1. The court ruled that a real and substantial connection is not an absolute requirement to confer jurisdiction to Ontario courts under Rule 17.02(h), which allows plaintiffs to serve claims to foreign defendants for damages sustained in Ontario.
2. While Duncan, an Ontario resident, contracted to work in China and was allegedly poisoned there, his health deteriorated after returning to Ontario, where he eventually died.
3. The court determined that Ontario was the more convenient forum for the trial, as the plaintiffs would likely abandon their claim if forced to litigate in China, and it is the plaintiffs who bear the burden of proof.
1. The court ruled that a real and substantial connection is not an absolute requirement to confer jurisdiction to Ontario courts under Rule 17.02(h), which allows plaintiffs to serve claims to foreign defendants for damages sustained in Ontario.
2. While Duncan, an Ontario resident, contracted to work in China and was allegedly poisoned there, his health deteriorated after returning to Ontario, where he eventually died.
3. The court determined that Ontario was the more convenient forum for the trial, as the plaintiffs would likely abandon their claim if forced to litigate in China, and it is the plaintiffs who bear the burden of proof.
1. The court ruled that a real and substantial connection is not an absolute requirement to confer jurisdiction to Ontario courts under Rule 17.02(h), which allows plaintiffs to serve claims to foreign defendants for damages sustained in Ontario.
2. While Duncan, an Ontario resident, contracted to work in China and was allegedly poisoned there, his health deteriorated after returning to Ontario, where he eventually died.
3. The court determined that Ontario was the more convenient forum for the trial, as the plaintiffs would likely abandon their claim if forced to litigate in China, and it is the plaintiffs who bear the burden of proof.
1. The court ruled that a real and substantial connection is not an absolute requirement to confer jurisdiction to Ontario courts under Rule 17.02(h), which allows plaintiffs to serve claims to foreign defendants for damages sustained in Ontario.
2. While Duncan, an Ontario resident, contracted to work in China and was allegedly poisoned there, his health deteriorated after returning to Ontario, where he eventually died.
3. The court determined that Ontario was the more convenient forum for the trial, as the plaintiffs would likely abandon their claim if forced to litigate in China, and it is the plaintiffs who bear the burden of proof.
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Case Name: Duncan (Litigation Guardian of) v.
Neptunia Corp Citation: 199 DLR (4th) 354 (Ont. SCJ) Date of Decision: 2001 Origin according to syllabus: Canadian Case
Doctrine: Real and Substantial Connection is not an absolute requirement to confer jurisdiction. Under Rule 17.02(h), Ontario courts has jurisdiction over torts cases wherein damages were sustained by the plaintiff in Ontario. Lastly, where minimum connection has already been established to Ontario, the issue should not lie on jurisdiction but which court is the most convenient forum.
Facts: Duncan, an Ontario resident, entered into a 2-year employment contract with the defendants to work at a plant in China. One of the terms of the contract provide that the employer will provide Duncan with accommodation in China. While residing in the furnished accommodation, Duncan was allegedly poisoned by gas leaking into the apartment. While it looked like Duncan has recovered after being confined in the hospital, he showed signs of confusion and forgetfulness. When Duncan came back to Ontario, his health deteriorated rapidly which eventually led to his death. A case was brought in Ontario against herein foreign defendants. The foreign defendants were served with the plaintiff’s claim under Rule 17.02(h). Defendants bring a motion to stay plaintiffs’ Ontario action arguing: That there is no real or substantial connection to Ontario. Therefore, Ontario courts have no jurisdiction. China is the more convenient forum for the trial.
Issue: 1. Is real and substantial connection absolutely required to confer jurisdiction? No. 2. Is China the more convenient forum to raise the action? No.
Ruling: 1. Rule 17.02(h) provides that where a plaintiff sustains damages in Ontario, the plaintiff may, without leave of court, serve a claim on a foreign defendant. Said rule does not expressly require a real and substantial connection to confer jurisdiction to Ontario courts. Otherwise, there seems to be little sense in requiring a service of claims to the foreign defendants if the Ontario courts do not have jurisdiction in the first place. The purpose and intent of Rule 17.02(h) is to enable people of Ontario to use their own courts more easily to sue tort-feasors for damage sustain in Ontario, as a result of torts that were committed elsewhere. Therefore, requiring a real and substantial connection for Ontario courts to have jurisdiction would be contrary the purpose and intent of the rule. 2. Where the minimum connection to Ontario is met, the paramount issue should not be which court has jurisdiction but which court is the more convenient forum. In determining which forum is the more appropriate, the court considers the following factors: location where contract was made, the contract was signed and performed, applicable law of the contract, location where majority of the witnesses reside, location of key witnesses, location where the bulk of the evidence will come from, jurisdiction in which the factual matters arose, residence or place of business of the parties, loss of juridical advantage. Considering these circumstances, the plaintiffs would likely abandon their claim if they are forced to litigate in China. Since it is the plaintiffs who must prove their case, the court leaned towards favouring the plaintiff’s forum.
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