Forum Selection Clause:

Question: Can a forum selection clause in a contract be enforced in Ontario if I’m disputing the chosen court?

Answer: In Ontario, a forum selection clause can usually be enforced because courts tend to hold parties to their bargain unless you can show a strong cause to disregard it; if the contract clearly names the agreed province, city, or county, the opposing party may be directed to litigate there, and courts generally will not let you use an agreement to oust a forum with exclusive statutory jurisdiction.   The Supreme Court of Canada in Momentous.ca Corp. v. Canadian American Association of Professional Baseball Ltd., [2012] 1 S.C.R. 359 confirms explicit attornment is ordinarily upheld, and it may also be found by conduct when someone participates without timely objection.   If your family law-related dispute is caught in a jurisdiction fight, Denali Paralegal can help you evaluate whether the clause is likely enforceable and what steps to take next, call (877) 414-4377 for a free 1/2 hour consultation.

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:

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.

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.