Burgess Transfer & Storage Ltd. v. Helipro International

Burgess Transfer & Storage Ltd. v. Helipro International Court Supreme Court Date 2003-07-22 Citation 2003 NSSC 159 Docket SH 188791 Judge/Registrar/Adjudicator LeBlanc, Arthur J. (Honourable Justice) (SC) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Burgess Transfer & Storage Ltd. v. Helipro International, 2003 NSSC 159 Date: 20030722 Docket: SH 188791 Registry: Halifax Between: Burgess Transfer & Storage Limited Plaintiff v. Helipro International, a division of Acro Aerospace Inc., Terry Bromwich, Diamond M. Transport Ltd., AOG Ground Support Ltd., International Composites and Structures Inc., Chris Cowx, Randy Turner, Alan Weaving, and Jason Weaving and Don Gossop Defendants Judge: The Honourable Justice Arthur J. LeBlanc Heard: March 25, 2003 in Halifax, Nova Scotia Final Written Submissions: April 17, 2003 Counsel: John Kulik, for the Plaintiff Donald D. MacKenzie, for the Defendants By the Court: [1] The applicants (defendants) claim that the action commenced by the respondent (plaintiff) should not be heard in Nova Scotia because this court does not have jurisdiction over the action or, alternatively, on the basis that Nova Scotia is a forum non conveniens. FACTS[2] The plaintiff, Burgess Transfer (“Burgess”), is a moving company carrying on business in Nova Scotia. In June, 2002, Burgess agreed with the defendant Terry Bromwich (“Bromwich”) to arrange for the transport of household goods of five employees of the defendant Helipro International from British Columbia to Prince Edward Island. Burgess and Bromwich agreed that the goods would be picked up in British Columbia between June 20 and June 27, 2002; Burgess would be paid $85,000 by July 15, 2002; and the goods would be delivered on Prince Edward Island between July 8 and July 12, 2002. Burgess received a cheque that was dishonoured. It received partial payment of $13,751.32, but has not received any further payment. Burgess commenced an action in November 2002. The applicants say the proper forum for the action is Prince Edward Island. ISSUES[3] (1) Does this court have jurisdiction over the action? (2) If this court does have jurisdiction, is Nova Scotia a forum non conveniens for the action? JURISDICTION[4] The applicants argue that there is no “real and substantial connection” between the defendants and Nova Scotia, and thus the originating notice (action) should be set aside for want of jurisdiction pursuant to Rule 11.05(a). It says the fact that the plaintiff carries on business in Nova Scotia is not sufficient to create a real and substantial connection. [5] The respondent says the jurisdiction issue is merely procedural, emphasizing Nova Scotia’s broad rules for service ex juris and the decisions of the Supreme Court of Canada, which it says do not create rigid or demanding requirements in order to show proper jurisdiction. The respondent says its business operations are based in Nova Scotia, and the damages were suffered here. Further, there was no contractual submission to another jurisdiction. [6] In De Savoye v. Morguard Investments Ltd. et al. (1990), 76 D.L.R. (4th) 256 the Supreme Court of Canada decided that a court may assume jurisdiction over a defendant who is outside the province where there is a “real and substantial connection” between the jurisdiction and the subject matter of the proceeding (see pp. 275-279). The case was concerned with the conditions under which a court in one province ought to enforce a judgment of a court in another province. In Hunt v. T&N PLC, [1993] 4 S.C.R. 289 the court addressed the extraterritorial effect of a Quebec statute that restricted the movement of records outside the province for the purpose of legal proceedings. LaForest J. said, at 325: The basic thrust of Morguard was that in our federation a greater degree of recognition and enforcement of judgments given in other provinces was called for. Morguard was careful to indicate, however, that a court must have reasonable grounds for assuming jurisdiction. One must emphasize that the ideas of “comity” are not an end in themselves, but are grounded in notions of order and fairness to participants in litigation with connections to multiple jurisdictions. In Morguard, a more accommodating approach to recognition and enforcement was premised on there being a “real and substantial connection” to the forum that assumed jurisdiction and gave judgment. Contrary to the comments of some commentators and lower court judges, this was not meant to be a rigid test, but was simply intended to capture the idea that there must be some limits on the claims to jurisdiction.... [7] The Ontario Court of Appeal has set out a number of considerations for a court applying the reasonable and substantial connection test. Originally enumerated in Muscutt v. Courcelles (2002), 213 D.L.R. (4th) 577, they are repeated in Incorporated Broadcasters Ltd. v. Canwest Global Communications Corp., [2003] O.J. No. 560 at paras. 39-47: (1) The connection between the forum and the plaintiff’s claim. (2) The connection between the forum and the defendant. (3) Unfairness to the defendant in assuming jurisdiction. (4) Unfairness to the plaintiff in not assuming jurisdiction. (5) The involvement of other parties to the suit. (6) The court’s willingness to recognize and enforce an extra provincial judgment rendered on the same jurisdictional basis. (7) Whether the case is interprovincial or international in nature. (8) Comity and the standards of jurisdiction, recognition and enforcement prevailing. [8] The applicants have referred to Canadian International Marketing Distributing Ltd. v. Nitsuko Ltd. et al. (1990), 68 D.L.R. (4th) 318, which involved a dispute between parties in Canada and Japan. The defendants were Japanese residents who had no presence in Canada; furthermore, it appeared that the contract incorporated Japanese law. The British Columbia court accordingly had no jurisdiction. This case can be distinguished on the basis that it involved an international dispute rather than an interprovincial one. The rules of comity and private international law apply differently between the units of a federal state than they do between countries: Morguard, supra, at 272. In another international case, the Ontario Court of Appeal found that Ontario courts did not have jurisdiction over a Grenadian taxi driver sued by an Ontario resident who suffered damages arising from an accident that occurred in Grenada: Lemmex v. Bernard (2002), 213 D.L.R. (4th) 627. [9] The respondent cites the decision of the Nova Scotia Court of Appeal in Oakley v. Barry (1998), 166 N.S.R. (2d) 282; leave to appeal to S.C.C. denied, [1998] S.C.C.A. No. 282. In that case the plaintiff sued the defendant doctors in Nova Scotia for treatment she received in New Brunswick. The defendants argued that the Nova Scotia court had no jurisdiction. Applying Morguard flexibly, the court found that there was a real and substantial connection between Nova Scotia and the subject matter of the action (as well as the damages). The plaintiff was living in Nova Scotia and receiving treatment there when she commenced the action. Pugsley J.A. said, at paras. 54-55: 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. [10] Nova Scotia was where the plaintiff lived and where she had been diagnosed and treated. There was a significant connection with the jurisdiction, “Nova Scotia being the place where the respondent has suffered her damages” (para. 95). The Court of Appeal took a similar view in O’Brien v. Canada (2002), 201 N.S.R. (2d) 338, on similar facts. I agree with the applicants’ submission that there is a large gap between the facts of the case at bar and those of Oakley and O’Brien. However, this does not negate the principle that fairness in the analysis of jurisdiction applies both to the interests of the defendant and the plaintiff. [11] I note that the requirement for finding jurisdiction is not an especially onerous one. As Goodfellow J. said in Hunt v. Durdle (1996), 153 N.S.R. (2d) 223 (S.C.) at para. 12, with respect to an individual plaintiff: “Residence particularly coupled with employment or a genuine attempt at seeking employment is sufficient to find initial jurisdiction in most cases.” In the present case, the plaintiff is based in Nova Scotia and carries on business here; it negotiated the contract in Nova Scotia as well. Also, the cheque was presented for payment and dishonoured in Nova Scotia. These considerations convince me that it is appropriate to find that the Nova Scotia courts have jurisdiction. FORUM NON CONVENIENS[12] In the event that this Court does have jurisdiction, the applicants seek an order under Rule 14.25 or Rule 25 staying the action on the basis that Nova Scotia is a forum non conveniens and that Prince Edward Island would be a more appropriate forum for this action. [13] In Amchem Products Inc. v. B.C. (W.C.B.), [1993] 1 S.C.R. 897 Sopinka J. said, at p. 912, that “[f]requently, there is no single forum that is clearly the most convenient or appropriate for the trial of the action but rather several which are equally suitable alternatives...”. In order to displace the forum chosen by the plaintiff, he said (at 921), “the existence of a more appropriate forum must be clearly established...”. (Emphasis in original). [14] In Krupp MaK Maschinenbau GmbH et al. v. Black (1996), 149 N.S.R. (2d) 297 (S.C.) M. MacDonald J. (as he then was) said, at para. 8: Generally speaking, the plaintiff in an action has the choice of forum. This choice should not be interfered with unless another forum is proven to be substantially more convenient or inexpensive. See 693663 Ontario Inc. v. Deloitte & Touche Inc. et al. (1992), 109 N.S.R. (2d) 295; 297 A.P.R. 295 (C.A.), where at p. 296, para. 9, Freeman, J.A. noted: “[9] Both sides have referred us to the leading case on the forum of convenience ... : MacShannon v. Rockware Glass Limited, [1978] A.C. 795 (H.L.), at p. 812: ‘To justify a stay two conditions must be satisfied, one positive and the other negative: (a) The defendant must satisfy the court that there is another forum to whose jurisdiction he is amenable in which justice can be done between the parties at substantially less inconvenience or expense; and (b) The stay must not deprive the plaintiff of a legitimate personal or juridical advantage which would be available to him if he invoked the jurisdiction of the English law.’” [15] In Amchem, Justice Sopinka dealt with “juridical advantage” in the following terms at p. 920: The weight to be given to juridical advantage is very much a function of the parties’ connection to the particular jurisdiction in question. If a party seeks out a jurisdiction simply to gain a juridical advantage rather than by reason of a real and substantial connection of the case to the jurisdiction, that is ordinarily condemned as “forum shopping”. On the other hand, a party whose case has a real and substantial connection with a forum has a legitimate to the advantages that that forum provides. The legitimacy of this claim is based on a reasonable expectation that in the event of litigation arising out of the transaction in question, those advantages will be available. [16] The respondent points out similar statements in other cases, for instance Marchand (Guardian ad litem of) v. Alberta Motor Assn. Insurance Co., [1994] 5 W.W.R. 764 (B.C.C.A.) and Landmark Sport Group Atlantic Ltd. v. Karpov et al. (1995), 142 N.S.R. (2d) 280 (S.C.). In Karpov, Tidman J. of this Court dismissed an application for a stay on the basis that the plaintiff and all of its witnesses resided in Nova Scotia and the contract in question had a closer connection with Nova Scotia than with any other jurisdiction. In Karpov, Justice Tidman discussed the MacShannon test as it was altered by Amchem, citing (at para. 12) Justice Sopinka’s comment (at p. 919 of Amchem) that “there is no reason in principle why the loss of juridical advantage should be treated as a separate condition rather than being weighed with the other factors which are considered in identifying the appropriate forum.” [17] The applicants have referred to the decisions of this court in Garson Holdings Ltd. v. Wade (Norman) Co. Ltd. (1991), 111 N.S.R. (2d) 32; 693663 Ontario Inc. v. Deloitte & Touche Inc. et al. (1990), 102 N.S.R. (2d) 376; Owen v. Tinmouth (1992), 116 N.S.R. (2d) 245; and Hunt v. Durdle (1996), 153 N.S.R. (2d) 223. [18] In Garson the plaintiff’s head office was in Nova Scotia and the defendant was registered to do business in Nova Scotia. Their dispute involved a rental of premises in New Brunswick. The defendant’s witnesses were in New Brunswick and Ontario. Gruchy J. concluded that New Brunswick was a more convenient forum. It was relevant that the premises in question were located in New Brunswick, and that there would be no great inconvenience for the plaintiff, since the plaintiff’s principal frequently travelled to New Brunswick. The balance of convenience strongly favoured moving the action to New Brunswick. [19] In 693663 Ontario Inc. an Ontario company registered to do business in Nova Scotia sued a receiver for the balance of a down payment after it failed to complete the purchase of the assets of a Prince Edward Island insolvent. The receiver applied to stay the action on the basis that Nova Scotia was a forum non conveniens. The majority of witnesses resided on Prince Edward Island. Further, the plaintiff’s power of sale originated entirely in an order of the Prince Edward Island Supreme Court. Tidman J. found that Prince Edward Island was clearly a more convenient forum for the matter. Justice Tidman made a similar finding in Owen v. Tinmouth (1992), 245 N.S.R. (2d) 245, where the plaintiff was a Prince Edward Island resident injured in Nova Scotia, and sued in Nova Scotia on an insurance contract entered into on Prince Edward Island and governed by the laws of that province. [20] I note that these three cases all predate the restatement of the law by the Supreme Court of Canada in Amchem. The applicant also cites Hunt v. Durdle (1996), 153 N.S.R. (2d) 223 (S.C.), where the plaintiff, an Ontario resident, was injured in Newfoundland. She later moved to Nova Scotia and commenced an action there against the Newfoundland defendant. Goodfellow J. concluded that Newfoundland was clearly the most convenient and appropriate forum. [21] In Crossley Carpet Mills Ltd. v. Guarantee Co. of North America (unreported); affirmed [2000] N.S.J. No. 15 (C.A.), the defendant issued a bond to a Quebec-based construction company for a project in Quebec. The plaintiff, a Nova Scotia-based supplier to a Quebec-based subcontractor, claimed it had not been paid and was seeking to rely on the bond for payment. The defendant argued that Nova Scotia was a forum non conveniens. It said, inter alia, that the bond was between Quebec-based parties, the defendants’ employees resided in Quebec and their primary language was French, all the work was done in Quebec and the bond would have to be interpreted in accordance with Quebec law. The plaintiff pointed out that its own witnesses were located in Nova Scotia, all the documentary evidence (chiefly invoices and correspondence between the parties) was available in Nova Scotia, that a Nova Scotia trial could be conducted in French or with translation services (and, in any event, the fact that there were English-speaking witnesses would neutralize the language issue) and that Quebec law might not differ in any material respect from Nova Scotia law. The plaintiff also argued that Nova Scotia’s well developed law of guarantee and extensive pre-trial disclosure procedures gave it a juridical advantage. [22] In Crossley I concluded that Quebec was not clearly a preferable forum; as such, the defendant had not met the heavy burden necessary to succeed on a forum non conveniens application. I followed the reasoning in 679927 Ontario Ltd. v. Wall (1997), 156 N.S.R. (2d) 360, where our Court of Appeal upheld the Chambers judge’s conclusion that Nova Scotia was not a forum non conveniens. Flinn J.A. considered the Amchem decision and went on to cite a decision of the British Columbia Court of Appeal at para. 28: There is good reason why, in order to displace an appropriate forum selected by the plaintiff, a more appropriate forum must be clearly established. I cannot express that reason any better than did McLachlin, J.A. (as she then was) in the case of Avenue Properties Ltd. v. First City Development Corporation Ltd. et al. (1986), 7 B.C.L.R. (2d) 45 at p. 50: ... a plaintiff’s choice of forum should not be lightly denied. It is his right to have ready access to the courts of his jurisdiction and not to be required to travel outside his jurisdiction to present his case. This is particularly the case where the plaintiff resides in the jurisdiction where he seeks to bring his action or where there is some other bona fide connection between the action and the jurisdiction in which it is sought to be brought. Accordingly, the court’s jurisdiction to stay proceedings should be used sparingly. [23] The applicants argue that the case revolves around the transport of goods from British Columbia to Prince Edward Island. All the physical evidence, as well as six of the defendants, is located on Prince Edward Island. The other four defendants are in British Columbia. Any non-party testimony, they argue, will come from witnesses on Prince Edward Island. There was no documentation signed in Nova Scotia, nor were any of the goods carried through Nova Scotia. No independent witnesses are located in Nova Scotia, and no physical evidence is located there. They say the only connection to Nova Scotia is that that is where the plaintiff carries on business. Further, they say, Prince Edward Island would provide the plaintiff with any juridical advantage available in Nova Scotia. Thus, the applicants say, Prince Edward Island is clearly a more convenient forum. [24] As for the Crossley decision, the applicants say it can be distinguished from the case at bar on the basis that the contract in Crossley had some connection with Nova Scotia, as the materials were ordered from and supplied by a Nova Scotia company, and hence the contract was at least partly performed in Nova Scotia. The applicants also say the plaintiff has no more than three likely witnesses from Nova Scotia, while its witnesses on Prince Edward Island number “in the double digits”; this, it says, is a “tremendous disparity” in witness numbers that was not present in Crossley. The applicants also say the physical evidence – as opposed to the documentary evidence – is located on Prince Edward Island. By this it refers to the goods that were transported, particularly the vehicles the defendants say were damaged during the transport. [25] The respondent says it is based in Nova Scotia, its witnesses are in Nova Scotia, and its damages were suffered in Nova Scotia. The respondent says there is no single forum that is most appropriate in this case, and as such the forum in which the action was commenced should prevail, providing it is an appropriate forum. The respondent points out that the applicants have not claimed it commenced the action in Nova Scotia for any juridical advantage. It says there is no evidence that it would be less inconvenient and less expensive to try this matter on Prince Edward Island than in Nova Scotia. [26] The respondent says the circumstances in Crossley were, if anything, more conducive to a finding of forum non conveniens than those in the case at bar, and yet no such finding was made. It says the claim in Crossley had “considerably weaker connections with Nova Scotia than Burgess Transfer’s claim in the case at hand” and argues that the only connection between this action and Prince Edward Island arose after the contract was made by parties in Nova Scotia and British Columbia. [27] I conclude that there is no alternative forum that would clearly be more convenient and less expensive than Nova Scotia. There are three potential forums for this action: British Columbia, Nova Scotia and Prince Edward Island. The applicants insist that Prince Edward Island would be preferable. Their burden is a heavy one. While the defendants’ witnesses are located on Prince Edward Island, along with the physical evidence, the plaintiff’s main witnesses are in Nova Scotia, along with much of the documentary evidence. The contract was formed by parties in Nova Scotia and British Columbia; Prince Edward Island was only relevant to the contract as the destination of the transport. There is no evidence of juridical advantage or disadvantage to the plaintiff, so that this consideration is neutral. [28] Therefore I reject the applicants’ argument that Nova Scotia is a forum non conveniens. This is not a proper case in which to deny the plaintiff the benefit of proceeding with its action in its forum of choice. DISPOSITION[29] Accordingly, I dismiss the application. COSTS[30] I award costs to the respondent in the amount of $750 payable in the cause. J.