New Supreme Court of Canada Decision on Attornment
The Supreme Court of Canada issued a ruling on attornment last month.
It has long been the law that a defendant who serves and files a statement of defence addressing the merits of the action risks being deemed to have attorned to (i.e. implicitly consented to) the jurisdiction of the Court. Also, forum selection clauses are enforced unless there is strong cause not to.
In Momentus.ca Corp v Canadian American Association of Professional Baseball Ltd.  S.C.J. No. 9 the defendant served a statement of defence on the merits but which also expressly objected to the Ontario court’s jurisdiction on the grounds of a forum selection clause in favour of North Carolina and an arbitration clause. The defendant then brought a motion under Ontario Rule 21.01(3) for an order staying the action on that basis. The issue before the Supreme Court was whether the statement of defence constituted consent to jurisdiction such that the defendant was precluded from relying on the forum selection clause and such that its motion was too late. In an eminently common sense judgment, the Court held that the Ontario rule did not require that the motion be brought before the statement of defence, so long as the motion is brought promptly afterward. A statement of defence that specifically pleads a forum selection clause “does not amount to consent that Ontario assume jurisdiction”.