





CITATION: Brisbin v. Lunev, 2011
      ONCA 15





DATE: 20110107



DOCKET: C52588



COURT OF APPEAL FOR ONTARIO



Goudge, Sharpe and LaForme JJ.A.



BETWEEN



Brian Brisbin, Murray Beynon, Brisbin Brook Beynon,
          Architects, 2113304 Ontario Inc., 2113305 Ontario Inc. and BBB Architects
          Toronto Inc.



Plaintiffs (Respondents)



and



Sergey Lunev, Semyon Fridland also known as Simon
          Fridland also known as Semyon Fridyland also known as Simon Fridlyand, Dmitri
          Rogojanski also known as Dmitri Rogojansky, West Group Capital Partners Inc.,
          SDS Group Ltd. and B & C Architects Limited.



Defendants (Appellants)



Howard J. Wolch, for the appellants



John Polyzogopoulos and Lou Brzezinski, for the respondents



Heard and released orally: January 5, 2011



On appeal from the order of Justice Elizabeth M. Stewart of
          the Superior Court of Justice dated July 27, 2010.



ENDORSEMENT



[1]

The plaintiffs two major claims in this action are for breach of
    contract by the defendants in failing to issue certain shares to them, and for
    fraudulent misrepresentation in the creation of an alleged sham loan agreement
    where there was no intention that the loan be repaid by the plaintiffs.

[2]

In our view, the motion judge was correct in finding that both claims
    fall within Rule 17(2), specifically 17(2)(f) and (g). The plaintiffs say that
    the contract was negotiated in Toronto, after extensive discussions there. That
    is a reasonable basis to find that for the purposes of jurisdiction, the
    contract was made in Ontario. The fraudulent misrepresentation claim is in tort,
    and does not base itself on the loan agreements themselves. These
    misrepresentations are said by the plaintiffs to take place between the
    plaintiffs and the individual defendants in Ontario where they all reside. That
    is a reasonable basis on which Rule 17(2)(g) is engaged.

[3]

Thus a presumption of jurisdiction
simpliciter
arises. The
    defendants have not displaced this. They basically deny that a contract for the
    shares was made, or that the fraudulent misrepresentations were made. That,
    however, is an issue for trial rather than this motion.

[4]

We agree with the motion judges summary when she says that ...the
    physical and business presences in Ontario of the plaintiffs and the individual
    defendants who control the corporate defendants, as well as the fact that
    Ontario was largely the place of their dealings concerning this enterprise,
    support the conclusion that a real and substantial connection between the
    plaintiffs claims and Ontario exists in this case.

[5]

The appellants concede that if this is so, it follows that there is a
    real and substantial connection between Ontario and the plaintiffs claim for
    unpaid services. The claim for intellectual property infringement on the part
    of subsidiaries of the corporate defendants is so intertwined with the other
    three claims that the same result should prevail.

[6]

We also see no error with the motion judges conclusion that Ontario is
    the convenient forum. She considered a number of factors that favour this
    result, particularly, the predominant location of the parties and the key witnesses
    being in this jurisdiction; the avoidance of a multiplicity of proceedings, the
    failure to show a more convenient forum; and the possible loss to the
    plaintiffs of juridical advantage if the case is not tried in Ontario. Her
    conclusion deserves deference in this court. It is not unreasonable and we would
    not interfere with it.

[7]

The appeal is dismissed. Costs to the respondents fixed at $15,000.00
    inclusive of disbursements and applicable taxes.

S.T. Goudge J.A.

Robert J. Sharpe J.A.

H.S. LaForme J.A.


