Over at slaw.ca, Matt Maurer writes about “An Interesting Approach To a Routine Motion” referring to a recent decision of Justice David M. Brown of the Toronto Commercial List Court. In 1416088 Ontario Limited v. Deloitte & Touche Inc., 2013 ONSC 7303 (CanLII); Brown J. offered counsel two options in respect of refusals: (more…)
Posts Tagged ‘Ontario’
In Kaynes v. BP, 2013 ONSC 5802 (CanLII), (“Kaynes“), Mr. Kaynes, the plaintiff, commenced a proposed class action against BP, the well-known multinational oil and gas company, headquartered in the United Kingdom and registered on the London, New York and Toronto Stock Exchanges. Kaynes alleged that BP made various misrepresentations in its investor documents before and after the Deepwater Horizon oil spill in the Gulf of Mexico in April 2010 (the “Oil Spill”). He sought leave to bring a statutory action for secondary market misrepresentation under Part XXIII.I of the Securities Act, R.S.O. 1990, c. S.5, and an alternative claim for common law negligent misrepresentation.
A parallel class action was commenced in the United States (In BP plc Securities Litigation, United States District Court for the Southern District of Texas, Case No. 4:10-md-02185) brought on behalf of a proposed class consisting of all purchasers of ADS over the NYSE between November 8, 2007 and May 28, 2010. Kaynes seeks to represent a class of Canadian residents who purchased BP shares between May 9, 2007 and May 28, 2010 and includes all Canadians who purchased common shares and ADS, whether on the TSX, NYSE or European exchanges; excluding any Canadian residents who purchased BP shares over the NYSE and who do not opt-out of the U.S. Proceeding.
BP brought a jurisdiction motion in advance of the leave and certification motions, seeking an order staying this proceeding (in part) based on lack of subject-matter jurisdiction, or, alternatively, on the basis of forum non conveniens.
In Haufler v. Hotel Riu Palace Cabo San Lucas, 2013 ONSC 6044 (CanLII), the Plaintiff was injured while riding an all-terrain vehicle (ATV) . She was immediately flown back to Canada for treatment. The Plaintiff then sued the ATV excursion operator in negligence, but the company is bankrupt. The Plaintiff also sued the Hotel Riu Palace Cabo San Luca [the "Hotel Riu"] where the Plaintiff and the other vacationers stayed during the tragic Mexican vacation. The Hotel Riu then moved for a stay of the action based upon lack of jurisdiction simpliciter, or, alternatively, Ontario was forum non conveniens.
The case is unremarkable, except for the fact that it languished for seven years, while the parties awaited the Supreme Court of Canada’s decision in Club Resorts Limited v. Van Breda., which established a refined test for the assumption of jurisdiction based on a “real and substantial” connection between the foreign defendant and the forum asserting jurisdiction., requiring the plaintiff to demonstrate the existence of one of four rebuttable presumptive connecting factors before a Canadian court will assume jurisdiction over an action involving a foreign defendant.
Quigley J. rejected the Plaintiff’s claim that the Hotel carried on business in Canada, either on its own, or through agency relationships, noting that even if the Hotel: ”…engaged in a considerable amount of business with Ontarians, the existing legal relationships between the Hotel, the owner of the Hotel, and Sunquest Tours at the end of the line in Canada are not sufficient to establish that the Hotel carries on business in Ontario.” (at para. 7).
The Plaintiff’s arguments to establish a virtual connection to Ontario based upon advertising brochures, physical presence of some Hotel Riu representatives in Ontario, or website advertising also failed.
Quigley J. concludes:
 In conclusion, on this aspect of the motion, I agree with the moving party, the Hotel, that there is virtually no connection to Ontario in this case. The tort action itself involves the alleged negligent operation of an ATV excursion in Mexico by a Mexican entity that offered the excursion in Mexico, Rancho Tours. In its action, the plaintiffs seek to attach legal responsibility for those events to this foreign defendant, the Hotel. Plainly the tort did not take place in Ontario, and the Hotel is a resident and domiciliary of Mexico. As such, Ontario could only assume jurisdiction over this litigation under the test established in Van Breda provided one of the two remaining connecting factors applied. In order for either of those two factors to apply, a contract entered into in Ontario regarding the subject matter of this litigation would have to exist, or there would need to be evidence that the Hotel was carrying on business in Ontario.
 However, as the foregoing analysis shows, the only contracts of relevance here were made in Mexico. There was no contract concluded in Ontario between the Hotel and these plaintiffs. Their contract was with an independent third-party, Thomas Cook or its Sunquest Vacations alter ego. Further to this, the plaintiffs have failed to discharge the burden that rests upon them alone to show on the evidence that the Hotel carries on business in Ontario. At most, as the defendants argued, a separate company which markets the Riu trademark does occasional business with the Canadian business, Thomas Cook. But even this cannot provide the necessary connection as any existing connection is unrelated to the subject matter of the litigation. Given the absence of any of the four connecting factors required by Van Breda, Ontario cannot assume jurisdiction over this litigation and the motion to stay this action is therefore granted.
In a ground-breaking decision, Mr. Justice Newbould in PT ATPK Resources TBK (Indonesia) v. Diversified Energy and Resource Corporation et al., 2013 ONSC 5913 (Ont. S.C.J.-Commercial List) (“ATPK”) held that truly foreign judgments (i.e. non-inter-provincial judgments or U.K. judgments subject to the Reciprocal Enforcement of Judgments (U.K.) Act, RSO 1990, c R.6 (as am.) (REJUKA)) are not subject to any limitation period for recognition and enforcement purposes.
In ATPK, the applicant, PT ATPK RESOURCES TBK (Indonesia) (“ATPK”) applied for “registration” and enforcement against Hopaco Properties Limited (“Hopaco”) of two judgments of the High Court of the Republic of Singapore. Of course, “registration” is a misnomer, since Canada and Singapore have not entered into any bi-lateral enforcement treaty, such that recognition or enforcement is governed under traditional Canadian conflict of laws principles. (more…)
Yamri Taddese at Law Times reports on some welcome, albeit late, efforts to resolve the interminable motion delays in Toronto:
Acknowledging there are “real delays” with scheduling long motions in Toronto, Smith said she and regional senior Justice Edward Then “have already begun to review scheduling efficiencies and how the court’s judicial resources can be maximized.”
Then has asked Superior Court Justice Geoffrey Morawetz to lead a motions effort to identify ways of maximizing both facilities and judicial resources for a more efficient system, Smith said, noting the review will also consider the issue of better case management.
The Law Times article adds,
Superior Court Justice Mary Vallee called the delays “shameful” and decided against moving the case to Toronto.
A case, of course, would need some connection to Toronto for counsel to bring up the idea of moving it there, says Oatley. But his firm has decided that even when there’s some connection to Toronto, it will challenge such motions on access to justice grounds.
“The government is simply going to have to accept the fact that if we’re going to have a viable justice system in Ontario, they need to provide the administration of justice the resources to do the job,” he says.
Whenever he can, lawyer John McLeish says he’ll book cases outside of Toronto. “It’s a shame because the judges here are great,” he says.
In my opinion, the causes of the systemic delay are easily identifiable:
1. The revision of the Rule 77 case management rule has hoisted onto plaintiff’s counsel’s shoulders the sole burden to move a case along to trial. Defence counsel are prone to bringing superfluous motions to tie up the litigation, armed with the knowledge of institutional delay of 6-7 months to secure a motion date in Master’s court;
2. The concept of a Litigation Timetable and Discovery Plan is great in theory; however, the failure to abide or comply with a consent or court-ordered timetable rarely results in any tangible consequences for non-compliance, such as substantial indemnity costs or striking of a defence. Having to wait half a year to bring a motion to force an opposing party to comply is quixotic;
3. The Rules of Civil Procedure are skewed towards procedural inefficiency. For example, while any Superior Court judge has jurisdiction to hear all motions, many motions are implicitly designated to be brought “to the court” (i.e. Masters), leaving an access to justice vacuum.
4. There are simply not enough Masters appointed to hear motions based upon the sheer volume of court files in Toronto. This is a function of chronic underfunding of the civil justice system in Ontario. What is the Ministry of Attorney General’s response?
Brendan Crawley, spokesman for the Attorney General of Ontario, said the ministry isn’t planning on appointing new masters.
The ministry, he said, has worked with the legal community “to improve and modernize Ontario’s civil justice system, making it more accessible and affordable for the public.”
I am cautiously optimistic that Mr. Justice Morawetz —who is among the leading jurists in Ontario and fully conversant with judicial efficiency on the Commercial List Court — will find a practical and practicable solution to this motion court boondoggle. The following are my unsolicited solutions:
1. Restore the procedural balance under the Rules of Civil Procedure by imposing an equal obligaiton between plaintiffs and defendants and counsel of record to ensure that a case moves efficiently and speedily towards trial;
2. Consider revising Rule 77 case management screening when an action is commenced by allowing the plaintiff or defendant to request case management as an option, rather than an exception to litigation management;
3. The Ministry of the Attorney General must appoint at least 3 additional full-time Masters and loosen the requirement of Regional Senior Justice judicial oversight for case management transfers;
4. When all else fails, amend the mechanism of administrative dismissal by the Registrar, by allowing Status Hearing judges or Masters to transfer matters to case management sua sponte, or upon request of one or more of the parties; rather than slavish reliance on consent litigation timetables;
5. Allow Masters or Judges to schedule case conferences via telephone or email ,rather than requiring in person attendances, where available.
Access to Justice is inchoate unless it is equal, timely, effective and efficient: Justice delayed is justice denied.
- Civil Justice Delay (slaw.ca)