BTR Global Opportunity Trading Ltd. et al. v. RBC Dexia Investor Services Trust, (2011) 283 O.A.C. 321 (CA)

• Judge: Laskin, J.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 12, 2011
• Jurisdiction: Ontario
• Citations: (2011), 283 O.A.C. 321 (CA);2011 ONCA 620

BTR Global Opportunity v. RBC Dexia (2011), 283 O.A.C. 321 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. OC.002

BTR Global Opportunity Trading Limited, BTR Global Growth Trading Limited, BTR Global Arbitrage Trading Limited, and BTR Global Prospector Trading Limited (plaintiffs/respondents/responding parties) v. RBC Dexia Investor Services Trust and Lehman Brothers International (Europe ) (defendants/appellant/moving party)

(M40432 (C53335); 2011 ONCA 620)

Indexed As: BTR Global Opportunity Trading Ltd. et al. v. RBC Dexia Investor Services Trust

Ontario Court of Appeal

Laskin, J.A.

September 29, 2011.

Summary:

BTR Global Opportunity Trading Ltd. placed publicly and privately traded securities with Lehman Brothers International (Europe) (LBIE) under various brokerage contracts. In September 2008, LBIE became insolvent. BTR then brought two separate proceedings in Ontario to recover their securities, one in respect of the Canadian privately traded securities, and the other in respect of the Canadian publicly traded securities. LBIE sought a permanent stay of the action with respect to publicly traded securities on the ground that the parties had agreed that a New York court would have exclusive jurisdiction over any proceeding relating to their contracts.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 316, refused to grant the stay. LBIE appealed.

The Ontario Court of Appeal, in a decision not reported in this series of reports, dismissed the appeal. LBIE sought leave to appeal to the Supreme Court of Canada and moved for an order staying the action pending a decision on the motion for leave to appeal.

The Ontario Court of Appeal, per Laskin, J.A., dismissed the motion.

Practice - Topic 9090.4

Appeals - Supreme Court of Canada - Leave to appeal - Stay of judgment pending application for - BTR Global Opportunity Trading Ltd. placed publicly and privately traded securities with Lehman Brothers International (Europe) (LBIE) under various brokerage contracts - In September 2008, LBIE became insolvent - BTR then brought two separate proceedings in Ontario to recover their securities, one in respect of the Canadian privately traded securities, and the other in respect of the Canadian publicly traded securities - LBIE sought a permanent stay of the action with respect to publicly traded securities on the ground that the parties had agreed that a New York court would have exclusive jurisdiction over any proceeding relating to their contracts - Campbell, J., refused to grant the stay - LBIE appealed - The Ontario Court of Appeal dismissed the appeal - LBIE sought leave to appeal to the Supreme Court of Canada and moved for an order staying the action pending a decision on the motion for leave to appeal - The Ontario Court of Appeal, per Laskin, J.A., dismissed the motion - LBIE had not shown that it was in the interests of justice to stay the Ontario action pending the determination of its leave motion - Three considerations underlay the court's conclusion: "the dubious merit of the leave motion; BTR's undertaking; and the ongoing New York litigation".

Cases Noticed:

Merck & Co. et al. v. Canada (Attorney General) et al. (2000), 255 N.R. 383; 5 C.P.R.(4th) 417 (F.C.A.), refd to. [para. 18].

Ontario Public Service Employees Union v. Ontario (Attorney General) (2002), 158 O.A.C. 113 (C.A.), refd to. [para. 18].

Pompey (Z.I.) Industrie et al. v. Ecu-Line N.V. et al., [2003] 1 S.C.R. 450; 303 N.R. 201; 2003 SCC 27, refd to. [para. 20].

Expedition Helicopters Inc. v. Honeywell Inc. (2010), 262 O.A.C. 195; 319 D.L.R.(4th) 316; 2010 ONCA 351, refd to. [para. 20].

Momentous.ca Corp. et al. v. Canadian American Association of Professional Baseball Ltd. et al. (2010), 270 O.A.C. 36; 325 D.L.R.(4th) 685; 2010 ONCA 722, refd to. [para. 24].

Jones (M.J.) Inc. et al. v. Kingsway General Insurance Co. et al. (2004), 189 O.A.C. 272; 242 D.L.R.(4th) 139 (C.A.), dist. [para. 29].

Counsel:

Christopher D. Bredt, for the moving party;

Jeffrey Leon, for the responding parties.

This motion was heard on September 12, 2011, by Laskin, J.A., of the Ontario Court of Appeal, who delivered the following judgment on September 29, 2011.