Court Finds No Real And Substantial Connection Despite Ontario Contract

Andrew Ottaway, B.A. (Hons.), LL.B.Civil Litigation, Contract Disputes, Cross-Border Litigation0 Comments

CIBC FirstCaribbean v. Glasford involved an equitable mortgage held by a Barbados bank, FirstCaribbean, over a St. Kitts property owned by one of the Plaintiffs, Glasford, a Barbados resident.   The second Plaintiff, Vinton, was Glasford’s son, who lived in Toronto.  Vinton was the second mortgagor on the property.  The Plaintiffs claimed that they were induced into the mortgage by the Defendant’s alleged misrepresentations.  The Plaintiffs had already commenced an action in St. Kitts regarding the mortgage, as had FirstCaribbean in St. Kitts to enforce the mortgage.

FirstCaribbean brought a motion to dismiss or permanently stay the Ontario action.  The Judge considered whether Ontario had jurisdiction by “a real and substantial connection between Ontario, the subject matter of the litigation and the defendant”.  The Judge found that the mortgage was presumptively connected to Ontario because the mortgage agreement was made in Ontario.  Specifically, Vinton signed and returned the mortgage agreement by mail from Toronto.  The Judge applied the “postal acceptance rule”, deeming that a contract concluded by post is “made” where the accepted offer is deposited into the mail to be returned to the other party.

Nevertheless, the Judge found that the place of the contract was “weak” connection to Ontario; FirstCaribbean was not alleged to have committed any wrongdoing in Ontario, FirstCaribbean was not located in Ontario, and FirstCaribbean did not do business in Ontario.  Further, the money was paid out pursuant to an agreement negotiated in St. Kitts and Barbados regarding a St. Kitts property owned by a St. Kitts resident.   Overall, the Judge found that FirstCaribbean had rebutted the presumptive connection to Ontario, and that there was no real and substantial connection to permit the Ontario Court to take jurisdiction.

Even if the Court had jurisdiction, the Judge stated that she would have declined to exercise jurisdiction because Ontario was forum non conveniens.  The Court found that the subject matter and events giving rise to the transaction and claim occurred in St. Kitts, nearly all of the witnesses were and all documentation was in St. Kitts, that the law of St. Kitts applied to the claim, and that there was already a proceeding ongoing in St. Kitts regarding the same subject matter.  The Judge dismissed the Plaintiffs’ Ontario action.

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About the Author
Andrew Ottaway, B.A. (Hons.), LL.B.

Andrew Ottaway, B.A. (Hons.), LL.B.

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