COURT FILE NO.: 05-329-19
DATE: 20201110
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Soma Ray-Ellis, Applicant (Responding Party)
AND:
Terry Goodtrack in his capacity as Executor of the Estate of Kirk Goodtrack, CIBC World Markets Inc., CIBC Trust Corporation, CIBC Wood Gundy and Canadian Imperial Bank of Commerce, Respondents (Terry Goodtrack Moving Party)
BEFORE: C. Gilmore, J.
COUNSEL: Howard Wolch, for the Applicant/Responding Party
G. Schertzer, for the Moving Party
Kelly Charlebois for CIBC
HEARD: November 6, 2020
ENDORSEMENT
OVERVIEW AND FACTUAL BACKGROUND
[1] Terry Goodtrack (“Terry”) is the Executor of the Estate of his brother Kirk Goodtrack (“Kirk”) who died at age 53 on September 3, 2018. Terry resides in Ottawa. His brother lived in Saskatchewan for most of his life. The Applicant lives in Toronto.
[2] Kirk and the Applicant were married from 1993 to 1998 and divorced in 2001. The Applicant had had no contact with Kirk until shortly before his death when he attempted to contact her several times. Kirk did not remarry after his divorce from the Applicant. He has no children.
[3] Kirk made a will leaving his estate to his parents, who both survived him. Kirk’s assets and beneficiaries are all located in Saskatchewan.
[4] This case involves a Locked in Retirement Account (“LIRA”) owned by Kirk. The LIRA is held by CIBC and its value as of September 2018 was $137,019.60. CIBC has confirmed that the Applicant is the designated beneficiary of the LIRA although the signed beneficiary form cannot be located.
[5] When the LIRA was discovered, Terry requested that the Applicant sign a release of her interest in it. Terry took the position that the LIRA formed part of the Estate. The Applicant had signed a separation agreement with Kirk in which she released her interest in his Estate.
[6] The Applicant sought information about the LIRA and when Terry resisted, she commenced this Application in November 2019. She seeks a declaration that the proceeds of the LIRA be paid to her as the designated beneficiary.
THE ISSUES ON THE MOTION
[7] Terry brings this motion in his capacity as Executor of Kirk’s Estate to stay or dismiss the Application on the grounds that Ontario does not have jurisdiction to hear this matter or that it is not the appropriate forum. Terry seeks to have all matters heard in Saskatchewan where he intends to apply for probate.
[8] The Court’s jurisdiction in such matter is determined by the two-part test set out in Van Breda v. Village Resorts Ltd., 2012 SCC 17. According to that test, the Court first determines if it has jurisdiction (jurisdiction simpliciter). In the event that that low threshold is not met, the Court may go on to exercise its discretion to determine whether Ontario is the appropriate forum in which to hear the matter.
Is There a Substantial Connection to Ontario
[9] Under the first stage of the Van Breda test the Court may assume jurisdiction over a matter where:
a. The Respondent is domiciled in the province;
b. The Respondent carries on business in the province;
c. A tort was committed in the province; or
d. A contract connected with the dispute was made in the province.
[10] While Van Breda clearly dealt with a tort claim, courts have applied this test in many cases involving various other types of claims. It is the Applicant’s burden to establish jurisdiction simpliciter by identifying a presumptive connecting factor that links the litigation to the forum. However, the threshold is not an onerous one and the Applicant in this case need only establish that the case has some connection to Ontario and that she has “some chance of success.”
[11] Terry argues that the Applicant has not met her burden with respect to this part of the test because:
a. Terry has completed numerous tasks in relation to the Estate in Saskatchewn, including but not limited to; arranging for the funeral, filing for the CPP death benefit, hiring estate lawyers to provide advice, transferring Kirk’s vehicle to his parents, closing out accounts, dealing with CRA, and finding a successor law firm for Kirk’s law practice. As Terry intends to apply for probate in Saskatchewan, all related estate matters should be dealt with there rather than risking a multiplicity of proceedings.
b. The fact that the Applicant resides in Ontario is of minimal importance.
c. There is no contract in Ontario as there is no evidence that Kirk signed a beneficiary designation.
d. The fact that CIBC’s head office is in Ontario is also of little import. The asset can be easily made liquid and transferred to a CIBC branch in Saskatchewan.
e. The fact that Terry resides in Ontario is not a reason to decline jurisdiction and not part of the Van Breda analysis.
[12] I do not agree with the Moving Party and find that the Applicant has met the low threshold of showing that the case has some connection with Ontario and some chance of success.
[13] CIBC confirmed in their submissions that there is a contract which Kirk held with CIBC. Paperwork is not able to be located likely because the LIRA changed investment accounts from Midland Walwyn to Merrill to CIBC over many years. Although CIBC cannot locate the signed paperwork, it has a screenshot with the information. I find that this fact, and the fact that the CIBC head office is in Ontario is sufficient to establish that the contract is located in Ontario.
[14] This is not an Estate Administration matter, it is only a matter of a cheque being written once it is determined whether the LIRA is payable to the Estate or the Applicant. The fact that the beneficiaries and assets of the Estate are located in Saskatchewan is not relevant to this factor. The LIRA itself has no connection to Saskatchewan.
[15] CIBC has two witnesses on the Application. Both are located in Toronto as is the Applicant.
[16] The Estate Trustee lives in Ontario. While the case law differs as to the importance of this factor, the fact that Terry lives in Ontario cannot be ignored in terms of the factual matrix when determining the jurisdiction simpliciter threshold.
[17] As such, the jurisdiction simpliciter in this matter must be Ontario.
Is There Another More Appropriate Forum?
[18] Terry argues that in the event this Court finds that Ontario has jurisdiction over these proceedings, it should exercise its discretion under forum non conveniens to decline jurisdiction as a more appropriate forum exists. The burden of proof is on Terry to demonstrate why Saskatchewan would be the more appropriate forum to litigate this matter.
[19] In Trident Consulting International Inc. v. Logsdon, 2018 ONSC the Court sets out a list of non-exhaustive factors to be considered when determining the appropriate jurisdiction including:
a. The convenience and expense to the parties and their witnesses;
b. The desirability of avoiding multiple legal proceedings and conflicting decisions in different courts;
c. The enforcement of an eventual judgment; and
d. The fair and efficient working of the Canadian judicial system.
[20] I find that that the Moving Party has not met their burden with respect to the second part of the test. The only “proceeding” other than this Application would be an application for probate which would not give rise to any conflicting decision given that the will is not being contested.
[21] As well, given the position of CIBC with respect to the beneficiary designation, there is evidence to support that the LIRA would not form part of the Estate and as such would not form part of the Estate Administration.
[22] The witnesses, contract and evidence are all in Ontario.
[23] I find that the connection to Saskatchewan in relation to this matter is minimal and therefore litigating the LIRA issue in Saskatchewan would result in increased and unnecessary costs.
[24] Finally, the fairness of the legal system favours hearing this matter in Ontario given all of the above.
ORDERS
[25] The Moving Party’s motion is dismissed.
[26] The Application will be heard in Ontario. The parties may arrange an appointment before me for a litigation timetable if needed.
COSTS
[27] Ms. Charlebois on behalf of CIBC is not seeking costs given that CIBC is a neutral party. No party is seeking costs against CIBC on this motion.
[28] Both the Moving and Responding Parties are seeking partial indemnity costs of $21,000. This is not a case for substantial indemnity costs.
[29] The Responding Party has had complete success. Therefore, the Estate of Kirk Goodtrack shall pay all inclusive partial indemnity costs to the Applicant of $21,000.
C. Gilmore, J.
Date: November 10, 2020