Contract’s governing law not bound by jurisdiction, forum non conveniens: Ontario appellate court

Bizar Male

Two defendants submitted to the jurisdiction of Ontario courts by filing their statement of defence, and two other defendants were Ontario residents. The other four defendants, who are the appellants in the present case before the Ontario Court of Appeal, filed a motion to challenge the jurisdiction of Ontario courts or, alternatively, for the declaration of Ontario as forum non conveniens.

In July 2020, the Ontario Superior Court of Justice rejected the appellants’ claim and found that Ontario courts, specifically the Superior Court, had jurisdiction over the action and was forum conveniens for the action. The motion judge determined that three of the presumptive connecting factors from Club Resorts Ltd. v. Van Breda, 2012 SCC 17, were present here: the appellants were doing business in Ontario, a tort was committed in Ontario and the contract being disputed was made in Ontario.

Upon appeal, the Ontario Court of Appeal also ruled against the appellants, stating that Ontario had jurisdiction to hear the case and that the appeal court had no basis to interfere with the motion judge’s discretionary decision that Ontario was forum conveniens for the action.

The appellants, contending that Ontario was forum non conveniens, claimed that the motion judge wrongly concluded that expert evidence was not necessary to prove Quebec law to the Ontario courts.

The appeal court disagreed, saying that the trial judge did not absolutely state that it was unnecessary to obtain an expert to interpret Quebec law. The trial judge in fact specifically referred to this possibility, the appeal court said.

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