As I recently noted, the Supreme Court of Canada has released its judgments in an important conflict of laws trilogy. Here are the links to today’s SCC judgments:
1. Club Resorts Ltd. v. Van Breda, 2012 SCC 17
2. Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18
3. Breeden v. Black, 2012 SCC 19
The bottom-line is that the Van Breda test has been further modified as follows:
[90] To recap, in a case concerning a tort, the following factors are presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute:
(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.
(b) Identifying New Presumptive Connecting Factors
[91] As I mentioned above, the list of presumptive connecting factors is not closed. Over time, courts may identify new factors which also presumptively entitle a court to assume jurisdiction. In identifying new presumptive factors, a court should look to connections that give rise to a relationship with the forum that is similar in nature to the ones which result from the listed factors. Relevant considerations include:
(a) Similarity of the connecting factor with the recognized presumptive connecting factors;
(b) Treatment of the connecting factor in the case law;
(c) Treatment of the connecting factor in statute law; and
(d) Treatment of the connecting factor in the private international law of other legal systems with a shared commitment to order, fairness and comity.
…
[100] To recap, to meet the common law real and substantial connection test, the party arguing that the court should assume jurisdiction has the burden of identifying a presumptive connecting factor that links the subject matter of the litigation to the forum. In these reasons, I have listed some presumptive connecting factors for tort claims. This list is not exhaustive, however, and courts may, over time, identify additional presumptive factors. The presumption of jurisdiction that arises where a recognized presumptive connecting factor — whether listed or new — exists is not irrebuttable. The burden of rebutting it rests on the party challenging the assumption of jurisdiction. If the court concludes that it lacks jurisdiction because none of the presumptive connecting factors exist or because the presumption of jurisdiction that flows from one of those factors has been rebutted, it must dismiss or stay the action, subject to the possible application of the forum of necessity doctrine, which I need not address in these reasons. If jurisdiction is established, the claim may proceed, subject to the court’s discretion to stay the proceedings on the basis of the doctrine of forum non conveniens.
With respect to the “New” Van Breda test as applied to defamation actions, in Breeden c. Black, the Supreme Court reaffirmed the presumptive factor of the republication of the alleged libel in Ontario:
[20] The issue of the assumption of jurisdiction is easily resolved in this case based on a presumptive connecting factor — the alleged commission of the tort of defamation in Ontario. It is well established in Canadian law that the tort of defamation occurs upon publication of a defamatory statement to a third party. In this case, publication occurred when the impugned statements were read, downloaded and republished in Ontario by three newspapers. It is also well established that every repetition or republication of a defamatory statement constitutes a new publication. The original author of the statement may be held liable for the republication where it was authorized by the author or where the republication is the natural and probable result of the original publication (R. E. Brown,The Law of Defamation in Canada (1987), vol. 1, at pp. 253-54). In my view, the republication in the three newspapers of statements contained in press releases issued by the appellants clearly falls within the scope of this rule. In the circumstances, the appellants have not displaced the presumption of jurisdiction that results from this connecting factor.
Finally, in Éditions Écosociété Inc. v. Banro Corp., the Supreme Court while declining to decide the issue, suggests that “one possible alternative to the lex loci delicti as the choice of law rule in defamation cases may be the place of most substantial harm to reputation.” Whether applying the lex loci delicti rule or the locus of the most substantial harm to reputation the applicable law was that of Ontario and this factor favoured Ontario in the forum non conveniens analysis, as did the factor of juridical advantage.
I intend to provide more detailed analysis of these significant Supreme Court of Canada private international law decisions, time permitting this week.
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Chilenye Nwapi
Antonin I. Pribetic
