In “Muscutt v. Courcelles Revisited: The Court of Appeal for Ontario Takes Another Look” , 36 Adv. Q. 35 (September 2009), authors Vaughan Black (Dalhousie Law School) and Mat Brechtel (Dalhousie Law School), respond to recent academic criticisms of the Muscutt (“real and substantial connection) test for assuming jurisdiction over non-resident/foreign defendants; most notably, the ground-breaking article by Tanya Monestier, A ‘Real and Substantial’ Mess: The Law of Jurisdiction in Canada” (2007), 33 Queen’s L. J. 179.
Black and Brechtel’s article is timely in light of the recent hearing (on October 5 and 6, 2009) by a five-judge panel convened to decide whether the Muscutt test should be preserved in Charron Estate v. Bel Air Travel Group Ltd. (2008), 92 O.R. (3d) 608 (Ont. S.C.J.) and Van Breda v. Village Resorts Ltd. (2008), 60 C.P.C. (6th) 186 (Ont. S.C.J.) (under reserve). On the other hand, this debate may become moot if the Ontario government accepts the Law Commission of Ontario’s Report, authored by Prof. Janet Walker, recommending the enactment of a modified version of the ULCC’s Court Jurisdiction and Proceedings Transfer Act; see also the Ontario Bar Association Submission on the Codification of Judicial Jurisdiction in Ontario).
The authors argue that the Muscutt test remains useful, albeit it may need a face-lift. Here is a brief excerpt:
“Even had there been no criticisms of Muscutt’s efforts at clarifying Morguard, the combined effect of Spar and Beals might alone justify the Court of Appeal for Ontario revisiting the issue. Our claim here, however, is that none of the foregoing factors makes it necessary to overrule Muscutt. The complaints that it is unfaithful to Morguard strike us as misconceived. Likewise, the arguments that subsequent Supreme Court cases require Muscutt’s rejection seem wide of the mark. We do not deny that there is room for the Supreme Court to illuminate the limits on adjudicatory jurisdiction. A case can be made that such clarification is overdue. Until that happens, however, Muscutt will continue to provide a useful practical framework that responds as well as any case could to the Supreme Court’s sometimes equivocal statements and the profession’s wish for practical guidance.”