Labour & Employment Law Blog

Choice of Forum Clause Circumvented by Court of Appeal

Zeilikman Law

Zeilikman Law

Case Summary

The Court of Appeal hit the ground running in 2017, having already released 22 decisions as of January 16. This particular case involved an appeal of a failed motion for summary judgment brought by the plaintiff-appellants. At the motion hearing for summary judgment, Justice Edward M. Morgan of the Superior Court found that the Court had no jurisdiction over the dispute due to a “choice of forum clause” as agreed to by both parties, which required that all disputes were to be resolved in the Cayman Islands. The Court of Appeal overturned Justice Morgan’s ruling, granting summary judgment in favour of the plaintiffs, awarding them $1,052,706.31 USD plus interest and legal costs.


In this case, the plaintiff-appellants gave to the defendants money to invest on behalf of the plaintiffs into a specific fund. Instead of investing the money as agreed upon, the defendants diverted it to third-party companies associated with the defendants. The plaintiffs’ lawyer sent a letter demanding repayment of the money on October 8, 2015, and when that didn’t work, the plaintiffs initiated a lawsuit on October 30, 2015. A motion for summary judgment was promptly set down.

At the hearing for summary judgment, the defendants argued that the Subscription Agreement—which contained the terms upon which the money in issue was paid to the defendants—contained a “choice of forum clause” dictating that any disagreement would be dealt with by the courts located in the Cayman Islands. Specifically, the choice of forum clause stated:

“…any action or proceeding arising, directly, indirectly, or otherwise, in connection with, out of, related to, or from, this Application Form for Subscription or the purchase of the Participating Shares, or any transaction covered hereby, shall be resolved, whether by arbitration or otherwise, exclusively within the Cayman Islands.”

The motion judge found that the clause did apply to the action, thereby rendering the Ontario courts without jurisdiction to hear the dispute and award remedies. The Court of Appeal, however, found that this action was in essence one for the misappropriation of funds and therefore did not arise out of the Subscription Agreement. As a result, the choice of forum clause did not apply and the Ontario courts did have jurisdiction to hear the case and award remedies.


This case serves as a reminder of the importance of properly characterizing the cause of action when initiating a lawsuit. In the plaintiffs’ statement of claim, they characterized their action against the defendants as one of breach of contract. By formulating the action as one for breach of contract, the defendants were granted more opportunity to draft creative arguments about contract interpretation and enforceability. This was not a fatal mistake for the defendants, however, due to the fact that Ontario courts have the power to look beyond the specific cause of action(s) pleaded. This is not to say that pleadings don’t matter, or that courts will “read-in” a cause of action when it is unsupported by the facts. Courts focus on the material facts contained in an initiating procedure and exercise discretion in determining whether any cause(s) of action apply, even if they were not specifically pleaded. This stems from the fact that Ontario Courts are disinclined to bar actions based on purely procedural grounds. Nevertheless, it is always best to draft initiating procedures strategically so as to ensure the cause of action as pleaded gives you the greatest chances of success by giving you the easiest and most straight-forward route to reaching your objective.

W&W Fiberglass Tank Co. Profit Sharing Plan v Bartholomew, 2017 ONCA 4.

The above article is for general information purposes only, does not constitute legal advice or create a solicitor-client relationship. Because each case is unique and factually driven, if you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere. We represent clients in the Greater Toronto Area including Toronto, North York, Markham, Vaughan, Thornhill, Newmarket, Aurora, Brampton, Mississauga, Barrie, Ajax, Whitby, Pickering and Oshawa.

Legal Receptionist

Zeilikman Law is an employment law firm located in Vaughan, Ontario. We are looking to hire a legal receptionist to join our firm. Preference will be given to candidates who have experience working as a receptionist at another law firm.

Location: Vaughan, Ontario.

Start Date: Immediately.

Hours: Monday to Friday, 9 am to 5 pm. Full time. In-person only. This is not a remote work position.

Wages: 35,000 to 40,000 per year.

Duties and Responsibilities:

  • Manage our firm’s multi-line telephone system to receive incoming calls.  Screen incoming telephone call inquiries to determine the nature of the telephone call and provide standard information related to our legal services.  Take and deliver messages and route incoming telephone calls to the appropriate staff person.
  • Answer general inquiries coming from the firm’s social media and website email.
  • Welcome in-person visitors upon arrival.  Direct visitors to the appropriate staff person and / or office or boardroom.
  • Organize in-person visitor schedule to prevent overlap and multiple bookings.
  • Receive, sort, and distribute daily mail and deliveries.
  • Arrange for couriers.
  • Keep front reception, kitchenette area and boardroom tidy.
  • Perform various clerical duties such as filing, photocopying, and faxing on an as-needed basis.
  • Process client or other payments.
  • May be asked to run minor errands outside of office such as attending post office to arrange a courier or pick up mail.
  • May be asked to assist other law clerks or lawyers of the firm as required and as appropriate.
  • Any other basic administrative duties or tasks as deemed appropriate.

Required Skills:

  • Basic knowledge of general office procedures including filing, faxing, and printing and copying.
  • Basic word processing computer skills.
  • Proficient in receptionist and telephone practices, etiquette, and decorum.
  • Professional attitude and appearance.
  • Excellent organizational skills.
  • Positive customer service attitude is a must.
  • Must be able to maintain confidential and sensitive information.

Education and Experience:

  • Highschool diploma or equivalent.
  • 1 – 2 years’ experience in an office setting with an emphasis in accounting, reception or clerical work is required.   We would prefer experience in a law firm environment.

Applications for this position should be sent via email to jennifer@zeilikmanlaw.com. All applications should include a cover letter, resume and at least two references. Only successful candidates will be contacted.