Incorporated Broadcasters Ltd. et al. v. CanWest Global Communications Corp. et al., (2003) 169 O.A.C. 1 (CA)

• Judge: Austin, Rosenberg and Gillese, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 24, 2003
• Jurisdiction: Ontario
• Citations: (2003), 169 O.A.C. 1 (CA);2003 CanLII 52135 (ON CA);63 OR (3d) 431;223 DLR (4th) 627;31 BLR (3d) 161;[2003] OJ No 560 (QL);120 ACWS (3d) 966;169 OAC 1;30 CPC (5th) 282

IBL v. CanWest Global (2003), 169 O.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. FE.060

Incorporated Broadcasters Limited, Mae Management Corporation, Seymour Epstein and Paul Morton (appellants) v. CanWest Global Communications Corp., Global Television Network Inc., Canvideo Television Sales (1983) Limited, Global Communications Limited, CanWest Global Broadcasting Inc. and Israel Asper (respondents)

(C37464)

Indexed As: Incorporated Broadcasters Ltd. et al. v. CanWest Global Communications Corp. et al.

Ontario Court of Appeal

Austin, Rosenberg and Gillese, JJ.A.

February 24, 2003.

Summary:

The plaintiff minority shareholders brought an action in Ontario for oppression relief under the Canada Business Corporations Act against a Manitoba corporation (CanWest Broadcasting).

The Ontario Superior Court, in a judgment reported [2001] O.T.C. 884, held that Ontario courts had no jurisdiction, because there was no real and substantial connection between the claims and Ontario. Alternatively, the motions judge declined jurisdiction on the ground that Manitoba was the most convenient forum. The motions judge stayed the action. The plaintiffs appealed and sought to introduce fresh evidence on appeal.

The Ontario Court of Appeal dismissed the appeal. The court held that the motions judge erred in finding that the Ontario courts lacked jurisdiction. However, the motions judge did not err in declining jurisdiction on the ground that Manitoba was the more convenient forum. The court declined to admit the fresh evidence.

Conflict of Laws - Topic 603

Jurisdiction - Jurisdiction simpliciter - The plaintiff minority shareholders brought an action in Ontario for oppression relief under the Canada Business Corporations Act against a Manitoba corporation and other defendants - A motions judge held that Ontario courts lacked jurisdiction because there was no real and substantial connection between the claim and Ontario - The Ontario Court of Appeal held that Ontario courts had jurisdiction simpliciter over all defendants except one (Asper) because of their presence in Ontario - There was also jurisdiction over Asper, because there was a real and substantial connection between the claim against him and Ontario - The court stated that "the real and substantial connection test applies where a court seeks to assume jurisdiction over defendants that have no presence in the jurisdiction. ... It is not a pre-requisite for the assertion of jurisdiction over defendants, even out-of-province defendants, that are present in the jurisdiction. ... Where the defendant is within the jurisdiction, the court has jurisdiction over the person. ... There is no constitutional impediment to a court asserting jurisdiction over a person having a presence in the province." - See paragraphs 29 to 48.

Conflict of Laws - Topic 1664

Actions - Forum conveniens - Considerations - The plaintiffs commenced an action in Ontario for oppression relief under the Canada Business Corporations Act against a Manitoba corporation - The motions judge, in declining jurisdiction on the ground that Manitoba was the more appropriate forum, concluded that since the Manitoba corporation was not federally incorporated, the plaintiffs were not entitled to relief under the Canada Business Corporations Act, but had to seek relief under the Manitoba Corporations Act - The Ontario Court of Appeal held that even if the motions judge was correct, forum conveniens was to be determined on the claim as presented, assuming that oppression relief was available - The merits of the claim should not be decided at this preliminary stage - See paragraphs 52 to 54.

Conflict of Laws - Topic 3604

Corporations - General - Forum conveniens - The plaintiff minority shareholders brought an action in Ontario for oppression relief under the Canada Business Corporations Act against a Manitoba corporation and other defendants - A motions judge stayed the action on the ground that Manitoba was the most convenient forum - The Ontario Court of Appeal stated that the factors to be considered under the forum conveniens test were: "(a) the location where the contract in dispute was signed, (b) the applicable law of the contract, (c) the location in which the majority of witnesses reside, (d) the location of key witnesses, (e) the location where the bulk of the information will come from, (f) the jurisdiction in which the factual matters arose, (g) the residence or place of business of the parties, and (h) loss of juridical advantage." - Although the motions judge erred in weighing certain of these factors and in delving into the merits of the claim, his conclusion that Manitoba was clearly the more appropriate forum was unassailable - The court affirmed the stay of the Ontario action - See paragraphs 49 to 73.

Conflict of Laws - Topic 9284

Practice - Stay of proceedings - Where court lacks or declines jurisdiction - [See Conflict of Laws - Topic 3604 ].

Cases Noticed:

Morton v. Asper (1989), 62 Man.R.(2d) 1 (Q.B.), refd to. [para. 3].

Muscutt et al. v. Courcelles et al. (2002), 160 O.A.C. 1; 213 D.L.R.(4th) 577 (C.A.), refd to. [para. 29].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81, refd to. [para. 30].

Moran et al. v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393; 1 N.R. 122, refd to. [para. 32].

Hunt v. T & N plc et al. - 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. 36].

McNichol Estate v. Woldnik et al. (2001), 150 O.A.C. 68; 13 C.P.C.(5th) 61 (C.A.), refd to. [para. 38].

Frymer v. Brettschneider and Shechtmann (1994), 72 O.A.C. 360; 19 O.R.(2d) 60 (C.A.), refd to. [para. 49].

PMSM Investments Ltd. v. Bureau (1995), 25 O.R.(3d) 586 (Gen. Div.), refd to. [para. 54, footnote 3].

Moriarty v. Slater (1989), 67 O.R.(2d) 758 (H.C.), refd to. [para. 57, footnote 4].

Spar Aerospace Ltd. v. American Mobile Satellite Corp. et al. (2002), 297 N.R. 83 (S.C.C.), refd to. [para. 58].

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. 58].

Eastern Power Ltd. v. Azienda Communale Energia and Ambiente (1999), 125 O.A.C. 54; 178 D.L.R.(4th) 409 (C.A.), refd to. [para. 61].

SDI Simulation Group Inc. v. Chameleon Technologies Inc. (1994), 34 C.P.C.(3d) 346 (Ont. Gen. Div.), refd to. [para. 61].

Fidelity Management and Research Co. v. Gulf Canada Resources Inc. (1995), 25 O.R.(3d) 548 (Gen. Div.), refd to. [para. 71].

Authors and Works Noticed:

Castel, J.-G., Canadian Conflict of Laws (4th Ed. 1997), p. 54 [para. 34].

McGuinness, Kevin P., The Law and Practice of Canadian Business Corporations (1999), pp. 266 to 269 [para. 36].

Counsel:

Harvey T. Strosberg, Q.C., William V. Sasso and Sean T. MacDonald, for the appellants;

Thomas G. Heintzman, Q.C., Jonathan C. Lisus and Christopher A. Wayland, for the respondents.

This appeal was heard on November 7, 2002, before Austin, Rosenberg and Gillese, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was delivered by Rosenberg, J.A., and released on February 24, 2003.