COURT FILE NO.: CV-15-11016-00CL DATE: 20160714

SUPERIOR COURT OF JUSTICE – Ontario

(COMMERCIAL LIST)

RE: TERRACAP INVESTMENTS Inc., Plaintiff

A N D:

CREDIT CAPITAL IMMOBILLIARI, S.A., PATRIGEST, S.A. and CREDIT ANDORRA, S.A., Defendants

BEFORE: MESBUR J.

COUNSEL: Matthew B. Lerner and Brian Kolenda, for the Plaintiff (responding party on the motion) Luis Sarabia and Anisah Hassan, for the Defendants, (moving parties on the motion)

HEARD: May 30, 2016

E N D O R S E M E N T

The motion:

[1] Where should this case proceed: Ontario or Andorra? That is the question the court must answer. The defendants move to stay this action on the basis that Ontario lacks jurisdiction simpliciter, or, alternatively, if it has jurisdiction simpliciter, on the basis that Ontario is not the convenient forum. They say the action should proceed in Andorra. The plaintiff takes the position the contract supporting their claim has both a choice of law and forum selection provision in favour of Ontario. Thus, it says Ontario is the appropriate place for the case to proceed.

The facts:

[2] The case arises in the context of a failed real estate transaction relating to several properties in Andorra. The underlying issue is to decide who is entitled to receive €400,000 held in an escrow account pursuant to the provisions of an Escrow Agreement the parties entered into as part of that real estate transaction.

[3] The plaintiff, Terracap, is an Ontario corporation whose head office is in Ontario. Terracap is a real estate investor, with real estate holdings in Canada, the USA and around the world.

[4] The defendant Crèdit Andorrà, S.A. is a bank incorporated under the laws of Andorra. It provides a variety of financial products and services both in Andorra and internationally. It maintains branches in Spain, Luxembourg, Switzerland, Mexico, Panama, Paraguay, Peru, Uruguay, Chile and the USA.

[5] The defendant Crèdit Capital Immobiliari, S.A. is a subsidiary of Crèdit Andorrà, and manages its real estate holdings. The defendant Patrigest, S.A. is also a Crèdit Andorrà subsidiary. Credit Capital and Patrigest are incorporated under the laws of Andorra, and both carry on business exclusively in Andorra. They have no presence in Ontario or elsewhere.

[6] The real estate transaction at issue in this case contemplated the plaintiff purchasing and then leasing back a number of properties in Andorra. The transaction was structured so that the plaintiff would buy the properties for €85.8 million, and then simultaneously lease them back to Crèdit Andorrà. There were four key agreements intended to govern the transaction. All are in the English language. Only two of the agreements were actually executed.

[7] First, the parties signed an Agreement of Purchase and Sale and Lease-back (APSL). The APSL sets out the general structure of the transaction. Among other things, it required the defendants to use their “best efforts” to obtain approval of the transaction from the Institut Nacional Andorra de Finances, (INAF) by September 15, 2014 and to enter into an Escrow Agreement and deposit €400,000 to be held in escrow. [1] The APSL does not contain either a choice of law or forum selection provision.

[8] Second, a Deed of Sale and Purchase was to effect the transfer. It was never executed, but a document setting out its form and content was attached as a schedule to the APSL. That document had both a choice of law and forum selection clause in favour of Andorra. It says, in the section titled “Applicable Law and Jurisdiction”:

This Deed is to be governed by and construed and interpreted in accordance with the laws of Andorra where the property is located ( lex real [illegible]) the parties expressly waive any other venue in which they might be entitled and subject themselves to the courts and tribunals of the Principality of Andorra for any lawsuit resulting from this Deed.

[9] Third, a Lease Agreement was to govern the lease back of the properties. Again, it was never executed, but an unexecuted copy is appended as a schedule to the APSL. The Lease Agreement had a choice of law provision in favour of Andorra but no forum selection clause.

[10] Finally, an Escrow Agreement (at issue here), required Credit Capital and Patrigest to place €400,000 in escrow with an escrow agent, on certain terms. The parties executed the €400,000 Escrow Agreement, and the money was placed into escrow under the terms of the agreement. The Escrow Agreement named a Toronto partner of the Canadian law firm McCarthy Tetrault as escrow agent. The escrow funds were to be held in the firm’s trust account in Montréal, Quebec.

[11] Article IV of Escrow Agreement says:

Notwithstanding that the Escrow Funds will be held by the Escrow Agent in the Province of Quebec, Canada, this Escrow Agreement shall be governed by and construed in accordance with the law of the Province of Ontario, Canada and the parties hereto attorn to the Court of the Province of Ontario.

[12] Article II of the escrow agreement is titled “Disbursements of Escrow Funds”. It says, among other things:

On or after November 1, 2014, if the sale of the Properties pursuant to the Contract [APSL] shall have occurred or not have occurred, solely due to the failure of the Buyer to close in accordance with the Contract, Sellers shall be entitled to the return of the Escrow Funds. In any other event, the Buyer shall be entitled to the Escrow Funds, provided that the Buyer has delivered evidence of expenses equal to or greater than Euro 550 thousand.

[13] The parties agree this provision means the defendants are entitled to the return of their €400,000 if one of two things occurs. First, if the deal has closed on or after November 1, 2014, the €400,000 goes back to the defendants. Second, if the deal has failed to close on or after November 1, 2014 and the failure to close is due solely to the plaintiff’s failing to close in accordance with the APSL, the defendants get their money back. If, however, the transaction fails to close for any other reason, the €400,000 is to be paid to the plaintiff.

[14] Article II goes on to set out the terms under which the escrow agent is to release the funds. If either the buyer or seller demands the escrow funds, the escrow agent is obliged to give the other party notice of the demand. That party has the right to deliver a notice of objection to the escrow agent. If the escrow agent has not received a notice of objection within 10 days of the escrow agent’s giving notice of the demand, the escrow agent can release the funds. If, however, the escrow agent receives a notice of objection the following terms apply:

If Escrow Agent receives a notice of objection within said period, or if for any other reason, Escrow Agent in good faith elects not to deliver the Escrow funds, then Escrow Agent shall continue to hold the Escrow Funds and thereafter pay the Escrow funds to the party entitled when Escrow Agent receives (1) a notice from the objecting party withdrawing the objection, (2) a notice signed by both parties directing disposition of the Escrow Funds, or (3) a non-appealable judgment or order of a court of competent jurisdiction …

[15] The sale did not close “on or after November 1, 2014”. Not surprisingly, the parties disagree as to why that was. The plaintiff now sues in this court for the following primary relief: [2]

a) Damages for breach of contract and/or breach of the duty of honest performance and/or good faith in the amount of €400,000 or its Canadian dollar equivalent (the “Escrow Funds”) owing pursuant to an Agreement of Purchase and Sale and Lease Back dated May 20, 2014 (“the APSL”) and currently held in escrow pursuant to an Escrow Agreement dated September 5, 2014 (the “Escrow Agreement”);

b) A declaration that the Plaintiff is entitled to payment of the Escrow funds pursuant to the APSL and Escrow Agreement;

[16] The claim goes on to describe the underlying transaction, with reference to the parties’ rights and obligations under the APSL. The plaintiff then asserts that Credit Andorra delayed its application for INAF approval and then demanded an almost immediate closing date or a deferred date, but if and only if the escrow funds were released to the defendants prior to closing. The transaction did not close on or before November 1, 2014. The plaintiff pleads this was “as a result of the failure of the Vendors and/or Credit Andorra to comply with the terms of the APSL.” [3] In the alternative, the plaintiff pleads the transaction failed to close “due to the defendants’ failure to comply with their duty of honest performance of the APSL and their duty to act in good faith in its performance.” [4]

[17] The plaintiff concludes by saying it has delivered evidence of expenses of more than €550,000 as required by the Escrow Agreement. Thus, it pleads it is entitled to payment of the Escrow Funds.

The parties’ positions on the motion:

[18] The defendants take the position this lawsuit regarding payment of the funds held pursuant to the Escrow agreement should not proceed in Ontario. First, they suggest Ontario lacks jurisdiction simpliciter. Next, they argue that even if the Ontario court has such jurisdiction, Ontario is not the convenient forum, and therefore should decline jurisdiction. They say the essence of the plaintiff’s claim relates to the proper interpretation and implementation of the APSL and its subsidiary documents.

[19] The defendants assert the claim requires a determination of whether the terms of the APSL were violated. They argue since a fundamental question in the lawsuit is whether Credit Andorra fulfilled its obligation to use its best efforts to obtain INAF approval most of the evidence to determine these issues is in Andorra. They say the witnesses are located in Andorra. The defendants go on to say that Andorran witnesses will no doubt have to testify in Catalan, the language of Andorra, and thus translation would be required in an Ontario lawsuit. All this, they argue, should be determined in Andorra. As a result, the defendants assert Andorra is the appropriate place to litigate the issues raised in the claim.

[20] They say this because the transaction relates to property in Andorra, the vendor is Andorran, the deed was to be subject to Andorran law, and litigated in Andorra. The defendants go on to suggest that since they were to use “best efforts” to obtain INAF approval, that issue will be determined under Andorran law. They argue that if the case were to proceed in Ontario, expert evidence would be required to determine the meaning of “best efforts” under Andorran law. The defendants’ affiant on this motion swears that best efforts “as understood under Andorran law” is the fundamental question that must be answered. [5] The defendants go on to say that in addition to roughly six witnesses from the bank and its auditors, witnesses from INAF will have to testify, and no doubt will testify in Catalan, thus leading to a requirement for interpreters.

[21] The defendants say the escrow agreement itself cannot resolve the plaintiff’s claim. They argue there is no issue as to what the escrow agreement means; the real issue is about the APSL, a determination of the parties’ rights and obligations under it, and deciding which party breached its terms. They look at the escrow agreement as simply providing a remedy for breach of the APSL in certain circumstances.

[22] Because of all this, the defendants take the position Ontario does not even have jurisdiction simpliciter.

[23] The plaintiff says not only does Ontario have jurisdiction simpliciter, the issue of convenient forum cannot be engaged because the Escrow Agreement contains both a choice of law provision in favour of Ontario and a forum selection provision by which the parties chose Ontario as the forum to govern the escrow agreement. The Escrow Agreement itself gives Ontario jurisdiction simpliciter, and also contractually names Ontario as a convenient forum for disputes. The plaintiff argues the court should only ignore the clear agreement of the parties in exceptional circumstances. The plaintiff argues there are no exceptional circumstances here, and therefore the claim must continue in Ontario.

[24] The plaintiff points out there is no remedy for breach under the APSL itself. It says the Escrow Agreement must have a meaning and a purpose. That meaning and purpose is to determine who is entitled to the escrow funds. That issue is to be governed by Ontario law, and may be litigated in Ontario. The plaintiff argues that to say the Escrow Agreement does not apply to this lawsuit makes no commercial sense; if the Escrow Agreement is not engaged in these circumstances, it would never be engaged, making its choice of law and forum selection provisions meaningless. This result, it says, would run contrary to basic principles of contract interpretation.

Discussion:

[25] In any discussion of the proper forum for a lawsuit, one begins with an analysis of the nature of the dispute, its essential subject matter. This leads in turn to an analysis of whether the court has jurisdiction over the subject matter in question. Even if it does, the court must still determine whether the jurisdiction chosen for the suit is the most convenient forum for it. This last question involves an analysis and weighing of various connecting factors to each of the jurisdictions proposed as most convenient.

[26] The parties’ positions therefore require answers to the following questions:

a) What is the essential nature of this lawsuit? b) Does Ontario have jurisdiction simpliciter over the suit? c) If the answer to (b) if “yes”, does the Escrow Agreement dictate both the choice of law and choice of forum? d) If the answer to (b) is “no”, what is the convenient forum for this lawsuit. e) Even if the answer to (b) is “yes”, are there exceptional circumstances here to warrant the choice of Andorra.

I will answer each of these questions in turn.

The essential nature of the lawsuit

[27] The defendants suggest this lawsuit, as the plaintiff frames it, is not really a dispute arising under the Escrow Agreement. The defendants say at its heart, the suit relates to the proper interpretation of the parties’ rights and obligations under the APSL. Since the APSL was likely entered into in Andorra [6] , relates to property in Andorra between parties who primarily carry on business in Andorra (the defendants) the suit is more closely connected to Andorra.

[28] The APSL has no forum selection clause. The Escrow Agreement does. The plaintiff argues the defendants’ position would render the choice of law and forum selection provisions of the Escrow Agreement meaningless. As their counsel put it in argument, when one looks at the overall structure of the transaction, if the transaction closed, any disputes would be litigated in Andorra. This is because the Deed of Sale and Purchase names Andorra as the forum, and the law of Andorra as the applicable law for any dispute arising under that agreement. Similarly, the Lease Agreement says Andorran law would apply to disputes arising under the lease back.

[29] Since the transaction did not close, the plaintiff argues the Deed of Sale and Purchase cannot apply, nor can the Lease Agreement. It says the parties’ rights and obligations regarding the escrow funds must therefore be determined under the provisions of the Escrow Agreement.

[30] The Escrow Agreement has three major components. First, it requires the defendants to deposit the escrow funds with the escrow agent. Next, it sets out the circumstances under which either side would be entitled to the escrow funds. Last, it sets a mechanism for a party to demand payment of the escrow funds and for the other or others to dispute that claim to the escrow funds.

[31] As the plaintiff frames it, the only issue in this lawsuit is “entitlement to the escrow funds under the Escrow Agreement. Payment of the escrowed funds is the only relief sought in this proceeding.” [7]

[32] I agree. A dispute under the Escrow Agreement will only arise in the context of which party is entitled to the escrow funds. That is the very issue the claim raises. I therefore conclude the essential nature of the claim is entitlement to the funds under the Escrow Agreement.

[33] The claim therefore arises under the Escrow Agreement.

Jurisdiction simpliciter

[34] The defendants argue Ontario does not even have jurisdiction simpliciter over this lawsuit. By jurisdiction simpliciter they mean the claim can only be heard in Ontario if Ontario courts properly have jurisdiction over the dispute. For that to occur, they say “there must be a presumptive connecting factor between Ontario and the claim, or another basis to find a real and substantial connection between the dispute and Ontario.” [8]

[35] Van Breda is the seminal decision of the Supreme Court of Canada on the issue of the appropriate venue for a lawsuit. Van Breda, however, dealt with forum selection in the context of a tort claim. Here, the parties’ rights and obligations arise in the context of their contractual relationships.

[36] If the Escrow Agreement had no bearing on the claim, the Van Breda analysis might have some weight. The claim, however, arises squarely under the Escrow Agreement, which clearly gives Ontario jurisdiction. To argue otherwise ignores the clear bargain the parties struck when they attorned to the courts of Ontario.

Does the Escrow Agreement dictate choice of law and forum?

[37] The parties agree that under the Escrow Agreement there is a choice of law provision in favour of Ontario. They disagree, however, on whether that choice of law applies to the dispute here.

[38] The nature of this lawsuit is the question of which party is entitled to the escrow funds under the terms of the Escrow Agreement. That question requires a determination of which party is responsible for the failure of the transaction to close under the APSL. Fundamental to that question is whether the failure to close is due solely to any act of the plaintiff, or whether the defendants bear any responsibility. Those questions, arising as they do under the Escrow Agreement, must be determined under Ontario law.

[39] I therefore reject the defendants’ argument that permitting the suit to continue in Ontario would require expert evidence on Andorran law. To the contrary, if the suit were to proceed in Andorra, expert evidence would be required there to prove Ontario law, since that is the choice of law the parties have made to decide issues under the Escrow Agreement.

[40] The choice of law provision in favour of Ontario is a factor supporting the action continuing in Ontario.

[41] As to the proper jurisdiction for the suit, Terracap interprets the phrase in the Escrow Agreement “the parties hereto attorn to the Court of the Province of Ontario” as a forum selection clause. It says courts must give effect to forum selection clauses for important public policy reasons. The Supreme Court of Canada set out these reasons in ZI Pompey Industrie v. ECU-Line NV [9] where it said:

Forum selection clauses are common components of international commercial transactions… These clauses are generally to be encouraged by the courts as they create certainty and security in transaction, derivatives of order and fairness, which are critical components of private international law … it is essential that courts give full weight to the desirability of holding contracting parties to their agreements.

[42] The defendants say under the Escrow Agreement Ontario does not have exclusive jurisdiction. They point to the clause in Article II of the Escrow Agreement that permits the escrow agent to pay out the escrow funds on receiving a “non-appealable judgment or order of a court of competent jurisdiction ” [emphasis added] to support their position. The defendants describe the clause in the Escrow Agreement as a “non-exclusive” forum selection clause. They say this is therefore only one factor to consider in the overall analysis.

[43] Terracap agrees the Escrow Agreement has a non-exclusive forum selection clause, but takes the position that since it has chosen to sue in Ontario, its choice forecloses any objection from the defendants to Terracap’s choice of a named jurisdiction. Terracap argues that in these circumstances where it has chosen a named jurisdiction, the onus shifts to the defendants to demonstrate first, that the forum selection provision should be disregarded because of fraud, and second, that Andorra is clearly more convenient. Terracap relies on Loat v Harworth [10] to support its position. Loat provides a helpful analysis for the issues on this motion.

[44] As is the case here, Loat involved the interplay of two different agreements governing the rights and obligations of the parties. A Service Agreement contained what the Court of Appeal described as “combined forum selection and governing law clause” which read:

Except as expressly set forth herein this Agreement is governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. The parties agree to submit to the non-exclusive jurisdiction of the courts of the Province of Ontario in relation to any claim or matter arising under this Agreement. [Emphasis added by the Court at paragraph 6 of its reasons]

[45] The parties had also entered into a shareholders’ agreement which also included a governing law and forum selection clause. The shareholders’ agreement said any disputes “arising out of or in connection with this Agreement” were to be resolved exclusively in England under English law. The relevant provision of the shareholders’ agreement said:

The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement.

[46] The Court of Appeal determined the motions judge had erred in granting a stay of the plaintiff’s Ontario action in favour of England. In coming to that conclusion, the court first considered the import of the forum selection clause in the Service Agreement. It said the parties agreed the Ontario courts have non-exclusive jurisdiction in relation to any claims or matter arising under the Service Agreement. The same analysis applies here.

[47] Here, the parties agreed the Ontario courts have non-exclusive jurisdiction in relation to the Escrow Agreement. Unlike Loat, there is no competing forum selection/governing law provision in another agreement. While the deed and lease both have such provisions, neither was executed. Since the transaction did not close, neither can have any applicability to the parties’ rights and obligations. The APSL has no choice of law or forum selection provision.

[48] In Loat , the court went on to characterize the plaintiff’s claim as “rooted in his employment relationship … This is a matter falling squarely within the four corners of the Service Agreement, thereby implicating the forum selection clause of that contract.” [11] The court concluded Ontario had jurisdiction simpliciter over the lawsuit. I come to the same conclusion here.

[49] As in Loat , the Escrow Agreement here has a non-exclusive forum selection clause. In Loat the court noted that while the plaintiff could have sued in England, he was not obliged to do so. Importantly, the effect of the non-exclusive forum selection clause was “to foreclose objection by the defendants to an action commenced in Ontario regarding claims contemplated by the Service Agreement.” [12]

[50] The court held the motions judge’s failure to consider the import of the forum selection clause was an error. It pointed out “Canadian law favours the enforcement of forum selection clauses negotiated, as here, by sophisticated business people.” [13] It went on to say the “starting point for the determination of whether a forum selection clause should be given effect is ‘the parties should be held to their bargain’ [citations omitted]. This requires examination of the scope of the clause and of the nature of the matter or matter in dispute to determine whether the claims or the circumstances that have arisen ‘are outside of what was reasonably contemplated by the parties when they agreed to the clause.’” [14]

[51] Unlike Loat, this is not a case of competing choice of law and forum selection clauses in two separate agreements. Here, only the Escrow Agreement provides for the appropriate choice of law and forum. The APSL has neither.

[52] I have decided the essence of the lawsuit is rooted in the Escrow Agreement and the parties’ rights and obligations under it. The parties agreed that Ontario law would apply, and Ontario was a proper forum to determine those rights and obligations. The Escrow Agreement therefore dictates both the choice of law and forum selection in favour of Ontario. There is no reason to go further and address the question of whether Ontario is the most convenient forum, having regard to the Van Breda factors.

[53] As the Court of Appeal said in Expedition Helicopters v. Honeywell Inc. [15]

A forum selection clause in a commercial contract should be given effect. The factors that may justify departure from that general principle are few. The few factors that might be considered include the plaintiff was induced to agree to the clause by fraud or improper inducement or the contract is otherwise unenforceable, the court in the selected forum does not accept jurisdiction or otherwise is unable to deal with the claim, the claim or the circumstances that have arisen are outside of what was reasonably contemplated by the parties when they agreed to the clause, the plaintiff can no longer expect a fair trial in the selected forum due to subsequent events that could not have been reasonably anticipated, or enforcing the clause in the particular case would frustrate some clear public policy. Apart from circumstances such as these, a forum selection clause in a commercial contract should be enforced.

[54] I must determine if one of these “few factors” is present here. They might be described as exceptional circumstances.

Exceptional circumstances?

[55] No one has been able to point to any exceptional circumstances here. There is no evidence any party was induced to enter into the Escrow Agreement by fraud or improper inducement. There is no suggestion the Escrow Agreement is otherwise unenforceable. There is no reason for Ontario to decline jurisdiction, nor is there any suggestion this court would be unable to deal with the claim.

[56] The circumstances that have arisen are precisely the circumstances the Escrow Agreement contemplated. The parties agreed Ontario and Ontario law would apply to disputes arising under the Escrow Agreement. The Escrow Agreement deals with holding the escrow funds, and the circumstances under which they are to paid out and to whom. That is the essence of the dispute here: who is to be paid the escrow funds.

[57] There is no evidence that enforcing the forum selection clause in the Escrow Agreement in favour of Ontario would frustrate some clear public policy. Accordingly, I conclude the defendants have failed to meet their burden to show exceptional circumstances. I therefore need go no further, but for the sake of completeness will to address whether the defendants can meet the second part of their burden and also show Andorra would clearly be more convenient.

[58] In looking at the issue of convenience, factors such as location of witnesses, language issues, applicable law, location of parties and location of evidence are important.

[59] Some witnesses are located in Andorra, others in Ontario, and still others are elsewhere. Regardless of whether the case proceeds in Ontario or Andorra, parties and witnesses will have to travel. Andorra is a small, land-locked principality, with no international airport. Anyone travelling to or from Andorra must travel through the mountains into Spain in order to reach their destination. This is a neutral factor. With a choice in favour of either jurisdiction, people will have to travel to or from an inaccessible location.

[60] Most of the witnesses speak English. All the relevant documents are in English. If the case proceeds in Ontario, little or no translation will be necessary. If the case were to proceed in Andorra, all relevant documents would have to be translated into Catalan. The plaintiff’s evidence would have to be taken through a translator. This factor slightly favours Ontario.

[61] I have already decided the terms of the Escrow Agreement govern this suit. Thus, its choice of law provision applies. This means Ontario law governs and if the case were to proceed in Andorra, expert evidence would be needed to prove Ontario law. This factor favours Ontario as a more convenient forum.

[62] As to the location of evidence, some is in Ontario and some in Andorra. This is a neutral factor.

[63] Since there is no parallel proceeding in Andorra, there is no risk that multiplicity of proceedings could create the risk of conflicting decisions in different courts. The plaintiff also points out that if the case were to proceed in Andorra, enforcing any Andorran judgment would require a separate action. The escrow funds are in Canada and the escrow agent is based in Ontario. These factors weigh in favour of Ontario.

[64] Having generally considered the issue of convenience, I cannot conclude the defendants have met their burden to show Andorra would clearly be the more convenient forum. They have failed to meet both parts of their evidentiary burden, and thus the choice of law and forum selection clause in this commercial contract must be enforced.

Disposition:

[65] The claim is rooted in the Escrow Agreement. In the Escrow Agreement the parties expressly agreed the law of Ontario would govern claims arising under it. They also agreed any claim under the Escrow Agreement could proceed in Ontario. The plaintiff has chosen to sue in Ontario, as it is entitled to under the Escrow Agreement. The parties must be held to their bargain. There are no compelling reasons to find otherwise.

[66] The case will therefore proceed in Ontario. The defendants’ motion to stay is dismissed, with costs to the plaintiff fixed, as agreed, at $13,000 all-inclusive on a partial indemnity scale. If there are offers that would affect the scale of costs, then costs are fixed at $20,500 on a substantial indemnity scale. If the parties cannot agree on the scale of costs, they may send me any relevant offers, and a one-page outline, setting out their position on the appropriate scale of costs. They will do so within 7 days of the release of these reasons. If they do not, I assume they have agreed on the scale of costs, and I will not entertain any further submissions on the issue.

MESBUR J.

Released: 20160714

[1] The APSL also required the parties to enter into a further €1 million escrow agreement, but that agreement was never executed, and never came into play. It has no bearing on this motion.

[2] Paragraph 1 of the Statement of Claim. The plaintiff also makes the usual claims for costs, prejudgment interest and “further and other relief.”

[3] Paragraph 21 of the Statement of Claim

[4] Paragraph 21 of the Statement of Claim

[5] Affidavit of Francesc Jordà Blanes, sworn 11 March, 2016 at paragraph 8

[6] There is some dispute over where the APSL was executed, since it was signed in counterparts

[7] Plaintiff’s factum at paragraph 34

[8] Defendants’ factum at paragraph 18, quoting Van Breda v. Village Resorts Ltd. , 2012 SCC 17 at paragraph 100

[9] 2003 SCC 27 at paragraph 20

[10] 2011 ONCA 509

[11] Loat at paragraph 27

[12] Loat at paragraph 29 , citations omitted

[13] Loat at paragraph 31

[14] Loat at paragraph 35 , quoting Expedition Helicopters Inc. v. Honeywell Inc. (2010), 100 O.R. (3d) 24 (O.C.A.)

[15] (2010), 100 O.R. (3d) 24 (O.C.A.) at paragraph 35