Challenge of Jurisdiction or Forum in Proceedings in Ontario Courts

Ontario may or may not be a more advantageous place to resolve your dispute. Commencement of an action in Ontario does not mean the Ontario Court has jurisdiction or will chose to exercise jurisdiction. We have experience in working with foreign lawyers to assess the advantages or disadvantages of lawsuits within Ontario and lawsuits in other jurisdictions.

The laws of Ontario differ from the long arm jurisdiction laws of the United States, Europe and elsewhere.  There are important differences between Ontario law and U.S. concepts such as “diversity jurisdiction”, “personal jurisdiction”, “subject matter jurisdiction”, and “purposeful availment”.  We are Toronto, Ontario, Canada lawyers who have experience in cross-border litigation and jurisdiction disputes.

Jurisdiction | Forum Challenge | Forum Non Conveniens

Jurisdiction disputes can refer to:

• Jurisdiction Simpliciter Disputes: whether the Ontario Court has jurisdiction over the dispute. Jurisdiction can be from physical presence of a party in Ontario, from the parties consent to Ontario jurisdiction, or from a “real and substantial connection” to Ontario.
• Contract Forum Selection Clause Disputes: whether a contract specifies where disputes will be adjudicated or arbitrated.
• Forum Non Conveniens Disputes: even if the Ontario Court has jurisdiction, whether the Ontario Court will decline to exercise jurisdiction because the Courts of another forum are more appropriate to hear the dispute.

Bases of Jurisdiction

• Presence Jurisdiction: In Ontario, a court will have jurisdiction over a party if the party is physically present in Ontario when the party is served with the originating process.
• Consent Jurisdiction:  Agreement to Ontario’s jurisdiction (which can arise in a number of ways) or challenging the merits of a claim in Ontario (attornment) may lead to a finding of consent to the Ontario Court’s jurisdiction.avid alderson of our
• Real and Substantial Connection: The Ontario Court may find that it has jurisdiction if one of for presumptive factors are present, namely:
  • i. the defendant is domiciled or resident in the province;
  • ii. the defendant carries on business in the province even if based outside Ontario;
  • iii. the tort was committed in the province; or iv. a contract connected with the dispute was made in the province.

Forum Challenge | Forum Non Conveniens

Just because the Ontario Court has jurisdiction, there may be reasons why a U.S., European or other forum is more appropriate. The Court will consider a variety of factors in determining whether another forum is more appropriate, often with reference to detailed Affidavit evidence. It is important to retain Ontario counsel who have experience in forum challenges and who understand the diversity of cases in this area.

Experience

Gilbertson Davis LLP has lawyers who can bring and defend against:

• Jurisdiction Challenges
• Forum Challenges
• Anti-Suit Injunctions
• Enforcement of Foreign Judgments
• Service of Foreign Processes

Jurisdiction issues can arise in a variety of contexts, including:

Gilbertson Davis LLP has lawyers who have represented foreign clients in successful jurisdiction challenges. Recent examples include:

Carolina Foods, Inc. v. 838116 Ontario Inc., 2015 ONSC 1342: David Alderson and Andrew Ottaway of our firm represented the Plaintiff U.S. company.  The Plaintiff brought a motion to dismiss the Defendants’ counterclaim on the basis that the Ontario Court had no jurisdiction, and that Ontario was forum non conveniens. The Judge agreed that the Ontario Court had no jurisdiction over the counterclaim and, alternatively, that Ontario was forum non conveniens. The Judge dismissed the counterclaim with costs to the Plaintiff.

Harster Greenhouses v. Visser International, 2011 ONSC 2608: David Alderson of our firm appeared as counsel for the Defendant Dutch company. The Defendant Dutch company moved to dismiss the crossclaim of the Ontario co-Defendant based on a forum selection clause. The Judge agreed with the Defendant that the forum selection clause applied to the dispute.The Judge elaborated on the principle that the responding party must show “strong cause” why the choice of forum clause should not prevail. The Judge agreed that the responding party had not shown “strong cause”, and dismissed the crossclaim with costs to the Defendant Dutch company.  The decision has been cited by the Ontario Court of Appeal.

We frequently write about recent developments in jurisdiction, jurisdiction challenges, and cross-border and transnational litigation:

Please contact Gilbertson Davis LLP to arrange an initial consultation.