Trillium v. General Motors of Canada et al, 2013 ONSC 2289

Trillium v. General Motors of Canada et al, 2013 ONSC 2289

COURT FILE NO.: CV-10-397096CP A-1

DATE: 20130524

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: TRILLIUM MOTOR WORLD LTD. / Plaintiffs

AND: GENERAL MOTORS OF CANADA LIMITED and CASSELS BROCK & BLACKWELL LLP / Defendants

AND: AIKINS MACAULAY & THORVALDSON LLP, ANDRIESSEN & ASSOCIATES PROFESSIONAL CORPORATION, AULD ALLEN, BARKER WILLSON PROFESSIONAL CORPORATION, BASMAN SMITH LLP, BEARD WINTER LLP, BENNETT JONES LLP, BIANCI PRESTA LLP, BIRDSELL GRANT LLP, BODDY, RYERSON LLP, BORDEN LADNER GERVAIS LLP, BOUGHTON LAW CORPORATION, BRYAN & COMPANY LLP, BURCHELL MACDOUGALL, CABINET JURIDIQUE PANNETON INC., CAIN LAMARRE CASGRAIN WELLS SENCRL, CARON, CLAUDE, CARRIER FRANCIS AVOCAT NC., CATES CAROLL WATT, CLICHE LORTIE LADOUCEUR INC., COHEN HIGHLEY LLP, CONROY TREBB SCOTT HURTURBISE LLP, COX & PALMER NB LIMITED PARTNERSHIP, DANIEL & PARTNERS LLP, DAVIDSON & WILLIAMS LLP, DAVIS LLP, DUNCAN & CRAIG LLP, DUNTON RAINVILLE LLP, ENBRIDGE PIPELINES INC., FELTMATE DELIBATO HEAGLE LLP, FRASER MILNER CASGRAIN LLP, FOURNIE, MICKLEBOROUGH LLP, GARCIA & DONNELLY PROFESSIONAL CORPORATION, GERRAND RATH JOHNSON LLP, GIRARD, ALLARD, GUIMOND, AVOCATS, GOODMANS LLP, GRENIER VERBAUWHEDE AVOCATS INC., GUERTIN LAZURE CRACK SENCRL, HARRISON PENSA LLP, HEENAN BLAIKIE LLP, HILL HUNTER LOSELL LAW FIRM LLP, HOFFMAN DORCHIK LLP, KEYSER MASON BALL LLP, PAUL LANGEVIN, AVOCATS, SENC, LANGLOIS KRONSTROM DESJARDIN AVOCATS SENCRL, LAPOINTE ROSENSTEIN MARCHAND MELANCON SENCRL, LAVERY, DE BILLY LLP, LAWRENCE LAWRENCE STEPHENSON LLP, LAZIER HICKEY LLP, LELAND RICHARD STAMATINOS LELAND CAMPBELL LLP, LERNERS LLP, LEVESQUE GRAVEL & ASSOCIES SENC, LIVINGSTONE & COMPANY, LOOPSTRA NIXON LLP, LUC BOULAIS AVOCAT INC., MACLEOD DIXON LLP, MANDRYK, STEWART & MORGAN PROFESSIONAL CORPORATION, MARTENS LINGARD LLP, MATLOW, MILLER, HARRIS, THRASHER LLP, MCCARTHY TETRAULT LLP, MCINTYRE, GILLIS & O’LEARY, MCKERCHER LLP, MEIGHAN HADDA LLP, MILLER THOMPSON LLP, MYERS WEINBERG LLP, MILLS PITTMAN PLC INC., NOLET ETHIER, AVOCATS, SENCRL, NORTON ROSE LLP, PARENT, DOYON, RANCOURT ET ASSOCIES SENCRL, PAVEY LAW & WITTEVEEN LLP, PERREAULT AVOCAT, PREVOST FORTIN D’AOUST AVOCATS, SENCRL, ROBERT S. JOHNS PROFESSIONAL CORPORATION, ROY LAPORTE INC., SAMPSON MCDOUGALL, SCARFONE HAWKINS LLP, SCHARFSTEIN GIBBINGS WALEN FISHER LLP, SEVERIDE STAPLIN GAMLIN LLP, SIMPSON WIGLE LAW LLP, SISKIND, CROMARTY, IVEY & DOWLER LLP, STEWART & MCKELVEY, SULLIVAN, FESTERYGA LLP, SULLY CHAPMAN BATTIE LLP, SUTHERLAND MARK FLEMMING SNYDER-PENNER PROFESSIONAL CORPORATION, SWIFT DATOO LAW CORPORATION, SYLVESTRE & ASSOCIES SENCRL, SYLVESTRE LAGASSE SENCRL, TAYLOR MACLELLAN & COCHRANE, THOMPSON DORFMAN SWEATMAN LLP, THORNBOROUGH SMELTZ LLP, WAYNE S. LASKI, TORRY, LEWIS, ABELLS LLP, WEAVER SIMMONS LLP, WITTEN LLP, WOLF HOOKER PROFESSIONAL CORPORATION, ZALAPSKI & PAHL, ZAURRINI, DOMINIQUE, CLARENCE J. HOOKENSON, ADRIANA CARNEVALE, A.J. BELECKY, ANGELO V. AIELLO, ARTHUR RONALD GOOD, BRUCE D. GREGORY, CHARLES ALLAN TALMAGE, CHRISTOPHER P. FITZGERALD, CYNTHIA A. THRASHER, DAVID G. AMY, DAVID M. BERESKIN, DOMINIQUE LAURRINI, DONALD P. HAMILTON, Q.C., DOUGLAS JACK, DUNCAN M. MACFARLANE, E. BRUCE SOLOMON, EARL ROGER SPADY, ELIZABETH MACKAY O’FARRELL, G. ROBERT BASQUE, Q.C., GARY J. MCLAUGHLIN, Q.C., GERARD DESJARDINS, GERARD P. MURPHY, HARRY H. WILLIAMSON, Q.C., HENRY GRANT KERR, Q.C., JACK LAURION, JEAN-PIERRE BARRETTE, JOHN E. HOGAN, JOHN R. CROUCHMAN, JOHN BURGESS, LOUIS RIVERIN, MARK MICHAEL MACKEW, MATTHEW J. BRADLEY, MICHEL PAQUIN, MURRAY GREENWOOD, MURRAY D. STROUD, O’FLYNN WESSE LLP, PAUL NESSETH, PIERRE PERRAS, SANTE SALVADOR, STEPHEN S. YANOVER, THOMAS P. PHELAN, THOMAS S. WILSON, VERNON P. HARDMAN, VICTOR A. SGRO, WILLIAM A. ANDREASSEN, WILLIAM G. MACDONALD, WILLIAM H. FOX, DOE 1 PARTNERSHIP, DOE 2 PARTNERSHIP, DOE 1 LLP, DOE 2 LLP, DOE 1 SENC, DOE 2 SENC, DOE 1 PROFESSIONAL CORPORATION, DOE 2 PROFESSIONAL CORPORATION, DOE 1 INC., DOE 2 INC., JANE DOE 1, JANE DOE 2, JOHN DOE 1 and JOHN DOE 2 / Third Parties

Third party defendants’ jurisdiction motions

BEFORE: Justice Edward Belobaba

COUNSEL: Jo-Anne Demers, Jean-Olivier Lessard and Susan Guzzo for the Third Parties in Quebec / Moving Parties Geoffrey Adair and Jennifer King for the Third Parties outside Ontario and Quebec / Moving Parties Peter Griffin, Rebecca Jones and Jonathan Laxer for Cassels, Brock & Blackwell / Responding Party Julia Wilkes and James Camp for the Third Parties in Ontario / Observing Lisa LaHorey for Sylvestre Lagasse SENCRL / Observing

HEARD: April 19, 2013

endorsement

1The Supreme Court made clear in Van Breda¹ that a court can assume jurisdiction in tort cases if “a contract connected with the dispute was made in the province.”² What the Court did not make clear is what this means.

2Consider the following scenario: Jim, who lives in Ontario, and Fred, who lives in B.C. are vacationing at a resort in Cuba. They meet in the hotel bar and begin a heated discussion about a recent hockey trade between the Toronto Maple Leafs and the Ottawa Senators. The discussion degenerates into a fist fight. Jim is badly beaten. After recovering from his injuries and returning to his home in Ontario, he sues Fred in tort for damages. Can the Ontario court assume jurisdiction because “a contract connected with the dispute [i.e. the hockey trade agreement] was made in the province?”

3Of course not.

4Just because the bar fight in Cuba was caused by a disagreement about a sports contract made in Ontario does not mean that an Ontario court is entitled to assume jurisdiction over the dispute. More is needed. But what and how much?

5The question is made all the more difficult because the Court in Van Breda did not really explain how it came up with this fourth presumptive connecting factor. All it said was that “[c]laims related to contracts made in Ontario would also be properly brought in the Ontario courts (rule 17.02(f)(i)).”³

6If the Court intended to derive authority for this presumptive factor from Ontario’s service ex juris rules, then, as Professor Tanya Monestier points out, “this cannot be squared with a plain reading of Rule 17.02(f)(i).”⁴ This Rule provides as follows:

A party to a proceeding may, without a court order, be served outside Ontario with an originating process or notice of a reference where the proceeding against the party consists of a claim or claims…(f) in respect of a contract where, (i) the contract was made in Ontario.

7That is, service out of the jurisdiction is permitted “in respect of a contract” where the contract was made in Ontario. But Rule 17.02(f)(i) says nothing about a tort claim. Professor Monestier, whose earlier article⁵ was cited by the Court in Van Breda, makes this very point:

[If] a party is advancing a cause of action in contract, then an action may be brought in Ontario where the underlying contract was made in Ontario. This rule does not speak to whether a tort claim can be maintained where there exists a contract “connected with the dispute” that was made in the forum.⁶ [Emphasis added.]

8Another jurisdiction scholar, Professor Vaughan Black, adds two more reasons why the fourth presumptive connecting factor is “peculiar”: one, “it is far from obvious why, in a torts suit, any affiliation with a contract that is in some way connected with the tort should be pertinent”,⁷ and two, “even if some connection between the alleged tort and some contract justifies tort jurisdiction, the affiliation required here [in Van Breda] is a debatable one.”⁸ It would have been more understandable, continues Black, if the presumptive connecting factor (“PCF”) referred to a contract that had to be substantially performed in Ontario:

Had the PCF been articulated as a “contract that was connected to the tort was to have been substantially performed in the jurisdiction,” then this PCF would then have rested on a widely recognized connecting factor for contracts: substantial performance. This ground is acknowledged in the CJPTA.⁹ Place of making, however, is not…”¹⁰

9Professor Black concludes that the fourth connecting factor “is an odd one and would seem in need of explanation.”¹¹ As things stand today, however, no further explanations are available. One has to interpret and apply what the Supreme Court has decided. However, given the somewhat shaky foundation for the Fourth PCF, motion judges would be well advised to proceed with caution until further appellate direction is provided.

10To be fair, the Supreme Court in Van Breda did not say that any connection between the dispute (the tort claim) and a contract made in Ontario would suffice. The Court was obviously concerned about the sufficiency of the connection and whether there was enough of one to raise the presumption of a real and substantial connection between the claim and the forum.

11Recall that the Van Breda action was allowed to proceed in Ontario because the Court eventually found “a sufficient connection between the Ontario court and the subject matter of the litigation.”¹² Although Ms. Van Breda was not a party to the Ontario contract between the Cuban resort hotel and her spouse, Victor Berg, “a relationship” was created in Ontario between the contracting parties and Ms. Van Breda, “who was brought within the scope of this relationship by the terms of the contract” because she received a “benefit” from the Ontario-made contract, namely “accommodation at the resort.”¹³ And, she was injured while staying at the resort “in the context of Mr. Berg’s performance of his contractual obligation.”¹⁴ The Court was satisfied that “[t]he events that gave rise to the [tort] claim flowed from the relationship created by the [Ontario] contract.”¹⁵

12In short, for the purposes of the Fourth PCF, Van Breda appears to stand for the following proposition: an Ontario court has jurisdiction over a tort claim brought by a non-party to an Ontario contract that is connected with the dispute, if the non-party can be brought within the scope of the contractual relationship by the terms of the contract, and if the events that gave rise to the claim flowed from the relationship created by that contract.

13I can now turn to the motions before me.

Background

14These are jurisdiction motions brought by out-of-province third party defendants. They relate to a national class action that is currently proceeding to a common issues trial.¹⁶

15The class action was commenced on behalf of some 207 GM Canada dealers whose dealerships were terminated by GMCL as a result of the financial crisis and “auto bailout” in the summer of 2009. The terminated dealers say that the defendant GMCL forced them to sign Wind-Down Agreements (“WDAs”) in breach of provincial franchise law and that the defendant Cassels, Brock & Blackwell (“CBB”), the dealers’ legal counsel, was negligent in failing to provide appropriate advice—primarily about the protections available under provincial franchising law and about the need for and benefit of collective action.

16GMCL denies that it breached provincial franchise law and CBB denies that it was ever retained by the dealers. CBB says it was retained by the Canadian Automobile Dealers Association and not by any of the individual dealerships. However, if it was retained by the dealers and is found liable for failing to provide appropriate legal advice, it seeks contribution and indemnity from the third party local lawyers that provided the individual dealers with the independent legal advice that was required by GMCL before the WDA was signed. Here is how CBB described its third party claim in its factum: “The substance of the claim is that if CBB is liable to class members for failing to provide certain legal advice regarding the WDA, so too are the lawyers retained by the non-continuing dealers who would have breached their duties to the class members.”

17CBB has added some 150 local lawyers and law firms as third party defendants: 67 are based in Ontario, 32 in Quebec, and 51 in the eight remaining provinces (19 in Alberta, seven in Nova Scotia, six in each of British Columbia, Saskatchewan and Manitoba, five in New Brunswick, and one in each of Newfoundland and P.E.I.).¹⁷ Six of the law firms, described by the third parties as “national firms”, have offices in Ontario.

18There are two motions before me, one brought by the 32 law firms based in Quebec and the other by the 51 law firms located outside of Ontario and Quebec. I will refer to all of the moving third party defendants as the “local lawyers.” In both motions, the out-of-province local lawyers say this court lacks jurisdiction or if it has jurisdiction, it should decline to exercise it on the basis of forum non conveniens.¹⁸

19Both of these Rule 21.01(3)(a) motions make the same basic point: the third party actions should be dismissed because there is an insufficient connection between the subject matter of the third party actions against the out-of province local lawyers and the Ontario court. Put somewhat differently, there is no presumptive connecting factor that links the subject matter of the third party litigation with this judicial forum as required by Van Breda.

20The moving parties say that none of the four Van Breda connecting factors that prima facie entitle a court to assume jurisdiction in a tort case are present here:

(a) None of the local lawyers are domiciled or resident in Ontario.

(b) None of the local lawyers carry on business in Ontario (except for the six “national” law firms that have offices in Toronto).

(c) The alleged tort (negligent legal advice provided by the out-of-province local lawyers to their respective (out-of-province) local dealer/clients) was not committed in Ontario.

(d) Although all of the WDAs signed by the terminated dealers were made in Ontario (where they were accepted and executed by GMCL at its Oshawa office) none are connected in any material sense to the dispute herein. The only contracts that are connected to this particular dispute (about the alleged inadequacy of the local lawyer’s legal advice) are the local retainer agreements between the lawyers and their dealers/clients. Not the WDAs.

21More fundamentally, say the moving third party defendants, if they are to be sued for professional negligence, they should at least have the right to be sued in their own province. The moving parties ask that the third party action as against the out-of-province local lawyers be dismissed or stayed for lack of jurisdiction, and if not, that jurisdiction be declined on the basis of forum non conveniens.

22The responding party, CBB, submits that this court can assume jurisdiction because the third party claims fall squarely within the language of the Fourth PCF: “a contract connected with the dispute was made in the province.” The “epicentre” of the dispute, says CBB, in both the main action against CBB and the latter’s third party claim, is the legal advice that was given in relation to the WDAs—contracts that were signed by GMCL in Oshawa and thus made in Ontario. Further, says CBB, the WDAs provided that they would be governed by Ontario law and that all disputes between the parties would be litigated in Ontario. The WDAs also required each dealer to obtain independent legal advice and ensure that the ILA Certificate, signed by both the dealer and his or her local lawyer, was attached to the WDA when it was sent to GMCL.

23If jurisdiction is declined, says CBB, more than 150 “identical” claims will have to be brought in the other nine provinces. This would not only be inefficient but would create a serious risk of inconsistent judicial findings.

24On this last point, the moving parties respond (in my view correctly) that the 150 claims that would be brought in the other nine provinces would not be identical. Each case would be fact-specific and would depend on the particular advice that was given by each local lawyer to his or her particular dealer/client. In any event, say the local lawyers (also correctly), concerns about efficiency alone have no place in the presumptive connecting factor analysis.¹⁹

25The key issues then, are these: is there a sufficient connection between the WDAs and the third party claims about the allegedly negligent legal advice provided by the local lawyers to allow this court to assume jurisdiction under the Fourth PCF? And if so, is Ontario a convenient forum? I will consider each of these issues in turn.

Analysis

(1) Jurisdiction

26Only two of the four presumptive connecting factors apply on the facts herein: “the defendant carries on business in the province” and “a contract connected with the dispute was made in the province.”²⁰ The “carries on business” connection would allow CBB to third party the six out-of-province local lawyers who work for national law firms with offices in Toronto. I assume that CBB would not be content with this limited accomplishment. Its objective, obviously, is to sue all 150 of the third party defendants in Ontario, not just the handful that work for national law firms.

27The battleground is therefore the Fourth PCF and whether “a contract connected with the dispute was made in the province.”

28I will consider the applicability of the Fourth PCF from two perspectives: the sufficiency analysis as set out in Van Breda and the general principle, also set out in Van Breda, that “[a]ll presumptive connecting factors generally point to a relationship between the subject matter of the litigation and the forum such that it would be reasonable to expect that the defendant would be called to answer legal proceedings in that forum.”²¹

The sufficiency of the connection between the WDA and the legal advice dispute

29As I have already noted, the Supreme Court allowed Ms. Van Breda, a non-party to the Ontario contract in question, to sue in Ontario in tort because “a relationship” was created in Ontario between the Cuban hotel and her spouse, and Ms. Van Breda “was brought within the scope of this relationship by the terms of the contract.”²² The Court was satisfied that “the events that gave rise to the [tort] claim flowed from the relationship created by the [Ontario] contract.”²³

30Here, local lawyers across the country were contacted by local GMCL dealers because the proposed WDA required each dealer “to obtain independent legal advice from a qualified solicitor concerning his/her rights and obligations arising out of or in respect of the Wind Down Agreement.”²⁴ The local lawyer was required sign an ILA certificate certifying that: the lawyer was retained by the dealer; the lawyer has read the WDA; the lawyer has explained the nature and effect of the WDA, including the waivers, releases and indemnification obligations contained therein; the dealer acknowledged that he or she has carefully read the WDA; and the lawyer believes that the dealer was fully advised and informed with regard to all of the foregoing matters.

31The two-page ILA Certificate (Exhibit B to the WDA) was signed by the local lawyer and the dealer/client and witnessed. The dealer then attached the ILA Certificate to the WDA, as required by Article 9, and sent the signed documentation to GMCL in Oshawa, Ontario where it was accepted and executed.

32How do these facts fit within the Van Breda sufficiency analysis? Remember that neither CBB nor the local lawyers were parties to the WDA. However, in my view, the local lawyer in providing the required legal advice and signing the ILA Certificate was brought within the scope of the contractual relationship by the very terms of the WDA—both by Article 9 and by the language of the ILA Certificate that was signed by the local lawyer and dealer and then attached to the WDA as an Exhibit. The extent to which the local lawyers were brought within the scope of the WDA relationship is, in my opinion, stronger here than was the case with Ms. Van Breda. She only received a benefit from the contract. Here, there are actual contractual terms that required local lawyer involvement and the completion of a signed ILA Certificate, which became an integral part of the Ontario contract.

33Does it matter that in this case the non-contracting party that was brought within the scope of the Ontario contract was the local lawyer/defendant rather than the plaintiff as in Van Breda? In my view it does not. What matters is that the non-party defendant was brought within the scope of the relationship created by the Ontario contract and that a sufficient connection has been established between the defendant and the forum.

34Did “the events that gave rise to the [tort] claim flow from the relationship created by the [Ontario] contract?” In my view, they did. Recall that the substance of CBB’s third party claim is that if CBB is liable to class members/dealers for failing to provide proper legal advice regarding the WDA, so too are the local lawyers that were retained by the same dealers. The local lawyers were obliged by the terms of the ILA Certificate to not only explain the nature and effect of the WDA and its various waivers and releases (including, one would assume, the waiver in Article 5(a)(v) of any rights or protections otherwise available under provincial franchise law) but also to ensure that the dealer/client was “fully advised and informed” thereto. In short, the dispute between CBB and the third party defendants about whether the latter provided proper legal advice arises and flows out of the relationship created by the WDA and the required ILA.

35I found the Court of Appeal’s decision in Export Packers²⁵ to be very helpful in my analysis of this issue. The Export Packers case involved an Ontario third party claim against a Quebec defendant. The Court had to decide whether there was a sufficient connection between the third party claim and several contracts that were made in Ontario.

36Export Packers, an Ontario food products company, purchased a large quantity of frozen pork spareribs (“the cargo”) from Trahan, a Quebec company. Trahan was storing the cargo at EDN’s cold storage facility which was also located in Quebec. EDN continued to store the cargo after Trahan sold it to Export.

37Export sold the cargo to a customer in Florida and contracted with SPI, also in Ontario, to make the shipping arrangements. SPI in turn contacted Transvision, who agreed to pick up the cargo at EDN and transport it to Florida. Unfortunately, a “rogue” purporting to represent Transvision picked up the cargo at EDN’s warehouse and absconded.

38Export sued SPI in Ontario for breach of contract and negligence. SPI defended and commenced third party claims against Transvision and EDN. SPI’s claim against EDN was that it was negligent in failing to ask for sufficient identification from the rogue. The motion judge stayed the third party claim against EDN on the basis that the Ontario court lacked jurisdiction. The Court of Appeal agreed and said this:

SPI relies primarily on the fourth factor, “a contract connected with the dispute was made in the province”. SPI argues that there are three contracts made in Ontario that are connected with the dispute - Export’s contract with SPI to arrange for transportation of the cargo; SPI’s contract with Transvision to transport the cargo; and a common carrier contract covering the shipping arrangements.

We do not accept that these contracts are connected with the dispute in the third party claim against EDN so as to raise a presumption of a real and substantial connection between that claim and Ontario.

The three contracts relied upon by the appellant relate to arrangements between the owner, the broker and the proposed carrier of the cargo. They have no connection to EDN other than they anticipate that the cargo would be picked up at EDN’s warehouse in Quebec. The dispute in issue between SPI and EDN relates solely to the alleged negligence of EDN in releasing the cargo. The contracts relied upon do not address the issue of release of the cargo by EDN as storer. That dispute will be resolved according to the laws of Quebec.

Moreover, there is a contract that is, at least somewhat, connected to the dispute between SPI and EDN. EDN entered into a contract with Trahan at the time Trahan stored the cargo at EDN’s warehouse. That contract governed EDN’s role as a storer of the cargo. It provided that in the event of a dispute, the laws of Quebec would apply. It further provided that Quebec would be the forum for resolving disputes. After purchasing the cargo from Trahan, Export did not do anything to change the basis pursuant to which EDN stored the cargo.

In these circumstances, we are not satisfied that there is a contract made in Ontario sufficiently connected with the dispute involving EDN so as to raise a presumption of a real and substantial connection to Ontario.²⁶

39The Court of Appeal concluded that the three Ontario contracts had no connection to EDN other than that they anticipated that the cargo would be picked up at EDN’s warehouse in Quebec. The dispute between SPI and EDN related only to the alleged negligence of EDN in releasing the cargo and “the contracts relied upon [did] not address the issue of release of the cargo by EDN as storer” (my emphasis).

40Here however, the dispute between CBB and the local lawyers relates to the alleged negligence in the provision of legal advice and here, to track the language just quoted, the Ontario contract that is being relied upon, i.e. the WDA, does indeed address the issue of the provision of legal advice by the local lawyers. Thus, Export Packers, in my view, provides support for my conclusion that the WDA is sufficiently connected with the tort claim against the local lawyers so as to raise a presumption of a real and substantial connection between the subject matter of the litigation and Ontario.

Would it be reasonable to expect that the out-of-province local lawyers would be called to answer the legal proceedings in Ontario?

41Two things. One, the local lawyers reviewed the WDA and knew that it was governed by Ontario law and that all disputes would have to be litigated in Ontario. To be sure, they were not parties to the WDA, but, as already noted, they were brought within the scope of this contractual relationship by the dealer’s need for legal advice and the provision of that advice as documented by the signed ILA Certificate that they knew would become a part of the contract.

42Two, the third party claim is all about the provision and adequacy of the local lawyer’s legal advice, a topic that was explicitly addressed within the scope of the lawyer/dealer/GMCL relationship by the terms of both the WDA and the ILA Certificate.

43Given this backdrop, if it turned out, as it did, that the terminated dealers banded together and commenced a class action in Ontario against CBB for failing to provide the legal advice that arguably should have been provided by the local lawyers in the context of the ILA Certificate, it should not surprise the local lawyers if they were added as third parties to the Ontario class action that was brought by their clients. Indeed it would be crazy for CBB not to do so.

44I am therefore persuaded that it would be reasonable to expect that the out-of-province local lawyers would be called to answer the legal proceedings in Ontario.

45In sum, I find that this court has jurisdiction.

(2) Forum non conveniens

46In both motions before me, the out-of-province local lawyers submit that this court should decline to exercise jurisdiction because Ontario is not the appropriate forum.

47Frankly, I don’t understand this submission. CBB’s third party action against the 67 Ontario-based lawyers is already proceeding in this jurisdiction. The other suggested forum is Quebec where only 32 lawyers are based. And the remaining 51 lawyers are scattered across the other eight provinces: 19 in Alberta, seven in Nova Scotia, six in each of British Columbia, Saskatchewan and Manitoba, five in New Brunswick, and one in each of Newfoundland and P.E.I.

48In Breeden v. Black,²⁷ released on the same day as Van Breda, there were ten defendants living in seven different jurisdictions: Israel, Ontario, Connecticut, New York, Illinois, New Hampshire and the District of Columbia. The defendants pushed for New York or Illinois as the more convenient forum; the Court affirmed Ontario. The importance of Breeden, for forum selection purposes, is this: When defendants are scattered over a number of jurisdictions and only one forum can be selected, the forum selected by the plaintiff can only be displaced if the defendants can point to an alternative forum that is “clearly more appropriate”.²⁸

49Here we have 67 defendants in Ontario, 32 in Quebec and the rest scattered across the remaining eight provinces. It cannot be seriously maintained that Quebec (with only 32 lawyers) or Alberta (with only 19 lawyers) are “clearly more appropriate” forums. If CBB’s third party action against the 150 local lawyers proceeds,²⁹ it must proceed in Ontario. This is by far the most appropriate and convenient forum.

Disposition

50The motions to stay the third party actions on the grounds of jurisdiction and forum non conveniens are dismissed with costs.

51If the parties cannot agree on the costs payable, I will be pleased to receive brief written submissions from the responding party within 14 days, and from the moving parties within 10 days thereafter.

52My thanks to all counsel for their assistance.

Footnotes

1. 1Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572.
2. 2Ibid. at para. 90. This is the fourth of four presumptive connecting factors that were identified by the Court for cases concerning a tort. The first three were (a) the defendant is domiciled or resident in the province; (b) the defendant carries on business in the province; and (c) the tort was committed in the province.
3. 3Ibid. at para. 88.
4. 4Monestier, “(Still) A ‘Real and Substantial’ Mess: The Law of Jurisdiction in Canada” (2013) 36 Fordham Int’l L.J. 397 at 425.
5. 5Monestier, “A’Real and Substantial’ Improvement? Van Breda Reformulates the Law of Jurisdiction in Ontario”, in Archibald and Echlin (eds.), Annual Review of Civil Litigation 2010 at 185.
6. 6Monestier, supra note 4 at 426.
7. 7Black, “Simplifying Jurisdiction in Canada” (2012) 8:3 J. Priv. Int. Law 411 at 425 (emphasis in original).
8. 8Ibid. at 426.
9. 9CJPTA, s. 10(c)(i). The Court Jurisdiction and Proceedings Transfer Act, a product of the Uniform Law Conference of Canada, was discussed in some detail in Van Breda, supra note 1 at paras. 40-43, 52-53, 76-77, 83, 88, 105-106 and 108. The CJPTA has been adopted with some variation in Saskatchewan, British Columbia, Nova Scotia and the Yukon.
10. 10Black, supra note 7 at 426.
11. 11Ibid.
12. 12Van Breda, supra note 1 at para. 117.
13. 13Ibid. at para. 116.
14. 14Ibid. at para. 116.
15. 15Ibid. at para. 117.
16. 16Trillium Motor World Ltd. v. General Motors of Canada Ltd., 2011 ONSC 1300, [2011] O.J. No. 889, aff’d 2012 ONSC 463, [2012] O.J. No. 1578 (Div. Ct.) and 2012 ONSC 1443, [2012] O.J. No. 1579 (Div. Ct.). GMCL did not seek leave to appeal. CBB’s motion for leave to appeal was dismissed by the Court of Appeal.
17. 17Some of the 150 law firms acted for more than one dealer. Hence the discrepancy between the 207 members of the class action and the number of third party defendants. Counsel advise that there may be 151 local lawyers, not 150.
18. 18The 67 Ontario-based law firms that provided legal advice to Ontario-based GM dealers are obviously not contesting the jurisdiction of this court and are not involved in this motion. However, I am advised that the Ontario law firms intend to bring a Rule 21 motion shortly to have the third party action against them dismissed for not disclosing a cause of action.
19. 19This was made clear by the Court in Van Breda: supra note 1 at para. 84. Also see the decision of the Court of Appeal in Export Packers Co. v. SPI International Transportation, 2012 ONCA 481, [2012] O.J. No. 3126 at para. 22.
20. 20I agree with the moving parties that Rule 17.02(q) that allows service ex juris for claims that are “properly the subject matter of a…third or subsequent party claim” cannot ground jurisdiction on the facts herein. See Export Packers, supra note 19 at para. 20: “The fact that a foreign party qualifies as a proper subject of a third party claim is not, by itself, a reliable indicator that there is a real and substantial connection to support the assertion of jurisdiction over that foreign party.” And at para. 22: “There must be some factual connection to Ontario”.
21. 21Supra note 1 at para. 92.
22. 22Ibid. at para. 116.
23. 23Ibid. at para. 117.
24. 24Under Article 9 of the WDA, the dealer agreed to review the agreement with his or her legal advisor and complete and attach a Certificate of Independent Legal Advice in the form shown as Exhibit B to the agreement. The words just quoted in the body of my Reasons appear in Recital C on the Certificate of Independent Legal Advice.
25. 25Supra note 19.
26. 26Supra note 19 at paras. 12-16.
27. 27Breeden v. Black, 2012 SCC 19, [2012] 1 S.C.R. 666.
28. 28Ibid. at paras. 22-23. Also see Van Breda, supra note 1 at para. 108.
29. 29Much will depend on the upcoming Rule 21 motion that is being brought by the 67 Ontario lawyers. Recall supra note 18.