Cases on Jurisdiction and Forum Selection Clauses - Stewart McKelvey

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CASES ON JURISDICTION AND FORUM SELECTION CLAUSES – JAN. 2012CONTRACTUAL CLAUSE JURISDICTIONS SUMMARY OF DECISIONBC Rail Partnership v. Standard Car Truck Co., 2003 CarswellBC 2743 (C.A.)“Section 19(g) This Agreement shall be governedin all respects, whether as to validity, construction,capacity, performance or otherwise, by and underthe laws of Nova Scotia, Canada (without givingeffect to principles of conflicts of laws). Lesseeirrevocably and unconditionally submits to thejurisdiction of and venue in, federal and provincialcourts located in Nova Scotia, Canada for anyproceeding arising under this Agreement, and TOTHE EXTENT PERMITTED BY APPLICABLELAW, LESSOR AND LESSEE EACH WAIVESALL RIGHTS TO TRIAL BY JURY IN ANYLITIGATION ARISING HEREFROM OR INRELATION HERETO.” (at para. 5)Plaintiff – British ColumbiaDefendant – Nova ScotiaCheck Group Canada Inc. v. Icer Canada Corp., 2010 NSSC 463“This agreement shall be governed by andconstrued in accordance with the laws prevailingin the Province of Québec.” (at para. 8)Plaintiff – Nova ScotiaDefendants – QuébecHeld: Forum selection clause upheld.It was decided on objective interpretation that thiswas an exclusive jurisdiction clause and not just anattornment clause. The phrase “any proceeding” inthe forum clause should be interpreted asproceedings that are commenced by any party.Looking at the lease as a whole, the Court decided itwas unlikely that parties intended to limit thejurisdiction clause only to proceedings commencedby the Defendant. Once it was determined that theclause was indeed a forum selection clause, the“strong cause” test was applied and could not bemet. There was no reason not to give effect to theclause.Held: Choice of law clause rejected.Court recognized Pompey as standing for theproposition that if there is a forum selection clause inthe agreement then the regular forum nonconveniens analysis will not apply. Instead, theburden falls to the Plaintiff to prove that it need notbe held to the contract (thus, the strong cause testshould be used). Before that can happen, there hasto be a “validly-concluded binding contract betweenthe parties, which includes a choice of jurisdictionclause.” (at para. 39) The Court found that therewas no binding choice of jurisdiction clause and nobinding contract in this case.2426503.v2Page 1
CASES ON JURISDICTION AND FORUM SELECTION CLAUSES – JAN. 2012CONTRACTUAL CLAUSE JURISDICTIONS SUMMARY OF DECISIONCKF Inc. v. Huhtamaki Americas et al, 2009 NSSC 21“This agreement shall be construed in accordancewith the laws of the State of Maine, U.S.A., andeach of the parties hereby submits itself to thejurisdiction of the Courts of Maine for theadjudication of all matters arising herefrom.”(at para. 11)Plaintiff – Nova ScotiaDefendants – Ontario andMaineHeld: Forum selection clause rejected.The factual matrix of the case involved trade-markand technology issues. Plaintiff started a proceedingin Nova Scotia regarding all disputed issues.Defendants started proceedings in Ontario (for trademarkissues) and in Maine (for technology issues).The contractual clause was not shown to beexclusive and also did not apply to all matters indispute.Curves International Inc. v. Archibald, 2011 NSSC 217“M. Governing Law and Jurisdiction.Franchisee agrees that the relationship, rights andobligations of the parties of this FranchiseAgreement shall be governed by the internal lawsof the state of Texas, except to the extentgoverned by the United States Trademark Act of1946 (Lanham Act, 15 U.S.C. Section 1051 etseq.) and The Canadian Trade-Marks Act, (R.S.C.Plaintiff – TexasDefendant – Nova ScotiaUnder section 12(2) of the Court Jurisdiction andProceedings Transfer Act, Nova Scotia was the moreappropriate forum and more convenient than Ontarioor Maine. The greatest chance of avoiding amultiplicity of proceedings was for the Nova ScotiaCourt to exercise jurisdiction over all issues betweenall parties. Nova Scotia was the forum with theclosest and most natural connection to all disputedmatters.Held: Forum selection clause rejected.Plaintiff could show “strong cause” to prevent thegranting of a stay of proceedings.Curves had the burden of showing why it should notbe bound by the forum selection clause. It wasdetermined that the Court had territorial competencebecause the Defendants lived in or were2426503.v2Page 2
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Cases on Jurisdiction and Forum Selection Clauses - Stewart McKelvey

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