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REGIONAL WRAP-UP ATLANTIC FORuM ShOPPING NOT AN ISSuE IN COuGAR hELICOPTER CASE Helicopters Inc., is not "forum shop- ping," and the province is indeed the right jurisdiction to hear its claim against the Sikorsky Aircraft Corp. of Connecti- cut. In the spring of 2009, a helicopter T designed and manufactured by Sikorsky and operated by Cougar crashed into the ocean about 56 kilometres off the coast of Newfoundland, killing 17 crew and passengers. Little more than a year later, Cougar, together with Lloyds TSB General Leasing, filed a statement of claim against Sikorsky alleging negli- gence in the design and manufacture of the helicopter as well as fraud and negligent misrepresentation related to information regarding the safe opera- tion of the helicopter. Sikorsky, aware of the possible filing of a claim in Canada, began its own action in the U.S. According to the applications judge in Newfoundland, "This claim was filed, as I see it, likely due to the potential for an action by [Cougar and Lloyds] to be commenced in this province, or elsewhere in Canada, and to attempt to ensure that United States maritime law could be applied, whereby a commercial user would have no cause of action in tort as against a commercial manufacturer to recover economic loss where that is the sole basis for the claim." Ultimately the District Court of Connecticut declined to exercise juris- diction over the case, granting Cougar's application, and dismissing Sikorsky's for a declaratory order and an injunction. In the meantime, two applications were heard in the trial division in Newfoundland. One, again, hovered over the issue of jurisdic- tion and resulted in the current deci- sion, Sikorsky Aircraft Corp. v. Lloyds TSB he Supreme Court of New- foundland and Labrador Court of Appeal has ruled that Cougar General Leasing (No. 20) Ltd. Sikorsky made three arguments, among them that the Trial Division did not have territorial jurisdiction to hear the claim and that, in any event, Connecticut would be the more convenient forum. The appeal court disagreed. It found there was a real and substantial connection of Cougar's claim to Newfoundland and that it is a convenient forum. It also dismissed any suggestion of forum shopping. "In the case before this court, the applications judge proceeded on the basis of the real and substan- tial connection of the subject matter of the action to this jurisdiction. He determined that this was not a case of Cougar 'forum shopping' in order to disadvantage Sikorsky with the result that the claim would be adjudicated in a jurisdiction that would otherwise be inappropriate," Justice Gale Welsh wrote in her 19-page decision. "Further, as noted by the applications 8 SEPTEMBER 2011 www. CANADIAN Lawyermag.com judge, an allegation of forum shopping may as validly be made against Sikorsky based on the submission that Cougar's claim for pure economic loss would be precluded by the law in Connecticut," she added. "As to avoiding a multi- plicity of proceedings, the suggestion by Sikorsky that Connecticut would be the more appropriate forum is clear- ly undermined by the decision of the Connecticut court declining to exercise jurisdiction. There is no evidence that a decision from this jurisdiction could not be enforced in Connecticut." — DONALEE MOULTON donalee@quantumcommunications.ca The decision can be found at The offshore supply vessel Atlantic Osprey carries some of the wreckage of Cougar Helicopters' Sikorsky S-92 helicopter, which crashed in the North Atlantic ocean in March 2009. GREG LOCKE / REuTERS T Sik S B Gener opt nfldhelic orskal L y Air cr aft C easin g (No. 20) L t orp. v. Llo y er tin d's d. yurl.c om/