The Ontario Court of Appeal will have an opportunity to apply
– and possibly reconsider – the test for
jurisdiction yet again in an upcoming appeal from a decision of
In Bond v. Brookfield Asset Management Inc.,
Justice Perell stayed a class action brought by a
representative plaintiff, named Wanda Bond, an "Internet
blogger and shareholder advocate". Ms. Bond seeks to represent
primary and secondary purchasers of shares in an Alberta mining
company called Birch Mountain between April 1, 2005 and November 5,
2008. The essence of Ms. Bond's claim is that the defendant
Tricap and its parent, Brookfield, orchestrated proceedings in
Alberta so as to force Birch Mountain into receivership resulting
in a decline in its shares. Tricap had lent Birch Mountain money
and Birch Mountain had defaulted on its loan.
Tricap and Brookfield successfully moved to stay the action in
favour of Alberta. The outcome of the motion was not surprising.
The claim was based on oppression under the Ontario Business Corporations Act. Birch Mountain
was an Alberta company, all of the events at issue took place in
Alberta, the critical event involved a court order made in Alberta
pursuant to a loan agreement governed by Alberta law, and the
assets of the company were sold under receivership pursuant to an
order of an Alberta Court.
While the application of the test for jurisdiction was not
surprising, Justice Perell's articulation of it is noteworthy.
He stated that the recent test in Van Breda "modestly simplified"
the previous 8-factor test in Muscutt v. Courcelles. Following Van
Breda, Justice Perell applied the presumptions based on the
rules for service out of the province, but then analyzed various
factors relevant to determining whether there was a real and
substantial connection by "[p]utting the matter of any
Bond indicates that the reformulation of the "real
and substantial connection" test for assumed jurisdiction has
undergone little change, despite the Court of Appeal's recent
ruling in Van Breda, which was intended to simplify the
Muscutt test. Little heed is being paid to the categorical
approach advocated in Van Breda and trial courts continue
to mechanically recite and apply the 8-factors set out in
Muscutt. It will be interesting to see if the Supreme
Court of Canada will make a less "modest' change to the
test for assumed jurisdiction in Ontario.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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