"Governing Law Clauses: Just Jurisdiction, an Evolving
Area of Law in Ontario - Updated 2012", presented to the CCLA
Solicitors' Conference, May 2012
This paper, originally presented at the 2010 CCLA Solicitors
Conference, reviewed particular factors that drafters must consider
when including forum clauses in contracts as well as the tests the
courts have used when jurisdiction has been disputed and how they
had been changed by the Ontario Court of Appeal in the Van
Breda decision. In so doing, we indicated where the tests and
applications of the test remain unclear.
The paper was updated in 2011 to address two significant
decisions by the Ontario Court of Appeal in Expedition and
Momentous which elaborated the factors constituting
"strong cause" not to enforce a foreign jurisdiction
clause. The Momentous decision also determined that
following a finding of jurisdiction simpliciter there are
two different classes of cases in which the court is asked to
exercise its discretion to take jurisdiction: one arises on a
forum non conveniens motion; the other where the parties
have agreed to a forum to resolve their disputes. The Ontario Court
of Appeal found that each class of case has its own onus, test and
In 2012 the Supreme Court of Canada released decisions
dismissing the Van Breda and Momentous appeals
and has clarified most (but not all) of the confusion surrounding
the international private law of jurisdiction in Ontario. In
Van Breda the Supreme Court clearly states the doctrine of
forum non conveniens, simplifies the real and substantial
connection test for determining jurisdiction simpliciter
and in so doing seems to have blurred the traditional distinction
between presence-based, consent-based and assumed jurisdiction
simpliciter: "ostensibly conflating presence and
consent under the rubric of assumed jurisdiction."
FMC is one of Canada's leading business and litigation law
firms with more than 500 lawyers in six full-service offices
located in the country's key business centres. We focus on
providing outstanding service and value to our clients, and we
strive to excel as a workplace of choice for our people. Regardless
of where you choose to do business in Canada, our strong team of
professionals possess knowledge and expertise on regional, national
and cross-border matters. FMC's well-earned reputation for
consistently delivering the highest quality legal services and
counsel to our clients is complemented by an ongoing commitment to
diversity and inclusion to broaden our insight and perspective on
our clients' needs. Visit:
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
On Thursday, September 22, 2016, Dentons hosted a panel discussion about the management of liabilities and risks associated with environmental crises, including potential liabilities for directors and officers and provided insight into risk and liability techniques associated with environmental crisis management.
Under the Income Tax Act, the Employment Insurance Act, and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions or GST.
Under the Income Tax Act, the Employment Insurance Act, the Canada Pension Plan Act and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).