Sikorsky, a Connecticut-based manufacturer of helicopters had no physical presence in Newfoundland and Labrador. A helicopter manufactured by Sikorsky and operated by Cougar Helicopters crashed on its way to an offshore oil rig, killing 17 but leaving one survivor. Cougar sued Sikorsky in Newfoundland, alleging negligent design and manufacture, as well as fraudulent and negligent misrepresentation as to the safety of the aircraft. Sikorsky argued that the Newfoundland court lacked territorial jurisdiction to hear the case and that Connecticut was the more convenient forum [Link available here]. Both the NL trial and appeal courts disagreed. The trial judge found that although Sikorsky’s connection to the province was ‘somewhat minimal’ it was nevertheless real and substantial. He based his analysis on that of the Ontario CA in Van Breda v Village Resorts Ltd, 2010 ONCA 84 [Link available here] – as the NLCA noted, in spite of the fact that Van Breda is under appeal and was ‘not entirely endorsed’ by the NLCA itself in Fewer v Ellis, 2011 NLCA 17 [Link available here]. For both courts, the ‘strong connection’ of Cougar and the underlying issues to Newfoundland (in part as a result of Sikorsky’s having placed its product in the jurisdiction through the ‘stream of commerce’) overcame Sikorsky’s minimal contacts. Connecticut law governed the contract of sale for the crashed helicopter, but given that there was no direct contract between Cougar and Sikorsky, this might not be relevant – and in any event the NL courts can apply foreign law.

Sikorsky’s arguments on forum non conveniens did not prevail: it was not clear that Connecticut law governed, Cougar wasn’t forum-shopping just because Connecticut law wouldn’t recognise its pure economic loss claim, and the Connecticut court had earlier declined jurisdiction.

The NLCA did suggest in obiter that the trial judge might have been wrong about Sikorsky’s attornment through having contested more than procedural matters; equity might demand recognition of the ‘untenable position’ of a litigant in having to ‘choose whether to abandon its jurisdictional challenge or take action it deems necessary in the event the jurisdictional challenge proves to be unsuccessful’.

Stay tuned for the SCC’s disposition of Van Breda.