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Private International Law - Attornment

. Lithium Royalty Corporation v. Orion Resource Partners

In Lithium Royalty Corporation v. Orion Resource Partners (Ont CA, 2023) the Court of Appeal considered an attornment concern, here in a private international law (PRIL) case:
[59] First, the Orion Respondents argue that if the proceedings are not stayed, any step they take in these proceedings beyond challenging jurisdiction could constitute attornment, thereby rendering their attornment ground of appeal moot. They rely, in support of this submission, primarily on the decision in M.J. Jones Inc. v. Kingsway General Insurance Company et al., (2004) 2004 CanLII 6211 (ON CA), 72 O.R. (3d) 68, (C.A.) at para. 31.

[60] The line of authority the Orion Respondents rely upon has been overtaken. It is now recognised that there is only a remote prospect that a finding of attornment will be based on litigation steps taken by a party after the opposing party has undertaken not to rely on such steps as acts of attornment: Sakab Saudi Holding Company v. Al Jabri, 2021 ONCA 548, at paras. 26-32; and see, Yaiguaje v. Chevron Corporation, 2014 ONCA 40, 315 O.A.C. 109, at para. 11; Essar Steel Algoma Inc., Re, 2016 ONCA 138, at para. 52.

[61] The risk that attornment will be found based on participation in the continuation of the underlying trial in the face of the undertaking provided in this case is further reduced given that the trial judge has already determined that the Orion Respondents have attorned, and the appeal from that finding is not strong.

[62] Indeed, it is arguable that the proposed Orion respondents — Orion Mine Finance Fund I; Alnitak Holdings, LLC; Bellatrix Ltd., and Orion Mine Finance (Master) Fund LLP (sic) — attorned to jurisdiction in their own right when the counsel who represented them during the argument of the jurisdiction motion and during the parties amendment motion agreed to proceed with a liability hearing into the merits of the general action pending the determination of those motions. It is most unlikely that in doing so the lawyer expected that the liability hearing would have to be redone if the proposed Orion respondents were subsequently named respondents. It is far more likely that the lawyer intended to defend their interests on the merits during the liability hearing and that further acts of attornment have already occurred.

[63] In all of the circumstances, I am not persuaded that the Orion Respondents face irreparable harm by the risk of still further acts of attornment occurring in responding to the continuation of the underlying action.


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Last modified: 25-10-23
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