1279022 Ontario Ltd. et al. v. Posen et al., (2003) 179 Man.R.(2d) 108 (QB)

• Jurisdiction: Manitoba
• Court: Court of Queen's Bench of Manitoba (Canada)
• Judge: Nurgitz, J.
• Citation: (2003), 179 Man.R.(2d) 108 (QB),2003 MBQB 262
• Date: 13 November 2003

1279022 Ont. Ltd. v. Posen (2003), 179 Man.R.(2d) 108 (QB)

MLB headnote and full text

Temp. Cite: [2003] Man.R.(2d) TBEd. NO.030

1279022 Ontario Limited, 711636 Alberta Ltd., 3107167 Manitoba Ltd., 2996848 Manitoba Ltd., 1231475 Ontario Inc., Michael Floch, carrying on business as MSN Ventures, Debholdco. Inc., 555380 B.C. Ltd., 512211 B.C. Ltd., 740462 Alberta Ltd., 1329759 Ontario Limited, 1357598 Ontario Inc., 620103 Saskatchewan Ltd., 510616 B.C. Ltd., John Malcolm McLeod and Jennifer McLeod, 733534 Alberta Ltd., R & V Enterprises Ltd., 1432632 Ontario Inc., 4098367 Manitoba Inc., 724225 Alberta Ltd., Donald Parry and Karen Parry, 624768 B.C. Ltd., 101015707 Saskatchewan Ltd., 585410 B.C. Ltd., Rush Holdings Inc., 4420845 Manitoba Ltd., 624813 Saskatchewan Ltd., 524194 B.C. Ltd., 526540 B.C. Ltd., 1356660 Ontario Ltd., 839676 Alberta Ltd., Govinda's International Inc. and Shree Krishna International Inc. (plaintiffs) v. Ethan Posen, 2909333 Manitoba Ltd. and 703822 Alberta Ltd. (defendants)

(CI 02-01-27930; 2003 MBQB 262)

Indexed As: 1279022 Ontario Ltd. et al. v. Posen et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Nurgitz, J.

November 13, 2003.

Summary:

The defendant 703822 Alberta Ltd. entered into franchise agreements with franchisees in Alberta. The defendant 2909333 Manitoba Ltd. entered into franchise agreements with franchisees in Manitoba, Ontario, Saskatchewan and British Columbia. Thirty-three franchisees brought one common action against the defendant companies and their president. The defendants brought a motion seeking relief against the joinder of the multiple plaintiffs and requesting that the plaintiffs' claims be severed from one another. The defendants also raised the issue of whether the plaintiffs from Alberta had a real and substantial connection with the jurisdiction of Manitoba and whether Manitoba was the forum conveniens for determining the claims of the Alberta plaintiffs.

A Master of the Manitoba Court of Queen's Bench, in a decision reported at 172 Man.R.(2d) 169, held that the defendants had not established that Alberta was a more appropriate forum. The Master directed that the defendants' motion for relief against joinder be dealt with by means of a full day case management conference. The defendants appealed.

The Manitoba Court of Queen's Bench affirmed the Master's decision on the issue of forum non conveniens. With respect to the defendants' motion for relief against joinder, the court held that the Master lacked jurisdiction to direct that the matter be dealt with by a case management conference as the procedure of a case management conference could only be implemented with the consent of the parties. The court concluded that no relief from joinder should be granted at this time.

Conflict of Laws - Topic 721

Jurisdiction - Jurisdiction excluded by contract - General - The defendant 703822 Alberta Ltd. entered into franchise agreements with franchisees in Alberta - The defendant 2909333 Manitoba Ltd. entered into franchise agreements with franchisees in Manitoba, Ontario, Saskatchewan and British Columbia - The Alberta franchise agreements provided that they were to be governed by Alberta law and that if there was any dispute between the parties "they shall attorn to the jurisdiction" of the Alberta courts - Thirty-three franchisees brought one common action against the defendant companies and their president - The defendants argued that Manitoba was not the appropriate forum and that the Alberta actions should not be heard in that jurisdiction - A Master held that the defendants had not established that Alberta was a more appropriate forum - There was a real and substantial connection with Manitoba - The choice of law as agreed to by the Alberta parties was but one factor to be considered and it was not clear that they had any real choice where the Alberta Franchises Act provided that the law of Alberta applied to franchise agreements - The "jurisdictional" clause in the Alberta franchise agreements did not exclude the jurisdiction of the Manitoba courts - The Manitoba Court of Queen's Bench affirmed the decision - See paragraph 3.

Conflict of Laws - Topic 1664

Actions - General - Forum conveniens - Considerations - [See Conflict of Laws - Topic 721 ].

Conflict of Laws - Topic 7230

Contracts - Choice of law - By parties - [See Conflict of Laws - Topic 721 ].

Conflict of Laws - Topic 7284

Contracts - Jurisdiction - Forum conveniens - [See Conflict of Laws - Topic 721 ].

Conflict of Laws - Topic 7286

Contracts - Jurisdiction - Choice of forum by parties - [See Conflict of Laws - Topic 721 ].

Practice - Topic 37

Actions - Conduct of - General - Case management - The Manitoba Court of Queen's Bench stated that the procedure of a case management conference could only be implemented with the consent of the parties as it is not provided for in the rules - See paragraph 5.

Practice - Topic 3983

Joinder of causes and consolidations - Joinder of causes of action - When separate action required - [See Practice - Topic 5253 ].

Practice - Topic 5253

Trials - General - Consolidation of actions - Severance of consolidated actions - The defendant 703822 Alberta Ltd. entered into franchise agreements with franchisees in Alberta - The defendant 2909333 Manitoba Ltd. entered into franchise agreements with franchisees in Manitoba, Ontario, Saskatchewan and British Columbia - Thirty-three franchisees brought one common action against the defendant companies and their president - The defendants sought relief against the joinder of the multiple plaintiffs and requested that the plaintiffs' claims be severed from one another - The Manitoba Court of Queen's Bench held that the joining of the claims would promote the convenient administration of justice, that no prejudice would be caused to the defendants, and that no relief should be granted from joinder at this time - The court considered that all of the plaintiffs were represented by one counsel, that the two corporate defendants had a common principal shareholder and were represented by one counsel and that all of the claims arose from franchise agreements which had a common theme - See paragraph 12.

Cases Noticed:

ABI Biotechnology Inc. v. Apotex Inc. et al. (1996), 114 Man.R.(2d) 217 (Q.B.), refd to. [para. 5].

Duchak v. Boychuk (1963), 42 D.L.R.(2d) 564 (Man. C.A.), dist. [para. 8].

Hale, Mejias and Mejias v. Canadian American Financial Corp., 291946 Alberta Ltd. and Balroop (1987), 86 A.R. 244 (Q.B. Master), dist. [para. 8].

Andrechuk v. Baaco Pizza Systems Ltd., [1990] M.J. No. 725 (Q.B. Master), dist. [para. 8].

King et al. v. Walsh Micay & Co. et al. (1992), 79 Man.R.(2d) 161 (Q.B.), affd. (1992), 78 Man.R.(2d) 320; 16 W.A.C. 320 (C.A.), consd. [para. 16].

Kripps et al. v. Touche Ross & Co. et al. (1986), 7 B.C.L.R.(2d) 105 (C.A.), refd to. [para. 17].

Kripps et al. v. Touche Ross & Co. et al. (1991), 52 B.C.L.R.(2d) 291 (S.C.), refd to. [para. 17].

Counsel:

Gavin M. Wood, for the plaintiffs;

Joseph A. Pollock, for the defendants.

This appeal was heard before Nurgitz, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on November 13, 2003.