Mark Edward Davis

The defendants sought leave to appeal an interlocutory order dismissing their summary judgment motion without prejudice and awarding costs to the plaintiff.

The motions judge had dismissed the motion after the defendants attempted to argue the merits of the case, contrary to a prior direction limiting the motion to limitation period and estoppel issues.

The defendants argued they were denied natural justice because the judge refused to release the audio recording of her oral reasons and failed to decide the limitation period issue.

The Divisional Court dismissed the motion for leave to appeal, finding no reasonable apprehension of bias and concluding that the motions judge properly intervened when the defendants attempted to ambush the plaintiff.

The appellant appealed an order dismissing its motion to stay or dismiss the action on jurisdictional grounds.

The Court of Appeal upheld the motion judge's findings that the dispute did not arise 'in connection with' the Confidentiality Agreement, and therefore the arbitration clause did not apply.

The Court also agreed that there was a real and substantial connection between Ontario and the subject matter of the action, and found no basis to interfere with the motion judge's determination that Ontario was the forum conveniens.

The appeal was dismissed with costs fixed at $10,000.