Katherine Menear

Following the dismissal of motions to set aside service ex juris and to stay or dismiss an action for lack of jurisdiction, the court determined the appropriate costs award.

The successful party sought substantial partial indemnity costs.

The court reduced the claimed costs to reflect time spent on unsuccessful jurisdictional arguments, unnecessary steps, and work unrelated to the motions.

Costs were ultimately fixed at a reduced amount and apportioned severally among the moving defendants, reflecting their differing roles in the litigation, including the raising of a forum non conveniens argument.

Foreign defendants moved to set aside service ex juris of a statement of claim and to stay or dismiss an Ontario action alleging fraudulent conveyance of wind turbine business assets.

The plaintiff had previously obtained judgment in Ontario for breach of a letter of intent to market turbines in Canada, and alleged the defendants transferred assets to avoid satisfying that judgment.

The court held that a presumptive connecting factor existed because a contract made and breached in Ontario was connected to the dispute regarding the asset transfer.

The defendants failed to rebut the presumption of jurisdiction and did not demonstrate that another forum, such as California, was clearly more appropriate under forum non conveniens principles.

Service ex juris and substituted service were upheld and the action was permitted to proceed in Ontario.