350 THE ADVOCATE
VOL. 76 PART 3 MAY 2018
ary factors might not have justified a finding of strong cause, was the KWG
Panel suggesting that these factors should be given less weight in that context
than they would in a forum non conveniens analysis?
The second complicating factor for counsel relates to the burden of proof.
The burden of establishing the relevant factors will be different under the
strong cause test and the forum non conveniens analysis. Under the former,
it will be on the party resisting application of the forum selection clause;
under the latter, it will be on the party who originally was advocating for
application and enforcement of the forum selection clause (who, having
lost on strong cause, is now asking the local court to decline jurisdiction
under s. 11 of the CJPTA or common law forum non conveniens).
Establishing many of these factors will require more than just a bald
assertion that they are present. For example, expert evidence may be
required to establish the potential problems with recognition and enforcement
of a local judgment in other relevant jurisdictions, or the likelihood
that a party will not receive a fair trial in the alternate jurisdiction.
In short, a party seeking to overcome a forum selection clause will have
to assess which factors will assist them in making out strong cause and be
prepared to lead evidence on the given factors where appropriate. In deciding
whether or not to lead evidence to counter the applicant’s evidence on
the strong cause test, the opposing party should keep in mind that if strong
cause is made out, they will need to be equipped with evidence to meet
their burden under forum non conveniens.29
Is There a Modified Strong Cause Test for Consumer Contracts?
The KWG Panel stated explicitly that they were modifying the strong cause
test in the consumer context.30 They stated that in this context, courts
should take account of all the circumstances of the particular case.31 This is
not in and of itself a modification.
However, they went on to state that, in the context of a consumer contract,
the courts should consider public policy considerations relating to the
gross inequality of bargaining power between the parties and the nature of
the rights at stake. They emphasized that gross inequality of bargaining
power could be considered at both stages of the strong cause test (i.e., not
just when considering whether the clause was unconscionable at the first
stage). The policy reasons for holding parties to their bargain carry less
weight, according to the KWG Panel, when there is no opportunity for the
consumer to negotiate a forum selection clause.
In applying their modified strong cause test and finding that Ms. Douez
had established strong cause not to enforce the forum selection clause, the
KWG Panel emphasized the following considerations: