In Central Sun Mining Inc. v. Vector Engineering Inc., 2014 ONSC 1849, the Ontario Superior Court of Justice addressed the moving defendants’ motion to dismiss or stay the action on the basis that Ontario was not the convenient forum to hear this action for damages arising from a landslide in Costa Rica. The moving defendants argued that the claims were based on acts or omissions that occurred in Costa Rica and in the United States, most of the parties and witnesses lived outside Ontario and the evidence was located outside Ontario.
Following on the Supreme Court of Canada decision in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, the burden of proof is on the party raising the forum non conveniens issue to show that another forum is in a better position to dispose fairly and efficiently of the litigation, and that another forum is clearly more appropriate than Ontario. The following factors may be considered in the forum non conveniens analysis: the location of parties and witnesses; the cost of transferring the case to another jurisdiction or of declining the stay; the impact of a transfer on the conduct of litigation or on related parallel proceedings, the possibility of conflicting judgments; problems related to the recognition and enforcement of judgments; the relative strengths of the connections of the two parties; and whether declining jurisdiction would deprive the plaintiff of juridical advantage.
After considering the evidence, summarized in the related jurisdiction simpliciter decision, the Court found that the evidence was limited or lacking to reasonably conclude that Costa Rica or the State of Colorado was clearly in a better position to dispose fairly and efficiently of the litigation than Ontario. The motion was dismissed.
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