August 03, 2010
Blaney McMurtry litigators John Polyzogopoulos and Lou Brzezinski had a recent successful decision in the noted case of Brisbin et al v. Lunev et al.
The decision is notable in that it was argued prior to the release of the Van Breda decision but decided after the reasons of the Court of Appeal in Van Breda were released. After the release of the Van Breda decision, further submissions were made, and as a result, this case follows the test in the Van Breda decision.
What is most interesting about this decision is that the court managed to find a way to get around a jurisdictional clause contained in a promissory note and agreed to by the parties to the action, which indicated that the choice of jurisdiction would be England. Her Honour did find that notwithstanding the jurisdiction clause in the promissory note, she was free to order that the action proceed in Ontario.