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Private International Law - Jurisdiction Simpliciter (2). Pringle v. Zenova Group PLC
In Pringle v. Zenova Group PLC (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this brought against a defendant's successful "motion under r. 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194," where "the motion judge concluded that the appellant was an independent contractor – not an employee – for the purposes of the Employment Standards Act".
The court considered the jurisdiction simpliciter and forum non conveniens doctrines, here in an employment context:2. Jurisdiction Simpliciter and Forum Conveniens
[89] I will deal briefly with two issues that were not addressed by the motion judge and received little attention in the argument of the appeal. These are raised by the respondents as alternative bases for a stay of the action. The first issue is whether the Ontario court has jurisdiction simpliciter over the action. The onus is on the appellant to establish jurisdiction. The second issue is whether there is a more convenient forum for the action. The onus is on the respondents to establish that their preferred venue, England, is the more appropriate forum.
a. Ontario Has Jurisdiction Over the Dispute
[90] For the jurisdiction issue, the question is whether there is a “good arguable case” that there is a “real and substantial connection” between the action and Ontario sufficient to establish jurisdiction over a foreign defendant: GlycoBioSciences Inc. v. Herrero and Associates, 2023 ONCA 331, at para. 6, leave to appeal refused, [2023] S.C.C.A. No. 268. The determination of this question requires an assessment of the relationship between the parties and Ontario, based on the pleadings and any evidence before the court: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, at para. 72.
[91] The respondents contend that none of the presumptive connecting factors that would prima facie entitle a court to assume jurisdiction over a dispute, as identified in Van Breda, exist in this case. They are not domiciled or resident, nor do they carry on business in the province. There is no tort that was committed in the province and the contract associated with the dispute – the Agreement – was not made in Ontario.
[92] The appellant argues that the fact that the Agreement was substantially performed in the province should be recognized as a new presumptive factor. He relies on this court’s recent decision in Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada, 2022 ONCA 862, 165 O.R. (3d) 189 which he says identified as a presumptive factor connecting the action to Ontario that the Agreement was allegedly breached in the province: at paras. 47-49, 77-80.
[93] I am satisfied that the appellant has met his burden to establish that the Ontario court has jurisdiction over his action. The services provided under the Agreement were performed by the appellant in Ontario, and the Agreement expressly contemplated that it would be performed in Zenova’s principal office in Canada, which, when the services were provided, and with the agreement of Zenova, was located in Ontario. I agree with the appellant that, under these circumstances, the respondents would reasonably have expected to face a claim from the appellant in Ontario where they employed his services on a full-time basis. Further, the alleged contract breach occurred when the appellant received the letter of termination in Ontario. As a result, I am satisfied that Ontario has jurisdiction as the place where the Agreement was allegedly breached.
b. England Is Not a More Convenient Forum
[94] With the Ontario court having jurisdiction, the onus is on the respondents to establish that their preferred forum is clearly more appropriate, as being “in a better position to dispose fairly and efficiently of the litigation.”: Van Breda, at para. 109. Relevant factors include:(a) the location where the contract in dispute was signed;
(b) the applicable law of the contract;
(c) the location of witnesses, especially key witnesses;
(d) the location where the bulk of the evidence will come from;
(e) the jurisdiction in which the factual matters arose;
(f) the residence or place of business of the parties; and
(g) the loss of a legitimate juridical advantage.
(Black & McDonald Limited v. Eiffage Innovative Canada Inc., 2023 ONCA 91, 34 C.L.R. (5th) 62, at para. 16; Young v. Tyco, 2008 ONCA 709, 92 O.R. (3d) 161, at para. 26). [95] Each side asserts that the relevant factors favour their preferred forum. The respondents’ main arguments are that their business and registered offices are located in England, that all witnesses apart from the appellant, and all representatives of Zenova are in England or outside Ontario, and that the majority of key evidence, including Zenova’s internal data and documentation, is located in England. The appellant submits that, while the Agreement may not have been signed in Ontario, it was substantially performed and breached in Ontario when Zenova purported to terminate the Agreement without notice. He points to the termination letter alleging that Zenova had cause to terminate the Agreement specifically because he was “providing services to at least two other businesses”, and the refusal or inability of its representatives under cross-examination on the motion to identify where such businesses were located, except to surmise that they were “somewhere in Canada”. He asserts that the factual matters that will need to be determined arose in Ontario, and that there will likely be witnesses from Ontario, other than himself.
[96] I am not persuaded that the respondents have met their burden to establish that England is clearly a more appropriate forum for the litigation of this matter. The action involves an employment contract where services were provided by the appellant in Ontario and where both the breach and the alleged just cause for termination are connected to Ontario. While it can be anticipated that there will be witnesses and documentation in Ontario as well as in England, with today’s modern technology, the location of witnesses and documents is not determinative: Young, at para. 52; Kyko Global Inc. v. M/S Crawford Bayley & Co., 2021 ONCA 736, at para. 40. . Bridging Finance Inc. v. Sharpe
In Bridging Finance Inc. v. Sharpe (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here where "the motion judge found that jurisdiction simpliciter was established over the dispute. The motion judge also determined, on a forum non conveniens analysis, that Ontario is the most appropriate and convenient jurisdiction for the actions."
Here the court considered the doctrine of 'jurisdiction simplictor':JURISDICTION SIMPLICITER
1. General principles
[24] In Van Breda, the Supreme Court of Canada set out the two-stage test for establishing jurisdiction simpliciter. There must be a real and substantial connection between the circumstances giving rise to the claim and the forum in which it is brought. The real and substantial connection test “seeks to mitigate the jurisdictional overreach that can arise when the connection between the forum, the subject matter of the dispute, and the defendant is not sufficient for a court to assume jurisdiction”: Sinclair, at para. 44. The test posits four non-exhaustive factors that presumptively allow a court to assume jurisdiction over a dispute in tort cases:(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) The contract connected with the dispute was made in the province. [25] If the plaintiff establishes one or more of the presumptive connecting factors, the court can presume that the claim is properly within its jurisdiction: Van Breda, at para. 80. The defendant can rebut the presumption by showing that the factor does not, in the circumstances of the case, point to a real relationship between the dispute and the forum: Van Breda, at para. 95. Absent such rebuttal, the court must accept jurisdiction over the dispute: Sinclair, at para. 49.
[26] As explained in Sinclair, at para. 50: “[t]he assessment of whether a presumptive connecting factor has been established is concerned with the existence of a connection between the jurisdiction and the dispute, whereas the assessment of whether the presumption has been rebutted is concerned with the strength of that connection” (emphasis in original). Together, the two stages allow for a holistic assessment of whether a real and substantial connection exists.
[27] The standard for establishing a presumptive connecting factor is low and requires only that plaintiff to show a “serious question to be tried” or a genuine issue, or that the case has some chance of success. This is “an objectively ascertainable and relatively low bar”: Haaretz, at para. 30; Sinclair, at para. 59.
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[41] The Trustee relies on the recent decision of the Supreme Court in Sinclair, in which the Court stated, at para. 63:In cases where there are multiple defendants, jurisdiction should be examined from the perspective of each defendant rather than in light of the factual and legal situation writ large. The reason for examining jurisdiction from the perspective of each defendant is that, when a court takes jurisdiction over a claim, it assumes the authority not only to adjudicate the claim but also to make orders against each defendant. For this power to be exercised legitimately, the court must be satisfied that the requisite connection exists in respect of each defendant who may be subject to that power. An assumption of jurisdiction without the requisite connection amounts to judicial overreach. As such, there should be no “bootstrapping”, where the legitimate establishment of jurisdiction over one defendant is taken uncritically to imply jurisdiction over all defendants. This includes cases where, as here, one defendant attorns to the court’s jurisdiction but the others resist it. There must be a presumptive connecting factor that applies to each defendant. [42] Applying this principle to the instant case, the presumptive connecting factors must be linked, not just to the other defendants, but to the Trustee itself as a defendant resident in Liechtenstein. .... . Sinclair v. Venezia Turismo
In Sinclair v. Venezia Turismo (SCC, 2025) the Supreme Court of Canada dismissed an appeal, this from an Ontario Court of Appeal ruling that held that an Ontario lawsuit relating to a tort case largely centred in Italy was out of the Ontario court's jurisdiction.
Here the court comments on jurisdiction simpliciter:[1] This appeal requires an application of the two‑stage test for establishing jurisdiction simpliciter set out in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572. The foundation of any legitimate assumption of jurisdiction is a real and substantial connection between the forum and the dispute. More specifically, this appeal is about whether the fourth presumptive connecting factor identified in Van Breda — “a contract connected with the dispute was made in the province” (para. 90) — has been established or, in other words, whether there is a contractual connection with the province, and, if so, whether the presumption of jurisdiction has been rebutted.
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[7] In cases where parties seek to establish jurisdiction simpliciter in a Canadian forum over a foreign dispute, it is critical that they plead with precision and that courts engage in robust reasoning, which includes a thorough review of the contract being relied upon for the assumption of jurisdiction. Courts should be cautious and not accept tenuous forms of real and substantial connection in the jurisdiction simpliciter context. In cases where there are multiple relevant contracts, courts should analyze each contract, as opposed to relying merely on a vague “constellation of contracts”, which in the present context means a number of related contracts. If the presumptive connecting factor is established, it is for the defendant to assert a rebuttal. The defendant can do so by showing that the presumptive connecting factor does not point to any real relationship between the subject matter of the dispute and the contract made in the province or merely indicates a weak relationship between them. . Sinclair v. Venezia Turismo [ESSENTIAL]
In Sinclair v. Venezia Turismo (SCC, 2025) the Supreme Court of Canada dismissed an appeal, this from an Ontario Court of Appeal ruling that held that an Ontario lawsuit relating to a tort case largely centred in Italy was out of the Ontario court's jurisdiction.
Here the court distinguishes between the essential PRIL concepts of 'jurisdiction simpliciter' and 'forum non conveniens':(3) Distinguishing Between Jurisdiction Simpliciter and Forum Non Conveniens
[77] Before turning to the application of the two stages of the Van Breda test in the instant case, it is important to recall that both of these stages, which together make up the test for jurisdiction simpliciter, are analytically distinct from the issue of forum non conveniens. The issue of forum non conveniens is not before our Court in this appeal, but it nonetheless bears recalling the distinction between the two doctrines.
[78] Forum non conveniens is a common law doctrine that allows a court to stay a civil action when the court has jurisdiction over the case and the parties. In other words, this doctrine operates only once jurisdiction has already been assumed. Forum non conveniens is a discretionary remedy which allows a court properly seized with jurisdiction to decline to exercise it. This remedy is adopted on occasions where an alternative appropriate forum would be a more convenient venue in which to try the action. As a doctrine, it has no bearing on the jurisdictional analysis itself, as it comes into play only after jurisdiction has been established (Van Breda, at para. 102).
[79] As explained by our Court in Van Breda, the doctrine of forum non conveniens “tempers the consequences of a strict application of the rules governing the assumption of jurisdiction” (para. 104). This purpose is grounded in recognition of the fact that the assumption of jurisdiction is based on objective factual connections, which could at times produce rigid or inflexible results that fail to consider the actual circumstances of the parties. As such, the doctrine of forum non conveniens recognizes the residual discretion of courts to decline to exercise their jurisdiction (once established) where fairness to the parties and the efficient resolution of the dispute so require (Van Breda, at para. 104).
[80] Jurisdiction simpliciter is not discretionary. This is a key distinction with the doctrine of forum non conveniens. Jurisdiction is assumed on the basis of objective factors. If the assumption of jurisdiction results in unfairness or inefficiency, a party can seek to move the matter to a different forum. In this way, forum non conveniens can be relied upon to address the case‑specific, subjective interests of the parties, but it does not bear on the assumption of jurisdiction itself. The two frameworks should not be confused nor conflated.
[81] Some potential confusion regarding the distinction between jurisdiction simpliciter and forum non conveniens stems from the fact that the jurisdiction simpliciter analysis, as formulated by this Court in Van Breda, itself has two stages: (1) whether there is a presumptive connecting factor; and (2) whether the presumption of jurisdiction can be rebutted. Just as the two stages of the Van Breda test must not be collapsed, special care must be taken not to collapse the rebuttal stage into the distinct doctrine of forum non conveniens. In oral argument, counsel for the British Columbia Chamber of Commerce submitted that the rebuttal stage of the presumptive factor analysis is “concerned with legitimacy and [an assessment of] the strength of the [contractual] connection [to the tort in question], whereas forum non conveniens is concerned with the interests of the parties and the ends of justice” (transcript, at p. 86). I agree with this submission. . 778938 Ontario Limited v. EllisDon Corporation
In 778938 Ontario Limited v. EllisDon Corporation (Ont CA, 2023) the Court of Appeal allowed a venue appeal, here between Ontario and Nova Scotia, even though the Ontario court had 'jurisdiction simpliciter'. The case is also notable for considering venue, jurisdiction simplicter and forum non conveniens in an inter-provincial context, not an international one.
In this quote the court considers jurisdiction simpliciter:(i) Jurisdiction simpliciter
[12] EllisDon did not seriously challenge that jurisdiction simpliciter is established in this case by the presence of one or more of the presumptive connecting factors that underlie the real and substantial connection test articulated by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, at paras. 82, 90.[1] EllisDon conceded that the parties are headquartered, domiciled and carry on business in Ontario. This is not the case of an out-of-town defendant.
[13] However, EllisDon argues that this jurisdiction is presumptive, and is rebutted because there is a very weak connection between the subject matter of the action and Ontario.
[14] We reject EllisDon’s argument for the following reasons.
[15] We are not persuaded that EllisDon has demonstrated that there is such a weak relationship between the forum and the subject-matter of the litigation that the proposed assumption of jurisdiction would be inappropriate: Van Breda, at paras. 81, 97.
[16] In our view, assumed jurisdiction is clearly made out here by the real and substantial connection between the subject matter of the action and the forum. In addition to the presence of the parties in Ontario, there are other connecting factors. The contract was negotiated by the parties in Ontario and signed in Ontario by The Roy, at its headquarters in Ontario. There is no evidence as to where EllisDon signed the contract other than that the signatory was an employee resident in Nova Scotia who had come to Ontario during the contract negotiations. However, there is no issue that EllisDon is an Ontario registered corporation. It is therefore a fair inference that, regardless of who actually signed the contract, the corporate decision to enter into the contract was made by its corporate decision-makers located in EllisDon’s head office in Ontario. Moreover, the respondents’ unchallenged evidence is that in addition to EllisDon’s personnel in Halifax, consultants from EllisDon located in Ontario worked on the project, and the overall supervision of the project was by upper management of EllisDon located in Ontario. As a result, the alleged breach of contract and negligent supervision are asserted to have taken place in Ontario, as well as in Halifax.
[17] Accordingly, we agree with the motion judge’s conclusion that the Ontario court “has clear jurisdiction.”
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