IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110726

Docket: S122210

Registry:
New Westminster

Between:

T.C.

Plaintiff

And

A.M.

Defendant

Before:
The Honourable Mr. Justice Harvey

Reasons for Judgment

[1]            
T.C. brings this application without notice seeking that this Court take
jurisdiction over the action she commenced against her former father-in-law,
A.M., for damages for sexual assault alleged to have occurred in Montreal,
Quebec.

[2]            
A.M. was and remains a resident of Montreal and has no apparent
connection to this jurisdiction. He entered into a peace bond in respect of the
allegations of sexual assault but no finding has ever been made respecting of
them. The alleged assault took place in Montreal.

[3]            
Approximately 10 years ago the plaintiff moved to B.C. and has resided
here ever since.

[4]            
This action was commenced in September 2009. I am advised it was served
on the defendant and he has not filed an appearance.

[5]            
In January 2010, the plaintiff brought an application before a judge of
the Court seeking judgement against A.M. together with an assessment of
damages. I am advised that the judge in chambers on that occasion “wanted to
make sure his decision would not be contested on the issue of jurisdiction” and
adjourned the matter for further submissions.

[6]            
The plaintiff contends that s.3 of the Court Jurisdiction and
Proceedings Transfer Act, S.B.C. 2003, c. 28 [CJPTA], provides the
necessary framework for the Court to assume jurisdiction over A.M. The section
reads as follows:

3 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 court’s 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.

[7]            
In the circumstances of this case, none of subsections (a) to (d) apply;
territorial competence could only be established on the basis of a real and
substantial connection between British Columbia and the facts of the
proceeding. Section 10 of the CJPTA codifies categories of presumptive
jurisdiction, where a real and substantial connection will be presumed to
exist. It reads:

10 Without limiting the right of the plaintiff to
prove other circumstances that constitute a real and substantial connection
between British Columbia and the facts on which a proceeding is based, a real
and substantial connection between British Columbia and those facts is presumed
to exist if the proceeding

(a) is brought to enforce, assert,
declare or determine proprietary or possessory rights or a security interest in
property in British Columbia that is immovable or movable property,

(b) concerns the administration of
the estate of a deceased person in relation to

(i) immovable property in British
Columbia of the deceased person, or

(ii) movable property anywhere of
the deceased person if at the time of death he or she was ordinarily resident
in British Columbia,

(c) is brought to interpret,
rectify, set aside or enforce any deed, will, contract or other instrument in
relation to

(i) property in British Columbia
that is immovable or movable property, or

(ii) movable property anywhere of a
deceased person who at the time of death was ordinarily resident in British
Columbia,

(d) is brought against a trustee in
relation to the carrying out of a trust in any of the following circumstances:

(i) the trust assets include property
in British Columbia that is immovable or movable property and the relief
claimed is only as to that property;

(ii) that trustee is ordinarily
resident in British Columbia;

(iii) the administration of the
trust is principally carried on in British Columbia;

(iv) by the express terms of a
trust document, the trust is governed by the law of British Columbia,

(e) concerns contractual
obligations, and

(i) the contractual obligations, to
a substantial extent, were to be performed in British Columbia,

(ii) by its express terms, the
contract is governed by the law of British Columbia, or

(iii) the contract

(A) is for the purchase of
property, services or both, for use other than in the course of the purchaser’s
trade or profession, and

(B) resulted from a solicitation
of business in British Columbia by or on behalf of the seller,

(f) concerns restitutionary
obligations that, to a substantial extent, arose in British Columbia,

(g) concerns a tort committed in
British Columbia,

(h) concerns a business carried on
in British Columbia,

(i) is a claim for an injunction
ordering a party to do or refrain from doing anything

(i) in British Columbia, or

(ii) in relation to property in
British Columbia that is immovable or movable property,

(j) is for a determination of the personal status or capacity
of a person who is ordinarily resident in British Columbia,

(k) is for enforcement of a judgment of a court made in or
outside British Columbia or an arbitral award made in or outside British
Columbia, or

(l) is for the recovery of taxes
or other indebtedness and is brought by the government of British Columbia or
by a local authority in British Columbia.

[8]            
None of the presumptive categories under s. 10 of the CJPTA apply
in these circumstances; however, the language of s. 10 clearly indicates that
those categories do not limit “the right of the plaintiff to prove other
circumstances that constitute a real and substantial connection between British
Columbia and the facts on which a proceeding is based.”

[9]            
The common law threshold for a real and substantial connection is high.
In Josephson v. Balfour Recreation Commission, 2010 BCSC 603, Loo J.
stated:

[79] The real and substantial
connection test requires that there be a significant or substantial connection:
Beals v. Saldanha, [2003] 3 S.C.R. 416; and UniNet Technologies Inc.
v. Communication Services Inc., 2005
BCCA 114.

[10]        
The jurisprudence in British Columbia suggests that the mere residence
of the plaintiff in British Columbia is not sufficient to establish
jurisdiction over a defendant resident outside of the province. Something more
is required. This was discussed in Dembroski v. Rhainds, 2011 BCCA 185, where
Hall J. referred to the decision of Bruce J. in Roed v. Scheffler, 2009
BCSC 731:

[14] In a recent case, Roed v. Scheffler, 2009 BCSC
731, Bruce J. held that the Supreme Court had no jurisdiction simpliciter
over the defendant resident of Washington State whose vehicle had been involved
in an accident in that state with a vehicle driven by a British Columbia
plaintiff. Bruce J. said at para. 43 of the judgment:

[43] Turning to the facts of the case before me, I find the
plaintiff has failed to satisfy the test for territorial competence articulated
in s. 3 (e) of the Act. I find the fact that the plaintiff continues to
suffer damages in British Columbia insufficient to establish a real and
substantial connection on its own. These damages are suffered in British
Columbia purely as a result of the plaintiff’s residence here. To find a real
and substantial connection based on these facts would be to effectively base
jurisdiction entirely on the plaintiff’s residence. As set out above, it is
well established that a plaintiff’s 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.

[11]        
This case lacks the additional element, beyond the mere residence of the
plaintiff in this jurisdiction, to support a finding that there is a real and
substantial connection between British Columbia and the facts on which a
proceeding is based. The action concerns allegations of sexual assault in
Quebec in relation to a defendant who continues to reside in Quebec. There is
not a “significant connection” as required by the Supreme Court of Canada in Beals
v. Saldanha, [2003] 3 S.C.R. 416.

[12]        
That the plaintiff suffers damages here is, as was the case in Roed,
purely as a result of her residence in British Columbia. As stated by Dickson
J. in Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393, and referred
to in Dembroski, if the essence of a tort is injury, “a paramount factor
in determining situs must be the place of the invasion of one’s right to
bodily security.” That location in this case is Quebec. The motor vehicle
scenarios in Roed and Dembroski are analogous for the purposes of
determining territorial competence, as they concern tortious conduct in another
jurisdiction. The presence of the plaintiff in British Columbia alone does not
establish a real and substantial connection in relation to events that occurred
in another jurisdiction where the defendant continues to reside.

[13]        
Accordingly, I dismiss the plaintiff’s application.

“Harvey J.”