SUPERIOR COURT OF JUSTICE - ONTARIO
RE: McTavish Law PLC v. Denenberg Tuffley PLLC
BEFORE: Associate Justice Rappos
COUNSEL: Roland Schwalm, for the Plaintiff
Nour Jomaa, for the Defendant
HEARD: February 17, 2026 (via videoconference)
REASONS FOR DECISION
Overview
[1] The Defendant, Denenberg Tuffley, PLLC, brings a motion under section 106 of the Courts of Justice Act for an order staying the action commenced by the Plaintiff, McTavish Law PLC.[1]
[2] The parties are both legal professional liability corporations incorporated in the State of Michigan. They entered into a master co-counsel agreement, as well as separate retainer agreements, under which McTavish was retained to assist with the prosecution of litigation in Alberta for Denenberg’s clients.
[3] In its claim, McTavish alleges that Denenberg owes it US$217,380 for the services it provided with respect to the litigation. McTavish says that Denenberg has been unjustly enriched regarding the legal services it provided to Denenberg.
[4] Denenberg argues that a stay of the action is appropriate, as there is a valid, clear and enforceable forum selection clause in the master co-counsel agreement which provides that any lawsuit between the parties must be filed in Michigan. Additionally, Denenberg argues that Michigan is clearly the more appropriate forum under the doctrine of forum non conveniens.
[5] McTavish argues that this Court is the appropriate forum for this action, as it deals with the actions taken by Christopher Chekan, a lawyer with McTavish, in his capacity as an Ontario lawyer acting as counsel of record in the two actions brought in Alberta on behalf of Denenberg’s clients.
[6] For the reasons that follow, Denenberg’s motion is granted, as Ontario is not the proper forum for this action due to the forum selection clause and the application of the doctrine of forum non conveniens.
Legal Principles
[7] Section 106 of the Courts of Justice Act provides that a court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.
[8] In Pesorama Inc. v. Borden Ladner Gervais LLP and Robb McNaughton, the Divisional Court held that an associate judge has jurisdiction under section 106 to determine the proper forum on the basis of a forum selection clause and forum non conveniens.[2]
[9] The Supreme Court of Canada has held that forum selection clauses serve a valuable purpose and are commonly used and regularly enforced.[3]
[10] Where no legislation exists that overrides the clause, courts are to apply a two-step approach to determine whether to enforce a forum selection clause and stay an action brought contrary to it.[4]
[11] The first step is to determine whether the party seeking a stay based on the forum selection clause has established that the clause is valid, clear and enforceable and that it applies to the cause of action before the court.[5] At this step, the court applies the principles of contract law to determine the validity of the forum selection clause. The plaintiff may resist the enforceability of the contract by raising defences such as unconscionability, undue influence, and fraud.[6]
[12] If the party seeking a stay establishes the validity of the forum selection clause, the onus shifts to the plaintiff for the second step. The plaintiff is required to show strong reasons why the court should not enforce the forum selection clause and not stay the action.[7] This is referred to as the “strong cause” test. In exercising its discretion at this step of the analysis, the court must consider all the circumstances, including the convenience of the parties, fairness between the parties, and the interest of justice.[8] Public policy may also be a relevant factor at this step.[9]
[13] The strong cause factors were meant to provide some flexibility. There is not a closed list of factors governing the court’s discretion to decline to enforce a forum selection clause.[10] However, the strong cause factors have been interpreted and applied restrictively in the commercial context.[11]
[14] In Z.I. Pompey Industrie v. ECU-Line N.V., the Supreme Court held that it is essential that courts give full weight to the desirability of holding contracting parties to their agreements.[12]
[15] With respect to forum non conveniens, in Young v. Tyco International of Canada Ltd., the Court of Appeal held that a motion judge, in exercising discretion, shall consider certain factors to assess the connection to each forum, including: (1) the location where the contract in dispute was signed; (2) the applicable law of the contract; (3) the location of witnesses, especially key witnesses; (4) the location where the bulk of the evidence will come from; (5) the jurisdiction in which the factual matters arose; (6) the residence or place of business of the parties; and (7) the loss of a legitimate juridical advantage.[13]
[16] These factors are not exhaustive, and all of the factors may not be relevant in a given case. The exercise of discretion by the motion judge is not mathematical, and motion judges assign each factor the weight they consider appropriate to the case.[14]
Analysis
Preliminary Matter
[17] As a preliminary matter, McTavish argues that Denenberg is procedurally barred from bringing its motion since it filed a notice of intent to defend and a Statement of Defence and as a result attorned to the jurisdiction of the Ontario court.
[18] I do not accept this argument. In Momentous.ca Corp. v. Canadian American Association of Professional Baseball Ltd., the Supreme Court of Canada held that a statement of defence that specifically pleads a forum selection clause does not amount to consent that Ontario assumes jurisdiction so as to preclude consideration on the merits of whether to enforce the clause.[15]
[19] Paragraphs 4 through 8 of the Statement of Defence clearly states Denenberg’s position that this Court does not have jurisdiction over the subject matter of the dispute and that it would be bringing a motion to dismiss or stay the action.
[20] Additionally, while the delivery of a notice of intent to defend or statement of defence may preclude a party from seeking an order dismissing or staying the proceeding under subrule 17.06(1)(b) of the Rules of Civil Procedure, no law had been provided in support of the proposition that such prohibition applies to a motion under section 106 of the Courts of Justice Act.
[21] Lastly, McTavish’s argument also fails on the facts, since the evidence is that counsel to McTavish denied a request made by Denenberg for an extension of the time to deliver its statement of defence. Denenberg’s evidence is that the extension was sought to provide it with sufficient time to retain Ontario legal counsel and bring a motion to challenge the jurisdiction of the Ontario court. As a result of McTavish’s denial, Denenberg served its Statement of Defence to avoid being noted in default. Counsel to Denenberg stated in its e-mail serving the Statement of Defence that it was served in protest and for procedural compliance only, and it would be moving to dismiss or stay the claim due to jurisdictional issues.
[22] As a result, I find that Denenberg is not precluded from bringing its motion under section 106 because it served and filed a notice of intent to defend and a statement of defence.
Forum Selection Clause
[23] McTavish and Denenberg entered into a Master Co-Counsel Agreement dated November 26, 2019. The Agreement provides that Denenberg may decide that it is in the best interests of its clients for it to associate with McTavish “on certain matters that implicate the law of one of Canada’s provinces”. This would allow McTavish to act as co-counsel to represent Denenberg’s clients in a proceeding.
[24] The Agreement contemplated that a separate retainer agreement would be executed by the parties on a file-by-file basis. The Agreement noted that “McTavish’s practice also spans North America, including the various provinces of Canada…McTavish’s attorneys included one attorney called to the bar in Ontario.”
[25] The parties entered into a retainer agreement dated August 19, 2020 with respect to Paramount Resources Ltd., which was an insured party for Denenberg’s client. The parties also entered into a retainer agreement dated October 23, 2020 with respect to Rocky Mountain Dealerships, Inc., which also was an insured party for Denenberg’s client.
[26] Each of the retainer agreements provide that they “incorporates [sic] the Master Co-Counsel Agreement between [Denenberg] and McTavish by reference”.
[27] Each agreement also provides that “McTavish will do any and all tasks it deems necessary to comply with the applicable rules of practice and ethics for Alberta”.
[28] Denenberg relies on the following clause from the Agreement in support of its motion:
DT and McTavish further agree that any lawsuit between them arising from this Agreement and any file specific co-counsel retainer agreement between DT and McTavish executed hereunder must be filed in the Oakland (Michigan) County Circuit Court, if the monetary value of the dispute meets the jurisdictional minimum for that Court…
[29] Denenberg argues that the clause is clear and valid, and was freely negotiated at arm’s length between two sophisticated Michigan law firms. Denenberg asks that the forum selection clause be enforced by the Court.
[30] McTavish’s position is that the forum selection clause does not bind the parties and does not apply for two reasons. The first is that the issues between McTavish and Denenberg are with respect to whether McTavish was entitled to withdraw as counsel of record for Denenberg’s client under the Alberta Rules of Professional Conduct and Rules of Practice due to lack of instructions, and its authority to do so under the terms of the retainer agreements.
[31] The second reason is because McTavish says its claim is an equitable claim of unjust enrichment and its remedy is quantum meruit. McTavish argues that its claim is not based on contract, be it the Agreement or the separate retainer agreement.
[32] I do not accept either submission.
[33] On reviewing the pleadings, there are ample examples that this action is with respect to McTavish’s request to be paid for legal services it says it provided to Denenberg’s clients. Those services were performed because McTavish and Denenberg agreement to have such a relationship pursuant to the terms of the Agreement and the separate retainer agreements.
[34] McTavish’s Notice of Action issued June 28, 2024 says that it seeks payment of damages “regarding legal services McTavish Law provided to Denenberg Tuffley that it has refused to pay McTavish Law”.[16] The Statement of Claim issued July 26, 2024 says that Denenberg “has refused to pay McTavish Law for its work on both cases”,[17] that “McTavish Law sent a demand letter to Denenberg Tuffley to pay McTavish Law’s fees and costs regarding its work for Paramount Resources,”[18] that “McTavish Law sent a demand letter to Denenberg Tuffley to pay McTavish Law’s fees and costs regarding Rocky Mountain Dealerships,”[19] and that “Denenberg Tuffley has not paid McTavish Law for its above services.”[20]
[35] In its Statement of Defence dated October 25, 2024, Denenberg alleges that the agreements entered into by the parties provide that McTavish will be paid on a contingent fee basis from the contingent fee Denenberg would receive from any gross recovery secured by Denenberg and McTavish for Denenberg’s clients.[21]
[36] This is not, in my view, a case about whether McTavish was entitled to withdraw as counsel of record for Denenberg’s client under the Alberta Rules of Professional Conduct and Rules of Practice. This case is about whether McTavish is entitled to payment for the services it says it provided to Denenberg’s clients in proceedings commenced in Alberta in a situation where McTavish alleges that there was a breakdown in the relationship between the parties that required it to go off the record. McTavish’s main issue was that it says it was unable to obtain instructions from Denenberg and could not seek those instructions directly from Denenberg’s clients because it was prohibited to do so under the Agreement and the retainer agreements.
[37] In the Statement of Defence, Denenberg says that McTavish going off the record in the two Alberta actions was sudden, a breach of its contractual duties, and required Denenberg to hire replacement counsel that was costly. I do not view those statements as changing the ultimate nature of this action, which is to determine whether McTavish is entitled to payment for services it provided to Denenberg’s clients pursuant to the terms of the Agreement and specific retainer agreements.
[38] On the second issue, while McTavish has framed its claim as unjust enrichment, I do not believe that results in it not being captured by the language “any lawsuit between them arising from this Agreement and any file specific co-counsel retainer agreement” contained in the Agreement. Again, when reviewing the pleadings, it is clear that the dispute between the parties stems from Denenberg retaining McTavish to provide legal services under the Agreement and retainer agreements, and McTavish seeking payment for those services.
[39] In my view, the forum selection clause applies to McTavish’s claim since it is “in pith and substance contractual”, as the claim relates to the performance by McTavish of services that it was providing because it was retained to do so under the Agreement and the retainer agreements. As stated by Justice Monahan (as he then was) in 2Source Manufacturing Inc. v. United Technologies Corporation, “it is well established that a party cannot escape the ambit of a forum selection clause by careful drafting. Even though a claim may be framed as one in tort or otherwise, it will nevertheless be subject to a valid forum selection clause in a contract where the subject matter of the claim is in pith and substance contractual.”[22]
[40] As a result, I find that the forum selection claim is clear and valid and was entered into by two sophisticated contracting parties, and is enforceable between the parties.
[41] The onus now shifts to McTavish to show strong reasons why the court should not enforce the forum selection clause and stay the action.
[42] On this issue, McTavish echoes its earlier arguments that unjust enrichment is an equitable remedy and the forum selection clause concerns disputes based on contract. It submits that all agreements are silent regarding the fees that Denenberg is required to pay to McTavish in situations where McTavish has withdrawn as counsel of record.
[43] In my view, McTavish has failed to put forward any strong reasons as to why the Court should refrain from enforcing the forum selection cause.
[44] As a result, I find that Denenberg is entitled to a stay of this action as a result of the enforceability of the forum selection clause.
Forum Non Conveniens
[45] In addition to finding that the action should be stayed because of the forum selection clause, I also find that, when considering the applicable factors under the doctrine of forum non convenience, Ontario is not the appropriate forum for this action.
[46] The Agreement was signed by the parties in Michigan, and the applicable law of the contract is that of the State of Michigan. This is explicitly set out in the Agreement, where it provides that “[a]ny and all disputes arising from this Agreement and any file-specific co-counsel retainer agreement between DT and McTavish executed hereunder will be governed by the laws of the State of Michigan”.
[47] The next factors are the location of witnesses, especially key witnesses, and the location where the bulk of the evidence will come from. The key evidence for McTavish will come from Mr. Chekan, who is a resident of Bloomfield Hills, Michigan. While Mr. Chekan is licensed to practice law in Ontario, he provides no other connection to Ontario in his affidavit. The key witness or witnesses for Denenberg will likely be Paul Casetta, a partner with the firm that swore affidavits for this motion and resides in Berkley, Michigan, or potentially other lawyers from Denenberg. Mr. Casetta is the lawyer at Denenberg that signed the two client specific retainer agreements. Mr. Casetta’s evidence is that Denenberg has no presence in Ontario, and all personnel work from U.S. based offices. While McTavish disputes this, by pointing to the fact that Denenberg used to have two lawyers working for it that were licensed to practice on Ontario, there is nothing in the materials that point to any potential Denenberg witness having any connection to Ontario.[23]
[48] The two actions that were commenced by McTavish were in Alberta. Denenberg’s clients that were represented by McTavish were Paramount Resources and Rocky Mountain Dealerships, which are both Alberta companies, and their insurers, and the underlying issues were with respect to accidents in British Columbia or Alberta. Again, there is nothing in the record that points to any witnesses that may exist with respect to these two actions having any connection to Ontario
[49] With respect to the jurisdiction where the factual matters arose, the evidence points to it being either Alberta or Michigan. McTavish’s claim is focused on services it provided to Denenberg’s clients, which are Alberta corporations, and their insurers, in proceedings commenced in Alberta. The only connection to Ontario is that Mr. Chekan is licensed to practice by the Law Society of Ontario and he has a mailing address in Ontario. Given that Mr. Chekan resides in Michigan and provided legal services in Alberta and took steps to withdraw from the actions due to his obligations under the Alberta Rules of Practice, I fail to see how any factual matters in this action arose in Ontario.
[50] With respect to the residence or practice of business of the parties, both of them are Michigan law firms. Denenberg’s evidence is that while it previously employed two lawyers that were licensed in Ontario, both were residents of Michigan. Additionally, Mr. Casetta’s evidence is that less than 0.5% of Denenberg’s entire active practice is with respect to Ontario-based matters. Mr. Chekan did not provide any evidence regarding the frequency that he represents clients in matters before Ontario courts. As a result, I fail to see any connection to Ontario with respect to the residence and business practices of the parties.
[51] It is also important to note that Denenberg initiated an action in Oakland County Circuit Court on October 24, 2024, seeking a declaratory judgment on its rights and obligations under the Agreement and the specific retainers involved in this case. McTavish brought a motion to dismiss this Michigan action based on lack of subject-matter jurisdiction or, alternatively, a stay due to the outstanding Ontario action. On January 8, 2025, Judge Valentine stayed the action pending resolution of the issue in the Ontario action.
[52] Accordingly, a stay issued in this action will not prevent the parties from quickly moving to re-start the action in Michigan or, if necessary, for McTavish to commence an action in Alberta.
Mandatory Mediation Clause
[53] Denenberg also seeks a stay of the action on the basis that it was commenced in breach of a mandatory contractual condition precedent. The Agreement provides that the parties “agree that they must engage in non-binding mediation to resolve any dispute between them that cannot be resolved amicably before either party may file suit.”
[54] The evidence before the Court is that in June 2022, Mr. Casetta sent a letter to Mr. Chekan, in which he noted the requirement of mediation and on behalf of Denenberg made a “demand for non-binding mediation.” Mr. Casetta suggested a mediator and dates for the completion of the mediation.
[55] McTavish did not respond to the demand for mediation and subsequently commenced this action. McTavish also did not substantively address this clause in its motion record, written submissions or oral submissions.
[56] In my view, this clause is enforceable. Again, the parties to the Agreement are sophisticated commercial parties. They should be held to their contractual bargain. I find that the mandatory mediation clause required the parties to attempt to resolve the issue prior to any party initiating a court proceeding, and that the failure by McTavish to do so warrants the exercise of the Court’s jurisdiction under section 106 of the Courts of Justice Act to stay this action. As stated by the Divisional Court in Pesorama Inc. v. Borden Ladner Gervais LLP, “[t]here is no limit on the law or circumstances that can support a stay of proceedings” under section 106 of the Courts of Justice Act.[24] This is such a circumstance, being a situation where a sophisticated party to a contract, being a law firm, specifically chose to ignore a clause that required the parties to attempt to resolve their problems outside of court. Such a response necessitates a stay of the action.
Disposition
[57] For the reasons set out above, Denenberg’s motion is granted and this action is hereby stayed.
[58] I urge the parties to come to an agreement on costs. If they are unable to do so, they may contact my Assistant Trial Coordinator to obtain my directions for the exchange of written cost submissions.
___________________________
Associate Justice Rappos
DATE: August 24, 2026
1Denenberg also originally sought relief in its notice of motion under subrules 17.06 and 21.03(a) of the Rules of Civil Procedure. I previously informed the parties, as set out in my Endorsement dated October 22, 2025, that as an associate judge, I do not have jurisdiction to stay or dismiss an action under subrule 21.01(3)(a), as only a judge has authority under that subrule. Denenberg did not proceed with its request under subrule 17.06 at the hearing of the motion.
2Pesorama Inc. v. Borden Ladner Gervais LLP, 2024 ONSC 2397, paras. 9, 17 and 23.
3Douez v. Facebook, Inc., 2017 SCC 33, para. 24, citing Z.I. Pompey Industrie v. ECU‑Line N.V., 2003 SCC 27 [“Pompey”], par. 39.
4Ibid., para. 28, citing Pompey, para. 39.
5Ibid.
6Ibid., para. 28.
7Ibid., para. 29, citing Pompey, paras. 19 and 30-31.
8Ibid.
9Ibid. [citations omitted].
10Ibid., para. 30, citing Pompey, para. 30.
11Ibid., para. 31.
13Young v. Tyco International of Canada Ltd., 2008 ONCA 709, para. 26.
14Ibid., para. 27.
15Momentous.ca Corp. v. Canadian American Association of Professional Baseball Ltd., 2012 SCC 9, para. 8.
16Notice of Action, page. 3.
17Statement of Claim, para. 10.
18Statement of Claim, para. 58.
19Statement of Claim, para. 83.
20Statement of Claim, para. 87.
21Statement of Defence, paras. 22, 27, 29, 32, and 63-68.
222Source Manufacturing Inc. v. United Technologies Corporation, 2017 ONSC 4409, para. 33.
23There potentially is a witness, Kyle Huffman, that was licensed to practice law in British Columbia and was a Denenberg associate that assisted on one of the matters. There is no stated connection with Ontario for Mr. Hufman.
24Supra note 2 at para. 11.