By Max R. S. Hufton, April 2011
The British Columbia Court of Appeal has shut and bolted the door on forum shopping in its decision Dembroski v. Rhainds, 2011 BCCA 185, released on April 14, 2011. The appellant was a resident of British Columbia on a work trip to Alberta at the time of the car accident. The respondents were residents of Alberta and Quebec. The appellant filed a law suit in British Columbia pleading that because she continued to suffer income loss and general damages in British Columbia she was entitled to file suit here. Mr. Justice Truscott found British Columbia had no territorial competence to try the case and dismissed the action. Mr. Justice Truscott’s order was the matter under appeal.
The Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 sets out in two distinct sections the factors to be applied when answering the sequential questions of: first; whether a court has territorial competence to hear a matter (this is fact based and non-discretionary); and, second; if, and only if, a court has been found to have competence, whether the court should exercise its discretion to assume that competence or defer to another jurisdiction better suited to doing so. This appeal concerned only the first step of the analysis.
The appellant sought a ruling that the British Columbia court had territorial competence to try this case on several grounds. First, the Court was asked to find that the plaintiff’s case fell within one of the rebuttable presumptions of territorial competence set out in sections 10(h) or (l) of the CJPTA. Section 10(h) presumes competence over a proceeding that “concern[s] a business carried on in British Columbia.” Section 10(l) presumes competence over a proceeding that “is for the recovery of taxes or other indebtedness and is brought by the government of British Columbia or by a local authority in British Columbia.” The appellant argued that her claim concerned a business as the accident had impacted her ability to work. She further argued that because she was required to include in her pleadings a claim pursuant to the Health Care Costs Recovery Act, S.B.C. 2008, c.27 she met the criterion of section 10(l). The Court disagreed on both counts noting that to accede to those submissions would “be to place a very strained construction upon those sections of the statute.”
Second, the Court was asked to find, pursuant to section 3 of the CJPTA, that there was a real and substantial connection between British Columbia and the facts on which the appellant’s proceeding was based. The essence of the appellant’s position was: I live here and I continue to experience loss here therefore I should be allowed to file my action here.
The Court charted the trend in the applicable jurisprudence noting that it appeared to “support the thesis that the mere residence of a plaintiff in this jurisdiction will not found jurisdiction in a British Columbia court.”
Turning to other jurisdictions the Court noted that underpinning the CJPTA was “the expectation that enactment of the CJPTA would consistently foster an orderly and uniform approach to taking jurisdiction”. The Court noted, however, that there exists already a divergence of interpretation between the appellate courts of British Columbia and Nova Scotia. The Nova Scotia Court of Appeal decision in Bouch v. Penny, 2009 NSCA 80, found jurisdiction in Nova Scotia to hear a case arising in the context of alleged medical negligence surrounding the prenatal care and delivery of an infant which occurred in an Alberta Hospital.
The Court resolved this apparent divergence with reference to the fact the court in Bouch relied heavily on the Ontario Court of Appeal case Muscutt v. Courcelles (2002), 213 D.L.R. (4th) 577 (C.A.), to find jurisdiction. Subsequently, in Van Breda v. Village Resorts Ltd., 2010 ONCA 84, the Ontario Court of Appeal distanced itself from Muscutt and adopted an approach more consistent with the factors found in the CJPTA. The British Columbia Court of Appeal noted specifically of Van Breda that the court there stated “it would no longer be appropriate to found a presumption of jurisdiction on the basis of ‘damage sustained in Ontario’”. Additionally, the approach in Bouch was expressly disagreed with by the Newfoundland and Labrador Court of Appeal in Fewer v. Ellis, 2011 NLCA 17. In short, the British Columbia approach is prevailing throughout Canada.
With reference to the British Columbia authorities the Court noted “the place where the damage occurred via contact with the item was the crucial factor that underpinned the assumption of jurisdiction.” The place where the damage occurred would appear to remain the crucial factor. Here it was Alberta.
Accordingly, the Court dismissed the appeal.
Max R. S. Hufton
Associate Lawyer in Insurance Law & Litigation
LK Law – Vancouver Office