Attornment (Re: Jurisdiction)

Wamboldt Estate v Wamboldt, 2017 NSSC 288 (CanLII)

[17] The plaintiff also points to Halsbury’s Laws of Canada – Conflict of Laws Commencement of a Claim, HCF-6 (2016 Reissue), Janet Walker:

Appearance to defend on the merits. Defendants who appear to defend the action on the merits implicitly consent to the jurisdiction of the court to determine the controversy. This is sometimes called “attornment”. Entering an appearance solely to contest jurisdiction is not regarded as attornment. The former practice of preserving the right to challenge jurisdiction by entering a conditional appearance has been replaced by the practice of determining jurisdictional challenges at the outset before a defendant enters a defence on the merits. Once a party takes steps to contest the merits of the claim, rather than the court's jurisdiction, even if those steps are taken in error, or with express notice of the intention to challenge jurisdiction, the party will be precluded from challenging the jurisdiction of the court, whether in respect of the whole of the claim or of a part of it. In some circumstances, attornment may be regarded also as an acceptance of the court as a convenient forum. (emphasis added)

[18] While the defendant submits that the plaintiff was not taken by surprise or prejudiced by the claim challenging the jurisdiction of the court, that is not the test. Attorning to the jurisdiction of the court is not a technicality, as the defendant submits. The test is whether the party goes beyond challenging the jurisdiction of the court (Fraser v. 4358376 Canada Inc., 2014 ONCA 553 (CanLII) at para. 14).

[19] Other cases support that the defendant has attorned to the jurisdiction of the court. In M.J. Jones Inc. v. Kingsway General Insurance Co. 2004 CanLII 6211 (ON CA), (2004) O.J. No. 3286 (ONCA) at paras. 20-22 the court says:

20 A foreign defendant is also precluded from contemporaneously disputing jurisdiction simpliciter and defending on the merits. Otherwise, litigants would incur unnecessary litigation costs in a claim which, as it may turn out, the court did not have jurisdiction to determine in the first place.

21 Further, if foreign defendants were permitted to defend contemporaneously on the merits and to dispute jurisdiction, then, in addition to the possibility of unnecessary expense, a defendant could retreat if it appeared that the success of their defence was in jeopardy.

22 Accordingly, it is well-accepted law that a foreign defendant that engages on the merits of the action will be taken to have "attorned" to the domestic court's jurisdiction…

That was reiterated in Strugarova v. Air France, 2009 CarswellOnt 9412 (ONSC) at paras. 50 and 51:

50 With respect to the issue of attornment by the filing of a statement of defence, I am of the view that I am bound by the Ontario Court of Appeal's decision in M.J. Jones Inc. v. Kingsway General Insurance Co., 2004 CanLII 6211 (ON CA), [2004] O.J. No. 3286 (Ont. C.A. [In Chambers]). In that case, the Ontario Court of Appeal was asked to determine whether or not the act of filing a statement of defence would constitute attornment, notwithstanding that the defendant was clearly disputing the forum for the hearing of the action. The Court of Appeal stated that the filing of statement of defence would constitute attornment to the jurisdiction where the defence was filed (see: paras. 19 to 22).

51 The Ontario Court of Appeal's approach is the same as the reasoning and the conclusion by the Court in Vertzyas v. Singapore Airlines Ltd., supra. In that case, where the defendant had sought to defend proceedings both on jurisdictional issues and on the merits up to the date of hearing, the Court held that the combination of those acts constituted a submission to jurisdiction whereby the defendant waived its right to object to the jurisdiction of the Court (paras. 107 to 110).