



COURT OF APPEAL FOR ONTARIO

CITATION: Rieder zu Wallburg v. Plista Gmbh, 2022 ONCA 281

DATE: 20220408

DOCKET: C69668

Doherty, Huscroft and Harvison Young JJ.A.

BETWEEN

Dr. Ralph Peter Rieder zu Wallburg and ADMG
    Publishing Ltd.

Appellants/Plaintiffs

and

Plista Gmbh, Michel Gagnon, Stephanie Kohnert and
    Stefan Klimek

Respondents/Defendants

Douglas J. Spiller, for the appellants

Elizabeth Kurz, for the respondents

Heard: April 1, 2022 by video conference

On appeal from the order of Regional Senior Justice Edwards
    of the Superior Court of Justice, dated June 21, 2021, with reasons reported at
    2021 ONSC 4458.

REASONS FOR DECISION

[1]

The motion judge dismissed the appellants claim for lack of
    jurisdiction. Alternatively, he held Germany, and not Ontario, was the
    appropriate forum in which to conduct this litigation.

[2]

The appellants appeal from the dismissal and seek leave to appeal the
    motion judges costs order.

[3]

The relevant background is set out in the motion judges reasons and
    need not be repeated here.

Jurisdiction

[4]

Counsel challenges the motion judges jurisdiction ruling on two
    grounds. First, he argues the motion judge erred in law by characterizing the
    nature of the claim as contractual, as opposed to taking the claim at face
    value as a tort claim. Counsel submits the characterization of the claim as
    contractual was crucial to the motion judges ruling on the jurisdiction motion.
    Counsel further contends, that by characterizing the claim the way he did, the
    motion judge wrongly turned what was a jurisdictional motion into a pleadings
    motion.

[5]

Second, the appellants submit that some of the motion judges factual
    findings in respect of the presumptive connecting factors relevant to
    jurisdiction cannot stand. For example, the appellants take issue with the
    factual finding that the defendant corporation did not carry on business in
    Ontario.

[6]

We will address the second submission first. The motion judge considered
    the evidence said to be relevant to the existence of the presumptive factors,
    including whether the corporate defendant carried on business in Ontario. After
    considering the evidence, he concluded the appellants had failed to demonstrate
    the corporate defendant carried on business in Ontario. That is a finding of
    fact and is reviewable only for palpable and overriding error. We see none.

[7]

The first argument advanced by the appellants does raise a question of
    law. The argument targets para. 31 of the motion judges reasons:

The claim advanced by the plaintiffs in this action, in my
    view, rises or falls with respect to whether or not there has been a breach of
    contract. The action, if it was allowed to proceed in Ontario, in my view is a
    simple breach of contract action.
What the plaintiff
    Rieder has attempted to do is plead claims in tort and defamation in the hope
    that he can obtain a jurisdictional advantage by proceeding with his claim in
    Ontario. Without the contract Rieder has no claim. The plaintiffs claim, if
    there is one, is a breach of contract action
. [Emphasis added.]

[8]

The appellants argue the motion judge could not go behind the characterization
    of the claims as pleaded, but was, for the purposes of jurisdiction, required
    to accept that characterization.

[9]

We do not agree. At root, jurisdictional assessments are about
    determining the connection of the claims made by a plaintiff to Ontario. As
    indicated in
Club Resorts Ltd. v. Van Breda
, 2012 SCC 17, at para. 99:

The purpose of the conflicts rules is to establish whether a
    real and substantial connection exists between the forum, the subject matter of
    the litigation and the defendant. If such a connection exists in respect of a
    factual and legal situation, the court must assume jurisdiction over all
    aspects of the case.

[10]

A court considering a jurisdictional motion must consider the subject
    matter of the litigation and the factual and legal situation presented in the
    claim. This inquiry does not necessarily end with the plaintiffs
    characterization of the claim. The form of the claim cannot trump the substance
    of the claim when addressing a jurisdictional argument.

Forum Non Conveniens

[11]

The motion judge went on to hold that even if an Ontario court had
    jurisdiction over the claim, Germany was the appropriate forum for any trial.

[12]

The connections to Germany included:

·

the
    parties had agreed, with exceptions that are irrelevant here, that all claims
    arising from their business relationship would be litigated in Germany,
    applying German law;

·

all
    of the defendants and their witnesses are resident in Germany; and

·

physical
    evidence potentially relevant to the claims was located in Germany.

[13]

The motion judge recognized there were factors that provided some
    connection to Ontario (Reasons, at para. 34). He described the connection as
    weak at best, holding that Germany was the appropriate forum for the
    determination of the issues. The appellant has not pointed to any error in law
    made by the motion judge in his
forum non-conveniens
analysis. Nor has
    he demonstrated any misapprehension of material facts. The balancing of the
    competing factors was an exercise for the motion judge. He made no reversible
    error.

The Costs Appeal

[14]

The appellants seek leave to appeal costs. Counsel submits that the
    amount awarded, $15,000, is excessive.

[15]

Leave to appeal costs, especially if the proposed grounds of appeal
    relate solely to quantum, is seldom granted by this court. There is no reason
    to grant leave in this case.

Conclusion

[16]

The appeal is dismissed. Leave to appeal costs is refused.

[17]

The parties may make written submissions as to the costs of the appeal.
    Those submissions should not exceed 3 pages. The parties will exchange
    submissions and file those submissions with the court within 30 days.

Doherty J.A.

Grant Huscroft J.A.

A. Harvison Young
    J.A.


