Court File and Parties

Citation: Lilydale Cooperative Limited v. Meyn Canada Inc., 2008 ONCA 126 Date: 20080221 Docket: C47129 Court of Appeal for Ontario MacPherson, Lang and MacFarland JJ.A.

Between:

Lilydale Cooperative Limited Plaintiff (Respondent)

and

Meyn Canada Inc., Mey-Can Equipment Ltd., Meyn Food Equipment Inc., EMK NV and Elboma Moortgat Konstruktie NV Defendants (Appellants)

Counsel: Robert B. Cohen for the appellants Jamieson Halfnight for the respondent

Heard: February 14, 2008

On appeal from the Order of Justice G.F. Day of the Superior Court of Justice dated February 13, 2007.

Appeal Book Endorsement

[1] The appellant appeals from the order of Day J. dated 13 February 2007 in which he refused to grant a stay of these proceedings on the basis of forum non conveniens.

[2] The substantive issues in the action revolve around the cause of a fire at a plant owned by the respondent in Edmonton, Alberta. The respondent brought actions in both Alberta and Ontario that are essentially identical. The appellant brought a motion to stay the Ontario proceedings. The motion judge refused the order.

[3] The appellant’s principal argument is that the motion judge overemphasized the factor of loss of judicial advantage if the respondent was not entitled to proceed in Ontario and thereby sanctioned the respondent’s efforts to engage in “forum shopping”.

[4] We disagree. The appellant’s submission on this issue does not accurately represent the motion judge’s reasons.

[5] The motion judge carefully applied the factors for a forum non conveniens analysis set out in the leading cases, Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), 1993 CanLII 124 (SCC), [1993] 1 S.C.R. 897 and Muscutt et al. v. Courcelles et al (2002), 2002 CanLII 44957 (ON CA), 60 O.R. (3d) 20 (C.A.). He concluded that Alberta was not a more convenient forum for the pursuit of the action and, especially (in light of the potential limitation period in Alberta but not in Ontario), “for securing the ends of justice”. It is true that the proper law will need to be determined wherever this action proceeds and that the applicability of the Alberta limitation period might have to be determined by an Ontario judge. The motion judge’s analysis is consistent with this possibility, the determination of which will be made by the trial judge. Accordingly, we can see no error in the motion judge’s weighing of the Amchem and Muscutt factors.

[6] The appellant’s second argument is that the respondent’s evidence about the Alberta limitation period (an affidavit from an Ontario, not an Alberta, lawyer) was insufficient.

[7] We do not think it is open to the appellant to seriously advance this argument. After all, the appellant has formally taken the position in its pleadings in the Alberta action that the Alberta limitation period bars the action (see para. 5 of the Statement of Defence).

[8] In the end, the motion judge identified, assessed and properly balanced all of the relevant forum non conveniens factors. His exercise of discretion in refusing the stay was far removed from being unreasonable or anchored in a wrong principle: see Burtch v. Barnes Estate, [2006] O.J. No. 162 at para. 22 (C.A.).

[9] The appeal is dismissed. The respondent is entitled to its costs of the appeal which we fix at $10,000 inclusive of disbursements and GST.