Last year, a group of Saab dealers commenced a group action in Ontario against IFS Vehicle Distributors ULC (IFS ULC), the Canadian distributor of Saab vehicles, and other defendants seeking damages for breach of contract and statutory remedies under the Arthur Wishart Act.  The defendants brought a motion to dismiss the action on the basis that Ontario lacked jurisdiction or, alternatively, was not the convenient forum. The defendants suggested that the plaintiffs ought to have brought separate actions in each of their respective provinces or, alternatively, as a group in California. This motion was unsuccessful. A complete summary of the decision can be found in our last e-Communiqué.

IFS ULC appealed the motion decision, arguing, among other issues, that the motions judge’s statements and conduct gave rise to a reasonable apprehension of bias. The Court of Appeal reviewed the motions judge’s endorsements and ultimately concluded that his actions did give rise to a reasonable apprehension of bias against IFS ULC. The Court of Appeal found that the motions judge made unwarranted negative comments about IFS ULC’s counsel, their position, and their arguments and arbitrarily curtailed argument during the hearing of the motion. Further, the Court of Appeal found the motions judge “went beyond reflecting the reasoning process and entered the fray as an advocate for his actions and decisions.” The Ontario Court of Appeal set aside the Superior Court decision and ordered that the motion be heard anew before a different justice of the Superior Court.

The Ontario Court of Appeal’s decision can be viewed here.

As such, the jurisdiction issue raised in the case remains a live issue. Cassels Brock is monitoring developments in this litigation.