This case, from the world of indoor rock climbing, involved a dispute over made in B.C. software and hardware.
In a recent Supreme Court of British Columbia decision – Aurora Climbing Inc. v. Kilter, LLC, 2026 BCSC 290– the Court had to determine whether British Columbia was the appropriate forum in a breach of contract dispute between British Columbia and Colorado companies.
The plaintiff, Aurora Climbing Inc. (“Aurora”) is a British Columbia company that manufactures an LED light system (the “LED Kits”) and which developed a mobile application that controls LED Kits (the “App”) for use on rock climbing walls.
Facts
Aurora was founded by Peter Michaux, a software engineer and rock climber. The defendant, Kilter, LLC (“Kilter”) is a Colorado based climbing technology company which had previously purchased LED Kits from Aurora for use in its indoor climbing boards. Kilter manufactures boards and sells them to climbing gyms.
The parties had a long-standing business relationship, but no written agreement. Their relationship deteriorated in 2023 when Aurora introduced new terms restricting reverse engineering, use of non-Aurora hardware, and requiring disputes to be resolved in British Columbia.
Kilter sued Aurora in Colorado. The parties entered into an Interim Purchase Agreement (the “Agreement”). Under the Agreement, the parties agreed that all disputes would be determined by the British Columbia courts.
Negotiations broke down. Aurora later alleged that Kilter: (1) developed competing LED kits and software; (2) reverse engineered Aurora’s technology; and (3) sold non-Aurora products as if they were Aurora’s.
In 2025, Kilter sued Aurora again in Colorado. Aurora commenced proceedings in British Columbia, relying on the forum selection clause. Kilter argued that the matter should be heard in Colorado instead.
Decision
- The Agreement is admissible.
Kilter argued, without success, that the Agreement was inadmissible as its use is prohibited by Colorado law, and that Colorado law generally prohibits the use of settlement negotiations or compromise offers as evidence to prove liability of the amount of a disputed claim.
- The forum selection clauses are valid.
Forum selection clauses, such as the one in the Agreement, “are generally enforced in the commercial context, where sophisticated parties are held to their bargain absent exception circumstances.”: Reasons at para 48.
To determine whether a Court should exercise its jurisdiction, a Court considers whether:
- the party seeking to enforce a forum selection clause established that the clause is valid, clear, and enforceable, and that it applies to the cause of action before the Court; and
- the party seeking to avoid the clause must then establish strong reasons why the Court should not enforce the clause.
The Court found that the the forum selection clauses in the Agreement were valid, clear, and enforceable, and the clauses applied to the action at issue. Kilter failed to show a strong cause not to enforce the clauses and had not proved exceptional circumstances.
- There is a real and substantial connection between B.C. and the dispute.
To prove that there is a real and substantial connection between B.C. and the dispute, Aurora has shown the following facts, as required under case law and legislation – the Court Jurisdiction and Proceedings Transfer Act (B.C.):
- the LED Kits were developed, manufactured and sold in B.C.;
- Aurora developed its App in B.C.; and
- the Agreement contained the forum selection clause – B.C.
Kilter argued that there is no connection between B.C. and the dispute, since:
- Kilter’s business operations involving use of the LED Kits are in Colorado;
- the alleged tort of passing off occurred in Colorado;
- Kilter’s business is the subject to litigation, the business that is based in Colorado; and
- all of Kilter’s operations are in Colorado.
The Court agreed with Aurora’s position, holding that the parties agreed that British Columbia was where disputes would be litigated and that the law of British Columbia applies. Aurora is based in British Columbia, manufactures the LED Kits in British Columbia, and maintains the App in British Columbia. Kilter arranged for and accepted delivery of the LED Kits in British Columbia: Reasons at para 59.
- B.C. is not forum non conveniens
Kilter argued that the B.C. Court should decline jurisdiction. Kilter’s argument was based on the application of the common law principle of forum non conveniens.
To determine whether the Court is forum non conveniens, the Court considers a number of factors, including where each party resides, where each party carries on business, where the cause of action arose, and other factors.
The Court held that despite the fact that Colorado is also a convenient jurisdiction, especially for Kilter, Kilter has not established that Colorado enjoys a significant advantage that outweighs Aurora’s right to the choice of forum: Reasons at para 70.
The Court came to that conclusion mainly because of the existence of a valid and clear forum selection clause the parties agreed on.
The Court also declined to grant Aurora an injunction.
Conclusion
A well-drafted agreement by legal counsel with clear, unambiguous, and enforceable terms, may prevent the parties from incurring unnecessary legal fees in the future, and might result in a settlement, should a disagreement arise.
The parties should have a written agreement at early stages of their business relationships, and amend it as necessary, especially when dealing with international or interprovincial companies.
Link to decision: https://www.canlii.org/en/B.C./B.C.sc/doc/2026/2026B.C.sc290/2026B.C.sc290.html
