2288450 Ontario Ltd. v. 2106701 Ontario Inc.,

2288450 Ont. v. 2106701 Ont. (2016), 373 N.S.R.(2d) 79 (SC);

    1175 A.P.R. 79

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. AP.039

2288450 Ontario Limited (plaintiff/respondent in Motion) v. 2106701 Ontario Inc. o/a Novajet (defendant/applicant in Motion)

(Hfx No. 444032; 2016 NSSC 77)

Indexed As: 2288450 Ontario Ltd. v. 2106701 Ontario Inc.

Nova Scotia Supreme Court

McDougall, J.

March 22, 2016.

Summary:

"Ontario Ltd." filed an action against "Novajet" for breach of contract and negligence in Nova Scotia, pursuant to the forum selection clause (clause 16(iii)) making Nova Scotia the preferred jurisdiction. The next day, Novajet issued an action against Ontario Ltd. in Ontario. The parties were incorporated under the law of Ontario. Neither party was registered to carry on business in Nova Scotia. Novajet moved to stay Ontario Ltd.'s action on the basis that the forum selection clause was a nullity because it referred to Nova Scotia by mistake, or, in the alternative, that the Court ought to decline jurisdiction on the ground that Ontario was the more appropriate forum.

The Nova Scotia Supreme Court granted the motion and stayed the Nova Scotia action. "[T]he Court is not bound to exercise jurisdiction when faced with a forum selection clause. The Court may consider whether it is the appropriate forum under [the Court Jurisdiction and Proceedings Transfer Act] section 12. In this case, the weight of the evidence favors declining jurisdiction, and allowing Ontario to assume jurisdiction. The action has absolutely no connection with Nova Scotia, and a very strong connection with Ontario and no other jurisdiction. Even if Clause 16(iii) is found to be valid, I find that Ontario is still the proper jurisdiction for resolving the legal dispute."

Conflict of Laws - Topic 606

Jurisdiction - General principles - Objection to jurisdiction of the court - [See Conflict of Laws - Topic 9284 ].

Conflict of Laws - Topic 3665

Corporations - Contracts - Choice of law - Contracts by extra-provincial corporation - [See Conflict of Laws - Topic 9284 ].

Conflict of Laws - Topic 7286

Contracts - Jurisdiction - Choice of forum by parties - [See Conflict of Laws - Topic 9284 ].

Conflict of Laws - Topic 9284

Practice - Stay of proceedings - Where court lacks or declines jurisdiction - "Ontario Ltd." filed an action against "Novajet" for breach of contract and negligence in Nova Scotia, pursuant to the forum selection clause making Nova Scotia the preferred jurisdiction - The next day, Novajet issued an action against Ontario Ltd. in Ontario - The parties were incorporated under the law of Ontario - Neither party was registered to carry on business in Nova Scotia - There was no connection between Nova Scotia and the parties or the contract - Novajet moved to stay Ontario Ltd.'s action on the basis that the forum selection clause was a nullity because it referred to Nova Scotia by mistake, or, in the alternative, that the Court ought to decline jurisdiction on the ground that Ontario was the more appropriate forum - The Nova Scotia Supreme Court granted the motion - The Court was not bound to exercise jurisdiction when faced with a forum selection clause - On the evidence proferred, the reference to Nova Scotia in the jurisdiction clause was by mutual mistake (mere inadvertence) - Rectification was the appropriate remedy - Had the jurisdiction clause properly referred to the laws of Ontario, there was no basis under which the Nova Scotia Court ought to take jurisdiction over the matter, which could be more appropriately resolved in the Ontario courts - Even without rectification, the Nova Scotia Court had discretion as to whether it was the appropriate forum (Court Jurisdiction and Proceedings Transfer Act, s. 12) - Novajet had satisfied the "strong cause" test for declining jurisdiction in Nova Scotia - See paragraphs 25 to 51.

Contracts - Topic 1599

Formation of contract - Mistake, misunderstanding or misrepresentation - Mutual mistake - [See Conflict of Laws - Topic 9284 ].

Courts - Topic 2221

Jurisdiction - Consent - General - [See Conflict of Laws - Topic 9284 ].

Courts - Topic 6025

Provincial courts - Nova Scotia - Supreme Court - Jurisdiction - Limits on - [See Conflict of Laws - Topic 9284 ].

Mistake - Topic 4005

Relief - General - Circumstances when granted - [See Conflict of Laws - Topic 9284 ].

Counsel:

Cheryl A. Canning and Robert Fenn, for the defendant/moving party;

Clarke Tedesco, for the plaintiff/respondent.

This motion was heard on February 8, 2016, at Halifax, Nova Scotia, before McDougall, J., of the Nova Scotia Supreme Court, who delivered the following decision, dated March 22, 2016.