



COURT OF APPEAL FOR ONTARIO

CITATION: Manjos v. Fridgant, 2016 ONCA 176

DATE: 20160301

DOCKET: C60862

Gillese, Hourigan and Brown JJ.A.

BETWEEN

Michael Manjos, Rita Manjos and 764251 Ontario
    Inc.

Plaintiffs (Appellants)

and

Mark Fridgant and
PI
    Financial Corp.

Defendants (
Respondent
)

Hari Nesathurai and Glen Perinot, for the appellants

Crawford Smith and Lara Guest, for the respondent

Heard: February 25, 2016

On appeal from the order of Justice Joseph W. Quinn of
    the Superior Court of Justice, dated July 10, 2015.

ENDORSEMENT

[1]

The appellants, Michael Manjos, Rita Manjos, and 764251 Ontario
    Inc., appeal from the order of Quinn J. dated July 10, 2015 staying their
    action against the respondent, PI Financial Corp.

[2]

The defendant, Mark Fridgant, had acted as the appellants
    investment advisor for several years. In December 2011, Fridgant informed the
    appellants that he was moving to a new brokerage firm, the respondent, PI
    Financial Corp. Fridgant met with the appellants and asked them to sign the
    documentation necessary to transfer their investment accounts to the
    respondent. The individual appellants signed the documentation, which included
    client account agreements. Those agreements contained a choice of law and forum
    clause which read:

5.4 Governing Law

This Agreement is governed by the law of British Columbia and,
    subject to subsection 5.5 and unless otherwise agreed by the Agent and the
    Client in writing, the Agent and the Client will submit exclusively to courts
    in British Columbia any and all disputes in connection with the operation of
    the Account or any transaction or intended transaction in the Account or
    arising out of or relating to this Agreement.

[3]

In April 2014, the appellants commenced this action, alleging that
    Fridgant had mismanaged their investment accounts and the respondent is
    vicariously liable for Fridgants acts and omissions.

[4]

The respondent moved for a stay of the action as against it on
    the ground that the choice of forum clause in the client account agreements
    required the appellants to sue them in British Columbia. The motion judge
    granted the stay.

[5]

The appellants submit that the motion judge erred in finding that
    they had failed to show strong cause to depart from the general principle stated
    in
Expedition Helicopters Inc. v. Honeywell Inc.
, 2010 ONCA 351, 100
    O.R. (3d) 241, at para. 24, that a forum selection clause in a commercial
    contract should be given effect. The appellants also argue that the principles
    set out in
Expedition Helicopters
should be modified to recognize that
    their client account agreements were more in the nature of consumer contracts,
    not commercial ones. According to the appellants, less weight should be
    accorded to a forum selection clause in a consumer contract.

[6]

In our view, the motion judge did not err in exercising his
    discretion to enforce the forum selection clause.

[7]

The individual appellants are well educated and sophisticated. On
    his cross-examination, Dr. Manjos agreed that he did not feel that there was
    any need to review the documents when he signed them. In other words, the
    appellants had the opportunity to review the agreements before signing them,
    but they did not do so.

[8]

Although the appellants testified that Fridgant did not draw the
    choice of forum clause to their attention when they signed the client account
    agreements, that conduct does not amount to an improper inducement to agree to
    the clause. A person who signs an investment contract acts at his or her own
    peril if they fail to read the document before signing it.

[9]

Further, the appellants were under no obligation to transfer
    their investment accounts from their former brokerage to the respondent. It was
    open to them to decide which brokerage would provide them with acceptable terms
    of service.

[10]

The appellants also submit that they have shown
    strong cause to depart from the forum selection clause because the British
    Columbia courts would be unable to deal with aspects of their claim,
    specifically those claims alleging breaches of the Ontario
Securities
    Act
, R.S.O. 1990, c. S.5, and the Rules and Policies of
    the Investment Industry Regulatory Organization. We do not accept this
    submission. Ontario law can be proved without difficulty before the courts of
    British Columbia.

[11]

Finally, the appellants argue that the language
    of the forum selection clause is not broad enough to cover all the allegations
    asserted by them against the respondent. We disagree. The wording of clause 5.4
    of the client account agreements is very broad, covering 
any and all
    disputes in connection with the operation of the Account or any transaction or
    intended transaction in the Account or arising out of or relating to this
    Agreement. The appellants statement of claim alleges Fridgant mismanaged
    their investment accounts and the respondent is vicariously liable for
    Fridgants acts and omissions. Those allegations fall within the ambit of
    Clause 5.4.

[12]

The appeal is dismissed. The respondent is
    entitled to its costs of the appeal fixed in the amount of $5,000, all inclusive.

E.E. Gillese J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.


