West Van Inc. v. Daisley et al., (2014) 317 O.A.C. 294 (CA)

• Judge: Hoy, A.C.J.O., LaForme and Pardu, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 13, 2014
• Jurisdiction: Ontario
• Citations: (2014), 317 O.A.C. 294 (CA);2014 ONCA 232

West Van Inc. v. Daisley (2014), 317 O.A.C. 294 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. AP.003

West Van Inc. (plaintiff/appellant) v. Michel C. Daisley and Wells Daisley Rabon, P.A. (defendants/respondents)

(C57017; 2014 ONCA 232)

Indexed As: West Van Inc. v. Daisley et al.

Ontario Court of Appeal

Hoy, A.C.J.O., LaForme and Pardu, JJ.A.

March 27, 2014.

Summary:

The defendants were lawyers in North Carolina. They unsuccessfully defended the plaintiff, an Ontario corporation with offices only in Ontario, in a North Carolina action. The plaintiff sued the defendants in Ontario alleging professional misconduct. The defendants moved to stay the Ontario action, asserting that it did not have a real and substantial connection to Ontario.

The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 1988, allowed the motion and stayed the Ontario action. The plaintiff appealed.

The Ontario Court of Appeal dismissed the appeal.

Conflict of Laws - Topic 614

Jurisdiction - General principles - Forum of necessity doctrine - The defendants were lawyers in North Carolina - They unsuccessfully defended the plaintiff, an Ontario corporation with offices only in Ontario, in a North Carolina action - The plaintiff sued the defendants in Ontario, alleging professional misconduct - The defendants obtained a stay of the Ontario action on the basis that it did not have a real and substantial connection to Ontario - The defendant appealed, asserting that the motions judge should have exercised it residual discretion to assume jurisdiction based on the forum of necessity doctrine - The Ontario Court of Appeal stated that although a court's reasons need not address every argument and that reasons should be read as a whole and in context, the motions judge erred by failing to address the forum of necessity doctrine argument, the only argument that was made by the plaintiff - However, the exemption did not apply in the circumstances - Despite that the plaintiff had been unsuccessful in retaining counsel in North Carolina after contacting a significant number of counsel who held themselves out as having expertise in professional misconduct matters, it had not discharged the onus of establishing that it could not reasonably seek relief in North Carolina - The doctrine was reserved for exceptional cases - It was unlikely to be successfully invoked on what was in essence a private, commercial matter, on the basis of inability to obtain counsel - That was especially so within the United States, a "litigation-hungry culture" with many lawyers - Here, the plaintiff did not seek counsel in North Carolina outside of its two main centres and did not address the feasibility of engaging out-of-state counsel - Nor did the plaintiff's expressed doubts about receiving a fair trial in North Carolina satisfy the heavy onus upon it.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See Conflict of Laws - Topic 614 ].

Courts - Topic 584

Judges - Duties - To determine issues - [See Conflict of Laws - Topic 614 ].

Cases Noticed:

Van Breda et al. v. Village Resorts Ltd. et al. (2010), 264 O.A.C. 1; 98 O.R.(3d) 721; 2010 ONCA 84, refd to. [para. 1].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 15].

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. 19].

Bouzari v. Bahremani, [2011] O.J. No. 5009, refd to. [para. 21].

Josephson v. Balfour Recreation Commission et al., [2010] B.C.T.C. Uned. 603; 2010 BCSC 603, dist. [para. 21].

Lamborghini (Canada) Inc. v. Automobili Lamborghini S.P.A., [1997] R.J.Q. No. 58 (C.A.), refd to. [para. 22].

Anvil Mining Ltd. v. Association canadienne contre l'impunité, [2012] R.J.Q. No. 153; 2012 QCCA 117, refd to. [para. 22, footnote 2].

Bouzari et al. v. Islamic Republic of Iran (2003), 220 O.A.C. 1; 71 O.R.(3d) 675 (C.A.), refd to. [para. 26].

Bouzari v. Bahremani, 2013 ONSC 6337, dist. [para. 27].

Van Kessel v. Orsulak et al., [2010] O.T.C. Uned. 6919; 2010 ONSC 6919, refd to. [para. 34].

Elfarnawani v. International Olympic Committee et al., [2011] O.T.C. Uned. 6784; 2011 ONSC 6784, refd to. [para. 34].

Mitchell v. Jeckovich, 2013 ONSC 7494, refd to. [para. 34].

Lailey et al. v. International Student Volunteers Inc., [2008] B.C.T.C. Uned. 962; 88 B.C.L.R.(4th) 357; 2008 BCSC 1344, refd to. [para. 34].

Sooparayachetty v. Fox, [2010] B.C.T.C. Uned. 185; 2010 BCSC 185, refd to. [para. 34].

Aleong v. Aleong, [2013] B.C.T.C. Uned. 1428; 2013 BCSC 1428, refd to. [para. 34].

Obégi Chemicals LLC v. Kilani et al., [2011] O.T.C. Uned. 1636; 2011 ONSC 1636, refd to. [para. 37].

Wolfe et al. v. Wyeth et al., [2010] O.T.C. Uned. 2368; 2010 2368, affd. (2011), 282 O.A.C. 64; 332 D.L.R.(4th) 157; 2011 ONCA 347, refd to. [para. 37].

Authors and Works Noticed:

Archibald, Todd L., and Echlin, Randall Scott, Annual Review of Civil Litigation (2010), pp. 215, 216 [para. 18].

Monestier, Tanya J., A "Real and Substantial" Improvement? Van Breda Reformulates the Law of Jurisdiction in Ontario, in Archibald, Todd L., and Echlin, Randall Scott, Annual Review of Civil Litigation (2010), pp. 215-216 [para. 18].

Counsel:

Maurice J. Neirinck, for the plaintiff/appellant;

Paul Emerson, for the defendants/respondents.

This appeal was heard on February 13, 2014, by Hoy, A.C.J.O., LaForme and Pardu, JJ.A., of the Ontario Court of Appeal. Hoy, A.C.J.O., released the following reasons for judgment for the court on March 27, 2014.