Here’s more proof why lawyers and judges should read this blawg, or at least note up their cases once in a while.
In my earlier post,”Attention All Canadian Judges: Muscutt is Old News” I noted that some courts were still applying Muscutt v. Courcelles, despite Justice Sharpe’s modification of the the “real and substantial connection” test in Van Breda (currently pending appeal in the Supreme Court of Canada).
Despite the ubiquity of online legal resources; specifically CanLII (and even subscription based legal research portals), a handful of Canadian courts—Nova Scotia, Newfoundland & Labrador and even Ontario—continued to apply the Muscutt factors in motions challenging jurisdiction post-Van Breda.
I appreciate that sometimes it takes a few weeks, or a even a couple of months, before a legal development in one province filters down into another province. But a year later?
Check Group Canada Inc. v. Icer Canada Corporation, 2010 NSSC 463 (CanLII):
“ The “Muscutt factors” have been adopted and applied in Nova Scotia in many decisions, and in respect of s.4 of the CJPTA, in McDermott Gulf Operating Co. v Oceanographia Sociedad Anonima de Capital Variable, 2010 NSSC 118 (CanLII), 2010 NSSC 118 [McDermott Gulf Operating]. Further, these factors, as well as Sharpe J.A.’s analysis, were explicitly endorsed by the Court of Appeal in Bouch v. Penny, 2009 NSCA 80 (CanLII), 2009 NSCA 80 [Bouch II].
 The Choueke defendants submit that an analysis of the Muscutt factors strongly militates against the assumption of jurisdiction. The plaintiff argues that the Muscutt factors support a finding of territorial competence.
 In my view, at the first‑stage of the CJPTA analysis, if the only basis for territorial competence is a real and substantial connection, a detailed analysis of each Muscutt factor is not always necessary. “The real and substantial connection test requires only a real and substantial connection, not the most real and substantial connection” [emphasis in original] (Muscutt at 594; See also Bouch II at para.49). This is to be distinguished from the doctrine of forum non conveniens, which acknowledges that more than one forum can have jurisdiction, and instead asks which forum is the most appropriate for adjudicating the subject matter. Where the Muscutt factors support a finding of real and substantial connection, it is not necessary, at the first‑stage, to also ask whether the forum has the most real and substantial connection.
 In this case, two Muscutt factors support a finding of a real and substantial connection to Nova Scotia: 1) the connection between the forum and the plaintiff’s claim; and 2) unfairness to the plaintiff in not assuming jurisdiction (without unfairness to the defendant in assuming jurisdiction).”