Westminer Canada Holdings Ltd. et al. v. Coughlan et al., (1990) 41 O.A.C. 377 (DC)

• Judge: O'Brien, Rosenberg and Coo, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: October 09, 1990
• Jurisdiction: Ontario
• Citations: (1990), 41 O.A.C. 377 (DC)

Westminer Can. Holdings v. Coughlan (1990), 41 O.A.C. 377 (DC)

MLB headnote and full text

Westminer Canada Holdings Limited and Westminer Canada Limited (plaintiffs/appellants) v. Terence D. Coughlan, Jack A. Garnett, John A. Amirault, Percy A. Archibald, Frederick Hansen, H. Robert Hemming, Colin J. MacDonald and William S. McCartney (defendants/respondents)

(App. No. 213/90; Ct. File No. 30503/88)

Indexed As: Westminer Canada Holdings Ltd. et al. v. Coughlan et al.

Ontario Court of Justice

General Division

Divisional Court

O'Brien, Rosenberg and Coo, JJ.

October 9, 1990.

Summary:

The defendants successfully applied to a Master for an order staying the plaintiffs' Ontario action in favour of the defendants' action in Nova Scotia. The plaintiffs appealed.

The Ontario Court of Justice, General Division (Divisional Court), allowed the appeal and ordered that the plaintiffs' action continue, because the plaintiffs would lose a juridical advantage in a Nova Scotia forum and in any event the Nova Scotia action depended upon the outcome of the Ontario action.

Conflict of Laws - Topic 1664

Actions - General - Forum conveniens - Considerations - Ontario resident Canadian companies took over another Canadian company resident in Nova Scotia whose shares were traded on the Toronto Stock Exchange - The Ontario companies brought an action for damages in Ontario against the directors of the Nova Scotia company on the ground of alleged insider trading contrary to the Ontario Securities Act - The directors sued the Ontario companies in Nova Scotia and obtained a stay of the Ontario action from a master - The Ontario Divisional Court reversed and held that the Ontario action should be allowed to proceed, because the Ontario companies would lose a juridical advantage by having the action tried in Nova Scotia (there was a danger that Ontario law would not be applied in Nova Scotia) and in any event the Nova Scotia action depended upon the outcome of the Ontario action.

Conflict of Laws - Topic 1666

Actions - General - Stay of proceedings where action pending in another jurisdiction (lis alibi pendens) - [See Conflict of Laws - Topic 1664 ].

Conflict of Laws - Topic 1668

Actions - General - Burden of proof - Loss of juridical advantage - The Ontario Divisional Court held a party need not prove by expert evidence that he would lose a juridical advantage, if the action was moved to another jurisdiction - In this instance the loss of juridical advantage was established by the court noting a judicial precedent in the other jurisdiction - See paragraphs 33 to 34.

Courts - Topic 1125

Masters - Appeals from - Jurisdiction - [See Courts - Topic 7506 ].

Courts - Topic 7506

Provincial courts - Ontario - Divisional Court - Jurisdiction - Appeals from interlocutory orders - A master stayed an Ontario action in favour of the defendants' Nova Scotia action on the ground that Ontario was not the appropriate forum - The Ontario Divisional Court held that, even if the order was not a final one, the Divisional Court could review it, because it was vital to the issue or disposition of the action - See paragraph 29.

Limitation of Actions - Topic 1703

Waiver - General - Agreement not to rely on limitation period - The Ontario Divisional Court held that a bare promise or undertaking not to rely on a limitation period is unenforceable, because such an agreement must meet the formal requirements of a contract, including consideration - See paragraph 36.

Cases Noticed:

Marleen Investments Limited v. McBride et al. (1979), 23 O.R.(2d) 125 (H.C.), refd to. [para. 29].

Stoicevski v. Casement (1983), 43 O.R.(2d) 436; 43 C.P.C. 178 (C.A.), appld. [para. 29].

Exco Corporation Ltd. et al. v. Nova Scotia Savings & Loan Company et al. (1987), 78 N.S.R.(2d) 91; 193 A.P.R. 91, consd. [para. 31].

MacShannon v. Rockware Glass Ltd., [1978] A.C. 795 (H.L.), not folld. [para. 33].

Avenue Properties Ltd. v. First City Development Corp. Ltd. (1987), 7 B.C.L.R.(2d) 45, consd. [para. 34].

Statutes Noticed:

Canada Business Corporations Act, R.S.C. 1985, c. C-44, sect. 131 [para. 35].

Rules of Civil Procedure (Ont.), rule 17.06 [para. 2].

Securities Act, R.S.O. 1980, c. 466, sect. 135 [para. 35].

Authors and Works Noticed:

Morton, James C., Limitation of Civil Actions (1988), p. 106 [para. 36].

Counsel:

Peter L. Roy and Kathryn Knight, for the plaintiffs;

Ronald N. Pugsley, Q.C., for the respondents Terence D. Coughlan, Jack A. Garnett, John A. Amirault, Frederick Hansen, H. Robert Hemming and Colin J. MacDonald;

Charles Scott, for the respondent, William S. McCartney.

This case was heard at Toronto, Ontario, before O'Brien, Rosenberg and Coo, JJ., of the Ontario Court of Justice, General Division (Divisional Court).

On October 9, 1990, Rosenberg, J., delivered the following judgment for the Divisional Court: