Ouch! That’s Gotta Hurt

The recent Ontario decision in Mehmood v. Gray, 2011 ONSC 1735 (CanLII) involves a generic jurisdictional challenge applying the Ontario Court of Appeal’s reformulated “real and substantial” test in Van Breda v. Village Resorts. (see a couple of my previous posts  here and here).  Mehmood v. Gray is noteworthy for two reasons:

1.  While Justice Sproat’s analysis does not fully address the rebuttable presumptions under 17.02 of the Rules of Civil Procedure, the decision is otherwise sound. However, based upon the pointed questions posed by the Supreme Court of Canada during oral arguments this past week (see the SCC webcast here : Microsoft Silverlight software required), I predict that the new Van Breda test will be rejected. In its stead, the Supreme Court appears poised to  put “order” ahead of “fairness”. Hopefully, the Supreme Court will create a judicial test that eschews discretion and creates greater certainty and predictability based upon subject-matter jurisdiction—the connection between the subject-matter of the litigation and the defendant.

2.  The motion judge’s decision is also sobering for some litigators who may take the conflict of laws issues too lightly. Jurisdictional motions require a sound litigation strategy comprised of both substantive and procedural law analysis and must be fully briefed beforehand:

[20] Mr. Rameshwer S. Sangha is the solicitor of record and Ms. Sahi argued this motion as his agent.

[21] While I am satisfied that nothing could have altered the results of the motion, there are a number of aspects of Mr. Sangha’s handling of this matter which cause me concern:

(a) Mr. Sangha’s law clerk filed an affidavit indicating that, “I have been assigned carriage of this matter under the supervision of Mr. Sangha…”;

(b) detailed information concerning the plaintiff’s injuries and treatment record was relevant and readily available but not provided;

(c) Ms. Sahi said she was doing the best she could in making submissions but only received the file the night before at 6:00 p.m. and had not read all the moving parties’ authorities. When I inquired she said Mr. Sangha was not there because he was not feeling well. If Mr. Sangha was ill, and could not argue the motion, he should have requested an adjournment, not sent an agent who could not be fully prepared;

(d) the plaintiff’s factum referred solely to the Muscutt case and not to the later case of Van Breda which is obviously the leading case and which re-formulated the Muscutt factors.

[22] A copy of this endorsement shall be provided by Mr. Sangha to the plaintiffs.”

Ouch! That’s gotta hurt.

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