Canada: Assuming Jurisdiction In Contract Claims: Diverging Approaches Of Canadian Courts

An Alberta court decision this June directly disagreed with recent Ontario decisions regarding the appropriate factors to consider when a non-resident defendant challenges the jurisdiction of a Canadian court in a contract dispute.

In Bansal v Ferrara Pan Candy Co.,1  Madam Justice Veit of Alberta's Court of Queen's Bench sheds light on appropriate factors to consider when a party challenges the jurisdiction of a Canadian court in a contract dispute. This decision also provides guidance regarding what steps by a defendant prior to a challenge can constitute submission to the jurisdiction so as to preclude a successful challenge.

In Ferrara Pan Candy, the Alberta judge directly disagreed with two recent Ontario Superior Court of Justice decisions  that seem to suggest an expanded set of factors may connect a contract dispute and the court's jurisdiction. Staying true to the Supreme Court of Canada's leading decision in Club Resorts Ltd. v Van Breda,2 the Alberta court declined to follow the Ontario decisions and looked no further than Alberta's Rules of Court for the factors that would allow it to find jurisdiction.

The proceeding

In Ferrara Pan Candy, the judge had to decide whether the courts of the province of Alberta had jurisdiction to hear a dispute over an alleged breach of contract and the commission of various non-contractual wrongs. If jurisdiction were found to exist, the court then had to decide if Alberta was the most appropriate forum to adjudicate the dispute. The plaintiffs' claim essentially alleged that the defendants had breached contracts, conspired against the plaintiffs, and intentionally interfered with their economic interests regarding their exclusive rights to distribute the defendants' confectionary in Canada.

Early in the proceeding, the defendants brought an application to have the plaintiffs' solicitors disqualified from prosecuting the claim because an affiliated firm had previously acted for minority shareholders of the defendant Ferrara Pan Candy and, as corporate lawyers for the company, had investigated and researched some of the very allegations made in the plaintiffs' claim. The plaintiffs' solicitors subsequently gave notice of ceasing to act in the proceeding, so the application to remove them did not need to be heard.

The defendants then challenged the jurisdiction of the Alberta courts to hear the dispute.

Resisting the jurisdiction challenge, the plaintiffs argued that the defendants had submitted to Alberta's jurisdiction when they brought their application to disqualify the plaintiffs' solicitors. The judge found that the defendants had not submitted to the court's jurisdiction by bringing their application for the removal of the plaintiffs' solicitors. 

Ultimately, while the judge found that the Alberta courts did indeed have jurisdiction over the subject matter of the dispute, she determined that Alberta was not the most appropriate forum for the adjudication of the matter. She declined jurisdiction in favour of the courts of the province of Ontario or, alternatively, the state of Illinois in the United States.

No submission to the jurisdiction of the Alberta courts

Neither counsel nor the court was able to find a decision directly on point regarding whether the defendants, in bringing their disqualification motion, had submitted to the jurisdiction of the court.3

The judge relied on Norex Petroleum Ltd. v Chubb Insurance Co. of Canada4 to find that it would have been possible for the defendants to submit to the Alberta courts' jurisdiction because, where a court already has jurisdiction over the subject matter of a dispute, a defendant's consent—express or implied—can constitute submission.

However, the defendants had not submitted by bringing the removal application. That application raised a professional conduct issue and not an issue on the merits of the claim; attempting to disqualify the solicitors did not go to the merits of the dispute between the parties. While the circumstances of each case must be examined to determine whether a party has submitted to the jurisdiction of the court with respect to the merits of that case, the judge found that in this dispute the merits were not engaged.

Procedurally, it was necessary for the defendants to bring the removal application prior to the jurisdiction challenge because the firm had the potential to breach its duties of loyalty and confidentiality. The confidential information, which the plaintiffs' lawyers had presumably acquired, related directly to the plaintiffs' allegations and they might have been able to use the information in not only prosecuting the claim, but also in resisting the jurisdiction challenge. Effectively, the defendants had no choice but to bring the disqualification application first because they perceived that the plaintiff had an unfair advantage.

Alberta has jurisdiction by formation of the contract

The judge noted there have been relatively few post-Van Breda appellate cases identifying the factors in contract cases that allow a court to take jurisdiction over a dispute. These factors, called "presumptive connecting factors," are indicators that a jurisdiction has a "real and substantial connection" to a contract and a court therefore has jurisdiction over disputes about that contract. Following the lead of the Supreme Court, Madam Justice Veit looked to the Alberta Rules of Court5 for guidance as to what the presumptive connecting factors are in Alberta for contracts and what constitutes a real and substantial connection between a contract and the province.

The judge found four presumptive connecting factors for contracts cases, in a manner consistent with the Supreme Court's directions in Van Breda regarding how presumptive connecting factors for tort cases should be determined. The four presumptive connecting factors that may ground jurisdiction in contract cases in Alberta are:

  • the defendant is resident in Alberta;
  • the defendant carries on business in Alberta;
  • a contract or alleged contract is made, performed or breached in Alberta; and
  • a tort connected with the contract was committed in Alberta.

Any one of these connecting factors can furnish the Alberta court with jurisdiction over a contract claim.

The contract was found to have been made in Alberta and the province's courts therefore had jurisdiction over the subject matter of the dispute.

Alberta not the most appropriate forum

The court found that, despite the Alberta courts' jurisdiction, the province was clearly not the most appropriate forum in which to adjudicate the plaintiffs' claim. The court cited many factors in support of its finding, including that: the defendants were resident in Ontario and Illinois and their alleged wrongdoing would have been committed in those jurisdictions; the contract was varied several times outside of Alberta; few Albertan witnesses were required; and most records relating to the claim were probably in Ontario. Further, there was no evidence the plaintiffs would suffer any legal disadvantage if the proceeding were brought in Ontario or Illinois, and there would be no difficulty having an Ontario judgment recognized in Alberta. Either forum was found to be more appropriate than Alberta.

Presumptive connecting factors in contracts cases: where to from here?

The post-Van Breda jurisprudence on presumptive connecting factors in contracts cases is sparse. Ferrara Pan Candy clearly reflects that while Van Breda was a tort case, it represents a clear direction from the Supreme Court on how new presumptive connecting factors should be established for contract cases as well. The judge in Ferrara Pan Candy properly recognized the factors that connect a contract to the jurisdiction of Alberta in a manner consistent with the method set out for recognizing new factors for tort claims in Van Breda.

This case comes on the heels of two Ontario decisions6 that seem to depart from Van Breda's values of promoting clarity, predictability and consistency in jurisdiction cases—decisions Madam Justice Veit disagreed with and rejected.

The Ontario cases seem to suggest (but do not decide) that other factors—such as where the subject matter of a contract is generally located, where witnesses are located, and where actions were taken on the contract—might also be new presumptive connecting factors. As Her Ladyship pointedly remarked in Ferrara Pan Candy, these factors are not presumptive connecting factors and do not establish the presumption of a real and substantial connection with Alberta. These factors are solely for determining whether another forum is clearly more appropriate to hear a dispute rather than whether a court has jurisdiction over a contract dispute in the first place.

It remains to be seen whether other Canadian courts will stay true to the Supreme Court's Van Breda directive and strive to maintain clear tests and predictability in jurisdiction decisions, or whether judges will once again wade into the murky waters of allowing factors that should not create the presumption of a real and substantial connection to influence jurisdiction findings, instead of considering them in the appropriate forum analysis where they are properly relevant.

Eugene Bodnar of Norton Rose Fulbright's Transnational Litigation team was counsel for the plaintiffs in Norex Petroleum v Chubb Insurance, successfully opposing an application brought by a Russian insurer that asserted Alberta was not the appropriate forum to hear a claim for a declaration as to coverage in relation to oilfield equipment seized in Russia.


1 2014 ABQB 384.

2 [2012] 1 SCR 572.

3 Practitioners should note that, in Skagway Terminal Co. v The Ship "Daphne" (1987), 42 DLR (4th) 200, the trial division of Canada's Federal Court found that the defendant had not submitted to the jurisdiction when it provided the plaintiff with an undertaking, prior to the commencement of the claim, that the defendant's solicitors in the jurisdiction would accept service of any process, which undertaking expressly reserved all of the defendant's rights. Such an express reservation of rights should be considered with respect to any preliminary steps taken by a non-resident defendant that may subsequently challenge the jurisdiction of a Canadian court.

4 (2008) 444 AR 102, [2008] 12 WWR 322, 60 CPC (6th) 291 (QB).

5 Alta Reg 124/2010.

6 Patterson v EM Technologies Inc., 2013 ONSC 5849 and Leone v Scaffidi, (2013) 87 ETR (3d) 93 (Ont SC).

Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.