David W. Foulds

The moving party and respondent entered into a joint venture to develop condominiums.

After the moving party's family assets were frozen, he transferred his shares in the project companies to the respondent to allow the respondent to secure financing, executing a document styled as a 'trust agreement'.

The moving party later brought a motion seeking the return of the shares, arguing the agreement created a bare trust that could be collapsed under the rule in Saunders v. Vautier.

The court dismissed the motion, finding the document was a contractual agreement rather than a trust, and that the rule in Saunders v. Vautier would not apply regardless because the moving party did not have absolute beneficial ownership of the shares.

The defendant brought a motion requesting the Ontario court decline jurisdiction on the basis of forum non conveniens and permit the action to proceed in England.

The claim involved allegations of kidnapping, false imprisonment, assault, torture and threats arising from events in Iran, with plaintiffs residing in Ontario and the defendant asserting stronger ties to England.

Applying the framework from Club Resorts Ltd. v. Van Breda, the court considered comparative convenience, location of witnesses, ability to participate in proceedings, applicable law, and potential procedural advantages.

The court found the evidence inconclusive regarding the defendant’s ability to attend proceedings in either jurisdiction and held the defendant failed to establish that England was clearly the more appropriate forum.

The motion was therefore dismissed.

The court provided reasons for declining to award costs following a consent motion to set aside a default judgment.

The moving defendant established that the statement of claim had not come to his attention and that there had been no personal service, despite a prior order validating service that allowed the plaintiffs to obtain default judgment.

The court held that where a default judgment is irregularly obtained and the defendant had no notice of the proceeding, the judgment must be set aside ex debito justiciae and the defendant should not be required to pay costs.

The court further found the plaintiffs should not recover costs because they continued to oppose the motion despite evidence demonstrating the judgment would inevitably be set aside.

The court also reconsidered an earlier direction awarding costs thrown away and concluded that such costs should not be imposed where the defendant had not actually defaulted due to lack of effective service.