Legal news and trends for Canadian in-house counsel and c-suite executives
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By Frank E. Walwyn & Gareth Price, of WeirFoulds LLP International Transport An ever smaller world means more multi-jurisdictional litigation, with interprovincial, cross-border, and international business and transport raising many jurisdictional issues. WeirFoulds LLP partner Frank E. Walwyn, whose practice includes private international law as it applies to complex business litigation, tests your knowledge with the help of Gareth Price, visiting Fox Scholar. The Pride of Markakisos, a Greek-owned and managed ship, is chartered by an Ontario company to deliver cargo from Nova Scotia to London, U.K. Through apparent negligent seamanship, the Pride of Markakisos and its cargo sinks. The Ontario company brings an action in tort in Ontario, claiming its damages have been sustained in Ontario. The Greek owners challenge the juris- diction of the Ontario court, seek a stay of proceedings, and assert that, pursuant to the contract, English law governs and, as such, is the more appropriate forum. Which of the following is correct? Following 2003's Beals v. Saldanha (and Muscutt v. Courcelles) and this year's Van Breda v. Village Resorts Ltd., comity now mandates that an Ontario court's assumption of jurisdiction over international cases is as easily justified as in interprovincial cases, and the factors comprising the real and substantial connection test should apply equally to both interprovincial disputes and international disputes. The Supreme Court of Canada's 1993 Hunt v. T&N plc stated that the assumption of jurisdiction "must ultimately be guided by the requirements of order and fairness, not a mechanical counting of contacts or connec- tions." The Ontario Court of Appeal has stated this means that Whether or not a defendant is insured against a certain claim will bear upon the court's assessment of fairness in assuming jurisdiction. INHOUSE JUNE 2010 • 13 1 2 3 c) or b) rue False a) T 4 b) or connection. butder ultimately should and the and a) or der between der fair and cannot part separates is ness jurisdiction. a ness is the found the of f ' eal b) rue False a) T company c) The and company and opriate pr thatden . Ontario den bur . b) Thee mor the bur appr a) The to bur Ontario pr of den London of that pr is of oving not a London e to ther oving theeal mor r e company r a forum oving is is and appr the no e falls the the and eal and bur substantial opriate opriate moreal eek pr of r Gr appr assume forum, fair fair forum ness is ultimately plaintif and connection falls to substantial den substantial forum with the an "r stage assumption and of decisive claim, company that oving . falls to connection Ontario of and substantial jurisdiction inquiry when the as connection Ontario London with is the with Gr eek Ontario the falls connection" without assessing defendant. whether to the the such test a connection court