Executive Summary: Key Legal and Evidentiary Issues

• The appellants delayed nearly two years in perfecting their appeal after a forum non conveniens ruling.

• Rule 61.13(3.1) permitted the respondent to move for dismissal of the appeal for delay, which the court granted.

• The appellants argued that the underlying stay order was flawed and that delay should be excused.

• The original stay was based on a forum decision finding Hong Kong to be the proper venue for the dispute.

• The Court found no exceptional circumstances to justify the prolonged delay or reinstate the appeal.

• Prior Canadian proceedings were deemed irrelevant to the Hong Kong-based dispute and did not justify further appellate review.

Facts and procedural background

In James v. The Hongkong and Shanghai Banking Corporation Limited, 2025 ONSC 3341, the Ontario Superior Court addressed a motion to dismiss an appeal for delay. The appellants, Kenneth and Yasmin James, brought an action in Ontario against the Hongkong and Shanghai Banking Corporation Limited (HSBC), claiming damages related to the bank’s freezing of their accounts held in Hong Kong.

HSBC challenged the Ontario court’s jurisdiction, asserting that Hong Kong was the appropriate forum for the dispute. In 2022, Associate Justice Robinson agreed and issued an order staying the Ontario proceeding based on the doctrine of forum non conveniens. The appellants then filed a notice of appeal, but took no meaningful steps to perfect the appeal for nearly two years.

The motion to dismiss the appeal for delay

HSBC brought a motion under Rule 61.13(3.1) of the Rules of Civil Procedure, seeking to have the appeal dismissed for delay. This Rule allows a respondent to request dismissal where the appellant fails to perfect the appeal within a year of filing the notice. The appellants argued that the underlying stay decision was flawed and that their delay should be excused, citing challenges with compiling the appeal record and conducting other litigation.

Justice Vermette found that the appeal had not been perfected within the applicable time frame and that the appellants failed to show any exceptional or credible reason for the delay. The court noted that litigation decisions—especially those concerning forum selection—must be resolved with procedural diligence. A two-year delay without progress showed disregard for appellate timelines and justified dismissal.

Underlying forum issue and evidence concerns

In their argument, the appellants also claimed that the forum non conveniens decision wrongly ignored evidence from a prior Canadian action involving HSBC Canada. They argued this information might have shown connections between the dispute and Ontario. However, Justice Vermette found that even if such evidence had been considered, it would not have changed the outcome. The dispute focused on account activity and investigations in Hong Kong, making that jurisdiction the more appropriate forum.

The court reaffirmed that the principles from Club Resorts Ltd. v. Van Breda and other leading forum cases supported the stay. The appellant’s claim was too closely tied to Hong Kong for an Ontario court to assume jurisdiction, and no overriding legal error or fresh evidence justified reopening the analysis.

Outcome and conclusion

Justice Vermette granted the motion and dismissed the appeal for delay under Rule 61.13(3.1). The appellants’ attempt to revive the appeal was rejected. The court concluded there was no prejudice to the appellants, no merit to the proposed appeal, and no explanation for the procedural non-compliance. The result underscores the importance of timely prosecution of appeals and the deference owed to discretionary forum decisions in international banking disputes.