



COURT OF APPEAL FOR ONTARIO

CITATION: Tyoga Investments Ltd. v. Service
    Alimentaire Desco Inc.,
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 respondents 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 appellants 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.


