i. Jurisdiction in personam

The respondents, the Sinclair family, travelled to Italy using concierge and travel-agent services provided through a premium American Express credit card. While abroad, they contacted the Amex concierge to arrange transportation from the Venice airport to their hotel, including a water taxi reservation booked through a third-party travel service provider. During the water taxi ride, there was a crash, resulting in injuries. The respondents commenced an action in Ontario seeking damages against multiple defendants, including three Italian companies involved in the water taxi operation (referred to as the Italian defendants), Amex Canada, the third-party booking agent, and the water taxi driver.

The Italian defendants brought a motion challenging the jurisdiction of the Ontario court, and, while their motion was initially dismissed, it was successful on appeal. Relying on the fourth presumptive connecting factor of a contract connected with the dispute from Club Resorts Ltd v Van Breda,Footnote ² the motion judge held that the cardmember agreement between the respondents and Amex Canada, along with Amex Canada’s contractual relationship with the Italian defendants, established a sufficient connection to Ontario.Footnote ³ The Ontario Court of Appeal held, however, that the motion judge misapplied Van Breda, emphasizing that presumptive connecting factors must be assessed from the perspective of each defendant disputing jurisdiction. A connecting factor attaching to one defendant did not automatically extend jurisdiction to all defendants. In addition, any presumptive connecting factors had been rebutted as the connection between Ontario and the claims against the Italian defendants was too remote.

Justice Suzanne Côté, writing for the majority of the Supreme Court of Canada (SCC), agreed with the Court of Appeal that the cardmember agreement between the respondents and Amex Canada was an Ontario contract, as acceptance occurred in Ontario.Footnote ⁴ There was, however, no separate contract between the respondents or Amex Canada for the booking of the water taxi as Amex Canada was merely performing its obligations under the cardmember agreement. In addition, no contract was formed between the respondents or Amex Canada and the Italian defendants. The cardmember agreement did not establish a real and substantial connection between Ontario and the Italian defendants by failing to make out the fourth Van Breda presumptive connecting factor.

Alternatively, any presumptive connection could be successfully rebutted. According to Côté J, any connection was weaker between the contract and the Italian defendants since it could not be said that “simply by virtue of working with tourists the Italian defendants must be prepared to answer to answer legal proceedings in far-flung jurisdictions.”Footnote ⁵ Ontario lacked jurisdiction over the Italian defendants. In dissent, Justice Mahmud Jamal would have instead allowed the appeal and restored the order of the motions judge. The facts, in his view, amounted to a good arguable case that the contracts connected with the dispute were made in Ontario. This created a presumption of jurisdiction based on the fourth connecting factor in Van Breda over the claims, including those against the Italian defendants. In his view, the Italian defendants had also failed to rebut this presumption based on the facts.

The majority’s approach inevitably places more emphasis on the position of each defendant in the jurisdictional analysis, while, in this instance, the rebuttal phase addressing the strength or weakness of the potential connecting factor also proved important. Sinclair is already having an impact and being recognized as an elaboration of the application of the Van Breda presumptive connecting factors by Canadian courts as they relate to each defendant.

OpenAI Entities, as US-based defendants, challenged the jurisdiction of an Ontario court in an action involving the reproduction of data through scraping and transmission in Canada for the development and training of artificial intelligence (AI) models powering ChapGPT. Justice Jessica Kimmel concluded that, in general terms, the court had subject-matter jurisdiction over all asserted claims. She also found that the defendants had not attorned to the jurisdiction. Despite having raised claims related to subject-matter jurisdiction that should have been a distinct motion under the rules, they had made their intention to challenge jurisdiction clear from the outset.

Turning to jurisdiction simpliciter, Kimmel J examined the presumptive connecting factors for each defendant applying Van Breda and Sinclair. Footnote ⁶ She considered carrying on business in Ontario as it related to Internet-based businesses.Footnote ⁷ The three Open AI entities carried on business as a whole in Ontario, including through the collection of data, some contractual arrangements and holding of trademarks for its product in Canada. Turning to another potential presumptive connecting factor of where copyright infringement took place, the Court found that the breaches were sufficiently connected to Ontario, despite the defendants claims that only some of its servers and data storage occurred in Canada. The Open AI entities were also unjustly enriched from profits of wrongful acts committed in Ontario by direct and indirect subsidiaries.

The defendants asserted that these presumptive connecting factors should be rebutted since the connection to Ontario through remote website access or limited research on third-party clusters located in Canada did not amount to a real and substantial connection. Kimmel J disagreed finding the factors, when considered together, established an overall connection that was not weak and, therefore, could not be rebutted.Footnote ⁸ The defendants had also failed to demonstrate that the United States was clearly the more appropriate forum. The convenience to the parties and witnesses, in both Canada and the United States, was at least neutral. Ontario and Canadian law should be applied. There were currently no overlapping actions in the United States. The fact that similar claims might be pursued in two different jurisdictions according to different laws was a not a reason to block the claims in one jurisdiction from proceeding. There was no evidence that a judgment for breach of copyright, contract, or unjust enrichment would not be enforceable in the United States. The fair and efficient working of the legal system in Canada allowed claims against foreign companies for breaches of Canadian copyright and other laws. The jurisdictional motion was therefore granted for four defendants not involved in the business operations implicated by the action but, given the reasons discussed, dismissed with respect to six other defendants.

The plaintiff, OZ Optics Limited, was an Ontario-based manufacturer of fibre-optic components that commenced an action against the defendants, Tektronix Incorporated, and its affiliate, Maxtek Components Corporation (Maxtek), alleging breach of contract. Maxtek, an Oregon-based company, was unsuccessful in a motion to stay the Ontario proceeding based on forum non conveniens. The Court first considered whether Ontario had jurisdiction simpliciter by applying the presumptive connecting factors set out in Van Breda. Footnote ⁹ The defendants were not resident in Ontario and did not carry on business in the province. However, the Court found a real and substantial connection to Ontario based on the parties’ long-standing commercial relationship, the manufacture of the goods in Ottawa, the defendants’ regular visits to the plaintiff’s Ottawa facility to audit production and quality, and payments directed to Ontario.

The Court then considered whether Oregon was a clearly more appropriate forum by applying the forum non conveniens factors.Footnote ¹⁰ The defendants failed to meet their burden. There was no evidence of substantive differences between the laws of Ontario and Oregon. No parallel proceedings had been commenced in Oregon. Concerns regarding witness convenience were neutral due to the availability of virtual testimony. The Court dismissed the defendant’s motion, allowing the proceeding to continue in Ontario.

The plaintiffs, a Receiver of Bridging Finance Incorporated (Bridging) and ABR PI Investments Limited (BlackRock) commenced actions against multiple defendants, including David and Natasha Sharpe, former principals of Bridging and First Trust Management AG, in their capacity as the trustee. Bridging and BlackRock alleged that the Sharpes misappropriated funds and transferred them to a trust in Liechtenstein. The trustee (Sharpes) asserted that the Ontario court lacked jurisdiction or, alternatively, that it was forum non conveniens. Justice Peter Osborne found that two presumptive connecting factors from Van Breda applied.Footnote ¹¹ First, a contract connected the dispute to Ontario as the Trust deed and related Trust documents were signed by the Sharpes in Ontario.Footnote ¹² Second, a tort was committed in Ontario as the misappropriation of funds occurred in Ontario before being transferred to Liechtenstein.Footnote ¹³

Osborne J further concluded that these presumptive connecting factors were not sufficiently rebutted by the trustee. There was a real and strong connection between the litigation’s subject matter and Ontario, making it reasonable to expect the trustee with knowledge of the Ontario origin of the funds and the Sharpes’ Ontario residency to answer to proceedings in the province.Footnote ¹⁴ The tort was also committed when the transfer out occurred in Ontario. Osborne J also considered whether Liechtenstein was clearly a more appropriate forum.Footnote ¹⁵ The majority of forum non conveniens factors tipped the scales towards Ontario. Commencing litigation in Liechtenstein would guarantee a multiplicity of proceedings and increase the potential for conflicting decisions as the entirety of the action could not be brought and litigated in Liechtenstein based on Liechtenstein law. It was preferable and fair to both parties for the related Ontario actions to continue to be managed together, even though the trustee was not located in the jurisdiction. Ontario was considered the most appropriate and convenient jurisdiction for the actions.

The plaintiff, BN Trading, contracted Best International Cargo Incorporated (Best) to arrange for the shipment of mining equipment from a Quebec facility to the Port of Montreal, and then to Vietnam. The equipment had been purchased by BN Trading from GT Intermodal (GT) and MC Mines Incorporated (MC) was responsible for packing it. During the transport, the equipment was damaged in a motor vehicle incident. BN Trading brought a claim against Best in Ontario. Best then initiated third-party claims against MC and GT in Ontario. MC was unsuccessful in seeking a dismissal or stay of the third-party action to have it brought in Quebec.

Justice William Le May first addressed MC’s argument regarding improper service of the claim outside of Ontario without leave. While the statement of claim did not explicitly cite the specific provision of Rule 17.02, the Court found that Best’s claim relied on contractual provisions and the possibility of MC carrying on business in Ontario.Footnote ¹⁶ The Court determined that any failure to formally mention the specific rule was a curable irregularity and not a basis for dismissing the motion, preferring to resolve the jurisdictional dispute under Rule 21.01(3)(a) given the complete record.Footnote ¹⁷

Le May J applied Van Breda’s four presumptive connecting factors.Footnote ¹⁸ The Court found that MC was not domiciled or resident in Ontario, the motor vehicle incident was not committed in Ontario, and MC was not carrying on business in Ontario since all work was performed by MC in Quebec. Nevertheless, the fourth factor applied relating to a contract connected with the dispute entered into in the province. As the main contract between BN Trading and Best was formed in Ontario between two Ontario based companies, the Court noted that a connection does not necessarily require MC to be a party to the contract, only that the claim flows from the relationship created by the contract, bringing the defendant within its scope.Footnote ¹⁹ BN Trading’s claim against Best included allegations of improper packing, for which MC was responsible, creating overlapping issues and bringing MC within the scope of the contractual relationship and establishing a presumption of jurisdiction in Ontario. It is worth questioning whether the Court might have taken a different approach given the reasoning regarding contracts and the requirement to look separately at each defendant in the subsequent ruling in Sinclair. Footnote ²⁰

Le May also considered the forum non conveniens factors requiring MC to demonstrate that Quebec was clearly the more appropriate forum.Footnote ²¹ Considering the location of the parties and witnesses, contractual provisions, the desirability of avoiding a multiplicity of proceedings, the applicable law, geographical factors, and the juridical advantage, the Court concluded that the factors weighed similarly in favour of Ontario and Quebec. MC failed to meet the high standard of demonstrating that Quebec was clearly more appropriate. Best had to defend a claim in Ontario and prosecuting a related claim in Quebec created significant difficulties.Footnote ²²

The plaintiff, a resident of the United States, commenced an action in Ontario seeking two million dollars in damages after tripping and falling at the Fairmont Banff Springs hotel in Banff, Alberta.Footnote ²³ The defendants, Parks Bottom, Fairmont Banff Springs, Accor Management Canada (Accor), and OMERS Realty Corporation (OMERS), moved to dismiss or stay the action on jurisdictional grounds or, alternatively, on the existence of a clearly more appropriate forum. Justice Robert Centa applied the real and substantial connection framework from Sinclair. Footnote ²⁴ The Court found that no presumptive connecting factors applied to Parks Bottom or Fairmont Banff Springs and stayed the action against those parties. With respect to Accor and OMERS, the Court accepted that their federal incorporation and extra-provincial registrations in Ontario constituted presumptive connecting factors. This analytical approach highlights the shifting emphasis on identifying connecting factors for each defendant as in Sinclair.

Centa J subsequently determined, however, that the presumptive connecting factors were successfully rebutted by OMERS and Accor.Footnote ²⁵ OMERS held only a leasehold interest in the hotel and was not involved in its day-to-day operations. Although Accor maintained an Ontario office, the evidence demonstrated that all relevant operational decisions, maintenance work, and supervision occurred in Alberta through its subsidiary. The Court concluded that there was no meaningful connection between OMERS and Accors as defendants, Ontario, and the dispute. On this basis, the action was also stayed against these two additional defendants.

In the alternative, Centa J held that Alberta was a more appropriate venue for the action than Ontario.Footnote ²⁶ Applying Tolofson v Jensen, the Court held that Alberta law would govern the tort and that it was unlikely that Ontario’s Occupiers’ Liability Act would apply as the plaintiff claimed.Footnote ²⁷ The alleged negligence occurred entirely in Alberta, the relevant witnesses were located there, and Accor’s operational connection to Alberta was significantly stronger than any connection to Ontario.

The plaintiff, AGI SureTrack LLC (AGI), commenced an action in Alberta against the defendant, OPI Systems Incorporated (OPI), alleging conspiracy, breach of confidence, and unjust enrichment. AGI claimed that several of its former employees left to join OPI and used AGI’s confidential information to develop and advance a competing grain management system. OPI contested Alberta’s jurisdiction, arguing that Alberta courts were forum non conveniens and that allowing the claim to proceed would constitute an abuse of process because similar proceedings were already commenced in Kansas and Missouri.Footnote ²⁸ Justice Darren Reed applied the Van Breda factors to determine whether Alberta had jurisdiction simpliciter. Footnote ²⁹ The Court confirmed that Alberta had jurisdiction because OPI carried on business in the province.

In the forum non conveniens analysis, the Court held that OPI failed to demonstrate Kansas was clearly a more appropriate forum.Footnote ³⁰ Although the Alberta action overlapped factually with the American proceedings, the Alberta claim was distinct because it sought recovery for Canadian losses under Canadian law, remedies that the Kansas Court had indicated might not be available in US proceedings.Footnote ³¹ However, to prevent duplicate proceedings and inconsistent findings, Reed J granted a conditional stay of the Alberta action pending a final judgment in the Kansas proceeding.Footnote ³² The Court allowed for a limited exception to the stay, permitting AGI to bring applications in Alberta for interim injunctive relief linked to its claims in the Alberta action if necessary.

The plaintiff, a resident of Newfoundland and Labrador, commenced an action for injunctive relief and damages against the defendants, Facebook Canada Limited (Facebook) and Meta Platforms Incorporated (Meta). He maintained two Facebook accounts, one for personal use and another for his advertising company. In May 2022, his personal Facebook account was hacked and suspended. The plaintiff initially claimed that his personal Facebook account was used for both personal and commercial purposes and that the loss of his account impacted his business, but he later sought to amend some of those claims. Facebook and Meta successfully challenged the jurisdiction of the Supreme Court of Newfoundland and Labrador based on its Terms of Service.Footnote ³³ According to those terms, all disputes relating to a user’s personal account could be heard in Canada, but disputes concerning business accounts had to be litigated exclusively in California. Facebook and Meta argued that the plaintiff’s personal account was used in a business manner and that Facebook Canada was not a party to the contract between Barnes and Meta.

Justice Vikas Khaladkar of the Supreme Court of Newfoundland and Labrador considered whether Barnes’s Facebook account was strictly personal or if it was used in a business capacity. Facebook submitted evidence, however, showing that Barnes’s personal account had created and administered multiple Facebook pages for business purposes. Khaladkar J found that the evidence provided by the defendants sufficiently demonstrated that Barnes had engaged in business activities through his personal account, leading to the conclusion that the commercial-use clause in the Terms of Service agreement was engaged, requiring litigation in California. There was also no evidence of a contractual relationship between Barnes and Facebook Canada, emphasizing that Facebook is a separate legal entity from Meta, despite Meta operating Facebook’s services. Finally, Khaladkar J confirmed that, since the plaintiff was a commercial user and the Court lacked jurisdiction, there was no need to consider whether Newfoundland and Labrador were forum non conveniens.

The appellants, SDMO Industries (SDMO) and Kohler Company (Kohler), sought to stay proceedings relating to the alleged failure of two emergency generators at Providence Care Hospital in Kingston, Ontario. They were, however, unsuccessful in appealing a motion judge’s decision that Ontario had jurisdiction and declining to enforce an alleged forum selection clause favouring French commercial court. The Ontario Court of Appeal upheld the motion judge’s finding that Ontario had jurisdiction since the alleged torts occurred in Ontario. Applying the presumptive connecting factors from Van Breda, the motion judge correctly determined that the claims were primarily grounded in tort, not contract.Footnote ³⁴ The motion judge also concluded that the tort occurred in Ontario as the location where damage to the generators occurred.Footnote ³⁵

The appellants failed to prove that a valid, clear, and enforceable forum selection clause existed.Footnote ³⁶ The appellants improperly attempted to rely on the General Terms and Conditions that they claimed formed part of SDMO’s contract with GAL Power but did not introduce them properly into evidence. The Court agreed with the motion judge that these terms were not incorporated by reference into the pleadings or properly introduced into evidence.Footnote ³⁷ Additionally, even if the clause existed, it was ambiguous and would not have bound the respondent plaintiffs or other defendants who were not parties to the contract between SDMO and GAL Power.Footnote ³⁸ Ontario had jurisdiction over the claims, and they could not be stayed based on an alleged forum selection clause.

The third-party defendant, Soheil Mosun Limited (SML), moved to stay or dismiss a third-party claim based on an exclusive jurisdiction clause in a contract with Gamma Windows and Walls International (Gamma). The third-party claim was brought by Gamma in response to a Nova Scotia action commenced by Queen’s Marque Developments Limited, alleging defects in metal panels used in a development project in Halifax, Nova Scotia. In 2019, SML and Gamma entered into a contract under which SML would apply a finish to the metal panels that Gamma was installing on the buildings in the project. The contract contained an exclusive jurisdiction clause providing that Ontario courts would resolve all disputes arising from the agreement.

The Court reiterated its authority to stay proceedings based on forum selection clauses.Footnote ³⁹ Applying the two-step forum selection clause analysis from Douez, however, Justice Scott Charles Norton held that, although the clause was valid, Gamma had established strong cause not to enforce it.Footnote ⁴⁰ The third-party claim was closely connected with the Nova Scotia action concerning the alleged panel defects. Resolving the issues in separate jurisdictions would create inefficiency and risk inconsistent findings.Footnote ⁴¹ The Court declined to enforce the forum selection clause and allowed the third-party claim to proceed in Nova Scotia.

The claimant, Old’s Farm Limited, purchased a wheel loader from a Chinese manufacturer, which hired the defendant, Translink Shipping (Canada) Incorporated, to transport the equipment to Nova Scotia. When the loader arrived in Halifax, it was denied entry by Canadian authorities for failing to comply with emission standards. Acting on the manufacturer’s instructions, Translink returned the loader to Sweden without consulting the claimant. Unable to recover the purchase price from the manufacturer, the claimant commenced an action in the Nova Scotia Small Claims Court seeking damages for the resulting financial loss. Translink challenged the Court’s jurisdiction, arguing that the claim was governed by Canadian maritime law and therefore fell within the concurrent original jurisdiction of the Federal Court under the Federal Courts Act. Footnote ⁴² Translink further argued that there was no territorial connection to Nova Scotia as the shipping contract was between the manufacturer and Translink and the defendant carried on business in British Columbia and Ontario.

The jurisdictional challenge was dismissed. The Court held that the claim was not founded in maritime law as the alleged breach occurred after the goods arrived in Halifax and the start of the customs process. Rather, the claim concerned common law duties arising from Translink’s dealings with the claimant following delivery of the loader.Footnote ⁴³ The Court found a real and substantial connection to Nova Scotia as the loader was in the province and the claimant suffered its loss there.Footnote ⁴⁴ The Court also relied on Aguilar Capital Markets Ltd v FLATC Marine Offshore Ltd to conclude that the Small Claims Court had subject matter jurisdiction, as the claim fell within its statutory authority to hear contractual, tortious, or restitutionary claims arising in the province.Footnote ⁴⁵

ii. Family law

Mr. Dunmore, the appellant father and a Canadian citizen, sought to challenge the jurisdiction of the Ontario Superior Court to make parenting orders regarding his child as he is living, and started separate proceedings, in Oman. The motion judge and Ontario Court of Appeal dismissed the challenge, concluding that Ontario courts had jurisdiction because the child was habitually resident under Ontario’s Children’s Law Reform Act (CLRA).Footnote ⁴⁶ The Supreme Court of Canada was required to determine the interpretation of “habitual residence” under the CLRA for children removed from countries not covered by the Hague Convention on the Civil Aspects of International Child Abduction. Footnote ⁴⁷ The issue was whether determining habitual residence required a focus on the parents’ shared intention or whether a more contextual approach should apply.

The majority rejected the shared parental intention approach, emphasizing that this approach gives an undue priority to parents’ subjective views instead of objective factors related to the child’s life.Footnote ⁴⁸ The Court held that the guiding principle in determining if the child was residing in a place is whether the child is at home there and settled on a contextual approach that looks at the factual connections between the child and the relevant jurisdiction.Footnote ⁴⁹ Using this approach, the Court found no basis to interfere with the motion judge’s finding that the family was residing in Ontario when the child last lived with both parties and that the child’s real home was in Ontario. This finding was based on the child having lived with both parents until separation and that the child had significant family ties to Ontario and had spent most of his young life in Ontario. The majority dismissed the appeal, concluding that the child was habitually resident in Ontario, confirming the Court’s jurisdiction.

Applying solely the parental intention approach was previously rejected in the context of Hague Convention countries in Balev. Footnote ⁵⁰ The hybrid approach to determining habitual residence in that context did not directly apply to the section 22 definition of the CLRA. The case nonetheless clarified that the analysis under the CLRA should, however, avoid focusing solely on intention and also consider other contextual factors in the context of non-Hague Convention countries and when relying on provincial legislation, such as the CLRA. Indeed, Justice Sheila Martin suggested that Balev’s rejection of the shared parental intention approach should apply with even greater force in these circumstances since it could not be assumed that Hague Convention standards of the best interests of the child would be considered in other non-party jurisdictions.Footnote ⁵¹

In dissent, Côté J instead favoured the parental intention approach as having a central role in determining habitual residence for the purposes of section 22(2) of the CLRA. She criticized the majority acknowledgement that the hybrid test for Hague Convention countries cannot be used but still proposing an all-encompassing test that is almost identical. She contended that the statutory definition provided in the CLRA was more consistent with the parental intention approach.Footnote ⁵² Applying that approach, she would have concluded that the child’s habitual residence was in Oman, not Ontario, as Oman was the last place where there was a settled intention to reside together. The family moved often due to the appellant father’s career, and there was insufficient evidence to suggest that the family’s stay in Ontario was intended to be more than temporary.

The claimant, Ms. Lukas, commenced an application in the BC Supreme Court seeking orders relating to her child and for child and spousal support against the respondent, Mr. Lemos. The parties met in British Columbia and had a child. In November 2024, the parties moved to the Cayman Islands for Mr. Lemos’s work and then separated. Following their separation, the Cayman Court issued a final order granting shared residence of the child and permitting a thirty-day temporary visit to British Columbia, after which the parties and child would relocate to Brazil. Upon arriving in British Columbia, the claimant informed the respondent that she intended to stay in Canada and withheld the child. Mr. Lemos filed a Priority Parenting Matter application to determine interjurisdictional issues.Footnote ⁵³

Justice Alison Latimer considered whether the Court had jurisdiction under the BC Family Law Act Footnote ⁵⁴ and based on the principles now outlined in Dunmore v Mehralian, discussed above.Footnote ⁵⁵ The Court found that British Columbia lacked territorial competence because the child was not habitually resident in British Columbia when the application was filed. Under the BC Family Law Act, habitual residence is determined by where the child most recently resided with both parents, and the Court held that the return to British Columbia was designated as a temporary thirty-day visit.Footnote ⁵⁶ Further, the claimant’s unilateral intention to remain in British Columbia did not alter the child’s habitual residence.Footnote ⁵⁷

Latimer J did not find on a balance of convenience that British Columbia would be the more appropriate jurisdiction.Footnote ⁵⁸ The Court relied on the Court Jurisdiction and Proceedings Transfer Act (CJPTA),Footnote ⁵⁹ emphasizing that the parties had already litigated the same issues in the Cayman Islands and that the Canadian legal system should not permit parties to relitigate foreign orders because they are dissatisfied with the outcome.Footnote ⁶⁰ The Court also rejected the claimant’s serious harm argument, finding that it was speculative and not supported by the evidence.Footnote ⁶¹ The Court recognized the Cayman order, finding that the Cayman Court had jurisdiction and had considered the best interests of the child.Footnote ⁶² The application was stayed.

The appeal centred on the interpretation of consent and acquiescence under Article 13(a) of the Hague Convention, as implemented by Ontario’s CLRA. Footnote ⁶³ The parties were living in the United Kingdom when they travelled to Canada with their five-year-old child in 2023. Upon arrival, the respondent mother informed the appellant father that she and their child would not be returning to London. The father immediately objected, reported the matter to the British High Commission, and commenced a Convention application seeking the child’s return. The application’s judge found that the child’s habitual residence was in the United Kingdom but declined to order the child’s return, concluding that the father had consented to, or acquiesced to, the child’s retention in Canada.Footnote ⁶⁴ The judge relied on the parties prior intention to move to Canada and the steps they had taken towards obtaining permanent residence, finding that this constituted clear and unequivocal evidence that the father had given consent for the child to remain in Canada. The father appealed the decision.

The Ontario Court of Appeal applied the two-step analysis from Ludwig v Ludwig Footnote ⁶⁵ to determine whether the child should be returned to the United Kingdom.Footnote ⁶⁶ Justice Paul Rouleau held that the application judge erred by conflating consent to future relocation with consent to the wrongful retention of the child. While the father did consent to the family travelling to Canada, he did not consent to the child remaining there. Additionally, the father immediately objected and initiated legal proceedings, which is inconsistent with acquiescence. The mother failed to establish that there was clear evidence of unequivocal consent from the father as required under Article 13(a).Footnote ⁶⁷ The Court allowed the appeal and ordered the child’s return.

The petitioner, Gabriele Taddeo, applied under the Hague Convention for an order requiring the respondent, Cassandra Ouellet, to return their child to Mexico.Footnote ⁶⁸ The parties, both Canadian citizens, had relocated to Mexico where their child was born and resided until December 2024. Following a history of family violence, the respondent obtained a protection order and interim custody from a Mexican court. The order included a thirty-day temporary visit to Canada with the child. The respondent did not return to Mexico as required and remained in British Columbia, where she commenced family law proceedings. When the father commenced a convention application, she argued that Mexico was not the child’s habitual residence and, alternatively, that returning to Mexico would expose the child to a grave risk of physical or psychological harm or place him in an intolerable situation.Footnote ⁶⁹

Justice Matthew Kirchner applied the hybrid approach from Balev to determine habitual residence and concluded that the child was habitually resident in Mexico at the time of removal.Footnote ⁷⁰ The child had been born in Mexico, lived there continuously, and the parties had formed at least a temporary intention to reside there.Footnote ⁷¹ The Court therefore concluded that the child had been wrongfully retained in Canada within the meaning of the Hague Convention. Kirchner J then considered the Article 13(b) exception of the Hague Convention. While the Court accepted that the allegations of family violence were credible, it held that Mexican authorities could protect the child through the existing court orders; therefore, the threshold of grave risk of physical or psychological harm was not established.Footnote ⁷² However, the Court found that returning the child would place him in an intolerable situation.Footnote ⁷³ The respondent had no home, income, or support in Mexico, and the petitioner had failed to comply with court-ordered child support. The child would therefore be returned to a situation where he would not be provided with the necessities of life. The Court concluded that the Article 13(b) exception applied, finding an intolerable situation and declining the child’s return.

The applicant, MW, commenced an application in British Columbia seeking the return of the parties’ child to Canada under the Hague Convention. Footnote ⁷⁴ The parties are both Sri Lankan citizens and Canadian permanent residents and had lived in British Columbia when their child was born. During a trip to Sri Lanka, the respondent, MD, took the child and their travel documents following the breakdown of their relationship, eventually returning to Canada and leaving the child in the care of his parents in Sri Lanka. MW initiated proceedings in British Columbia, while also being involved in multiple related proceedings concerning custody and access in Sri Lanka. Justice Andrea Davis considered whether BC courts had jurisdiction to hear an application for a child located in another contracting state of the Hague Convention. Footnote ⁷⁵ The Court held that, under Article 12, jurisdiction to adjudicate a Hague application lies with the requested state, meaning the state where the child is physically located.Footnote ⁷⁶ Davis J relied on Zahariev v Zahariev, to confirm that the responsibility for adjudicating convention applications belongs to the state from which the child has been removed or the requested state.Footnote ⁷⁷ The Court lacked jurisdiction to hear the application, requiring it to be brought in Sri Lanka where the child was located.

The respondent brought a motion seeking a declaration that she is not legally married to the applicant, who responded with a cross-motion to declare that they were legally married. The parties, both Ontario residents, participated in a traditional marriage ceremony in India in 1997. Shortly after the ceremony, the applicant participated in another marriage, which was dissolved in Ontario. He also participated in a further marriage ceremony in 2022. The applicant claimed to have participated in sham marriages to assist with immigration to Canada. Justice Frances Wood applied the two-step analysis for recognizing foreign marriages. First, the Court considered whether the marriage was valid under the laws of the place where it was performed.Footnote ⁷⁸ Although expert evidence suggested that the marriage may have been valid, despite the applicant being under-age, the Court found the evidence insufficient to establish validity, mainly due to the subsequent marriage and the prohibition on polygamy under India’s Hindu Marriage Act. Footnote ⁷⁹

Second, the Court considered whether the marriage could be recognized under section 31 of the Marriage Act,Footnote ⁸⁰ which allows Ontario courts to validate marriages based on the criteria defined in Isse v Said. Footnote ⁸¹ The Court found that neither party acted in good faith regarding their marriage.Footnote ⁸² Both parties declared themselves for tax purposes, and the applicant used his single status to transfer real estate without the respondent’s consent. The third marriage in 2002 further demonstrated that the parties did not consider themselves to be legally married. The Court granted the respondent’s motion and declared that the parties were not legally married.

iii. Anti-suit injunction

The plaintiffs were successful on a motion for an anti-suit injunction restraining an arbitration in Hong Kong commenced by Nest Services Limited (Nest), a Seychelles corporation, acting collectively for the defendants (Binance). A class action was previously certified in Ontario on behalf of Canadian investors who purchased cryptocurrency derivative products through an asset trading platform.Footnote ⁸³ Binance had originally sought to prevent certification of that proceeding by way of the arbitration agreement, but the Court found the arbitration clause void because it was contrary to public policy and unconscionability.Footnote ⁸⁴ The cost of the arbitration in Hong Kong made it inaccessible to the average crypto investor. Despite this ruling, Binance nonetheless proceeded to launch arbitral proceedings by having Nest do so on its behalf and creating the issue that was the subject of this latest motion.

Justice Edward Morgan took issue with Binance’s claim, insisting that the company “is again attempting to engineer matters to take advantage of the complexity of operating across jurisdictions” and that the “pending arbitration commenced by Nest against the Representative Plaintiffs is little more than a transparent attempt to render Ontario court rulings ineffective.”Footnote ⁸⁵ Binance was attempting to secure immunity from legal process with a Hong Kong arbitration already found unconscionable and against public policy. Nest did not explain its ownership or management structure sufficiently to determine its formal relationship to Binance. Nest was not bringing a claim for a separate wrong in the Hong Kong arbitration. Instead it was deliberately undermining the plaintiff’s Ontario action and made the arbitration in Morgan J’s word a “façade.”Footnote ⁸⁶

By launching the arbitration by way of Nest, Binance was engaging in a collateral attack of, or abuse of process on, the Ontario decision. The plaintiffs met the requirements for an anti-suit injunction in Amchen. Footnote ⁸⁷ The arbitration was already found excessively costly and burdensome to contest jurisdiction thereby satisfying the first step of the Amchen test. Applying the related forum non conveniens factors at the second step made Ontario preferable to Hong Kong. The plaintiffs and two of three defendants were in Canada, the only connection to Hong Kong was the chosen arbitral forum and the arbitration provisions previously held unenforceable.

Although Nest was technically not a party to the Ontario action, it had placed itself in Binance’s shoes in the arbitration and therefore equally stood in its shoes for any injunctive relief ordered by the Ontario courts. The anti-suit injunction was valid and enforceable against Nest or any other affiliates/agents of Binance. Binance and Nest were restrained from commencing or continuing arbitration proceedings in Hong Kong or elsewhere.

iv. Estate distribution

The applicant, Nicole Bratusa, sought dependent’s support under the Succession Law Reform Act (SLRA) from the estate of the deceased, Ryan Doesam.Footnote ⁸⁸ Doesam had met the applicant in 2020, they had a child together and lived in Costa Rica until his death in September 2024. The applicant brought a maintenance claim for herself and their daughter in Costa Rica, but it was denied due to the deceased never divorcing the respondent, Kendra Dawson, even though they had separated. The deceased had made a will in Ontario in 2007, leaving his assets to Dawson and had over four million dollars in life insurance that was held in an Ontario trust for the children of the marriage. Following the death of Doesam, the applicant moved to Ontario and sought to commence support claims through the insurance proceeds. Dawson moved to stay the Ontario application on the basis that Ontario lacked jurisdiction or, alternatively, that it was forum non conveniens.

The Court granted the applicant’s motion for a stay, concluding that Ontario did not have jurisdiction. Justice Fred Myers applied the presumptive connecting factors test from Sinclair to determine whether there was a real and substantial connection to Ontario.Footnote ⁸⁹ The Court found that the will created in Ontario did not create a meaningful connecting factor as it predated the deceased’s relocation to Costa Rica and was not directly in dispute.Footnote ⁹⁰ The Court assumed that the existence of personal property and the insurance trust in Ontario constituted presumptive connecting factors. However, those factors were successfully rebutted.Footnote ⁹¹ The deceased had clearly established a domicile of choice in Costa Rica, having moved there permanently, obtaining residency, and centring his life there. Myers J held that the mere existence of personal property or a trust arrangement in Ontario is an insufficient basis to ground jurisdiction over a dependent’s support claim.Footnote ⁹²

Though the analysis was not required given the negative conclusion on jurisdiction simpliciter, when it came to forum non conveniens, the Court noted that, had jurisdiction been established, Ontario would not have declined to exercise it in favour of Costa Rica. Although witnesses and evidence were primarily in Costa Rica, there was no clear basis to conclude that it was a more convenient forum. Although the applications would have a significant juridical advantage under the SLRA in Ontario, the Court cautioned that substantive law advantages are not determinative.

v. Bankruptcy

The Ontario-based plaintiff, Grand HVAC Leasing Limited (Grand HVAC), leased equipment to Boaz Pharmaceuticals Incorporated (Boaz), a cannabis company operating in Alberta. The four defendants all reside in Alberta and personally guaranteed Boaz’s obligations under the leases. Boaz became insolvent in 2023 with bankruptcy proceedings occurring in Alberta. Following unanswered demands on the guarantees, Grand HVAC commenced an action in Ontario against the defendants. The defendants successfully moved to stay the action claiming Ontario lacked jurisdiction and that Alberta was a more convenient forum. Justice Lisa Brownstone’s analysis of whether a real and substantial connection existed between Ontario and the dispute focused on where the guarantees were formed.Footnote ⁹³

Relying on Lapointe Footnote ⁹⁴ and Trillium Motor World Ltd v General Motors of Canada Limited,Footnote ⁹⁵ Brownstone J noted that when parties are located in different places, a contract is generally formed in the jurisdiction where the last essential act, such as acceptance, occurred.Footnote ⁹⁶ Further, where acceptance is transmitted electronically and instantaneously, the contract is typically made where acceptance was received.Footnote ⁹⁷ Grand HVAC argued that the guarantees were formed in Ontario as that was the location of its head office and decision-making authority and, therefore, where acceptance occurred. The defendants argued that the contracts were formed in either British Columbia, where Grand HVAC’s employee created, sent, and received the signed guarantees, or in Alberta, where the defendants signed them. Brownstone J determined that the guarantees, in any event, were not made in Ontario.

While Brownstone J’s finding that Ontario lacked jurisdiction simpliciter was sufficient, the Court considered the defendants’ alternative argument that the action should be stayed as forum non conveniens. Footnote ⁹⁸ Using the factors outlined in Van Breda, Brownstone J considered the location of the witnesses and parties, the avoidance of multiple proceedings, the relative strengths of the connections of the two parties, and the loss of juridical advantage.Footnote ⁹⁹ All of the factors either favoured Alberta or were neutral, and no factor favoured Ontario. The Court held that it would have exercised discretion to decline jurisdiction and stay the claim in favour of Alberta as the more convenient forum even if it had found jurisdiction simpliciter.

This case involved applications brought by two bankrupt companies, IE CA 3 Holdings Limited and IE CA 4 Holdings Limited, their parent company IREN Limited, and two company principals seeking to restrain Price Waterhouse Coopers Incorporated as bankruptcy trustee from conducting scheduled examinations in Australia. The applicants argued that the trustee breached Justice Warren Milman’s earlier order by not seeking directions from the BC Court before pursuing additional examinations beyond those initially permitted. Milman J granted an order allowing the trustee to examine four individuals residing in Australia under the Bankruptcy and Insolvency Act (BIA) and determined that the Court had jurisdiction over the matter.Footnote ¹⁰⁰ The order limited the scope and duration of the examinations and provided that parties could seek further court directions if they could not agree on whether additional examinations were required. After completing the permitted examinations, the trustee determined further examinations were necessary. Rather than returning to the BC Court, the trustee initiated recognition proceedings in the Federal Court of Australia.Footnote ¹⁰¹

The applicants argued that the trustee was abusing the Australian Court’s process and acting in breach of Milman J’s order by not seeking directions from the BC Court before pursuing additional examinations. They sought relief under both the Court’s inherent jurisdiction and section 37 of the BIA. Footnote ¹⁰² The trustee countered that the applicants were attempting to relitigate issues already decided by the Australian Court and that nothing in Milman J’s order prevented it from seeking recognition in Australia. Milman J acknowledged that his earlier order was restrictive, limiting the number and duration of examinations and noted that BC courts maintained supervisory jurisdiction.Footnote ¹⁰³ Regardless, he found that the trustee in this instance had addressed the substance of his concerns by providing new evidence to the Australian Court explaining why further examinations were necessary. Milman J highlighted that requiring judicial vetting solely by the BC Court would undermine the purpose of the United Nations Commission on International Trade Law’s Model Law on Cross-Border Insolvency promoting cooperation between courts in multi-jurisdictional bankruptcy cases.Footnote ¹⁰⁴ He also noted that granting the applicants’ request would offend the principle of judicial comity, especially since the applicants had already unsuccessfully contested the matter in Australian courts.Footnote ¹⁰⁵

vi. Employment

The respondent commenced a wrongful dismissal action in British Columbia against his former employer, Integrated Contractors Limited (Integrated), an Alberta-based company. The parties entered into an employment agreement in Alberta, and the respondent performed all work in Alberta. One month after signing the contract, Integrated terminated the agreement. The respondent then relocated to British Columbia and filed a notice of civil claim alleging wrongful dismissal. Integrated contested British Columbia’s jurisdiction.Footnote ¹⁰⁶ Justice Bradford Smith held that the BC Supreme Court lacked territorial competence under the BC CJPTA. Footnote ¹⁰⁷ The respondent’s residence in British Columbia and the location where he experienced the effects of termination were insufficient to establish a real and substantial connection when the employment contract was made, performed, and allegedly breached entirely outside the province. Relying on Marren v Echo Bay Mines Ltd, the Court confirmed that breach of contract damages do not shift to British Columbia merely because a plaintiff relocates after termination.Footnote ¹⁰⁸

The Court further held that, even if territorial competence had been established, it would have declined to exercise it.Footnote ¹⁰⁹ All material events relating to the formation, performance, and termination of the employment agreement occurred in Alberta, Alberta law governed the relationship, and the employer and its witnesses were located in Alberta. The respondent’s desire to forum shop and rely on the procedural advantages available in British Columbia did not support the Court’s jurisdiction.Footnote ¹¹⁰

The appellant, an Alberta resident, held senior positions with the respondent company, Krahn Engineering Limited (Krahn) from 2014 until his termination for cause in November 2023. Krahn initiated multiple lawsuits against the appellant and his associated companies in British Columbia and Alberta. The appellant challenged the jurisdiction of one BC proceeding so that all claims related to his employment and other issues could be addressed together in Alberta. The chambers judge upheld British Columbia’s jurisdiction in the employment action.Footnote ¹¹¹ British Columbia had territorial competence as a majority of Krahn’s employees were located in the province, and the appellant’s employment obligations were largely carried out in British Columbia. A forum selection clause in the employment contract was also not exclusive as it stated that actions may, but need not be, brought in Alberta.Footnote ¹¹²

The chambers judge conducted a forum non conveniens analysis, considering factors such as convenience, expense, applicable law, and the desirability of avoiding multiplicity of proceedings.Footnote ¹¹³ While the appellant’s residence in Alberta favoured that province for convenience and expense, and Alberta law was designated in the contract, the judge nonetheless noted that BC courts could apply Alberta law. The judge also observed that the appellant had not commenced an action in Alberta, reducing the possibility of multiple legal proceedings and conflicting decisions. The factors were considered evenly balanced, and Alberta was not clearly a more appropriate forum.

Justice Lauri Ann Fenlon, writing for the BC Court of Appeal, highlighted that the appeal turned on the admissibility of new evidence. Applying the four-part test from Palmer v The Queen,Footnote ¹¹⁴ Fenlon J found that the new evidence concerning the Alberta action should be admitted as it affected the result of the previous jurisdictional application. Krahn had relied on the absence of an Alberta action to support its argument that British Columbia was the more appropriate forum. The Court determined that the two actions were related as both would require the Court to determine the extent of Krahn’s involvement in, and approval of, the appellant’s and Krahn’s assistance to a separate entity CTA Architecture and Design Limited. This shared, central issue created the potential for conflicting findings if the actions were heard in different jurisdictions. As an oppression action was brought under the Alberta Business Corporations Act,Footnote ¹¹⁵ and had to be heard in the Alberta Court of the King’s Bench, Fenlon J concluded that the filing of the oppression action tipped the scales in favour of Alberta being the more appropriate forum to avoid conflicting findings.Footnote ¹¹⁶ The appeal was allowed, staying the employment action in British Columbia.

The plaintiff commenced an action in Ontario against Canadian Nuclear Laboratories Limited (CNL) and Canadian National Energy Alliance Limited (CNEA) alleging breach of contract, intentional infliction of mental suffering, and discriminatory treatment arising from her employment. CNL argued that Ontario lacked jurisdiction or was forum non conveniens because the employment and alleged misconduct occurred in Manitoba. The plaintiff resided and primarily worked at the Whiteshell Laboratories, a site operated by Atomic Energy Canada Limited (AECL) through CNL in Manitoba. She countered CNL’s argument by relying on a 2014 employment contract with AECL, a company preceding CNL, that contained a forum selection clause in favour of Ontario courts. Justice Brian Holowka applied the two-step test from Douez v Facebook Inc to determine that the forum selection clause was valid and enforceable and therefore applied to CNL.Footnote ¹¹⁷ The Court found that the AECL employment contract was drafted to survive corporate restructuring and to continue governing the plaintiff’s employment notwithstanding changes in employer, position, or terms. When CNL assumed the plaintiff’s employment, it became subject to the terms of that contract, including the forum selection clause. CNL failed to establish a strong cause or exceptional circumstances to justify disregarding the contracts choice of forum.Footnote ¹¹⁸ The location of witnesses was not a significant factor due to the availability of virtual testimony, and no unfairness or procedural disadvantage arose for either party.

Alternatively, even if the forum selection clause was not enforceable, the Court addressed jurisdiction simpliciter. Applying the test from Sinclair, Holowka J held that Ontario had a real and substantial connection to the claim.Footnote ¹¹⁹ CNL was incorporated in Ontario, maintained its head office there, and carried on business in the province. On the forum non conveniens analysis, Manitoba was not shown to be a clearly more appropriate forum. Ontario employment law clearly permitted discrimination claims to be advanced as part of a wrongful dismissal action. None of the witnesses resided in Manitoba, CNL headquarters were in Ontario, and the contract was drafted and executed by the defendants in Ontario.

i. Commencement of proceedings

The plaintiffs, both Alberta residents, were involved in a motor vehicle accident in Kelowna, British Columbia, with the defendant, a BC resident. The plaintiffs commenced an action in Alberta and served the defendant in British Columbia. The defendant applied to set aside service claiming Alberta lacked jurisdiction absent a real and substantial connection. The plaintiffs admitted that Alberta lacked jurisdiction simpliciter as none of the presumptive connecting factors for a tort claim set out in Van Breda were present and Alberta was forum non conveniens. Footnote ¹³³ Despite this admission, the plaintiffs applied for an order requesting that the Court of King’s Bench of Alberta transfer the proceeding to the Supreme Court of British Columbia to avoid the action being barred by a limitation period.Footnote ¹³⁴

Application Judge Brian Summers held that the Court of King’s Bench of Alberta lacked the authority to request a transfer of proceedings in circumstances where it did not have jurisdiction simpliciter. Footnote ¹³⁵ Unlike British Columbia and other provinces that have adopted the BC CJPTA, Alberta had no statutory framework authorizing a court to request a transfer where it lacks territorial or subject-matter competence.Footnote ¹³⁶ The Court rejected the plaintiffs’ reliance on inherent jurisdiction and section 8 of the Judicature Act, distinguishing prior cases permitting transfers because the transferring court had jurisdiction simpliciter or was acting under transfer legislation.Footnote ¹³⁷ The defendant’s application to set aside service ex juris was granted, and the action was dismissed. The plaintiffs’ request for a transfer of the proceeding to British Columbia was also dismissed.

The moving parties, Petersen Energia Inversora, SAU et al. successfully sought to quash an appeal brought by the responding party, the Republic of Argentina, from an order of the Ontario Superior Court of Justice validating service of an application record in proceedings to recognize and enforce a US judgment. The moving parties argued that the order was interlocutory and could therefore only be appealed to the Divisional Court. Argentina maintained that the order was final because it determined substantive rights and defences relating to service under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention)Footnote ¹³⁸ and the State Immunity Act (SIA).Footnote ¹³⁹ The Ontario Court of Appeal held that procedural matters were governed exclusively by the law of the forum state and the SIA, which provided the procedural framework for actions commenced in Canada against a foreign state.Footnote ¹⁴⁰ The service through diplomatic channels under the SIA was valid, regardless of the requirements of the Hague Service Convention. Footnote ¹⁴¹

Relying on Xela Enterprises Ltd v Castillo, the Court reaffirmed that orders confirming the validity of service are generally interlocutory for the purpose of determining the proper route of appeal, provided that the real matters in dispute and the substantive rights of the parties remain unresolved.Footnote ¹⁴² The order addressed only the validity of service and did not determine the merits of the recognition and enforcement application. The Court further held that validating service did not deprive Argentina of any jurisdiction, immunity, or other substantive defences available in the underlying proceeding.

ii. Obtaining evidence locally for a foreign proceeding

The petitioner, Lixiao Wang, successfully applied to the court for Norwich orders and preservation orders against two non-resident cryptocurrency platforms, Biance Holdings Limited (Biance) and Coinbase Global Incorporated (Coinbase). Wang sought to obtain information to identify and preserve funds from a cryptocurrency investment scam that defrauded him of bitcoin valued in excess of twenty-five million dollars. Justice Bruce Elwood found that there was jurisdiction as the non-resident platforms had more than a mere passive presence in British Columbia.Footnote ¹⁴³ There was a real and substantial connection since the platform apps were available for download and use by BC residents to create accounts, deposit funds, and trade cryptocurrency.

Elwood J proceeded to apply the Norwich order test established in Kenny v Loewen, finding that Wang satisfied all required elements.Footnote ¹⁴⁴ Wang demonstrated a prima facie claim of fraud against the unknown individuals controlling the accounts, the respondent platforms were deemed the only practical source of the personal information identifying the wrongdoers, the platforms had a sufficient relationship to the wrongdoing, and the orders would increase the probability of Wang recovering stolen funds as well as deter future cryptocurrency scams. Elwood J also determined that Wang demonstrated a proprietary interest in the bitcoin associated with the transaction, his belief that the assets were threatened with disposition was reasonable, and there was a substantial question to be tried.Footnote ¹⁴⁵ The Court exercised its discretion to preserve the bitcoin associated with the identified transactions.

i. Conditions for recognition or enforcement

The respondent, Hilmer Motorsport GMBH (Hilmer), a German racing team, obtained a default judgment in Germany against the appellants, Nelson Mason, and his father and manager, Jay Mason, for breach of contract. Hilmer had entered into a driver agreement with Nelson Mason and a related guarantee agreement with Jay Mason. Both agreements were governed by German law and designated Munich as the place of jurisdiction. The driver agreement also contained an arbitration clause requiring disputes to be resolved under the Rules of Arbitration of the International Chamber of Commerce. Footnote ¹⁴⁶ In 2015, Hilmer commenced proceedings in Munich for breach of the agreements. The appellants were properly served but chose not to defend the action, asserting that arbitration was the preferred dispute resolution mechanism. In 2016, the German Court issued a default judgment. Hilmer subsequently commenced an action in Ontario seeking recognition and enforcement of that judgment.

The motion judge granted summary judgment recognizing and enforcing the German judgment in Ontario. The appellants were also unsuccessful on appeal. Applying the test from Chevron Corp v Yaiguaje, the judge concluded that the German Court properly assumed jurisdiction.Footnote ¹⁴⁷ The parties had expressly agreed to German law and Munich as the forum, the obligations were owed to a German entity, and the subject matter of the dispute was connected to Germany. The Court also rejected the appellants’ argument that the arbitration clause automatically denied the German Court’s jurisdiction. Under Ontario law, an arbitration agreement is not self-enforcing, a party must take active steps to seek a stay of court proceedings in favour of arbitration, which the appellants did not do.Footnote ¹⁴⁸ Any objection based on the arbitration clause should have been raised before the German Court. The Court further held that the appellants failed to establish any defence to recognition and enforcement.Footnote ¹⁴⁹ There was no breach of natural justice as the appellants were properly served and chose not to participate in the German proceedings.Footnote ¹⁵⁰ Enforcement of the judgment did not offend Canadian public policy since it did not violate fundamental notions of morality or justice.Footnote ¹⁵¹ The appeal was dismissed, and the German judgment was enforced in Ontario.

The applicants, Richard Fisher and Sally Kinsey, were appointed by the UK Court of Protection as deputies for property and affairs of Marija Jurate Danilunas after she was found to lack capacity due to dementia. Danilunas held over $1.2 million in Ontario bank and pension accounts. The applicants sought recognition in Ontario of the UK order to allow them to access and manage those assets for her care. The public guardian and trustee (trustee) intervened, opposing full recognition and arguing that foreign in rem guardianship orders should be enforced only through a new guardianship application under Ontario’s Substitute Decisions Act. Footnote ¹⁵² Justice Fred Myers granted full recognition of the UK order. The Court rejected the trustee’s position that only ancillary or partial enforcement could be granted without recognizing the underlying foreign order.

The Court held that permitting the deputies to take control of Danilunas’s Ontario property necessarily required recognition of the legal authority under which they acted. Without recognition of the UK order, there would be no legal basis to permit the transfer or management of her assets. Applying principles of comity and the framework for recognition of foreign orders, the Court found that the UK order was final, valid, and supported by a real and substantial connection.Footnote ¹⁵³ The UK proceedings also met Ontario’s standards for protecting vulnerable individuals. The recognition and enforcement of the foreign order did not violate Canadian public policy. The Court noted that requiring the applicants to commence duplicative guardianship proceedings under Ontario law would be unnecessary as they had already done so in the United Kingdom.

ii. Defences to recognition or enforcement

The applicant, an Israeli Court Appointed Functionary of Urbancorp Incorporated (UCI), sought recognition and enforcement of Israeli default judgments totaling approximately CDN $25.5 million against the respondents in Ontario. UCI was a land development business that raised approximately $63 million by issuing bonds to Israeli investors. The applicant was appointed to recover funds for bondholders and granted a judgment in an Israeli Court against several defendants for breaches relating to the bond issues. He subsequently sought recognition and enforcement of the judgments in Ontario. The respondents argued that recognition would be contrary to public policy, result in double recovery, and represent an abuse of process.

Justice Jana Steele applied the three primary requirements for enforcement, finding that the Israeli judgment was final, for a definite sum, and that the foreign Court properly assumed jurisdiction.Footnote ¹⁵⁴ The respondents failed to establish any of the defences to resist enforcement set out in Beals, including fraud, denial of natural justice, or public policy.Footnote ¹⁵⁵ The Court found that since there was no evidence of double recovery, the respondents could not rely on the defence of public policy.Footnote ¹⁵⁶ For the defendants’ abuse of process claim, Steele J held that prior Canadian proceedings addressed different causes of action, different issues, and different parties and, therefore, did not amount to an abuse of process. The Ontario Court fully recognized and enforced the Israeli judgments.

The appellant sought to enforce two Chinese judgments against the respondent residing in British Columbia. Before the chambers judge, the appellants unsuccessfully sought to have the respondents’ pleadings relating to defences against enforcement (including that the judgments were contrary to natural justice and public policy) struck from the record. The appellant claimed on appeal that the chambers judge erred in finding the respondent’s pleadings were not bound to fail and declining to strike the relevant paragraphs. When it came to the defence of natural justice, the Appellate Court concluded that Beals was correctly interpreted.Footnote ¹⁵⁷ While the respondent conceded he received notice and actively participated in the Chinese actions, the precedents did not establish a purely technical approach to assessing whether he was given an opportunity to defend the case against him. The pleadings suggested that the Chinese courts failed or refused to consider potentially relevant evidence advanced by the respondent, supporting the conclusion that it was neither plain nor obvious that a natural justice defence was bound to fail.

The BC Court of Appeal found that a different approach to a limitations issue than British Columbia was not sufficient to justify non-enforcement since it did not offend the fundamental morality of the Canadian legal system. It allowed pleadings dealing with the limitations defence to be struck as bound to fail. The Court accepted the defence of laches as well but only as it related to equitable as opposed to monetary relief. The Court rejected the appellant’s view that raising a conspiracy defence amounted to relitigating the underlying Chinese judgments as they related to evidence that should have been before the courts on the participants in the scheme being jointly and severally liable. The doctrine of res judicata could similarly not be struck from the pleadings since it was not a core feature of legal morality.

iii. Family law

The applicant, Chaylene Hillier, brought a motion in Ontario seeking recognition and enforcement of a parenting order issued by the Manitoba Court of King’s Bench against the respondent, Aaron Braun. The Manitoba order granted the applicant majority parenting time and authorized the child to be located and returned to her care. The applicant alleged that the Braun had taken the child from school in Manitoba in March 2023 and failed to return him. Braun had since been residing with the child in Kenora, Ontario, and had denied the applicant consistent contact with the child. Braun opposed the motion, submitting that the child’s best interests needed to be assessed before any change to the parenting arrangement. Justice Danial Newton considered the recognition of extraprovincial orders under the CLRA. Footnote ¹⁵⁸ The Court found that Braun had notice of the Manitoba proceedings and had participated in the earlier hearing that resulted in an interim order. The Manitoba legislation governing parenting determinations also required consideration of the best interests of the child, and none of the statutory grounds for refusing recognition were clearly established.Footnote ¹⁵⁹

Nevertheless, the Court also considered its authority under the CLRA to supersede an extraprovincial order where there has been a material change in circumstances and the child is present in Ontario.Footnote ¹⁶⁰ The evidence indicated that the child had been living in Ontario in the sole care of Braun for over two years, which could constitute a material change affecting the child’s best interests. Considering these circumstances, the Court declined to enforce the Manitoba order and instead directed that the matter proceed to an urgent case conference to address jurisdiction and the child’s best interests.

i. Tort

The plaintiff, Christine Kozak, as representative for the Estate of Donald Shaw, commenced a medical negligence action arising from events that occurred while Mr. Shaw was vacationing in the Yukon. Shaw, an Alberta resident, was examined at Whitehorse General Hospital, where a local physician consulted by telephone with Dr. Alibhai, a surgeon located in Edmonton, Alberta. Dr. Alibhai provided medical advice without reviewing diagnostic imaging and advised that Shaw be discharged with instructions to follow up in Alberta. Shaw died the following morning from a ruptured abdominal aortic aneurysm. By consent order, the Court was asked to determine whether the Alberta Fatal Accidents Act Footnote ¹⁶¹ or the Yukon Fatal Accidents Act Footnote ¹⁶² governed the statutory claims. The plaintiff and Dr. Alibhai agreed that Alberta law was the proper choice of law.

The minister of justice of Alberta intervened following notice of a constitutional challenge to the Alberta legislation and argued that Yukon law applied. Justice Paul Belzil held that the minister lacked standing to challenge the parties’ agreed choice of law. Under the Judicature Act, the minister’s right to be heard was limited to the constitutional issues and did not extend to controlling litigation decisions such as choice of law.Footnote ¹⁶³ To determine the proper choice of law, Belzil J applied the lex loci delicti doctrine from Tolofson v Jensen, which holds that the governing law in a tort claim is the law of the place where the tort occurred.Footnote ¹⁶⁴

The Court held that the defining activity of the tort was the negligent medical advice provided by Dr. Alibhai in the telephone consultation, not Shaw’s death in the Yukon.Footnote ¹⁶⁵ The Court rejected the minister of justice of Alberta’s submission that the Yukon Fatal Accidents Act applied because the claim formed there on Shaw’s death, holding that the location of the death does not determine the location of the tort. The Court concluded that Alberta was the jurisdiction most substantially affected by the defendant’s conduct and the one reasonably contemplated by the parties. Alberta law therefore governed the action.