



COURT OF APPEAL FOR ONTARIO

CITATION:  James Bay Resources Limited v. Mak Mera Nigeria
    Limited, 2015 ONCA 781

DATE: 20151117

DOCKET: C60321

Hoy A.C.J.O., MacFarland and Lauwers JJ.A.

BETWEEN

James Bay Resources Limited

Plaintiff

(Respondent)

and

Mak Mera
    Nigeria Limited a.k.a. Mak Mera Limited and

Adewale
    Olorunsola a.k.a. Wale Sola

Defendants

(Appellants)

Mark Crane and Niklas Holmberg, for the appellants

Hilary Book and Nadia Chiesa, for the respondent

Heard:  November 5, 2015

On appeal from the order of Justice P. M. Perell of the Superior
    Court of Justice, dated March 9, 2015, with reasons reported at 2015 ONSC 1538.

MacFarland J.A.:

[1]

This is an appeal from the motions judges order dismissing the
    appellants motion to stay the within action on the grounds that the Ontario
    courts lacked jurisdiction simpliciter and Ontario was not the convenient forum
    for the determination of the dispute between the parties.

[2]

The factual background is fully detailed in the motion judges reasons
    at paras. 3-23. In short, the respondent entered into a Memorandum of
    Understanding (MOU) with the appellant Wale Sola dated March 3, 2011. The MOU was
    negotiated and signed in Ontario. It sets out an arrangement between the
    parties with respect to the acquisition of Nigerian oil and gas assets.

[3]

On February 12, 2012, the respondent and the appellant Mak Mera Limited
    entered into a Letter Agreement (LA) which replaced the earlier MOU. The LA  is
    far more detailed than the MOU. Wale Sola signed both the MOU and the LA.

[4]

A dispute arose between the parties in respect of their contractual
    arrangements and that dispute was fuelled by a letter sent by Mak Mera and Mak
    Mera Nigeria Limited to Royal Dutch Shell PLL on July 2, 2014. The letter was
    copied to the respondent as well as many others, including the Nigerian
    Ambassador to Canada and a number of officials of the Nigerian government.
    Absent truth, the statements made in the letter are quite clearly defamatory of
    the respondent.

[5]

By Statement of Claim issued September 4, 2014, the respondent commenced
    proceedings against Mak Mera Nigeria Limited and Wale Sola in Ontario.

[6]

On September 16, 2014 Mak Mera Nigeria Limited, Wale Sola and Solas
    father-in-law (a Nigerian resident and chairman of Mak Mera) commenced an
    action in Nigeria against numerous parties including the respondent and its
    CEO, Stephen Shafsky. Some of the claims in the Nigerian action are similar to
    those in the Ontario action.

[7]

The respondent moved in The Federal High Court of Nigeria to strike the
    Nigerian action on grounds that the Nigerian court lacked jurisdiction and was
    unsuccessful. The respondent is appealing that order.

[8]

On March 2, 2015, the appellants moved to strike or permanently stay the
    Ontario action. In his reasons the motion judge concluded that Ontario had
    jurisdiction simpliciter and identified several presumptive factors that would
    apply, including that Wale Sola is an Ontario resident and both the MOU and the
    LA were negotiated and signed in Ontario. He observed that the latter provides
    that it is governed by Ontario law and contains a choice of forum clause that
    names Ontario as the jurisdiction where any disputes would be resolved.

[9]

In para. 28 of his reasons he noted:

Neither Mak Mera nor Mr. Sola has advanced any cogent argument
    that there is a rebuttal of the contractual connection as a presumptive factor.
    Their arguments may be relevant to the issue of forum conveniens, but
    jurisdiction simpliciter is not rebutted.

[10]

In
    this court the appellants made no oral submissions on this issue but relied on
    their factum. I would echo the observation of the motion judge in relation to
    those submissions. The arguments raised go to the merits of the claims and the
    interpretive exercise that awaits the trial judge. Whether the agreements
    contemplated the payment of success fees on the achievement of certain
    milestones or merely payments on account for services rendered go to the
    merits of the issues that will be litigated. They do not displace or challenge
    the fact that both agreements were negotiated and signed in Ontario and that Mr. Sola
    is resident in Ontario - both strong, presumptive factors.

[11]

The
    appellants argue that the motion judge erred in law in failing to specifically
    consider comity in his analysis, relying on the 1993 decision of the Supreme
    Court of Canada in
Amchem Products Inc. v. British Columbia (Workers
    Compensation Board)
. That case dealt with anti-suit injunctions and is
    factually dissimilar to this case. Since
Amchem
the Supreme Court of
    Canada has released its decision in
Van Breda v. Village Resorts
, [2012]
    1 S.C.R. 572 which has over-taken the prior jurisprudence dealing with
    jurisdiction and forum conveniens issues. At para. 74 of
Van Breda
the
    court had this to say in relation to comity:

The goal of the modern conflicts system is to facilitate
    exchanges and communications between people in different  jurisdictions that
    have different legal systems. In this sense it rests on the principle of
    comity. But comity itself is a very flexible concept. It cannot be understood
    as a set of well-defined rules, but rather as an attitude of respect for and
    deference to other states and, in the Canadian context, respect for and
    deference to other provinces and their courts (citations omitted) Comity
    cannot  subsist in private international law without order, which requires a
    degree of stability and predictability in the development and application of
    the rules governing international or interprovincial relationships. Fairness
    and justice are necessary characteristics of a legal system, but they cannot be
    divorced from the requirements of predictability and stability which assure
    order in the conflicts system. In the words of La Forest J. in Morguard, what
    must underlie a modern system of private international law are principles of
    order and fairness, principles that ensure security of transactions with
    justice

[12]

Comity
    is not a stand-alone factor. It is part and parcel of the
forum non
    conveniens
assessment in a given case. In
Teck Cominco Metals Ltd. v.
    Lloyds Underwriters et al
., [2009] 1 S.C.R. 321 (which decision is quoted
    in
Van Breda
) the Chief Justice says at para 21:

The first argument is that s.11 of the
[Court
    Jurisdiction and Proceedings Transfer Act

(CJPTA)] does not apply
    where a foreign court has asserted jurisdiction. I cannot agree. The CJPTA
    creates a comprehensive regime that applies to all cases where stay of
    proceedings is sought on the grounds that the action should be pursued in a
    different jurisdiction (
forum non conveniens
). It requires that in
    every case, including cases where a foreign judge has asserted jurisdiction in
    parallel proceedings, all relevant factors listed in s. 11 be considered in
    order to determine if a stay of proceedings is warranted. This includes  the
    desirability of avoiding a multiplicity of legal proceedings. But the prior
    assertion of jurisdiction by a foreign court does not oust the s. 11 inquiry.

And further at para 23:

Teck submits that the usual multi-factored test under s. 11
    of the CJPTA must give way to a comity- Based test when a foreign court
    positively asserts jurisdiction. To the extent this argument implies  that the
    usual test does not give due comity to foreign courts, it must be rejected.
    Section 11 is itself a comity-based approach.

[13]

While
    the court in
Teck
was dealing with a British Columbia case and in that
    province a statute  the
CJTPA
 is intended to codify the
    determination of jurisdictional issues, a review of s.11 of the
CJPTA
reveals
    that it is very much  a codification of the factors set out by LeBel J. in
Van
    Breda
that a court should take into consideration when it considers the
    issue of forum  non-conveniens. All this to say, I would reject the submission
    that the  motion  judge failed to consider comity in his analysis. He did so
    implicitly when he outlined and considered all of the relevant factors in
    coming to his conclusion that Nigeria was not the more convenient forum.

[14]

In
    paras. 31 through 33 of his reasons, the motion judge reviews the law that
    applies and then considers the factual matrix of the specific matter before
    him.

[15]

The
    motion judge was aware of the Nigerian litigation begun after this action had
    been started in Canada. He was aware that the respondent had filed a statement
    of defence in that action, had brought an unsuccessful  motion to strike the
    Nigerian action on the basis the Nigerian court lacked jurisdiction, and was
    appealing the dismissal of his motion to strike. The appellants argue that by
    filing a statement of defence the respondent has attorned to the jurisdiction
    of the Nigerian court. The appellants make this argument in the absence of any
    evidence as to what the Nigerian law is on this point. Mr. Shafsky is his
    affidavit (para. 36) deposes that he did not understand that by filing a
    defence he was attorning to the jurisdiction. His statement is borne out by the
    fact that the respondent brought its motion to strike before the Nigerian
    Court. I would not give effect to this argument.

[16]

I
    turn next to the proposed fresh evidence. The appellants sought at the
    hearing of the appeal, for the first time, to file the reasons of the Federal
    High Court of Nigeria for dismissing the respondents motion to strike. Although
    the reasons were released February 2, 2015 and the motion before Perell J. was heard
    March 2, 2015, the reasons were not before the motion judge. The appellants did
    not bring a motion to admit fresh evidence; counsel simply sought to file the
    reasons and rely on them. The appellants argue that the motion judge erred in
    failing to consider these reasons, although they were not before him. The
    unfairness to the motion judge in proceeding this way is self-evident. In any
    event, the appellants could not, in view of the availability of these reasons
    before the hearing of the motion, meet the
Palmer
test.  I would
    decline to consider the fresh evidence.

[17]

In conclusion, I agree with the motion judges conclusion that
    Balancing all factors, Nigeria is not clearly the appropriate forum for the
    dispute, and Ontario is not
forum non conveniens
.

The motion judge did not err in dismissing the
    appellants motion to stay this action.

[18]

I
    would dismiss this appeal. I would award costs to the respondent fixed in the
    sum of $7,500 inclusive of disbursements and HST.

Released:  November 17, 2015 AH

J.
    MacFarland J.A.

I
    agree Alexandra Hoy A.C.J.O.

I
    agree P. Lauwers J.A.


