Court of Appeal for Ontario

Citation: SVB Underwriting, Ltd. v. Fairfax Financial Holdings Limited, 2008 ONCA 7

Date: 20080109

Docket: C46817

Before: MACPHERSON, MACFARLAND and EPSTEIN JJ.A.

Between:

SVB UNDERWRITING, LTD., ON ITS OWN BEHALF AND ON BEHALF OF THE UNDERWRITING MEMBERS OF SYNDICATE 1212 AT LLOYD’S, LONDON FOR THE YEAR OF ACCOUNT 31 MAY 2002 TO 31 MAY 2003, AS LEAD UNDERWRITER AND REPRESENTATIVE OF ALL OTHER SUBSCRIBING UNDERWRITERS UNDER FINANCIAL INSTITUTIONS BOND NO. 823/FD0000493

Applicant/Appellant

and

FAIRFAX FINANCIAL HOLDINGS LIMITED

Respondent/Respondent

Counsel:

Alan C.W. D’Silva and Danielle Royal for the appellant

James C. Tory and Andrew Gray for the respondent

Heard: January 8, 2008

On appeal from the judgment of Justice Alison Harvison Young of the Superior Court of Justice dated January 11, 2007.

APPEAL BOOK ENDORSEMENT

[1] The appellant appeals from the order of Harvison Young J. dated January 11, 2007, in which she stayed the proceedings brought in Ontario by the appellant on the basis of forum non conveniens. The appellant advances two arguments on the appeal.

[2] First, the appellant submits that the motion judge did not apply the “clearly establish” test from Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), 1993 CanLII 124 (SCC), [1993] 1 S.C.R. 897 at 920-21 (S.C.C.). We disagree. The motion judge explicitly cited Amchem and concluded that the applicant “has discharged the heavy burden on it to justify the exercise of this court’s discretion to grant a stay of the Ontario application”. In our view, the formulations “clearly establish” and “discharge the heavy burden” are virtually identical. Moreover, it is clear that the motion judge issued the stay on the basis that New York was the more appropriate forum for the action between the parties.

[3] Second, the appellant contends that the motion judge’s analysis of the Muscutt factors in essence resulted in a single factor – avoidance of multiple proceedings – trumping all the other factors. We disagree. The motion judge explicitly stated that all of the factors needed to be addressed and weighed. She then did this in a comprehensive and balanced fashion. The appellant’s argument on this issue essentially invites us to engage in a factor-by-factor reassessment of the motion judge’s weighing of the factors. We decline to do this: see BNP Paribas ( Canada ) v. BCE Inc. (2007), 2007 ONCA 559, 33 C.B.R. (5th) 163 (Ont. C.A. )

[4] The appeal is dismissed. The respondent is entitled to its costs fixed at $11,000 inclusive of disbursements and GST.