Private international law and forum non conveniens is complicated. It is really too complicated to properly address is a simple blog. But, let’s consider this as wetting your appetite on the subject. So let me tell you what happened and let’s see if you come to the same conclusion as Justice Hoilett of the Ontario Superior Court of Justice. In Towne Meadow Development Corp. v. Israel Development Bank the Ontario Superior Court of Justice had to determine the appropriate location for litigating a dispute. A Canadian construction company hoped to build in Israel. The Israeli bank granted it credit. A shareholder of the company allegedly pledged company assets to secure the loan. The bank then called in its line of credit for repayment wanting access to the assets. The builder suggested that Ontario law applied and that the court case should be heard in Ontario. The Israeli bank disagreed.
Truth be told my question to you is unfair. The case was far more complicated. But nonetheless – what do you think?
Cross-border trade means contractual disputes end up in court. Ontario has grappled with issues such as this through passing legislation and application of the common law as it relates to private international law.
The courts apply certain tests to determine whether there is a ‘substantial connection’ between the litigation and Ontario. If there is that connection, our courts make their decisions having in mind that there may be a substantial connection with another jurisdiction, and then decide which forum (i.e., in our case Israel or Ontario) is best suited to hear the case. This is what lawyers mean when they speak of forum non conveniens.
In our scenario, Justice Hoilett felt that Israel was a far more convenient forum for the litigation to proceed than Ontario. The judge arrived at this conclusion by considering the fact that all loans and transactions were made in Israel in relation to projects undertaken in Israel; almost allwitnesses material to the issue were in Israel; the defendant was in Israel and representatives of the plaintiff travelled to Israel often.
This blog deals with the complicated issue of forum non conveniens, comity and private international law and is not meant as legal advice. For those interested in a more detailed review of the topic I refer you to the following articles:
- Enforcing Canadian Judgments in Israel available at: http://www.hg.org/article.asp?id=19670 ;
- Being Sued in Ontario – the Necessity to Go to Court in Canada available at: http://www.hg.org/article.asp?id=19634 ;and
- Enforcing American Judgments in Ontario Canada available at: http://www.hg.org/article.asp?id=6168 .
