Court of Appeal for Ontario

Citation: Pisu v. Combustion Labs Media Inc., 2007 ONCA 782

Date: 2007-11-15

Docket: C46713

Before: Simmons, MacFarland and Rouleau JJ.A.

Between:

Lazzaro Pisu carrying on business as WWW.PULA-SARDINIA.COM, Acido Global Productions Inc.

Plaintiffs (Respondents)

And

Combustion Labs Media Inc., Stephen Patrick Jagger and Wayne Capriotti carrying on business as WWW.CAPRIOTTI@DIGI-ESCAPE.COM and Digi Escape and WWW.SARDINIA.JP, and Digi-Escape Vancouver, Digi-Escape Inc. Japan, Digi-Escape China, Digi-Escape Korea, Digi Escape Italia and John Doe and Jane Doe, and John Doe, in trust for a corporation, Japan WWW.SARDINA-TOURISM.COM and China WWW.SARDINIA-TOURISM.COM

Defendants (Appellants)

Counsel:

Jonathan Davis-Sydor for the appellants Combustion Labs Media Inc. and Stephen Patrick Jagger

Patrick Di Monte for the respondents

Heard and released orally: October 18, 2007

On appeal from the order of Justice John H. Jenkins of the Superior Court of Justice dated January 19, 2007.

Endorsement

[1] In our view this appeal must be allowed. The motion judge erred in law in two respects. First, in holding the appellants’ written terms of service, which included a jurisdiction provision stipulating that any litigation between the appellants and the respondent would take place in British Columbia, were not part of the parties’ contract; and second, by failing to apply the real and substantial connection test in determining whether Ontario should assume jurisdiction over the respondent’s claim.

[2] In relation to the parties’ contract the only evidence on the record was that the terms of service were part of the contract.

[3] Further, based on our application of the real and substantial connection test, we conclude that the respondent’s claim is not sufficiently connected to Ontario to satisfy the test. Our assessment of the relevant factors is as follows:

(1) The connection between the forum and the plaintiff’s claim.

The contract between the respondent and the appellants was made, performed and breached in British Columbia and apparently provided that any litigation between the appellants and the respondent would take place in British Columbia. The fact that the respondent may have suffered some continuing damage following his move to Ontario establishes some connection to Ontario. However, that connection is outweighed by the connections favouring the appellants.

(2) The connection between the forum and the defendant.

There is no connection between Ontario and any of the defendants in the action.

(3) Unfairness to the defendant in assuming jurisdiction.

In light of the factors we have already referred to, there would be some unfairness to the defendants if Ontario were to assume jurisdiction.

(4) Unfairness to the plaintiff in not assuming jurisdiction.

Particularly in light of the jurisdiction provision in the contract between the appellants and the respondent and the fact that the respondent’s decision to move to Ontario was voluntary, we see minimal, if any, unfairness to the respondent if Ontario declines to assume jurisdiction over his claim.

(5) The involvement of other parties to the suit.

The other parties to the action are all resident in British Columbia. Although the other defendants have not challenged Ontario’s jurisdiction, they have not participated to date in these proceedings. In these circumstances we do not consider this a significant factor favouring the respondent.

(6) The court’s willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis.

In all of the circumstances, we consider this a neutral factor.

(7) Whether the case is inter-provincial or international in nature.

In all of the circumstances we consider this a neutral factor.

[4] As we have said, in our view, the totality of these factors favour the conclusion that there is no real and substantial connection between the respondent’s claim against the appellants and Ontario.

[5] Accordingly, the appeal is allowed, the decision of the motion judge is set aside and the respondent’s action against the appellants is stayed.

[6] Costs of the appeal and of the motion below are to the appellants fixed in the amount of $7,500.00 on a partial indemnity scale inclusive of disbursements and applicable G.S.T.

“Janet Simmons J.A.”

“J. MacFarland J.A.”

“Paul Rouleau J.A.”