COURT OF APPEAL FOR ONTARIO
DATE: 20061101
DOCKET: C45294
RE: COMSTOCK CANADA LTD. (Plaintiff/Respondent) and FABRICATING ENGINEERS, INC., FABRICATING ENGINEERS COMPANY, FEI COMPANY, 8018 EMBURY CORP., UTICA ENTERPRISES, INC., STEFAN WANCZYK, THOMAS J. CARTER, JOHN COOPER, LARRY D. BEARDSLEE, DENNIS LUCAS AND DENNIS ZABINSKI (Defendants/Appellants)
BEFORE: LASKIN, MacPHERSON AND LANG JJ.A.
COUNSEL:
Eric Kay
for the appellants
Daniel J. Leduc
for the respondent
HEARD & ENDORSED: November 1, 2006
On appeal from the order of Justice Charles T. Hackland of the Superior Court of Justice, dated March 21, 2006.
A P P E A L B O O K E N D O R S E M E N T
[1] The appeal cannot succeed. There was ample evidence to support the factual findings of the motion judge that the parties never reached a meeting of the minds on either an arbitration clause or a choice of laws provision.
[2] We also agree with the motion judge that the transfer motion was premature. The statement of defence had not yet been filed and it was unclear who the witnesses would be. In those circumstances, it was not possible to say where would be the most convenient venue.
[3] Accordingly, the appeal is dismissed. Costs of $5,000 plus G.S.T. and disbursements to the respondent to be paid out of the monies held as security for costs.