Litigation and Truth
In war, truth is the first casualty.
For those who need to drive home, to their new hires, that litigation is usually not about truth but victory. When and if you read this case, ask yourself why the defence wanted the ruling that Ontario courts did not have jurisdiction. The motion judge accepted the argument. The ONCA reversed.
Dundee Precious Metals Inc. v. Marsland, 2011 ONCA 594 is a conflicts case in which the motion judge’s underlying no jurisdiction conclusion caused the panel to write, laconically,
[11] The motion judge’s assessment and application of real and substantial connection test in this case would lead to the surprising proposition that a Canadian corporation headquartered in Ontario cannot use Ontario courts to enforce legal obligations owed to it under Ontario law by current and former senior officers who routinely traveled to Ontario on company business and who were in daily contact with the company in Ontario.
Every jurisdictional challenge is an attempt by the defendant to oust the plaintiff’s choice of forum. That said, the motion judge’s reasons expose the implicitly discretionary nature of the reformulated “real and substantial” connection test in Van Breda. The weighing of factors is not supposed to be a mechanical exercise in counting connections, yet characterization itself is a subjective judicial analysis.
The Court of Appeal’s remark about the “surprising proposition” is itself surprising. Parties routinely make a choice to have their disputes adjudicated outside of the jurisdiction in which they are headquartered. The only difference in this case was that there was no forum selection or exclusive jurisdiction clause, so the court could not rely on the “strong cause” test and had to essentially ignore the contractual nexus of the subject-matter of the litigation.
Of course “every jurisdictional challenge is an attempt by the defendant to oust the plaintiff’s choice of forum” but that’s not the point. Every valid move in litigation should have some tactical purpose: to increase the likelihood of the result the party wants. So, from that perspective, given that the defendant was Australian, but moved to live in Bulgaria only to manage the plaintiff’s mining project, why would he possibly want the case tried in Serbia or Bulgaria?
Or putting it another way, what advantage did he think he’d have there and what disadvantage did he think he’d face here?
The employment contract was the contractual nexus. In addition, the mere fact the stolen corporate opportunity related to a mine outside of Ontario doesn’t support your suggestion that the CA ignored anything. The allegation is breach of fiduciary duty through theft of a corporate opportunity. Given that, the location of the mine seems beside the point.
Well, for starters: perhaps the defendant preferred a jurisdiction like Serbia or Bulgaria where he has some presence and which may not recognize common law claims of breach of confidence, breach of fiduciary duty etc. as a cause of action? or how about a jurisdiction which may be less incorruptible than Ontario?
I don’t recall stating that the location of the mine was relevant. Then again, the Mocambique Rule has lost its luster given the Court of Appeal’s reinforcement of the in personam exceptions.
The mere fact that there were potentially four jurisdictions that may have a “real and substantial connection” to the mix, suggests that the forum non conveniens analysis required some more nuanced analysis.