Implied Forum Choice: Principles of Attornment to Jurisdiction by Conduct

Question: How can my actions in an Ontario lawsuit be seen as consenting to the court’s jurisdiction (attornment by conduct)?

Answer: In Ontario, you may be treated as having accepted a court’s jurisdiction if you participate on the merits before promptly objecting, such as filing a defence, bringing substantive motions, or delaying a jurisdiction challenge, as recognized in Kunuthur v. Govindareddigari, 2018 ONCA 730 and related appellate decisions.  Empowered Legal Services is a Professional Legal Advocacy Team in Ontario that can help you assess jurisdiction risk early and take the right procedural steps to preserve an objection where available.

Conduct Demonstrates Consent

Attornment to jurisdiction by conduct occurs when the actions of a litigant, rather than an express agreement, amounts to acceptance of the authority of a court or tribunal or arbitrator to decide a dispute.  This form of attornment often arises where a party participates in legal proceedings without promptly challenging jurisdiction, thereby implying consent to the chosen forum.  Delay in raising a jurisdictional objection, filing substantive pleadings, or taking procedural steps on the merits, can each serve as indicators that the party has accepted the choice of forum.  Understanding these principles is essential, as implied attornment can bind a party to a jurisdiction that may be strategically undesirable, with significant consequences for procedure, applicable law, and litigation costs.

The Law

At common law, a party may attorn to the jurisdiction of a forum by engaging in conduct that implies acceptance, even without any express agreement to do so.  Such implied attornment often arises when a party fails to raise a jurisdictional objection at the earliest reasonable opportunity, thereby allowing proceedings to advance without challenge.  Implied attornment may also occur when a party takes substantive steps to litigate the merits of the dispute, such as delivering pleadings or bringing a Motion that addresses the substance of the claim, or otherwise participating in hearings without first raising issues regarding jurisdiction.  In these circumstances, the law treats the conduct as voluntary submission to the authority of the forum, thereby precluding later efforts to contest jurisdiction.

This principle was affirmed in Kunuthur v. Govindareddigari, 2018 ONCA 730, while citing Van Damme v. Gelber, 2013 ONCA 388, and Wolfe v. Wyeth, 2011 ONCA 347, wherein each the Court explained that a party attorns to jurisdiction when it goes beyond simply challenging jurisdiction and instead litigates the claim on its merits.  In each case it was explicitly said:

Conclusion

attornment to jurisdiction by conduct underscores the importance of vigilance when questions of jurisdiction arise.  Delay in raising an objection or taking substantive steps to litigate the merits can result in an implied acceptance of the forum, binding a party to its authority even where a different jurisdiction may be more advantageous.