Jurisdiction Motions and Access to Justice : An Ontario Tale

This article investigates the access to justice concerns surrounding jurisdiction motions in Ontario, taking inspiration from a 2015 Ontario Superior Court decision that held that jurisdiction motions are ripe for abuse and impeding access to justice. In Part I, the author summarizes the uncertain state of the law of jurisdiction in Canada, and the current access to justice crisis. In Part II, he describes his methodology for analyzing one hundred and forty-seven jurisdiction motions decided in Ontario between January 1, 2010 and December 31, 2015. In Part III, the author discusses the access to justice issues raised by jurisdiction motions after analyzing trends and figures regarding the number of motions brought, their success rates, their cost in time and money, and whether they involved choice of forum clauses. He challenges the view that jurisdiction motions are presently being “abused” by defendants and/or their counsel. He also suggests that trends in jurisdiction motions this decade point to some improvement from an access to justice perspective. Nonetheless, jurisdiction motions are frequently presenting an impediment to access to justice, with uncertainty in the law likely being the primary reason for this. In Part IV, the author considers potential proposals to address the access to justice concerns inherent in jurisdiction motions, from a leave requirement to reconsidering the law on attornment to reconsidering the substantive law of jurisdiction or adopting the Court Jurisdiction and Proceedings Transfer Act (“CJPTA”). He ultimately concludes that addressing uncertainty surrounding the substantive law of jurisdiction is the most obvious way forward. Adopting the CJPTA has particular potential, though the “forum of necessity” provision therein could be a double-edged sword from an access to justice perspective