Wolfe et al. v. Wyeth et al., (2011) 282 O.A.C. 64 (CA)

• Judge: Goudge, Gillese and Watt, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 20, 2011
• Jurisdiction: Ontario
• Citations: (2011), 282 O.A.C. 64 (CA);2011 ONCA 347

Wolfe v. Wyeth (2011), 282 O.A.C. 64 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. AP.043

Dr. Bernard Wolfe and DMW Kildeer Incorporated (plaintiffs/respondents) v. Wyeth and James H. Pickar and Wyeth Corporations (defendants/appellants)

(C52181; 2011 ONCA 347)

Indexed As: Wolfe et al. v. Wyeth et al.

Ontario Court of Appeal

Goudge, Gillese and Watt, JJ.A.

May 5, 2011.

Summary:

Wolfe disclosed confidential information to Wyeth regarding a drug therapy that Wolfe had developed. Wyeth filed a patent application in Canada for the therapy, naming Pickar as the sole inventor. In Ontario, Wolfe and a corporation (the plaintiffs) sued Wyeth and Pickar (the defendants), claiming damages for, inter alia, breach of contract. The claim was served on the defendants in Pennsylvania. In Pennsylvania, the defendants sought a declaration that any claims that Wolfe had against it were barred by the Pennsylvania statute of limitations and that, on the merits, Wyeth had not committed any wrongs. Also in Pennsylvania, Wolfe sought an order declaring that the Pennsylvania statute of limitations procedurally precluded him from asserting Pennsylvania-based claims. Both motions were granted. The Pennsylvania judge declined to decide the merits of Wolfe's claims. In Ontario, the defendants moved to dismiss or permanently stay the plaintiffs' action, asserting res judicata.

The Ontario Superior Court, in a decision reported at [2010] O.T.C. Uned. 2368, denied the motion. The defendants appealed.

The Ontario Court of Appeal dismissed the appeal.

Conflict of Laws - Topic 643

Jurisdiction - Submission to jurisdiction - What constitutes - Wolfe disclosed confidential information to Wyeth regarding a drug therapy that Wolfe had developed - Wyeth filed a patent application in Canada for the therapy, naming Pickar as the sole inventor - In Ontario, Wolfe and a corporation (the plaintiffs) sued Wyeth and Pickar (the defendants), claiming damages for, inter alia, breach of contract - The claim was served on the defendants in Pennsylvania - In Pennsylvania, the defendants sought a declaration that any claims that Wolfe had against it were barred by the Pennsylvania statute of limitations and that, on the merits, Wyeth had not committed any wrongs - Also in Pennsylvania, Wolfe sought an order declaring that the Pennsylvania statute of limitations procedurally precluded him from asserting Pennsylvania-based claims - Both motions were granted - The Pennsylvania judge declined to decide the merits of Wolfe's claims - In Ontario, the defendants moved to dismiss or permanently stay the plaintiffs' action, asserting res judicata - Rogin, J., denied the motion, declining to apply the doctrine of issue estoppel and also finding that Ontario could properly accept jurisdiction - The Ontario Court of Appeal dismissed the defendants' appeal - The defendants had attorned to the jurisdiction of the Ontario court - They had voluntarily engaged the court's jurisdiction by seeking to have the court apply the doctrine of issue estoppel - The defendants had gone beyond challenging the court's jurisdiction based on jurisdiction simpliciter and forum non conveniens - This gave the court consent-based jurisdiction - See paragraphs 42 to 44.

Conflict of Laws - Topic 646

Jurisdiction - Submission to jurisdiction - Effect of - [See Conflict of Laws - Topic 643 ].

Conflict of Laws - Topic 1665

Actions - General - Forum conveniens - Procedure for determining forum conveniens - [See Conflict of Laws - Topic 7284 ].

Conflict of Laws - Topic 7284

Contracts - Jurisdiction - Forum conveniens - Wolfe disclosed confidential information to Wyeth regarding a drug therapy that Wolfe had developed - Wyeth filed a patent application in Canada for the therapy, naming Pickar as the sole inventor - In Ontario, Wolfe and a corporation (the plaintiffs) sued Wyeth and Pickar (the defendants), claiming damages for, inter alia, breach of contract - The claim was served on the defendants in Pennsylvania - In Pennsylvania, the defendants sought a declaration that any claims that Wolfe had against it were barred by the Pennsylvania statute of limitations and that, on the merits, Wyeth had not committed any wrongs - Also in Pennsylvania, Wolfe sought an order declaring that the Pennsylvania statute of limitations procedurally precluded him from asserting Pennsylvania-based claims - Both motions were granted - The Pennsylvania judge declined to decide the merits of Wolfe's claims - In Ontario, the defendants moved to dismiss or permanently stay the plaintiffs' action, asserting res judicata - Rogin, J., denied the motion, declining to apply the doctrine of issue estoppel and also concluding that Ontario was a convenient forum for the action - The Ontario Court of Appeal dismissed the defendants' appeal - The simple answer to the forum non conveniens question was that the defendants had attorned to the jurisdiction of the Ontario court - However, even if attornment had not occurred, Rogin, J., had not erred - He correctly proceeded on the basis that the defendants could succeed only by clearly establishing that Pennsylvania was a more appropriate forum - Rogin, J., then found that both the location of key witnesses and of the bulk of the evidence were neutral factors - His passing reference to onus meant that if the defendants wished to have him put those factors on the Pennsylvania side of the scales, he had to find that neither was equally balanced - There was no error in this approach - See paragraphs 52 to 57.

Conflict of Laws - Topic 7285

Contracts - Jurisdiction - Real and substantial connection - Wolfe disclosed confidential information to Wyeth regarding a drug therapy that Wolfe had developed - Wyeth filed a patent application in Canada for the therapy, naming Pickar as the sole inventor - In Ontario, Wolfe and a corporation (the plaintiffs) sued Wyeth and Pickar (the defendants), claiming damages for, inter alia, breach of contract - The claim was served on the defendants in Pennsylvania - In Pennsylvania, the defendants sought a declaration that any claims that Wolfe had against it were barred by the Pennsylvania statute of limitations and that, on the merits, Wyeth had not committed any wrongs - Also in Pennsylvania, Wolfe sought an order declaring that the Pennsylvania statute of limitations procedurally precluded him from asserting Pennsylvania-based claims - Both motions were granted - The Pennsylvania judge declined to decide the merits of Wolfe's claims - In Ontario, the defendants moved to dismiss or permanently stay the plaintiffs' action, asserting res judicata - Rogin, J., denied the motion, declining to apply the doctrine of issue estoppel and also finding that Ontario could properly accept jurisdiction and the real and substantial connection test was met - The Ontario Court of Appeal dismissed the defendants' appeal - The connection between Ontario and the plaintiffs' claim was clear - Wolfe's research was done in Ontario - The negotiations underlying the relationship between the parties essentially all took place in Ontario - The plaintiffs suffered their loss of profits in Ontario - The connection with the defendants was equally clear - The relationship originated in Ontario and the activity in Ontario was central - It was not unfair to the defendants for Ontario to take jurisdiction - However, if Ontario declined jurisdiction, the plaintiffs would be left without a forum - See paragraphs 45 to 51.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings (incl. validity of statutes) - Wolfe disclosed confidential information to Wyeth regarding a drug therapy that Wolfe had developed - Wyeth filed a patent application in Canada for the therapy, naming Pickar as the sole inventor - In Ontario, Wolfe and a corporation (the plaintiffs) sued Wyeth and Pickar (the defendants), claiming various relief - The claim was served on the defendants in Pennsylvania - In Pennsylvania, the defendants sought a declaration that any claims that Wolfe had against it were barred by the Pennsylvania statute of limitations and that, on the merits, Wyeth had not committed any wrongs - Also in Pennsylvania, Wolfe sought an order declaring that the Pennsylvania statute of limitations procedurally precluded him from asserting Pennsylvania-based claims - Both motions were granted - The Pennsylvania judge declined to decide the merits of Wolfe's claims - In Ontario, the defendants moved to dismiss or permanently stay the plaintiffs' action, asserting res judicata - Rogin, J., denied the motion - The Ontario Court of Appeal dismissed the defendants' appeal - The issue in the Ontario action was whether the Ontario court should apply Pennsylvania law to these claims and, if so, did the Pennsylvania statute of limitations bar the claims - The order from the Pennsylvania court, which was, in effect, a consent order, restated Wolfe's position that his claims were time barred if he were to assert them in Pennsylvania - The order said nothing about the choice of law that the Ontario court could make in adjudicating the claims - This was not a question "distinctly put in issue and directly determined by that court" - The Pennsylvania order did not give rise to issue estoppel - See paragraphs 16 to 41.

Cases Noticed:

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1, refd to. [para. 18].

McIntosh v. Parent, [1924] 4 D.L.R. 420 (Ont. C.A.), refd to. [para. 20].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 21].

General Refractories Co. of Canada Ltd. v. Venturedyne Ltd. et al., [2001] O.T.C. Uned. 209; 2001 CarswellOnt 613 (Sup. Ct.), refd to. [para. 38].

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. 39].

Mid-Ohio Imported Car Co. v. Tri-K Investments Ltd. et al. (1995), 65 B.C.A.C. 98; 106 W.A.C. 98; 129 D.L.R.(4th) 181 (C.A.), agreed with [para. 44].

Young v. Tyco International of Canada Ltd. et al., [2008] O.A.C. Uned. 670; 92 O.R.(3d) 161 (C.A.), agreed with [para. 46].

Frymer v. Brettschneider and Shechtman (1994), 72 O.A.C. 360; 19 O.R.(3d) 60 (C.A.), refd to. [para. 52].

Precious Metal Capital Corp. v. Smith, [2008] O.A.C. Uned. 746; 92 O.R.(3d) 701 (C.A.), refd to. [para. 54].

Counsel:

John P. Koch and Allison A. Thornton, for the appellants;

Earl Cherniak, Q.C., Peter Kryworuk and Yola Ventresca, for the respondents.

This appeal was heard on April 20, 2011, by Goudge, Gillese and Watt, JJ.A., of the Ontario Court of Appeal. On May 5, 2011, Goudge, J.A., delivered the following judgment for the court.