Court of Appeal Provides Guidance on “Forum of Necessity” Doctrine

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Appellate Advocacy, Civil Litigation, Contract Disputes, Contract Termination, Cross-Border Litigation, Jurisdictional Challenges, Of Interest to US Counsel0 Comments

In Arsenault v. Nunavut, 2016 ONCA 207, the Plaintiff commenced a lawsuit in Ontario regarding an employment dispute with the defendant, the government of the Canadian territory of Nunavut.  The motion judge concluded that Ontario did not have jurisdiction over the dispute because the dispute did not have a “real and substantial connection” with the province of Ontario, and that Nunavut was clearly the more appropriate forum to hear the dispute.  The Plaintiff appealed, arguing that the motion judge had not properly considered whether Ontario was the “forum of necessity” – i.e. the doctrine allowing the Court to assume jurisdiction over a dispute, even though there is no “real and substantial connection” with Ontario, because there is no other forum in which the plaintiff can reasonably seek relief (see our previous posts regarding the doctrine of “forum of necessity” here and here).

The Court of Appeal dismissed the Appeal.  The Court of Appeal noted that the evidence did not state that the Plaintiff could not return to Nunavut.  Rather, the Plaintiff’s evidence (from a psychological associate) was that it was “not advisable” and would be “especially challenging” for the Plaintiff.  The Court also noted that the defendant had agreed to the examination for discovery (deposition) of the Plaintiff by telephone, and that the Plaintiff could seek leave of the Nunavut Court to testify at trial from a remote location.

Please contact us if you require advice on conflict of laws issues, forum challenges or jurisdiction challenges.

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About the Author
Andrew Ottaway, B.A. (Hons.), LL.B.

Andrew Ottaway, B.A. (Hons.), LL.B.

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