Bondstreet Management Group Inc. v. Mathews, 2019 BCPC 25

Citation: Bondstreet Management Group Inc. v. Mathews 2019 BCPC 25 Date: 20190301 File No: 1861206 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: BONDSTREET MANAGEMENT GROUP INC. CLAIMANT AND: THOMAS MATHEWS DEFENDANT RULING ON APPLICATION OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Claimant: Julia R. Wolfe Counsel for the Defendant: David W. Gibbons Place of Hearing: Vancouver , B.C.

Date of Hearing: January 21, 2019 Date of Judgment: March 1, 2019 INTRODUCTION [ 1 ] The Defendant, Thomas Mathews, applies for the following relief: 1. A dismissal on the basis that the Court lacks territorial competence. 2. In the alternative, the proceedings should be stayed on the ground that the Court ought to decline jurisdiction. 3. In the further alternative, the proceedings should be struck on the ground that Thomas Mathews is not an appropriate Party in the Claim. [ 2 ] The Claimant, Bondstreet Management Group Inc. (“Bondstreet”), opposes the application.

BACKGROUND [ 3 ] Bondstreet asserts they gave the defendant, a lawyer in Ontario, retainer monies and rather than placing the monies into trust for Bondstreet, the defendant used the money to pay the outstanding account of an unrelated entity. The defendant denies all allegations and asserts the monies were not for a retainer, rather, the money was payment toward the account of a related entity. THE EVIDENCE [ 4 ] The application proceeded by way of affidavit evidence and submissions of counsel. The defendant, Thomas Mathews filed two affidavits.

Grant Johnston, the sole director of the Claimant, Bondstreet also filed an affidavit. Below is a brief

summary of the relevant portions of the evidence. Mr. Johnston - Affidavit [ 5 ] In February of 2016, Thomas Mathews came to Vancouver with Mike Mitton and members of an investors group called Fortman Cline. While in Vancouver, Mr. Mathews met with Mr. Johnston in relation to Upland Resources Inc. (“Upland”), which was a company that Mr. Johnston was involved with. The purpose of the meeting was an attempt to purchase property owned by Upland by way of a share purchase. [ 6 ] During the meeting Mr. Mathews indicated to Mr. Johnston that he would assist in preparing the share purchase documentation.

He also represented that he was counsel for Fortman Cline and his purpose of coming to Vancouver was to assist Fortman Cline in soliciting Upland and brokering a deal for the purchase of the property. [ 7 ] Negotiations for the purchase collapsed with parties from both sides of the transaction forming a new company; Bondstreet Management Group Inc. This company was incorporated on June 21, 2017. [ 8 ] Around June 2016, Bondstreet retained Mr. Mathews as legal counsel with the intention of receiving advice on investment opportunities.

On June 21, 2016, Bondstreet sent a retainer of $20, 000 to Thomas Mathews Professional Corporation. On July 20, 2016, Mr. Mathews sent a representation agreement to Bondstreet. [ 9 ] The representation agreement was not signed. Nevertheless, between June and November 2016, Mr. Mathews provided legal services in relation to properties in Saskatchewan, Alberta, and British Columbia.

He also drafted letters of intent, share purchase agreements and promissory notes for several properties in British Columbia. [ 10 ] If the matter proceeds to litigation, the Claimant believes they will call various witnesses including the Affiant, the Claimant’s accountant and an advisor who had interacted with Mr. Mathews. Mr. Mathews - Affidavit [ 11 ] Mr. Mathews is a lawyer who practices as professional corporation, Thomas Mathews Professional Corporation (the “TMPC”) and he provides no legal services outside of the Corporation. [ 12 ] Mr. Mathews is called to the bar in Ontario and Quebec.

Accordingly, his practice is limited to these two provinces. As such, TMPC provides no legal services outside of Quebec or Ontario. [ 13 ] As for his involvement with the Claimant and Mr. Johnston, Mr. Mathews deposed he came to Vancouver in February 2016 and he met with Mr. Johnson and Mr. Mitton. The meeting was approximately one hour in duration and it involved introductions and informal discussions. No one from Fortman Cline was present. [ 14 ] Thereafter, during the week of March 8 - 11, 2016, there were substantive meetings in Montreal.

Some of the parties involved were Des Bosa, Danny Ibasco, the late Donald Bunker, Tom Bunker and others. These meetings related to proposed bond dealings relating to assets in British Columbia, Saskatchewan, Quebec and international. [ 15 ] As for the $20, 000 that was received, the money was sent in a wire transfer to TMPC by Greg Buck (Bondstreet’s accountant) who described it as an “interim payment.” In acknowledgment of the monies, Greg Buck wanted an invoice made out to Vanilla Inc. [ 16 ] Had Mr. Mathews not received the $20, 000 for expenses and services, he would not have undertaken any further work. Once

in receipt of the monies, a further retainer agreement was sent in July 2016, where a retainer of $75, 000 was requested. This retaineragreement was never signed. [17] Attached as exhibits to Mr. Mathews’ affidavits were invoices, a wire transfer communications, and an unsigned copy of theRepresentation Agreement. ANAYLSIS Territorial Competence [18] Mr. Mathews argues the court should decline jurisdiction. In support he argues, he was not performing legal services in BritishColumbia, that he does not have offices in British Columbia, and that all legal work provided was primarily with respect to Ontario lawand Quebec law. He relies on the following authorities: Lura v. Jazz Forest Products

(2004) Ltd., 2014 BCPC 14 , 2014 BCPC0014, Thumbnail Creative Group Inc., v. Blu Concept Inc., 2009 BCSC 1833. [19] Bondstreet argues, the parties met in British Columbia and Mr. Mathews agreed to act as counsel. Thereafter, Mr. Mathewsprovided legal services related to the purchase of businesses in British Columbia and Saskatchewan and that the dispute involving theretainer arose in British Columbia. Bondstreet relies on: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Lapointe Rosenstein MarchandMelancon LLP v. Cassels Brock & Blackwell LLP, [2106] S.C.J. No. 30.

The Law [20] The claimant has the onus of establishing the territorial competence of the court: Thumbnail Creative Group Inc. v. Blu ConceptInc., 2009 BCSC 1833, VMAC Racing Ltd. v. B.R. Motorsports Inc., 2008 BCSC 685. [21]

Section 3 (

e) of the Court Jurisdiction and Proceedings Transfer Act, SBC 2003. C. 28, (the “Act”) sets out when a court hasterritorial competence in a proceedings. The relevant portion reads: 3 A court has territorial competence that is brought against a person only if… (

e) There is a real and substantial connection between British Columbia and the facts on which the proceeding against that person isbased. [22]

Section 10 of the Act expands the above by identifying proceedings which create the presumption of a real and substantialconnection and it also recognizes that there may be other circumstances where a real and substantial connection can be established. [23] In Lapointe Rosenstein Marchand Melancon LLP v.

Cassels Brock & Blackwell LLP, 2016 SCC 30 , [2016] S.C.J No.30, the court discussed factors related to a “real and substantial connection.” At paras. 25 - 27 the court stated: [25] Before a court can assume jurisdiction over a claim, a “real and substantial connection” must be shown between the circumstancesgiving rise to the claim and the jurisdiction where the claim is brought: Van Breda, at paras. 22-24; Society of Composers, Authors andMusic Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45 , [2004] 2 S.C.R. 427, at para. 60; Tolofsonv.

Jensen, (SCC), [1994] 3 S.C.R. 1022, at p. 1049; Hunt v. T&N plc, (SCC), [1993] 4 S.C.R. 289, atpp. 325-26 and 328; Morguard Investments Ltd. v. De Savoye, (SCC), [1990] 3 S.C.R. 1077, at pp. 1108-10. [26] This Court’s decision in Van Breda sets out the refined and revised test for establishing the requisite connection in tort claims.Writing for a Unanimous Court, LeBel J. identified four non exhaustive presumptive connecting factors: 1. The defendant is domiciled or resident in the province; 2. The defendant carries on business in the province; 3. The tort was committed in the province; or 4.

A contract connected with the dispute was made in the province. [27] As LeBel J. noted, “[a]ll presumptive connecting factors generally point to a relationship between the subject matter of thelitigation and the forum” where jurisdiction is proposed to be assumed: para. 92. The existence of this relationship makes it “reasonableto expect that the defendant would be called to answer legal proceedings in that forum”: para. 92. The burden of establishing theapplication of a presumptive factor in a given case lies with the party asserting jurisdiction.

There is no requirement that more than onefactor be shown to apply in a given case. The presumption arising from each of these factors may be rebutted by the party resistingjurisdiction by showing that there is no real relationship — or only a weak relationship — between the subject matter of the litigation andthe proposed forum: paras. 95-100; Joost Blom, “New Ground Rules for Jurisdictional Disputes: The Van Breda Quartet” (2012),53 Can. Bus.

L.J. 1, at pp. 9-10 and 14. [24] And at paras. 34-35: [34] Further, the real and substantial connection test has never been concerned with showing “the strongest” possible connectionbetween the claim and the forum where jurisdiction is sought to be assumed: Van Breda, at para. 34. [35] Nor does the fact that another forum may also be connected with the dispute undermine the existence of a real and substantialconnection. Van Breda expressly recognized that there will be “situations in which more than one court might claim jurisdiction”: para.15.

However, the question of whether another forum is more appropriate plays no

part in the analysis for assuming jurisdiction. Thisissue is only relevant once jurisdiction has already been assumed, and where the defendant seeks to convince the court that the otherforum is “clearly more appropriate” under the doctrine of forum non conveniens: Van Breda, at paras. 101-2.

Analysis [25] Applying the above principles, Mr. Mathews is a resident of Ontario and I accept he is authorized to practice law in Ontario andQuebec. Despite these findings, I am satisfied he was providing legal services for Bondstreet and it related to some matters in BritishColumbia. My findings are based on the invoices, the Representation Agreement, and Mr. Mathews’ affidavits. Accordingly, I amsatisfied he carried on business in British Columbia. [26] As for the affidavits, Exhibit “C” attached to Mr.

Mathews’ November 29, 2018 affidavit, shows he billed BondstreetManagement Group for the February, 2016 Vancouver meeting. Thereafter he submitted invoices related to the performance of anumber of legal services including matters related to British Columbia transactions. The time entries in the invoices relate to servicesperformed before Bondstreet was incorporated. [27] Further to the above, the retainer letter confirmed Mr. Mathews agreed to act as counsel for Bondstreet in relation totransactions in various locations including British Columbia. It is also apparent from paragraph 16 of Mr.

Mathews’ November 29, 2018affidavit that the July retainer letter was not the first one given to Bondstreet, rather it was a “further” retainer agreement. [28] In considering the above, I appreciate that Bondstreet was not incorporated until June 2018, however it appears that it was inexistence in some format. This finding is based on the invoices where Mr. Mathews billed Bondstreet for services prior to Bondstreet’sincorporation. [29] As for the location where the tort was committed, the Statement of Claim and the affidavits satisfy me that the alleged tort wascommitted in Ontario.

Specifically, the money was sent to Mr. Mathews in Ontario by cheque which was payable to Thomas MathewsProfessional Corp., with the expectation that they would be placed in trust for Bondstreet and it was while in Ontario that Mr. Mathewsdirected the funds be paid to another account. [30] Turning to where the contract related to the dispute was created. In considering this point, I observe, the litigation is not, persay, a contract dispute, nevertheless, I see the fact that Mr.

Mathews met the parties in Vancouver and he agreed to act for them as someevidence which satisfies me they formed their agreement in Vancouver. I acknowledge that the retainer agreement was not signed andthat Bondstreet was not incorporated until June 2016, however, the invoices and the July 2016 retainer agreement letter satisfies me therewas an agreement and a relationship in place and that it was likely formed in Vancouver. [31] For the above reasons, I find that Bondstreet has established a real and substantial connection. Accordingly, I am satisfied thatthis Court is a court of competent jurisdiction.

DECLINING TO EXERCISE JURISDICTION [32] Mr. Mathews argues the Court should decline to accept jurisdiction on the grounds of forum non conveniens. Simply, Mr.Mathews argues that British Columbia is not a convenient forum and therefore the proceedings should be struck. In this regard, hepoints to his residence, and the location of his witnesses. [33] Bondstreet argues the application to decline jurisdiction should be dismissed.

In support, their counsel points out; they are aBritish Columbia registered company, the witnesses essential to their claim are residents of British Columbia and there is no prejudice todefendant. The Law [34] In Farough v. Financial Control Industries Inc., 2007 BCPC 351, the Honourable Judge Senniw, succinctly stated the relatedlegal principles. At paragraphs 23 - 27 she stated: (

c) Forum Conveniens [23] The choice of appropriate forum is to be made on the basis of factors designed to ensure, if possible, that the action is tried in thejurisdiction that has the closest connections with the action and the parties, and not to secure a juridical advantage to one of the litigantsat the expense of the others, in a jurisdiction that is otherwise inappropriate. (Anchem Products Inc. v.

B.C. (W.C.B.) (SCC), [1993] 1 S.C.R. 897.) The existence of a more appropriate forum must be clearly established to displace the forum selected bythe plaintiff. [24] A stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other availableforum having competent jurisdiction which is the appropriate forum for the trial, that is, in which the case may be tried more suitably forthe interests of all the parties and the ends of justice and which is clearly or distinctly more appropriate.

The burden of proof rests on thedefendant to persuade the court to exercise its discretion to grant a stay. However, if the court is satisfied that there is another availableforum which is prima facie the appropriate forum for the trial, the burden then shifts to the plaintiff to show that there are specialcircumstances by reason of which justice requires that the trial should take place where the plaintiff filed his claim; (Spiliada MaritimeCorporation v. Cansulex [1987] A.C. 460 (H.L.); Imagis Technologies; Furlan v. Shell Oil Co., 2000 BCCA 404 , 2000 B.C.C.A. 404; Bushell v.

TNN PLC. (1992) (BC CA), 92 D.L.R. (4th) 228 (B.C.C.A.)). [25] The “natural forum” has been defined as being that with which the action had the most real and substantial connection. Factors thatthe court must look at in determining whether this connection exists include convenience or expense, such as the availability ofwitnesses, the law governing the relevant transaction, and the places where the parties reside or carry on business.

If it has beenestablished objectively by cogent evidence that the plaintiff will not obtain justice in the foreign jurisdiction then this factor can belooked at beyond the connecting factors by the court in arriving at its determination. [26] The courts in British Columbia have considered these and other factors when exercising the discretion to stay an action on the basisof forum non conveniens:

1. Where each party resides; 2. Where each party carries on business; 3. Where the cause of action arose; 4. Where the loss or damage occurred; 5. Any juridical advantages to the plaintiff in the jurisdiction of suit; 6. Any juridical disadvantage to the defendant in the jurisdiction of suit; 7. Convenience or inconvenience to potential witnesses; 8. Cost of conducting the litigation in the jurisdiction of suit; 9. Applicable substantive law; 10. Difficulty and cost of proving foreign law, if necessary; and 11. Whether there are parallel proceedings in any other jurisdiction. (Stern v.

Dove Audio Inc., 1994 B.C.J. No. 863) [27] The common law regarding jurisdiction was codified in the Court Jurisdiction and Proceedings Transfer Act S.B.C. 2003 c. 28, s.10 (Lloyd’s Underwriters v. Cominco Ltd. 2006 BCSC 1276 , [2006] 12 WWR 486). It provides that a real and substantialconnection between British Columbia and the facts on which a proceeding is based is presumed to exist if the proceeding concernscontractual obligations which were to be performed to a substantial extent in British Columbia or concerns of business carried on inBritish Columbia.

Section 11 of the Act sets out what a court must consider in determining whether it or a court outside of BritishColumbia is the more appropriate forum: (

a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in anyalternative forum; (

b) the law to be applied to issues in the proceeding; (

c) the desirability of avoiding multiplicity of legal proceedings; (

d) the desirability of avoiding conflicting decisions in different courts; (

e) the enforcement of an eventual judgment; and (

f) the fair and efficient working of the Canadian legal system as a whole. Analysis [35] Mr. Mathews resides in Ontario and typically conducts business in Ontario and Quebec. In contrast, Mr. Johnston, the directorfor Bondstreet, resides in British Columbia. The agreement between the parties appears to have been formed in British Columbia. Arguably, the cause of action arose in British Columbia, and the loss occurred in British Columbia. [36] The location of the litigation be it, Ontario or British Columbia, represents no juridical advantage to either party. As for witnessconvenience and litigation expense, Mr.

Johnston’s affidavit satisfies me that Mr. Buck, Mr. Johnston and Mr. Mitton will likely benecessary witnesses. [37] In contrast, Exhibit “J” of Mr. Mathew’s November 29, 2019 affidavit, lists the names and locations of witnesses. What ismissing is a reference indicating why the persons listed maybe witnesses. Essentially, it is merely a list of names and their locations. Lastly, I observe that none of the witnesses listed by Mr. Mathews resides in Ontario, hence, they would have to travel if the proceedingswere in British Columbia or in Ontario. [38] After considering the evidence and the principles, I find Mr.

Mathews has not clearly established that another jurisdiction is amore appropriate forum. Specifically, he has not demonstrated why all the witnesses listed are required, nor, has he provided anyinformation on the cost of witness accommodation. Mr .Mathews’ application requesting that the Court decline jurisdiction is denied. STRIKING THE CLAIM ON THE BASIS THAT THE WRONG PARTY IS NAMED [39] Counsel for Mr. Matthews argues the appropriate party is TMPC. In support he points out; Mr. Mathews is the sole lawyer ofTMPC and all actions he took were done on behalf of TMPC.

He also points out that TMPC was in Bondstreet’s consideration when thestatement of claim was drafted and this is evident because “TMPC” was crossed out of the Statement of Claim. [40] Counsel for Bondstreet argues they are alleging the tort of professional negligence against Mr. Mathews. Hence, Mr. Mathewsis properly named and therefore, the application should be dismissed. The Law [41] This court must determine if, on a balance, there is some evidence that Mr. Matthews is the correct party. In approaching this

issue, I have considered the guiding purpose of the Small Claims Act RSBC 1996

chapter 430. In this regard,

section 2 states: The guiding purpose of the Small Claims Act RSBC 1996

chapter 430 is set out in

section 2 which states:

(1) The purpose of this Act and the rules is to allow people who bring claims to the Provincial Court to have them resolved and to haveenforcement proceedings concluded in a just, speedy, inexpensive and simple manner.

(2) Subject to this Act and the rules, in conducting a hearing the Provincial Court may make any order or give any direction it thinksnecessary to achieve the purpose of this Act and the rules. [42] In considering the matter, I observe, Lura v. Jazz Forest Products

(2004) Ltd., 2014 BCPC 14 , 2014 BCPC 0014,where at paragraph 11 the Honourable Judge Skilnick commented: [11] The dismissal of a claim prior to trial is a drastic remedy, and is one that should be used only in the clearest of cases. [43] I agree with the above comments. Specifically, the rhetorical resort to dismissing claims would conflict with the purpose of theSmall Claims Act, with the potential of risking litigants’ access to justice.

Analysis [44] In the instant matter I observe the Statement of Claim was drafted prior to counsel being retained and in my view, there is someevidence which could support the claim in tort against Mr. Matthews. I also observe that Rule 8 of the Small Claims Rules permits theaddition of a party prior to a settlement conference. In my view, dismissing the claim as drafted would be incongruent with the purposeof the Act. I also note that there has not been a settlement conference, hence, Bondstreet still has the option of adding TMPC as a party. For the above reasons the application is dismissed.

CONCLUSION [45] For the reasons stated the defendant’s application is dismissed in its entirety. _______________________________ The Honourable Judge R. Harris Provincial Court of British Columbia