Court File and Parties

COURT FILE NO.: CV-09-384687 DATE: 20170324

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

GREGORY P. KING Mr King, for himself Plaintiff

and -

ANDREA GIARDINA, MONIQUE SASSON and CHIOMENTI STUDIO LEGALE Paul Schabas and John Mather, for the Defendants Defendants

DECISION [1] D.L. Corbett J.:

PART 1 - INTRODUCTION

(a) King owes a judgment debt of more than $2 million

[1] Gregory King is a lawyer. He practiced business law at Aylesworth Thompson LLP (“Aylesworth”), and subsequently at Gowling Lafleur Henderson LLP (“Gowling”).

[2] In the mid-1990’s, King acted in connection with a transaction involving an Italian company [Sincies Chiementin SpA (“Sincies”)], a Swiss company affiliated with Sincies [“HFM”, defined below], a Chinese-Canadian businessman [David Chan], and two Bahamian companies affiliated with Sincies and HFM [“Splendide” and “Splendide Nansha”, defined below]. The transaction was a new hotel to be built in Nansha, China. King received a 5% interest in the hotel and Aylesworth was to receive payment of fees for legal services in connection with the project.

[3] The transaction did not thrive. And neither did Sincies: it ended in bankruptcy proceedings in Italy.

[4] One Sincies asset was its US $600,000 deposit in the Nansha hotel project. Sincies’ trustee in bankruptcy learned that, apparently, this deposit had disappeared. The trustee inquired further, leading the trustee to make allegations against various persons connected to the venture, including King and Chan. These allegations were not resolved, and the trustee brought legal proceedings in Italy against King and Chan to try to recover the US $600,000 for Sincies’ creditors (the “Italian Proceedings”).

[5] King did not defend the Italian Proceedings. The case went ahead without King’s participation, and in 2001 the Italian court ruled against King for US $600,000. King did not pay the judgment, taking the position that the Italian court lacked jurisdiction over the claims against him.

[6] In 2006, Sincies’ trustee sued King in Ontario to enforce the Italian judgment. King defended and counterclaimed. The enforcement action was decided by Whalen J. after a four-day motion for summary judgment. Whalen J. found that the Italian court had acted with jurisdiction and that the Italian judgment ought to be enforced in Ontario. [2] King appealed. The Ontario Court of Appeal dismissed King’s appeal. [3] King sought leave to appeal to the Supreme Court of Canada, which was denied. [4]

[7] By the end of the Ontario Enforcement Proceedings, King owed Sincies’ trustee the principal amount of the Italian judgment (US $600,000), costs in Italy and in the Ontario proceedings, plus interest since 2001. The current amount outstanding on the judgment is apparently over $2 million.

(b) The Current Proceedings

[8] The proceedings now before the court arise out of the events that led to the Ontario judgment against King. King’s claims against Giardina and others arise from the conduct of the Italian Proceedings. Giardina and Sasson are Italian lawyers and Chiomenti Studio Legale is their law firm (the “Italian Defendants”). King alleges that the Italian Defendants acted in conflict of interest when they acted against him and that they breached duties they owed to him both (i) in acting against him, and (ii) in the way they conducted the Italian litigation against him.

[9] King’s proceedings against Gowling and O’Toole concern the events between King and his own law firm at the time that Sincies’ claims were asserted against King. King claims indemnity from his former law firm and claims against O’Toole in negligence on the basis of advice King alleges to have received from O’Toole about the Italian Proceedings.

[10] King’s proceedings against Lang Michener concern the conduct of the Ontario Enforcement Proceedings. King was represented by Lang Michener in those proceedings. King claims that those proceedings were defended negligently. In addition, King claims that Lang Michener gave him negligent advice as a result of which King failed to commence timely proceedings against his own insurer, Lawyers’ Professional Indemnity Company (“LawPro”). King’s proceedings against Lang Michener are counterclaims in response to Lang Michener’s main claim against King for payment for their services defending the Ontario Enforcement Proceedings.

(c) The Current Motions

[11] The defendants in all three actions move for judgment dismissing King’s claims against them.

[12] The Italian Defendants argue that the courts of Ontario have no jurisdiction over King’s claims against them, and, in the alternative, that Ontario is not a convenient forum for these claims. [5] I decide this motion in these reasons.

[13] Gowling and O’Toole argue that King’s claims against them are barred by limitations periods. Gowling also argues that there is no basis for a King’s claim to indemnity for the Italian judgment: the events that gave rise to the Italian judgment all occurred while King was a member of Aylesworth, and not while King was a member of Gowling. [6] I decide the motion by Gowling and O’Toole in separate reasons (King v. O’Toole, 2017 ONSC 1915), in which I incorporate by reference the background facts set out in this decision.

[14] Lang Michener argues that:

(a) there is no issue requiring a trial in respect to King’s counterclaims that the Ontario Enforcement Proceedings were conducted negligently by Lang Michener because:

(i) the issues and arguments King alleges were not pursued by Lang Michener were, in fact, fully argued before and decided by Whalen J. in the Ontario Trial Decision, and

(ii) these allegations are collateral attacks on the Ontario Trial and Appellate Decisions, predicated as they must be on an argument that those decisions were decided wrongly and, but for the alleged negligence of Lang Michener, would have been decided in King’s favour. Lang Michener argues that this kind of collateral attack is an abuse of process and cannot raise a triable issue; and

(b) there is no issue requiring a trial in respect to King’s counterclaims that King was given negligent advice about the applicable limitation period for King to sue LawPro for refusing his claim to indemnity respecting the Italian judgment because:

(i) Lang Michener was not retained by King to advise on and did not advise on his claims against LawPro;

(ii) King had no valid claim against LawPro because:

a. the limitation period for King’s claims against LawPro had already long expired; and

b. King was not entitled to indemnity from LawPro for the Italian judgment in any event because that judgment did not arise from provision of legal services, but rather, it arose from fraud. [7]

Thus, Lang Michener argues, it is clear that any claim King may have had against LawPro was doomed to fail by the time that Lang Michener was involved. Accordingly, Lang Michener argues, King has suffered no damages as a result of any advice Lang Michener may have given on this issue.

I decide the Lang Michener motion in separate reasons (Lang Michener LLP v. King, 2017 ONSC 1917), in which I incorporate by reference the background facts set out in this decision.

(d) Summary and Disposition

[15] The claims against the Italian Defendants are not within Ontario’s jurisdiction and must be dismissed. If I had concluded otherwise, I would have concluded that Ontario is not a convenient forum for these claims and that this court ought to decline jurisdiction in favour of the jurisdiction of the courts of Italy.

PART II – LEGAL PRINCIPLES

[16] The issues concerning this court’s jurisdiction have two aspects. The first is jurisdiction simpliciter: does this court have a jurisdiction over the case that can be exercised. If the answer to this question is “yes”, then the second question arises: is Ontario a forum conveniens to decide the case, or should it be decided somewhere else (in this case, Italy).

[17] The leading authority on the law of jurisdiction is Club Resorts Ltd. v. Van Breda, 2012 SCC 17. [8] The principle of that case states that Ontario has jurisdiction simpliciter over a case where there is a “real and substantial connection” between Ontario and the subject matter of the claim or the defendants. This “real and substantial connection” must be such that it would be reasonable to expect the defendants to answer the legal proceedings in Ontario. Absent such a connection, the court must stay or dismiss the action for lack of jurisdiction.

[18] The plaintiff bears the burden of establishing a real and substantial connection. In Van Breda, 2012 SCC 17, the Supreme Court of Canada recognized four presumptive connecting factors:

(i) the defendant is domiciled in or resident in Ontario;

(ii) the defendant carries on business in Ontario;

(iii) the tort was committed in Ontario; or

(iv) a contract connected with the dispute was made in Ontario. [9]

This list of connecting factors is not closed, however no additional factor was asserted on this motion.

[19] The standard of proof to establish a connecting factor is a “good arguable case”. The plaintiff may rely upon the facts pleaded in the statement of claim (in this case, the counterclaim) without additional evidence except where (i) the defendant challenges the allegation; (ii) the allegation appears to be devoid of merit; or (iii) the allegation fails to demonstrate an air of reality. In these three instances, the plaintiff must lead evidence to show a “good arguable case” that a connecting factor applies. [10]

[20] If this court does not have jurisdiction simpliciter, then the action must be stayed or dismissed.

[21] If this court has jurisdiction simpliciter, then this court is required to examine the following factors to determine whether Ontario is not a convenient forum, or in traditional legal language, whether Ontario is a forum non conveniens, for the case:

(a) comparative convenience and expense for the parties and for their witnesses in litigating in Ontario or in an alternative forum (in this case Italy);

(b) the law to be applied to issues in the proceeding;

(d) the desirability of avoiding conflicting decisions in different courts;

(e) the enforcement of an eventual judgment;

(f) fair and efficient working of the Canadian legal system as a whole. [11]

Other factors may also be considered, including the location of the evidence, the jurisdiction in which the factual matters arose, any loss of juridical advantage, and the relative strengths of the connections with each jurisdiction. [12] In keeping with the caution directed by the Supreme Court of Canada, this court:

… must be mindful that jurisdiction may sometimes be established on a rather low threshold under the conflicts rules. Forum non conveniens may play an important role in identifying a forum that is clearly more appropriate for disposing of the litigation and thus ensuring fairness to the parties and a more efficient process for resolving their dispute. [13]

PART III – CONTEXT OF THESE MOTIONS

[22] This is the third set of related proceedings. The first was in Italy and resulted in the Italian Judgment. The second was the Ontario Enforcement Proceedings, including the Trial Decision of Whalen J., the Appellate Decision of the Ontario Court of Appeal and the denial of leave to appeal from the Supreme Court of Canada.

[23] The Ontario Enforcement Proceedings decided, on a final basis, that the Italian Judgment is enforceable in Ontario. King was a party to the Ontario Enforcement Proceedings, and is bound by the findings and conclusions in those proceedings. Further, the Ontario Enforcement Proceedings included findings relating to the Italian Proceedings.

[24] As will be seen, the three lawsuits now before the court are all, in some sense, derivative of the Italian Proceedings and the Ontario Enforcement Proceedings. Therefore I start with a detailed summary of the Ontario Trial Decision, which summarizes pertinent findings in the Italian Proceedings, to establish those things that have already been finally determined.

A. The Canadian Enforcement Proceedings

(a) The Trial Decision of Whalen J.

[25] Whalen J. found the following facts:

I. Overview

(a) Sincies was a large construction company engaged mainly in building public works in Italy. Because of deteriorating economic conditions in Europe, Sincies sought construction projects in other parts if the world. [para. 5 [14] ]

(b) In particular, Sincies became involved in a project in China known as the “Nansha Project” [para. 5]

(d) Sincies’ trustee in bankruptcy launched a claim in Italy against King and another co-venturer, Chan, on January 19, 1998. [para. 6]

(e) King did not defend the Italian Proceedings by the appearance deadline of January 28, 1999, or at all. [para. 6]

(f) The Italian court proceeded with the claim in King’s absence on May 16, 2000, heard testimony and received evidence, and rendered judgment on August 25, 2001 against both King and Chan for US $600,000, interest and costs. [para. 6]

II. The Co-Venture

(a) King had been retained by a Sincies affiliate to provide advice about a hotel development in Grenada. Through this contact, King learned that Sincies had a growing interest in possible projects in China.

(b) King had previous business dealings with David Chan, a Chinese-Canadian businessman with experience in Chinese commercial projects.

(c) “Nansha” was a new city to be built near Hong Kong. Sincies, with its construction experience, and its affiliate, HFM (a Swiss company experienced in hotel development and management), decided to become involved as co-venturers in a project to build a new hotel in Nansha. King was retained to put together the legal structure and joint venture agreements and “to guide the deal to completion.” [paras. 9-10]

(d) The structure of the deal was complicated. Full details are set out in the Ontario Trial Decision. In summary:

a. Sincies held its interest in the project indirectly through a Bahamian company, Splendide Hotel and Resorts International Inc. (“Splendide”). Ultimately, the shareholders of Splendide were:

i. HFM (35%) ii. Khan (25%) iii. King (18%) iv. Mehta (18%) v. Frignoli (4%)

HFM was owned 75% by Sincies. Khan was Chairman of and owned 25% of HFM. Mehta was an employee of Splendide, hired by Khan/HFM to manage another HFM project in Grenada. Frignoli was an employee and director of Sincies.

b. Splendide’s officers were Khan (Chairman and CEO), Mehta (President and COO), Triulizi (Managing Director, International Operations [Triulizi was a Sincies employee and director]), and King (Senior Vice President, Corporate Development).

c. A second corporate layer was established to structure the business deal with Chan. Splendide Holdings (Nansha) Limited (“Splendide Nansha”) was established to invest in the Nansha hotel project. The shareholders of Splendide Nansha were:

i. Sincies (22.5%) ii. Splendide (52.5%) iii. Chan (25%)

d. A third corporate layer was established with a Chinese company, Golden World Real Estate Co. Ltd. (“Golden World”). Golden World and Splendide Nansha each owned 50% of the Nansha hotel joint venture.

Whalen J. set out this share structure in a diagram at para. 18 of the Ontario Trial Decision, a copy of which is attached to these reasons as Schedule A. In summary, half of the venture belonged to Golden World, the Chinese company involved in the project. 12.5% of the venture belonged to Chan. Sincies held 11.25% of the venture directly, and 6.89% indirectly through its 75% ownership of HFM, which held 35% of Splendide, which held 52.5% of Splendide Nansha, which held 50% of the joint venture with Golden World (that is, 75% of 35% of 52.5% of 50%, which is 0.75 x 0.35 x 0.52.5 x 0.50 = .0689). It is on these calculations that Whalen J. found that Sincies’ overall ownership in the joint venture, direct and indirect, was “a little over 18%”. [para. 19]

(e) A Preliminary Joint Venture Agreement was signed in China on April 23, 1993. It contemplated that Splendide Nansha would be incorporated in the Bahamas and would be the vehicle for the international “investor group”. Splendide Nansha was incorporated on this basis in July 1993. [para. 20]

(f) The Preliminary Joint Venture Agreement required that Golden World and Splendide Nansha each contribute US $500,000 when “local authorities had granted regulatory approval”. This provision was modified by a Supplementary Agreement dated May 16, 1993, which required a capital deposit of US $800,000 from Splendide Nansha “within 7 days of the ‘Chinese government department’s’ approval of the joint venture.” [para. 22]

(g) Shortly after the Supplementary Agreement, Golden World requested that Splendide advance its capital deposit. King advised Sincies to make the payment, though cautioned that it did carry some risk with it. A funding agreement was reached among Sincies, Splendide and Chan, dated June 11, 1993, pursuant to which Sincies advanced US $600,000. A similar agreement led to Chan agreeing to advance US $200,000. [para. 30]

(h) Subsequently the co-venturers entered into a Second Supplementary Joint Venture Agreement dated June 18, 1993 which required payment of US $800,000 to Golden World by Splendide Nansha [more particularly, US $600,000 by Sincies on behalf of Splendide and US $200,000 by Chan]. US $600,000 was paid on behalf of Sincies on July 6, 1993, and the additional US $200,000 was promised from Chan by July 8, 1993. [para. 31]

(i) The Second Supplementary Joint Venture Agreement provided that the capital deposits would be refunded by Golden World “if the Chinese authorities did not grant the appropriate business licenses within 120 days.” [para. 30] Depending on how the dates are calculated, this deadline expired in October, 1993. [para. 35] On November 18, 1993, King reported to Sincies that “the application for licenses was progressing well” but had been delayed because Splendide “was a new company”. [para. 35]

(j) In early 1994, Sincies expressed concern and corresponded with King about recovering the deposit. In February, Sincies wrote to King indicating that it had received a fax written by Chan stating that Golden World was legally unable to be involved in the joint venture and that, as a result, all of the agreements were null and void. Sincies was alarmed and asked King to take steps to recover the deposit. Discussions ensued among Chan, King and Sincies about what to do, with Chan and King favouring delay to the end of June 1994 (in the hopes that approvals would be forthcoming) and agreeing to try to find a new investor to take over from Sincies in the project. Sincies considered this advice and then reiterated its intention to seek refund of its deposit. [para. 41]

(k) In March 1994 there was a falling-out between Sincies and King, with Sincies placing substantial responsibility on King for the situation with the deposit. King disagreed and took offence at this characterization. [para. 43]

(l) On August 9, 1994, Splendide Nansha held a shareholders’ meeting and decided to demand formally from Golden World return of the deposit if approvals were not received by August 15, 1994. The approvals were not received by this deadline and the demand for return of the deposit was made to Golden World. [para. 46]

(m) By fax dated September 30, 1994, Chan advised that Golden World considered that the delays were the fault of Splendide, for failure to provide necessary information to Chinese authorities. Chan also advised that the approvals had finally been given, on September 29, 1994. Notwithstanding this information, Sincies decided that it did not want to continue with the project because it had lost confidence in Chan. [para. 47]

(n) Sincies was unable to get information about the deposit and so sent an executive to China in April 1995 to try to track down the money. As a result, Sincies learned that Chan had committed the US $600,000 to an entirely new project, and as a result the money was effectively “out of reach”. Purporting to be an authorized agent of Sincies, Chan had apparently signed a new joint venture agreement almost a year earlier, on May 18, 1994. Chan told Sincies’ representative that King had authorized his signing the new joint venture agreement on behalf of Sincies. [para. 48]

(o) Sincies was declared bankrupt by an Italian court on April 14, 1995. [para. 49]

(p) The Sincies deposit of US $600,000 has never been recovered.

III. Investigation and Litigation in Italy

(a) Sincies’ Trustee in bankruptcy did not launch an immediate claim in respect to the Splendide transactions, but instead investigated them. In 1996, the Trustee retained Andrea Giardina as counsel to investigate the Chinese transaction, with a view to commencing legal proceedings if appropriate. Mr Giardina was a senior member of the Italian bar, having practiced since 1968, and being a professor of law at the University of Rome where he taught International Law, Conflicts of Law and International Civil Procedure. [para. 51]

(b) Giardina wrote repeatedly to King asking for explanations of the transactions. He indicated that he could not understand why Sincies had apparently paid 80% of the deposit when it only held an 11.25% interest in the project. King responded that Sincies’ participation was significantly more than 11.25%, that he did not have all the records and so could not answer in greater detail, and that he had ceased his involvement in matters when his legal accounts remained unpaid. King failed to respond to Giardina’s follow-up letters, because, he explained, Giardina had not offered to pay him for his work explaining matters and he felt it would normally be something for which he should have been compensated. [paras. 53-54]

(c) On April 11, 1997, Giardina wrote to King that unless he received a satisfactory response leading to a resolution within 20 days, he would commence legal proceedings against King on behalf of Sincies’ trustee. King did not respond, and on January 19, 1998, a writ was issued against Chan and King summoning them to appear before the Italian court on January 28, 1999. The writ was translated and served on King in February and April, 1998. [para. 55]

(d) In the writ, Sincies’ trustee alleged that the Nansha hotel project was a scheme designed by Chan and King to induce Sincies to part with US $600,000 and “no other purpose”. The “entire project” was alleged to be “nothing else but a screen” to induce Sincies to part with its money without recourse. [paras. 57-62]

(e) King did not respond to the writ until January 8, 1999, virtually the eve of the hearing before the Italian court (scheduled for some 20 days later). In the letter King explained that he would not attorn to the jurisdiction of the Italian court because:

a. he had been given legal advice that the Italian courts did not have jurisdiction over the claims against him;

b. the personal cost of appearing in Italy would be high. [para. 63]

(f) In his letter King also asserted his own good reputation and characterized the claim as a “misinformed and vicious slander of me in alleging both dishonesty and professional incompetence”. [para. 63]

(g) King then set out his position:

a. he had complete files available to Giardina for inspection and copying but which Giardina had never requested;

b. he had always been willing to assist Sincies and the trustee provided he was compensated for his time and his outstanding accounts were paid;

c. allegations in the writ were incorrect in numerous material ways (itemized by Whalen J. in the Ontario Trial Decision). [para. 64]

(h) King then asked Giardina, as “a professional courtesy” to inform the Italian court of King’s position and to file King’s letter with the court. King offered to testify under oath if his expenses were paid and provided the claims against him were withdrawn (to be revived if any evidence “reasonably contradicted” the account King had set out in his letter). [para. 65]

(i) Giardina responded by letter dated January 18, 1999. He noted that King had not responded to three prior requests for information, but now indicated that he was ready to disclose his files. Giardina advised that he was instructed not to withdraw the claim against King. He advised that Italian rules of court did not permit him to file documents with the court that were in the interest of an opposing party unless it was also in his own client’s interest. He advised King to appoint Italian counsel to protect his interests and to explain all the “procedural and substantive arguments” set out in King’s letter. [para. 66]

(j) King wrote back to Giardina expressing his disappointment and asking again that his letter be filed with the Italian court. Giardina did not respond to this letter. [para. 67]

(k) In his affidavit in the Ontario Enforcement Proceedings, Giardina acknowledged that King’s letter contained “strongly worded denials”, but he also noted that King’s letter was not accompanied by documents to substantiate its contents, nor did it contain an affidavit or other sworn statement. Giardina testified that under the Italian rules of court, he had no obligation to file a document sent to him by an opposing party. This evidence was not contradicted by other evidence in the Ontario Enforcement Proceedings. [para. 68]

(l) A hearing commenced in the Italian Proceedings on May 16, 2000. The Italian court released its judgment and reasons on August 25, 2001. It considered two general claims against King: (i) “contractual” based on King’s professional obligations as a lawyer working on the transaction, and (ii) “extra-contractual” (what would be described as “tort” under Ontario law), including allegations of deceit and fraud. [paras. 70-71]

(m) The Italian court concluded that it did not have jurisdiction over the “contractual” claims because King’s services were performed outside Italy. It concluded that it did have jurisdiction over the “extra-contractual claim” because it was a scheme by which King and Chan had made fraudulent misrepresentations to an Italian company, located in Italy, which had induced the Italian company to pay US $600,000 from Italy, causing loss that was suffered by an Italian company in Italy. [para. 73]

(n) Having found jurisdiction over the “extra-contractual claim”, the Italian court then concluded, on the evidence before it, that the claim was proved, and gave judgment against both King and Chan for US $600,000, plus interest and costs. [para. 73]

[26] Whalen J. found:

(i) I find nothing wrong with the Trustee’s or his counsel’s careful approach, or the time they took to investigate given that they would not have been familiar with the company’s business affairs to begin with. [para. 107]

(ii) The other critical piece of information I am satisfied on a balance of probabilities that neither the Trustee nor Giardina possessed… was the shareholders’ agreement of April 2, 1993. This was the document that set out the basic overall design of the intended joint venture…. It was evident from this document that Sincies’ opportunity to make a significant profit lay in the joint venturers’ intention to contract with it to build the hotel complex…. This was crucial information in understanding the bigger picture. Without it, the Trustee and Giardina would not likely understand why Sincies would contribute nearly 80% of the capital (i.e. the ultimate U.S. $600,000) while only having an 11.25% interest in the joint venture itself…. [paras. 109-110]

(iii) … I am convinced that the Trustee and Giardina did not likely understand the full design of the joint venture or the relationship within the European component. Although King eventually alerted them to the possibility, they were not likely fully appreciative or persuaded until productions were made in the present motion. The Trustee presented the facts to the Italian court as he was aware and understood them, and his interpretation and framing of the claim was accordingly based on that level of understanding. [para. 112]

(iv) Although it is not my job on this motion to try or retry the claim that was presented to the Italian court, I feel compelled to make some comment on its viability. After taking a close look, including reviewing all the transcripts and documents presented on the motion, I conclude that the Trustee had a tenable claim that was arguable on its face. There was sufficient evidence for the Italian court to come to the conclusion it did, and I am satisfied that the court was careful in reaching its conclusions. On the other hand, I am quite sure that King could have mounted a vigorous defence had he chosen to do so. Had that occurred, with a fuller slate of witnesses who were examined and cross-examined, it is difficult to say what the outcome might have been, although that is not the question before me. [para. 147]

(v) I am convinced that much of King’s difficulty in this case is rooted in the nature of his retainer and his relationship to the project. It is difficult not to conclude that he was wearing too many hats, and was thus seriously conflicted. Many times throughout the events described, I found myself wondering whose interest he was advancing. There is no question that he was Splendide’s and Sincies’ legal counsel for the joint venture. At the same time, however, he was a shareholder in Splendide and thus had a personal interest in the larger joint venture. I am concerned that he was also acting for Chan. It is clear that from around the end of October 1993, Sincies’ and Chan’s interests were at odds. [para. 148]

(vi) As I have already observed, it may well be that King could have mounted a strong and effective defence before the Italian court had he elected to do so. However, I am satisfied that Sincies’ complaints (and therefore the Trustee’s) were not without merit, which was founded on the cumulative and combined effect of all of the matters I have just discussed and the broader context they created. There was sufficient evidence for the Italian court to reach the conclusion it did when King opted not to enter a defence. [para. 174]

[27] Whalen J. analyzed the Canadian law relating to enforcement of foreign judgments in detail and concluded that “there is a real and substantial connection between the forum, the cause of action and the parties in this case.” [para. 192] He then considered King’s arguments that the Italian judgment ought not to be enforced in Ontario because of fraud, natural justice and public policy. In respect to these defences, Whalen J. found as follows:

(i) The Defendant’s allegations of misleading the court have been dealt with earlier in some detail and do not need to be repeated. I have found that the Trustee and Giardina did not mislead the court. Nor can I conclude that either of the Trustee or Giardino abused their positions as officers of the court. [para. 195]

(ii) The Trustee and Giardina were reasonable and correct in their assessment of King’s hostility to Sincies and Triulzi’s position…. If he [King] had something to say to the court or wished to defend himself, he should have done so by participating in the process. I see nothing in what the Trustee or Giardina have done that denied King in any way from participating in the Italian litigation process if he had wished to do so. [para. 196]

(iii) Nor do I consider the Trustee’s and Giardina’s refusal or failure to put King’s undocumented and unsworn position (as stated in his January 1997 letters) before the court as improper or a denial of fairness. They did not have an obligation to investigate King’s position as stated at the eleventh hour in those letters, although I accept that the Trustee did in fact attempt to investigate the matter before issuing the writ. In my view, the Trustee and Giardina were only required to put before the court what evidence they thought important and necessary for purposes of obtaining the relief sought. They could not, of course, knowingly mislead the court and I have found that they did not do so in this case…. There was no breach of natural justice or public policy in the way the Trustee and Giardina conducted themselves before, during or after the commencement of the litigation in Italy. [para. 197]

(iv) King has compared the hearing to an ex parte proceeding, in which there must be full and frank disclosure of all material facts to the court, and where an applicant must act with utmost good faith. Failure to meet these standards will justify a resulting order being set aside with relative ease. However, this was not an ex parte proceeding. King was properly served and fully aware of his rights and the consequences of not appearing or participating. It was a default proceeding, where the Defendant was fully aware of the claim and his opportunity to appear in his own defence. I have found that the Plaintiff did not mislead the Italian court in this case. There was no failure of natural justice or insult to public policy arising from the fact that the matter proceeded upon the Defendant’s informed default in appearing and defending. [para. 201]

[28] Whalen J. rejected King’s defences to enforcement of the judgment and concluded:

I therefore conclude that there is no viable defence on the basis of any failure of natural justice or public policy. Given my factual findings in respect of the allegations that the Italian court was misinformed and misled into taking jurisdiction that it would not otherwise have accepted, I conclude that there is no defence based on fraud either. King had possession of all the facts necessary to defend himself on the merits, had he chosen to do so. No new facts or allegations were raised or placed before the Italian court that King either did not have or that he could not have previously discovered through the exercise of reasonable diligence. This is also true of the factual allegations that King said misled the court into accepting jurisdiction. [para. 204]

[29] Whalen J. also disposed of King’s counterclaim, and did so on the following basis:

In view of my findings and the resulting orders, the Defendant’s counter-motion is dismissed, including the counterclaim. My factual conclusions do not support the counterclaim on the merits. In any event, the time for a counterclaim was when the claim itself was served. The Defendant cannot now do indirectly what he failed to do when he was served with the writ. [para. 207]

[30] King was represented by Lang Michener on the motion for summary judgment before Whalen J.

(b) The Appellate Decision of the Ontario Court of Appeal

[31] King’s appeal to the Ontario Court of Appeal was argued on September 24, 2012, and decided by brief endorsement released October 1, 2012. In upholding the decision of Whalen J., the Court of Appeal concluded that Whalen J. “was cognizant of the principles of order and fairness that underlie the modern concept of private international law…. [King] knew that his advice would be received and acted upon in Italy…. He is a sophisticated party who should have expected to be called to account in Italy.” [15]

[32] In respect to King’s argument that there was a denial of natural justice, the Court of Appeal held that there was no denial of natural justice: “[t]he reality is that the Italian court proceeding was not an ex parte hearing; it proceeded as a default proceeding only because the appellant choose not to appear in his own defence.” [16]

[33] In respect to King’s argument that the trustee and his counsel perpetrated a fraud on the Italian court, the Court of Appeal held that “[a]fter a careful and extended analysis, the motion judge concluded that ‘the Trustee and Giardina [the Trustee’s counsel] did not mislead the court. Nor can I conclude that either of the Trustee or Giardina abused their position as officers of the court.’ We agree with this conclusion.” [17]

[34] King was represented by new counsel on the appeal, not by Lang Michener. [18]

(c) Leave to Appeal Refused by the Supreme Court of Canada

[35] King’s application for leave to appeal to the Supreme Court of Canada was dismissed on March 28, 2013. [19]

PART IV – ANALYSIS OF THE ISSUES ON THIS MOTION

[36] In 2009, King sued the Italian Defendants in Ontario – court file CV-09-384687. Mr Giardina was senior counsel for Sincies’ trustee in the Italian Proceedings. Ms Sasson assisted Mr Giardina. Chiomenti Studio Legale was their law firm.

[37] King’s allegations against these defendants fall into two categories:

(a) they were in conflict of interest when they acted against King in the Italian Proceedings; and

(b) they misconducted themselves in the Italian Proceedings (conduct characterized as negligence, misfeasance of office, and wilful misconduct).

[38] The Italian Defendants move to dismiss all of these claims against them on the basis that Ontario lacks jurisdiction over the claims.

(a) Background Facts

1. The Alleged Conflict of Interest

[39] King’s allegations of conflict of interest are based on facts unrelated to the Sincies litigation.

[40] King had a longstanding solicitor/client relationship with Royal Bank of Canada (“RBC”). RBC retained Gowling, through King, in connection with a file called “Fulcrum” (the name of RBC’s borrower). Fulcrum encountered financial difficulties. One of Fulcrum’s assets was in Italy. RBC considered seeking security in the Italian assets. Gowling retained lawyers at Chiomenti to advise on Italian law related to RBC obtaining security over Fulcrum Italian assets. The underlying client was RBC. The retainer of Chiomenti was by Gowling, as principal legal advisor to RBC on the file.

[41] King argues that Chiomenti had a conflict of interest suing him personally while at the same time being retained by him and receiving instructions from and reporting to him in connection with the Fulcrum file.

2. The Alleged Misconduct in the Italian Proceedings

[42] The alleged misconduct of the Italian Defendants is particularized below when considering the locus of the alleged torts. Two points are worth making at the outset, however. The first is the underlying premise of this claim: that the Italian Defendants, as counsel to Sincies’ trustee, had some sort of duty to King, an adverse party, in the conduct of the Italian Proceedings against King. The second is the obvious abuse of process in these claims: these claims could and should have been raised:

(i) in the Italian Proceedings; and

(ii) in the Ontario Enforcement Proceedings.

And in fact they were raised in and decided in the Ontario Enforcement Proceedings: see my summary of the decision of Whalen J. at paragraphs 26 to 29, above. This is “follow-on” litigation: King lost a case, so now King sues his opponent’s lawyers and claims that their victory was obtained by fraud and related misconduct. This kind of claim is almost always impermissible. [20] In the circumstances of this case, there was no relationship of proximity between the Italian Defendants and King that would give rise to a duty of care owed to King. The Italian Defendants did not make a promise to or mislead King: Giardina expressly refused King’s request to place King’s letter before the Italian court and advised King to get Italian legal advice and representation. The allegation that the Italian Defendants misled the Italian court has been decided against King definitively by Whalen J., and in any event was an issue to be raised with the courts of Italy. Where, as here, the allegation is that a barrister has misconducted himself in court proceedings in a foreign jurisdiction, the remedy is in that foreign court and not in Ontario:

… as the respondent was acting for the opposite party in litigation, she owed the appellant no legal duty…. As the claim rests on [the lawyer]’s conduct of litigation in Texas, it would be incumbent on the appellant to raise any objection to that conduct in the courts of Texas. [21]

[43] King argues that these issues have not been decided already by Whalen J. He argues that Whalen J.’s decision is restricted to the conduct of the Italian defendants as “officers of the court” and as “trustees” and/or “counsel to the trustee” in the Italian Proceedings. This case, he argues, is about the conduct of the Italian Defendants in their capacity as persons owing him a duty as a result of the Fulcrum retainer. This is sophistry. All aspects of King’s complaints about the Italian Defendants were before Whalen J. The Ontario Trial Decision disposes of all of those complaints. It was for King to raise all of his complaints in the Ontario Enforcement Proceedings. And if King believed that he had raised these arguments but that Whalen J. had failed to dispose of them, then it was for him to raise those issues on appeal. The case – the entire case – has been heard and decided against King.

[44] It is patently obvious, from the outset, that there is no serious argument for jurisdiction over these claims in Ontario.

(b) No Substantial Connection to Ontario

[45] King argues that Ontario has jurisdiction over these claims because (I) the Italian Defendants carried on business in Ontario; (II) a tort was committed in Ontario; and (III) a contract connected with the dispute was made in Ontario.

A. No Jurisdiction Simpliciter in Ontario

(I) The Italian Defendants Did Not Carry On Business in Ontario

[46] The Italian Defendants carried on business in Italy. They were retained in Italy, by an Italian trustee in bankruptcy in connection with the bankruptcy of an Italian company. In the course of that retainer these defendants made inquiries of King, in his capacity as a shareholder and corporate officer in a venture in which the Italian company had been involved, and in his professional capacity as a lawyer who did legal work for the Italian company in connection with investments in the Caribbean and in China. The Italian Defendants then commenced and prosecuted legal proceedings in Italy against King.

[47] To establish that the Italian Defendants “carried on business” in Ontario, King must show some degree of business activity which is sustained for a period of time. An isolated transaction or series of transactions does not equate to carrying on business in the jurisdiction. [22]

[48] The Italian Defendants had no business premises in Ontario. They provided no services in connection with a business or activity taking place in Ontario. They are not licensed to practice law in Ontario. They do not market their services in Ontario. They do not visit Ontario regularly.

[49] King argues that Chiomenti carried on business in Ontario by virtue of his retainer of Chiomenti, on behalf of RBC in the “Fulcrum matters”, to provide advice and services to RBC in connection with the law of Italy, and in particular, in respect to security sought by RBC in Italy. The Italian Defendants argue succinctly that “[t]his is nonsense.” They are correct: this argument is nonsense. Merely having customers in another jurisdiction does not equate to carrying on business in that jurisdiction. [23] As Stinson J. has put it:

If the test is ‘did you do work for Ontario-based clients?’ in my view that would be tantamount to creating a universal jurisdiction in this Court for all Ontario-based businesses in relation to all their foreign suppliers, a notion that the Supreme Court cautioned against in Van Breda, 2012 SCC 17. [24]

[50] In the Fulcrum matter, Chiomenti provided services in Italy, including drafting an agreement intended to be enforced in Italy, under Italian law, and provided opinions on Italian law. No one from Chiomenti came to Canada in connection with the Fulcrum matter.

[51] King also alleges that the Italian Defendants carried on business in Ontario because “[p]art of their investigation occurred in Ontario”. King has provided no evidence or particulars of this allegation, other than (i) the record of undisputed correspondence sent to him and to Chan in Ontario from the defendants in Italy; and (ii) the arrangements made by the defendants, from Italy, for service of the Italian court papers in Ontario. To suggest that these steps constitute carrying on business in Ontario is, as these defendants argue, “absurd”.

(II) No Tort Committed In Ontario

[52] King particularizes alleged breaches of duty by the Italian Defendants as follows:

Failing to withdraw from their retainer by Sincies’ Trustee after they had knowledge of their conflict of interest;
Negligently investigating claims against King;
Making statements to the Italian court which were inflammatory, had no reasonable foundation in fact and were unfairly prejudicial to King;
Failing to produce documents they knew to be exculpatory of King;
Cancelling letters rogatory to prevent the Italian Court from hearing King’s evidence;
In their Statement of Conclusions falsely claiming that King “later disappeared when it emerged clearly that the entire matter was a mis-en-scene” when during this period, King was instructing another member of Chiomenti on the Fulcrum file;
Not disclosing to the Italian Court King’s offer to testify; and
Not informing King of the Italian judgment for 5 years, after the expiry of his appeal rights. [25]

All of this alleged conduct took place in Italy, in connection with the Italian Proceedings against King. None of it happened in Ontario.

[53] Any cause of action arising from the Fulcrum matter for RBC would have arisen in Italy, where Chiomenti provided legal services to RBC through Gowling. The fact that King was in Ontario when he alleges that he contacted Chiomenti to arrange for legal services in Italy for his client, RBC, does not render negligence in the provision of services in Italy a tort in Ontario. [26]

[54] The Italian Defendants argue vigorously that no contract was made in Ontario to provide Italian legal services to RBC in connection with Fulcrum. On the record before me, it is not clear whether the retainer contract in the Fulcrum file was “made” in Ontario, in Italy, or in both places. It is clear, however, the law of that contract is the law of Italy and that the contract was intended to be performed entirely in Italy.

[55] Further, King has not satisfied me that there is a good argument that the Fulcrum retainer was in any way related to the claims asserted against him on behalf of Sincies’ trustee:

(a) King did not personally retain Chiomenti in connection with the Fulcrum matter. King was not the client. RBC was the client.

(b) The contract for Chiomenti’s services in the Fulcrum matter was entered into by Gowling on behalf of RBC. King was not a party to the retainer contract.

(c) The subject-matter of the Fulcrum retainer was entirely distinct from the Sincies claims against King. There is no evidence that anything learned by Chiomenti during the course of the Fulcrum matter was in any way relevant to the Sincies claim against King. [27]

(d) Chiomenti was retained in the Fulcrum matter after it had been retained in the Sincies matter, and after it should have been clear to King that Sincies’ trustee was investigating him and threatening legal action against him.

(e) None of King, Gowling or RBC took timely steps to compel Chiomenti to withdraw from the legal proceedings against King. None of King, Gowling or RBC terminated Chiomenti’s involvement for RBC in Fulcrum upon learning of Chiomenti’s involvement pursuing a claim against King.

[56] The Fulcrum retainer was not related to the Sincies matter. It is “connected” to this litigation only by reason of the allegation that the Italian Defendants had a conflict of interest. The applicable law respecting conflicts of interest and lawyers’ duties of fidelity are matters of Italian law and Italian professional standards. Even if the Fulcrum retainer was technically “made” in Ontario (a debatable proposition), that fact alone is not a substantial connection to Ontario. The “connecting factors” set out by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda, 2012 SCC 17 create a rebuttable presumption of jurisdiction simpliciter. Here, where in all material respects the contract is an Italian contract, the fact that it may technically have been “made” in Ontario, or in both Ontario and Italy, is not sufficient to be a “substantial connection” to Ontario.

Conclusion: No Jurisdiction Simpliciter

[57] King has not shown a good arguable case (i) that the Italian Defendants carried on business in Ontario; (ii) that an alleged tort was committed in Ontario; or (iii) the locus of a contract connected to the dispute is in Ontario (even if that contract may have been technically “made” in Ontario or in both Ontario and Italy). I conclude that there is no “real and substantial connection” between the claims against the Italian Defendants and Ontario, and thus that Ontario does not have jurisdiction simpliciter over these claims.

B. Ontario Is A Not A Convenient Forum for These Claims

[58] I have concluded that Ontario lacks jurisdiction simpliciter over King’s claims against the Italian Defendants. Had I concluded otherwise, I would have concluded that Italy is clearly the convenient forum for these claims, and would have dismissed these claims on that basis.

(a) the comparative convenience and expense for the parties to the proceeding and their witnesses in litigating in the court or any alternative forum

[59] It would be substantially less expensive and far more convenient for the parties to try this case in Italy than in Ontario. Almost all of the witnesses reside outside Ontario, mostly in Italy. The conduct of the Italian Defendants in representing the Italian trustee of Sincies will involve consideration of Italian law and Italian rules of professional responsibility for trustees and for lawyers. Work done by Chiomenti on the Fulcrum matter will involve consideration of Italian law. The issue of whether there was a conflict in Chiomenti acting on Fulcrum and also suing King on behalf of the Sincies trustee will involve consideration of Italian legal norms. If the case is tried in Ontario, extensive expert evidence will be required as to the applicable law of Italy. Most of the witnesses would need to testify in Italian. A significant proportion of the paperwork would be in Italian.

[60] King asserts that it would be difficult for him to be a self-represented litigant in Italy because he does not speak Italian and is not familiar with Italian law. King asserts that it would be expensive for him to retain counsel in Italy. King was a long-time partner in a leading Canadian law firm. He practiced international business transactions. In the Ontario Enforcement Proceedings, Whalen J. found:

I do not find it unfair that King would be subject to Italian jurisdiction. He was a specialist in international commercial law and conducted his business in many locations outside Toronto, Ontario and Canada…. It is not unfair that a professional who operates on a worldwide basis should be subject to foreign jurisdictions. [28]

[61] This factor strongly favours Italy.

(b) the law to be applied to issues in the proceeding

[62] The applicable law is Italian. Even if it is concluded that the contract to retain Chiomenti was made in Ontario, the applicable professional standard to the work to be done by Chiomenti is Italian: the firm was retained to provide Italian legal services, on questions of Italian law, in respect to assets located in Italy. In the absence of an express choice of law provision (as is the case here on any theory of the facts), the court applies an objective test to determine which system of law has the “closest and most real connection” to the contract.

[63] The result is the same if the case is analysed on the basis of a claim in tort or a claim in breach of fiduciary duty: the applicable law is Italian. [29]

[64] This factor overwhelmingly favours Italy.

(c) the desirability of avoiding multiplicity of legal proceedings

[65] None of the defendants are present in or have assets in Ontario. King would have to enforce any judgment he obtains in Italy.

[66] In addition, King seeks relief in this proceeding that is simply not available in Ontario. He seeks a declaration (i) that there was no evidence of fraud in the Italian Action; and (ii) a mandatory order that the defendants take all necessary steps to have expunged in Italy and record alleging or finding fraud on King’s part. [30] These claims for relief seek to relitigate the decision in the Italian Proceedings, which is a collateral attack on the Italian judgment and the decision of Whalen J. King’s recourse on these points, his only recourse on these points, is to seek relief in the courts of Italy, either by seeking to have the Italian judgment re-opened, or by way of appeal of that judgment.

[67] It is appropriate to note the implications of King’s claims here: he seeks to undo the blight to his reputation of findings of fraud and deceit made against him by the courts of Italy. He failed to defend those allegations in the Italian Proceedings. When the Italian judgment was brought to his attention, he did not appeal it, did not seek to have the time for an appeal extended, did not seek to have the judgment varied, set aside or re-opened. He did not make the claims he now asserts against the Italian lawyers, in Italy, in support of efforts to salvage his own good name. In the Ontario Enforcement Proceedings, Whalen J. found that there was a basis for the Italian court’s findings of fraud and deceit, that the requirements of fairness and natural justice do not impede enforcement of the judgment in Ontario, and that he could not conclude that the findings of fraud and deceit are necessarily in error. In this proceeding, King seeks an order that the findings of deceit and fraud were in error (a collateral attack on the decisions in Italy and of Whalen J.), and an order forcing Italian lawyers to take steps in Italy to vindicate King’s good name. These claims are wholly misconceived in Ontario: the only place that King can obtain this relief is before the courts of Italy.

[68] This factor overwhelmingly favours Italy.

(d) the desirability of avoiding conflicting decisions in different courts

[69] Creating a conflicting decision to the Italian judgment is part of the relief requested in this proceeding.

[70] This factor strongly favours Italy.

(e) the enforcement of an eventual judgment

[71] As noted above, if King succeeded in this proceeding he would have to enforce the judgment in Italy. Further, part of the relief requested is for the defendants to take particular steps to achieve certain results in the courts of Italy.

[72] This factor strongly favours Italy.

(f) the fair and efficient working of the Canadian legal system as a whole

[73] This factor is most commonly invoked in cases assessing the relative convenience of competing Canadian jurisdictions: an assessment should be made of the fairness and efficiency of the overall justice system.

[74] This factor can be extended, by analogy, to a consideration of the “fairness and efficiency of the overall justice system” taken as a whole: that is, the principles of order and fairness that ought to apply to conflicts of law and judicial comity between legal systems. The Court in Rome effectively applied such considerations when it concluded that it did not have jurisdiction over claims against King for breach of professional standards.

[75] I would not place weight on this factor in this case because it was not argued in this way on this motion, and it is not necessary to a decision: this factor favours Italy, but the overall weighting of factors already favours Italy so strongly that it is not necessary to also rely on this factor in order to decide this motion.

(g) the location of the evidence

[76] The location of the witnesses favours Italy. I do not consider that the location of the physical evidence, in this case, is material. The physical evidence is portable, and could conveniently be available in either Canada or Italy. This factor is neutral.

(h) the jurisdiction in which the factual matters arose

[77] This point strongly favours Italy: the material events for this claim took place almost entirely in Italy.

(i) any loss of juridical advantage

[78] King has not identified a juridical advantage that he would have in Ontario that he would lose if the case proceeds in Italy. [31]

[79] The defendants argue that King’s claims against them are “doomed to failure” and thus that he has no juridical advantage in Ontario. [32] I am not comfortable with this line of argument: it is effectively a motion for summary judgment on the merits within a motion based on jurisdiction, and not one based on material differences between the laws of Italy and those of Ontario.

[80] King argues that the claims against the Italian Defendants are connected to other litigation in Ontario:

(a) King’s claims against Gowling and O’Toole;

(b) King’s claims against Lang Michener; and

[81] These claims are tactically connected because King wishes them to be so. There is nothing to prevent Sincies’ trustee from enforcing its judgment against King, and no legal basis on which to delay that enforcement pending decisions in King’s outstanding litigation.

[82] These claims are factually connected in one sense only. Each case is based on a theory that someone other than King is responsible for King losing the Italian Proceedings and the Ontario Enforcement Proceedings:

King alleges the Italian Defendants are responsible because they acted for Sincies’ trustee in conflict of interest and misconducted themselves in the Italian Proceedings, thereby wrongly obtaining the Italian judgment.
King alleges that Gowling and O’Toole are responsible because (a) of negligent advice not to attorn to the jurisdiction of the Italian courts and not to report the claim to LawPro; and (b) Gowling has an obligation to indemnify King for the Italian judgment.
Lang Michener was negligent in its defence of King’s position in the Ontario Enforcement Proceedings and in its advice not to commence a legal proceeding against LawPro before the limitation period for that claim expired.

[83] While there might be some judicial economy achieved in trying these three claims together, or serially before the same judge, this economy is not a “juridical advantage”. The applicable legal principles are not affected, whether these claims are tried together, serially, in separate trials before separate finders of fact, or in different jurisdictions. In the absence of any identifiable difference in the legal principles that would be applied to the claims against the Italian Defendants, King has not established a juridical advantage available to him in Ontario.

[84] King notes that his three Ontario actions are all under common case management. The decision to place these cases under common case management was not based on a finding that the cases are so connected as to warrant consolidation or trial before the same trier of fact. The primary reason for case management was to avoid substantial scheduling complexities. King’s spouse is a retired Justice of the Ontario Superior Court, a person personally known to many judges on this court. If these cases were processed in the ordinary manner, it is foreseeable that, as a result of usual random scheduling in civil motions court, the parties would find themselves scheduled to appear before a judge who would have to recuse herself. The case was assigned to me because I do not have a close personal association with King’s spouse, and, although I have been on the Superior Court for nearly 14 years, including a period during which King’s spouse was also on this court, I was chambered in a different region for 9 years and did not spend material time presiding in Toronto until after King’s spouse had retired from the court. The case management arrangements are not a “juridical advantage” that could affect the outcome of these cases on the merits, but are matters of efficient and prudent internal administration to avoid any apprehension of bias.

[85] I conclude that King has no juridical advantage in Ontario that will be lost if he is forced to proceed in Italy. This factor is neutral.

(j) the relative strength of the connections with each jurisdiction

[86] There is only one connection to Ontario in this case: it is the place where King resides and, as a consequence, the place where Sincies’ trustee must pursue enforcement of the judgment it obtained in Italy.

[87] At its core, this case concerns the legal and professional obligations of Italian lawyers in the conduct of legal proceedings in Italy. These are matters best decided by the courts of Italy, not Ontario.

[88] This factor strongly favours Italy.

Summary and Conclusion Respecting the Convenient Forum

[89] None of the factors favour Ontario. A few are neutral. For a few, there are points on both sides but the balance favours Italy. Many strongly or overwhelmingly favour Italy. As matters of overall judicial economy and proper comity, I conclude that these claims ought to have been raised within the Italian Proceedings, when the issues first came to King’s attention. To the extent that these matters came to King’s attention after judgment was given in Italy, then these matters ought to have been raised in Italy, either by way of appeal or as bases for the Italian courts to reconsider or set aside the Italian judgment. King’s argument against these propositions is that he did not learn about the Italian judgment until after the appeal period had expired. If the judgment had been from an Ontario court, in the same circumstances, it would have been open to King to seek an extension in the time to pursue an appeal and/or he could have moved to set aside the judgment. There is no evidence before this court that similar options are unavailable or are impractical in Italy.

[90] I find that Ontario is forum non conveniens for these claims, and that Italy is the convenient forum for them.

Disposition and Order

[91] Ontario does not have jurisdiction over the claims against the Italian Defendants. King’s entire action against them is dismissed.

[92] If the parties cannot agree on costs then the Italian Defendants shall provide their costs submissions in writing by April 21, 2017 and King shall provide his responding submissions in writing by May 12, 2017.

D.L. Corbett J.

Released: March 24, 2017

Schedule A

Nansha Project (100%)

Golden World 50% + Splendide Holdings 50%

Chan 25% + Sincies 22.5% + Splendide 52.5%

HFM 35% + King 18% + Mehta 18% + Frignoli 4% + Khan 25%

Sincies 75% + Khan 25%

The arrows point to the ownership of the underlined entity. Thus, for example, Khan owns 35% of HFM. King owns 18% of Splendide, which in turn owns 52.5% of Splendide Holdings, which in turn owns 50% of Nansha Project. “Splendide Holdings” is the term used by Whalen J. for the entity defined in these reasons as “Splendide Nansha”.