What is the burden of proof, and what is the appropriate forum?

The issue of burden of proof, however, may be more theoretical than real. As pointed out by Weiler J.A. in Frymer v. Brettschneider, at para. 61, the determination of the appropriate forum will generally be resolved on a basis of weighing the relative strength of the various factors, not on a determination of the onus of proof.

Canadian courts have applied various factors in order to determine the appropriate forum. These factors include: the location of the majority of the parties; the location of key witnesses and evidence; contractual provisions that specify a particular jurisdiction; the avoidance of a multiplicity of proceedings; the applicable law and its weight in comparison to the factual questions to be decided; geographical factors suggesting the natural forum; and whether declining jurisdiction would deprive the applicant of a legitimate juridical advantage available in the domestic court (Muscutt v. Courcelles, at para. 41). (i) Location of the parties