James Bay Resources Limited v. Mak Mera Nigeria Limited a.k.a. Mak Mera Limited et al.
[Indexed as: James Bay Resources Ltd. v. Mak Mera Nigeria Ltd.]
Ontario Reports
Court of Appeal for Ontario,
Hoy A.C.J.O., MacFarland and Lauwers JJ.A.
November 17, 2015
128 O.R. (3d) 198 | 2015 ONCA 781
Case Summary
Conflict of laws — Forum conveniens — Parties negotiating and signing memorandum of understanding and letter agreement in Ontario — Dispute arising between parties in respect of their contractual arrangements — Plaintiff commencing action in Ontario — Defendants commencing action in Nigeria against plaintiff and others — Plaintiff moving unsuccessfully in Nigeria to strike Nigerian action for lack of jurisdiction — Motion judge dismissing defendants' motion to strike or stay Ontario action on grounds that Ontario court lacked jurisdiction and Ontario was not convenient forum — Defendants' appeal dismissed — Motion judge not failing to consider comity — Court declining to consider "fresh evidence" in form of Nigerian court's reasons for dismissing motion to strike as those reasons were available before Ontario motion was heard and were not tendered on that motion — Ontario not forum non conveniens. [page199]
The parties negotiated and entered into a memorandum of understanding and a subsequent letter agreement in Ontario. A dispute arose between the parties in respect of their contractual arrangements. The plaintiff commenced an action against the defendants in Ontario. Several days later, one of the defendants commenced an action in Nigeria against several parties, including the plaintiff. The plaintiff moved unsuccessfully in Nigeria to strike the Nigerian action on the basis that the Nigerian court lacked jurisdiction. The defendants moved unsuccessfully to strike or permanently stay the Ontario action, the judge concluding that Ontario had jurisdiction simpliciter and that it was not forum non conveniens. The defendants appealed.
Held, the appeal should be dismissed.
The motion judge did not fail to consider comity. Comity is not a stand-alone factor; it is part and parcel of the forum non conveniens assessment. The motion judge implicitly considered comity when he outlined and considered all of the relevant factors in coming to his conclusion that Nigeria was not the more convenient forum.
The court refused to consider proposed "fresh evidence" in the form of the Nigerian court's reasons for dismissing the plaintiff's motion to strike. The reasons were released before the motion was heard, but were not adduced before the motion judge.
The motion judge did not err in concluding that Nigeria was not clearly the appropriate forum and that Ontario was not forum non conveniens.
Cases referred to
Amchem Products Inc. v. British Columbia (Workers' Compensation Board), 1993 CanLII 124 (SCC), [1993] 1 S.C.R. 897, [1993] S.C.J. No. 34, 102 D.L.R. (4th) 96, 150 N.R. 321, [1993] 3 W.W.R. 441, J.E. 93-674, 23 B.C.A.C. 1, 77 B.C.L.R. (2d) 62, 14 C.P.C. (3d) 1, 39 A.C.W.S. (3d) 600; Teck Cominco Metals Ltd. v. Lloyd's Underwriters, [2009] 1 S.C.R. 321, [2009] S.C.J. No. 11, 2009 SCC 11, 303 D.L.R. (4th) 385, 88 B.C.L.R. (4th) 1, 384 N.R. 126, 40 C.E.L.R. (3d) 159, [2009] 3 W.W.R. 191, EYB 2009-154787, J.E. 2009-395, 70 C.C.L.I. (4th) 1, 65 C.P.C. (6th) 199, [2009] I.L.R. I-4811, 266 B.C.A.C. 32; Van Breda v. Club Resorts Ltd., [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, 2012 SCC 17, 291 O.A.C. 201, 2012EXP-1452, J.E. 2012-788, EYB 2012-205198, 429 N.R. 217, 343 D.L.R. (4th) 577, 91 C.C.L.T. (3d) 1, 10 R.F.L. (7th) 1, 17 C.P.C. (7th) 223, 212 A.C.W.S. (3d) 712
Statutes referred to
Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, s. 11
APPEAL from the order of Perell J., [2015] O.J. No. 1111, 2015 ONSC 1538 (S.C.J.) dismissing a motion to strike or stay an action.
Mark Crane and Niklas Holmberg, for appellants.
Hilary Book and Nadia Chiesa, for respondent.
The judgment of the court was delivered by
[1] MACFARLAND J.A.: — This is an appeal from the motion judge's order dismissing the appellants' motion to stay the within [page200] action on the grounds that the Ontario courts lacked jurisdiction simpliciter and Ontario was not the convenient forum for the determination of the dispute between the parties.
[2] The factual background is fully detailed in the motion judge's reasons, at paras. 3-23. In short, the respondent entered into a memorandum of understanding ("MOU") with the appellant Wale Sola dated March 3, 2011. The MOU was negotiated and signed in Ontario. It sets out an arrangement between the parties with respect to the acquisition of Nigerian oil and gas assets.
[3] On February 12, 2012, the respondent and the appellant Mak Mera Limited entered into a letter agreement ("LA") which replaced the earlier MOU. The LA is far more detailed than the MOU. Wale Sola signed both the MOU and the LA.
[4] A dispute arose between the parties in respect of their contractual arrangements and that dispute was fuelled by a letter sent by Mak Mera and Mak Mera Nigeria Limited to Royal Dutch Shell PLL on July 2, 2014. The letter was copied to the respondent as well as many others, including the Nigerian ambassador to Canada and a number of officials of the Nigerian government. Absent truth, the statements made in the letter are quite clearly defamatory of the respondent.
[5] By statement of claim issued September 4, 2014, the respondent commenced proceedings against Mak Mera Nigeria Limited and Wale Sola in Ontario.
[6] On September 16, 2014, Mak Mera Nigeria Limited, Wale Sola and Sola's father-in-law (a Nigerian resident and chairman of Mak Mera) commenced an action in Nigeria against numerous parties including the respondent and its CEO, Stephen Shafsky. Some of the claims in the Nigerian action are similar to those in the Ontario action.
[7] The respondent moved in the Federal High Court of Nigeria to strike the Nigerian action on grounds that the Nigerian court lacked jurisdiction and was unsuccessful. The respondent is appealing that order.
[8] On March 2, 2015, the appellants moved to strike or permanently stay the Ontario action. In his reasons, the motion judge concluded that Ontario had jurisdiction simpliciter and identified several presumptive factors that would apply, including that Wale Sola is an Ontario resident and both the MOU and the LA were negotiated and signed in Ontario. He observed that the latter provides that it is governed by Ontario law and contains a choice of forum clause that names Ontario as the jurisdiction where any disputes would be resolved. [page201]
[9] In para. 28 of his reasons, he noted:
Neither Mak Mera nor Mr. Sola has advanced any cogent argument that there is a rebuttal of the contractual connection as a presumptive factor. Their arguments may be relevant to the issue of forum conveniens, but jurisdiction simpliciter is not rebutted.
[10] In this court, the appellants made no oral submissions on this issue but relied on their factum. I would echo the observation of the motion judge in relation to those submissions. The arguments raised go to the merits of the claims and the interpretive exercise that awaits the trial judge. Whether the agreements contemplated the payment of "success fees" on the achievement of certain milestones or merely payments on account for "services rendered" go to the merits of the issues that will be litigated. They do not displace or challenge the fact that both agreements were negotiated and signed in Ontario and that Mr. Sola is resident in Ontario -- both strong, presumptive factors.
[11] The appellants argue that the motion judge erred in law in failing to specifically consider comity in his analysis, relying on the 1993 decision of the Supreme Court of Canada in Amchem Products Inc. v. British Columbia (Workers' Compensation Board), 1993 CanLII 124 (SCC), [1993] 1 S.C.R. 897, [1993] S.C.J. No 34. That case dealt with anti-suit injunctions and is factually dissimilar to this case. Since Amchem, the Supreme Court of Canada has released its decision in Van Breda v. Club Resorts Ltd., 2012 SCC 17, [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, which has overtaken the prior jurisprudence dealing with jurisdiction and forum conveniens issues. At para. 74 of Van Breda, the court had this to say in relation to comity:
The goal of the modern conflicts system is to facilitate exchanges and communications between people in different jurisdictions that have different legal systems. In this sense it rests on the principle of comity. But comity itself is a very flexible concept. It cannot be understood as a set of well-defined rules, but rather as an attitude of respect for and deference to other states and, in the Canadian context, respect for and deference to other provinces and their courts. Comity cannot subsist in private international law without order, which requires a degree of stability and predictability in the development and application of the rules governing international or interprovincial relationships. Fairness and justice are necessary characteristics of a legal system, but they cannot be divorced from the requirements of predictability and stability which assure order in the conflicts system. In the words of La Forest J. in Morguard, "what must underlie a modern system of private international law are principles of order and fairness, principles that ensure security of transactions with justice"[.]
(Citations omitted) [page202]
[12] Comity is not a stand-alone factor. It is part and parcel of the forum non conveniens assessment in a given case. In Teck Cominco Metals Ltd. v. Lloyd's Underwriters, 2009 SCC 11, [2009] 1 S.C.R. 321, [2009] S.C.J. No. 11 (which decision is quoted in Van Breda), the chief justice says, at para. 21:
The first argument is that s.11 of the [Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (CJPTA)] does not apply where a foreign court has asserted jurisdiction. I cannot agree. The CJPTA creates a comprehensive regime that applies to all cases where stay of proceedings is sought on the grounds that the action should be pursued in a different jurisdiction (forum non conveniens). It requires that in every case, including cases where a foreign judge has asserted jurisdiction in parallel proceedings, all relevant factors listed in s. 11 be considered in order to determine if a stay of proceedings is warranted. This includes the desirability of avoiding a multiplicity of legal proceedings. But the prior assertion of jurisdiction by a foreign court does not oust the s. 11 inquiry.
And further, at para. 23:
Teck submits that the usual multi-factored test under s. 11 of the CJPTA must give way to a "comity-based" test when a foreign court positively asserts jurisdiction. To the extent this argument implies that the usual test does not give due comity to foreign courts, it must be rejected. Section 11 of the CJPTA is itself a comity-based approach.
[13] While the court in Teck was dealing with a British Columbia case and in that province a statute -- the CJPTA [Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28] -- is intended to codify the determination of jurisdictional issues, a review of s. 11 of the CJPTA reveals that it is very much a codification of the factors set out by LeBel J. in Van Breda that a court should take into consideration when it considers the issue of forum non conveniens. All this to say, I would reject the submission that the motion judge failed to consider comity in his analysis. He did so implicitly when he outlined and considered all of the relevant factors in coming to his conclusion that Nigeria was not the more convenient forum.
[14] In paras. 31 through 33 of his reasons, the motion judge reviews the law that applies and then considers the factual matrix of the specific matter before him.
[15] The motion judge was aware of the Nigerian litigation begun after this action had been started in Canada. He was aware that the respondent had filed a statement of defence in that action, had brought an unsuccessful motion to strike the Nigerian action on the basis the Nigerian court lacked jurisdiction, and was appealing the dismissal of his motion to strike. The appellants argue that by filing a statement of defence the respondent has attorned to the jurisdiction of the Nigerian court. The appellants make this argument in the absence of any [page203] evidence as to what the Nigerian law is on this point. Mr. Shafsky in his affidavit (para. 36) deposes that he did not understand that by filing a defence he was attorning to the jurisdiction. His statement is borne out by the fact that the respondent brought its motion to strike before the Nigerian court. I would not give effect to this argument.
[16] I turn next to the proposed "fresh evidence". The appellants sought at the hearing of the appeal, for the first time, to file the reasons of the Federal High Court of Nigeria for dismissing the respondent's motion to strike. Although the reasons were released February 2, 2015 and the motion before Perell J. was heard March 2, 2015, the reasons were not before the motion judge. The appellants did not bring a motion to admit fresh evidence; counsel simply sought to file the reasons and rely on them. The appellants argue that the motion judge erred in failing to consider these reasons, although they were not before him. The unfairness to the motion judge in proceeding this way is self-evident. In any event, the appellants could not, in view of the availability of these reasons before the hearing of the motion, meet the Palmer test. I would decline to consider the fresh evidence.
[17] In conclusion, I agree with the motion judge's conclusion [at para. 33] that, "Balancing all factors, Nigeria is not clearly the appropriate forum for the dispute, and Ontario is not forum non conveniens." The motion judge did not err in dismissing the appellant's motion to stay this action.
[18] I would dismiss this appeal. I would award costs to the respondent fixed in the sum of $7,500, inclusive of disbursements and HST.
Appeal dismissed.
End of Document