



COURT OF APPEAL FOR ONTARIO

CITATION: RJM56 Holdings Inc. v. Bazinet, 2018 ONCA
    791

DATE: 20181002

DOCKET: C64658

Simmons, Miller and Fairburn JJ.A.

BETWEEN

RJM56 Holdings Inc. and
    Kobuck Ltd.

Applicants (Appellants)

and

Michel Bazinet
, Robert Jennings and
Replicor
    Inc.


Respondents (
Respondents
)

Melvyn L. Solmon and Cameron Wetmore, for the appellants

Craig Colraine and Matthew Di Giovanni, for the
    respondent, Michel Bazinet

Linda Fuerst and Ted Brook, for the respondent, Replicor
    Inc.

Heard: September 24, 2018

On appeal from the judgment
    of Justice Frederick L. Myers of the Superior Court of Justice, dated October
    26, 2017.

REASONS FOR DECISION

[1]

The motion judge characterized the appellants' claim as one for
    oppression under the
Canada Business Corporations Act
, R.S.C. 1985, c.
    C. 44 (the "CBCA"). Relying on
Incorporated Broadcasters Ltd. v. Canwest
    Global Communications Corp.
, 63 O.R. (3d) 431 (C.A.), leave to appeal to
    S.C.C. denied, [2003] S.C.C.A. No. 186, he found that Ontario was
forum non
    conveniens
. While many of the factors in the analysis did not satisfy what
    he described as the heavy burden at play for a stay of the Ontario application,
    he concluded that the core of the dispute involved shareholders'
    dissatisfaction with internal management decisions and actions of a company
    based in Quebec, which dictated that any proceeding be dealt with there.

[2]

The appellants appeal from the motion judges decision. They argue that he
    misconstrued their claim as being simply for oppression and by failing to appreciate
    that it also included a common law claim for fraudulent misrepresentation. The
    appellants contend that had the motion judge understood the broader scope of
    the claim, he would have understood that it had a strong connection to Ontario
    where the fraudulent misrepresentations are said to have been made. His failure
    to do so is said to be an error in principle, entitling this court to revisit
    the
forum non conveniens
analysis.

[3]

We reject this argument. In their factum filed before the motion judge,
    the appellants characterized their claim as "an oppression application
    brought pursuant to s. 241 of the [CBCA]" and a statutory oppression application
    based on material misrepresentations. They asserted that the applicable law is
    the oppression provisions of the CBCA. As the motion judge noted, the
    appellants commenced their proceeding by application and chose not to sue by
    action for fraudulent misrepresentation.

[4]

Before us, the appellants pointed out that they relied on rule
    14.05(3)(h) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
    which permits applications even where an action would be the norm where it is
    unlikely that there will be any material facts in dispute. They pointed also
    to para. 1(e) of the prayer for relief in their amended notice of application
    in which they claim an order setting aside or rescinding the sale transactions
    in issue  a remedy available in a common law action for fraudulent
    misrepresentation. In oral argument, they also provided copies of
1100997 Ontario Ltd.
v. North Elgin
    Centre Inc.
,
2016 ONCA 848, 409 D.L.R. (4th) 382, a decision
    confirming that courts must consider affidavit materials on an application as
    pleadings. In that case, a decision precluding the plaintiffs from adding
    certain claims for relief following a direction to deliver a statement of claim
    in an application was reversed on appeal because the material facts necessary
    to support the proposed claims had been set out in affidavits and were based on
    the same factual nexus as originally set out in the notice of application.

[5]

We find the appellants argument that any common law claim for
    fraudulent misrepresentation they may wish to pursue could proceed by
    application under rule 14.05(3)(h) a significant stretch. Because of the early
    stage of the proceeding and the
forum non conveniens
motion, the
    respondents have not delivered responding material. Given the nature of the
    claim, which normally proceeds by action, we consider the possibility it is
    unlikely that there will be any material facts in dispute remote. In any
    event, the appellants did not pursue a common law remedy in their application.
    The prayer for relief in their amended notice of application is explicitly
    confined in the preamble to requests for relief under the CBCA. Further, the
    appellants position before the motion judge as set out in their factum was
    that their claim was for oppression.  Whether
1100997 Ontario Limited

might permit some form of amendment or addition is not the issue. The
    motion judge made no error in characterizing the claim that was in front of
    him.

[6]

We also reject the appellants' arguments that the motion judge
    erred by failing to consider or give proper weight to relevant factors and by
    taking account of irrelevant factors in holding that Ontario was
forum non
    conveniens
.

[7]

The motion judge took account of
    the Ontario defamation action in reaching his decision and held that it weighed
    weakly in favour of keeping the case in Ontario. In our view, the appellants'
    argument concerning this issue is no more than a request to have us reweigh the
    relevant considerations. As the
forum non conveniens
analysis is discretionary, that is not our function
    on appeal:
Black v. Breeden,
2012 SCC 19, [2012] 1 S.C.R. 666.

[8]

The motion judge also noted this proceeding is at a very early stage and
    concluded there would be no extraordinary costs involved in either moving the case
    or keeping it here. Even assuming there is no case management system in Quebec,
    something the appellants maintain that the respondents should have proven, we fail
    to see how the presence of case management in Ontario demonstrates the case would
    necessarily proceed more quickly or efficiently in Ontario than in Quebec.
    There was limited evidence on the motion concerning Replicor Inc.'s financial
    position. We see no basis on which to interfere with the motion judges
    assessment of costs and efficiency factors in conducting his analysis. The
    proposed fresh evidence does not alter this conclusion.

[9]

The motion judges references to the Quebec oppression proceeding
    brought by Mr. Jennings were in the nature of a comment on the genuineness of
    the appellants' purported concerns about efficiency and the risk of
    inconsistent verdicts and on the significance of the libel case. These comments
    did not drive the outcome of his analysis.

[10]

Finally,
    the appellants' claim that post representation events were irrelevant is
    without merit. As the motion judge observed, the representations themselves are
    not really in issue. Rather, it is the post representation actions of the
    respondents that are at the core of the dispute and likely to render material
    facts in dispute. This reality is what drove the motion judges analysis.

[11]

The
    fresh evidence motion and the appeal are dismissed. Costs of the appeal are to
    the respondents on a partial indemnity scale payable by the appellants fixed in
    the agreed upon amounts of $22,000 to Mr. Bazinet and $7,500 to Replicor Inc.

Janet Simmons J.A.

B.W. Miller J.A.
Fairburn J.A.


