Canada Case Law

N.W. Fulcher Limited v. Chad Munro Family Trust (2010)

Court

Supreme Court of Nova Scotia

Defendants failed to meet the evidentiary and persuasive burden to obtain a stay because they did not apply for a stay before taking steps in the proceedings, they did not establish readiness and willingness to arbitrate as required by s.7 of the Arbitration Act, and they attorned to the court by filing a defence on the merits; therefore the motion to stay and compel arbitration was dismissed and the action may proceed in court.

Source excerpt

• Shareholders agreement
• Stay of proceedings
• Attornment
• Mediation clause
• Arbitration clause
• Costs

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Hui v. The Owners, Strata Plan BCS3702

Court

Supreme Court of British Columbia

The court held it had concurrent jurisdiction over a strata unfairness claim, refused to refer the matter to the CRT, and declined to convert the action to a petition.

• Significant unfairness
• Jurisdictional transfer to crt
• Attornment
• Conversion to petition
• Document discovery
• Proportionality

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Smith v. VM Agritech Limited

Court

Supreme Court of British Columbia

The court dismissed an appeal from an associate judge’s refusal to set aside default judgment, holding the associate judge had jurisdiction and made no reviewable error.

• Default judgment
• Setting aside judgments
• Jurisdiction of associate judges
• Service of process
• Attornment
• S.96 constitutional limit

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Bakali v. Mak

Court

Supreme Court of British Columbia

The court held it lacked territorial jurisdiction over Ricky and Ricky Trading, but had jurisdiction over Ho, Salina, and Granding. It stayed the remaining claims in favour of Hong Kong.

• Jurisdiction
• Forum non conveniens
• Attornment
• Constructive trust
• Liquidation
• Forum-non-conveniens

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PKS v. ANR

Court

Supreme Court of British Columbia

The court dismissed the mother’s request for double costs, confirmed presumptive Scale B costs in her favour, and left each party to bear its own costs of the costs hearing.

• Forum non conveniens
• Offer to settle
• Costs awards
• Jurisdiction
• Attornment
• Special costs

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Trop v. Trop

Court

Court of Appeal for Ontario

The stay was refused because the moving party did not establish irreparable harm: compliance with the production order would not constitute attornment to Ontario jurisdiction, the production order is interlocutory, and the balance of convenience favors disclosure in family proceedings; the moving party's prior failure to comply further undermined equitable relief.

Source excerpt

• Jurisdiction
• Stay of proceedings
• Financial disclosure
• Interim orders
• Attornment

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Wilson v. Martin

Court

Supreme Court of Nova Scotia

The court holds that it has territorial jurisdiction by virtue of the defendants' residence but, applying s.12 factors of the Court Jurisdiction and Proceedings Transfer Act and relevant case law, finds Ecuador is the clearly more appropriate forum for resolving the contract dispute (contract made in Ecuador, governed by Ecuadorian law, property and witnesses located in Ecuador); accordingly the Nova Scotia proceeding is stayed in favour of Ecuador, and the defendants' abuse of process counterclaim cannot be separated and heard in Nova Scotia under Rule 88.05 and does not survive the stay.

Source excerpt

• Forum non conveniens
• Territorial jurisdiction
• Attornment
• Abuse of process
• Separation of counterclaim
• Enforcement of foreign judgment

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VM Agritech Limited v. Smith

Court

British Columbia Court of Appeal

The Court of Appeal upheld territorial competence in a debt claim, but held the defendants had not attorned by filing a jurisdictional response after the 30-day period.

• Territorial competence
• Attornment
• Service ex juris
• Rule 21-8 (civil rules)
• Forum conveniens
• Cjpta s.3 and s.10

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Ross Estate (Re)

Court

Supreme Court of British Columbia

The court held British Columbia had territorial competence over the estate dispute and declined to stay the petition in favour of Alberta.

• Territorial competence
• Forum non conveniens
• Will validation
• Wesa ss.37,43,58
• Ordinary residence
• Limited grant of administration

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Trio Apparel Inc. v. Arborlea Developments Ltd.

Court

Supreme Court of British Columbia

The court stayed Trio Apparel’s claim in favour of arbitration under the parties’ agreement, struck an amended notice filed without court order, and deferred the limitation declaration.

• Mandatory arbitration clause
• Stay of proceedings
• Abuse of process (duplication)
• Indemnity
• Statute of limitations for arbitration
• Attornment to court jurisdiction

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