COURT OF APPEAL FOR ONTARIO

CITATION: Manjos v. Fridgant, 2016 ONCA 176

DATE: 20160301

DOCKET: C60862

Gillese, Hourigan and Brown JJ.A.

BETWEEN

Michael Manjos, Rita Manjos and 764251 Ontario Inc.

Plaintiffs (Appellants)

and

Mark Fridgant and PI Financial Corp.

Defendants (Respondent)

Hari Nesathurai and Glen Perinot, for the appellants

Crawford Smith and Lara Guest, for the respondent

Heard: February 25, 2016

On appeal from the order of Justice Joseph W. Quinn of the Superior Court of Justice, dated July 10, 2015.

ENDORSEMENT

[1] The appellants, Michael Manjos, Rita Manjos, and 764251 Ontario Inc., appeal from the order of Quinn J. dated July 10, 2015 staying their action against the respondent, PI Financial Corp.

[2] The defendant, Mark Fridgant, had acted as the appellants’ investment advisor for several years. In December 2011, Fridgant informed the appellants that he was moving to a new brokerage firm, the respondent, PI Financial Corp. Fridgant met with the appellants and asked them to sign the documentation necessary to transfer their investment accounts to the respondent. The individual appellants signed the documentation, which included client account agreements. Those agreements contained a choice of law and forum clause which read:

5.4 Governing Law

This Agreement is governed by the law of British Columbia and, subject to subsection 5.5 and unless otherwise agreed by the Agent and the Client in writing, the Agent and the Client will submit exclusively to courts in British Columbia any and all disputes in connection with the operation of the Account or any transaction or intended transaction in the Account or arising out of or relating to this Agreement.

[3] In April 2014, the appellants commenced this action, alleging that Fridgant had mismanaged their investment accounts and the respondent is vicariously liable for Fridgant’s acts and omissions.

[4] The respondent moved for a stay of the action as against it on the ground that the choice of forum clause in the client account agreements required the appellants to sue them in British Columbia. The motion judge granted the stay.

[5] The appellants submit that the motion judge erred in finding that they had failed to show strong cause to depart from the general principle stated in Expedition Helicopters Inc. v. Honeywell Inc., 2010 ONCA 351, 100 O.R. (3d) 241, at para. 24, that a forum selection clause in a commercial contract should be given effect. The appellants also argue that the principles set out in Expedition Helicopters should be modified to recognize that their client account agreements were more in the nature of consumer contracts, not commercial ones. According to the appellants, less weight should be accorded to a forum selection clause in a consumer contract.

[6] In our view, the motion judge did not err in exercising his discretion to enforce the forum selection clause.

[7] The individual appellants are well educated and sophisticated. On his cross-examination, Dr. Manjos agreed that he did not feel that there was any need to review the documents when he signed them. In other words, the appellants had the opportunity to review the agreements before signing them, but they did not do so.

[8] Although the appellants testified that Fridgant did not draw the choice of forum clause to their attention when they signed the client account agreements, that conduct does not amount to an improper inducement to agree to the clause. A person who signs an investment contract acts at his or her own peril if they fail to read the document before signing it.

[9] Further, the appellants were under no obligation to transfer their investment accounts from their former brokerage to the respondent. It was open to them to decide which brokerage would provide them with acceptable terms of service.

[10] The appellants also submit that they have shown strong cause to depart from the forum selection clause because the British Columbia courts would be unable to deal with aspects of their claim, specifically those claims alleging breaches of the Ontario Securities Act, R.S.O. 1990, c. S.5, and the Rules and Policies of the Investment Industry Regulatory Organization. We do not accept this submission. Ontario law can be proved without difficulty before the courts of British Columbia.

[11] Finally, the appellants argue that the language of the forum selection clause is not broad enough to cover all the allegations asserted by them against the respondent. We disagree. The wording of clause 5.4 of the client account agreements is very broad, covering “any and all disputes in connection with the operation of the Account or any transaction or intended transaction in the Account or arising out of or relating to this Agreement.” The appellants’ statement of claim alleges Fridgant mismanaged their investment accounts and the respondent is vicariously liable for Fridgant’s acts and omissions. Those allegations fall within the ambit of Clause 5.4.

[12] The appeal is dismissed. The respondent is entitled to its costs of the appeal fixed in the amount of $5,000, all inclusive.

“E.E. Gillese J.A.”

“C.W. Hourigan J.A.”

“David Brown J.A.”