Fraser v. 4358376 Canada Inc. et al., 2014 ONCA 553

• Judge: Sharpe, Simmons and Benotto, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 26, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONCA 553;(2014), 324 O.A.C. 68 (CA)

Fraser v. 4358376 Can. (2014), 324 O.A.C. 68 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JL.035

John Fraser (plaintiff/respondent) v. 4358376 Canada Inc. operating as Itravel 2000 and Travelzest PLC, The Cruise Professionals Limited, Jonathan Carroll and Adrian Cobbold (defendants/appellants)

(C58321; 2014 ONCA 553)

Indexed As: Fraser v. 4358376 Canada Inc. et al.

Ontario Court of Appeal

Sharpe, Simmons and Benotto, JJ.A.

July 22, 2014.

Summary:

At issue on this appeal was whether certain actions taken by the individual defendants constituted attornment to the jurisdiction of the court. Also in issue was whether the proceedings against the individual defendants should be temporarily stayed until such time as a bankruptcy stay against the corporate defendants was lifted.

The Ontario Court of Appeal held that the defendant's actions did not go beyond challenging the jurisdiction of the court and, therefore, did not amount to attornment. The court dismissed the motion for a temporary stay.

Conflict of Laws - Topic 643

Jurisdiction - Submission to jurisdiction - What constitutes - In a wrongful dismissal suit, the corporate and individual defendants relied on a jurisdiction clause in the contract providing that disputes were to be litigated in England - As a result of bankruptcy proceedings, the suit against the corporate defendants was stayed - The individual defendants filed a notice of motion seeking a temporary stay of the actions against them until the bankruptcy stay against the corporate defendants was lifted - The notice of motion also asked for an order striking out an amended statement of claim for jurisdictional reasons - The Ontario Court of Appeal held that the steps taken by the individual defendants were procedural steps which did not amount to attornment to the Ontario jurisdiction - Their actions did not go beyond challenging the jurisdiction of the court - The court refused to grant the stay of proceedings.

Conflict of Laws - Topic 643

Jurisdiction - Submission to jurisdiction - What constitutes - The Ontario Court of Appeal stated that the test for attornment was "whether the party '... appears in court and goes beyond challenging the jurisdiction of the court based on jurisdiction simpliciter and forum non conveniens' ... We know of no authority for the proposition that procedural steps brought within the confines of a jurisdiction motion dealing solely with the mechanics of having that motion heard in a proper procedural setting amount to attornment ..." - See paragraphs 14 and 15.

Cases Noticed:

Wolfe et al. v. Wyeth et al. (2011), 282 O.A.C. 64; 332 D.L.R.(4th) 157; 2011 ONCA 347, refd to. [para. 14].

Mid-Ohio Imported Car Co. v. Tri-K Investments Ltd. et al. (1995), 65 B.C.A.C. 98; 106 W.A.C. 98; 129 D.L.R.(4th) 181; 13 B.C.L.R.(3d) 41 (C.A.), refd to. [para. 25].

Counsel:

Jeffrey E. Goodman and Kathryn J. Bird, for the appellants;

Nadine Cote, for the respondent.

This appeal was heard on June 26, 2014, before Sharpe, Simmons and Benotto, JJ.A., of the Ontario Court of Appeal. The following decision was delivered by the court on July 22, 2014.