Check Group Canada Inc. v. Icer Canada Corp. et al.

• Jurisdiction: Nova Scotia
• Court: Supreme Court of Nova Scotia (Canada)
• Judge: Murphy, J.
• Neutral Citation: 2010 NSSC 463
• Citation: (2010), 299 N.S.R.(2d) 145 (SC),2010 NSSC 463,[2010] OJ No 187 (QL),89 CPC (6th) 91,299 NSR(2d) 145,(2010), 299 NSR(2d) 145 (SC),[2010] O.J. No 187 (QL),299 N.S.R.(2d) 145
• Date: 14 December 2010

Check Group Can. v. Icer Can. Corp. (2010), 299 N.S.R.(2d) 145 (SC);

    947 A.P.R. 145

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. FE.032

Check Group Canada Inc. (plaintiff) v. Icer Canada Corporation, 9145-5089 Québec Inc, Robert Choueke, 109652 Canada Ltd. (defendants)

(Hfx. No. 330888; 2010 NSSC 463)

Indexed As: Check Group Canada Inc. v. Icer Canada Corp. et al.

Nova Scotia Supreme Court

Murphy, J.

December 14, 2010.

Summary:

Defendants moved under Civil Procedure Rule 4.07 and s. 12 of the Court Jurisdiction and Proceedings Transfer Act for an order dismissing or staying the action against them on the grounds that the court lacked territorial competence over the subject matter of the action or that the court should decline to exercise its jurisdiction because the matter was forum non conveniens.

The Nova Scotia Supreme Court dismissed the motion.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter (territorial competence) - The plaintiff was incorporated pursuant to the laws of New York with its head office located in New York - The Choueke defendants were incorporated pursuant to the laws of Quebec with registered offices in Montreal - The defendant, Icer Canada Corp., was a limited company in Nova Scotia with a registered head office in Halifax - Icer Canada was incorporated as a vehicle for a 50/50 venture between the plaintiff and the Choueke defendants to distribute certain lines of urban clothing in Canada - The joint venture was conducted pursuant to an unsigned memorandum of agreement that included a choice of law clause (laws of Quebec) - The plaintiff brought an action in Nova Scotia, alleging breaches of duty (fiduciary and others) and alternative remedies under the Companies Act (N.S.) - The Choueke defendants moved under Civil Procedure Rule 4.07 and s. 12 of the Court Jurisdiction and Proceedings Transfer Act (CJPTA) for an order dismissing or staying the action on the grounds that the court lacked territorial competence over the subject matter of the action - The Nova Scotia Supreme Court dismissed the motion - The court applied the Muscutt factors (Muscutt et al. v. Courcelles et al. (Ont. C.A. 2002)) and held that "[t]his court has exclusive jurisdiction over the alternative remedies sought under the Companies Act. Those remedies are closely intertwined with the plaintiff's primary claims. It would be unfair to force the plaintiff to bring two separate actions, since this would result in duplication of production and discovery examinations. At the same time, in my view, the defendants will experience no significant unfairness in defending this action in Nova Scotia. None of the other Muscutt factors militates against a finding of a real and substantial connection. Therefore, I find that there is a real and substantial connection between the subject matter and Nova Scotia, and that this Court does have territorial competence, under s. 4(e) of the CJPTA, to hear this matter." - See paragraphs 16 to 36.

Conflict of Laws - Topic 1664

Actions - General - Forum conveniens - Considerations - The plaintiff was incorporated pursuant to the laws of New York with its head office located in New York - The Choueke defendants were incorporated pursuant to the laws of Quebec with registered offices in Montreal - The defendant, Icer Canada Corp., was a limited company in Nova Scotia with a registered head office in Halifax - Icer Canada was incorporated as a vehicle for a 50/50 venture between the plaintiff and the Choueke defendants to distribute certain lines of urban clothing in Canada - The joint venture was conducted pursuant to an unsigned memorandum of agreement that included a choice of law clause (laws of Quebec) - The plaintiff brought an action in Nova Scotia, alleging breaches of duty (fiduciary and others) and alternative remedies under the Companies Act (N.S.) - The Choueke defendants moved under Civil Procedure Rule 4.07 and s. 12 of the Court Jurisdiction and Proceedings Transfer Act (CJPTA) for an order dismissing or staying the action on the grounds that the court should decline to exercise its jurisdiction because the matter was forum non conveniens - They suggested Quebec as the proper forum and that the case should be split between Nova Scotia and Quebec - The Nova Scotia Supreme Court dismissed the motion - There was no binding choice of jurisdiction clause between the parties - The memorandum of agreement contained a choice of law clause but no choice of forum clause and was not executed - The case was intraprovincial and the eventual judgment would be recognized in Quebec - Avoidance of multiple proceedings and conflicting decisions strongly supported hearing the matter in Nova Scotia - The fair and efficient working of the Canadian legal system also supported hearing the matter in Nova Scotia - It would be unfair to the plaintiff to split this case between two Canadian provinces, and it would not be unfair for the Choueke defendants to defend the action in Nova Scotia - Judicial resources were scarce across Canada - In the absence of a binding choice of jurisdiction clause, fairness and efficiency demand hearing a matter that had claims connected to multiple forums in the forum that had exclusive jurisdiction over at least some of the claims - This also strongly supported hearing the matter in Nova Scotia - See paragraphs 37 to 55.

Conflict of Laws - Topic 3604

Corporations and partnerships - General - Forum conveniens - [See Conflict of Laws - Topic 1664 ].

Conflict of Laws - Topic 3607

Corporations and partnerships - General - Jurisdiction - [See Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 7284

Contracts - Jurisdiction - Forum conveniens - [See Conflict of Laws - Topic 1664 ].

Conflict of Laws - Topic 7285

Contracts - Jurisdiction - Real and substantial connection - [See Conflict of Laws - Topic 603 ].

Cases Noticed:

Penny v. Bouch et al. (2008), 272 N.S.R.(2d) 259; 869 A.P.R. 259; 2008 NSSC 378, affd. (2009), 281 N.S.R.(2d) 238; 893 A.P.R. 238; 2009 NSCA 80, refd to. [para. 14].

Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393; 1 N.R. 122, refd to. [para. 22].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81, refd to. [para. 23].

Hunt v. T&N plc - see Hunt v. Lac d'Amiante du Québec ltée et al.

Hunt v. Lac d'Amiante du Québec ltée et al., [1993] 4 S.C.R. 289; 161 N.R. 81; 37 B.C.A.C. 161; 60 W.A.C. 161, refd to. [para. 23].

Muscutt et al. v. Courcelles et al. (2002), 160 O.A.C. 1; 213 D.L.R.(4th) 577 (C.A.), appld. [para. 24].

McDermott Gulf Operating Co. et al. v. Oceanographia Sociedad Anonima de Capital Variable et al. (2010), 290 N.S.R.(2d) 118; 920 A.P.R. 118; 2010 NSSC 118, refd to. [para. 26].

Nord Resources Corp. v. Nord Pacific Ltd. et al. (2003), 263 N.B.R.(2d) 205; 689 A.P.R. 205; 2003 NBQB 201, refd to. [para. 31].

Voyage Company Industries Inc. v. Craster et al., [1998] B.C.T.C. Uned. B38 (S.C.), refd to. [para. 31].

Incorporated Broadcasters Ltd. et al. v. Canwest Global Communications Corp. et al., [2001] O.T.C. 884; 20 B.L.R.(3d) 289 (Sup. Ct.), affd. (2003), 169 O.A.C. 1; 63 O.R.(3d) 431; 223 D.L.R.(4th) 627 (C.A.), refd to. [para. 31].

Harbert Distressed Investment Master Fund Ltd. et al. v. Calpine Canada Energy Finance II ULC et al. (2005), 235 N.S.R.(2d) 297; 747 A.P.R. 297; 2005 NSSC 211, consd. [para. 33].

Pompey (Z.I.) Industrie et al. v. Ecu-Line N.V. et al. (2003), 303 N.R. 201; 2003 SCC 27, dist. [para. 38].

Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.), [1993] 1 S.C.R. 897; 150 N.R. 321; 23 B.C.A.C. 1; 39 W.A.C. 1, refd to. [para. 46].

Lombard General Insurance Co. of Canada v. Cominco Ltd. et al., [2009] 1 S.C.R. 321; 384 N.R. 351; 266 B.C.A.C. 32; 449 W.A.C. 32; 2009 SCC 11, refd to. [para. 47].

Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241, refd to. [para. 50].

Counsel:

John Keith, for plaintiff (as respondent);

William L. Mahody with Tammy Manning, for defendants, 9145-5089 Quebec Inc., Robert Choueke, 109652 Canada;

Icer Canada Corporation, defendant, not represented.

This motion was heard and decided on December 14, 2010, at Halifax, N.S., by Murphy, J., of the Nova Scotia Supreme Court, who delivered the following written decision on February 7, 2011.