Trillium Motor World Ltd. v. General Motors of Canada Ltd. et al., (2014) 322 O.A.C. 161 (CA)

• Judge: Doherty, LaForme and Lauwers, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 04, 2013
• Jurisdiction: Ontario
• Citations: (2014), 322 O.A.C. 161 (CA);2014 ONCA 497

Trillium Motor World v. General Motors (2014), 322 O.A.C. 161 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JL.009

Trillium Motor World Ltd. (plaintiff) v. General Motors of Canada Limited and Cassels Brock and Blackwell LLP (defendants/respondent) and Lapointe Rosenstein Marchand Melançon SENCRL; Cabinet juridique Panneton inc.; Heenan Blaikie LLP; Cain Lamarre Casgrain Wells SENCRL; Dunton Rainville LLP; Jean-Pierre Barrette; Prévost Fortin D'Aoust Avocats, SENCRL; Dominique Zaurrini; Francis Carrier Avocat Inc.; Parent, Doyon, Rancourt et Associés SENCRL; Claude Caron; Gérard Desjardins; Claude Cormier; Guertin Lazure Crack SENCRL; Luc Boulais Avocat Inc.; Lavery, de Billy, LLP; Grenier Verbauwhede Avocats Inc.; Dominique Laurrini; Cain Lamarre Casgrain Wells SENCRL; Louis Riverin; Paul Langevin; Roy Laporte Inc.; Norton Rose OR LLP; Girard, Allard, Guimond, Avocats; Langlois Kronström Desjardins Avocats SENCRL; Perreault Avocat; Cliché Lortie Ladouceur Inc.; Gilles Lavallée; Lévesque Gravel & Associés SENC; Michel Paquin; Sylvestre & Associés SENCRL; and Nolet Ethier, Avocats, SENCRL (third parties/appellants)

(C57236; 2014 ONCA 497)

Indexed As: Trillium Motor World Ltd. v. General Motors of Canada Ltd. et al.

Ontario Court of Appeal

Doherty, LaForme and Lauwers, JJ.A.

June 27, 2014.

Summary:

In 2009, General Motors of Canada terminated over 200 dealerships, offering them compensation on terms set out in "wind-down agreements" (WDAs). The WDAs provided that the Ontario courts had exclusive jurisdiction regarding disputes and required each signing dealer to obtain independent legal information and advice regarding the WDA from a local lawyer. A class action was certified in Ontario against General Motors and Cassels Brock. The class members were terminated dealers across Canada. Against Cassels Brock, the action alleged, inter alia, negligence. Cassels Brock added as third party defendants about 150 law firms that had provided advice regarding the WDAs to dealers. A number of the non-Ontario law firms moved to stay or dismiss the third party claims on a jurisdictional basis.

The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 2289, denied the motion. The Quebec law firms appealed.

The Ontario Court of Appeal dismissed the appeal.

Editor's Note: For the decision certifying this action, see [2011] O.T.C. Uned. 1300; 2011 ONSC 1300, affd. 2012 ONSC 1443 (Div. Ct.) and 2012 ONSC 463 (Div. Ct.). The Ontario Court of Appeal refused leave to appeal on August 24, 2012.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter (territorial competence) - In 2009, General Motors of Canada terminated over 200 dealerships, offering them compensation on terms set out in "wind-down agreements" (WDAs) - The WDAs provided that the Ontario courts had exclusive jurisdiction regarding disputes and required each signing dealer to obtain independent legal information and advice regarding the WDA from a local lawyer - A class action was certified in Ontario against General Motors and Cassels Brock - The class members were terminated dealers across Canada - Against Cassels Brock, the action alleged, inter alia, negligence - Cassels Brock added as third party defendants about 150 law firms that had provided advice regarding the WDAs to dealers - A jurisdictional motion to stay or dismiss the third party claims against the non-Ontario law firms was denied - The Quebec law firms appealed - The Ontario Court of Appeal dismissed the appeal - The relevant contract for the determination of whether a contract connected with the dispute had been made in Ontario was the WDA, rather than the individual retainer agreement between the law firm and the terminated dealer - This gave the Ontario courts jurisdiction simpliciter over the third party actions - Even though Cassels Brock's claims were based, in part, on the contracts between the law firms and the dealers, the lawyers' professional duties and the advice given were deeply connected to the WDAs - The motion judge had not erred in taking a holistic approach to the action as he found it - There was plainly a relationship between the third party claims and the main action - See paragraphs 39 to 55.

Conflict of Laws - Topic 605

Jurisdiction - General principles - Class actions - [See Conflict of Laws - Topic 1661 and Conflict of Laws - Topic 7608 ].

Conflict of Laws - Topic 1661

Actions - General - Forum conveniens - General - In 2009, General Motors of Canada terminated over 200 dealerships, offering them compensation on terms set out in "wind-down agreements" (WDAs) - The WDAs provided that the Ontario courts had exclusive jurisdiction regarding disputes and required each signing dealer to obtain independent legal information and advice regarding the WDA from a local lawyer - A class action was certified in Ontario against General Motors and Cassels Brock - The class members were terminated dealers across Canada - Against Cassels Brock, the action alleged, inter alia, negligence - Cassels Brock added as third party defendants about 150 law firms that had provided advice regarding the WDAs to dealers - A jurisdictional motion to stay or dismiss the third party claims against the non-Ontario law firms was denied - The Quebec law firms appealed - The Ontario Court of Appeal dismissed the appeal - The motion judge's rationale for situating the third party actions in Ontario was to avoid inconsistent results, quite apart from efficiency concerns - The trigger for third party liability would be a conclusive judgment in the main action that Cassels Brock was liable on a basis that would engage the advice given by local lawyers - There was no reasonable basis for permitting divergent judgments to arise on that issue after the main action by requiring Cassels Brock to pursue new free-standing actions in Quebec - The motion judge made no error in principle in denying the law firms' forum non conveniens motion - See paragraphs 80 to 88.

Conflict of Laws - Topic 7285

Contracts - Jurisdiction - Real and substantial connection - [See third Conflict of Laws - Topic 7605 ].

Conflict of Laws - Topic 7601

Torts - Jurisdiction - Forum conveniens - [See Conflict of Laws - Topic 1661 ].

Conflict of Laws - Topic 7605

Torts - Jurisdiction - Real and substantial connection - In the context of an appeal from the dismissal of a jurisdictional motion to stay or dismiss a number of third party claims in negligence, the Ontario Court of Appeal discussed the application of the "real and substantial connection" test for jurisdiction - See paragraphs 27 to 38.

Conflict of Laws - Topic 7605

Torts - Jurisdiction - Real and substantial connection - In 2009, General Motors of Canada terminated over 200 dealerships, offering them compensation on terms set out in "wind-down agreements" (WDAs) - The WDAs provided that the Ontario courts had exclusive jurisdiction regarding disputes and required each signing dealer to obtain independent legal information and advice regarding the WDA from a local lawyer - A class action was certified in Ontario against General Motors and Cassels Brock - The class members were terminated dealers across Canada - Against Cassels Brock, the action alleged, inter alia, negligence - Cassels Brock added as third party defendants about 150 law firms that had provided advice regarding the WDAs to dealers - A jurisdictional motion to stay or dismiss the third party claims against the non-Ontario law firms was denied - The Quebec law firms appealed - The Ontario Court of Appeal dismissed the appeal - The court rejected the Quebec law firms' argument that the WDAs, as contracts between General Motors and the Quebec dealers, were contracts made in Quebec, presumptively connecting the dispute to Quebec - The relevant act of contract formation occurred at General Motors' head office in Ontario, where the WDAs that had been signed by the dealers were accepted and signed by General Motors - See paragraphs 56 to 69.

Conflict of Laws - Topic 7605

Torts - Jurisdiction - Real and substantial connection - In the context of an appeal from the dismissal of a jurisdictional motion to stay or dismiss a number of third party claims in negligence, the Ontario Court of Appeal discussed the application of traditional contract placement rules in jurisdictional disputes - The court noted that, generally, when acceptance of a contract was transmitted electronically and instantaneously, the contract was usually considered to have been made in the jurisdiction where the acceptance is received - On the facts here, however, the stipulated manner in which the contracts at issue became effective, rendered that general rule inapplicable - Further, the traditional contract placement rules responded to concerns that were different from those engaged by a jurisdictional analysis - A broader, more contextual, analysis was required - This would inevitably engage the same considerations as the real and substantial connection test - See paragraphs 60 to 72.

Conflict of Laws - Topic 7608

Torts - Jurisdiction - Choice of forum by parties - In 2009, General Motors of Canada terminated over 200 dealerships, offering them compensation on terms set out in "wind-down agreements" (WDAs) - The WDAs provided that the Ontario courts had exclusive jurisdiction regarding disputes and required each signing dealer to obtain independent legal information and advice regarding the WDA from a local lawyer - A class action was certified in Ontario against General Motors and Cassels Brock - The class members were terminated dealers across Canada - Against Cassels Brock, the action alleged, inter alia, negligence - Cassels Brock added as third party defendants about 150 law firms that had provided advice regarding the WDAs to dealers - A jurisdictional motion to stay or dismiss the third party claims against the non-Ontario law firms was denied - The Quebec law firms appealed - The Ontario Court of Appeal dismissed the appeal - The WDAs provided expressly that they were governed by Ontario law and that the parties attorned to Ontario's jurisdiction in the event of a dispute - This was not simply an arbitrary forum selection provision, as might be the case in a commercial contract that specifies an arbitral jurisdiction - General Motor's head office was in Ontario - The bulk of the affected dealers were in Ontario - The underlying structure of the business relationships and the litigation were deeply related to Ontario - These contextual facts supported the correctness of the motion judge's conclusion that the WDAs were Ontario contracts - See paragraphs 70 to 72.

Contracts - Topic 1303

Formation of contract - Acceptance - What constitutes - [See second Conflict of Laws - Topic 7605 ].

Contracts - Topic 1351

Formation of contract - Place of making - [See second and third Conflict of Laws - Topic 7605 ].

Cases Noticed:

Van Breda et al. v. Village Resorts Ltd. et al., [2012] 1 S.C.R. 572; 429 N.R. 217; 291 O.A.C. 201; 2012 SCC 17, refd to. [para. 12].

Black v. Breeden et al., [2012] 1 S.C.R. 666; 429 N.R. 192; 2012 SCC 19, refd to. [para. 21].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81, refd to. [para. 27].

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. 28].

Spar Aerospace Ltd. v. American Mobile Satellite Corp. et al., [2002] 4 S.C.R. 205; 297 N.R. 83; 2002 SCC 78, refd to. [para. 30].

Export Packers Co. v. SPI International Transportation (2012), 294 O.A.C. 319; 2012 ONCA 481, dist. [para. 41].

Van Breda et al. v. Village Resorts Ltd. et al. (2010), 264 O.A.C. 1; 2010 ONCA 84, refd to. [para. 47].

Eastern Power Ltd. v. Azienda Communale Energia and Ambiente (1999), 125 O.A.C. 54; 178 D.L.R.(4th) 409 (C.A.), leave to appeal refused, [1999] S.C.C.A. No. 542 (S.C.C.), refd to. [para. 66].

Inukshuk Wireless Partnership v. 4253311 Canada Inc. et al., [2013] O.T.C. Uned. 5631; 117 O.R.(3d) 206; 2013 ONSC 5631, refd to. [para. 66].

Christmas v. Fort McKay First Nation (2014), 119 O.R.(3d) 21; 2014 ONSC 373, refd to. [para. 66].

Nantais v. Telectronics Proprietary (Canada) Ltd. (1995), 25 O.R. (3d) 331 (Gen. Div.), leave to appeal refused, [1995] O.J. No. 3069 (Div. Ct.), refd to. [para. 73].

Carom et al. v. Bre-X Minerals Ltd. et al. (1999), 99 O.T.C. 335; 43 O.R.(3d) 441 (Gen. Div.), refd to. [para. 73].

Webb v. K-Mart Canada Ltd. et al. (1999), 107 O.T.C. 373; 45 O.R.(3d) 389 (Sup. Ct.), refd to. [para. 73].

Wilson v. Servier Canada Inc. et al., [2000] O.T.C. 884; 50 O.R.(3d) 219 (Sup. Ct.), leave to appeal denied (2000), 143 O.A.C. 279; 52 O.R.(3d) 20 (Div. Ct.), leave to appeal refused (2001), 276 N.R. 197; 154 O.A.C. 198 (S.C.C.), refd to. [para. 73].

McCutcheon v. Cash Store Inc. et al., [2006] O.T.C. 424; 80 O.R.(3d) 644 (Sup. Ct.), refd to. [para. 73].

Silver et al. v. IMAX Corp. et al., (2009), 86 C.P.C.(6th) 273 (Sup. Ct.), leave to appeal refused, [2011] O.T.C. Uned. 1035; 105 O.R.(3d) 212; 2011 ONSC 1035, refd to. [para. 73].

Meeking v. Cash Store Inc. et al. (2013), 299 Man.R.(2d) 109; 590 W.A.C. 109; 367 D.L.R.(4th) 684; 2013 MBCA 81, leave to appeal granted, [2013] S.C.C.A. No. 443 (S.C.C.), refd to. [para. 75].

Momentous.ca Corp. et al. v. Canadian American Association of Professional Baseball Ltd. et al. (2010), 270 O.A.C. 36; 103 O.R.(3d) 467; 2010 ONCA 722, affd. [2012] 1 S.C.R. 359; 428 N.R. 141; 290 O.A.C. 202; 2012 SCC 9, refd to. [para. 80].

Authors and Works Noticed:

Waddams, S.M., The Law of Contracts (6th Ed. 2010), paras. 108, 109 [paras. 68, 70].

Watson, Gary D. and McGowan, Michael, Ontario Civil Practice 2014 (2013), p. 752 [para. 49].

Williston, W.B. and Rolls, R.J., The Law of Civil Procedure (1970), vol. 1, pp. 426, 427 [para. 46].

Counsel:

Jo-Anne Demers, Jean-Olivier Lessard and Susan Guzzo, for the appellants;

Peter H. Griffin and Jonathan Erik Laxer, for the respondent.

This appeal was heard on November 4, 2013, by Doherty, LaForme and Lauwers, JJ.A., of the Ontario Court of Appeal. On June 27, 2014, Lauwers, J.A., released the following judgment for the court.