On July 15, 2016 the Supreme Court of Canada, in a long-awaited
decision, resisted the invitation to re-write the traditional rules
for the establishment of forum non-conveniens, and
enhanced the applicability of the of the “presumptive
connecting factor” requirement: “a contract connected
with the dispute was made in the province”. The decision is
heavily fact-specific, but underscores that the Court is not
– at least at this time – prepared to change its
“presumptive jurisdiction” tests.
The case, Lapointe Rosenstein Marchand Melançon LLP
v. Cassels Brock & Blackwell LLP, arose out of the
well-known Ontario class action in which some 207 General Motors of
Canada dealers saw their dealerships closed as a consequence of the
2008 Federal Government of Canada GMC bailout. Those dealers later
joined together and launched a class action against law firm
Cassels Brock. The class action alleged negligent advice and
representation respecting the execution of so-called Wind-Down
Agreements between GMC and the affected dealers; through an
industry association, Cassels Brock had advised the affected
dealers and ultimately counselled their entry into the Wind-Down
Agreements. The class action also alleged that Cassels Brock was in
a conflict of interest. The dealers’ claims exceeded $750M.
Cassels Brock defended the class action, and commenced third party
proceedings in Ontario against some 150 law firms that, in addition
to Cassels Brock, had individually advised the dealers and executed
certificates of independent legal advice respecting the
dealers’ executions of the Wind-Down Agreements. Of those 150
law firms, 32 were in Québec. The Québec firms sought
to oust the Ontario courts’ jurisdiction over Cassels
Brock’s third party claims on the basis of forum
non-conveniens. The Quebec firms failed at the Ontario
Superior Court of Justice and at the Ontario Court of Appeal
– and ultimately at the Supreme Court of Canada.
The Supreme Court of Canada re-stated the tests for forum
non-conveniens that it set out in its 2012 decision, Club Resorts Ltd. v. Van Breda. On the
basis of those tests, jurisdiction can be established where
the defendant carries on business in the province in which
the third party proceedings are commenced, the tort alleged was
committed or the contract in issue was made. The Court
parenthetically re-stated its long-held view that to establish
forum non-conveniens, the party seeking to oust the
assumed jurisdiction must demonstrate there is another jurisdiction
“clearly more appropriate” for the dispute in issue.
Applying this test, the Court noted, amongst other things, that all
the subject Wind-Down Agreements were, according to their unique
terms, made in Ontario. Though some of the Agreements were executed
in Quebec, the Agreements expressly stated they didn’t take
effect until GMC had provided written notice that they had been
accepted – and in every case, GMC provided this written
notice in Ontario.
The Court additionally re-stated its earlier approach to
flexibility and commercial efficiency in addressing issues of
contested jurisdiction, confirming that a connection between the
claim and the contract made in the province where the party seeks
jurisdiction to be assumed is enough – and “a
connection” did “not necessarily require that an
alleged tortfeasor be a party to the contract.”
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.
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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).