Jennifer Singh

Wal-Mart Canada Corporation moved for summary judgment on its crossclaim against United Services Group, alleging breach of a facilities maintenance agreement.

Wal-Mart claimed United failed to name it as an additional insured on a liability policy, seeking defence costs and indemnification after the plaintiff slipped and fell at the premises.

The court granted partial summary judgment, finding that United breached the agreement by failing to name Wal-Mart as an additional insured, which would have triggered a duty to defend.

However, the court determined that the issue of United's duty to indemnify Wal-Mart and the quantification of damages required a trial, as it was premature to conclude whether the plaintiff's fall directly arose from United's specific contractual cleaning obligations.

Acasi Machinery Inc. brought a motion to stay an action commenced by Jeremy Kessler Canadian Mustard Inc. o/a Kozlik’s Mustard in Ontario, arguing that a forum selection clause in their contract mandated disputes be resolved in Florida.

The court dismissed the motion, finding strong reasons to avoid the clause.

The clause was neither negotiated nor brought to Kozlik's attention, indicating an unequal bargaining power.

The court also applied the Moran principle, stating that manufacturers should expect to defend negligence claims where their products are used, and noted that the availability of Zoom reduces the significance of witness location in determining the convenient forum.

Ontario was found to have a real and substantial connection and to be the convenient forum.