Court File and Parties

Citation: Roadtrek Motorhomes Ltd. v. Aralex Acoustics Ltd., 2010 ONCA 878

Date: 2010-12-21

Docket: C52247

Court of Appeal for Ontario

Before: Goudge, Cronk and Epstein JJ.A.

Between:

Roadtrek Motorhomes Ltd. Plaintiff / Appellant

and

Aralex Acoustics Ltd. Defendant / Respondent

Counsel: Paul H. Starkman, for the appellant Michel Castillo, for the respondent

Heard: December 14, 2010

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

Endorsement

[1] The motion judge based his decision on his conclusion that the appellant could not bring its claim within Rule 17.02(f). He found that the contracts in issue were made not in Ontario, where the appellant is based, but in British Columbia, where the respondent is based, because they were formed when the respondent received a copy of its various quotations signed by the appellant.

[2] Unfortunately, the motion judge proceeded on an erroneous factual basis. The appellant did not sign and return the respondent’s quotations. Rather, it responded with its own and different counter offers, for example, to purchase a smaller number of goods at a slightly higher price than was quoted by the respondent. These counter offers were accepted by the respondent by its delivery of the goods to the appellant in Ontario. The legal consequence of this is that the contracts sued upon were made in Ontario. They were also to be performed in Ontario by the delivery of the goods. Thus, Rule 17.02(f) is applicable and creates the presumption that there is a real and substantial connection with Ontario.

[3] The other factors relevant to the jurisdiction analysis do not support the displacement of this presumption. Many do the reverse. This is an interprovincial case, not an international one. Ontario courts would recognize a British Columbia judgment on comparable facts. No other parties are involved, nor is there any unfairness to the respondent if the Ontario court takes jurisdiction. This is especially so given the fact that the respondent was engaging in commerce in Ontario by selling into this market.

[4] We therefore disagree with the motion judge. We would find that the appellant has established the necessary real and substantial connection for the Ontario court to take jurisdiction.

[5] We also conclude that the respondent cannot show that there is a more appropriate forum. On the record, the majority of witnesses are here. The damages to be proven arose here. The contracts were concluded here. The appellant carries on business here, and the respondent sells into this market. This is the convenient forum.

[6] The appeal must therefore be allowed, the order below set aside and the motion dismissed.

[7] Costs to the appellant in the amount of $5,000 for the motion and $5,000 for the appeal, both including disbursements and applicable taxes.

“S. T. Goudge J.A.”

“E. A. Cronk J.A.”

“G. E. Epstein J.A.”