COURT OF APPEAL FOR ONTARIO
DATE: 20040720
DOCKET: C41151
RE: BERND KUHLKAMP (Plaintiff (Appellant)) – and – APERA TECHNOLOGIES INC. and MARIO DUQUET (Defendants (Respondents))
BEFORE: McMURTRY C.J.O., BORINS and FELDMAN JJ.A.
COUNSEL: Peter J. Bishop For the appellant
Daniel Leduc For the respondent
HEARD: July 7, 2004
RELEASED ORALLY: July 7, 2004
On appeal from the order of Justice Bernard Joseph Manton of the Superior Court of Justice dated December 4, 2003 made in Ottawa.
E N D O R S E M E N T
[1] The appellant’s position on this stay application is that the motion judge erred in his application of the test for determining the forum conveniens, or most appropriate forum.
[2] Although the application of the test involves findings of fact based on the record as it exists at this early stage of the proceedings, the appellant invokes the jurisdiction of this court to interfere with the decision of the motion judge on the basis that he erred in concluding that the parties had agreed that the law of the contract was to be the law of Quebec.
[3] We agree that the motion judge did err in making this finding. The written document that contains the choice of law clause was not signed by the parties, nor were its terms carried out. It cannot be said at this stage, that the choice of law clause contained in that document had been agreed upon.
[4] Having found an error by the motion judge, this court is entitled to consider the record and the application of the test for the most appropriate forum to the facts as they appear at this stage.
[5] An Ontario plaintiff is prima facie entitled to commence an action in Ontario as long as Ontario has jurisdiction. There is no issue that Ontario has jurisdiction in this case. The defendant, therefore, has the onus of satisfying the court that the most appropriate forum is another forum, in this case the province of Quebec, and that the Ontario action therefore ought to be stayed.
[6] In this case, many of the factors relied on by the respondent relate to the presence of witnesses and of evidence in Blainville, Quebec, not in Ottawa, Ontario. As these two locations are in close proximity, the factor of convenience plays little role here. The factor that clearly favours the plaintiff, however, is that the contract of employment was to be and was carried out in Ottawa, Ontario, and the defendant carried on its business in Ontario.
[7] In our view, applying all of the factors set out in Eastern Power Limited v. Axienda Comunale Energia and Ambiente (1999), 178 D.L.R. (4th) 409 (Ont. C.A.) at para. 19, the defendant has not demonstrated that Quebec is clearly the most appropriate forum. As a result, the action should continue in Ontario and no stay ought to be granted.
[8] The appeal is therefore allowed and the stay granted by the motion judge is set aside.
[9] Costs of the motion and of the appeal fixed at $7,000 plus disbursements and GST, payable to the appellant.
“R. Roy McMurtry C.J.O.”
“S. Borins J.A.”
“K. Feldman J.A.”