The Ontario Superior Court of Justice in its judgment released on November 2, 2010, in MCAP v. Genexa Medical et al, 2010 ONSC 6050 (CanLII) followed the decision in A1 Pressure Sensitive Products, which stated that the test for determining jurisdiction set out in Muscutt and Van Breda also applies to breach of contract cases. Also, the Court decided that it should exercise jurisdiction in the case at bar.

The Court summarized that the core of the “real and substantial connection” test which was established in Muscutt and Van Breda is 1) the connection between the plaintiff’s claim and the forum and 2) the connection between the defendant and the jurisdiction, in particular, the things done by the defendant within the jurisdiction; therefore, the defendant’s “physical presence or activity within the jurisdiction is not always required”.

The Court first found that the statement of claim was properly served outside Ontario on the basis that “the existence of a dispute as to whether the contract is enforceable cannot trump the application of Rule 17.02(f)(ii)”. In applying the “real and substantial connection” test, the Court found that the claim arising out of the plaintiff’s purchase of the equipment from one of the defendants was “one rooted solidly, if not entirely, in Ontario” and the lease of that equipment to the moving parties, which were residents of Alberta, was “simply a byproduct of that transaction”.

The Court also noted that in Van Breda the Court of Appeal “re-affirmed the proposition that the assumption of jurisdiction is more easily justified in inter-provincial cases than in international cases”.

David Alderson, LL.B, LL.M (Lond.)

Masha Loftus, M.A., J.D

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