





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)




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 appellants 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 appellants position.  Although he was not faced with precisely the
    same point that is now before this court, we agree with and adopt the
    application judges 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
Accentuates
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
Asigras
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 respondents 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.


