CITATION: Apotex Inc. v. Ivax Pharmaceuticals S.R.O., 2007 ONCA 549

DATE: 20070801

DOCKET: C46350

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O., ARMSTRONG and BLAIR JJ.A.

BETWEEN:

APOTEX INC.

Plaintiff (Respondent)

and

IVAX PHARMACEUTICALS S.R.O.

Defendant (Appellant)

Jonathan Stainsby and Mark Edward Davis for the appellant

D.E. Lederman and B. Hackett for the respondent

Heard & Endorsed: June 29, 2007

On appeal from the order of Justice Belobaba of the Superior Court of Justice dated November 1, 2006.

APPEAL BOOK ENDORSEMENT

[1] We agree with the motion judge that the dispute does not arise “in connection with” the Confidentiality Agreement and therefore that the arbitration clause did not apply.

[2] On the jurisdictional issue, we are satisfied, for the reasons given by the motion judge, that there is a real and substantial connection between Ontario and the subject matter of the action, having regard to the principles laid down in Morguard Investments and Muscutt.

[3] A judge is entitled to considerable deference with respect to his or her determination of the forum conveniens issue. Here, the motion judge considered and weighed all the relevant considerations as set out in Eastern Power. The appellant quarrels with the manner in which the motion judge did so, but it was the motion judge’s call to make and we can find no basis for interfering with his findings and decision in this regard.

[4] The appeal is therefore dismissed.

[5] Costs to Apotex are fixed in the amount of $10,000 inclusive of GST and disbursements.