COURT OF APPEAL FOR ONTARIO

2014 ONCA 114

DATE: 20140211

DOCKET: C57519

Goudge, Sharpe and Benotto JJ.A.

BETWEEN

Lixo Investments Ltd.

Plaintiff (Appellant)

and

Gowling, Lafleur, Henderson and Guy Poitras

Defendants (Respondents)

Charles Wagman, for the appellant

Angus T. McKinnon and Alejandro Manevich, for the respondents

Heard and released orally: February 3, 2014

On appeal from the order of Justice Stephen E. Firestone of the Superior Court of Justice, dated July 26, 2013.

ENDORSEMENT

[1] The appellant appeals an order staying its action on the basis of forum non conveniens. The motion judge found that Quebec, not Ontario, was clearly the appropriate forum.

[2] The appellant is an Ontario company that does business in Canadian real estate. It is a family-owned corporation. The family members reside in Europe but also have residences in Ontario.

[3] The respondent is a law firm with offices in Toronto and Montreal. Guy Poitras, a Quebec lawyer, works in the Montreal office.

[4] The appellant brought an action in Ontario against the respondents for allegedly providing negligent advice regarding the tax consequences of the settlement of a Quebec action. The action is pleaded in both tort and breach of contract. The respondents moved for an order that the action be stayed on the basis of forum non conveniens.

[5] The motion judge considered the factors set out in Young v. Tyco International of Canada Ltd., 2008 ONCA 709, 92 O.R. (3d) 161, and concluded that the Ontario court should decline jurisdiction on the basis that Quebec would be a clearly more appropriate venue. He considered the following factors:

• The retainer agreement was signed in Montreal;

• The solicitor/client relationship at issue in this matter originated in Quebec and was conducted entirely through the Montreal office with the exception of tax advice from one Toronto lawyer who was not named as a defendant;

• The retainer was in connection with a Quebec action;

• Most of the communications relating to the tax advice were made from the Montreal office by Montreal lawyers;

• The action was framed by the appellant in both contract and tort and therefore the retainer agreement was relevant;

• The plaintiff is an Ontario corporation but its representatives reside in Europe;

• All but one of the Gowlings lawyers involved reside in Quebec;

• There would be no loss of a legitimate juridical advantage from advancing the claim in Quebec; and

• There is already an ongoing civil action in Quebec by Gowlings for unpaid legal fees regarding services provided pursuant to the same retainer agreement under which the tax advice at issue was given.

[6] Having considered these factors, the motion judge granted the respondents’ motion and stayed the claim on the basis of forum non conveniens.

[7] The appellant submits that the motion judge fell into legal error by relying on the factors in Tyco instead of the more general factors set out in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572. We do not agree. The factors he considered were consistent with the considerations set out in Van Breda as well as in the prior jurisprudence.

[8] The appellant also submits that the judge erred in referring to the retainer agreement when the action is one in tort and because, he argues, the contract is irrelevant to a claim in tort. We disagree. The appellant has specifically pleaded in both tort and contract. The contract is therefore relevant, as it establishes the basis of the relationship between the parties.

[9] The motion judge did not err in law. The exercise of his discretion was based on the correct law and a consideration of the relevant factors.

[10] For these reasons, the appeal is dismissed.

[11] The parties agreed as to the quantum of costs that are to be paid to the respondent in the amount of $17,000 all inclusive.

“S.T. Goudge J.A.”

“Robert J. Sharpe J.A.”

“M.L. Benotto J.A.”