James B. Camp

The plaintiffs, a Chinese corporation and an Ontario resident, sued a Canadian law firm and two foreign defendants (a Hong Kong company and its Chinese principal) alleging breach of fiduciary duty and misuse of confidential information regarding the acquisition of shares in a mining company.

The foreign defendants moved to set aside service ex juris and to dismiss the action for lack of jurisdiction simpliciter or, alternatively, on the basis of forum non conveniens.

The Superior Court of Justice granted the motion, setting aside the service because the defendants did not reside or carry on business in Ontario and service did not comply with the Hague Convention.

The court further held it lacked jurisdiction simpliciter as there was no real and substantial connection to Ontario, and alternatively, that Ontario was forum non conveniens, with China or Hong Kong being the appropriate forum.

The plaintiff, Andreas Haas, sought substantial indemnity costs after successfully resisting a motion to stay his action in favour of arbitration.

Haas argued for substantial indemnity based on a Rule 49.10 offer to settle.

The court found that Rule 49.10 did not apply to a successful responding party in a motion and that there was no egregious conduct by the moving parties to warrant substantial indemnity under Rule 49.13 or 57.01.

Considering factors under Rule 57.01, including the complexity of issues and a party's initial refusal to admit, the court fixed costs on a partial indemnity basis at an all-inclusive amount of $25,500.00, to be divided evenly among the three defendants.