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Articles and Publications

April 2012  

Featured Cases

McCague Borlack on winning side of two cases released
by the Supreme Court of Canada this week

On April 18, 2012, the Supreme Court of Canada released its long-awaited “Jurisdiction Trilogy”, three decisions considering private international law as it relates to litigating claims with extra-jurisdictional elements. McCague Borlack LLP was involved in two of the three cases and is pleased to announce that the Supreme Court upheld the positions of its clients in both.

In Club Resorts Ltd. v. Van Breda, Howard Borlack and co-counsel successfully argued that Ontario could validly assume jurisdiction over a claim arising from a tort occurring in Cuba.

MB counsel in representation of the respondent Banro Corporation in Éditions Écosociété Inc. v. Banro Corp., a defamation action where the appellant sought to have the action tried in Quebec instead of Ontario. The Supreme Court dismissed the appeal, agreeing with Banro’s position that the action was sufficiently connected to Ontario to be tried in this jurisdiction.

The Jurisdiction Trilogy provides clarification as to when a court may assume jurisdiction over claims, known as jurisdiction simpliciter, and further, when a court may decline jurisdiction on the grounds that another forum is clearly more appropriate.

The traditional “real and substantial connection” test for establishing jurisdiction simpliciter has faced considerable academic and judicial scrutiny in recent years due to perceived lack of clarity. The Supreme Court revisited the test in Club Resorts Ltd. v. Van Breda, holding that there are four presumptive connecting factors which entitle a Canadian court to assume jurisdiction in a tort case which are: (a) the defendant is domiciled or resident in the province; (b) the defendant carries on business in the province; (c) the tort was committed in the province; and (d) a contract connected with the dispute was made in the province.

The Club Resorts Ltd. v. Van Breda decision involved two separate tort claims against the appellant Club Resorts, a manager of several Cuban resorts. In the Charron action, in which McCague Borlack acted for an Ontario co-defendant Bel Air Travel Group Ltd., an Ontario physician, Dr. Charron, died in a scuba diving accident at a Club Resorts managed Cuban resort. His wife, Mrs. Anna Charron, and her family members brought the lawsuit in Ontario but Club Resort argued that the dispute should have been brought in Cuba or in the Cayman Islands. The Supreme Court permitted the lawsuit to proceed in Ontario as there was a real and substantial connection between the incident and Ontario. The Supreme Court found that although Club Resorts maintained no Ontario office, it effectively carried on business in Ontario. In the companion case, the Supreme Court again concluded that Ontario was the appropriate jurisdiction to hear the lawsuit commenced by Morgan van Breda, who was seriously hurt at another Club Resorts managed property in Cuba.

In Éditions Écosociété Inc. v. Banro Corp. the Supreme Court considered issues of real and substantial connection, and the appropriate choice of forum, as applied to the legal nuances of the tort of defamation. In this jurisdictional challenge to Banro’s action the Supreme Court refused to recast the tort of defamation and the accompanying tort-specific presumptions about publication and of harm to reputation. In doing so, the Supreme Court confirmed that issues of standing and jurisdiction are distinct from considerations involving substantive elements of a tort claim, particularly where elements of that tort vary depending on the jurisdiction. In addition, the Supreme Court acknowledged that the claim in this case had connections to separate jurisdictions but ultimately agreed with Banro’s position that it was appropriate for the claim to proceed in Ontario.

In the final decision of the trilogy, Black v Breedon, the Supreme Court again considered the tort of defamation, but in the context of internet publication. Certain allegedly defamatory statements had been made in one jurisdiction and posted to the internet, and were downloadable anywhere via internet, including in Ontario. In response to the statements, media mogul Lord Conrad Black commenced a series of defamation actions in Ontario. Citing both Club Resorts Ltd. v. Van Breda and Éditions Écosociété Inc. v. Banro Corp., the Supreme Court outlined the considerations applicable to choice of appropriate forum for the hearing of such actions and granted Black the ability to proceed with the defamatory actions in Ontario.

The Supreme Court’s decisions in the Jurisdiction Trilogy can be accessed online at:

Club Resorts Ltd. v. Van Breda
http://scc.lexum.org/en/2012/2012scc17/2012scc17.html

Éditions Écosociété Inc. v. Banro Corp.
http://scc.lexum.org/en/2012/2012scc18/2012scc18.html

Breeden v. Black
http://scc.lexum.org/en/2012/2012scc19/2012scc19.html.


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