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Private International Law - Comity. Shirodkar v. Coinbase Global, Inc.
In Shirodkar v. Coinbase Global, Inc. (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from a class action motion order finding that Ireland was the "preferable forum for the adjudication of the appellant’s claims".
Here the court considers the PRIL concepts of forum non conveniens and comity:(3) The motion judge did not err in finding that Ontario is a forum non conveniens
[64] Having found that the court had jurisdiction over only Coinbase Canada, the motion judge considered whether the action against that defendant should be stayed based on forum non conveniens. She found that, since Coinbase Canada apparently had no involvement in the transactions giving rise to the appellant’s claims, allowing the claim against it to proceed in Ontario while claims against the other defendants would have to be adjudicated elsewhere would risk wasting judicial resources and producing conflicting decisions. The motion judge accepted the respondents’ expert evidence about the suitability of Irish courts for the appellant’s claim. She acknowledged that Ireland has no class action legislation but nonetheless concluded that Ireland was the preferable forum and stayed the action.
[65] A motion judge’s forum non conveniens decision is discretionary. This court can intervene only if the motion judge “erred in principle, misapprehended or failed to take account of material evidence, or reached an unreasonable decision”: Kyko Global, at para. 14.
[66] The appellant attacks the motion judge’s reasoning for granting the stay on a variety of grounds. In my view, he has not identified an error justifying this court’s intervention.
[67] The appellant contends that, since his claim is governed by Ontario’s Securities Act, it would be better adjudicated by Ontario’s courts. He relies on Douez v. Facebook, Inc., 2017 SCC 33, [2017] 1 S.C.R. 751, at paras. 68-69 and Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, [2012] 1 S.C.R. 636, at para. 49. These decisions affirm that the law applicable to a claim is relevant to determining if a contractual choice of law provision should be enforced, and that the applicable law is a factor to consider in the forum non conveniens analysis. They do not stand for the proposition that a plaintiff can compel Ontario courts to accept jurisdiction over a claim, and for defendants to respond to that claim, simply by alleging a breach of an Ontario statute. This would give Ontario courts universal jurisdiction and encourage forum shopping.
[68] As a matter of comity, generally speaking, “securities litigation should take place in the forum where the securities transaction took place”: see Kaynes v. BP, p.l.c., 2014 ONCA 580, 122 O.R. (3d) 162, at paras. 41-42 and 48, leave to appeal refused, [2014] S.C.C.A. No. 452. When the appellant traded on the Coinbase platform, he did so through Coinbase Europe. None of the activities associated with these trades took place in Ontario, besides the appellant sometimes accessing the platform from his home computer in Ontario. The motion judge found that the appellant never transacted a purchase or sale on the Coinbase platform at a time when Coinbase Canada was the counterparty to his user agreement. This is not surprising since the appellant ceased trading on the Coinbase platform before users could access it via Coinbase Canada, and more than two years before he accepted the Canadian User Agreement.
[69] The appellant contends that the motion judge should not have focused on his claims but on the claims of proposed class members: users who accepted the Canadian User Agreement and traded on the Coinbase platform through Coinbase Canada as of October 2019. There could be no such users prior to February 2023, because that is when Coinbase Canada began to provide access to the trading platform. There is no evidence with respect to users who accepted the Canadian User Agreement as of February 2023 and, in my view, the motion judge committed no error in declining to consider their hypothetical claims. As held in Kaynes, at para. 53: “as the claim has yet to be certified, it would be premature to place undue emphasis on loss of juridical advantage to those potential class members … who are not yet before the court.”
[70] The appellant contends the motion judge failed to consider whether Irish courts would exercise jurisdiction over the claims against the foreign Coinbase entities. On the contrary, the motion judge accepted the expert evidence that, if the appellant sued the respondents in Ireland, Irish courts would accept jurisdiction over Coinbase Europe (which is domiciled there) and over any other Coinbase respondents determined to be necessary and proper parties to the litigation. She found that:Ireland has a comprehensive scheme for the regulation of financial instruments or securities which substantially mirrors the substantive provisions of the Securities Act relied upon by the plaintiff in this action. Moreover, Ireland has developed its own approach to the regulation of digital assets. The evidence indicates that Irish courts would assume jurisdiction arising out of an alleged improper distribution of securities through Coinbase Europe. [71] The appellant argues that the motion judge failed to consider access to justice concerns given the absence of a class action regime in Ireland. The motion judge considered the appellant’s arguments on this loss of juridical advantage. As she found, a perceived loss of juridical advantage is outweighed by the importance accorded to comity in the forum non conveniens analysis: see Kaynes, at paras. 53-54, citing Van Breda, at para. 112.
[72] The appellant complains that the stay of his action is inconsistent with decisions made in respect of a similar Ontario action against two Canadian companies operating a cryptocurrency trading platform and their foreign parent for alleged breach of the Ontario Securities Act. In Lochan v. Binance Holdings Limited, 2023 ONSC 6714, aff’d 2024 ONCA 784 (“Binance (ONCA)”), leave to appeal to S.C.C. requested, 41615, Morgan J. declined to enforce the choice of forum clause on which the Binance defendants relied, finding at para. 42 of his reasons that requiring the claim to be adjudicated in arbitration in Hong Kong would be “tantamount to denying relief”.[4]
[73] Unlike in this case, the evidence in Binance showed that enforcing the forum clause would be unconscionable and contrary to public policy. Users were required to accept Binance’s proposed terms of use, including the arbitration clause, within 30 seconds of seeking to open an account on the platform; the arbitration clause gave Binance the unilateral right to modify its terms; Binance changed the forum of the arbitration and governing law in the choice of law clause four times during the proposed class period, including, for a period of time, to an “unspecified location, under unspecified law, under unspecified administration and rules”; and submitting a dispute to the last forum for arbitration set by Binance, in Hong Kong, would cost the average user $36,000: Binance (ONCA), at para. 7. The Binance defendants did not dispute the Ontario courts’ jurisdiction over the claims, absent the choice of forum clause.
[74] Finally, the appellant argues that the motion judge mischaracterized the notion of comity in the context of cross-border, internet-based securities claims. This argument suggests that, because all Coinbase transactions take place online, there is no jurisdiction that can meaningfully regulate the respondents’ activities or adjudicate claims against all of them, and that this militates for an expanded assumption of jurisdiction by Ontario courts. I do not agree that the nature of the respondents’ activities is sui generis. As found by the motion judge, the evidence here shows that the courts of Ireland, the jurisdiction where Coinbase Europe is domiciled, are well positioned to adjudicate the appellant’s claims.
[75] The motion judge’s forum non conveniens analysis accordingly reveals no error in principle or misapprehension of material evidence that would justify appellate intervention. . Castillo v. Xela Enterprises Ltd.
In Castillo v. Xela Enterprises Ltd. (Ont CA, 2024) the Court of Appeal considers the issue of 'comity' between courts, here international courts:[72] Finally, the appellant argues that the contempt proceedings amount to the Canadian court punishing the appellant for either legitimately or illegitimately participating in the Panamanian criminal justice system, and that either way, that constitutes an interference with Panamanian sovereignty and is contrary to principles of international comity. The motion judge was correct to reject this submission as well.
[73] The doctrine of international comity is that “the Courts of one jurisdiction will give effect to the laws and judicial decisions of another jurisdiction, not as a matter of obligation but out of mutual deference and respect”: R. v. Zingre, 1981 CanLII 32 (SCC), [1981] 2 S.C.R. 392, at p. 401. In Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, 1990 CanLII 29, at p. 1097, the Supreme Court identified the doctrine’s twin objectives: order and fairness. The court reiterated those objectives in Tolofson v. Jensen, 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022, but stated that “order comes first. Order is a precondition to justice”: at p. 1058.
[74] In this case, the appellant was free to engage the Panamanian legal system as long as he abided by the provisions of the Order. The contemptuous conduct was making the Declaration to be used to initiate a criminal complaint against the Receiver without seeking leave of the court in Ontario, as required by the Appointment Order, para. 9. In addition, the evidence the appellant provided was misleading, incomplete and untruthful regarding his status with Xela and failed to reveal the appointment of the Receiver. Had the appellant sought and obtained leave and provided truthful evidence to the Panamanian authority, there would have been no basis to find contempt.
[75] I also reject the appellant’s argument that the court below “implicitly convert[ed] the Appointment Order into an anti-suit injunction”, and that this was a “serious breach of the principles of comity.” An anti-suit injunction is a remedy reserved for when a foreign court takes jurisdiction in circumstances that would cause a serious injustice: Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), 1993 CanLII 124 (SCC), [1993] 1 S.C.R. 897, at para. 30. Paragraph 9 of the Appointment Order, by contrast, is not concerned with ousting foreign jurisdiction in favour of Ontario, but rather with protecting the Receiver from inappropriate proceedings, foreign or local.
[76] There was no violation of international comity by making the contempt order against the appellant, which did not constrain the Panamanian authorities from conducting an investigation. The fresh evidence brought to this court is that the investigation proceeded but has now been terminated. . Mehralian v. Dunmore
In Mehralian v. Dunmore (Ont CA, 2023) the Court of Appeal considers (and dismisses) an appeal of an order that a marriage, recognized in Omani courts, was recognized in Ontario. In these quotes the court considers 'comity' between international courts:[26] In this case, the Divorce Recognition Judge’s finding that the applicant attorned to the jurisdiction of Omani courts is one of fact. He found that, although the applicant initially contested the jurisdiction of the Omani courts, she subsequently made a voluntary and rational choice to participate fully on the merits. This included litigating the merits of the divorce, in which she asserted that under Omani law her marriage to the respondent was invalid and that the respondent had made false statements in the course of obtaining the divorce. The applicant also sought and obtained relief from the Omani court, through the award of custody of M.
[27] The applicant has failed to identify any palpable or overriding error in the Divorce Recognition Judge’s finding that she attorned to the jurisdiction of the Omani courts. Rather, the applicant invites this court to substitute its own factual finding in place of that of the Divorce Recognition Judge.
[28] The Divorce Recognition Judge’s finding was firmly grounded in the factual record. Indeed, as he pointed out, his findings in this regard were based on facts that were essentially uncontested. I see no basis for disturbing his finding that the applicant attorned to the jurisdiction of Omani courts.
[29] In my view, this is sufficient to dispose of this appeal.
[30] Parties to an action are free to select or accept the jurisdiction in which their dispute is to be resolved: Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416, at para. 37. As the Divorce Recognition Judge noted, a party that has voluntarily attorned to the jurisdiction of a court has consented to having the issues in dispute determined by that court. Where jurisdiction is established through such consent, as in this case, it is unnecessary to consider whether there are other grounds upon which a court’s jurisdiction might be either recognized or challenged, such as whether the parties had a real and substantial connection with the jurisdiction in question: Wolfe v. Pickar, 2011 ONCA 347, 332 D.L.R. (4th) 157, at paras. 43-44.
[31] For the same reason, the Divorce Recognition Judge did not err in his finding that the applicant could not relitigate issues that she had unsuccessfully raised before the Omani court. These issues included whether the applicant had received valid notice of the Omani divorce and whether the respondent had committed fraud in obtaining the divorce.
[32] Although the Divorce Recognition Judge did consider whether the Omani divorce should not be recognized in Ontario because the divorce laws of Oman are contrary to Canadian public policy, in my view it was unnecessary for him to do so. This is because consent to the jurisdiction of the foreign court necessarily involves consent to the laws applicable in that jurisdiction.
[33] The Divorce Recognition Judge found that although the applicant was not required to agree that the validity of the parties’ divorce should be decided by the Omani courts, she voluntarily chose to do so. In so doing, she agreed to have the validity of the divorce determined in accordance with Omani law. Having consented to the application of Omani law, the applicant cannot now argue that the decision of the Omani court should not be recognized in Ontario because the law on which it was based is contrary to Canadian public policy.
[34] I would therefore dismiss the applicant’s appeal of the Divorce Recognition Order. . Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada
In Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada (Ont CA, 2022) the Court of Appeal considered an appeal in an international insurance case where an insured sued 22(!) insurers, and where the dispute was whether Ontario or New York had jurisdiction. In this quote the court considers the doctrine of 'comity' as it is an aspect of private international law:[22] As a starting point, we comment on international comity – a set of guiding principles underpinning the private international legal order. Based on the customs of mutual deference and respect between nations, “comity attenuates the principle of territoriality”: Spar Aerospace Ltd v. American Mobile Satellite Corp., 2002 SCC 78, [2002] 4 S.C.R. 205, at para. 15. The Supreme Court has observed that international comity is at the root of the doctrines of both jurisdiction simpliciter and forum non conveniens: Spar Aerospace, at para. 21.
[23] In Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (SCC), [1990] 3 S.C.R. 1077, at para. 31, p. 1096, La Forest J. writing for the court, accepted the meaning of “comity” articulated by the Supreme Court of the United States. in Hilton v. Guyot, 159 U.S. 113 (1895), at pp. 163-164:“Comity” in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws ... [24] La Forest J. also reiterated the Supreme Court’s approval in Zingre v. The Queen, 1981 CanLII 32 (SCC), [1981] 2 S.C.R. 392, of Chief Justice Marshall’s statement in The Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116 (1812), at para. 31, p. 1097:“[C]ommon interest impels sovereigns to mutual intercourse” between sovereign states. In a word, the rules of private international law are grounded in the need in modern times to facilitate the flow of wealth, skills and people across state lines in a fair and orderly manner. [25] La Forest J. went on to note that “[t]he ultimate justification for according some degree of recognition is that if in our highly complex and interrelated world each community exhausted every possibility of insisting on its parochial interests, injustice would result and the normal patterns of life would be disrupted”, citing Arthur T. von Mehren and Donald T. Trautman, “Recognition of Foreign Adjudications: A Survey and A Suggested Approach” (1968) 81 Harv. L. Rev. 1601, at p. 1603. In Tolofson v. Jensen; Lucas (Litigation Guardian of) v. (Gagnon), 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022, at para. 40, p. 1049, La Forest J. added an important note: “To prevent overreaching, however, courts have developed rules governing and restricting the exercise of jurisdiction over extraterritorial and transnational transactions”.
[26] Comity rests on the assumption of reciprocity and can be refused where reciprocity is not forthcoming: Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), 1993 CanLII 124 (SCC), [1993] 1 S.C.R. 897, at para. 56, p. 934. These principles remain in force. In Chevron Corp. v. Yaiguaje, 2015 SCC 42, [2015] 3 S.C.R. 69, the court repeated an earlier observation that “ideas of ‘comity’ are not an end in themselves, but are grounded in notions of order and fairness to participants in litigation with connections to multiple jurisdictions”: at para. 52.
[27] It is a truism that more than one place may have jurisdiction simpliciter over a dispute. And comity has sometimes led Canadian courts to defer (that is, to decline to exercise their own jurisdiction) when a foreign court has accepted jurisdiction.
[28] Two decisions of this court provide a useful example. In Kaynes v. BP, plc, 2014 ONCA 580, 122 O.R. (3d) 162, leave to appeal refused, [2014] S.C.C.A. No. 452, this court stayed an Ontario class action in favour of a pending class action in the U.S. based on very similar allegations, covering substantially the same period, and embracing the claims of all the BP shareholders. However, when the American class action was dismissed on a procedural motion unrelated to jurisdiction, this court reinstated the Ontario class action: Kaynes v. BP, plc, 2016 ONCA 601, 133 O.R. (3d) 29.
[29] But comity does not entail that a Canadian court will always defer to a foreign court’s decision to take jurisdiction: Teck Cominco Metals Ltd. v. Lloyd's Underwriters, 2009 SCC 11, [2009] 1 S.C.R. 321, at para. 23.
[30] Teck Cominco is in some ways a mirror reflection of this case. Teck Cominco was a Canadian mining company whose operations in British Columbia caused environmental damage in the United States. The environmental damage led to an American class action against Teck Cominco. The company sued its insurers in Washington State after they refused to defend it there. The insurers started a parallel proceeding in British Columbia seeking to clarify their obligations. The American court asserted jurisdiction first and refused the insurers’ motion to stay the proceedings in favour of the British Columbia court. The Canadian courts also refused to stay the proceedings. The matter was appealed to the British Columbia Court of Appeal and then to the Supreme Court. Both courts agreed that an American court’s assertion of jurisdiction was not determinative of a Canadian court’s decision to stay. We understand that the proceedings in both jurisdictions settled shortly before duplicate trials were to start.
[31] The result in Teck Cominco was not ideal because the parties were compelled to litigate in two jurisdictions. However, this outcome is not inconsistent with comity in the Canadian understanding of the concept. We return to Teck Cominco in the forum non conveniens analysis. . Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada
In Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada (Ont CA, 2022) the Court of Appeal considered comity, as an aspect of forum non conveniens international jurisdiction, in a complex international litigation:[10] The critical issue is which of Ontario or New York is, on all the facts, the more convenient forum in which to try the case, based on the usual principles, in which comity plays a role.
[11] As this court observed in James Bay Resources Ltd. v. Mak Mera Nigeria Ltd., 2015 ONCA 781, 128 O.R. (3d) 198, at paras. 11-13, following Teck Cominco Metals Ltd. v Lloyd’s Underwriters, 2009 SCC 11, [2009] 1 S.C.R. 321, at paras. 21, 29, comity is not a stand-alone factor but is part of the case-specific assessment of forum non conveniens. Vale relies particularly on Teck Cominco, where the Supreme Court rejected the argument that the assumption of jurisdiction by a U.S. District Court was dispositive, holding instead, at para. 31, that this was only one factor to be considered. See also Club Resorts Ltd. v Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572.
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[14] Not much, if anything, should turn on which action was started first (New York), or which jurisdiction first issued a decision on forum non conveniens (Ontario). The Supreme Court admonishes in Teck Cominco, at paras. 29-30, that this form of competition between jurisdictions is wrong and unprincipled. The issue of which court should decide the litigation should be determined on true forum non conveniens principles:Finally, policy considerations do not support making a foreign court’s prior assertion of jurisdiction an overriding and determinative factor in the forum non conveniens analysis. To adopt this approach would be to encourage a first-to-file system, where each party would rush to commence proceedings in the jurisdiction which it thinks will be most favourable to it and try to delay the proceedings in the other jurisdiction in order to secure a prior assertion in their preferred jurisdiction. Technicalities, such as how long it takes a particular judge to assert jurisdiction, might be determinative of the outcome. In short, considerations that have little or nothing to do with where an action is most conveniently or appropriately heard, would carry the day. Such a result is undesirable and inconsistent with the language and purpose of s. 11 [of the applicable legislation], discussed above.
Also, the extent to which approaches to the exercise of jurisdiction differ on an international level also weighs in favour of rejecting Teck’s approach. A distinction should be made between situations that involve a uniform and shared approach to the exercise of jurisdiction (e.g. interprovincial conflicts) and those, such as the present, that do not. In the latter, blind acceptance of a foreign court’s prior assertion of jurisdiction carries with it the risk of declining jurisdiction in favour of a jurisdiction that is not more appropriate. A holistic approach, in which the avoidance of a multiplicity of proceedings is one factor among others to be considered, better serves the purpose of fair resolution of the forum non conveniens issue with due comity to foreign courts. [15] Another, more graphic, way of putting the point is that courts should avoid facilitating an “unseemly race by each party to trial and judgment in the forum of its choice”: McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng’g Co., 263 A.2d 281 (Del. 1970).
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