DATE: 20050902

DOCKET: C43056

COURT OF APPEAL FOR ONTARIO

RE: COMMONWEALTH INSURANCE COMPANY (Plaintiff/ Respondent) – and – CANADIAN IMPERIAL BANK OF COMMERCE (Defendant/Appellant)

BEFORE: LASKIN, SHARPE and JURIANSZ JJ.A.

COUNSEL: David R. Byers and Leslie Middaugh for the appellant D. Barry Kirkham and Dominic T. Clarke for the respondent

HEARD & RELEASED ORALLY: August 30, 2005

On appeal from the order of Justice Herman Wilton-Siegel of the Superior Court of Justice dated January 7, 2005.

ENDORSEMENT

[1] We see no basis to interfere with the order of the motions judge dismissing the appellant’s motion to stay this action on grounds of forum non conveniens.

[2] The appellant faces two significant hurdles on this appeal. First, the appellant bore the onus of establishing that there was another forum clearly more appropriate. Second, this was a discretionary decision entitled to deference on appeal. While this court may intervene where there has been an error in principle, the law does not favour appeals from forum non conveniens orders as the result is almost inevitably to add cost and delay to the litigation and postpone resolution of the case on the merits.

[3] In his detailed reasons for judgment, the motions judge carefully canvassed the relevant factors and concluded that Ontario was the proper forum.

[4] We do not agree that he erred in principle by attaching undue weight to the proper law of the contract in the absence of proof that New York law would be different or because he was not in a position conclusively to resolve that issue. The motions judge did not simply leap to the conclusion that because Ontario law would be applied, the case had to be tried in Ontario. As we read his reasons, the motion judge found that as Ontario law was likely the proper law of the contract of insurance, entered in Ontario between two Canadian companies dealing primarily with property in Canada, this was a factor supporting the conclusion that the parties would reasonably look to Ontario as the natural forum for their dispute regarding the settlement and appraisal issues. He was entitled to reach that conclusion on the material before him.

[5] We agree with the appellant that the reasons of the motions judge are not entirely consistent with respect to evidence that might or might not have to be called in relation to the contractual term relied upon by the appellant on the settlement issue. However, we are not persuaded that he clearly erred in finding that evidence might have to be called on that issue. Moreover, the record supports the conclusion that evidence as to the settlement itself would be required and the witnesses pertaining to that issue are in Ontario. Accordingly, we are not persuaded that he erred in his assessment of the location of witnesses and evidence.

[6] Accordingly the appeal is dismissed with costs on a partial indemnity basis in the agreed amount of $12,000.

“J.I. Laskin J.A.”

“Robert J. Sharpe J.A.”

“R.G. Juriansz J.A.”