SUMMARY
This article provides a summary and analysis of the Court of Appeal for Ontario (“ONCA”)’s decision in Shirodkar v. Coinbase Global Inc.[1] It discusses the implications of the court’s conclusions for civil litigators who grapple with questions of jurisdiction in their day-to-day practice, and how the court’s findings may require revisiting well-established dogmas about forum selection clauses.
INTRODUCTION
Cryptocurrencies platforms have spread like wildfire over the past decade or so, attracting the eyes of curious investors, deceptive entrepreneurs, and skeptical regulators. A burgeoning docket of cases are currently making their way through Canada’s courts, as invested stakeholders look to mould and shape the law’s response to this novel, disruptive, and dynamic technology. One of those courts being the ONCA, which recently released its long-anticipated decision in Shirodkar v. Coinbase Global Inc.
At the heart of the case was Coinbase Global Inc. (“Coinbase Proper”) an online platform for trading in crypto-assets. Like many other cryptocurrency platforms that emerged in the past few years, Coinbase was alleged to have violated the Securities Act[2] by failing to meet statutory disclosure and registration requirements. What follows is a discussion of the procedural history of the case, the ONCA’s judgement on the question of jurisdiction, and the implications the decision may have for litigators in Ontario.
DISCUSSION
Procedural History
The Appellant was the representative for a proposed class action against Coinbase in Ontario. At the Superior Court, the Respondent put forward a motion for a stay or dismissal of the action for being non forum conveniens.[3] The motion was granted by Justice Akbarali on the 5th of January, 2024.[4]
The learned judge found that while there was a User Agreement between members of the class and Coinbase Canada, this was not a sufficient enough connection to ground consent-based jurisdiction vis a vis Coinbase Proper. Additionally, Coinbase Proper did not carry on any business dealings in Ontario; they did not attorn to Ontario’s jurisdiction by working with the province’s regulators; and none of the transactions involving the proposed class members were done on Coinbase Canada’s platform.
The proposed class members subsequently appealed Akbarali J.’s decision on three grounds:
- whether the motions judge erred in finding that the User Agreement did not retroactively bind third-parties to its forum selection clause;
- whether the Respondents collectively carried on a business in Ontario by virtue of the ‘interconnected’ nature of Coinbase Proper’s operations with its localized subsidiaries; and
- whether the absence of a class actions mechanism under Irish law was sufficient to deem Ireland non forum conveniens to litigate this matter.
ONCA’s Decision
Gomery J.A., writing for the Panel, dismissed the appeal on all three issues.
First, Gomery J.A. found that the only counterparty to the User Agreement was Coinbase Canada, as evidenced by the clear distinctions drawn in the language of the agreement between Coinbase Canada and Coinbase Proper. If the parties intended for the agreement to extend to all Coinbase entities, it would have specified as such. In its absence, the court cannot be read in this most expansive scope of application.[5]
Second, Gomery J.A. found that the Respondents did not collectively carry on a business in Ontario by virtue of their ‘interconnected nature’. The ONCA in Sakab Saudi Holding Company v. Jabri[6] found that where entities have operated in an interconnected way, under the direction of a single controlling mind, it is sufficient to examine the factors in Club Resorts Ltd. v. Van Breda (to determine assumed jurisdiction)[7] with respect to one party to draw conclusions about the rest.[8] Nevertheless, Gomery J.A. found that this principle did not apply to the facts before them in this case. The entities here were not under the direction of a single controlling mind. Instead, they occupied different roles within a greater Coinbase corporate structure.[9] Nor was there a prima facie case of conspiracy established against the entities, which would dispose of the need for a more individualized, mechanical application of the factors.[10]
Relatedly, when applying the connecting factors in Van Breda, Gomery J.A. held that the mere fact that users of Coinbase accessed the platform from their homes, many of which were located in Ontario, was at best a weak connecting factor in establishing presence-based jurisdiction. Similarly, the fact that Coinbase Proper sought a limited registration under Ontario securities regulation was not sufficient to ground consent-based jurisdiction for non-Canadian Coinbase entities.[11]
Finally, Gomery J.A. found that Canada was non forums conveniens with respect to the class members’ claims against non-Canadian Coinbase entities. Specifically, all of the transactions between members of the class and the Coinbase platform actually took place on Coinbase Europe’s registry, pointing towards the applicability of European – rather than Canadian – securities regulation. More importantly, Gomery J.A. held that the absence of a class actions mechanism in Ireland (the European jurisdiction where Coinbase Proper was incorporated in), while certainly a loss of juridical advantage for the class members, did not outweigh the importance of international comity in the forum non conveniens analysis.[12] Nor was this case analogous to the one that the ONCA presided over in Lochan v. Binance Holdings Limited, where the courts affirmed Morgan J’s finding at first instance that the respondent crypto-currency platform’s arbitration clause was unconscionable and, if accepted, tantamount to denying relief.[13]
Analysis
There are many moving pieces to the ONCA’s decision in Coinbase Global, each of which could be worth its own article. The most notable for lawyers in Ontario are the court’s findings with respect to the concept of corporate affiliation and the principle of comity.
A. Raising the Bar for Extrapolation
The court set a high threshold to meet with respect to the application of the corporate affiliation principle (the notion that interrelated companies under the direction of a single, controlling mind may be considered collectively when attempting to ground jurisdiction under the Van Breda factors). Specifically, Gomery J.A. read-in a second prerequisite for a party to meet should they want to extend the conclusions drawn from an individualized Van Breda analysis to related entities: a prima facie case of conspiracy or fraud established against the collection of entities. This second requirement, which the court in Sakab never explicitly described as a precondition for the application of the corporate affiliation principle, is pertinent for those litigating civil matters. It limits the utility of the Sakab decision for those looking to untangle the web of corporate relationships often spun by solicitors to inoculate de facto parent companies from de jure liability in a specific jurisdiction. It also heightens the impetus for a serious examination as to whether interconnected corporate entities are in fact, based on the evidence available, engaged in a conspiracy that could trigger the principle established in Sakab.
B. Tempering the Weight of Access to Justice
The court blunted the impact of any access to justice arguments that were made before them when conducting its forum non conveniens analysis. Specifically, when confronted with the proposition that the absence of a class actions mechanism in Ireland raises an access to justice issue for the proposed class members, the court was careful in framing the Irish court system’s lack of this specific form of legal recourse as a ‘loss of a juridical advantage” rather than the imposition of a juridical disadvantage on the proposed class. In the eyes of the court, there is no default presumption in favour of specific adjudicative mechanisms, but instead a more general assumption that the alternative jurisdiction ought to offer some form of redress for the class’ cause of action. Most importantly, the court never actually grapples with whether the unavailability of class-action procedures is a limit on the appellant’s ability to access justice. Instead, it immediately refashions this inaccessibility in the language of the Van Breda decision to comport with the analytic framework established by the Supreme Court of Canada. The implication here is that access to justice and the entitlements that flow from it have a narrower scope than what the appellants may have believed. Litigators should remain alert to the court’s careful choice of language here, including its implications for clients whose expectations may not track with the court’s narrower vision of access to justice. This is a development that is especially pertinent for those working within the class actions space – a forum for adjudication that is not ubiquitous in the western legal tradition.
[1] 2025 ONCA 298.
[2] R.S.O. 1990, c. S. 5.
[3] Shirodkar v. Coinbase Global Inc., 2025 ONCA 298 at para. 19.
[4] Shirodkar v. Coinbase Global Inc., 2024 ONSC 1399.
[5] Shirodkar v. Coinbase Global Inc., 2025 ONCA 298 at para. 32.
[6] 2022 ONCA 496.
[7] Club Resorts Ltd. v. Van Breda, 2012 SCC 17 at paras. 48-49 [“Van Breda”}.
[8] Sakab Saudi Holding Company v. Jabri, 2022 ONCA 496 at para. 44 [“Sakab”].
[9] Shirodkar v. Coinbase Global Inc., 2025 ONCA 298 at para. 60.
[10] Shirodkar v. Coinbase Global Inc., 2025 ONCA 298 at para. 60.
[11] Shirodkar v. Coinbase Global Inc., 2025 ONCA 298 at paras. 54 and 57.
[12] Shirodkar v. Coinbase Global Inc., 2025 ONCA 298 at para. 71.
[13] Lochan v. Binance Holdings Limited, 2024 ONCA 784.
