IN THE SUPREME COURT OF CANADA (On Appeal from the Court of Appeal for Ontario) CLUB RESORTS LTD. - and -

Transcription

1 S.C.C. No IN THE SUPREME COURT OF CANADA (On Appeal from the Court of Appeal for Ontario) B E T W E E N: CLUB RESORTS LTD. APPELLANT (Appellant) - and - MORGAN VAN BREDA, VICTOR BERG, JOAN VAN BREDA, TONY VAN BREDA, ADAM VAN BREDA and TONNILLE VAN BREDA -and- TOURISM INDUSTRY ASSOCIATION OF ONTARIO, AMNESTY INTERNATIONAL, CANADIAN CENTRE FOR INTERNATIONAL JUSTICE AND CANADIAN LAWYERS FOR INTERNATIONAL HUMAN RIGHTS, ONTARIO TRIAL LAWYERS ASSOCIATION FACTUM OF THE RESPONDENTS MORGAN VAN BREDA, VICTOR BERG, JOAN VAN BREDA, TONY VAN BREDA, ADAM VAN BREDA and TONNILLE VAN BREDA (Pursuant to R. 42 of the Rules of the Supreme Court of Canada) PALIARE ROLAND ROSENBERG ROTHSTEIN LLP 250 University Avenue, Suite 501 Toronto, ON M5H 3E5 McMILLAN LLP Lawyers - Patent & Trade Mark Agents 50 O'Connor Street, Suite 300 Ottawa, ON K1P 6L2 RESPONDENTS (Respondents) INTERVENERS Chris G. Paliare Robert A. Centa Tina H. Lie Tel.: Fax.: chris.paliare@paliareroland.com robert.centa@paliareroland.com tina.lie@paliareroland.com Counsel for the Respondents Marie-France Major Tel:: Fax: marie-france.major@mcmillan.ca Ottawa Agents for Counsel for the Respondents

2 BEARD WINTER LLP 130 Adelaide Street West, Suite 701 Toronto, ON M5H 2K4 John A. Olah Tel: Fax: Counsel for the Appellant, Club Resorts Ltd. TORYS LLP 79 Wellington Street West, Suite 3000 P. O. Box 270, TD Centre Toronto, Ontario, M5K 1N2 John Terry Tel.: (416) Fax: (416) Counsel for the Intervener, Tourism Industry Association of Ontario CAVANAGH WILLIAMS CONWAY BAXTER LLP 1111 Prince of Wales Drive, Suite 401 Ottawa, ON, K2C 3T2 Colin S. Baxter Tel: (613) Fax: (613) Ottawa Agent for Counsel for the Appellant, Club Resorts Ltd. MACLAREN CORLETT 50 O'Connor Street, Suite 1625 Ottawa, Ontario, K1P 6L2 Michael A. Chambers Tel.: (613) Fax: (613) Agent for Counsel for the Intervener, Tourism Industry Association of Ontario HEENAN BLAIKIE LLP 55 Metcalfe Street Suite 300 Ottawa, Ontario, K1P 6L5 Mark C. Power Tel.: (613) Fax: (866) Counsel for the Intervener, Amnesty International, Canadian Centre for International Justice and Canadian Lawyers for International Human Rights

3 ALLAN ROUBEN 70 Bond Street, Suite 200 Toronto, Ontario, M5B 1X3 Allan Rouben Tel.: (416) Fax: (416) Counsel for the Intervener, Ontario Trial Lawyers Association CONNOLLY OBAGI LLP Elgin Street Ottawa, Ontario, K2P 1L5 Thomas P. Connolly Tel.: (613) Fax: (613) Counsel for the Intervener, Ontario Trial Lawyers Association

4 TAB TABLE OF CONTENTS PAGE PART I. OVERVIEW OF POSITION AND STATEMENT OF FACTS...1 A. CRL...2 B. MORGAN AND VIKTOR...3 C. MORGAN S INJURY...4 D. THE STAY MOTION...5 E. THE DECISION OF THE COURT OF APPEAL FOR ONTARIO...7 PART II. QUESTIONS IN ISSUE...10 PART III. STATEMENT OF ARGUMENT...12 A. STANDARD OF REVIEW...12 B. ISSUE 1: DO THE CONSTITUTIONAL PRINCIPLES OF ORDER AND FAIRNESS REQUIRE CONSISTENCY IN THE STANDARDS FOR THE ASSUMPTION OF JURISDICTION IN CANADIAN COMMON LAW JURISDICTIONS? ) The principles of order and fairness establish the constitutional limits to the assumption of jurisdiction ) The tests for jurisdiction across Canada are broadly consistent...16 C. ISSUE 2: IF SO, HOW DO THE BASES OF JURISDICTION RELIED UPON BY THE COURT OF APPEAL IN THIS CASE ACCORD WITH THE COMMON STANDARDS EMERGING IN OTHER PARTS OF CANADA? ) The Court of Appeal did not retain fairness as a separate factor ) The van Breda test is consistent with the common standards suggested by the appellant ) Fairness must be considered in the real and substantial connection test ) Fairness favours the assumption of jurisdiction in this case...25 D. ISSUE 3: SHOULD A COURT EXERCISE ITS EXCEPTIONAL JURISDICTION AS A FORUM OF NECESSITY IN A CASE WHERE THE DEFENDANT CANNOT MAKE FULL ANSWER AND DEFENCE? ) This is not a forum of necessity case ) This Court should not entertain the appellant s forum of necessity argument ) There is no merit to the appellant s inability to defend argument...28 E. ISSUE 4: DOES THE DOING BUSINESS JURISDICTION THAT WAS RELIED UPON BY THE COURT OF APPEAL ACCORD WITH THE PRINCIPLES OF ORDER AND FAIRNESS?...30

5 ii 1) The appellant s proposed test conflates presence-based jurisdiction with assumed jurisdiction ) The connections between a plaintiff s claim and the forum must form part of the test...33 F. ISSUE 5: DID THE COURT OF APPEAL ERR IN FINDING A REAL AND SUBSTANTIAL CONNECTION BETWEEN THE ACTION AND ONTARIO IN THIS CASE? ) A real and substantial connection should be presumed ) CRL did not rebut the presumption of a real and substantial connection...36 G. ISSUE 6: WHAT ROLE SHOULD THE OVERARCHING PRINCIPLE OF THE RIGHT TO MAKE FULL ANSWER AND DEFENCE PLAY IN THE FORUM NON CONVENIENS TEST?...37 PART IV. SUBMISSIONS CONCERNING COSTS...40 PART V. ORDER SOUGHT...40 PART VI. TABLE OF AUTHORITIES...41 PART VII. STATUTES, REGULATIONS, AND RULES...43

6 Part I. Overview of position and statement of facts 1. Morgan van Breda ( Morgan ) was only 24 years old when she and her partner, Viktor Berg ( Viktor ), both Ontario residents, entered into a contract in Ontario with the appellant, Club Resorts Ltd. ( CRL ), through CRL s agent, Rene Denis, for an all-inclusive vacation at a resort in Cuba. On June 1, 2003, their first day at the resort, Morgan shattered her spine at T-12 and fractured at T-11. She is a paraplegic. As of October 2007, Morgan had undergone four major spinal surgeries Morgan, Viktor, and Morgan s family, 2 the respondents to this appeal (the van Bredas ), brought an action in Ontario against five defendants, including CRL. The defendants moved to stay the proceedings on the grounds that Ontario did not have jurisdiction over the claim, or alternatively, that Ontario should decline its jurisdiction pursuant to the doctrine of forum non conveniens. Two out-of-province defendants were successful. However, the motion judge permitted the van Bredas to continue their action against CRL, Rene Denis, and his company, Sport au Soleil. A five-judge panel of the Court of Appeal for Ontario agreed. CRL appeals. 3. This case concerns the weighty issue of when Ontario courts should assume jurisdiction over out-of-province defendants. It engages fundamental issues in private international law, and will help delineate the constitutional limits on the jurisdictional reach of Ontario courts. Nevertheless, the heart of this case concerns a young woman who suffered a horrible, lifechanging accident almost 8 years ago. 4. The van Bredas accept as generally correct the facts set out in paragraphs 12 to 13, and 18 to 22 of the appellant s factum. The van Bredas do not accept the facts, and/or the characterization of those facts, contained in paragraphs 14 to 17 of CRL s factum. The van Bredas rely on the following additional facts. 1 Endorsement of Pattillo J., at para. 11, Record of the Appellant, Vol. I, Tab 2, p. 5; Affidavit of Morgan van Breda, October 5, 2007, paras , Record of the Appellant, Vol. II, Tab 15, p Joan van Breda is Morgan s mother. Tony van Breda is Morgan s father. Adam van Breda is Morgan s brother. Tonille van Breda is Morgan s sister.

7 2 A. CRL 5. CRL is a Cayman Islands corporation that manages, administers and markets resorts in Cuba, including the SuperClubs Breezes Jibacoa resort (the SuperClubs resort ). 3 The SuperClubs resort is owned by a Cuban corporation, Jibacao S.A., which is not a party to this action. 4 Like all Cuban corporations, Jibacao S.A. is either wholly or jointly owned by the Government of Cuba As administrator and manager of the SuperClubs resort, CRL was responsible for international advertising and public relations campaigns to promote the resort. 6 Indeed, in 2003, CRL had contracts with Ontario professionals and tour operators to advertise and promote the SuperClubs resort to Ontario residents in brochures and Ontario newspapers, and online. 7 Further, CRL engaged the SuperClubs Ontario office and an Ontario resident, Nancy Hay, to assist with its promotional efforts in the province Club Resorts also had a contract with Ontario defendants, Rene Denis ( Denis ) and Sport au Soleil, Denis internet based business that he ran out of his home in Ottawa. Denis arranged for Ontario racquet professionals to attend and give lessons at CRL s resorts. 9 Although there was no formal written agreement between them, the terms of CRL and Denis arrangement were set out in a letter from Abe Moore, a director of CRL, to Denis: I do not want to do a formal arrangement nor get into a long term arrangement, we just want to be able to find some people who are prepared to teach for a couple 3 Endorsement of Pattillo J., at paras. 2, 37, Record of the Appellant, Vol. I, Tab 2, pp. 2, Affidavit of Abe Moore, August 10, 2007, para. 4, Record of the Appellant, Vol. II, Tab 13, p Evidence of Mark Entwistle, November 8, 2007, at pp , Record of the Respondents, Vol. I, Tab 2, pp See Exhibit A to Affidavit of Abe Moore, August 10, 2007, p. 14, Record of the Respondents, Vol. II, Tab 13, pp Endorsement of Pattillo J., at paras , Record of the Appellant, Vol. I, Tab 2, p. 13; see Affidavit of Abe Moore, August 10, 2007, para. 9, Record of the Appellant, Vol. II, Tab 13, p. 150; Supp. Affidavit of Abe Moore, November 2, 2007, paras. 4-6, Record of the Appellant, Vol. III, Tab 26, p. 269; Exhibit P to Affidavit of Jillian Evans, October 5, 2007, Record of the Appellant, Vol. II, Tab Reasons of the Court of Appeal, at para. 140, Record of the Appellant, Vol. I, Tab 3, p. 85; see Letter from Abe Moore to Rene Denis, July 4, 1995, Record of the Appellant, Vol. III, Tab 33, p Endorsement of Pattillo J., at paras. 5-7, Record of the Appellant, Vol. I, Tab 2, pp. 2-3.

8 3 of hours each day in exchange for accommodations for two people sharing. I am prepared to compensate you, hopefully in kind, for your efforts Consistent with its international marketing activities, CRL anticipated the possibility that it would incur liability in North America. 11 Effective December 1, 2002, it obtained an insurance policy against judgments obtained in North America, including Ontario: The Insured having requested an extension to the Operative Clause for indemnity to be granted in respect of any judgement, award or settlement made within countries which operate under the laws of the United States of America or Canada (or to any order made anywhere in the world to enforce such judgement, award or settlement either in whole or in part), it is agreed that such extension is hereby granted in consideration of the Insured agreeing to accept the following additional terms and Exclusions in respect of such judgment, award or settlement: [Emphasis added] B. Morgan and Viktor 9. In December 2002, Morgan and Viktor moved to Toronto, Ontario. Morgan was an aspiring actor. Viktor was a professional squash player. They intended to reside permanently in Ontario, and hoped to build their lives together in the province In 2003, Morgan and Viktor decided to take a vacation. Viktor had learned of the Sport au Soleil program through a network of Ontario squash professionals. As a result, he contacted Denis, who arranged for Morgan and Victor to stay at the SuperClubs resort. Morgan and Viktor were familiar with the Superclubs brand from advertisements in Canada and selected the SuperClubs resort because it was a 4 or 5-star resort with state of the art facilities and amenities Endorsement of Pattillo J., at para. 6, Record of the Appellant, Vol. I, Tab 2, p. 3; Letter from Abe Moore to Rene Denis, May 31, 1998, Record of the Appellant, Vol. III, Tab 33, p Endorsement of Pattillo J, at para. 41, Record of the Appellant, Vol. I, Tab 2, pp Exhibit L to Affidavit of Jillian Evans, October 5, 2007, Record of the Appellant, Vol. II, Tab 19, p Endorsement of Pattillo J., at paras. 4, 26, Record of the Appellant, Vol. I, Tab 2, pp. 2, Endorsement of Pattillo J., at para. 8, Record of the Appellant, Vol. I, Tab 2, pp. 3-4; Affidavit of Morgan van Breda, October 5, 2007, paras. 7-10, Record of the Appellant, Vol. II, Tab 15, pp

9 4 11. On May 29, 2003, Denis confirmed the agreement with Viktor in a letter. The letter, on SuperClubs Cuba Tennis letterhead, confirmed the stay at the SuperClubs resort and outlined the terms of the agreement between the parties: Once again, your role is to teach tennis for two (2) one (1) hour sessions daily during your stay. The times will be determined by the management of Breezes Jibacoa. The hotel reserves the right to accommodate you, at no expense to yourself, in another hotel for part or all of your stay should the need arise. This seldom happens, should it happen to you we expect complete compliance with the hotel and staff. Failure to do so not only jeopardizes your participation in the programme but also the programme itself. You will of course have complete access to the resort including all your meals and transportation will be provided to and from the other hotel. In exchange for your services the hotel will accommodate you and your guest in a shared room. This also includes all meals and drinks and transportation to and from the Varadero airport Denis letter also advised the hotel that: The above individual has been confirmed for these dates with the hotel General Manager. Please direct him/her to the Entertainment Manager. 16 C. Morgan s injury 13. On June 1, 2003, Morgan and Victor flew to Cuba and checked into the SuperClubs resort. That afternoon, after a swim in the ocean, they walked along the beach and noticed a metal athletic apparatus that resembled a chin-up bar. 17 Viktor did some chin-ups on the bar. After he dismounted, Morgan attempted to do the same. While Morgan was hanging onto the bar, the apparatus, which was not secured to the ground, began to collapse. Morgan was thrown forward into the sand, and the apparatus fell on top of her. She immediately lost sensation in her legs Endorsement of Pattillo J., at para. 9, Record of the Appellant, Vol. I, Tab 2, p. 4; Exhibit A to Affidavit of Morgan van Breda, October 5, 2007, Record of the Appellant, Vol. II, Tab Exhibit A to Affidavit of Morgan van Breda, October 5, 2007, Record of the Appellant, Vol. II, Tab Endorsement of Pattillo J., at para. 10, Record of the Appellant, Vol. I, Tab 2, p Endorsement of Pattillo J., at para. 10, Record of the Appellant, Vol. I, Tab 2, p. 5; Affidavit of Morgan van Breda, October 5, 2007, paras , Record of the Appellant, Vol. II, Tab 15, p. 167.

10 5 14. Viktor left Morgan to call for help. He returned to Morgan s side, and the couple waited for help to arrive. No medical personnel from the resort came to Morgan s aid. After approximately 45 minutes, a fellow guest at the resort, Denise Noonan ( Noonan ), came to assist. Noonan was a former nurse and a resident of Ottawa, Ontario. Noonan stayed with Morgan and Viktor on the beach. After much delay, an ambulance finally arrived and took them to a hospital in Havana, Cuba On June 3, 2003, Morgan was flown by private air ambulance from Cuba to Calgary, Alberta, where her family lived. In or around September 2003, Morgan and Viktor moved permanently to Richmond, British Columbia, where Viktor s parents resided, and where there were more professional opportunities for Viktor. 20 The only reason they did not return to Ontario is because of Morgan s devastating injury, which gives rise to this claim. 21 D. The stay motion 16. On May 31, 2006, the van Bredas commenced an action in Ontario against CRL, Denis, Sport au Soleil and two other out-of-province defendants. 22 All five defendants moved for a stay of the proceedings in Ontario. 17. On July 3, 2008, the motion judge, Justice Pattillo, granted the motion in part. He applied the eight-factor test from Muscutt v. Courcelles and failed to find a real and substantial connection in respect of two of the out-of-province defendants, Village Resorts Limited and Superclubs International Ltd. 23 As a result, he stayed the proceedings against those defendants Affidavit of Morgan van Breda, October 5, 2007, paras , Record of the Appellant, Vol. II, Tab 15, pp Endorsement of Pattillo J., at paras , Record of the Appellant, Vol. I, Tab 2, p. 5; Cross-examination of Morgan van Breda, December 11, 2007, p. 87, Record of the Respondents, Vol. II, Tab 5, p Endorsement of Pattillo J., at para. 26, Record of the Appellant, Vol. I, Tab 2, p. 11; Cross-examination of Morgan van Breda, December 11, 2007, p. 85, Record of the Respondents, Vol. II, Tab 5, p Notice of Action, May 31, 2006, Record of the Appellant, Vol. II, Tab Muscutt v. Courcelles (2002), 60 O.R. (3d) 20 (C.A.) [Muscutt], Book of Authorities of the Respondents, Tab 20. The eight factors are: (1) the connection between the forum and the plaintiff s claim; (2) the connection between the forum and the defendant; (3) unfairness to the defendant in assuming jurisdiction; (4) unfairness to the plaintiff in not assuming jurisdiction; (5) the involvement of other parties to the suit; (6) the court s willingness to recognize

11 6 18. The motion judge, however, dismissed CRL s motion. He held that (1) Ontario had jurisdiction over the van Bredas action against CRL, and (2) Cuba was not a clearly more appropriate forum than Ontario under the forum non conveniens test In finding a real and substantial connection with Ontario, the motion judge found significant connections between the van Bredas claim and CRL, on the one hand, and Ontario on the other (the first and second Muscutt factors). Specifically, the motion judge found that: (a) there was a good arguable case that Viktor and CRL entered into the underlying agreement in Ontario. This constituted a significant connection between the van Bredas claim and the province; 26 and (b) not only had CRL entered agreements with tour operators in Ontario to promote its resorts in Ontario, [t]hrough Mr. Denis, Club Resorts was actively seeking in Ontario racquet professionals to come to its resorts in Cuba [for] the purpose of providing, among other things, tennis lessons to its guests. This also constituted a significant connection between CRL and Ontario Further, the motion judge weighed the conflicting expert evidence regarding the parties respective difficulties of litigating in Ontario and Cuba. He found as a fact that, contrary to CRL s submission, it would not be impossible for CRL to: (a) obtain relevant evidence for presentation in an Ontario court, including by means of letters rogatory, and that other means of obtaining evidence were available. Indeed, the materials filed on the motion suggested that CRL had already obtained statements from many of the employees that would be witnesses in the proceeding; or and enforce an extra-provincial judgment rendered on the same jurisdictional basis; (7) whether the case is interprovincial or international in nature; and (8) comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere. 24 Endorsement of Pattillo J., at para. 60, Record of the Appellant, Vol. I, Tab 2, p Endorsement of Pattillo J., at paras. 60, 70-71, Record of the Appellant, Vol. I, Tab 2, pp. 21, Endorsement of Pattillo J., at para. 28, Record of the Appellant, Vol. I, Tab 2, p Endorsement of Pattillo J., at para. 33, Record of the Appellant, Vol. I, Tab 2, p. 13.

12 7 (b) arrange for key witnesses to testify at a trial in Ontario. Again, the motion judge found that alternative means of achieving that end were available to CRL, including through the use of videoconferencing and affidavit evidence On the other hand, in considering the van Bredas ability to litigate in Cuba, the motion judge noted the evidence of CRL s own expert that one of the flaws of the Cuban judicial system was a lack of an independent judiciary in the true sense, and concluded: My concern, based on the evidence in this case, arises in respect of the existence of the communist regime in Cuba and its corresponding control over all matters, including, in particular, its judicial system. I agree with the comments of Conway J. in Eid v. Hola Sun Holidays Ltd., at para. 3(d). There is in my view an uncertainty which exists in respect of fairness of the legal system in Cuba. 29 [Citation omitted] 22. Further, the motion judge noted that it would not be unfair to CRL if Ontario assumed jurisdiction because CRL had obtained liability insurance covering judgments rendered in North America. According to the motion judge, [t]he fact that they had liability insurance that provided protection in other jurisdictions indicates that they were aware their activities could result in legal actions and judgments against them in, among other places, Canada. 30 E. The decision of the Court of Appeal for Ontario 23. CRL appealed the motion judge s decisions on both jurisdiction and forum non conveniens. On February 2, 2010, after two hearings, including one by a five-judge panel, the Court of Appeal for Ontario (the Court of Appeal ) dismissed CRL s appeal. In doing so, the 28 Endorsement of Pattillo J., at paras , Record of the Appellant, Vol. I, Tab 2, p. 13. The expert evidence in support of the motion judge s conclusion is found at: Affidavit of Daniel Rippes, September 7, 2007, paras , Record of the Appellant, Vol. II, Tab 14, pp Endorsement of Pattillo J., at paras. 49, 51, Record of the Appellant, Vol. I, Tab 2, pp The evidence of CRL s expert, Michael Enwistle, Canada s former ambassador to Cuba from 1993 to 1997, supported the motion judge s finding. See Evidence of Mark Entwistle, November 8, 2007, pp. 35, 39, 79, 83, 86, 91, 100, 101, Record of the Respondents, Vol. I, Tab 2, pp. 36, 40, 80, 84, 87, 92, 101, 102; Exhibit 1 to the Examination of Mark Entwistle, November 8, 2007, p. 14, Record of the Respondents, Vol. I, Tab 3, p. 140; Exhibit 2 to the Examination of Mark Entwistle, November 8, 2007, p. 14, Record of the Respondents, Vol. II, Tab 4, p Endorsement of Pattillo J., at para. 41, Record of the Appellant, Vol. I, Tab 2, p. 16.

13 8 Court of Appeal simplified and reformulated the Muscutt test for real and substantial connection through a two-stage approach (the van Breda test ): (a) First stage: The court asks if the claim falls within any of the rules for service ex juris set out in rule of the Ontario Rules of Civil Procedure (except rules 17.02(h) (damages sustained in Ontario) and 17.02(o) (a necessary or proper party)). If so, the court will presume that there is a real and substantial connection to Ontario for the purposes of assuming jurisdiction against a foreign defendant. (b) Second stage: (i) If the presumption applies, the court asks whether the defendant has nevertheless demonstrated that there is no real and substantial connection in the particular circumstances of the case. (ii) If the presumption does not apply, the court asks whether the plaintiff has nevertheless demonstrated that there is a real and substantial connection in the particular circumstances of the case. 31 At the second stage, the core of the test is the connection between the plaintiff s claim and Ontario, and the connection of the defendant to the forum, respectively (the first two factors of the Muscutt test) The Court of Appeal held that the remaining Muscutt factors are not independent factors, but rather are regarded as general legal principles bearing on the analysis. 33 In particular, though not a free-standing factor, consideration of the fairness of assuming or refusing jurisdiction remains an analytic tool to assess the relevance, quality and strength of [the] connections, and whether assuming jurisdiction accords with the principles of order and fairness Reasons of the Court of Appeal, at para. 109, Record of the Appellant, Vol. I, Tab 3, p Reasons of the Court of Appeal, at para. 84, Record of the Appellant, Vol. I, Tab 3, p Reasons of the Court of Appeal, at para. 109, Record of the Appellant, Vol. I, Tab 3, p Reasons of the Court of Appeal, at para. 98, Record of the Appellant, Vol. I, Tab 3, p. 66.

14 9 25. The Court of Appeal also held that, even where the two-stage test for real and substantial connection is not met, the court has a residual discretion to assume jurisdiction if there is no other forum in which the plaintiff can reasonably seek relief. 35 This has been referred to as the forum of necessity doctrine. 26. In applying its reformulated test to the van Bredas claim, the Court of Appeal concluded that there was a real and substantial connection to Ontario: (a) (b) First stage: The van Bredas claim against CRL fit within rule 17.02(f)(i) because it was in respect of a contract that was made in Ontario. In arriving at that conclusion, the Court of Appeal upheld the motion judge s finding that Denis was acting, in part at least, as agent for CRL. Thus, the contract was entered into in Ontario, and a real and substantial connection was presumed to exist. 36 Second stage: CRL did not rebut the presumption at the second stage of the test. To the contrary, the Court of Appeal found significant connections between Ontario and both the plaintiff s claim and the defendant: (i) (ii) there was a significant connection between the van Bredas claim and Ontario, given that the contractual arrangements were made in Ontario; 37 and even without the benefit of the presumption, CRL had a significant connection with Ontario because it had engaged Ontario professionals and tour operators, as well as the Ontario SuperClubs office, to advertise and promote the SuperClubs resort, and had retained Denis as an agent to solicit professional athletes from Ontario to provide lessons at the resort Reasons of the Court of Appeal, at para. 100, Record of the Appellant, Vol. I, Tab 3, p Reasons of the Court of Appeal, at para. 134, Record of the Appellant, Vol. I, Tab 3, p Reasons of the Court of Appeal, at paras , Record of the Appellant, Vol. I, Tab 3, pp Reasons of the Court of Appeal, at paras , Record of the Appellant, Vol. I, Tab 3, pp

15 Finally, the Court of Appeal upheld the motion judge s finding that Cuba was not a clearly more appropriate forum to hear the van Bredas claim under the doctrine of forum non conveniens. In doing so, it considered and rejected CRL s argument that it would be unable to make full answer and defence in Ontario, finding that there was expert evidence explaining how their evidence could be obtained for use in an Ontario court. 39 Part II. Questions in issue 28. CRL has raised six issues on this appeal: (a) (b) (c) Do the constitutional principles of order and fairness require consistency in the standards for the assumption of jurisdiction simpliciter in Canadian common law jurisdictions? They do, but only with respect to the constitutional limits on the assumption of jurisdiction by a province. The provinces need not have identical tests for the manner in which jurisdiction is exercised within those limits. In any event, CRL s concern of inconsistency is overstated. The provinces tests are broadly consistent with one another, and with the principles of order and fairness. If so, how do the bases of jurisdiction relied upon by the Court of Appeal in this case accord with the common standards emerging in other parts of Canada? CRL s answer to this question is based on a misinterpretation of the jurisdiction test adopted by the Court of Appeal. In fact, fairness is not a separate factor in the van Breda test, but rather a lens through which the factual connections with the province are viewed. Seen in this way, the van Breda test is consistent with the common standards approach that CRL endorses. CRL s suggestion that fairness has no role to play in the real and substantial connection test is unfounded. This Court has consistently made clear that the principles of order and fairness are at the heart of the jurisdiction analysis. Should a Court exercise its exceptional jurisdiction as a forum of necessity in a case where the defendant cannot make full answer and defence? This Court need 39 Reasons of the Court of Appeal, para. 146, Record of the Appellant, Vol. I, Tab 3, p. 87.

16 11 not answer this question. The doctrine of forum of necessity is not in issue on this appeal. The van Bredas did not rely on the doctrine, and neither of the courts below addressed its applicability to the van Bredas claim. Both courts below found a real and substantial connection between the van Bredas claim and Ontario. There is no need for this Court to consider the complex issues surrounding the doctrine of forum of necessity, including whether this exceptional jurisdiction can exist as a matter of constitutional law, and if so, whether that jurisdiction ought to be exercised in this case. (d) (e) (f) Does the doing business jurisdiction that was relied upon by the Court of Appeal accord with the principles of order and fairness? This question is also based on a misapprehension of the van Breda test. Nowhere in its reasons did the Court of Appeal rely on a doing business jurisdiction. By recasting the van Breda test for jurisdiction, CRL proposes a test for jurisdiction that supplants the real and substantial connection test with its own version of a carrying on business test. Such a proposal must be rejected. It conflates the tests for presence-based jurisdiction and assumed jurisdiction in a manner that contradicts the principles of order and fairness and over 30 years of this Court s jurisprudence. Did the Court of Appeal err in finding a real and substantial connection between the action and Ontario in this case? No. There was ample evidence to support the concurrent findings of the courts below that (1) Denis was, at least in part, an agent of CRL, (2) the underlying contract was entered into in Ontario, and (3) CRL had significant connections with Ontario. This Court should reject CRL s attempt to fuse the agency test and a presence-based test for jurisdiction. What role should the overarching principle of the right to make full answer and defence play in the forum non conveniens test? This Court need not address the role of the right to make full answer and defence in the doctrine of forum non conveniens on this appeal. The courts below found that CRL s concerns respecting its ability to defend in Ontario were overstated. The motion judge weighed the appropriate factors and applied the correct legal test, and concluded

17 12 that Cuba was not a clearly more appropriate forum than Ontario. The Court of Appeal saw no reason to interfere with his discretionary decision. This Court should dismiss the appeal. Part III. Statement of argument A. Standard of Review 29. Whether or not Ontario has jurisdiction over the van Bredas claim is a question of law, reviewable on a standard of correctness. 40 That question of law cannot, however, be assessed in the abstract or in a vacuum. It must be informed by the motion judge s findings of fact. Those findings are entitled to significant deference from this Court Indeed, where, as here, there are concurrent findings of fact in the courts below, this Court will be all the more hesitant to intervene and disturb findings of fact. The Court s principle of non-intervention is all the stronger in the face of concurrent findings of both courts below. 42 It should intervene only in circumstances where those concurrent findings are clearly wrong. 43 That is simply not the case here. B. Issue 1: Do the constitutional principles of order and fairness require consistency in the standards for the assumption of jurisdiction in Canadian common law jurisdictions? 31. The van Bredas agree that the principles of order and fairness mandate a consistent interpretation of the constitutional limits on the provinces ability to assume jurisdiction over out of province defendants. 44 These principles of order and fairness, however, do not require uniformity among provinces as to how they exercise their jurisdiction within those constitutional 40 Lemmex v. Bernard (2002), 60 O.R. (3d) 54 (C.A.) at para. 29, Book of Authorities of the Respondents, Tab Alberta Inc. v. Canadian Royalties Inc. [2008] O.J. No. 250 (C.A.) at para. 5, Book of Authorities of the Respondents, Tab St-Jean v. Mercier, [2002] 1 S.C.R. 491 at 509 [St-Jean], Book of Authorities of the Respondents, Tab St- Jean, supra, at 509, Book of Authorities of the Respondents, Tab The appellant asserts that this consistency is required only among common law provinces. The respondents see no reason why this principle should not apply to the province of Québec, but that issue is not raised in this appeal.

18 13 limits. In our federal system, the Supreme Court of Canada should be slow to require uniform approaches among provinces that have adopted different, but constitutional, approaches. 1) The principles of order and fairness establish the constitutional limits to the assumption of jurisdiction 32. Constitutional considerations come into play in the private international law sphere only in the context of limits to the assumption of jurisdiction. What the constitution requires is consistency in the interpretation of the limit on provincial jurisdiction, not uniformity in the province s exercise of its jurisdiction within that outer limit. 33. As this Court held in Morguard Investments Ltd. v. De Savoye, the requirement of a substantial connection sets the constitutional limit for a province s assumption of jurisdiction: The private international law rule requiring substantial connection with the jurisdiction where the action took place is supported by the constitutional restriction of legislative power in the province. As Guérin J. observed in Dupont v. Taronga Holdings Ltd., In the case of service outside of the issuing province, service ex juris must measure up to constitutional rules. The restriction to the province would certainly require at least minimal contact with the province, and there is authority for the view that the contact required by the Constitution for the purposes of territoriality is the same as required by the rule of private international law between sister-provinces. 45 [Emphasis added] 34. More recently, this Court confirmed in Spar Aerospace v. American Mobile Satellite that it is a constitutional imperative that Canadian courts can assume jurisdiction only where a real and substantial connection exists There is no authority, however, to suggest that there is an imperative, constitutional or otherwise, requiring the provinces to articulate the test for jurisdiction in the same way. The constitutional imperative only forbids the provinces from overreaching. If a province s test for jurisdiction complies with the constitutional imperative for a real and substantial connection, there is no reason for this Court to interfere. According to Professor Vaughan Black: 45 Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R at 1109 [Morguard], Book of Authorities of the Respondents, Tab Spar Aerospace v. American Mobile Satellite, [2002] 4 S.C.R. 205 at 230 [Spar], Book of Authorities of the Respondents, Tab 23.

19 14 It is obvious that the substantial connection test, as a constitutional standard, should be applied uniformly across the country. But that test is simply a limit. The value of uniformity within that limit is another matter, neither constitutionally compelled nor obviously beneficial This Court s decision in Spar acknowledges that the provinces can articulate tests falling within the constitutional limits in different ways. In Spar, this Court concluded that, although the criterion of a real and substantial link is a common law principle that should not be imported into the civil law, 48 the requirement of a real and substantial connection is nevertheless reflected in the overall scheme of the Civil Code of Québec s provisions on jurisdiction Spar confirms that the words used to articulate the test for jurisdiction real and substantial connection or something else are of no moment provided that it meets the constitutional limits for the assumption of jurisdiction. In Québec s case, the test did. 38. Similarly, in Hunt v. T&N plc, this Court considered the applicability of a Québec statute to proceedings in British Columbia. In doing so, it found that, as long as a province respects its constitutional limits (or what this Court referred to as minimum standards ), that province may well enact legislation that will affect litigation in other provinces: [T]he constitutional considerations are just that. They are constitutional imperatives, and as such apply to the provincial legislatures as well as to the courts. In short, to use the expressions employed in Morguard, the integrating character of our constitutional arrangements as they apply to interprovincial mobility calls for the courts in each province to give full faith and credit to the judgments of the courts of sister provinces. This, as also noted in Morguard, is inherent in the structure of the Canadian federation, and, as such, is beyond the power of provincial legislatures to override. This does not mean, however, that a province is debarred from enacting any legislation that may have some effect on litigation in other provinces or indeed from enacting legislation respecting modalities for recognition of judgments of other provinces. But it does 47 Vaughan Black, Joost Blom and Janet Walker, Current Jurisdictional and Recognitional Issues in the Conflict of Laws, (2011) 50 C.B.L.J. 155 at 168, Book of Authorities of the Respondents, Tab Spar, supra, at 230, Book of Authorities of the Respondents, Tab Spar, supra, at 236, Book of Authorities of the Respondents, Tab 23.

20 15 mean that it must respect the minimum standards of order and fairness addressed in Morguard. [Emphasis added] This Court recognized in Hunt that the constitutional imperatives establish minimum standards; they do not require consistency in the manner in which the provinces exercise their jurisdiction once those minimum standards are met. In Hunt, this Court permitted the provinces to legislate in whatever manner they chose to the extent of their constitutional limits. Such a principle is equally applicable to the provinces tests for jurisdiction. 40. The van Breda test meets the minimum standards imposed on Ontario courts by the constitution and articulated by this Court. The van Breda test does not permit the province to assume jurisdiction over an out-of-province defendant without a connecting factor under the rule presumptions (except rules 17.02(h) and (o)) at the first stage, and/or connections between the claim and defendant, and Ontario (the core of the test) at the second stage Thus, the van Breda test falls squarely within this Court s articulation of the standards required to assume jurisdiction. As the majority of this Court stated in Beals v. Saldanha: The real and substantial connection test requires that a significant connection exist between the cause of action and the foreign court. Furthermore, a defendant can reasonably be brought within the embrace of a foreign jurisdiction s law where he or she has participated in something of significance or was actively involved in that foreign jurisdiction. A fleeting or relatively unimportant connection will not be enough to give a foreign court jurisdiction. The connection to the foreign jurisdiction must be a substantial one The van Breda test meets this requirement. Through the operation of the rebuttable presumption at stage one and the focus on the connections to Ontario at stage two, the van Breda test does not permit an Ontario court to assume jurisdiction absent a significant or substantial connection with the province. Where, as here, the highest court in a province has articulated a test for the assumption of jurisdiction that complies with both constitutional 50 Hunt v. T&N plc, [1993] 4 S.C.R. 289 at 324 [Hunt], Book of Authorities of the Respondents, Tab Reasons of the Court of Appeal, at paras , 84, Record of the Appellant, Vol. I, Tab, 3, pp. 55, Beals v. Saldanha, [2003] 3 S.C.R. 416 at 439 [Beals], Book of Authorities of the Respondents, Tab 3.

21 16 imperatives and this Court s pronouncements on the constitutional limits on jurisdiction, this Court should not intervene. 2) The tests for jurisdiction across Canada are broadly consistent 43. In any event, the appellant overstates its arguments in favour of consistency. In fact, the tests that the provinces apply are entirely consistent with the principles of order and fairness, and to a large extent, with one another. CRL seeks uniformity in the provinces approaches to asserting jurisdiction over claims with extraterritorial elements. There is no need for such uniformity, for constitutional reasons or otherwise. 44. CRL submits that four different standards have emerged in Canadian common law jurisdictions. 53 This is an overstatement. The standards across the country are not that different. Each test focuses on the connections between the action and the jurisdiction: (a) The Muscutt test: The courts in Alberta, Manitoba, and Prince Edward Island apply the Muscutt test. 54 The first two factors of that test are the connections between the forum and the plaintiff s claim, and between the forum and the defendant, respectively. In applying these factors, the Court of Appeal made clear in Muscutt that the connections serve as a guide to the analysis. 55 (b) The Coutu test: In New Brunswick, the Court of Appeal determined in Coutu v. Gauthier that the connection between the forum and the plaintiff s claim (the first Muscutt factor) is the essence of the real and substantial connection test See Appellant s Factum, para See Dirtt Environmental Solutions Ltd. v. Almond, [2010] A.J. No. 886 (Q.B.) at paras. 26, 28, Book of Authorities of the Respondents, Tab 8; Henry Estate v. Henry, [2010] M.J. No. 356 (Q.B.) at paras , Book of Authorities of the Respondents, Tab 11; HZPC Americas Corp. v. True North Seed Potato Co., [2006] P.E.I.J. No. 5 (C.A.) at paras. 22, 31, Book of Authorities of the Respondents, Tab 13. The Manitoba Court of Queen s Bench s decision in Henry Estate v. Henry suggests that the Manitoba courts may now be applying the van Breda test. There have not been any decisions applying the test for jurisdiction simpliciter in Prince Edward Island since the Court of Appeal for Ontario s decision in van Breda. 55 Muscutt, supra, at paras. 79, 82, Book of Authorities of the Respondents, Tab Coutu v. Gauthier, 2006 CarswellNB 57, (2006) 296 N.B.R. (2d) 34 (C.A.) at para. 67 [Coutu], Book of Authorities of the Respondents, Tab 7.

22 17 (c) (d) (e) The CJPTA test: British Columbia and Saskatchewan have enacted their own versions of the Court Jurisdiction and Proceedings Transfer Act ( CJPTA ). 57 As the Uniform Law Conference of Canada s comments provide, the test under that act centers on the defined connections with the province. 58 The CJPTA and Muscutt factors: In Nova Scotia, which has also enacted the CJPTA, 59 the courts interpret the CJPTA s real and substantial connection test in light of the Muscutt factors. 60 As set out above, both the CJPTA and the Muscutt factors consider the connections to the province. The van Breda test: In Ontario and Newfoundland and Labrador, 61 the courts assess the connecting factors outlined in the rules for service ex juris (except the rules relating to damage sustained and necessary or proper party ) at the first stage, 62 and focus on the connections to the province, which the Court of Appeal described as the core of the test, at the second stage In any event, this Court need not and should not decide the propriety of the other provinces tests for jurisdiction simpliciter on this appeal. The point is that the appellant s reported concerns of inconsistency, uncertainty and forum shopping are overstated. The test in each province looks at the connections with the province in assessing if the province has jurisdiction over an action. If there are significant connections with the province, then the 57 Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, Book of Authorities of the Appellant, Tab 5; Court Jurisdiction and Proceedings Transfer Act, S.S. 1997, c. C-41.1, Book of Authorities of the Appellant, Tab Uniform Court Jurisdiction and Proceedings Transfer Act, Uniform Law Conference of Canada, online: < at 3, Book of Authorities of the Appellant, Tab Court Jurisdiction and Proceedings Transfer Act, S.N.S (2d Sess.), c. 2, Book of Authorities of the Appellant, Tab Bouch v. Penny [2009] N.S.J. No. 339 (C.A.) at para. 53, leave to appeal denied, [2009] S.C.C.A. No. 379 [Bouch], Book of Authorities of the Respondents, Tab See Cougar Helicopters Inc. v. Sikorsky Aircraft Corp., [2010] N.J. No. 411 (S.C.) at para. 73 [Cougar Helicopters], Book of Authorities of the Respondent, Tab 6. The decision in Cougar Helicopters was released on December 29, 2010, after the appellant filed its factum on this appeal. The respondents submit that Cougar Helicopters sets out Newfoundland and Labrador s current approach to the real and substantial connection test. Thus, contrary to the appellant s submission at paragraph 32 of its factum, Newfoundland and Labrador do not follow the Coutu approach. 62 See Reasons of the Court of Appeal, at para. 74, Record of the Appellant, Vol. I, Tab 3, p Reasons of the Court of Appeal, at para. 84, Record of the Appellant, Vol. I, Tab 3, p. 60.

23 18 province will assume jurisdiction; if there are no connections, or only weak connections, with the province, then it will not take jurisdiction. CRL s complaint of uncertainty overlooks this unifying thread that runs through the provinces tests, and instead highlights the minor differences in the manner in which that thread is given effect. 46. Further, the appellant s suggestion that concerns of forum shopping are borne out by this case is wrong. 64 The van Bredas are not forum shopping. They are seeking to bring an action in Ontario the place where the underlying contract was entered into, where CRL engaged tour operators and a business owner (Denis) to advertise and solicit, and where Morgan and Viktor would be living today, but for the devastating accident. 65 As this Court said in Amchem Products Inc. v. British Columbia (Workers Compensation Board): If a party seeks out a jurisdiction simply to gain a juridical advantage rather than by reason of a real and substantial connection of the case to the jurisdiction, that is ordinarily condemned as forum shopping. On the other hand, a party whose case has a real and substantial connection with a forum has a legitimate claim to the advantages that that forum provides Here, both courts below found significant connections between the van Bredas claim and the defendant, and Ontario. The van Bredas thus have a legitimate claim to all that the Ontario court process offers. 48. Finally, contrary to CRL s suggestion, the fact that Ontario may assume jurisdiction over the van Bredas claim, while British Columbia may not, arises from the presence and significance of the connections with each of those provinces not British Columbia s higher jurisdictional standards. In any event, whether British Columbia and Cuba really are the two most appropriate forums, as CRL suggests, ought not to be considered in the jurisdiction simpliciter test, but rather as part of the forum non conveniens analysis. 67 This Court should not entertain the appellant s attempt to conflate the two. 64 See Appellant s Factum, para See Reasons of the Court of Appeal, at paras , Record of the Appellant, Vol. I, Tab 3, pp Amchem Products Inc. v. British Columbia (Workers Compensation Board), [1993] 1 S.C.R. 897 at 920 [Amchem], Book of Authorities of the Respondents, Tab See Appellant s Factum, para. 34.

24 19 C. Issue 2: If so, how do the bases of jurisdiction relied upon by the Court of Appeal in this case accord with the common standards emerging in other parts of Canada? 49. In its factum, the appellant criticizes the Court of Appeal s decision to retain fairness as a consideration in the jurisdiction analysis. 68 According to CRL, [t]he emerging consensus is that considerations of fairness to the parties should not play a role in the real and substantial connection test but that such a discretionary case-specific analysis should be conducted at a separate stage, namely at the forum of necessity or at the forum non conveniens stages. 69 CRL argues that Ontario is out of step with that emerging consensus. CRL s submission is unfounded for several reasons. 1) The Court of Appeal did not retain fairness as a separate factor 50. The appellant s argument is based on a mischaracterization of the Court of Appeal s reasons. Contrary to CRL s assertion, the Court did not retain fairness as a factor to be weighed together with the factual connections In van Breda, the Court of Appeal emphasized that it eliminated fairness as an independent factor, but retained the principle as the lens through which to gauge the factual connections in the real and substantial connection test. It explained: [P]roper consideration of the defendant s position cannot be accomplished simply by looking at the acts or conduct that would render the defendant subject to the jurisdiction. The quality, strength or significance of those contacts cannot be assessed in a purely mechanical fashion. The inquiry necessarily entails consideration of the fairness or unfairness of asserting jurisdiction against the defendant in light of those contacts. [C]onsideration of fairness should not be seen as a separate inquiry unrelated to the core of the test, the connection between the forum, the plaintiff s claim and the defendant. Consideration of fairness should rather serve as an analytic tool to assess the relevance, quality and strength of those connections, whether they 68 See Appellant s Factum, paras Appellant s Factum, para See Appellant s Factum, para. 42.