WCL Capital Group Inc. v. Google LLC; Amex Bank of Canada, Non-Party

[Indexed as: WCL Capital Group Inc. v. Google LLC]

Ontario Reports

Ontario Superior Court of Justice

Spies J.

February 11, 2019

144 O.R. (3d) 254 | 2019 ONSC 947

Case Summary

Civil procedure — Parties — Adding parties — Plaintiff disputing charges levied by defendant which plaintiff charged to its Amex credit card — Amex refusing to reverse charges — Plaintiff suing defendant and subsequently moving to add Amex as co-defendant — Motion dismissed — Claim against Amex premature as plaintiff did not have [page255] reasonable cause of action against Amex unless and until it proved its claim against defendant.

Conflict of laws — Choice of forum — Plaintiff disputing charges levied for advertising services by defendant — Plaintiff suing defendant in Ontario for damages for negligent misrepresentation at common law and misleading representation under s. 52 of Competition Act — Contract between parties clearly stating that all claims arising out of or related to agreement were to be litigated exclusively in California — Forum selection clause valid and enforceable — Plaintiff not showing strong cause as to why court should not enforce forum selection clause — Forum selection clause not unconscionable — Competition Act, R.S.C. 1985, c. C-34, s. 52.

The plaintiff was an Ontario corporation in the business of private mortgage lending. It decided to advertise with an online advertising service provided by the defendant, a corporation incorporated in Delaware and headquartered in California. The defendant's terms of service contained a choice of forum clause which provided that all claims arising out of or relating to the agreement were to be litigated exclusively in California. The plaintiff clicked on an online indicator confirming that it accepted those terms of service. The plaintiff disputed certain charges levied by the defendant that the plaintiff had charged to its Amex credit card. It asked Amex to reverse the disputed charges. Amex initially agreed to temporarily do so in part, but after receiving submissions by the defendant asserting that the charges were valid, reapplied the reversed charges to the plaintiff's card. The plaintiff brought an action against the defendant in Ontario for damages for common law negligent misrepresentation and misleading representation under s. 52 of the Competition Act. The defendant brought a motion for an order dismissing or permanently staying the proceeding on the basis of its forum selection clause. The plaintiff then brought a cross-motion to amend its statement of claim to add a new claim of negligence against the defendant arising from the representations made by the defendant to Amex and to add Amex as a defendant. Amex brought a cross-motion to stay the action against it on the basis of an arbitration clause in its cardholder agreement in the event that it was made a party.

Held, the defendant's motion should be granted; the plaintiff's motion should be granted in part.

The plaintiff's motion to add Amex as a defendant was dismissed. The claim against Amex was premature as the plaintiff did not have a reasonable cause of action against Amex unless and until it had proved its claim against the defendant. Allowing the plaintiff to proceed against both Amex and the defendant together would not promote the convenient administration of justice.

The plaintiff should be permitted to amend its claim against the defendant by pleading that the defendant did not act in good faith towards the plaintiff because it provided deceptive information to Amex during Amex's investigation. However, that ruling was moot in light of the fact that the plaintiff's action against the defendant should be stayed on the basis of the forum selection clause in the terms of service. The forum selection clause was valid and enforceable. The fact that the claim involved the Competition Act did not necessarily oust the forum selection clause. The plaintiff failed to show strong cause as to why the court should not enforce the forum selection clause. The classic "strong cause test" applicable in the commercial context applied, despite the fact that the terms of service were a contract of adhesion, as the plaintiff was a sophisticated commercial entity. Even gross inequality of bargaining power will not be sufficient on its own to show strong cause. Forcing the plaintiff to sue the defendant in California would not result in [page256] a multiplicity of proceedings, nor was there a risk of inconsistent results. The plaintiff's claim under the Competition Act did not raise public policy concerns for the Canadian economy. Finally, there was no evidence that the plaintiff could not proceed in California without great cost and inconvenience. Even if the modified "strong cause test" applicable in the consumer context applied, the plaintiff had failed to meet that test. The forum selection clause was not unconscionable.

Although the issue was moot, had Amex been added as a defendant, the action against Amex would be stayed on the basis of the arbitration clause in the cardholder agreement.

Douez v. Facebook, Inc., [2017] 1 S.C.R. 751, [2017] S.C.J. No. 33, 2017 SCC 33, [2017] 7 W.W.R. 637, 1 C.P.C. (8th) 213, 3 CPC (8th) 1, 411 D.L.R. (4th) 434, 97 B.C.L.R. (5th) 1, 71 B.L.R. (5th) 1, 2017EXP-1860, EYB 2017-281431, 279 A.C.W.S. (3d) 522; Pryschlack v. Urbancic, 1975 CarswellOnt 892 (H.C.J.); Samuel v. Klein (1976), 1976 CanLII 565 (ON SC), 14 O.R. (2d) 389, [1976] O.J. No. 2327, 3 C.P.C. 21 (H.C.J.); Z.I. Pompey Industrie v. ECU-Line N.V., [2003] 1 S.C.R. 450, [2003] S.C.J. No. 23, 2003 SCC 27, 224 D.L.R. (4th) 577, J.E. 2003-892, 30 C.P.C. (5th) 1, 121 A.C.W.S. (3d) 793, apld

Momentous.ca Corp. v. Canadian American Assn. of Professional Baseball Ltd., [2012] 1 S.C.R. 359, [2012] S.C.J. No. 9, 2012 SCC 9, 290 O.A.C. 202, 428 N.R. 141, EYB 2012-203609, 2012EXP-1107, J.E. 2012-605, 342 D.L.R. (4th) 1, 15 C.P.C. (7th) 227, 211 A.C.W.S. (3d) 850, affg (2010), 103 O.R. (3d) 467, [2010] O.J. No. 4595, 2010 ONCA 722, 270 O.A.C. 36, 325 D.L.R. (4th) 685, 196 A.C.W.S. (3d) 73, consd

Superior Fine Papers Inc. v. Newalta Corp., [2017] O.J. No. 5654, 2017 ONSC 6589 (S.C.J.), distd

Other cases referred to

1588444 Ontario Ltd. (c.o.b. Alfredo's) v. State Farm Fire and Casualty Co. (2017), 135 O.R. (3d) 681, [2017] O.J. No. 241, 2017 ONCA 42, 64 C.C.L.I. (5th) 1, 409 D.L.R. (4th) 75, 274 A.C.W.S. (3d) 745; 2Source Manufacturing Inc. v. United Technologies Corp., [2017] O.J. No. 4215, 2017 ONSC 4409, 74 B.L.R. (5th) 158, 282 A.C.W.S. (3d) 750 (S.C.J.); Ahmed v. Rowe, [2017] O.J. No. 1824, 2017 ONSC 2289, 47 C.B.R. (6th) 130, 278 A.C.W.S. (3d) 659 (S.C.J.); Aldo Group Inc. v. Moneris Solutions Corp. (2013), 118 O.R. (3d) 81, [2013] O.J. No. 5446, 2013 ONCA 725, 313 O.A.C. 122, 370 D.L.R. (4th) 491, 22 B.L.R. (5th) 44, 51 C.P.C. (7th) 221, 235 A.C.W.S. (3d) 370; Blind Spot Holdings Ltd. v. Decast Holdings Inc., [2014] O.J. No. 1300, 2014 ONSC 1760, 25 B.L.R. (5th) 122, 239 A.C.W.S. (3d) 20 (S.C.J.); Crown Resources Corp. S.A. v. National Iranian Oil Co., 2006 CanLII 28334 (ON CA), [2006] O.J. No. 3345, 273 D.L.R. (4th) 65 (C.A.); Dalimpex Ltd. v. Janicki (2003), 2003 CanLII 34234 (ON CA), 64 O.R. (3d) 737, [2003] O.J. No. 2094, 228 D.L.R. (4th) 179, 172 O.A.C. 312, 35 B.L.R. (3d) 41, 35 C.P.C. (5th) 55, 123 A.C.W.S. (3d) 217 (C.A.); ECS Educational Consulting Services Canada Ltd. v. Al Nahyan, [2000] O.J. No. 4416, 3 C.P.C. (5th) 76, 103 A.C.W.S. (3d) 299 (C.A.), affg [2000] O.J. No. 211, 44 C.P.C. (4th) 111, 94 A.C.W.S. (3d) 471 (S.C.J.); Expedition Helicopters Inc. v. Honeywell Inc. (2010), 100 O.R. (3d) 241, [2010] O.J. No. 1998, 2010 ONCA 351, 70 B.L.R. (4th) 60, 262 O.A.C. 195, 319 D.L.R. (4th) 316, 87 C.P.C. (6th) 210, 189 A.C.W.S. (3d) 355; Haas v. Gunasekaram, [2016] O.J. No. 5286, 2016 ONCA 744, 62 B.L.R. (5th) 1, 272 A.C.W.S. (3d) 21; Heller v. Uber Technologies Inc., [2019] O.J. No. 1, 2019 ONCA 1; Plante v. Industrial Alliance Life Insurance Co. (2003), 2003 CanLII 64295 (ON SC), 66 O.R. (3d) 74, [2003] O.J. No. 3034, [2003] O.T.C. 715, 39 C.P.C. (5th) 323, 124 A.C.W.S. (3d) 661 (Master); Shaw Satellite GP v. Pieckenhagen, [2012] O.J. No. 1270, 2012 ONCA 192, 347 D.L.R. (4th) 452, 212 A.C.W.S. (3d) 625 [Leave to appeal to S.C.C. refused [2012] S.C.C.A. No. 240, 2012 CanLII 66233]; Steel Tree Structures Ltd. v. Gemco Solar Inc., [2016] O.J. No. 655, 2016 ONSC 955, 345 O.A.C. 201, 87 C.P.C. (7th) 422, 59 C.L.R. (4th) 291, 263 A.C.W.S. (3d) 58 (Div. Ct.); [page257] Titus v. William F. Cooke Enterprises Inc., [2007] O.J. No. 3148, 2007 ONCA 573, 284 D.L.R. (4th) 734, 228 O.A.C. 232, 61 C.C.E.L. (3d) 202, [2007] CLLC Â210-036, 160 A.C.W.S. (3d) 273

Statutes referred to

Arbitration Act, 1991, S.O. 1991, c. 17, s. 7, (2), (5), (a)

Bank Act, S.C. 1991, c. 46, Sch. II [as am.]

Competition Act, R.S.C. 1985, c. C-34, s. 52 [as am.]

Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 106, 138

Employment Standards Act, 2000, S.O. 2000, c. 41

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 5.04(2), 17.06(1)(b), 26.01

MOTION by the defendant to dismiss or permanently stay an action; Motion by the plaintiff for leave to amend a statement of claim.

Jonathan Burshtein, for plaintiff.

James Bunting and Chenyang Li, for defendant.

Joshua J. Siegel, for non-party.

SPIES J.: —

Overview

[1] This action, initiated by WCL Capital Group Inc. ("WCL"), revolves around certain advertising fees levied by the defendant, Google LLC ("Google"), which WCL charged to its Amex Bank of Canada ("Amex") credit card. There are three motions before me:

(a) Google has brought a motion to permanently stay or dismiss WCL's action on the basis that its commercial advertising agreement with WCL contains a forum selection clause favouring California.

(b) WCL has brought a cross-motion for leave to amend its statement of claim to add Amex as a defendant to this action and to amend its claim against Google.

(c) Amex has brought a cross-motion to permanently stay the WCL action against Amex, in the event that Amex is added as a party to this proceeding.

Background Facts

[2] WCL is an Ontario corporation in the business of private mortgage lending. WCL underwrites and manages a portfolio of hundreds of short-term mortgages funded by a group of investors with a pool of funds of $388 million as of January 2015. It continues to operate using funds from a group of investors. [page258]

[3] Google is a corporation incorporated in Delaware and headquartered in California. Its parent company reported revenues of almost $111 million in 2017. Amex is a Sch. II bank under the Bank Act, S.C. 1991, c. 46.

[4] In an effort to promote its online business, WCL decided to advertise with Google's "AdWords" service. AdWords is an online advertising service where advertisers pay Google to display brief advertisements to web users. Google strategically places and displays clients' advertisements online, and charges its AdWords' clients each time a user clicks on one of its ads.

[5] At the material time WCL had a charge card from Amex in the name of its principal.

[6] WCL registered for Google's AdWords service in February 2017. When doing so, WCL was asked to accept Google's Advertising Program Terms of Service ("terms of service"). Section 12 of the terms of service (the "forum selection clause") reads as follows:

ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THESE TERMS OR THE PROGRAMS WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING CALIFORNIA'S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, USA: THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS[.]

(Capitalization in original)

[7] WCL clicked on an online indicator confirming that it accepted these terms of service.

[8] WCL disputes certain charges levied by Google from May to July 2017 in the amount of $193,340.32 (the "disputed charges") that WCL charged to its Amex charge card. As I understand the claim, WCL argues that in that period AdWords displayed its advertisement to too many people and the wrong kind of people and that too many people responded to its advertisement by clicking on it by mistake. WCL is to pay for this advertising based on the number of people who click on its advertisement. In particular, WCL complains that Google's representation about "simplified audience targeting" was not as it was represented to be.

[9] When Google did not explain the disputed charges, WCL contacted Amex, requesting that Amex reverse the disputed charges.

[10] The relationship between WCL and Amex is governed by a cardholder agreement, which contains the following arbitration clause:

Any Claim will only be resolved by arbitration pursuant to this Arbitration Provision and the National Arbitration Rules[.] [page259]

[11] Following WCL's complaint, in August 2017 Amex conducted an investigation of the disputed charges. Initially, Amex agreed to temporarily credit WCL in the amount of $170,369. However, after receiving submissions by Google asserting that the charges were valid, Amex reapplied the reversed charges to WCL's Amex card in November 2017.

[12] WCL alleges that Google's submissions were non-responsive and mischaracterized the dispute. On November 27, 2017, WCL advised Amex of the alleged deficiencies of Google's documentation. However, on December 14, 2017, Amex advised WCL that it must deal directly with Google whenever there is a contractual dispute with Google.

Procedural History

[13] On October 23, 2017, WCL issued a statement of claim against Google. In the original statement of claim, WCL alleged that Google overcharged WCL due to, inter alia, (1) a negligent misrepresentation in common law; and (2) a misleading representation under s. 52 of the Competition Act, R.S.C. 1985, c. C-34. WCL sought damages from Google in an amount equivalent to the disputed charges together with unspecified damages for the "costs of any investigation in connection with this action".

[14] In response, Google moved for an order dismissing or permanently staying the proceeding on the basis of the forum selection clause. In late March 2018, one week before the original stay motion was to be argued, WCL notified Google that it would be seeking leave to amend its statement of claim to add a new claim of negligence against Google and to add Amex as a co-defendant. WCL now wishes to seek damages as against Amex based on allegations that Amex failed to investigate and reverse the disputed charges.

Issues

[15] The issues to be determined on the motion and cross-motions are as follows:

(a) Should WCL be granted leave to amend its statement of claim to add Amex as a party defendant?

(b) Should WCL be permitted to amend its claim as against Google?

(c) Should this court stay WCL's action against Google on the basis that the terms of service contains a forum selection clause favouring California? [page260]

(d) If Amex is an added party, should this court stay the action against Amex on the basis that the Amex and WCL's cardholder agreement contains an arbitration clause?

Analysis

Issue 1: Should WCL be granted leave to amend its statement of claim to add Amex as a party defendant?

[16] All three parties agree that in determining whether to grant leave to amend, rules 5.04(2) and 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, apply:

5.04(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[17] The test for adding a party under rule 5.04(2) is set out in Steel Tree Structures Ltd. v. Gemco Solar Inc., [2016] O.J. No. 655, 2016 ONSC 955, 345 O.A.C. 201 (Div. Ct.), at para. 23, quoting Plante v. Industrial Alliance Life Insurance Co. (2003), 2003 CanLII 64295 (ON SC), 66 O.R. (3d) 74, [2003] O.J. No. 3034 (Master). To succeed under rule 5.04(2):

(a) The proposed amendment must meet all of the tests under rule 26.01 [namely the amendment must, inter alia, disclose a reasonable cause of action, and the other party must not suffer non-compensable prejudice: 1588444 Ontario Ltd. (c.o.b. Alfredo's) v. State Farm Fire and Casualty Co. (2017), 135 O.R. (3d) 681, [2017] O.J. No. 241, 2017 ONCA 42, para. 25;

(b) Joinder should be appropriate under rule 5.02(2) or required under rule 5.03. The addition of the parties should arise out of the same transaction or occurrence . . . should have a question of law or fact in common . . . or the addition of the party should promote the convenient administration of justice . . .;

(c) Joinder should not be inappropriate under rule 5.03(6) or 5.05. The addition of a party should not unduly delay or complicate a hearing or cause undue prejudice to the other party. . .;

(d) Addition of a party will not be permitted if it is shown to be an abuse of process. Abuse of process will exist where the addition of a party is for an improper purpose such as solely to obtain discovery from them, to put unfair pressure on the other side to settle, to harass the other party or for purely tactical reasons.

(Citations omitted) [page261]

Should WCL be permitted to add Amex as a defendant?

[18] WCL submits that the test for joinder under rule 5.04(2) has been fulfilled for the following reasons:

(a) adding Amex would not result in injustice that is not compensable in costs; see Steel Tree, at para. 21. WCL argues that Amex bears the onus of demonstrating non-compensable prejudice. In this case, WCL submits that its proposed amendment has been sought within the limitation period and in light of facts discovered after the issuance of WCL's initial statement of claim;

(b) adding Amex is necessary because WCL's respective claims against Amex and Google share questions of fact in common. Failing to permit joinder would result in separate proceedings and risk contrary findings of fact. This result is to be avoided under s. 138 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which states that "[a]s far as possible, multiplicity of legal proceedings shall be avoided";

(c) adding Amex would not unduly delay or complicate a hearing or cause undue prejudice, as Google has not yet delivered a defence; and

(d) adding Amex does not constitute an abuse of process.

[19] Amex submits that leave to amend WCL's statement of claim to add Amex as a co-defendant should be denied. Amex submits that

(a) WCL has no cause of action against Amex because there are no damages that are attributable to Amex;

(b) granting leave to amend would unduly complicate the proceeding by asking this court to rule simultaneously on a contractual claim and negligence claim and would cause Amex undue prejudice and expense by needlessly drawing Amex into a dispute between WCL and Google while serving no useful or proper purpose; and

(c) finally, both Amex and Google submit that the timing of this motion discloses WCL's intention to make a tactical attempt to defeat the forum selection clause by adding a co-defendant who is not subject to the clause.

Does WCL have a reasonable cause of action against Amex and would Amex suffer non-compensable prejudice? [page262]

[20] I will deal with the issue of whether or not WCL has a reasonable cause of action against Amex and whether Amex would suffer non-compensable prejudice together as in my view the issues overlap. In the proposed amended statement of claim WCL alleges against Amex negligence, misrepresentation and breach of the duty of good faith that it owed to WCL, which is a duty that exists independent of Google. WCL alleges that any damages suffered by WCL can be apportioned between the two defendants.

[21] In determining whether no reasonable cause of action exists, the facts pleaded in the statement of claim must be accepted as proven. It was not argued that Amex did not have a duty of good faith to WCL as a matter of law. Accordingly, if we assume that (1) Amex breached its duty of good faith to WCL in the manner by which it conducted the investigation; and (2) the disputed charges from Google were wrongfully levied against WCL, in my view it is conceivable that Amex could be liable to WCL for some damages. Arguably, WCL should be put in the position as though Amex had conducted its investigations with reasonable care in which case it is conceivable that the disputed charges against WCL should have been permanently reversed. This may constitute damage that grounds a reasonable cause of action against Amex.

[22] WCL submits that the damages sought against Amex are not entirely duplicative. It notes that its claims allege that Amex and Google each breached their contractual duty of good faith to WCL. However, in my view these damages would only be awarded against Amex if the disputed charges by Google were not valid. If WCL fails to establish its contractual claim against Google, it will have suffered no damages. The damages claimed by WCL are duplicative and dependent upon its success against Google. I see no basis upon which Amex could be liable in damages if Google was justified in charging WCL with the "disputed charges".

[23] In addition, WCL states that it is open to a court to find both parties jointly and severally liable for a damages award to WCL. That is the more difficult question. If WCL is successful against Google, Amex submits that Google will "presumably" cover WCL's losses. There may be issues however with enforcement against Google and so the question in my view is whether or not WCL has a case for joint and several liability against both Google and Amex.

[24] In this regard, Amex relies on Samuel v. Klein (1976), 1976 CanLII 565 (ON SC), 14 O.R. (2d) 389, [1976] O.J. No. 2327 (H.C.J.) ("Klein"). Amex submits that despite the interrelated facts of the case at hand, WCL's legal issues against Amex are entirely separate from the [page263] legal issues against Google. In reply, WCL submits that Klein is distinguishable. Unlike Klein, in the present case, WCL submits that it has raised independent causes of action against Amex and Google; most particularly, WCL alleges that Google and Amex respectively breached their duties of good faith owed to WCL and that WCL has suffered damages as a result of both parties' conduct. WCL argues that where two parties caused WCL to suffer damages, WCL is within its rights to proceed against both parties and allow the courts to apportion liability.

[25] Klein was a case where the plaintiff attempted to join a claim for negligence against its solicitor, who acted on a series of real estate transactions, to the claim against other parties arising out of the actions taken by their solicitor on those transactions. It stands for the proposition that in these circumstances, before the plaintiff can maintain a claim against the defendant solicitor, the plaintiff must establish that he suffered damages as a result of the actions of the other defendants; Klein,at para. 10, citing Pryshlack v. Urbancic, 1975 CarswellOnt 892 (H.C.J.), at para. 12; see, also, Ahmed v. Rowe, [2017] O.J. No. 1824, 2017 ONSC 2289 (S.C.J.), at para. 20.

[26] At para. 11 of Klein, Estey CJHC observed that:

The position of the defendant solicitors would be very difficult indeed if they were placed in a spectatorial position throughout the bulk of the trial, that is, until the disposition of the principal issues herein between the plaintiff and the other three defendants. For one thing, their involvement would be long and expensive and in the end might have been completely without purpose should the plaintiff succeed against the other three defendants and achieve his primary objective[.]

[27] In my view, the principle set out in Pryshlack,as applied in Klein,and the observations of Estey CJHC apply with equal force to the case at bar. Unless WCL can prove its claim against Google, it has no claim for damages against Amex. Although WCL argues that the claim against Amex arises out of the same series of facts as its claim against Google, that is not accurate. The claim against Google focuses on whether or not the disputed charges ought to have been charged to WCL and therefore focuses on the AdWords' service provided by Google, whereas the claim against Amex focuses on its investigation into the disputed charges. In my view, to force Amex to defend this claim now in the same proceeding as Google, would cause Amex (and WCL) unnecessary expense. While that may be compensable in costs, it is an additional factor in my view weighing in favour of requiring WCL to proceed against Google first and then only proceeding against Amex in the unlikely event that should be necessary. In my view, allowing WCL to proceed against both Amex and Google together [page264] would not promote the convenient administration of justice if I consider that issue from the perspective of all parties.

[28] I have considered whether or not WCL's action against Amex and Google must be heard together to avoid inconsistent results. In my view, that is not a concern in this case. As already stated, if WCL is not successful as against Google, it has no claim as against Amex. Even if it is successful against Google, should it need to proceed thereafter against Amex, the claim would be determined on whether or not Amex did a proper investigation of the disputed charges in light of a finding that those charges by Google were not proper.

[29] Finally, on its face, any breach of the duty of good faith by Amex would be subject to the parties' arbitration clause as set out in their cardholder agreement. I must consider WCL's submissions on issue 4, namely that this case is one where this court should exercise its discretion to not enforce the clause.

Is WCL's motion to add Amex as a defendant an abuse of process?

[30] As for the question of whether or not WCL's motion represents an abuse of process, while the timing appears tactical, as WCL points out, it didn't have full knowledge of Amex's investigations when it issued its original statement of claim. I am not satisfied that Amex and Google have satisfied me that WCL's conduct rises to the level of an abuse of process.

Conclusion

[31] For these reasons, having found that at this time WCL's claim is premature and that it does not yet have a reasonable cause of action against Amex, I deny WCL's motion to amend its statement of claim to add Amex as a defendant.

Issue 2: Should WCL be permitted to amend its claim as against Google?

[32] As against Google, WCL seeks to add negligence to its claim for negligent misrepresentation as pleaded in paras. 40 --44 of WCL's proposed amended statement of claim. At para. 41(d), it is alleged that Google did not act in good faith towards WCL in part because it provided "deceptive information to Amex" and at para. 41(e) that it "made false, misleading and deceptive representation to Amex during the First Investigation".

[33] Google submits that the proposed amended pleadings disclose no reasonable cause of action against Google on the basis that WCL has no cause of action against Google in what Google [page265] refers to as WCL's "novel negligence claim" because the alleged misrepresentation underlying this claim relate to representations Google made to Amex -- rather than WCL -- during Amex's investigation of the disputed charges. In response, WCL submits that Google's submissions misrepresent WCL's proposed amendment. Contrary to Google's submission, WCL asserts that its amendment does not allege negligent misrepresentation; instead, it alleges that Google breached its duty of good faith to WCL.

[34] Given that Amex would naturally contact Google to investigate the disputed charges, I am not prepared to conclude, at the pleadings stage, that WCL would not have a reasonable cause of action against Google on the basis of negligent misrepresentation by providing misleading representations to Amex during its investigation.

[35] For these reasons, I find that WCL's motion to amend its statement of claim as against Google ought to be allowed. Given, however, I have come to the conclusion that Google's motion for a stay of the action ought to be granted, this ruling becomes moot.

[36] In light of this conclusion I reconsidered whether or not it impacts on my decision as to whether or not WCL's claim against Amex is premature. I find that it does not.

Issue 3: Should this court stay WCL's action against Google on the basis that the parties' advertising agreement contains a forum selection clause favouring California?

[37] The parties are in agreement that the enforceability of the forum selection clause in the terms of service is governed by the two-step test articulated in Douez v. Facebook, Inc., [2017] S.C.R. 751, [2017] S.C.J. No. 33, 2017 SCC 33, at paras. 28-31, and which is as follows:

Enforceability and Applicability: at the first stage, the party relying on the forum selection clause must demonstrate that the clause is "valid, clear and enforceable and that it applies to the cause of action before the court" at para. 28;

Strong Cause: If the clause is found to be valid, at the second step of the test, the onus shifts to the opposing party to show "strong cause" as to why the court should not enforce the forum selection clause andrefuse to stay the action. In particular the court "must consider 'all the circumstances', including the 'convenience of the parties, fairness between the parties and the interests of justice.'" Public policy may also be a relevant factor at this step, at para. 29.

[38] Since the hearing of these motions, the Court of Appeal released Heller v. Uber Technologies Inc., [2019] O.J. No. 1, 2019 ONCA 1, a case where the court found that an arbitration clause was illegal and unconscionable, and thus fell into the exceptions [page266] set out in s. 7(2) of the Arbitration Act, 1991, S.O. 1991, c. 17. As I believed that this decision may have some bearing on my decision, I asked that the parties provide further written submissions as to how this case might apply or not to the case at bar. WCL did not argue that the Uber decision affects the first part of the Douez test but did submit that it is relevant to the second part of the test. This is disputed by Google and Amex. I will address these additional submissions as I review this third issue.

Step 1 -- Enforceability and applicability

[39] WCL conceded in both its factum and in oral submissions that Google's AdWords' terms of service constitutes an enforceable contract and its position did not change in light of the Uber decision. I accept Google's submission that the forum selection clause is enforceable and applicable to the present case. The terms of service were written in plain language and were accepted by WCL. The forum selection clause requires the parties to resolve in California any claims "arising out of or relating to" the agreement.

[40] WCL did not argue that forum selection clause is not applicable because WCL also seeks to claim negligence and negligent misrepresentation against Google. As Google submits, forum selection clauses like this one have been found to apply to non-contractual claims, so long as they relate to a relationship arising from contract. Courts must assess the "essential character" of the dispute to determine whether the forum selection clause applies. As stated in Aldo Group Inc. v. Moneris Solutions Corp. (2013), 118 O.R. (3d) 81, [2013] O.J. No. 5446, 2013 ONCA 725, at para. 44,

. . . where a plaintiff has accepted a forum selection clause, it will not necessarily escape its bargain by pleading causes of action other than in contract or against multiple parties only some of which are subject to the clause. Courts are properly vigilant in ensuring that pleading do not defeat contractual provisions, exclusions or limitations to which the plaintiff has agreed. An important motivating factor in these cases is the convenient administration of justice -- if a plaintiff must proceed elsewhere in respect of some of its claims, allowing it to proceed in Ontario in respect of others wastes judicial resources and violates the principle of comity.

(Emphasis added)

[41] For these reasons, in my view, there could be no dispute that the forum selection clause is valid and enforceable. The issue then is it not applicable for any other reason.

[42] WCL's principal submission is that the forum selection clause is not applicable to WCL's claim because one party (namely, Amex) is not subject to the forum selection clause and that the [page267] claims against Amex and Google must be heard together to avoid inconsistent results. That argument of course fails because I have refused to grant WCL leave to join Amex as a defendant to the action. In the event that decision is in error, however, I will consider the merits of this issue assuming that Amex is a party to this action.

[43] Google's position is that the fact that Amex may be party to the claim need not oust the forum selection clause. Google relies on Momentous.ca Corp. v. Canadian American Assn. of Professional Baseball Ltd. (2010), 103 O.R. (3d) 467, [2010] O.J. No. 4595, 2010 ONCA 722, at para. 53, affd [2012] 1 S.C.R. 359, [2012] S.C.J. No. 9, 2012 SCC 9, where an Ontario action was stayed because of a forum selection clause, despite the fact that the forum selection clause did not apply to all parties to the action. In that case the agreement between the plaintiff and one of the defendants provided, pursuant to a forum selection clause, that their dispute should be determined in North Carolina. In reaching its conclusion, the court relied primarily on the fact that the plaintiff had alleged that the defendants who were not party to the agreement (the "non-parties") an individual and the City of Ottawa, were necessary parties to the same action and that the plaintiff's claims against them and the other defendant had to be dealt with together. For that reason, even though the non-parties were not a party to the agreement containing the choice of forum clause, the court found that the claims against them should be dealt with in North Carolina, not in Ontario, relying on Crown Resources Corp. S.A. v. National Iranian Oil Co., 2006 CanLII 28334 (ON CA), [2006] O.J. No. 3345, 273 D.L.R. (4th) 65 (C.A.): at para. 34.

[44] WCL submitted that there are two reasons why the case at bar is distinguishable from cases like Momentous, where courts have enforced forum selection clauses, despite the fact that one party was not subject to the clause. First, the two defendants (Amex and Google) do not have a close relationship. Second, the present case is unique because there are two conflicting forum selection provisions (one being Amex's arbitration clause). Finally, WCL notes that in Superior Fine Papers Inc. v. Newalta Corp., [2017] O.J. No. 5654, 2017 ONSC 6589 (S.C.J.), the court refused to enforce a forum selection clause where one of the defendants was not subject to the clause, after considering the interests of justice and the comparative expense of litigating in the alternate forum, in that case Alberta: at para. 48.

[45] In my view, WCL's suggestion that Amex and Google are not closely related does not provide a meaningful basis to distinguish cases like Momentous. Indeed, in Momentous, the parties were similarly at arm's length from one another. This is not [page268] a case where the "closely related" doctrine applies. Further, as the court said in Momentous, at paras. 54-55, if WCL had a cause of action against Amex, which in my view it does not at this time, it could assert those claims in a separate action against Amex and continue separately with its action against Google. Fundamentally I do not accept WCL's argument that its claims against Google and Amex must be heard in the same proceeding.

[46] As for WCL's reliance on Superior Fine Papers, in my view that case is distinguishable. Justice LeMay refused to enforce a forum selection clause because if he granted the stay requested by one defendant, the facts underlying that claim would still have to be considered by the Ontario court in determining the claim against the other defendant, with the possibility of inconsistent outcomes. As a result, Justice LeMay found that judicial economy and the interests of justice required the action to be dealt with in Ontario. By contrast, in the case at bar, if the forum selection clause is enforced the facts underlying WCL's claim against Amex would not have to be considered in WCL's claim against Google save for the fundamental issue of whether or not the disputed charges were legitimate, which is the issue Google must defend. Furthermore, even if it necessary for WCL to later pursue a claim against Amex in Ontario, the facts underlying the claim against Google would not be relevant; only the outcome of that claim. There is no concern about possible inconsistent results.

[47] WCL argued that the opening language of para. 44 of Moneris, as set out above, does not rule out the possibility of a case where a plaintiff is found by the court to not be bound by a forum selection clause and notes also that in the same paragraph Moneris emphasizes that courts should promote the convenient administration of justice. WCL submits that almost all individuals known to WCL with knowledge of the dispute are resident in Ontario and that the convenient administration of justice requires that the action be heard in Ontario. However, as is clear from this passage from Moneris, that statement was made in the context of a case where a plaintiff must proceed elsewhere in respect of some of its claims and allowing it to proceed in Ontario in respect of others would waste judicial resources and violate the principle of comity. That is not this case given I have found that WCL does not have a cause of action against Amex at this time.

[48] WCL also argued that the forum selection clause is not applicable to its claim because it alleges Google engaged in deceitful conduct in mischaracterizing the nature of WCL's dispute in order to secure a reversal of the credit which had been applied to WCL's Amex card. I see no reason why this allegation is not part of WCL's claim, caught by the forum selection clause. [page269]

[49] Finally, I accept Google's position citing 2Source [2Source Manufacturing Inc. v. United Technologies Corp., [2017] O.J. No. 4215, 2017 ONSC 4409, 74 B.L.R. (5th) 158 (S.C.J.)],at para. 40, that the fact that the claim involves the Competition Act does not necessarily oust the forum selection clause:

2Source does not avoid the FSC by pleading a statutory cause of action under the Competition Act. The interpretation and application of the Competition Act claim advanced by 2Source would be entirely straight forward for a New York court. There is no suggestion that a New York court would refuse to apply Canadian law and the facts pleaded in support of the Competition Act claim are materially identical to the facts pleaded in support of the other causes of action it advances. The legal elements of the Competition Act claim substantially overlap with the legal elements of several of the other claims. The damages associated with the Competition Act claim are the same general damages 2Source claims in respect of all of its causes of action.

[50] For these reasons I find that the first step is Douez is met; the forum selection clause is valid, clear and enforceable and it applies to WCL's action before this court.

Step 2 -- Strong cause

[51] In Douez, the Supreme Court of Canada set out two formulations of the strong cause test:

(a) Classic "strong cause test", Douez, at paras. 29-31: this test, as set out in Z.I. Pompey Industrie v. ECU-Line N.V.,[2003] 1 S.C.R. 450, [2003] S.C.J. No. 23, 2003 SCC 27, at para. 24("Pompey"), applies in the commercial context. It requires the responding party to affirmatively prove circumstances such as

(i) the plaintiff was induced to enter the contract by fraud or the contract is otherwise unenforceable;

(ii) the plaintiff cannot expect a fair trial in the selected jurisdiction due to circumstances that were not anticipated by the contracting parties;

(iii) the claim or the circumstances that have arisen are outside of what was reasonably contemplated by the parties when they agreed to the clause;

(iv) the selected forum will not accept jurisdiction; or

(v) enforcing the contract would violate clear public policy; see Expedition Helicopters Inc. v. Honeywell Inc. (2010), 2010 ONCA 351, 100 O.R. (3d) 241, [2010] O.J. No. 1998 (C.A.), at para. 24. [page270]

(b) modified "strong cause test": this test, modified by Douez, at para. 38, in the consumer context includes a consideration of all of the factors set out in Pompey, as well as "public policy considerations relating to the gross inequality of bargaining power between the parties and the nature of the rights at stake". I accept that this modified test includes, as submitted by WCL, a consideration of

(i) the interests of justice; and

(ii) the comparative convenience and expense of litigating in the alternate forum.

[52] The first issue then is which test applies? Google submits that the "classic strong cause test" applies and that the onus is on WCL to satisfy that test. By contrast, WCL submits that the "modified strong cause test" applies in both the consumer and commercial context. In reply, Google notes that in 2Source Manufacturing Inc. v. United Technologies Corp., supra, the court held that "[while Douez] established a different framework for consumer contracts, . . . Pompey remains the governing authority on the enforceability of forum selection clauses in the commercial context" (para. 13, footnote 5).

[53] In my view, the classic strong cause test set out in Pompey applies. While this case does not bear all the hallmarks of a sophisticated commercial transaction -- for instance, the contract entered into was a contract of adhesion -- it is still far from the consumer context of an unsophisticated Facebook user as in Douez. WCL is a sophisticated commercial entity engaged in private mortgage financing. It could have advertised elsewhere but chose to do so with Google, knowing the terms of the terms of service.

[54] The issue then is, has WCL met its burden on the classic strong cause test? WCL did not make submissions as to whether the classic strong cause test is satisfied. In my view, it has not satisfied that test. None of the circumstances set out in Pompey (above, (a)-(e)) are found in the present case.

[55] WCL's submissions assume the application of a modified strong cause test. WCL submits that it fulfills the modified test for strong cause because

(a) even if WCL is a sophisticated party, there remains an inequality of bargaining power.

(b) WCL's claim under the Competition Act raises public policy concerns for the Canadian economy and child welfare. [page271]

(c) Related claims should be tried together in the interests of judicial economy and to avoid inconsistent results. Here there are conflicting provisions -- the arbitration clause and forum selection clause -- that would lead to a multiplicity of proceedings. The only way to prevent this is to allow WCL to proceed against both Google and Amex in the Ontario courts.

(d) WCL cannot proceed in California without great cost and inconvenience. Google has not identified the individuals with knowledge of the facts in dispute save to advise that they are primarily located in the United States. All the relevant witnesses known to WCL with knowledge of the subject matter of this dispute are resident in Ontario with the exception of one Amex employee who works for Amex in India.

[56] Google submits that WCL would also fail on the modified strong cause test for the following reasons:

(a) There is no sufficient inequality of bargaining power here, as WCL is a commercial entity.

(b) The interests of justice favour enforcing the forum selection clause to promote international comity, commercial certainty and fundamental fairness. This is a purely commercial dispute; disguising a contractual claim under the Competition Act does not change its nature.

(c) Assumptions that litigation in California would be cost prohibitive are speculative. Google submits that WCL is sufficiently resourced to bring a claim in California. In addition, Google notes that there is no conflict between the arbitration and forum selection provisions, because the parties to each provision are different.

(d) Public policy militates in favour of enforcing the forum selection clause.

[57] The court in Douez made it clear that even gross inequality of bargaining power will not be sufficient on its own to show strong cause: at para. 39. For reasons I have already explained, forcing WCL to pursue Google in California would not result in a multiplicity of proceedings nor is there a risk of inconsistent results. Furthermore, for reasons I will come to, I do not agree that WCL's claim under the Competition Act raises public policy concerns for the Canadian economy and child welfare. Finally, there is no evidence that WCL cannot proceed in California without great cost and inconvenience. In fact, to proceed in Ontario, the parties would be put to the expense of calling expert evidence [page272] on California law. As Nordheimer J. (as he then was) stated in ECS Educational Consulting Canada Ltd. v. Al Nahyan, [2000] O.J. No. 211, 44 C.P.C. (4th) 111 (S.C.J.), at para. 51, affd [2000] O.J. No. 4416, 3 C.P.C. (5th) 76 (C.A.), in this age of the "global economy", it would send the wrong message if our courts permitted Canadian business to resile from their agreements by permitting them to retreat to the courts of this country.

[58] WCL has made additional submissions in light of Uber Technologies and in particular that two elements of that decision are relevant to the present motions and, in particular, the second stage of the test: (a) in determining that the arbitration clause was unconscionable, the Court of Appeal was influenced by the fact that the clause was contained in an online contract of adhesion which was akin to the consumer contact; and (b) the Court of Appeal considered public policy, i.e., the importance of the issue to Ontario, in reinforcing its conclusion that the arbitration clause was invalid.

[59] Google submits that Uber Technologies has little, if any, effect on the disposition of these motions because (i) that decision does not change the law applicable to the strong cause test, and (ii) the facts in Uber Technologies and this case are substantially different. In regard to the legal principles arising from Uber Technologies, Google submits that case concerned the validity of an arbitration clause in a proposed class proceeding brought by Uber drivers who the Court of Appeal accepted (for the purpose of its analysis) were employees of Uber.

[60] I agree that it is clear that the court in Uber Technologies considered whether the arbitration clause was valid. In applying the principles in Douez, that it considered the first stage of the test, not whether a valid arbitration clause should be enforced as submitted by WCL; see paras. 63 to 68. In fact, the court, at para. 67, made it clear that there did not even "appear to be any room for the second step of the analysis in Douez to apply".

[61] As such, if Uber Technologies were to have any application to this case, it would only be in regard to the first stage of the Douez test in considering the validity of the forum selection clause. Uber Technologies has no bearing on whether this court should refuse to enforce a valid forum selection clause under step two of the Douez test.

[62] As I have already stated, WCL accepted both in its factum and orally before this court that Google's forum selection clause is valid. It argued only that it was not applicable in considering the first step in Douez. I agree with the submissions of Google that WCL cannot now change its position and argue that the forum selection clause is invalid at the first stage of the Pompey [page273] test on the ground that it is unconscionable because the decision in Uber Technologies did not change the unconscionability test. In Uber Technologies, the court expressly reaffirmed the precedent from Titus v. William F. Cooke Enterprises Inc., [2007] O.J. No. 3148, 2007 ONCA 573, 284 D.L.R. (4th) 734, at para. 38. Unconscionability was always an argument available to WCL. There was no change in the law to justify adding new pleadings or arguments at this late stage of the hearing of these motions.

[63] Even if I consider WCL's new submissions, I would not find the forum selection clause unconscionable. WCL argues that in determining whether the arbitration clause was unconscionable, the Court of Appeal in Uber gave significant weight to that fact that the arbitration clause was found in a contract of adhesion. At para. 70, the court described the motion judge's error of "proceed[ing] on the basis that the Arbitration Clause is of the type involved in normal commercial contracts where the parties are of relatively equal sophistication and strength" and, at para. 71, "if Uber is correct and their drivers are not employees, then they are very much akin to consumers in terms of their relative bargaining position".

[64] WCL argues that Google's terms of service is not a normal commercial contract which is the outcome of negotiation by two parties. WCL's only choice (if it wished to avail itself of Google's services) was to click "I agree" with the terms presented to it. WCL argues that the nature of Google's terms of service and WCL's lack of bargaining power are relevant to this second stage of the analysis to show why this court should not enforce the forum selection clause because this lack of bargaining power is a feature which distinguishes the present case from other commercial cases involving a forum selection provision. It is a factor which WCL argues, in the context of the other reasons advanced by WCL, supports a dismissal of Google's motion for a stay.

[65] In my view, applying the four elements from Titus, I could not conclude that Google's terms of service is unconscionable. Even if I assume that WCL had no reasonable prospect of negotiating any terms of the terms of service, in my view, WCL is not akin to a consumer in the same way as the Uber drivers. Not only are Uber drivers comparable to an unsophisticated Facebook user as in Douez, not to WCL; a commercial entity, a major factor in the court's decision in Uber Technologies was the finding that the arbitration clause represented a "substantially improvident or unfair bargain" because it required an individual with a small claim to incur significant costs up front in arbitrating the claim: at para. 68. The costs of initiating arbitration against Uber in the Netherlands was prohibitively expensive for Uber drivers [page274] ($14,500 upfront filing/administrative costs, whereas the average Uber driver makes $20,800-$31,200 a year).

[66] There is no comparable evidence before me that litigation in California would be anything close to this. In fact, counsel for Google have done an Internet search and the civil case filing fee in the Northern District Court of California which is the district specified in the forum selection clause is US$400. Furthermore, there is no reason to think that WCL was not aware of the terms of the arbitration clause, which is clearly worded, before it agreed to the terms of service. In addition, in Uber Technologies the court found that Uber chose the arbitration provision in order to favour itself and take advantage of its drivers whereas Google led unchallenged evidence that the purpose of the forum selection clause was to provide commercial certainty in Google's international transactions.

[67] At para. 70 of Uber Technologies, in light of the application of the Titus elements, the Court of Appeal noted that, like in Douez, the arbitration clause operated to defeat the claims it purported to resolve. WCL submits that this is also the case here in that the evidentiary record demonstrates that Google refused to address the merits of WCL's dispute, notwithstanding (a) WCL's ongoing commercial relationship with it; (b) that Google provided a detailed substantive response to Amex's inquiries (albeit, a response premised on the false and deceptive statement that WCL claimed it had cancelled its contract); and (c) that s. 13A of Google's amended terms of service require the parties to make good faith efforts to resolve a dispute within 60 days of written notice. In my view, these arguments that Google has been "stonewalling" WCL, even if true does not mean the forum selection clause would operate to defeat WCL's claim. There is no reason to believe that Google would not have to respond to WCL's claim on the merits in California, just as it would here in Ontario. Furthermore, as already stated, there is no evidence the cost to do so would be prohibitive, which was the basis for the Court of Appeal's finding in para. 70 of Uber Technologies.

[68] The other aspect of Uber Technologies that WCL relies upon is that it demonstrated that it is not only constitutional or quasi-constitutional issues that are public policy issues of importance to Ontario courts when determining whether to exercise its discretion to grant a stay: at paras. 27, 50. In Uber Technologies, the court found that the determination of whether the drivers were independent contractors or employees and whether they are entitled to the protections of the Employment Standards Act, 2000, S.O. 2000, c. 41 was an important issue for all persons in Ontario. WCL submits that the importance of WCL's claim to [page275] Ontario arises from the fact its claim arises from a flaw in an algorithm in Google's software which, in 2016, delivered $2.614 billion in online advertising on behalf of Canadian businesses which is relevant to all persons in Ontario. This is especially the case here where the flaw resulted in the delivery of advertising to children, who were not the intended audience. WCL argues that this is a matter of the public interest, which should not be handed over to the courts in California.

[69] Google, however, asserts that there is no evidence that any issue that gave rise to the disputed charges has caused issues for other advertisers; that would be speculation. In my view, it is also speculation to find that these ads were primarily clicked on by children because some of the videos were shows for children. There is no way of knowing whether parents clicked on the ads while watching these types of videos with their children. In my view, the WCL claim has significantly less of a public dimension, involving an advertising agreement between two commercial parties. There is no public policy reason why it should not be decided in California. In fact, a decision there would arguably have a much larger impact on businesses from all countries, including Canadian corporations using this type of advertising.

[70] For all of these reasons, considering all of the circumstances of this case, in my view WCL's claim should be resolved pursuant to the forum selection clause. Because WCL fails on the strong cause test, or even the modified test, I find that the claim should be permanently stayed pursuant to rule 17.06(1)(b) and s. 106 of the Courts of Justice Act.

Issue 4: If Amex is an added party, should this court stay the action against Amex on the basis that the Amex and WCL's cardholder agreement contains an arbitration clause?

[71] Although this issue is moot, as I have not granted WCL leave to add Amex as a party, I will consider it assuming that I had decided to grant leave to WCL to add Amex as a party.

[72] The arbitration clause in Amex's cardholder agreement with WCL reads as follows:

Any Claim will only be resolved by arbitration pursuant to this Arbitration Provision and the National Arbitration Rules[.]

[73] A "claim" is defined in the card holder agreement very broadly.

[74] Section 7 of the Arbitration Act, 1991 ("Act") provides, in part, as follows: [page276]

7(1) If a party to an arbitration agreement commences a proceeding in respect of a matter to be submitted to arbitration under the agreement, the court in which the proceeding is commenced shall, on the motion of another party to the arbitration agreement, stay the proceeding.

(5) The court may stay the proceeding with respect to the matters dealt with in the arbitration agreement and allow it to continue with respect to other matters if it finds that,

(a) the agreement deals with only some of the matters in respect of which the proceeding was commenced[.]

(Emphasis added)

[75] WCL does not argue that any of the five exceptions in s. 7(2) of the Act, which expressly provide that the court may refuse to stay the proceeding, apply. It relies on s. 7(5) (a) of the Act.

[76] At para. 12 of Haas v. Gunasekaram, [2016] O.J. No. 5286, 2016 ONCA 744, 62 B.L.R. (5th) 1, the Ontario Court of Appeal stressed the directory nature of the language of the statue (which was a change from the old Act) and, at para. 17, set out the sub-issues to consider before granting a stay pursuant to s. 7 of the Act:

(a) Is there an arbitration agreement? Clearly there is in this case.

(b) What is the subject matter of the dispute? As Amex submits, the subject matter relates to a dispute about charges incurred on WCL's account with Amex and whether the investigation by Amex relating to those charges was negligent, causing damage to WCL.

(c) What is the scope of the arbitration agreement? The arbitration clause in this case clearly covers "any claim" and is wide in scope.

(d) Does the dispute arguably fall within the scope of the arbitration agreement? WCL does not argue that the arbitration clause does not apply to its claim against Amex and in my view it clearly does. As Amex submits, WCL's proposed amendment qualifies as a "claim" and it falls squarely within the scope of the arbitration agreement. The fact it is a tort claim does not nullify the arbitration clause: see Haas, at para. 35.

(e) Are there grounds on which the court should refuse to stay the action? This is the issue before me. [page277]

[77] WCL does not take the position that the Court of Appeal's decision in Uber Technologies has any bearing on the enforceability of the arbitration clause. WCL's principal argument against enforcing the arbitration clause is that judges can refuse to grant a stay where one of the parties to an action is not subject to the arbitration clause and the claim involving the nonparty to the arbitration clause and the claim sought to be submitted to arbitration both contain closely related facts and issue in dispute, in which case a partial stay may not be reasonable and the court should instead exercise its discretion to allow the entire matter to proceed in the one forum of the court; relying on Shaw Satellite G.P. v. Pieckenhagen, [2012] O.J. No. 1270, 2012 ONCA 192, 347 D.L.R. (4th) 452, leave to appeal to the S.C.C. refused [2012] S.C.C.A. No. 240, 2012 CanLII 66233.

[78] Essentially, WCL argues that the issues and facts in dispute between the three parties are closely related and as the court stated in Shaw Satellite,at paras. 15-16, judges can refuse to grant a partial stay under s. 7(5) of the Act where a partial stay would result in a multiplicity of proceedings, duplication of resources, inefficiency, increased costs and delay contrary to s. 138 of the Courts of Justice Act. Because of the closely related facts and issues in dispute, WCL submits that a partial stay may not be reasonable under s. 7(5) of the Act.

[79] I have already set out my reasons for why in my view the claim WCL has against Google is not closely related factually to its claim against Amex. In addition, I rely on Blind Spot Holdings Ltd. v. Decast Holdings Inc., [2014] O.J. No. 1300, 2014 ONSC 1760 (S.C.J.), where Brown J. (as he then was), was dealing with a similar argument and, at para. 34, applied the reasoning of the Court of Appeal in Dalimpex Ltd. v. Janicki (2003), 2003 CanLII 34234 (ON CA), 64 O.R. (3d) 737, [2003] O.J. No. 2094 (C.A.), at paras. 44 and 45, where the court held:

On this point, the Division Court simply concluded as follows at para. 33:

Since the main protagonists in this dispute are Dalimpex and Agros, the claims against other parties in this action should also be stayed pending the determination of the Court of Arbitration: Boart Sweden ABB v. NYA Stromnes AB (1988), 41 B.L.R. 295 at 304 (Ont. H.C.).

Dalimpex did not advance any credible argument to dispute the correctness of this conclusion. In my view, it is obvious from the pleadings that its action against the other two respondents will stand or fall on the merits of the action against Agros. I see no basis to interfere with the order of the Divisional Court extending the stay of action to Janicki and Agropol.

[80] In my view, the same can be said of WCL's claim against Amex. It will stand or fall on the merits of its action against Google. WCL and Google are the main protagonists in this [page278] dispute and the most reasonable way to resolve it is to leave Amex out of it for the time being. In that event it is unlikely that Amex would ever be drawn into this dispute. Contrary to the submissions of WCL, staying any action against Amex would promote efficiency and reduce costs for WCL and of course Amex.

[81] Ultimately, while courts maintain discretion to refuse to enforce a stay, I am not convinced that there is anything particularly compelling about this case that that calls for this discretion to be used. In every case where multiple parties are involved, giving effect to a forum selection/ arbitration clause would lead to a multiplicity of proceedings; however, the importance of promoting commercial certainty remains an important consideration that can often outweigh the judicial inefficiencies of multiple proceedings.

Relief Granted

[82] For these reasons, I order as follows:

(a) WCL's cross-motion for leave to amend its statement of claim to add Amex as a party is dismissed;

(b) Google's motion for an order permanently staying WCL's action is granted; and

(c) WCL shall pay costs of these motions to both Google and Amex on a partial indemnity basis.

[83] WCL's cross-motion for leave to amend its statement of claim against Google is granted but is moot in light of my order permanently staying WCL's action against Google.

Costs

[84] The parties filed costs outlines following the conclusion of the hearing of the motions, but they have requested an opportunity to make brief submissions on costs once this decision on the merits is released. Accordingly, I will receive brief submissions on costs. Counsel for WCL shall provide his submissions (limited to two pages) by February 14 and any reply, also limited to two pages, is to be provided by February 20, 2019.

Defendant's motion granted; plaintiff's motion granted in

part.

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