COURT OF APPEAL FOR ONTARIO

2016 ONCA 15

DATE: 20160108

DOCKET: C60748

Juriansz, Hourigan and Brown JJ.A.

BETWEEN

Tyoga Investments Ltd.

Plaintiff (Respondent)

and

Service Alimentaire Desco Inc.

Defendant (Appellant)

John M. Picone and Pamela Sidey, for the appellant

Colleen Butler and Peter McKenna, for the respondent

Heard and released orally: January 4, 2016

On appeal from the order of Justice Guy P. DiTomaso of the Superior Court of Justice, dated June 11, 2015.

ENDORSEMENT

[1] The appellant seeks to set aside the order of the motion judge that dismissed its motion for a stay of proceedings on the basis that the Ontario courts lack jurisdiction over the dispute between the parties, or alternatively, that Ontario is forum non conveniens, and that validated the service of the statement of claim in Québec.

[2] The appellant is a Québec corporation and the respondent is an Ontario corporation. They had a contractual relationship by which the respondent imported chicken from the United States into Ontario under its federally granted quota, and then sold that chicken to the appellant in Québec. The appellant processed that product, together with product from other sources including its own quota, and sold the processed product throughout Canada, both directly and through distributors.

[3] The motion judge found that the parties entered into a contract made in Ontario in 2009 and renewed annually on the same terms subject to a change in the respondent’s fees which fluctuated based on market conditions. He found that that contract, as renewed in 2013, was the contract connected with the dispute. The motion judge also found that the appellant carried on business in Ontario and that the appellant had not satisfied its onus of rebutting the presumption of a real and substantial connection between the claim and Ontario. The motion judge then went on to conclude that the appellant had not established that Québec was a clearly more appropriate jurisdiction to try the action.

[4] On appeal, the appellant submits that the contract that governs the dispute was made in 2013 and that contract and the 2009 contract were both made in Québec in any event. The appellant recognizes it sells its product in Ontario, but submits its business of selling product in Ontario is not related to the contract.

[5] We find it unnecessary to set out these arguments in any detail. Suffice it to say, they are all predicated on findings of fact and findings of mixed law and fact. We are not persuaded that the motion judge made any palpable and overriding errors. In our view, there is sufficient evidence in the record to support his findings.

[6] The appellant’s argument that Québec is the clearly more appropriate forum also fails, as it is largely premised on the same alleged errors the appellant advanced on its jurisdictional argument. It follows that the motion judge properly validated the service of the claim outside Ontario.

[7] The appeal is dismissed. Costs are fixed in the amount of $10,000 all-inclusive as agreed by counsel.

“R.G. Juriansz J.A.”

“C.W. Hourigan J.A.”

“David Brown J.A.”