Court File and Parties

CITATION: Accentuate Ltd. v. Asigra Inc., 2011 ONCA 99

DATE: 20110204

DOCKET: C52347, M39636

COURT OF APPEAL FOR ONTARIO

Sharpe, Blair and Rouleau JJ.A.

BETWEEN

Accentuate Ltd.

Applicant and Responding Party (Respondent in Appeal)

and

Asigra Inc.

Respondent and Moving Party (Appellant)

Counsel:

Igor Ellyn, Q.C. and Evelyn Perez Youssoufian, for the appellant

Pierre Champagne, for the respondent

Heard & released orally: February 2, 2011

On appeal from the order of Justice M.S. James of the Superior Court of Justice dated June 24, 2010.

ENDORSEMENT

[1] The issues on this appeal have been significantly narrowed to the following single issue: Is the appellant entitled to insist that payment of the amount awarded by the arbitrators be made into court to await the determination of the appellant’s claim for costs in the discontinued United Kingdom proceedings?

[2] The appellant submits that it would be contrary to public policy within the meaning of art. 36(1)(b)(ii) of the UNCITRAL Model Law to allow the respondent to enforce the award because the respondent “flouted” the Ontario arbitration by bringing a proceeding in the United Kingdom flowing from the same commercial relationship.

[3] We are unable to accept the appellant’s position. Although he was not faced with precisely the same point that is now before this court, we agree with and adopt the application judge’s analysis at paras. 35 and 36, where he stated:

Even if Accentuate is not entitled to re-litigate the refusal of its claim under the regulations, this conduct does not warrant a refusal by this court to allow Accentuate’s monetary award for damages to become a judgment. This award is final and will not be altered regardless of the outcome of the UK proceeding.

I am not persuaded that Asigra’s concern, even if valid, warrants elevation to a public policy level or that public policy considerations are engaged in these circumstances.

[4] Simply put, in this case there was a legal dispute as to the parties’ legal rights and to the choice of law applicable thereto. The appellant and the arbitrators took one view and the respondent and the UK courts took a different view. That difference does not rise to the level of public policy sufficient to defeat the respondent’s right to enforce the arbitration award within the meaning of art. 36(1)(b)(ii).

[5] All other issues raised on the appeal are now moot.

[6] Accordingly, the appeal is dismissed with costs to the respondent fixed in the amount of $16,025.92 inclusive of disbursements and applicable taxes.

“Robert J. Sharpe”

“R.A. Blair J.A.”

“Paul Rouleau J.A.”