Background & purpose of the system 1 basic institutions, processes, and players 3
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- Van Breda TEST
3 ways to challenge service:Improper service (r 17.05) *rare technicality, not a strong argument E.g. did not serve personally Courts generally view substance of service as being more important than the form of its giving: if D gets notice, will likely be upheld Farrow Ontario lacks jurisdiction: no real and substantial connection Van Breda Defendant can challenge service on a r. 17.06(1)(a) motion on the grounds that Ontario lacks jurisdiction (on grounds provided in r. 17.06(2)(a) or (b)) – seeking relief provided in r. 17.06(1)(a) (set aside service) Ontario has jurisdiction but it is forum non conveniens – seek stay of proceedings under 17.06 D must identify alternate forum have jurisdiction (real and substantial connection) and is “clearly more appropriate” (Van Breda) This is based on recognition that common law court retains power to decline to exercise its jurisdiction to assure fairness and efficiency in limited circumstances Van Breda TESTFacts: Two individuals injured while on vacation in Cuba. Incidents occurred at a hotel incorporated in the Cayman Islands (Club Resorts). Club Resorts sought to block the proceedings by arguing ON did not have jurisdiction, or in the alternative was forum non conveniens Held: ON had jurisdiction and was clearly the more appropriate forum Little evidence but living in ON at the time, pain and suffering CR advertising in ON would not be enough Contract made in ON – on it’s face presumptive factor that means ON has jurisdiction, CR did not rebut FNC: fairness to the parties, would unnecessarily burden plaintiffs to force to bring their action in Cuba Jurisdiction and forum non conveniens are separate considerations. The court makes a discretionary judgement on each issue, either of which may preclude service outside of ontario. Does ON lack jurisdiction? Are presumptive connecting factors present (found in r. 17.02) (Van Breda, paras. 43, 86- 90.)? “rule 17.02 is purely procedural in nature and does not by itself establish jurisdiction in a case” Presumptive factors: (a) the defendant is domiciled or resident in the province; (b) the defendant carries on business in the province; (c) the tort was committed/damage occured in the province; and (d) a contract connected with the dispute was made in the province. Presence of the P doesn’t necessarily create a connection, but D does “The notion of carrying on business requires some form of actual, not only virtual, presence in the jurisdiction, such as maintaining an office there or regularly visiting the territory of the particular jurisdiction.” Location of damages can be difficult to determine where pain and inconvenience started/occurred If so, burden on defendant (moving party on motion) to show no real and substantial connection (to rebut the presumption) If not, then onus rests on plaintiff to show province has a real and substantial connection (list above is not complete: To assess a new factor that creates R+S connection, consider values of order, fairness and comity that underlie the presumptive factors Download 217.64 Kb. Share with your friends:
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