DATE: 20060216

DOCKET: C43689

COURT OF APPEAL FOR ONTARIO

RE:

KENNETH SHARP and K.B. SHARP LTD. (Plaintiffs/Respondents) v. SHERMAG INC. (Defendant/Appellant)

BEFORE:

DOHERTY, MOLDAVER and JURIANSZ JJ.A.

COUNSEL:

Jonathan Dye

for the appellant

Brian Bellmore

for the respondents

HEARD & ENDORSED:

February 16, 2006

On appeal from the order of Justice MacKenzie of the Superior Court of Justice dated May 17, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] The motion judge applied the correct law in considering whether there was presence-based jurisdiction founded on his finding that the appellant was carrying on business in Ontario. We cannot disturb his finding of fact as it is supported by the evidence.

[2] The parties agree that the motion judge failed to consider the second issue, that is whether Ontario was the forum conveniens. They both submit that this court should decide that issue.

[3] As the jurisdiction is presence-based, the onus is on the appellant to show that Quebec is clearly a more appropriate forum than Ontario. Both counsel have concisely and effectively taken us through the relevant factors to be addressed in deciding whether Ontario is the forum conveniens. We are not persuaded that Ontario is not the forum conveniens. There are factors favouring both jurisdictions, however, we would stress three factors: the respondent did his work for the appellant in Ontario, was “fired” in Ontario and seeks to lead evidence from several Ontario residents.

[4] The appeal is dismissed. Costs to the respondent on a partial indemnity basis fixed at $6,458.52, inclusive of disbursements and GST.