COURT OF APPEAL FOR ONTARIO

CITATION: GIAO Consultants Ltd. v. 7779534 Canada Inc., 2020 ONCA 778

DATE: 20201209

DOCKET: C68457

MacPherson, Zarnett and Jamal JJ.A.

BETWEEN

GIAO Consultants Ltd.

Plaintiff (Respondent)

and

7779534 Canada Inc., CIV Carbon Credit Ltd., Maxime Lemieux, McMillan S.E.N.C.R.L., Osvaldo Minchella, Adriana Shaw also known as Adriana Rios Garcia, Martin Nicoletti and David Grondin

Defendants (Appellants)

Shannon Bennett, for the appellants

Alexander G. Munera and Brent Mendiola, for the respondent

Heard: November 26, 2020 by video conference

On appeal from the order of Justice Jill C. Cameron of the Superior Court of Justice, dated July 8, 2020, with reasons at 2020 ONSC 3686

REASONS FOR DECISION

[1] The appellants 7779534 Canada Inc. (“777”), Adriana Shaw, Martin Nicoletti and David Grondin appeal from the order of Justice Jill C. Cameron of the Superior Court of Justice dated July 8, 2020. In that order, supported by reasons for decision dated June 12, 2020, the motion judge held that the Superior Court has jurisdiction over the action brought by the respondent GIAO Consultants Ltd. (“GIAO”) against the appellants and other parties who are not participants in this appeal. The motion judge also held that the Superior Court was forum conveniens for the action.

[2] The appellants appeal both the jurisdiction and forum conveniens components of the motion judge’s decision.

[3] GIAO issued a statement of claim on January 21, 2020 claiming against the appellants and others for breach of contract, negligence, intentional misrepresentation, breach of trust and/or fiduciary duty, and civil conspiracy.

[4] Two of the defendants in the action, Maxime Lemieux and McMillan S.E.N.C.R.L., have already filed their statement of defence, thereby submitting to the jurisdiction of Ontario courts. Two other defendants, CIV Carbon Credit Ltd. and Osvaldo Minchella, are residents of Ontario.

[5] The remaining four defendants – 777, Shaw, Nicoletti and Grondin – did not submit to the jurisdiction of Ontario courts. They brought a motion to challenge the jurisdiction of the Ontario courts or, in the alternative, to seek a declaration that Ontario was forum non conveniens to determine the proceeding.

[6] The motion judge rejected both components of the appellants’ claim. She found that Ontario courts had jurisdiction simpliciter to hear and determine the claim and that Ontario courts were not forum non conveniens for the appellants’ claim.

Jurisdiction

[7] The appellants concede that the motion judge was correct to consider the presumptive connecting factors from Club Resorts Ltd. v. Van Breda, 2012 SCC 17, at para. 91, to determine whether an Ontario court is entitled to assume jurisdiction – (1) the defendant is domiciled or resident in Ontario; (2) the defendant carries on business in Ontario; (3) the commission of a tort in Ontario; or (4) a contract connected with the dispute was made in Ontario.

[8] The motion judge found that three of these presumptive connecting factors were present – the appellants (moving parties) were conducting business in Ontario, a tort was committed in Ontario, and the contract connected with the dispute was made in Ontario.

[9] The appellants contest this component of the motion judge’s decision on two bases.

[10] First, the appellants point to a single laconic sentence (“The defendants have not filed a Statement of Defence.”) in the motion judge’s decision to ground a submission that she improperly drew an adverse inference against them and that this constitutes an error of law.

[11] We do not accept this submission. In our view, the motion judge made this statement in the context of her analysis of whether a tort was committed in Ontario – a necessary step when assessing the Van Breda factors. The motion judge did nothing more than acknowledge the limits of what was available to her and upon which she was required to make her determination based on the Van Breda factors. The fact that there was no statement of defence available did not lead to an adverse inference.

[12] Second, the appellants contend that the motion judge erred by making findings relating to the merits of the claim in the underlying action and that these findings will improperly flow through and bind the trial judge: Young v. Tyco International of Canada Ltd., 2008 ONCA 31, 2008 ONCA, at para. 31.

[13] We are not persuaded by this submission. Once again, the motion judge’s findings were made within the context of applying the Van Breda factors. These findings will not flow through and be determinative of the issues at trial; rather, they are based only upon the evidence available at the time of the motion for the purpose of assessing the presumptive connecting factors relating to the issue of jurisdiction. The motion judge was required to make some findings for the purpose of providing a decision on the motion and was permitted to rely on the respondent’s evidence for this purpose: Young, at paras. 33-34; Van Breda, at para 72.

Forum non conveniens

[14] The plaintiff entered into a contract with CIV Carbon Credit Ltd. and 777 titled Amended Share Purchase Agreement. Clause 5.7 of this document provides:

Governing Law

This Agreement shall be construed, interpreted and enforced in accordance with, and the respective rights and obligations of the parties shall be governed by, the laws of the Province of Quebec and the federal laws of Canada applicable in such province, and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of such Province and all courts competent to hear appeals therefrom. [Emphasis added.]

[15] The appellants submit that the motion judge erred in holding that Ontario courts were not forum non conveniens. The central claim grounding this submission is that the motion judge erred by concluding that expert evidence is not required to prove Quebec law in Ontario courts. The appellants point to this passage in the motion judge’s reasons:

The defendants submit that in order for the matter to proceed in Ontario, given the clause in the agreement related to governing laws, it would be necessary for them to hire experts in Quebec law. Lawyers and judges are trained and experienced in reading, understanding and interpreting the law. Should this clause govern the proceedings, I fail to see how it would be necessary to hire an expert to interpret Quebec law. If that were necessary, I doubt, in the overall cost of litigation this would be of such an amount that would render a proceeding in Ontario unfair and is not a factor that makes Ontario forum non conveniens. Further, if, as I have found, the contract was formed in Ontario, and the tort(s) were committed in Ontario the most that can be said at this stage is that the laws of Quebec may apply. [Emphasis in original.]

[16] The appellants assert that the motion judge made two errors in this passage.

[17] First, the appellants contend that the motion judge erred by concluding that expert evidence would not be required to prove Quebec law to the Ontario courts.

[18] We do not accept this submission. We begin with the contextual point that a motion judge’s decision on a forum non conveniens issue is a discretionary one; an appellate court should intervene only if the motion judge erred in principle, misapprehended or failed to take account of material evidence, or reached an unreasonable decision: Haaretz.com v. Goldhar, 2018 SCC 28, at para. 49.

[19] Against this backdrop, we observe that the trial judge did not state, in absolute terms, that hiring an expert to interpret Quebec law would not be necessary. She specifically saw the possibility that an expert would be required (“If that were necessary”) and then said that the cost of an expert would not render the proceedings in Ontario unfair. Moreover, it needs to be said that the respondent’s fundamental contract claim in its statement of claim is a simple one – CIV and 777 did not pay the $165,000 they accepted as the price of shares they purchased.

[20] The appellants’ second assertion on the forum non conveniens issue is that the motion judge erred in saying that “the most that can be said at this stage is that the laws of Quebec may apply.”

[21] We are not persuaded by this submission. To start, it appears to be inconsistent with the argument the appellants made on the jurisdiction issue. On that issue, the appellants say that the motion judge erred by making findings relating to the merits of the claim in the underlying action and that those findings would improperly flow through and bind the trial judge. Now, on the forum non conveniens issue, the appellants criticize the motion judge’s tentative language (“may apply”) on the basis that it “completely disregards the express wording of the contract and the agreement of the parties that the contract is governed by the laws of Quebec” (Factum, para. 35).

[22] In addition, we observe that in the Governing Law clause of the contract, although the wording is explicit on governing law (“the Province of Quebec”), the clause also refers to “the non-exclusive jurisdiction of the courts of such Province”. Moreover, it is important to note that there are both contract and tort claims in the statement of claim and this may raise difficult questions of the applicable law.

Disposition

[23] In conclusion, in our view, there is no good reason to overturn the motion judge’s decision on the issues of jurisdiction or forum non conveniens in this case. Ontario, easily, has jurisdiction to hear the case, and there is no basis to interfere with the motion judge’s discretionary decision that Ontario is a proper forum in which to hear the case.

[24] The appeal is dismissed. The respondent is entitled to its costs of the appeal fixed at $18,700, inclusive of disbursements and HST.

“J.C MacPherson J.A.”

“B. Zarnett J.A.”

“M. Jamal J.A.”