DATE: 20041105

DOCKET: C41696

COURT OF APPEAL FOR ONTARIO

RE: MAJESTIC EMPIRE INCORPORATED (Plaintiff/ Appellant) – and – THE FEDERATION INSURANCE COMPANY OF CANADA, LA SOUVERAINE COMPAGNIE D’ASSURANCE GENERALE AND GERLING CANADA COMPAGNIE D’ASSURANCE (Defendants/Respondents)

BEFORE: WEILER, SHARPE and BLAIR JJ.A.

COUNSEL: Sergio Grillone for the (plaintiff/appellant)

Nadine Nasr for the (defendants/respondents)

HEARD: October 25, 2004

RELEASED ORALLY: October 25, 2004

On appeal from the judgment of Justice Andromache Karakatsanis of the Superior Court of Justice dated March 22, 2004.

E N D O R S E M E N T

[1] The appellant submits that the motions judge erred in failing to take into account Articles 68 and 69 of the Quebec Code of Civil Procedure that provide that an action on insurance policy may be instituted before the court of the domicile of the insured. In our view, Articles 68 and 69 of the Quebec Code of Civil Procedure are not relevant to the issue of forum non conveniens in Ontario. It is undisputed that Ontario has jurisdiction to entertain this action. Such jurisdiction being derived from the law of Ontario and not from the law of Quebec.

Is forum non conveniens according to the law of Ontario?

[1] Nor do we accept the submissions that the motions judge failed to properly weigh the individual factor in the forum non conveniens test. The motions judge carefully refute all of the evidence pertaining to each factor and we are no persuaded that there is any basis upon which we could interfere with the exercise of his discretion. After his detailed consideration of the eight factors, he concluded that the action had, at best, a tenuous connection to Ontario and that “this is a case whose connection is almost totally with the province of Quebec”.

[2] Nor do we see any basis upon which to interfere with the motions judge’s award of costs.

[3] Accordingly, the appeal is dismissed.

“K.M. Weiler J.A.”

“Robert J. Sharpe J.A.”

“R.A. Blair J.A.”