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PRIL - Forum Non Conveniens (2). Black & McDonald Limited v. Eiffage Innovative Canada Inc.
In Black & McDonald Limited v. Eiffage Innovative Canada Inc. (Ont CA, 2023) the Court of Appeal endorses the motion judge's (below) forum non conveniens factors, then proceeds to weighs them [paras 19-26], and - upon finding that the factors 'tie' - applies a default rule to decide venue:[16] We then turn to the issue of the forum non conveniens analysis. The motion judge set out the common factors that are generally considered in that analysis. Those factors include:(a) the location where the contract in dispute was signed;
(b) the applicable law of the contract;
(c) the location of witnesses, especially key witnesses;
(d) the location where the bulk of the evidence will come from;
(e) the jurisdiction in which the factual matters arose;
(f) the residence or place of business of the parties; and
(g) the loss of a legitimate juridical advantage. [17] These factors are drawn from Young v. Tyco International of Canada Ltd. 2008 ONCA 709, 92 O.R. (3d) 161, at para. 26. The appellant takes issue with the statement of those factors as opposed to the statement of factors contained in Van Breda, at para. 105. In our view, nothing turns on the difference. The factors referred to in Van Breda are drawn from the Uniform Court Jurisdiction and Proceedings Transfer Act ("CJPTA") developed by the Uniform Law Conference of Canada. They do not have any direct application to a proceeding in Ontario. However, the factors stated in Young do not differ in any material respects and, in any event, are stated not to be exhaustive. It is not clear that had the motion judge considered the CJPTA factors, rather than the Young factors, the result would have been any different.
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[19] On our view of the analysis, the location where the contract in dispute was signed favours Ontario as that is where the contract was negotiated and signed.
[20] The law of the contract favours British Columbia. That conclusion flows from Article 10.2.1 which provides that the "laws of the Place of the Work shall govern the Sub-Contract”. The Place of Work was clearly British Columbia. That said, however, this factor carries little weight when one appreciates that there is no appreciable difference in the laws of British Columbia from the laws of Ontario as they apply to this dispute. This is a breach of contract claim at its heart and the law relating to such a claim is the same as between those provinces.
[21] The location of witnesses, especially key witnesses, is difficult to determine because the evidence, such as it is, is inconclusive. The Eiffage Individuals are resident in Ontario as are many of the persons involved from the appellant’s side. Eiffage says that the two employees most concerned with the Project from their side were in British Columbia. However, Eiffage had to acknowledge that those two people are no longer employed by Eiffage and Eiffage has no current information as to where they reside.
[22] Further, on this point, the motion judge found that this factor was neutral because of “the post COVID reality that converted court proceedings from in person to virtual.” We do not agree that that reality renders this factor neutral. Virtual appearances by witnesses cannot be safely equated to appearances in person in terms of their impact on the fact-finding process. Further, there is no way of knowing, at this point in time, whether the trial of this action will proceed virtually or in person or a combination of both – the most likely result. We also do not know what witnesses might appear in person and which might appear virtually. All of that said, we do accept that this new reality will often lessen the weight to be given to this factor.
[23] In terms of where the bulk of the evidence will come from, invoices, payments and communications were exchanged between the parties in Ontario. However, that does not change the fact that the work undertaken, and the reasons for any delays in the completion of the work, will naturally involve the location where the work was performed, i.e., British Columbia. Given those countervailing considerations, we agree with the motion judge that this factor does not significantly favour one side or the other.
[24] Regarding the jurisdiction where the factual matters arose, we also agree with the motion judge that this factor favours British Columbia.
[25] The residence or place of business of the parties all favour Ontario.
[26] Finally, there is no loss of any juridical advantage by having this action proceed in Ontario as opposed to proceeding in British Columbia.
[27] A proper analysis of the factors demonstrate that they do not clearly favour one jurisdiction over the other. That result then leads into the overriding principle that “on a forum non conveniens motion, the standard to displace the plaintiff's chosen jurisdiction is high”: Young, at para. 28. That standard was not met in this case. The Eiffage action in Ontario ought not to have been stayed. . Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada
In Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada (Ont CA, 2022) the Court of Appeal considered an appeal in an international insurance case where an insured sued 22(!) insurers, and where the dispute was whether Ontario or New York had jurisdiction. In this quote the court reviews the private international law of forum non conveniens:(1) The Governing Principles of Forum Non Conveniens
[147] Even if the court finds it has jurisdiction simpliciter, under the forum non conveniens doctrine it may decline to take up an action on the basis that there is another “clearly more appropriate” forum. Jurisdiction simpliciter and forum non conveniens are both rooted in the principles of comity, but they require distinct analyses: Van Breda, at para. 101.
The forum non conveniens test
[148] The forum non conveniens test was prescribed in Amchem. In Amchem, Sopinka J. made several pertinent observations. The court must “determine whether the domestic forum is the natural forum, that is the forum that on the basis of relevant factors has the closest connection with the action and the parties”: at para. 53, pp. 931-932. He then prescribed the forum non conveniens test: “Under this test the court must determine whether there is another forum that is clearly more appropriate” (emphasis added). The implication is that “where there is no one forum that is the most appropriate, the domestic forum wins out by default … provided it is an appropriate forum.” Where there is a contest, “the domestic court as a matter of comity must take cognizance of the fact that the foreign court has assumed jurisdiction.” Comity demands the following:If, applying the principles relating to forum non conveniens outlined above, the foreign court could reasonably have concluded that there was no alternative forum that was clearly more appropriate, the domestic court should respect that decision and the application should be dismissed. When there is a genuine disagreement between the courts of our country and another, the courts of this country should not arrogate to themselves the decision for both jurisdictions. In most cases it will appear from the decision of the foreign court whether it acted on principles similar to those that obtain here, but, if not, then the domestic court must consider whether the result is consistent with those principles. [149] Amchem concerned two actions about asbestos liability, one brought in Texas and the other in British Columbia. In the result, the Supreme Court found on the basis of comity that Texas was an appropriate forum.
[150] The forum non conveniens test prescribed in Amchem has been consistently applied in the jurisprudence ever since, as recently as Haaretz.com v. Goldhar, 2018 SCC 28, [2018] 2 S.C.R. 3, at paras. 3, 27, and elsewhere. In that case, the court found that Israel was the clearly more appropriate forum for a defamation action.
The forum non conveniens burden of proof
[151] The burden of proof is on the party raising the forum non conveniens argument to show that the proposed forum is “clearly more appropriate”: Breeden v. Black, 2012 SCC 19, [2012] 1 S.C.R. 666, at paras. 23, 37; Van Breda, at paras. 103, 109.
Factors relevant in assessing forum non conveniens
[152] Experience has established a number of factors that courts consider in assessing forum non conveniens. In Haaretz.com v. Goldhar, at para. 116, the court adopted the “centre of gravity of the dispute” as a useful metaphor. In our view that metaphor is serviceable in the broader context including this case.
[153] In Van Breda, LeBel J. approved the list of factors relevant to assessing forum non conveniens from the Uniform Law Commission of Canada’s draft Uniform Court Jurisdiction and Proceedings Transfer Act (“CJPTA”): at para. 105. The Act has been enacted in several provinces, but not in Ontario. Nonetheless, LeBel J. noted that s. 11(2) of the Act was a good effort to codify the common law in a non-exhaustive way. The factors include:a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum;
b) the law to be applied to issues in the proceeding;
c) the desirability of avoiding multiplicity of legal proceedings;
d) the desirability of avoiding conflicting decisions in different courts;
e) the enforcement of an eventual judgment; and
f) the fair and efficient working of the Canadian legal system as a whole. [154] In Breeden v. Black the court added, as another factor, “fairness to the parties” which is broader than factor (f) of the Act, “the fair and efficient working of the Canadian legal system as a whole”: at para. 35. The appellants moved to dismiss the respondent’s defamation actions in Ontario on the ground that there was no real and substantial connection between the actions and Ontario, or, alternatively, on the basis that a New York or Illinois court was the more appropriate forum: at para. 7. The Supreme Court found that “it would be unfair to prevent Lord Black from suing in the community in which his reputation was established” and not unfair to the appellants because “it would have been reasonably foreseeable to them that posting the impugned statements on the internet and targeting the Canadian media would cause damage to Lord Black’s reputation in Ontario”: at para. 36.
[155] Several cases have raised as a factor the concept of “juridical advantage”. In Breeden v. Black, the court noted, at para. 27:Juridical advantage not only is problematic as a matter of comity, but also as a practical matter, may not add very much to the jurisdictional analysis. As this Court emphasized in Amchem Products Inc. v. British Columbia (Workers' Compensation Board), 1993 CanLII 124 (SCC), [1993] 1 S.C.R. 897, “[a]ny loss of advantage to the foreign plaintiff must be weighed as against the loss of advantage, if any, to the defendant in the foreign jurisdiction if the action is tried there rather than in the domestic forum” (p. 933). Juridical advantage therefore should not weigh too heavily in the forum non conveniens analysis. [Emphasis added.] [156] Finally, forum shopping, while understandable, is unprincipled and is not to be encouraged: Amchem, at para. 21, p. 912; Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, [2012] 1 S.C.R. 636, at paras. 36, 49. The Supreme Court noted that “[f]orum shopping for a different and better result can be dressed up in many attractive adjectives, but fairness is not among them”: British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422, at para. 36. . Sakab Saudi Holding Company v. Jabri
In Sakab Saudi Holding Company v. Jabri (Ont CA, 2022) the Court of Appeal considered the van Breda international jurisdiction test in a complex case:[20] The motion turned on whether the respondents were able to establish a real and substantial connection between the subject matter of the action, the foreign moving parties (the appellants), and Ontario. The motion judge followed the analytical structure set out in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, which is to guide the determination of whether the court has jurisdiction over a tort claim. Van Breda identifies four presumptive connecting factors: a) the defendant is domiciled or resident in Ontario; b) the defendant carries on business in Ontario; c) the tort was committed in Ontario; or d) a contract connected with the dispute was made in Ontario. The motion judge noted that the respondents needed only to establish a single presumptive factor to ground jurisdiction, at which point the burden shifted to the appellants to rebut the presumption of jurisdiction by demonstrating the relationship between the subject matter of the litigation and the forum is weak. As explained more particularly below, the motion judge found connections between the appellants, the subject matter of the litigation, and Ontario, based on contracts made in Ontario, property located in Ontario, and what she termed “jurisdiction over the claim as a whole”, with the tort of conspiracy located at the heart of the claim.
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[36] This court recently described the remit of a motion judge on a jurisdiction motion as determining “whether the statement of claim asserts the core elements of a cause of action known to law and appears capable of amendment to cure any pleadings deficiencies and whether the claimant has established a good arguable case that the cause of action is sufficiently connected with Ontario to found jurisdiction”: Vahle v. Global Work & Travel Co. Inc., 2020 ONCA 224, at para. 13; see also Ontario v. Rothmans Inc., 2013 ONCA 353, 115 O.R. (3d) 561, at para. 106, leave to appeal refused, [2013] S.C.C.A. No. 327. The court in Vahle further noted that “[i]t is necessary for the purpose of a jurisdiction motion for the court to determine whether there is a ‘real and substantial connection’ between Ontario and the claims, when considered as a whole.”
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(3) Real and substantial connection to Ontario
[48] The motion judge accurately set out the legal principles related to the assumption of jurisdiction against a foreign defendant, citing Rothmans, at para. 54, for the proposition that “an Ontario court will assume jurisdiction against a foreign defendant only where the plaintiff establishes ‘a good arguable case’ for assuming jurisdiction through either the allegations in the statement of claim or a combination of the allegations in the statement of claim and evidence filed on a jurisdiction motion.” The ‘good arguable case’ for assuming jurisdiction is assessed according to criteria set out in Van Breda, particularly “on the basis of objective factors that connect the legal situation or the subject matter of the litigation with the forum”: Van Breda, at para. 82. Van Breda set out a list of objective presumptive connecting factors that, if present, would ground jurisdiction over a tort. The non-exhaustive list includes: (1) the defendant is domiciled or resident in the province; (2) the defendant carries on business in the province; (3) the tort was committed in the province; and (4) a contract connected with the dispute was made in the province. The Van Breda court emphasized that the list is not closed and was not intended to displace the existing categories that had been found to ground jurisdiction.
[49] As the motion judge noted, if a plaintiff is able to establish a single presumptive factor, the burden shifts to the objecting defendants to rebut the presumption by demonstrating that the relationship between the subject matter of the litigation and the forum is nevertheless too weak to ground jurisdiction: Van Breda, at para. 95. The motion judge found connections through four presumptive factors. For the appellants to succeed on the appeal, it would be necessary therefore to find that the motion judge erred with respect to all four. One, two, or even three errors would not be sufficient. As is evident from the analysis below, I am not persuaded that the motion judge erred with respect to any of the four connecting factors she identified. There is more at paras 50-67.
. Pourshian v. Walt Disney Company
In Pourshian v. Walt Disney Company (Div Ct, 2021) the Divisional Court considered the Van Breda test for when a case against a foreign defendant can be heard in Ontario:General principles applicable to issues of jurisdiction
[28] In Van Breda, the Supreme Court of Canada established the legal framework for determining whether the court has jurisdiction over a claim brought against foreign defendants. The three-part analytical framework is as follows:a. First, the court must determine whether there is a presumptive connecting factor between the claim and the jurisdiction. In the context of a tort action, the Supreme Court identified the following presumptive factors:i. The defendant is domiciled in the province;
ii. The defendant carries on business in the province;
iii. The tort was committed in the province; or
iv. A contract connected with the dispute was made in the province. b. Second, if there is no presumptive connecting factor, the court is to determine whether a new presumptive connecting factor should be recognized. The Court identified the following relevant considerations to this determination:i. Similarity of the connecting factor with the recognized presumptive connecting factors;
ii. Treatment of the connecting factor in the case law;
iii. Treatment of the connecting factor in statute law; and
iv. Treatment of the connecting factor in the private international law of other legal systems with a shared commitment to order, fairness and comity. c. Even if there is a presumptive connecting factor, the defendant can rebut the presumption by establishing facts “which demonstrate that the presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and the forum or points only to a weak relationship between them.”. [29] In Yaiguaje v. Chevron Corporation, 2013 ONSC 2527, at para. 76, the Court of Appeal for Ontario set out the evidentiary requirements and burdens on a motion to set aside service of a statement of claim on the grounds that there is no real and substantial connection between the claim and Ontario. Where a defendant moves to set aside service ex juris on the ground that there is no real and substantial connection with Ontario, the question is whether there is a “good arguable case” that the connection exists. The analytical path for determining whether there is a good arguable case is as follows:a. The statement of claim is the starting point for the analysis. Any allegation of fact that is not put into issue by the defendant is presumed to be true for purposes of the motion. The plaintiff is under no obligation to call evidence for any allegation that has not been challenged by the defendant.
b. However, where a pleading lacks sufficient particularity with respect to the required jurisdictional connections, the plaintiff bears the burden of supplementing the pleading with affidavit evidence establishing a connection.
c. Also, if the foreign defendant files affidavit evidence challenging the allegations in the statement of claim that are essential to jurisdiction, the threshold for the plaintiff to meet is that it has a "good arguable case" in respect of those allegations. [30] The “good arguable case” standard is a low threshold. The court is not to resolve issues of fact on a civil standard, but rather to decide whether there is a good arguable case. This is akin to determining whether there is a "serious issue to be tried" or a "genuine issue" or “some chance of success".
[31] In addition, in Ontario (Attorney General) v. Rothmans Inc., 2013 ONCA 353, at para. 106, the Court of Appeal emphasized that a jurisdiction motion is not the same as a motion challenging the adequacy of pleadings:In our opinion, on a jurisdiction motion, the motion judge is not required to subject the pleadings to the scrutiny applicable on a rule 21 motion. So long as a statement of claim advances the core elements of a cause of action known to law and appears capable of being amended to cure any pleadings deficiencies such that the claim will have at least some prospect of success, the issue for the motion judge is whether the claimant has established a good arguable case that the cause of action is sufficiently connected to Ontario to permit an Ontario court to assume jurisdiction. If an Ontario court can assume jurisdiction, the issue of the adequacy of the pleadings is properly dealt with on a motion brought under rule 21.01(1)(b). . Pourshian v. Walt Disney Company
In Pourshian v. Walt Disney Company (Div Ct, 2021) the Divisional Court considered whether a defendant 'carried on business in Ontario' as part of the Van Breda jurisdiction 'presumptive connecting factor' issue:[33] First, the Master found that Pixar and Walt Disney Pictures Inc. carry on business in Ontario based only on the allegations in the statement of claim that Pixar produced INSIDE OUT and that Walt Disney Pictures Inc. distributed it. There was no analysis of what “carrying on business” in Ontario means or how it has been interpreted in other cases. In Van Breda, at para. 87, the Supreme Court expressed caution about overextending the reach of this presumptive connecting factor:Carrying on business in the jurisdiction may also be considered an appropriate connecting factor. But considering it to be one may raise more difficult issues. Resolving those issues may require some caution in order to avoid creating what would amount to forms of universal jurisdiction in respect of tort claims arising out of certain categories of business or commercial activity. Active advertising in the jurisdiction or, for example, the fact that a Web site can be accessed from the jurisdiction would not suffice to establish that the defendant is carrying on business there. The notion of carrying on business requires some form of actual, not only virtual, presence in the jurisdiction, such as maintaining an office there or regularly visiting the territory of the particular jurisdiction… [emphasis added] [34] In this case, there is no allegation in the statement of claim or evidence that Pixar and Walt Disney Pictures Inc. had some form of actual presence in Ontario. Mr. Pourshian relies on the decision of the Court of Appeal for British Columbia in Equustek Solutions Inc. v. Google Inc., 2015 BCCA 265, aff’d at 2017 SCC 34, to argue that it is sufficient for a party to “target customers in a jurisdiction” for a finding that the party carried on business in the jurisdiction. However, unlike in this case, Equustek dealt with the scope and reach of Google’s activities online. The Court conducted a detailed analysis in support of its finding that Google carried on business in British Columbia, including a finding that Google entered into advertising contracts with British Columbia residents and that it gathered information through proprietary software in British Columbia. On that basis, the Court found that Google carried out “key” parts of its business in British Columbia. In this case, there was no similar analysis and the Master had no regard to the caution in Van Breda about the need for an actual presence in Ontario to support a finding that a party is carrying on business in the province. The fact that Pixar and Walt Disney Pictures Inc. produced and distributed a film that ended up being viewed in Ontario may be relevant to other connecting factors but it is not sufficient for making a finding that there is a good arguable case that they are carrying on business in Ontario. The case generally [at paras 28-66] is a useful consideration of private international law, jurisdiction and the internet.
. C.C. v. J.B.
In C.C. v. J.B. (Ont CA, 2021) the Court of Appeal made the following comments on forum non conveniens:[12] Forum non conveniens is a separate determination to be made once jurisdiction simpliciter is established. The decision to raise forum non conveniens rests with the parties, not with the court seized of the claim. Once jurisdiction is established, if the defendant does not raise further objections, the litigation proceeds before the court of the forum. The burden is on the defendant to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, at paras. 101-3.
[13] Here, forum non conveniens was not raised before the motion judge. The mother brought no motion asking the court to decline to exercise jurisdiction based on forum non conveniens and we were advised that this issue was not argued in the court below. Presumably, for that reason that the court’s order does not address forum non conveniens. The motion judge should thus not be taken as having decided the issue of forum non conveniens. . UD Trading Group Holding PTE. Limited v. TransAsia Private Capital Limited
In UD Trading Group Holding PTE. Limited v. TransAsia Private Capital Limited (Ont CA, 2021) the Court of Appeal considered the application of the leading Van Breda case to contract rather than tort cases:[43] First, a key feature of the moving parties’ argument on appeal is the claim that the motion judge failed to undertake a proper forum non conveniens analysis as set out in the “leading case” of Van Breda. However, the Underlying Action that is the subject of the appeal advances claims which are fundamentally contractual in nature. In Van Breda, Lebel J. repeatedly confined the principles he developed to the assumption of jurisdiction in tort actions: Van Breda, at paras. 68, 80 and 85.
[44] Recently, in Forbes Energy Group Inc. v. Parsian Energy Rad Gas, 2019 ONCA 372, 93 B.L.R. (5th) 169, at paras. 7-8, in resolving a forum non conveniens issue in a contract case, this court applied the factors Laskin J.A. identified in a pre-Van Breda contractual decision called Young v. Tyco International of Canada Ltd., 2008 ONCA 709, 300 D.L.R. (4th) 384, at para. 26.
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