Scheel v. Keltic Petrochemicals Inc. et al., (2007) 224 O.A.C. 122 (DC)

• Judge: Greer, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: April 19, 2007
• Jurisdiction: Ontario
• Citations: (2007), 224 O.A.C. 122 (DC)

Scheel v. Keltic Petrochemicals Inc. (2007), 224 O.A.C. 122 (DC)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. MY.045

John Scheel (plaintiff and respondent on the motion) v. Keltic Petrochemicals Inc., Westlb AG, Kevin Dunn, Wayne Rousch, Brett Olsen, John W. Chisholm, Dr. Gordie Rudolph, Bern Christmas, and Geoff Smith (defendants and appellants (all but Westlb AG))

(613-06)

Indexed As: Scheel v. Keltic Petrochemicals Inc. et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Greer, J.

May 1, 2007.

Summary:

The defendants in a contract action sought an order setting aside service of the statement of claim outside of Ontario and permanently staying the action on the grounds that Ontario was not the forum conveniens. A master dismissed the motion, finding that convenience, necessity and fairness led to the conclusion that Ontario was the more convenient forum. The defendants appealed.

The Ontario Divisional Court, per Greer, J., dismissed the appeal.

Conflict of Laws - Topic 7284

Contracts - Jurisdiction - Forum conveniens - The defendants in a contract action sought an order setting aside service of the statement of claim outside of Ontario and permanently staying the action on the grounds that Ontario was not the forum conveniens - A master dismissed the motion, finding that convenience, necessity and fairness led to the conclusion that Ontario was the more convenient forum - While the contract was signed in Alberta and stated that the law was that of Alberta, the plaintiff lived and worked in Ontario - The plaintiff's contacts in the financial industry were located all over North America - Ontario was the most centrally located jurisdiction for all witnesses - The defendant, Keltic Petrochemicals Inc., no longer had an office or telephone number in Alberta - There would be a loss of judicial advantage to the plaintiff if the action was stayed in Ontario and commenced in Alberta - The defendants appealed - The Ontario Divisional Court, per Greer, J., dismissed the appeal - The master followed the principle that the existence of a more appropriate forum had to be clearly established to displace the forum selected by the plaintiff - There was no error at law or otherwise in the conclusion she reached - Further, any doubt was to be resolved in favour of the status quo - See paragraphs 7 to 14.

Courts - Topic 1127

Masters - Appeals from - Standard of review - The defendants in a contract action sought an order setting aside service of the statement of claim outside of Ontario and permanently staying the action on the grounds that Ontario was not the forum conveniens - A master dismissed the motion, finding that convenience, necessity and fairness led to the conclusion that Ontario was the more convenient forum - The defendants appealed, submitting that because the master's decision was a final decision, the appeal was a de novo hearing - The plaintiff asserted that the appeal was not a hearing de novo, relying on authorities which held that if the matter was one of law that was deemed vital to the action's disposition, the test was one of correctness and that, otherwise, the test was one of being clearly wrong - The Ontario Divisional Court, per Greer, J., held that because the question was a vital one to the parties, the test of correctness applied - See paragraphs 2 to 6.

Cases Noticed:

Westminer Canada Holdings Ltd. et al. v. Coughlan et al. (1990), 41 O.A.C. 377; 75 O.R.(2d) 405 (Div. Ct.), refd to. [para. 2].

Stoicevski v. Casement (1983), 43 O.R.(2d) 436; 43 C.P.C. 178 (C.A.), refd to. [para. 2].

Marleen Investments Ltd. v. McBride (1979), 23 O.R.(2d) 125; 27 Chitty's L.J. 69; 13 C.P.C. 221 (H.C.), refd to. [para. 3].

Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425; 149 N.R. 273 (F.C.A.), refd to. [para. 3].

Bank of Nova Scotia v. Liberty Mutual Insurance Co. et al. (2003), 178 O.A.C. 254; 67 O.R.(3d) 699 (Div. Ct.), refd to. [para. 3].

Frymer v. Brettschneider and Shechtman (1994), 72 O.A.C. 360; 19 O.R.(3d) 60 (C.A.), refd to. [para. 7].

Eastern Power Ltd. v. Azienda Comunale Energia and Ambiente (1999), 125 O.A.C. 54; 178 D.L.R.(4th) 409 (C.A.), refd to. [para. 7].

Holo-Deck Adventures Ltd. v. Orbotron Inc. et al. (1996), 18 O.T.C. 265; 8 C.P.C.(4th) 372 (Gen. Div.), dist. [para. 12].

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, appld. [para. 13].

Incorporated Broadcasters Ltd. et al. v. CanWest Global Communications Corp. et al. (2003), 169 O.A.C. 1; 63 O.R.(3d) 431 (C.A.), refd to. [para. 13].

Counsel:

Timothy Pinos, for Scheel;

Erik Penz, for the Keltic defendants.

This appeal was heard at Toronto, Ontario, on April 19, 2007, by Greer, J., of the Ontario Divisional Court, who released the following endorsement on May 1, 2007.