COURT OF APPEAL FOR ONTARIO
Juriansz, Lauwers and Pardu JJ.A.
BETWEEN
Greta Inc.
Plaintiff (Respondent)
and
Robert De Lange, Level Up SA and
Michael Frank Burgess
Defendants (Appellant)
Lawrence Pick, for the appellant Robert De Lange
Tom Dunne and Mark Crane, for the respondent
Heard and released orally: January 31, 2014
On appeal from the order of Justice J. Patrick Moore of the Superior Court of Justice, dated May 28, 2013.
ENDORSEMENT
1The only ground of appeal advanced at the hearing of the appeal is that the motion judge erred by finding the Ontario courts have jurisdiction over the respondent’s action against the appellant for conspiracy to commit fraud. We are satisfied the motion judge did not err in reaching this conclusion.
2The appellant is a resident of South Africa who received, outside Canada, monies of the respondent, an Ontario Company. The appellant submits he has no personal or business connections to Ontario, and that the action does not meet any of the presumptive connecting factors listed by the Supreme Court of Canada in Club Resorts Limited v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572 at para. 90.
3The motion judge after considering the statement of claim, the particulars provided and the evidence filed was satisfied that the plaintiff’s action involved tortious conduct, an essential part of which took place in Toronto. The respondent’s losses arose out of an agreement reached in Toronto in which the respondent gave up contractual protections in the original contract made in Florida. This would bring the action within the third and fourth presumptive connecting factors, that the tort was committed in Ontario, and that a contract connected with the dispute was made in the province.
4The motion judge found that the respondent had produced some evidence connecting the appellant with one Burgess as business associates. Burgess pleaded guilty in the United Stated to defrauding the respondent. Burgess met with the respondent in Toronto to make the agreement noted above. He was involved in assembling the respondent's funds for the project and engineered the transfer of the respondent's funds. The funds were transferred to a company 50 per cent owned by the appellant. Some of the funds were subsequently transferred into the appellant's personal account. The appellant received the money without the respondent's knowledge or consent.
5The respondent alleges the transfer of the funds into the appellant's company and personal accounts were in breach of the funding contract and completed the conspiracy.
6The appellant submits that it is unclear that the agreement reached in Toronto was executed in Toronto. That is of no moment as the motion judge found, in para. 31, that the renegotiation of the contract, which clearly took place in Toronto, was itself an act in furtherance of the conspiracy and sufficient to locate the conspiracy in Ontario. In any event, on our reading of para. 32 of his reasons the motion judge was satisfied the agreement was made in Toronto.
7We are not persuaded that the motion judge made any error in concluding the court had jurisdiction and the appeal is dismissed. Costs in favour of the respondent fixed in the amount of $15,000 all inclusive as agreed.
“R.G. Juriansz J.A.”
“P. Lauwers J.A.”
“G. Pardu J.A.”
