Court Considers Jurisdiction in Context of Online Sales

Andrew Ottaway, B.A. (Hons.), LL.B.Business Litigation, Civil Litigation, Cross-Border Litigation, Enforcement of Foreign Judgments, Information Technology, Injunction & Specific Performance, Intellectual Property, Internet | Technology, Jurisdictional Challenges, Of Interest to US Counsel, Summary Judgment0 Comments

In Dish v. Shava, 2018 ONSC 2867 (CanLII), plaintiffs obtained judgment in Virginia, including an injunction, against the defendants, who were located in Ontario.  The plaintiffs then brought an action in Ontario seeking recognition and enforcement of the Virginia judgment and injunction in Ontario.

On the motion for summary judgment, the Ontario Court considered whether the Virginia Court had exercised jurisdiction based on the Ontario test for jurisdiction: i.e. whether the defendants had a real and substantial connection with Virginia.

The defendants owned and operated an interactive, commercial website through which users purchased TV set-top boxes.  The Ontario Court found that the defendants had a real substantial connection to Virginia based on the nature of the business they were operating, specifically:

  1. users in Virginia purchased the TV set-top boxes from the defendants’ website.  At least 193 customers with a Virginia shipping address purchased Shava TV product from the Defendants’ distributor in the United States. The majority of these transactions appeared to have been completed through the Defendants’ website,
  2. the defendants appointed a family member and business partner, a Virginia resident, as their exclusive distributor of the TV set-top boxes in the United States, which enabled fulfilling of orders for set-top boxes purchased through the defendants’ website and working with sub-distributors in the United States;
  3. the defendants listed 11 sub-distributors in Virginia for the TV set-top boxes and services in Virginia;
  4. the defendants leased servers in Virginia to retransmit the plaintiffs’ channels which was the infringing content that was the subject of the Virginia judgment;
  5. the individual defendants both sold products to customers in Virginia and received payments for the products through their personal PayPal accounts.

The Court found that the Virginia Court properly exercised jurisdiction over the defendants.  The Court granted summary judgment recognizing and enforcing the Virginia judgment, including the injunction, in Ontario.

The lawyers at Gilbertson Davis LLP have experience in enforcing and defending against foreign judgments, including US judgments, as well as in obtaining injunctions and enforcing foreign injunctions, including US injunctions.  Please contact us for an initial consultation.

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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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