Forum Non Conveniens Online

Like it or hate it, virtual hearings are with us in some part indefinitely. With virtual witnesses, and all of the parties attending remotely, there’s certainly some savings in travel expenses.

But what about complex trials, and where trial fairness may be significantly impaired through an online format alone? Can a forum non conveniens argument be raised in this context?

A party who is outside of Ontario can move under R 17.02 Rules of Civil Procedure staying the proceeding, including if the court concludes Ontario is not a convenient forum. This is different from the real and substantial connection test, where a court asserts jurisdiction simpliciter. In Morguard Investments Ltd. v. De Savoye, the Supreme Court of Canada stated,

Jurisdiction being territorial, it follows that a state’s law has no binding effect outside its jurisdiction…

Modern states, however, cannot live in splendid isolation and do give effect to judgments given in other countries in certain circumstances. …Thus, we saw, our courts will enforce an action for breach of contract given by the courts of another country if the defendant was present there at the time of the action or has agreed to the foreign court’s exercise of jurisdiction. This, it was thought, was in conformity with the requirements of comity, the informing principle of private international law, which has been stated to be the deference and respect due by other states to the actions of a state legitimately taken within its territory. Since the state where the judgment was given had power over the litigants, the judgments of its courts should be respected.

For many years, the leading case in Ontario for extra jurisdictional claims was Muscutt v. Courcelles. In this decision, the Ontario Court of Appeal explained the distinction between some of these concepts,

[The real and substantial connection] test has the effect of preventing a court from unduly entering into matters in which the jurisdiction in which it is located has little interest. In addition, through the doctrine of forum non conveniens a court may refuse to exercise jurisdiction where, under the rule elaborated in Amchem . . . there is a more convenient or appropriate forum elsewhere.

The court in Muscutt laid out eight factors for a real and substantial connection as follows:

1. the connection between the forum and the plaintiff’s claim, because a forum has an interest in protecting the legal rights of its residents;
2. a connection between the forum and the defendant, which may occur where it was reasonably foreseeable that the defendant’s conduct would result in harm within the jurisdiction or where the defendant has done something within the jurisdiction that bears upon the plaintiff’s claim;
3. unfairness to the defendant in assuming jurisdiction;
4. unfairness to the plaintiff in not assuming jurisdiction;
5. the involvement of other parties to the suit, which factor included concerns about avoiding a multiplicity of proceedings and the risk of inconsistent results;
6. the court’s willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis;
7. whether the case is interprovincial or international in nature, because the assumption of jurisdiction is more easily justified in interprovincial cases; and
8. comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere.

Once a court in Ontario assumed jurisdiction simpliciter on this basis, they would continue to determine whether discretion to assume jurisdiction should be declined on the basis of forum non conveniens. The factors used for this determination included:

— the location of the majority of the parties

— the location of key witnesses and evidence

— contractual provisions that specify applicable law or accord jurisdiction

— the avoidance of a multiplicity of proceedings [page35]

— the applicable law and its weight in comparison to the factual questions to be decided

— geographical factors suggesting the natural forum

— whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court

The Supreme Court of Canada reformulated this approach in 2012, in Club Resorts Ltd. v. Van Breda, providing primary emphasis to the parties connection to the jurisdiction for a real and substantial connection,

(a) the defendant is domiciled or resident in the province;
(b) the defendant carries on business in the province;
(c) the tort was committed in the province; and
(d) a contract connected with the dispute was made in the province.

Presumptive jurisdiction could also be established through any of the following:

(a) Similarity of the connecting factor with the recognized presumptive connecting factors;
(b) Treatment of the connecting factor in the case law;
(c) Treatment of the connecting factor in statute law; and
(d) Treatment of the connecting factor in the private international law of other legal systems with a shared commitment to order, fairness and comity.

All of these factors can be rebutted by the other party, but if they are unsuccessful in doing so, the court must still consider a forum non conveniens argument.

In its companion decision of Breeden v. Black, the Court also stated,

[23] Under the forum non conveniens analysis, the burden is on the party raising the issue to demonstrate that the court of the alternative jurisdiction is a clearly more appropriate forum (Club Resorts, at para. 103). The factors to be considered by a court in determining whether an alternative forum is clearly more appropriate are numerous and variable…

Also helpful to this analysis is the Uniform Court Jurisdiction and Proceedings Transfer Act (CJPTA), proposed by the Uniform Law Conference of Canada to codify the forum non conveniens test, and has been adopted by some jurisdictions in Canada and applied by the courts in numerous decisions, including Teck Cominco Metals Ltd. v. Lloyd’s Underwriters.

The CJPTA states the following regarding forum non conveniens,

 11(1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.

(2) A court, in deciding the question of whether it or a court outside [enacting province or territory] is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including:

(a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum;
(b) the law to be applied to issues in the proceeding;
(c) the desirability of avoiding multiplicity of legal proceedings;
(d) the desirability of avoiding conflicting decisions in different courts;
(e) the enforcement of an eventual judgment; and
(f) the fair and efficient working of the Canadian legal system as a whole.
[Text in brackets in original.]

It is very likely that the comparative convenience and expense of a virtual hearing would weigh heavily to favour a jurisdiction that offers this option, especially if it was done in a fair and efficient manner. Canadian courts may very well then have parties scrutinizing and comparing the different virtual options between hearings, including their effective track record in conducting these types of proceedings.

Canadian courts may have seen its first pandemic forum non conveniens decision reported recently, in Kore Meals LLC v. Freshii Development LLC, where Justice Morgan begins by stating,

[1] In the age of Zoom, is any forum more non conveniens than another? Has a venerable doctrine now gone the way of the VCR player or the action in assumpsit?

The Defendants in the action successfully moved for a stay of proceedings on the basis of an arbitration clause that was valid and enforceable. However, this analysis also raised a forum non conveniens argument, as this factor can also be used in making this determination,

[25] In TELUS Communications Inc. v. Wellman, 2019 SCC 19 (CanLII), [2019] 2 SCR 144, at para 65, the Supreme Court of Canada confirmed that the factors to be considered in granting or refusing a stay of arbitral proceedings include the forum non conveniens-type analysis of whether the forum/venue identified in the arbitral agreement is unfair or impractical for one or another of the parties. Traditionally, the circumstances to be considered “include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction”: Amchem Products Incorporated v. British Columbia (Workers’ Compensation Board), 1993 CanLII 124 (SCC), [1993] 1 SCR 897, quoting Spiliada Maritime Corp. v. Cansulex Ltd., [1987] AC 460, 478 (HL). As the Supreme Court has put it elsewhere, everything from “the domicile of the parties, the locations of witnesses and of pieces of evidence, parallel proceedings, juridical advantage, the interests of both parties and the interests of justice” can be taken into account: Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (CanLII), [2012] 1 SCR 572, at para 107.

The arbitral system the parties had agreed upon prior to the dispute was through the American Arbitration Association (“AAA”), where submissions are made online, and the hearing would also presumably be made online, leading Justice Morgins to conclude,

[29] All of which undermines the majority of forum non conveniens factors. If hearings are held by videoconference, documents filed in digital form, and witnesses examined from remote locations, what is left of any challenge based on the unfairness or impracticality of any given forum? To ask the question is to answer it…

[31] It is by now an obvious point, but it bears repeating that a digital-based adjudicative system with a videoconference hearing is as distant and as nearby as the World Wide Web. With this in mind, the considerable legal learning that has gone into contests of competing forums over the years is now all but obsolete. Judges cannot say forum non conveniens we hardly knew you, but they can now say farewell to what was until recently a familiar doctrinal presence in the courthouse.
[emphasis added]

Justice Morgan noted that no one virtual venue is more or less unfair or impractical online than another, and that this would not create any significant barrier or obstacle to access to justice.

Unlike in Uber Technologies Inc. v. Heller, where the Court found inherent unconscionability with the arbitration clause, specifically because it required a party to travel to Amsterdam at his own expense, the same conclusion may not have been made if this arbitration was conducted online. Justice Brown’s dissent in that decision focused more on access to justice and undermining the rule of law rather than unconscionability, and Justice Côté’s dissent would have allowed the stay of proceedings if the employer advanced the funds for the arbitration.

Whether online dispute resolution holds up as a comparable venue to in-person hearings is still yet to be determined. What is clear is that the submissions parties may make in regards to convenience will likely be changed forever.