Reference no: EM133309403

Question. The plaintiff ICEY Cooling Systems Inc. ("ICEY") is based in Big City, Ontario, and makes commercial coolers that it sells around the world.

ICEY has initiated a claim in Ontario against Beamy (UK) Limited ("BEAMY.")

BEAMY asserts this court lacks jurisdiction over the dispute and in the alternative, that Ontario is forum non conveniens.

Overview:

BEAMY manufactures electronic equipment and components, including electronic thermostats for industrial use. The company buys and sells products from 39 countries. It maintains its only offices in Slough, England where offices, officers, directors, employees and business records are housed and kept.

ICEY manufactures display cases and coolers for the food services industry. Sales occur inside and outside Canada. Facilities and head offices are in Big City.

In 2003, ICEY purchased thermostats from BEAMY. The written contract, entered into by the parties at the time of the sale, provided the contract was to be construed in accordance with the laws of England and that the customer agrees to submit to the jurisdiction of the English courts.

In April of 2006, the parties entered into negotiations for a long term supply of electronic thermostats. Negotiations occurred by email for the most part. This purchase was particularly important for ICEY as the thermostats would be used in coolers for their largest client - Pepsi.

ICEY anticipated ordering 20,000 thermostats by year 2 of the supply agreement.

Between 2007 and 2013, ICEY placed 25 to 30 orders for the purchase of more than 100,000 thermostats.

Orders were initiated with ICEY requesting product from BEAMY. Contractual terms were sent by facsimile or mail for each order to ICEY from BEAMY.

At no time did BEAMY advise ICEY of the "standard terms and conditions" that are referenced in the contract, drafted by ICEY.

After delivery, ICEY determined that the thermostats were defective. ICEY claims to have suffered economic loss as a result.

BEAMY takes the position that this court lacks jurisdiction and the action should be put before the English courts.

ICEY argues that BEAMY that this court has jurisdiction and that forum non conveniens does not apply.

The contract contains a non-exclusive jurisdiction clause:

28. Applicable Law - The contract shall be construed and have effect in all respects in accordance with the laws of England and the customer hereby submits to the jurisdiction of the English courts.

The parties agree this means they are not bound to proceed before the English courts but the choice of law may be determined by contract.

ICEY CEO Matt Powers tweeted a series of derogatory statements about BEAMY and also tweeted that BEAMY manager Betty Boop was a crook and had knowingly sold defective parts to other companies.

Questions:

1.Explain the Plaintiff's side analysis and the defendant's side?

2.what could the parties have done to avoid legal action?