


COURT OF APPEAL FOR ONTARIO

CITATION: Sleep Number Corporation v. Maher Sign Products Inc., 2020 ONCA 95

DATE: 20200207

DOCKET: C67005

MacPherson, Sharpe
    and Jamal JJ.A.

BETWEEN

Sleep
    Number Corporation

Plaintiff (Respondent)

and

Maher Sign Products Inc.

Defendant (Appellant)

Mark Adilman, for the appellant

David A. Ziegler, for the respondent

Heard: February 4, 2020

On appeal from the
    order of Justice Paul Perell of the Superior Court of Justice, dated April 23,
    2019, with reasons reported at 2019 ONSC 2478.

REASONS FOR DECISION

[1]

The appellant did not defend an action brought by the
    respondent in Minnesota for damages for the supply of defective goods. The
    respondent obtained default judgment in Minnesota and then brought this action
    in Ontario to enforce the Minnesota judgment. The motion judge granted summary
    judgment enforcing the Minnesota judgment.

[2]

The appellant raises three grounds of appeal.

(1)

Jurisdiction clause

[3]

The appellants central argument is that the motion
    judge erred by refusing to hold that a provision in the initial quotation,
    provided by the appellant for the proposed supply of signs to the respondent,
    ousted the jurisdiction of the courts of Minnesota. The quotation stated that
    the agreement was to be interpreted in accordance with Ontario law and that the
    respondent hereby attorns to the jurisdiction of the Courts of Ontario for the
    purpose of pursuing any legal remedies.

[4]

The motion judge noted that the respondent had
    reasonably strong arguments that the jurisdiction clause in the quotation did
    not apply to any or all of the sales contracts between the appellant and the
    respondent, or if it did, that it did not amount to an exclusive jurisdiction
    clause. He proceeded to find that, even assuming it was an exclusive
    jurisdiction clause, it did not oust the jurisdiction of the Minnesota courts.

[5]

It is well-established that a permissive forum
    selection clause does not deprive another forum of jurisdiction
simpliciter
, but is relevant to whether that other forum should exercise its
    jurisdiction:
2249659 Ontario Ltd. v. Sparkasse Siegen
, 2013 ONCA 354, 115 O.R. (3d) 241, at para. 25. Before us, the
    appellant concedes that if the clause in the quotation does not amount to an
    exclusive jurisdiction clause, the appeal fails.

[6]

We find that the forum selection clause is
    permissive rather than exclusive. As a result, we do not find it necessary to
    decide how this appeal would be decided if the clause did confer exclusive
    jurisdiction on the courts of Ontario.

[7]

The clause bears striking similarity to clauses that
    other courts have refused to characterize as conferring exclusive jurisdiction.
    It provides that the respondent attorns (in other words, accepts, submits or
    yields) to Ontario jurisdiction and says nothing that excludes the jurisdiction
    of another possible forum.
We do not agree that the words in the clause
    applying it to the pursuit of any legal remedies amount to a conferral of
    exclusive jurisdiction. The word any refers to legal remedies and has no
    bearing on choice of forum.
In
Old North State
    Brewing Company Inc. v. Newlands Services Inc.
(1998)
, 58 B.C.L.R. (3d) 144, at para. 35,
    the B.C. Court of Appeal held that an agreement that the parties will attorn
    to the jurisdiction of the Courts of the Province of British Columbia did not
    meet the standard of clear and express language  required to confer
exclusive
jurisdiction and that it would
    have been a simple matter to add the word exclusive if that was what was
    intended. See also
Hollinger International v. Hollinger Inc
.,
2005 CanLII 4582 (Ont. Div. Ct.), to the
    same effect with regard to an agreement that each of the parties hereby
    irrevocably attorns to the jurisdiction of the courts [of Ontario].


[8]

Accordingly, the forum selection
clause
    does not rule out Minnesota jurisdiction. As the motion judge held, it is well
    accepted that there will often be more than one jurisdiction that is entitled
    to assert jurisdiction over a given dispute. The existence of another possible
    forum that has jurisdiction does not deprive the forum selected by the claimant
    of its jurisdiction.

[9]

The appellant did write to the Minnesota court
    to advise that in light of the wording of the quotation, it would not respond
    to the claim. However, the appellant chose not to go before the Minnesota court
    to raise the issue of jurisdiction or to ask the Minnesota court to exercise
    its discretion to decline jurisdiction.

[10]

The respondent argued that the clause did not
    deprive the Minnesota court of jurisdiction. The Minnesota court found that the
    appellant had not taken appropriate steps to respond to the proceeding and took
    jurisdiction. The appellant could have appeared in Minnesota to contest
    jurisdiction without submitting to Minnesota jurisdiction: see Walker,
Canadian
    Conflict of Laws
(6
th
ed) (LexisNexis,
    loose-leaf) at p. 14-20.06. The appellant cannot now complain that the
    Minnesota court should have refused to assume jurisdiction and decide the case.

(2)

Real and substantial connection

[11]

The appellant submits that the motion judge
    erred by holding that there was a real and substantial connection sufficient to
    support the jurisdiction of the Minnesota courts.

[12]

We see no error in the motion judges finding
    that there was a real and substantial connection with Minnesota. The respondent
    is a Minnesota corporation with its principal place of business in that state.
    There is evidence indicating that the appellant went to Minnesota to solicit
    the respondents business. The contract was largely negotiated in Minnesota and
    performed by the delivery of products to Minnesota. The appellants effort to
    repair alleged defects in the products it supplied occurred in Minnesota. The
    motion judge did not err by concluding that those facts satisfy the real and
    substantial connection test.

(3)

Public policy

[13]

Finally, we do not accept the argument that it
    would be contrary to public policy to enforce the Minnesota judgment. The
    public policy defence is a narrow one and does not apply to the decision of a
    foreign court to decline jurisdiction in the face of a venue clause. Nor is it
    contrary to public policy for a court to entertain a case with a real and
    substantial connection to the forum and to apply the forums limitation legislation
    rather than that of another jurisdiction.

Disposition

[14]

Accordingly, the appeal is dismissed with costs
    to the respondent fixed in the amount agreed to by the parties: $20,000
    inclusive of taxes and disbursements.

J.C.
    MacPherson J.A.

Robert
    J. Sharpe J.A.

M.
    Jamal J.A.

