Forum non conveniens

Collingwood Ethanol LLP v. Humblet Inc., 2010 ONSC 2132, released online today, gives a useful outline of the test for forum non conveniens:

 

[16]           The applicable law is not in dispute. The existence of a more appropriate forum must be clearly established to displace the forum selected by the plaintiff.[ Unless the other forum is clearly more appropriate, a stay should not be granted.

 

[17]           Like the decision to assume jurisdiction, the court's exercise of its discretion to decline jurisdiction on the basis of forum non conveniens must also be guided by the requirements of order and fairness, not a mechanical counting of contacts or connections.

 

[18]           The following factors have traditionally been considered by the courts when determining convenient or appropriate forum:

 

(a) The location of the majority of the parties: Here the plaintiff is in Ontario, two defendants are in Quebec and have attorned to Ontario and two more are in Europe. Strictly speaking, no single jurisdiction has a majority of the parties. Practically speaking, however, three of the parties are in or very near Ontario and two are in Europe. Advantage: neutral or perhaps Ontario.

 

(b) The location of key witnesses and evidence: CE has seven key witnesses who either live in Ontario or can easily fly to Ontario (from Ohio or Florida) to give evidence. Humblet will likely call at least two witnesses from Quebec. SG and SS have three witnesses who will have to fly from Germany and Switzerland. The plaintiff's records and evidence on issues of liability and damage are in Ontario. Advantage: Ontario.

 

(c) The applicable law and its weight in comparison to the factual questions to be decided: The applicable law is not Swiss law as set out in the agreement between Humblet and SG. The plaintiff is not privy to this agreement. The plaintiff's primary claim, or at least the one that clearly provides for Ontario jurisdiction, is in tort. The applicable law is therefore the lex loci delicti (the law of the place of the wrong.) As already noted, the alleged tort was committed in Ontario. The law that applies is therefore Ontario law. Advantage: Ontario.

 

(d) The avoidance of a multiplicity of proceedings: I agree with CE's submission that a multiplicity of proceedings would only result if the Sulzer defendants were successful on this motion. There are no presently no other proceedings pending between the parties. The best way to avoid having one action in Ontario against the Humblet defendants and then another in Switzerland and perhaps a third in Germany to deal with CE's claim and Humblet's cross-claim against SG and the latter's possible cross-claim back against Humblet, is to conclude on the basis of overall order and fairness that all of these matters should be resolved at one time and in one place. Advantage: Ontario. 

 

(e) Geographical factors suggesting the natural forum: Both sides agree that the natural forum is Ontario. Advantage: Ontario.

 

(f) Whether declining jurisdiction would deprive the plaintiff of a legitimate juridical   advantage available in the domestic court: There is no evidence that the plaintiff would be deprived of a juridical advantage if it had to proceed in Switzerland against SS. However, according to one of the foreign experts, CE could not sue SG in Switzerland. And, if the plaintiff was forced to sue in Germany – again according to one of the foreign legal experts – the recovery of damages under German law would be quite limited. Advantage: Ontario.

 

[19]           As I have already noted, the forum non conveniens analysis does not depend on a mechanical counting of the factors for and against. The overarching concern is overall order and fairness. Nonetheless, the six factors discussed above provide some guidance about which forum on balance is more appropriate. Ontario is favoured in almost all of the categories. Switzerland in none.