DATE: 20041206
DOCKET: C41983

COURT OF APPEAL FOR ONTARIO

RE:

MICROVOICE APPLICATIONS, INC. (Plaintiff (Respondent)) – and – ICE CONSULTANTS INC., 1437208 ONTARIO INC., c.o.b. as INO MEDIA and VOICE COURIER TORONTO INC. (Defendants (Appellants))

BEFORE:

ROSENBERG, MOLDAVER and SIMMONS JJ.A.

COUNSEL:

Geoff R. Hall and Rita J. Maxwell

for the appellants

Christopher Stanek

for the respondent

HEARD & ENDORSED:

December 3, 2004

On appeal from the judgment of Justice Romain Pitt of the Superior Court of Justice dated May 18, 2004.

APPEAL BOOK ENDORSEMENT

[1] The motion to quash is dismissed. This case is governed by this court’s decision in M.J. Jones Inc. et al. v. Kingsway General Insurance Company et al. (2003), 68 O.R. (3d) 131.

[2] The appeal is dismissed. As the appellant points out, the question of forum conveniens is not a mathematical exercise. The remarkable features in this case are that the appellant Ontario defendants seek to stay proceedings because they are being sued in Ontario and that while they assert these proceedings are parallel to the U.S. proceedings, their counterpart in the U.S. asserts exactly the opposite. This case is about an accounting involving contracts where the offers were made in this province and where the defendants’ assets are in this province. There is accordingly a clear juridical advantage to the respondents in that the parties to the contracts appear to be these Ontario defendants with assets in Ontario.

[3] Accordingly, the appeal is dismissed. Costs fixed at $6,387.57 inclusive of G.S.T. and disbursements.