Henry Estate v. Henry, 2012 MBCA 4

Citation: Henry Estate v. Henry, 2012 MBCA 4 Date: 20120112 Docket: AI 11-30-07544 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin Madam Justice Joan G. McKelvey ( ad hoc ) BETWEEN : LENWORTH HENRY and ) P. V. Walsh, Q.C. PEARLITIA WAFER, as Executors ) for the Appellant of the Estate of the late ) ADELAIDE HENRY, deceased ) ) C. R. Huband and (Plaintiffs) Respondents ) J. S. Michaels ) for the Respondents ) - and - ) ) Appeal heard: ) October 28, 2011 JOSEPH HENRY ) ) Judgment delivered: (Defendant) Appellant ) January 12, 2012 BEARD J.A. I.

THE ISSUE 1 The substantive issue in this appeal is whether the motion judge erred in finding that Manitoba is the forum conveniens for the hearing and determination of the claim of the plaintiffs (the executors) for the payment of funds said to be owing to the estate of Adelaide Henry, for an accounting of all funds and for disclosure as to the conversion of such funds into other property. 2 The defendant (Joseph) has defended the claim on the basis that the will is invalid because the testatrix, Adelaide Henry (Adelaide), did not have testamentary capacity, that the will was signed under duress and undue influence, that the will was made in suspicious circumstances and, alternatively, that the will is a forgery.

Further, he has claimed that Adelaide owed him $312,000 at the time of her death and he is claiming a set-off for that amount. 3 Joseph takes the position that the claim should be litigated in Jamaica because that was Adelaide’s domicile, that was where her will was executed and probated and that was where the alleged debt was incurred. 4 The executors have filed a cross appeal on the question of costs, arguing that the motion judge erred in finding that success on the motion was divided and ordering no costs. II.

THE FACTS 5 The underlying claim is about entitlement to a sum of money that was being held by Joseph. The plaintiffs have filed this claim in their capacity as executors of the estate of their mother, Adelaide. Adelaide lived in Jamaica, where she executed her will on August 25, 2006, at the age of 96 years old. She died a few months later, on October 27, 2006, leaving her estate to seven of her nine children, as set out in her will.

One child, Rupert, predeceased her and she disinherited Joseph, who is her son. 6 Adelaide’s living children are (and were at the date of her death) as follows: - Lenworth Henry of Montreal, Quebec (one of the executors); - Pearlitia (a.k.a. Pearlita) Wafer of California, U.S.A. (one of the executors);

- Etta Flake of Winnipeg, Manitoba; - Monica M. McLauren of Winnipeg, Manitoba; - Sylvia Lemay of Texas, U.S.A.; - Olive Thornton of Toronto, Ontario; - Joseph Henry of Winnipeg, Manitoba (the defendant); and - Barbara Drysdale of Winnipeg, Manitoba. 7 The only asset of significance in Adelaide’s estate is the money now in dispute, which is the net value of Rupert’s estate. Rupert, who was living in England at the time of his death, was single and had no children.

Because he died intestate, Adelaide was hissole heir-at-law and inherited his entire estate. 8 Joseph applied to administer Rupert’s estate and, once the administration was complete, he instructed the English solicitorsto forward the money to him in Winnipeg. He received the money in April or May 2006, subsequent to which he forwarded $5,000 toLenworth and retained the balance of $251,307. 9 The executors obtained a grant of probate in Jamaica on January 15, 2008.

They commenced these proceedings onOctober 16, 2008, and obtained a garnishing order without notice to Joseph to garnish funds being held in Joseph’s bank account,pursuant to which the sum of $264,981.78 was paid into court. These funds are being held to either reduce any judgment against Josephor until further order of the court. III. FORUM NON CONVENIENS 1. STANDARD OF REVIEW 10 Both counsel agree, as do I, that the question of which competing forum is the most convenient is a discretionary decision. See Caspian Construction Inc. v.

Drake Surveys Ltd., 2004 MBCA 71 at para. 7, 184 Man.R. (2d) 284. 11 The standard of review of a discretionary decision is a very high standard, described by the Supreme Court of Canada inElsom v. Elsom, (SCC), [1989] 1 S.C.R. 1367, as follows (at p. 1375): …. … [A]n appellate court will be justified in intervening in a trial judge’s exercise of his discretion only if the trial judgemisdirects himself or if his decision is so clearly wrong as to amount to an injustice. …. 12 This standard was considered in some detail by this court in Towers Ltd. v.

Quinton’s Cleaners Ltd. et al., 2009 MBCA 81,245 Man.R. (2d) 70, in which Freedman J.A., speaking for the court, stated as follows (at para. 28): The standard for intervention in a discretionary decision is very high. It is not enough that the appellate judges think the trial (ormotions) judge simply reached a wrong result; there rarely is, in truly discretionary matters, a “right” or “wrong” result. It is not enoughthat the appellate judges would have decided differently; they are to respect, and not replicate, the unique role of trial judges.

Assumingthere have been no reversible errors on fact or law, the appellate judges are not to usurp the trial judge’s role in discretionary matters,barring a decision so “clearly wrong” as to yield a truly unjust result. See also Pulse Ventures Inc. v. Ogee Tables and Chairs Inc. et al., 2008 MBCA 107 at para. 3, 231 Man.R. (2d) 68. 13 This is the standard of review that applies in this case. 2.

THE LAW 14 Joseph applied for an order dismissing the executors’ claim pursuant to subrule 17.06(2) of the Queen’s Bench Rules on thebasis that Manitoba is not a convenient forum for the hearing of these proceedings and that Jamaica is a more appropriate forum. Therelevant portion of subrule 17.06(2) states as follows: Order 17.06(2) Where the court is satisfied that, . . . . . (

c) Manitoba is not a convenient forum for the hearing of the proceeding; the court may make an order under subrule (1) or such other order as is just. 15 Subrule 17.06(1) states as follows:

Motion to set aside 17.06(1) A party who has been served with an originating process outside Manitoba may move, before filing or serving a defence, (

a) for an order setting aside the service and any order that authorized the service; or (

b) for an order staying the proceeding. 16 Subrule 17.06(2) does not appear to apply in this case, as Joseph is a resident of Manitoba and was served in Manitoba, whilerule 17 deals with service outside of Manitoba and rule 17.06 deals with setting aside service outside of Manitoba. Subrule 17.06(2) doesnot contain words that limit its application to a party who has been served outside of Manitoba, but it must be read in the context of rule17 as a whole which deals specifically with service outside of Manitoba.

Further, subrule 17.06(2) refers back to subrule 17.06(1), whichapplies only where there has been service outside Manitoba, stating that “[a] party who has been served with an originating processoutside Manitoba may move ….” This wording would appear to exclude Joseph for the reasons set out above. 17 That said, Joseph is still entitled to raise the issue of whether there is a more convenient forum in which this matter should belitigated. Sopinka J., writing for the court, stated as follows in Amchem Products Inc. v. British Columbia (Workers’ CompensationBoard), (SCC), [1993] 1 S.C.R. 897 (at p. 920): ….

It seems to me that whether it is a case for service out of the jurisdiction or the defendant is served in the jurisdiction, theissue remains: is there a more appropriate jurisdiction based on the relevant factors. …. 18 Thus, while subrule 17.06(2) does not appear to apply, Joseph can still proceed with his motion alleging that Manitoba is notthe forum conveniens. 19 While Joseph maintained his position, on appeal, that he was asking for the executors’ claim to be dismissed, he stated thathe would also be satisfied with an order staying the proceedings. 3.

THE MOTION JUDGE’S REASONS 20 The motion judge relied on the decision of the Supreme Court of Canada in Amchem as setting out the principles to beapplied by a motion judge to determine which forum would be the most convenient.

The principles on which he relied, as found in thatdecision, are as follows: - the choice of an 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 connection with the action and the parties; - where the defendant is served in the jurisdiction, the issue is whether there is a more appropriate jurisdiction based on the relevantfactors; - the existence of a more appropriate forum must be clearly established to displace the forum selected by the plaintiff; and - where no one forum is most appropriate, the domestic forum would win by default and would refuse a stay, provided it is anappropriate forum. 21 The motion judge found, applying this court’s decision in Craig Broadcast Systems Inc. v.

Magid (Frank N.) Associates Inc.(1998), (MB CA), 123 Man.R. (2d) 252 at para. 31, that the onus is on the moving party to satisfy the court that theforum is not a convenient forum, and that the only way to meet that onus is to satisfy the legal test that there is another forum clearlymore appropriate. 22 The motion judge then considered the factors that are used to assess a claim of forum non conveniens, finding the followingto have been relevant in this case: the location (residence) of the majority of the parties; the location of key witnesses and evidence; thedesirability of avoiding a multiplicity of proceedings and conflicting decisions in different courts; the substantive law to be applied to theissues and its weight in comparison to the factual questions to be decided; geographical factors suggesting the natural forum; and anyjuridical advantage to the plaintiffs in Manitoba or any juridical disadvantage to the defendant in Manitoba. 23 The motion judge found that a majority of factors favoured proceeding in Manitoba rather than Jamaica.

He recognized thatthe matter was not to be determined only on a mathematical counting of factors, but on the fairness to the parties. He stated that theissues raised in the action should be dealt with in the same proceeding, and concluded that Joseph’s defence raised essentially factualissues of the type that a Manitoba court is well able to deal with. He found that Joseph had not commenced any proceedings in Jamaicaand that he was unlikely to do so, because the only asset in the estate is the funds that are at issue, which are being held in Manitoba.

Henoted that the essence of Joseph’s defence is that he is entitled to keep the entire amount, while success in overturning the will wouldresult in an intestacy and garner him only one-eighth of Adelaide’s estate. 24 For these reasons, the motion judge concluded that it would not be unfair to require Joseph to defend the claim in Manitoba. He also found that the inconvenience to the executors, if required to litigate in Jamaica, would outweigh the inconvenience to Joseph ofhaving to defend the claim in Manitoba.

In the end, he was not satisfied that Jamaica was clearly a more appropriate forum, with theresult that the domestic forum, being an appropriate forum, won by default. 4. THE POSITIONS OF THE PARTIES The Appellant’s Position

25 Joseph argues that the following facts are clear: - the executors reside outside of Manitoba; - the executors are nominal representative individuals without assets in Manitoba; - the damage was sustained in Jamaica; - all of the evidence will come from Jamaica; - the jurisdiction in which the factual matters arose is Jamaica; - the residence of the parties except for Joseph is outside of Manitoba; - Adelaide’s will which gives rise to the litigation, was prepared and executed in Jamaica; - the applicable law pertaining to the will and all factual matters relating to the estate are Jamaican; - there is no real and substantial connection with Manitoba; - all witnesses are from outside the Province of Manitoba; - as many as ten of Joseph’s witnesses are resident in Jamaica; and - the singular and only basis for the executors suing in Manitoba is that Joseph is ordinarily resident in Manitoba; there is no otherbasis. 26 Joseph argues that the only connection that the matter has to Manitoba is the fact that he, the defendant, is resident here.

Heargues that the residence of the other siblings is irrelevant because they are not parties and have no evidence to give. 27 He argues that all of the key witnesses reside in Jamaica and that the executors’ solution of having them testify by videoconference is not satisfactory because the Manitoba court cannot compel their attendance and it would have no control over a reluctantwitness. 28 Joseph’s position is that the motion judge was wrong to conclude that a Jamaican court would not entertain the executors’claim as there was no evidence on which to base such a conclusion. 29 He also argues that the motion judge’s logic on the issue of juridical advantage was problematic because it referred to apostjudgment advantage regarding the execution of the judgment and not to any advantage gained or lost in the litigation itself.

Hisposition is that this assessment of juridical advantage is wrong. 30 Finally, he argues that the motion judge’s exercise of discretion was based on the inappropriate selection of facts, bad logicand faulty analysis and, therefore, was clearly wrong in law and should be reversed. His position is that there is no connection toManitoba, no Manitoba witnesses will testify, and that it is Jamaica that has the closest connection because that is where the witnessesreside.

The Respondents’ Position 31 The executors argue that the facts of their case support the jurisdiction of the Manitoba courts: Joseph resides in Manitoba;the property at issue is located in Manitoba; the property is under seizure and being held by the court in Manitoba; the allegedmisappropriation took place in Manitoba; and the motion judge made a discretionary decision that Manitoba is the forum conveniens. 32 The executors point out that it is the issues in the statement of defence that provide the basis for overturning the decision ofthe motion judge.

They argue that Joseph’s choice of forum would have the executors commence the proceedings in Jamaica, wherenone of the parties reside, where the funds at issue are not located and where there is no guarantee that Joseph would attorn to thejurisdiction of the courts. Further, they point out that Joseph has taken no steps, to date, to challenge the validity of Adelaide’s will. This, they argue, makes sense given that the estate has no assets other than the money at issue.

It makes more sense to attack theentitlement of the estate to the funds at issue rather than the validity of a will governing an estate without value, apart from these funds. 33 The executors agree that the motion judge considered the correct law and the appropriate factors. They argue, however, thathe made the decision between the competing fora sound closer than it should be. They rely on the following statement from AntaresShipping Corporation v. The Ship “Capricorn” et al., (SCC), [1977] 2 S.C.R. 422 at 448, which was noted with approvalby Sopinka J. in Amchem (at p. 919): ….

In my view the overriding consideration which must guide the Court in exercising its discretion by refusing to grant such anapplication as this must, however, be the existence of some other forum more convenient and appropriate for the pursuit of the action andfor securing the ends of justice. …. 34 The executors argue that, while the motion judge considered the relevant factors, he erred by treating them as being equalwhen they are not and in failing to weigh them properly. They argue that this error arose from the motion judge’s failure to take intoaccount the principle set out in Young v.

Tyco International of Canada Ltd., 2008 ONCA 709, 92 O.R. (3d) 161, in which Laskin J.A.,

for the majority on this point, states as follows (at paras. 33-34): But, on some motions ─ and this is one of them ─ the efficiency and fairness considerations at the heart of the forum nonconveniens test will be tied inextricably to the factual issues in dispute. On these motions, the motion judge will have no choice but toaddress the competing versions put forward by the parties. In doing so, the motion judge should accept the plaintiff’s version as long asit has a reasonable basis in the record.

Accepting the plaintiff’s version where warranted should not inhibit the motion judge fromassessing all the evidence in the record and finding facts regarding the forum non conveniens factors themselves. Where the evidence isdisputed the party relying on a fact supporting the application of a factor in its favour will bear the evidential burden of establishing thatfact: see Frymer v. Brettschneider (1994), (ON CA), 19 O.R. (3d) 60, [1994] O.J. No. 1411 (C.A.), at para. 60.

However, the important point is that at this preliminary stage of the action, the motion judge’s assessment and weighing of theforum non conveniens factors should be based on the plaintiff’s claim if it has a reasonable basis in the record, not on the defendant’sdefence to that claim.

This approach makes sense to me because the ultimate question is whether an Ontario court should takejurisdiction over the plaintiff’s claim. 35 The executors argue that, in this case, this approach should result in the factors found favourable to them being given moreweight and the factors favourable to Joseph being given little weight. 36 On the location of the parties, the executors point out that Joseph is a resident of Manitoba and, therefore, it should suit hisconvenience to have the matter litigated here.

While they are not residents of Manitoba, the executors have a strong preference to havethe matter litigated here. Three other siblings with an interest in the proceedings are residents of Manitoba, while none of the siblingsare residents of Jamaica. 37 On the location of the witnesses and evidence, the executors argue that their key witnesses will be Lenworth and possibly asolicitor from England. The remaining issues are those raised by Joseph in his defence, which, the executors admit, will require that bothparties call witnesses from Jamaica in addition to the siblings.

According to the executors, this factor should be considered from theperspective of their case, as set out by Laskin J.A. in Young. They argue that a decision to move the litigation to Jamaica would frustratethem in the presentation of their case and would be contrary to the admonition in Young that the various factors should be weighed inaccordance with the plaintiff’s claim.

They argue that this factor should be favourable to them rather than neutral. 38 On the factor of the desirability of avoiding a multiplicity of proceedings and conflicting decisions in different courts, theexecutors argue that the motion judge was correct to question whether a court in Jamaica would accept jurisdiction to hear the matter.

They argue that the motion judge failed to emphasize that Manitoba is the only jurisdiction that will enable them to “secure the ends ofjustice” or that this factor outweighs any and all factors that may be found in Joseph’s favour. 39 On the factor of the law to be applied, the executors argue that, the motion judge having found that “a Manitoba court couldapply Jamaican law to the factual questions that will have to be decided” (at para. 26), this factor is of little weight compared to thosefactors that favour Manitoba as the appropriate forum. 40 On the factor of the geographical factors suggesting the natural forum, the executors agree with the motion judge’sconclusion that they tend to favour Jamaica because the factual matters appear to have arisen in Jamaica as regards the execution of thewill and any renovations to Adelaide’s house and Joseph’s house.

The executors argue that, in finding that this factor favoured Joseph,the motion judge failed to follow Young, in that he did not consider these factors from the perspective of the plaintiff’s claim rather thanfrom the defendant’s defence. 41 On the factor of any juridical advantage to the executors or disadvantage to Joseph in Manitoba, the executors take theposition that it is crucial that the monies continue to be held in court to remain as security for the claim being advanced by them and thatthis factor, which is absolutely critical, was not given sufficient weight by the motion judge.

They rely on the decision in AntaresShipping, in which Ritchie J. found the fact that Canada was the only jurisdiction in which the plaintiff could obtain an effectivejudgment as being a principal factor in determining the issue of forum non conveniens. They argue that this factor is so important in thiscase that it trumps all other factors. 42 The executors argue, in conclusion, that the motion judge made a discretionary decision that was a rational conclusion on theknown facts and in accordance with the decided cases. As such, they argue that there is no basis to overturn the decision. 5.

ANALYSIS The Validity of Adelaide’s Will 43 In his defence, one of the grounds on which Joseph is opposing the executors’ claim is that the will is invalid. Thisallegation is not a defence to the claim, as the estate will have a claim to the funds whether there is a valid will or an intestacy; rather, itsrelevance to this proceeding is that it challenges the executors’ authority to act on behalf of the estate.

If Joseph is successful and thewill is found to be invalid, Lenworth and Pearlitia will cease to be the executors of the estate and will have no authority to administer theestate and, in particular, they will have no standing to pursue this litigation on behalf of the estate. In the event that there is no other will(which I understand to be the case), a court would have to appoint an administrator to act as Adelaide’s personal representative toadminister the estate.

It is this person who would be required to continue with this litigation regarding these funds. 44 Given that this defence challenges the executors’ legal capacity to pursue this litigation, it cannot be resolved as part of thislitigation, as the litigation must be brought by a person(

s) or an entity entitled to act on behalf of the estate. 45 Further, there would be little economy in having one proceeding to determine the validity of both the will and the allegeddebt, even if it were possible. The Jamaican witnesses identified by Joseph who would testify regarding the validity of the will are notthe same people as the Jamaican witnesses who would testify as to the debts that he alleges are owed to him. The factors relevant to thelitigation with respect to the validity of the will, such as the location of the witnesses and evidence, the determination and application of

the proper law and the substantive legal principles, are not relevant to the determination of the entitlement of the estate to the funds in question. The law regarding the validity of the will is completely different from the law regarding entitlement to the funds. In

summary, the two are separate matters. 46 At the present time, Lenworth and Pearlitia have been confirmed as the executors of Adelaide’s estate by a grant of probate issued by a court in Jamaica. Once they have their grant of probate confirmed in Manitoba, they can continue with this litigation as the personal representatives of the estate until such time as they are removed by a court of competent jurisdiction. As I understand it, no application that could result in the removal of the executors has been made at the present time.

Even if such an application is made, this claim is preserved by rule 9.03(5) of the Queen’s Bench Rules , which states as follows: General Power 9.03(5) A proceeding by or against a deceased person or an estate shall not be treated as a nullity because it was not properly constituted, and the court may order that the proceeding be reconstituted by analogy to the provisions of this rule.

Forum Non Conveniens 47 Both parties agree, as do I, that the motion judge referred to the relevant authorities and identified the appropriate criteria (see paras. 20-22 of these reasons). - the facts and factors 48 Joseph argues that the motion judge’s “analysis and factual considerations which he made were so wrong that this Court must conclude that there was a significant misapprehension of the evidence or for other reasons his decision is clearly wrong.” While Joseph has listed several facts and factors that he argues are clear (see para. 25 of these reasons), there are a number of errors and, when considered closely, some are irrelevant to this matter. 49 Those errors that are irrelevant to this matter, particularly when one is choosing between Manitoba and Jamaica as the appropriate forum, are as follows: - the executors reside outside of Manitoba – they also reside outside of Jamaica, as does Joseph; further, they are prepared to attend in Manitoba for the trial, which is where they have counsel and where they prefer to proceed; and - the executors are nominal representative individuals without assets in Manitoba – they will still be nominal representatives of the estate if the matter proceeds in Jamaica, and there is no evidence that they have any assets in Jamaica either. 50 The facts and factors that, notwithstanding Joseph’s argument to the contrary, are not clear are as follows: - the damage was sustained in Jamaica – if the reference is to the damage alleged in the claim, it is arguable that it occurred in Manitoba, which is where the funds are being held and where Joseph is refusing to pay them to the estate; - all of the evidence will come from Jamaica – the parties are likely to testify, as will one other sister who lives in Texas, and they do not live in Jamaica; likewise, any evidence regarding Rupert’s estate and Joseph’s administration of that estate, including his claim for the repayment of his expenses related to the administration of Rupert’s estate, will come from the solicitors in England; - the jurisdiction in which the factual matters arose is Jamaica – while the facts relevant to the defence arose in Jamaica, the issues and the evidence regarding the funds at issue and the failure to pay those funds to Adelaide’s estate arose in England and in Manitoba; - the residence of the parties, except for Joseph, is outside of Manitoba – in fact, in addition to Joseph, three other siblings reside in Manitoba, two others reside elsewhere in Canada and two in the U.S.A., while none live in Jamaica; - there is no real and substantial connection with Manitoba – Joseph resides in Manitoba, the funds are located here, and Joseph’s refusal to pay the money to Adelaide and, later, to her estate occurred in Manitoba; and - the singular and only basis for the executors suing in Manitoba is that Joseph is ordinarily resident in Manitoba; there is no other basis whatsoever – the residence of the defendant is often an important factor in determining the appropriate forum, but, in addition, the fact that the funds are located in Manitoba and have been paid into court pending a determination of the litigation is stated, by the executors, to be the most important factor, trumping all others, for the proceedings to continue in Manitoba. 51 Finally, the fact that the issue of the validity of Adelaide’s will must be resolved in separate proceedings means that all of the issues related thereto, such as the location of the witnesses and the proper law governing the validity of the will, are not relevant factors in determining the issue of forum non conveniens regarding the estate’s entitlement to the funds in question and Adelaide’s alleged indebtedness to Joseph. - location of the witnesses 52 While some of the witnesses are located in Jamaica, not all of them are.

The executors, Joseph, any siblings who would testify and, if necessary, a solicitor from England are not located in Jamaica. 53 Joseph has identified two Jamaican witnesses who would testify on the issue of the debt related to the renovations to his home in Jamaica and that of his mother, which is his second basis of defence to the claim. Further, he stated that none of them had given him any assurance that they would give evidence as an accommodation for him and it would be his plan to subpoena them to testify. 54 The motion judge dealt with this issue in his reasons.

He noted that, in this day and age, facilities exist to permit the taking of evidence by video conference, which obviates the need for witnesses to travel to the actual location of the trial and that, in this case,

cross-examination had already been conducted by video conference. 55 Joseph is arguing before us that there is no facility for the court to require the witnesses to attend to give their evidence or tocontrol a recalcitrant or reluctant witness.

The motion judge stated that there was evidence that it is possible for witnesses in Jamaica tobe subpoenaed to testify in these proceedings by video conference, and this was not contradicted at the hearing before us. 56 Further, there is no evidence to suggest that the proposed witnesses are either adverse to Joseph or likely to be reluctant totestify if subpoenaed to do so. According to Joseph’s affidavit of October 5, 2009, Roy Graham had pertinent conversations withAdelaide and delivered labour and materials to his (Joseph’

s) home and that of Adelaide, while Alfie Grant was a contractor whodelivered work and materials to the homes of both him (Joseph) and Adelaide and who has evidence about Joseph’s financialarrangements with Adelaide. 57 The motion judge concluded that both parties will be inconvenienced by having witnesses who are either required to travel orto testify by way of video conference and he found this factor to be neutral as between the parties.

His conclusion on this issue is neitherwrong nor unreasonable. - a Jamaican court would refuse to hear this matter 58 Joseph argues that the motion judge was wrong to conclude that a Jamaican court would refuse to hear this claim in Jamaica. The motion judge did not find that a Jamaican court would refuse to hear the executors’ claim; rather, he stated that, while a Manitobacourt could hear the claim, there is no evidence that a Jamaican court would do so, given that the defendant is not ordinarily resident inJamaica and the breach arguably occurred outside of Jamaica.

To this one must add the fact that the funds in issue are in Manitoba andnot in Jamaica. 59 In any event, this was not an important factor for the motion judge. It was considered in relation to the question of avoiding amultiplicity of proceedings. More important to that issue is his finding that, if the matter were litigated in Jamaica, that would not endthe matter because there is no reciprocal enforcement legislation that would permit a Jamaican judgment to be recognized in Manitoba.

In the result, if the executors were successful in obtaining a judgment in Jamaica, they would likely have to re-litigate in Manitoba toobtain a judgment enforceable in Manitoba.

This would almost certainly result in two proceedings, while proceeding in Manitoba wouldresult in one judgment that could be enforced against the funds currently being held in court in Manitoba. 60 The motion judge did not commit any error or come to an unreasonable conclusion regarding this issue. - juridical advantage 61 Joseph argues that the motion judge’s reference to juridical advantage is wrong as it refers to a postjudgment advantage andnot to any advantage gained or lost in the litigation itself. 62 The issue of recovery on a judgment as a factor in determining the issue of forum non conveniens was considered in theAntares Shipping case.

The only connection that that case had to Canada as it related to one of the defendants, Delmar, was the fact thatthe asset in question, a ship, had been seized in Canada and the Canadian courts were holding a bond that had secured the release of theship. Ritchie J., for the majority, stated that there were two factors that weighed heavily in favour of a finding that Canada was theappropriate forum for the trial.

One of those factors was the likelihood of recovery against Delmar, on which he stated as follows (atp. 455): As I have stated, Delmar’s sole asset was the ship and the only fund now available anywhere to respond to a judgment againstthat Company is the bail bond in the Federal Court. This is a money action in addition to being an action for possession of the ship andthere is a joint and several claim against the respondent Company which would probably exceed $2 million.

The record discloses noother jurisdiction in which recovery could be had against Delmar in the event of the appellant’s success in this action and the selection ofany other forum would involve following the ship and commencing new proceedings against it if it could be found in a more convenientjurisdiction. 63 This court also held in Aikmac Holdings Ltd. v. Loewen (1989), (MB CA), 66 Man.R. (2d) 295, that (atpara. 5): …. There is a very real legitimate personal or juridical advantage to the plaintiff in proceeding against the defendant in Alberta.

Prejudgment garnishment is available to it in that province to secure, as far as may be possible, the potential judgment it may obtainagainst the defendant. That kind of remedy, it would seem, is a legitimate juridical advantage. ….

The injustice to the plaintiff ofdepriving it of that advantage is not outweighed, in the circumstances of this case, by the inconvenience or expense to the defendantresulting from the concurrent proceedings in the two jurisdictions. 64 While Joseph refers to a “postjudgment advantage,” it is clearly the same advantage that is referred to in Antares Shippingand Aikmac Holdings, being the availability of prejudgment garnishment or the taking of other pretrial security to secure assets of thedefendant before judgment and having those assets available to satisfy, on a postjudgment basis, a judgment that is granted in the matter. 65 It is clear that a postjudgment advantage consisting of prejudgment garnishment is a legitimate juridical advantage and,therefore, the motion judge was correct in considering it as a factor relevant to the determination of the issue of forum non conveniens inthis matter. 6.

CONCLUSION – FORUM NON CONVENIENS

66 Joseph failed to satisfy the motion judge that Jamaica was clearly a more appropriate forum than Manitoba. This is a discretionary decision, and appellate interference is justified only if the motion judge committed a reversible error of fact or law or arrived at a decision so clearly wrong as to amount to a truly unjust result. 67 The parties agree, as do I, that the motion judge considered the proper authorities and applied the correct legal principles.

Further, Joseph has failed to establish that the motion judge committed a reversible error of fact or arrived at a decision that was so clearly wrong as to amount to a truly unjust result.

Therefore, appellate intervention in the motion judge’s decision is not warranted. 68 Having come to this conclusion, it is not necessary to consider or comment upon the executors’ argument that the motion judge erred in failing to give the factors the proper weight because he failed to take into account the principle set out in the Young case (see para. 34 of this decision), or its application to the factors at issue in this matter. IV.

THE CROSS APPEAL REGARDING COSTS 69 There were two motions before the motion judge – the first being Joseph’s forum non conveniens motion, and the second being his motion for security for costs. The motion judge dismissed the first motion and granted the second. When the executors asked for an order of costs following their success on the first motion, the motion judge ordered that, as success was divided, there would be no award of costs to either party. 70 The executors have appealed that cost order on the basis that the first motion was vital to the proceedings and the more important motion.

They also argue that they did not fail on the second motion as they acknowledged that the court had jurisdiction to grant the order, but that it should be in a modest amount or not at all. 71 They argue that the basic practice is to grant costs to the successful party on a forum non conveniens motion and that the motion judge should have granted them costs in this matter, or at least order that the costs follow the cause. 72 The granting of costs is a discretionary decision, so the standard of review is the same as that applicable to the appeal of the decision regarding the forum non conveniens motion (see paras. 10-12 of these reasons). 73 The executors have not satisfied me that there is a basic practice to grant costs to the successful party on a motion regarding forum non conveniens .

While that was the outcome in the five cases to which they referred, in none of those cases were there any reasons given for the awarding of costs. I accept that costs are usually awarded to the successful party, but those cases do not stand for any more than that. The executors have not pointed to any precedents that would indicate that the motion judge erred in the exercise of his discretion. 74 While I do not think that I would have come to the same decision as did the motion judge, that is not the standard of review.

He made no reversible errors of fact or law, and his decision is not so clearly wrong as to amount to a truly unjust result. I would, therefore, not grant the cross appeal and overturn his decision on costs. V. DISPOSITION OF THE APPEAL 75 For the above reasons, I would dismiss both the appeal and the cross appeal. 76 I would award costs on the appeal to the executors according to the tariff. __________________________ J.A. I agree: __________________________ J.A. I agree: ____________________________ J.