The doctrine of forum non conveniens allows a court to decline jurisdiction when another forum is clearly more appropriate to hear a dispute. The traditional approach is to analysis on geography, including where the parties lived, where witnesses were located, and where evidence could be most easily accessed (The leading case is Club Resorts Ltd. v. Van Breda, 2012 SCC 17). In today’s era of virtual litigation, where hearings and examinations are routinely conducted by video, the doctrine was not eliminated but has evolved.
A recent decision of the Court of Appeal of Newfoundland and Labrador, Smiley v. The Pierre Elliott Trudeau Foundation, 2026 NLCA 3 (CanLII) confirmed that the doctrine of jurisdiction simpliciter and that forum non conveniens remains highly fact-driven and continues to play a meaningful role, even in a digital litigation landscape. To briefly summarize the case, none of the parties lived in Newfoundland, despite it being the place where the alleged sexual battery occurred. The Respondent maintained that Quebec was the more appropriate forum. The trial court stayed the action, and the Court of Appeal affirmed the Supreme Court of Newfoundland and Labrador’s decision (see: Smiley v. The Pierre Elliott Trudeau Foundation, 2023 NLSC 107 (CanLII).
The Smiley Court clarified the application of the forum non conveniens doctrine in the digital age. While virtual testimony is now widely accepted, the court has emphasized that there is no absolute right to testify remotely. In-person evidence can still be critical, particularly where credibility is at issue. Small signs, demeanor, and the dynamics of cross-examination are often better assessed in a physical room. As a result, the location of key witnesses remains a significant factor in the forum analysis.
At the same time, the importance of documentary evidence has shifted (On appeal, the Appellant argued that the Trial Judge failed to consider and weigh material evidence and that some of the factors considered.) Because documents can now be easily transmitted and reviewed electronically, their physical location carries less weight than it once did. This reflects a practical adaptation to modern litigation tools. However, courts still consider how evidence is organized, accessed, and presented, particularly in complex or document-heavy cases.
Smiley also clarified the standard of review for forum non conveniens rulings. A motion judge’s decision to decline (or not decline) jurisdiction is highly discretionary and entitled to significant deference on appeal. An appellate court will only intervene if there is an error in principle, a misapprehension of material evidence, or an unreasonable result (see Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30 at para. 54).
The Smiley Court also explained what counts as a misapprehension of evidence. This occurs when a judge fails to properly consider key evidence, such as by drawing conclusions that are not supported by the record or by wrongly characterizing testimony. In simple terms, it means the judge misunderstood or misused important evidence in a way that affected the outcome (see R. v. MacIsaac, 2013 NLCA 26 at para. 16; R. v. Deviller, 2005 NSCA 71 at para. 10; see para. 33).
For litigants and counsel, the takeaway is clear: arguments based solely on the convenience of virtual proceedings will rarely succeed. Instead, successful forum non conveniens arguments must still engage with the substance of the dispute—where it arose, who is involved, and how justice can best be served.