Bank of Nevis International Limited (BONIL) appealed the dismissal of its lawsuit in Ontario against Mark Kucher and BNI Holdcorp Ltd., arguing that the case should not be moved to Nevis.
The case involves allegations by BONIL against Kucher, its former Vice-President of Investments, regarding breach of confidentiality and defamation linked to an investment agreement for purchasing shares in BONIL.
Key Points:
The agreement included a Forum Selection Clause mandating that disputes be settled exclusively in Nevis. The Superior Court enforced this clause, moving the case from Ontario to Nevis.
BONIL contended that the clause did not apply to Kucher, who was not a party to the agreement, and that defamation claims were separate from the investment agreement.
The Court of Appeal upheld the motion judge’s decision, emphasizing that defamation was tied to the investment agreement breach and Kucher could be treated akin to BNI due to his control over it.
Outcome:
The appeal was dismissed. The court supported the original decision to enforce the Forum Selection Clause and the use of Nevis as the appropriate forum based on the connection of the parties and the nature of the disputes.
The respondents were entitled to their partial indemnity costs of the appeal, amounting to $25,000, which was to be paid from the $25,000 security deposited by the appellant. They were also entitled to an additional $50,000, previously posted by the appellant as security for the costs of the underlying motion, to be paid out of court.
