¶ 1 WOOLRIDGE J.: This is a three-part interlocutory application (inter partes) by the Defendant, Informix Corporation, that this action be dismissed pursuant to Rule 14.24(1)(a) for failing to disclose a reasonable cause of action as against the Defendant by the following three of the five Plaintiffs: Robert Alteen, Ren White, and William Chipp.
I. PLEADINGS DISCLOSE REASONABLE CAUSE OF ACTION?
¶ 2 In the first of these applications, the Defendant asserted that the Plaintiffs' pleadings alleged that the Defendant issued false and misleading statements which artificially inflated the stock price of the Defendant's common shares. Because three of the five Plaintiffs alleged in the Amended Statement of Claim filed that they purchased shares prior to the date of the alleged misrepresentation by the Defendant, the Defendant moved to strike out the claims of the three Plaintiffs, Alteen, White and Chipp.
¶ 3 However, at the hearing of this application before me the Plaintiffs alleged that there had been a mistake made in para. 9 of the Amended Statement of Claim, whereby references to "December, 1996" should have read "December, 1995", and "December 2, 1996" should have read "December 2, 1995". After hearing submissions of both counsel, I accepted the assurance of Monaghan, Q.C. that a genuine mistake had occurred, and I allowed an amendment to para. 9 of the Amended Statement of Claim accordingly.
¶ 4 That disposed of the first of the three applications because the amended dates now show that none of the Plaintiffs purchased shares prior to the date of the alleged misrepresentation.
II. SITUS OF THE TORT
¶ 5 Should the Statement of Claim be dismissed for want of jurisdiction on the part of this Court?
¶ 6 The Plaintiffs allege in paras. 10 and 11 of the Statement of Claim that the Defendant company issued false and misleading statements regarding its current and future operations from early December 1996 until April 1, 1997.
¶ 7 The Defendant acknowledges it issued press releases concerning its software product "Universal Server" and its earnings expectations for the first quarter of 1997.
¶ 8 However, the Defendant also asserts the following:
1. It never issued public statements to the Canadian financial or business press.
2. It did not solicit the Plaintiffs' investment and never made statements to them.
3.There was no contact directly between the Plaintiffs and Defendant.
4. The Defendant's shares were not traded on any Canadian exchange. The shares of the Defendant are traded on the NASDAQ Exchange in the U.S.A., and all public disclosure is made with the Securities and Exchange Commission (SEC) of the United States of America.
¶ 9 Hence, the Defendant argues Canada does not have jurisdiction to deal with this claim which, accordingly, should be dismissed for want of jurisdiction, because the law to be applied in torts is the law of the place where the activity occurred.
¶ 10 The Plaintiffs reply that the situs of the tort is the place where the damage is suffered, which in this case is Canada. Poirier v. Williston (1988), 113 D.L.R. (3d) 252, affirmed 118 D.L.R. (3d) 576 (Ont. C. of A.).
¶ 11 In some instances, damage can be suffered in more than one place. The jurisdictional test for the place of a tort has been held to be the place where the damage is suffered, is assumed to be the place where the tort is committed so long as it was reasonably foreseeable that the product would be used or consumed where the plaintiff used or consumed it. Moran v. Pyle National (Canada) Limited,  S.C.R. 393 (Sask.).
¶ 12 Each of the individual Plaintiffs purchased the shares of the Defendant within the jurisdiction of Newfoundland where the Defendant no doubt could have reasonably foreseen that shares in the Defendant company would have been purchased. The Plaintiffs allege that the Defendant was well aware of the fact that Canadian citizens and, in particular, citizens within the jurisdiction of Newfoundland, purchased shares of the Defendant company, and so long as the Defendant had this knowledge, it could have reasonably foreseen that its actions could have resulted in damages to the stockholders. The Plaintiffs' damages, which are outlined in the Plaintiffs' Statement of Claim, were obviously suffered within the jurisdiction of Newfoundland.
¶ 13 The Plaintiffs allege that the investing public were misled by the Defendant's financial performance in that the means by which the Defendant communicated its financial performances were through internationally accessible mediums. Public documents such as SEC filings, securities analysts' reports, and advisories about the company, press releases issued by the company, and media reports about the company, were all available to the Plaintiffs as a means of determining the financial future of this company. When the Defendant made these research tools available to the investing public, and, in particular, Newfoundland investors, they ran the risk of having legal action initiated against them should any of these financial performance claims be shown to have been made negligently or in such a manner as to be intentionally misleading. As to the Defendant's claim that it never made or issued any public statements to the Canadian financial or business press, the Plaintiffs state that any information disseminated by the various news wires and through the Internet are often picked up in news stories by the Canadian financial or business press.
¶ 14 Since the shares in question were purchased in Newfoundland, a fact the Defendant could have reasonably foreseen, following which they are alleged to have declined in value due to misdeeds of the Defendant, the jurisdictional test for the place of a tort is assumed to be the place where the tort is committed and damage suffered.
¶ 15 I conclude that this Court does have jurisdiction to try the case. Hence, the application for dismissal for want of jurisdiction fails.
III. FORUM NON CONVENIENS
¶ 16 The third and final portion in this application is a request that the within action be dismissed on the basis of forum non conveniens. This term refers to discretionary power of a court to decline jurisdiction when convenience of parties and the ends of justice would be better served if action were brought and tried in another forum. The doctrine is patterned upon the right of the court in the exercise of its powers to refuse the imposition upon its jurisdiction of the trial of cases even though the venue is properly laid if it appears that for the convenience of litigants and witnesses and in the interest of justice the action should be instituted in another forum where the action might have been brought. The application of the doctrine rests in the sound discretion of the Court. Black's Law Dictionary (5th.ed.), p. 589.
¶ 17 In support of its application the Defendant argues as follows.
¶ 18 The Defendant is a corporation duly incorporated under the laws of the State of Delaware in the United States, and its headquarters is situate at Menlo Park, California, U.S.A.
¶ 19 The Defendant is a publicly-traded company on the NASDAQ Stock Exchange in Washington, D.C., U.S.A.
¶ 20 All of the Defendant's executive officers and members of its board of directors reside in the United States.
¶ 21 The Defendant has limited operations in Canada, maintaining only five sales offices and employing approximately 30 people in total in British Columbia, Alberta, Ontario and Quebec. It has no operations or offices in Newfoundland. In contrast, the Defendant employs more than 2,300 people in the United States through its 50 offices, and almost 4,000 people worldwide through its 120 offices.
¶ 22 Only $220.00 US of the Defendant's products were sold directly to any customers residing in Newfoundland in both 1997 and 1996, representing less than .003 percent of the Defendant's total revenues for those years.
¶ 23 All other securities actions, including numerous class actions which include all securities purchases made during the time period when the Plaintiffs purchased stock in the Defendant, have been filed in state and federal courts in Northern California.
¶ 24 The Defendant has offered, but the Plaintiffs have refused to be included in the federal class action referred to herein.
¶ 25 The Defendant states the Plaintiffs joining in the class action suit will provide both the Plaintiffs and Defendant with the advantages of cost savings and avoiding duplicitous actions.
¶ 26 The Plaintiffs reply as follows. In order for a contract clause to give exclusive jurisdiction to a particular court, the clause must expressly state in specific terms the particular jurisdiction as exclusive jurisdiction. In the absence of such a clause, the court where either party resides may have concurrent jurisdiction with the jurisdiction referred to in the jurisdictional clause. McKinley Motors Ltd. v. Honda Canada Inc. (1985), 55 Nfld. & P.E.I.R. 170 (Nfld. S.C.) at paras. 2 and 6; Khalij Commercial Bank Ltd. v. Woods (1985), 17 D.L.R. (4th) 358 (Ont. H.C.) at pp. 360 and 361.
¶ 27 Provided that an applicant can establish that provisions of a contract truly confer exclusive jurisdiction, the court still has the discretion to refuse an application for a stay of proceedings. Section 97(1) of the Judicature Act, R.S.N. 1990, c. J-4 provides that, "The Court may direct a stay of proceedings pending before it."
¶ 28 When considering if it is appropriate to exercise their discretion, courts look to the plaintiff to establish that it is just to have the action proceed in their jurisdiction. In this regard, courts look at the following factors:
(a) where the evidence is situate I assume the bulk of the evidence of any alleged wrongdoing is situate in the United States, but sufficient quantities of it have reached Canada and Newfoundland as the 54-page Plaintiffs' Memorandum of Law makes plain. Accordingly, evidence is situate in both jurisdictions.
(b) whether foreign law applies, and, if so, whether the foreign law is different from the law of the present jurisdiction The Plaintiffs suggest, and I agree, that there is probably little, if any, difference in general terms between the corporate law of the United States of America as opposed to that of Canada. Certainly the attitude of courts in both countries to the fraudulent misrepresentations alleged must be very similar.
(c) with which countries the parties are connected Clearly, the Plaintiffs are connected with Canada and the Defendants with the U.S.A.
(d) whether the defendant genuinely desires trial in that foreign country or are only seeking procedural advantages I believe it would be decidedly to the advantage of the Defendant if the Plaintiffs were required to prosecute their case in the U.S.A.
(e) whether the plaintiffs would be prejudiced by having to sue in the foreign court
It is plain from its Pleadings that the Defendant is anxious to avoid trial in Canada. The whole tenor of the three original applications before me (now reduced to two) is to strike out on procedural or jurisdictional grounds the whole of the Plaintiffs' pleadings at this preliminary stage in order to avoid trial on the merits for technical reasons. In general terms, it is always preferable that a cause of action be dealt with on its merits within a reasonable time and at the least prejudice to both sides.
¶ 29 The Plaintiffs propose that Newfoundland is the proper forum for this proceeding and that by making shares available to Canadian citizens, the Defendant has opened itself to having to defend proceedings in Canada when it commits a tort against Canadian citizens.
¶ 30 The Plaintiffs ask for an order that the within proceeding continue in the jurisdiction of Newfoundland, naming the Newfoundland courts forum conveniens for this matter.
¶ 31 I believe that on these facts the Plaintiffs have made a clear case, as in the McKinley Motors case, (supra), that the Newfoundland Trial Division has at least concurrent jurisdiction to try this case.
¶ 32 The arguments of the Defendant that the subject matter of the case is substantially connected to a U.S. jurisdiction are impressive. However, in the exercise of my discretion I am more impressed with the arguments raised by the Plaintiffs at paras. 99 and 100 of its Memorandum, namely:
1. By making the shares available to Canadian citizens, the Defendant has opened itself to defend proceedings in Canada, if and when it commits a tort against a Canadian citizen;
2. Given the ease by which Canadian citizens can obtain reports originating from the Defendant, the Defendant could have reasonably foreseen that foreign investors would have access to and would consult such reports put out by the Defendant in deciding whether or not to purchase shares of the Defendant corporation.
¶ 33 Accordingly, I decline to exercise my discretion by dismissing the Plaintiffs' action before this Court. I find the Trial Division of the Supreme Court of Newfoundland to be forum conveniens for this action.