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Forum Selection Clause: Attornment to Jurisdiction by Contract
Question: Can a forum selection clause in my contract be enforced in Ontario if the other party wants to sue somewhere else?
Answer: In Ontario, courts will usually enforce a clear forum selection clause unless the party resisting it shows a strong cause to ignore the agreed forum, and delay or participation without timely objection can also count as attornment by conduct under Momentous.ca Corp. v. Canadian American Association of Professional Baseball Ltd., [2012] 1 S.C.R. 359. Empowered Legal Services is a Professional Legal Advocacy Team serving Ontario that can review your contract and help you respond quickly to a jurisdiction challenge while accounting for any tribunal or statutory forum that has exclusive jurisdiction.
Forum Selection Clause
Parties to contracts may expressly attorn by including a forum selection clause that specifies where disputes arising from the contractual relationship must be resolved. Such clauses may identify a specific province, city, or even county, as the agreed geographical location, forum. When a dispute arises, courts will generally uphold these agreements unless the party resisting enforcement can demonstrate a strong cause to disregard the forum selection clause. On this point, in Momentous.ca Corp. v. Canadian American Association of Professional Baseball Ltd., [2012] 1 S.C.R. 359, the Supreme Court of Canada confirmed that explicit contractual attornment will ordinarily be enforced, and that participation in proceedings without timely objection may also amount to attornment by conduct. Specifically, the Supreme Court said:
[9] In Z.I. Pompey Industrie v. ECU-Line N.V., 2003 SCC 27, [2003] 1 S.C.R. 450, this Court confirmed that, in the absence of specific legislation, the proper test in determining whether to enforce a forum selection clause is discretionary in nature. It provides that unless there is a “strong cause” as to why a domestic court should exercise jurisdiction, order and fairness are better achieved when parties are held to their bargains.
As also explained in Momentous.ca, where a court or tribunal has exclusive jurisdiction, the parties are unable to use a forum selection clause, or other agreement, to oust that jurisdiction in favour of another forum. This principle ensures that legislatively mandated forums maintain authority over specific subject matters, safeguarding both the integrity of the adjudicative process and the public policy objectives underlying the statutory scheme.
[7] ... when another forum ― an arbitration panel, a tribunal or another court ― has the exclusive jurisdiction to deal with the claim, the Ontario Superior Court of Justice will not take jurisdiction, based upon agreement or statute.
Conclusion
A carefully drafted forum selection clause may serve as a powerful tool for securing predictability and efficiency in dispute resolution by channeling litigation to a chosen jurisdiction. These clauses reinforce the principle of attornment, whether explicit or implicit, by ensuring that litigants commit to a particular court or tribunal, thereby reducing uncertainty and jurisdictional disputes. Still, such provisions must be balanced against overriding public policy considerations, statutory exclusivity, or consumer protection principles, that may justify a court declining to enforce a forum selection clause.
NOTE: A significant quantity of online searches featuring “lawyers near me” or “best lawyer in” frequently indicates a requirement for prompt and proficient legal support rather than a particular designation. In Ontario, licensed paralegals are governed by the same Law Society that regulates lawyers and are empowered to represent clients in specified litigation matters. Advocacy, legal evaluation, and procedural expertise are fundamental to that function. Empowered Legal Services provides legal representation within its licensed parameters, focusing on strategic positioning, evidence preparation, and persuasive advocacy aimed at securing effective and advantageous outcomes for clients.