Karen S. Kuzmowich

The plaintiffs, assignees of a bankrupt Ontario corporation, brought actions against two Iranian state-owned oil and drilling companies for breach of contract, conversion, and conspiracy arising from oil drilling operations in Iran.

The defendants appealed the dismissal of their motions to stay the actions for want of jurisdiction.

The Court of Appeal allowed the appeals in part, staying the action against the oil company based on a forum selection clause in favour of Iran, and staying part of the action against the drilling company for lack of a real and substantial connection to Ontario.

The court allowed the claim based on a 1998 contract to proceed in Ontario due to a valid forum selection clause in favour of Ontario.

The defendant moved for leave to appeal a decision refusing to strike out an affidavit submitted by the plaintiffs.

The defendant argued the affidavit was improper sur-reply and constituted case-splitting, relying on trial evidence rules.

The court dismissed the motion, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's decision.

The court affirmed that the strict evidentiary rules against case-splitting at trial do not apply to the filing of affidavits on motions under Rule 39.02.