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When all fora are online, what is a forum?

May 20, 2021

The Ontario Court of Justice asks: “In the age of Zoom, is any forum more non conveniens than another?”

In a motion brought to stay proceedings in the Ontario court in favour of an arbitration in Chicago, the Ontario Superior Court of Justice had to grapple with time-worn arbitration and conflicts of laws questions, but through a completely novel lens. Justice Mogan commenced the  reasons in Kore Meals LLC v. Freshii Development LLC:

[1]               In the age of Zoom, is any forum more non conveniens than another? Has a venerable doctrine now gone the way of the VCR player or the action in assumpsit?

The plaintiff, Kore Meals LLC, and defendant, Freshii Development LLC, were parties to a Development Agent Agreement that contained an arbitration clause that called for arbitration in the city of the defendant's head office, which was named as Chicago. The plaintiff wanted to litigate in the courts in Ontario, named as a co-defendant the parent company of Freshii Development that was based in Ontario, and pointed to the fact that the defendant’s only presence in Chicago was a mailbox. The defendant had no office or personnel in Chicago.

In the usual course, an arbitrator would be called upon to determine whether the case was arbitrable. Because that arbitration necessarily “sit” in Chicago, the plaintiff said that would be unfair and impractical, as it is that venue that is being challenged. When asked where the American Arbitration Association is located, both parties counsel indicated they were unsure as all submissions would be made online. When asked if the proceeding would similarly be online, counsel advised the court that would likely be the case in light of the pandemic. With this information, the court wrote:

[29]           All of which undermines the majority of forum non conveniens factors. If hearings are held by videoconference, documents filed in digital form, and witnesses examined from remote locations, what is left of any challenge based on the unfairness or impracticality of any given forum? To ask the question is to answer it. Freshii Developments may have a miniature post office box or an entire office tower in Chicago, and witnesses or documents may be located in Canada’s Northwest Territories or in the deep south of the United States, and no location would be any more or less convenient than another.

Following consideration of the fact that there would likely be no issue of enforcement of any arbitral award issued by an American arbitrator, the court concluded that location is currently largely irrelevant:

[31]           It is by now an obvious point, but it bears repeating that a digital-based adjudicative system with a videoconference hearing is as distant and as nearby as the World Wide Web. With this in mind, the considerable legal learning that has gone into contests of competing forums over the years is now all but obsolete. Judges cannot say forum non conveniens we hardly knew you, but they can now say farewell to what was until recently a familiar doctrinal presence in the courthouse.

[32]           And what is true for forum non conveniens is equally true for the access to justice approach to the arbitration question. Chicago and Toronto are all on the same cyber street. They are accessed in the identical way with a voice command or the click of a finger. No one venue is more or less unfair or impractical than another.

The defendant’s motion for a stay was granted in favour of arbitration as contemplated in the agreement.

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