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PRIL - Forum Non Conveniens (3). Tewari v. McIntyre
In Tewari v. McIntyre (Ont CA, 2023) the Court of Appeal considered the basics of the central PRIL doctrine 'forum non conveniens':[10] The motion judge found no basis on which Ontario has jurisdiction over the claim. He explained that: the corporate respondent did not have a presence in Ontario at the relevant time; the respondents had not attorned to Ontario’s jurisdiction; and, there was no “real and substantial connection” between the respondents and Ontario. We see no basis for appellate intervention with the motion judge’s factual findings or the conclusion he reached.
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[14] Having made these findings, the motion judge found that Mr. Tewari was unable to establish the presence of a real and substantial connection between the substance of the remaining dispute and Ontario. The motion judge found that the 2007 and prior dealings between the parties were the sole remaining nexus and they were “born in a milieu that was entirely within the United States.” Mr. Tewari lived there at the time and his Texas corporation through which he carried on business was also there. Desiccare Inc. was also resident in the United States. . GlycoBioSciences Inc. v. Herrero and Associates
In GlycoBioSciences Inc. v. Herrero and Associates (Ont CA, 2023) the Court of Appeal considered (and dismissed) a forum non conveniens appeal:[6] The appellant has not identified any error in the motion judge’s reasons. The motion judge identified the correct law with respect to determining the court’s jurisdiction and applied it without error. The appellant bore the burden of establishing a presumptive connecting factor that established, on a prima facie basis, that there is a real and substantial connection between Ontario and the subject matter of the litigation: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, at para. 100. The appellant was required to establish a “good arguable case” for the factual allegations that underpin the legal argument that would establish jurisdiction: Ontario (Attorney General) v. Rothmans Inc., 2013 ONCA 353, 115 O.R. (3d) 561, at para. 54, leave to appeal refused, [2013] S.C.C.A. No. 327. . 778938 Ontario Limited v. EllisDon Corporation
In 778938 Ontario Limited v. EllisDon Corporation (Ont CA, 2023) the Court of Appeal allowed a venue appeal, here between Ontario and Nova Scotia, even though the Ontario court had 'jurisdiction simpliciter'. The case is notable for considering venue, jurisdiction simplicter and forum non conveniens in an inter-provincial context, not an international one - and for applying forum non conveniens even where Ontario has jurisdiction simpliciter.
In this quote, the court sets out the Van Breda forum non conveniens factors:[19] Factors that a court may consider in deciding whether to apply forum non conveniens may vary depending on the context, but generally include the following:i. the relative strengths of the parties’ connections to each forum;
ii. the interests of both parties: the comparative convenience and expense for the parties to the proceeding and for their witnesses in litigating in the court or in any alternative forum, including the domicile of the parties, and the locations of witnesses and of pieces of evidence;
iii. the law to be applied to issues in the proceeding;
iv. the desirability of avoiding a multiplicity of legal proceedings, and of avoiding conflicting decisions in different courts;
v. the enforcement of an eventual judgment;
vi. juridical advantage or disadvantage;
vii. the interests of justice, including the fair and efficient working of the Canadian legal system as a whole.
(Van Breda, at paras. 105, 107, 110, 111) . Sinclair v. Amex Canada Inc.
In Sinclair v. Amex Canada Inc. (Ont CA, 2023) the Court of Appeal considers the 'rebutting' of a presumptive connecting factor, in the Van Breda forum non conveniens test:(2) If the presumptive connecting factor is established, was it rebutted by the appellants?
[31] Another important point from Van Breda is that the mere presence of a presumptive connecting factor is not the end of the jurisdictional inquiry. As LeBel J. said, at para. 81, “[t]he presumption with respect to a factor will not be irrebuttable, however.” I repeat that LeBel J. stressed, in his reasons, that the fundamental issue involved in deciding whether a court should assume jurisdiction is whether there was a “real and substantial” connection between the dispute and the court assuming jurisdiction. This requirement needed to be satisfied in order to provide legitimacy to the assumption of jurisdiction. He reiterated this fundamental point when he said, at para. 92:All presumptive connecting factors generally point to a relationship between the subject matter of the litigation and the forum such that it would be reasonable to expect that the defendant would be called to answer legal proceedings in that forum. [32] The motion judge did not consider this second aspect of the jurisdictional inquiry. Assuming the fourth presumptive connecting factor applies, it is my view that the appellants have rebutted that presumption. They have rebutted it by demonstrating that the contract, that is the contract between the respondents and Amex Canada, has little or nothing to do with the subject matter of the litigation. As I have already said, there is nothing pleaded that would demonstrate that the contract contemplated the involvement of the appellants, unlike the situation in Cassels Brock. There is also nothing pleaded that would establish that the contract has any connection to the claim against the appellants. In other words, there is nothing in the contract that contemplated the involvement of the respondents with the appellants, unlike the situation in Van Breda. As I have alluded to above, the respondents urge a reading of the reasoning in Cassels Brock that is much too broad. In doing so, they ignore the admonitions in Van Breda about judicial overreach.
[33] It is to be remembered, on this point, that the accident which injured the respondents occurred in Venice, Italy. It is alleged that it was caused by the negligent actions of the driver of the water taxi, who is pleaded by the respondents to have been born in Venice and to reside in Venice. The water taxi is owned by an Italian company, which is, in turn, owned by another Italian company. It is not alleged that there were any ongoing contractual relationships between these Italian companies and Amex Canada or Carey International, Inc. It is also not alleged that there was anything in the contractual relationship between Amex Canada and/or Carey International, Inc. and the respondents, that contemplated that the appellants would be engaged in the carrying out of that contractual relationship.
[34] Continuing on the point that the existence of a presumptive connecting factor is not irrebuttable, LeBel J. in Van Breda gave some examples of situations where the presumptive connecting factor could be rebutted. Of importance to the case here, he offered the following example, at para. 96:Some examples drawn from the list of presumptive connecting factors applicable in tort matters can assist in illustrating how the presumption of jurisdiction can be rebutted. For instance, where the presumptive connecting factor is a contract made in the province, the presumption can be rebutted by showing that the contract has little or nothing to do with the subject matter of the litigation. [Emphasis added.] [35] In my view, the contract that was made in Ontario between the respondents and Amex Canada has little relevance to the subject matter of the litigation. Indeed, that lack of relevance is supported by the fact that the contract is not pleaded with any particularity. For example, there are no provisions from the contract that are pleaded and there is no breach of the contract pleaded. Rather, as I said earlier, this case is advanced strictly as a tort claim. I note, on that point, that the decision in Van Breda makes it clear that the issue of jurisdiction is to be determined on the basis of the pleadings: at para. 72.
[36] It also follows from the facts that none of the appellants would reasonably be expected to be called to answer legal proceedings in Ontario. They accepted a task to be undertaken in Italy. The events underlying the claim occurred in Italy. The companies are Italian companies. The driver of the water taxi is an Italian national. There is simply nothing that connects the events and the appellants to Ontario. The fact that the respondents used a credit card company, that happens to carry on business in Ontario, to make their travel arrangements does not establish a relationship between the respondents and the appellants that could sustain a finding of jurisdiction.
[37] Consequently, assuming that the fourth presumptive connecting factor could be established, the appellants have successfully rebutted it. . Sinclair v. Amex Canada Inc.
In Sinclair v. Amex Canada Inc. (Ont CA, 2023) the Court of Appeal considered (and granted) an interlocutory appeal by the Italian defendants in a tort (only) action, who had argued that the court had no jurisiction on forum non conveniens ground - here, the issue was argued on the fourth Van Breda presumptive connecting factor ['contract connected with the dispute was made in the province']:[10] The sole issue before the motion judge was whether the fourth presumptive connecting factor from Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, gave the Ontario Superior Court of Justice jurisdiction over the appellants with respect to the action started by the respondents. The motion judge concluded that it did. I find that the motion judge erred in so concluding.
[11] I start with the decision in Van Breda. At para. 90 of Van Breda, LeBel J., writing for the court, sets out four presumptive connecting factors. He said:To recap, in a case concerning a tort, the following factors are presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute:
(a) the defendant is domiciled or resident in the province;
(b) the defendant carries on business in the province;
(c) the tort was committed in the province; and
(d) a contract connected with the dispute was made in the province. [12] In considering the application of Van Breda to this case, it is important to remember the factual foundation for the claims in that case. An accident occurred on a beach at a hotel managed by Club Resorts. Club Resorts was a company incorporated in the Cayman Islands. However, Club Resorts had a contractual arrangement with a travel agency based in Ottawa to provide tennis and squash professionals to Club Resorts, in return for which these professionals received bed and board at a Club Resorts hotel. Morgan Van Breda’s spouse was one of these squash professionals. Pursuant to these arrangements, Ms. Van Breda and her spouse went to a Cuban resort managed by Club Resorts. Ms. Van Breda was injured in an accident while there and, on her return, sued Club Resorts in Ontario. Club Resorts challenged the jurisdiction of the Ontario court. In other words, the presence of Ms. Van Breda and her spouse was directly connected to the contractual relationships between the various parties.
[13] It was the contractual relationship between Club Resorts and the Ottawa‑based travel agency that led the Supreme Court of Canada to conclude that the Ontario Superior Court of Justice had jurisdiction over Club Resorts. In so concluding, LeBel J. said, at para. 116:A contract was entered into in Ontario and a relationship was thus created in Ontario between [Ms. Van Breda’s spouse], Club Resorts and Ms. Van Breda, who was brought within the scope of this relationship by the terms of the contract. [14] There was a companion case decided at the same time as Van Breda. In the companion case of Charron, Dr. Claude Charron died during a scuba dive in Cuba while he, and his spouse, were staying at a resort managed by Club Resorts. Club Resorts again challenged the jurisdiction of the Ontario court. The Supreme Court also concluded that there was jurisdiction over Club Resorts in that case. However, in that case, the presumptive connecting factor was the second factor, that is, that Club Resorts carried on business in Ontario: Van Breda, at para. 122.
[15] A couple of salient facts should be mentioned from both Van Breda and Charron that distinguish those cases from the present case. One is that, in both cases, the actions were based both in contract and in tort. Another is that, in Van Breda, it appears that the defendants, other than the travel agency, were all companies related to Club Resorts. In contrast, in Charron, there were non-Ontario defendants, other than Club Resorts and a related company. In Charron, both the captain of the boat that the deceased had used for his fatal scuba dive and the diving instructor were defendants. Both of them were Cuban nationals and neither participated in the proceeding.
[16] It is also important to note that the contract in Van Breda, and upon which jurisdiction was found, directly connected the plaintiffs and the objecting defendants. The contract anticipated the hiring of Ms. Van Breda’s spouse to visit, and work at, the resort run by Club Resorts.
[17] I have spent some time discussing Van Breda because it is recognized as the decision that established the test to be applied in deciding whether a Canadian court should assume jurisdiction over an out-of-province defendant. That test was not properly applied by the motion judge. Further, in my view, some authorities subsequent to Van Breda, have failed to apply the decision with the care and rigour that was intended. The analysis and conclusion in Van Breda began with the “real and substantial connection” test. That test was focussed on preventing jurisdictional overreach. In other words, it was intended to place limits on the assumption of jurisdiction by a province’s courts: Van Breda, at para. 23.
[18] In furtherance of that focus, the application of the presumptive connecting factors is to be viewed from the perspective of the defendant who is disputing jurisdiction. Just because there is a presumptive connecting factor with respect to one defendant, who may not be disputing jurisdiction, does not mean that the court can avoid looking at the jurisdiction issue from the perspective of the defendant disputing jurisdiction. It is the failure to examine the jurisdiction issue from the position of the appellants that constitutes the error committed by the motion judge in her analysis.
[19] In this case, Amex Canada does not quarrel with being subject to the jurisdiction of the Ontario Superior Court of Justice with respect to this claim, nor could it, given its connections to Ontario. However, that fact does not mean that everyone else, who has some connection with the subject matter of the claim, are then subject to that same jurisdiction. The position of each defendant must be looked at independently. As Fenlon J.A. said in Hydro Aluminium Rolled Products GmbH v. MFC Bancorp Ltd., 2021 BCCA 182, 48 B.C.L.R. (6th) 106, at para. 10:A plaintiff must establish territorial competence against each party and cannot "bootstrap" its claim against the defendant by establishing jurisdiction against a different party: [citation omitted]. In other words, there must be a presumptive connecting factor that attaches to each individual defendant. If there is not, jurisdiction is not established with respect to that defendant. If there is, then that defendant may still be able to rebut the presumptive connecting factor. It is not an all or nothing approach.
[20] For example, there is nothing in the Charron side of the Van Breda decision to suggest that the Supreme Court’s conclusion, that there was jurisdiction over Club Resorts, would automatically mean that there was jurisdiction over the captain of the boat or the diving instructor, had they appeared and challenged jurisdiction. That question was simply not addressed in the decision, an understandable result since neither of those defendants were participating in the proceeding. Silence on that point from the court, however, does not establish that jurisdiction would have been found.
[21] The respondents submit, and my colleague accepts, that the Van Breda approach to jurisdiction has been significantly broadened by the subsequent decision of the Supreme Court in Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30, [2016] 1 S.C.R. 851. They urge the adoption of this broader scope based on the proposition set out by Abella J. in discussing the fourth presumptive connecting factor, where she said, at para. 44:It is sufficient that the dispute be "connected" to a contract made in the province or territory where jurisdiction is proposed to be assumed. This merely requires that a defendant's conduct brings him or her within the scope of the contractual relationship and that the events that give rise to the claim flow from the relationship created by the contract. [Citations omitted.] [22] In addition, the respondents point to the observation made by Abella J. at para. 32:A "connection" does not necessarily require that an alleged tortfeasor be a party to the contract. [23] In considering the respondents’ submissions on this point, I first note that it seems to be a stretch for them to analogize the factual underpinnings for their claim with the factual underpinnings that were present in the claim advanced by Cassels Brock & Blackwell LLP in Cassels Brock, through their third-party claims against a large number of Canadian law firms. On that point, I repeat that the claim here is founded in tort. Any contractual relationship between the respondents and Amex Canada is not relied upon for the claim. The opposite was true in Cassels Brock. Indeed, it was the contractual relationship that was at the core of the dispute in that case and which drew the third-party law firms into that dispute. The contractual relationships at issue “contemplated and required the involvement” of the third‑party law firms in the process that gave rise to the claim: Cassels Brock, at para. 18. It was this salient fact that led to the conclusion that the third-party law firms were “within the scope of the contractual relationship between GM Canada and the dealers”: Cassels Brock, at para. 47. I would add that, in considering the decision in Cassels Brock, one must keep in mind that it involved an inter-provincial dispute and not an international dispute.
[24] This case is significantly different on its facts. There is nothing in the contractual relationship between the respondents and Amex Canada that required the appellants’ involvement. Even if one could give the contractual arrangements the type of emphasis that the respondents now attempt to do, it is hard to see how the conduct of any of the appellants could be said to be “within the scope of the contractual relationship” or that the “events that give rise to the claim flow from the relationship created by the contract”: Cassels Brock, at para. 44. Simply put, the contract between the respondents and Amex Canada did not create a contractual relationship between the respondents and the appellants.
[25] I would add, on this point, that the analysis is not altered by the respondents’ pleading that Amex Canada and Carey International, Inc. “are vicariously liable for the actions of the remaining defendants, who were or acted as its agents”. Putting aside that no particulars of these alleged agency arrangements are pleaded, vicarious liability is itself a tort law concept: see e.g., Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] 2 S.C.R. 534. It does not assist the respondents in terms of the contractual argument under which they now attempt to shelter or of their failure to plead any contractual claim against the appellants.
[26] There is nothing in Cassels Brock that suggests that the Supreme Court was intending to expand the fourth presumptive connecting factor to the extent that the respondents now submit. To do so would be inconsistent with the intention of Van Breda which was to limit the territorial reach of Canadian courts. To accomplish that goal, the Supreme Court sought to establish a process that would lead to “order, efficiency and predictability” in the determination of the jurisdiction question: Van Breda, at para. 30. To that end, it must be remembered that the presumptive connecting factors established in Van Breda were borne out of the “real and substantial connection” test. They were established in an effort to ensure that Canadian courts only assumed jurisdiction over a dispute that had a real and substantial connection to Canada on the facts and to prevent Canadian courts from assuming jurisdiction where that connection did not exist. As LeBel J. said in Van Breda, at para. 75:The development and evolution of the approaches to the assumption of jurisdiction reviewed above suggest that stability and predictability in this branch of the law of conflicts should turn primarily on the identification of objective factors that might link a legal situation or the subject matter of litigation to the court that is seized of it. [27] The concern that arises from an overly expansive view of the fourth presumptive connecting factor in tort cases, such as we have here, was identified in the dissenting reasons of Côté J. in Cassels Brock. She said, at para. 87:In my view, the scope of Van Breda's fourth connecting factor should be limited to claims in tort where the defendant's liability in tort flows immediately from his own contractual obligations, and where that contract was "made in" Ontario. [28] On that point, and with particular application to the case here, Côté J. said, at para. 90:The fourth factor only provides jurisdiction over claims where the defendant's liability in tort flows immediately from the defendant's own contractual obligations. [29] This view is consistent with the facts of Van Breda and the analysis undertaken by LeBel J. It is also consistent with avoiding the use of the presumptive connecting factors to justify what is, essentially, judicial overreach to only then place the burden on the objecting defendant to rebut it. Simply put, the appellants did not have any contractual obligations with the respondents, either directly or indirectly. The contractual arrangements that the respondents did have with Amex Canada (which are devoid of particulars in the pleadings) did not contemplate or require the involvement of the appellants. The appellants cannot be reasonably swept into the jurisdictional reach of Canadian courts based solely on the fact that the respondents had a contractual relationship with Amex Canada.
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