Court of Appeal for Ontario

Citation: Neophytou v. Fraser, 2015 ONCA 45

Date: 20150123

Docket: C59217

Before: Hoy A.C.J.O., van Rensburg and Brown JJ.A.

Between

Loulla Neophytou

Plaintiff (Respondent)

and

Leslie Ann Fraser, also known as Leslie Ann Neophytou, also known as Leddi Neophytou

Defendant (Appellant)

Counsel:

Fida Hindi and Lane Krainyk, for the appellant

James F. Diamond, for the respondent

Heard and released orally: January 19, 2015

On appeal from the order of Justice P. Theodore Matlow of the Superior Court of Justice, dated July 17, 2014.

ENDORSEMENT

[1] The appellant is the defendant to an action on a debt. It is alleged that the respondent, who resides in Ontario, made a loan to the appellant and her husband, who is now deceased. The appellant, a resident of the United States, is the daughter in law of the respondent. She appeals from the dismissal of her motion to dismiss or stay the action for lack of jurisdiction. The appellant argues that the motion judge erred in concluding that Ontario has jurisdiction simpliciter because none of the presumptive connecting factors recognized in Club Resorts Ltd. v. Van Breda, 2012 SCC 17 are present, and that the motion judge erred in considering irrelevant factors.

[2] In brief reasons, the motion judge rested his decision on the following factors:

• the plaintiff resides in Ontario;

• the money loaned was sent from Ontario; and

• the loan agreement required the respondent to be repaid, from which the motion judge inferred that the repayment was to be made in Ontario.

[3] The reasons do not specifically identify the satisfaction of any of the presumptive factors listed in Van Breda. Nevertheless there was a presumptive factor made out on the evidence. Although a written contract was signed in Florida, this followed an agreement that had been reached in Ontario, under which the plaintiff advanced the funds to the defendant.

[4] A contract is made where the offeror receives confirmation of acceptance by the offeree. The only reasonable inference on all of the evidence in the record is that the respondent was in Ontario when she offered by telephone to lend funds to her son and the appellant, and she was also in Ontario when she received confirmation, again by telephone of their acceptance of her offer. Although the appellant’s husband had asked his mother for financial assistance when they were in Florida together, it was not until the respondent returned to Ontario that she decided to advance $500,000 and communicated this, as well as the terms, to her son by telephone. She then proceeded on the basis of their agreement to cash in certain investments to fund two advances that were made well before the written memorandum of agreement was signed.

[5] A contract connected with the dispute was therefore made in Ontario. This is a presumptive factor as recognized in Van Breda.

[6] In this case, the appellant has not rebutted the presumption of jurisdiction arising from that presumptive connecting factor by establishing “facts that demonstrate that this factor does not point to any real relationship between the subject matter of the litigation and the forum or points only to a weak relationship between them”: Van Breda, at para. 95.

[7] The appellant concedes that once jurisdiction simpliciter is established, Ontario is the convenient forum.

[8] The appeal is accordingly dismissed. Costs to the respondent in the agreed amount of $8,000, inclusive of HST and disbursements.

“Alexandra Hoy A.C.J.O.”

“K. van Rensburg J.A.”

“David Brown J.A.”