To Attorn or Not to Attorn: Ontario Court of Appeal Clarifies Impact of Complying With a Disclosure Order on Jurisdiction in Trop v. Trop

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Parties and non-parties to litigation are oftentimes ordered to provide disclosure early on in the process. When these parties are located outside of Ontario or Canada, there may be concerns that complying with such an order constitutes attorning (i.e., conceding) to the jurisdiction of the court making the disclosure order.

In the recent decision of Trop v. Trop, 2024 ONCA 855, the Ontario Court of Appeal (“ONCA”) confirmed that parties who have been ordered to provide disclosure in litigation do not concede the issue of jurisdiction if they comply with the order in the face of an ongoing jurisdictional challenge. At the same time, a jurisdictional challenge is not a reason to refuse to comply with a disclosure order.

The Issue in Trop

In Trop, the dispute pertained to family law proceedings in Ontario between a husband and wife. The husband challenged Ontario’s jurisdiction and set a date for a hearing on the issue. In the interim, the parties attended a case conference, at which the judge ordered the husband to provide updated financial disclosure (the “Production Order”).

The husband moved before the ONCA to stay the Production Order. As part of the test for a stay, the husband argued that he would suffer irreparable harm if he was required to comply, because compliance would result in attornment to Ontario’s jurisdiction.

Complying With a Disclosure Order Is Not a Concession on Jurisdiction

The ONCA rejected that the husband would suffer irreparable harm if ordered to comply with the Production Order, for two reasons:

1. First, compliance with court orders where there is a pending jurisdictional challenge is not attornment. A party must take a voluntary step to concede jurisdiction. A step taken under duress (i.e., one that the party does not agree with but is ordered to take) is not voluntary and does not constitute attornment.
2. Second, the ONCA noted that the husband had already delivered an Answer and Financial Statement in Ontario, in which he had challenged jurisdiction. The ONCA noted that if the first Financial Statement did not constitute attornment, then it was “difficult to imagine” how complying with an order to update it would constitute attornment. The ONCA noted that the delivery of “pleadings and productions,” in which a party “clearly raises the issue of jurisdiction,” has not generally been treated as attorning to the jurisdiction, without the party having taken other steps to attorn.

The husband in Trop was a party to the litigation and had already asserted a jurisdictional challenge in the proceeding. The ONCA did not expressly address the issue of non-parties complying with disclosure orders where the non-parties would not have challenged jurisdiction [because the disclosure order is their first foray into the litigation]. However, the principles discussed in Trop support the conclusion that a non-party who is ordered to provide disclosure is not taking a “voluntary” step in the litigation but, rather, is participating under duress.

Non-parties must still take care to preserve their position on jurisdiction in appropriate cases. The Trop decision is helpful in affirming previous case law on attornment and provides some comfort to non-parties who would prefer to co-operate and comply with disclosure orders, without being concerned about conceding their substantive jurisdiction position.

The Litigation & Dispute Resolution Group at Aird & Berlis LLP will continue to monitor developments with respect to private international law. Please reach out to the authors or a member of the group to learn more regarding strategic advantages for your litigation needs.