COURT FILE NO.: CV-20-2821
DATE: 2021 06 07
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Kuntie Ramnarain in her capacity as Estate Trustee for the Estate of Rameshwar a.k.a. Rameshwar Singh, a.k.a. Rameshwar Rameshawar, and Kuntie Ramnarain
Plaintiff
Joe Saunders, Shanta Saunders, Vaishna Saunders, Vikash Saunders, and Vandana Saunders
Defendants
BEFORE: Bloom, J.
COUNSEL: Brendan Donovan and Praniet Chopra, counsel for the Moving Parties, the Defendants
Alnaz I. Jiwa, counsel for the Responding Parties, the Plaintiffs
HEARD: April 7, 2021
E N D O R S E M E N T
I. INTRODUCTION
[1] The Defendants move for a stay or dismissal of the portion of the action seeking relief in respect of the transfer by the deceased, Rameshwar, to the Defendants of parcels of land located in Guyana. The Defendants argue that they are entitled to that relief on the basis that there is lack of jurisdiction simpliciter in this court; that, even if there were jurisdiction simpliciter, the doctrine of forum non conveniens prevents this court from taking jurisdiction; and that, with respect to the Defendants, Vandana Saunders and Vikash Saunders, service of them outside of Ontario has been made contrary to the Rules of Civil Procedure.
II. PROCEDURAL AND FACTUAL BACKGROUND
[2] The facts material to this motion are largely not in dispute.
[3] Rameshwar died on May 24, 2019 at 92 years old.
[4] He was survived by 5 children. Among them were the Plaintiff, Kuntie Ramnarain, who resides in Mississauga, Ontario, and the Defendant, Joe Saunders, who resides in Markham Ontario with his wife, the Defendant, Shanta Saunders. Kuntie is also estate trustee of Rameshwar.
[5] The Defendant, Vaishna Saunders, is the daughter of Joe and Shanta. She resides in Markham.
[6] The Defendants, Vandana Saunders and Vikash Saunders, are children of Joe and Shanta; they reside in New Jersey.
[7] In 2014 each of Vaishna, Vandana, and Vikash received a gift from the deceased of a parcel of land in Guyana, subject to a life interest in favour of Joe and Shanta.
[8] Each gift was effected by means of the use of powers of attorney signed in Ontario. In the case of the gift to Vaishna, there was a power of attorney signed by the deceased and one signed by Joe Saunders on behalf of Vaishna, a minor. In the case of the gifts to Vandana and Vikash, a power of attorney signed by the deceased and one signed by the recipient grandchild were used. Using those powers of attorney a law clerk in a lawyer’s office in Guyana, Vishnudat Pagoo, completed and registered the transfers of the parcels of land in Guyana.
[9] The deceased had executed several wills before his death. The last one was executed in 2013. It divided the residue of his estate among his 5 children. Without the 3 Guyanese properties the estate has no assets.
[10] In paragraph 34 of the the Statement of Claim the Plaintiffs allege that Joe “caused undue influence on” the deceased and\or had him “sign the …transfer documents…without him…knowing the true purpose of the signing of the documents or knowing the effect of the …documents.”
[11] The Statement of Claim seeks relief other than that subject of the attack on this motion. The motion at bar concerns relief sought in respect of the three transfers. The nature of that relief plays a central role in my analysis below.
III. ARGUMENTS OF THE PARTIES
A. Arguments of the Moving Parties
[12] The Defendants argue first that this court lacks jurisdiction to grant the remedies that the Plaintiffs seek in respect of the parcels of land; in that regard the Defendants rely upon the rule of law that the courts of Ontario have no jurisdiction to adjudicate a dispute over the right and title to land located outside Ontario, absent a narrow exception they contend is not applicable to the case at bar.
[13] Second, the Defendants contend that, even if the courts of Ontario have jurisdiction over the claims in relation to the parcels of land, this Court should decline to exercise that jurisdiction because Guyana is the more convenient forum. In relying on the doctrine of forum non conveniens the Defendants assert that all of the factors identified in Club Resorts Ltd. v. Van Breda, 2012 SCC 17 as relevant to the application of the doctrine favour the hearing of the claims in question in Guyana.
[14] Third, the Defendants argue that Vandana and Vikash were not properly served outside Ontario with the Statement of Claim under the Rules of Civil Procedure.
B. Arguments of the Responding Parties
[15] The Plaintiffs argue first that the Ontario courts have jurisdiction over the claims in question, because they seek damages and equitable relief (including relief based on a resulting trust in favour of the estate of the deceased).
[16] Second, the Plaintiffs assert that the Van Breda criteria favour Ontario as the appropriate jurisdiction for the hearing of the matter.
[17] Third, the Plaintiffs argue that service outside of Ontario on Vandana and Vikash was effected in accordance with Rule 17.02(f)(i) and (iv), the contracts in question being the powers of attorney described above. Alternatively, the Plaintiffs rely upon Rule 17.02 (g); in the further alternative, they rely upon Rule 17.02(i) based on the seeking of mandatory orders against the two Defendants concerning the parcels of land.
IV. GOVERNING PRINCIPLES
A. Jurisdiction Simpliciter
[18] In Catania v. Giannattasio, 1999 CanLII 1930 (ON CA), [1999] O.J. No. 1197 (Ont.C.A.) the Court considered a fact situation where the Respondent, the son of a deceased father, attacked a deed by the father to the Appellants, two daughters, of a parcel of land located in Italy; the attack was based on allegations that the father was mentally incompetent when he made the deed. All three children were resident in Ontario.
[19] The Court acknowledged the general rule that only the courts of the country where land is located have jurisdiction to decide disputes as to the title to the land. Justice Laskin for the Court at paragraphs 12 and 13 set out the principles governing the exception and how they applied in the case before him:
12 I do not accept this argument. Admittedly, as Smith J. points out in Duke v. Andler3, a long line of authorities has held that Canadian courts have jurisdiction to enforce rights affecting land in foreign countries if these rights are based on contract, trust or equity and the defendant resides in Canada. In exercising this jurisdiction, Canadian courts are enforcing a personal obligation between the parties. In other words, they are exercising an in personam jurisdiction. This in personam jurisdiction is an exception to the general rule that Canadian courts have no jurisdiction to decide title to foreign land. The exception recognizes that some claims may have both a proprietary aspect and a contractual aspect. Canadian courts, however, will exercise this exceptional in personam jurisdiction only if four criteria are met. These four criteria, of which the second is central to this appeal, are discussed by McLeod4:
In order to ensure that only effective in personam jurisdiction is exercised pursuant to the exception, the courts have insisted on four prerequisites:
(1)The court must have in personam jurisdiction over the defendant. The plaintiff must accordingly be able to serve the defendant with originating process, or the defendant must submit to the jurisdiction of the court.
(2)There must be some personal obligation running between the parties. The jurisdiction cannot be exercised against strangers to the obligation unless they have become personally affected by it ... An equity between the parties may arise in various contexts. In all cases, however, the relationship between the parties must be such that the defendant's conscience would be affected if he insisted on his strict legal rights ...
(3)The jurisdiction cannot be exercised if the local court cannot supervise the execution of the judgment ...
(4)Finally, the court will not exercise jurisdiction if the order would be of no effect in the situs ... The mere fact, however, that the lex situs would not recognize the personal obligation upon which jurisdiction is based will not be a bar to the granting of the order.
13 The appellants submit - and I agree with them - that the respondent does not meet the second criterion. The deed created an obligation on the father, and now his estate, to transfer the two properties to the appellants. It does not create any contractual or other legal obligation between the respondent and the appellants. The respondent is a "stranger" to the deed and nothing in the record suggests that he is personally affected by his father's obligation to the appellants. Moreover, I find no equities between the children that would affect the conscience of the appellants if they insisted on their rights under the deed. For these reasons, the respondent cannot invoke the exceptional in personam jurisdiction of the Ontario courts. Any dispute over title to the two properties, including any dispute over the validity of the deed and its terms, should be decided by the Italian courts.
B. Forum Non Conveniens
[20] In Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572 at paras. 101 to 110 Justice LeBel for the Court set out the principles governing the doctrine of forum non conveniens:
101 As I mentioned above, a clear distinction must be drawn between the existence and the exercise of jurisdiction. This distinction is central both to the resolution of issues related to jurisdiction over the claim and to the proper application of the doctrine of forum non conveniens. Forum non conveniens comes into play when jurisdiction is [page623] established. It has no relevance to the jurisdictional analysis itself.
102 Once jurisdiction is established, if the defendant does not raise further objections, the litigation proceeds before the court of the forum. The court cannot decline to exercise its jurisdiction unless the defendant invokes forum non conveniens. The decision to raise this doctrine rests with the parties, not with the court seized of the claim.
103 If a defendant raises an issue of forum non conveniens, the burden is on him or her to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff. The defendant must identify another forum that has an appropriate connection under the conflicts rules and that should be allowed to dispose of the action. The defendant must show, using the same analytical approach the court followed to establish the existence of a real and substantial connection with the local forum, what connections this alternative forum has with the subject matter of the litigation. Finally, the party asking for a stay on the basis of forum non conveniens must demonstrate why the proposed alternative forum should be preferred and considered to be more appropriate.
105 A party applying for a stay on the basis of forum non conveniens may raise diverse facts, considerations and concerns. Despite some legislative attempts to draw up exhaustive lists, I doubt that it will ever be possible to do so. In essence, the doctrine focusses on the contexts of individual cases, and its purpose is to ensure that both parties are treated fairly and that the process for resolving their litigation is efficient.
108 Regarding the burden imposed on a party asking for a stay on the basis of forum non conveniens, the courts have held that the party must show that the alternative forum is clearly more appropriate…
109 The use of the words "clearly" and "exceptionally" should be interpreted as an acknowledgment that the normal state of affairs is that jurisdiction should be exercised once it is properly assumed. The burden is on a party who seeks to depart from this normal state of affairs to show that, in light of the characteristics of the alternative forum, it would be fairer and more efficient to do so and that the plaintiff should be denied the benefits of his or her decision to select a forum that is appropriate under the conflicts rules. The court should not exercise its discretion in favour of a stay solely because it finds, once all relevant concerns and factors are weighed, that comparable forums exist in other provinces or states. It is not a matter of flipping a coin. A court hearing an application for a stay of proceedings must find that a forum exists that is in a better position to dispose fairly and efficiently of the litigation. But the court must be mindful that jurisdiction may sometimes be established on a rather low threshold under the conflicts rules. Forum non conveniens may play an important role in identifying a forum that is clearly more appropriate for disposing of the litigation and thus ensuring fairness to the parties and a more efficient process for resolving their dispute.
110 As I mentioned above, the factors that a court may consider in deciding whether to apply forum non conveniens may vary depending on the context and might include the locations of parties and witnesses, the cost of transferring the case to another jurisdiction or of declining the stay, the impact of a transfer on the conduct of the litigation [page627] or on related or parallel proceedings, the possibility of conflicting judgments, problems related to the recognition and enforcement of judgments, and the relative strengths of the connections of the two parties.
C. The Rules of Civil Procedure and Service Outside Ontario
[21] The Rules of Civil Procedure set out the procedure which applies to the litigation of the motion before me, and, in particular, the principles which govern the determination of the whether service outside of Ontario of Vandana and Vikash has been properly effected.
[22] Rule 21.01(3)(a) provides:
- A defendant may move before a judge to have an action stayed or dismissed on the ground that,
Jurisdiction
(a) the court has no jurisdiction over the subject matter of the action;
S. 106 of the Courts of Justice Act provides:
106 A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just. R.S.O. 1990, c. C.43, s. 106.
[23] The Defendants invoke both provisions, seeking a stay or dismissal of the action as it relates to the Guyanese properties.
[24] In addition the Defendants, Vandana and Vikash, who were served in New Jersey with the Statement of Claim invoke provisions of the rules specifically applicable to service outside of Ontario.
[25] In that regard the applicable provisions of the rules are as follows:
SERVICE OUTSIDE ONTARIO WITHOUT LEAVE
17.02 A party to a proceeding may, without a court order, be served outside Ontario with an originating process or notice of a reference where the proceeding against the party consists of a claim or claims,
Contracts
(f) in respect of a contract where,
(i) the contract was made in Ontario,
(ii) the contract provides that it is to be governed by or interpreted in accordance with the law of Ontario,
(iii) the parties to the contract have agreed that the courts of Ontario are to have jurisdiction over legal proceedings in respect of the contract, or
(iv) a breach of the contract has been committed in Ontario, even though the breach was preceded or accompanied by a breach outside Ontario that rendered impossible the performance of the part of the contract that ought to have been performed in Ontario;
Tort Committed in Ontario
(g) in respect of a tort committed in Ontario;
(h) Revoked: O. Reg. 231/13, s. 5.
Injunctions
(i) for an injunction ordering a party to do, or refrain from doing, anything in Ontario or affecting real or personal property in Ontario;
ADDITIONAL REQUIREMENTS FOR SERVICE OUTSIDE ONTARIO
17.04 (1) An originating process served outside Ontario without leave shall disclose the facts and specifically refer to the provision of rule 17.02 relied on in support of such service. R.R.O. 1990, Reg. 194, r. 17.04 (1).
MOTION TO SET ASIDE SERVICE OUTSIDE ONTARIO
17.06 (1) A party who has been served with an originating process outside Ontario may move, before delivering a defence, notice of intent to defend or notice of appearance,
(a) for an order setting aside the service and any order that authorized the service; or
(b) for an order staying the proceeding. R.R.O. 1990, Reg. 194, r. 17.06 (1).
(2) The court may make an order under subrule (1) or such other order as is just where it is satisfied that,
(a) service outside Ontario is not authorized by these rules;
(b) an order granting leave to serve outside Ontario should be set aside; or
(c) Ontario is not a convenient forum for the hearing of the proceeding. R.R.O. 1990, Reg. 194, r. 17.06 (2).
(3) Where on a motion under subrule (1) the court concludes that service outside Ontario is not authorized by these rules, but the case is one in which it would have been appropriate to grant leave to serve outside Ontario under rule 17.03, the court may make an order validating the service. R.R.O. 1990, Reg. 194, r. 17.06 (3).
(4) The making of a motion under subrule (1) is not in itself a submission to the jurisdiction of the court over the moving party. R.R.O. 1990, Reg. 194, r. 17.06 (4).
[26] In applying Rule 17.04(1) the following passage at paragraph 25 of the judgment of Master R.A. Muir in Goldmart Farms Inc. v. Fasig-Tipton Co., [2010] O.J. No. 1683 must be borne in mind:
25 The statement of claim only makes reference to Rule 17.02(a) as a basis for service ex juris. During the course of oral argument, the plaintiff suggested that Rule 17.02(h) could be relied upon as a basis for the out of country service despite the fact that it was not specifically pleaded. There is a line of authority in support of this proposition. In Latner v. Latner, [2009] O.J. No. 4344 (S.C.J. - Master), Master Dash stated as follows at paragraph 13:
13 Rule 17.04(1) requires that the statement of claim disclose "the facts and specifically refer to the provision of rule 17.02 relied on in support of" service outside Ontario. The plaintiff has failed to strictly comply with the rule since there is no reference in the body of the statement of claim to those provisions of rule 17.02 upon which he relies. However this is "not to be rigidly applied by the courts so as to promote form over substance" and "as long as at least one of the claims in the statement of claim actually falls within the causes of action enumerated in rule 17.02, service outside the jurisdiction should not be set aside, even if the specific clause is not referred to in the originating process". If necessary the court could give the plaintiff an opportunity to amend and effect proper service. The question is whether the language of the statement of claim is "adequate to convey to the defendants" the fact that the plaintiff was relying on a cause of action as enumerated in one of the subparagraphs of rule 17.02.
[27] Finally, in addressing the questions of jurisdiction simpliciter the Plaintiff need only establish a good arguable case based on the Statement of Claim and any evidence adduced. That proposition is supported by the judgment in Vahle v. Global Work & Travel Co., [2020] O.J. No. 1184 (Ont.C.A.) affirming Vahle v. Global Work & Travel Co., [2019] O.J. No. 3166 (Ont.Sup.Ct.).
V. ANALYSIS
A. Jurisdiction Simpliciter
[28] I am satisfied that this court has jurisdiction over the claim in respect of the transfers of the three parcels. I will now explain that conclusion, having regard to the four criteria set out in Catania, supra.
[29] First, the defendants other than Vandana and Vikash have been served in Ontario. As to Vandana and Vikash, I will explain below my finding that they have been validly served outside Ontario.
[30] Second, I find that there is a good arguable case that the Defendants are fixed with an equity obligating them to make the re-transfer sought by the Plaintiffs. Specifically the Plaintiffs have established a good arguable case on the basis of the Statement of Claim and the evidence that Joe exercised undue influence on his father, the deceased, to effect the transfers of the property in question without consideration. While it remains for a trial to determine the truth of those allegations, at this point it is certainly arguable that equity would assist the Plaintiffs by ordering the re-transfers sought.
[31] The conscience of each Defendant would arguably be fixed with a responsibility in equity to effect the re-transfers, if the Plaintiffs established that Joe engineered the transfers by the use of undue influence on his father.
[32] Third, this court could supervise the execution of a mandatory injunction to effect the re-transfers. The normal remedies for the enforcement of an injunction, including contempt, would be available.
[33] Fourth, if the re-transfers were subject of an injunction by this court, they could be effectuated in Guyana in a similar manner to the way in which the transfers were effected.
B. Forum Non Conveniens
[34] I find that the Defendants have not discharged the burden which lies upon them to demonstrate that it would be fairer and more efficient to litigate the claim at issue in the Guyanese courts rather than to allow this court to assume jurisdiction in accordance with the choice of the Plaintiffs.
[35] No party resides in Guyana. In fact, the only parties who reside outside of Ontario, are Vandana and Vikash who reside, not in Guyana, but in New Jersey. Further, the powers of attorney central to the case were all executed in Ontario; and at the time of the registration in Guyana of the transfers none of the Defendants or the deceased were present in Guyana, and all Defendants were present in Ontario. If the Defendants wish to call as witnesses the law clerk from Guyana and the lawyer for whom he worked, they may do so in this court.
[36] Additionally, the claim in question is inextricably connected with the other subject matter of the action which will proceed in Ontario. In the interests of fairness, avoiding duplication of costs, and avoiding inconsistency in findings of fact this court rather than the courts of Guyana should hear the claim at issue.
[37] Moreover, as noted above this court is well able to enforce any mandatory injunction it issues to effect the re-transfers.
[38] Accordingly, I decline to invoke the doctrine of forum non conveniens to decline jurisdiction to hear the claim at issue.
C. Service Outside of Ontario
[39] I am satisfied that Rule 17.02 (i) is authority for the service of Vandana and Vikash in New Jersey. The mandatory injunction sought would compel the execution by those two Defendants of the requisite powers of attorney and any other necessary documentation in Ontario.
[40] Furthermore, I apply the principles in Goldmart Farms Inc., supra to cure any technical defect in compliance by the Plaintiffs with Rule 17.04(1).
VI. ORDER
[41] I dismiss the motion at bar and permit the claim of the Plaintiffs to proceed in accordance with these reasons.
VII. COSTS
[42] I shall receive written submissions as to costs of no more than 3 pages, excluding a bill of costs. The Plaintiffs shall serve and file their submissions within 14 days of release of these reasons. The Defendants shall serve and file their submissions within 14 days of service of the Plaintiffs submissions. There shall be no reply.
Bloom, J.
DATE: June 7, 2021
COURT FILE NO.: CV-20-2821
DATE: 2021 06 07
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Kuntie Ramnarain in her capacity as Estate Trustee for the Estate of Rameshwar a.k.a. Rameshwar Singh, a.k.a. Rameshwar Rameshawar, and Kuntie Ramnarain
Plaintiff
Joe Saunders, Shanta Saunders, Vaishna Saunders, Vikash Saunders, and Vandana Saunders
Defendants
BEFORE: Bloom, J.
COUNSEL: Brendan Donovan and Praniet Chopra, counsel for the Moving Parties, the Defendants
Alnaz I. Jiwa, counsel for the Responding Parties, the Plaintiffs
ENDORSEMENT
Bloom, J.
DATE: June 7, 2021