Challenge of Jurisdiction: Van Breda v. Village Resorts Ltd. and Black v. Breeden

In Canadian law, there is a substantive limit to a court's territorial jurisdiction when a case lacks a real and substantial connection, even if the rules of court would permit the plaintiff to serve the defendant with process. Canadian lawyers have to distinguish between the question whether the court has territorial jurisdiction as a matter of law (jurisdiction simpliciter) and the question whether the court should exercise that jurisdiction as a matter of discretion, usually on the ground of forum non conveniens.

This paper focuses on the jurisdiction simpliciter issue in each of these cases. Van Breda reconsidered, and to some extent altered, the approach to real and substantial connection taken by the Ontario Court of Appeal in Muscutt v Courcelles (2002). Black v Breeden applied the new analysis to a libel action brought by a former resident of Ontario against defendants who were resident in the United State and whose allegedly defamatory statements were published on an American website. The conclusion in both cases was that the court had jurisdiction simpliciter and should not decline it. An issue raised, but not addressed, by Black v Breeden is the choice of law question when defamatory statements are disseminated internationally over the Internet.