[ Cite as: 693663 Ontario Inc. v. Deloitte & Touche Inc., 1990 NSSC 144 1990 S.H. 74399 I IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION I . BETWEEN: 693663 ONTARIO INC., I a body corporate Plaintiff I - and -I DELOITTE & TOUCHE INC., a body corporate and THE ROYAL BANK OF CANADA, I a body corporate Defendants I I I HEARD: at Halifax, Nova Scotia, before the Honourable Mr. Justice G. A. Tidman, Trial Division, on November 21, 1990. I DECISION: December 5, 1990 (Oral) I COUNSEL: Mr. Timothy Matthews, for the Plaintiff Mr. Robert Murrant, Q.C. and Mr. Kevin Downie, for the Defendants I I I I I [
[ 1990 S.H. 74399 I IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION I BETWEEN: I 693663 ONTARIO INC., a body corporate I Plaintiff - and -I DELOITTE & TOUCHE INC., a body corporate and I THE ROYAL BANK OF CANADA, a body corporate Defendants I I TIDMAN, J. (Orally) This is an interlocutory application inter parties for I an order dismissing the main action on the grounds that this I court is a forum non-conveniens and that the courts of Prince Edward Island properly have jurisdiction over the issues I < raised in the statement of claim. I The defense filed, in addition to a denial of the I allegations in the statement of claim, states that as a preliminary matter of jurisdiction the Province of Nova Scotia I is a forum non-conveniens for the trial of the issues because the subject matter of the claim is explicitly within the I jurisdiction of the Supreme Court of Prince Edward Island. I [
- 2 This matter comes before application for a determination of that jurisdictional issue. I accept Mr. Murrant's submission favour of the applicant the relief granted should be of these proceedings rather than which the applicant seeks. Background Marine Harvesting Ltd., (Marine}, company carrying on business in Prince Edward Island, a debenture to the Royal Bank of Marine' s assets, including leasehold interests in land, all of which were situated in Prince took action to realize on its security, Prince Edward Island Supreme Court, Deloitte & Touche Inc.), (Touche), herein, was appointed receiver/manager undertakings of Marine. The order authorizing Touche to sell all of the assets of Marine to the plaintiff. A contract was entered into between the plaintiff and Touche and payment on the purchase price A contractual dispute arose between the parties as of which the plaintiff refused i -me as a contested chambers l I that if I find in I a stay a dismissal of the action, J J J a Prince Edward Island issued J Canada secured by all of J Edward Island. The bank J and by order of the Touche Ross Ltd. (now I one of the defendants of the assets and I same court granted a further I for the sale of the assets I a down was made by the plaintiff. I a result I to complete the purchase. I I I
[ . - 3 -E The down payment was returned to the plaintiff except for $70,000. which was retained and considered as defaulted. I I Subsequently the Prince Edward Island court authorized Touche to sell Marine's assets to other parties. I The order appointing Touche receiver/manager provides I that no party, other than secured creditors of Marine, may I bring action against Touche arising out of their duties set out in the court order without leave of the Prince Edward I Island Supreme Court. I The plaintiff, in the Prince Edward Island court, sought leave to bring action against Touche for the balance of its I deposit. Leave was granted "on the condition that the I applicant post $10,000. with this court as security for costs". No action has been commenced by the plaintiff against I Touche in Prince Edward Island and there is no evidence that such security for costs has been posted by the plaintiff I with the Prince Edward Island court as ordered. The plaintiff I now brings action in this court for the return of the its deposit retained by Touche. I The plaintiff is an Ontario company and is registered I to do business in Nova Scotia. Touche is federally incorporated, and is registered to do business in both Nova I I [
- 4 - Scotia and Prince Edward Island, of those provinces. The Royal and has branches in both Nova Scotia and Prince Edward Island. Issue Should this action be stayed forum non-conveniens? The Law I accept Mr. Murrant's statement to these circumstances. In his decision in MacShannon v. Rockware 795, wherein Lord Diplock states at page 812: "In order to justify a stay be satisfied, one positive and the other negative: (a) the defendant must there is another forum to is amenable in which justice can the parties at substantially or expense, and (b) the stay must not deprive the plaintiff of a legitimate advantage which would be invoked the jurisdiction of the English court." Mr. Murrant also refers to J.G. Castel's text, Conflict of Laws, (2nd Ed. 1986 out the relevant matters the court will consider in exercising its discretion to grant or refuse a stay of proceedings. Those matters set out at pages text are: I I and has off ices in both Bank is federally chartered, I I J because this court is a J I of the law applying I brief he quotes from the Glass Ltd. (1978), A.C. J two conditions must 3 satisfy the court that whose jurisdiction he be done between I less inconvenience personal or juridical I available to him if he I Canadian I Butterworths) as setting I I 233 and 234 of Castel's I I I
I -.5 - > "1. In what province the evidence on the issues of fact is situated or more readily available and I its effect on the relative convenience and expense of trial as between the local and other courts; I 2. Whether the law of the foreign jurisdiction applies and, if so, wh~ther it differs from the local law in any material respects; I 3. With what province or state either party is connected and how closely; I 4. Whether the Defendant genuinely desires trial in the other province or is only seeking procedural advantages; I 5. Whether the Plaintiff would be prejudiced by having to sue in the foreign court because he would i) be deprived of security for his claim, I ii) be unable to enforce any judgment obtained, iii) be faced with a time problem, iv) for political, racial, religious or other reasons be I unlikely to get a fair trial; 6. Whether the foreign court is able to deal with the issues. I I I also accept as a true statement of the law the following quotation from Castel at page 133: I "The question whether the forum is appropriate is one of degree and the answer will vary from case to case, unless the balance is strongly in I favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." I Findings I In the statement of claim the plaintiffs allege that the defendants breached the agreement of sale. The breaches I > alleged include an allegation that the defendants improperly omitted certain assets from the sale and that the defendants I misrepresented the health of fish stocks included in the I sale. [
- 6 In dealing with the considerations set out I find that the evidence on the issues of fact is situated or more readily available in Prince Nova Scotia. The defendant has submitted a list of seventeen potential trial witnesses (Ex. 2) all of whom reside in Prince Edward Island. The plaintiff claims that the residence one of the listed potential expert witnesses is New Brunswick, but Karen Cramm, a Vice-President of Touche who gave evidence for the defendants, says that the potential witness is in the process of moving back to Prince Edward Island. The plaintiff submitted Spiegelman, an officer of the dealt with the defendants in purchase of Marine's assets. Mr. also sets out a list of potential trial witnesses. the eleven persons on the list, six are resident in Ontario, one in New Brunswick, whom Ms. Prince Edward Island, one in Boston, remaining three in Nova Scotia. in Nova Scotia are all officers of the defendant Touche. The persons on the defendants' witnesses, who as stated all reside in Prince Edward Island, consist of former employees J - J by Castel I Edward Island than in J of J J I J an affidavit of Mr. Hersh l plaintiff. Mr. Spiegelman connection with the proposed I Spiegelman in his affidavit Out of I I Cramm says is returning to Massachusetts, and the I The latter three residing I list of potential I I of Marine, biologists, fish J I I
[ • E - growers, a former accountant of Marine, an employee of Touche, I an employee or former employee of the Royal Bank who negotiated and administered the Marine I ' loan, employees of government approached for financing by I the proposed purchase, a former I and an appraiser retained by with the proposed purchase of Marine's assets. I As between Nova Scotia and Prince Edward Island, I the majority of witnesses reside I and those who reside in Nova Scotia are all employed by the defendant, there is no question I convenient and less expensive Edward Island than to try it in Nova Scotia. I The law of Prince Edward Island would apply in relation I to, at least, the land assets, although there is no evidence I that it differs in any material law. However, the plaintiff I to the sale emanate solely from an order of the Prince Edward Island Supreme Court which, I role in the conduct of I responsibilities as receiver/manager It would thus, in my view, I action tried in the court through which the defendant Touche I [ 7 of the Charlottetown branch agencies, employees of banks the plaintiff in relation to employee of the plaintiff the plaintiff in connection since in Prince Edward Island that it would be more to try the action in Prince respect with Nova Scotia Touche's powers in relation in effect, plays a supervisory Touche in carrying out its of the Marine assets. be more convenient to have the
- 8 - obtains its powers to act. The plaintiff is connected Province of Ontario, although registered to Nova Scotia, it was incorporated under the its head office in Ontario. Both defendants have off ices or Scotia and Prince Edward Island, which connects the Royal Bank as a defendant in this action, was negotiated and administered Bank's Charlottetown branch. Ms. work is done out of both the Halifax and Charlottetown off ices of Touche, and although some of the Touche potential witnesses reside in Nova Scotia, others reside in Prince Edward Island and Ms. Cramm says it would be to have the trial in Prince Edward Island. There is no suggestion deprived of security for its claim by suing in Prince Edward Island. Neither is there a suggestion that the would be unable to respond to them by the Prince Edward Island court. which would probably respond defendants are located in Prince therefore satisfied that the I J I most closely with the do . business in I laws of and has I I branches in both Nova but the loan to Marine, I I by employees of the Royal Cramm says that insolvency I I more convenient for Touche J I that the plaintiff would be I defendants I a decision rendered against I In fact, the assets to a decision against the I Edward Island. I am plaintiff would be able to I I I
[ • I - enforce a judgment obtained I plaintiff has offered no suggestion that it has a nor that it is unlikely to get a I Island for racial, religious, or other reasons. I Finally, there is no question that the I Island court is able to deal with the issues. as it must in accordance with an order of the Prince Edward I Island court, has sought leave this action. In response to the defendants' I tl1e plaintiff seeks a trial in I paying security for costs, the plaintiff contends defendants can seek such an I however, would entail only more costs and expense while the Prince Edward Island court has I In fact, the plaintiff is in violation of the Prince Edward Island order granting leave to sue since it has not fulfilled I the condition upon which it was I the posting of $10,000. with that court as security for costs. There is no evidence that a I would deprive the plaintiff juridicial advantage available to it in this court. I I After considering all of that the balance is strongly in I tried in Prince Edward Island. I [ 9 in Prince Edward Island. The time problem fair trial in Prince Edward Prince Edward The plaintiff from that court to commence argument that Nova Scotia only to avoid that the order in this court. That, already made that decision. granted such leave, namely trial in Prince Edward Island of a legitimate personal or the evidence I am satisfied favor of the action being
J • - 10 - J Conclusion I find that this court is a forum non-conveniens and I will, therefore, order the action stayed until further order I of this court. I I J. Halifax, Nova Scotia December 5, 1990 J I J I J I I I I I I I
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