Court File and Parties

Court File No.: 16-69907 Date: 2017-06-28 Ontario Superior Court of Justice

Between: Richard Thain, Plaintiff – and – Pattison Outdoor Advertising LP and City of Winnipeg o/a Winnipeg Transit, Defendants

Counsel: Daniel Mayo, for the Plaintiff Darryl Ferguson, for the Defendant City of Winnipeg o/a Winnipeg Transit Andrew J. McCreary, for the Defendant Pattison Outdoor Advertising LP

Heard: June 15, 2017

Reasons for Decision

Beaudoin J.

[1] The Defendant, the City of Winnipeg o/a Winnipeg Transit (“Winnipeg Transit”), brings this motion for:

1. an order setting aside service of the Statement of Claim on Winnipeg Transit on the ground that service outside of Ontario is not authorized by the Rules;
2. an order dismissing for staying the action on the ground that the Ontario Superior Court of justice lacks jurisdiction over the subject matter of the action;
3. in the alternative, an order staying the action on the ground forum non-conveniens.

[2] The Defendant, Pattison Outdoor Advertising LP (“Pattison”), supports the motion.

[3] After argument of the motion, I granted the relief sought by Winnipeg Transit and made an award of costs as agreed to by the parties. I indicated that I would provide these further written reasons.

The Nature of the Claims

[4] The Plaintiff resides in Ontario and his claims arise from advertisements that he wished to run on Winnipeg Transit buses in the fall of 2014. The action is primarily about the Plaintiff’s claims that his Charter rights of freedom of expression were breached by Pattison’s refusal to place certain ads on buses that followed routes in the proximity of the Canadian Museum for Human Rights, located in downtown Winnipeg. To do so, the Plaintiff entered into contracts in Ontario with Pattison. There is no contractual relationship between the Plaintiff and Winnipeg Transit.

[5] The proposed ads contained variations of the following message:

The public funding of religious schools in Ontario and Alberta is an international human rights embarrassment, a financial disaster and moral disgrace.

Equality. Inclusion. Dignity. Respect

GOOGLE CIVIL RIGHTS IN PUBLIC EDUCATION; ONE SCHOOL SYSTEM.

Background

[6] The City of Winnipeg is the capital in the province of Manitoba and it has no presence in the Province of Ontario. Winnipeg Transit operates as a public bus service within the boundaries of the City of Winnipeg in it has no presence in the province of Ontario. The advertisements the Plaintiff wished to place on the Winnipeg Transit buses would run on bus routes entirely within the City of Winnipeg.

[7] Winnipeg Transit contracted out the provision of public transit bus advertising to the Winnipeg office of Pattison. In return for the payment of a set fee, Pattison was granted a five-year contract whereby Pattison was granted the exclusive right to sell and place advertising materials on Winnipeg Transit buses. Any advertising was to be guided by the Canadian Code of Advertising Standards.

[8] The pricing of any such ads was determined by Pattison, and Pattison received all revenue generated from such ads. The contract between Pattison and Winnipeg Transit is governed by the laws of Manitoba. It contains no fiduciary obligations on the part of Pattison in favour of Winnipeg Transit and it contains no duty to account to Winnipeg Transit.

[9] Winnipeg Transit states that there is nothing in the contractual relationship that gives rise to an agent-principal relationship. The Plaintiff admits that he had no dealings whatsoever with Winnipeg transit concerning his proposed advertising campaign.

[10] In his affidavit in support of the motion, Morley Calahan, the Promotions and Contracts Supervisor, Winnipeg Transit, states that the City made no determination with respect to the advertising in issue. That evidence is not challenged. In fact, the City permitted the Plaintiff to place ads that were very similar in content on certain Winnipeg transit bus shelters on bus routes near the Canadian Museum of Human Rights.

[11] Pattison ultimately decided against placing the advertising on Winnipeg transit buses and fully refunded all monies that the Plaintiff paid to Pattison. In this action, the Plaintiff has sued Pattison for breach of contract and alleges, as against both Defendants, that they have breached his Charter rights of freedom of expression.

[12] It is apparent that the City of Winnipeg is added as a defendant since the Plaintiff cannot assert a Charter claim against Pattison as it is a private entity. To overcome that difficulty, the Plaintiff has made a bald conclusion of law that Pattison is an agent of Winnipeg without any factual foundation.

[13] In that regard, the pleading is fundamentally flawed. Whether a relationship is one of agent and principal must be factually pled and proven by the party alleging such a relationship exists. It is not sufficient to plead agency is a principle of law without pleading facts that give rise to such agency.

[14] The only relationship that exists between Winnipeg and Pattison is contractual and arises out of a contract governed by the laws of Manitoba.

The Law

[15] While Rule 17.02 of the Rules of Civil Procedure allows for service of a claim outside of Ontario without leave in limited circumstances, none of the subsections of Rule 17.02 apply. It is important to note that it is not the contract between the Plaintiff and Pattison that is in issue. It is the contract between Pattison and Winnipeg that needs to be considered such as to give rise to a principal – agent relationship. Accordingly, rule 17.02(f) has no application.

[16] Goldhar v. Haaretz.com, 2015 ONSC 1128 describes the test the Court needs to apply to determine whether Ontario should assume jurisdiction over a foreign defendant at para 17:

17 The Supreme Court of Canada’s decision in Club Resorts Ltd. v. Van Breda governs whether a court in Ontario should assume jurisdiction over a foreign defendant. The two main issues in making this determination are as follows:

1. Does the court in Ontario have jurisdiction simpliciter over the defendant?

   This question turns on the following two-part test:

   (A) Do any one of the four following presumptive connecting factors between the subject-matter of the litigation and the Ontario forum exist?

   • Is the defendant domiciled or resident in Ontario?
   • Does the defendant carry on business in Ontario?
   • Was a tort committed in Ontario?
   • Was a contract connected with the dispute made in Ontario?

   (B) If a presumptive connecting factor exists, then has the defendant rebutted the presumption by showing that the presumptive connecting factor does not point to any real relationship between the subject-matter of the litigation and the forum or points only to a weak relationship between them?

2. If a court in Ontario has jurisdiction simpliciter over the defendant, then should the court nevertheless exercise its authority under section 106 of the CJA to stay the action “on such terms as are considered just” if it determines that another jurisdiction is a more appropriate forum for this action? The determination of forum conveniens is a matter of discretion.

[17] Winnipeg Transit is not domiciled or resident in Ontario. It does not carry on business in Ontario. There is no evidence of the tort being committed by Winnipeg Transit in Ontario. There is no contract between the Plaintiff and Winnipeg Transit.

[18] While the Plaintiff alleges that he has suffered damages in Ontario, The Supreme Court rejected a presumption of a connecting based on place of damage in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572 finding at paragraph 89 that this would risk “sweeping into that jurisdiction claims that have only a limited relationship with the forum”.

[19] The Plaintiff seeks to rely on the contract he had with Pattison as a connecting factor to Ontario. It is only through the pleading of an agent-principal relationship with the City of Winnipeg and Pattison that the Plaintiff could theoretically bring the City of Winnipeg into that connecting factor. However, as noted, the mere pleading of a legal concept, in the absence of any factual foundation, is not sufficient.

[20] An agent-principal relationship can only be established by consent of the principal and agent, whether by words or conduct. Acts of the agent are performed solely for the benefit of the principal and the agent owes a duty to account to the principal. On the evidence before me, none of these indices exist in the contract between Winnipeg Transit and Pattison. Pattison paid the City a set fee in return for the exclusive right to sell advertising space on Winnipeg Transit buses. The profits earned on those ads are Pattison’s alone. In selling advertising space on Winnipeg transit buses, Pattison is acting in its own business interests, and not the City’s. All of the evidence surrounding the formation of that contract is located in Winnipeg.

[21] As such, the Plaintiff’s claim as against Winnipeg fails to satisfy any of the presumptive connection factors for the interior Superior Court of Justice to assume jurisdiction simpliciter.

[22] Even if it could be said that the Plaintiff could establish a presumptive connecting factor, Winnipeg Transit has met the second branch of the test in rebutting the presumption by showing that the presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and Ontario, or points only to a weak relationship between them.

[23] The action concerns a proposed advertising campaign by the Plaintiff which he wished to run on public Winnipeg Transit buses near the Museum of Human Rights in Winnipeg Manitoba. The Plaintiff chose that forum to place ads about the funding of religious schools in Ontario and Alberta. Any relationship between this action and the Ontario Superior Court of Justice in Ottawa is nonexistent.

[24] Moreover, even if jurisdiction simpliciter could be found the action ought to be stayed based on forum non-conveniens. The convenient form is the one that is the appropriate one to decide the dispute; that has the closest connection to the parties. [1] If there is a natural form in which the dispute arose and to which it relates, then that is a forum with which the action has the most real and substantial connection.

[25] In Muscutt v. Courcelles (2002) , 60 O.R. (3d) 20 (C.A), the Ontario Court of Appeal [2] has listed the factors to be considered in determining the appropriate forum:

i) the residence of the parties and the witnesses; ii) location of key evidence; iii) the place of the contract was negotiated and executed; iv) the existence of other proceedings; v) the applicable law; vi) whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage; vii) the interests of justice; viii) geographical factors suggesting a natural forum.

[26] These factors favour Manitoba as the appropriate natural forum. Pattison does not object to Manitoba as the appropriate forum to this action.

[27] The interests of justice overwhelmingly favour Manitoba as the appropriate and most closely connected jurisdiction to the subject matter of this litigation. The Plaintiff chose the City of Winnipeg. His claim that Winnipeg Transit breached his freedom of expression Charter rights is wholly dependent on a finding of an alleged agent-principal relationship between the City of Winnipeg and Pattison which in turn can only possibly arise out of a contract between the City of Winnipeg and Pattison. That contract was entered into in Manitoba, by employees of the city of Winnipeg and employees of the Winnipeg office of Pattison and is governed by the laws of Manitoba. Moreover, the City of Winnipeg allowed the Plaintiff to place similar ads in bus shelters in various locations in the City of Winnipeg.

[28] An analysis of Charter rights is contextual as the Supreme Court of Canada held in Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, [2009] 2 S.C.R. 295, 2009 SCC 31 at para. 78:

78 The fact that the limits are overbroad in the instant case does not mean that the government cannot limit speech in bus advertisements. It is clear from this Court’s s. 1 jurisprudence on freedom of expression that location matters, as does the audience. Thus, a limit which is not justified in one place may be justified in another. And the likelihood of children being present matters, as does the audience’s ability to choose whether to be in the place…..

[29] Counsel have referred me to a number of Charter freedom of expression in advertising cases, namely; Greater Vancouver Transportation Authority; American Freedom Defence Initiative v Edmonton (City), 2016 ABQB 555; Canadian Centre for Bio-Ethical Reform v City of Peterborough, 2016 ONSC 1972; The Canadian Centre for Bio-Ethical Reform v. South Coast British Columbia Transportation Authority, 2016 BCSC 1802 and Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2016 ABQB 734. In every case, those matters were decided in the province and in the location where the alleged breach took place.

[30] This action is stayed as the reasonableness of limits on the Plaintiff’s freedom of expression is best determined in Manitoba.

Mr. Justice Robert N. Beaudoin

Released: June 28, 2017

Footnotes

[1] See Amchen Products Inc. v. British Columbia [Workers Compensation Board], , [1993] 1 S.C.R. 897 [2] At para. 14