



COURT OF APPEAL FOR ONTARIO

CITATION: Parque Industrial Avante Monterrey, S.A. de C.V. v. 1147048 Ontario
  Ltd., 2017 ONCA 311

DATE: 20170413

DOCKET: C62905

Weiler, Benotto and Roberts JJ.A.

BETWEEN

Parque Industrial Avante
    Monterrey, S.A. de C.V.

Plaintiff

and

1147048 Ontario Ltd. and Advantage Engineering
    Inc.

Defendants

AND BETWEEN

1147048 Ontario Ltd. and Advantage Engineering
    Inc.

Plaintiffs by
    Counterclaim

(Respondents)

and

Prodensa Servicios de
    Consultoria, S.A. de C.V.
and
CK Techonologies, LLC

Defendants by
    Counterclaim

(
Appellant
)

Marcos Cervantes Laflamme, for the appellant

Pavle Masic, for the respondents

Heard and released orally: April 10, 2017

On appeal from the order of Justice S.N. Lederman of the Superior
    Court of Justice, dated September 30, 2016, with reasons reported at
2016 ONSC 6004
.

ENDORSEMENT

[1]

The appellant appeals the dismissal of its
    motion. The appellant sought to stay the respondents counterclaim on the bases
    that Ontario lacks jurisdiction over the counterclaim, Ontario was not the
    convenient forum for the adjudication of the counterclaim, and Ontarios
    jurisdiction was ousted by the arbitration clause agreed to by the parties. The
    appellant did not appeal the motion judges
forum conveniens
finding.

[2]

Following the framework set out by the Supreme
    Court of Canada in
Van Breda v. Village Resorts Ltd.
, 2012 SCC 17, [2012] 1 S.C.R. 572
, the
    motion judge found that there were two presumptive connecting factors tying the
    counterclaim to Ontario. First, applying
Central Sun Mining Inc. v. Vector
    Engineering Inc.
, 2013 ONCA 601, 117 O.R. (3d) 313, the tort of fraudulent
    misrepresentation as pleaded in the counterclaim was committed in Ontario
    because the appellants impugned misrepresentation had been made to and relied
    upon by the respondents in Ontario. Second, the contract, based on the wording
    of the Memorandum of Understanding, as well as evidence of the other elements
    of the contractual matrix of the parties relationship, was made in Ontario.

[3]

The arbitration clause was in a draft Shelter
    Services Agreement that was never signed by the parties. Further, the motion
    judge had before him evidence from the respondents that, it became apparent
    that there was no confirmation that anything had been agreed upon. The motion
    judge held that the parties had never agreed to the arbitration clause as a
    term of their contractual relationship.  As a result, the motion judge
    determined that the clause did not apply to oust Ontarios jurisdiction in
    relation to the counterclaim.

[4]

We see no error in the motion judges factual
    findings or legal conclusions.  He applied the correct legal tests. He was
    entitled to prefer the evidence of the respondents to that of the appellant. It
    was open to him on the record to determine, first, that the respondents had
    made out an arguable case that the two presumptive connecting factors existed
    and were not clearly rebutted by the appellant; and second, that they had not
    agreed on an arbitration clause to govern any disputes. There is no basis to
    interfere with his decision.

[5]

For these reasons, we dismiss the appeal.

[6]

As agreed, the respondents are entitled to costs
    of $11,500, inclusive of disbursements and HST.

K.M.
    Weiler J.A.

M.L.
    Benotto J.A.

L.B.
    Roberts J.A.


