





CITATION: Wielgomas v. Anglocom Inc., 2011 ONCA 490



DATE: 20110704


DOCKET: C53157


COURT OF APPEAL FOR ONTARIO


MacPherson, Juriansz and Karakatsanis JJ.A.


BETWEEN


Wieslaw Wielgomas


Plaintiff (Appellant)


and


Anglocom Inc. and Caisse Populaire
          Desjardins De Quebec


Defendant (Respondent)


Monika A. Liberek, for the appellant


Mary Delli Quadri, for the respondent


Heard and released orally: June 29, 2011


On appeal from the judgment of Justice Andra Pollak of the
          Superior Court of Justice, dated December 2, 2010.


ENDORSEMENT

[1]

This is an appeal from an order of the Honourable Justice A. Pollak
    rendered on December 2, 2010, staying the action because the court lacked
    jurisdiction
simpliciter
. In the action, the appellant, a resident of
    Ontario, alleged he had been injured by ice that fell from the premises owned
    and occupied by the respondent Caisse Populaire Desjardins de Québec.
[2]

He was first hospitalized in Quebec, and has been attended to by a
    number of physicians in Ontario after his return home.
[3]

The motion judge found that the appellant had not met his burden of
    establishing that his action had a real and substantial connection with
    Ontario. We agree.
[4]

The evidence the appellant tendered that the respondent was a member of
    a group of companies, some members of which operate and advertise in Ontario
    and all of whom may have the same treasurer, was insufficient proof that the
    respondent itself operates in Ontario.
[5]

Though the appellants financial position was not pressed in oral
    argument here, the motion judge did consider, in effect, whether Ontario was
    the forum of last resort given his financial position. The motion judge
    considered that the appellant has no assets, and very little money, but
    concluded that he could commence proceedings in Quebec, though it might be
    difficult for him to do so. She observed that there was no evidence that
    proceeding in Quebec would be more expensive than in Ontario.
[6]

The motion judge correctly concluded that the appellants financial
    position, and the damages that he did continue to suffer in Ontario, would not
    on their own establish a real and substantial connection. She observed that it
    would be unfair to force an entity that had absolutely no connection whatsoever
    to the Province of Ontario to mount a defence in Ontario instead of Quebec.
[7]

The motion judge applied the legal principles that apply in Ontario,
    weighed the evidence appropriately and arrived at the correct decision.
[8]

The appellant contends that the motion judges costs award of $25,547.28
    was not proportionate to the nature of the motion.
[9]

We agree. The motion judge recorded the costs of the two parties which
    reflect, roughly, a 4:1 proportion of moving party/responding party effort. She
    did not then consider this large discrepancy and instead simply ratified every
    penny of the moving partys request. We cannot see any basis for such a large
    discrepancy in the costs sought by the two parties.
[10]

Moreover, although the motion judge recognized and considered the responding
    partys precarious financial position in her reasons on the motion, she did not
    mention this as a factor in her costs analysis.
[11]

Accordingly, we grant leave to appeal on the issue of costs, allow the
    appeal on that issue, and reduce the costs award by half, to $12,750.
[12]

In all other respects, the appeal is dismissed.
[13]

The respondent is entitled to its costs of the appeal fixed at $5,000
    inclusive of disbursements and HST.
J.C.
    MacPherson J.A.
R.G.
    Juriansz J.A.
Karakatsanis
    J.A.