



COURT OF APPEAL FOR ONTARIO

CITATION: GIAO Consultants Ltd. v. 7779534
    Canada Inc., 2020 ONCA 778

DATE:  20201209

DOCKET: C68457

MacPherson,
    Zarnett and Jamal JJ.A.

BETWEEN

GIAO
    Consultants Ltd.

Plaintiff
    (Respondent)

and

7779534
    Canada Inc.
, CIV Carbon Credit Ltd., Maxime
    Lemieux, McMillan S.E.N.C.R.L., Osvaldo Minchella,
Adriana Shaw also known
    as Adriana Rios Garcia
,
Martin Nicoletti
and
David Grondin

Defendants
    (
Appellants
)

Shannon Bennett, for the appellants

Alexander G. Munera and Brent Mendiola,
    for the respondent

Heard: November 26, 2020 by video conference

On appeal from the order of Justice Jill C.
    Cameron of the Superior Court of Justice, dated July 8, 2020, with reasons at
    2020 ONSC 3686

REASONS
    FOR DECISION


[1]

The appellants 7779534 Canada Inc. (777),
    Adriana Shaw, Martin Nicoletti and David Grondin appeal from the order of
    Justice Jill C. Cameron of the Superior Court of Justice dated July 8, 2020. In
    that order, supported by reasons for decision dated June 12, 2020, the motion
    judge held that the Superior Court has jurisdiction over the action brought by
    the respondent GIAO Consultants Ltd. (GIAO) against the appellants and other
    parties who are not participants in this appeal. The motion judge also held
    that the Superior Court was
forum conveniens
for the action.

[2]

The appellants appeal both the jurisdiction and
forum
    conveniens
components of the motion judges decision.

[3]

GIAO issued a statement
    of claim on January 21, 2020 claiming against the appellants and others for
    breach of contract, negligence, intentional misrepresentation, breach of trust
    and/or fiduciary duty, and civil conspiracy.

[4]

Two of the
    defendants in the action, Maxime Lemieux and McMillan S.E.N.C.R.L., have
    already filed their statement of defence, thereby submitting to the
    jurisdiction of Ontario courts. Two other defendants, CIV Carbon Credit Ltd. and
    Osvaldo Minchella, are residents of Ontario.

[5]

The remaining
    four defendants  777, Shaw, Nicoletti and Grondin  did not submit to the
    jurisdiction of Ontario courts. They brought a motion to challenge the
    jurisdiction of the Ontario courts or, in the alternative, to seek a
    declaration that Ontario was
forum non conveniens
to determine the proceeding.

[6]

The motion judge
    rejected both components of the appellants claim. She found that Ontario
    courts had jurisdiction
simpliciter
to hear and determine the claim and that
    Ontario courts were not
forum non conveniens
for the appellants claim.

Jurisdiction

[7]

The appellants concede that the motion judge was
    correct to consider the presumptive connecting factors from
Club Resorts
    Ltd. v. Van Breda
, 2012 SCC 17, at para. 91, to determine whether an
    Ontario court is entitled to assume jurisdiction  (1) the defendant is domiciled
    or resident in Ontario; (2) the defendant carries on business in Ontario; (3)
    the commission of a tort in Ontario; or (4) a contract connected with the
    dispute was made in Ontario.

[8]

The motion judge found that three of these
    presumptive connecting factors were present  the appellants (moving parties) were
    conducting business in Ontario, a tort was committed in Ontario, and the
    contract connected with the dispute was made in Ontario.

[9]

The appellants contest this component of the
    motion judges decision on two bases.

[10]

First, the appellants point to a single laconic
    sentence (The defendants have not filed a Statement of Defence.) in the
    motion judges decision to ground a submission that she improperly drew an
    adverse inference against them and that this constitutes an error of law.

[11]

We do not accept this submission. In our view,
    the motion judge made this statement in the context of her analysis of whether
    a tort was committed in Ontario  a necessary step when assessing the
Van
    Breda
factors. The motion judge did nothing more than acknowledge the
    limits of what was available to her and upon which she was required to make her
    determination based on the
Van Breda
factors. The fact that there was
    no statement of defence available did not lead to an adverse inference.

[12]

Second, the appellants contend that the motion
    judge erred by making findings relating to the merits of the claim in the
    underlying action and that these findings will improperly flow through and bind
    the trial judge:
Young v. Tyco International of Canada Ltd.
, 2008
    ONCA, at para. 31.

[13]

We are not persuaded by this submission. Once
    again, the motion judges findings were made within the context of applying the
Van Breda
factors. These findings will not flow through and be
    determinative of the issues at trial; rather, they are based only upon the evidence
    available at the time of the motion for the purpose of assessing the
    presumptive connecting factors relating to the issue of jurisdiction. The
    motion judge was required to make some findings for the purpose of providing a
    decision on the motion and was permitted to rely on the respondents evidence
    for this purpose:
Young
, at paras. 33-34;
Van Breda,
at para
    72.

Forum non conveniens

[14]

The plaintiff entered into a contract with CIV
    Carbon Credit Ltd. and 777 titled Amended Share Purchase Agreement. Clause 5.7
    of this document provides:

Governing Law

This Agreement shall be construed, interpreted
    and enforced in accordance with, and the respective rights and obligations of
    the parties shall be governed by,
the laws of the Province
    of Quebec
and the federal laws of Canada applicable in such province,
    and each party irrevocably and unconditionally submits to the non-exclusive
    jurisdiction of the courts of such Province and all courts competent to hear
    appeals therefrom. [Emphasis added.]

[15]

The appellants submit that the motion judge erred
    in holding that Ontario courts were not
forum non conveniens
. The
    central claim grounding this submission is that the motion judge erred by
    concluding that expert evidence is not required to prove Quebec law in Ontario
    courts. The appellants point to this passage in the motion judges reasons:

The defendants submit that in order for the
    matter to proceed in Ontario, given the clause in the agreement related to
    governing laws, it would be necessary for them to hire experts in Quebec law.
    Lawyers and judges are trained and experienced in reading, understanding and
    interpreting the law. Should this clause govern the proceedings, I fail to see how
    it would be necessary to hire an expert to interpret Quebec law. If that were
    necessary, I doubt, in the overall cost of litigation this would be of such an
    amount that would render a proceeding in Ontario unfair and is not a factor
    that makes Ontario
forum non conveniens
. Further, if, as I have found,
    the contract was formed in Ontario, and the tort(s) were committed in Ontario
    the most that can be said at this stage is that the laws of Quebec
may
apply. [Emphasis in original.]

[16]

The appellants assert that the motion judge made
    two errors in this passage.

[17]

First, the appellants contend that the motion
    judge erred by concluding that expert evidence would not be required to prove
    Quebec law to the Ontario courts.

[18]

We do not accept this submission. We begin with
    the contextual point that a motion judges decision on a
forum non conveniens
issue is a discretionary one; an appellate 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:
Haaretz.com v.
    Goldhar
, 2018 SCC 28, at para. 49.

[19]

Against this backdrop, we observe that the trial
    judge did not state, in absolute terms, that hiring an expert to interpret
    Quebec law would not be necessary. She specifically saw the possibility that an
    expert would be required (If that were necessary) and then said that the cost
    of an expert would not render the proceedings in Ontario unfair. Moreover, it
    needs to be said that the respondents fundamental contract claim in its statement
    of claim is a simple one  CIV and 777 did not pay the $165,000 they accepted
    as the price of shares they purchased.

[20]

The appellants second assertion on the
forum
    non conveniens
issue is that the motion judge erred in saying that the
    most that can be said at this stage is that the laws of Quebec
may
apply.

[21]

We are not persuaded by this submission. To
    start, it appears to be inconsistent with the argument the appellants made on
    the jurisdiction issue. On that issue, the appellants say that the motion judge
    erred by making findings relating to the merits of the claim in the underlying
    action and that those findings would improperly flow through and bind the trial
    judge. Now, on the
forum non conveniens
issue, the appellants
    criticize the motion judges tentative language (may apply) on the basis that
    it completely disregards the express wording of the contract and the agreement
    of the parties that the contract is governed by the laws of Quebec (Factum,
    para. 35).

[22]

In addition, we observe that in the Governing
    Law clause of the contract, although the wording is explicit on governing law
    (the Province of Quebec), the clause also refers to the non-exclusive
    jurisdiction of the courts of such Province. Moreover, it is important to note
    that there are both contract and tort claims in the statement of claim and this
    may raise difficult questions of the applicable law.

Disposition

[23]

In conclusion, in our view, there is no good
    reason to overturn the motion judges decision on the issues of jurisdiction or
forum non conveniens
in this case. Ontario, easily, has jurisdiction
    to hear the case, and there is no basis to interfere with the motion judges
    discretionary decision that Ontario is a proper forum in which to hear the
    case.

[24]

The appeal is dismissed. The respondent is
    entitled to its costs of the appeal fixed at $18,700, inclusive of disbursements
    and HST.

J.C
    MacPherson J.A.

B.
    Zarnett J.A.

M.
    Jamal J.A.


