From Morguard To Club Resorts: The Evolution Of The Real And Substantial Connection Test


In This Issue:

- Introduction

- Morguard and the “Real and Substantial Connection” Requirement for Assumed Jurisdiction

- The Muscutt Test (2002): Eight Contextual Factors

- The Van Breda Test (2010): An Attempt to “Clarify and Reformulate” the Muscutt Factors

- The New Club Resorts Test (2012)

- Comparing Club Resorts to the CJPTA

- Jurisdiction Simpliciter Versus Forum non Conveniens

- Conclusion

- Excerpt from Introduction:

Since the Supreme Court of Canada’s decision in Morguard Investments Ltd. v. De Savoye, the test for when a court can assume jurisdiction over an out-of-province defendant has been whether there is a “real and substantial connection” between the forum and the subject matter of the litigation. Yet post-Morguard, the courts have consistently struggled with how to determine when a real and substantial connection exists.

The Supreme Court of Canada’s decision in Club Resorts Ltd. v. Van Breda is but the latest attempt at articulating a common law test for the real and substantial connection requirement. The simplicity of the new Club Resorts framework, however, is a welcome change from past formulations, which were cumbersome in practice and did not provide sufficient clarity on when a court can assume jurisdiction over a claim.

This paper tracks the evolution of the real and substantial connection test for assumed jurisdiction from Morguard to Muscutt and, most recently, to Club Resorts. It also compares the new Club Resorts test with the statutory framework laid out in the Court Jurisdiction and Proceedings Transfer Act (“CJPTA”), a model law adopted in several Canadian provinces and territories to govern matters of extraprovincial jurisdiction. Finally, it examines the relationship between jurisdiction simpliciter and the doctrine of forum non conveniens.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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