Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography
Search the entire CISG Database (case data + other data)

CISG CASE PRESENTATION

Canada 20 September 2007 Superior Court of Justice, Ontario (Guiliani v. Invar Manufacturing)
[Cite as: http://cisgw3.law.pace.edu/cases/070920c4.html]

Primary source(s) of information for case presentation: Case text

Case Table of Contents


Case identification

DATE OF DECISION: 20070920 (20 September 2007)

JURISDICTION: Canada

TRIBUNAL: Superior Court of Justice, Ontario

JUDGE(S): Harvison Young J.

CASE NUMBER/DOCKET NUMBER: 06-CV-320596PD

CASE NAME: Guiliani, a division of IGM U.S.A., now Bucci Industries U.S.A. Inc. and IGMI S.p.A. v. Invar Manufacturing, a division of Linamar Holdings Inc. and Linamar Corporation

CASE HISTORY: Appealed under the case name Linamar Holdings Inc. v. IGM U.S.A., 2008 ONCA 256 (Can LII) (Ont. C.A.) [affirmed]

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Canada (defendant)

GOODS INVOLVED: Industrial machines


Classification of issues present

APPLICATION OF CISG: No, a battle-of-the-forms case in which the court should have but did not consider the CISG

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 19

Classification of issues using UNCITRAL classification code numbers:

19A [Acceptance with modifications: Reply purporting to accept but containing additions or modifications]

Descriptors: Battle of the forms

Go to Case Table of Contents

Editorial remarks

Go to Case Table of Contents

Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (English): Text presented below; see also 2007 WL 2758802, 2007 CarswellOnt (Ont.Sup. Ct.J.)

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: James M. Klotz, Peter J. Mazzacano & Antonin I. Pribetic, "All Quiet on the CISG Front: Guiliani v. Invar Manufacturing, the Battle of the Forms, and the Elusive Concept of Terminus Fixus, Canadian Business Law Journal (Fall 2008), available at SSRN <http://ssrn.com/abstract=1127850>

Go to Case Table of Contents

Case text

Ontario Superior Court of Justice
Guiliani v. Invar Manufacturing

20 September 2007

[...]

MOTION by defendant to set aside service of statement of claim and to stay action.

Harvison Young J.

INTRODUCTION

1     This is a motion brought by the defendants Guiliani, division of IGM U.S.A. Inc., now Bucci Industries U.S.A. Inc. and IGMI S.p.A. ("Bucci" and "IGMI") seeking an order to set aside service of the statement of claim in this action and staying the action. It is based on four grounds:

(i) That the claims are, by contract, to be resolved under the laws of Italy and adjudicated in the Italian courts;

(ii) That there are pending proceedings in Italy;

(iii) That the Ontario courts lack jurisdiction simpliciter; and

(iv) That Ontario is a forum non conveniens.

BACKGROUND

    In this action, the plaintiffs, Invar Manufacturing, a division of Linamar Holdings Inc., and Linamar Corporation ("Invar" and "Linamar") claim approximately $17,000,000 in damages resulting from multiple breaches of contract arising from the allegedly deficient performance of three industrial machines. These machines were manufactured and designed in Italy and installed for the plaintiffs' use at their Ontario manufacturing facility by the defendants. The plaintiffs claim that the machines were not ready on time and that they did not meet the specifications agreed to. In addition, the plaintiffs claim in negligent misrepresentation and in negligence, alleging that the defendants failed to take adequate steps to remedy the problems with the machines.

3     At the heart of this motion is the claim that the contract between the parties included a contractual provision that any disputes between the parties relating to the supply of the equipment were to be determined under the laws of Italy by the Italian courts. The plaintiffs argue that no such position formed a part of the contract between the parties.

    For the reasons which follow, I have concluded that this court has jurisdiction simpliciter and that this is not a case in which the court should grant a stay of proceedings on the basis of forum non conveniens.

ISSUES

(a) Does this court have jurisdiction simpliciter?

(b) If so, should the doctrine of forum non conveniens be applied and the discretion exercised to stay this action and set aside the service ex juris?

5     The central argument to the defendants' position is that there was a contractual provision that established that the Italian courts were to have exclusive jurisdiction and that the applicable law was to be that of Italy. This argument is relevant to both the jurisdiction simpliciter issue and to the forum non conveniens issue, and for that reason I will address it now.

Was there a choice of jurisdiction clause?

    This case is reminiscent of Butler Machine Tool Co. v. Ex-Cell-O Corp. (England), [1979] 1 All E.R. 965 (Eng. C.A.), in the sense that it, too, is somewhat of a "battle of forms" as Lord Denning noted in that case. As in Butler, in order to determine what terms did form part of the contract, it is necessary to examine the circumstances to discern when a binding contract was formed between these parties. In cases such as the present, and like the Butler case, in which there have been lengthy periods of quotations exchanged and discussions, this must be determined by an examination of both the documents exchanged between the parties as well as by their conduct. As Lord Denning wrote in Butler at 968-69:

In many of these cases our traditional analysis of offer, counter-offer, rejection, acceptance and so forth is out-of-date.... The better way is to look at all of the documents passing between the parties and glean from them, or from the conduct of the parties, whether they have reached agreement on all material points, even though there may be differences between forms and conditions printed on the back of them.

7     In my view, the contract was formed in March 2004 when the parties agreed on the essential terms of the contract following the provision by the defendants of the GMS578B Quotation (the "Quote"). This followed a period of lengthy negotiation and discussion that had escalated or recommenced in the fall of 2003. Discussions were held between Mr. Derek Jones, President of Linamar's Chassis Division, while he was in Ontario, and Mr. Manfred Sprenger, Vice President of IGMI's American subsidiary, who was on the telephone. Mr. Jones made handwritten notes on his copy of the final page of the Quote. These included the price, the description of the machines, payment terms and production ready dates. None of the parties alleges that there was any discussion of the choice of law or jurisdiction issue during the spring of 2004.

8     The document "Linamar/Giuliani Purchase Agreement Terms for Invar GMS578B Equipment Quotation for a Turn Key Operation of AVNT Center Housing" was dated March 16, 2004, which followed the discussions just outlined. This document identified the purchase order number, the Giuliani Machines, the purchase price, the payment terms (including the payment of a 30% down payment with "the order"), and the production ready dates of November 26, 2004 and February 11, 2005. It is consistent with Mr. Jones' notes on the quotation. The document was sent to Mr. Sprenger on May 5, 2004. Mr. Sprenger signed it the following day.

9     In the meantime, IGMI had issued an invoice to the plaintiffs for the advance payment, as the parties had agreed, in the amount of $1,350,000. This invoice was dated April 1, 2004, and was paid by the plaintiffs on April 30, 2004. IGMI relies on the following provision contained on the reverse of the invoice in support of its position that the courts of Italy were to have exclusive jurisdiction over disputes:

For all disputes arising directly or indirectly from the supply contract regardless of where this agreement took place or where the goods were delivered, the Forum of Ravenna will have jurisdiction, without exception whatsoever. [As translated from Italian to English]

10     This provision, whatever the intention of the defendants, did not form part of the contract between the parties. The essential terms were agreed to in the course of the discussions on March 16, 2004, and are contained in the March 16, 2004, document that was subsequently signed by Mr. Sprenger for the defendants. It contained no reference to the jurisdictional issue. The fact that there were numerous other details that had to be (and were) determined subsequently does not change the fact that a binding contract between the parties had been formed then. The stipulation on the back of the invoice did not form part of the contract agreed to between the parties, which had already been formed.

11     The plaintiffs contend that their own standard terms (providing that the courts of Ontario were to have jurisdiction) formed part of the contract as Mr. Jones had "made it clear" to Mr. Sprenger that Invar's standard terms and conditions were to apply to the contract between the parties. I also reject this contention. While I make no finding on whether or not Mr. Jones purported to do so, I would also note that, in the absence of evidence that Mr. Sprenger had agreed to this, Mr. Jones' assertions would have had no contractual effect in any event. In short, the record in this case appears to indicate that both parties expected that their own terms and conditions would form part of the contract but, despite agreeing to the essential terms of the contract and embarking on the performance of it, they failed to discuss it or negotiate it specifically at the time.

12     The defendants make a somewhat similar argument concerning the three order confirmations dated September 10, 2004, which also set out an explicit term stating that disputes relating to the machines would be resolved under Italian law in Italian courts. These order confirmations also contained a provision (i) requesting the return of the order confirmations executed by Invar and (ii) stipulating that failure to return would be deemed to be an acceptance of all the terms and conditions contained therein. The plaintiffs insist that these order confirmations were never received and take the position that, even if they had been, the defendants could not rely on the choice of law and jurisdiction provisions in the circumstances. I agree with the plaintiffs on this point. Again, the contract had been formed some time previously and was well under way on September 10, 2004. In addition, the fact that Invar by this time had also disclosed its own terms and conditions to the defendants highlights again that there was no meeting of the minds on the issue of jurisdiction. At best, each side was unilaterally trying to insert favourable jurisdictional stipulations into the agreement. It is a basic tenet of contract law that acceptance of an offer has to be unequivocal, and it must be communicated to the offeror. As Professor Swan writes,

The requirement that there has to be an acceptance cannot be avoided or waived by the offeror's saying that the offeree will be assumed to have accepted the offer if no rejection is received by the offeror. This rule is a reflection of the very general principle that people are not to have obligations thrust upon them without their consent and that, in general, people have to indication their consent by some positive action. [Canadian Contract Law, 1st ed. (Markham: LexisNexis Butterworths, 2006) at 196.]

See also: Vollmer v. Jones, 36 R.F.L. (6th) 340 (Ont. S.C.J.) at para. 46.

13     The circumstances of this case indicate that there was extensive negotiation and discussion between the parties over a period of time. The contract was not formed simply on the basis of exchanges of documents, but also on the basis of negotiations and personal discussion. This was the manner in which the contract was formed. In light of this, it cannot be considered to be fair or within the reasonable expectations of these parties that either side would be able to insert terms which had not been agreed to into the contract after the fact. It is true that there were numerous details that had not been decided in March 2004. These too were addressed by way of continuing discussions and negotiations, and may well have had the effect of adding to or altering in some ways the original provisions. This is likely to be the norm in complex contracts for the design and manufacture of machinery, such as the subject contract, that take place over time. That, however, is very different from unilaterally adding or changing terms by including them in forms which are primarily designed for other purposes (such as invoices).

14     Having reviewed the evidence in this case, it appears that the plaintiffs and defendants each intended that there should be choice of jurisdiction provisions stipulating Ontario and Italy respectively. I cannot conclude, however, that there was any meeting of the minds on this issue at the time that the contract was formed in March, 2004, or that such terms later became part of the terms of this contractual relationship.

15     The defendants also rely on quotations which had been sent to the plaintiffs in 2002 that, unlike the Quote of March, 2004, expressly referenced Giuliani's standard Terms and Conditions. Those terms and conditions included a stipulation that "[f]or every dispute..., the Court of Ravenna, Subsection of Faenza, Italia will be the only and exclusive competent court." The difficulty with this position is that these two quotations did not, in my view, form part of the negotiations process for the subject agreement. They were for single machines only. The second of these 2002 quotes was a final (not a preliminary) quotation and it expired on its terms 60 days after it was delivered. Because the 2002 offer was not accepted and because it does not appear that there was any negotiation on the terms of that offer, there is no reason to believe that the plaintiffs ever considered a contract in which Italy would be named the court of competent jurisdiction. There is no evidence to suggest that the 2002 negotiations should be taken into consideration.

16     It was not until over a year later, in late 2003, that negotiations recommenced with any vigour. The quotation that was submitted to the plaintiff in March, 2004, (Quote GMS578B) did not refer to any of IGMI's purported standard terms and conditions. The parties clearly disagree over the extent to which, if any, the later negotiations may be considered to have arisen out of the earlier ones. In my view, however, this does not matter as the earlier quotations were not accepted. None of the parties submitted any evidence suggesting that the issue of the resurrection of the terms referenced in the earlier quotations was discussed or that the defendants expressly raised the issue of choice of law or jurisdiction during the negotiations in 2003-2004, which culminated in the subject contract.

17     For these reasons, I conclude that the contract between the parties did not include any terms governing choice of jurisdiction for any disputes arising between them. Accordingly, it will be necessary to consider whether the court should assume jurisdiction simpliciter in this case.

Jurisdiction Simpliciter

18     The test for establishing jurisdiction simpliciter is not in dispute and is set out in the Ontario Court of Appeal decision in Muscutt v. Courcelles (2002), 60 O.R. (3d) 20 (Ont. C.A.) at paras. 75 to 110. The overall question is whether the real and substantial connection test has been met. The factors identified should be weighed and considered together; no one factor is to be determinative. The factors are:

(i) The connection between the forum and the plaintiffs' claim;

(ii) The connection between the forum and the defendant;

(iii) The unfairness to the defendant in assuming jurisdiction;

(iv) The unfairness to the plaintiff in not assuming jurisdiction;

(v) The involvement of other parties to the suit;

(vi) The court's willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis;

(vii) Whether the case is interprovincial or international in nature; and

(viii) Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere.

19     These factors are not to be applied mechanically. As the Supreme Court of Canada held in Hunt v. T & N plc, [1993] 4 S.C.R. 289 (S.C.C.), at 325, the real and substantial connection test "was not meant to be a rigid test, but was simply intended to capture the idea that there must be some limits on the claims to jurisdiction" and that "the assumption of and the discretion not to exercise jurisdiction must ultimately be guided by the requirements of order and fairness, not a mechanical counting of contacts or connections." In addition, it is important to keep in mind the distinction between the question of jurisdiction and the discretion not to exercise it. As Sharpe J.A. noted in Muscutt, supra at para. 40:

Very often there is more than one forum capable of assuming jurisdiction and it is necessary to determine where the action should be litigated. As Sopinka J. explained in [Amchem Products Inc. v. British Columbia (Workers'Compensation Board), [1993] 1 S.C.R. 897 at 912,] "[f]requently there is not a single forum that is clearly the most convenient or appropriate for the trial of the action but rather several which are equally suitable alternatives". Where more than one forum is capable of assuming jurisdiction, the most appropriate forum is determined through the forum non conveniens doctrine, which allows a court to decline to exercise its jurisdiction on the ground that there is another forum more appropriate to entertain the action.

20     It follows from this, then, that the existence of another forum which might also be an appropriate forum is not a reason in itself for a court to decline to assume jurisdiction. In this case, in determining the issue of jurisdiction simpliciter, the court is not called upon to decide which possible forum is best. It is only required to determine whether there is a real and substantial connection with the forum. In my view, that test is clearly met on the facts before the court. The plaintiffs' connection with Ontario is very substantial. The machines, designed and built in Italy, were constructed for installation and use in the plaintiffs' Ontario plant. The contract contemplated that the defendants would spend time in Ontario, which they did. This is not a case where the defendant had no presence in Ontario, and the absence of a connection between a defendant and the forum, while a factor, is not determinative of a jurisdiction simpliciter argument: see Muscut, supra at paras. 73-74. The damages at issue were allegedly suffered here, and the machines remain here. The only fairness argument that could mitigate against a finding of jurisdiction simpliciter in the present circumstances would be the existence of an exclusive jurisdiction provision in the contract, which I have already found was not part of the contract between the parties. In any event, the existence of such a provision would carry more weight in relation to the forum non conveniens argument that the jurisdiction simpliciter argument.

The connection between the forum and the plaintiffs' claim

21     There is no serious argument on this issue. Both plaintiffs are Ontario corporations with head offices in Ontario, and Ontario is the only place of business for the plaintiff Invar. The machines were intended for use in Ontario, which is where they were assembled and installed and where they remain. While not disputing these connections, the defendants emphasize that the design and manufacture of the equipment occurred in Italy, and submit that the supply arrangements and the process of negotiations referenced only the laws and courts of Italy.

The connection between the forum and the defendant

22     The defendants take the position that there is no connection between the forum and the plaintiffs that is sufficient to ground jurisdiction simpliciter. It is their position that their presence in Ontario has been minor and subject to the condition that they were not submitting to the jurisdiction of Ontario and that only the courts of Ravenna were to have jurisdiction over any issues related to or arising out of the contract between the parties.

23     Given my finding that the choice of jurisdiction clause was not part of the contract between these parties, the question is whether the connection between the defendants and Ontario may be said to have been minor. In my view it was not. The defendants were involved in designing and installing the machinery for Ontario clients. It necessarily involved work in Ontario to install the machinery. This was not a matter of merely filling an order for prefabricated materials that were then shipped to a foreign jurisdiction. Moreover, as the plaintiffs note, it was reasonably foreseeable that in the event that the machines did not function properly, repair work would have to take place here and that, in the event that the machines failed to work properly, any damages would be sustained in Ontario.

Unfairness to the defendants in the assumption of jurisdiction by an Ontario Court

24     The defendants submit that "given the nature of the plaintiff's allegations, the key witnesses on design, manufacturing and capability of the Equipment are in Italy and potential unfairness to the defendants outweighs unfairness of inconvenience to the plaintiffs." Even if this were the case, I do not think that it would constitute unfairness to the defendants. As the plaintiffs' submit, the defendants chose to engage in activities both in and out of Ontario for their commercial benefit that involved an inherent and reasonably foreseeable risk of harm to their customer in Ontario.

The involvement of other parties to the suit

25     This factor is neutral.

Whether the case is interprovincial or international in nature

26     As the defendants submit, the assumption of jurisdiction is more easily justified in interprovincial cases than in international cases: Incorporated Broadcasters Ltd. v. Canwest Global Communications Corp. (2003), 63 O.R. (3d) 431 (Ont. C.A.), at 449 . Although this case is international in nature, this factor is not meant to preclude the assumption of jurisdiction merely because the defendants are international. On these facts, this is a very weak factor.

(viii) Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere

27     As the defendants submit, the Ontario courts have previously recognized and deferred to Italian courts: see Eastern Power Ltd. v. Azienda Comunale Energia & Ambiente, [1998] O.J. No. 4908 (Ont. Gen. Div.); affirmed (1999), 178 D.L.R. (4th) 409 (Ont. C.A.). In that case, foreign proceedings were pending in Italy, and an Ontario court granted the defendant's motion to stay the plaintiff's claim on the basis that Ontario was not a convenient forum. In the present case, there is no judgment from an Italian court. In fact, the parties have now been advised that the hearing of the jurisdictional question in Italy is presently scheduled to take place on April 9, 2008. The plaintiffs argue that this is a situation of so-called "torpedo litigation" in which the defendants commenced an action in a foreign litigation in the hope of pre-empting the assumption of jurisdiction by an Ontario court. While I make no finding on this point, it seems obvious that, were this to be a factor leading automatically to a refusal on the part of Ontario courts to assume jurisdiction, the effect would be that defendants would have incentives to be first off the mark in commencing litigation in foreign jurisdictions.

28     Having applied the factors, and considering them in their entirety, I conclude that the real and substantial connection test has been met in the circumstances of this case.

Forum Non Conveniens

29     The question to be determined in considering whether the court should grant a stay on the basis of the doctrine of forum non conveniens is whether there is clearly a more appropriate jurisdiction in which the case should be tried than the forum chosen by the plaintiff. While it is true, as the defendants submitted, that a plaintiff serving a defendant ex juris bears the onus on this issue, the question of burden is rarely determinative. Rather, as the plaintiffs submitted, the "choice of the appropriate forum will generally resolve itself on the basis of the relative strength of the relevant factors, rather than on the determination of which party is to bear the burden of proof": see Canadian Hydro Components v. 3095-1941 Québec Inc. (2006), 17 B.L.R. (4th) 79 (Ont. S.C.J.) at para. 6.

30     It is well established that the courts consider a wide range of factors. These are:

(i) The location of the majority of the parties;

(ii) The location of key witnesses and evidence and where most of the witnesses reside;

(iii) Contractual provisions that specify applicable law or accord jurisdiction;

(iv) The avoidance of a multiplicity of proceedings;

(v) The applicable law and its weight in comparison the factual questions to be decided;

(vi) Geographical factors that suggest a natural forum;

(vii) Where the contract in dispute was signed;

(viii) The jurisdiction in which the factual matters arose; and

(ix) Any loss of juridical advantage.

After considering these factors, the court should grant a stay only if it is satisfied that there is clearly another forum that is more appropriate for the action and securing the ends of justice: Amchem Products Inc. v. British Columbia (Workers' Compensation Board) [1993 CarswellBC 1257 (S.C.C.)], supra, at 921-31.

The location of the majority of the parties

31     On this criterion, the parties are evenly balanced.

The location of key witnesses and evidence and where most of the witnesses reside

32     IGMI and its witnesses and evidence are in Italy, while Bucci is in the United States. Its involvement is as an agent of IGMI. The plaintiff Linamar and its employees and records are in Ontario. The defendants argue that Linamar has facilities and business in Europe and that its employees regularly travel between North America and Europe, and that its material records could easily be made available in Europe. This argument, however, works the other way as well. IGMI's evidence relating to the design of the machines could easily be made available in Ontario. The equipment is in Ontario. The defendants argue that the equipment has not been operational for some time and is likely to be of little probative value in relation to the performance issues. With respect, this is an issue most appropriately determined by the trial judge. The issues of the performance of the machines, the problems that were encountered and the repairs that had to be made are central to this action. The machines were to operate in Ontario. As was noted in a similar context by Smith J. in Shane v. JCB Belgium N.V., 2003 CarswellOnt 4485 (Ont. S.C.J.) at para. 34:

...In fact, the essence of the claims concerns determining what caused the tractor to catch fire, in Ontario. This will involve expert witnesses examining the tractor, in Ontario. If there is a defect in the tractor's design, then this will be determined by experts examining the tractor, in Ontario.

33     In conclusion, I am of the view that this factor favours the plaintiff.

Contractual provisions that specify applicable law or accord jurisdiction

34     For the reasons discussed above, the provisions relied on by the defendants as specifying choice of jurisdiction did not form part of the contract between the parties and accordingly this factor is neutral.

The avoidance of a multiplicity of proceedings

35     The Italian action was commenced first and involves the same parties and the same subject matter as the Ontario action. The plaintiffs, however, argue that this is a classic example of "torpedo litigation" where the foreign action is commenced with the sole purpose of pre-empting litigation in the (Ontario) forum. They rely on the fact that the Italian action simply claims the outstanding contract price of $688,500 and a negative declaration that IGMI has not breached its obligations under the supply agreement. The plaintiffs also submit that the defendants commenced the Italian proceedings when it realized that the present claims were about to be asserted in Ontario. In addition, the plaintiffs have disputed the jurisdiction of the Italian courts and this issue has not yet been determined. This is not a case where there has already been a decision of a foreign court on the issues: see, by contrast, SVB Underwriting Ltd. v. Fairfax Financial Holdings Ltd., [2007] O.J. No. 518 (Ont. S.C.J.). Given the early stages of the litigation in the present case, the risks of a multiplicity of proceedings are hypothetical at this point. In my view, while this factor may favour the defendants, it is a weak factor in the circumstances. (Molson Coors Brewing Co. v. Miller Brewing Co. (2006), 83 O.R. (3d) 331 (Ont. S.C.J.) at para. 39).

The applicable law and its weight in comparison the factual questions to be decided

36     As I have discussed above, the parties were never ad idem on the issue of applicable law.

37     In any event, and as the plaintiffs submitted, this is a case which is likely to be determined on factual bases. At the heart of the dispute between the parties will be the degree to which the machines performed or failed to perform in accordance with the performance specifications. Any technical or expert evidence will be fact-based.

Geographical factors that suggest a natural forum

38     The machines were assembled and installed at Invar in Ontario. In addition, that is where the efforts to repair them took place and where the machines remain. These are factors that suggest that Ontario is a natural forum. The defendants rely on Bell Helicopter Textron Inc. v. Brown (1991), 55 B.C.L.R. (2d) 310 (B.C. S.C.), for proposition that the place of design that is a natural forum, but, as the plaintiffs noted in oral argument, the court in Bell (which was an anti-suit and not a forum non conveniens case) held that while the place of manufacture was a natural forum it was not the only natural forum. While the machines in this case were designed and manufactured in Italy, they were designed specifically for assembly, installation and use in Ontario, and the lengthy attempts at modification and repairs took place in Ontario. In the present case, Ontario is a natural forum even if Italy is also a natural forum. In applying this factor, I cannot say that Italy is the only natural forum or that it is the more natural forum in all the circumstances.

Where the contract in dispute was signed

39     This issue is very much disputed. I have determined above that the contract was formed while Mr. Jones was on the telephone in Ontario with Mr. Sprenger, who was in North Carolina. In the circumstances, I do not think that this factor adds to the analysis of the forum non conveniens issue in this case.

The jurisdiction in which the factual matters arose

40     Viewed as a whole, I conclude that this factor favours the plaintiffs. They allege that the machines were not delivered to Ontario when they were supposed to be delivered and did not perform there as they were supposed to perform. As the plaintiffs note, the defendant IGMI, in the Italian proceedings, blames Invar for the poor performance of the machines. This raises factual questions about events that occurred in Ontario.

Loss of juridical advantage

41     The plaintiffs submit that a number of the differences between the Italian and the Ontario civil proceedings would constitute the loss of juridical advantage for them if they were forced to litigate this matter in Italy. For example, counsel submitted, experts are appointed by the court in civilian jurisdictions and might be unlikely to travel to Ontario whereas the parties in Ontario would hire their own respective experts whose mandates would be likely to involve travel to the other jurisdiction. Mr. Richler for the plaintiffs also urged the Court to find that the delay issues should be seen as a loss of juridical advantage. I am reluctant to find that differences between Italian procedures and those of Ontario constitute losses of juridical advantages.

42     Although this is by no means a determinative factor, I consider that the fact that the parties conducted all their business in English while a trial in Italy would be conducted in Italian is one that deserves some weight. I do not see, however, that the defendants can claim a loss of juridical advantage by pursuing this litigation in Ontario. The defendants are international corporations which do business in a number of jurisdictions and which, in fact, solicit business internationally. In short, I conclude that this factor does not favour the defendants.

CONCLUSION

43     Having applied all the above considerations to this case, I conclude that Ontario does have jurisdiction simpliciter with respect to this matter and that this is not a case in which this Court should decline to assume jurisdiction on the basis of forum non conveniens. Accordingly, the motion is dismissed. If the parties are unable to agree as to costs, they may make submissions in writing. The plaintiffs, Respondents on the motion, are to file their submissions within 14 days of today's date, and the defendants, Applicants on the motion, within 14 days thereafter.

Motion dismissed.

Go to Case Table of Contents
Pace Law School Institute of International Commercial Law - Last updated June 6, 2008
Comments/Contributions
Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography