DATE: 20051031

DOCKET: C43008

COURT OF APPEAL FOR ONTARIO

RE:

SAMINA NORTH AMERICA INC. (Plaintiff/Appellant) – and – H3 ENVIRONMENTAL II LLC, WOLLMUTH MAHER & DEUTSCH LLP, TIMOTHY GLADDEN, MICHAEL VALENTE, MARY CORDARO AND JEREMY SINGLETON (Defendants/Respondents)

BEFORE:

GILLESE, BLAIR & JURIANSZ JJ.A.

COUNSEL:

Stephen M. Turk for the appellant Samina North America Inc.

Andrew Gray for the respondents H3 Environmental II LLC, Michael Valente, Mary Cordaro and Jeremy Singleton

Lois Roberts for the respondents Wollmuth Maher & Deutsch LLP and Timothy Gladden

HEARD & RELEASED ORALLY:

October 24, 2005

On appeal from the order of Justice Randall Echlin of the Superior Court of Justice dated December 30, 2004.

E N D O R S E M E N T

[1] We find it unnecessary to deal with the appellant’s substantial arguments regarding the validity of the service ex juris and this court’s jurisdiction simpliciter over the action, as the appeal fails on the forum non conveniens issue.

[2] A decision of a motion judge as to forum non conveniens is a discretionary one entitled to deference on appeal.

[3] We see no basis upon which to interfere with the motion judge’s exercise of discretion. There is ample evidence to support his finding that the appellant failed to discharge its burden to demonstrate that Ontario is the forum conveniens. In addition, to the factors that the motion judge set out, we note that there is no evidence that the appellant would be deprived of a legitimate juridical advantage if Ontario declines jurisdiction.

[4] The awarding of costs is a matter of discretion of the court. Leave to appeal a costs order should be granted only sparingly, where the judge proceeded on an erroneous principle. The respondents were fully successful below and entitled to their costs. We see no error in principle.

[5] Accordingly we refuse to grant leave to appeal the costs award.

[6] In the result, the appeal is dismissed. Costs on a partial indemnity scale are fixed in the amount of $2000.00 in favour of H3 Environmental II LLC, Michael Valente, Mary Cordaro and Jeremy Singleton and $5000.00 in favour of Wollmuth Maher & Deutsch LLP and Timothy Gladden inclusive of disbursements and GST.

“E.E. Gillese J.A.”

“R.A. Blair J.A.”

“R.G. Juriansz J.A.”