Facts

[1] The Plaintiff, Central Sun Mining Inc. (“Central Sun”) has brought an action for damages arising from a landslide at a gold mine in Costa Rica, alleging negligence, negligent misrepresentation, and breach of contract by the Defendants.

[2] Some of the Defendants object to this action proceeding in Ontario. These “Moving Defendants” are:

(a) "the SRK Defendants" who are Steffen Robertson Kirsten/SRK Consulting, Steffen Robertson Kirsten (U.S.) Inc., Richard Frechette, David S. Hallman, Charles J. Khoury, Rob Dorey and Allan Breitenbach. The Defendants provided engineering services with respect to the Bellavista Mine project from 1997 to December 2003; and

(b) “the Vector Costa Rica Defendants" who are XVEI Inc., Vector Costa Rica S.A., Vector Ingeniera Costa Rica, S.A., Mark Smith, Marc Leduc and Sean Currie.

[3] These Moving Defendants challenged the court's jurisdiction. Justice Stinson held that as the action lacked a real and substantial connection with Ontario, the Court did not have jurisdiction simpliciter. As a result, no decision was made with respect to the forum non conveniens issue. (Central Sun Mining Inc. v. Vector Engineering Inc., 2011 ONSC 1439, paras. 90-91)

[4] The Court of Appeal of Ontario held that Ontario did have jurisdiction simpliciter and ordered that the motion be returned to this motions court for a hearing on the forum non conveniens issue. (Central Sun Mining Inc. v. Vector Engineering Inc., 2013 ONCA 601, para. 39)

[5] These Moving Defendants request an order dismissing or staying this action on the basis that Ontario is not the convenient forum for this action.

[6] They submit that Central Sun’s claims for negligence and breach of contract are based on actions taking place in Costa Rica and in the United States. As well, they argue that most of the parties and the key witnesses are resident outside Ontario, and the evidence is also located outside Ontario.

[7] All parties relied on the decision of the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572 which held that the moving defendants "must show that the alternative forum is clearly more appropriate". The burden of proof was summarized as follows:

“The burden is on a party who seeks to depart from this normal state of affairs to show that, in light of the characteristics of the alternative forum, it would be fairer and more efficient to do so and that the plaintiff should be denied the benefits of his or her decision to select a forum that is appropriate under the conflicts rules. The court should not exercise its discretion in favour of a stay solely because it finds, once all relevant concerns and factors are weighed, that comparable forums exist in other provinces or states. It is not a matter of flipping a coin. A court hearing an application for a stay of proceedings must find that a forum exists that is in a better position to dispose fairly and efficiently of the litigation.

But the court must be mindful that jurisdiction may sometimes be established on a rather low threshold under the conflicts rules. Forum non conveniens may play an important role in identifying a forum that is clearly more appropriate for disposing of the litigation and thus ensuring fairness to the parties and a more efficient process for resolving their dispute…”

[104] This Court reviewed and structured the method of application of the doctrine of forum non conveniens in Amchem. It built on the existing jurisprudence, and in particular on the judgment of the House of Lords in Spiliada Maritime Corp. v. Cansulex Ltd., [1987] 1 A.C. 460. The doctrine tempers the consequences of a strict application of the rules governing the assumption of jurisdiction. As those rules are, at their core, based on establishing the existence of objective factual connections, their use by the courts might give rise to concerns about their potential rigidity and lack of consideration for the actual circumstances of the parties. When it is invoked, the doctrine of forum non conveniens requires a court to go beyond a strict application of the test governing the recognition and assumption of jurisdiction. It is based on a recognition that a common law court retains a residual power to decline to exercise its jurisdiction in appropriate, but limited, circumstances in order to assure fairness to the parties and the efficient resolution of the dispute. The court can stay proceedings brought before it on the basis of the doctrine.

[105] A party applying for a stay on the basis of forum non conveniens may raise diverse facts, considerations and concerns. Despite some legislative attempts to draw up exhaustive lists, I doubt that it will ever be possible to do so. In essence, the doctrine focusses on the contexts of individual cases, and its purpose is to ensure that both parties are treated fairly and that the process for resolving their litigation is efficient. [Emphasis Added]

[8] As well, in the case of Breeden v. Black, 2012 SCC 19, para. 37, the Supreme Court of Canada also stated that:

“The forum non conveniens analysis does not require that all the factors point to a single forum or involve a simple numerical tallying up of the relevant factors. However, it does require that one forum ultimately emerge as clearly more appropriate. The party raising forum non conveniens has the burden of showing that his or her forum is clearly more appropriate. [original and added emphasis].

[9] In Van Breda, the Supreme Court considered these factors, which the parties in this motion referred to and relied on:

(a) location of parties and witnesses;

(b) the cost of transferring the case to another jurisdiction or of declining the stay;

(c) the impact of a transfer on the conduct of litigation or on related parallel proceedings;

(d) the possibility of conflicting judgments;

(e) problems related to the recognition and enforcement of judgments;

(f) the relative strengths of the connections of the two parties; and

(g) whether declining jurisdiction would deprive the plaintiff of juridical advantage.

[10] The Supreme Court of Canada did make it clear that “the doctrine focuses on the contexts of individual cases and that its purpose is to ensure that both parties are treated fairly and that the process for resolving their litigation is efficient”. The Court also held, at para. 105, that a party may “raise diverse facts and considerations”.

[11] The Vector Defendants submit that Costa Rica is clearly a more appropriate forum than Ontario. The SRK Defendants submit that Colorado is clearly a more appropriate forum than Ontario.

[12] Central Sun’s main objection to this motion is that the moving Defendants have not established that there is a competing forum that also has jurisdiction. Further, there is no evidence suggesting any alternate forum or even, more importantly, regarding the characteristics of such alternate forum. The only very limited evidence is from the supplementary affidavit of Mark Smith (officer and director of XVEI Inc.) wherein he states:

16. I verily believe, based upon a balance of convenience, having regard to the location of the mine which sustained the damage, and the location of the majority of witnesses who will be called to testify, that the most appropriate jurisdiction in which to try this action would be Costa Rica.

[13] All other suggestions are made by counsel for the moving parties in the Facta or in counsel’s submissions.

[14] The evidence presented by the parties was summarized by Justice Stinson in paragraphs 1 to 27 of his decision. Under the heading of “The Defendants”, paragraphs 17 through 25 summarize the evidence with respect to the identification of the Moving Defendants, which focuses on where they are resident in the case of the Personal Moving Defendants, and in the case of the Corporate Moving Defendants, where they have offices or do business. The Moving Defendants rely on that same evidence to support this motion.

[15] The Moving Defendants argue that some of the Personal Defendants are professional engineers who face serious allegations and that it is unfair to expect these Defendants to have to come to Canada to defend these allegations. Such would be a compelling argument if there was any evidence to support it. The only evidence with respect to the location of the individual Defendants is that of Mark Smith, in his capacity as officer and director of XVEI Inc., and of Terry Braun, principle of Steffin Robertson Kirksten (U.S.) Inc., that the Personal Defendants reside in a particular place. There is no evidence as to where they are located on a day-to-day basis and there is no evidence of any injustice or prejudice they might suffer if the action continues in Ontario. As well, there is no evidence from any of the Personal Defendants.

[16] In response to Central Sun’s objections, it is submitted that the moving parties must identify another forum that has an appropriate connection under the conflicts rules and that should be allowed to dispose of the action. The Supreme Court of Canada held in Van Breda that this can be established by using the same analytical approach the court followed to establish the existence of a real and substantial connection with the local forum. The evidence led by the moving parties sought to establish the connections with the suggested alternative forum and the subject matter of the litigation.

[17] It is important, however, to remember that they must also convince this Court that a forum exists that is in a better position to dispose fairly and efficiently of the litigation and that there is another forum that is “clearly more appropriate” than Ontario.

[18] As mentioned above, the moving parties rely on the same evidence that they relied on for the jurisdictional challenge. I do agree that the evidence establishes that the proposed alternative forums have a connection with Central Sun’s Claims. The relative strength of the connection of the parties to the jurisdiction is one factor that the Supreme Court of Canada considered in Van Breda, but it is not the only factor that this Court must consider to determine if the Moving Defendants meet their burden of proof.

[19] There was no evidence on the cost of transferring the case to another jurisdiction or of declining the stay.

[20] SRK made submissions that the costs of transferring the case to Colorado would be minimal because the majority of parties and non-party witnesses live outside Ontario. It was similarly submitted that the cost would significantly increase if the action was litigated in Ontario. Further, it was submitted that these costs and geographical factors would hinder the court’s ability to resolve this matter in an efficient, expeditious and economical manner.

[21] I do not agree that the court can reach this conclusion without the appropriate evidence. The evidence relates to the place of residence and does not address how the costs of litigation would be increased in Ontario. Further, Central Sun has undertaken to “transport any necessary witnesses from Costa Rica” to Ontario.

[22] There was no evidence on “the impact of a transfer on the conduct of litigation in related or parallel proceedings” other than the submissions made by Central Sun that the action must continue in Ontario because other defendants have attorned to the jurisdiction.

[23] As mentioned above, there was evidence from representatives of the corporate Moving Defendants regarding either the residences of the Personal Defendants and the witnesses and the places of business of the Corporate Defendants. The Moving Defendants submit that such evidence establishes that the factor of “location of the parties and witnesses” is in their favour. Central Sun disagrees and submits that the majority of the parties and witnesses have residences in Ontario or outside Colorado or Costa Rica. I have already noted that the evidence for the Personal Defendants and the witnesses is limited to where the place of residence is and does not address where the parties are actually located at any given time, or if there are any particular prejudices they may suffer as a result.

[24] With respect to the “possibility of conflicting decisions” factor, Central Sun argues that there is such a risk because the action will have to be litigated in Ontario as some of the other Defendants, who have cross-claimed against the Moving Defendants, will litigate the action in Ontario. The Moving Defendants submit that these claims can be “isolated”.

[25] On the issue of “problems related to the recognition and enforcement of judgments”, there is no evidence.

[26] On the issue of whether the alternate jurisdiction would deprive Central Sun of juridical advantage, there is no evidence, other than the fact that the Moving Defendants will not waive any rights they may have to rely on any juridical advantage they may enjoy from another forum.

[27] The evidence of the Moving Defendants does not address any of the characteristics of the alternate forum proposed other than the geographical location of these forums as being somewhere in the State of Colorado or in Costa Rica.

[28] As there is no evidence of the characteristics of the courts in the alternate suggested forums, it is not reasonable for this Court, based on the evidence in this motion, to conclude that these alternate forums will “be in a better position to dispose fairly and efficiently of the litigation”. The evidence regarding the connections to the forums and the residences of the parties is not enough, in my view, to meet the required burden of proof set by the Supreme Court of Canada in Van Breda.

[29] Therefore, when all of the evidence which I have referred to above is considered, I am not convinced that either Colorado or Costa Rica has been shown to be clearly in a better position to litigate this action fairly and expeditiously than Ontario. I find that the Moving Defendants have not met their burden of proof. This motion is therefore dismissed.

Costs

[30] If the parties are unable to agree on the issue of costs, they may make brief written submissions. The Plaintiff's costs submissions will be delivered within two weeks of the date of release of these reasons, with the Defendants’ to be delivered within two weeks of receiving the Plaintiff's costs submissions. In accordance with what the rules provide, the submissions shall be no longer than three pages in length and they will include a bill of costs, together with information on each lawyers' year of call and actual billing rate. If there are any offers of settlement that bear on the issue of costs, these will be included as well.

Pollak J.

Date: April 28, 2014