



COURT OF APPEAL FOR ONTARIO

CITATION: UD Trading Group Holding PTE.
    Limited v. TransAsia Private Capital Limited, 2021 ONCA 279

DATE: 20210428

DOCKET: M52370 (C69265)

Paciocco J.A. (Motion Judge)

BETWEEN

UD Trading Group Holding PTE. Limited,
    UIL Singapore PTE. Limited, UIL Malaysia Limited, UIL Commodities DMCC, Vadox
    Corp. and Prateek Gupta

Plaintiffs/Moving Parties/Responding Parties
    by Cross-Motion
(Appellants/Moving Parties)



and

TransAsia Private Capital
    Limited
,
TA Private Capital Security Agent Ltd.
,
    Rutmet Inc. and Export Development Canada

Defendants/Responding Parties/Moving Parties
    by Cross-Motion
(Respondents/
Responding Parties
)



Michael D. Schafler, Kenneth Kraft, Ara
    Basmadjian, and Rebecca Curcio, for the moving parties

George J. Pollack and Chenyang Li, for
    the responding parties

Heard: April 19, 2021 by video
    conference

ENDORSEMENT


OVERVIEW

[1]

On March 17, 2021, C. Gilmore J. dismissed a
    motion for an anti-suit injunction brought by the moving party plaintiffs, Prateek
    Gupta, UD Trading Group Holding PTE. Limited (UDTG), and several related
    companies, including three subsidiaries of UDTG (the UIL Companies).

[2]

In the same endorsement, the motion judge allowed
    a cross-motion by the responding party defendants, TransAsia Private Capital
    Limited and TA Private Capital Security Agent Ltd. (collectively referred to as
    TAP) to permanently stay the underlying action initiated by the moving
    parties in Ontario (the Underlying Action) on the basis of
forum non
    conveniens
and forum selection clauses. The moving parties have appealed
    this aspect of the motion judges order.

[3]

By endorsement dated April 20, 2021, I dismissed
    the moving parties request for a stay pending appeal and/or an order
    expediting the appeal, for reasons to follow. These are those reasons.

MATERIAL FACTS

[4]

The Underlying Action arises from a series of
    complex international commercial transactions involving the moving parties, the
    responding parties, and other corporate parties.

The key
    players

[5]

Before unfolding the agreements and transactions
    that matter to the motion before me, it is helpful to begin with a brief outline
    of the key players:

·

Rutmet Inc. (Rutmet) is an Ontario-based metal
    trading company operating in Ontario.

·

Export Development Canada (EDC) is a Canadian Crown
    corporation and insurance provider operating in Ontario and throughout Canada.

·

TransAsia Private Capital Limited, one of the
    TAP companies, is an asset management company incorporated and headquartered in
    Hong Kong, with offices in Singapore. It does not carry on business in Ontario
    or Canada.

·

TA Private Capital Security Agent Ltd., the
    other TAP company, is incorporated and headquartered in the British Virgin
    Islands. It operates as an affiliate of TransAsia Private Capital Limited and does
    not carry on business in Ontario or Canada.

·

UDTG was incorporated in Singapore, where its
    head office is located. Along with its subsidiaries, some of which are set out
    below, UDTG carries on business primarily in Asia and the Middle East and has
    offices in Dubai, United Arab Emirates (UAE). UDTG provides its customers
    with access to metal products and raw materials.

·

Prateek Gupta is a director of UDTG and is
    resident in Dubai.

·

The UIL Companies are three subsidiaries of
    UDTG, incorporated and headquartered in Singapore, Malaysia, and the UAE,
    respectively. The UIL Companies are in the business of metal trading.

·

Vadox Corp. is a subsidiary of UDTGs holding
    company, PPrime Limited. Vadox Corp. is incorporated and headquartered in the
    British Virgin Islands. It has no active operations. Although it is a moving
    party, it is unnecessary to refer to Vadox Corp. to unfold the relevant
    narrative.

The relevant agreements and transactions

[6]

Reduced to the simplest of terms, Rutmet owed
    money to TAP as the result of a May 24, 2019 loan agreement for US$60 million (the
    Rutmet Loan Agreement). In exchange for liquidity, the Rutmet Loan Agreement provided
    TAP with security in the form of Rutmets receivables, which TAP was authorized
    to collect or bill directly from Rutmets customers, along with fees and
    interest. As a condition of the Rutmet Loan Agreement, Rutmet obtained accounts
    receivable insurance from EDC, the benefits of which Rutmet assigned to TAP (the
    EDC Policy).

[7]

Rutmet had accounts receivable from metal sales
    to the UIL Companies. UDTG provided Rutmet with an unlimited corporate
    guarantee for the indebtedness of the UIL Companies (the UDTG Guarantee). Mr.
    Gupta provided Rutmet with an additional US$30 million guarantee for those same
    debts (the Gupta Guarantee).

[8]

By September 2019, Rutmet had defaulted on
    payments it owed to TAP under the Rutmet Loan Agreement. On November 22, 2019, Rutmet
    and TAP executed a forbearance agreement in which TAP agreed to refrain from
    exercising its rights as a creditor against Rutmet until December 13, 2019 (the
    Forbearance Agreement). In return, Rutmet granted TAP a power of attorney to
    make claims on its behalf to enforce the UDTG and Gupta Guarantees. Rutmet also
    executed a power of attorney authorizing TAP to make arrangements to secure the
    proceeds of insurance for unpaid receivables under the EDC Policy.

[9]

The forbearance period under the Forbearance
    Agreement ended on December 13, 2019, with Rutmet having failed to cure its
    defaults before the deadline. TAP then notified Rutmet of TAPs intention to
    enforce its security.

The relevant legal proceedings

[10]

On February 13, 2020, TAP commenced a
    receivership application in Ontario against Rutmet (the Receivership
    Application). That Application led to the compelled disclosure by Rutmet of
    information necessary to permit TAP to submit a claim for coverage under the
    EDC Policy. The Receivership Application was then abandoned.

[11]

TAP then submitted a claim to EDC under the
    Policy, but coverage was denied. On July 22, 2020, TAP brought an application in
    Ontario against EDC for declarations relating to EDCs refusal to provide
    coverage under the Policy (the EDC Application). The EDC Application remains
    outstanding.

[12]

As assignee, TAP also took steps to enforce the UDTG
    Guarantee of the debt owed by the UIL Companies to Rutmet. On July 9, 2020, TAP
    instituted an action in Singapore to enforce the UDTG Guarantee (the Singapore
    Action).

[13]

UDTG secured an order extending the time
    required to file a statement of defence in the Singapore Action until August 18,
    2020. On that date, instead of filing a statement of defence, UDTG applied for
    a stay of the Singapore Action on the basis that Ontario is the most
    appropriate forum (the Singapore Stay Application). The Singapore Stay
    Application has been adjourned multiple times. At the time I heard this motion,
    the Singapore Stay Application was scheduled for April 23, 2021.

[14]

Mr. Gupta resides in Dubai. On August 18, 2020,
    to conform with UAE law, TAP (via Rutmet) served Mr. Gupta with a final demand for
    payment under the Gupta Guarantee. If Mr. Gupta failed to pay, that notice
    permitted TAP to commence an enforcement action in Dubai on August 26, 2020.

[15]

On August 19, 2020, the day after Mr. Gupta was
    notified that the Gupta Guarantee would be enforced, the moving parties notified
    TAP that they had commenced the Underlying Action in Ontario on August 12, 2020.
    The relief sought in the Underlying Action includes declarations that (a) there
    are no outstanding receivables from the UIL Companies, and (b) there are no
    amounts owing under either of the UDTG or Gupta Guarantees.

[16]

In support of their claims, the moving parties
    contend TAP already recouped the funds owed by the UIL Companies to Rutmet (and
    assigned to TAP under the Rutmet Loan Agreement). They maintain this was
    accomplished when receivables owed to UDTG from metal sales were assigned and
    then paid to Triton Metallics Pte. Ltd. (Triton), a company the moving
    parties claim is controlled by TAP.

[17]

The moving parties further allege that, despite
    having been paid in this way, TAP then improperly enforced additional security
    for the Rutmet Loan Agreement. This alleged additional security took the form
    of shares in Gympie Eldorado Mining Pty Limited (GEM) and Hangji Global
    Limited (the GEM and Hangji Security). The moving parties contend that,
    although the relevant agreements indicate that the GEM and Hangji Security relates
    to independent loans TAP made to two of the UIL Companies (the UIL Loan
    Agreements), in fact, the GEM and Hangji Security was provided to secure the
    Rutmet Loan Agreement.

[18]

The moving parties allege the GEM and Hangji
    Security was arranged under the UIL Loan Agreements to hide its true nature from
    EDC (
i.e
.,
as additional security for the Rutmet Loan Agreement),
    so that EDC would not rely on the riskiness of the GEM and Hangji Security to increase
    the deductible component on Rutmets accounts receivable insurance. The moving
    parties claim that this structure effectively increased the value of the EDC Policy
    in favour of TAP by US$30 million.

[19]

The moving parties claim they agreed to this
    arrangement at TAPs insistence, on whom they had become financially dependent.
    They claim TAP was unjustly enriched by realizing on the GEM and Hangji Security
    under the UIL Loan Agreements after already having been made whole through
    Triton for the Rutmet Loan Agreement. In the Underlying Action, the moving
    parties not only seek to prevent TAP from enforcing the UDTG and Gupta Guarantees,
    they also seek damages from TAP for its alleged unjust enrichment.

[20]

On August 26, 2020, having provided the requisite
    five business days notice, TAP (via Rutmet) commenced an action in Dubai to
    enforce the Gupta Guarantee (the UAE Action). Mr. Gupta has filed a
    Statement of Reply, the UAE equivalent of a statement of defence, and the UAE
    Action is currently in the pre-trial phase.

[21]

By notice of motion dated September 3, 2020, the
    moving parties asked the Ontario Superior Court of Justice for interim and anti-suit
    injunctions restraining TAP and Rutmet from continuing the Singapore Action and
    the UAE Action, and for an order consolidating the Underlying Action with the Receivership
    Application and the EDC Application (the Anti-Suit Motion).

[22]

On September 8, 2020, Conway J. dismissed the
    moving parties request for an interim injunction. On September 16, 2020,
    Conway J. set a date of November 10, 2020 for a hearing on the merits of the Anti-Suit
    Motion. In the meantime, she urged the parties not to take steps in the Singapore
    Action or the UAE Action that would render the Anti-Suit Motion moot. The
    parties negotiated a stand-still arrangement, including relating to the
    Singapore Stay Application.

[23]

By notice of cross-motion, dated September 22,
    2020, TAP sought orders from the Superior Court, including a permanent stay of
    the Underlying Action on the basis that the Ontario courts lack jurisdiction due
    to
forum non conveniens
(the Permanent Stay Motion).

[24]

TAP denies the allegations made in the
    Underlying Action, including the claim that they have been paid through Triton,
    and contends that the Underlying Action is a pretense intended to delay and
    frustrate TAPs legitimate enforcement actions abroad.

The decision under appeal

[25]

The Anti-Suit Motion and the Permanent Stay Motion
    were heard together on January 19, 2021 before the motion judge, C. Gilmore J. On
    March 17, 2021, the motion judge issued her decision dismissing the moving
    parties Anti-Suit Motion and granting the responding parties Permanent Stay
    Motion with respect to the Underlying Action.

[26]

On April 6, 2021, the moving parties filed a notice
    of appeal of the motion judges decision in this court. Although the moving
    parties allege the motion judge made a number of errors in dismissing the
    Anti-Suit Motion, they concede it was open to her to deny an anti-suit
    injunction because there was evidence before her that there were numerous potential
    alternative jurisdictions.

[27]

Therefore, the moving parties appeal only the
    motion judges order granting the Permanent Stay Motion. They say she
    erroneously concluded that, having denied the anti-suit injunction, a permanent
    stay on the basis of
forum non conveniens
should automatically issue
    on the same grounds.

THE ISSUES

[28]

The issues on this motion can be stated simply:

(1)     Should a stay pending appeal be granted with respect to the motion
    judges March 17, 2021 order imposing a permanent stay of the Underlying
    Action?

(2)     Should
    the appeal be expedited?

ANALYSIS

1.       The Stay MOtion

[29]

Where a party seeks a stay pending appeal, the
    overarching consideration is whether the interests of justice call for a stay:
BTR
    Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust
, 2011
    ONCA 620, 283 O.A.C. 321, at para. 16;
2257573
Ontario Inc. v. Furney
,
    2020 ONCA 742, at para. 20. This determination is informed by the three factors
    described in
RJR-MacDonald Inc. v. Canada (Attorney General)
,
[1994]
    1 S.C.R. 311, at p. 334:

(a)     A preliminary assessment must be made of the merits of the
    case to ensure there is a serious question to be determined on the appeal;

(b)     It must be determined whether the moving party would suffer
    irreparable harm if the stay were refused; and

(c)     An assessment must be made as to which of the parties would
    suffer greater harm from the granting or refusal of the stay pending a decision
    on the merits.

[30]

As Laskin J.A. noted in
Circuit World Corp.
    v. Lesperance

(1997), 33 O.R. (3d) 674, at p. 677, these three criteria
    are not watertight compartments and the strength of one may compensate for
    the weakness of another.

[31]

As I will explain, having undertaken this
    assessment, I am not satisfied that it is in the interests of justice to order
    a stay pending appeal.

(a)     A Serious Issue to be Determined on Appeal

[32]

Jamal J.A. recently described the pertinent
    inquiry in
Furney
, at para. 22:

The threshold to establish a serious question
    on the appeal is low. The court must make a preliminary assessment of the
    merits of the case and determine whether the issue on appeal is neither
    frivolous nor vexatious. [Citations omitted.]

[33]

An appeal is frivolous when it is devoid of
    merit or with little prospect of success:
Heidari v. Naghshbandi
, 2020
    ONCA 757, 153 O.R. (3d) 756, at para. 10. It is vexatious if taken to annoy
    or embarrass the respondent or conducted in a vexatious manner, including an
    oblique motive for launching the appeal:
Heidari
, at para. 10.

The appeal is neither
    frivolous nor vexatious

[34]

In my view, this appeal is not frivolous.
    Sopinka J. made clear in
Amchem Products Incorporated v. British Columbia
    (Workers Compensation Board)
, [1993] 1 S.C.R. 897, at p. 913, that there
    is a fundamental difference between a domestic court issuing an anti-suit injunction,
    which in effect determines matters for a foreign court, and a domestic court
    staying a proceeding before itself. The former raises issues of international
    comity, but the latter does not. The inquiries into the suitability of forum
    therefore differ.

[35]

Most notably, in determining whether to grant an
    anti-suit injunction, the inquiry is based on the foreign courts perspective.
    The domestic judge considering whether to issue an anti-suit injunction is to
    ask whether, applying Ontarios principles of
forum non conveniens
, the
    court where the action sought to be restrained was commenced could reasonably
    have concluded there was no alternative forum that was clearly more
    appropriate. If the answer is yes, the decision of the foreign court to assume
    jurisdiction should not be interfered with:
Amchem
, at pp. 931-32.

[36]

By contrast, in determining whether a domestic
    action should be stayed, the domestic court must determine for itself whether
    there is another forum that is clearly more appropriate [than the domestic
    court] for disposing of the litigation and thus ensuring fairness to the
    parties and a more efficient process for resolving their dispute. A stay is
    appropriate only if this is so:
Club Resorts Ltd. v. Van Breda
, 2012
    SCC 17, [2012] 1 S.C.R. 572, at paras. 108-109.

[37]

These inquiries can result in an anti-suit
    injunction being denied without the parallel domestic action being stayed, unlike
    the outcome arrived at by the motion judge. This will occur, for example, if
    both the domestic and foreign forums are equally appropriate. In such
    circumstances, a foreign court could reasonably conclude there is no
    alternative forum that is clearly more appropriate, thereby warranting denial
    of an anti-suit injunction. But a domestic court would not necessarily stay the
    parallel domestic action since the domestic court would be equally appropriate;
    in other words, the foreign forum would not be clearly more appropriate.

[38]

The moving parties have identified features of
    the decision under appeal that lend some support to the suggestion that the
    motion judge may have erroneously elided the two tests. Therefore, the appeal
    is not frivolous.

[39]

Nor am I persuaded that the appeal was launched
    to annoy or embarrass the respondents or that it is being conducted in a
    vexatious manner. I am not prepared to find on the record before me that this appeal
    was brought with an oblique motive, for instance to delay or frustrate the
    enforcement of the Guarantees, which would be improper.

The seriousness of the issue in this case does not overcome
    weaknesses in the other
RJR-MacDonald
factors

[40]

During oral submissions before me, the moving
    parties placed great emphasis on the strength of their appeal. They suggested the
    case law appears to reflect the proposition that stays pending appeal tend to
    be granted where the strength of the appeal to be determined exceeds the low
    threshold of a serious question.

[41]

I do not want to be taken as endorsing this as a
    principled basis for resolving stay pending appeal motions. I will say,
    however, that where a preliminary assessment of the merits of the appeal shows it
    to be strong, this is a proper consideration in deciding whether to grant the
    stay, given the repeated recognition in this court that the strength of one
RJR-MacDonald

factor may compensate for the weakness of others.

[42]

Based on their submissions before me, I
    understand the moving parties to be emphasizing the strength of their appeal in
    support of this stay motion. However, in my view, this is not a case where the
    strength of the appeal compensates for the weakness in the other factors that I
    identify below.

[43]

First, a key feature of the moving parties
    argument on appeal is the claim that the motion judge failed to undertake a
    proper
forum non conveniens

analysis as set out in the leading
    case of
Van Breda
. However, the Underlying Action that is the subject
    of the appeal advances claims which are fundamentally contractual in nature. In
Van Breda
,

Lebel J. repeatedly confined the principles he
    developed to the assumption of jurisdiction in tort actions:
Van Breda
,
    at paras. 68, 80 and 85.

[44]

Recently, in
Forbes Energy Group Inc. v.
    Parsian Energy Rad Gas
, 2019 ONCA 372, 93 B.L.R. (5th) 169, at paras. 7-8,
    in resolving a
forum non conveniens

issue in a contract case, this
    court applied the factors Laskin J.A. identified in a pre-
Van Breda
contractual
    decision called
Young v. Tyco International of Canada Ltd.
, 2008 ONCA
    709, 300 D.L.R. (4th) 384, at para. 26.

[45]

I am not suggesting that general guidance cannot
    be taken from the
Van Breda
principles in resolving
forum non
    conveniens

issues in contract cases. That is commonly done: see
    e.g.,
Patterson v. EM Technologies, Inc
, 2013 ONSC 5849, at para. 17;
Wilson
    c. Fernand Campeau & Fils Inc.
, 2020 ONCA 384, at paras. 9-12;
Osman
    v. Markplan Inc.
, 2018 ABCA 215, [2018] A.W.L.D. 2510, at para. 8. The
    point is that the absence of an express reference by the motion judge to the
Van
    Breda

decision may not have the stark significance the moving
    parties ascribe to it, and an appeal panel may ultimately be persuaded that in
    the course of her decision, in substance, the motion judge consulted the
    correct considerations.

[46]

Second, forum selection clauses, namely those in
    the Guarantees assigned to TAP through the Forbearance Agreement, and in agreements
    relating to the GEM and Hangji Security, specifically authorized TAP to
    commence actions outside of Ontario. Relying on the decisions in
Douez v.
    Facebook, Inc.
, 2017 SCC 33, [2017] 1 S.C.R. 751 and
ECS Educational
    Consulting Services Canada Ltd. v. Al Nahyan

(2000), 44 C.P.C.
    (4th) 111, the motion judge concluded that the moving parties should be held to
    those forum selection clauses. The forum selection clauses stand as a material
    impediment to the moving parties claim that the motion judge erred in permanently
    staying the Underlying Action.

[47]

I have considered the counterarguments the
    moving parties made before me. Nevertheless, on a preliminary examination, I do
    not find those arguments sustain the view that the serious issue criterion is
    strong enough to overcome any weaknesses there may be in the other
RJR-MacDonald

factors.

(b)     Irreparable Harm

[48]

The moving parties urge that the failure to
    grant a stay pending appeal will cause them irreparable harm by: (i) creating a
    litigation disadvantage; (ii) putting them at risk of insolvency; and (iii)
    prejudicing them in the Singapore and UAE Actions by leaving in place the
    factual findings made by the motion judge pending appeal.

[49]

As I will explain, I do not accept any of these
    arguments.

(i)    A
    litigation disadvantage has not been established

[50]

The moving parties submit a litigation
    disadvantage will occur if a stay pending appeal is not ordered while the
    Singapore and UAE Actions proceed. If decisions are rendered by the Asian
    courts, the moving parties point out that the Underlying Action will be
    rendered moot. They will thereby lose the opportunity to have the merits of the
    decision determined in Ontario and they will be forced to litigate in multiple
    jurisdictions.

[51]

One problem with this submission is that there
    is no legal order in place preventing the responding parties from moving
    forward with the Singapore Action or the UAE Action. That will not change,
    whether I grant the stay or not. However, based on their submissions, the
    parties appear to agree that if I order a stay pending appeal, it may delay the
    responding parties foreign enforcement efforts pending the Ontario appeal. I will
    therefore proceed on that basis. Even so, I do not accept that the loss of
    litigation advantage alleged by the moving parties constitutes irreparable
    harm.

[52]

It is important to appreciate that the moving
    parties have no right to have the matters in dispute litigated only in Ontario.
    Their request for an anti-suit injunction failed; they have not appealed that
    decision.

[53]

Nor do the moving parties have any legal or
    normative claim of right to have the issues disposed of in Ontario before the
    Singapore or UAE Actions are resolved. The Singapore Action preceded the
    Underlying Action. The responding parties had already given notice that the UAE
    Action would be commenced before they were served with the moving parties
    statement of claim in the Underlying Action. The moving parties can have no
    reasonable expectation that the Ontario proceedings should take precedence.

[54]

Moreover, even if the moving parties appeal
    succeeds in showing the Underlying Action in Ontario should not have been permanently
    stayed, the risk remains that matters will be resolved by the Singapore Action and/or
    the UAE Action before any decision on the merits in Ontario. As the moving
    parties pointed out in argument, citing
Amchem
, at p. 914, where no
    one forum is clearly more appropriate than another and parallel litigation occurs,
    it is anticipated and acceptable that the first decision rendered will resolve
    the matter.

[55]

Nor do I have any basis on which to conclude
    that the quality of equity or justice will be compromised if the matters in
    issue are determined in the Singapore or UAE Actions, rather than in Ontario.
    There is no evidence before me to suggest the moving parties will be unable to raise
    their position that TAP has already been paid as a defence in those Actions, or
    that the foreign proceedings will otherwise be unfair. It is therefore
    difficult to accept that irreparable harm arises from the risk that the Singapore
    Action and/or the UAE Action could proceed before this appeal.

[56]

I turn now to the moving parties objection to being
    required to litigate in multiple jurisdictions. In my view, there is weight to
    the responding parties position and the motion judges observation that the
    moving parties have themselves compounded the multiplicity of proceedings by
    initiating the Underlying Action in Ontario. The moving parties objection does
    not resonate with me given that they are asking this court in their appeal to
    re-add the Underlying Action to the ongoing litigation mix.

[57]

Accordingly, I can find no irreparable harm
    arising from any litigation disadvantage if the stay pending appeal is refused.

(ii)   The
    risk of insolvency is not supported by the evidence

[58]

I agree with the responding parties that the
    moving parties did not adequately explain how my refusal to stay the motion
    judges permanent stay of the Underlying Action pending appeal could threaten
    their solvency. There is no evidence to support a finding that the litigation
    costs could cripple them if the motion judges stay is not lifted pending appeal,
    if that indeed is their concern.

[59]

In his affidavit filed in support of this motion,
    Mr. Gupta appears to suggest that the spectre of insolvency arises in part from
    the risk that his assets will be exposed to attachment orders in the UAE. That
    outcome depends on the responding parties successfully prosecuting the UAE Action
    on the merits. On the evidence before me, I cannot find irreparable harm based
    on the financial implications of presumptively fair legal determinations made
    in other jurisdictions.

[60]

In any event, even if the moving parties had
    established a basis on which to conclude that they could be put at risk of
    insolvency if a stay pending appeal is not ordered, this consideration would
    cut both ways. The responding parties could rely on the moving parties risk of
    insolvency to argue that the balance of convenience favours denying the stay,
    since any knock-on delay in enforcement in Asia could compromise the responding
    parties ability to recover funds from parties in supposedly dire financial
    straits.

(iii)  The
    findings made by the motion judge will not cause irreparable harm

[61]

In addition, the moving parties rely on findings
    made by the motion judge which they say amount to summary judgment against them
    undermining their position regarding the alleged Triton payments and the GEM
    and Hangji Security. They say these findings will irreparably prejudice them in
    the Asian proceedings if a stay pending appeal is not granted. I am not
    persuaded that these or any other findings made by the motion judge would cause
    irreparable harm if her decision is not stayed pending appeal.

[62]

First, I do not read the motion judge as having made
    any findings against the moving parties contention that TAP was already paid
    for the debts it is attempting to enforce in Singapore and the UAE.

[63]

The impugned passages must be read in context. When
    she made those findings, the motion judge was addressing the moving parties submission
    that the litigation is presumptively linked to Ontario because TAPs claim
    against UDTG arose from the Rutmet Loan Agreement, making Rutmet the material
    debtor. In my view, the motion judge was doing no more than rejecting this argument
    by noting that the outstanding material issue in the litigation is whether
    certain debts have been paid and the collateral validly enforced under the UIL
    Loan Agreements. Her point was that the UIL Loan Agreements cannot be conflated
    with the Rutmet Loan Agreement for the purpose of identifying the appropriate
    forum for the litigation. As the motion judge noted earlier in summarizing the
    arguments of the parties, neither the UIL Loan Agreements, nor the alleged
    transactions with Triton that led to TAPs alleged repayment under the Rutmet
    Loan Agreement, are linked to Ontario. Hence her finding that the moving
    parties failed to demonstrate a presumptive connecting factor to Ontario.

[64]

Moreover, even if the motion judges factual
    findings do somehow lend support to arguments the responding parties will
    advance in the Singapore Action and/or the UAE Action, the moving parties cannot
    be heard to complain. They initiated the Anti-Suit Motion and, in doing so, advanced
    factual claims to support their position. The findings the motion judge made were
    in large measure responsive to those claims. A partys decision to voluntarily
    assume litigation risk does not qualify as irreparable harm:
M & M
    Homes Inc. v. 2088556 Ontario Inc.
, 2020 ONCA 134, 51 C.P.C. (8th) 253, at
    paras. 39-40. Put simply the moving parties created the risk of the outcome
    they now seek to identify as irremediable harm.

[65]

Accordingly, I am not persuaded that the moving
    parties would suffer irreparable harm if a stay pending appeal is denied.

(c)     The Balance
    of Convenience

[66]

I have already addressed the potential harm the
    moving parties rely upon. I have found none that would be irreparable.

[67]

I accept the moving parties representations
    that they took steps to ameliorate potential harm to the responding parties
    flowing from a stay, such as agreeing to post security for costs and moving to
    expedite the appeal.

[68]

However, these initiatives do not account for
    the most material inconvenience a stay would visit on the responding parties. Both
    the Singapore Action and the UAE Action have already been delayed for many
    months. As noted, granting the stay would likely cause further delay. Delay
    works against the responding parties financial interests. As I have indicated,
    there is no basis before me on which to apprehend that the respective foreign courts
    will proceed unfairly in adjudicating the Singapore and UAE Actions.

[69]

In my view, the balance of convenience favours
    the responding parties.

(d)     Other Considerations

[70]

The moving parties also argued before me that
    the responding parties attorned to the jurisdiction of Ontario by initiating
    the Receivership Application and the EDC Application in Ontario, and by serving
    a notice of motion for security for costs of this appeal. I am not persuaded
    that attornment considerations play any role in this motion for a stay pending
    appeal.

[71]

The moving parties did not have standing in the
    Receivership Application or the EDC Application, and both proceedings were brought
    against parties carrying on business in Ontario. I fail to see how TAPs decision
    to institute those proceedings can fairly be interpreted as an attornment to
    Ontario in the Underlying Action, which was predicated upon offshore agreements
    and transactions involving foreign corporations.

[72]

Nor does the responding parties decision to
    bring a security for costs motion in this appeal assist the moving parties. Attornment
    occurs where a party takes steps suggesting they have accepted jurisdiction, which
    typically are steps to defend the merits of a proceeding: Gerard J. Kennedy,
    Jurisdiction Motions and Access to Justice: An Ontario Tale (2018) 55 Osgoode
    Hall L.J. 79, at p. 103. Attornment does not occur where a party merely
    contests the jurisdiction of the court:
Lilydale Cooperative Ltd. v. Meyn
    Canada Inc.
, 2019 ONCA 761, 439 D.L.R. (4th) 385, at para. 52. Nor does it
    occur where a party takes procedural steps that deal solely with the procedural
    mechanics of the jurisdiction hearing:
Fraser v. 4358376 Canada Inc.
, 2014
    ONCA 553, 324 O.A.C. 68, at para. 15.

[73]

In my view, the responding parties motion for
    security for costs in this jurisdiction appeal is a procedural step related to
    the resolution of the jurisdictional dispute the appeal addresses. It cannot be
    taken as an act of attornment.

[74]

The decisions relied upon by the moving parties
    do not hold otherwise. In
T Films S.A. v. Cinemavault Releasing
    International Inc.
, 2014 ONSC 4138, the motion by the respondents for
    security for costs constituted attornment because it related to the costs of the
    underlying proceeding.

[75]

Nor is there help to be found in the endorsement
    in
1092072 Ontario Inc. (Elfe Juvenile Products) v. GCan Insurance Co.
,
    2008 CanLII 51922 (Ont. S.C.). McWatt J.s
obiter dictum

observation,
    at para. 15, that a security for costs motion would be an act of attornment concerned
    a hypothetical motion related to the substantive underlying action. Indeed,
    McWatt J. later held, at para. 18, that a party who disputes jurisdiction without
    engaging in the merits of the case will not generally be found to attorn.

(e)     Conclusion on the Stay Motion

[76]

It is not in the interests of justice to stay pending
    appeal the motion judges order to permanently stay the Underlying Action. I am
    not persuaded that the moving parties will be irrevocably harmed if the
    requested stay pending appeal is denied, and I am persuaded that the balance of
    convenience favours the responding parties. Although the issues to be adjudicated
    on the appeal are not frivolous or vexatious, the grounds of appeal are not so
    strong as to compensate for the weaknesses I have identified in the other
RJR-MacDonald

factors.

[77]

I would therefore deny the motion for a stay
    pending appeal.

2.       THe Motion to expedite the appeal

[78]

Appeals of this kind are to be expedited only
    where the motion judge is satisfied the urgency of the matter requires an
    earlier hearing date: Practice Direction Concerning Civil Appeals at the Court
    of Appeal for Ontario, (March 1, 2017), at 12
.
1(4).

[79]

I see no urgency in having this appeal heard. The
    moving parties request for an expedited appeal was presented, at least in
    part, as a concession to reduce the harm a stay pending appeal would cause to
    the responding parties. No stay pending appeal is being ordered, and the responding
    parties oppose expedition.

[80]

I would therefore deny the request to expedite
    the appeal.

DISPOSTION

[81]

The motion for a stay pending appeal is
    dismissed, as is the motion for an expedited appeal.

[82]

As agreed by the parties, costs in this motion are
    set at $10,000, inclusive of HST and disbursements, to be allocated by the
    panel hearing the appeal.

David
    M. Paciocco J.A.


