The ‘Big Nickel’ Stays in Ontario: Court of Appeal Upholds Jurisdiction Challenge
On December 9, 2022, the Court of Appeal issued a decision applying the Van Breda framework and confirming that the presumptive connecting factors set out in Van Breda apply equally to contractual claims. The decision considered jurisdiction simpliciter and forum non conveniens, particularly in the context of contractual claims with international elements giving rise to questions of comity and universal jurisdiction.
The appeal arose from three related actions commenced in Ontario and a parallel action commenced by one of the insurers in New York, to determine insurance claims made by Ontario-based Vale Canada Limited (“Vale”) against 22 of its insurers. Vale claimed coverage for ongoing environmental expenses pursuant to at least 92 inter-related insurance policies that formed part of Vale’s global insurance program during the relevant decades.
Of the 22 insurers named in the related actions, ten brought a motion to stay or dismiss the Ontario actions on the basis that the Ontario courts lack jurisdiction simplicter or in the alternative, that Ontario was not the convenient forum (arguing in favour of New York).
The Jurisdiction Motions, Ontario Superior Court
The jurisdiction motions were heard at first instance by the Honourable Justice Fred Myers. In his decision, the motions’ judge found that the Ontario courts have jurisdiction over all the insurers (save one) and that Ontario is the convenient forum to resolve the related disputes.
The Appeal, Ontario Court of Appeal
In Ontario, the motions’ judge’s decision was appealed to the Court of Appeal.
The Appeal Panel was comprised of Justice Feldman, Justice Lauwers and Justice Zarnett.
There were two issues before the Court. The first issue was whether Ontario courts had jurisdiction simpliciter over the parties. The second issue was whether Ontario was the more convenient forum to adjudicate the disputes (as opposed to New York).
The Appeal Panel unanimously found in favour of Vale. They dismissed all of the insurers’ appeals and granted Vale’s appeal. In the result, the Ontario courts have jurisdiction over all of the claims.
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Christopher Hubbard, Atrisha Lewis, Akiva Stern and Alexa Jarvis of McCarthy Tétrault LLP represented Vale Canada Limited on the jurisdiction motions, and the successful appeal in the Ontario Court of Appeal.
Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada, 2022 ONCA 862
Docket: C70295, C70293, C70294, C70288, C70289, C70300, C70297, C70287, C70298, C70302, C70291, C70281, C70292, C70290
Decision Date: December 9, 2022