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Private International Law - Forum is Ultimately Discretionary to the Court. 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 simpliciter and forum non conveniens in an inter-provincial context, not an international one.
In this quote the court clarifies that it has "residual discretion" to select the venue (under forum non conveniens doctrine), even though one court clearly had jurisdiction simpliciter:[18] That Ontario has jurisdiction simpliciter, however, is not the end of the analysis. The court retains the residual discretion to displace a plaintiff’s right to choose the forum for the adjudication of its claim and decline jurisdiction if the defendant satisfies its burden of demonstrating that another jurisdiction is clearly the more appropriate forum: see, e.g., Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada, 2022 ONCA 862, at para. 147. The Supreme Court of Canada in Van Breda, per LeBel J., at para. 109, described the defendant’s burden and the court’s correct approach as follows:The burden is on a party who seeks to depart from this normal state of affairs to show that, in light of the characteristics of the alternative forum, it would be fairer and more efficient to do so and that the plaintiff should be denied the benefits of his or her decision to select a forum that is appropriate under the conflicts rules. The court should not exercise its discretion in favour of a stay solely because it finds, once all relevant concerns and factors are weighed, that comparable forums exist in other provinces or states. It is not a matter of flipping a coin. A court hearing an application for a stay of proceedings must find that a forum exists that is in a better position to dispose fairly and efficiently of the litigation. But the court must be mindful that jurisdiction may sometimes be established on a rather low threshold under the conflicts rules. Forum non conveniens may play an important role in identifying a forum that is clearly more appropriate for disposing of the litigation and thus ensuring fairness to the parties and a more efficient process for resolving their dispute.
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