Court of Appeal for Ontario

COURT OF APPEAL FOR ONTARIO DATE: 20230922 DOCKET: COA-22-CV-0309

Gillese, Trotter and Coroza JJ.A.

BETWEEN

Gaurav Tewari Plaintiff (Appellant)

and

Thomas D. McIntyre, Marcus Dukes and Desiccare Inc. Defendants (Respondents)

Counsel: Gaurav Tewari, acting in person Emrys Davis and Andrew Sahai, for the respondents Andrew I. McIntosh and Nyrie Israelian, for the non-party Matthew Gibney

Heard: September 20, 2023

On appeal from the order of Justice Sean F. Dunphy of the Superior Court of Justice, dated October 31, 2022.

Reasons for Decision

[1] Gaurav Tewari is a food engineer. He claims to have invented a process to extend the shelf life of case-ready meat, which he calls the “Zero-OxTech” process. In April 2020 he brought a claim, in his personal capacity, against the respondents for allegedly having violated his intellectual property rights. Among other claims, Mr. Tewari alleged that the respondents were in breach of a 2004 verbal agreement and a 2019 non-disclosure agreement (“NDA”) between his corporation and Desiccare Inc., the corporate respondent.

[2] In November 2020, the respondents brought a motion to have the action dismissed for want of jurisdiction or stayed on the basis that Ontario is forum non conveniens. Mr. Tewari brought what the motion judge characterized as a “blizzard” of responding motions.

[3] Throughout the proceedings, the only written agreement to which Mr. Tewari referred was the 2019 NDA.

[4] By order dated October 31, 2022 Mr. Tewari’s action was dismissed for lack of jurisdiction. The responding motions were also dismissed. Partial indemnity costs of $119,724.56 were ordered in favour of the respondents and, in part on a substantial indemnity basis, costs of $52,401 in favour of Matthew Gibney, a non‑party who was the focus of a motion to examine.

[5] Mr. Tewari appeals against both the dismissal of his claim and the costs orders. He seeks to adduce fresh evidence of a 2003 NDA and a written 2006 manufacturing agreement in support of his appeal.

[6] At the conclusion of the oral hearing of the appeal, we dismissed the appeal and the motion to adduce fresh evidence and advised that written reasons would follow. These are the promised reasons.

The Fresh Evidence Motion

[7] The Supreme Court of Canada has made clear that appellate courts are rarely to admit fresh evidence: Palmer v. The Queen, [1980] 1 S.C.R. 759 at 775; Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at para. 31.

[8] The respondents have provided credible evidence showing that the fresh evidence was fabricated. However, we need not decide the serious question of the documents’ authenticity because the fresh evidence offends the first of the criteria set out by the Supreme Court of Canada in Palmer. The first criterion directs appellate courts to generally not admit fresh evidence that, by the exercise of due diligence, could have been obtained and adduced at the court below. If the fresh evidence existed as Mr. Tewari contends, it could have been produced had he exercised due diligence. He did not do so. Therefore, the fresh evidence shall not be admitted on appeal.

[9] The motion to admit fresh evidence is dismissed.

Analysis

[10] The motion judge found no basis on which Ontario has jurisdiction over the claim. He explained that: the corporate respondent did not have a presence in Ontario at the relevant time; the respondents had not attorned to Ontario’s jurisdiction; and, there was no “real and substantial connection” between the respondents and Ontario. We see no basis for appellate intervention with the motion judge’s factual findings or the conclusion he reached.

[11] The motion judge made no palpable and overriding error in finding that the respondents do not now carry on business in Ontario nor have they done so in the past at any relevant time. As he noted, the sale of goods outside of Ontario to persons in Ontario does not constitute carrying on business here.

[12] Further, as the motion judge found, while the 2019 NDA contained a non‑exclusive choice of law clause and jurisdiction clause that includes Ontario, Mr. Tewari signed as a representative of his corporation and not in his personal capacity. Because Mr. Tewari was not a party to the agreement, he cannot rely on the 2019 NDA to establish jurisdiction in Ontario.

[13] As well, as the motion judge found, the respondents did not attorn to Ontario’s jurisdiction by virtue of having brought the motion to dismiss for lack of jurisdiction.

[14] Having made these findings, the motion judge found that Mr. Tewari was unable to establish the presence of a real and substantial connection between the substance of the remaining dispute and Ontario. The motion judge found that the 2007 and prior dealings between the parties were the sole remaining nexus and they were “born in a milieu that was entirely within the United States.” Mr. Tewari lived there at the time and his Texas corporation through which he carried on business was also there. Desiccare Inc. was also resident in the United States.

[15] Finally, leave must be sought and granted before this court will hear an appeal against a costs order. Mr. Tewari has not sought leave. Had he, leave would not have been granted because the costs orders are not plainly wrong nor did the motion judge err in principle: see Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. Leave to appeal the costs order is denied.

Disposition

[16] For these reasons, both the fresh evidence motion and the appeal are dismissed. Costs on an all-inclusive basis of $99,000 are ordered in favour of the respondents and $32,000 to Mr. Gibney. The costs are awarded on a substantial indemnity basis as a result of Mr. Tewari’s ongoing unfounded allegations about the respondents and Mr. Gibney.

“E.E. Gillese J.A.”

“Gary Trotter J.A.”

“S. Coroza J.A.”