Court of Appeal for Ontario

Citation: Galaxy Dragon Limited v. Top Water Exclusive Fund IV LLC, 2012 ONCA 382 Date: 2012-06-05 Docket: C54745

Judges: Goudge, Simmons and Rouleau JJ.A.

Between:

Galaxy Dragon Limited Plaintiff (Appellant)

and

Top Water Exclusive Fund IV LLC, Top Water Investment Management LLC, Edge Investment Capital LLC, Bryan Borgia, Travis Taylor, and Lauren Roberts Defendants (Respondents)

Counsel: Angela Assuras, for the appellant Vasuda Sinha, for the respondents

Heard and released orally: May 30, 2012

On appeal from the order of Justice Beth Allen of the Superior Court of Justice, dated November 17, 2011.

Endorsement

[1] The appellant quite properly argued this appeal in the context of the recent Supreme Court of Canada decision in Van Breda. It relies on three factors as presumptive or assumption of jurisdiction by Ontario. One recognized in Van Breda and the other two proposed by the appellant as new presumptive factors.

[2] In our view, none of the three are established here, assuming that the latter two could be considered presumptive in the right case.

[3] First a tort committed on Ontario, here the conversion pleaded takes place outside Ontario and the defendant played no part in moving the funds out of Ontario. This factor does not arise in this case.

[4] Second, the transfer of information. This factor is inapplicable because there is no connection with the tort of conversion that is pled.

[5] Third, personal property in Ontario. Here the only connection with Ontario is that the funds were transferred out of Ontario by the appellant. Given that tenuous connection, it is not reasonable in the language of Van Breda to expect that the respondent, that is the defendant, would be called to answer legal proceedings in Ontario.

[6] Since no presumptive connecting factors arise here, the motion judge was correct to find that Ontario cannot assume jurisdiction. The appeal must therefore be dismissed. Costs of $7500 to the respondent, all inclusive.