Court File and Parties

COURT FILE NO.: CV-16-0566-SR DATE: 2017-04-24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

PIETRO, PASQUALE-ANTONIO SGROMO (PETER, ANTHONY SGROMO) Unrepresented Plaintiff (Responding Party)

- and -

BAIL HOTLINE BAIL BONDS, INC. J. Lester, for the Defendant (Moving Party) Defendant (Moving Party)

HEARD: February 9, 2017, at Thunder Bay, Ontario Mr. Justice D. C. Shaw

Decision on Motion

[1] The defendant brings a motion to dismiss this action for want of jurisdiction. This motion was heard at the same time as motions to dismiss brought in file CV-16-0529 by other, unrelated defendants in an action in which Mr. Sgromo was also a plaintiff.

Background

[2] The plaintiff has caused a statement of claim to be issued in which he claims damages “in tort,” although in addition to torts including battery, false imprisonment, intentional infliction of emotional distress and intentional interference with economic relations, he also claims breach of contract and promissory estoppel.

[3] The plaintiff is a Canadian citizen. At present, he resides in the City of Thunder Bay. However, at all times material to this action he resided and worked in San Francisco, California.

[4] The defendant is a corporation with its head office in Riverside, California. The defendant carries on business in California acting as a surety, providing bail bonds to persons who are charged with a criminal offence. The defendant provides a guarantee in the amount of 90% of the money required to post bail, to enable a person charged criminally to be released on bail pending the disposition of the charge.

[5] On July 6, 2015, the plaintiff was arrested in San Francisco and charged with domestic assault. Bail was set at $50,000.00. Pursuant to a written agreement, the defendant posted bail upon payment of a premium by the plaintiff. The plaintiff was released from custody on July 7, 2015.

[6] On July 11, 2015, the plaintiff was arrested in San Francisco for multiple offences. Bail was set at $115,000.00. Pursuant to a written agreement, the defendant posted bail upon payment of a premium by the plaintiff. The defendant required the plaintiff to surrender his Canadian passport, as collateral for the bail, and to wear an ankle bracelet which tracked his movements. The plaintiff was released from custody on July 13, 2015.

[7] On September 23, 2015, the plaintiff was arrested in California for making criminal threats. Bail was set at $25,000.00. Pursuant to a written agreement, the defendant posted bail upon payment of a premium by the plaintiff. The plaintiff was released from custody on September 23, 2015.

[8] On September 26, 2015, the plaintiff was arrested in San Francisco on a bench warrant for failure to attend court. Bail was set at $200,000.00. Pursuant to a written agreement with the plaintiff and a written agreement with the plaintiff’s sister as an “indemnitor” or co-signer, the defendant posted bail upon payment of a premium by the plaintiff. The plaintiff’s sister resided in Thunder Bay. The plaintiff’s passport remained with the defendant as collateral. The plaintiff was required to wear an ankle bracelet to track his movements. The plaintiff was released from custody on September 27, 2015.

[9] The plaintiff deposes that he wanted to leave California to travel to Thunder Bay between December 27, 2015 and January 4, 2016, to attend his niece’s wedding. He deposes that he asked the defendant’s office manager what was required to enable him to retrieve his passport and to travel to Canada. He deposes that the office manager told him that he had to first purchase his flights and confirm his itinerary prior to requesting permission from the defendant to retrieve his passport and travel. The plaintiff deposes that he then purchased his flights to and from Thunder Bay, through Toronto, and confirmed his flights and itinerary with the defendant. He deposes that the defendant’s office manager completed a “Travel Request Form” which he and the office manager signed. The plaintiff deposes that after further negotiations, he agreed to post an additional $30,000.00 cash as collateral. He says that he was instructed by an executive at the defendant’s Riverside California office to meet the manager of the defendant’s San Francisco office with the $30,000.00 in order to retrieve his passport. The plaintiff deposes that on attending at the defendant’s office the evening before his scheduled flight of December 27, 2015, he was immediately arrested by an agent of Fugitive Recovery Investigations Inc., together with an agent of Financial Casualty and Surety Inc. and two other people. Fugitive Recovery Investigations Inc. and Financial Casualty and Surety Inc. are shown on the bail bond documents filed by the plaintiff on this motion. The plaintiff was taken to jail in San Francisco. He states that the defendant told him that his bail, then outstanding at $225,000.00, was being “pulled”. After being taken to jail, the plaintiff contacted another bail bond company. That bail bond company posted bail of $225,000.00 upon payment by the plaintiff of a premium. The plaintiff was released from jail that same day. The plaintiff deposes that on the day he was released from jail, he met with the defendant’s office manager in San Francisco and his passport was given back to him.

[10] In his motion material, the plaintiff files a letter dated January 6, 2016 from his lawyer in California to the defendant, demanding damages with respect to the December 2015 incident for breach of contract, promissory estoppel, battery, false imprisonment and intentional infliction of emotional distress. The lawyer cited California law in support of each of the alleged causes of action. The lawyer also claimed punitive damages on behalf of the plaintiff, referencing the California Civil Code.

[11] California counsel for the defendant responded by letter to the plaintiff’s California lawyer, stating that the plaintiff had purchased his airline ticket without prior approval from the defendant and that the plaintiff had misrepresented to the defendant his reason for travel, resulting in his apprehension into custody for breach of his bail bond contract.

Discussion

[12] This court has jurisdiction to stay or dismiss an action under s. 106 of the *Courts of Justice Act* and under Rule 17.06 and Rule 21.01 of the *Rules of Civil Procedure*.

[13] Section 106 of the Courts of Justice Act provides:

106. A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.

[14] Rule 17.06 of the Rules of Civil Procedure provides:

17.06 (1) A party who has been served with an originating process outside Ontario may move, before delivering a defence, notice of intent to defend or notice of appearance,

(b) for an order staying the proceeding.

(2) The court may make an order under subrule (1) or such other order as is just where it is satisfied that,

(a) service outside Ontario is not authorized by these rules;

(b) an order granting leave to serve outside Ontario should be set aside; or

(c) Ontario is not a convenient forum for the hearing of the proceeding.

[15] Rule 21.01(3) of the Rules of Civil Procedure provides:

(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,

(a) Jurisdiction – the court has no jurisdiction over the subject matter of the action.

[16] The defendant submits that this court does not have jurisdiction to adjudicate any claims against the defendant in this action because there is no real and substantial connection between the subject matter of the litigation and Ontario.

[17] The determination of whether the court has a right to assume jurisdiction over the claims of the plaintiffs is governed by the principles set out by the Supreme Court of Canada in Van Breda v. Village Resorts Ltd., 2012 SCC 17. The analysis concerning the assumption of jurisdiction is grounded in the real and substantial connection test – objective factors which connect the subject matter of the litigation to the forum.

[18] Van Breda set out four presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute:

(a) the defendant is domiciled or resident in the province;

(b) the defendant carries on business in the province;

(c) the tort was committed in the province; and

(d) a contract connected with the dispute was made in the province.

[19] The burden is on the plaintiffs to establish a recognized presumptive factor. The burden of rebutting a presumptive factor lies with the party challenging the assumption of jurisdiction. At para. 100, the court stated:

If the court concludes that it lacks jurisdiction because none of the presumptive connecting factors exist or because the presumption of jurisdiction that flows from one of those factors has been rebutted, it must dismiss or stay the action….

[20] The plaintiff must establish on admissible evidence a good arguable case that one of the presumptive factors is present (See Shah v. LG Chem, Ltd., 2015 ONSC 2628, at para. 10).

[21] I find that the plaintiff has not provided any evidence to show a good arguable case that would justify the Ontario Superior Court of Justice assuming jurisdiction over this defendant. None of the presumptive factors or any analogous factor is present.

[22] The defendant is a California company. It is not domiciled or resident in Ontario. The defendant does not carry on business in Ontario. The alleged torts were not committed in Ontario. The contracts pleaded in the statement of claim were all made in California. Any alleged breach of contract occurred in California. At all material times the plaintiff resided in California.

[23] The plaintiff submits that because his sister in Thunder Bay signed as an “indemnitor” of the bail bond agreement of September 2015, the contact was made in Ontario. I disagree. The contract in issue is between the plaintiff and the defendant. It was made in California.

[24] The plaintiff submits that the defendant should have reasonably foreseen that damages arising from the alleged torts and breach of contract would have been suffered in Ontario and on that basis, this court should accept jurisdiction.

[25] I do not accept this submission. Presence of the plaintiff in the jurisdiction in issue is not one of the presumptive factors, para. 86, Van Breda.

Absent other considerations, the presence of the plaintiff in this jurisdiction will not create a presumptive relationship between the forum and the subject matter of the litigation or the defendant.

[26] There is, moreover, no support in either the pleadings or in the plaintiff’s affidavit evidence to conclude that the defendant would have reasonably foreseen that damages from the alleged torts or breach of contract would be suffered by the plaintiff in Ontario. As the plaintiff formally pleads in his statement of claim and deposes in his affidavit, at the time of the alleged incident he lived and worked in San Francisco. The flight which he booked for his niece’s wedding was scheduled to leave San Francisco on December 27, 2015 and return to San Francisco on January 5, 2016. The plaintiff continued to live in San Francisco until he moved to Thunder Bay in August 2016.

[27] Rule 17.02(1)(h), which permitted a party to be served outside Ontario, without a court order, for “damage sustained in Ontario” was repealed after the decision in Van Breda. Moreover, as observed in Van Breda, Rule 17.02 is purely procedural in nature and does not by itself establish jurisdiction in a case.

[28] The plaintiff has failed to establish that there is a real and substantial connection to Ontario. The presumptive factors enumerated in Van Breda indicate that the real and substantial connection in this case is with California. The failure of the plaintiff to satisfy the burden that the real and substantial connection is with Ontario requires that the defendant’s motion be granted and that this action be dismissed for want of jurisdiction.

Costs

[29] If the parties are unable to agree upon costs, the defendant shall deliver written submissions and a Bill of Costs within 20 days. The plaintiff shall deliver written submissions within 20 days after service of the defendant’s submissions and Bill of Costs. The written submissions shall not exceed five double spaced pages, exclusive of the Bill of Costs. If the defendant fails to deliver its submissions and Bill of Costs within 20 days, the issue of costs shall be deemed to be settled.

The Honourable Justice D. C. Shaw Released: April 24, 2017