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Tag: Real and Substantial Connection

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

Written by admin on . Posted in Civil Procedure, Sexual Assault Civil Cases, Uncategorized. 43 Comments on BC Supreme Court Declines Jurisdiction in Out of Province Sexual Abuse Action


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 “the 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.”

[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 “significant connection” 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, “a paramount factor in determining situs must be the place of the invasion of one’s right to bodily security.” 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 Lawsuits and Court Jurisdiction, The "Real and Substantial Connection" Test

Written by admin on . Posted in Civil Procedure, Uncategorized. 49 Comments on 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.