Court File and Parties

CITATION: Van Damme v. Fairbanx Corp., 2009 ONCA 159

DATE: 20090220

DOCKET: C49142

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Goudge and Epstein JJ.A.

BETWEEN

James Van Damme

Applicant (Respondent in Appeal)

and

Fairbanx Corp.

Respondent (Appellant)

Counsel:

Brian Morris, for the appellant

Brett D. Moldaver, for the respondent

Heard and released orally: February 13, 2009

On appeal from the judgment of Justice Ellen Macdonald of the Superior Court of Justice dated June 16, 2008.

ENDORSEMENT

[1] The appellant seeks to proceed solely with its claim in fraud. The motion judge did not deal with this issue. Accordingly, the decision attracts no deference.

[2] There are two things that link the fraud claim to Ontario. First, through the appellant’s receipt of invoices in Ontario, the alleged harm was suffered here. Second, the alleged fraud arises out of the business dealings between the parties. These dealings are governed by a contract that contains a governing law clause that reads as follows:

This agreement shall be governed and construed pursuant to the laws of the Province of Ontario, Canada. The parties hereby agree that in the event of any litigation arising pursuant to this agreement, the appropriate court for the Province of Ontario, Canada shall be the venue for the resolution thereof.

[3] For these reasons, the appeal is allowed.

[4] Costs of this appeal in favour of the appellants are fixed in the amount of $4,500 inclusive of GST and disbursements.

“W. Winkler C.J.O.”

“Stephen Goudge J.A.”

“G. Epstein J.A.”