Central Sun Mining Inc. v. Vector Engineering Inc. et al., (2013) 310 O.A.C. 391 (CA)

• Judge: Goudge, Gillese and Pepall, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 21, 2013
• Jurisdiction: Ontario
• Citations: (2013), 310 O.A.C. 391 (CA);2013 ONCA 601

Central Sun Mining v. Vector Eng. Inc. (2013), 310 O.A.C. 391 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. OC.012

Central Sun Mining Inc. (plaintiff/appellant) v. Vector Engineering Inc., Vector Colorado LLC, Vector Costa Rica, S.A., Vector Ingeniera Costa Rica, S.A., Steffen Robertson Kirsten/SRK Consulting, Steffen Robertson Kirsten (U.S.) Inc., SRK Field Services LLC , Golder Associates Inc., Golder Associates Ltd., Richard Frechette , A.V. Chance, Brent Johnson, Don West, Dave S. Hallman, Charles J. Khoury, Rob Dorey, Allan Breitenbach , Michael Henderson, Mark Smith, Marc Leduc , Matt Fuller, Sean Currie and XVEI Inc. (defendants/respondents)

(C56498; 2013 ONCA 601)

Indexed As: Central Sun Mining Inc. v. Vector Engineering Inc. et al.

Ontario Court of Appeal

Goudge, Gillese and Pepall, JJ.A.

October 2, 2013.

Summary:

Central Sun Mining Inc. was an Ontario company with its head office in Toronto. It owned a gold mine in Costa Rica. Central Sun retained several American engineering consultants (respondents) to provide studies relating to the design and operation of the mine. In 2007, Central Sun was forced to shut down the mine after a major landslide occurred. It sued the respondents for negligent misrepresentation, negligence and breach of contract, asserting that the studies were badly flawed. The respondents moved for an order that the Ontario court should not assume jurisdiction over them.

The Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 7331, found that the action lacked a real and substantial connection with Ontario and therefore the Ontario court had no jurisdiction over the respondents. Central Sun appealed.

The Ontario Court of Appeal allowed the appeal. The Ontario court could assume jurisdiction. The respondents' motion was referred back to the motions court to determine whether the court should exercise its jurisdiction.

Conflict of Laws - Topic 7605

Torts - Jurisdiction - Real and substantial connection - Central Sun Mining Inc. was an Ontario company with its head office in Toronto - It had technical staff who worked in Vancouver - Central Sun owned a mine in Costa Rica - It retained several American engineering consultants (respondents) to provide studies relating to the design and operation of the mine - The respondents sent their studies to Vancouver for review by Central Sun's technical staff, who then made recommendations to the Toronto office - In 2007, Central Sun was forced to shut down the mine after a major landslide occurred - It sued the respondents for negligent misrepresentation, negligence and breach of contract, asserting that the studies were badly flawed - The respondents moved for an order that the Ontario court should not assume jurisdiction over them - The motions judge allowed the motion, finding that the action lacked a real and substantial connection with Ontario - The Ontario Court of Appeal allowed Central Sun's appeal - The core of the tort of negligent misrepresentation was that the misrepresentation was received and acted upon - The respondents' studies were received not only in Vancouver, but also in Toronto where they were relied on in making decisions about where to locate the mine and how to build and operate it - Even if the studies were received only in Vancouver, the negligent misrepresentation was still committed in Ontario because the respondents foresaw that their studies would be acted upon in Toronto - This constituted a presumptive connection between the action and Ontario - As the respondents failed to show that only a minor element of the tort occurred in Ontario, they could not rebut the presumption, and the Ontario courts were required to take jurisdiction over the entire action - The respondents' motion was returned to the motions court to determine whether the court should exercise its jurisdiction.

Cases Noticed:

Van Breda et al. v. Village Resorts Ltd. (2012), 429 N.R. 217; 2012 SCC 17, refd to. [para. 11].

2249659 Ontario Ltd. et al. v. Sparkasse Siegen et al. (2013), 306 O.A.C. 288; 115 O.R.(3d) 241; 2013 ONCA 354, refd to. [para. 34].

Counsel:

David Hamer, William D. Black and Christopher M. Hubbard, for the appellant;

Tim Alexander and Alva Orlando, for the respondents, Steffen Robertson Kirsten/SRK Consulting, Steffen Robertson Kirsten (U.S.) Inc., SRK Field Services LLC., Richard Frechette, Dave S. Hallman, Charles J. Khoury, Rob Dorey and Allan Breitenbach;

John Lloyd and Anthony Cole, for the respondents, XVEI Inc., Vector Costa Rica, S.A., Vector Ingeniera Costa Rica, S.A., Mark Smith, Marc Leduc and Sean Currie.

This appeal was heard on May 21, 2013, before Goudge, Gillese and Pepall, JJ.A., of the Ontario Court of Appeal. Goudge, J.A., delivered the following judgment for the court on October 2, 2013.