I briefly discussed the recent decision of the Court of Appeal in Ontario in Van Breda v. Village Resorts Limited, 2010 ONCA 84 which modified the “real and substantial connection” test and Muscutt factors here.
Over at conflictoflaws.net, Stephen Pitel in his recent post “Reformulating a Real and Substantial Connection” takes a different tack but comes to a similar conclusion:
“In Van Breda the court determined that it was necessary to “simplify the test and to provide for more clarity and ease in its application”. It held that “the core of the real and substantial connection test” is factors (1) and (2), and held that factors (3) to (8) will now “serve as analytic tools to assist the court in assessing the significance of the connections between the forum, the claim and the defendant”. The court affirms that factors (3) to (8) remain relevant to the issue of jurisdiction, but the court nevertheless reworks the framework, ostensibly so that no one factor from factors (3) to (8) could be analyzed separately from the other factors and could be independently determinative of the outcome. It is not clear that this change was necessary or that it makes the framework clearer and easier to apply.
For many, Van Breda violates the idiom “if it ain’t broke, don’t fix it”. The Muscutt framework was well-known and was working effectively. It was relatively easy to explain and to apply. In time we will know if as much can be said for the use of presumptions and the Van Breda framework, but for the moment there are questions about how the presumption will operate when challenged by a defendant and about the ongoing role of the factors the court now calls analytic tools.”
While I agree with Pitel that “[t]he Muscutt framework was well-known”, I disagree that it was “working effectively” or that it “was relatively easy to explain and to apply.” The issue is not whether the Muscutt factors have pedagogical value, but whether the “real and substantial connection” test under the aegis of eight “non-discretionary” factors have led over time, to fair, efficient and predictable results based upon the principles of order and fairness. Without fairness, there is only disorder and it remains to be seen if the “new and improved” Van Breda test will bring order out of jurisdictional chaos.