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PRIL - 'Real and Substantial Connection'

. Abaxx Technologies Inc. v. Pasig and Hudson Private Limited

In Abaxx Technologies Inc. v. Pasig and Hudson Private Limited (Ont CA, 2024) the Court of Appeal considered 'venue' based on the Van Breda 'real and substantial connection' test, and as well a related contrasting of the standard for such a motion ['good arguable case'] compared both the distinct R20 ['summary judgment'] standard ('genuine issue for trial'), and R21 ['determination of issue before trial'] ('plain and obvious'):
[13] The respondents brought companion motions to dismiss the claim on the ground that the claim lacks a real and substantial connection to Ontario that would ground jurisdiction over the claim in this province, and, in the alternative, that Singapore would be the preferable forum.

[14] None of the respondents have a presence in Ontario nor did they attorn to the jurisdiction.

[15] The motion judge correctly identified the test to establish the requisite jurisdictional connection to Ontario as set out in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, at para. 90, namely that (i) the defendant is domiciled or resident in the jurisdiction, (ii) the defendant carries on business in the jurisdiction, (iii) the tort was committed in the jurisdiction, or (iv) a contract connected with the dispute was entered into in the jurisdiction.

[16] He noted that the moving party must demonstrate a “good arguable case” on the basis of the pleadings and/or the evidence filed on the jurisdiction motion: Ontario (Attorney General) v. Rothmans Inc., 2013 ONCA 353, 115 O.R. (3d) 561, at para. 54, leave to appeal refused, British American Tobacco P.L.C. v. Ontario, [2013] S.C.C.A. No. 327. The presumption of jurisdiction arising from these factors may be rebutted by showing that there is at most, a weak relationship between the subject matter of the litigation and the proposed forum: Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30, [2016] 1 S.C.R. 851, at para. 27.


[24] We see no error in the motion judge’s articulation of the test, his application of the test to the evidence, or his findings of fact. The appellants had the opportunity to lead evidence to challenge the rebuttal of the presumption of jurisdiction but failed to do so. We therefore agree with the motion judge that the appellants did not demonstrate that there was a “good arguable case” made out on the pleadings and or evidence filed on the motion. Nor do the demands of fairness, efficiency and justice augur in favour of the court in Ontario assuming jurisdiction over this claim, as the appellants have not demonstrated that Ontario should assume jurisdiction over any of the parties or any of the claims.

[25] Finally, we do not agree that the motion judge improperly embarked on a “disguised, unrequested and premature Rule 20 and/or Rule 21 motion.” The threshold posed by a “good arguable case” is commensurate with a genuine issue to be tried and is a higher threshold than the plain and obvious standard applied on a Rule 21 motion.
. Castillo v. Xela Enterprises Ltd.

In Castillo v. Xela Enterprises Ltd. (Ont CA, 2024) the Court of Appeal considered an appeal of a contempt finding, here where the contemnor (the one being in contempt) sworn a key Declaration in Guatemala.

Here the court discusses the 'real and substantial connection' test:

(1) Did the motion judge err in law by holding that the court had territorial jurisdiction to find the appellant in contempt based on his Declaration that was not made in Canada but in Guatemala?

[55] The appellant submits that because the court found that the contemptuous conduct by the appellant was making the Declaration in Guatemala, the court did not have territorial jurisdiction to make the contempt finding against him. The appellant relies on the Supreme Court of Canada’s decision in Libman v. The Queen, 1985 CanLII 51 (SCC), [1985] 2 S.C.R. 178, at pp. 199, 212-13, 1985 CanLII 51, at paras. 42, 73-76.

[56] In Libman, the Supreme Court set out the test for determining when a Canadian court may take jurisdiction over a criminal offence that occurred in whole or in part outside Canada. LaForest J. summarized the test at pp. 212-12 (para. 74):
As I see it, all that is necessary to make an offence subject to the jurisdiction of our courts is that a significant portion of the activities constituting that offence took place in Canada. As it is put by modern academics, it is sufficient that there be a “real and substantial link” between an offence and this country, a test well-known in public and private international law.
[57] He concluded at p. 213 (para. 76):
Just what may constitute a real and substantial link in a particular case, I need not explore. There were ample links here. The outer limits of the test may, however, well be coterminous with the requirements of international comity.
[58] The test also applies to a finding of civil contempt: see Canada (Human Rights Commission) v. Canada Liberty Net, [1998] 1 S.C.R. 626, at p. 670, 1998 CanLII 818, at para. 52.


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Last modified: 04-03-24
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