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Back To The Stampede: Court Upholds Forum Selection Clause Requiring Copyright Action To Return to Alberta

In Bull Run Productions Inc. v. Wild TV Inc., 2016 NSSC 315 the Supreme Court of Nova Scotia upheld a forum selection clause and required a copyright owner to bring its action for infringement in Alberta.

Bull Run, a federal corporation operating in Nova Scotia, produced a television program which it licensed to Wild TV, an Alberta corporation, for airing on Wild TV’s media network. The parties licensing agreements expired by mid-2012. In 2016, Bull Run learned that episodes of its program were being aired by Wild TV. Bull Run commenced an action in Nova Scotia for copyright infringement for Wild TV having aired, offered for sale or otherwise distributed the episodes after the end of the licensing period.

Each of the parties’ licensing agreements contained a forum selection clause stipulating that the jurisdiction and venue for any dispute “involving or arising out of” the agreements would be the appropriate federal and provincial courts in Edmonton, Alberta. Wild TV brought a motion seeking an order dismissing the action for want of jurisdiction or, in the alternative, staying this proceeding against the defendant. The Court held that it had territorial competence and jurisdiction to hear the matter, but upheld the forum selection clause in the parties’ licensing agreements and stayed the proceeding. Bull Run argued that the agreements did not relate to its copyright infringement claim, which fell outside the scope of the agreements since they expired years earlier. The Court held that the dispute “involves” the licensing agreements since Wild TV asserted it would be relying on various clauses in the agreements for its defence. The dispute was thus caught by the broad language of the forum selection clause.

The Court went on to consider the “strong cause” test which is applied when determining whether a court’s discretion ought to be exercised in favour of or against enforcement of such a clause. In short, the question is whether the plaintiff has shown that there is strong cause that the case is exceptional such that the forum selection clause ought not to be enforced. The relevant factors that may justify departure from the presumption of enforcement of a forum selection clause were set out in Expedition Helicopters Inc. v. Honeywell Inc., 2010 ONCA 351:

  1. the plaintiff was induced to agree to the clause by fraud or improper inducement or the contract is otherwise unenforceable;
  2. the court in the selected forum does not accept jurisdiction or otherwise is unable to deal with the claim;
  3. the claim or the circumstances that have arisen are outside of what was reasonably contemplated by the parties when they agreed to the clause;
  4. the plaintiff can no longer expect a fair trial in the selected forum due to subsequent events that could not have been reasonably anticipated; or
  5. enforcing the clause would frustrate some clear public policy.

The Court held that none of the factors arose in the present case and that there was no suggestion that the defendant was relying on the clause to gain an unfair procedural advantage. The inconvenience to the Plaintiff in having to assert its claim in Alberta did not justify permitting the Plaintiff to resile from its agreement to tolerate that inconvenience. Where a court upholds a forum selection clause and declines to exercise its own jurisdiction, the appropriate remedy is a judicial stay of proceedings, which the Court ordered.

A copy of the judgment can be found here.