Court of Appeal for Ontario

Citation: Straus v. Decaire, 2007 ONCA 854

Date: 2007-12-07

Docket: C46861

Between:

Joseph Straus and Angela Straus

Plaintiffs (Respondents)

and

Roy Decaire, RBC Investors Choice Inc., Investment Planning Counsel of Canada Limited, Fundex Investments Inc., Pacific International Securities Inc., Orion Securities Inc., Spectrum Meditech Inc., IRG Services Ltd., Cyclone Investments Inc., Northgate Holdings Inc., Millenium Medical Supply Inc., Millenium Medical Supply Corp., Kelly Fielder, Richard Savage and Nicola Moore

Defendants (Appellants)

Before: Doherty, Moldaver and Gillese JJ.A.

Counsel:

Kenneth A. Dekker for the appellants

Gary L. Petker for the respondents

Heard and orally released: December 3, 2007

On appeal from the order of Justice P.B. Hambly of the Superior Court of Justice dated February 21, 2007.

Endorsement

[1] The motion judge refused to stay the proceedings brought in Ontario as against Orion and Mr. Savage, two of the defendants in the claim brought by the respondents. Orion and Savage relied on an exclusive jurisdiction clause in the contract which allegedly governed the relationship between Orion, Savage and the respondents and upon which the lawsuit was in part, at least, based. That exclusive jurisdiction clause gave the British Columbia courts jurisdiction over any lawsuits arising out of the contractual relationship.

[2] The motion judge, in careful reasons, identified the correct principles governing his determination and referred at length to the relevant authorities. The motion judge ultimately determined that the respondents had shown the "strong case" required by the authorities. The motion judge declined to enforce the exclusive jurisdiction clause and refused to stay the proceedings against Orion and Savage.

[3] It is alleged that the motion judge misapprehended portions of the evidence. We have considered his reasons and find no material misapprehension of the evidence.

[4] The motion judge also reviewed the relevant authorities put before him by counsel for Orion and Savage. Some of those cases enforced exclusive jurisdiction clauses that were virtually identical to the clause in issue here. The motion judge distinguished those cases on their facts. In our view, the distinctions he drew were valid ones.

[5] The outcome of the motion depended on the weight to be assigned by the motion judge to the combination of factors that were peculiar to the specific circumstances of this lawsuit. In holding that the exclusive jurisdiction clause should not be enforced, the motion judge referred to several factors, including:

• the factual basis for the claims against Orion and Savage were part and parcel of a much larger factual picture advanced by the respondents in support of their claims against the other defendants;
• none of the other defendants have opposed the jurisdiction of the Ontario courts and several out of jurisdiction defendants have attorned to Ontario's jurisdiction;
• the respondents were relatively unsophisticated and there is no suggestion that Orion or Savage made any attempt to draw the exclusive jurisdiction clause to the respondents' attention;
• the exclusive jurisdiction clause was not the product of any negotiation between the parties, but is rather a term of the pre-printed contract which Orion requires its customers to sign;
• there is a real issue, identified by the motion judge in his reasons, as to whether the contract relied on by Orion and Savage is in fact the operative agreement as between the parties;
• the respondents signed the contract in Ontario and although they returned it to the British Columbia office, all subsequent correspondence from Orion emanated from its Ontario offices. Orion is a national firm carrying on business across Canada; and
• Orion and Savage have not demonstrated any juridical advantage that would arise in their favour by a trial in British Columbia as opposed to a trial in Ontario.

[6] In our view, deference is due to the motion judge's weighing of all of these various factors and we are not satisfied that he erred in the weight he assigned to them or in the result arrived at by him. The appeal is dismissed.

[7] Counsel have agreed that a costs order in the amount of $7,500 plus GST is appropriate for the appeal and we so order.

"Doherty J.A."

"M.J. Moldaver J.A."

"E.E. Gillese J.A."