Court File and Parties

CITATION: York-Med Systems Inc. v. Canadian Commercial Arbitration Centre, 2010 ONCA 632

DATE: 20101001

DOCKET: C51671

COURT OF APPEAL FOR ONTARIO

Weiler, Laskin and Goudge JJ.A.

BETWEEN

York-Med Systems Inc.

Applicant (Appellant)

and

Canadian Commercial Arbitration Centre

Respondent (Respondent)

Counsel: Michael Simaan, for the appellant Christopher J. Cosgriffe, for the respondent

Heard: September 22, 2010

On appeal from the judgment of Justice P. Theodore Matlow of the Superior Court of Justice dated January 14, 2010.

Endorsement

By The Court:

[1] The motion judge decided that he would “decline to assume jurisdiction”. We read this as reflecting his view that while he could have assumed jurisdiction he was exercising his discretion to decline to do so. On the material before him, the doctrine of forum non conveniens invites such an exercise. Had the motion judge decided that he did not have jurisdiction simpliciter he would have said that.

[2] We see no basis for interfering with his exercise of discretion. There was ample basis for it on the material before him. The respondent is in Quebec and its evidence comes from Quebec. Importantly the dispute is an incident of the underlying arbitration dispute taking place under Quebec procedural law and solidly rooted in that province. We would therefore not disturb that part of paragraph 1 of the order appealed from that permanently stays the Application.

[3] However we see no basis for the balance of paragraph 1 and paragraphs 2 and 3. That relief was not sought by the respondent and is hard to square with the motion judge declining jurisdiction. We would therefore set aside the words in paragraph 1 following the word “stayed” and all of paragraphs 2 and 3.

[4] To that limited extent the appeal is allowed. It is otherwise dismissed.

[5] We cannot leave this matter without underlining the respondent’s offer to reinstate the counter claim on payment by the appellant of what it owes under the two revised requests for advance provided by the respondent. While this is a larger sum than that sought in the original request for advance, the difference is explained. Moreover, under the respondent’s rules it would seem very doubtful that the appellant could successfully complain about the increase in any event. Such a practical solution would allow the parties to the underlying arbitration to get at their real dispute without spending time and money on what is at very best a very tangential matter.

[6] In light of its only partial success the respondent is entitled to only modest costs fixed at $2000 inclusive of disbursements and applicable taxes.

RELEASED: OCT 01 2010 (“K.M.W.”)

“K. M. Weiler J.A.”

“John I. Laskin J.A.”

“S. T. Goudge J.A.”