Muscutt Quintet Test Simplified in Van Breda v Village Resorts Ltd

Almost eight years ago, the Ontario Court of Appeal (“ONCA”) set out an eight-factor test in Muscutt v Courcelles (2002), 60 OR (3d) 20 [Muscott], to determine what circumstances Ontario could take jurisdiction over an out-of-province defendant. The OCA held that there must be a “real and substantial connection” between the dispute and forum for taking jurisdiction over an out-of-province defendant.

However, on February 2, 2010, the court heard two cases that led to a re-articulation of the eight-step Muscutt test. The two cases, consolidated on appeal as Van Breda v Village Resorts Limited, 2010 ONCA 84 [Van Breda], involved Ontario residents suffering personal injuries in Cuba. The court simplified the test, condensing an eight-factor analysis into a two-step analysis. They held two considerations to be the crux of the test and the rest of the six factors as general principles to be considered in accordance.

The Issue

Both cases in Van Breda involve claims for personal injury damages as a result of accidents suffered by Canadian tourists in Cuba. In both cases, the respective motion judge held that Ontario should assume jurisdiction.

Case 1: Charron

The respondents, Claude and Anna Charron, booked a one-week, all-inclusive package for two at a resort in Cuba, which included scuba diving at the resort. Unfortunately, four days after their arrival, Claude went scuba diving and died during the dive. The respondents’ family brought a claim against several Ontario defendants and several foreign defendants, including the scuba diving equipment provider, the diving instructor at the marina, and the captain of the diving boat. The motions judge concluded that Ontario had the jurisdiction to hear the case.

Case 2: Van Breda

The respondents, Morgan Van Breda and Victor Berg, traveled to Cuba for a week-long vacation. Mr. Berg was asked to act as a tennis instructor for two one-hour sessions per day in exchange for accommodation with a guest in a shared room, including all meals and transportation to and from the hotel. Upon their arrival, Ms. Van Breda attempted to do chin-ups on an apparatus on the beach. The apparatus collapsed on top of her. The motions judge concluded that Ontario had the jurisdiction to hear the case.

The Real And Substantial Connection Test

Morguard Investments Ltd v De Savoye, [1990] 3 SCR 1077, first laid down the test for assuming jurisdiction. The test required a finding of a “real and substantial connection” between the dispute and the forum in question. The Ontario Court of Appeal further clarified the test in Muscutt by setting out eight factors to consider to determine whether there is a real and substantial connection:

1. The connection between the forum and plaintiff’s claim;
2. The connection between the forum and defendant;
3. Unfairness to the defendant in assuming jurisdiction;
4. Unfairness to the plaintiff in not assuming jurisdiction;
5. The involvement of other parties to the suit;
6. The court’s willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis;
7. Whether the case is interprovincial or international in nature; and
8. Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere.

The Revised Test

The appellants argued that the conventional Muscutt test should be replaced by an approach based on the Uniform Law Conference model Court Jurisdiction and Proceedings Transfer Act, SBC 2003, c 28 [CJPTA].

The ONCA acknowledged that the Muscutt test was the conventional test applied by courts when dealing with claims for damages sustained in Ontario as a result of torts committed outside the province. The “Muscutt quintet” reflected an “attempt to guide the courts in determining when jurisdiction should be assumed against an extra-provincial defendant”. The court added that the test should be guided by “requirements of order and fairness, not a mechanical counting of contacts or connections”. As per Muscutt, “[n]o factor is determinative. Rather, all relevant factors should be considered and weighed together.”

Noting the eight-year old quintet test and post-Muscutt developments, they concluded that it was time to consider whether the quintet test should be “retained, modified, simplified or abandoned in favor of a different approach.” The Muscutt test had been criticized for being “subjective”, “complicated” and “too flexible”. The test conferred too much discretion on motion judges and lacked predictability. The ONCA considered the CJPTA, adopted by Saskatchewan, Yukon Territory, Nova Scotia and British Columbia, as a possible approach. The ONCA then modified the Muscutt test by formulating a two-step analysis:

Step 1

There is first a precursory step to determine whether a real and substantial connection is presumed to exist. The presence or absence of a presumption will frame the second step of the analysis.

Step 2

Core of the Analysis (Factors 1 and 2)
The OCA clarified and reassessed the role and weight to be attributed to each factor and affirmed that two factors remain at the core of the analysis: (i) the connection between the forum and the plaintiff’s claim; and (ii) the connection between the forum and the defendant. The OCA held that the remaining six factors should not be treated independently, but should serve as “analytic tools to assist the court in assessing the significance of the connections between the forum, the claim and the defendant.”

Consideration of Fairness (Factors 3 and 4)
The OCA then amalgamated factors 3 and 4 into one consideration of fairness. Consideration of fairness is not a free-standing, separate consideration, but must be seen as a necessary tool in assessing the relevance, quality and strength of the core connections, whether they amount to a real and substantial connection and whether assuming jurisdiction accords with the principles of order and fairness.

Irrelevance of Involvement of Other Parties (Factor 5)
The involvement of other parties is only relevant where it is asserted as a possible connecting factor and should not be routinely considered.

Extra-provincial judgment (Factor 6)
The sixth factor of the test must be considered as a general overarching legal principle that disciplines the assumption of jurisdiction against extra-provincial defendants. If the court is not prepared to recognize and enforce an extra-provincial judgment against an Ontario defendant rendered on the same jurisdictional basis, it should not assume jurisdiction against the extra-provincial defendant.

Interprovincial or International Case and Comity of jurisdiction (Factors 7 and 8)
The last two factors of the test are not separate considerations, but general principles that shape and guide the real and substantial connection analysis. They are seen as useful analytical tools when applying rules of private international law.

Application and Interpretation

Applying this revised test, the CA dismissed the appeals and upheld the lower court’s decision. Although the appellants did not benefit from the revised articulation, is this test the answer to the jurisdictional authority issues for all out-of-province defendants? Is the Muscutt test now irrelevant?

Citing various academic critics, the Court stated that “ [i]t is not surprising that after seven years in the trenches Muscutt would be due for a tune-up.” Following this line of thinking, this re-articulation of the Muscutt test is a welcome one. However, it does not provide the resounding clarity and change that critics have desired. It does not change the fundamental basis for assumption of jurisdiction by Ontario courts. The real and substantial test continues to be the main method of assessment of jurisdiction. The flexibility and unpredictability that were causes for concern in the Muscutt test continue to prevail in the revised version of the test. Nonetheless, the newly formulated test is clearer in that it focuses on two core considerations, instead of the conventional eight competing factors.

It is too early to tell what the impact of such a decision will be on the courts and whether it will result in more or fewer actions against out-of-province defendants in Ontario. Perhaps Ontario should consider harmonizing with the CJPTA to ensure uniformity in light of the criticism and the court’s movement away from the conventional Muscutt test.