



COURT OF APPEAL FOR ONTARIO

CITATION:
Kyko
    Global Inc. v. M/S Crawford Bayley & Co., 2021 ONCA 736

DATE: 20211020

DOCKET:
C68842

Rouleau, Hoy and Thorburn JJ.A.

BETWEEN

Kyko Global Inc.

Plaintiff (Respondent)

and

M/S Crawford Bayley & Co. and Sanjay Asher

Defendants (Appellants)

James Bunting and Anisah Hassan, for the appellants

Jayson W. Thomas and Laura Chiu, for the respondent

Heard: September 24, 2021 by video conference

On appeal from the order of Justice Michael T. Doi of the
    Superior Court of Justice, dated October 30, 2020, with reasons at 2020 ONSC 6537.

Hoy J.A.:

[1]

The appellants, M/S Crawford Bayley & Co.
    and Sanjay Asher (Mr. Asher), are a law firm based in Mumbai, India, and
    a senior partner of that firm, respectively. Before the motion judge, they
    unsuccessfully argued that Ontario lacks jurisdiction over, and is not the
    convenient forum for, the respondent, Kyko Global Inc.s action against them.
    They appeal the motion judges dismissal of their motion seeking the stay or
    dismissal of Kykos action.

Background

[2]

Kyko, an Ontario corporation, had retained the
    appellants to provide an opinion on the enforceability of a guarantee to be
    provided by Sical Logistics Limited (Sical or the guarantor), a publicly-traded
    company in India. The guarantee was security for a trade finance facility
    provided by Kyko to another Indian company, West Coast Marine Private Limited.
    In a letter dated September 9, 2010 addressed to Kykos Ontario counsel, the
    appellants opined that the guarantee was enforceable in accordance with its
    terms. The guarantee had Ontario choice of law and forum provisions.

[3]

Unbeknownst to Kyko, it was Mr. Ashers cousin,
    Yogesh Asher, who effectively brokered Kykos agreement to provide the trade
    facility to West Coast Marine Private Limited.

[4]

The facility went into default and Kyko obtained
    a default judgment in Ontario against Sical. Sical obtained an interim
    injunction from the High Court of Judicature at Madras, in India, to restrain
    enforcement of the default judgment by alleging that the guarantee was a
    forgery. Police in the City of Chennai (also known as Madras) opened a criminal
    investigation and concluded that the signatures on the guarantee were forged.

[5]

Kyko subsequently brought this action against
    the appellants for negligent and fraudulent misrepresentation and breach of
    contract. At the time the motion was heard, Sicals injunction application was
    still pending before the Madras High Court. The motion judge noted that Kyko
    concedes that its claim against the appellants may only proceed if the
    guarantee is a forgery, and as a result depends on the outcome of the
    proceeding in the Madras High Court.

The motion judges decision

[6]

Applying the test in
Club Resorts
    Ltd. v.
Van Breda
, 2012
    SCC 17, [2012] 1 S.C.R. 572, the motion judge concluded that two
    presumptive connecting factors were present. Therefore, there was a presumption
    that there was a real and substantial connection between the subject matter of
    the litigation and Ontario.

[7]

First, there was a good arguable case that the
    tort (fraudulent or negligent misrepresentation) took place in Ontario: in particular,
    there was a good arguable case that the appellants legal opinion was first
    provided to Kyko in Ontario; arrangements were made in Ontario to advance the
    credit facility; and Kyko suffered damages in Ontario.

[8]

Second, there was a good arguable case that the
    contract connected to the dispute was made in Ontario. Kyko pleaded this in its
    statement of claim, and the appellants did not adduce any evidence to challenge
    or deny it. In the absence of evidence from the appellants to challenge or deny
    the facts pleaded in Kykos claim, Kyko could rely on those facts, which are
    presumed to be true, to presumptively demonstrate jurisdiction
simpliciter
:
Ontario v. Rothmans Inc.
, 2013 ONCA
    353, 115 O.R. (3d) 561, at paras. 111-114, leave to appeal refused, [2013] S.C.C.A.
    No. 327;
Vahle v. Global Work & Travel Co. Inc.
, 2020 ONCA 224, at para. 13.

[9]

The motion judge noted that the burden of
    rebutting the presumption of jurisdiction is on the party challenging it. The
    appellants were required to show facts to demonstrate that the presumptive
    connecting factors do not point to any real relationship between the subject
    matter of the litigation and the forum, or point to a weak relationship:
Van Breda
, at para. 95. The motion
    judge found that they had failed to do so and, accordingly, that Ontario had
    jurisdiction
simpliciter
over the action.

[10]

The motion judge then considered whether the
    appellants had discharged their burden of showing why jurisdiction should nevertheless
    be declined in favour of a different forum (
forum non conveniens
). He correctly noted that the standard to displace the plaintiffs
    chosen forum is high: the alternate forum must be clearly more appropriate
    such that it would be fairer and more efficient to decide the dispute there:
Van Breda
, at paras. 108-9.

[11]

As I discuss in more detail below in addressing
    the fifth issue that the appellants raise on appeal, the motion judge
    considered six factors in the course of his analysis. He concluded that the
    appellants had not discharged their burden to show that their proposed
    alternate forum, Mumbai, is clearly more appropriate.

Issues on appeal

[12]

The appellants raise five issues on appeal:


1.

Did the motion judge reverse the burden of proof on the test for
    jurisdiction
simpliciter
?

2.

In his jurisdiction
simpliciter
analysis, did the motion judge
    err by accepting allegations in the statement of claim as true despite evidence
    to the contrary?

3.

Did the motion judge discount the appellants evidence on the location
    of their witnesses in his
forum non conveniens
analysis as a result of
    a misreading of the applicable jurisprudence?

4.

Did the motion judge fail to consider relevant factors in his
forum non
    conveniens
analysis?

5.

Is the motion judges decision that the appellants had not discharged
    their burden to show that Mumbai was a clearly more appropriate forum
    unreasonable?

First, I address the standard of
    review. Then I address the appellants five issues in turn.

Standard of review

[13]

Whether or not a motion judge has erred in the application
    of the test for jurisdiction
simpliciter
is a
    question of mixed fact and law, reviewable for palpable and overriding error,
    unless an error in the application of the test can be attributed to an
    extricable question of law:
Airia Brands Inc. v. Air Canada
, 2017 ONCA 792, 417 D.L.R. (4th) 467 at para. 39, leave to appeal
    refused, [2017] S.C.C.A. No. 476.

[14]

The application of
forum non conveniens
is an exercise
    of discretion reviewable in accordance with the principle of deference to
    discretionary decisions. An appeal court should intervene only if the motion
    judge erred in principle, misapprehended or failed to take account of material
    evidence, or reached an unreasonable decision:
Young v. Tyco International
    of Canada Ltd.
, 2008 ONCA 709, 92 O.R. (3d) 161, at para. 27;
Éditions
    Écosociété Inc. v. Banro Corp.
, 2012 SCC 18, [2012] 1 S.C.R. 636, at para.
    41;
Haaretz.com v. Goldhar
, 2018 SCC 28, [2018] 2 S.C.R. 3, at para.
    49. Errors of law and clear and serious errors of fact may also give grounds
    for intervention:
Lapointe Rosenstein Marchand Melançon LLP v. Cassels
    Brock & Blackwell LLP
, 2016 SCC 30, [2016] 1 S.C.R. 851, at para. 54;
Van Breda
at para. 112.

[15]

With the standard of review in mind, I turn now to the appellants
    arguments on jurisdiction
simpliciter
.

(1)

Did the motion judge reverse the burden of proof on the test for
    jurisdiction
simpliciter
?

[16]

As noted above, the motion judge concluded that
    Kyko has a good arguable case that Kyko first received the opinion in Ontario,
    when it was sent to Kykos legal counsel.

[17]

The appellants point to the evidence that the
    original of the opinion was delivered to Kykos CEO, Mr. Kulkarni, in India. They
    argue that the motion judge erred in applying the test for jurisdiction
simpliciter
: he reversed the burden of proof by only considering whether that
    evidence rebutted the presumption of jurisdiction, and not in determining
    whether Kyko had discharged its onus of establishing that there was a good
    arguable case.

[18]

I reject this argument. The motion judge
    recounted that on September 9, 2010, Mr. Asher signed the opinion for his firm
    and faxed it to Ms. Thomas, Kykos external legal counsel, at her office in Brampton,
    Ontario. Then, on September 13, 2010, Mr. Ashers associate, Ms. Batra, emailed
    Ms. Thomas an electronic version of the opinion. That email indicated that the
    opinion is being handed over to Yogesh [Asher]. This was done so that he
    could hand-deliver the original opinion to Mr. Kulkarni. There was no
    evidence about when the original opinion was delivered to Mr. Kulkarni.
    The motion judge wrote that [i]t also appears from the record that Mr. Kulkarni
    could not have received the Opinion before it was sent to Ms. Thomas by
    facsimile on September 9, 2010 and by email on September 13, 2010.

[19]

Citing
Rothmans
, at paras. 53-54, and
Vahle
, at para. 13, the motion judge held that on a jurisdiction motion
    brought at an early stage of a proceeding, the court does not assess the facts
    of a case beyond deciding whether a good arguable case is shown to ground
    jurisdiction. After considering the appellants argument in relation to the
    delivery of the original opinion to Mr. Kulkarni, the motion judge concluded
    that Kyko has a good arguable case that Kyko first received the opinion in
    Ontario. The motion judge did not reverse the burden of proof. He considered
    the evidence on which the appellants rely both in concluding that Kyko has a
    good arguable case, and in concluding that the appellants had not rebutted the
    presumption of jurisdiction.

[20]

The appellants also argue that the motion judges
    conclusion that there was a good arguable case that the receipt of their
    opinion in Ontario by Ms. Thomas completed the tort of misrepresentation was
    tainted by legal error. They say that the document had to be received by a
    principal or directing mind of Kyko, and that did not occur until the opinion
    was delivered to Mr. Kulkarni in Mumbai.

[21]

I reject this argument. The opinion was
    addressed to Ms. Thomas. Mr. Kulkarnis evidence was as long as our lawyers
    were happy, I was happy. There was nothing for me to review. Here, there is
    clearly a good arguable case that receipt of the opinion by Ms. Thomas was
    receipt by Kyko.

[22]

Moreover, the tort of negligent or fraudulent
    misrepresentation occurs where the information is received and relied upon. Even
    if the opinion were first received in India, it should not deprive Ontario of
    jurisdiction. The appellants provided the opinion with the clear understanding that
    it would be relied on in Ontario: see
Central Sun Mining Inc. v.
    Vector Engineering Inc.
, 2013 ONCA 601, 117 O.R. (3d) 313,
    at para. 33, leave to appeal refused, [2013] S.C.C.A. No. 475.

(2)

Did the motion judge err by accepting allegations in the statement of
    claim as true despite evidence to the contrary?

[23]

As noted above, the motion judge further
    concluded that there was a good arguable case that the contract connected to
    the dispute was made in Ontario. Kyko pleaded this in its statement of claim,
    and the appellants did not adduce any evidence to challenge or deny it.

[24]

The appellants argue that the motion judges
    conclusion was tainted by palpable and overriding error. They say that Kykos
    pleading was in fact contradicted by Mr. Kulkarnis evidence on
    cross-examination. The motion judge accordingly erred in relying on the pleaded
    facts, and there was not a good arguable case that the contract connected to
    the dispute was made in Ontario. Further, they argue that the motion judge
    erred in law in permitting Kyko to rely on its pleading that the contract was
    made in Ontario: that was a legal conclusion, not an allegation of fact.
    Moreover, it was a bald conclusory statement and was not sufficiently particularized.

[25]

I disagree.

[26]

In cross-examination, Mr. Kulkarni was directed
    to the Notice of Examination, which asked that he produce evidence of any
    payment made by Kyko to the appellants in return for the provision of legal
    services and any contract or retainer agreement between Kyko and the
    [appellants].

[27]

Mr. Kulkarni confirmed that he did not produce
    any such documents because there werent any. During that exchange, he made the
    following statement, on which the appellants rely:

Obviously we didnt make any payment, if that
    is the question. But say in return for the provision of legal services, I
    said that
they didnt provide any legal services
    to Kyko,
so I dont know what this thing refers to. [Emphasis
    added.]

[28]

The appellants say the substance of Mr.
    Kulkarnis evidence is that Kyko did not have a contract with the appellants
    (they did not provide any legal services to Kyko) and, since there was no
    contract, there could not have been a contract made in Ontario.

[29]

I am not persuaded that the motion judges
    conclusion that there was a good arguable case that the contract connected to
    the dispute was made in Ontario is tainted by palpable and overriding error.

[30]

On the motion, there was no dispute that the
    appellants delivered the opinion and that they had been retained to do so.
    Indeed, Mr. Ashers evidence was that Kyko required that Crawford Bayley
    provide a legal opinion concerning the guarantee and that Crawford Bayley did
    not have written agreements with all its clients. The appellants did not argue
    below that there was no contract. The only issue was where the contract was
    made. In context, including that the opinion was addressed to Kykos Ontario
    legal counsel, Mr. Kulkarnis evidence does not contradict Kykos pleading that
    the contract was made in Ontario. The appellants should not now be permitted to
    assert that there was no contract.

[31]

Nor am I persuaded that the motion judge erred
    in principle by failing to require Kyko to lead evidence to support its pleading
    that the contract was made in Ontario. The appellants do not appear to have
    argued below that Kyko could not rely on its pleading to establish a
    presumptive connective factor because it pleaded a legal conclusion, or because
    it did not provide sufficient particulars. Moreover, in context, I would not
    characterize the allegation as a purely legal conclusion. Rather, as the motion
    judge found, it is essentially a factual allegation.

[32]

In
Rothmans
, at para. 113, this court suggested that a plaintiff asserting
    jurisdiction may be required call evidence to support undenied allegations in a
    statement of claim either where the cause of action as pleaded appears to be
    devoid of merit or where the pleadings fail to demonstrate any air of reality
    concerning the possible existence of the presumptive connecting factor. I agree
    with the motion judge that this is not such a case. Kyko pleaded that it is an
    Ontario corporation with its head office in Brampton, Ontario, and that the
    appellants delivered the opinion. It is open to the appellants to seek
    particulars under r. 25.10 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.

[33]

In summary, I am not persuaded that the motion judge committed any palpable
    and overriding error of fact or any extricable error of law in finding that
    Ontario had jurisdiction
simpliciter
. I turn
    next to the appellants challenges to the motion judges
forum non
    conveniens
analysis.

(3)

Did the motion judge discount the appellants evidence on the location
    of their witnesses in his
forum non conveniens
analysis as a result of
    a misreading of the applicable jurisprudence?

[34]

One of the relevant factors in determining
    whether a defendant has discharged its burden of showing why jurisdiction
    should be declined to displace the forum chosen by the plaintiff is the
    comparative convenience and expense for the parties to the proceeding and for
    their witnesses in litigating in the court or in any alternative forum.

[35]

The motion judge concluded that this factor was
    neutral in this case. This ground of appeal arises out of the underlined
    portion of the passage below from the motion judges reasons addressing the
    comparative convenience and expense for the witnesses:

[51] Similarly, I find that the comparative convenience and
    expense for the witnesses is largely neutral in this matter. Kykos witnesses,
    including Mr. Kulkarni and Ms. Thomas, are in Ontario. Sanjay Asher, Ms. Batra
    and Yogesh Asher, are located in Mumbai. Mr. Rajappan and Mr. Sundar purportedly
    signed the Guarantee for Sical, but it is unknown if they are in India,
    Singapore or elsewhere. The Defendants may call others from Sical to testify,
    but do not know whether anyone at Sical has anything relevant to say and, if
    so, who or where they are. The Defendants may call a police witness from
    Chennai, located about 1,300 km from Mumbai, to testify about the forgery investigation.
    They also submit that Amit Punde, Kykos former representative in Pune, may be a
    witness, although Mr. Punde did not witness any relevant events and can only
    give second-hand information about the forgery investigation, which the police
    witness likely will address.
As the
Defendants gave little or no information as to what their
    witnesses will say, apart from Sanjay
Asher and
    Ms. Batra, I am persuaded to treat their proposed list of witnesses with
    caution:
Goldhar

at para 57
.

[52] Should a party or witness outside of Ontario not wish to
    travel to Brampton for any part of this proceeding, Kyko has undertaken to
    consent to their attendance by videoconferencing, which is how the parties
    conducted cross-examinations on the affidavits for this motion. The Defendants did
    not object to video testimony and led no evidence to suggest that any of its
    witnesses would not agree to testify by video. As a result, I find that video
    technology may offer a fair, convenient, and cost-effective way to obtain
    testimony from witnesses abroad at trial in Ontario:
Davies v.
Clarington
,
    2015 ONSC 7353 at paras 23-28. In contrast, there was no evidence of whether
    video evidence is permitted by the High Court of Bombay. [Emphasis added.]

[36]

The
    appellants argue that the motion judge relied on a passage in the decision of
    the motion judge in
Goldhar
that Côté J. overruled when the decision
    was appealed to the Supreme Court. She held at para. 67 that the motion judge
    had

erred by unreasonably discounting [the defendant] Haaretzs
    proposed witnesses and the relevance of their evidence. Haaretz had, in its
    factum, described what these 22 witnesses may speak to and had filed a
    supplemental affidavit briefly describing the evidence that 8 of the witnesses
    might give to assist it at trial. Goldhar had, in comparison, no evidence
    concerning the witnesses he might call and what those witnesses would speak to.

[37]

Côté
    J. described the motion judges error as involving a complete misapprehension
    of, or failure to consider, material evidence (at para. 50), and the motion
    judges conclusion regarding the comparative convenience and expense for the
    witnesses as wholly unreasonable in light of the evidence before him (at
    para. 55.) She concluded that this factor heavily favoured the forum proposed
    by the defendant (Israel). She also held that the motion judge erred in giving
    weight to the notion of having the Israeli witnesses (many of whom were
    reluctant) testify by videoconference, since there was no evidence that an
    Ontario court could compel them to do so.

[38]

The
    appellants argue that they, like the defendant Haaretz in
Goldhar
,
    provided a list of their proposed witnesses and a brief description of what
    some of them would speak to, and the motion judge therefore erred in treating
    their witness list with caution. They say this led the motion judge to
    erroneously conclude that the factor of comparative inconvenience for the
    witnesses was neutral. They submit that the motion judges error is not saved
    by his observation that videoconferencing may be an option for witnesses from
    outside of Ontario. They point to what they say are the inherent frailties of
    testifying by videoconference.

[39]

While
    the motion judge in this case erred in citing to the overruled passage in
Goldhar
,
    I am not persuaded that this warrants interference by this court. The
    appellants do not impugn any of the motion judges findings of fact in the
    passages reproduced above. The motion judge acknowledged that the appellants
    had provided information about what some of their witnesses (Mr. Asher and Ms.
    Batra) will say. Unlike Haaretz in
Goldhar
, however, Mr. Asher could
    not say what, if any relevant evidence the other witnesses might be able to
    provide. The motion judge in this case, therefore, unlike the motion judge in
Goldhar
,
    did not misapprehend the evidence and his conclusion was reasonable. His error
    in citing to
Goldhar
did not lead him to conclude that the factor of
    comparative inconvenience to witnesses was largely neutral.

[40]

Further,
    while I appreciate that there is a 9½-hour time difference between Ontario and
    Mumbai, the appellants have not demonstrated any error in principle concerning
    the motion judges observation that videoconferencing technology may offer a
    fair, convenient and cost-effective way to obtain testimony from witnesses
    abroad at trial in Ontario. It is open to an Ontario court to modify its usual
    sitting hours to better accommodate an out-of-country witness. Even before the COVID-19
    pandemic made videoconferencing software ubiquitous, Canadian courts have considered
    the possibility of proceeding electronically as part of the
forum non
    conveniens
analysis:
Tyco
at para. 52;
Henry Estate v. Henry
,
    2012 MBCA 4, 275 Man. R. (2d) 90, at paras. 54-57. The motion judge in this
    case did not fall into the error in
Goldhar
. Unlike Haaretz, the
    appellants did not adduce evidence that their witnesses in India would not testify
    voluntarily. The motion judge did not

rely on videoconferencing to
    overcome the problem of foreign witnesses who are unwilling to testify, in the
    absence of evidence that those witnesses could be compelled in Ontario.

(4)

Did the motion judge fail to consider relevant factors in his
forum
    non conveniens
analysis?

[41]

The
    appellants argue that the motion judge erred in principle in his
forum non
    conveniens
analysis because he failed to consider the jurisdiction where
    the factual matters arose and the location of the evidence.

[42]

I
    am not persuaded that, in the context of this case, the fact that the motion
    judge did not specifically address these two factors in his reasons constitutes
    an error in principle or resulted in an unreasonable decision.

[43]

In
Van Breda
, LeBel J. wrote the following at paras. 105 and 110:

A party applying for a stay on the basis of
forum non
    conveniens
may raise diverse facts, considerations and concerns. Despite
    some legislative attempts to draw up exhaustive lists, I doubt that it will ever
    be possible to do so. In essence, the doctrine focusses on the contexts of
    individual cases, and its purpose is to ensure that both parties are treated
    fairly and that the process for resolving their litigation is efficient



[T]he factors that a court may consider in deciding whether to
    apply
forum non conveniens
may vary depending on the context and might
    include the locations of parties and witnesses, the cost of transferring the
    case to another jurisdiction or of declining the stay, the impact of a transfer
    on the conduct of the litigation or on related or parallel proceedings, the
    possibility of conflicting judgments, problems related to the recognition and
    enforcement of judgments, and the relative strengths of the connections of the
    two parties.

[44]

As
    discussed in more detail below, the motion judges reasons reflect that he
    considered and balanced the following six factors in his
forum non
    conveniens
analysis: the comparative convenience and expense to the
    parties and witnesses in litigating in Ontario or India; the law to be applied
    to the issues in the proceeding; the desirability of avoiding a multiplicity of
    proceedings; the desirability of avoiding conflicting decisions in different
    courts; the enforcement of an eventual judgment; and the fair and efficient
    working of the Canadian legal system as a whole.

[45]

The
    appellants assert that all the underlying conduct described in Kykos statement
    of claim occurred in India, and that the majority of the physical evidence is
    located in India. These two factors clearly favour India. When these factors
    are considered (as they should have been), Mumbai is clearly a more appropriate
    forum than Ontario.

[46]

While the opinion was prepared in India, the motion judge found
    that
there was a good arguable case that the appellants legal
    opinion was first provided to Kyko in Ontario. Arrangements were made in
    Ontario to advance the credit facility, and Kyko suffered damages in Ontario.
    All the underlying conduct did not occur in India.

[47]

As to the significance of the physical evidence,
    on cross-examination, Mr. Asher admitted that he relied on only four
    documents in forming the opinion: the guarantee, the minutes of two board
    meetings of the guarantor relating to it, and the memorandum articles of
    association of the guarantor. He does not remember if he has ever seen the
    originals of the guarantee or minutes. The appellants do not identify any other
    documents that they say will be required in this case and are located in India.
    In assessing the comparative convenience to the parties and the witnesses, the
    motion judge considered that Mr. Asher is located in Mumbai.

[48]

In the context of this case, the factors that the appellants argue
    the motion judge should have considered are minor, and are largely subsumed by
    the motion judges analysis of the comparative convenience and expense to the
    parties and witnesses in litigating in Ontario or Mumbai.

(5)

Is the motion judges decision that the appellants had not discharged
    their burden to show that Mumbai was a clearly more appropriate forum
    unreasonable?

[49]

While noted above, for ease of reference, I
    repeat that the motion judge considered, and balanced, six factors in concluding
    that the appellants had not met the onus of showing India to be a
clearly
more
    appropriate forum for the action than Ontario: (1) the comparative convenience
    and expense for the parties to the proceeding and for their witnesses in
    litigating in Ontario or India; (2) the law to be applied to the issues in the
    proceeding; (3) the desirability of avoiding a multiplicity of proceedings; (4)
    the desirability of avoiding conflicting decisions in different courts; (5) the
    enforcement of an eventual judgment; and (6) the fair and efficient working of
    the Canadian legal system.

[50]

The motion judge found that the first four
    factors were neutral, the fifth factor favoured Mumbai, and the final factor
    favoured Ontario. As a result, he concluded that the appellants had not met the
    onus of showing India to be a clearly more appropriate forum than Ontario.

[51]

The appellants argue that the motion judge
    unreasonably concluded that the first four factors are neutral, and that the
    final factor favoured Ontario. They say these factors clearly favour India and,
    as a result, the motion judges conclusion that they had not met their onus of
    showing India to be a clearly more appropriate forum was unreasonable. Below, I
    address their arguments with respect to each of the challenged factors. As I
    will explain, the motion judges conclusions were reasonable.

[52]

As to the first factor (the comparative
    convenience and expense for the parties to the proceeding and for their
    witnesses in litigating in Ontario or in India), the appellants argue that,
    while an Ontario corporation, Kyko carries on business in India and was
    carrying on business in India in connection with and at the time it received
    the opinion and the vast majority of the witnesses are domiciled in India. They
    argue that, in light of this, the motion judges conclusion that the first
    factor is neutral was unreasonable.

[53]

I disagree. The motion judge noted that Kyko is
    situated in Brampton, Ontario and
no longer
has a business presence in
    India. Its CEO, Mr. Kulkarni, is based in Ontario and visits India
    infrequently. The motion judge did not fail to consider or misapprehend the
    evidence or make a clear and serious error of fact about Kykos business
    activities in India. In assessing the comparative convenience and expense to the
    parties, the motion judge reasonably focused on Kykos current situation,
    rather than what might have been its situation in the past.

[54]

Above, in addressing the third issue that the
    appellants raise on this appeal, I reproduce the motion judges analysis of the
    comparative convenience and expense for the witnesses. The motion judge did not
    find that the vast majority of the witnesses are domiciled in India. Further,
    his analysis reasonably considered more than the number of witnesses on each
    partys list of proposed witnesses. His decision that this factor is neutral
    was reasonable.

[55]

The appellants argue that, at its core, this
    action is about whether an Indian lawyer met the expected standard of care of
    an Indian lawyer in providing the opinion and that is a matter of Indian law.
    Accordingly, they argue, the motion judges conclusion that both Indian and
    Ontario law are implicated in this case, and the second factor

applicable law

was therefore a neutral factor, was unreasonable.

[56]

The motion judge specifically considered that
    Indian law was implicated because of this standard of care issue. However, he
    accepted that Ontario law was also implicated because of Kykos position that
    the place of the tort is Ontario, where it received and acted on the allegedly
    negligent
and fraudulent
representation in the opinion, and that Kykos contract claim
    pleads a breach of contract made in Ontario. The motion judge did not accept
    that, at its core, this action is about professional negligence.

[57]

The motion judges conclusion that both Indian
    and Ontario law are implicated in this case and that applicable law is
    therefore a neutral factor is reasonable.

[58]

Turning to the third and fourth factors
    (desirability of avoiding a multiplicity of proceedings and conflicting decisions),
    the appellants say that given that the Madras High Court will consider whether
    the guarantee is a forgery, it would be eminently reasonable for the Madras
    High Court to also determine the issues raised in Kykos action. The motion
    judges conclusion that these factors were neutral is accordingly unreasonable.

[59]

I disagree. The motion judge specifically
    recognized that the Madras High Court is to consider whether the guarantee is a
    forgery, which will overlap with Kykos claims against the appellants. He noted,
    however, that neither party viewed the Madras High Court as an appropriate or
    convenient forum: the appellants submitted that the High Court of Bombay in
    Mumbai was the convenient forum. He held that there was no evidence on this
    motion to suggest that having this proceeding heard in Mumbai would lead to any
    ongoing efficiencies with the ongoing matter in the Madras High Court or
    mitigate the multiplicity of proceedings. There was no indication that the
    parties or claims in the matter before the Madras High Court could be
    consolidated with Kykos action against the appellants if it were heard before
    the High Court of Bombay and it seemed likely that the litigation in Chennai
    will continue as a separate proceeding, whether Kykos claim is heard in Mumbai
    or Ontario. Nor was there any suggestion that having Kykos claim heard in
    Mumbai would result in procedural efficiencies with litigation in Chennai by
    allowing common records, productions or other evidence to be shared in both
    proceedings, or by allowing any appeals from the proceeding to be joined or
    heard in tandem. Further, whichever court hears Kykos claim  whether in
    Ontario or Mumbai  will likely have to consider the risk of a conflicting
    decision in the Madras High Court proceedings.

[60]

On appeal, the appellants attempt to re-cast
    their position before the motion judge, submitting that the Madras High Court
    is the clearly more convenient forum. However, Mr. Ashers evidence was that
    Kykos action should be heard in Bombay. The motion judges conclusion that the
    third and fourth factors are neutral is reasonable.

[61]

With
    respect to the sixth factor, the appellants argue that an Indian court is
    clearly in a better position to dispose fairly and efficiently of the
    litigation. Indeed, they say it is unfair to require an Indian law firm and
    lawyer who provided an opinion about the enforceability in India of a guarantee
    given by an Indian company to an Ontario company which carried on business in
    India to defend an action in Ontario arising out of their provision of that
    guarantee. They say this case is different from
Sincies Chiementin S.p.A.
    (Trustee of) v. King
, 2012 ONCA 653, leave to appeal refused, [2012]
    S.C.C.A. No. 516, on which the motion judge relied, in concluding that it was
    fair for the appellants to be called to account in Ontario. Mr. Asher is a
    lawyer in a regional law firm in India, not a lawyer who specializes in
    international business law like the lawyer in
Sincies
. Further, they say
    that the motion judge leant instinctively in favour of his own jurisdiction,
    which
Van Breda
, at para. 112, cautions against.

[62]

The motion judge instructed himself that, having
    regard to the case as a whole, he must consider and balance the broader issues
    of fairness and efficiency of a particular forum with the justice of that
    choice to the parties. He found himself unable to assess the juridical
    advantage factor, and the appellants do not fault that finding.

[63]

He concluded that overall fairness
    considerations favoured Ontario. In his view, this case was like
Sincies
because, like the lawyer in that case, the appellants
    are sophisticated legal professionals who advised Kyko, an Ontario corporate
    client, knowing that it would receive and act upon the advice in the forum. It
    would therefore be fair for the appellants to account for their conduct in
    Ontario. The motion judge held that the appellants had not shown that the High
    Court of Bombay would be a substantially less inconvenient and expensive forum.

[64]

In my view, that conclusion is reasonable. Whether
    or not Mr. Asher specialized in international business law, the appellants are
    one of Indias oldest law firms and a senior partner at that firm. As the
    motion judge found, they are sophisticated legal professionals who advised an
    Ontario corporation, and there was a good arguable case that the opinion was
    first provided to Kyko in Ontario and relied upon there. The motion judges
    analysis was rigorous and much more than an instinctive favouring of his own
    jurisdiction.

Disposition

[65]

For
    these reasons, I would dismiss the appeal, with costs to Kyko in the
    all-inclusive amount of $20,000.

Released: October 20, 2021 PR

Alexandra Hoy J.A.

I agree. Paul
    Rouleau J.A.

I agree. Thorburn
    J.A.


