In Search of a Convenient Forum: Evolving Jurisdictional Considerations for Employers
Waggott, George, Podowski, Darrell, Business Law International
In early May 2013, trucks began hauling the first loads of copper ore out of the Cerovo mine, located deep in the mountains of eastern Serbia. Located just outside the hardscrabble mining town of Bor, not far from the Bulgarian border, the Cerovo mine contains vast reserves of copper, gold and silver.
Copper mining has been big business in eastern Serbia for over a century, and over the last few years the once-shuttered Cerovo mine has attracted millions of dollars in investment from both Serbian and international companies. One of the early players in the Cerovo project was a Serbian company controlled by Laurence Marsland, an Australian mining executive based in Bulgaria.
Prior to founding his Serbian company, Marsland had been employed by Toronto-based Dundee Precious Metals Inc ('Dundee') as their chief operating officer, overseeing the development of mining assets in Serbia. When Marsland left to form his own company, Dundee became very suspicious. So much so that in 2010, Dundee filed a statement of claim in Toronto, alleging that Marsland had breached his duties to the company and was using Dundee's confidential information to misappropriate a corporate opportunity for himself.
When word of the action reached Marsland, he retained counsel in Ontario, who quickly moved for an order to dismiss on the basis that Ontario had no jurisdiction to hear the matter. Marsland, after all, was not a Canadian national. He had never lived, worked or paid taxes in Canada. The mine was in Serbia, his company was in Serbia and he had only worked in Europe for Dundee. He had no office or staff or files in Toronto, and had only ever come to the city for quarterly meetings.
Marsland: Superior Court decision
The Ontario Superior Court agreed with Marsland,1 and Dundee's action was dismissed. In reaching its decision, the Court applied the 'real and substantial connection test', which required that the Court 'be satisfied that there is a real and substantial connection to Ontario'.2 The leading articulation of this test was, at the time, the 2010 Ontario Court of Appeal decision of Van Breda?
Van Breda and the real and substantial connection test
For the past several decades, Canadian courts have found jurisdiction where there is a 'real and substantial connection'4 between the action and the place. Where such a connection existed, they had jurisdiction simpliciter to hear a matter. Typically a court would then consider whether another forum was more appropriate than Ontario to hear the matter under the doctrine of forum non conveniens. Where Ontario (a) had jurisdiction and (b) decided that no other forum was more appropriate, then the action could proceed.
In Van Breda, the Court found occasion to revisit the real and substantial connection test as articulated in the seminal 2002 decision of Muscutt v Courcelles5 ('Muscutt '). Far from abandoning Muscutt, the Court arrived at a new formulation of the test, recognising a number of developments in the law of jurisdiction that had occurred in the eight years since Muscutt was decided.
In the years following the Muscutt ruling, Canadian courts grappled with related issues such as the enforcement of foreign judgments6 and assumed jurisdiction,7 and emerging international doctrines such as 'forum of necessity', which had begun to take root in Canadian law.8 Four provinces and territories had adopted a common jurisdiction statute. Developed by the Uniform Law Conference of Canada, the Court Jurisdiction and Proceedings Transfer Act9 provided courts with a set of six enumerated factors to guide the use of discretion when considering whether to exercise jurisdiction over a matter, or whether another jurisdiction was the more appropriate forum.
In addition to a changing legal landscape, the Muscutt decision had been subjected to academic and judicial criticism.10 In particular, many commentators found the eight-part test to be too flexible, too subjective and too uncertain. …