CITATION: Atlas Copco Canada Inc. v. Plate, 2009 ONCA 687
DATE: 20090929
DOCKET: C50122 C50118
COURT OF APPEAL FOR ONTARIO
Weiler, MacPherson and MacFarland JJ.A.
BETWEEN:
Atlas Copco Canada Inc.
Plaintiff/Respondent
And
David Hillier, Dirk Johannes Plate, Leo Caron, Paul Armand Caron, P.A. Caron Courtier D’Assurance Inc. and 3870901 Canada Inc.
Defendants/Appellants
Pearl Rombis, for the appellant Dirk Johannes Plate
Lincoln Caylor and Kirsten A. Thoreson, for the respondent Atlas Copco Canada Inc.
Heard and released orally: September 21, 2009
On appeal from the order of Justice Alexandra Hoy of the Superior Court of Justice dated January 30, 2009.
ENDORSEMENT
[1] At the outset there were two appeals before this court. We were advised that Appeal C50118 which involved the appellants Paul Armand Caron and P.A. Caron Courtier D’Assurance Inc. and the numbered company had resolved wherein the appeal was dismissed and costs fixed in the all inclusive sum of $10,000.
[2] In the present appeal in determining that Ontario had jurisdiction, the motion judge applied the proper test as set out in Muscutt v. Courcelles and considered the relevant factors to determine whether there was a real and substantial connection between Ontario and the action. She concluded there was. The weight she placed on the various factors was not unreasonable and we see no error in her analysis.
[3] The motion judge then went on to consider whether Ontario was the more convenient forum. The appellant concedes in this court that in this regard the motion judge’s conclusion that the onus was upon it was correct. The motion judge then went on to consider the particular facts of the case before her. She considered the applicable law, location of key witnesses and evidence, avoidance of multiplicity of proceedings, any relevant contractual provisions that specified applicable law or jurisdiction, the location of the majority of parties, geographical factors and whether declining jurisdiction would deprive Atlas Copco of a legitimate juridical advantage. She weighed these factors and concluded Ontario to be the more convenient forum. In our view there was no error in her analysis.
[4] The appeal is dismissed.
[5] Costs to the respondent fixed in the sum of $14,000 inclusive of disbursements and GST.
“K.M. Weiler J.A.”
“J.C. MacPherson J.A.”
“J. MacFarland J.A.”