Court of Appeal for Ontario

Date: 2021-10-20 Docket: C68842

Judges: Rouleau, Hoy and Thorburn JJ.A.

BETWEEN

Kyko Global Inc. Plaintiff (Respondent)

and

M/S Crawford Bayley & Co. and Sanjay Asher Defendants (Appellants)

Counsel: James Bunting and Anisah Hassan, for the appellants Jayson W. Thomas and Laura Chiu, for the respondent

Heard: September 24, 2021 by video conference

On appeal from the order of Justice Michael T. Doi of the Superior Court of Justice, dated October 30, 2020, with reasons at 2020 ONSC 6537.

Hoy J.A.:

[1] The appellants, M/S Crawford Bayley & Co. and Sanjay Asher (“Mr. Asher”), are a law firm based in Mumbai, India, and a senior partner of that firm, respectively. Before the motion judge, they unsuccessfully argued that Ontario lacks jurisdiction over, and is not the convenient forum for, the respondent, Kyko Global Inc.’s action against them. They appeal the motion judge’s dismissal of their motion seeking the stay or dismissal of Kyko’s action.

Background

[2] Kyko, an Ontario corporation, had retained the appellants to provide an opinion on the enforceability of a guarantee to be provided by Sical Logistics Limited (“Sical” or the “guarantor”), a publicly-traded company in India. The guarantee was security for a trade finance facility provided by Kyko to another Indian company, West Coast Marine Private Limited. In a letter dated September 9, 2010 addressed to Kyko’s Ontario counsel, the appellants opined that the guarantee was enforceable in accordance with its terms. The guarantee had Ontario choice of law and forum provisions.

[3] Unbeknownst to Kyko, it was Mr. Asher’s cousin, Yogesh Asher, who effectively brokered Kyko’s agreement to provide the trade facility to West Coast Marine Private Limited.

[4] The facility went into default and Kyko obtained a default judgment in Ontario against Sical. Sical obtained an interim injunction from the High Court of Judicature at Madras, in India, to restrain enforcement of the default judgment by alleging that the guarantee was a forgery. Police in the City of Chennai (also known as Madras) opened a criminal investigation and concluded that the signatures on the guarantee were forged.

[5] Kyko subsequently brought this action against the appellants for negligent and fraudulent misrepresentation and breach of contract. At the time the motion was heard, Sical’s injunction application was still pending before the Madras High Court. The motion judge noted that Kyko concedes that its claim against the appellants may only proceed if the guarantee is a forgery, and as a result depends on the outcome of the proceeding in the Madras High Court.

The Motion Judge's Decision

[6] Applying the test in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, the motion judge concluded that two presumptive connecting factors were present. Therefore, there was a presumption that there was a real and substantial connection between the subject matter of the litigation and Ontario.

[7] First, there was a good arguable case that the tort (fraudulent or negligent misrepresentation) took place in Ontario: in particular, there was a good arguable case that the appellants’ legal opinion was first provided to Kyko in Ontario; arrangements were made in Ontario to advance the credit facility; and Kyko suffered damages in Ontario.

[8] Second, there was a good arguable case that the contract connected to the dispute was made in Ontario. Kyko pleaded this in its statement of claim, and the appellants did not adduce any evidence to challenge or deny it. In the absence of evidence from the appellants to challenge or deny the facts pleaded in Kyko’s claim, Kyko could rely on those facts, which are presumed to be true, to presumptively demonstrate jurisdiction simpliciter: Ontario v. Rothmans Inc., 2013 ONCA 353, 115 O.R. (3d) 561, at paras. 111-114, leave to appeal refused, [2013] S.C.C.A. No. 327; Vahle v. Global Work & Travel Co. Inc., 2020 ONCA 224, at para. 13.

[9] The motion judge noted that the burden of rebutting the presumption of jurisdiction is on the party challenging it. The appellants were required to show facts to demonstrate that the presumptive connecting factors do not point to any real relationship between the subject matter of the litigation and the forum, or point to a weak relationship: Van Breda, at para. 95. The motion judge found that they had failed to do so and, accordingly, that Ontario had jurisdiction simpliciter over the action.

[10] The motion judge then considered whether the appellants had discharged their burden of showing why jurisdiction should nevertheless be declined in favour of a different forum ( forum non conveniens ). He correctly noted that the standard to displace the plaintiff’s chosen forum is high: the alternate forum must be “clearly more appropriate” such that it would be fairer and more efficient to decide the dispute there: Van Breda, at paras. 108-9.

[11] As I discuss in more detail below in addressing the fifth issue that the appellants raise on appeal, the motion judge considered six factors in the course of his analysis. He concluded that the appellants had not discharged their burden to show that their proposed alternate forum, Mumbai, is clearly more appropriate.

Issues on Appeal

[12] The appellants raise five issues on appeal:

1. Did the motion judge reverse the burden of proof on the test for jurisdiction simpliciter?
2. In his jurisdiction simpliciter analysis, did the motion judge err by accepting allegations in the statement of claim as true despite evidence to the contrary?
3. Did the motion judge discount the appellants’ evidence on the location of their witnesses in his forum non conveniens analysis as a result of a misreading of the applicable jurisprudence?
4. Did the motion judge fail to consider relevant factors in his forum non conveniens analysis?
5. Is the motion judge’s decision that the appellants had not discharged their burden to show that Mumbai was a clearly more appropriate forum unreasonable?

First, I address the standard of review. Then I address the appellants’ five issues in turn.

Standard of Review

[13] Whether or not a motion judge has erred in the application of the test for jurisdiction simpliciter is a question of mixed fact and law, reviewable for palpable and overriding error, unless an error in the application of the test can be attributed to an extricable question of law: Airia Brands Inc. v. Air Canada, 2017 ONCA 792, 417 D.L.R. (4th) 467 at para. 39, leave to appeal refused, [2017] S.C.C.A. No. 476.

[14] The application of forum non conveniens is an exercise of discretion reviewable in accordance with the principle of deference to discretionary decisions. An appeal 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: Young v. Tyco International of Canada Ltd., 2008 ONCA 709, 92 O.R. (3d) 161, at para. 27; Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, [2012] 1 S.C.R. 636, at para. 41; Haaretz.com v. Goldhar, 2018 SCC 28, [2018] 2 S.C.R. 3, at para. 49. Errors of law and clear and serious errors of fact may also give grounds for intervention: Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30, [2016] 1 S.C.R. 851, at para. 54; Van Breda at para. 112.

[15] With the standard of review in mind, I turn now to the appellants’ arguments on jurisdiction simpliciter.

(1) Did the motion judge reverse the burden of proof on the test for jurisdiction simpliciter?

[16] As noted above, the motion judge concluded that Kyko has a good arguable case that Kyko first received the opinion in Ontario, when it was sent to Kyko’s legal counsel.

[17] The appellants point to the evidence that the original of the opinion was delivered to Kyko’s CEO, Mr. Kulkarni, in India. They argue that the motion judge erred in applying the test for jurisdiction simpliciter: he reversed the burden of proof by only considering whether that evidence rebutted the presumption of jurisdiction, and not in determining whether Kyko had discharged its onus of establishing that there was a good arguable case.

[18] I reject this argument. The motion judge recounted that on September 9, 2010, Mr. Asher signed the opinion for his firm and faxed it to Ms. Thomas, Kyko’s external legal counsel, at her office in Brampton, Ontario. Then, on September 13, 2010, Mr. Asher’s associate, Ms. Batra, emailed Ms. Thomas an electronic version of the opinion. That email indicated that the opinion “is being handed over to Yogesh [Asher]”. This was done so that he could hand-deliver the original opinion to Mr. Kulkarni. There was no evidence about when the original opinion was delivered to Mr. Kulkarni. The motion judge wrote that “[i]t also appears from the record that Mr. Kulkarni could not have received the Opinion before it was sent to Ms. Thomas by facsimile on September 9, 2010 and by email on September 13, 2010.”

[19] Citing Rothmans, at paras. 53-54, and Vahle, at para. 13, the motion judge held that on a jurisdiction motion brought at an early stage of a proceeding, the court does not assess the facts of a case beyond deciding whether a “good arguable case” is shown to ground jurisdiction. After considering the appellants’ argument in relation to the delivery of the original opinion to Mr. Kulkarni, the motion judge concluded that Kyko has a good arguable case that Kyko first received the opinion in Ontario. The motion judge did not reverse the burden of proof. He considered the evidence on which the appellants rely both in concluding that Kyko has a good arguable case, and in concluding that the appellants had not rebutted the presumption of jurisdiction.

[20] The appellants also argue that the motion judge’s conclusion that there was a good arguable case that the receipt of their opinion in Ontario by Ms. Thomas completed the tort of misrepresentation was tainted by legal error. They say that the document had to be received by a principal or “directing mind” of Kyko, and that did not occur until the opinion was delivered to Mr. Kulkarni in Mumbai.

[21] I reject this argument. The opinion was addressed to Ms. Thomas. Mr. Kulkarni’s evidence was “as long as our lawyers were happy, I was happy. There was nothing for me to review.” Here, there is clearly a good arguable case that receipt of the opinion by Ms. Thomas was receipt by Kyko.

[22] Moreover, the tort of negligent or fraudulent misrepresentation occurs where the information is received and relied upon. Even if the opinion were first received in India, it should not deprive Ontario of jurisdiction. The appellants provided the opinion with the clear understanding that it would be relied on in Ontario: see Central Sun Mining Inc. v. Vector Engineering Inc., 2013 ONCA 601, 117 O.R. (3d) 313, at para. 33, leave to appeal refused, [2013] S.C.C.A. No. 475.

(2) Did the motion judge err by accepting allegations in the statement of claim as true despite evidence to the contrary?

[23] As noted above, the motion judge further concluded that there was a good arguable case that the contract connected to the dispute was made in Ontario. Kyko pleaded this in its statement of claim, and the appellants did not adduce any evidence to challenge or deny it.

[24] The appellants argue that the motion judge’s conclusion was tainted by palpable and overriding error. They say that Kyko’s pleading was in fact contradicted by Mr. Kulkarni’s evidence on cross-examination. The motion judge accordingly erred in relying on the pleaded facts, and there was not a good arguable case that the contract connected to the dispute was made in Ontario. Further, they argue that the motion judge erred in law in permitting Kyko to rely on its pleading that the contract was made in Ontario: that was a legal conclusion, not an allegation of fact. Moreover, it was a bald conclusory statement and was not sufficiently particularized.

[25] I disagree.

[26] In cross-examination, Mr. Kulkarni was directed to the Notice of Examination, which asked that he produce evidence of any payment made by Kyko to the appellants “in return for the provision of legal services” and “any contract or retainer agreement between Kyko and the [appellants]”.

[27] Mr. Kulkarni confirmed that he did not produce any such documents because there weren’t any. During that exchange, he made the following statement, on which the appellants rely:

Obviously we didn’t make any payment, if that is the question. But say “in return for the provision of legal services”, I said that they didn’t provide any legal services to Kyko, so I don’t know what this thing refers to. [Emphasis added.]

[28] The appellants say the substance of Mr. Kulkarni’s evidence is that Kyko did not have a contract with the appellants (they did not provide any legal services to Kyko) and, since there was no contract, there could not have been a contract made in Ontario.

[29] I am not persuaded that the motion judge’s conclusion that there was a good arguable case that the contract connected to the dispute was made in Ontario is tainted by palpable and overriding error.

[30] On the motion, there was no dispute that the appellants delivered the opinion and that they had been retained to do so. Indeed, Mr. Asher’s evidence was that Kyko required that Crawford Bayley provide a legal opinion concerning the guarantee and that Crawford Bayley did not have written agreements with all its clients. The appellants did not argue below that there was no contract. The only issue was where the contract was made. In context, including that the opinion was addressed to Kyko’s Ontario legal counsel, Mr. Kulkarni’s evidence does not contradict Kyko’s pleading that the contract was made in Ontario. The appellants should not now be permitted to assert that there was no contract.

[31] Nor am I persuaded that the motion judge erred in principle by failing to require Kyko to lead evidence to support its pleading that the contract was made in Ontario. The appellants do not appear to have argued below that Kyko could not rely on its pleading to establish a presumptive connective factor because it pleaded a legal conclusion, or because it did not provide sufficient particulars. Moreover, in context, I would not characterize the allegation as a purely legal conclusion. Rather, as the motion judge found, it is essentially a factual allegation.

[32] In Rothmans, at para. 113, this court suggested that a plaintiff asserting jurisdiction may be required call evidence to support undenied allegations in a statement of claim either where the cause of action as pleaded appears to be devoid of merit or where the pleadings fail to demonstrate any air of reality concerning the possible existence of the presumptive connecting factor. I agree with the motion judge that this is not such a case. Kyko pleaded that it is an Ontario corporation with its head office in Brampton, Ontario, and that the appellants delivered the opinion. It is open to the appellants to seek particulars under r. 25.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[33] In summary, I am not persuaded that the motion judge committed any palpable and overriding error of fact or any extricable error of law in finding that Ontario had jurisdiction simpliciter. I turn next to the appellants’ challenges to the motion judge’s forum non conveniens analysis.

(3) Did the motion judge discount the appellants’ evidence on the location of their witnesses in his forum non conveniens analysis as a result of a misreading of the applicable jurisprudence?

[34] One of the relevant factors in determining whether a defendant has discharged its burden of showing why jurisdiction should be declined to displace the forum chosen by the plaintiff is the comparative convenience and expense for the parties to the proceeding and for their witnesses in litigating in the court or in any alternative forum.

[35] The motion judge concluded that this factor was neutral in this case. This ground of appeal arises out of the underlined portion of the passage below from the motion judge’s reasons addressing the comparative convenience and expense for the witnesses:

[51] Similarly, I find that the comparative convenience and expense for the witnesses is largely neutral in this matter. Kyko’s witnesses, including Mr. Kulkarni and Ms. Thomas, are in Ontario. Sanjay Asher, Ms. Batra and Yogesh Asher, are located in Mumbai. Mr. Rajappan and Mr. Sundar purportedly signed the Guarantee for Sical, but it is unknown if they are in India, Singapore or elsewhere. The Defendants may call others from Sical to testify, but do not know whether anyone at Sical has anything relevant to say and, if so, who or where they are. The Defendants may call a police witness from Chennai, located about 1,300 km from Mumbai, to testify about the forgery investigation. They also submit that Amit Punde, Kyko’s former representative in Pune, may be a witness, although Mr. Punde did not witness any relevant events and can only give second-hand information about the forgery investigation, which the police witness likely will address. As the Defendants gave little or no information as to what their witnesses will say, apart from Sanjay Asher and Ms. Batra, I am persuaded to treat their proposed list of witnesses with caution: Goldhar at para 57.

[52] Should a party or witness outside of Ontario not wish to travel to Brampton for any part of this proceeding, Kyko has undertaken to consent to their attendance by videoconferencing, which is how the parties conducted cross-examinations on the affidavits for this motion. The Defendants did not object to video testimony and led no evidence to suggest that any of its witnesses would not agree to testify by video. As a result, I find that video technology may offer a fair, convenient, and cost-effective way to obtain testimony from witnesses abroad at trial in Ontario: Davies v. Clarington, 2015 ONSC 7353 at paras 23-28. In contrast, there was no evidence of whether video evidence is permitted by the High Court of Bombay. [Emphasis added.]

[36] The appellants argue that the motion judge relied on a passage in the decision of the motion judge in Goldhar that Côté J. overruled when the decision was appealed to the Supreme Court. She held at para. 67 that the motion judge had

erred by unreasonably discounting [the defendant] Haaretz’s proposed witnesses and the relevance of their evidence. Haaretz had, in its factum, described what these 22 witnesses “may speak to” and had filed a supplemental affidavit briefly describing the evidence that 8 of the witnesses might give to assist it at trial. Goldhar had, in comparison, no evidence concerning the witnesses he might call and what those witnesses would speak to.

[37] Côté J. described the motion judge’s error as involving “a complete misapprehension of, or failure to consider, material evidence” (at para. 50), and the motion judge’s conclusion regarding the comparative convenience and expense for the witnesses as “wholly unreasonable” in light of the evidence before him (at para. 55.) She concluded that this factor heavily favoured the forum proposed by the defendant (Israel). She also held that the motion judge erred in giving weight to the notion of having the Israeli witnesses (many of whom were reluctant) testify by videoconference, since there was no evidence that an Ontario court could compel them to do so.

[38] The appellants argue that they, like the defendant Haaretz in Goldhar, provided a list of their proposed witnesses and a brief description of what some of them would speak to, and the motion judge therefore erred in treating their witness list “with caution”. They say this led the motion judge to erroneously conclude that the factor of comparative inconvenience for the witnesses was neutral. They submit that the motion judge’s error is not “saved” by his observation that videoconferencing may be an option for witnesses from outside of Ontario. They point to what they say are the inherent frailties of testifying by videoconference.

[39] While the motion judge in this case erred in citing to the overruled passage in Goldhar, I am not persuaded that this warrants interference by this court. The appellants do not impugn any of the motion judge’s findings of fact in the passages reproduced above. The motion judge acknowledged that the appellants had provided information about what some of their witnesses (Mr. Asher and Ms. Batra) will say. Unlike Haaretz in Goldhar, however, Mr. Asher could not say what, if any relevant evidence the other witnesses might be able to provide. The motion judge in this case, therefore, unlike the motion judge in Goldhar, did not misapprehend the evidence and his conclusion was reasonable. His error in citing to Goldhar did not lead him to conclude that the factor of comparative inconvenience to witnesses was “largely neutral.”

[40] Further, while I appreciate that there is a 9½-hour time difference between Ontario and Mumbai, the appellants have not demonstrated any error in principle concerning the motion judge’s observation that videoconferencing technology may offer a fair, convenient and cost-effective way to obtain testimony from witnesses abroad at trial in Ontario. It is open to an Ontario court to modify its usual sitting hours to better accommodate an out-of-country witness. Even before the COVID-19 pandemic made videoconferencing software ubiquitous, Canadian courts have considered the possibility of proceeding electronically as part of the forum non conveniens analysis: Tyco at para. 52; Henry Estate v. Henry, 2012 MBCA 4, 275 Man. R. (2d) 90, at paras. 54-57. The motion judge in this case did not fall into the error in Goldhar. Unlike Haaretz, the appellants did not adduce evidence that their witnesses in India would not testify voluntarily. The motion judge did not rely on videoconferencing to overcome the problem of foreign witnesses who are unwilling to testify, in the absence of evidence that those witnesses could be compelled in Ontario.

(4) Did the motion judge fail to consider relevant factors in his forum non conveniens analysis?

[41] The appellants argue that the motion judge erred in principle in his forum non conveniens analysis because he failed to consider the jurisdiction where the factual matters arose and the location of the evidence.

[42] I am not persuaded that, in the context of this case, the fact that the motion judge did not specifically address these two factors in his reasons constitutes an error in principle or resulted in an unreasonable decision.

[43] In Van Breda, at paras. 105 and 110, LeBel J. wrote the following at paras. 105 and 110:

A party applying for a stay on the basis of forum non conveniens may raise diverse facts, considerations and concerns. Despite some legislative attempts to draw up exhaustive lists, I doubt that it will ever be possible to do so. In essence, the doctrine focusses on the contexts of individual cases, and its purpose is to ensure that both parties are treated fairly and that the process for resolving their litigation is efficient…

[T]he factors that a court may consider in deciding whether to apply forum non conveniens may vary depending on the context and might include the locations of parties and witnesses, the cost of transferring the case to another jurisdiction or of declining the stay, the impact of a transfer on the conduct of the litigation or on related or parallel proceedings, the possibility of conflicting judgments, problems related to the recognition and enforcement of judgments, and the relative strengths of the connections of the two parties.

[44] As discussed in more detail below, the motion judge’s reasons reflect that he considered and balanced the following six factors in his forum non conveniens analysis: the comparative convenience and expense to the parties and witnesses in litigating in Ontario or India; the law to be applied to the issues in the proceeding; the desirability of avoiding a multiplicity of proceedings; the desirability of avoiding conflicting decisions in different courts; the enforcement of an eventual judgment; and the fair and efficient working of the Canadian legal system as a whole.

[45] The appellants assert that all the underlying conduct described in Kyko’s statement of claim occurred in India, and that the majority of the physical evidence is located in India. These two factors clearly favour India. When these factors are considered (as they should have been), Mumbai is clearly a more appropriate forum than Ontario.

[46] While the opinion was prepared in India, the motion judge found that there was a good arguable case that the appellants’ legal opinion was first provided to Kyko in Ontario. Arrangements were made in Ontario to advance the credit facility, and Kyko suffered damages in Ontario. All the underlying conduct did not occur in India.

[47] As to the significance of the physical evidence, on cross-examination, Mr. Asher admitted that he relied on only four documents in forming the opinion: the guarantee, the minutes of two board meetings of the guarantor relating to it, and the “memorandum articles of association” of the guarantor. He does not remember if he has ever seen the originals of the guarantee or minutes. The appellants do not identify any other documents that they say will be required in this case and are located in India. In assessing the comparative convenience to the parties and the witnesses, the motion judge considered that Mr. Asher is located in Mumbai.

[48] In the context of this case, the factors that the appellants argue the motion judge should have considered are minor, and are largely subsumed by the motion judge’s analysis of the comparative convenience and expense to the parties and witnesses in litigating in Ontario or Mumbai.

(5) Is the motion judge’s decision that the appellants had not discharged their burden to show that Mumbai was a clearly more appropriate forum unreasonable?

[49] While noted above, for ease of reference, I repeat that the motion judge considered, and balanced, six factors in concluding that the appellants had not met the onus of showing India to be a clearly more appropriate forum for the action than Ontario: (1) the comparative convenience and expense for the parties to the proceeding and for their witnesses in litigating in Ontario or India; (2) the law to be applied to the issues in the proceeding; (3) the desirability of avoiding a multiplicity of proceedings; (4) the desirability of avoiding conflicting decisions in different courts; (5) the enforcement of an eventual judgment; and (6) the fair and efficient working of the Canadian legal system.

[50] The motion judge found that the first four factors were neutral, the fifth factor favoured Mumbai, and the final factor favoured Ontario. As a result, he concluded that the appellants had not met the onus of showing India to be a clearly more appropriate forum than Ontario.

[51] The appellants argue that the motion judge unreasonably concluded that the first four factors are neutral, and that the final factor favoured Ontario. They say these factors clearly favour India and, as a result, the motion judge’s conclusion that they had not met their onus of showing India to be a clearly more appropriate forum was unreasonable. Below, I address their arguments with respect to each of the challenged factors. As I will explain, the motion judge’s conclusions were reasonable.

[52] As to the first factor (the comparative convenience and expense for the parties to the proceeding and for their witnesses in litigating in Ontario or in India), the appellants argue that, while an Ontario corporation, Kyko carries on business in India and was carrying on business in India in connection with and at the time it received the opinion and the vast majority of the witnesses are domiciled in India. They argue that, in light of this, the motion judge’s conclusion that the first factor is neutral was unreasonable.

[53] I disagree. The motion judge noted that Kyko is situated in Brampton, Ontario and no longer has a business presence in India. Its CEO, Mr. Kulkarni, is based in Ontario and visits India infrequently. The motion judge did not fail to consider or misapprehend the evidence or make a clear and serious error of fact about Kyko’s business activities in India. In assessing the comparative convenience and expense to the parties, the motion judge reasonably focused on Kyko’s current situation, rather than what might have been its situation in the past.

[54] Above, in addressing the third issue that the appellants raise on this appeal, I reproduce the motion judge’s analysis of the comparative convenience and expense for the witnesses. The motion judge did not find that the vast majority of the witnesses are domiciled in India. Further, his analysis reasonably considered more than the number of witnesses on each party’s list of proposed witnesses. His decision that this factor is neutral was reasonable.

[55] The appellants argue that, at its core, this action is about whether an Indian lawyer met the expected standard of care of an Indian lawyer in providing the opinion and that is a matter of Indian law. Accordingly, they argue, the motion judge’s conclusion that both Indian and Ontario law are implicated in this case, and the second factor – applicable law – was therefore a neutral factor, was unreasonable.

[56] The motion judge specifically considered that Indian law was implicated because of this standard of care issue. However, he accepted that Ontario law was also implicated because of Kyko’s position that the place of the tort is Ontario, where it received and acted on the allegedly negligent and fraudulent representation in the opinion, and that Kyko’s contract claim pleads a breach of contract made in Ontario. The motion judge did not accept that, at its core, this action is about professional negligence.

[57] The motion judge’s conclusion that both Indian and Ontario law are implicated in this case and that applicable law is therefore a neutral factor is reasonable.

[58] Turning to the third and fourth factors (desirability of avoiding a multiplicity of proceedings and conflicting decisions), the appellants say that given that the Madras High Court will consider whether the guarantee is a forgery, it would be “eminently reasonable” for the Madras High Court to also determine the issues raised in Kyko’s action. The motion judge’s conclusion that these factors were neutral is accordingly unreasonable.

[59] I disagree. The motion judge specifically recognized that the Madras High Court is to consider whether the guarantee is a forgery, which will overlap with Kyko’s claims against the appellants. He noted, however, that neither party viewed the Madras High Court as an appropriate or convenient forum: the appellants submitted that the High Court of Bombay in Mumbai was the convenient forum. He held that there was no evidence on this motion to suggest that having this proceeding heard in Mumbai would lead to any ongoing efficiencies with the ongoing matter in the Madras High Court or mitigate the multiplicity of proceedings. There was no indication that the parties or claims in the matter before the Madras High Court could be consolidated with Kyko’s action against the appellants if it were heard before the High Court of Bombay and it seemed likely that the litigation in Chennai will continue as a separate proceeding, whether Kyko’s claim is heard in Mumbai or Ontario. Nor was there any suggestion that having Kyko’s claim heard in Mumbai would result in procedural efficiencies with litigation in Chennai by allowing common records, productions or other evidence to be shared in both proceedings, or by allowing any appeals from the proceeding to be joined or heard in tandem. Further, whichever court hears Kyko’s claim – whether in Ontario or Mumbai – will likely have to consider the risk of a conflicting decision in the Madras High Court proceedings.

[60] On appeal, the appellants attempt to re-cast their position before the motion judge, submitting that the Madras High Court is the clearly more convenient forum. However, Mr. Asher’s evidence was that Kyko’s action should be heard in Bombay. The motion judge’s conclusion that the third and fourth factors are neutral is reasonable.

[61] With respect to the sixth factor, the appellants argue that an Indian court is clearly in a better position to dispose fairly and efficiently of the litigation. Indeed, they say it is unfair to require an Indian law firm and lawyer who provided an opinion about the enforceability in India of a guarantee given by an Indian company to an Ontario company which carried on business in India to defend an action in Ontario arising out of their provision of that guarantee. They say this case is different from Sincies Chiementin S.p.A. (Trustee of) v. King, 2012 ONCA 653, leave to appeal refused, [2012] S.C.C.A. No. 516, on which the motion judge relied, in concluding that it was fair for the appellants to be called to account in Ontario. Mr. Asher is a lawyer in a regional law firm in India, not a lawyer who specializes in international business law like the lawyer in Sincies. Further, they say that the motion judge leant instinctively in favour of his own jurisdiction, which Van Breda, at para. 112, cautions against.

[62] The motion judge instructed himself that, having regard to the case as a whole, he “must consider and balance the broader issues of fairness and efficiency of a particular forum with the justice of that choice to the parties”. He found himself unable to assess the juridical advantage factor, and the appellants do not fault that finding.

[63] He concluded that overall fairness considerations favoured Ontario. In his view, this case was like Sincies because, like the lawyer in that case, the appellants “are sophisticated legal professionals who advised Kyko, an Ontario corporate client, knowing that it would receive and act upon the advice in the forum.” It would therefore be fair for the appellants to account for their conduct in Ontario. The motion judge held that the appellants had not shown that the High Court of Bombay would be a substantially less inconvenient and expensive forum.

[64] In my view, that conclusion is reasonable. Whether or not Mr. Asher specialized in international business law, the appellants are one of India’s oldest law firms and a senior partner at that firm. As the motion judge found, they are sophisticated legal professionals who advised an Ontario corporation, and there was a good arguable case that the opinion was first provided to Kyko in Ontario and relied upon there. The motion judge’s analysis was rigorous and much more than an instinctive favouring of his own jurisdiction.

Disposition

[65] For these reasons, I would dismiss the appeal, with costs to Kyko in the all-inclusive amount of $20,000.

Released: October 20, 2021 “PR”

“Alexandra Hoy J.A.”

“I agree. Paul Rouleau J.A.”

“I agree. Thorburn J.A.”