





CITATION: Dundee Precious Metals Inc. v. Marsland, 2011
          ONCA 594



DATE: 20110915



DOCKET: C53071



COURT OF APPEAL FOR ONTARIO



Sharpe, Armstrong and Karakatsanis JJ.A.



BETWEEN



Dundee
          Precious Metals Inc. and Resources Management Services
          Krumovgrad Eood




Plaintiffs (Appellants)



and



Laurence Marsland and Base Resources D.O.O.



Defendants (Respondents)



H. James Marin and John Wires, for the appellants



Kimberly Boara Alexander, for the respondents



Heard: August 23, 2011



On appeal from the order of Justice Katherine Corrick of the
          Superior Court of Justice dated November 25, 2010.



By the Court:



[1]

The appellant, the Dundee Precious Metals Inc. (Dundee), a public
    mining company with its head office in Toronto, sued its former Chief Operating
    Officer and Executive Vice President, the respondent Laurence Marsland, for
    breach of contractual and fiduciary duties. Dundee alleges that Marsland
    misappropriated a confidential corporate opportunity. The contract between
    Dundee and Marsland expressly states that it shall be governed by Ontario law
    and Dundee alleges damages that were sustained in Ontario. Marsland, an
    Australian national, has never lived in Canada. Pursuant to his employment
    agreement with Dundee, Marsland moved to Bulgaria to work on a mining project
    in Serbia. Marsland frequently visited Ontario and was in daily contact with
    Dundee while employed as the Chief Operating Officer. The conduct giving rise
    to Dundees claim took place in Bulgaria and Serbia.

[2]

Marsland moved to have the action dismissed for want of jurisdiction and
    on grounds of
forum

non conveniens
. The motion judge found that
    the connection between Dundees claim and Ontario is weak and that there was
    virtually no contact between Marsland and Ontario. Without finding either
    Serbia or Bulgaria to be a clearly more appropriate forum, the motion judge nevertheless
    found that the action should be stayed on grounds of
forum

non
    conveniens.

[3]

For the following reasons, we allow the appeal and hold that the motion
    judge erred in both her assessment of the connection between the claim and
    Ontario and in her application of the
forum

non conveniens
test. In
    our view, there is a real and substantial connection sufficient to sustain
    Ontario jurisdiction and Ontario is the appropriate forum for this litigation.

JURISDICTION

[4]

It is common ground that, pursuant to
Van Breda v. Village Resorts
    Ltd.
(2010), 98 O.R. (3d) 721 (C.A.), jurisdiction
simpliciter
is
    presumed as the claim falls within Rule 17(f)(2) (the contract provides that
    it is to be governed by or interpreted in accordance with the law of Ontario).
    To be successful, Marsland therefore bears the onus of demonstrating the lack
    of a real and substantial connection with Ontario.

[5]

Van Breda
holds, at para. 84 that [t]he core of the real and substantial
    connection test is the connection that the plaintiffs claim has to the forum
    and the connection of the defendant to the forum, respectively.

(a) Connection of the claim to Ontario

[6]

We agree with the appellant that the motion judges conclusion that the
    connection between Dundees claim and Ontario was weak cannot withstand
    analysis. Dundee is a Canadian public corporation, headquartered in Ontario.
    Marsland, employed as Dundees Chief Operating Officer and Executive Vice
    President, was subject to the laws of Ontario and he took on fiduciary duties
    and duties of confidentiality under the law of Ontario, which continued even
    after the termination of his employment. Following the termination of his
    employment with Dundee, he signed a Management Contract and Release. Both agreements
    explicitly state that they are governed by Ontario law and both explicitly
    continue Marslands duty of confidentiality owed to Dundee. Dundee alleges that
    Marslands breach of fiduciary duty and breach of contract caused it damage in
    Ontario.

[7]

In our view, when all of these factors are considered, there is a strong
    connection between Dundees claim and Ontario and the motion judge erred by
    characterizing the connection as weak.

(b) Connection between Marsland and Ontario

[8]

The motion judge also found that there was virtually no connection
    between Marsland and Ontario. We respectfully disagree with this
    characterization as well. In our view, there was a significant connection
    between Marsland and Ontario.

[9]

Van Breda
states, at para. 92:

As stated in
Beals
, at para. 32, a
    defendant can reasonably be brought within the embrace of a foreign
    jurisdiction's law where he or she has participated in something of
    significance or was actively involved in that foreign jurisdiction.

[10]

Marsland was a senior executive of Dundee, fully engaged in its business
    for a period of several years. He attended Dundee board meetings in Toronto
    four to five times per year and attended senior management meetings in Toronto at
    least once per year. He also participated in weekly video conference calls,
    usually originating in Toronto, and was in daily telephone contact with Dundees
    president, who was based in Toronto. We cannot agree that there was virtually
    no connection between Marsland and Ontario given his position with Dundee, the
    duties he owed Dundee and the regular and on-going participation in Ontario-based
    activities in the performance of his duties.

[11]

The motion judges assessment and application of real and substantial
    connection test in this case would lead to the surprising proposition that a
    Canadian corporation headquartered in Ontario cannot use Ontario courts to
    enforce legal obligations owed to it under Ontario law by current and former
    senior officers who routinely traveled to Ontario on company business and who
    were in daily contact with the company in Ontario.

[12]

We conclude that the courts of Ontario have jurisdiction to entertain
    Dundees claim.

FORUM NON CONVENIENS

[13]

As this court stated in
Incorporated Broadcasters Limited v. Canwest
    Global Communications Corp
. (2003), 63 O.R. (3d) 431 at para. 58:

The starting place for
    considering convenient forum is whether there clearly is a more appropriate
    jurisdiction than the domestic forum chosen by the plaintiff in which the case
    should be tried (
Frymer
at p. 79 O.R.). Also see
Spar Aerospace
    Ltd. v. American Mobile Satellite Corp.
,
2002 SCC 78, 220 D.L.R.
at
    para. 69 and 70 and
Amchem Products Inc. v. British Columbia (Workers
    Compensation Board)
, [1993] 1 S.C.R. 897, 102 D.L.R. (4
th
) 96 at
    p. 921 S.C.R.

[14]

While we recognize that
forum non conveniens
is a discretionary
    decision attracting appellate deference, we respectfully conclude that the
    motion judge erred by failing to assess whether Marsland satisfied the onus of
    identifying another jurisdiction clearly more appropriate than Ontario in which
    to try this action. The motion judge mentioned Serbia and Bulgaria as possible
    alternate jurisdictions but did not identify either as being clearly more
    appropriate than Ontario. Her finding, at para. 42, that there are no
    geographic factors, apart from the location of Dundees head office, pointing
    to Ontario as the most convenient forum and that [m]ost geographic factors
    point to a forum other than Ontario is difficult to understand given the fact
    that the case involves duties owed under Ontario law to a Canadian company.

[15]

In our view, Marsland failed to demonstrate that there was another
    jurisdiction clearly more appropriate than Ontario to try this action and it
    follows that this was not a case for a stay on grounds of
forum non
    conveniens
.

CONCLUSION

[16]

For these reasons, the appeal is allowed and the motion to dismiss the
    action for want of jurisdiction or to stay the action on grounds of
forum

non conveniens
is dismissed. In accordance with the agreement of
    counsel, Dundee is entitled to its costs of the motion, fixed at $25,000 and of
    the appeal, fixed at $17,000, both amounts inclusive of disbursements and applicable
    taxes.

Robert J. Sharpe J.A.

R.P. Armstrong J.A.

Karakatsanis J.A.

RELEASED:  September 15, 2011


