The Supreme Court of Canada Provides Clarity to Conflict of Laws Rules


It is a fact of life in the modern world that manufacturers and distributors of products often do business in multiple jurisdictions, across multiple borders. A product manufactured in one country can be distributed and sold in another and then used in a third in a manner giving rise to a tort claim. As a result, tort actions involving products often result in tricky cross-border, conflict of laws issues. In such cases, the forum in which the matter is heard may have significant implications in terms of the substantive and procedural law that will apply, or even the size of damage awards.

In a recent trilogy of judgments — Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (Van Breda), Breeden v. Black, 2012 SCC 19, and Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18 — the Supreme Court of Canada clarified the legal framework pertaining to Canadian conflict of laws issues. Justice LeBel, writing for the Court in Van Breda, dealt with two major issues. First, he clarified the “real and substantial connection” test that Canadian courts use to determine if they have jurisdiction over actions involving multiple jurisdictions. Second, he clarified the doctrine of forum non-conveniens — which permits Canadian courts to exercise their discretion to decline to hear a matter on the basis that another forum would be more appropriate.

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