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1. Jurisdiction simpliciter Compare the following two decisions. Are they consistent? If so explain how they are consistent. If not, which do you prefer? Why? Oakley v Barry PUGSLEY J.A.:-- The appellant physicians, all residents of New Brunswick, apply for leave and if successful, appeal from the judgment of Supreme Court Justice Davison, sitting in Chambers, dismissing their application to set aside the respondent's originating notice (action) on the ground that the Province of Nova Scotia was without jurisdiction to decide the issue between the parties. Background The respondent, while a resident of New Brunswick, and under the treatment of the appellant physicians, was referred to the defendant hospital in Saint John for a liver biopsy procedure in April, 1989. She alleges, in the statement of claim, that as a result of the negligence of the appellant physicians, and the defendant hospital, she was erroneously diagnosed as suffering from infectious hepatitis "B". The respondent continued to reside in New Brunswick and received medical treatment in that province until shortly before she moved to Nova Scotia in November, 1990. She was treated thereafter by Nova Scotian physicians who, she maintains, correctly diagnosed that she did not suffer from infectious hepatitis "B". She commenced action in Nova Scotia on December 21, 1995. Service was not effected on the appellants, or the defendant hospital, all of whom applied for an order setting aside the originating notice (action) on the grounds that a Nova Scotia Court was without jurisdiction to hear the proceeding, or alternatively, for an order staying the Nova Scotia proceeding on the ground that Nova Scotia was a forum non conveniens. In support of the Chambers application brought by the appellants, and the defendant hospital, are filed affidavits of: In response to these affidavits, the respondent's affidavit was filed, which disclosed in part: Decision of the Chambers Judge The Chambers application was advanced pursuant to Civil Procedure Rule 11.05(a), seeking an order that the Court was without jurisdiction to hear the proceeding and, alternatively, that an order should issue staying the proceedings pursuant to Civil Procedure Rule 14.25 on the ground that Nova Scotia was a forum non conveniens. Civil Procedure Rule 11.05 provides in part: Civil Procedure Rule 14.25(1) provides in part: Dealing with the first ground, Justice Davison stated [summarized 68 A.C.W.S. (3d) 1036]: The defendants refer to Morguard Investments Ltd. v. DeSavoye, [1990] 3 S.C.R. 1077, 76 D.L.R. (4th) 256, for the proposition that Nova Scotia does not have jurisdiction to permit this action to proceed because Nova Scotia does not have a real and substantial connection with the action. The Supreme Court in the Morguard case decided that order and fairness can best be ascribed to parties if jurisdiction is assumed and the action tried in the province where there is a real and substantial connection with the action. Nova Scotia does have jurisdiction to try the action. The plaintiff resides in Nova Scotia and the Civil Procedure Rules in Nova Scotia provide for ex juris to all provinces in the country. These rules were recognized by LaForest J. at p. 1104 as being "very broad indeed". The issue decided by Morguard basically dealt with the question of order and fairness and whether a personal judgment validly given in one province against an absent defendant may be enforced in another province where the defendant now resides. The court was not dealing with the presence of jurisdiction, but stated there should be limits to the exercise of jurisdiction if the courts of one province are expected to give effect to judgments of another province. There must be order and fairness to protect the rights of all parties. There must be consideration of a real and significant connection with the action and protection from being pursued in jurisdictions which have little or no connection with the action. Justice Davison also determined that the applicants had failed to establish that Nova Scotia was a forum non conveniens for the trial of the action. He stated: Grounds of Appeal The appellant physicians submit that Justice Davison erred by failing to apply appropriate principles of law in considering whether the Supreme Court of Nova Scotia has jurisdiction in the matter, and in particular: The appellants also listed several grounds of appeal respecting the forum non conveniens issue, but these grounds have now been abandoned. The Court has been advised that the defendant, Saint John Regional Hospital, named as a respondent in the appeal, "takes no position and therefore will not be submitting a respondent's factum". Analysis At common law, a Court could assume jurisdiction in a civil action if, for example, the defendant was personally served with the documents initiating the process while the defendant was within the jurisdiction, or in some way submitted to the jurisdiction of the Court giving the judgment: see Morguard Investments v. De Savoye, [1990] 3 S.C.R. 1077 at 1087, 76 D.L.R. (4th) 256. The rule of common law: In actions based on tort, in the Province of Ontario for example, Rule 17.02 [Rules of Civil Procedure, R.R.O. 1990, Reg. 194] provides that a party to a proceeding may, without a court order, be served outside Ontario with an originating process where the proceeding against the party consists of a claim in respect to a tort committed in Ontario, or in respect of damage sustained in Ontario arising from a tort wherever committed. In a case to which Rule 17.02 does not apply, the Court may grant leave to serve an originating process outside the province. Rule 19 of the New Brunswick Rules of Court, is to a similar effect except that the onus on an applicant seeking leave of the Court, is to establish that such service appears necessary to secure the "just determination" of the proceeding affecting the parties. Part 4 of the Rules of Court of Alberta, Alta. Reg. 390/68, permits service outside of that province, when the action is founded on a tort committed within Alberta, if leave is first obtained. The Rules do not appear to permit service, even with leave, where the tort is committed outside the province. Nova Scotia ex juris rules are extremely broad, as was noted by Justice La Forest in Morguard, and would appear to be unique in Canada. The Nova Scotia Rules do not specifically deal with service of an originating notice respecting a tortious action, but simply provide that where service of an originating notice is to be effected on a defendant in any other province of Canada or the United States, it may be effected by a person having authority in those jurisdictions (Civil Procedure Rule 10.08). There is no requirement that leave of the Court in such a circumstance be first obtained: see Rule 10.07(1). The authority to make the Civil Procedure Rules of Nova Scotia is delegated to the judges of the Court of Appeal and the Supreme Court pursuant to s. 46 of the Judicature Act, R.S.N.S. 1989, c. 240. The present ex juris rules, which came into effect in March of 1972, eliminating the necessity of first securing leave of the Court, were designed to circumvent a defendant from hindering and sometimes defeating valid claims (Canadian Insulation Services Co. v. Petro-Canada Exploration Inc. (1981), 44 N.S.R. (2d) 616, 122 D.L.R. (3d) 21 (S.C.T.D.)). The change did not, however, eliminate or affect the discretion of the Court to control its own process. Where contact with Nova Scotia was tenuous, or where entertaining the proceedings would create injustice, the Court still retained a number of discretionary techniques in order to refuse jurisdiction to plaintiffs such as declining jurisdiction, the doctrine of forum non conveniens, and the powers set forth in Civil Procedure Rule 14.25 to strike pleadings because they constituted an abuse of the Court's process (Robinson v. Warren (1982), 55 N.S.R. (2d) 147 (S.C.A.D.)). An ex juris applicant who seeks to set aside an originating notice in Nova Scotia, may do so on the ground that the Civil Procedure Rules, as made by the judges, do not come within the power of the provincial Legislature over the "administration of justice in the province" as enumerated in s. 92(14) of the Constitution Act, 1867. Professor Hogg points out that the limits of the provincial power are not entirely clear. He states at p. 334: The constitutional issue, and the conflict of laws issue, while distinct issues, have features in common. For example, La Forest J. noted in Morguard at 1109: And see also Hunt v. T&N plc, [1993] 4 S.C.R. 289, 109 D.L.R. (4th) 16, per La Forest J. at 28: The appellants, in this appeal, have based their submissions, both before the Supreme Court and this Court, not on a constitutional basis, but rather on the conflict of law principle, that jurisdiction must be founded on a real and substantial connection between Nova Scotia, and the subject matter of the respondent's action. The doctrine of "substantial connection" was raised by Justice Dickson, as he then was, in Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393, 43 D.L.R. (3d) 239. Mr. Moran, an electrician, was electrocuted while he was removing a spent lightbulb in a building in Saskatchewan. His widow and children brought action in that province against the defendant, the manufacturer of the bulb. Pyle's manufacturing and assembling operations were located in Ontario. It did not carry on business in Saskatchewan. The precise issue before the Court, as stated by Dickson J. at 397 was Justice Dickson reviewed a number of theories found "in the cases and in learned journals" in order to determine the situs of the tort. On behalf of the Court, he rejected the "place of acting" theory and the "place of harm" theory as being "too arbitrary and flexible", in favour of a real and substantial connection test. In noting that the author of Cheshire, Private International Law, 8th ed., p. 821, suggested a similar test, Justice Dickson stated at pp. 408-9: The "real and substantial connection" test was adopted by the Supreme Court of Canada as the test for recognition and jurisdiction in the three cases of Morguard v. De Savoye, Hunt v. T&N plc, and Tolofson v. Jensen, [1994] 3 S.C.R. 1022, 120 D.L.R. (4th) 289. In Morguard, the defendant, De Savoye, while a resident of Alberta, guaranteed a mortgage obligation to Morguard. When the mortgagor defaulted, De Savoye stepped into his shoes and took title to the property. Shortly thereafter De Savoye moved to British Columbia. The mortgage fell into default. Morguard brought a foreclosure action in Alberta. There was no clause in the mortgage wherein De Savoye agreed to submit to the jurisdiction of an Alberta court. He was, however, served in British Columbia, in accordance with the Alberta Rules of Court for service ex juris, which were similar to the British Columbia Rules. He took no steps to appear or defend the action. Judicial sale of the property took place and judgment was entered against De Savoye for the deficiency. Morguard then commenced a separate action in British Columbia to enforce the deficiency. Judgment was granted at the trial level in favour of Morguard, and affirmed by the British Columbia Court of Appeal. De Savoye then appealed to the Supreme Court of Canada. Justice La Forest, on behalf of a Court which included Chief Justice Dickson, referred to the common law approach that sovereign states had exclusive jurisdiction in their own territory, and are: He called, however, for a reappraisal of this parochial approach emphasizing the changing world order brought about by modern means of travel, and communications, resulting in a business community that now operated on a worldwide basis. Justice La Forest did not consider that the English case law dealing with the recognition of foreign judgments was appropriate to the Canadian situation respecting the recognition by one province of a judgment given by another province. He emphasized that Canadians enjoy a common citizenship ensuring their mobility across provincial lines, and that the Canadian judicial structure "is so arranged that any concerns about differential quality of justice among the provinces can have no real foundation" (p. 1100). He summarized the approach that should be adopted in relation to the recognition and enforcement of judgments within Canada, in these words at pp. 1108-9: Justice La Forest, however, sounded a note of caution, at p. 1103: Justice La Forest elaborated on the issue in Hunt, where he pointed out, on behalf of the Court, at p. 325, that the test of real and substantial connection was not intended to be: And at p. 326: Finally in Tolofson, in which the issue was one of choice of law rather than jurisdiction, Justice La Forest, on behalf of the majority, stated at p. 1049: Justice La Forest had referred to the doctrine of forum non conveniens and the power of a Court to prevent an abuse of its process, in Morguard, where he considered these techniques, as well as the refusal of a Court to accept jurisdiction, as: I consider it significant that, in this case, the appellants have abandoned their appeal respecting one of those discretionary techniques available to the Court for refusing to grant jurisdiction. Professor Black and John Swan point out in a case comment on Morguard, found in the Advocates' Quarterly (1991), Volume 12, 489 at 500: I would apply Morguard in a flexible manner and conclude that in this case, there is both a real and substantial connection between the subject matter of the action and the Province of Nova Scotia, as well as a real and substantial connection between the damages caused by the alleged negligence of the appellant physicians, and the defendant hospital, and the Province of Nova Scotia. The respondent was not aware that her treatment by the appellant physicians was allegedly negligent until she was examined in Nova Scotia by Nova Scotia physicians. This province is responsible for providing care to the respondent. Her recovery proceeds in this province under the care of Nova Scotia physicians, aided by provincial medical centres and staff. The province has a significant financial interest in the well-being of the respondent. The respondent is, as well, financially disadvantaged and dependant upon the province for assistance to meet her day-to-day living requirements. The damages allegedly suffered are on-going, and since the fall of 1990, have been sited in this province. The respondent has deposed that she has suffered "problems, trauma and personal despair" as a result of the alleged misdiagnosis of the appellant physicians and the defendant hospital. While she does not particularize the cost directly attributable to the alleged misdiagnosis, it is a fair inference, that if her allegations are subsequently accepted by a Court, a portion of the cost of her monthly expenses to date, presently borne by this province, and perhaps in the future, may be recoverable from the appellant physicians and for the defendant hospital. In Moran, Dickson C.J. stated at p. 409: The rule, to which Justice Dickson refers, is one where a tort is regarded as having occurred in any country: Nova Scotia is not a foreign state to New Brunswick. They are sister provinces. They are members of the same federation. The services rendered by the appellant physicians and the defendant hospital were supplied in Fredericton and Saint John. Fredericton is only 256 road kilometers from the Nova Scotian border; Saint John is approximately 200 road kilometers from the same border. Interprovincial mobility of Canadian citizens was specifically noted by Justice La Forest in both Morguard, and Hunt, as one of the factors supporting a more cooperative spirit in recognizing and enforcing judgments in a sister province (Morguard at p. 1099). No argument has been advanced on behalf of the appellants that the respondent chose Nova Scotia for the purpose of obtaining a juridical advantage. Indeed, the reasons why Nova Scotia was selected, as set out in the respondent's affidavit, would suggest that it was a matter of necessity, rather than choice, that she selected this province to commence her action. The appellants have not advanced any submission that they would suffer a juridical disadvantage if the respondent was permitted to continue her action in Nova Scotia. No such submission based on the provisions of the Medical Act of New Brunswick, as referred to in Mr. Gillis's affidavit, would appear to have any merit in view of the decision of the Supreme Court of Canada in Tolofson, where the Court held the choice of law rule for tort cases should be the law of the place where the tort was committed. Fairness is a theme that is emphasized by Justice La Forest in Morguard and Hunt. I do not read the decisions from the Supreme Court as suggesting that the concept of fairness should be limited solely to the interests of the defendant. I conclude that in this case, it is appropriate to consider the element of fairness from the point of view of the respondent, as well as the appellant physicians. When one considers the respondent's personal situation, and the unchallenged deposition that she is "financially incapable of proceeding with this action in any other place other than Halifax", it would, in my opinion, be manifestly unfair to allow the appellants to succeed in this appeal. Professor Joost Blom, in his article "The Enforcement of Foreign Judgments: Morguard Goes Forth into the World" (Volume 28, Canadian Business Law Journal (1997) p. 373) comments at pp. 377-8: Professor Blom while suggesting that in principle it ought to be the latter, goes on to say at p. 378: The appellants submit that the issue before the Court in this case is a simple one, namely whether the respondent's residence in Nova Scotia when the action was commenced, and nothing more, is sufficient to ground jurisdiction in the Courts of this province. In support of counsel's position our attention is directed to the following cases: MacDonald v. Lasiner (1994), 21 O.R. (3d) 177 (Gen. Div.); Long v. Citi Club (Ont. Ct. (Gen. Div.), May 1995, unreported -- Ottawa 82955194) [summarized 55 A.C.W.S. (3d) 513]; LeRoy v. Jarjoura (Ontario General Division, February 1996, unreported -- File No. 87982194); Cooke v. Parcel, Mauro, Hultin & Spaanstra, P.C., [1997] 5 W.W.R. 299, 143 D.L.R. (4th) 213 (B.C.C.A.). The trial judges in each of the first three cases, concluded that the situs of the actions were not the convenient forum in which the cases should be tried. This is readily distinguishable from the present case where forum non conveniens has been determined against the appellants by Justice Davison. I agree with Professor Blom, in his reference to the "open- endedness of the Morguard formula" (at p. 393) and his comment that in trying to determine the meaning of order and fairness, in a jurisdiction simpliciter case, it may be necessary to take into account factors normally considered in a forum non conveniens case "in order to avoid injustice" (p. 387). I repeat what Justice La Forest said about the relationship between these considerations in Hunt, supra at 326: The material in the present case demonstrates, in my opinion, that the respondent's connection with Nova Scotia is far more than mere residence. The affidavit deposed by Ms. Oakley is unchallenged. No request was made to cross-examine her before the Chambers judge. While in Cooke v. Parcel the Court did not find it necessary to consider the question of forum non conveniens, Justice Prowse on behalf of the Court, outlined at p. 307: In Cooke v. Parcel, the appellants were former directors, and officers, of a British Columbia company (Galactic) which operated, through a subsidiary company, a gold mine in Colorado. The respondent law firm was located in Colorado and licensed to practise law there. It had a solicitor/client relationship with Galactic. The United States Government initiated proceedings against the respondent law firm for the purpose of compelling production of certain documents held by the firm, for which the firm claimed solicitor/client privilege on behalf of Galactic. The appellants commenced action in British Columbia against the firm, seeking a declaration it was in a solicitor/client relationship with them and that the documents in issue were covered by that privilege, and injunctive relief. The trial judge held that the British Columbia Supreme Court had no jurisdiction over proceedings involving a law firm located in Denver. Justice Prowse concluded that the submissions made on behalf of the appellants while on their face amounting to a request for a declaration of right, in fact sought a mandatory injunction compelling the respondent to assert a privilege on their behalf in the Colorado court and a prohibitory injunction preventing disclosure. She stated at p. 308: While the Court concluded that the appellants had failed to establish a real and substantial connection between British Columbia and the respondent firm or the subject matter of the litigation, the facts in Cooke, are sufficiently disparate from the facts before us, so as to render the decision of the little weight in consideration of the present appeal. I note that Drost J. at first instance in Cooke had also found that British Columbia was not the convenient forum. The appellant has referred us to Wilson v. Moyes (1993), 13 O.R. (3d) 202, a case where the defendant, a resident of Scotland while driving a rental car in Florida, was involved in a motor vehicle accident with the plaintiffs, residents of Ontario, who were the occupants of another rental car. The accident occurred near Orlando and the remaining defendants were a car rental agency and sales agency carrying on business in Florida. Justice McCart of the Ontario Court (General Division) concluded that Ontario had no jurisdiction over the persons of the defendants or over the cause of action of the plaintiffs. He determined that the law of Florida applied, as none of the defendants had any connection with Ontario. He went on to say, at p. 207: While I do not agree with this proposition, Justice McCart's conclusion that Florida is the proper and convenient forum serves to distinguish the situation before him from that before us. Moreover, to the extent that this and other cases stand for the proposition that residence of the plaintiff, without more, is insufficient, they are not applicable in this case which has other connections with Nova Scotia. Whether the decision in Morguard which involved a fact situation that was entirely Canadian, and depended to a significant extent on the "essentially unitary structure of our judicial system with the Supreme Court of Canada at its apex" (see La Forest in Hunt at p. 322) should be applied to cases in the international sphere is an interesting question that does not require our consideration (see Coakeley, Finkle, and Barrington, "Morguard Investments Limited: Emerging International Implications" (1992), 15 Dalhousie Law Journal 629). Justice Goodfellow, of the Supreme Court, considered the issues of jurisdiction simpliciter, and forum non conveniens, in Dennis v. Salvation Army Grace General Hospital Board (1996), 153 N.S.R. (2d) 211. In Dennis, the plaintiffs moved from Nova Scotia to Labrador in August of 1990. Their son, born in St. John's in May of 1993, suffered irreversible and profound damage to his brain and central nervous system, as a consequence of the birth. A month later the family returned to Nova Scotia. Justice Goodfellow concluded that since the plaintiffs had re- established their residence in Nova Scotia, for a period of about two years before action was commenced in April 1995, and since they had remained residents in Nova Scotia up until the time of the application, that they had: Justice Goodfellow went on to conclude that the appropriate forum for the trying of the case was Newfoundland and accordingly issued a stay. An appeal taken to this Court is reported in (1997), 156 N.S.R. (2d) 372, but as the only issue was that of forum non conveniens, the pronouncement has no direct effect on this appeal. This Court allowed the appeal, following Justice Sopinka's decision in Amchem Products Inc. v. British Columbia (Workers' Compensation Board) (1993), 102 D.L.R. (4th) 96, that Nova Scotia as domestic forum won by default. The defendants did not cross-appeal from Justice Goodfellow's decision on jurisdiction simpliciter. Counsel for the appellants has supplied us with an article by Professor Black ("Territorial Jurisdiction Based on the Plaintiffs Residence"), soon to be published in Carswell Practice Cases). Professor Black writes: Professor Black refers to the American position, which he describes, although not dispositive, as worth noting. In the article appearing in the Advocates' Quarterly noted earlier, at p. 501, Professor Black wrote: If the American position were to be adopted in Canada, the appellants' argument in this case might well succeed as there would appear to be little connection between the appellant physicians and Nova Scotia. The problems raised in the United States with its multiplicity of jurisdictions, with state appointed judges, applying choice of law rules, which expressly promote state interest (see Black, "The Other Side of Morguard" (1993), 22 Canadian Business Law Journal 4 at p. 21) were dramatically illustrated in the case of World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), a case considered by the United States Supreme Court. The plaintiffs, Harry and Kay Robinson, were residents of New York. They purchased their Audi vehicle from a dealer in Massena, New York in 1976. The following year, the Robinsons together with their children, left New York to take up residence in Arizona. As they drove through Oklahoma, their vehicle was struck in the rear by another car, causing a fire which severely burned Mrs. Robinson and the children. The Robinsons subsequently brought a products-liability action in the district court for Creek County, Oklahoma, claiming that their injuries resulted from defective design and placement of the Audi's gas tank and fuel system. They joined as defendants, the automobile manufacturer, which was incorporated and had its business office in New York, the importer who distributed vehicles, parts and accessories, to retail dealers in New York, New Jersey and Connecticut; and the retailer which was incorporated, and had its place of business in New York. There was no evidence that the distributor, or the retail dealer, carried on any business in Oklahoma, or that any automobile handled by them had ever entered the State of Oklahoma, with the single exception of the Robinsons' vehicle. As the defendants had no contacts, ties or relations with the State of Oklahoma, the Supreme Court allowed a writ of prohibition restraining District Judge Woodson from exercising in personam jurisdiction over the defendants. The difference between the position in Canada and that in the U.S., as outlined in the 14th Amendment, is highlighted by Justice White at p. 293: Justice La Forest recognized a number of factors identified in both Morguard and Hunt which he suggested would support a more co-operative spirit in recognition and enforcement of judgments by sister provinces. One of those was the essential unitary structure of the judicial system with the Supreme Court of Canada at its apex (see Hunt and T&N at 322). I agree with Professor Black that there is no reason why the American experience, based on the provisions of the 14th Amendment, should "dictate the result" in Canada. Justice Davison did not err in law in concluding that, having regard to the underlying principles of order and fairness, the Supreme Court of Nova Scotia has jurisdiction. Conclusion The jurisdictional test applied to determine whether there is a real and substantial connection between the appellant physicians and Nova Scotia should not be rigidly applied. Nova Scotia was the situs where Nova Scotia physicians disclosed to the respondent that the diagnosis she originally received in New Brunswick was allegedly in error. The respondent continued, and still continues, to reside in Nova Scotia and to be treated by Nova Scotian physicians. There is a significant connection with Nova Scotia being the place where the respondent has suffered her damages. The concept of fairness in determining jurisdiction should be considered from the point of view of both the respondent, as well as the appellants. While this issue, as well as the issue of juridical advantage, are matters that are usually considered on a forum non conveniens issue, it is appropriate and relevant to consider them in this case involving jurisdiction simpliciter. The concept of fairness is overwhelmingly decided in favour of the respondent, whose deposition before the Chambers court remained unchallenged. The appeal taken from the decision of the Chambers judge that trial in Nova Scotia is more appropriate than trial in New Brunswick has been abandoned. The appellants have not demonstrated that the Chambers judge erred. I would, accordingly, grant leave to appeal, but dismiss the appeal, with costs in the amount of $1,500 plus disbursements. Application granted; appeal dismissed. Aubichon (Guardian ad litem of) v Kazakoff A.F. WILSON J.:-- I Introduction There were two applications before me: the first, an application on behalf of the plaintiffs for an order granting leave to serve the defendants outside of the Province of British Columbia, pursuant to R. 13(3); and the second, an application on behalf of the defendants for an order staying these proceedings, on the ground that the court has no jurisdiction over the subject matter of the action, or, alternatively, for an order that the court decline jurisdiction, pursuant to R. 14(6). ... II Background The plaintiff, Vanessa Lee Aubichon, is an infant. According to her statement attached to the affidavit of counsel for the defendants, she was born on January 26, 1982, so is now 16 years of age. She is represented in this action by her mother, Holly Webster, as her guardian ad litem. Ms. Aubichon was involved in a motor vehicle accident, near Gadsby, in the Province of Alberta, on November29, 1997. She was a passenger in a vehicle driven by the defendant, Daniel Kazakoff, and owned by the defendant NWP Trucking Corp. At the time, Ms. Aubichon was living with Mr.Kazakoff, in Coronation, Alberta. Mr. Kazakoff was employed by NWP Trucking Corp. As a result of the accident, Ms. Aubichon was seriously injured. Mr. Kazakoff was resident in Alberta at the time of the accident, and continues to live there. NWP Trucking Corp. is a company incorporated in the Province of Alberta, having its head office, address for service and only places of business in the Province of Alberta. Neither Mr. Kazakoff nor NWP Trucking Corp. have attorned to the jurisdiction of this court. Following the accident, Ms. Aubichon was taken to the hospital in Stettler, Alberta, then to the hospital in Red Deer, Alberta, where she underwent surgery. Some time after her release from hospital, she moved to Prince George, British Columbia, to live with her mother. She has continued to receive medical treatment and physiotherapy in Prince George. She is presently attending grade eleven in Prince George. It is alleged that it will cause financial hardship, to the extent of being economically prohibitive, if the claim has to be brought in Alberta. ... III The Law Counsel for the plaintiffs submits that the court has a discretion in determining whether this matter should proceed in this forum. He further submits that it is the forum conveniens. Counsel for the defendants, on the other hand, submits that the two issues of jurisdiction of the court and forum conveniens must be considered separately, and that this court has no jurisdiction to hear the matter. Alternatively, he submits that the courts of Alberta are the forum conveniens. In Canadian International Marketing Distributing Ltd. v. Nitsuko Ltd. et al. (1990), 68 D.L.R. (4th) 318, Gibbs J.A. made it clear that the two concepts of jurisdiction and forum conveniens must be considered separately. In that case, the defendants applied for a declaration that the court had no jurisdiction, or, alternatively, for a declaration that the court decline jurisdiction. At p. 319, Gibbs J.A. stated: At p. 320, he noted: If the chambers judge had kept the two concepts of jurisdiction simpliciter and forum conveniens separate, and followed the sequence of considering jurisdiction first, he would, I think, have disposed of the applications differently. On the facts the only connection between this case and the Province of British Columbia is that the plaintiff is a resident here, and this is not enough. The defendants are not residents. They are residents of Japan. They neither carry on business in Canada nor have assets in Canada nor have officers, employees or agents in Canada. In short, they have no presence here. Furthermore, the alleged cause of action arose outside of Canada. . . . . . . As the elements necessary to the exercise of jurisdiction by a British Columbia court are not present, I would allow the appeal and make the requested declaration that the Supreme Court of British Columbia has no jurisdiction. I am not convinced that the law has changed since that time, and I consider the case to be binding upon me. In view of the fact that neither defendant is resident of British Columbia, nor do they carry on business here, and the cause of action did not arise in British Columbia, I find that the Supreme Court of British Columbia has no jurisdiction. To paraphrase Gibbs J.A.: I find support for this conclusion in a further decision of the British Columbia Court of Appeal, Cook et al v. Parcel, Mauro, Hultin & Spaanstra, P.C. (1997), 143 D.L.R. (4th) 213. In that case, at pp. 219-20, Prowse J.A. discussed the concepts of jurisdiction simpliciter and forum non conveniens. She stated: Similarly, it is not disputed that, even if the court has a real and substantial connection with either the defendant or the subject-matter of the litigation, it is open to the court to decline jurisdiction if there is clearly a more convenient or appropriate forum elsewhere to which the defendant will attorn. In exercising its discretion to decline jurisdiction, the court is giving effect to the doctrine of forum non conveniens. Thus, the courts have formulated specific organizing principles in the law of conflicts for determining if a court has jurisdiction, and when it may decline to assert such jurisdiction. Those principles are referred to by Mr. Justice La Forest, speaking for the Court, in Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, [1994] 3 S.C.R. 1022, 120 D.L.R. (4th) 289, at p. 0149 of that decision: I note that the issue in Tolofson was not one of jurisdiction, but, rather, one of choice of law. Mr. Justice La Forest's comments on jurisdiction are, nonetheless, apt. In this case, that "real and substantial connection" necessary to enable the court to exercise jurisdiction has not been established. Counsel for the plaintiffs has referred to a number of cases, but I do not consider that any of them assists me with the issue of determining if this court has jurisdiction simpliciter. Poirier v. Williston (1980), 113 D.L.R. (3rd) 252 (Ont. H.C.J., Div. Crt.), involved a case of an Ontario resident who was injured in a motor vehicle accident in New Brunswick. In that case, the Divisional Court held that it was proper to bring the action within the Province of Ontario. However, that was based on a provision in the Rules of Ontario enabling service out of Ontario where there were claims "in respect of damage sustained in Ontario arising from a tort or breach of contract committed elsewhere". It was held that the damages sustained in the motor vehicle accident, including pain, suffering, disability, and loss of ability to earn an income, had been and continued to be suffered in Ontario. However, there is no analogous provision in the equivalent Rule in British Columbia, R. 13(1). The next case relied on was the decision of Melvin J. of this Court in Stewart v. Stewart (1995), 5 B.C.L.R. (3d) 350. In that case, Melvin J. held that the plaintiff, a British Columbia resident, who suffered injuries in a motor vehicle accident in Saskatchewan, could bring the action in British Columbia. However, the relevant factor in that case in determining that the court had jurisdiction was that the defendant was served in British Columbia ( at p.353). In the case at bar, the defendants were neither served in British Columbia, nor have they attorned to the jurisdiction of this court. The next case referred to was a decision of the British Columbia Court of Appeal, Avenue Properties Ltd. v. First City Development Corporation Ltd. et al. (1986), 7 B.C.L.R. (2d) 45. However, that case deals with the issue of forum conveniens, not jurisdiction simpliciter. Further, one of the defendant corporations was registered extraprovincially in British Columbia, and could thus be served within the province. The corporation not registered in British Columbia could then be served under the equivalent of what is now R.13(1)(j). The next case referred to by counsel for the plaintiffs, was the British Columbia Court of Appeal decision in Tolofson v. Jensen (1992), 65 B.C.L.R. (2d) 14 (which was appealed to the Supreme Court of Canada, the decision of which was referred to in Cook v. Parcel, Mauro, Hultin & Spaanstra, P.C., supra). It is a case dealing with choice of law. It was not argued that the courts of British Columbia were without jurisdiction or should decline jurisdiction as being a forum non conveniens in that case, as the defendant Tolofson was resident in, and served within, British Columbia. At pp. 118-19, Cumming J.A. noted that each of the concepts of jurisdiction, forum non conveniens and choice of law are separate and distinct. Jan Poulsen & Co. v. Seaboard Shipping Co. (1994), 100 B.C.L.R. (2d) 175, did deal with the issue of jurisdiction of the courts of British Columbia. However, one of the defendants was a British Columbia company, which was registered in British Columbia, and the issue was whether the other defendant, its English subsidiary, was a "necessary and proper party" to be served, pursuant to R.13(1)(j). It thus does not assist me in dealing with jurisdiction simpliciter in the case at bar. The final case referred to by counsel for the plaintiffs was Amchem Products Inc. v. British Columbia (Workers' Compensation Board) (1993), 77 B.C.L.R. (2d) 62 (S.C.C.). However, the issue in that case was again forum conveniens, rather than jurisdiction simpliciter. It does not assist me. I conclude that the court has jurisdiction tohear an action only where it is established that there is a "real and substantial connection" between the action and the territory. That connection cannot be established, as has been attempted at the case at bar, by showing that the court is the forum conveniens. Issues of forum conveniens arise only as an issue in determining whether the court should accept jurisdiction, or should grant a stay, when the test of a "real and substantial connection" has been met. If that test has not been met, the issue of forum conveniens does not arise. ... IV Decision As the cause of action arose in Alberta, and both defendants reside in Alberta, and neither has attorned to the jurisdiction of this court, I find that this court has no jurisdiction simpliciter to hear the plaintiffs' claims. The defendants' claims for an order of a stay of proceedings on the grounds that the court has no jurisdiction over the subject matter of the action is thus granted. The plaintiffs' application for an order granting leave to serve the defendants outside of the jurisdiction of the Province of British Columbia is dismissed. The defendants are entitled to their costs of this application.
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