"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 rationale.
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."
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