CITATION: 582556 Alberta Inc. v. Canadian Royalties Inc., 2008 ONCA 58
DATE: 20080128
DOCKET: C47757
COURT OF APPEAL FOR ONTARIO
LaFORME, ROULEAU and WATT JJ.A.
BETWEEN:
582556 ALBERTA INC.
Plaintiff (Appellant in Appeal)
and
CANADIAN ROYALTIES INC.
Defendant (Respondent in Appeal)
Danielle K. Royal, for the appellant
Kellie Seaman, for the respondent
Heard: January 23, 2008
On appeal from the judgment of Justice Harriet Sachs of the Superior Court of Justice dated December 4, 2006.
ENDORSEMENT
[1] The appellant, 582556 Alberta Inc., appeals the decision of the motion judge granting the respondent’s motion to stay the proceedings in Ontario. It argues that she was wrong in finding that Ontario should not assume jurisdiction.
[2] The appellant agrees that the motion judge properly set out the applicable legal principles from this court’s decision in Muscutt v. Courcelles (2002), 2002 44957 (ON CA), 60 O.R. (3d) 20. That is, she correctly found that there are three ways in which an Ontario Court may assert jurisdiction over an action: (i) consent based jurisdiction; (ii) presence based jurisdiction; and (iii) assumed jurisdiction. However, the appellant argues that she erred in the application of these principles in three ways.
[3] First, it asserts that she ignored important facts resulting in an erroneous conclusion that the appellant had no presence in Ontario. Second, it says that she erred in finding that there was no real and substantial connection between the parties and Ontario that allowed Ontario to assume jurisdiction. And third, that she erred in failing to consider the principle of forum non conveniens.
[4] The parties agree that the motion judge’s determination of whether the Ontario Superior Court has jurisdiction over a matter is a question of law, subject to a correctness standard. They also agree that, in the circumstances of this case, the issue of consent based jurisdiction has no application.
[5] The issues of “presence in Ontario” and “real and substantial connection” are decided based upon findings of fact made by the motion judge. These findings of fact are entitled to deference, subject to palpable and overriding error. This court examines the legal conclusions reached by the motion judge based on those facts. We will interfere only if she erred as to the applicable principles of law, or came to the wrong conclusion.
(i) Presence in Ontario
[6] Under this ground of appeal, the appellant argues that the motion judge decided this issue having considered only the fact that one of the appellant’s mineral claims is on a property that traverses the Quebec/Ontario border. It goes on to argue that she ignored other important facts such as: the respondent’s shares are publicly traded on the TSX, and the respondent represents on its web site that it has operated as a profitable private company in Ontario and Quebec.
[7] It is true that the portion of the motion judge’s reasons dealing with this argument are brief. This issue does not appear to have been the focus of submissions before the motion judge. Nevertheless, it is clear, when her reasons are read in their entirety, that she was aware of the facts referred to by the appellant. The mere fact that she did not specifically reference them in her reasons at this precise point in her analysis does not mean that she ignored them. On the contrary, her reasons demonstrate that she was very much alive to these other factors.
[8] There does not appear to be any precise test for determining a foreign cor-poration’s presence in Ontario. Rather, decisions have been made on a case by case basis applying a variety of factors: see for example ABN Amro Bank N.V. v. BCE. Inc., 2003 64276 (ON SC), [2003] O.J. No. 5418 (Ont. S.C.J.). We see no basis to interfere with the motion judge’s findings of fact and conclusion on this issue.
(ii) Assumed Jurisdiction
[9] In deciding this issue, the appellant contends that the motion judge made various errors in her application of the real and substantial connection test. Principally, it argues that the motion judge:
(a) considered only the relationship between the plaintiff and Ontario and did not consider the relationship between the claim and Ontario;
(b) did not carry out a separate analysis of the breach of fiduciary duty portion of the claim; and
(c) misunderstood the multiplicity of proceedings con-sideration as set out in Muscutt.
[10] In oral submissions, the appellant placed particular emphasis on the breach of fiduciary duty portion of the claim. It contends that, had the motion judge done a separate analysis of this portion of the claim, she would have reached a different result. The respondent points out that this was never argued before the motion judge and this ground is neither set out in the notice of appeal nor in the factum.
[11] The failure to argue this point in the court below explains why the motion judge makes no mention of it in her reasons. While we understand that the analysis of the breach of fiduciary duty portion of the claim involves slightly different facts and considerations, we are not satisfied that it leads to a different result.
[12] Both the breach of contract and breach of fiduciary duty aspects of the claim involve a consideration of substantially the same factual matrix and the same parties. Considering and weighing the Muscutt factors with respect to the breach of fiduciary duty aspect of the claim leads to the same conclusion as was reached by the motion judge. That is, the real and substantial connection has not been established.
[13] As for the remainder of the errors alleged to have been made in respect of this issue, in our view, the motion judge adequately dealt with each of the Muscutt factors. While this court might have applied the factors slightly differently and the motion judge could have reviewed each of the factors in greater detail, we ultimately agree with the motion judge’s conclusion that the case for assuming jurisdiction has not been made out.
[14] The appellant has not convinced us that the motion judge’s findings of fact are incorrect, or that her conclusion was in error.
(iii) Forum Non Conveniens
[15] Finally, the motion judge did not err in failing to address forum non conveniens; that is, whether Quebec is a clearly more appropriate jurisdiction. Once the motion judge concluded that Ontario had no jurisdiction to hear this action under the real and substantial connection test, it was unnecessary for her to decide the issue of forum non conveniens.
[16] In the end, the motion judge neither erred in law, nor is her decision wrong. The appeal is therefore dismissed.
[17] The respondent is awarded costs of the appeal fixed in the amount $6,000 inclusive of GST and disbursements.
“H.S. LaForme J.A.”
“Paul Rouleau J.A.”
“David Watt J.A.”