The plaintiff, a Texas-based pension fund, brought a motion for summary judgment against the defendants, directors of a Cayman Islands investment fund, seeking a refund of a $1 million USD investment.
The investment was earmarked for Facebook shares that were never acquired, triggering a refund clause in the Subscription Agreement.
The defendants did not contest the facts but argued that Ontario was not the proper jurisdiction due to an exclusive forum selection clause in the Subscription Agreement designating the Cayman Islands.
The plaintiff argued the claim was for breach of fiduciary duty, not contract, and against individuals served in Ontario.
The court upheld the forum selection clause, finding it broad enough to cover the claim, regardless of how it was framed.
The motion for summary judgment was dismissed, and the action was stayed, with a caveat that the stay could be lifted if Cayman Islands courts declined jurisdiction.
Costs were not awarded due to the plaintiff representing pensioners who had already suffered losses.