Court File and Parties

COURT FILE NO.: CV-20-00648958 DATE: 20210222 ONTARIO SUPERIOR COURT OF JUSTICE

RE: FIFTEEN PRINCE ARTHUR CORPORATION et al., Plaintiff -and- DESJARDINS GESTION INTERNATIONALE D'ACTIFS INC./ DESJARDINS GLOBAL ASSET MANAGEMENT INC. et al., Defendants

BEFORE: F. L. Myers, J

COUNSEL: Alexandra White, for the defendants Adam Wainstock, for the plaintiffs

READ: February 19, 2021

Endorsement

The Motion

[1] The defendant Desjardins Global Asset Management Inc. describes itself on its webpage as “one of Canada’s largest asset management firms with $72 billion in assets under management”. It describes its business as follows:

Desjardins Global Asset Management (DGAM) is a team of investment specialists with a reputation for building custom portfolios. Combining innovation, accessibility and discipline, they design solutions tailored to their clients' unique needs. DGAM's established team of experts is dedicated to reliably helping their clients' assets grow in a sustainable and responsible manner.

[2] Desjardins’ website also says:

DGAM has 70 employees working out of its Montreal and Toronto offices.

[3] Desjardins moves to dismiss this claim because this court has no jurisdiction over it as a Quebec-based company. Alternatively, it asks the court to stay this action because Quebec is forum conveniens.

[4] The motion is dismissed for the reasons that follow.

Jurisdiction

[5] The plaintiff claims that in February, 2018, its employees travelled to Montreal to pitch business to Desjardins. It says that while there or within a few days, the parties entered into an agreement. The plaintiff says it provided services to Desjardins as agreed and that Desjardins owes it money that it agreed to pay.

[6] Desjardins denies that there is any agreement between the companies. It denies it has received services for which it agreed to pay.

[7] The plaintiff served the statement of claim on Desjardins in Montreal. It relies on Rule 17.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to support service outside Ontario on the basis that the agreement alleged was entered into in Ontario. Alternatively, it says that Desjardins carries on sufficient business in Ontario that it has a “real and substantial connection” to this jurisdiction under Club Resorts Ltd. v. Van Breda, 2012 SCC 17.

[8] Despite both counsel arguing the principles set out in Van Breda at some length, they have nothing to do with the outcome of the motion.

[9] At para. 79 of Van Breda, LeBel J. reminds us that the issue discussed in that case does not oust other bases of a court’s jurisdiction:

However, jurisdiction may also be based on traditional grounds, like the defendant’s presence in the jurisdiction or consent to submit to the court’s jurisdiction, if they are established. The real and substantial connection test does not oust the traditional private international law bases for court jurisdiction. [Emphasis added.]

[10] Desjardins maintains an office in Toronto. It has four employees working here. Their work focuses on the asset management piece of their efforts to help clients’ assets grow whereas the part of the Montreal office that engaged with the plaintiff deals with equities. But it is all one corporation carrying on business in both Ontario and Quebec.

[11] This is not a case where a plaintiff sues a local subsidiary to try to access a foreign parent company’s assets. Nor is it one where a foreign corporation has a single person here who is connected to the corporation but does to carry on any business functions here. Jurisdiction here is not based on concepts discussed in Van Breda about foreign corporations who carry on some piece of their business here – perhaps over the internet.

[12] The defendant in this action is present in Ontario. It has a business establishment from which it operates. Representatives of the defendant corporation transact in Ontario some part of the business which Desjardins professes to do.

[13] Whether the plaintiff needs to serve the defendant again in Toronto or its reliance on service ex juris was misplaced may go to costs. But it does not affect the undoubted jurisdiction of this court over Desjardins.

Forum Non Conveniens

[14] A party can ask the court to exercise discretionary authority to stay an action if there is another forum that is a more convenient place to hear the lawsuit. Asking a court to refuse to hear a case that is properly brought to it is an exceptional request. The burden on the moving party is to show that the other forum is “clearly more appropriate”. See: Van Breda, at para 107 – 108.

[15] There is no definitive list of relevant factors to consider in order to assess which forum is more convenient. However, some include: the location of the parties, the location of witnesses, the applicable law, the existence of a “choice of forum” clause, avoiding multiplicity, the ease of enforcement of the ultimate judgment, whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in its domestic court, and the fair and efficient working of the Canadian legal system as a whole. See: Van Breda, at para 105, and Muscutt v. Courcelles, at para. 41.

[16] Of course, the court must engage in a holistic and contextual balancing of all of the relevant facts in each case. [^1]

[17] In this case, the plaintiffs’ witnesses are here; the defendants’ in Quebec. The law of the contract is not known. The defendant says there is no contract. But either court is equally adept at applying the law of the other should the need arise. There is no “choice of forum” clause. There is no likelihood of multiplicity. There will be no issues enforcing any judgment against the defendant. There is no issue affecting the national legal system as a whole.

[18] The facts concerning the meeting that led to the alleged contract occurred in Quebec. But that has little to do which forum is more convenient to hear the dispute.

[19] The plaintiff made a reference to a desire to maintain its Ontario limitation period. But I do not know if it would be out of time in Quebec.

[20] Both courts are equally capable and equally convenient in this case. Therefore, the defendants cannot meet their burden to show that Quebec is clearly the more appropriate forum.

Outcome

[21] The motion is dismissed.

[22] The plaintiffs may deliver cost submissions no later than March 1, 2021. The defendants may deliver cost submissions no later than March 8, 2021. Both parties shall deliver Costs Outlines.

[23] In addition, the parties may deliver copies of any offers to settle on which they rely.

[24] Submissions shall be no longer than three pages (not counting the Cost Outlines and offers to settle).

[25] All costs material is to be filed through the Civil Submissions Online portal and shall also be sent to me in searchable PDF format as an attachment to an email to my Judicial Assistant. No case law or statutory material is to be submitted. References to case law and statutory material, if any, shall be embedded in the parties’ submissions as hyperlinks.

F. L. Myers, J. Date: February 22, 2021

[^1]: As Emerson noted, “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines." R.W. Emerson, Essays. First Series. Self-Reliance.