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some to conclude that forum selection clauses should be treated simply as
one of the factors under s. 11 (a position put forward by Ms. Douez).
But in decisions leading up to Douez, lower courts, including the B.C.
Court of Appeal in Douez itself, had concluded that the strong cause test
should be applied separately, in advance of the statutory forum non conveniens
analysis, as it had been at common law, prior to the enactment of the
CJPTA. The SCC confirmed that this is the correct approach.15
Therefore, if the clause survives the first step of the strong cause test, and
the party seeking to avoid its application does not make out strong cause
under the second step, then the local court will not get to a s. 11 CJPTA
(forum non conveniens) analysis.
If, however, strong cause for not enforcing the forum selection clause is
made out, then the party who sought to rely upon it still has the opportunity
to seek a stay under s. 11 of the CJPTA (or the common law doctrine of forum
non conveniens in non-CJPTA jurisdictions).
THINGS THAT ARE LESS CERTAIN POST-DOUEZ
Relevant Factors and Burden and Mode of Proof
While the direction to apply the strong cause test and forum non conveniens
analysis as distinct steps sounds simple, there are practical challenges that
arise for litigation counsel due to the overlap between the factors considered
under each test and the evidence that may be required to make them out.
First, there is the question of what factors are relevant to each of the
steps. While counsel might prefer a definitive list of factors to be considered
under each of the steps, no such list emerges from the jurisprudence.
In Z.I. Pompey Industrie v. ECU-Line N.V.,16 the SCC cited with approval
the English decision The “Eleftheria”,17 in which Brandon J. held that in exercising
its discretion to grant a stay based on a forum selection clause, the
court should take into account “all the circumstances of the particular case”
and then listed factors similar to those considered under the forum non conveniens
Acknowledging the “similarity between the factors” the court had to
weigh under the two scenarios,19 the SCC in Z.I. Pompey endorsed the consideration
by the prothonotary in the Federal Court of factors going to comparative
convenience and expense of proceeding as between the two
forums and factors going to the interests of justice.20 It is difficult to distinguish
between these factors and those listed in SCC decisions on forum non
conveniens21 and in s. 11 of the CJPTA.22
However, post-Z.I. Pompey and prior to Douez, there were decisions of
appellate courts that listed a narrower range of considerations—i.e., not the