In this case, the Ontario Superior Court (ONSC) applied the real
and substantial connection test developed by the Supreme Court of
Canada in Van Breda (see above) to an application
concerning a dispute over the termination of a mining services
The services agreement was between Avanti Management and
Consulting Limited (Avanti) and Argex Mining Inc. (Argex) and was
in respect of services to be provided to Argex by Mr. Michael Dehn,
in the capacity of Head of Technology and Business Development.
Argex owned three mineral properties in Québec containing
titanium ore. In order to extract and purify titanium oxide from
the titanium ore, Argex uses a process over which the Ontario
company Canadian Titanium Ltd. (CTL) owns the patent. The services
agreement contemplated Mr. Dehn's involvement in the
development and commercialization of the extraction process. Argex
terminated the services agreement when it learned that Mr. Dehn was
to become the president of a rival mining company. Avanti and Mr.
Dehn subsequently brought suit against Argex before the ONSC, and
Argex moved to stay the action on the grounds that the Ontario
court lacked jurisdiction and that Ontario was not the most
In applying the new real and substantial connection test from
Van Breda, the ONSC found that it had presumptive
jurisdiction because a presumptiveconnecting factor had been
identified: Argex carries on business in Ontario.The ONSC reached
this conclusion notwithstanding the fact that Argexwas domiciled in
Québec and that its resource properties were all locatedin
Québec. Salient facts for the ONSC were that Argex had
become a majorityowner in CTL (the Ontario company that owned the
patented extractionprocess), Argex had been involved in efforts to
develop and market thattechnology and Argex was listed on the TSX
Venture Exchange, primarilyregulated by the Ontario Securities
Commission. Although it was opento Argex to rebut the presumption
of jurisdiction, it failed to do so.
In considering whether the action should be stayed on the basis
of the forum non conveniens doctrine, the ONSC considered
a number of factors, including where the services agreement was
signed (Québec), the law applicable to the services
agreement (Québec law), the location of key witnesses
(Ontario and Québec), the location where evidence would come
from (Ontario and Québec), the jurisdiction where the
factual matters arose (Ontario and Québec), the place of
business of the parties (Ontario and Québec) and the loss of
a juridical advantage, which the ONSC considered a neutral factor.
Although two of the considered factors favoured Québec, the
ONSC found that Argex had not satisfied its burden to displace the
Avanti's choice of Ontario as the appropriate forum.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
In Bank of Montreal v Bumper Development Corporation Ltd, 2016 ABQB 363, the Alberta Court of Queen's Bench enforced the "immediate replacement" provision in the Canadian Association of Petroleum Landmen 2007 Operating Procedure...
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