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


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’s judgments.  He did not define the “real and substantial connection” 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.

BC Lawsuits and Court Jurisdiction, Broman v. Machida Mack Shewchuck Meagher LLP, CJPTA, Court Jurisdiction and Proceedings Transfer Act, Madam Justice Kloegman, Real and Substantial Connection

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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