SCP Distributors Canada, Inc. v. Silver Pacific Investments Inc.

2020 BCSC 1573 SCP Distributors Canada, Inc. v. Silver Pacific Investments Inc.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: SCP Distributors Canada, Inc. v. Silver Pacific Investments Inc., 2020 BCSC 1573 Date: 20200814 Docket: S188446 Registry: Vancouver Between: SCP Distributors Canada, Inc. Plaintiff And Silver Pacific Investments Inc. dba SPI International Transportation, Big Freight Systems Inc., Sandliner Trucking Ltd., Ace Pilot Car (2006) Ltd. dba Ace Pilot Car, Mike Damien, John Doe No. 1 and John Doe No. 2 Defendants Before: The Honourable Madam Justice Baker Oral Reasons for Judgment In Chambers Counsel for the Plaintiff appearing by teleconference: M. Silva B.E. Black Counsel for the Defendant Silver Pacific Investments Inc. appearing by teleconference: L. Buitendyk, A/S (as Agent for S. Kamboj) Counsel for the Defendant Big Freight Systems Inc. appearing by teleconference: R.W. Morasiewicz Counsel for the Defendant Sandliner Trucking Ltd. appearing by teleconference: R. Johal Place and Date of Trial/Hearing: Vancouver, B.C. August 14, 2020 Place and Date of Judgment: Vancouver, B.C. August 14, 2020 [1] THE COURT: In this application, the defendant Big Freight Systems Inc. ("Big Freight") applies to have the claims against it struck out pursuant to Rule 21‑8(1) of the Supreme Court Rules. In the alternative, Big Freight seeks to have the claims against it transferred to the Court of Queen's Bench of Manitoba, pursuant to the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c.

28. I will refer to that Act as the Transfer Act. Finally, in the further alternative, Big Freight seeks a stay of proceedings of the claim against it on the basis of forum non conveniens pursuant to s. 11 of the Transfer Act. [2] In this action, the plaintiff, SCP Distributors Canada Inc., claims against Silver Pacific Investments Inc. ("SPI"), Sandliner Trucking Ltd. ("Sandliner"), Ace Pilot Car (2006) Ltd. ("Ace"), the applicant Big Freight, and the drivers of certain vehicles owned by Sandliner, Ace , and Big Freight. [3] In the notice of civil claim, the plaintiff alleges that it entered into a written agreement with SPI wherein SPI was retained to move a number of swimming pools from Ontario to British Columbia. The agreement between these parties included provisions that the laws of British Columbia would apply and the parties attorn to the jurisdiction of British Columbia in the event of a dispute. SPI then retained Sandliner, assisted by Ace, to complete the transportation of the pools from Ontario to British Columbia. [4] As the Sandliner truck, assisted by Ace, transited across Manitoba, it got into a motor vehicle accident with a truck owned by Big Freight. The swimming pools which were the subject of the transportation contract were damaged in this accident. [5] The plaintiff claims in breach of contract, bailment, and negligence against SPI and Sandliner. The

plaintiff claims in negligence against all of the remaining parties. With the exception of Big Freight, all of the parties have attorned to the jurisdiction of British Columbia in this litigation. [6] SPI has prepared application materials seeking leave to file and serve a third party notice against all of the defendants, including Big Freight. The issues before me are whether the claims against Big Freight should be dismissed pursuant to Rule 21‑8(1), and whether the claims against Big Freight should be transferred to the Court of Queen's Bench in Manitoba and the proceedings in B.C. stayed against Big Freight. [7] Dealing with the first issue, pursuant to Rule 21‑8(1), if the claim does not allege facts which, if true, would establish the court has jurisdiction over Big Freight, Big Freight is entitled to have the claim against it struck. Big Freight is a federally incorporated company with extra-provincial registration in British Columbia. It has an office for delivery located in Port Alberni, although its main office is in Manitoba. [8] The contract between the plaintiff and SPI was made in British Columbia and that contract requires the parties to apply the laws of British Columbia and attorn to the jurisdiction of British Columbia. The goods were transferring from Ontario to British Columbia. Pursuant to the law of bailment, the point of delivery is British Columbia for

these goods. The claims against SPI include claims that SPI negligently retained subcontractors to complete the transfer of the cargo and the accident in Manitoba is evidence of that alleged negligence. [9] Big Freight is not a party to the plaintiff's contract with SPI and is not a subcontractor to SPI. [10] Pursuant to the Transfer Act, the test for territorial competence is set out in ss. 3, 7, and 10 of that Act. Section 3 of the Transfer Act states that a court has territorial competence in a proceeding brought against a person if that person is ordinarily resident in British Columbia at the time of the proceeding. [11] Section 7 of the Transfer Act says that a corporation is ordinarily resident in British Columbia if the corporation has a registered office in British Columbia, has a registered office in British Columbia at which process may be served generally, or has a place of business in British Columbia. [12] Big Freight has an address for service and delivery in British Columbia pursuant to its extra-provincial registration. Counsel for Big Freight was unable to provide me with authority which would indicate that an extraprovincial registration would not meet the requirements of s. 7 of the Transfer Act. [13] I find that the extra-provincial registration of Big Freight in British Columbia satisfies s. 7 of the Transfer Act. As such, I find that Big Freight is

ordinarily resident in British Columbia. The court of British Columbia has territorial competence over Big Freight in this proceeding pursuant to s. 3(d) of the Transfer Act. As a result of this finding, I do not need to deal with whether there is a real and substantial connection to British Columbia pursuant to s. 3(e) of the Transfer Act, nor do I need to analyze the substance of s. 10 of the Transfer Act which guides the court in determining the basis for a real and substantial connection between British Columbia and the facts on which the proceeding is based. [14] Dealing now with whether the plaintiff's claims against Big Freight should be transferred to the Court of Queen's Bench in Manitoba and stayed in British Columbia, having found that British Columbia has jurisdiction over Big Freight, the next question to be considered is whether British Columbia should decline to exercise its territorial competence in this action as against Big Freight. Section 11 of the Transfer Act states that the court, when considering the question of whether a court outside of British Columbia is a more appropriate forum for the proceeding, must consider circumstances which include the comparative convenience and expense for the parties to the proceeding and their witnesses, the law to be applied to the issues in the proceeding, the desirability of avoiding multiplicity of legal proceedings,

the desirability of avoiding conflicting decisions in different courts, the enforcement of an eventual judgment, and the fair and efficient working of the Canadian legal system as a whole. [15] Big Freight says that all of its witnesses are in Manitoba, the site of the accident is in Manitoba, the police witnesses are in Manitoba, and the driver of the Big Freight truck is in Manitoba. Big Freight argues that the convenience of all of the witnesses in relation to the facts of the motor vehicle accident lies in this claim being tried in Manitoba. [16] The plaintiff, whose position is agreed to by the other defendants, states that its witnesses are all in B.C. and they would have to go to Manitoba if the motor vehicle trial was held there. Similarly, counsel for Sandliner states that the driver of the truck which was in the accident in Manitoba is located in Ontario, and he would have to travel to either British Columbia or Manitoba regardless. [17] On balance, the respondents submit that while it is more convenient for Big Freight to have the trial heard in Manitoba, it is less convenient for the remaining parties who have attorned to the jurisdiction of British Columbia. [18] I find the convenience of the witnesses is a neutral factor before me. While it is more convenient for Big Freight to have its witnesses appear in Manitoba, that cannot be said for the other defendants. I

find this factor weighs equally between the applicant and the respondents on this application. [19] Big Freight argues that the law of Manitoba will have to be applied with respect to the motor vehicle accident and points to the amendments made to the notice of civil claim to replace the British Columbia statutes with Manitoba statutes. Counsel for Big Freight could not identify for me whether there were substantial differences between the Manitoba and British Columbia law with respect to motor vehicle accidents, noting that he does not have evidence of the law in Manitoba before us on this application. The plaintiff and other defendants submit that the law of Manitoba can be applied by the British Columbia courts and this is not an obstacle to this matter proceeding. [20] While the application of foreign law may be a major issue in some cases, in this case the parties are dealing with common law jurisdictions in the same country. I am not satisfied that the law in Manitoba is so radically different to the law in British Columbia that the courts in British Columbia would have difficulty applying the Manitoba law. I find this factor favours the respondents to this application. [21] With respect to the avoidance of multiplicity of proceedings, Big Freight argues that commencing a claim with respect to the motor vehicle accident in Manitoba will not increase the number of

proceedings that relate to it. However, Big Freight does not seek to transfer the whole of the action to Manitoba and therefore concedes that it will create two proceedings for all of the other parties if Big Freight's application is successful. [22] The plaintiff argues that it cannot bring the whole of its claim in Manitoba as the claims in bailment can only be brought in British Columbia, the point of delivery, or Ontario, the point of origin. Further, by virtue of its contract with SPI, it must bring the contractual claims in British Columbia. Therefore, the plaintiff argues that avoidance of a multiplicity of proceedings requires the claim as a whole to be prosecuted in British Columbia. [23] Sandliner argues that it intends to bring third party proceedings against all of the defendants, including Big Freight, for contribution and indemnity on all of the claims against it, including the contractual and bailment claims. Big Freight responds to this submission, saying that it will resist this application which will be made outside of the 40‑day requirement in the Rules. [24] With respect to the desirability of avoiding conflicting decisions in different courts, Big Freight argues that the motor vehicle issues can be determined in Manitoba and the outcome of that proceeding will not be in conflict with the remaining issues to be determined in British Columbia. The plaintiff

argues that the issues are interrelated and cannot be separated in the way contemplated by Big Freight. For example, the plaintiff argues that the contract of bailment claims brought against some defendants could potentially be defended on arguments that negligent loading or securing of the cargo created instability that caused or contributed to the accident. The plaintiff also argues that all of the issues relating to the nature and cause of the accident, along with quantum issues, will be before the British Columbia courts, even if the motor vehicle issues were brought in Manitoba. The plaintiff argues that all of the parties to the British Columbia proceedings would be required to attend trial in Manitoba to deal with the motor vehicle negligence claims, given the interrelated nature of the issues. [25] I find that on the factor of avoidance of multiplicity of proceedings, the respondent's position prevails. Big Freight concedes that at a minimum, if its application is successful, all of the parties except Big Freight will be required to attend two trials arising out of the same subject matter in two different provinces. [26] Further, while leave to bring the third party proceedings contemplated by Sandliner has not yet been determined, there is a real risk that Sandliner will be successful and Big Freight will be brought back into the British Columbia proceedings in any

event. I also accept the arguments of the plaintiff in relation to the potential for conflicting decisions should this matter be split and heard in both British Columbia and Manitoba. [27] Big Freight argues that the enforcement of an eventual judgment would be more simple if the claim was brought in Manitoba, because if Big Freight is found liable, Big Freight is located in Manitoba. I am not convinced that the enforcement of a judgment against one or all of the defendants would be hampered by the fact that Big Freight has its head office in Manitoba, should the claim be litigated in British Columbia. If there is any risk in this respect, it is a risk borne by the plaintiff which it is clearly content to bear. As such, this factor does not support the position advanced by Big Freight. [28] Big Freight argues that the division of proceedings and obtaining of two decisions in two provinces would not inhibit the fair and efficient working of the Canadian legal system as a whole. The respondents on this application take the opposite position for the reasons discussed earlier, and also rely on Club Resorts v. Van Breda, 2012 SCC 17 at paragraph 99, in support of their position. In that case, the Supreme Court of Canada commented that: The purpose of the conflicts rules is to establish whether a real and substantial connection exists between the forum, the subject matter of the

litigation and the defendant. If such a connection exists in respect of a factual and legal situation, the court must assume jurisdiction over all aspects of the case. The plaintiff should not be obliged to litigate a tort claim in Manitoba and a related claim for restitution in Nova Scotia. That would be incompatible with any notion of fairness and efficiency. [29] I find that the fair and efficient working of the Canadian legal system is not enhanced by splitting this case between provinces for the reasons already described. Splitting the case in the manner submitted by Big Freight would create an unnecessary complication and expense for six parties to the litigation, while possibly creating an advantage for Big Freight, but only in the event Big Freight is not ultimately brought back into the British Columbia. litigation through third party proceedings. I find this outcome to be incompatible with the fairness and efficiency in the prosecution of the issues of the case. [30] In the result, I find Big Freight has not met the burden on it to establish that British Columbia is not a convenient forum for the prosecution of the claims in this action. As I have found that British Columbia is a convenient forum for the prosecution of this action against Big Freight, no stay of proceedings will issue against those claims. [31] The application of Big Freight is dismissed and I order costs to the respondents of this application in the cause. Just to be clear, I am not ordering costs in any event of the cause. "Baker J."