



COURT OF APPEAL FOR ONTARIO

CITATION: 2249659 Ontario Ltd. v. Sparkasse Siegen, 2013 ONCA
    354

DATE:  20130531

DOCKET: C55836

Doherty, Laskin and Blair JJ.A.

BETWEEN

2249659 Ontario Ltd. and Rohwedder Canada Inc.

Plaintiffs (Appellants)

and

Sparkasse Siegen and Thomas Magnete GmbH

Defendants (Respondents)

Jonathan Lisus and James Renihan, for the appellants

Evan L. Tingley, for the respondent, Sparkasse Siegen

P.A. Neena Gupta, for the respondent, Thomas Magnete GmbH

Heard:  January 16, 2013

On appeal from the order of Justice Carole J. Brown of
    the Superior Court of Justice, dated July 6, 2012, reported at, [2012] O.J. No.
    3263.

Doherty J.A.:


I



[1]

The appellants appeal from an order dismissing their claims against the
    respondents.  The motion judge held that the Ontario Superior Court of Justice
    had no jurisdiction to entertain the claims and, alternatively, that Ontario is
forum non conveniens
.  I would allow the appeal.  The Superior Court
    does have jurisdiction, the choice of forum provisions relied on by the
    respondents have no application and Ontario is
forum conveniens
.


II



[2]

The respondent, Thomas Magnete GmbH (TMG) is a German company in the
    business of manufacturing and selling solenoids used in the production of
    automotive transmission systems.  TMG is a subsidiary of Thomas Holding
    Deutschland GmbH (THD).  TMG, THD and other related companies are all
    controlled by the Thomas family from Germany.

[3]

The respondent, Sparkasse Siegen (Sparkasse), is a bank incorporated
    and carrying on business in Germany.  Sparkasse is the banker for TMG and other
    companies under the control of the Thomas family.

[4]

The appellant, Rohwedder Canada Inc. (RCI) is a company incorporated
    in Ontario.  RCI manufactures and sells automated assembly lines to automotive
    parts manufacturers.  Until July 2010, RCI was a wholly-owned subsidiary of
    Rohwedder A.G., a German company.  Rohwedder A.G. declared bankruptcy in 2010. 
    The appellant, 2249659 Ontario Ltd., acquired all of the shares of Rohwedder
    North America, a wholly-owned subsidiary of Rohwedder A.G.  RCI was a wholly-owned
    subsidiary of Rohwedder North America making 2249659 Ontario Ltd. the parent
    company of RCI.  2249659 Ontario Ltd. had nothing to do with the events
    underlying this litigation.


III



[5]

There has, of course, been no trial of the merits.  The summary below is
    taken from the Statement of Claim and motion material.

[6]

In February 2006, GETRAG, one of Chryslers suppliers, approached TMG to
    manufacture solenoids to be used in Chrysler transmissions.  The solenoids would
    be manufactured by TMG at a plant in Cambridge, Ontario.  TMG and RCI entered
    into negotiations with a view to RCI manufacturing and installing the assembly
    lines in the Cambridge plant needed to produce the solenoids.

[7]

In June 2007, TMG and RCI entered into a Confidentiality Agreement
    covering all of the information acquired either directly or indirectly in the
    course of the [assembly line] Project.  Paragraph 10 of the Agreement is a
    choice of forum clause:

Unless otherwise expressly prescribed by law, the sole place of
    jurisdiction for all disputes arising from this Agreement is Betzdorf,
    Germany.  All disputes arising from or in connection with this Agreement shall
    be subject to the law of the Federal Republic of Germany.

[8]

In September 2007, TMG and RCI entered into an agreement with respect to
    the purchase and installation of the assembly lines at the Cambridge plant. 
    TMG agreed to pay RCI $6,750,000 and made an initial payment of $675,000.  The
    Agreement was negotiated by Joachim Rohwedder, the Chairman of Rohwedder A.G.,
    and Patrick Meyer of TMG.  Both men were based in Germany.  RCI signed and
    accepted the Agreement in Markham, Ontario.

[9]

The Agreement took the form of a Purchase Order.  That Purchase Order
    incorporated by reference TMGs General Business Conditions.  The English
    translation of the General Business Conditions provided to RCI at the time it
    signed the Agreement included these two terms:

·

If the parties have not agreed otherwise the laws of the Federal
    Republic of Germany shall exclusively apply.

·

The court at the place where the plaintiff is domiciled is
    Herdorf [Germany].

[10]

The
    English translation of the General Business Conditions filed by the respondents
    on the motion worded the second of these two terms differently:

·

The place of jurisdiction is Betzdorf [Germany].

[11]

The
    respondents contend that the second condition outlined above is a choice of
    forum provision that applies to this claim.

[12]

In
    the fall of 2007, TMG incorporated Thomas Magnete Canada Inc. (TMC) in
    Ontario.  TMC was a wholly-controlled subsidiary of TMG.  TMG approached
    Sparkasse to provide financing to TMC for the purchase of the assembly lines
    from RCI.  Sparkasse advised that before it could provide that financing, TMC
    would have to be the legal owner of the assembly lines so that the assembly
    lines could be included in Sparkasses security for its loan to TMC.  Sparkasse
    agreed to make the loan on that condition and TMG agreed to guarantee the
    loan.

[13]

TMG
    then asked RCI to substitute its subsidiary TMC for TMG as the purchaser of the
    assembly lines.  TMG explained to RCI that the change would assist TMG in tax
    planning issues.  Some of these discussions occurred in Ontario.

[14]

RCI
    initially declined to make the substitution because TMC, a new company, did not
    appear to have any assets.  RCI, however, did eventually offer to allow the
    substitution of TMC as the purchaser if TMG and Sparkasse agreed to provide
    written assurances that they would pay RCI any amount owing to it under the Purchase
    Order if TMC was unable to make the payments.

[15]

In
    December 2007, Sparkasse prepared a letter addressed to RCI entitled
    Confirmation of Project Funding.  The letter was sent to TMG and forwarded by
    TMG to RCI by email in Ontario.  It read in part:

[T]he project of setting up a new production site by our client
    Thomas Magnete Group in Cambridge/ Ontario is financially supported by
    Sparkasse Siegen.

We herewith confirm, that  in line with the project plan  the
    necessary funds including expenses for the purchase of production lines and
    machinery are in place.

Thomas Magnete GmbH, Herdorf, provided a guarantee in our
    favour regarding the projects financing scheme, thus accepting financial
    liability for the project.

[16]

After
    receiving the letter, RCI agreed to substitute TMC for TMG.  A second Purchase Order
    on the same terms and conditions as the first, but identifying TMC as the
    purchaser, was signed by RCI in Markham in January 2008.  Neither respondent is
    a party to the second Purchase Order.

[17]

RCI
    delivered the assembly lines to the Cambridge, Ontario plant in October and
    November, 2008.  Unfortunately, GETRAG, the company to whom TMC was to provide
    the solenoids, went bankrupt.  TMC advised RCI that the project was on hold, and
    acknowledged that RCI was owed $1,489,617.00.

[18]

In
    2009, TMG wound up TMC and litigation among TMCs creditors ensued.  Both RCI
    and Sparkasse claimed to be entitled to the proceeds of the sale of the
    assembly lines.  The issue was litigated in Ontario and RCI was ultimately
    successful.


IV



the nature of RCIs claim

[19]

RCI
    commenced this lawsuit in September 2010.  The claims against TMG and Sparkasse
    sound in contract and tort.  RCI does not, however, rely on the terms of the agreements
    set out in the Purchase Orders, but instead relies on an agreement that it
    alleges the respondents made in December 2007, whereby they promised to
    guarantee payment to RCI of any amounts not paid by TMC in connection with the
    manufacture and installation of the assembly lines.  Paragraphs 31 and 32 of
    the Statement of Claim advance the contract claim, and paragraphs 33 through 36
    advance the claim for negligent misrepresentation:

31.  In consideration of RCI accepting the Magnete Canada
    purchase order, the Defendants promised in the December correspondence that
    funds necessary to pay RCI under the purchase order were in place and would be
    paid to RCI.  The Defendants promised that they guaranteed the projects
    financing scheme and accepted financial liability for the project.

32.  Furthermore, in response to RCIs request for a commitment
    that in the case of the illiquidity of Magnete Canada, RCI would be paid, the
    Defendants expressly or impliedly accepted that obligation to pay by the
    December correspondence wherein they advised among other things, of Sparkasses
    financial support of the project, Magnete GmbHs acceptance of financial
    liability for the project and the fact that funds for the purchase of the three
    assembly lines are in place.

33.  In addition, in order to induce RCI to accept the Magnete
    Canada purchase order, the Defendants made statements to RCI in the December
    correspondence regarding the financing of the project and regarding payment to
    RCI which were untrue, inaccurate and misleading and thus were
    misrepresentations by reason of the information given and by reason of
    information that was not given and not disclosed.  Particulars are as follows:



34.  At the time of the making of the representations, the
    Defendants intended and knew or ought to have known that RCI would rely thereon
    and would be induced to accept the replacement purchase order from Magnete
    Canada.

35.  In the circumstances, the Defendants were under a duty to
    take care in the making of said representations to RCI.  In breach of that
    duty, the Defendants were guilty of negligence in making said representations.

36.  Acting on the faith of said representations and induced
    thereby, RCI accepted the replacement purchase order from Magnete Canada Inc.
    in replacement for the purchase order of Magnete GmbH and manufactured and
    delivered the three assembly lines in exchange for a promise of payment
    instalments.


V



my approach to the issues raised on the
    appeal

[20]

The
    appeal raises issues pertaining to jurisdiction
simpliciter
, the
    effect of forum selection clauses relied on by the respondents, and the determination
    of whether Ontario is
forum non conveniens
.  Jurisdiction
simpliciter
is a threshold question and I will address it first.  If the motion judge did
    not err in finding that Ontario had no jurisdiction
simpliciter
, there
    is no need to address the other issues.

[21]

As
    I would hold that Ontario has jurisdiction
simpliciter
, I will next
    consider the motion judges treatment of the forum selection clauses in the
    Confidentiality Agreement and Purchase Orders.  An applicable forum selection
    clause designating a forum other than Ontario places a heavy onus on the
    plaintiff to justify Ontario as
forum conveniens
.  Finally, as I would hold there is no applicable
    forum selection clause, I will
consider whether in the absence of
    any forum selection clause, the trial judge erred in concluding that Ontario
    was
forum non conveniens
.


VI



jurisdiction simpliciter

[22]

The
    motion judge referred to the controlling test for determining jurisdiction
    simpliciter set out in
Club Resorts Ltd. v. Van Breda
,
2012 SCC 17, [2012] 1 S.C.R. 572, at
    para. 90.  The motion judge recognized, at para. 15, that under the
Van
    Breda
test certain factors are presumed to
prima facie
entitle a
    court to assume jurisdiction.  Those factors include:

·

the defendant carries on business in the province;

·

the tort was committed in the province; and

·

a contract connected with the dispute was made in the province.

[23]

The
    motion judge ultimately held, at para. 36:

The defendants argue that there is no jurisdiction
simpliciter
,
    as the claim does not fall under any of the provisions of Rule 17.02.  I have
    considered all of the materials before me, including the claims, the evidence,
    case law, and the submissions of the parties, and agree with the submissions of
    the defendants.  I find there is no jurisdiction
simpliciter
with
    respect to the claims made by the plaintiffs against the defendants and that
    there is no real and substantial connection with Ontario.

[24]

With
    respect, I think the motion judge made three errors in reaching her conclusion
    that Ontario did not have jurisdiction
simpliciter
.  First, the motion
    judge appears to have accepted TMGs argument that the existence of a forum
    selection clause in favour of Germany was central to the question of
    jurisdiction
simpliciter
.  I say this having regard to her description
    of the jurisdiction
simpliciter
issue as encompassing a consideration
    of the forum selection clauses (para. 13), and her indication in arriving at
    her conclusion that Ontario was without
jurisdiction simpliciter
that
    she had been guided by (para. 37) the forum selection clause jurisprudence.

[25]

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
[1]
:
    see
Momentous.ca Corp. v. Canadian American Assn. of Professional Baseball
    Ltd.
, 2010 ONCA 722, 103 O.R. (3d) 467, at paras. 33-40, affd 2012 SCC 9,
    [2012] 1 S.C.R. 359.  The motion judge should have considered the question of
    jurisdiction
simpliciter
before examining the forum selection
    clauses.  Those clauses, even if applicable to this litigation, could not
    assist in determining jurisdiction
simpliciter
.

[26]

Second,
    the motion judge also erred in considering the adequacy of the appellants pleadings
    in determining whether Ontario had jurisdiction
simpliciter
. 
    Sparkasse submitted that the claim of negligent misrepresentation against
    Sparkasse advanced in the Statement of Claim did not properly plead the
    essential elements of that tort.  Sparkasse argued that because the claim was
    not properly pleaded, it could not provide a basis for a finding of
    jurisdiction
simpliciter
.  The motion judge accepted this submission (para.
    32).

[27]

Where
    a defendant seeks an order dismissing a claim for want of jurisdiction, the
    adequacy of the pleadings must be assessed in the context of that challenge.  A
    jurisdictional motion is not the time or place to consider the adequacy of the
    pleadings for the purpose of a trial.  That is the function of a Rule
    21.01(1)(b) motion.

[28]

It
    is open to a party bringing a jurisdictional challenge to argue that the
    pleadings are so inadequate as to preclude an accurate characterization of the
    nature of the claims advanced in the pleading.  A pleading that falls into that
    category would provide considerable support for the submission that the
    pleadings do not show an adequate connection between Ontario and the claim to
    warrant a finding of jurisdiction.  However, whatever may be said about any
    deficiencies in the negligent misrepresentation pleadings in this case, they do
    not prevent a proper assessment of the connection of that claim to Ontario.  Any
    further inquiry into the adequacy of the pleadings had no relevance on the
    motion challenging the jurisdiction of the Ontario court.

[29]

The
    motion judges third error arose through her failure to focus on the nature of
    the contractual claim advanced in the Statement of Claim.  That claim did not
    rely on the payment terms in the Purchase Orders, but rather on the alleged promise
    by Sparkasse and TMG to make the payments if TMC, the substituted purchaser, did
    not pay as required under the Purchase Orders.  To the extent that the motion
    judge examined the contractual relationship of the parties (paras. 33-34), she focussed
    on the Purchase Orders and not the agreement alleged in the Statement of
    Claim.  In doing so, she failed to consider whether the agreement alleged in
    the Statement of Claim, as opposed to the Purchase Orders, was entered into in
    Ontario, thereby providing a presumptive connecting factor that
prima facie
entitled Ontario to assume jurisdiction
simpliciter
over the claim.

[30]

Having
    concluded that the motion judge erred in her jurisdiction
simpliciter
analysis in the foregoing respects, I turn to a consideration of the
Van
    Breda
factors.  The appellants rely on three presumptive connecting
    factors:

·

the respondents were carrying on business in Ontario;

·

the tort of negligent misrepresentation was committed in Ontario;
    and

·

the contracts relied on in the Statement of Claim were made and
    breached in Ontario.

[31]

There
    is a strong argument that all three factors exist, although any one factor will
    give rise to a presumption of jurisdiction under the
Van Breda
analysis. 
    Perhaps the strongest of the three factors relied on by the appellants is its
    contention that the negligent misrepresentation occurred in Ontario.  The tort
    of negligent misrepresentation occurs where the misinformation is received or
    acted upon:
Cannon v. Funds for Canada Foundation
, 2010 ONSC 4517, at
    para. 52.  RCI received the alleged misrepresentations via the email sent to
    its place of business in Markham, Ontario.  Based on this allegation, the tort
    of negligent misrepresentation occurred in Ontario.

[32]

It
    is arguable that the allegation of a commission of tort in Ontario is enough to
    give Ontario jurisdiction
simpliciter
over both the tort claim and the
    closely related contract claim:  see
Cannon
, at paras. 80-91. I need
    not decide that issue, as in my view the claim as pleaded also alleges a
    contract entered into and/ or broken in Ontario.

[33]

The
    representations by the respondents relied on by the appellants as constituting
    the guarantee of TMCs indebtedness were made in response to RCIs offer to substitute
    TMC as the purchaser if the respondents agreed to provide the guarantees. RCI
    received notification of the respondents acceptance of that offer at its
    office in Markham.  As a general rule, a contract is made where the offeror
    (RCI) receives notification of the offerees (the respondents) acceptance of
    the offer:
Eastern Power Ltd. v. Azienda Communale Energia and Ambiente
(1999), 178 D.L.R. (4
th
) 409 (Ont. C.A.), at paras. 21-22.

[34]

On
    the facts as alleged, the contract RCI relies on in advancing its contract claim
    was made in Ontario.  For the reasons explained in connection with the negligent
    misrepresentation pleadings, a jurisdiction motion is neither the time nor the place
    to consider arguments that the allegations in the Statement of Claim are
    insufficient to establish a contract between RCI on the one hand, and TMG and
    Sparkasse on the other.

[35]

As
    I am satisfied that the alleged negligent misrepresentations were made in
    Ontario and the contract relied on by RCI was entered into in Ontario, I need
    not examine the appellants argument that the respondents were carrying on
    business in Ontario.  I say only that, having regard to TMCs status as a fully-controlled
    subsidiary of TMG, there is a formidable argument that TMG was carrying on business
    in Ontario:
Stubbs v. A.T.S. Applied Tech Systems Inc.
, 2010 ONCA 879,
at paras. 45-48.

[36]

My
    conclusion that the allegations are sufficient to establish connecting factors
    that create a presumption of jurisdiction does not end the
Van Breda
analysis.  The presumption can be rebutted by the respondents.  As explained in
Van Breda
, at para. 95:

The burden of rebutting the presumption of jurisdiction rests,
    of course, on the party challenging the assumption of jurisdiction.  That party
    must establish facts which demonstrate that the presumptive connecting factor
    does not point to any real relationship between the subject matter of the
    litigation and the forum or points only to a weak relationship between them.

[37]

The
    respondents challenged jurisdiction
simpliciter
claiming first that
    the forum selection clauses were determinative and, second, that under the
Van
    Breda
test, there were no presumptive connecting factors.  I have rejected
    both of those arguments for the reasons set out above.  The respondents did not
    suggest that if there were presumptive connecting factors, the respondents had
    rebutted the presumption of jurisdiction flowing from those factors.  There is
    nothing in this record that could support that argument.

[38]

Ontario
    has jurisdiction
simpliciter
.


VII



the effect of the purported forum selection clauses

[39]

Forum selection clauses in an agreement between parties, particularly
    sophisticated commercial parties, will normally be enforced by Ontario courts. 
    A plaintiff who seeks to litigate in Ontario, having agreed that the dispute would
    be litigated in another forum, carries a heavy burden and must show a strong
    cause for departing from the terms of the agreement:
Z.I. Pompey
    Industrie v. ECU-Line N.V.
, 2003 SCC 27, [2003] 1 S.C.R. 450, at para. 20;
Expedition Helicopters Inc. v. Honeywell Inc.
, 2010 ONCA 351, 100 O.R.
    (3d) 241.

[40]

In
Expedition Helicopters Inc.
, this court described the burden in these terms, 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.

[41]

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:
Loat v. Horvath
,
2011 ONCA 509, 338 D.L.R.
    (4th) 644,
at para. 35;
Matrix Integrated Solutions Ltd. v. Naccarato
(2009), 97 O.R. (3d) 693 (C.A.), at paras. 10-11. The appellants argue that
    neither of these preconditions is met.

[42]

The
    respondents rely on two different forum selection clauses.  They point first to
    the confidentiality agreement between TMG and RCI.  That agreement contains a
    clear choice of forum clause (
supra
, para. 7).  However, the clause
    applies to all disputes arising from or in connection with this Agreement. 
    The Agreement relates to the mutual duty of confidentiality owed by TMG and
    RCI in respect of all information acquired either directly or indirectly during
    the course of the assembly line project.

[43]

The
    claims advanced by the appellants have nothing to do directly or indirectly
    with any alleged breach of the confidentiality agreement.  They do not arise
    from and are not connected to that agreement.  The forum selection clause in
    the confidentiality agreement has no application to this litigation.

[44]

The
    respondents rely more heavily on what they claim is a forum selection clause in
    the Purchase Orders.  As set out above, two versions of the relevant clause
    were before the motion judge.  She relied on the version provided to RCI by TMG
    at the time of the first Purchase Order.  The alleged forum selection clause in
    that version read:

The court at the place where the plaintiff is domiciled is Herdorf.

[45]

The
    motion judge described this clause as providing that the place of jurisdiction
    is Herdorf, Germany (para. 6).  I seriously doubt that the clause as worded in
    the version provided to RCI at the time it entered into the first Purchase
    Order has the clarity needed to create an effective forum selection clause.  The
    alternate version put forward by the affiant for the respondents on the motion
    which declares that the place of jurisdiction is Betzdorf is clearer and
    could, in my view, be construed as a forum selection clause applicable to
    disputes arising out of the Purchase Order.

[46]

I
    need not decide whether either version is sufficiently clear to justify
    interpreting the term as a forum selection clause.  I will assume that there is
    a forum selection clause in favour of Germany in the Purchase Orders.  Even on that
    assumption, however, the respondents must still demonstrate that the claims advanced
    against them fall within the ambit of the language in the forum selection
    clause.  The bald language in either version of the clause cannot be extended to
    disputes based on claims that are outside of the terms of the Purchase Orders. 
    The appellants claims, properly characterized, do not claim relief for non-compliance
    with the payment terms of the Purchase Orders.  The claims are against the
    alleged guarantors of the payments required under the Purchase Orders.

[47]

The
    commercial interchange leading up to the Purchase Orders and the terms of the
    Purchase Orders are central features of the factual context in which the
    appellants claims are advanced.  The claims are, however, distinct from
    obligations arising under the Purchase Orders.  As counsel for the appellants
    persuasively argues, the appellants do not seek an interpretation or implementation
    of any provision of the Purchase Orders.  Rather, they seek enforcement of the
    respondents guarantees.  Assuming there is a forum selection clause in the
    Purchase Orders, it does not apply to these claims.

[48]

I
    would add that neither respondent is a party to the second Purchase Order.  I
    do not see how, on their theory of the case, either could enforce the terms of
    the second Purchase Order.


VIII



is ontario
forum
Non
conveniens
?

[49]

Unlike
    the determination of jurisdiction
simpliciter
, the
forum conveniens
inquiry engages judicial discretion.  Different judges can reasonably and
    properly come to different conclusions on whether Ontario is
forum non
    conveniens
in a given set of circumstances.  This court will defer to the
    findings made at first instance absent an error in law or principle, or a clear
    and serious factual error:
Van Breda
, at para. 112.

[50]

In
    her relatively brief
forum non conveniens
analysis, the motion judge
    referred to various connections that the litigation had to Germany and
    Ontario.  In the course of doing so, she said, at para. 39:

The plaintiffs have agreed that the laws of Germany apply, and
    that the place of performance and the court at the place where the plaintiffs
    are domiciled is Herdorf.

[51]

In
    referring to the plaintiffs (now appellants) as having agreed that the law of
    Germany applied, the motion judge was referring to the terms of the Purchase
    Orders.  For the reasons set out above, the Purchase Orders do not govern these
    claims.  There was no agreement by the plaintiffs (now appellants) that the law
    of Germany would apply to these claims.

[52]

Clearly,
    the negligent misrepresentation claim would be governed by the law of Ontario. 
    Insofar as the contract-based allegations are concerned, the most that could be
    said at this stage is that there is an argument that the law of Germany should
    apply.  With respect, the motion judge erred in holding that by virtue of the
    terms of the Purchase Orders German law would apply to this litigation.

[53]

The
    motion judges erroneous determination that German law would govern the claims
    was part of her
forum non conveniens
analysis.  That error amounts to an error in law, removing the requirement that
    this court defer to the motion judges decision and requiring this court to
    make its own assessment of whether Ontario is
forum conveniens
.  In making that assessment,
I bear in
    mind that the respondents have the burden of showing that Ontario is
forum
    non conveniens
.  To meet that burden,
    the respondents must demonstrate that
fairness to the parties and
    the efficient resolution of these claims makes Germany clearly a more appropriate
    forum for resolving these claims than is Ontario:
Van Breda
, paras.
    103-111.

[54]

On
    my review of the relevant facts, neither Ontario nor Germany is clearly a more
    appropriate forum.  The location of potential witnesses, and the physical
    location of documentary evidence, seems to me, in a commercial dispute like
    this, to offer little reason for preferring either Germany or Ontario.  The
    witnesses are distributed between the jurisdictions, and other jurisdictions, and
    none should be particularly surprised that international commercial activities
    might take them to court in a foreign jurisdiction.  The documents are
    presumably easily portable.

[55]

The
    application of Ontario law to at least part, and perhaps all of the claims
    advanced by the appellants, is a relevant factor favouring Ontario.  Here, too,
    however, I do not think undue weight should be attached to this factor.  Presumably,
    a German court will have no difficulty applying Ontario law to the
    misrepresentation allegation.

[56]

Ultimately,
    the
forum conveniens
inquiry comes down to a characterization of the commercial
    activity giving rise to this litigation.  By commercial activity, I include not
    only the alleged guarantees giving rise to the claims, but also the course of
    commercial activity that gave rise to the guarantees.  That activity was German
    in the sense that the controlling corporations and the individuals making the
    decisions on behalf of the controlling corporations operated out of Germany and
    viewed Germany as the place to litigate disputes arising out of the
    confidentiality agreement and probably the Purchase Orders.

[57]

In
    another sense, however, the underlying commercial activity is Canadian in that
    it represents the expansion of German business interests into the automobile
    parts manufacturing industry in Ontario.  Presumably, the Thomas controlled companies
    saw significant potential business through active participation in that
    industry in Ontario.  The end product of the commercial relationship  the
    assembly lines  were to be manufactured and installed in Ontario.

[58]

At
    the risk of oversimplifying the situation, the commercial activities that give
    context to this litigation can be described as business decisions made by Germans
    in Germany about doing business in Ontario.  I think both jurisdictions have
    meaningful connections to that commercial activity.

[59]

The
    respondents, as the parties seeking a stay based on the argument that Ontario
    was
forum non conveniens
, had the onus of showing that a German court
    was in a better position to fairly and efficiently dispose of this claim than
    was an Ontario court.  I think the respondents demonstrated that Germany was a
forum
    conveniens
, but I do not think the respondents demonstrated that Germany
    was clearly more appropriate for disposing of the litigation than was
    Ontario:  see
Van Breda
, para. 109. The Ontario proceedings should not
    have been stayed on the basis of
forum non conveniens
.


IX



conclusion

[60]

I
    would allow the appeal, set aside the order of the motion judge and substitute
    an order dismissing the motions brought by the respondents for orders
    dismissing or permanently staying this action.

[61]

The
    parties may make written submissions as to costs.  The appellants submissions
    of less than 10 pages should be served on the respondents and filed within 30
    days of the release of these reasons.  The respondents submissions should be
    served and filed within 15 days of the receipt of the appellants submissions.

RELEASED:  DD  MAY 31 2013

Doherty J.A.

I agree J.I. Laskin
    J.A.

I agree R.A. Blair
    J.A.





[1]

The situation is quite different where the forum selection
    clause identifies Ontario as the forum of choice.  In that situation, the
    clause arguably gives Ontario jurisdiction through the consent of the parties.


