Court File and Parties
CITATION: Machado v. The Catalyst Capital Group Inc., 2016 ONSC 6719 DIVISIONAL COURT FILE NO.: 119/16 DATE: 20161027 SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT
RE: ANDRÉ SÁ MACHADO, Plaintiff (Respondent in Appeal) AND: THE CATALYST CAPITAL GROUP INC., Defendant (Appellant)
BEFORE: MOLLOY J.
COUNSEL: Brian Grosman and Peter A. Simm, for the Plaintiff/Respondent Andrew Winton, for the Defendant/Appellant
HEARD: October 18, 2016 in Toronto
ENDORSEMENT
Introduction
[1] The defendant (“Catalyst”) appeals from a decision of Master Short dated October 14, 2015, dismissing the defendant’s motion for a stay of a wrongful dismissal action based on forum non conveniens. For the reasons that follow, the appeal is dismissed.
Standard of Review
[2] The standard of review on appeal from the decision of a master is the same as is applied on an appeal from a judge.[^1] The Master is required to be correct on questions of law. However, on questions of fact, or mixed fact and law, the appellate court should not interfere absent a palpable and overriding error.[^2] The determination of forum non conveniens involves assessing and weighing various factors and exercising a discretion as to whether to decline jurisdiction based on that analysis. Such decisions are entitled to deference.[^3]
[3] In my view, the master correctly identified and applied the relevant case authorities in reaching his decision. He weighed in the balance the relevant factors and exercised his discretion based on the weight he gave to those factors. I see no error of fact or law, and no basis upon which to interfere with his decision.
Issues Raised by the Appellant
[4] The appellant asserts two errors warranting interfering with the master’s decision: (1) his failure to apply binding Supreme Court of Canada precedent with respect to the use of juridical advantage as a relevant factor; and (2) his failure to properly consider the decision of a Superior Court judge in a case with similar facts.
Juridical Advantage
[5] I do not see any error in the master’s analysis of the juridical advantage factor. The appellant in its factum asserted that the Supreme Court of Canada “expressly warned” in Van Breda v. Village Resorts Ltd.[^4] that juridical advantage “should not be considered in cases where a foreign country is involved.” That is not a correct statement of the law. Juridical advantage is an appropriate and relevant factor to take into account depending on the circumstances of the given case, and this was confirmed by the Supreme Court of Canada in Van Breda. In that case, the Supreme Court listed the law to be applied to the issues in the proceeding as one of the relevant factors to be taken into account.[^5] The master’s analysis with respect to juridical advantage included the finding that the law of Ontario would likely apply and that New York State (which the defendant asserted was the appropriate forum) was an “at will” jurisdiction that does not recognize, and would not be accustomed to applying, principles of wrongful dismissal and the right to reasonable notice that are very familiar to judges in Ontario. This was a legitimate factor to take into account and there is nothing in the Supreme Court’s decision in Van Breda to the contrary. Indeed, the Court recognized specifically in paragraphs 111 and 112 that loss of juridical advantage might arise if an action is stayed in favour of another jurisdiction. The Court held (at paragraph 113) that the juridical advantage factor “becomes more relevant where foreign countries are involved [as opposed to other Canadian provinces], but even then comity and an attitude of respect for other countries, many of which have the same basic values as us, may be in order.” The Court then held:
. . . In the end, the court must engage in a contextual analysis, but refrain from leaning too instinctively in favour of its own jurisdiction. At this point, the decision falls within the reasoned discretion of the trial court.
[6] This point was expressly recognized by the 2015 Ontario Court of Appeal decision in Bouzari v. Bahremani[^6] in which the Court held, citing Van Breda:
In any event our court has observed that, while the loss of a juridical advantage to a party can be a relevant consideration in the forum conveniens analysis, it is a concept that “should be applied with some caution, having regard to the principle of comity and ‘an attitude of respect for the courts and legal systems of other countries, many of which have the same basic values as us’”: Prince v. ACE Aviation Holdings Inc., 2014 ONCA 285, [2014] O.J. No. 1792 (C.A.) at para. 64, citing Van Breda, at para. 112.
[7] In this case, the master did not react instinctively or without respect for comity of a foreign jurisdiction. He merely recognized the existence of a juridical advantage for the plaintiff to have this case decided by a judge who is accustomed to applying governing legal concepts that are simply not part of the law of New York. The Ontario Court of Appeal has recognized that juridical advantage may be particularly relevant “where the claims are simply unknown under U.S. law.”[^7]
Consideration of the Sullivan Decision
[8] The appellant relies on the decision of Chapnik J. in Sullivan v. Four Seasons Hotels Ltd. and asserts that the master erred in law in failing to properly consider and apply it.
[9] Sullivan is quite similar, although not identical, on its facts. It involved a plaintiff who was transferred from employment in Ontario to New York, whose employment was terminated in New York, and who sued in Ontario for wrongful dismissal. Chapnik J. first considered the issue of jurisdiction simpliciter, which was an issue in that case, but not here. She concluded that Ontario did have jurisdiction and then considered whether to decline jurisdiction in favour of New York, based on forum non conveniens. In weighing the relevant factors, Chapnik J. considered juridical advantage (just as the motion judge did here) and noted that the Supreme Court in Black v. Breeden had cautioned that because of matters of comity, juridical advantage “does not add much” and “should not weigh too heavily” in the forum non conveniens. Ultimately, she concluded that New York was the “clearly more appropriate forum.”
[10] The master in this case did refer to Sullivan and did take it into account. The appellants emphasize a portion of the master’s reasons in which he quotes the motion judge in Sullivan as stating that her decision was based on the “particular and unique circumstances of this case.” The appellant points out that this quotation is taken from the section of Sullivan in which Chapnik J. was analyzing the issue of jurisdiction simpliciter, and argues that the master has confused these two concepts. Clearly the quote was taken from the jurisdiction simpliciter of the Sullivan decision. Equally clearly, the master knew that was the case because the portion of the quote he included referred specifically to jurisdiction simpliciter. It is abundantly clear from the whole of the master’s reasons that he was fully aware of the distinction between these two concepts and he had accurately applied them throughout his decision. The master was correct that the decision in Sullivan turned on its particular and unique circumstances, which applies equally to the analysis on the forum non conveniens issue. The master was not bound to exercise his discretion in the same way as did the judge in Sullivan. He applied the same principles; he simply weighed the factors in the case before him differently and came to a different conclusion. He was entitled to do so, and did not commit any error in that regard.[^8]
[11] Further, the master took into account the decision of the Court of Appeal in Young v. Tyco International of Canada Ltd.,[^9] which he found to be highly persuasive and which, although obliquely referred to in Sullivan, was not considered in any depth. The master found the reasoning in Tyco to be more compelling. Again, that was entirely open to him and he committed no error in doing so.
Conclusion and Order
[12] The appeal is dismissed. The parties agreed that the appropriate costs award would be $10,000 to the successful party. Accordingly, costs to the plaintiff are fixed at $10,000.
MOLLOY J.
Released: October 27, 2016
[^1]: Zeitoun v. Economical Insurance Group, 2009 ONCA 415, 96 O.T. (3d) 639 [^2]: Housen v. Nikolaisen, 2002 SCC 33, 2 S.C.R. 235. [^3]: 2249659 Ontario Ltd. v. Sparkasse Sigen, 2013 ONCA 354, 115 O.R. (3d) 241 at para. 49; Breeden v. Black, 2102 SCC 19, 1 S.C.R. 666, 343 D.L.R. [^4]: Van Breda v. Village Resorts Ltd., 2012 SCC 17, [2012] 1 S.C.R. 572 [^5]: Ibid, para. 105 [^6]: Bouzari v. Bahremani, 2015 ONCA 275, 126 O.R. (3d) 223, 385 D.L.R. (4th) 332 at para. 46. [^7]: Prince v. ACE Aviation Holdings Inc., 2014 ONCA 285, [2014] O.J. No. 1792 (C.A.) [^8]: R. v. Talbot, 2007 ONCA 81 at paras. 37-38; Sparkasse, supra, Note 3 at para. 49 [^9]: Young v. Tyco International of Canada Ltd., 2008 ONCA 709, 92 O.R. (3d) 161, 300 D.L.R. (4th) 313