Court File and Parties

COURT FILE NO.: CV-13-471701
DATE: 20131217
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Bui Duy Thinh, Metrasse Monique and Bui Metrasse Alexander, Plaintiffs

AND:

Sackoun Philippe, Defendants

BEFORE: Carole J. Brown J.

COUNSEL:
Bui Duy Thinh, representing himself and the other Plaintiffs

Sarah L. G. Pottle, for the Defendant

HEARD: November 28, 2013

ENDORSEMENT

[1] The defendant, Philippe Sackhoun, brings this motion for an order dismissing this action pursuant to Rule 21.01(3) of the Rules of Civil Procedure on the ground that Ontario does not have jurisdiction simpliciter over the plaintiffs’ claims.

[2] For the reasons set forth below, I grant the defendant’s motion.

The Background

[3] This action is brought by the plaintiffs, Bui Duy Thinh, Metrasse Monique and Bui Metrasse Alexander ("the plaintiffs"), arising from the alleged conduct or misconduct of the defendant, Philippe Sackoun, a lawyer in Paris, and his alleged misconduct and fraud before the French courts in proceedings regarding the administration of the estate of the plaintiff’s, Bui Duy Thinh’s, father in France, commenced following the father's death in 2006. The estate includes property which is currently the subject of proceedings before the Tribunal de Grande Instance de Creteil (hereinafter "the TGI"), in France. The plaintiff is a party to that proceeding, along with the other beneficiaries, who are his relatives and mother. Pursuant to the court documentation and an order of the TGI, in evidence in this motion, the defendant acts for several members of the Bui family in that legal proceeding in France relating to the administration of the testator's estate. The plaintiffs oppose the other beneficiaries of the estate, who are represented by the defendant, with respect to issues arising from the administration of the said estate relating to property in France. The defendant has never been retained by or acted for the plaintiffs.

[4] The defendant has never resided in, practiced law in, or visited Ontario. The estate is located in France, where the testator, the father of Mr. Bui resided, and subject to French law. The defendant, a lawyer licensed to practice law in France, is subject to the rules, regulations and laws of France as regards the defendant's practice of law and the allegations of professional misconduct.

[5] Court documents were served on the plaintiffs, in Ontario, pursuant to French law and The Hague Convention. The evidence indicates that a summons was issued from the TGI de Creteil on December 6, 2012, to the plaintiff to appear, by counsel, at the proceedings.

[6] As regards the action in France, Mr. Bui stated in court that he had initially retained counsel in France, that some six lawyers reviewed the action, that the TGI subsequently appointed a lawyer to represent him in court, but that the lawyer retained did not do so adequately. He further advises that he has now appealed the orders of the TGI to the appellate court in Paris. I note that there is no evidence of this before me. I note further that, while the plaintiff has provided a brief of documentation for use at this motion, he had not provided a sworn affidavit by which to introduce said documentation, such that the documentation is not properly in evidence before the court.

The Ontario Action

[7] The plaintiffs bring the subject action for “moral and financial” damages from the defendant arising from alleged misconduct and fraudulent representations before the TGI as regards the administration of the testator's estate and, also, within the context of the action, and seeks production of documents related to the testator’s estate and the French legal proceedings.

[8] The originating notice in the subject action includes elements of both a notice of application and statement of claim, although it is clear that the rules applicable to applications do not apply in this case, as there are significant facts in dispute. Pursuant to the originating process, which I will hereinafter refer to as the statement of claim, the plaintiffs claim damages for alleged misrepresentations by the defendant concerning representations that: the defendant acted for the other Bui beneficiaries in the French proceeding; the defendant issued a summons for Mr. Bui to attend before the court in the TGI proceedings, and that he made statements in the TGI proceedings that gave rise to moral prejudice to the plaintiffs. Pursuant to paragraph 2 of the statement of claim, the relief sought by the plaintiffs includes damages and interest for "moral and financial" prejudice by the defendant, including a provisional sum of $195,006.36 Cdn for embezzlement; and bribery of witnesses, undermining privacy, honour and probity or integrity; illegal collection of interest; counselling fraud as regards the French Treasury, the heirs and the creditors of the deceased; concealment of conflict of interest; fraudulent operations; and abuse of power.

[9] Mr. Bui, on behalf of the plaintiff, states that the French Tribunal is incompetent, unable to speak truth and render justice, and that the Ontario courts are more just and impartial for purposes of determining these issues. Further, he submits that the Ontario courts are more convenient. It was, further, Mr. Bui's position that the estate was not French but international, as the assets were located in both France and Asia. There is, again, no evidence of assets in Asia before the court. Based on the documentation in evidence, and the orders of the French court, it appears that the assets in issue involve property located in France.

The Issues

[10] The issues to be determined on this motion are as follows:

1. Whether Ontario can assume jurisdiction simpliciter over the subject claim;

2. In the event that Ontario does have jurisdiction simpliciter, whether Ontario is the forum conveniens for the action;

3. Whether service of the statement of claim should be set aside.

The Law

[11] With respect to this motion and the relief sought, the defendant, moving party, relies on Rules 21.01(3)(a), 70.06 and section 106 of the Courts of Justice Act.

Jurisdiction Simpliciter

[12] The Supreme Court of Canada, in Club Resorts v Van Breda, **2012 SCC 17** has enunciated the test to be followed in determining whether the court has jurisdiction simpliciter over a dispute. The court identified a set of relevant presumptive connecting factors which would, prima facie, entitle the court to assume jurisdiction over a dispute. The Court enunciated four connecting factors giving rise to a presumption of jurisdiction as follows:

1. Whether the defendant is domiciled or resident in the province;

2. Whether the defendant carries on business in the province;

3. Whether a tort was committed in the province; and

4. Whether a contract connected with the dispute was made in the province.

[13] The list of presumptive connecting factors is not exhaustive. The Supreme Court indicated that the court may identify new factors which also presumptively entitle the court to assume jurisdiction similar in nature to those connecting factors identified. The onus is on the plaintiff to establish whether new connecting factors should be given presumptive effect.

[14] In the present case, the plaintiffs have not raised or identified any new connecting factors and, accordingly, the four factors enunciated by the Supreme Court of Canada, as set forth at para. 10 supra., will be applied herein.

[15] The court must consider whether any of the four enunciated presumptive connecting factors exist and whether they are applicable. Where it is found that connecting factors exist, the court must proceed to determine whether Ontario is the forum conveniens for the dispute.

[16] It is the position of the moving party defendant that none of the established presumptive connecting factors set out in Van Breda, supra, apply to this case and that the plaintiffs have not established the application of any new connecting factor. As regards the factors, the parties have made the following arguments.

Whether the Defendant Is Domiciled or Resident in the Province of Ontario

[17] The counsel for the defendant submits that the defendant has never been a resident of or domiciled in Ontario, that the defendant resides in Paris, where he has practiced law for 21 years and, therefore, that the first connecting factor does not apply.

[18] The plaintiffs argue that the defendant should be deemed to be resident here in Ontario as he appears, according to the TGI court documents to represent beneficiaries who reside in Canada (Québec), as well as beneficiaries in France and the US. They do not cite any caselaw for this proposition. I do not find the plaintiffs’ argument on this issue to be persuasive.

[19] Based on the evidence before me, I find that the defendant is not resident or domiciled in the province of Ontario and that the first enunciated presumptive connecting factor has not been established.

Whether the Defendant Carries on Business in the Province of Ontario

[20] Pursuant to the decision in Van Breda, supra, indicia of carrying on business in Ontario include maintaining an office in the province or regularly visiting the territory of the jurisdiction as indicators of actively carrying on business there. The evidence indicates that the defendant does not practice law in Ontario, has no offices in Ontario, does not visit Ontario on a regular basis and, indeed, has never visited Ontario. He is licensed to practice law in and carries on business in Paris. Again, the plaintiffs argue that, pursuant to the French court documents, some of the beneficiaries represented or purportedly represented by the defendant reside in Québec and, therefore, the defendant should be considered to practice law in Canada/Ontario. He cites caselaw emanating from Montréal, including Meubles D & F, **2006, QCCS 5438**, for the proposition that a defendant need not reside in the province for the court to assume jurisdiction. I note, however, that that case is distinguishable on the facts and on the applicable jurisprudence. In that case, there was a contract between the parties which included a choice of law clause indicating that Québec law was applicable. The issue before the Court, which took into consideration and interpreted Article 3135 of the Québec Code, was whether Massachusetts or Québec was the forum conveniens. That is a different issue from the issue currently being considered by this Court. I do not find this decision applicable on the facts of this case.

[21] Based on the evidence and applicable caselaw before me, the defendant cannot be considered to be carrying on business in any manner in the province of Ontario.

Whether the Alleged Tort Was Committed in Ontario

[22] It is the position of the defendant that the situs of the torts in the subject action commenced by the plaintiff is France. The plaintiffs’ claim arises from the alleged submissions made by the defendant in the TGI proceedings in France, procedural steps taken by the defendant in said proceedings and various alleged improper actions undertaken by the defendant in relation to the testator's estate or the TGI proceedings in France.

[23] The defendant relies on the case of West Van Inc. v Daisley, **2013 ONSC 1988**, regarding a similar claim brought by the plaintiff against a defendant lawyer, practising in the United States, for negligent misrepresentation. The professional services of the lawyer occurred before the court of North Carolina and, in that case, this connecting factor was found not to be applicable. I find that case to be similar to the one before this Court. The defendant further submits that the alleged suffering of damages in Ontario does not give rise to the application of this presumptive connecting factor, and cites Van Breda, supra, which rejected the plaintiff's argument that the damages claimed by the plaintiff were sustained largely in Ontario, although the accident in which the husband was killed occurred in Cuba, and held that such allegations of damage in Ontario did not give rise to the application of this presumptive connecting factor.

[24] The plaintiffs submit that the tortious acts comprising their claim as against the defendant brought in the Superior Court include the service of documents by the defendant pursuant to The Hague Convention through the designated authorities on the plaintiffs in Ontario which, he claims, are fraudulent documents, and the attempted defrauding by the defendant of the plaintiffs in the proceedings in France. He further submits that the fact that the defendant did not respond to his statement of claim from January to June of 2013 constitutes a tort of moral prejudice to the plaintiffs which affects not only his family, but the other beneficiaries in Québec, who are not parties to this action. He further indicates that there is a financial tort, given that he is required to respond to the French court process. He indicates that he must vindicate his family honour vis-à-vis the representation by Mr. Sackoun of the other beneficiaries. Further, he submits that the French proceedings are of no legal value.

[25] Although the plaintiff submitted that Ontario was more convenient for the plaintiffs as the jurisdiction, the Supreme Court, in Van Breda, supra, held that the presence of the plaintiff in the jurisdiction is not, on its own, a sufficient connecting factor.

[26] Based on the statement of claim issued in the subject matter, there is no tort alleged there which was committed in Ontario and which could constitute a connecting factor for purposes of this Court’s assumption of jurisdiction over the subject dispute.

Whether There Is a Contract Connected with the Dispute in Question That Was Made in Ontario

[27] Counsel for the defendant argues that the defendant did not enter into any retainer agreements or contracts with the plaintiffs. There is no evidence before me to establish that there was any such contract.

[28] However, the plaintiffs argued that, as beneficiaries, they should be deemed to have signed a contract, as the other beneficiaries signed court documents and other documents related to this matter. They import a concept of "indivisibility", alleging that it is a French legal concept, whereby they cannot be considered separate from the other beneficiaries. I do not find this argument persuasive.

[29] I find that there is no evidence of any contract entered into directly between the plaintiffs and the defendant and, accordingly, the fourth connecting factor is not applicable.

[30] I am satisfied, based on the evidence before me, and on Van Breda, that none of the presumptive connecting factors enumerated therein exist in this case and, accordingly, jurisdiction should not be assumed by this Court over the dispute in question. Accordingly, pursuant to Rule 21.01(3)(a), I order that this action, Court file number CV-13-471701, be dismissed. I further note that the order previously made by Master Glustein regarding production of documents is, based on the within order, a nullity and is to be quashed.

[31] Given these findings, I need not consider the additional issues set forth at para. 8, supra.

Costs

[32] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.

Carole J. Brown J.

Date: December 17, 2013