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Venue (Geographical)

1. General
2. "Real and Substantial Connection" Test
3. Forum Non Conveniens
4. Forum and Venue Selection Clauses
5. Venue of Tort

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1. General

The 'basic' rule for domestic cases (where all parties are in Canada) is that the case should be filed in the province of the defendant, and then within their judicial district. So if you are suing a defendant in Hamilton, Ontario you should sue then in Ontario (regardless of where in the world you live) and in the Central South Judicial Region, which encompasses Hamilton.

But what happens when a party in one country sues someone in a different country? In Ontario at least there are rules for deciding which country hosts the lawsuit. Not that they are binding on anyone but Ontario (and Canadian and UK) courts, but they do try and impose some order on the process.
Terminology Note:
Properly, "venue" is a geographical concept, while "forum" is an institutional one, such as a court or private arbitration business. What I see however is that the term 'forum' is often used interchangeably with venue, or in the common situation where contractual clauses attempt to designate both the venue and the forum that a dispute shall be heard between the contracting parties. I try to use the terms 'venue' and 'forum' accurately despite common usage.

2. "Real and Substantial Connection" Test

. Airia Brands Inc. v Air Canada

In Airia Brands Inc. v. Air Canada (Ont CA, 2017) the Court of Appeal, in the context of a class action, considers the factors involved in a court taking jurisdiction under the "real and substantial connection" test over a matter involving foreign defendants:
(i) The Evolution of the Real and Substantial Connection Test

[51] As Lebel J. observed at para. 66 of Van Breda, striking a proper balance between flexibility and predictability, or between fairness and order, has been a constant theme in Canadian jurisprudence on jurisdiction.

[52] Starting in 1990 with the Supreme Court’s decision in Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (SCC), [1990] 3 S.C.R. 1077, and continuing with this court’s decision in Excalibur, overturning Perell J.’s decision in 2014 ONSC 4118 (CanLII), and for which leave to appeal was refused, the real and substantial connection test has been a dominant, although not exclusive, test governing the issue of jurisdiction.

[53] In Morguard, the Supreme Court addressed jurisdiction in the context of extra-provincial enforcement of judgments. Justice La Forest noted at pp. 1108-1109 that the real and substantial connection approach to jurisdiction provides a reasonable balance between the rights of the parties. In Beals v. Saldanha, 2003 SCC 72 (CanLII), [2003] 3 S.C.R. 416, the Supreme Court expanded the application of the real and substantial connection test to the recognition of foreign judgments. Justice Major held at para. 23 that a substantial connection with the subject matter of the action will satisfy the test even in the absence of such a connection with the defendant in the action. Accordingly, a Canadian court could assume jurisdiction if the foreign court had a real and substantial connection with the subject matter of the action or the parties. Justice Major further noted at para. 37 that the presence of traditional indicia of jurisdiction such as attornment, consent, residence, and presence serve to bolster the real and substantial connection.

[54] In Van Breda, a case dealing with the assumption of jurisdiction in tort actions, Lebel J. observed that, in developing the real and substantial connection test, the Supreme Court had crafted a constitutional principle rather than a simple conflicts rule. Justice Lebel sought to draw a clearer distinction between the constitutional and private international law dimensions of the test. The constitutional dimension of the rule concerns the territorial limits of jurisdiction. The real and substantial connection test establishes boundaries within which conflicts rules could be applied. The purpose of the constitutionally-imposed territorial limit is to ensure the existence of the relationship or connection needed to establish the legitimate exercise of state power. A weak or hypothetical connection casts doubt on the legitimacy of the exercise of state power over the affected persons. In contrast, conflict rules decide when jurisdiction can be assumed over a dispute, what law will govern a dispute, or how an adjudicative decision from another jurisdiction will be recognized and enforced. As Lebel J. stated, at para. 33, “The constitutional territorial limits … are concerned with setting the outer boundaries within which a variety of appropriate conflicts rules can be elaborated and applied.”

[55] In recognizing the need to develop an appropriate framework for the assumption of jurisdiction based on the real and substantial connection test, Lebel J. specified, at para. 73, that the framework for the assumption of jurisdiction cannot be “an unstable, ad hoc system made up on the fly on a case-by-case basis — however laudable the objective of individual fairness may be.” He went on to say, at paras. 78-79:
In my view, identifying a set of relevant presumptive connecting factors and determining their legal nature and effect will bring greater clarity and predictability to the analysis of the problems of assumption of jurisdiction, while at the same time ensuring consistency with the objectives of fairness and efficiency that underlie this branch of the law.

From this perspective, a clear distinction must be maintained between, on the one hand, the factors or factual situations that link the subject matter of the litigation and the defendant to the forum and, on the other hand, the principles and analytical tools, such as the values of fairness and efficiency or the principle of comity. These principles and analytical tools will inform their assessment in order to determine whether the real and substantial connection test is met. However, jurisdiction may also be based on traditional grounds, like the defendant’s presence in the jurisdiction or consent to submit to the court’s jurisdiction, if they are established. The real and substantial connection test does not oust the traditional private international law bases for court jurisdiction.
[56] Fairness, efficiency, and comity inform the test but are not stand alone connecting factors. At para. 84, Lebel J. specifically excluded “general principles or objectives of the conflicts system, such as fairness, efficiency or comity” from the list of presumptive connecting factors, although he did note that these principles may influence the appropriateness of new factors.

....

[60] Justice Lebel also discussed whether a court would be limited in hearing only that part of a multijurisdictional claim that could be directly connected with the jurisdiction. In holding that a court would not be limited in such a manner, he explained at para. 99 that “[t]he purpose of the conflicts rules is to establish whether a real and substantial connection exists between the forum, the subject matter of the litigation and the defendant.” Where a real and substantial connection exists “in respect of a factual or legal situation, the court must assume jurisdiction over all aspects of the case.”

[61] Jurisdiction may therefore be based on traditional grounds such as presence or consent, or on the existence of a real and substantial connection. Moreover, as stated in Beals v. Saldanha, the former may bolster the latter.

[62] That traditional grounds are an appropriate basis for jurisdiction was reiterated in Chevron Corp. v. Yaiguaje, 2015 SCC 42 (CanLII), [2015] 3 S.C.R. 69, a case involving an action for recognition and enforcement of a foreign judgment in Ontario. In such an action, there is no need to establish a real and substantial connection between the enforcing forum and either the judgment debtor or the dispute.

[63] Of course, despite having jurisdiction, a court has discretion to decline to exercise its jurisdiction and to stay the proceedings based on the doctrine of forum non conveniens.

3. Forum Non Conveniens

. Airia Brands Inc. v Air Canada

In Airia Brands Inc. v. Air Canada (Ont CA, 2017) the Court of Appeal, reviewing the leading case on the issue, considers the factors involved in a court taking jurisdiction under the doctrine of forum non conveniens:
[121] In Van Breda, at para. 110, Lebel J. set out a list of non-exhaustive factors to consider in the forum non conveniens analysis: the location of the parties and the witnesses; the cost of transferring the case to another jurisdiction or declining the stay; the impact of a transfer on the conduct of the litigation or on related or parallel proceedings; the possibility of conflicting judgments; problems related to recognition and enforcement of judgments; and the relative strength of the connection of the parties.

[122] The burden is on the respondents to show that another jurisdiction has a real and substantial connection to the claim and also the availability of a clearly more appropriate forum than Ontario: LaPointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30 (CanLII), [2016] 1 S.C.R. 851, at para. 52, and Van Breda at paras. 103-105. As stated in Van Breda at para. 104: “Forum non conveniens recognizes that there is a residual power to decline to exercise jurisdiction in appropriate, but limited, circumstances in order to assure fairness to the parties and the efficient resolution of the dispute.” Consistent with the need to identify a clearly more appropriate forum than Ontario, the principle of comity informs the application of forum non conveniens.

[123] The motion judge accepted the respondent airlines’ arguments that Ontario was forum non conveniens and suggested that AFCs pursue individual actions within their own jurisdictions. However, she failed to ask whether any jurisdiction was clearly more appropriate than Ontario. This was in error.

[124] I would note that, in concluding Ontario was not the appropriate forum for the AFCs’ claims, the motion judge relied extensively on this court’s decision in Kaynes v. BP, PLC, 2014 ONCA 580 (CanLII), 122 O.R. (3d) 162. In Kaynes, Sharpe J.A. held that the United States and United Kingdom were more appropriate forums than Ontario for a class proceeding involving a claim in misrepresentation arising out of share purchases, the bulk of which were made on foreign exchanges.

[125] An examination of the facts in Kaynes reveals why Kaynes is distinguishable from the present case. First, the appellant in Kaynes was able to point to specific alternative fora that were more appropriate than Ontario, which the respondents here have failed to do. Second, litigation had commenced in the U.S. with respect to the exact same claims that the representative plaintiff sought to litigate in Ontario, whereas the claims put forth in the present class proceeding, dealing with shipments from or to Canada, are not the subject of any other existing proceedings. Indeed, the representative plaintiffs seek to exclude those claims relating to shipments between Canada and countries with ongoing proceedings arising from the same alleged conspiracy. Third, the majority (over 99%) of the proposed class in Kaynes lacked a link to Canada, as they had purchased shares outside of Canada. In contrast, to be part of the class in the present proceeding, an AFC must have purchased air freight services from or to Canada. Lastly, the substantive claims in Kaynes rested in part on U.S. securities law, unlike the claims in the present case, which rest solely on Canadian law.

[126] I would also observe that in a subsequent decision of this court in Keynes v. BP, P.L.C., 2016 ONCA 601 (CanLII), 133 O.R. (3d) 29, the same panel decided that the stay that it had previously imposed on the Ontario action based on forum non conveniens was to be lifted. This was because it had become clear that the plaintiffs could not proceed with a claim in the proceedings in the United States as had previously been anticipated and the claim was now conceded to be governed by Ontario law. Another forum was not clearly more appropriate.

[127] In this case, there is no such forum. Furthermore, the evidence clearly demonstrates a robust connection between the parties and Ontario. All of the respondents carry on business in Ontario, as do at least two of the representative plaintiffs. To be part of the class, AFCs must have purchased air freight services from the respondents for shipments from or to Canada. Based on the respondents’ own evidence, the majority of these services were rendered for shipments from or to Ontario. Some of the events in furtherance of the conspiracy claim unfolded in part in Ontario. Litigation relating to these same claims has not been brought in another jurisdiction and if it is in the future the plaintiffs are excluded from the class. The evidence of the respondents disclosed a minimum of 11,000 customers in Ontario for shipping services that arguably were impacted by the conspiracy.
. James Bay Resources Limited v. Mak Mera Nigeria Limited

In James Bay Resources Limited v. Mak Mera Nigeria Limited (Ont CA, 2015) the Court of Appeal commented on the element of comity (international co-operation) as it related to the determination of whether it was a suitable court to hear international litigation under the doctrine of forum non conveniens:
[11] The appellants argue that the motion judge erred in law in failing to specifically consider comity in his analysis, relying on the 1993 decision of the Supreme Court of Canada in Amchem Products Inc. v. British Columbia (Workers’ Compensation Board). That case dealt with anti-suit injunctions and is factually dissimilar to this case. Since Amchem the Supreme Court of Canada has released its decision in Van Breda v. Village Resorts, 2012 SCC 17 (CanLII), [2012] 1 S.C.R. 572 which has over-taken the prior jurisprudence dealing with jurisdiction and forum conveniens issues. At para. 74 of Van Breda the court had this to say in relation to comity:
The goal of the modern conflicts system is to facilitate exchanges and communications between people in different jurisdictions that have different legal systems. In this sense it rests on the principle of comity. But comity itself is a very flexible concept. It cannot be understood as a set of well-defined rules, but rather as an attitude of respect for and deference to other states and, in the Canadian context, respect for and deference to other provinces and their courts (citations omitted) Comity cannot subsist in private international law without order, which requires a degree of stability and predictability in the development and application of the rules governing international or interprovincial relationships. Fairness and justice are necessary characteristics of a legal system, but they cannot be divorced from the requirements of predictability and stability which assure order in the conflicts system. In the words of La Forest J. in Morguard, “what must underlie a modern system of private international law are principles of order and fairness, principles that ensure security of transactions with justice”…
[12] Comity is not a stand-alone factor. It is part and parcel of the forum non conveniens assessment in a given case. In Teck Cominco Metals Ltd. v. Lloyd’s Underwriters et al., 2009 SCC 11 (CanLII), [2009] 1 S.C.R. 321 (which decision is quoted in Van Breda) the Chief Justice says at para 21:
The first argument is that s.11 of the [Court Jurisdiction and Proceedings Transfer Act (CJPTA)] does not apply where a foreign court has asserted jurisdiction. I cannot agree. The CJPTA creates a comprehensive regime that applies to all cases where stay of proceedings is sought on the grounds that the action should be pursued in a different jurisdiction (forum non conveniens). It requires that in every case, including cases where a foreign judge has asserted jurisdiction in parallel proceedings, all relevant factors listed in s. 11 be considered in order to determine if a stay of proceedings is warranted. This includes the desirability of avoiding a multiplicity of legal proceedings. But the prior assertion of jurisdiction by a foreign court does not oust the s. 11 inquiry.
And further at para 23:
Teck submits that the usual multi-factored test under s. 11 of the CJPTA must give way to a “comity- Based” test when a foreign court positively asserts jurisdiction. To the extent this argument implies that the usual test does not give due comity to foreign courts, it must be rejected. Section 11 is itself a comity-based approach.
[13] While the court in Teck was dealing with a British Columbia case and in that province a statute – the CJTPA – is intended to codify the determination of jurisdictional issues, a review of s.11 of the CJPTA reveals that it is very much a codification of the factors set out by LeBel J. in Van Breda that a court should take into consideration when it considers the issue of forum non-conveniens.
. Kaynes v BP

In Kaynes v BP (Ont CA, 2014), which was grounded in a Securities Act tort provision, the Court of Appeal considered whether an action grounded in alleged misrepresentations made to Canadian purchasers of corporate shares from the New York Stock Exchange, was properly heard in an Ontario Court:
[27] Since Dickson J.’s landmark decision in Moran v. Pyle National (Canada) Ltd., 1973 CanLII 192 (SCC), [1975] 1 S.C.R. 393, Canadian courts have rejected the rigid and unduly mechanical “place of acting” test for determining the place of commission of a tort for purposes of determining jurisdiction. Moran v. Pyle involved a defective light bulb that was manufactured in Ontario and that caused injury in Saskatchewan. The defendant did not carry on business in Saskatchewan, all its manufacturing and assembly operations were in Ontario and it did not directly sell it products in Saskatchewan. The Supreme Court held that the tort was committed in Saskatchewan. As Dickson J. explained at p. 409:
[W]here a foreign defendant carelessly manufactures a product in a foreign jurisdiction which enters into the normal channels of trade and he knows or ought to know both that as a result of his carelessness a consumer may well be injured and it is reasonably foreseeable that the product would be used or consumed where the plaintiff used or consumed it, then the forum in which the plaintiff suffered damage is entitled to exercise judicial jurisdiction over that foreign defendant….By tendering his products in the market place directly or through normal distributive channels, a manufacturer ought to assume the burden of defending those products wherever they cause harm as long as the forum into which the manufacturer is taken is one that he reasonably ought to have had in his contemplation when he so tendered his goods.
[28] In my view, the same line of reasoning applies here. By releasing a document outside Ontario that BP knew it was required to send to Ontario shareholders, BP committed an act with sufficient connection to Ontario to qualify as the commission of a tort in Ontario.

[29] I find the reasons of Goudge J.A. in Central Sun Mining Inc. v. Vector Engineering Inc. 2013 ONCA 601 (CanLII), 2013 ONCA 601, 117 O.R. (3d) 313 (C.A.) instructive on this issue. That case involved a claim for negligent misrepresentation based on reports prepared in the United States and sent to the plaintiff’s office in Vancouver. Decisions relying on those reports were made by senior executives of the plaintiff located in Ontario. There was some question as to whether the reports had been sent to Ontario. This court found that even if they had not, there was a sufficient connection with Ontario to establish a real and substantial connection for purposes of jurisdiction (at para. 33):
The respondents foresaw that their studies would be received by the appellant and acted on in Toronto. They should have expected to be called to account in Ontario. In the modern world where corporations have various offices in various locations, corporate defendants should not escape liability simply because they send their studies to an office of the plaintiff outside Ontario with the clear understanding that it will be acted on in Ontario.
[30] While the present case does not involve a claim for negligent misrepresentation, I see no reason not to hold, by analogy, that when BP released documents that it was legally required to provide its Ontario shareholders, it committed an act that that had an immediate and direct connection with Ontario, an act that is sufficient to establish a real and substantial connection between the claim of this plaintiff and Ontario. In my view, the legislature could not have intended that a foreign corporation such as BP could avoid the reach of Ontario’s securities regime simply because the initial point of release of the document was outside Ontario.
. West Van Inc. v Daisley

In West Van Inc. v. Daisley (Ont CA, 2014) the Court of appeal extensively considered the 'necessity' exception to the normal forum non conveniens test of "real and substantial connection" when deciding if a case was properly heard in Ontario, as opposed to another jurisdiction:
[17] In Van Breda, Sharpe J.A. said the following about the doctrine of forum of necessity:
... The forum of necessity doctrine recognizes that there will be exceptional cases where, despite the absence of a real and substantial connection, the need to ensure access to justice will justify the assumption of jurisdiction. The forum of necessity doctrine does not redefine real and substantial connection to embrace “forum of last resort” cases; it operates as an exception to the real and substantial connection test. Where there is no other forum in which the plaintiff can reasonably seek relief, there is a residual discretion to assume jurisdiction. In my view, the overriding concern for access to justice that motivates the assumption of jurisdiction despite inadequate connection with the forum should be accommodated by explicit recognition of the forum of necessity exception rather than by distorting the real and substantial connection test.
[18] This relatively new Canadian doctrine was derived from art. 3 of the Swiss Private International Law and first incorporated in art. 3136 of the Civil Code of Québec (C.C.Q.), which was enacted in 1991 and came into force in 1994. It was then included in s. 6 of the Uniform Law Conference of Canada’s (“ULCC”) model Court Jurisdiction and Proceedings Transfer Act, 1994. This model act was intended to promote uniform rules by which Canadian courts would establish jurisdiction over proceedings. Unlike the Swiss Private International Law and art. 3136 C.C.Q., s. 6 of the ULCC does not require that the dispute have a “sufficient connection” to the jurisdiction before the doctrine can be invoked. The model act, including s. 6, has since been adopted with minor variations in the Yukon, Nova Scotia and British Columbia: Court Jurisdiction and Proceedings Transfer Act, S.Y. 2000, c. 7, s. 6; Court Jurisdiction and Proceedings Transfer Act, S.N.S. 2003, c. 2, s. 7; Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, s. 6.[1] At the time of Van Breda, Ontario had not, and has not since, adopted the model law. Van Breda was the first time that a common law forum of necessity doctrine was explicitly recognized by a Canadian court: Tanya Monestier, “A “Real and Substantial” Improvement? Van Breda Reformulates the Law of Jurisdiction in Ontario”, in Justice Todd L. Archibald and Justice Randall Scott Echlin’s 2010 Annual Review of Civil Litigation (Toronto: Carswell 2010) 185, at pp. 215-216.

[19] On the appeal of Van Breda to the Supreme Court, the Supreme Court left the possible application of the forum of necessity doctrine open: Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (CanLII), [2012] 1 S.C.R. 572, at para. 100. LeBel J., for the court, wrote that where the real and substantial test is not met, the court “must dismiss or stay the action, subject to the possible application of the forum of necessity doctrine, which I need not address in these reasons.”

[20] All jurisdictions in Canada that have recognized the forum of necessity have incorporated a “reasonableness” test. In Ontario, under Van Breda, the plaintiff must establish that “there is no other forum in which the plaintiff can reasonably seek relief.” Article 3136 C.C.Q. provides as follows:
Even though a Québec authority has no jurisdiction to hear a dispute, it may hear it, if the dispute has a sufficient connection with Québec, where proceedings cannot possibly be instituted outside of Québec or where the institution of such proceedings outside Québec cannot reasonably be required.
And s. 6 of the ULCC’s model law provides as follows:
6. A court that under section 3 lacks territorial competence in a proceeding may hear the proceeding despite that section if it considers that
(a) there is no court outside [enacting province or territory] in which the plaintiff can commence the proceeding, or

(b) the commencement of the proceeding in a court outside [enacting province or territory] cannot reasonably be required.
[21] The “reasonableness” requirement has been stringently construed. To date, only one Ontario court has assumed jurisdiction based solely on the forum of necessity doctrine: see Bouzari v. Bahremani, [2011] O.J. No. 5009. Elsewhere in Canada, only the British Columbia Supreme Court has done so, and, in that case, on the basis of s. 6 of its Court Jurisdiction and Proceedings Transfer Act, (the “CJPTA”), which is in the form of s. 6 of the ULCC’s model law: see Josephson v. Balfour, 2010 BCSC 603 (CanLII), 10 B.C.L.R. (5th) 369.

[22] LeBel J.A., writing for the Québec Court of Appeal in Lamborghini (Canada) Inc. v. Automobili Lamborghini S.P.A., 1996 CanLII 6047 (QC CA), [1997] R.J.Q. 58 (C.A.), described the high bar that applies to a plaintiff seeking to rely on art. 3136 of the Québec Civil Code, at paras. 44-47:
According to its legislative history, this provision represents a narrow exception to the usual rules governing jurisdiction. It is not intended to allow a Québec court to seize a power that it would not otherwise possess. It is intended to settle issues of access to justice for a litigant on Québec territory, when the foreign forum that would normally have jurisdiction is unavailable for exceptional reasons such as a nearly absolute legal or practical impossibility. This includes, for example, the breakdown of diplomatic or commercial relations with a foreign State, the need to protect a political refugee, or the existence of a serious physical threat if the debate were to be undertaken before the foreign court.

...

Article 3136 C.C.Q. sets out an exception based on the demonstrated impossibility of obtaining access to the foreign court in a dispute that is sufficiently connected to Québec.

[translation][2]
[23] In Lamborghini, that bar was not met. The cost and inconvenience of a trial in Italy, and the impact it would have on the plaintiff’s tactical position, were not enough.

[24] The Québec Court of Appeal in Anvil Mining Ltd. v. Association canadienne contre l’impunité, 2012 QCCA 117 (CanLII), subsequently applied Lamborghini, and the British Columbia Supreme Court used it to inform its interpretation of forum of necessity in Josephson.

[25] In Anvil, the proposed representative plaintiff in a class action argued that it was not able to find attorneys in Australia to represent the class. The Québec Court of Appeal noted, at para. 102, that “no information whatsoever [had] been presented regarding the steps taken to this end.”[3] It concluded at para. 103 that the plaintiff had “not shown that it would be impossible to gain access to a foreign court and does not establish that the dispute has a sufficient connection with Québec.”[4]

[26] In Bouzari v. Bahremani, the only Ontario case to successfully invoke forum of necessity, the motion judge found in a default judgment that the plaintiffs were tortured in Iran by the defendant or at his instigation. The motion judge further found, at para. 5, that there was “no reasonable basis upon which [the plaintiffs could be] required to commence the action in a foreign jurisdiction, particularly, the state where the torture took place, Iran”, and went on to adopt this court’s reasoning in Van Breda. At para. 54 of Van Breda, Sharpe J.A. referred to Bouzari v. Islamic Republic of Iran (2004), 2004 CanLII 871 (ON CA), 71 O.R. (3d) 675 (C.A.), a case based on the same factual scenario as in Bouzari v. Bahremani but brought against the Islamic Republic of Iran rather than individuals, as “hinting” at the concept of forum of necessity. In that case, the court concluded that the plaintiff’s claim based on torture in a foreign state was barred by the State Immunity Act, R.S.C. 1985, c. S-18. It therefore did not need to address the question of whether the courts of Ontario could assume jurisdiction: see Bouzari v. Islamic Republic of Iran, at paras. 36-38.

[27] In Bouzari v. Bahremani, the defendant later had the default judgment set aside, and challenged jurisdiction, claiming that England was a more appropriate forum: both the plaintiff and defendant agreed that the action could not be heard in Iran. The court denied the defendant’s request. Ontario had assumed jurisdiction based on the forum of necessity – which the defendant did not initially challenge – and the defendant had not met his burden of establishing that England was clearly a more appropriate forum: Bouzari v. Bahremani, 2013 ONSC 6337 (CanLII).

[28] Josephson – the only other case where the doctrine of forum of necessity has been successfully invoked – involved a unique constellation of facts. Josephson was a passenger in a golf cart driven by Clark on a golf course in British Columbia. Both Josephson and Clark were residents of Idaho. Josephson was thrown from the golf cart and injured. He was first treated in a hospital in British Columbia, and then transferred to a hospital in Idaho. His condition worsened after his transfer to the Idaho hospital. Josephson sued Clark in British Columbia. Josephson did not sue or intend to sue the Idaho hospital or any of its doctors. However, Clark alleged that Josephson received negligent medical treatment in Idaho, and that it contributed to the damages suffered by Josephson. He sought to claim contribution and indemnity from the Idaho hospital and its treating doctors in the action in British Columbia. The Idaho doctors then moved to stay Clark’s third party claim against them in the British Columbia action.

[29] The parties agreed that in Idaho a non-patient could not bring an action for contribution and indemnity from a physician or hospital, and that Idaho had abolished joint and several liability in most tort actions, including medical malpractice. Accordingly, unless Clark was able to sue the Idaho third parties in the British Columbia action, he risked being found 100% liable for all of the damages sustained by Josephson, and having no ability to claim against the Idaho hospital and its doctors.

[30] The motion judge concluded that the third party claim did not meet the real and substantial connection test. It concerned a tort committed by the Idaho third parties in Idaho, not in British Columbia. However, in the circumstances, the court could, and should, assume jurisdiction under s. 6 of the CJPTA.

[31] First, Clark could not bring an action for contribution and indemnity in Idaho because he was not the patient. “To argue that s. 6 does not apply because Mr. Clark can commence his action and not be successful, does not reflect a fair, large, and liberal construction of the CJPTA or an interpretation that best ensures the attainment of its objects”: at para. 96

[32] Second, even if Clark in theory could bring an action in Idaho, he could not be reasonably required to do so. He did not choose British Columbia as the forum. He was sued there by Josephson. Under British Columbia law, Clark would be liable for 100% of the damages suffered by Josephson. If Josephson had instead sued in Idaho, Clark would only be liable for his proportionate share of the liability. Moreover, the hospital and its doctors would not be substantively prejudiced if they were added as third parties in the British Columbia action. They would only be liable to pay their proportionate share.

[33] Third, the factual matrix of the third party claims was closely connected with the main action in British Columbia. In the circumstances, the only practical approach was for one court to hear all of the matters.

[34] There are numerous cases from both Ontario and British Columbia where the courts have declined to assume jurisdiction using the forum of necessity doctrine – the Ontario cases relying on the common law doctrine, and the British Columbia cases on s. 6 of the CJPTA: see Van Kessel v. Orsulak, 2010 ONSC 6919 (CanLII); Elfarnawani v. International Olympic Committee, 2011 ONSC 6784 (CanLII); Mitchell v. Jeckovich, 2013 ONSC 7494 (CanLII); Lailey v. International Student Volunteers, Inc., 2008 BCSC 1344 (CanLII), 88 B.C.L.R. (4th) 357; Sooparayachetty v. Fox, 2010 BCSC 185 (CanLII); and Aleong v. Aleong, 2013 BCSC 1428 (CanLII). A review of these cases reinforces the high bar plaintiffs must meet in order for the court to assume jurisdiction through the forum of necessity doctrine.

[35] In Van Kessel, the motion judge held that the facts that the plaintiff had not succeeded in retaining counsel in Pennsylvania after contacting four lawyers, and had little or no means to conduct a trial in the United States, did not warrant the court exercising its discretion to assume jurisdiction based on the forum of necessity doctrine. In Elfarnawani, the motion judge concluded that the practical difficulties cited by the plaintiff demonstrated no more than that it would be inconvenient to pursue his action in Switzerland. This was insufficient to establish jurisdiction based on forum of necessity. In Mitchell, at para. 49, the motion judge held that the fact that the Ontario plaintiff’s personal injury claim was statute-barred in New York, where the accident had occurred, was not “an exceptional circumstance warranting the use of residual discretion.”

[36] In Lailey, the court concluded that British Columbia had territorial competence in the proceedings brought by two of the three plaintiffs. Because all three of the plaintiffs could have commenced their action in California, it rejected the argument of the third plaintiff that it would be unreasonable for her to commence a proceeding outside of British Columbia as it would result in a multiplicity of proceedings and unnecessary expense. In Sooparayachetty, the plaintiffs had also commenced actions in Alberta, and were therefore unable to establish that British Columbia was a “forum of last resort”. Finally, in Aleong, the court rejected controverted evidence of a party to a family law dispute that she could not reasonably commence her proceeding in Trinidad because of the level of crime and the risk to her safety.

[37] Two other Ontario cases – Obégi Chemicals LLC v. Kilani, 2011 ONSC 1636 (CanLII) and Wolfe v. Pickar, 2010 ONSC 2368 (CanLII), aff’d 2011 ONCA 347 (CanLII), 282 O.A.C. 64 – found that the defendants had a real and substantial connection to Ontario, but added, in obiter, that, if incorrect in so concluding, the doctrine of forum of necessity would have permitted the assumption of jurisdiction. In Obégi, the plaintiffs sought to enforce foreign judgments in Ontario. The defendants challenged the jurisdiction of the courts of Ontario to freeze their assets. The analysis of forum of necessity was minimal. The motion judge appeared to have reasoned that only Ontario could freeze the defendants’ Ontario bank account and was therefore the forum of necessity. It would seem to me that there is no need to resort to the forum of necessity doctrine when a plaintiff seeks to freeze a defendant’s assets located in Ontario. The existence of assets within Ontario is surely an un-rebuttable presumptive connecting factor linking the action to freeze those assets to the jurisdiction of Ontario, and entitling Ontario to assume jurisdiction based on the real and substantial connection test. The motion judge in Wolfe seemingly concluded that the forum of necessity would permit Ontario to assume jurisdiction because the action commenced in the foreign jurisdiction was statute barred. This court agreed with the motion judge that there was a real and substantial connection and accordingly did not assess whether the assumption of jurisdiction could be justified by the doctrine of necessity. However, Mitchell, discussed above, subsequently squarely and soundly rejected the argument that the expiry of a foreign limitation period is a sufficient basis to invoke the forum of necessity doctrine.

4. Forum and Venue Selection Clauses

A forum selection clause is a contractual term that attempts to specify the forum (typically private arbitration, though also local courts) where any disputes between the parties shall be heard.

Forum selection clauses are commonly associated with similar 'venue selection clauses', which attempt to establish the geographical jurisdiction of the dispute as well. I include pure forum selection clauses here.

. Douez v Facebook, Inc.

In the BC case of Douez v. Facebook, Inc. (SCC, 2017) the Supreme Court of Canada reviewed the law respecting the enforceability of venue selection clauses, particularly with respect to commercial versus consumer contracts (the latter commonly known as 'contracts of adhesion'). The badly-split court held against Facebook's clause requiring litigation in California courts, largely in light of the gross inequality of bargaining power between the parties, and the practical problems that consumers faced in conducting such litigation:
[27] Of course, parties are generally held to their bargain and are bound by the enforceable terms of their contract. However, because forum selection clauses encroach on the public sphere of adjudication, Canadian courts do not simply enforce them like any other clause. In common law provinces, a forum selection clause cannot bind a court or interfere with a court’s jurisdiction. As the English Court of Appeal recognized long ago, “no one by his private stipulation can oust these courts of their jurisdiction in a matter that properly belongs to them” (The Fehmarn, [1958] 1 All E.R. 333, at p. 335).

[28] Instead, where no legislation overrides the clause, courts apply a two-step approach to determine whether to enforce a forum selection clause and stay an action brought contrary to it (Pompey, at para. 39). At the first step, the party seeking a stay based on the forum selection clause must establish that the clause is “valid, clear and enforceable and that it applies to the cause of action before the court” (Preymann v. Ayus Technology Corp., 2012 BCCA 30 (CanLII), 32 B.C.L.R. (5th) 391, at para. 43; see also Hudye Farms, at para. 12 and Pompey, at para. 39). At this step of the analysis, the court applies the principles of contract law to determine the validity of the forum selection clause. As with any contract claim, the plaintiff may resist the enforceability of the contract by raising defences such as, for example, unconscionability, undue influence, and fraud.

[29] Once the party seeking the stay establishes the validity of the forum selection clause, the onus shifts to the plaintiff. At this second step of the test, the plaintiff must show strong reasons why the court should not enforce the forum selection clause and stay the action. In Pompey, this Court adopted the “strong cause” test from the English court’s decision in The “Eleftheria”, [1969] 1 Lloyd’s Rep. 237 (Adm. Div.). In exercising its discretion at this step of the analysis, a court must consider “all the circumstances”, including the “convenience of the parties, fairness between the parties and the interests of justice” (Pompey, at paras. 19, 30 and 31). Public policy may also be a relevant factor at this step (Holt Cargo Systems Inc. v. ABC Containerline N.V. (Trustees of), 2001 SCC 90 (CanLII), [2001] 3 S.C.R. 907, at para. 91, referred to in Pompey, at para. 39; Frey, at para. 115).

[30] The strong cause factors were meant to provide some flexibility. Importantly, Pompey did not set out a closed list of factors governing the court’s discretion to decline to enforce a forum selection clause. Both Pompey and The “Eleftheria” acknowledged that courts should consider “all the circumstances” of the particular case (Pompey, at para. 30; The “Eleftheria”, at p. 242). And the leading authority in England continues to recognize that the court in The “Eleftheria” did not intend its list of factors to be comprehensive (Donohue v. Armco Inc, [2001] UKHL 64, [2002] 1 All E.R. 749, at para. 24).

[31] That said, the strong cause factors have been interpreted and applied restrictively in the commercial context. In commercial interactions, it will usually be desirable for parties to determine at the outset of a business relationship where disputes will be settled. Sophisticated parties are justifiably “. . . deemed to have informed themselves about the risks of foreign legal systems and are deemed to have accepted those risks in agreeing to a forum selection clause” (Aldo Group Inc. v. Moneris Solutions Corp., 2013 ONCA 725 (CanLII), 118 O.R. (3d) 81, at para. 47). In this setting, our Court recognized that forum selection clauses are generally enforced and to be encouraged “because they provide international commercial relations with the stability and foreseeability required for purposes of the critical components of private international law, namely order and fairness” (GreCon Dimter inc. v. J.R. Normand inc., 2005 SCC 46 (CanLII), [2005] 2 S.C.R. 401, at para. 22).

[32] In Pompey, for example, our Court enforced a forum selection clause contained in a bill of lading concluded between two sophisticated shipping companies. The parties were of similar bargaining power and sophistication, since they were “corporations with significant experience in international maritime commerce . . . [that] were aware of industry practices” (para. 29). The Court held that the “forum selection clause could very well have been negotiated” between the parties (ibid.). This context manifestly informed the Court’s application of the strong cause test.

[33] But commercial and consumer relationships are very different. Irrespective of the formal validity of the contract, the consumer context may provide strong reasons not to enforce forum selection clauses. For example, the unequal bargaining power of the parties and the rights that a consumer relinquishes under the contract, without any opportunity to negotiate, may provide compelling reasons for a court to exercise its discretion to deny a stay of proceedings, depending on the other circumstances of the case (see e.g. Straus v. Decaire, 2007 ONCA 854, at para. 5 (CanLII)). And as one of the interveners argues, instead of supporting certainty and security, forum selection clauses in consumer contracts may do “the opposite for the millions of ordinary people who would not foresee or expect its implications and cannot be deemed to have undertaken sophisticated analysis of foreign legal systems prior to opening an online account” (Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic Factum, at para. 7).

[34] Canadian courts have recognized that the test may apply differently, depending on the contractual context (see Expedition Helicopters Inc. v. Honeywell Inc., 2010 ONCA 351 (CanLII), 100 O.R. (3d) 241, at para. 24; Stubbs v. ATS Applied Tech Systems Inc., 2010 ONCA 879 (CanLII), 272 O.A.C. 386, at para. 58). The English courts have also recognized that not all forum selection clauses are created equally. The underpinning of the transaction is relevant to the exercise of discretion under the strong cause test: “ . . . a defendant who cynically flouts a jurisdiction clause which he has freely negotiated is more likely to be enjoined than one who has had the clause imposed upon him . . . ” (Welex A.G. v. Rosa Maritime Limited (The “Epsilon Rosa”), [2003] EWCA Civ 938, [2003] 2 Lloyd’s Rep. 509, at para. 48; see also The “Bergen” (No. 2), [1997] 2 Lloyd’s Rep. 710, at p. 715 (Q.B. (Adm. Ct.)); D. Joseph, Jurisdiction and Arbitration Agreements and their Enforcement (2nd ed. 2010), at para. 10.13). Similarly, Australian courts have found “that in a consumer situation [courts] should not place as much weight on an exclusive jurisdiction clause in determining a stay application as would be placed on such a clause where there was negotiation between business people” (Quinlan v. Safe International Försäkrings AB, [2005] FCA 1362, at para. 46 (AustLII); see also Incitec Ltd v. Alkimos Shipping Corp., [2004] FCA 698, 206 A.L.R. 558, at para. 50).

[35] As these cases recognize, different concerns animate the consumer context than those that this Court considered in Pompey, where a sophisticated commercial transaction was at issue. Because of these concerns, we agree with Ms. Douez and several interveners that the strong cause test must account for the different considerations relevant to this context.

[36] In our view, recognizing the importance of factors beyond those specifically listed in The “Eleftheria” is an appropriate incremental response of the common law to a different context (Bhasin v. Hrynew, 2014 SCC 71 (CanLII), [2014] 3 S.C.R. 494, at paras. 33-34 and 40). Such a development is especially important since online consumer contracts are ubiquitous, and the global reach of the Internet allows for instantaneous cross-border consumer transactions. It is necessary to keep private international law “in step with the dynamic and evolving fabric of our society” (R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654, at p. 670).

[37] After all, the strong cause test must ensure that a court’s plenary jurisdiction only yields to private contracts where appropriate. A superior court’s general jurisdiction includes “all the powers that are necessary to do justice between the parties” (80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., 1972 CanLII 535 (ON CA), [1972] 2 O.R. 280, at p. 282 (C.A.); TCR Holding Corp. v. Ontario, 2010 ONCA 233 (CanLII), 69 B.L.R. (4th) 175, at para. 26; Kelly v. Human Rights Commission (P.E.I.), 2008 PESCAD 9 (CanLII), 276 Nfld. & P.E.I.R. 336, at para. 8).

[38] Therefore, we would modify the Pompey strong cause factors in the consumer context. When considering whether it is reasonable and just to enforce an otherwise binding forum selection clause in a consumer contract, courts should take account of all the circumstances of the particular case, including public policy considerations relating to the gross inequality of bargaining power between the parties and the nature of the rights at stake. The burden remains on the party wishing to avoid the clause to establish strong cause.

[39] Although the steps are distinct, some considerations may be relevant to both steps of the test. For example, a court may consider gross inequality of bargaining power at the second step of the analysis, even if the circumstances of the bargain do not render the contract unconscionable at the first step. Taking into account the fact that the parties did not negotiate on an even playing field recognizes that the reasons for holding parties to their bargain carry less weight when there is no opportunity to negotiate a forum selection clause. This is not to say that the gross inequality of bargaining power will be sufficient, on its own, to show strong cause. However, it is a relevant circumstance that may be taken into account in the analysis.

[40] The two steps governing the enforcement of forum selection clauses ultimately play conceptually distinct roles. Professor Pavlović explains that at the first step, where the court determines the validity of the forum selection clause, “[c]ontract rules provide a core legal basis for the enforcement of jurisdiction agreements” (p. 402). On the other hand, the strong cause test at the second step “limits contractual autonomy in order to protect the authority (jurisdiction) of otherwise competent courts” (ibid.). This second step recognizes that there may be strong reasons to retain jurisdiction over a matter in the province.

5. Venue of Tort

. Airia v Air Canada

In Airia Brands Inc. v. Air Canada (Ont CA, 2017) the Court of Appeal considers the factors involved in a court taking jurisdiction over a tort matter under the "real and substantial connection" test:
[57] Justice Lebel [in Van Breda v. Village Resorts Ltd. (SCC, 2012)] outlined a list of presumptive connecting factors for torts. The onus is on a plaintiff to establish that one or more of the presumptive factors exists. If one or more of the presumptive connecting factors applies, the court should assume that it has jurisdiction over the claim. However, the presumption of jurisdiction is rebuttable. A defendant may rebut the presumptive effect of any of the factors to demonstrate that the court lacks jurisdiction. To do so, the defendant must establish, as outlined at para. 95, that the factor “does not point to any real relationship between the subject matter of the litigation and the forum”, or that the relationship between the subject matter and the forum is weak.

[58] The Supreme Court set out the following four, non-exhaustive presumptive connecting factors for tort cases that, prima facie, entitle a court to assume jurisdiction over a dispute:
(a) the defendant is domiciled or resident in the province;

(b) the defendant carries on business in the province;

(c) the tort was committed in the province; and

(d) a contract connected with the dispute was made in the province.
[59] At para. 91, Lebel J. described the following considerations to assist in identifying new presumptive factors:
(a) similarity of the connecting factor with the recognized presumptive connecting factors;

(b) treatment of the connecting factor in the case law;

(c) treatment of the connecting factor in the statute law; and

(d) treatment of the connecting factor in the private international law of other legal systems with a shared commitment for order, fairness and comity.
. Kaynes v BP (Ont CA, 2014)

In Kaynes v BP (Ont CA, 2014) the issue was not only where the venue of the case should be, but where the tort occured (which of course feeds into the venue determination):
[27] Since Dickson J.’s landmark decision in Moran v. Pyle National (Canada) Ltd., 1973 CanLII 192 (SCC), [1975] 1 S.C.R. 393, Canadian courts have rejected the rigid and unduly mechanical “place of acting” test for determining the place of commission of a tort for purposes of determining jurisdiction. Moran v. Pyle involved a defective light bulb that was manufactured in Ontario and that caused injury in Saskatchewan. The defendant did not carry on business in Saskatchewan, all its manufacturing and assembly operations were in Ontario and it did not directly sell it products in Saskatchewan. The Supreme Court held that the tort was committed in Saskatchewan. As Dickson J. explained at p. 409:
[W]here a foreign defendant carelessly manufactures a product in a foreign jurisdiction which enters into the normal channels of trade and he knows or ought to know both that as a result of his carelessness a consumer may well be injured and it is reasonably foreseeable that the product would be used or consumed where the plaintiff used or consumed it, then the forum in which the plaintiff suffered damage is entitled to exercise judicial jurisdiction over that foreign defendant ... By tendering his products in the market place directly or through normal distributive channels, a manufacturer ought to assume the burden of defending those products wherever they cause harm as long as the forum into which the manufacturer is taken is one that he reasonably ought to have had in his contemplation when he so tendered his goods.
[28] In my view, the same line of reasoning applies here. By releasing a document outside Ontario that BP knew it was required to send to Ontario shareholders, BP committed an act with sufficient connection to Ontario to qualify as the commission of a tort in Ontario.

[29] I find the reasons of Goudge J.A. in Central Sun Mining Inc. v. Vector Engineering Inc. 2013 ONCA 601 (CanLII), 117 O.R. (3d) 313 (C.A.) instructive on this issue. That case involved a claim for negligent misrepresentation based on reports prepared in the United States and sent to the plaintiff’s office in Vancouver. Decisions relying on those reports were made by senior executives of the plaintiff located in Ontario. There was some question as to whether the reports had been sent to Ontario. This court found that even if they had not, there was a sufficient connection with Ontario to establish a real and substantial connection for purposes of jurisdiction (at para. 33):
The respondents foresaw that their studies would be received by the appellant and acted on in Toronto. They should have expected to be called to account in Ontario. In the modern world where corporations have various offices in various locations, corporate defendants should not escape liability simply because they send their studies to an office of the plaintiff outside Ontario with the clear understanding that it will be acted on in Ontario.
[30] While the present case does not involve a claim for negligent misrepresentation, I see no reason not to hold, by analogy, that when BP released documents that it was legally required to provide its Ontario shareholders, it committed an act that that had an immediate and direct connection with Ontario, an act that is sufficient to establish a real and substantial connection between the claim of this plaintiff and Ontario. In my view, the legislature could not have intended that a foreign corporation such as BP could avoid the reach of Ontario’s securities regime simply because the initial point of release of the document was outside Ontario.


Cases to be integrated

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