





CITATION:
Bond v. Brookfield
          Asset Management Inc., 2011 ONCA 730



DATE: 20111123



DOCKET: C53770



COURT OF APPEAL FOR ONTARIO



Laskin, Rosenberg and Rouleau JJ.A.



BETWEEN



Wanda Bond



Appellant (Plaintiff)



and



Brookfield
          Asset Management Inc. Brookfield
          Special Situations Partners Ltd. 1439442
          Alberta Ltd.



Respondents (Defendants)



Proceeding Commenced Under the Class Proceeding Act, 1992



John W. McDonald and John W. Findlay, for the appellant



Howard A. Gorman, for the respondents



Heard: November 16, 2011



On appeal from the judgment of
          Justice Paul Perell of the Superior Court of Justice, dated April 26, 2011.



ENDORSEMENT




[1]

We agree with the motion judge that on this record
    Birch Mountain could not be an affiliate of Tricap simply because Tricap had an
    unexercised conversion right to obtain voting shares.  Since Birch Mountain is not a corporation to
    which the OBCA applies and none of the other defendants are affiliates of Birch
    Mountain, it follows that even assuming the appellant held shares in Birch
Mountain,
she is not a complainant under the OBCA.  She is not the holder of a security of a
    corporation, meaning an Ontario corporation, since Birch Mountain
is an
Alberta corporation, nor of any affiliate of Birch
    Mountain within that part of the definition of complainant in s. 245 relied
    upon by the appellant.

[2]

Accordingly, as held by the motion judge in para. 62 of
    his reasons, the OBCA
does
not apply so as to give
    Ontario jurisdiction.

[3]

We also entirely agree with the motion judges reasons
    on
forum non conveniens.
Most of the
Muscutt
factors strongly favour Alberta as the convenient
    forum.  At its core, this proposed class
    action is about oppression of an Alberta corporation and the shareholders of
    that Alberta
corporation
. The applicable law is the
    Alberta company law, and most of the important contractual provisions specify
    Alberta law as the applicable law.  Importantly, as the motion judge noted, there are outstanding
    proceedings in Alberta where the Alberta Queens Bench supervised the sale of
    Birch Mountains assets and is still supervising its bankruptcy.  Many of the allegations in the statement of
    claim concern dealings related to the asset sale and bankruptcy. The Alberta
    courts are in a far better position to deal with those allegations. The
    appellant asks us to infer, in the absence of direct
evidence,
    that
most of the witnesses would be in Ontario. Like the motion judge we
    are not prepared to draw that inference in the absence of some indication of
    what their evidence would be or why it would be required.  On the materials before us, much of the
    Ontario evidence appears to consist of documents.  It is not at all apparent what Ontario
    witnesses would be required.

[4]

Accordingly, the appeal is dismissed with costs fixed
    on a partial indemnity basis at $20,000 inclusive of disbursements and HST.

John Laskin J.A.

M. Rosenberg J.A.

Paul Rouleau J.A.


