BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia personal injury lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims.

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘Court Jurisdiction and Proceedings Transfer Act’

BC Supreme Court Declines Jurisdiction in Out of Province Sexual Abuse Action

July 28th, 2011

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing the jurisdiction of the BC Supreme Court to hear a claim involving alleged sexual abuse which took place out of  Province.

In this week’s case (TC v. AM) the Plaintiff sued her former father in law in the BC Supreme Court claiming he sexually abused her in Montreal. ¬†The Defendant, at all material times, lived in Montreal and continued to reside there when the lawsuit started. ¬†He did not respond to the lawsuit. ¬†The Court¬†ultimately¬†found that no jurisdiction existed to hear this case pursuant to the Court¬†Jurisdiction¬†and Proceedings Transfer Act. ¬†In doing so the Mr. Justice Harvey provided the following reasons:

[8] None of the presumptive categories under s. 10 of the¬†CJPTA apply in these circumstances; however, the language of s. 10 clearly indicates that those categories do not limit ‚Äúthe right of the plaintiff to prove other circumstances that constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based.‚ÄĚ

[9] The common law threshold for a real and substantial connection is high. In Josephson v. Balfour Recreation Commission, 2010 BCSC 603, Loo J. stated:

[79] The real and substantial connection test requires that there be a significant or substantial connection: Beals v. Saldanha, [2003] 3 S.C.R. 416; and UniNet Technologies Inc. v. Communication Services Inc., 2005 BCCA 114.

[10] The jurisprudence in British Columbia suggests that the mere residence of the plaintiff in British Columbia is not sufficient to establish jurisdiction over a defendant resident outside of the province. Something more is required. This was discussed in¬†Dembroski v. Rhainds, 2011 BCCA 185, where Hall J. referred to the decision of Bruce J. in¬†Roed v. Scheffler, 2009 BCSC 731…

[11] This case lacks the additional element, beyond the mere residence of the plaintiff in this jurisdiction, to support a finding that there is a real and substantial connection between British Columbia and the facts on which a proceeding is based. The action concerns allegations of sexual assault in Quebec in relation to a defendant who continues to reside in Quebec. There is not a ‚Äúsignificant connection‚ÄĚ as required by the Supreme Court of Canada in¬†Beals v. Saldanha, [2003] 3 S.C.R. 416.

[12] That the plaintiff suffers damages here is, as was the case in¬†Roed, purely as a result of her residence in British Columbia. As stated by Dickson J. in¬†Moran v. Pyle National (Canada) Ltd.,¬†[1975] 1 S.C.R. 393, and referred to in¬†Dembroski, if the essence of a tort is injury, ‚Äúa paramount factor in determining¬†situs¬†must be the place of the invasion of one‚Äôs right to bodily security.‚ÄĚ That location in this case is Quebec. The motor vehicle scenarios in¬†Roed¬†and¬†Dembroski¬†are analogous for the purposes of determining territorial competence, as they concern tortious conduct in another jurisdiction. The presence of the plaintiff in British Columbia alone does not establish a real and substantial connection in relation to events that occurred in another jurisdiction where the defendant continues to reside.

[13] Accordingly, I dismiss the plaintiff’s application.


BC Court Jurisdiction and Out of Province Collisions

April 18th, 2011

Reasons for judgement were released this week by the BC Court of Appeal demonstrating that it will be a rare circumstance where British Columbia Courts will have jurisdiction over a personal injury trial involving an out of Province collision.

In this week’s case (Dembroski v. Rhainds)¬†the Plaintiff was involved in a car crash in Alberta in 2007. ¬†The Plaintiff was a British Columbia resident and was in Alberta for a short while to do some work as a farrier. ¬† ¬†The Plaintiff was injured and unable to perform her work. ¬†She returned to BC shortly after the car crash. ¬†She had the majority of her treatments in BC.

The Plaintiff sued the alleged at fault motorist for compensation in British Columbia.  The Defendant brought a motion to dismiss the claim arguing that BC Courts lack jurisdiction to preside overthis case.  The Chambers judge granted the motion and dismissed the lawsuit.  The Plaintiff appealed without success.  In dismissing the case the BC Court of Appeal held that there will be very few circumstances where a BC Court will have jurisdiciton over an injury claim involving a foreign collision.  The Court provided the following reasons:

[39] A number of previous cases in this jurisdiction have held that the residence alone of a plaintiff in British Columbia does not suffice to establish jurisdiction over a defendant resident outside of the province.¬† These cases include¬†Jordan v. Schatz¬†and¬†Williams v. TST Porter dba 6422217 Canada Inc., 2008 BCSC 1315, 87 B.C.L.R. (4th) 179.¬† There must be something more, but what is that ‚Äúmore‚ÄĚ?¬† The appellant suggests that since she has suffered damages here and the appellant and several potential witnesses are here, it would be appropriate for the Supreme Court of British Columbia to take jurisdiction over the action.¬† The appellant points to certain language in the above cases of¬†Moran,¬†Jordan,¬†Pacific International Securities Inc.¬†and¬†Teja¬†supportive of the thesis that a British Columbia court should be found to possess jurisdiction¬†simpliciter¬†over the respondents in this case…

[42] Moran and Stanway were both product liability cases in which it was held that the tort occurred in that jurisdiction in which harm accrued to a plaintiff via contact with a defective product.  The harm in each case was caused by an item that harmed the particular plaintiff in the place where that injured party resided.  That sufficed to found jurisdiction over a defendant who did not have any physical presence in such location.

[43] As can be seen from those cases, the place where the damage occurred via contact with the item was the crucial factor that underpinned the assumption of jurisdiction.¬† It seems to me that it was this type of situation that Cumming¬†J.A. had in mind when he observed in¬†Jordan, ‚ÄúClear examples of connecting factors include the residency of the defendant in the jurisdiction or the fact that the tortious act was committed or damages suffered here‚ÄĚ (para.¬†23).

[44] Jordan¬†was a personal injury case arising out of a motor vehicle accident in another province and this Court held that the residence of the plaintiff in British Columbia did not suffice to found jurisdiction.¬† Although the plaintiff in that case was undoubtedly considered to suffer damage from the¬†sequelae¬†of the accident here, the incident causative of this damage occurred in Alberta and that was the place properly clothed with jurisdiction over a tort action.¬†¬†Jordan¬†differs from¬†Moran¬†and¬†Stanway¬†because in those latter cases the harm that resulted in damage was caused by contact between the plaintiffs and harmful objects in the jurisdictions where the respective plaintiffs resided.¬† No such occurrence constituted the foundation of the cause of action in¬†Jordan, hence it was held the British Columbia courts could not properly take jurisdiction…

[51] It may be that Teja, which I observe was also decided prior to the coming into force of the CJPTA, could be viewed as somewhat of an outlier, whose reasoning should not be extended, but it seems to me that its result can be supported on its rather unusual facts.  It was a case with significant connections to British Columbia, since all parties resided here at the time of the accident and the only vehicle involved was registered here.  The defendant also attorned to this jurisdiction (see s. 3(b) of the CJPTA).  In the instant case, the vehicle of the defendants was an Alberta vehicle, and neither defendant had or has any connection to British Columbia.  They are furthermore unwilling to attorn to this jurisdiction, unlike the defendant in Teja.  I consider attornment to have been crucial to the result in Teja, and therefore a significant distinguishing feature between that case and the present litigation.

[52] In my opinion, the decisions of this Court in classes of cases similar to the instant case, such as Jordan, and the recent decisions of the Supreme Court of British Columbia in Roed andWilliams, are supportive of the decision of the chambers judge in the case at bar.  I am in agreement with the conclusion reached by the learned chambers judge and I would dismiss this appeal.


BC Lawsuits and Court Jurisdiction, The "Real and Substantial Connection" Test

May 30th, 2010

If you want to sue somebody in British Columbia one thing that must be considered is whether the BC Supreme Court has jurisdiction to hear the case. ¬†With few exceptions, a Defendant can’t be sued in the BC Supreme Court unless they live here, consent, or if there is a “real and substantial connection” between British Columbia and the subject of the lawsuit. ¬†Reasons for judgement were released earlier this week applying this test.

In this week’s case (Broman v. Machida Mack Shewchuck Meagher LLP) the Plaintiff was injured in a 2004 motor vehicle collision in Alberta. ¬†He hired a BC lawfirm to help him with his claim. ¬†That lawfirm told him he ought to sue in Alberta. ¬†The BC lawfirm then hired an Alberta lawfirm to assist with the lawsuit.

Ultimately the Plaintiff was displeased with the result reached. ¬†The Plaintiff alleged that his lawyers did not sue all the entities they should have and this compromised his rights. ¬†The Plaintiff brought a lawsuit against the various lawyers in the BC¬†Supreme¬†Court. ¬†The Alberta defendants challenged the lawsuit arguing that the BC Supreme Court does not have the¬†jurisdiction¬†to hear the claim. ¬† Madam Justice Kloegman agreed and ordered that the lawsuits be transferred to Alberta. ¬†In reaching this conclusion the Court provided the following reasons explaining why the BC Supreme Court did not have a ‘real and substantial‘ connection with the facts underlying the lawsuit:

[25]¬†¬†¬†¬†¬†¬†¬†¬†One of the stated purposes of the CJPTA is to bring Canadian jurisdictional rules into line with the principles laid down by the Supreme Court of Canada in¬†Morguard Investments Ltd. v. De Savoye,¬†[1990] 3 S.C.R. 1077.¬† In¬†Morguard¬†at 1108-1109, La Forest J. observed that reasonable limits must be placed on the exercise of jurisdiction against defendants served outside of a province if the courts of other provinces were to be expected to recognize each other‚Äôs judgments.¬† He did not define the ‚Äúreal and substantial connection‚ÄĚ test, but remarked that it was not intended to be a rigid test. It should simply capture the idea that there must be some limits on the claims to jurisdiction.¬† He noted that the principles of order and fairness required consideration of the interest of the parties.¬† He concluded that the approach of permitting suit where there is a real and substantial connection with the action provided a reasonable balance between the rights of the parties,

[26]        When I apply the concept of order and fairness in deciding jurisdiction in the cases before me, I must side with the Albertan defendants.  They did not come to British Columbia looking to perform services for which they may be responsible to answer for in a British Columbia Court.  The plaintiff and SHB sought them out in Calgary where they practiced and where they would have expected to answer for any deficiencies in their service.  On top of that, it would be more orderly (and undoubtedly safer) for an Alberta Court, which would be more familiar with Alberta standards of practice, the legislation and law governing motor vehicle accident injury awards in Alberta, claims on the Fund, and Alberta limitation periods, to decide the issues in dispute.

[27]        S. 6 of the CJPTA has no application because the Alberta Court of Queen’s Bench is a court of competent jurisdiction and is available to try these matters, without being inordinately inconvenient to Mr. Borman and SHB.  Therefore, I am transferring both of these proceedings to Alberta where they can be litigated together.  In doing so, I am well aware that Mr. Broman would ordinarily be entitled to sue his British Columbia lawyers in British Columbia.  However, as I stated earlier, at the heart of both these actions is the conduct of MM, not SHB.  There is nothing in the pleadings or the evidence before me to suggest that SHB are liable to Mr. Broman except vicariously for any negligent conduct of MM.  It would be impractical to hive off Mr. Broman’s claims against SHB from the rest of the action and I see no reason to do so.

[28]        Therefore the defendant MM shall have an order transferring the entirety of both the Vancouver and New Westminster actions to Calgary, Alberta pursuant to Part 3 of the CJPTA.  The details of the order required to ensure the effective transfer of the proceedings to Alberta can be spoken to if counsel cannot agree.

You can click here to read my other posts discussing the BC Court Jurisdiction and Proceedings Transfer Act and the Jurisdiction of the BC Supreme Court.


More on the Jurisdiction of BC Courts and Out Of Province Car Crash Cases

February 13th, 2010

Further to my post yesterday discussing this topic another case was released today by the BC Supreme Court discussing the jurisdiction of the British Columbia Courts in relation to out of province motor vehicle collision tort claims.

In today’s case (Sooparayachetty v. Fox) 8¬†separate¬†plaintiffs were apparently involved in an Alberta motor vehicel accident. ¬†The Defendants were Alberta residents. ¬†Some of the Plaintiffs were BC Residents and others were resident in the UK. ¬†All of the Plaintiff’s brought lawsuits in both Alberta and BC with respect to their injuries.

The Defendant’s brought a motion to dismiss the claim arguing that the BC Court had no jurisdiction to preside over the lawsuit. ¬†Master Scarth, sitting in the Vancouver Registry, agreed with the Defendants and dismissed the BC lawsuits. ¬†In coming to this conclusion the Court reasoned as follows:

[13] The Court of Appeal has recently confirmed that the question of jurisdiction is to be determined exclusively by the substantive rules set out in the¬†Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (‚ÄúCJPTA‚ÄĚ):¬†¬†Stanway v. Wyeth Pharmaceuticals Inc., 2009 BCCA 592, at para. 12.

[14] Section 3 of the CJPTA sets out the circumstances in which a court has territorial jurisdiction as follows:

A court has territorial competence in a proceeding that is brought against a person only if:

(a)        that person is the plaintiff in another proceeding in the court to which the proceeding in question is a counterclaim,

(b)        during the course of the proceeding that person submits to the court’s jurisdiction,

(c)        there is an agreement between the plaintiff and that person to the effect that the court has jurisdiction in the proceeding,

(d)        that person is ordinarily resident in British Columbia at the time of the commencement of the proceeding, or

(e)        there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.

[15] Section 10 of the CJPTA sets out a list of circumstances that presumptively constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based for the purposes of s. 3(e).  A plaintiff who is unable to bring herself within the statutory presumptions may nevertheless prove other circumstances which constitute a real and substantial connection.

[16] The plaintiffs rely on s. 3(e) of the¬†CJPTA ‚Ästreal and substantial connection between British Columbia and the facts on which the proceeding against the defendants is based.¬† In this case, the presumptive circumstances in section 10 of the¬†CJPTA¬†do not apply.¬† It is therefore for the plaintiffs to establish that there is the real and substantial connection necessary to found jurisdiction…

[20] While ‚Äúreal and substantial connection‚ÄĚ has not been defined, the cases provide some guidance as to what connections are insufficient to found jurisdiction.

[21] It is clear that the fact that a plaintiff is resident in British Columbia is insufficient:  Roed v. Scheffler et al, 2009 BCSC 731, at para. 35, citing Jordan v. Schatz, 2000 BCCA 409, and Williams v. TST Porter (c.o.b. 6422217 Canada Inc.) 2008 BCSC 1315.

[22] The fact that a plaintiff continues to suffer damages in British Columbia is insufficient to establish a real and substantial connection on its own:¬†Roed,¬†supra, at para. 43…

[26] Since the hearing of this application, our Court of Appeal has rejected the approach set out in Muscutt: see Stanway, supra, paras. 71 to 73.  Smith J.A., writing for the court, held that:

In my view, any reliance on the Muscutt factors as a guide to determining the question of jurisdiction came to an end in British Columbia with the coming into force of the CJPTA.

[27] Accordingly, the test remains real and substantial connection which appears to require a straightforward determination of whether, on the facts, a real and substantial connection has been established.

[28] Applying Roed, the first connection upon which the plaintiff relies to found jurisdiction Рdamages suffered within British Columbia Рis too tenuous.  The question therefore becomes whether the fact that, since the Alberta accident, the plaintiff has been injured in a second accident which occurred in British Columbia can provide the basis for a finding of jurisdiction.  These circumstances were not addressed in Roed.

[29] The parties appear to agree that a global assessment of Ms. Sooparayachetty‚Äôs injuries will be required.¬† I take this to mean that they accept that, in order to assess damages for which the Alberta defendants may be liable, the court will be required to assess ‚Äúglobal damages‚ÄĚ as of the date of trial in respect of both accidents.¬† Circumstances relating to the second accident will therefore be considered in the assessment of damages for the first.

[30] Section 3(e) of the CJPTA provides that the court has territorial competence if there is a real and substantial connection between British Columbia and the facts on which the proceeding against the defendants is based.  While facts relating to the second accident may have to be canvassed in order to assess Ms. Sooparyachetty’s damages arising from the first accident, the two claims remain separate.  In my view, the circumstances relating to the second accident are not facts upon which the proceedings against these defendants are based, and therefore cannot provide the real and substantial connection required by s. 3(e).  The need to call evidence relating to the second accident in the trial of the first, while an appropriate consideration on the question of forum conveniens (see, for example, Stewart v. Stewart, [1995] 6 W.W.R. 402; 5 B.C.L.R. (3d) 350 (S.C.)), does not confer jurisdiction on this court in relation to the first accident, and Ms. Sooparaychetty’s action arising from it.

[31] The other plaintiffs did not press their argument in relation to territorial competence over their actions.

[32] I find that, the plaintiffs having failed to establish that there is a real and substantial connection between British Columbia and the facts on which these proceedings are based, the court does not have territorial competence in these proceedings.

[33] Where the court determines that it lacks territorial competence, s. 6 of the CJPTA gives the court a residual discretion to hear the proceeding if it considers that:

(b) the commencement of the proceeding in a court outside British Columbia cannot reasonably be required.

[34] In Lailey et al v. International Student Volunteers, Inc., 2008 BCSC 1344, at para. 47, Grauer J. interpreted s. 6 with reference to the Uniform Law Conference comment on the identical section in the uniform act:

Residual discretion permits the court to act as a ‚Äúforum of last resort‚ÄĚ where there is no other forum in which the Plaintiff could reasonably seek relief.

[35] It is clear that here, as in Lailey, British Columbia does not stand out as a forum of last resort.  There are no limitation concerns as the plaintiffs have commenced actions in Alberta as well.

[36] I do not propose to address the issue of forum conveniens given my finding regarding territorial competence, and the fact that the notice of motion did not seek relief of that nature.

[37] The plaintiffs having failed to plead, or adduce in affidavit form, facts sufficient to establish jurisdiction, the application by the defendants is allowed and the plaintiffs’ actions are stayed pursuant to Rule 14(6).

One of the reasons why Plaintiffs try to bring their lawsuits in BC versus Alberta is the fact that British Columbia has greater rights in place for those injured at the hands of others.  However, cases such as this one demonstrate that it is no easy task to establish jurisdiciton of BC Courts to hear cases inovlving foreign motor vehicle collisions.


Can British Columbia Residents Sue in BC If They Are Injured Out of Province?

February 11th, 2010

(The decision discussed below was upheld by the BC Court of Appeal in 2011, you can find the BCCA judgement here)

British Columbia remains the least ‘tort-reformed” Province in Canada and as a result we can be proud that in most instances BC offers fair adjudication of claims for those injured at the hands of others. ¬†Many other Canadian jurisdictions¬†offer fewer protections with compensation restrictions such as ‘no-fault‘ laws or ‘soft-tissue injury caps‘ on damages.

If a British Columbia resident is injured in another Province can they sue in BC to be compensated for their injuries?  Reasons for judgement were released today considering this issue.

In today’s case (Dembroski v. Rhainds) the Plaintiff was involved in a car crash in Alberta in 2007. ¬†The Plaintiff was a British Columbia resident and was in Alberta for a short while to do some work as a farrier. ¬† ¬†The Plaintiff was injured and unable to perform her work. ¬†She returned to BC shortly after the car crash. ¬†She had the majority of her treatments in BC.

The Plaintiff eventually sued the alleged at fault motorist for compensation in British Columbia.  The Defendant brought a motion to dismiss the claim arguing that BC Courts lack jurisdiction to preside overthis case.

Mr. Justice Truscott agreed with the defendants and dismissed the lawsuit. ¬†In doing so he made the following points regarding BC Courts’ jurisdiction to preside over a lawsuit arising from an out of Province motor vehicle accident:

11] The court’s jurisdiction is governed by the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (CJPTA), which gives the court territorial jurisdiction in particular circumstances.

[12] From the facts here, the only circumstance set out in the legislation that might give the court jurisdiction is the provision in s. 3(e) that ‚Äúthere is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.‚ÄĚ…

[19] Defence counsel cites a number of court decisions in British Columbia that have denied jurisdiction on what are alleged to be similar circumstances, including: Canadian International Marketing Distributing Ltd. v. Nitsuko Ltd. (1990), 56 B.C.L.R. (2d) 130 (C.A.); Aubichon (Guardian ad litem of) v. Kazakoff, [1998] B.C.J. No. 3058 (S.C.); Jordan v. Schatz, 2000 BCCA 409; Sequin-Chand v. McAllister, [1992] B.C.J. No. 237 (S.C.); Williams v. TST Porter (c.o.b. 6422217 Canada Inc.), 2008 BCSC 1315; and Roed v. Scheffler, 2009 BCSC 731.

[20] All of these cases concluded that where a British Columbia resident plaintiff is injured in a foreign jurisdiction and then returns to British Columbia for treatment of injuries, there exists no real and substantial connection with British Columbia to give the courts of British Columbia jurisdiction because the only connection to this province is the fact that the plaintiff is a resident here at the time of the claim.

[21] In Jordan v. Schatz, Mr. Justice Cumming, writing the decision for the Court, said at para. 23:

What constitutes a “real and substantial connection” has not been fully defined. However, it has been well established by this Court in¬†Nitsuko,¬†supra, and in¬†Ell,¬†supra, that there is no real and substantial connection to British Columbia based on the bare residency of the Plaintiff in the jurisdiction. There must be some other or further sufficient connecting factor or “contacts” to this province. Clear examples of connecting factors include the residency of the defendant in the jurisdiction or the fact that the tortious act was committed or damages suffered here.

36] I can see no exception that would be applicable in this case to allow me to depart from the decisions in those cases that have denied jurisdiction to the court when the plaintiff’s only connection to the jurisdiction is the fact she continues to suffer from her injuries while she resides here. To accept jurisdiction here would be to accept jurisdiction for a plaintiff who moves to the jurisdiction after an accident in another province and continues to suffer from injuries here. That cannot be.

[37] There is no real and substantial connection between British Columbia and the facts on which the proceeding against the defendants is based. There may be a real and substantial connection between British Columbia and the plaintiff, but that does not satisfy the words of s. 3.

[38] The action is dismissed for want of jurisdiction. The defendants will have their costs.


Can a BC Resident Injured Abroad Sue for Damages in British Columbia?

June 3rd, 2009

The answer is contained in the Court Jurisdiction and Proceedings Transfer Act and today reasons for Judgement were released by the BC Supreme Court, New Westminster Registry, dealing with this issue.

In today’s case (Roed v. Scheffler) the Plaintiff was injured on June 25, 2006 in Washington State as a result of the alleged negligence of 2 Washington State Residents or in the alternative John Doe or ICBC pursuant to the Insurance (Vehicle) Act’s unidentified motorist provisions.

The Plaintiff, a BC Resident, brought her tort claim for damages in the BC Supreme Court.  The defendants challenged the courts jurisdiction to hear the case a brought a motion to dismiss the lawsuit.

Madam Justice Bruce of the BC Supreme Court granted the defendants motion and in staying the lawsuit the court summarized and applied the law as follows:

[38] Certainly the fact Ms. Roed continued to suffer from her injuries in British Columbia and sought treatment here are ‚Äúfacts upon which the proceeding against the [defendants] is based.‚ÄĚ Clearly, the continuing harm caused by the negligence of the defendants will form a significant part of Ms. Roed‚Äôs claim for non-pecuniary damages.

[39] Are these connections to British Columbia sufficient to meet the real and substantial connection test? The only similar case cited by Ms. Roed where the court assumed jurisdiction isMuscutt. However, based on the discussion in that case, it is doubtful that the Ontario Court of Appeal would have taken jurisdiction on the facts of the case before me. In particular, Sharpe J.A. found that the nature and extent of the damages suffered by the plaintiff within the jurisdiction was a factor and that, unless it was significant, the court should decline jurisdiction: Muscutt at para. 79. In this case, apart from providing a list of medical practitioners she has seen, Ms. Roed does not describe the nature of her injuries or the treatment she has undergone. Further, Ms. Roed deposes that she has suffered a loss of income but does not quantify it.

[40] There are other factors that were found significant in Muscutt that are missing in this case:

1.         The defendants were engaged in business activities that involved an inherent risk of harm to extra-provincial parties. The plaintiff was struck by a commercial vehicle and this vehicle was subsequently struck by an ambulance. The defendants were apparently insured against suits in all Canadian provinces.

2.         The accident occurred in another Canadian province where the enforcement and recognition of an Ontario judgment would not be an issue. In addition, fairness to the defendant is not a concern because the same test of real and substantial connection applies throughout the country. For this reason, Sharpe J. A. concluded that there is generally a more lenient approach to assuming jurisdiction in interprovincial cases as opposed to international actions: Muscutt at paras. 95-99.

[41] In contrast, cases involving defendants from other countries pose more difficult jurisdictional issues. Because enforcement of the judgment in the foreign jurisdiction is a factor to consider in the real and substantial connection test, the approach to jurisdiction taken by the foreign country when the connecting factor is the location of damages is a relevant concern. Of significance to the case at hand, Sharpe J.A. refers to the law in the United States on this issue at para. 105 of Muscutt:

By contrast, in other countries, it appears that damage sustained within the jurisdiction is only accepted as a basis for assumed jurisdiction in certain limited circumstances. As discussed above, in the United States, the minimum contacts doctrine requires an act or conduct on the part of the defendant that amounts to personal subjection to the jurisdiction. Without more, damage sustained in the jurisdiction does not satisfy the doctrine.

[42] The constitutional limits on the reach of provincial legislation were expressly addressed in Muscutt by incorporating into the real and substantial connection test the concepts of fairness (toward the foreign defendant) and jurisdictional restraint in the application of the test. While the language of s. 3(e) of the Court Jurisdiction and Proceedings Transfer Act does not appear to expressly incorporate these concepts, the court must interpret and apply this provision consistent with the constitutional limits on provincial legislation both inter-provincially and internationally. The discussion contained in Muscutt underlines the risks inherent in a decision to take jurisdiction without due consideration of the international aspects of the proceedings. Specifically, if the court takes jurisdiction based upon a broad application of the test, and one inconsistent with the laws in the foreign jurisdiction, the judgment may not be enforceable in the foreign jurisdiction where the defendant resides.

[43] Turning to the facts of the case before me, I find the plaintiff has failed to satisfy the test for territorial competence articulated in s. 3 (e) of the Act. I find the fact that the plaintiff continues to suffer damages in British Columbia insufficient to establish a real and substantial connection on its own.  These damages are suffered in British Columbia purely as a result of the plaintiff’s residence here. To find a real and substantial connection based on these facts would be to effectively base jurisdiction entirely on the plaintiff’s residence. As set out above, it is well established that a plaintiff’s residence is not sufficient grounds for a territorial competence.

[44] In my view, the reference to ‚Äúdamages‚ÄĚ as a factor favouring jurisdiction simpliciter in¬†Jordan¬†and the test articulated in¬†Morguard are directed at the place in which the injury actually occurs rather than the place where the plaintiff continues to experience pain and suffering or economic loss. While the latter circumstances are important, there must be something more to establish a real and substantial connection between BC and the facts upon which the action is based.

[45] This not a situation where the competing jurisdiction is another Canadian province in which case a more lenient standard may apply. Comity requires the court to consider the standards of jurisdiction, recognition and enforcement that prevail in the foreign state when applying the real and substantial connection test.

CONCLUSION

[46] For these reasons, I find the Supreme Court of British Columbia lacks territorial competence over the defendant Ms. Scheffler. The plaintiff’s action against Ms. Scheffler is stayed pursuant to Rule 14(6)(a).

[47] Ms. Scheffler is entitled to party and party costs at scale B.


A Little Bit on ICBC Injury Claims and the Jurisdiction of BC Courts

February 24th, 2009

Does the BC Supreme Court have standing to preside over an Auto Injury Claim for Damages that occurred outside of British Columbia?  The answer, as in many areas of the law, is sometimes.

There is a long history in the common law setting out the circumstances when a BC Court has jurisdiction to preside over an Injury Claim that arises in a foreign jurisdiction.  More recently the Court Jurisdiction and Proceedings Transfer Act came into force codifying some of the common law principles governing circumstances in which BC Courts have jurisdiction to preside over a case.  This legislation is fairly new and has received little interpretation by the BC Courts.  

Today, Mr. Justice Brown of the BC Supreme Court released reasons for judgement (Scott v. Hale) interpreting this legislation and giving clarity to the circumstances when the BC Supreme Court can hear an accident claim that occurred out of Province.

In today’s case the Plaintiff was involved in 2 motor vehicle collisions, the first in Alberta and the second in British Columbia. ¬†The Plaintiff applied to have both cases heard at the same time. ¬†The Defendants in the BC Car Crash opposed the motion. ¬†In opposing the motion the ICBC Defence Lawyer argued that the Court had no jurisdiction to preside over the Alberta accident therefore the claims should not be heard together.

Mr. Justice Brown rejected this argument and released what are probably the most comprehensive reasons to date interpreting the BC Court Jurisdiction and Proceedings Transfer Act.

The heart of the judgement focused on whether the BC Supreme Court has ‘subject matter competence’ to preside over an Alberta car crash case. ¬†After finding that there were sufficient reasons for both the BC and Alberta auto accident claims to be heard at the same time Mr. Justice Brown concluded that the BC Court indeed is competent to preside over the Alberta car crash claim. ¬†After a lengthyt analysis the Court came up with the following definition of “Subject Matter Competence”

[33]¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†To clarify: isolating for a moment the word ‚Äėconnections‚Äô, the only ‚Äėconnections‚Äô relevant to¬†territorial competence¬†would be those between a province and the facts upon which a proceeding is based (and as discussed above, broadly and unfortunately referred to as ‚Äėsubject matter‚Äô in¬†Morguard).¬† For example: where did the accident take place? ¬†Where was the contract made? ¬†Where was the product sold? ¬†Where was it manufactured?

[34]            But those questions stand well apart from other specific jurisdictional questions such as, How much money is being claimed?  Does the court in question have jurisdiction to hear torts, product liability or tax cases?  These are factors that relate to restrictions placed upon a courts’ jurisdiction by its own legislature.

[35]¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†I note that in the¬†Draft¬†all instances of ‚Äúsuperior court‚ÄĚ were intended to be substituted with the names of each provinces‚Äô court of ‚Äúunlimited trial jurisdiction‚ÄĚ.¬† As such, the¬†CJPTA, as adopted in British Columbia, refers to the Supreme Court.¬†¬†¬†The Supreme Court Act, R.S.B.C. 1996 c. 443 explains:

9(1)      The court continues to be a court of original jurisdiction and has jurisdiction in all cases, civil and criminal, arising in British Columbia.

[36]            If the Supreme Court has jurisdiction in all cases, what subject matter restrictions might there be?  Of course the apparently all encompassing jurisdiction of the Supreme Court has been limited in many instances in the grant of exclusive jurisdiction over certain subject matters to various boards and tribunals.  In my view, it is just such restrictions as these that are relevant factors when considering whether the court owns subject matter competence. 

Applying this definition to the case at bar Mr. Justice Brown summarized his reasons at paragraph 45 of the judgement as follows:

I find this case is a tort committed in Alberta, the Plaintiff claims compensation for non-pecuniary and pecuniary losses resulting from Defendant Hale’s alleged negligence; and there is no legislative or other restriction placed upon this Court that would in any way inhibit it from hearing such a claim, nor from granting such relief. ¬†Therefore, the subject matter of this case is well within the subject matter competence of this Court

This case is perhaps the leading authority in BC dealing with a BC Court’s Subject Matter Competence. ¬†Anyone interested in the current state of Canadian Conflicts Law and the topic of Canadian Superior Courts jurisdiciton should thorougly review this case. ¬†


 

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