Recognition and Enforcement of Foreign Judgments in ... - McMillan

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heavy burden that was difficult to justify under principles of order and fairness. It would mean
that a simple restaurant owner would be subject to the laws of innumerable foreign jurisdictions
depending only on where their customers resided. 30
Real and substantial connection is not, however, determined only by looking at
the defendant’s connection to the forum. It is also measured by the forum’s interest in allowing
the plaintiff to proceed with the claim in the jurisdiction and is ultimately a matter of balancing
the plaintiff’s and the defendant’s interests in this regard.
As part of the fairness consideration, the Court of Appeal introduced into
Canadian common law the forum of necessity doctrine. As the court put it:
“The forum of necessity doctrine recognizes that there will be
exceptional cases where, despite the absence of a real and
substantial connection, the need to ensure access to justice will
justify the assumption of jurisdiction…it operates as an exception
to the real and substantial connection test. Where there is no other
forum in which the plaintiff can reasonably seek relief, there is a
residual discretion to assume jurisdiction. In my view, the
overriding concern for access to justice that motivates the
assumption of jurisdiction despite inadequate connection with the
forum should be accommodated by explicit recognition of the
forum of necessity exception rather than by distorting the real and
substantial connection test.” 31
The inclusion of the forum of necessity doctrine poses particular issues for the enforcement of
foreign judgments because it will allow a foreign court to assume jurisdiction even where the
Canadian real and substantial connection test is not met.
30 Van Breda v. Village Resorts Ltd., [2010] O.J. No. 402 (C.A.) at para. 90
31 Van Breda v. Village Resorts Ltd., [2010] O.J. No. 402 (C.A.) at para. 100