Conflict of Laws header image

Forum Non Conveniens and Jurisdiction Clauses in Ontario

image_pdfimage_print

The Court of Appeal for Ontario has released Red Seal Tours Inc. v. Occidental Hotels Management B.V. (available here).  The decision is of note for three reasons.

  • The court reverses the motions judge’s decision not to grant a stay of proceedings.  When these sort of conflicting decisions happen on the same facts, it can raise concerns about the way these motions prolong preliminary disputes in litigation.
  • The court treats a contract that did not contain a jurisdiction clause as “part and parcel” of a series of related contracts that did contain such a clause (in favour of Aruba).  The motions judge gave no effect to the clause, but the appeal court gives it central and crucial weight.
  • The court’s order is to “permanently stay” the proceedings.  For more on this language see C. Dusten and S.G.A. Pitel, “The Right Answer to Ontario’s Jurisdictional Questions: Dismiss, Stay or Set Service Aside” (2005) 30 Advocates’ Quarterly 297 at 308.  I have troubles with the concept of a permanent stay, since by its nature a stay has a temporary quality (unlike a dismissal).  I wonder if a “permanent stay” here could be seen to signal a move towards the notion of dismissing cases on the basis of forum non conveniens recently seen in the United States Supreme Court in Sinochem.

Comments on this entry are closed.

  • RaynTan April 30, 2009, 11:10 pm

    Hello I’m ryan i’m new here. I just wanted to drop a note to say hello and i’m pleased to be here.