Two for the price of one: Ontario’s first 2 decisions applying the new Van Breda test for jurisdiction simpliciter

 Finally, after a false start, there are not one, but two Ontario decisions which apply the reformulated Van Breda test for jurisdiction simpliciter: Van Breda v. Village Resorts Limited, 2010 ONCA 84.

The first is the March 16th decision of G.R. Strathy, J. in McKenna v. Gammon Gold Inc., 2010 ONSC 1591 (CanLII) [“McKenna”].

In McKenna, the plaintiff sought to certify a proposed class action pursuant to s. 5(1) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the “C.P.A”) claiming that the defendants made misrepresentations in connection with the sale of the securities of Gammon Lake Resources Inc., now known as Gammon Gold Inc. (“Gammon”). Gammon is a gold and silver producer. It is a reporting issuer under the Securities Act, S.O. 1990, c. S.5 (the “Securities Act”). During the Class Period, Gammon’s common shares were traded on the Toronto Stock Exchange (the “TSX”), the AMEX Stock Exchange in the United States (the “AMEX”), and elsewhere.

He also sought to represent all persons (the “Class” or “Class Members”) who acquired Gammon’s shares between October 10, 2006 and August 10, 2007 (the “Class Period”). Under a short-form prospectus dated April 19, 2007 (the “Prospectus”) Gammon made a public offering of 10 million common shares at a price of $20 per share, for gross proceeds of $200 million, for which McKenna purchased 1,000 shares of Gammon. McKenna claimed that the value of Gammon’s shares was inflated by the defendants’ misrepresentations and that when the actual state of affairs was disclosed, in early August 2007, the share price plummeted and he and other Gammon investors lost money. While McKenna did not buy Gammon shares in the secondary market ( i.e. the Toronto Stock Exchange) he sought to represent all shareholders who acquired Gammon securitiesat any time during the Class Period—whether under the Prospectus or in the secondary market.

The McKenna decision spans some 187 paragraphs and is required reading on the applicable factors on a class action certification motion. With respect to the jurisdictional issue, Justice Strathy confirms that the Van Breda test modified the overall analytical approach to determining jurisdiction over non-resident defendants. In McKenna, the issue of whether the Class should include persons outside the jurisdiction was subsumed into two sub-issues:

1) Jurisdiction simpliciter: whether the court has jurisdiction over all or some of the defendants; and

2) Class actions: whether the court should extend its jurisdiction to adjudicate on the claims of class members outside the jurisdiction who do not opt out of the class action. (McKenna, at para.85-86)

The plaintiffs argued for an “international class”, citing a line of Ontario authorities certifying actions encompassing class members who were resident in other provinces and countries. Relying on Van Breda, the Gammon defendants countered that in lieu of presence-based or consent-based jurisdiction over non-resident class members, the court should decline to assume jurisdiction:

“[96] While the Van Breda test applies to the determination of the court’s jurisdiction in both the usual form of action and a class action, the defendants say that the test for the exercise of the court’s jurisdiction is modified where the issue is the court’s jurisdiction not over a non-resident defendant, but over a non-resident class member or what the defendants describe as a “passive, absentee plaintiff.” The defendants say that in such cases, the further issue is the connection between the forum and the foreign class members and any unfairness to such persons if the court declines jurisdiction: McNaughton Automotive Ltd. v. Co-Operators General Insurance Co., above, at paras. 24-25.

[97] In this case, the defendants say, there is no connection between Ontario and the non-resident members of the Class. Gammon is incorporated in Quebec, based in Nova Scotia and has its mining operations in Mexico. They say that the only connections between the claims in this action and Ontario are the filing of the Prospectus with the Ontario Securities Commission and the distribution of various public statements of Gammon in accordance with Ontario securities law.

[98] The defendants say that the court must also consider whether a judgment of this court will be recognized and enforced in courts outside Ontario and, most important from their perspective, whether a judgment will be considered to be binding against non-resident shareholders and given preclusive effect in their “home” jurisdictions. In the absence of a real and substantial connection between Ontario and the claims of purchasers of Gammon shares in New York or Manitoba, for example, would the courts of those jurisdictions treat an Ontario judgment as precluding an action in their jurisdictions? See: Canada Post Corp. v. Lépine, 2009 SCC 16 (CanLII), [2009] 1 S.C.R. 549; Englund v. Pfizer Canada Inc., [2006] S.J. No. 9 (Q.B.); Currie, above. If not, then the defendants run the risk that Class Members who have not opted out may be free to take a second bite at the defendant in their “home” jurisdictions if they are dissatisfied with the result in this action.  

[100] Lastly, the defendants…rely on the observations of Rady J. in McCann v. CP Ships Ltd., at para. 83:

It is difficult to understand the basis on which an Ontario court could or should take jurisdiction over the class members as proposed. Where is the real and substantial connection between, for example, the Ontario Court and a French citizen residing in France who purchased securities over the TSE? It strikes me as judicial hubris to conclude that an Ontario court would have jurisdiction in those circumstances. “

Strathy, J. cites the Ontario Court of Appeal’s three part test in Currie v. McDonald’s Restaurants Canada Ltd. 2005 CanLII 3360 (ON C.A.), (2005), 74 O.R. (3d) 321 (C.A.) (“Currie”) for the recognition of a foreign class action judgment:

“In my view, provided (a) there is a real and substantial connection linking the cause of action to the foreign jurisdiction, (b) the rights of non-resident class members are adequately represented, and (c) non-resident class members are accorded procedural fairness including adequate notice, it may be appropriate to attach jurisdictional consequences to an unnamed plaintiff’s failure to opt out. In those circumstances, failure to opt out may be regarded as a form of passive attornment sufficient to support the jurisdiction of the foreign court. I would add two qualifications: First, as stated by LaForest J. in Hunt v. T & N plc., above at p. 325, “the exact limits of what constitutes a reasonable assumption of jurisdiction” cannot be rigidly defined and “no test can perhaps ever be rigidly applied” as “no court has ever been able to anticipate” all possibilities. Second, it may be easier to justify the assumption of jurisdiction in interprovincial cases than in international cases: see Muscutt v. Courcelles 2002 CanLII 44957 (ON C.A.), (2002), 60 O.R. (3d) 20 at paras. 95-100 (C.A.).”

At this point in the reasons, the jurisdictional analysis veers into uncharted waters. First, Strathy, J. at para. 108 refers to “the mirror image of the principles stated by the Court of Appeal [in Currie] are applicable to the exercise of jurisdiction by this court in a class action that seeks to include class members outside the jurisdiction.” This is not entirely accurate, since the “real and substantial connection” test and former Muscutt (now Van Breda) factors for assuming jurisdiction are not applied when assessing whether a foreign court properly exercised jurisdiction in a foreign judgment enforcement action in Canada.

Nevertheless, Justice Strathy forges on:

“It must be asked whether the assumption of jurisdiction would satisfy the real and substantial connection test and the principles of order and fairness. This is an issue of whether it is appropriate to assume jurisdiction over the legal rights of an individual who has neither attorned nor agreed to this Court’s jurisdiction. In considering this issue from the perspective of the non-resident class member, it is appropriate to ask, as did Sharpe J.A., whether the non-resident has done something that would give rise to a reasonable expectation that legal claims arising out of the activity could be litigated in the jurisdiction. The court should also ask whether it would be reasonable from the perspective of the defendant that class action litigation in the jurisdiction should finally dispose of claims of non-resident class members.

[109] This will not be the end of the analysis, as Sharpe J.A. pointed out at paras. 23-25 of Currie. The principles of order and fairness require that, even if there is a substantial connection between the wrong and the jurisdiction and the plaintiff might have expected that his or her legal rights would be resolved in the jurisdiction, the procedures adopted must ensure that the rights of absent class members are adequately protected. This calls for consideration of appropriate representation for such class members, appropriate notice and an informed and meaningful opportunity to opt out.

[110] The relevant authorities were reviewed by Van Rensburg J. in Silver v. Imax – Certification, who noted that presence of non-resident class members could raise issues of applicable law but concluded that those issues need not be resolved at the certification stage. She found that there was a real and substantial connection with Ontario. Imax had its head office in Ontario, it was a reporting issuer under the Securities Act and its shares were traded on the TSX. The alleged misrepresentation was made in Ontario and the conduct of some of the defendants was alleged to have taken place in Ontario.”

The foregoing analysis begs the question whether the “real and substantial connection” test has any relevance in multi-jurisdictional class proceedings (see, Tanya J. Monestier, Personal Jurisdiction Over Non-Resident Plaintiffs in Multi-Jurisdictional Class Actions: Have We Gone Down the Wrong Road?  45 Tex.Int’l L.J.__(2009) (forthcoming)).

Second, the issue of choice of law, which factors significantly in both the “strong cause” test and forum non conveniens test, is once again given short shrift:

“[99] The defendants also raise the question of what law governs the claims of non-residents. While the provincial securities statutes may be relatively uniform (and the plaintiff says they are, but has not pleaded the law of other provinces) and while the court has jurisdiction to apply foreign law, the diversity of applicable laws could make the action unmanageable. The defendants submit that persons who purchased Gammon shares outside Ontario, have no cause of action under s.130 of the Securities Act: Pearson v. Boliden Ltd. 2002 BCCA 624 (CanLII), (2002), 222 D.L.R. (4th) 453 (B.C.C.A.) at paras. 64-66. See also McNaughton Automotive Ltd. v. Co-Operators General Insurance Co., above, at paras. 37-38.

[117] Like Van Rensburg J. in Silver v. Imax – Certification, I do not find it necessary at this stage to make a determination of the law applicable to the claims of non-resident members of the class who purchased their securities from underwriters in other provinces. Given the similarity between s. 130 of the Securities Act and the securities laws of other provinces of Canada, this may not be an issue with respect to Class Members from other provinces. I will require the appointment of a separate representative for Class Members located outside Canada who purchased their shares in Canada. In the event either party wishes to plead foreign law with respect to the rights of Class Members outside Ontario, the issue can be addressed at a later date.

[118] As will become apparent, I do not consider it appropriate to certify the secondary market claim. Had I done so, I would have limited the Class to those who acquired their shares on the TSX, who, for the reasons set out above, could reasonably contemplate that their rights would be determined by the courts of the jurisdiction where the shares were acquired.

International class actions involving non-resident class members from a number of different jurisdictions should have one legal issue in common; namely, they are all subject to the same law in determining liability and damages. If different iterations of securities legislation may apply to similarly-situated non-resident defendants, then there is a risk of inconsistent results.

In any event, at para. 111, the court finds that the plaintiff’s s.130 Securities Act claim against all defendants, establishes a ‘real and substantial connection’:

“…under a number of heads within Rule 17.02 of the Rules of Civil Procedure: the plaintiff claims in respect of personal property in Ontario, his shares (17.02(a)); it is a claim in respect of a contract made in Ontario to acquire his shares (17.02(f)); and a tort – misrepresentation, committed in Ontario (17.02(g)); and is against a person resident or carrying on business in Ontario, at least in connection with the Underwriters and likely in relation to Gammon by virtue of its listing its shares on the TSX and entering into the underwriting agreement in Ontario (17.02(p)).”

At the second stage of the Van Breda analysis, the court found that there is clearly a connection between Ontario and the plaintiff’s claim:

“…Mr. McKenna is a resident of Toronto and acquired his shares in Gammon in Ontario. It is a reasonable assumption that a number of the purchasers under the Prospectus were also residents of Ontario and acquired their shares in a similar fashion. There are also a number of connections between Gammon, the Underwriters and Ontario:

(a) Gammon’s shares were traded on the TSX and the evidence suggests that the volume of trading was substantially higher on the TSX than on the AMEX;

(b) Gammon was a reporting issuer in Ontario;

(c) the Underwriters have offices in Ontario, carry on business in Ontario, are registered as dealers under the Securities Act and are members of the TSX;

(d) the underwriting agreement was made in Ontario, was expressly subject to Ontario law and called for closing of the offering in Ontario;

(e) the prospectus was filed with the Ontario Securities Commission; and

(f) one of the directors of Gammon, Mr., Hendrick, was resident in Ontario.”

The learned motion judge concludes:

“[113] The activities of Gammon and the individual defendants in concluding the underwriting agreement in Ontario, filing the Prospectus with the OSC and listing Gammon’s share on the TSX are clearly substantial connections with Ontario. Gammon and its officers and directors could reasonably expect that in closing the underwriting in Ontario and issuing the Prospectus through underwriters based in Ontario, their rights, and the rights of purchasers under the Prospectus, would be determined by the courts of Ontario, subject to appropriate safeguards to ensure that the court’s judgment would be given preclusive effect in the case of non-resident purchasers. There is no unfairness in subjecting the defendants to Ontario jurisdiction. It would be unfair to require Mr. McKenna to pursue his claim in another province, such as Nova Scotia or Quebec, which have technical connections to Gammon, but no real or substantial connection with Mr. McKenna or the issues in this case.

[114] The real and substantial connection test does not require a finding that Ontario has the most real and substantial connection. As the cause of action is for prospectus misrepresentation, however, Ontario’s connection with the claim as a whole is greater than any other jurisdiction and is both real and substantial. Having come to Ontario for the purposes of making and closing the public offering, and having listed the shares on the TSX, it seems to me that Gammon can reasonably be taken to have submitted itself to Ontario jurisdiction for the purposes of the determination of its rights and liabilities under the Prospectus.

[115] The second issue is whether the principles of order and fairness support the extension of the court’s jurisdiction to require class members out of the jurisdiction to either opt out or be bound by the result. Following the example given by Sharpe J.A., in Currie, where non-resident class members have engaged in a cross-border transaction, acquiring securities of a Canadian company, in Canada, through a Canadian underwriter, they can reasonably expect that their legal rights in relation to that acquisition would be subject to Canadian jurisdiction and, in this case, a jurisdiction with a real and substantial connection to the defendants and the issues. The same could reasonably be said of Class Members in other provinces. For this reason, subject to appropriate safeguards with respect to representation and notice, it is appropriate to certify a class that would include non-residents who made purchases from the underwriters in Canada and under the Prospectus.

[116] It is not appropriate to include within the Class those persons who purchased securities from the Underwriters or their agents outside Canada. The acquisition of those securities in a jurisdiction outside Canada would not give rise to a reasonable expectation that the acquiror’s rights would be determined by a court in Canada.”

A day later, another Ontario decision was released applying the Van Breda test,  Lazer-Tech Limited v. Steve Dejeray and Cindy Watson, 2010 ONSC 1662 (CanLII) [“Lazer-Tech”].  The facts are straightforward. Since 2002, the plaintiff, Lazer-Tech, an Ontario-based manufacturer and seller of printed circuit boards purchased equipment from Apex Canada, a B.C. equipment manufacturer. After Apex Canada went into receivership in 2008, Lazer-Tech sued the individual officers and employees of Apex Canada, alleging fraudulent conveyances, inducing breach of contract and unlawful interference with economic relations by causing Apex Canada to not pay Lazer-Tech’s trade debt. Neither of the personal defendants lived in nor had any connection with Ontario. With respect to jurisdiction, Penny, J. applied the Van Breda test and also considered the issue of attornment vis-à-vis Dejeray’s delivery of a Notice of Intent to Defend before he retained Ontario counsel. After reviewing the elements of the new Van Breda test, the plaintiff fails to raise the presumption of Ontario jurisdiction:

“[29] Here, Lazer-Tech expressly relies in its Claim on Rule 17.02(h). Consistent with Van Breda, that does not give rise to a presumption of Ontario jurisdiction. According to Van Breda, reliance on this category places an onus on the plaintiff to demonstrate that the real and substantial connection test is met. Lazer-Tech’s argument that it is prima facie “entitled” to bring this action in Ontario by reason of Rule 17.02(h) is, therefore, not sustainable under the Van Breda analysis.

[30] Further, the present case is, in my view, distinguishable from a products liability case where damage is suffered in Ontario because defective products, made elsewhere, are sold into the Ontario market. Here, the only “damage” is due to the fact of non-payment by Apex Canada and the only reason the damage occurred here is because the Lazer-Tech is based here.

[31] Lazer-Tech’s claim also purports to rely on R. 17.02(g) – “a tort committed in Ontario.” The Claim does not, however in setting out the causes of action, describe a single action taken by the Defendants in Ontario. Rather, all of the actions alleged to constitute the tortious conduct occurred in B.C. The Defendants’ evidence confirms that all of their actions occurred in B.C. and none in Ontario. Lazer-Tech made no attempt, in its evidence, to challenge the Defendants on this issue. In my opinion, there is no substance to Lazer-Tech’s reliance on Rule 17.02(g). Again, therefore, the presumption of Ontario jurisdiction does not arise.

Justice Penny then proceeds to the second stage of the Van Breda analysis:

[“32] The question then becomes whether Lazer-Tech has, in all the circumstances, satisfied its onus of demonstrating that there is a real and substantial connection between Ontario and the subject-matter of the Claim. In my opinion, that onus has not been discharged. Virtually all of the events relied on by Lazer-Tech in the Claim occurred in B.C. The ordering of the PCBs, the receipt of the PCBs, the decisions to re-ship to Washington and the actual re-shipments, the alleged “fraudulent” transfers of PCBs from Apex Canada to Apex U.S. and the conduct of the Defendants giving rise to the alleged inducements to breach the contract and interference with economic interests all took place in B.C. The only events alleged to have occurred in Ontario are of marginal or no relevance to the subject-matter of the Claim: Lazer-Tech’s receipt of orders from Apex Canada; the shipment by the Plaintiff of PCBs from Ontario to Apex Canada in B.C.; and, “damage” in Ontario, in the limited sense that payment was not received by Lazar-Tech for the sale of its PCBs.

[33] There is no connection of any kind between the Defendants and Ontario, nor is any pleaded. The actions alleged are the actions of British Columbians, inside B.C. In my opinion, neither the connection of the subject-matter of Lazer-Tech’s claim to Ontario nor the connection of the Defendants and their alleged tortious conduct to Ontario can be described as “real” or “substantial.”

[34] Although Van Breda confirms that the fairness of assuming or refusing jurisdiction is a tool that may be used in assessing the strength of the connection to the jurisdiction (paras. 93-101), in this case, there is, in my view, no fairness consideration that offsets the overall lack of connection to Ontario. There were transactions involving a party in Ontario and parties in B.C. One party must litigate any disputes over those transactions outside its home jurisdiction. There is nothing unfair in requiring Lazer-Tech to bring its claim in B.C. when effectively all of the relevant events involved in the Claim against the Defendants occurred in their home jurisdiction.”

After a review of the relevant caselaw, Penny J. similarly rejects the plaintiff’s consent-based jurisdiction (attornment) argument:

“[40] In the present case, the notice was served by Dejeray personally, not by counsel. There is no evidence it was ever filed with the Ontario court. The first communication from Dejeray’s Vancouver counsel to Lazer-Tech’s counsel occurred on November 5, 2009, when he had apparently not yet had an opportunity to meet with Dejeray. Dejeray’s Ontario counsel gave notice of his intent to challenge Ontario’s jurisdiction about two weeks after that initial contact. In my view, in the circumstances of this case, the service by Dejeray of a notice of intent to defend did not constitute voluntary attornment so as to preclude the relief sought on this motion.”

Regrettably, having determined that Ontario lacked jurisdiction simpliciter, the court then unnecessarily conducts a forum non conveniens analysis. Interestingly, the court’s approach to characterization (i.e. tort vs. contract) exposes a potential flaw in applying the Van Breda test wholesale to all types of claims; even in circumstances where there is an overlap in the rebuttable presumptions where the alleged tort arises from an underlying contractual breach:

“[49] The third factor – contractual provisions specifying the applicable law of the contract – is of limited or no relevance in this case. This is not a contract claim but a tort claim, where the alleged tortious conduct all took place in B.C. There was evidence, albeit inconclusive, that the Apex Canada purchase orders specified B.C. law. However, I do not find that particular fact, even if proved, helpful in the analysis of the convenient forum for this Claim.

[51] The fifth factor – applicable law – was argued only in the context of the applicable law of the contract. As noted above, the law of the contract does not have a significant impact in this case. The contracts between the parties were merely a series of orders made from time to time by means of electronic communication. The Claim against the Defendants has nothing to do with contract formation or with anything occurring at the time each order was placed or shipment made. This is not a claim against Apex Canada for payment under a contract of purchase and sale. The Claim is in tort – the contractual aspect of the matter is of relevance only by way of background to the torts alleged. Since it is undisputed that the torts took place in B.C., the law of that province will govern this cause of action: Tolofson v. Jensen, 1994 CanLII 44 (S.C.C.), [1994] 3 S.C.R. 1022 at para. 66.

[52] The sixth factor – geography or “where the facts arose” – strongly supports the convenience of B.C. The Claim pleads no facts relevant to the causes of action that happened in Ontario. All of the events relied on to support the pleaded claims are manifestly events which took place exclusively in B.C. The only connection to Ontario is that the PCBs in question were originally acquired from a company located in this jurisdiction, which chose to accept purchase orders for the PCBs and ship them to B.C. That is, in my view, a weak connection in the context of this claim, which, as noted above, is not a contract claim but one involving “fraudulent conveyances” and the torts of “inducing breach of contract” and “interference with economic relations” where all of the conduct giving rise to the alleged tortious conduct occurred in B.C.”

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