Janet Walker [Osgoode Hall] on "Muscutt Misplaced: The Future of Forum of Necessity Jurisdiction in Canada"

Janet Walker (Osgoode Hall Law School) has published a new Case Comment entitled: “Muscutt Misplaced: The Future of Forum of Necessity Jurisdiction in Canada”, (2009), 48 C.B.L.J. (No.1.) 135 (available by online subscription via Canada Law Book).  Prof. Walker analyzes the eight-factored test for assumed jurisdiction established in the seminal Ontario Court of Appeal decision in Muscutt v. Courcelles 2002 CanLII 44957 (ON C.A.), (2002), 60 O.R. (3d) 20, 213 D.L.R. (4th) 577, 160 O.A.C. 1 (Ont. C.A.) from the perspective of defendants establishing jurisdiction in Ontario under a  new category: forum of necessity. In Muscutt, the Ontario Court of Appeal identified eight relevant factors when applying the “real and substantial connection” test to the threshold issue of jurisdiction simpliciter.

(1) the connection between the forum and the plaintiff’s claim
(2) the connection between the forum and the defendant
(3) the unfairness to the defendant in assuming jurisdiction;
(4) the unfairness to the plaintiff in not assuming jurisdiction;
(5) the involvement of other parties to the suit;
(6) the court’s willingness to recognize 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.

The following is a brief excerpt:
“Since the time of the Muscutt decision, it has emerged that a court will not necessarily be prevented from exercising jurisdiction merely by reason of the lack of a real and substantial connection between the matter and the forum. Accordingly, even if the appellants in the Muscutt cases were correct that there was no real and substantial connection between their cases and Ontario, it would not necessarily follow that the court could not exercise jurisdiction. This is because there may be a fourth basis of jurisdiction for this special class of cases beyond the three traditional bases: consent, defendant’s forum, and real and substantial connection. Perhaps more accurately, it might be said that even though the law of jurisdiction is constitutionally grounded, the Constitution serves as a foundation or a framework for jurisdiction, not a limit to it; and in certain extraordinary situation, the court has a discretion to exercise jurisdiction in cases beyond the traditional three bases.” (at p.136)

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