September 25, 2023

In today’s global economy, it’s not unusual for an estate to hold property across several provinces or countries. Where litigation involving such an estate looms ahead, there is always the question of where to bring the claim, also known as jurisdiction. One thing to keep in mind is that each province is its own jurisdiction. Different countries also constitute a different jurisdiction, or forum, for a matter.

In broad strokes, a case must have a “real and substantial” connection to the jurisdiction it is brought in. But what does it mean for a claim to have a “real and substantial connection” to a place? An oldie but a goodie, the Supreme Court of Canada set out a three-step test for assuming jurisdiction in the 2012 case of Club Resorts Ltd. v. Van Breda:

  1. Does the court have presumptive jurisdiction?
  2. If yes, can the court’s presumptive jurisdiction be rebutted?
  3. If the answer to step two is “no”, should the court decline to exercise jurisdiction in favour of a clearly more appropriate forum?

Each step of the test has its own factors to keep in mind. For part one of the test, it is up to the party seeking to establish the forum in question as the appropriate one to establish a presumptive connecting factor. Where the matter involves a tort, the court identified the following as presumptive connective factors that entitle a court to assume jurisdiction over a dispute:

  • the defendant is domiciled or resident in the province;
  • the defendant carries on business in the province;
  • the tort was committed in the province; and
  • a contract connected with the dispute was made in the province.

Where other types of matters appear before the court, such as estate litigation matters, the following considerations must be made:

  • Similarity of the connecting factor with the recognized presumptive connecting factors;
  • Treatment of the connecting factor in the case law;
  • Treatment of the connecting factor in statute law; and
  • Treatment of the connecting factor in the private international law of other legal systems with a shared commitment to order, fairness and comity.

In part two of the test, the onus shifts to the party challenging jurisdiction. Presumptive connections can be rebutted by pointing to the weakness of the connections or by showing their irrelevance to the dispute. If the party fails to rebut the presumptive factors, the court will assume jurisdiction subject to the doctrine of forum non conveniens, a doctrine which falls outside the scope of this blog.