The appellant, an Arizona supplier, sued its Ontario dealer for non-payment.
The dealer counterclaimed for defective goods.
Three and a half years after the action commenced, the dealer successfully moved to stay the Ontario proceedings based on a forum selection clause designating Arizona.
The Court of Appeal allowed the appeal, finding the motion judge erred in principle by treating the clause as determinative absent waiver.
Exercising its own discretion under s. 106 of the Courts of Justice Act, the Court held that the inordinate delay, the steps already taken in the Ontario litigation, and the close connection to Ontario constituted 'strong cause' not to enforce the forum selection clause.
