2012 ONSC 4497, 2012 ONSC 4497

Nagra v. Malhotra 111 O.R. (3d) 446 2012 ONSC 4497 Ontario Superior Court of Justice, K.L. Campbell J.

July 31, 2012 Conflict of laws -- Forum conveniens -- Plaintiff and defendant residing in Ontario and defendant carrying on business in Ontario -- Parties investing in companies and properties in Vermont -- Plaintiff suing defendant in Ontario on allegedly unpaid promissory note -- Defendant having no assets in Vermont so plaintiff would have to bring enforcement action in Ontario if he sued successfully in Vermont -- Plaintiff barred from entering United States as result of criminal convictions -- Ontario forum conveniens.

Conflict of laws -- Jurisdiction -- Plaintiff and defendant residing in Ontario and defendant carrying on business in Ontario -- Parties investing in companies and properties in Vermont -- Plaintiff suing defendant in Ontario on allegedly unpaid promissory note -- Alleged default occurring in Ontario -- Ontario having jurisdiction simpliciter -- Defendant's residence in Ontario triggering presumption that [page447] Ontario had jurisdiction -- Defendant not rebutting that presumption -- Real and substantial connection existing between subject matter of litigation and Ontario.

The plaintiff and the defendant were Ontario residents and the defendant carried on business in Ontario. The parties were originally partners in relation to the purchase and development of lands for the operation of hotels in Vermont and New Hampshire. The plaintiff brought an action against the defendant in Ontario claiming that the defendant owed him money in relation to an unpaid promissory note. The defendant brought a motion to stay the action, arguing that it should be tried in Vermont. Held, the motion should be dismissed.

The defendant's residence in Ontario triggered a presumption that Ontario had jurisdiction. The defendant had not rebutted that presumption. There was a real and substantial connection between the subject matter of the litigation and Ontario.

Both parties lived in Ontario; the defendant had never been to Vermont in any of his dealings with the plaintiff; the defendant had made his investments in companies and properties in Vermont and New Hampshire from his home base in Ontario; while relevant documents were signed in Vermont, they were signed by the defendant's Vermont lawyer, in whose favour he had executed a power of attorney from his actual physical location in Ontario; and the default occurred in Ontario. Ontario had jurisdiction simpliciter. The litigation had a number of important connections to Vermont.

Nevertheless, Vermont was not clearly the more appropriate forum for the litigation. Of particular importance were the facts that the defendant had no assets in Vermont, so the plaintiff would have to bring enforcement proceedings in Ontario if he sued successfully in Vermont, and that the plaintiff was barred from entering the United States as a result of criminal convictions. Even if the technology were available to permit the plaintiff to attend and participate in any Vermont proceedings remotely, virtual attendance was a poor substitute for actual physical presence.

There was no unfairness to the defendant in permitting the trial to take place in Ontario. MOTION for a stay of proceedings. Cases referred toBreeden v. Black, [2012] S.C.J. No. 19, 2012 SCC 19 , 291 O.A.C. 311, 2012EXP-1450, J.E. 2012-786, 429 N.R. 192, EYB 2012-205200, 17 C.P.C. (7th) 1, 343 D.L.R. (4th) 629, 212 A.C.W.S. (3d) 713, 91 C.C.L.T. (3d) 153; Club Resorts Ltd. v. Van Breda, [2012] S.C.J.

No. 17, 2012 SCC 17 , 291 O.A.C. 201, 2012EXP-1452, J.E. 2012-788, EYB 2012-205198, 429 N.R. 217, 343 D.L.R. (4th) 577, 212 A.C.W.S. (3d) 712, 91 C.C.L.T. (3d) 1, 10 R.F.L. (7th) 1, 17 C.P.C. (7th) 223; Éditions Écosociété Inc. v. Banro Corp., [2012] S.C.J. No. 18, 2012 SCC 18 , 291 O.A.C. 277, 18 C.P.C. (7th) 1, 2012EXP-1451, J.E. 2012-787, EYB 2012-205199, 343 D.L.R. (4th) 647, 212 A.C.W.S. (3d) 711, 91 C.C.L.T. (3d) 105, 429 N.R. 293, apld Other cases referred to Young v. Tyco International of Canada Ltd. (2008), 92 O.R. (3d) 161, [2008] O.J.

No. 4046, 2008 ONCA 709 , 65 C.P.C. (6th) 39, 69 C.C.E.L. (3d) 52, 300 D.L.R. (4th) 385, 170 A.C.W.S. (3d) 506 Murray Maltz, for plaintiff Gurdeep Nagra. [page448] Ian N. Roher and Kristina A. Davies, for defendant Verinder Malhotra. K.L. CAMPBELL J.: -- 1. Introduction [ 1 ] The plaintiff, Gurdeep Nagra, has commenced an action against the defendant, Verinder Malhotra, claiming that the defendant owes him US$3.5 million in relation to an unpaid promissory note.

The plaintiff wants the action tried in Toronto. [ 2 ] The parties were originally partners in relation to the purchase and development of lands for the operation of various hotels in Vermont and New Hampshire in the United States. More particularly, the parties were equal shareholders in some ten different American companies which owned the properties and operated the hotels. Both parties personally guaranteed the various mortgages and other debts associated with these ventures. [ 3 ] Sometime in 2007, the defendant became interested in buying-out the plaintiff's share of the companies.

Eventually, on November 19, 2007, after negotiations between the parties had concluded, the parties entered into a Purchase and Sale Agreement, wherein the plaintiff sold his 50 per cent interest in these companies to the defendant for $3.5 million. The plaintiff transferred the entirety of his interest in

the companies to the defendant. In turn, the defendant gave the plaintiff a promissory note, also dated November 19, 2007, in the amount of $3.5 million. The terms of this promissory note required the defendant to pay 5 per cent interest (when not in default), and pay the debt in five equal annual installments of $700,000 plus the accrued interest. The final payment was to be made on December 1, 2012. [ 4 ] While the defendant has now liquidated all of his interest in these companies, the promissory note to the plaintiff remains wholly unpaid. The defendant has made none of the prescribed annual installments.

With this action, the plaintiff seeks to recover this debt from the defendant. [ 5 ] By way of defence, the defendant claims that the plaintiff failed to disclose, prior to completing the Purchase and Sale Agreement, the existence of numerous loans, liens and other payables against the corporations. These debts allegedly totalled some $7.1 million. Indeed, the defendant contends that these debts were [deliberately] concealed from him by the plaintiff.

Further, the defendant claims that, after he discovered this "material non-disclosure" of these "financial irregularities" in [page449] the companies, the parties agreed that payment to the plaintiff would only be made from the proceeds, if any, of the sale of two particular real estate properties. [ 6 ] The defendant now moves to stay this action, arguing that the plaintiff's claim should be tried in Vermont, not Ontario. Accordingly, this motion engages the legal principles recently articulated by the Supreme Court of Canada in a trilogy of cases, namely, Club Resorts Ltd. v. Van Breda, [2012] S.C.J.

No. 17, 2012 SCC 17 ; Éditions Écosociété Inc. v. Banro Corp., [2012] S.C.J. No. 18, 2012 SCC 18 ; and Breeden v. Black, [2012] S.C.J. No. 19, 2012 SCC 19 . [ 7 ] In the result, for the reasons that follow, the defendant's motion is dismissed. In my view, there is a real and substantial connection between the litigation and Ontario, and the defendant has failed to establish that Vermont is clearly the more appropriate and convenient forum for the trial of this action. Accordingly, the plaintiff's action will be permitted to continue in Ontario. 2. The "Real and Substantial Connection" Test a.

Introduction -- The governing analytical approach [ 8 ] As a constitutional principle, the courts of Ontario will have jurisdiction over a civil dispute where there is a "real and substantial connection" between the Province of Ontario and the dispute between the parties. It is only in such circumstances that the Ontario courts can legitimately exercise the state's power of adjudication over the dispute.

In an effort to provide greater certainty and stability as to the existence of this jurisdiction simpliciter, the Supreme Court of Canada has adopted an analytical approach that recognizes certain "presumptive connecting factors". This approach focuses upon the identification of "objective factors" that might link the subject matter of the litigation to the court that has adjudicative jurisdiction over the dispute. This reliance upon a set of recognized (but not exhaustive) presumptive factors provides greater predictability than a regime based on the exercise of purely individualized discretion.

This approach also promotes the key goals of fairness and efficiency. The presumption of jurisdiction that flows from the existence of any one of these objective connecting factors is not, however, irrebuttable. Accordingly, where the Ontario court finds that one or more of these recognized presumptive connecting factors applies (or is prepared to acknowledge a new presumptive factor), then the court will assume jurisdiction over the dispute unless the defendant can [page450] rebut the operating presumption by demonstrating the absence of any "real and substantial connection" between Ontario and the dispute.

Where none of the recognized or new presumptive connecting factors exist, however, the onus remains on the plaintiff to establish a sufficient connection between Ontario and the litigation. See Club Resorts Ltd. v. Van Breda, at paras. 30-35, 64, 75, 78-81 . b. The presumptive connecting factors generally [ 9 ] In Club Resorts Ltd. v.

Van Breda, the Supreme Court of Canada, in the context of a tort action, helpfully provided a non-exhaustive list of presumptive connecting factors that, if established by the plaintiff, would presumptively demonstrate the necessary "real and substantial connection" between the dispute and the forum to convey jurisdiction simpliciter.

More particularly, Lebel J. stated, at para. 90, that there were at least four presumptive connecting factors that would permit a court to prima facie conclude that it possessed adjudicative jurisdiction over the dispute, namely, (1) that the defendant was domiciled or resident in the province; (2) that the defendant carries on business in the province; (3) that the tort was committed in the province; and (4) the contract connected to the dispute was made in the province. c.

The defendant resides in Ontario -- The presumption of jurisdiction operates [ 10 ] The plaintiff argued that this case reveals the presence of a number of recognized presumptive factors. There is no need to consider all of these arguments as there is no gainsaying the fact that there is at least one such presumptive connecting factor. The defendant resides in Ontario. Indeed, he has resided in Ontario continuously since at least 2004. His family home is in Brampton, and he carries on business there as a doctor. The evidence clearly establishing this reality is undisputed.

As Lebel J. observed, in delivering the judgment of the court in Club Resorts Ltd. v. Van Breda, at para. 86 , "a defendant may always be sued in a court of the jurisdiction in which he or she is domiciled or resident" or where a business defendant has its "head office". Indeed, as I have already noted, Lebel J. listed this factor (i.e., that "the defendant is domiciled or resident in the province"), at para. 90, as the very first factor on his short list of presumptive connecting factors that would prima facie entitle a court to assume jurisdiction over a dispute.

Given that the presumption of jurisdiction is triggered by the presence of even one such presumptive connecting factor, there is no need to consider [page451] the potential application of the other presumptive factors. See Éditions Écosociété Inc. v. Banro Corp., at paras. 38-40 . d.

The defendant cannot rebut the presumption of jurisdiction [ 11 ] Where one of the presumptive connecting facts is found to exist, the court is entitled to presume jurisdiction simpliciter over the adjudication of the dispute unless the defendant is able to rebut the operating presumption by demonstrating that there is no real relationship, or at best only a weak relationship, between the subject matter of the litigation and the forum, such that "it would accordingly not be reasonable to expect that the defendant would be called to answer proceedings in that jurisdiction". See Club Resorts Ltd. v.

Van Breda, at paras. 95-97, 100 . [ 12 ] I am not satisfied that the defendant has met this burden of rebutting the presumption of jurisdiction. Indeed, I am satisfied that there is a real and substantial connection or relationship between the subject matter of the litigation and the Province of Ontario. In my view, it would not be at all unreasonable for the defendant to be expected to be called to account in Ontario in relation to this dispute with the plaintiff. The following considerations support this conclusion:

(1) Both Parties Live in Ontario: Like the defendant, the plaintiff resides in Ontario and, accordingly, both of the two parties to this litigation reside and are domiciled in Ontario.

(2) Defendant Always in Ontario: While the defendant argues that this litigation should take place in Vermont, the defendant has never been to Vermont in any of his dealings with the plaintiff or anyone else connected to this litigation. In short, the defendant has, at least in relation to this case, always remained in Ontario.

(3) Investments Made From Ontario:

Regardless of whether or not it is technically accurate to say that the defendant was "carrying on" an investment "business" in Ontario, there is no doubt that the defendant was, in fact, investing significant moneys in companies and properties located in Vermont and New Hampshire, and he was making these investments from his home base in Ontario.

(4) Defendant Used Power of Attorney for Vermont Dealings: The Purchase and Sale Agreement and the promissory note were physically signed in Vermont, but not by the defendant. By executing a power of attorney in favour of his [page452] Vermont lawyer, the defendant was effectively able to execute these important documents from his actual physical location in Ontario.

(5) Default Happened in Ontario: At its most fundamental and basic level, the plaintiff's claim against the defendant is that the defendant did not pay the plaintiff the moneys he admitted, in the promissory note, owing to the plaintiff. That alleged default by the defendant took place in Ontario, where the defendant has always been located. 3. The Doctrine of Forum Non Conveniens a.

Introduction -- The governing legal analysis [ 13 ] Where the defendant is unable to rebut the presumption of jurisdiction simpliciter flowing from the existence of one or more of the presumptive connecting factors, the court cannot decline adjudicative jurisdiction over the dispute unless the defendant invokes forum non conveniens. The decision as to whether or not to invoke this doctrine rests with the parties, not the court seized of the claim.

Further, where the defendant raises the issue of forum non conveniens, the burden is upon the defendant to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff. More specifically, the defendant is obliged to identify another forum that also has a real and substantial connection with the matter, and why that alternative forum "should be preferred" and considered to be "more appropriate" to resolve the dispute. Indeed, the defendant must be able to show that the alternative forum is clearly more appropriate.

The forum non conveniens doctrine exists in recognition that common law courts retain a residual discretion to decline jurisdiction over a dispute, in appropriate but "limited" circumstances, in order to "assure fairness to the parties" and the "efficient resolution of the dispute". This doctrine of forum non conveniens is entirely separate from and has no relevance to the jurisdictional analysis itself. See Club Resorts Ltd. v. Van Breda, at paras. 101-105 ; Breeden v.

Black, at paras. 2, 22-23 . [ 14 ] The factors and considerations that may properly be taken into account in the forum non conveniens analysis in determining whether another forum is clearly more appropriate are numerous, diverse and variable. However, in Breeden v. Black, at paras. 23-29 , and Club Resorts Ltd. v. Van Breda, at paras. 105-12 , Lebel J. sought to helpfully provide a non- exhaustive list of the "diverse facts, considerations and concerns" that may be taken into account in applying the forum non conveniens [page453] doctrine in any individual case. See, also, Éditions Écosociété Inc. v.

Banro Corp., at paras. 42-64 .

I would summarize those factors as including all of the following: (1) the domicile of the parties, the locations of the witnesses and other evidence, and the comparative convenience and expense of litigating the dispute in the respective jurisdictions; (2) the law to be applied to the issues in the proceedings, including, to a limited extent, the juridical advantages (and disadvantages) to the parties in proceeding in the respective jurisdictions; (3) the impact of a "transfer" on the conduct of the litigation or on any related or parallel proceedings, and the desire to avoid a multiplicity of proceedings; (4) the possibility of conflicting judgments in different courts, and the desire to avoid such conflicting outcomes; (5) any potential problems in relation to the recognition and enforcement of the eventual judgment in the litigation and the location of the defendant's assets; and (6) the overall interests of justice, including the fair and efficient resolution of the dispute between the parties. b.

An assessment of the relevant factors in the present case

(1) Comparative convenience and expense -- The locations of the parties, witnesses and other evidence [ 15 ] As already noted, the parties themselves are both located in Ontario. The plaintiff resides in Windsor and the defendant resides in Brampton. They are truly the key witnesses in this case. Clearly, it would be more convenient for them and their respective Toronto lawyers for the trial to take place in Ontario. [ 16 ] A number of the other potential witnesses in this case live in Ontario.

It would also be more convenient for them if the proceedings continued locally. [ 17 ] There are other potential witnesses who live in Vermont (including the American lawyers for the parties) and elsewhere in the United States, including New York, Nevada, Connecticut and Massachesetts. The parties disagree about how much relevant evidence some of these American witnesses can provide on the issues involved in the litigation. The evidence does suggest, [page454] however, that many of them appear to be willing to travel to Ontario to give their evidence.

None of these witnesses have yet said they will not travel to Ontario. A number of these American witnesses would have to travel significant distances even if the trial were to take place in Vermont. Moreover, for those witnesses that might not voluntarily attend court in Ontario or Vermont, their testimony could, of course, be secured by the parties by way of video- link or by way of letters rogatory. [ 18 ] In any event, the litigation in this case will likely centre largely upon the

interpretation and significance of the available documentary evidence. The great majority of this documentary evidence is already in the possession of the parties and, accordingly, can be fully employed by the parties regardless of where the trial takes place. [ 19 ] In my view, this factor suggests that Ontario is, on balance, the more convenient and appropriate location for the litigation. The parties and their lawyers reside in Ontario as well as a number of the witnesses. It would be more convenient, and less expensive, for them if the proceedings were permitted to continue in Ontario.

While proceeding with this matter locally would be inconvenient and more costly with respect to the witnesses from Vermont, there are not a significant number of these witnesses, and the other American witnesses are not any more inconvenienced by continuing with this matter in Ontario than they would be in travelling to Vermont. The documentary evidence is available in any location.

(2) The applicable law [ 20 ] There is some issue between the parties as to the law that is applicable to this litigation. [ 21 ] The Purchase and Sale Agreement, which conveyed the plaintiff's half-interest in the various companies to the defendant, expressly provided that the agreement was to be "governed by and interpreted in accordance with the internal laws of the State of Vermont". While there is no similar reference in the promissory note, there is reference made to the note in the Purchase and Sale Agreement. The defendant argues that, accordingly, the laws of Vermont govern both documents.

[ 22 ] The plaintiff contends, however, that the parties consciously decided not to make the laws of Vermont govern the promissory note. Moreover, the plaintiff argues that his action is based only upon the defendant's default in failing to pay the promissory note according to its plain terms. The plaintiff suggests that he completed his obligations under the agreement by signing over his half-interest in the companies that owned the [page455] properties and motels, and he now simply seeks to have the defendant kept to his part of the bargain, namely, paying for that half-interest.

The plaintiff notes that the defendant's alleged default on the promissory note took place in Ontario. [ 23 ] The defendant, on the other hand, argues that, even if the laws of Vermont do not govern the promissory note, his defence to the action requires an investigation into the validity of the Purchase and Sale Agreement, as the plaintiff failed to properly disclose some significant debts and liabilities of the companies, and which would have drastically changed the value of the plaintiff's half-interest.

Accordingly, to the extent that the outcome of the case turns on the circumstances surrounding the Purchase and Sale Agreement, the laws of Vermont apply. [ 24 ] In my view, this factor appears, on balance, to favour, at least slightly, proceeding with this litigation in Vermont. It may well be that, regardless of the location of the litigation, the parties will have to adduce some expert evidence as to the laws of the other jurisdiction.

But, given the apparent significance of the Purchase and Sale Agreement, and the fact that this document expressly makes the laws of Vermont applicable, there seems to be little question that the laws of Vermont will figure prominently in this action. Accordingly, if the trial is to take place in Ontario, the parties will likely have to call expert evidence as to the laws of Vermont.

Similar expert testimony may not be necessary if the matter proceeds in Vermont. [ 25 ] This factor, I suggest, weighs only "slightly" in favour of having the matter proceed in Vermont as there is no evidence suggesting that there is any significant difference in the laws in Ontario and those in Vermont insofar as the dispute between the parties in this case is concerned. There is, accordingly, no juridical advantage or disadvantage to proceeding in one territorial jurisdiction or the other.

The only impractical consequence to continuing the proceeding in Ontario would be the calling of this additional expert evidence as to the law in Vermont. [ 26 ] In reaching this conclusion, I am also mindful of the caution expressed by the Supreme Court of Canada that, in considering whether there is any "loss of juridical advantage" in another jurisdiction, courts ought not rely "too extensively" on this factor in the forum non conveniens analysis and must "refrain from leaning too instinctively in favour of its own jurisdiction". See Club Resorts Ltd. v. Van Breda, at para. 112 .

Indeed, as the loss of juridical advantage "may not add very much to the jurisdictional analysis", it "should not weigh too [page456] heavily in the forum non conveniens analysis". See Breeden v. Black, at paras. 26-27, 35 .

(3) Avoiding a multiplicity of proceedings and conflicting judgments [ 27 ] There is other litigation ongoing between the parties in the United States, so the desire to avoid a multiplicity of proceedings and potentially conflicting judgments is a factor that must be taken into account in the forum non conveniens analysis. [ 28 ] In January of 2010, the defendant, Malholtra, was sued in Vermont by Dr. Daljeet Singh Kamboj in connection with an alleged outstanding payment on a loan for the refinancing of one of the hotel properties. On November 7, 2010, the defendant and Mr. Kamboj settled their dispute.

Shortly thereafter, however, on November 17, 2010, after the start of this action by the plaintiff in Ontario, the defendant commenced, in the settled Vermont action, "third party" proceedings against the plaintiff. These third party proceedings claim that the plaintiff failed to disclose debts and liabilities totalling some $7.1 million, and that the plaintiff thereby dishonestly induced the defendant to enter into the Purchase and Sale Agreement and provide him with the promissory note. [ 29 ] Subsequently, on April 29, 2011, Dr.

Kamboj commenced another, separate action against the plaintiff in the Vermont courts, in which he alleged that he had provided some $3 million in loans in connection with these hotel investment projects based upon misrepresentations by the plaintiff as to the financial circumstances of the hotel properties. [ 30 ] The courts in Vermont have, at least to date, refused requests to consolidate these two claims. [ 31 ] If the plaintiff's action were to be stayed in Ontario and effectively "transferred" to Vermont, the plaintiff's claim and the defendant's third party claim might potentially be consolidated (perhaps even with the new suit by Dr.

Kamboj), thereby avoiding any unnecessary multiplicity of proceedings and any potentially conflicting judgments. The disputes between the parties could conceivably all be resolved in Vermont. [ 32 ] On the other hand, if the plaintiff's action were permitted to continue in Ontario, there would appear to be no good reason why the defendant could not, in effect, raise his "third party claim" from the Vermont proceedings in his defence to the plaintiff's action. Permitting the defendant to adopt that course in the Ontario action would avoid any needless multiplicity of proceedings between the parties.

Moreover, the defendant would in this [page457] way be deprived of no juridical advantage that he might possess if the proceedings were transferred to Vermont. [ 33 ] The second action by Dr. Kamboj, however, would remain outstanding and would raise the possibility of two overlapping proceedings and potentially conflicting judgments in Ontario and Vermont. Accordingly, in the result, in my view this factor provides support for Vermont in the forum non conveniens analysis.

(4) The recognition and enforcement of judgments -- The assets of the defendant [ 34 ] Transferring the litigation to Vermont would clearly raise potential practical difficulties in the eventual recognition and enforcement of the judgment from this litigation, and would itself potentially cause a multiplicity of proceedings. [ 35 ] It is an accepted reality of this case that the defendant has no assets in the United States.

All of his assets, including his family home, his medical practice, his corporate business interests and his other real estate properties are all located in Ontario. [ 36 ] Accordingly, for the plaintiff to eventually realize the proceeds of any monetary award that might potentially follow upon any successful litigation against the defendant, the plaintiff would have to secure a judgment that is recognized and enforced in Ontario. This reality is a factor that weighs in favour of permitting the proceedings to continue in Ontario.

[37] If the plaintiff is successful in his current claim, an Ontario judgment would be immediately enforceable against the defendant'sassets in Ontario. Not so if the matter proceeded in Vermont. If the plaintiff were successful against the defendant in any Vermontlitigation, he would only be able to employ that foreign judgment in Ontario after it was first recognized as enforceable in Ontario.

Thiswould require separate, subsequent litigation in Ontario. [38] The plaintiff would, no doubt, find it duplicitous to be told that his action, which he launched in Ontario, must proceed in Vermont,but that if he is successful in the Vermont litigation, he must then return again to Ontario and commence further litigation against thedefendant if he wants to be able to enforce the foreign Vermont judgment against the defendant and his local assets.

(5) The interests of justice -- Fairness [39] Staying this action and, in effect, "transferring" the case to Vermont would have a significant impact upon the conduct of [page458]the trial proceedings, and would result in substantial unfairness to the plaintiff. [40] In 2008, the plaintiff was convicted of committing certain criminal offences in Vermont, namely, (1) conspiracy to make falsestatements in a bank loan; and (2) employing illegal aliens. In the result, in 2009, the plaintiff was sentenced to four months'imprisonment and fined $10,000.

The plaintiff was also ordered deported from the United States and prohibited from re-entering thatcountry for a period of ten years. While inquiries have been made as to the possibility of a temporary entry visa, the plaintiff has notbeen granted any such temporary permit. Accordingly, the plaintiff remains prohibited from entering the United States.

Indeed,according to the expert legal opinion of a Vermont lawyer, it would be "impossible" for the plaintiff to obtain permission to enter theUnited States before the expiry of this ten-year period, and highly unlikely to secure such approval even after the end of this ten-yearperiod. [41] In the result, for the plaintiff to "attend" any potential discoveries or trial proceedings in Vermont, the plaintiff would have to do sovirtually by way of video-link (or other technological means) from Canada.

For the plaintiff to watch and participate in the proceedings,the video-link would have to be operative throughout the entire course of the discoveries and the trial.

Moreover, technical arrangementswould need to be made, if they are possible, to somehow allow the plaintiff to easily and confidentially discuss any developments in thecase with his lawyer, and provide timely instructions as to the conduct of the litigation as it unfolds. [42] Even if the technology were available to permit the plaintiff to attend and participate in any Vermont proceedings remotely in thisway, this alternative means of virtual "attendance" is still a poor substitute for actual physical attendance and presence.

It is hardlysurprising, therefore, that the plaintiff wants the trial to take place in Ontario, where he can actually physically observe and participate inthe litigation first-hand as it unfolds. In my view, it would work a real unfairness on the plaintiff to now require the trial proceedings totake place in Vermont, where the plaintiff is not legally permitted to travel. Moreover, it is no answer to this potential unfairness tocontend, as does the defendant, that the plaintiff is the author of his own misfortune, having given the United States just cause to bar hisfurther presence in that country.

Past misconduct by an individual, for which he has already been sentenced, serves as no justification forthe infliction of procedural unfairness in future unrelated trial proceedings. [page459] [43] There is, incidentally, no unfairness to the defendant in permitting the trial of this matter to take place in Ontario, where thedefendant lives with his wife and carries on his business.

Indeed, it would appear that transferring the litigation to Vermont would, in apractical way, be much more inconvenient for the defendant than permitting the action to proceed in Ontario. [44] This factor, in my view, weighs heavily in favour of permitting the litigation to continue in Ontario. After all, one of thefoundational reasons for the very existence of the forum non conveniens doctrine is to preserve a residual discretion to declinejurisdiction where it is necessary to "assure fairness" to the parties. See Club Resorts Ltd. v. Van Breda, at para. 104 (emphasis added).

Itwould be anathema to the doctrine to permit the exercise [of] this residual discretion in a way that actually caused unfairness to one ofthe parties. See, also, Breeden v. Black, at paras. 28, 36. [45] The plaintiff's practical ability to pursue his action against the defendant in Ontario is a great juridical advantage that he wouldeffectively lose if forced to try to pursue the matter in Vermont. His current juridical advantage in Ontario would be turned into asignificant juridical hurdle. As Laskin J.A. stated, in delivering the judgment of the majority of the court in Young v.

Tyco Internationalof Canada Ltd. (2008), 2008 ONCA 709 , 92 O.R. (3d) 161, [2008] O.J. No. 4046 (C.A.), at para. 61, "[a] ccess to justice maybe an important consideration bearing on juridical advantage" as the forum non conveniens analysis "is as much about fairness andjustice as it is about convenience and efficiency". c. Conclusion [46] In

summary, I am not satisfied that that defendant has met the burden of establishing that Vermont is a "clearly more appropriate"forum in which to resolve this dispute between the parties. [47] There is no doubt that this litigation has a number of important connections to Vermont. The hotel properties are all located inVermont. Most of the corporate entities that owned the hotels were Vermont companies. Much of the financing was obtained inVermont. The key documents were physically executed in Vermont. The hotel properties were ultimately sold in Vermont.

The allegedlyundisclosed debts were owed to creditors, many of whom were located in Vermont. [48] Nevertheless, those connections are not such as to convince me that Vermont is clearly the more appropriate forum for [page460]the litigation between the parties. Indeed, I am satisfied that Ontario is, in all of the circumstances of this case, the more appropriateforum. [49] Ontario also has numerous connections to the litigation. Both of the parties reside in Ontario. The defendant has never even been toVermont in connection with the dispute in this case.

The defendant made his investments in this business venture from Ontario. To theextent that documents needed to be signed in Vermont, the defendant dealt with a Vermont lawyer through a power of attorney.Eventually, the defendant is alleged to have defaulted on his payment obligations from his home in Ontario. Moreover, the comparativeconvenience and expense of conducting the litigation favours continuing the litigation in Ontario, as opposed to Vermont, given thelocation of the parties, the witnesses and the other evidence.

Moreover, for the litigation to result in an immediately effective andenforceable judgment against the defendant's assets (if the plaintiff is ultimately successful), the litigation will have to take place inOntario. Perhaps most importantly, in my view in order to "assure fairness to the parties" the litigation must continue in Ontario. It would

be most unfair to require the plaintiff to try to conduct his litigation in a country from which he is prohibited entry. [ 50 ] While the parties are both able to advance persuasive points in support of their arguments as to whether the litigation should proceed, the burden of proof is upon the defendant to demonstrate that Vermont is clearly the more appropriate forum for litigating the dispute between the parties. In my view, the defendant has simply not satisfied his burden in this regard.

I am not convinced that Vermont is a "clearly more appropriate" forum in which to resolve this dispute between the parties. [ 51 ] Accordingly, the action will be permitted to continue in Ontario. 4. Conclusion [ 52 ] In the result, the motion by the defendant is dismissed. An order shall issue accordingly. [ 53 ] The only remaining issue is the costs of this motion. If the parties cannot reach an agreement with respect to that issue, the parties may approach me to establish a reasonable timetable for written submissions on the issue of costs. Motion dismissed.