DATE: 20040929 DOCKETS: C40322 and C40323
COURT OF APPEAL FOR ONTARIO
RE: GARRY T. MOON (Plaintiff/Appellant) -and- JONATHAN SHER, THE LONDON FREE PRESS, THOMAS LAWSON, ESTATE OF GUY LOMBARDO, THE GUY LOMBARDO ORCHESTRA, INC., represented by GINA LOMBARDO CUDAHY, AL PIERSON, NANCY PIERSON, ANNE MARIE De CICCO and THE CORPORATION OF THE CITY OF LONDON, PETER MANSBRIDGE, KAREN HASLAM, DOUGLAS FLOOD, NICK PANASEIKO, TYRONE TRAHER, THE CORPORATION OF THE CITY OF STRATFORD, and DAVE ROCK, BRUCE MUNGAR and THE CORPORATION OF THE MUNICIPALITY OF CENTRAL ELGIN (Defendants/Respondents)
BEFORE: BORINS, LANG and JURIANSZ JJ.A.
COUNSEL: Charles M. Campbell and Kumail Karimjee for the appellant
Jamie K. Trimble for the respondents Estate of Guy Lombardo and The Guy Lombardo Orchestra Inc.
Rosemary A. Fisher for the respondents Al Pierson and Nancy Pierson
Lara S. Teoli for the respondent Peter Mansbridge
HEARD: September 8, 2004
On appeal from the order of Justice Keith A. Hoilett of the Superior Court of Justice dated June 16, 2003, reported at [2004] O.J. No. 2463.
ENDORSEMENT
[1] Garry Moon, an experienced events promoter, appeals the decision staying his Ontario contract action against the respondents. The stay was granted based on the ground that Ontario lacked jurisdiction simpliciter and that Florida was the most convenient forum.
[2] In his Ontario action, Mr. Moon joined his contractual claims against the respondents in this appeal with defamation claims against the balance of the defendants. His contractual claims arose from the alleged participation of the Guy Lombardo Orchestra Inc. (“GLOI”) and Al and Nancy Pierson in terminating an agreement between Mr. Moon and GLOI permitting Mr. Moon to promote the legacy of the famous band leader Guy Lombardo initially in London, Ontario, Mr. Lombardo’s birthplace, during the one hundredth anniversary of his birth. His claims in defamation against the other defendants arose from articles published in a London newspaper, which he said led the respondents in this appeal to terminate the agreement.
[3] The appellant challenges the order staying his action on the basis that the motion judge erred in law in:
relying on a letter the appellant says was “without prejudice” and, hence, privileged;
finding the parties’ agreement contained a provision requiring disputes to be arbitrated in Florida; and
failing to take into account the creation of a multiplicity of actions with a resulting likelihood of inconsistent results.
As well, the appellant seeks leave to appeal from the motion judge’s award of $131,000 in costs.
The Letter
[4] In finding Florida to be the proper jurisdiction, the motion judge relied upon a letter written by Mr. Moon’s Florida attorney, Mr. Schutt, to Mrs. Gina Lombardo Cudahy, who was GLOI’s representative. That letter stated that the unsigned Florida agreement between Mr. Moon and GLOI reflected the agreement between them and that Mr. Moon relied on its contractual terms. Contained in that agreement was a provision requiring all contractual disputes to be arbitrated in Florida. The appellant asserts that that letter, known as the Schutt letter, was inadmissible as, by its terms, it was written “[i]n an effort to resolve this matter…”. Accordingly, says the appellant, the letter was privileged.
[5] Given the content of the letter and its context, the motion judge was entitled to conclude that this letter was not a privileged communication. In so concluding, the judge applied the correct legal principles and the evidence supported his factual findings. Further, the motion judge went on to note, even if he had decided the letter did attract privilege, that he would have been, in any event, “inclined to the same overall conclusion”(at para. 59).
The Arbitration Provision
[6] The appellant says that the respondents failed to establish that the parties specifically turned their minds to the Florida arbitration provision and agreed that it formed part of their agreement. However, in concluding that the draft agreement, including the arbitration provision, reflected the contract agreed upon by the parties, the motion judge carefully reviewed all the circumstances and held that “reasonably viewed, the draft agreement seems much more probable.” (at para. 16).
[7] We see no error in this conclusion.
Multiplicity of Proceedings
[8] In ordering a stay of the Ontario contract action, the motion judge applied the test in Muscutt v. Courcelles (2002), 2002 44957 (ON CA), 60 O.R. (3d) 20 (C.A.) at 45-53.
[9] The appellant challenges the motion judge’s conclusion primarily on the basis that it would lead to a multiplicity of proceedings with the risk of inconsistent results. While there may be some overlap between the two proceedings, particularly on the question of damages, the motion judge correctly stated that “[t]he avoidance of the multiplicity of actions, although highly desirable, is not an end in itself. It is only one circumstance, albeit an important one, that must be taken into consideration.” (at para. 51).
[10] The avoidance of a multiplicity of proceedings is the fifth of the eight elements of the Muscutt test. In arriving at his decision that the factors weighed in favour of Ontario not assuming jurisdiction over the trial of the contract action, the motion judge also carefully weighed and considered the other seven elements of that test including that the core of the contract action lies in Florida.
[11] In coming to that conclusion, the motion judge did not disregard, misapprehend or fail to appreciate relevant evidence. He did not draw any unreasonable inferences from his factual findings, all of which were supported by the evidence. Consequently, the appeal is dismissed.
Costs
[12] The court will release its reasons in the costs appeal separately, as well as its decision on the costs of this part of the appeal.
Signed: “S. Borins J.A.”
“S.E. Lang J.A.”
“R.G. Juriansz J.A”