Ontario had closest connection to contract action and was appropriate forum

JURISDICTION

Ontario had closest connection to contract action and was appropriate forum

Plaintiff was business incorporated in Ontario with head office in Toronto, and defendant was business incorporated in Wisconsin with head office in Wisconsin. Plaintiff brought action to collect royalty payments it claimed were due and owing under parties’ contract and sought accounting of all of defendant’s net sales, alleging it failed to provide accurate accounting as required by license agreement. Motion by defendant for order dismissing or staying action on basis court lacked jurisdiction simpliciter or was not convenient forum. Motion dismissed. Defendant clearly carried on business in Ontario, where it had actual physical presence, advertised, and sold products directly related to calculation of royalty payments in dispute. Rebuttable presumption of jurisdiction applied and defendant failed to rebut. Subject matter of litigation was directly related to monies made through defendant’s worldwide sales, which included those in Ontario. Ontario had closest connection to action and was appropriate forum. License agreements were signed by parties in Ontario and Wisconsin, plaintiff planned to call Ontario witnesses while defendant did not provided specifics about intended witnesses. There was no ongoing litigation in Wisconsin to which this action could be joined and no evidence in record regarding why Wisconsin law would apply so presumption was court would apply lex fori. While preamble to original agreement stated it was entered pursuant to Wisconsin law, more recent agreement and amendment contained no forum selection clause, and Ontario could apply foreign law anyway. Defendant did not meet burden to displace plaintiff’s choice of forum.
Orthoarm Inc. v. American Orthodontics Corp. (Mar. 30, 2015, Ont. S.C.J., Firestone J., File No. CV-14-511682) 252 A.C.W.S. (3d) 441.