IN
THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Sooparayachetty v. Fox, |
| 2010 BCSC 185 |
Date: 20100211
Docket:
M091948
Registry: Vancouver
Between:
Angana
Sooparayachetty, also known as Parvedee Sooparayachetty
Plaintiff
And
Dustin
J. Fox and Owen Myles Fox
Defendants
– and
Docket:
M091951
Registry: Vancouver
Between:
Darmalingon Sooparayachetty
Plaintiff
And:
Dustin J. Fox and Own Myles Fox
Defendants
– and
Docket:
M091952
Registry: Vancouver
Between:
Vishen Sooparayachetty
Plaintiff
And:
Dustin J. Fox and Owen Myles Fox
Defendants
– and
Docket:
M091970
Registry: Vancouver
Between:
Keshini Govinden, an infant by her Litigation Guardian, Renganaden
Govinden and the said Renganden Govinden
Plaintiffs
And:
Dustin J. Fox and Owen Myles Fox
Defendants
– and
Docket:
M091945
Registry: Vancouver
Between:
Padmini Govinden
Plaintiff
And:
Dustin J. Fox and Owen Myles Fox
Defendants
– and
Docket:
M091946
Registry: Vancouver
Between:
Steven Govinden
Plaintiff
And:
Dustin J. Fox and Owen Myles Fox
Defendants
– and
Docket:
M091947
Registry: Vancouver
Between:
Dylan Govinden
Plaintiff
And:
Dustin J. Fox and Owen Myles Fox
Defendants
Before: Master Scarth
Reasons for Judgment
Counsel for Plaintiff: | C. R. Bacon |
Counsel for Defendants: | G. J. Allen |
Place and Date of Hearing: | Vancouver, B.C. |
Place and Date of Judgment: | Vancouver, B.C. |
[1]
In each of these actions, the defendants apply
under Rule 14(6) (a) and (b) for the following orders:
1. that the Writ of Summons and Statement of
Claim filed herein be struck out or the proceedings against the Defendants be
dismissed or stayed on the grounds that the Writ of Summons and Statement of
Claim do not allege facts that, if true, would establish that the Court has
jurisdiction over the Defendants in respect of the claims made against the
Defendants in the herein action;
2. that this action be dismissed or stayed
on the ground that the Court does not have jurisdiction over the Defendants, in
respect of the claims made against them in this action; and
3. for costs if,
and only to the extent that, application for and receipt of, costs does not
constitute submission to the Courts jurisdiction.
Background
[2]
All of the actions arise from a motor vehicle
accident which occurred on August 3, 2007 on Highway No. 1 near Lake Louise,
Alberta. The eight plaintiffs (one of whom is an infant) were travelling in a
van driven by the plaintiff Rengananden Govinden when the van was struck by a
vehicle owned by the defendant Owen Fox and driven by the defendant Dustin
Fox. The defendants are Alberta residents.
[3]
Each occupant of the van has brought an action
against Messrs. Fox, both in British Columbia and Alberta. The claims made in
the British Columbia actions include those for general and special damages for
personal injury, past and future loss of income, and impairment of income
earning capacity.
[4]
The eight plaintiffs belong to two families.
Five plaintiffs belong to the Govinden family who were visiting Canada at the
time of the accident. The Govindens are residents of the United Kingdom. Three
plaintiffs belong to the Sooparayachetty family and reside in British
Columbia.
[5]
Of the three Sooparayachetty family members, two
suffered minor injuries. Parvedee Sooparayachetty suffered more serious
injuries a chest injury, kidney damage and soft tissue injuries and is
still receiving treatment.
[6]
The defendants have denied liability and have
challenged the jurisdiction of this court over the actions. On this application
the defendants seek a determination of jurisdictional issues in all the British
Columbia actions.
[7]
In November 2009, after the application was
heard, Parvedee Sooparayachetty was involved in another motor vehicle accident,
this time in British Columbia. At a further hearing on December 16, 2009,
counsel for the plaintiffs referred to a recent report from Ms.
Sooparayachettys treating physician which, in summary, states that the
injuries that she suffered in the Alberta accident have been aggravated and
that a follow-up will be necessary to determine the extent and complications
of the recent motor vehicle accident in relation to the previous accident of
August 3, 2007.
Issue
[8]
The issue here is whether the court has
jurisdiction over the defendants in respect of the claims made against them in
these actions.
Positions of
the Parties
[9]
The defendants submit that the court does not
have territorial competence in these actions. They submit that there is no
real and substantial connection between the litigation and British Columbia.
With regard to the second accident involving Ms. Sooparayachetty, the
defendants say that while her claims arising from the two accidents should be
determined together, she has not commenced an action yet in relation to the
second accident. Further, they submit that Alberta is the more convenient
forum for these actions.
[10]
Ms. Sooparayachetty submits that the nature and
extent of her injuries, the treatment she is undergoing in British Columbia,
and the fact that her injuries in the first and second accident require a
global assessment, amount to a real and substantial connection between
British Columbia and the facts of her action, such that the court has
jurisdiction over her claims against the defendants here.
[11]
The plaintiffs in the other actions say that
while their actions either are appropriately heard in Alberta, or do not cry
out for determination in British Columbia under the usual rules relating to
territorial competence, administrative convenience may warrant that the actions
be heard here. I take it from this that the other plaintiffs essentially accept
that, but for the existence of Ms. Sooparayachettys action, their actions
would properly be brought in Alberta.
Analysis and
Decision
[12]
Rule 14(6) sets out the procedure for
challenging territorial competence. The defendants here apply under Rule 14(6)(a)
and (b). Under Rule 14(6)(a), the objective is to determine whether the
pleadings allege facts which, if true, would establish jurisdiction. Evidence
may be adduced by a plaintiff on such applications to show an arguable case
that the court has territorial competence: Purple Echo Productions, Inc. v.
KCTS Television, 2008 BCCA 85, at para. 34. Under Rule 14(6)(b), a
defendant can challenge jurisdiction even if a plaintiff has satisfied the
requirements of Rule 14(6)(a). The question is whether, on affidavit evidence,
the plaintiff can establish an arguable case that the facts are sufficient to
establish jurisdiction. If facts sufficient to establish jurisdiction are not
pleaded, or adduced in affidavit form, the pleadings are struck, or the action is
dismissed or stayed: Purple Echo, supra, at para. 36.
[13]
The Court of Appeal has recently confirmed that
the question of jurisdiction is to be determined exclusively by the substantive
rules set out in the Court Jurisdiction and Proceedings Transfer Act, S.B.C.
2003, c. 28 (CJPTA): Stanway v. Wyeth Pharmaceuticals Inc., 2009
BCCA 592, at para. 12.
[14]
Section 3 of the CJPTA sets out the
circumstances in which a court has territorial jurisdiction as follows:
A court has territorial competence in a
proceeding that is brought against a person only if:
(a) that
person is the plaintiff in another proceeding in the court to which the
proceeding in question is a counterclaim,
(b) during
the course of the proceeding that person submits to the courts jurisdiction,
(c) there
is an agreement between the plaintiff and that person to the effect that the
court has jurisdiction in the proceeding,
(d) that
person is ordinarily resident in British Columbia at the time of the commencement
of the proceeding, or
(e) there is a real
and substantial connection between British Columbia and the facts on which the
proceeding against that person is based.
[15]
Section 10 of the CJPTA sets out a list
of circumstances that presumptively constitute a real and substantial
connection between British Columbia and the facts on which a proceeding is
based for the purposes of s. 3(e). A plaintiff who is unable to bring herself
within the statutory presumptions may nevertheless prove other circumstances
which constitute a real and substantial connection.
[16]
The plaintiffs rely on s. 3(e) of the CJPTA
real and substantial connection between British Columbia and the facts on
which the proceeding against the defendants is based. In this case, the
presumptive circumstances in section 10 of the CJPTA do not apply. It
is therefore for the plaintiffs to establish that there is the real and
substantial connection necessary to found jurisdiction.
[17]
Turning to the statement of claim in Ms.
Sooparayachettys action, she pleads that she resides in Surrey, British
Columbia, and that the defendants reside in Calgary, Alberta. She alleges that
she was a passenger in a rental vehicle which was travelling on Highway No. 1
near Lake Louise, Alberta when it was struck by a vehicle driven by the
defendant Dustin Fox, with the consent of the owner of the vehicle, the
defendant Owen Fox. Ms. Sooparayachetty alleges that the defendants were
negligent, and that, as a result of their negligence, she has sustained
personal injury, including injury to her neck, shoulders and back, marked
disability and loss of enjoyment of life. She seeks general and special
damages, interest and costs.
[18]
Ms. Sooparayachetty relies on the affidavit of
her husband, Darmalingon Sooparayachetty, sworn September 30, 2009, in which he
sets out the treatment which Ms. Sooparayachetty has received, since her return
to British Columbia, for injuries allegedly suffered in the Alberta accident.
She also refers to her own affidavit sworn December 11, 2009, in which she
deposes that she was involved in a motor vehicle accident on November 16, 2009
when the vehicle she was driving was rear-ended by a vehicle driven by a
resident of Delta, British Columbia. Ms. Sooparayachetty attended at her
general practitioners office following the accident. His letter of November
27, 2009, exhibited to the affidavit of a legal assistant, states that the
recent accident has aggravated her symptoms concerning the neck, shoulder and
back, and refers to a complication of injuries relating to her kidneys.
[19]
On this application, Ms. Sooparayachetty relies
on the fact that she continues to suffer damages in British Columbia arising
from the Alberta accident and on the fact that her injuries from the Alberta
accident have now been aggravated by a second accident which took place in
British Columbia. These facts are not contentious. Do they establish a
sufficient nexus between the subject-matter of this action and British Columbia?
[20]
While real and substantial connection has not
been defined, the cases provide some guidance as to what connections are insufficient
to found jurisdiction.
[21]
It is clear that the fact that a plaintiff is
resident in British Columbia is insufficient: Roed v. Scheffler et al,
2009 BCSC 731, at para. 35, citing Jordan v. Schatz, 2000 BCCA 409, and Williams
v. TST Porter (c.o.b. 6422217 Canada Inc.) 2008 BCSC 1315.
[22]
The fact that a plaintiff continues to suffer
damages in British Columbia is insufficient to establish a real and substantial
connection on its own: Roed, supra, at para. 43.
[23]
In Roed, the plaintiff was involved in a
motor vehicle accident in Washington State. On the application by the
defendants for an order staying Ms. Roeds action, her submission was that
while her initial injury was in Washington State, she continued to suffer damage
in British Columbia where she was resident. Bruce J. found that, while the
continuing harm caused by the negligence of the defendants will form a
significant part of Ms. Roeds claim for non-pecuniary damages:
[43] …These damages are suffered in British
Columbia purely as a result of the plaintiffs residence here. To find a real
and substantial connection based on these facts would be to effectively base
jurisdiction entirely on the plaintiffs residence. As set out above, it is
well established that a plaintiffs residence is not sufficient grounds for a
territorial competence.
[44] In my
view, the reference to damages as a factor favouring jurisdiction simpliciter
in Jordan and the test articulated in Morguard are directed at the place in which
the injury actually occurs rather than the place where the plaintiff continues
to experience pain and suffering or economic loss. While the latter
circumstances are important, there must be something more to establish a real
and substantial connection between BC and the facts upon which the action is
based.
[24]
The plaintiffs here seek to distinguish Roed.
They say that, unlike Ms. Roed, Ms. Sooparayachetty has provided
sufficient evidence regarding her injuries and treatment to allow the court to
determine jurisdiction applying the test set out by the Ontario Court of Appeal
in Muscutt v. Courcelles (2002), 60 O.R. (3d) 20, 213 D.L.R. (4th)
777. Mr. Muscutt, an Ontario resident, suffered a serious spinal fracture in a
motor vehicle accident in Alberta. He brought an action in Ontario against the
Alberta defendants, claiming damages for pain and suffering, loss of income,
and loss of business opportunity. The appellate court set out eight factors
which it considered relevant in assessing whether a court should assume
jurisdiction, and concluded that the unfairness to the plaintiff of being
compelled to litigate in Alberta, especially given the injuries he sustained,
outweighed the unfairness to the defendant of the Ontario court assuming
jurisdiction.
[25]
The plaintiffs submit that the approach followed
in Muscutt was imported into British Columbia law in the Roed decision.
They say that I should apply the test developed by the court in Muscutt
the administration of justice test when determining territorial
competence.
[26]
Since the hearing of this application, our Court
of Appeal has rejected the approach set out in Muscutt: see Stanway,
supra, paras. 71 to 73. Smith J.A., writing for the court, held
that:
In my view, any
reliance on the Muscutt factors as a guide to determining the question of
jurisdiction came to an end in British Columbia with the coming into force of
the CJPTA.
[27]
Accordingly, the test remains real and
substantial connection which appears to require a straightforward determination
of whether, on the facts, a real and substantial connection has been
established.
[28]
Applying Roed, the first connection upon
which the plaintiff relies to found jurisdiction – damages suffered within
British Columbia – is too tenuous. The question therefore becomes whether the
fact that, since the Alberta accident, the plaintiff has been injured in a
second accident which occurred in British Columbia can provide the basis for a
finding of jurisdiction. These circumstances were not addressed in Roed.
[29]
The parties appear to agree that a global
assessment of Ms. Sooparayachettys injuries will be required. I take this to
mean that they accept that, in order to assess damages for which the Alberta
defendants may be liable, the court will be required to assess global damages
as of the date of trial in respect of both accidents. Circumstances relating
to the second accident will therefore be considered in the assessment of
damages for the first.
[30]
Section 3(e) of the CJPTA provides that
the court has territorial competence if there is a real and substantial
connection between British Columbia and the facts on which the proceeding
against the defendants is based. While facts relating to the second accident
may have to be canvassed in order to assess Ms. Sooparyachettys damages
arising from the first accident, the two claims remain separate. In my view,
the circumstances relating to the second accident are not facts upon which the
proceedings against these defendants are based, and therefore cannot provide
the real and substantial connection required by s. 3(e). The need to call
evidence relating to the second accident in the trial of the first, while an
appropriate consideration on the question of forum conveniens (see, for
example, Stewart v. Stewart, [1995] 6 W.W.R. 402; 5 B.C.L.R. (3d) 350
(S.C.)), does not confer jurisdiction on this court in relation to the first
accident, and Ms. Sooparaychettys action arising from it.
[31]
The other plaintiffs did not press their
argument in relation to territorial competence over their actions.
[32]
I find that, the plaintiffs having failed to establish
that there is a real and substantial connection between British Columbia and
the facts on which these proceedings are based, the court does not have
territorial competence in these proceedings.
[33]
Where the court determines that it lacks
territorial competence, s. 6 of the CJPTA gives the court a residual
discretion to hear the proceeding if it considers that:
(b) the
commencement of the proceeding in a court outside British Columbia cannot
reasonably be required.
[34]
In Lailey et al v. International Student
Volunteers, Inc., 2008 BCSC 1344, at para. 47, Grauer J. interpreted s. 6
with reference to the Uniform Law Conference comment on the identical section
in the uniform act:
Residual
discretion permits the court to act as a forum of last resort where there is
no other forum in which the Plaintiff could reasonably seek relief.
[35]
It is clear that here, as in Lailey,
British Columbia does not stand out as a forum of last resort. There are no
limitation concerns as the plaintiffs have commenced actions in Alberta as
well.
[36]
I do not propose to address the issue of forum
conveniens given my finding regarding territorial competence, and the fact
that the notice of motion did not seek relief of that nature.
[37]
The plaintiffs having failed to plead, or adduce
in affidavit form, facts sufficient to establish jurisdiction, the application
by the defendants is allowed and the plaintiffs actions are stayed pursuant to
Rule 14(6).
[38]
The defendants are entitled to costs at Scale B.
_______________________
Master S. Scarth