Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220408 DOCKET: C69668

Doherty, Huscroft and Harvison Young JJ.A.

BETWEEN

Dr. Ralph Peter Rieder zu Wallburg and ADMG Publishing Ltd. Appellants/Plaintiffs

and

Plista Gmbh, Michel Gagnon, Stephanie Kohnert and Stefan Klimek Respondents/Defendants

Counsel: Douglas J. Spiller, for the appellants Elizabeth Kurz, for the respondents

Heard: April 1, 2022 by video conference

On appeal from the order of Regional Senior Justice Edwards of the Superior Court of Justice, dated June 21, 2021, with reasons reported at 2021 ONSC 4458.

Reasons for Decision

[1] The motion judge dismissed the appellants’ claim for lack of jurisdiction. Alternatively, he held Germany, and not Ontario, was the appropriate forum in which to conduct this litigation.

[2] The appellants appeal from the dismissal and seek leave to appeal the motion judge’s costs order.

[3] The relevant background is set out in the motion judge’s reasons and need not be repeated here.

Jurisdiction

[4] Counsel challenges the motion judge’s jurisdiction ruling on two grounds. First, he argues the motion judge erred in law by characterizing the nature of the claim as contractual, as opposed to taking the claim at face value as a tort claim. Counsel submits the characterization of the claim as contractual was crucial to the motion judge’s ruling on the jurisdiction motion. Counsel further contends, that by characterizing the claim the way he did, the motion judge wrongly turned what was a jurisdictional motion into a pleadings motion.

[5] Second, the appellants submit that some of the motion judge’s factual findings in respect of the presumptive connecting factors relevant to jurisdiction cannot stand. For example, the appellants take issue with the factual finding that the defendant corporation did not carry on business in Ontario.

[6] We will address the second submission first. The motion judge considered the evidence said to be relevant to the existence of the presumptive factors, including whether the corporate defendant carried on business in Ontario. After considering the evidence, he concluded the appellants had failed to demonstrate the corporate defendant carried on business in Ontario. That is a finding of fact and is reviewable only for palpable and overriding error. We see none.

[7] The first argument advanced by the appellants does raise a question of law. The argument targets para. 31 of the motion judge’s reasons:

The claim advanced by the plaintiffs in this action, in my view, rises or falls with respect to whether or not there has been a breach of contract. The action, if it was allowed to proceed in Ontario, in my view is a simple breach of contract action. What the plaintiff Rieder has attempted to do is plead claims in tort and defamation in the hope that he can obtain a jurisdictional advantage by proceeding with his claim in Ontario. Without the contract Rieder has no claim. The plaintiffs’ claim, if there is one, is a breach of contract action. [Emphasis added.]

[8] The appellants argue the motion judge could not go behind the characterization of the claims as pleaded, but was, for the purposes of jurisdiction, required to accept that characterization.

[9] We do not agree. At root, jurisdictional assessments are about determining the connection of the claims made by a plaintiff to Ontario. As indicated in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, at para. 99:

The purpose of the conflicts rules is to establish whether a real and substantial connection exists between the forum, the subject matter of the litigation and the defendant. If such a connection exists in respect of a factual and legal situation, the court must assume jurisdiction over all aspects of the case.

[10] A court considering a jurisdictional motion must consider the subject matter of the litigation and the “factual and legal situation” presented in the claim. This inquiry does not necessarily end with the plaintiffs’ characterization of the claim. The form of the claim cannot trump the substance of the claim when addressing a jurisdictional argument.

Forum Non Conveniens

[11] The motion judge went on to hold that even if an Ontario court had jurisdiction over the claim, Germany was the appropriate forum for any trial.

[12] The connections to Germany included:

• the parties had agreed, with exceptions that are irrelevant here, that all claims arising from their “business relationship” would be litigated in Germany, applying German law;
• all of the defendants and their witnesses are resident in Germany; and
• physical evidence potentially relevant to the claims was located in Germany.

[13] The motion judge recognized there were factors that provided some connection to Ontario (Reasons, at para. 34). He described the connection as “weak at best”, holding that Germany was the appropriate forum for the determination of the issues. The appellant has not pointed to any error in law made by the motion judge in his forum non-conveniens analysis. Nor has he demonstrated any misapprehension of material facts. The balancing of the competing factors was an exercise for the motion judge. He made no reversible error.

The Costs Appeal

[14] The appellants seek leave to appeal costs. Counsel submits that the amount awarded, $15,000, is excessive.

[15] Leave to appeal costs, especially if the proposed grounds of appeal relate solely to quantum, is seldom granted by this court. There is no reason to grant leave in this case.

Conclusion

[16] The appeal is dismissed. Leave to appeal costs is refused.

[17] The parties may make written submissions as to the costs of the appeal. Those submissions should not exceed 3 pages. The parties will exchange submissions and file those submissions with the court within 30 days.

“Doherty J.A.”

“Grant Huscroft J.A.”

“A. Harvison Young J.A.”