In the recent decision in Greta Inc. v. de Lange, the Ontario Court of Appeal held that even where a defendant has never been to Canada and holds no assets in Canada, if an act in furtherance of a conspiracy in which they are alleged to have participated is committed in Ontario, then that is sufficient for an Ontario Court to assume jurisdiction over them.1
In March, 2009, the plaintiff Greta Inc. entered into a contract with Prosperity International LLC, a Florida corporation controlled by one defendant, Michael Burgess, pursuant to which Prosperity agreed to provide Greta with financing for the development of a wind turbine project in Estonia. The contract, which was governed by Ontario law, required Greta to provide an initial deposit of €2 million to Prosperity prior to Greta being provided with any financing, and for Prosperity to provide Greta with collateral for its initial deposit.
In June 2009, meetings occurred in Toronto between Greta and Burgess. During these meetings, the parties amended the contract such that Greta agreed to transfer the initial deposit of €2 million, without being provided with immediate collateral. Following this, the transfer of the initial deposit went from a Greta bank account in Dubai into another Dubai bank account in the name of Innovatis Asset Management SA, an Austrian company 50% owned by the appellant/defendant and South African resident, Robert de Lange. de Lange then received in his personal bank account approximately €423,000 of the Greta's monies, transferred from Innovatis Asset Management at the direction of Burgess.
Ultimately, the initial deposit was never returned to Greta, nor did Greta ever receive any funding for the project. Burgess was investigated and pled guilty in the United States to conspiracy to commit wire fraud and money laundering for his involvement in this transaction and other crimes.
Greta commenced proceedings against de Lange in Ontario. On a motion to stay or strike the claim against de Lange for lack of jurisdiction, the judge at first instance concluded that Ontario had jurisdiction due to: 1) the meetings in Toronto, which were alleged to have been acts in furtherance of a conspiracy between Burgess and de Lange; and 2) the contract connected with the dispute was made in Ontario.
In dismissing de Lange's appeal, the Court of Appeal held that, "... the renegotiation of the contract, which clearly took place in Toronto, was itself an act in furtherance of the conspiracy and sufficient to locate the conspiracy in Ontario."
This decision is an example of the willingness of Ontario Courts to assume jurisdiction over a foreign defendant, who apart from his involvement in the alleged conspiracy, has no other apparent connection to Ontario. This decision also provides some clarity with respect to how a plaintiff alleging conspiracy can satisfy one of the presumptive factors, being a tort committed in Ontario, in order for an Ontario Court to assume jurisdiction over that dispute.
1 Counsel for Greta were Thomas Dunne Q.C. and Mark Crane of Gowlings.
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