Is Ontario the "Forum Conveniens" for a Lawsuit?

Commercial Real Estate Agent with RE/MAX West Realty Inc., Brokerage (Toronto)

The latin expression “forum conveniens” simply means “convenient forum”. It is to be distinguished from the expression “forum non conveniens”, or the inconvenient forum.

The Court gets to make this decision at the outset of every case. The first question the Judge will ask is “do I have jurisdiction?” In many situations, the case is a good one, it’s just be brought in the wrong court. So, this question must be resolved first. The second question, assuming that we have a proper court, is the geographic and jurisdictional determination.

This involves both international legal issues and internal legal issues.

Let’s assume that two people got married in Australia while studying at university. The husband came from England, the wife came from France and they moved to New York City where they resided for two years. They had a child then separated. The husband now lives in Toronto and the wife moved to Miami where she resides with the child.

They get along reasonably well and wish to resolve some of their outstanding issues in terms of custody, financial support and ownership of their assets. As you can probably imagine, the issues are complex.

However, so is the issue of figuring out which court should make the decisions? Can the husband sue in Toronto? Can the wife sue in Miami? Can they both sue in Australia or New York for that matter?

The legal process commences with the issuance by one party (the plaintiff) of some kind of writ, claim or notice. That document is served upon the other party. The choice for the defendant is to attorn to (meaning accept) the jurisdiction of the court, or oppose it.

Opposition is strategic. A party might wish to agree to a location where the laws favour that person’s defence. A party may be seeking a favourable court and favourable laws. A party with a large budget for the lawsuit may seek a remote location where the witnesses may find it difficult to travel.

Courts will decline jurisdication where they see that there is a clear abuse of the legal process or where another court is truly the proper court to determine the issues. Where was the contract? Where are the majority of witnesses? What is the connection to this particular court?

On a much more local basis, the matter of the “forum conveniens” still arises. Let’s take a case in small claims court. The plantiff lives in Oakville and works in Mississauga. He wants to sue about warranty work on his car. He bought it in Brampton, but had it serviced regularly in Toronto when he attended business meetings.

The plaintiff is obligated to “go to” the defendant. The defendant must live or reside in the particular area, or the contract must have taken place in that area. So, if he’s suing the service dealership, and the sales dealership, he can choose either Toronto or Brampton. The Courts will ask where did the contract take place? That would be Brampton, but in large measure the faulty work took place in Toronto. If he doesn’t sue the sales dealership, he must sue in Toronto.

Although the plaintiff has a connection to Oakville and Mississauga, neither have jurisdiction. The issue is where did the lawsuit arise or where does the defendant live. If the matter were to be tried, the most convenient location would be a trial in Toronto. That’s where the alleged faulty work took place, that’s where the service dealership has its office, that’s where the mechanics who worked on the car are situate during business hours.

All in all, the matter of the “forum conveniens” may very well be the most important and crucial issue in the lawsuit.


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Brian Madigan

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