Summary

Keywords

Private international law — Jurisdiction simpliciter — Forum non conveniens — International insurance coverage dispute — Claims for indemnity against liability insurers for environmental expenses related to mining sites — Meaning of “carrying on business” — What is the applicable test for carrying on business under Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, and should the minimum contacts analysis be reintroduced into this test? — Does the judgment of the Court of Appeal run counter to the principle of order and predictability embraced by Canadian private international law on jurisdiction? — Does the approach of the Court of Appeal regarding jurisdiction simpliciter exceed recognized constitutional limits, implicitly opening up the risk of “universal jurisdiction”?

Summary

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The application for leave to appeal arises from a jurisdiction dispute in the context of insurance coverage actions commenced in Ontario regarding indemnity for expenses incurred by a mining company — the Vale respondents — to defend six Ontario legal proceedings and remediate sites located in Ontario and elsewhere around the globe on environmental grounds. The applicant, North River Insurance Company (“North River”), is an American insurance company who issued excess insurance policies to Vale’s predecessor. North River moved to dismiss the Ontario actions for lack of jurisdiction. The motion judge found that the North River policies were issued, delivered, and received in New York, and accordingly not made in Ontario. He found that North River had no connections with Ontario at the time the policies were sold, and therefore was not carrying on business in Ontario. The Court of Appeal reversed the motion as regards North River. It concluded that North River was carrying on business in Ontario for the purpose of the jurisdiction analysis, noting that the lack of licensing, registration, any physical presence in Ontario, or lack of the policies being made in Ontario, was not determinative of the carrying on business test.

Lower Court Rulings