Court File and Parties

CITATION: Merkus v. Devidal, 2024 ONSC 6870

DIVISIONAL COURT FILE NO.: 396/24

DATE: 2024-12-09

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

RE: Miriam Merkur and Amalgo Corporation Inc., Appellants

-and-

Jean-Pierre Devidal and Frederic Menguy, Respondents

BEFORE: FL Myers J

COUNSEL: Adam Chisholm and Paolo Ramirez, for the Appellants

David Ziegler and Kirsten Sullivan (Student-at-Law), for the Respondents

HEARD at Toronto (by Zoom): December 9, 2024

ENDORSEMENT (Oral)

[1] Mr. Chisholm makes strong arguments that the Associate Judge might have made an error of law in deciding that this court lacks jurisdiction over the subject matter of the proceeding. He submits there was a far greater fraud perpetrated in numerous conversations over several years to conclude that the Associate Judge erred by limiting her assessment of jurisdiction to the events in France.

[2] To that end, Mr. Chisholm submits that the claim is an omission-based claim – i.e., the respondents had a duty to speak the truth and failed to do so here. To get there, I would have to ignore an apparent concession made by counsel below; find that the interests of justice weighed in favour of allowing the appellants to raise a new argument on appeal; and then find an error of law committed by the Associate Judge in failing to centre her analysis on the pleading of omissions in the statement of claim.[^1]

[3] I make no findings on these issues because I did not call on the respondents to answer them. Answers may exist or not.

[4] But I do not see any real argument to allow me to intervene on the Associate Judge’s finding that Ontario is not the convenient forum for this lawsuit.

[5] In paragraph 47 of her decision, the Associate Judge correctly recited that the burden was on the respondents to show that France was clearly the more appropriate forum. She made no error of law.

[6] Counsel submits that the same error as made with jurisdiction - the failure of the Associate Judge to focus on omissions here as a major part of the claim - led to her undervaluing the local connection to the forum. That argument is alleging an error of mixed fact and law (or how the legal test applies to the facts as found).

[7] In paragraphs 48 through 50 of her endorsement, the Associate Judge found facts that were unassailably available to her on the record before her.

[8] The appellants submit that the Associate Judge failed to consider some local witnesses such as Health Canada representatives. The Associate Judge expressly turned her mind to the location of witnesses. The appellants submitted no evidence of witnesses and referred to the statement of claim pleading that Health Canada was the regulator. The Associate Judge made no palpable and overriding error.

[9] The Associate Judge made no error of law ignoring omissions. Assuming the respondents had a duty to speak, failed to do so, and that the omissions occurred here, that would have no effect on the forum conveniens issues identified in [Club Resorts Ltd. v. Van Breda, 2012 SCC 17] and by the Associate Judge. The respondents do not need local witnesses besides the plaintiff herself to say that something was not said here.

[10] I see no extricable error of law by the Associate Judge and no palpable and overriding error of fact or mixed fact and law in her finding that France was clearly the more appropriate forum for this lawsuit.

[11] The appeal is therefore dismissed.

[12] Costs are payable by the appellants to the respondents fixed in the amount of $33,645 on a partial indemnity basis. I see no reprehensible conduct [of the type described in Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239] to justify an award on a higher scale

FL Myers J

Date: December 9, 2024

[^1]: Mr. Chisholm and Ms. Ramirez were not counsel below.