Braintech v. Kostiuk

Braintech v. Kostiuk

The Court of Appeal held the Texas default judgment should not be recognized because Texas lacked the required real and substantial connection: passive posting on an internet bulletin board did not constitute purposeful availment or a tort committed in Texas, the service and jurisdictional proof were deficient for due process purposes, and British Columbia was the natural forum; accordingly the appeal was allowed, the lower judgment set aside and the action dismissed.

Citation
1999 BCCA 169
Parties
Plaintiff/respondent: Braintech, Inc.; Defendant/appellant: John C. Kostiuk
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
18 March 1999
Procedural Posture
Enforcement/recognition of Foreign Judgment; Defamation/business Disparagement; Jurisdictional Challenge / Appeal From Summary Trial (rule 18 A) of the Supreme Court of British Columbia to the British Columbia Court of Appeal
Outcome
Appeal allowed; judgment of the Supreme Court of British Columbia set aside; action dismissed.
Legal Topics
Recognition of Foreign Judgment, Service of Process, Long Arm Jurisdiction, Real and Substantial Connection, Rule 18 a Summary Trial, Internet Publication and Jurisdiction (zippo Test), Forum Non Conveniens, 14th Amendment Due Process
Source Language
English
Conflict of Laws Civil Procedure Judgment Enforcement Tort (defamation/business Disparagement) Internet/technology Law Constitutional Due Process Recognition of Foreign Judgment Service of Process +6 more

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Parties

Braintech, Inc.

Plaintiff/respondent

John C. Kostiuk

Defendant/appellant

Procedural Posture

Enforcement/recognition of Foreign Judgment; Defamation/business Disparagement; Jurisdictional Challenge / Appeal From Summary Trial (rule 18 A) of the Supreme Court of British Columbia to the British Columbia Court of Appeal

Legal Issues

  1. 1 Whether the trial judge erred in proceeding by summary trial under Rule 18A
  2. 2 Whether fraud was practised on the Texas court justifying refusal to recognize the foreign judgment
  3. 3 Whether Texas had a real and substantial connection to justify exercise of in personam jurisdiction over the appellant

Ratio Decidendi

The Court of Appeal held the Texas default judgment should not be recognized because Texas lacked the required real and substantial connection: passive posting on an internet bulletin board did not constitute purposeful availment or a tort committed in Texas, the service and jurisdictional proof were deficient for due process purposes, and British Columbia was the natural forum; accordingly the appeal was allowed, the lower judgment set aside and the action dismissed.

Court Disposition

Appeal allowed; judgment of the Supreme Court of British Columbia set aside; action dismissed.

Orders

  • Appeal allowed
  • Judgment below set aside