Back To The Stampede: Court Upholds Forum Selection Clause Requiring Copyright Action To Return to Alberta

In Bull Run Productions Inc. v. Wild TV Inc., 2016 NSSC 315 the Supreme Court of Nova Scotia upheld a forum selection clause and required a copyright owner to bring its action for infringement in Alberta.

Bull Run, a federal corporation operating in Nova Scotia, produced a television program which it licensed to Wild TV, an Alberta corporation, for airing on Wild TV's media network. The parties licensing agreements expired by mid-2012. In 2016, Bull Run learned that episodes of its program were being aired by Wild TV. Bull Run commenced an action in Nova Scotia for copyright infringement for Wild TV having aired, offered for sale or otherwise distributed the episodes after the end of the licensing period.

Each of the parties' licensing agreements contained a forum selection clause stipulating that the jurisdiction and venue for any dispute "involving or arising out of" the agreements would be the appropriate federal and provincial courts in Edmonton, Alberta. Wild TV brought a motion seeking an order dismissing the action for want of jurisdiction or, in the alternative, staying this proceeding against the defendant. The Court held that it had territorial competence and jurisdiction to hear the matter, but upheld the forum selection clause in the parties' licensing agreements and stayed the proceeding. Bull Run argued that the agreements did not relate to its copyright infringement claim, which fell outside the scope of the agreements since they expired years earlier. The Court held that the dispute "involves" the licensing agreements since Wild TV asserted it would be relying on various clauses in the agreements for its defence. The dispute was thus caught by the broad language of the forum selection clause.

The Court went on to consider the "strong cause" test which is applied when determining whether a court's discretion ought to be exercised in favour of or against enforcement of such a clause. In short, the question is whether the plaintiff...