ensure that parties can “predict with reasonable confidence whether a court will assume jurisdiction in a case with an international or interprovincial aspect” (Van Breda, at para. 73). But, in the search for certainty and predictability in access to justice, courts must be careful not to exclude fairness. Fair conflict of laws rules also provide parties with “protection against being pursued in jurisdictions having little or no connection with the transaction or the parties” (Morguard, at p. 1108).

[46] As LeBel J. noted in Van Breda, balancing order and fairness can be a challenge. The presumptive connecting factors intend to reconcile fairness with the “need for security, stability and efficiency in the design and implementation of a conflict of laws system” (para. 73). They provide an orderly framework that prevents jurisdictional questions from being decided entirely on an ad hoc, case‑by‑case basis, while simultaneously allowing for flexibility and growth.

[47] Writing for a unanimous Court, LeBel J. in Van Breda, at para. 90, set out four factors that presumptively allow a court to assume jurisdiction over a dispute in tort cases:

(a) the defendant is domiciled or resident in the province;

(b) the defendant carries on business in the province;

(c) the tort was committed in the province; and

(d) a contract connected with the dispute was made in the province.

[48] LeBel J. explained that this list is not exhaustive and can be reviewed over time but that the factors, when made out, warrant presumptive effect. The onus rests on the plaintiff to establish that one or more of the listed factors exist: “If the plaintiff succeeds in establishing this, the court might presume, absent indications to the contrary, that the claim is properly before it under the conflicts rules and that it is acting within the limits of its constitutional jurisdiction . . .” (Van Breda, at para. 80, citing J. Walker, “Reforming the Law of Crossborder Litigation: Judicial Jurisdiction”, consultation paper for the Law Commission of Ontario (March 2009), at pp. 19‑20 (online); see also para. 91).

[49] Once the plaintiff has established one of the presumptive connecting factors, the defendant may rebut the presumption of jurisdiction by showing that the factor does not, in the circumstances of the case, point to a real relationship between the dispute and the forum (Van Breda, at para. 95). If the defendant fails to rebut the presumption, the court must accept jurisdiction over the dispute.

[50] The assessment of whether a presumptive connecting factor has been established is concerned with the existence of a connection between the jurisdiction and the dispute, whereas the assessment of whether the presumption has been rebutted is concerned with the strength of that connection. I am in agreement with my colleague in dissent on this point (para. 204). The two stages of the analysis taken together provide an opportunity for a court to holistically assess the extent to which a real and substantial connection exists, as required by Van Breda.

. Castillo v. Xela Enterprises Ltd.

In Castillo v. Xela Enterprises Ltd. (Ont CA, 2024) the Court of Appeal considered an appeal of a contempt finding, here where the contemnor (the one being in contempt) sworn a key Declaration in Guatemala.

Here the court discusses the 'real and substantial connection' test:

Analysis

(1) Did the motion judge err in law by holding that the court had territorial jurisdiction to find the appellant in contempt based on his Declaration that was not made in Canada but in Guatemala?

[55] The appellant submits that because the court found that the contemptuous conduct by the appellant was making the Declaration in Guatemala, the court did not have territorial jurisdiction to make the contempt finding against him. The appellant relies on the Supreme Court of Canada’s decision in Libman v. The Queen, 1985 CanLII 51 (SCC), [1985] 2 S.C.R. 178, at pp. 199, 212-13, 1985 CanLII 51, at paras. 42, 73-76.

[56] In Libman, the Supreme Court set out the test for determining when a Canadian court may take jurisdiction over a criminal offence that occurred in whole or in part outside Canada. LaForest J. summarized the test at pp. 212-12 (para. 74):

As I see it, all that is necessary to make an offence subject to the jurisdiction of our courts is that a significant portion of the activities constituting that offence took place in Canada. As it is put by modern academics, it is sufficient that there be a “real and substantial link” between an offence and this country, a test well-known in public and private international law.

[57] He concluded at p. 213 (para. 76):

Just what may constitute a real and substantial link in a particular case, I need not explore. There were ample links here. The outer limits of the test may, however, well be coterminous with the requirements of international comity.

[58] The test also applies to a finding of civil contempt: see Canada (Human Rights Commission) v. Canada Liberty Net, [1998] 1 S.C.R. 626, at p. 670, 1998 CanLII 818, at para. 52.