CITATION: Brisbin v. Lunev, 2011 ONCA 15

DATE: 20110107

DOCKET: C52588

COURT OF APPEAL FOR ONTARIO

Goudge, Sharpe and LaForme JJ.A.

BETWEEN

Brian Brisbin, Murray Beynon, Brisbin Brook Beynon, Architects, 2113304 Ontario Inc., 2113305 Ontario Inc. and BBB Architects Toronto Inc.

Plaintiffs (Respondents)

and

Sergey Lunev, Semyon Fridland also known as Simon Fridland also known as Semyon Fridyland also known as Simon Fridlyand, Dmitri Rogojanski also known as Dmitri Rogojansky, West Group Capital Partners Inc., SDS Group Ltd. and B & C Architects Limited.

Defendants (Appellants)

Howard J. Wolch, for the appellants

John Polyzogopoulos and Lou Brzezinski, for the respondents

Heard and released orally: January 5, 2011

On appeal from the order of Justice Elizabeth M. Stewart of the Superior Court of Justice dated July 27, 2010.

ENDORSEMENT

[1] The plaintiffs’ two major claims in this action are for breach of contract by the defendants in failing to issue certain shares to them, and for fraudulent misrepresentation in the creation of an alleged sham loan agreement where there was no intention that the “loan” be repaid by the plaintiffs.

[2] In our view, the motion judge was correct in finding that both claims fall within Rule 17(2), specifically 17(2)(f) and (g). The plaintiffs say that the contract was negotiated in Toronto, after extensive discussions there. That is a reasonable basis to find that for the purposes of jurisdiction, the contract was made in Ontario. The fraudulent misrepresentation claim is in tort, and does not base itself on the loan agreements themselves. These misrepresentations are said by the plaintiffs to take place between the plaintiffs and the individual defendants in Ontario where they all reside. That is a reasonable basis on which Rule 17(2)(g) is engaged.

[3] Thus a presumption of jurisdiction simpliciter arises. The defendants have not displaced this. They basically deny that a contract for the shares was made, or that the fraudulent misrepresentations were made. That, however, is an issue for trial rather than this motion.

[4] We agree with the motion judge’s summary when she says that “...the physical and business presences in Ontario of the plaintiffs and the individual defendants who control the corporate defendants, as well as the fact that Ontario was largely the place of their dealings concerning this enterprise, support the conclusion that a real and substantial connection between the plaintiffs claims and Ontario exists in this case”.

[5] The appellants concede that if this is so, it follows that there is a real and substantial connection between Ontario and the plaintiffs’ claim for unpaid services. The claim for intellectual property infringement on the part of subsidiaries of the corporate defendants is so intertwined with the other three claims that the same result should prevail.

[6] We also see no error with the motion judge’s conclusion that Ontario is the convenient forum. She considered a number of factors that favour this result, particularly, the predominant location of the parties and the key witnesses being in this jurisdiction; the avoidance of a multiplicity of proceedings, the failure to show a more convenient forum; and the possible loss to the plaintiffs of juridical advantage if the case is not tried in Ontario. Her conclusion deserves deference in this court. It is not unreasonable and we would not interfere with it.

[7] The appeal is dismissed. Costs to the respondents fixed at $15,000.00 inclusive of disbursements and applicable taxes.

“S.T. Goudge J.A.”

“Robert J. Sharpe J.A.”

“H.S. LaForme J.A.”