COURT FILE NO.: 613-06

DATE: 20070501

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

JOHN SCHEEL,

Plaintiff and

Respondent on the Motion

• and -

KELTIC PETROCHEMICALS INC., WESTLB AG, KEVIN DUNN, WAYNE ROUSCH, BRETT OLSEN, JOHN W. CHISHOLM, DR. GORDIE RUDOLPH, BERN CHRISTMAS, AND GEOFF SMITH,

Defendants and

Appellants (all but Westlb AG)

Timothy Pinos, Counsel for Scheel

Erik Penz, Counsel for the Keltic Defendants

HEARD at Toronto: April 19, 2007

ENDORSEMENT: GREER J.:

1The Defendants, (“Appellants” or “Keltic Defendants”) other than Westlb AG, appeal from the decision of Master Brott dated November 6, 2006. They ask for an Order setting aside the service outside of Ontario of the Statement of Claim in this action, and they ask for an Order permanently staying the action, on the general grounds that Ontario is not the forum conveniens for the action to be heard.

The Standard of Review

2The parties are unable to agree on the standard of review in this Appeal. It is the position of the Appellants that the decision of the Master is a final decision and that the Appeal is a de novo hearing or review of the matter. They rely on the decision in Westminster Canada Holdings Ltd. v. Coughlan (1990), 75 O.R. (2d) 405 (Div.Ct.), which also involved the issue of forum conveniens. There the Court was being asked for the same relief as the case at bar. There the Court held at p.412 of its decision, that while it did not have to decide whether the decision was a final one or not, in view of the decision in Stoicevski v. Casement (1983), 43 O.R. (2d) 436, 43 C.P.C. 178 (C.A.), the appeal was vital to the issue or disposition of the lawsuit, and undertook to consider the matter de novo.

3On the other hand, if the appeal is considered interlocutory, the test in Marleen Investments Ltd. v. McBride (1979), 23 O.R. (2d) 125, 27 Chitty’s L.J. 69, 13 C.P.C. 221 (H.C.J.) applies, whereby it must be shown that in exercising his or her discretion, the Master was clearly wrong. Counsel for the Respondent on Appeal takes the position that the Appeal is not a hearing de novo, and that the Master may exercise her discretion in deciding issues of forum and venue. He says, however, that once counsel for the Appellants decided to bring the appeal on in this Court, he saw no reason to try to change the venue. The Respondent relies on not only Marleen Investments, supra, but also on Canada v. Aqua-Gem Investments Ltd. (F.C.A.), [1993] F.C.J. No. 103, [1993] 2 F.C. 425. There the Court at p. 112 of the Quicklaw version, did an analysis of examples of decisions of Masters in Ontario, which have been held to raise questions vital to the final issue. The Court found:

A reading of these cases suggest that the critical question is whether the decision of the Master will preclude a hearing of the case on its merits. If so, it will be considered to raise a question vital to the final issue of the case and de novo review is appropriate. But if not, a Motions Judge will defer to the Master’s discretion unless, to borrow the language of Chancellor Boyd, or he or she is “clearly wrong.”

The issue was also reviewed by this Court in The Bank of Nova Scotia v. Liberty Mutual Insurance Co. (2003), 67 O.R. (3d) 699, [2003] O.J. No. 4474, No. 346/03 (Div. Ct.) where it set out that if the matter is one of law that is deemed vital to the disposition of the lawsuit, the test should be one of correctness, otherwise the test is one of being clearly wrong.

4The dichotomy of looking at the forum conveniens issue is that if one finds that Ontario, the venue chosen by the Plaintiff, is the correct forum, the result is not the final determination of the case, as it proceeds to trial in Ontario. On the other hand, if one finds some other jurisdiction is the proper forum conveniens, it is the final determination of the case here.

5The question, however, is such a vital one to the parties, that in my view, the test of correctness should be applied, and I have proceeded on that basis.

6Since the issue to be decided is the forum conveniens, and it is a jurisdictional one, it raises the question of the applicable law to be applied. The Court is to look at inter alia the location of the parties and witnesses, and where the matter can be most judiciously dealt with. The Respondent says that this appeal does not affect the hearing of the case on its merits. It simply determines, in the end, whether the Master reached the correct conclusion in finding that the proper forum conveniens is Ontario.

Analysis

7In my view, whichever test is applied, my conclusion is the same, in that I find the Master was correct in reaching the decision she did. In her reasons, the Master carefully reviewed the test as set out in Frymer v. Brettschneider (1994), 19 O.R. (3d) 60 (Ont.C.A.), as to what is the closest connection with the action and the parties. She also applied the eight factors set out in Eastern Power Ltd. v. Aziendor Communale Energia & Ambiente (1999), 178 D.L.R. (4th) 409 (Ont.C.A.) and examined each carefully in light of the facts before her. Some factors she found to be neutral and other to be of greater importance.

8For example, while the contract between the parties was signed in Alberta and the applicable law in the contract was said to be that of Alberta, she found that on the evidence before her, there was no evidence to show that there was any statutory differences between the laws of Alberta and Ontario, which related to this contract. The common law applies in either instance. This was therefore considered neutral.

9The other substantive aspect of the action, on top of breach of contract, was performance of the contract, and that was clearly not Alberta. While Keltic’s head office was that of a lawyer’s office in Alberta when the contract was entered into, I am told by the Respondent’s counsel, that the company is no longer shown as having its office there and no longer has an Alberta telephone number. It presumably still has a telephone number in Nova Scotia.

10The money, which the group was trying to raise in several jurisdictions, including the U.S.A., was to be used in a project in Nova Scotia. The Respondent lived and worked in Ontario. In paragraph 15 of her decision, the Master found, “…the plaintiff’s contacts in the financial industry are located all over North America.” and that Ontario is the “most centrally located jurisdiction for all witnesses”. In addition, she found that there would be a loss of judicial advantage to the Respondent if the action was stayed in Ontario and commenced in Alberta.

11The Master correctly found that the Court must only determine, after analyzing all the factors, whether Alberta or Nova Scotia is clearly a more appropriate forum for the litigation, rather than Ontario, the one chosen by the Respondent (Plaintiff in the action). She found that neither was and dismissed the Keltic Defendants’ Motion for a stay; saying, “Convenience, necessity and fairness lead me to the conclusion that Ontario is the more convenient forum.”

12I do not accept the Appellants’ position that because the contract, signed in Alberta, stated that the law was that of Alberta, should weigh that heavily against the Respondent. In Holo-Deck Adventures Ltd. v. Orbotron Inc. (1996), 8 C.P.C. (4th) 372, (O.C.J. (Gen.Div.)), where Madam Justice Molloy found California to be a more convenient forum than Ontario, the contract involved the purchase of goods, which were manufactured in California. This is not the case before me, where e-mails and phonecards and letters were emanating mainly from Ontario by the Respondent to several jurisdictions. No goods were being manufactured, produced and shipped to Keltic from a foreign jurisdiction.

13The principle in Anchem Products Inc. v. British Columbia (Workers’ Compensation Board), [1993] 1 S.C.R. 987, [1993] S.C.J. No. 34 File No.: 22256, as set by the Supreme Court of Canada, that the existence of a more appropriate forum must clearly be established to displace the forum selected by the plaintiff, before a stay will be granted in the forum so selected, applies in this instance. The Master followed that principle, and I can see no error at law or otherwise in how she reached that conclusion. In addition, cases have held that if there is any doubt on the part of the person hearing the matter, it should be resolved in favour of the status quo. In Incorporated Broadcasters Ltd. v. Canwest Global Communications Corp. (2003), 63 O.R. (3d) 431, [2003] O.J. No. 560 Docket No. C37464 (C.A.), the Court of Appeal held that the convenient forum determination is discretionary, and thus a Motions Judge’s decision is entitled to considerable deference.

14Applying all of these factors, I find that the Master came to the correct decision in reaching the conclusions she did. The Appeal is therefore dismissed and the Respondent is entitled to his Costs.

15If the parties cannot otherwise agree on Costs, I will receive brief written submissions by the parties together with a Bill of Costs, within 30 days of this decision by the Respondent, and seven days thereafter by the Appellants, with reply, if any, by the Respondent seven days after the Appellants’ response.

Greer J.