Penny v. Bouch

Penny v. Bouch

The Court held the Nova Scotia Court Jurisdiction and Proceedings Transfer Act applies to this proceeding; on balancing Muscutt/Amchem factors the court found a real and substantial connection to Nova Scotia (damage now sited here, ongoing treatment and witnesses in Nova Scotia, and unfairness to impecunious...

Source-derived case information.

Citation
2008 NSSC 378
Parties
Plaintiff (infant Represented): Caiden Christopher Penny (infant) by his Litigation Guardian Vicki Penny; Plaintiff (litigation Guardian and Personal Capacity): Vicki Penny; Defendant (physician): Peter J. Bouch; Defendant (physician): William R. Young; Defendant (physician): Jared Yeung; Defendant (physician): Richard Moffatt; Defendant (corporate Hospital): David Thompson Health Region, carrying on business as the Red Deer Regional Hospital Centre
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
17 December 2008
Procedural Posture
Medical Malpractice / Personal Injury / Application to Dismiss for Lack of Jurisdiction Or, Alternatively, Stay on Forum Non Conveniens Grounds
Outcome
Defendants' application to dismiss or stay for lack of jurisdiction/forum non conveniens dismissed; action to proceed in Supreme Court of Nova Scotia
Legal Topics
Territorial Competence, Real and Substantial Connection, Forum Non Conveniens, Choice of Forum, Court Jurisdiction and Proceedings Transfer Act
Source Language
english
Civil Procedure Medical Malpractice Conflict of Laws Jurisdiction Administrative/statutory Interpretation Territorial Competence Real and Substantial Connection Forum Non Conveniens +2 more

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 13 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Caiden Christopher Penny (infant) by his Litigation Guardian Vicki Penny

Plaintiff (infant Represented)

Vicki Penny

Plaintiff (litigation Guardian and Personal Capacity)

Peter J. Bouch

Defendant (physician)

William R. Young

Defendant (physician)

Jared Yeung

Defendant (physician)

Richard Moffatt

Defendant (physician)

David Thompson Health Region, carrying on business as the Red Deer Regional Hospital Centre

Defendant (corporate Hospital)

Procedural Posture

Medical Malpractice / Personal Injury / Application to Dismiss for Lack of Jurisdiction Or, Alternatively, Stay on Forum Non Conveniens Grounds

Legal Issues

  1. 1 Does the Court Jurisdiction and Proceedings Transfer Act apply to proceedings commenced before its commencement?
  2. 2 Is there a real and substantial connection between Nova Scotia and the subject matter/parties such that the court has territorial competence?
  3. 3 If territorial competence exists, should the court decline to exercise it because Alberta is a clearly more appropriate forum?

Ratio Decidendi

The Court held the Nova Scotia Court Jurisdiction and Proceedings Transfer Act applies to this proceeding; on balancing Muscutt/Amchem factors the court found a real and substantial connection to Nova Scotia (damage now sited here, ongoing treatment and witnesses in Nova Scotia, and unfairness to impecunious plaintiffs if forced to litigate in Alberta) and concluded defendants failed to show Alberta is clearly a more appropriate forum; therefore the application to dismiss or stay was dismissed and the action may proceed in Nova Scotia.

Court Disposition

Defendants' application to dismiss or stay for lack of jurisdiction/forum non conveniens dismissed; action to proceed in Supreme Court of Nova Scotia

Orders

  • Application dismissed; action permitted to proceed in the Supreme Court of Nova Scotia
  • Costs to plaintiffs of this application to be assessed in accordance with Tariff C under section 63 of the Civil Procedure Rules