|
Private International Law - Jurisdiction Simpliciter (2). 778938 Ontario Limited v. EllisDon Corporation
In 778938 Ontario Limited v. EllisDon Corporation (Ont CA, 2023) the Court of Appeal allowed a venue appeal, here between Ontario and Nova Scotia, even though the Ontario court had 'jurisdiction simpliciter'. The case is also notable for considering venue, jurisdiction simplicter and forum non conveniens in an inter-provincial context, not an international one.
In this quote the court considers jurisdiction simpliciter:(i) Jurisdiction simpliciter
[12] EllisDon did not seriously challenge that jurisdiction simpliciter is established in this case by the presence of one or more of the presumptive connecting factors that underlie the real and substantial connection test articulated by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, at paras. 82, 90.[1] EllisDon conceded that the parties are headquartered, domiciled and carry on business in Ontario. This is not the case of an out-of-town defendant.
[13] However, EllisDon argues that this jurisdiction is presumptive, and is rebutted because there is a very weak connection between the subject matter of the action and Ontario.
[14] We reject EllisDon’s argument for the following reasons.
[15] We are not persuaded that EllisDon has demonstrated that there is such a weak relationship between the forum and the subject-matter of the litigation that the proposed assumption of jurisdiction would be inappropriate: Van Breda, at paras. 81, 97.
[16] In our view, assumed jurisdiction is clearly made out here by the real and substantial connection between the subject matter of the action and the forum. In addition to the presence of the parties in Ontario, there are other connecting factors. The contract was negotiated by the parties in Ontario and signed in Ontario by The Roy, at its headquarters in Ontario. There is no evidence as to where EllisDon signed the contract other than that the signatory was an employee resident in Nova Scotia who had come to Ontario during the contract negotiations. However, there is no issue that EllisDon is an Ontario registered corporation. It is therefore a fair inference that, regardless of who actually signed the contract, the corporate decision to enter into the contract was made by its corporate decision-makers located in EllisDon’s head office in Ontario. Moreover, the respondents’ unchallenged evidence is that in addition to EllisDon’s personnel in Halifax, consultants from EllisDon located in Ontario worked on the project, and the overall supervision of the project was by upper management of EllisDon located in Ontario. As a result, the alleged breach of contract and negligent supervision are asserted to have taken place in Ontario, as well as in Halifax.
[17] Accordingly, we agree with the motion judge’s conclusion that the Ontario court “has clear jurisdiction.”
|
