On February 2, 2010, the Court of Appeal for Ontario released decisions involving the jurisdiction of Ontario Courts for accidents occurring outside the Province. The decisions in Van Breda v. Village Resorts Limited and Charron v. Bel Air Travel Group Ltd., 2010 ONCA 84, involved a serious accident and death while the Plaintiffs were vacationing in Cuba. The question at issue was whether Ontario Courts could assume jurisdiction over the resulting actions, or whether the claims would have to be brought in Cuba. The issue is an important one. With the ease and frequency of travel, it is to be expected that some travellers will meet with injury while outside of their home jurisdiction. When the injured person returns home and is required to seek medical attention, the venue of a legal action can take on real practical importance.
The appeals in the two cases had been argued in April, 2009. While the decisions were under consideration, the Court decided that it would take the opportunity to revisit its earlier ruling in Muscutt v. Courcelles and four companion cases. The cases dating back to 2002, which had come to be known as the Muscutt quintet, set out an eight part test for deciding whether Ontario Courts should assume jurisdiction in cases involving accidents occurring outside the Province. As a result of academic criticism that the multi-factored test had created too much uncertainty and discretion, the Court of Appeal decided that a second look at the issue was required. The Court convened a five judge panel and the parties were invited to reargue the appeals, with particular attention to the continued viability of the Muscutt framework. I became involved in the matter at that point, as counsel for the intervenor the Ontario Trial Lawyers Association.
The resulting decisions were authored by Mr. Justice Robert Sharpe, who had also written the decisions in the Muscutt quintet. Justice Sharpe agreed that, after seven years in the litigation trenches and hundreds of similar cases, the Muscutt quintet was due for a “tune up.” He disagreed, however, with the overarching criticism that the decisions created too much uncertainty, stating “In my view, the submissions of the appellants exaggerate both the degree of uncertainty produced by Muscutt and the degree of certainty and predictability that would be achieved by adopting CJPTA.” (the Court Jurisdiction and Proceedings Transfer Act enacted in four Provinces) Justice Sharpe went on to propose “clarifications and modifications” to the Muscutt test which are designed to simplify the analysis, stating:
The core of the real and substantial connection test is the connection that the plaintiff’s claim has to the forum and the connection of the defendant to the forum, respectively. The remaining considerations or principles serve as analytic tools to assist the court in assessing the significance of the connections between the forum, the claim and the defendant.
Regarding the criticism that considerations of fairness had created a test that was too discretionary, Justice Sharpe again clarified that:
consideration of fairness should not be seen as a separate inquiry unrelated to the core of the test, the connection between the forum, the plaintiff’s claim and the defendant. Consideration of fairness should rather serve as an analytic tool to assess the relevance, quality and strength of those connections, whether they amount to a real and substantial connection, and whether assuming jurisdiction accords with the principles of order and fairness.
The intent of these important decisions is to try and simplify this complex and difficult area of the law. It will be interesting to see how the decisions are applied in practice.