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Implied Forum Choice: Principles of Attornment to Jurisdiction by Conduct
Question: How can a party unintentionally attorn to jurisdiction by conduct in legal proceedings?
Answer: A party may imply consent to a jurisdiction by participating in legal actions without promptly challenging the court's authority, risking significant consequences for procedural strategy and litigation costs, as established in Kunuthur v. Govindareddigari, [2018 ONCA 730].
Conduct Demonstrates Consent
Attornment to jurisdiction by conduct occurs when the actions of a litigant, rather than an express agreement, amounts to acceptance of the authority of a court or tribunal or arbitrator to decide a dispute. This form of attornment often arises where a party participates in legal proceedings without promptly challenging jurisdiction, thereby implying consent to the chosen forum. Delay in raising a jurisdictional objection, filing substantive pleadings, or taking procedural steps on the merits, can each serve as indicators that the party has accepted the choice of forum. Understanding these principles is essential, as implied attornment can bind a party to a jurisdiction that may be strategically undesirable, with significant consequences for procedure, applicable law, and litigation costs.
The Law
At common law, a party may attorn to the jurisdiction of a forum by engaging in conduct that implies acceptance, even without any express agreement to do so. Such implied attornment often arises when a party fails to raise a jurisdictional objection at the earliest reasonable opportunity, thereby allowing proceedings to advance without challenge. Implied attornment may also occur when a party takes substantive steps to litigate the merits of the dispute, such as delivering pleadings or bringing a Motion that addresses the substance of the claim, or otherwise participating in hearings without first raising issues regarding jurisdiction. In these circumstances, the law treats the conduct as voluntary submission to the authority of the forum, thereby precluding later efforts to contest jurisdiction.
This principle was affirmed in Kunuthur v. Govindareddigari, 2018 ONCA 730, while citing Van Damme v. Gelber, 2013 ONCA 388, and Wolfe v. Wyeth, 2011 ONCA 347, wherein each the Court explained that a party attorns to jurisdiction when it goes beyond simply challenging jurisdiction and instead litigates the claim on its merits. In each case it was explicitly said:
[18] A party attorns to a court’s jurisdiction when it goes beyond simply challenging the jurisdiction of that court and, instead, litigates a claim on the merits: see Van Damme v. Gelber, 2013 ONCA 388, 115 O.R. (3d) 470, at paras. 3, 24, leave to appeal refused, [2013] S.C.C.A. No. 342; and Wolfe v. Wyeth, 2011 ONCA 347, 282 O.A.C. 64, at para. 44.
[3] In our view, the motion judge correctly found that the appellants attorned to the jurisdiction of the New York court by filing a statement of defence and counterclaim without first raising any jurisdictional objection.
[24] Having taken substantive steps to defend the action and advance their own claim in New York, the appellants could not later dispute the jurisdiction of that court.
[44] By appearing and participating in the proceedings on the merits without raising any jurisdictional challenge, the appellants voluntarily submitted to the jurisdiction of the Ontario court.
Conclusion
attornment to jurisdiction by conduct underscores the importance of vigilance when questions of jurisdiction arise. Delay in raising an objection or taking substantive steps to litigate the merits can result in an implied acceptance of the forum, binding a party to its authority even where a different jurisdiction may be more advantageous.