Court Considers Effect of Non-Exclusive Jurisdiction Clause

Andrew Ottaway, B.A. (Hons.), LL.B.Civil Litigation, Contract Disputes, Cross-Border Litigation0 Comments

In Silveira v. FY International Auditing & Consulting Corp., the Plaintiff commenced an action in Ontario alleging breach of an agreement and misrepresentation.  Less than a month later, one of the Defendants commenced an action in British Columbia against the Plaintiff based on the same agreement.   The Defendants acknowledged that the Ontario had jurisdiction simpliciter, but brought a motion to stay the Plaintiff’s action on the grounds that Ontario was forum non conveniens and that the action should proceed in British Columbia.

The Court found that there were not sufficient evidence to conclude, as the Plaintiff argued, that B.C. action was “tactical”.  Further, the Court stated that the fact that the Plaintiff started her action in Ontario first was not a basis to determine which forum was more appropriate for litigation of the dispute.

The Court found that both the Plaintiff and the Defendants, and their evidence, had equally strong connections to Ontario and B.C., respectively.  In the circumstances, the Court stated that the Ontario and B.C. actions had to proceed together as one action because both actions would require the same documentary evidence and witnesses and identical findings of fact.

The Court found that the parties had consented to the non-exclusive jurisdiction of British Columbia’s courts – i.e. it was unlikely that the Plaintiff could challenge B.C. Court’s jurisdiction over the Defendant’s B.C. action.  Considering the forum selection clause, the Court held that the most efficient use of judicial resources dictated that all of the issues be litigated together in the B.C. Court.  The Court noted that it could not order the action transferred to B.C., but could only make a finding that B.C. would be a more appropriate forum for the action than Ontario.  As a result, the Court ordered that the Ontario action be stayed.

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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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