360 THE ADVOCATE
VOL. 76 PART 3 MAY 2018
accepted as correct the undertaking of counsel for
the party in breach of the forum selection clause that
that breach could found a claim for damages; Donohue
was cited in the Supreme Court of Canada,
although not for the damages point).
48. See e.g. Daniel Tan & Nik Yeo, “Breaking Promises
to Litigate in a Particular Forum: Are Damages and
Appropriate Remedy?” 2003 LMCLQ 435; Chee
Ho Tham, “Damages for Breach of English Jurisdiction
Clauses: More than Meets the Eye” 2004
LMCLQ 46; Adrian Briggs, “Private International
Law” (2001) 72:1 Brit YB Int’l L 437; Daniel S Tan,
“Damages for Breach of Forum Selection Clauses,
Principled Remedies, and Control of International
Civil Litigation” (2005) 40:4 Tex Int’l LJ 623; Koji
Takahashi, “Damages for Breach of a Choice-of-
Court Agreement” (2008) 10 YB Priv Int’l L 57.
49. Dicey, supra note 46 at 641. For a discussion of the
proper measure of damages, see Albert Dinelli, “The
Limits on the Remedy of Damages for Breach of Jurisdiction
Agreements: The Law of Contract Meets Private
International Law” (2015) 38:3 Melb U L Rev
50. Douez SCC, supra note 6 at para 160.
51. See Tan, supra note 48.
52. See OIC 1378/89 (Court Order Enforcement Act).
53. RSBC 1996, c 78, s 29(6) (for example, the standard
common law defences of fraud and breach of natural
justice are set out in s 29(6); the Act has never been
amended to reflect Morguard Investments Ltd v De
Savoye, 1990 3 SCR 1077, so only judgments satisfying
the traditional rules for jurisdiction in the
international sense can be registered).
54. California Code of Civil Procedure, Cal Civ Pro Code
tit 11, ch 2, §1716 (West 2016).
55. 2011 SCC 15.
56. Ibid at para 2.
57. Loi sur la protection du consommateur, CQLR c P-
40.1, s 11.1 provides as follows:
Any stipulation that obliges the consumer to
refer a dispute to arbitration, that restricts the
consumer’s right to go before a court, in particular
by prohibiting the consumer from bringing
a class action, or that deprives the consumer of
the right to be a member of a group bringing a
class action is prohibited.
58. SO 2002, c 30.
59. Ibid, Sch A, s 7(2). This provision was interpreted
generously by the Ontario Court of Appeal in Griffin
v Dell Canada Inc, 2010 ONCA 29, leave to appeal
ref’d 2010 SCCA No 75, which stated that the
Ontario Act “bans mandatory arbitration clauses in
60. RSA 2000, c F-2.
61. In Young v National Money Mart Company, 2013
ABCA 264, leave to appeal ref’d 2013 SCCA No
399, the Alberta Court of Appeal confirmed that
absent approval of the impugned arbitration clause
by the minister, a stay of a court action would not lie.
62. Business Practices and Consumer Protection Act, SBC
2004, c 2.
63. This is how the SCC interpreted BC’s statute.
64. For a discussion of the differing approaches to when
statutory claims subject to court jurisdiction and
claims subject to arbitration ought to be severed or
kept together under the jurisdiction of the court, see
Shelley McGill, “This Is the Law That National Money
Mart Built: One Company’s Role in Constructing
Canadian Consumer Arbitration Law” (2014) 56:1
65. SK CJPTA, supra note 12, s 10.
66. See Microcell, supra note 13; Hudye Farms Inc v
Canadian Wheat Board, 2011 SKCA 137.