REASONS FOR DECISION

[1] Force One Marketing Corporation and Force One Capital (collectively referred to as “Force One”) entered into a commercial relationship with Rritual Superfoods Inc. (“Rritual”) to provide consulting services in the nature of finding strategic partners and potential investors for Rritual. More than one contract featured in this relationship.

[2] Part of the consideration promised by Rritual to Force One was the opportunity to buy shares by way of a stock option for just 2 cents a share at what they called a “founders’ rate” under a stock option agreement.

[3] Under new leadership, Rritual terminated the consulting services contract with Force One for cause. Force One, in response, attempted to exercise its stock options. Rritual initially denied that Force One was approved under its stock option plan. It then advised that in any event Force One had been terminated for cause forfeiting any right to exercise its option to buy shares.

[4] Force One commenced this lawsuit in Ontario seeking, inter alia, an order declaring that it validly exercised its option to purchase shares under the stock option agreement at the founders’ rate.

[5] Rritual brings this motion to enforce a forum selection clause under a form document that it says was incorporated by reference into the governing stock option agreement. The forum selection clause provides that disputes in relation to the stock options are to be brought before the British Columbia courts. Rritual also argues that Ontario lacks jurisdiction simpliciter or alternatively that British Columbia is the convenient forum.

[6] For the reasons that follow, Rritual’s motion to stay or dismiss the proceeding is dismissed. This court has jurisdiction simpliciter, and ought to exercise its jurisdiction in this matter. Furthermore, the forum selection clause relied upon by Rritual is not enforceable under contractual principles.

I. Issues

[7] The issues to be decided are:

(a) Has Rritual voluntarily attorned to the jurisdiction of the Ontario courts? If not, then,

(b) Has Force One demonstrated a “good arguable case” that Ontario has jurisdiction simpliciter? If yes, then,

(c) Is the forum selection clause relied upon by Rritual applicable and enforceable? If yes, then has Force One demonstrated “good cause” not to enforce the forum selection clause?

(d) Has Rritual demonstrated that British Columbia is clearly the convenient forum?

II. Background

[8] Rritual is a company incorporated under British Columbia’s Business Corporations Act, S.B.C. 2002, c. 57. Its registered and its records offices are in Vancouver. Its head office is also in Vancouver. Rritual trades on the Canadian Securities Exchange (“CSE”). The British Columbia Securities Commission jointly oversees the CSE with the Ontario Securities Commission.

[9] Rritual’s transfer agent with respect to the issuance of shares is located in British Columbia.

[10] Rritual operates a business of manufacturing and selling proprietary dietary and nutritional supplements and beverages which are plant-based, incorporating mushroom-based adaptogens.

[11] Rritual does not sell any products in Canada because it has yet to secure the requisite approvals and licences, including from Health Canada. It does not manufacture any products in Canada, nor does it store any products in Canada. Its suppliers of the food materials are all located outside of Canada.

[12] To date Rritual’s products are sold in the United States through both bricks and mortar stores and online on websites. All of Rritual’s revenues are generated outside of Canada.

[13] Rritual has no employees in Ontario, no inventory in Ontario, and no distributor, retailer or reseller of its products in Ontario.

[14] As admitted by Force One’s deponent and Chief Executor Officer, Anthony Rossi (“Rossi”), at all material times the only activities of Rritual in Canada, including Ontario, was in the nature of marketing and investor relations.

[15] Force One Marketing Corporation is a corporation incorporated under the laws of Ontario and is head quartered in North York, Ontario. Force One Capital is an unincorporated affiliate and the registered trade name of Force One Marketing Corporation. The Plaintiffs are collectively referred to as “Force One”.

[16] Force One provides services in Ontario related to marketing, brand recognition, investor relations, business growth and corporate advisory services. It uses its network of contacts to help its clients find investors and develop strategic business relationships.

[17] According to Force One, it was engaged by Rritual in Ontario as a strategic partner to develop business relationships, find investors, raise brand awareness and look at contacts in manufacturing and distribution for Rritual’s intended eventual roll out of its products in Ontario and throughout Canada.

[18] At the material times, Force One’s primary contacts were with Rritual’s original founders, Gurinder Sandu (“Sandu”) and Amandeep Gill (“Gill”) from Vancouver, British Columbia. Force One also had contact from time to time with Rritual’s former president, Dr. Mark Hart (“Dr. Hart”), who resides in London, Ontario. None of Sandu, Gill or Dr. Hart are currently affiliated with Rritual.

[19] The commercial relationship between Rritual and Force One was structured and/or informed by the following (alleged) contracts:

(i) An alleged oral agreement between the parties in or around June 2020, after which Force One began providing consulting services to Rritual as a “strategic partner”. Part of the consideration to be provided to Force One for the provision of its services was an option to purchase shares in Rritual at a founders’ rate of 2 cents (CDN) per share up to a maximum of one million shares (the “Oral Agreement”);

(ii) A Subscription Agreement signed only by Force One on June 15, 2020 relating to an option to purchase the above referenced shares (the “Subscription Agreement”) allegedly arising out of the Oral Agreement;

(iii) A Stock Option Agreement dated June 22, 2020, executed by the parties, which superceded the Subscription Agreement and provided Force One with the option to purchase the shares, subject to its terms and conditions (the “Stock Option Agreement”);

(iv) A Consulting Agreement executed by the parties on July 6, 2020 for services to be provided by Force One under a one-year fixed term contract and which set out performance based compensation which was separate from the stock options (the “Consulting Agreement”); and

(v) Rritual’s form document entitled an Omnibus Equity Incentive Plan dated June 23, 2020 (the “Plan”).

[20] Rritual terminated the Consulting Agreement on March 12, 2021 allegedly for cause. Rritual states that with the termination of the Consulting Agreement, Force One lost the right to exercise its stock options under the terms of the Stock Option Agreement.

[21] Force One nevertheless attempted to exercise the stock option rights under the Stock Option Agreement by sending a Notice to Exercise on two occasions; but the notices were rejected. Force One also disputes that Rritual had the right to terminate its Consulting Agreement for cause.

[22] Force One relied on the affidavits of Rossi, and Rritual relied on the affidavits of its current Chief Financial Officer, Robert Payment (“Payment”). Cross examinations of both Rossi and Payment were conducted.

III. Analysis

i. Has Rritual voluntarily attorned to Ontario’s jurisdiction?

[23] An Ontario court will have jurisdiction over a proceeding where the defendant has taken steps to defend the impugned action on the merits such as to evince an intention to voluntarily submit to the court’s jurisdiction. This is called consent-based jurisdiction. A finding of consent-based jurisdiction eliminates the need to examine whether Ontario can assume jurisdiction over the foreign defendant (Wolfe v. Pickar, 2011 ONCA 347, 332 D.L.R. (4th) 157, at paras. 43-44).

[24] This determination requires the exercise of discretion in determining whether the steps taken by the defendant are such as to demonstrate that it voluntarily attorned to the court’s jurisdiction.

[25] In this case, Force One submits that, by taking the following steps, Rritual voluntarily attorned to the jurisdiction of this court:

(a) it filed a Notice of Intent to Defend; and

(b) it delivered a Notice of Request to Inspect two documents that Force One says has nothing to do with the jurisdiction motion and everything to do with the merits of its claim.

[26] Force One responded to the Request to Inspect which related to the two Notices of Exercise provided by Force One to exercise its stock options.

[27] Under r. 17.06, a party may move for an order staying the proceedings before delivering a Statement of Defence, Notice of Intent to Defence, or Notice of Appearance.

[28] While delivery of a notice of intent may be evidence of an intention to engage in the merits of the claim, it is generally not sufficient in and of itself to demonstrate attornment (Lazer-Tech Ltd. v. Dejeray, 2010 ONSC 1662, at para. 36). In Lazer-Tech, at paras. 35 and 37, the court cites a number of cases in which this court has declined to find consent-based jurisdiction solely on the basis of the delivery of a notice of intent to defend.

[29] By way of chronology, this action was started by way of Notice of Action issued on June 2, 2021. The Notice of Action and Statement of Claim was served upon Rritual on July 26, 2021. Rritual delivered a Notice of Intent to Defend on August 23, 2021. The Statement of Defence would have been due on September 14, 2021. On September 2, 2021 Rritual delivered a Notice of Request to Inspect the two Notices to Exercise the stock options. On the same day, Force One complied with the Notice of Request. On September 13, 2021, the day before the Statement of Defence was due, Rritual gave notice of its intention to bring this motion challenging this court’s jurisdiction. The Notice of Motion is dated October 26, 2021. In my view, Rritual expressed an intention to challenge this jurisdiction in a timely manner.

[30] A Notice of Request to Inspect is delivered under r. 30.02(2). This is a form of documentary discovery and compels production for inspection of a document that is related to “any matter in issue in an action”.

[31] However, the two Notices to Exercise in question were also specifically pleaded in the Statement of Claim and Notice of Action. Therefore, those documents are deemed incorporated by reference and therefore part of the pleading (r. 25.06(7)).

[32] In my view this is not a clear-cut case of Rritual engaging in the merits of the claim sufficient to support a finding of consent-based attornment. In other cases, the courts have required much more in the way of demonstrating that a defendant was prepared to invoke the jurisdiction of the court to assist it, and then after having a negative result, raised a jurisdiction argument, or taken more substantial steps towards the defence of a matter such as delivering a statement of defence and conducting examinations for discovery.

[33] As stated, the Notice of Request to Inspect related to two documents that were specifically referenced in the Notice of Action and Statement of Claim. Therefore they formed part of the pleading, and Rritual was entitled to view them as part of the pleadings.

[34] Accordingly, the delivery of a Notice of Intent to Defend, and Notice of Request to Inspect documents that were incorporated by reference into the pleadings are not sufficient conduct engaging the merits of the claim to warrant a finding of consent-based jurisdiction in the circumstances of this matter.

ii. Does Ontario have Jurisdiction Simpliciter?

[35] The Court of Appeal in 2249659 Ontario Ltd. v. Sparkasse Siegen, 2013 ONCA 354, 115 O.R. (3d) 241, at para. 25, provided that where a defendant is relying on a forum selection clause in a contract to challenge jurisdiction, the court must nonetheless first engage in a jurisdiction simpliciter analysis.

[36] Accordingly, a forum selection clause is not relevant to the court’s jurisdiction simpliciter analysis, contrary to the submissions of Rritual which urged this court to first determine whether the forum selection clause was valid and enforceable. Rather this type of clause is relevant to whether the court ought to exercise its jurisdiction and enforce the choice of forum agreed to by the parties for resolution of the subject dispute:

A forum selection clause applicable to the relevant litigation identifying a forum other than Ontario as the forum of choice cannot deprive Ontario of jurisdiction simpliciter. A forum selection clause is relevant to whether Ontario should exercise its jurisdiction and not whether Ontario has jurisdiction (Sparkasse, at para. 25).

[37] In order to determine this issue, the plaintiff must persuade the court that there is a real and substantial connection between the claims asserted and Ontario. In Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, at paras. 79, 86, and 90, the court set out presumptive connecting factors which prima facie establish this jurisdiction. The presumptive connecting factors are rebuttable.

[38] In this case, the following presumptive connecting factors (established in Van Breda) are advanced by Force One:

(a) Rritual carries on business in Ontario;

(b) A contract connected with the dispute was made in Ontario;

[39] Force One also relies on an additional presumptive factor that it says arises from Benefact Consulting Group Inc. v. Endura Manufacturing Company Ltd, 2016 ONSC 3645, at paras. 49 and 52, which Force One characterized as follows: the substance of the contract was for work to be done in Ontario.

[40] The initial onus on the plaintiff is to demonstrate on the evidence that there is a good arguable case supporting the existence of one or more of the presumptive connecting factors (Ontario v. Rothmans Inc., 2013 ONCA 353, 115 O.R. (3d) 561, at paras. 53-54; Van Breda at para. 100). The evidentiary threshold is not high. If the plaintiff demonstrates that at least one presumptive connecting factors exist, then the onus shifts to the defendant to rebut that factor by showing that it demonstrates a weak connection between the dispute and Ontario.

(a) Does Rritual carry on business in Ontario?

[41] Force One must demonstrate that Rritual has more than a virtual presence in Ontario. In order to establish that Rritual was carrying on business in Ontario, it must demonstrate that Rritual has an actual or physical presence. This is to avoid what some courts, including the Supreme Court of Canada in Z.I. Pompey Industrie v. ECU‑Line N.V., 2003 SCC 27, [2003] 1 S.C.R. 450, have characterized as establishing a “universal jurisdiction” which could unjustifiably broaden a court’s jurisdiction to all locations in which any individual worked remotely from or could access a product or service from the web (Van Breda at para. 87 , Sgromo v. Imperial Toy, LLC, 2017 ONSC 3978, 72 B.L.R. (5th) 279, at paras. 13-17, aff’d 2018 ONCA 5, 78 B.L.R. (5th) 37).

[42] Furthermore, it is not enough to establish physical presence by virtue of the fact alone that a company’s products may be marketed, advertised or sold in various jurisdictions (Harrowand S.I. v. DeWind Turbines Ltd., 2014 ONSC 2014 at para. 39, citing Van Breda at para. 87, rev’d 2014 CarswellOnt 19177 (Div. Ct.)).

[43] Force One says that the following factors establish that Rritual has a physical presence in Ontario:

(a) Its engagement of consultants in Ontario for sales and marketing, e-commerce and search engine optimization in Ontario; and

(b) The location of its former president and some current directors and chair of the board who work from private offices located in Ontario.

[44] Rritual counters that it has no physical presence in Ontario. At best, it has a virtual presence as evidenced by the fact that it has no office, employees, products, sales, assets, bank accounts or property located in Ontario. Rather, what it has is a desire to market its products in the future in Ontario, once it receives the appropriate government approvals and licenses (which it still has not) and to secure additional investors in its business from Ontario. Towards this end, Rritual engaged Force One to connect it with potential investors, marketing opportunities and strategic partners to grow its yet to be established business in Ontario.

[45] Rritual agrees that Force One was making efforts to locate investors and marketing opportunities in Ontario on its behalf under the Consulting Agreement. It says that it was justified in terminating the Consulting Agreement due to alleged misrepresentations by Force One as revealed in its motion materials.

[46] In order to establish that a company carries on business in a particular province, the domestic plaintiff must demonstrate a good arguable case supporting the position that the foreign defendant has an actual or physical presence in the province. This physical presence can be demonstrated by showing that the defendant regularly visits the province for business purposes or maintains an office in the province (Van Breda, at para. 87).

[47] On the other hand, it is insufficient to demonstrate that the company only has a virtual presence in the province; for example, through advertising in that province. Such a finding could lead to a scenario in which every jurisdiction in which a website is accessed for business purposes could assert jurisdiction simpliciter, leading to what the Supreme Court of Canada in Van Breda, at para. 87, called “universal jurisdiction”:

Carrying on business in the jurisdiction may also be considered an appropriate connecting factor. But considering it to be one may raise more difficult issues. Resolving those issues may require some caution in order to avoid creating what would amount to forms of universal jurisdiction in respect of tort claims arising out of certain categories of business or commercial activity. Active advertising in the jurisdiction or, for example, the fact that a Web site can be accessed from the jurisdiction would not suffice to establish that the defendant is carrying on business there. The notion of carrying on business requires some form of actual, not only virtual, presence in the jurisdiction, such as maintaining an office there or regularly visiting the territory of the particular jurisdiction.

[48] Force One states that Rritual has a physical presence in Ontario by virtue of the fact that, at the material time and at the time of the motion, Rritual had certain officers and directors residing in Ontario. Notably, its former President, Dr. Hart, its consultants (Force One and now others), the current Chair of the Board, and certain directors reside and discharge their corporate obligations owed to Rritual from their home bases in Ontario. Furthermore, Force One emphasizes that it was carrying on business on behalf of Rritual in Ontario in the form of performing consulting services.

[49] Based on the evidence, I find that Force One has not demonstrated a good arguable case that Rritual carries on business in Ontario in the sense of having an actual or physical presence as outlined in Van Breda. The fact that Rritual has individuals residing in Ontario who are part of Rritual’s corporate governing structure is not, in my view, sufficient to give rise to a good arguable case that Rritual carries on business in Ontario. There was no evidence from Dr. Hart or any of the other directors or persons working for Rritual before the court to indicate whether or not they were actually transacting business in Ontario for Rritual as opposed to carrying out their corporate duties remotely. The evidence as a whole suggests that those individuals were working remotely. Furthermore, even if these individuals (consultants aside, who are not employees, officers or directors of Rritual) do work from private offices in Ontario, this is not the same as Rritual establishing and operating an office (and therefore having a physical presence) in Ontario.

[50] At para. 122 of Van Breda, the Supreme Court of Canada recognized that where a foreign defendant’s representatives regularly visit the jurisdiction to carry on commercial activities, in that case promoting the sales of its hotel vacation packages, that was evidence of carrying on business in Ontario. However, in that case, the commercial activities “went well beyond promoting a brand and advertising.” Furthermore, the defendant had a physical presence in the form of an office in Ontario and its witness admitted that it was in the business of carrying out activities in Canada. It was the combination of these facts that together were sufficient to satisfy this presumptive connecting factor.

[51] Force One was primarily retained to source potential investors and provide potential marketing opportunities and strategic partnerships (such as introducing celebrities to advertise Rritual’s products) with Rritual. What Rritual was attempting to do through its activities via Force One was to both secure investors and develop a strategy for a future business presence in Ontario for when and if it receives the requisite permission to market and sell its products in Ontario and elsewhere in Canada. This is insufficient to meet the presumptive connecting factor of carrying on business in Ontario.

[52] The fact that Rritual has engaged three other entities in Ontario to provide services since May of 2020 does not assist Force One with its submission since they appear to be similar to the services that were to be provided by Force One under the Consulting Agreement. These service contracts were described as providing the service of, variably, search engine optimization, sales and marketing, and e-commerce. All the court has is the bare description of these service contracts. Based on what is in the evidentiary record, these similarly do not support a finding of a good arguable case that Rritual carries on business in Ontario.

[53] As stated in Harrowand S.I., at para. 39, a desire to carry on business in the impugned jurisdiction is not sufficient to establish that the foreign defendant is in fact carrying on business in the jurisdiction, within the meaning of that presumptive connecting factor established in Van Breda. Mere advertising for products sold elsewhere is not sufficient, nor is the fact that a company has investors who happen to be resident in the challenged jurisdiction.

[54] Even if these types of marketing, investor and strategic partnership sourcing activities could constitute carrying on business in Ontario, I find that Rritual rebutted this presumptive connecting factor by establishing that it is a weak connection between the dispute and Ontario, at best (Van Breda, at para. 95).

(b) Were any of the contracts connected with the dispute made in Ontario?

[55] Force One submits that each of the alleged Oral Agreement, Stock Option Agreement and Consulting Agreement were made in Ontario.

[56] The well-established law of the location of the formation of a contract is set out in Eastern Power Ltd v. Azienda Communale Energia & Ambiente (1999), 1999 CanLII 3785 (ON CA), 178 DLR (4th) 409 (Ont. C.A.) at paras. 21-22: “[t]he general rule of contract law is that a contract is made in the location where the offeror receives notification of the offeree’s acceptance”. This principle was extended in Eastern Power to extend to instantaneous communications, in that case dealing with facsimile transmissions.

[57] In Inukshuk Wireless Partnership v. 4253311 Canada Inc., 2013 ONSC 5631, 117 O.R. (3d) 206, at paras. 24-25, this principle was applied to email communications such that it was the location by the offeror of the receipt of the email from the offeree accepting the offer that determined where the contract was formed (in that case in the offices of the offeror). While this is not an absolute rule, there was no good reason advanced for displacing it in the circumstances of this case.

[58] Dealing first with the alleged Oral Agreement, Force One submits that it issued an oral offer to provide services by way of a telephone call initiated in Ontario. Force One states that Rritual communicated acceptance of the offer to Force One during that telephone call and accordingly acceptance was received in Ontario. Force One then commenced providing services in reliance of that oral agreement. However, the limited evidence in the record does not persuade me that there was an enforceable oral agreement since all of the essential constituent elements of the contract had not been consummated. Rather, only some of the material terms were expressed orally, which were then reflected and refined in the Subscription Agreement. The Subscription Agreement was, in turn, “converted” (according to Rossi) into the Stock Option Agreement. By “converted”, I take it to mean that the Subscription Agreement was superceded by the Stock Option Agreement. The Subscription Agreement was only signed by Force One.

[59] Furthermore, there is no reference in the Statement of Claim or Notice of Action to the alleged Oral Agreement, much less a claim arising from a breach of contract or tortious conduct in relation to the Oral Agreement. Even accounting for the deficiencies in the pleadings, the evidence falls far short of establishing a good arguable case that the essential elements of a contract were concluded or the location that the contract was formed in relation to the Oral Agreement. While there may have been discussions concerning the terms of a stock option forming part of the consideration for services rendered by Force One and originally reflected in the Subscription Agreement, the agreed to and binding terms of this understanding are reflected in the subsequently fully executed Stock Option Agreement.

[60] This leaves the Stock Option Agreement and the Consulting Agreement, both of which were fully executed and agreed to be in force at the material times and forms the heart of this dispute. In addition, Rritual relies on the Omnibus Equity Incentive Plan dated June 23, 2020 (the “Plan”) which was ostensibly incorporated by reference into the Stock Option Agreement.

[61] The Stock Option Agreement was prepared by Rritual. It was sent, unsigned, by email from Rritual’s office in British Columbia to Force One at its office in Ontario on June 20, 2020. Force One signed the Stock Option Agreement and emailed it to Rritual’s office in British Columbia at 1:07 p.m. EST on June 22, 2020. Rritual then signed the agreement and delivered it to Force One’s office by email on June 22, 2020 at 1:31 p.m. EST.

[62] Force One submits that the Stock Option Agreement required the signatures of both parties. Accordingly, since Force One received the fully executed agreement by email to its office in Ontario, the contract was formed in Ontario.

[63] There is no dispute that for purposes of the Stock Option Agreement, Rritual was the offeror and Force One was the offeree. Accordingly, consistent with the general rule that the contract is made in the jurisdiction in which the acceptance is received by the offeror, this contract was formed in British Columbia.

[64] Force One’s submission is premised on the proposition that two signatures were required in order for the Stock Option Agreement to be binding. First, I am not persuaded on the evidence that had Rritual declined to sign the Stock Option Agreement, there would have been no binding deal. Rritual made a written offer and Force One accepted that offer. The essential terms of the agreement were reflected in the Stock Option Agreement. In any event, if Rritual’s signature was an essential element of the Stock Option Agreement, that act occurred in British Columbia. Under either scenario, the Stock Option Agreement was formed in British Columbia.

[65] On the other hand, it is uncontested that the Consulting Agreement was formed in Ontario. The Consulting Agreement was prepared by Force One, as offeror, and sent by email to Rritual, as offeree. Rritual accepted this offer, signed the agreement, and delivered it to Force One by email. The acceptance was received by Force One in Ontario.

[66] Therefore Force One has established a good arguable case that a contract connected with the dispute was made in Ontario.

[67] The onus shifts to Rritual to rebut this presumptive connecting factor by demonstrating that it only shows a weak connection between the dispute and Ontario.

[68] Force One has put the Consulting Agreement in issue in its pleadings in the context of denying that Rritual had the right to terminate it for cause. Rritual has also put the Consulting Agreement at issue in its motion materials. The Notice of Motion, and Payment’s affidavit, allege that Force One was in breach of the Consulting Agreement, justifying termination with cause with the consequence of forfeiture of Force One’s right to exercise the stock options under the Stock Option Agreement.

[69] In its Statement of Claim, Force One claims relief in relation to the Stock Option Agreement. A close examination of the statement of claim demonstrates that the genesis of the causes of action are based in the Stock Option Agreement, including the alleged breach of the duty of good faith and honest performance. The statement of claim references the Consulting Agreement to rebut Rritual’s allegations that Force One’s alleged misrepresentation and breach of the Consulting Agreement justified termination for cause with the resultant alleged consequence that Force One was disentitled from exercising its right to purchase shares under the Stock Option Agreement.

[70] The Stock Option Agreement, in its preamble, references the fact that Force One is providing consulting services to it and Rritual wishes to provide stock options as an “incentive for the provision or continued provision of the Services” by Force One. It does not reference the Consulting Agreement.

[71] The Consulting Agreement was formed in Ontario and is inextricably connected with the dispute in terms of Rritual’s anticipated defence which will be based on alleged misrepresentations and breach of the Consulting Agreement to justify its refusal to redeem the stock options. Rritual has put into issue the Consulting Agreement seemingly at the heart of its defence. Therefore, notwithstanding that the alleged breach and tortious conduct is with respect to the Stock Option Agreement, which was formed in British Columbia, the Consulting Agreement will be a key part of the factual matrix that a court will have to consider in the course of resolving Force One’s claims and more to the point, Rritual’s defences. The Stock Option Agreement and the Consulting Agreement are inextricably linked and will underpin the resolution of Force One’s claims.

[72] In my view, Rritual has not rebutted this presumptive connecting factor. Rather, it has, by its anticipated defence, made the Consulting Agreement central to the resolution of the dispute and accordingly there is a real and substantial connection to Ontario. The importance of the Consulting Agreement in relation to Force One’s causes of action in relation to its alleged right to have exercised its notice to redeem the stock options is also highlighted by Force One in its own pleadings.

(c) Was a tort or breach of contract committed in Ontario?

[73] As evident in the pleadings, both the tort and breach of contract alleged is in relation to the Stock Option Agreement. The focus in this branch of the analysis is on the causes of action alleged, not the defences raised by Rritual.

[74] Force One submits that as the substance of its work under the Consulting Agreement was to be done in Ontario, therefore the alleged tort and breach of contract is connected with a contract made in Ontario. However, the tort and breach of contract alleged in the pleadings clearly relates to the Stock Option Agreement which was formed in British Columbia.

[75] Force One relies on Benefact Consulting Group Inc. v Endura Manufacturing Company, at paras. 49 and 52, for the proposition that “the substance of the contract was for work to be done in Ontario was held to be a [new] presumptive factor” (Force One’s factum, at para. 62).

[76] In Benefact, the court found that the only presumptive connecting factor at play was where the contract was made. In that context, the court held, at para. 49, that “the court should focus on where the substance of the cont[r]act is being performed”. The court further held, at para. 52, that the substance of the contract was to be performed in Ontario and that this vested the court with jurisdiction simpliciter. However, in that case the court ultimately dismissed the defendant’s motion to stay on the basis of a forum non conveniens analysis which, in the end, was heavily influenced by the court’s finding that the forum selection clause was binding and enforceable (and ought to be enforced) declaring that the parties attorn to the jurisdiction of the Ontario courts. Furthermore, all of the contracts at issue were made in Ontario relating to work done in Ontario. I do not find this case to be of much assistance to Force One.

[77] In my view, the causes of action relate to Rritual’s refusal to honour Force One’s notice to exercise the options pursuant to the Stock Option Agreement. The shares in question are located in British Columbia and belong to a company incorporated under the laws of British Columbia. Rritual’s transfer agent with respect to the issuance of its shares is in British Columbia and Rritual’s principal regulator is the British Columbia Securities Commission. Furthermore, the refusal to honour the notice and issue the shares occurred in British Columbia where Rritual’s registered head office (even if that address is associated with a law firm) is located.

[78] The wrongful conduct alleged by Rritual is in relation to Force One’s alleged breach of Ontario’s securities law and that occurred in Ontario. However, this is not a cause of action but rather a defence.

[79] Force One also submitted that it was seeking damages arising from breach of the Consulting Agreement. However, its Statement of Claim does not support this submission.

[80] Force One has failed to demonstrate a good arguable case that the alleged torts or breaches of contract occurred in Ontario.

(d) Conclusion as to jurisdiction simpliciter

[81] In light of my finding that there is a good arguable case that the presumptive connecting factor of a dispute connected with a contract made in Ontario establishes a real and substantial connection between the dispute and Ontario, this court has jurisdiction simpliciter.

iii. Is the Forum Selection Clause Applicable and Enforceable to the Subject Claims?

[82] Having found that Ontario has jurisdiction simpliciter, the court will have to determine whether this court ought to exercise its jurisdiction to hear this matter through the forum non conveniens analysis.

[83] However, as a first step, the Court of Appeal in Sparkasse emphasized that the analysis for determining whether a forum selection clause will be enforced attracts a distinct test from the forum non conveniens test, as outlined by the Supreme Court of Canada in Pompey. In Sparkesse at para. 40, the court quoted from its decision in Expedition Helicopters Inc. v Honeywell Inc., 2010 ONCA 351, 100 O.R. (3d) 241, at para. 11:

Rather, the forum selection clause pervades the [forum non conveniens] analysis and must be given full weight in the consideration of other factors. It is not enough for the plaintiff to establish a “strong” case that Ontario is the more convenient forum. The plaintiff must show “strong cause” that the case is exceptional, and the forum selection clause should not be enforced.

[84] In Sparkasse, at para. 41, the court stated,

The requirement that the plaintiff show “strong cause” for litigating in a forum other than the forum agreed upon presumes that there is an agreement that contains a clear forum selection clause, and that the forum selection clause, by its terms, applies to the litigation that the plaintiff seeks to bring in Ontario…

[85] Rritual relies on the existence of a forum selection clause in the superceded Subscription Agreement, and the Omnibus Equity Incentive Plan.

[86] The forum selection clause contained in the Subscription Agreement reads:

This Agreement and all matters related hereto or arising herefrom are governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein. The subscriber (Force One) in its personal or corporate capacity and, if applicable, on behalf of each beneficial or undisclosed purchaser for whom it is acting, irrevocably attorns to the exclusive jurisdiction of the Province of British Columbia for all matters related to, or arising from, this Agreement.

[87] As stated, however, this Agreement was superceded by the Stock Option Agreement. Therefore, it is of some relevance as evidence demonstrating that Rossi, who did sign this Agreement, was aware of this type of clause being potentially applicable to the commercial transaction between Rritual and Force One.

[88] Of more import is the Omnibus Equity Incentive Plan. Article 1 of the Plan sets out its purpose:

1.1 Purpose

The purpose of this Plan is to provide the Corporation with a share-related mechanism to attract, retain and motivate qualified Directors, Employees and Consultants of the Corporation and its subsidiaries, to reward such of those Directors, Employees and Consultants as may be granted Awards under this Plan by the Board from time to time for their contribution toward the long-term goals and success of the Corporation and to enable and encourage such Directors, Employees and Consultants to acquire Shares as long-term investments and proprietary interests in the Corporation.

For purposes of this motion, the parties acknowledge that the “Corporation” is Rritual and the “Consultants” includes Force One. However, this Plan was one of general application to all commercial transactions in which Rritual wished to provide stock options as an incentive to various actors.

[89] This document defines the Omnibus Equity Incentive Plan, as may be amended from time to time, as the “Plan”. Nowhere in this document is there reference to a “2020 stock option plan”. This is noteworthy as the Stock Option Agreement only refers to a “2020 stock option plan”.

[90] As well, the Plan provides for forfeiture of a Consultant’s entitlement to exercise its stock options if the related consulting agreement is terminated for cause or the term for exercising the stock option has expired (Article 9).

[91] The Plan also contains a forum selection clause which was the central focus of this motion at Article 13.16:

Submission to Jurisdiction

The Corporation and each Participant irrevocably submits to the exclusive jurisdiction of the courts of competent jurisdiction in the Province of British Columbia in respect of any action or proceeding relating in any way to the Plan, including, without limitation, with respect to the grant of Awards and any issuance of Shares made in accordance with the Plan.

[92] In addition, Article 13.15 of the Plan has a choice of laws provision in which the governing law of the Plan and all matters to which reference is made therein is British Columbia and the federal laws of Canada.

[93] Rritual acknowledges that the claims asserted by Force One are based in the Stock Option Agreement, but relies on the following provision of the Stock Option Agreement to support its claim that it incorporated the terms of the Omnibus Equity Incentive Plan, including the forum selection clause, by reference:

Reference is made to the Plan for particulars of the rights and obligations of the Optionee [Force One] and the Corporation [Rritual] in respect of:

(a) the terms and conditions on which the Option is granted; and

(b) a consolidation or subdivision of the Corporation’s share capital or an amalgamation or merger,

all to the same effect as if the provisions of the Plan were set out in this Agreement and to all of which the Optionee assents.

[94] A “Plan”, in turn, is referred to in the preamble of the Stock Option Agreement as follows:

A. The Corporation’s board of directors (the “Board”) has approved and adopted the 2020 stock option plan (the “Plan”), whereby the Board is authorized to grant stock options to purchase the Common Shares of the Corporation to directors, officers, employees and consultants of the Corporation and such other persons as the Plan Administrator selects in accordance with the terms of the Plan;

[95] The preamble in the Stock Option Agreement also states that the services to be provided by Force One to Rritual as a consultant and identifies the subject stock options as an “incentive for the provision or continued provision of the Services by the Optionee”.

[96] Rritual also points to a governing law provision in the Consulting Agreement (drafted by Force One) which similarly provides for that agreement to be governed by and construed in accordance with the laws of British Columbia in support its position that the disputes under the subject contracts were understood by Force One to be under the exclusive jurisdiction of the British Columbia courts.

[97] Rossi deposed that he never received a copy of any Plan despite asking for a copy, and Rritual has not adduced evidence demonstrating the contrary. Notably, neither Gill nor Sandu have tendered affidavits or provided any other evidence in relation to this motion and yet they are the only individuals on behalf of Rritual to have direct knowledge of the contractual negotiations and execution of the Stock Option Agreement and Consulting Agreement. Sandu signed both of these agreements on behalf of Rritual. In addition, Rritual has not adduced any direct evidence from any of the Directors who were in place at the time the Plan was ostensibly adopted and approved by Rritual and therefore available for production to Force One or provided evidence as to whether or not this is the document that was incorporated into the Stock Option Agreement.

[98] Furthermore, on the face of the two documents, the Plan is dated the day after the Stock Option Plan was signed. There is no evidence from Rritual suggesting that it was in place before it was dated.

(a) Analysis re applicability and enforceability of the forum selection clause

[99] Courts will enforce forum selection clauses, providing the clause in question is applicable to the dispute and enforceable, or unless there is “strong cause” justifying the court exercising its discretion to decline to enforce it (Pompey, at para. 21).

[100] The Court must first determine whether the forum selection clause applies to the subject dispute. If it does then the court must determine whether it is enforceable under contractual principles.

[101] In Pompey, at paras. 21 and 31, the Supreme Court of Canada provided that the presence of a forum selection clause attracts a distinct test from the forum non conveniens analysis, and one “where the starting point is that parties should be held to their bargain, and where the plaintiff has the burden of proof showing why a stay should not be granted”. Furthermore, the court is not to delve into the substantive issues underlying the dispute.

[102] The Court, in Pompey, at para. 31, also provided that only after it is determined that the subject contract containing the forum selection clause is found to be enforceable and otherwise binds the parties that the burden shifts from the foreign defendant to the plaintiff.

[103] The reasons commonly recognized as supporting a finding that the subject contract is not binding are either based in public policy (Douez v. Facebook, Inc., 2017 SCC 33, [2017] 1 S.C.R. 751), or where the contract was the product of fraud or an exploitative unequal bargaining relationship between the parties (Pompey, para 31)

[104] The Supreme Court of Canada in Douez sets out a helpful context for the assessment of forum selection clauses, emphasizing that forum selection clauses are “critical components of private international law”. This overarching recognition is balanced by the Court, however, with the following concerns:

(a) That forum selection clauses “divert public adjudication of matters out of the provinces, and court adjudication in each province is a public good” and “[e]veryone has a right to bring claims before the courts, and these courts have an obligation to hear and determine these matters” (para. 25);

(b) The forum selection clauses “do not just affect the parties to the contract. They implicate the court as well, and with it, the court’s obligation to hear matters that are properly before it. In this way, forum selection clauses are a ‘unique category of contracts’” (para. 26);

(c) While parties are “generally” held to their bargain and are bound by the “enforceable terms” of their contract, “because forum selection clauses encroach on the public sphere of adjudication, Canadian courts do not simply enforce them like any other clause. In common law provinces, a forum selection clause cannot bind a court or interfere with a court’s jurisdiction” (para. 27).

[105] I will assume (for the moment) that the Stock Option Agreement was intended by Rritual to incorporate by reference the produced document called the "Omnibus Equity Incentive Plan” and thus the Plan’s provisions inform the interpretation of the Stock Option Agreement (Fuller v. Aphria Inc., 2020 ONCA 403, 4 B.L.R. (6th) 161, at paras. 41-42). This is made explicit in various sections of the Stock Option Agreement, including section 19:

The terms of the Option are subject to the provisions of the Plan, as the same may from time to time be amended, and any inconsistencies between this Agreement and the Plan, will be governed by the provisions of the Plan.

[106] Rritual relies on Fuller. However, in Fuller, the court considered how to resolve on a contractual basis the existence of two inconsistent clauses, one of which was contained in the “host” contract, and the other of which was contained in the contract that was incorporated by reference into the host contract. It did not deal with a forum selection clause. The court resolved the conflict using contractual principles and found that the provision in the host contract (which was favourable to the plaintiff) applied. However, in the case at bar, the Stock Option Agreement (the host contract) does not contain a separate, much less conflicting, forum selection clause.

[107] As stated, the burden is on Rritual, as the party attempting to enforce the forum selection clause, to prove that it is valid, clear and enforceable, and that it applies to the dispute at issue (Pompey at para. 39; Loan Away Inc. v. Facebook Canada Ltd., 2021 ONCA 432, at para. 21).

[108] Once Rritual establishes these criteria, the burden shifts to Force One to show “strong cause” why the clause ought not be enforced (Douez at paras. 28-29, per Karakatsanis J.; Loan Away, at para. 21).

[109] Assuming, without deciding for this part of the analysis, that the Omnibus Equity Incentive Plan is incorporated by reference into the Stock Option Agreement, it is clear that the forum selection clause advanced by Rritual would apply to the dispute raised by Force One as it directly relates to its asserted right to exercise options to buy shares in Rritual under the Stock Option Agreement. However, the forum selection clause does not clearly apply to disputes arising out of the Consulting Agreement which is silent as to any forum designation.

[110] Furthermore, Rritual must satisfy the court that the forum selection clause it is relying on is enforceable under contractual principles.

[111] Force One submits that as this clause, drawn from a document to be incorporated by reference into the Stock Option Agreement, was not provided to it, much less drawn to its attention, it is unenforceable.

[112] In Morgan Trust Co. of Canada v. Falloncrest Financial Corp. (2006), 2006 CanLII 38728 (ON CA), 218 O.A.C. 71 (C.A.), at para. 26, the Ontario Court of Appeal held:

Incorporation of terms into a contract by reference to an outside document should not occur unless notice of the terms to be incorporated has been provided in a manner that would lead the reasonable person to conclude that they were to be incorporated in the contract: S.M. Waddams, The Law of Contracts, 5 ed. (Toronto: Canada Law Book Inc., 2005) at 347.

[113] Force One also submits that the Plan relied upon by Rritual has not been proven to be the “Plan” referenced in the Stock Option Agreement. There is no evidence from Rritual explaining when the Plan it produced was approved or why it is dated after the Stock Option Agreement. On cross examination, Payment admitted that:

(i) Other than Sandu and Gill, he does not know of anyone privy to the negotiations or the execution of any of the agreements at issue;

(ii) He does not know where he obtained a copy of the Stock Option Agreement which he produced, but assumed it came from Rossi;

(iii) He does not have a copy of the emails from Sandu pertaining to the executed agreements;

(iv) The subject stock options are not in Rritual’s record;

(v) Rritual did not become aware of the stock options until Force One provided its notice to exercise.

[114] Rritual’s deponent, Payment, did not join Rritual until after any of the alleged the agreements were drafted and, in the case of the Stock Option Agreement and the Consulting Agreement, signed.

[115] There is inadequate evidence before the court relating to the authenticity of the Plan as the Plan in place at the time of the execution of the Stock Option Agreement, and therefore whether the forum selection clause relied upon was incorporated by reference.

[116] In addition, no corporate resolutions or minutes were produced by Rritual regarding the approval of the Plan thereby enhancing the gap left in the evidence by Rritual’s failure to adduce evidence from Gill or Sandu or anyone demonstrating whether the Plan before the court is the authentic plan in place at the time of the execution of the Stock Option Agreement or was adopted subsequently by Force One once it was approved by Rritual.

[117] There is no reference in the terms of the Stock Option Agreement itself to the fact that the Plan has a forum selection clause. It does however reference other matters that derive from the Plan such as section 13:

Reference is made to the Plan for particulars of the rights and obligations of the Optionee and the Corporation in respect of:

(a) The terms and conditions on which the Option is granted; and

(b) A consolidation or subdivision of the Corporation’s share capital or an amalgamation or merger,

All to the same effect as if the provisions of the Plan were set out in this Agreement and to all of which the Optionee assents.

[118] To further illustrate this evidentiary gap, Payment’s affidavit devotes a scant two paragraphs in his affidavit to the Plan, the first of which simply identifies and attaches a copy of the Plan, and the second of which quotes the choice of law and forum selection provisions of the Plan. While Payment deposes that Rritual “established” the Plan, no details are provided relating to the establishment of the Plan.

[119] More to the point, there is no evidence to rebut Rossi’s assertion that he and no one on behalf of Force One was told of the forum selection clause in the Plan or its applicability to disputes arising from the Stock Option Agreement. At best, Force One was alerted to the possibility of a forum selection clause by virtue of the Subscription Agreement which was superceded by the Stock Option Agreement that was then silent with respect to an agreed upon forum for dispute resolution. As stated by the Court of Appeal in Tilden-Rent-a-Car v. Clendenning (1978), 1978 CanLII 1446 (ON CA), 18 O.R. (2d) 601 (C.A.):

In modern commercial practice, many standard form printed documents are signed without being read or understood. In many cases the parties seeking to rely on the terms of the contract know or ought to know that the signature of a party to the contract does not represent the true intention of the signer, and that the party signing is unaware of the stringent and onerous provisions which the standard form contains. Under such circumstances, I am of the opinion that the party seeking to rely on such terms should not be able to do so in the absence of first having taken reasonable measures to draw such terms to the attention of the other party, and, in the absence of such reasonable measures, it is not necessary for the party denying knowledge of such terms to prove either fraud, misrepresentation or non est factum.

[120] The Plan was not negotiated as between Rritual and Force One. Rather, assuming its validity, it was a document drafted by Rritual to be of general application to these types of equity incentive arrangements that was imposed on Force One through incorporation by reference to the Stock Option Agreement, the latter of which was negotiated between the two corporations. The Plan is analogous to the type of standard form referred to in Tilden. Given the fact that

(i) the Consulting Agreement was formed in Ontario,

(ii) the services similarly were to be performed in part at least in Ontario,

(iii) the inextricable relationship between the Stock Option Agreement and the Consulting Agreement,

(iv) the lack of a forum selection clause in the Consulting Agreement,

(v) Payment’s admission that the option to purchase stocks under the Stock Option Agreement was consideration for Force One’s provision of services under the Consulting Agreement, and

(vi) in Douez, the Supreme Court of Canada’s characterization of forum selection clause as a unique form of contract,

Rritual ought to have drawn the forum selection clause in the Plan to Force One’s attention at or around the time that the Stock Option Agreement was signed or obtained Force One’s express consent to this clause subsequently. It did not.

[121] Rritual submits that it does not lie in the mouth of Force One to disavow itself of the forum selection clause, and yet rely on other sections of the Plan in support of its claim for shares under the Stock Option Agreement. Furthermore, Rritual says that Force One could have asked for a copy of the Plan but did not do so until this dispute developed. However, this argument does not account for the fact that, based on the evidentiary record before me, there is a good arguable case that the Plan produced and relied upon by Rritual is dated the day after the execution of the Stock Option Agreement. Accordingly, on the face of the Plan, Force One could not have availed itself of the Plan prior to or at the time of signing the Stock Option Agreement. Furthermore, Rossi’s evidence is that he may have asked for it during a telephone call but a copy was never provided to Force One.

[122] Rritual relies on Fraser Jewellers (1982) Ltd. v. Dominion Electric Protection Co. (1997), 1997 CanLII 4452 (ON CA), 34 O.R. (3d) 1, at para. 30, for the proposition that clauses in contracts will be enforceable even where the challenging party failed to read them. However, in Fraser Jewellers, there was no suggestion that the impugned clause was not available to the challenging party on the face of the contract it had received. The defendant simply failed to take the care to read the contract which it had. In the case before me, the forum selection clause is in a different document and dated the day after the Stock Option Agreement was signed. Neither the Plan nor the forum selection clause within it was produced to Force One prior to or at the time of signing of the Stock Option Agreement. In addition, on the evidentiary record before me, there is a good arguable case that the existence of a forum selection clause was not brought to Force One’s attention until this litigation was commenced.

[123] Failing to provide Force One with the specific notice of the forum selection clause (or even the fact of one) in the Plan does not lead the reasonable person to conclude that it was to be incorporated into the Stock Option Agreement. At its worst, it is arguable that Rritual has failed to demonstrate that the Plan it is relying upon is even the “Plan” referenced in the Stock Option Agreement as the “2020 stock option plan”.

[124] In my view, the forum selection clause is not enforceable. It was incumbent on Rritual to specifically draw this provision to Force One’s attention at the time the Stock Option Agreement was signed. Rritual has failed to adduce any evidence that directly contradicts Rossi’s assertion that Force One was unaware of the existence of a forum selection clause within the Plan. The fact that Rossi was aware of choice of the choice of law provision in the Consulting Agreement or a forum selection clause in the predecessor Subscription Agreement is insufficient to prove that Force One was therefore aware of a forum selection clause intended to govern disputes arising from the Stock Option Agreement. The fact that Force One is now relying on provisions of the Plan relating to the subject shares is also insufficient to demonstrate that it was therefore aware of, or should be deemed to be aware of, the subject forum selection clause.

[125] Harkening back to Douez, forum selection clauses are unique contracts that demand special considerations that are particularly apt to the matter before me, within the overarching important goal of certainty in private commercial international dealings, including the fact that in this situation, the contest is between two domestic courts.

[126] In the alternative, I find that Force One has demonstrated strong cause not to enforce the forum selection clause from the Plan in the circumstances of this case. In addition to the reasons supporting my conclusion that, based on the existing evidentiary record, the forum selection clause is unenforceable, the fact that it does not purport to apply to the Consulting Agreement, which is central to the resolution of this dispute, supports my conclusion that Force One has demonstrated strong cause that this court ought not to enforce this clause in the interests of fairness between the parties in the circumstances of this matter (Douez, at para. 75, citing Pompey at paras. 19, and 30-31). I make this alternate finding appreciating the caution in Douez, at para. 31, that “the strong cause factors have been interpreted and applied restrictively in the commercial context.” In my view, these parties were not particularly sophisticated in their commercial dealings based on the evidence before me, including the casual tone of emails that related to the development of this relationship.

iv. Should this Court Decline to Exercise Jurisdiction on the Basis of Forum Non Conveniens?

[127] Having determined that the forum selection clause is not enforceable, on contractual principles and in the specific circumstances of this case, it is necessary to proceed with whether this court ought to assume jurisdiction under the forum non conveniens analysis.

[128] Under this branch of the analysis, the burden is on the party resisting Ontario’s jurisdiction, in this case Rritual, to demonstrate that British Columbia is clearly the more convenient forum for the resolution of Force One’s dispute.

[129] In Cain v. Pfizer, 2018 ONSC 297, 44 C.C.E.L. (4th) 229, at para. 41, Master Sugunasiri (as she then was), citing Muscutt v. Courcells (2002), 2002 CanLII 44957 (ON CA), 60 O.R. (3d) 20 (C.A.), set out the factors to be considered under this analysis:

The factors are: (a) the location of the majority of the parties; (b) the location of key witnesses; (c) contractual provisions that specify applicable law or accord jurisdiction; (d) the avoidance of multiplicity of proceedings; (e) the applicable law and its weight in comparison to the factual questions to be decided; (f) geographical factors; and (g) whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage in the domestic court.

[130] Each party adduced evidence relating to the relevant factors under the forum non conveniens analysis.

(a) Location of the majority of the parties

[131] Force One is located in Ontario. It has its physical office in Ontario, and a clear physical presence in Ontario. Rritual is located in British Columbia. However, Rritual’s presence in British Columbia is more evident on paper than in physical presence. Its registered head office is a law firm, and its mailing address is at a site that is operated to provide companies with a virtual office. This factor slightly favours Force One.

(b) The location of key witnesses and evidence

[132] Force One attests that all of its witnesses reside in Ontario. The witnesses include Dr. Hart who was the president of Rritual at the material times, and non-party witnesses including key contacts and clients of Force One that were engaged for the benefit of Rritual and investors in Rritual introduced by Force One, all pursuant to the terms of the Consulting Agreement. Rossi’s affidavit lists eight such non-party witnesses. Many of the non-party witnesses are likely relevant to respond to Rritual’s position that it terminated the Consulting Agreement with cause.

[133] Rritual counters that all of its current employees (which number two) and senior management reside in British Columbia. In addition, its lawyers and consultants “who may need to give evidence” reside in British Columbia. As well, the key witnesses on behalf of Rritual, Sandu and Gill (who are no longer affiliated with Rritual) reside in British Columbia. However, Payment’s affidavit does not specifically identify Gill as being a potential witness or who, aside from Sandu and Gill, have direct knowledge as to the contractual negotiations and matters in issue.

[134] Rritual admits that two of its three directors reside in British Columbia and the third director resides in both Miami and Toronto.

[135] Payment also deposes that all of Rritual’s records are located in British Columbia.

[136] However, unlike Force One, Rritual does not provide a complete list of its likely witnesses. It only identifies Sandu and Gill by name. It identifies the location of its current directors, but they were not the directors at the time of the matters in dispute. It appears based on the evidence that Rritual will likely be relying primarily on Sandu, Payment and possibly Gill.

[137] Force One submits that the Sandu and Gill can testify remotely, however, so can its non-party witnesses. However, Rritual does not agree to having Sandu testify virtually given the key role he will likely play in a trial. Furthermore, the location of records can be accommodated through electronic production. However, this argument also lies in favour of Rritual with respect to Force One’s records.

[138] Accordingly, this factor is neutral.

(c) Contractual provisions specifying the governing law of the dispute and/or forum selection

[139] I have already found that the forum selection clause is not enforceable or, alternatively, ought not be enforced in the circumstances of this case.

[140] However, the Consulting Agreement does have a provision, inserted by Force One, designating the law of British Columbia as governing disputes arising from that agreement.

[141] This factor favours Rritual.

(d) Avoidance of Multiplicity of Proceedings

[142] There are no competing proceedings. Hence this factor is neutral.

(e) The applicable law and its weight to the facts to be decided.

[143] Based on the pleading and Rritual’s stated defence, the common law will be essential to the interpretation and enforceability of the various contracts (and alleged contracts) at play. In addition, the Ontario Securities Act will also have to be interpreted and applied.

[144] Both domestic courts are more than able to apply the common law. Both domestic courts can also apply the statutes that are in play. However, the Ontario courts have more experience interpreting and applying the Ontario Securities Act than the British Columbia courts.

[145] Accordingly, this factor favours Force One.

(f) Geographical factors

[146] As already alluded to, Rritual’s home base, witnesses and records are located in British Columbia, whereas Force One’s home base, witnesses and records are located in Ontario. These disparate locations can be mitigated to some degree by the use of hybrid proceedings (subject to the trial judge’s discretion) and electronic transmission of documents.

[147] This is a neutral factor.

(g) Will Force One be deprived of a juridical advantage

[148] Force One did not identify any juridical advantage that it would lose should this court decline jurisdiction.

[149] This is not a situation in which one is dealing with a foreign jurisdiction in the international sense. We are dealing with a choice between two domestic courts, not the choice between a Canadian court and a foreign court. Furthermore, the Ontario court is well able to apply British Columbia statutes as may be necessary (although no British Columbia statute has been pleaded to date).

[150] Accordingly, having regard to the balancing of relevant factors under the forum non conveniens analysis, I find that Rritual has failed to demonstrate that British Columbia is clearly the more convenient forum.

IV. Conclusion and Disposition

[151] For the above reasons, Rritual’s motion is dismissed. The Ontario Superior Court of Justice has jurisdiction simpliciter and is the convenient forum for the adjudication of the claims raised by Force One.

[152] If the parties cannot agree as to costs, then Force One shall deliver its cost outline and written submissions within 10 days from the release of these reasons. Rritual shall then deliver its cost outline and responding written submissions within 10 days thereafter. The written submissions shall not exceed three pages, double spaced, each and should be delivered to my judicial assistant, on notice to each other.

Justice S. Vella

Date: May 12, 2022

Force One Marketing et al. v. Rritual Superfoods, 2022 ONSC 2877

Case Summary