IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100428

Docket:
S081034

Registry:
Vancouver

Between:

Davin Durand Josephson by his

Litigation
Guardian Jodie Aileen Josephson

Plaintiff

And

Balfour Recreation Commission, Balfour Recreation Commission doing
business as Balfour Golf Course, Osprey Ridge Golf Course Ltd., Osprey Ridge
Golf Course Ltd. doing business as Balfour Golf Course and Christopher Clark

Defendants

And

Interior Health Authority operating as Kootenay Lake Hospital,
Kootenai Medical Clinic, Dr. Elizabeth Sawyer, Dr. Gregory Robert
Francis Hand, Dr. Mark Eldon Manteuffel, Dr. Kevin Chang, Dr. James
P. Osmanski, Dr. David Paul York, Dr. Jeffrey Dean McDonald, Dr. William
Francis Ganz, Jane Doe One, Jane Doe Two, John Doe One, and John Doe Two

Third Parties

Before: The Honourable Madam Justice Loo

Reasons for Judgment

A.       INTRODUCTION

[1]            
The third party applicants Kootenai Medical Center,
Dr. Mark Manteueffel, Dr. Kevin Chang, Dr. James Osmanski, Dr. David
York, Dr. Jeffrey McDonald, and Dr. William Ganz seek an order that
the third party proceedings brought against them by the defendant Christopher
Clark be dismissed on the basis that this Court lacks jurisdiction over them.

[2]            
These applications concern the Court
Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 [CJPTA],
and in particular ss. 3(e), 6, and 10(g).

[3]            
The plaintiff Davin Josephson and the defendant
Christopher Clark are both residents of the State of Idaho. Mr. Josephson
was a passenger in a golf cart driven by Mr. Clark on a golf course in
British Columbia when he was thrown from the cart and injured. Mr. Josephson
received medical treatment for his injuries in British Columbia and in Idaho,
which the defendant Mr. Clark by his third party notice alleges caused Mr. Josephson’s
injuries either in whole or in part.

[4]            
Mr. Clark purported to serve the applicants
outside British Columbia without leave of the court on the basis that this
action concerns a tort committed in British Columbia (per Rule 13(1) of the Rules
of Court and s. 10(g) of the CJPTA). Due to inadvertence, the
amended third party notice was served on some or all of the applicants without
a Form 6 endorsement (that is, without asserting the basis for his right to
serve the applicants outside of British Columbia). The applicants have
acknowledged receipt of the amended third party notice without prejudice to
their rights to dispute this court’s jurisdiction over them.

B. COURT JURISDICTION AND PROCEEDINGS TRANSFER
ACT

[5]            
The CJPTA came into force on May 4,
2006 and is modelled on the Uniform Law Conference of Canada’s (“ULCC”) model Uniform
Court Jurisdiction and Proceedings Transfer Act. One of the stated
purposes of the model act is to bring Canadian jurisdictional rules in
line with the principles articulated by the Supreme Court of Canada in Morguard
Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077; and Amchem Products
Inc. v. British Columbia (Workers’ Compensation Board), [1993] 1 S.C.R.
897.

[6]            
The relevant provisions of the CJPTA for
the purpose of the applications are as follows:

Part I – Interpretation

Definitions

1 In this
Act:

“plaintiff”
means a person who commences a proceeding, and includes a plaintiff by way of
counterclaim or third party claim;

“proceeding”
means an action, suit, cause, matter or originating application and includes a
procedure and a preliminary motion;

“territorial competence” means the aspects of a court’s jurisdiction that depend on a
connection between

(a) the territory
or legal system of the state in which the court is established, and

(b) a party to a
proceeding in the court or the facts on which the proceeding is based.

Part 2 – Territorial competence of
Courts of British Columbia

Application of this Part

2  (1)
In this Part, “court” means a court of British Columbia.

    (2) The territorial competence of a court is
to be determined solely by reference to this Part.

Proceedings against a person

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.

Residual discretion

6 A court
that under section 3 lacks territorial competence in a proceeding may hear the
proceeding despite that section if it considers that

(a) there is no
court outside British Columbia in which the plaintiff can commence the
proceeding, or

(b) the
commencement of the proceeding in a court outside British Columbia cannot
reasonably be required.

Real and substantial connection

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

(g) concerns a tort committed in British
Columbia[.]

[7]            
Under the CJPTA, what was formerly
referred to as “jurisdiction simpliciter” is now referred to as “territorial
competence” as defined in s. 1.

[8]            
The procedure for challenging territorial
competence is found in Rule 14(6) and (6.3) of the Rules of Court, B.C.
Reg. 221/90:

(6)  A party who has been served with an
originating process in a proceeding, whether served with the originating
process in that proceeding in or outside of British Columbia, may, after
entering an appearance,

(a) apply to
strike out a pleading or to dismiss or stay the proceeding on the ground that
the originating process or other pleading does not allege facts that, if true,
would establish that the court has jurisdiction over that party in respect of
the claim made against that party in the proceeding,

(b) apply to
dismiss or stay the proceeding on the ground that the court does not have
jurisdiction over that party in respect of the claim made against that party in
the proceeding, or

(c) allege in a
pleading that the court does not have jurisdiction over that party in respect
of the claim made against that party in the proceeding.

(6.3)  If an application is brought under
subrule (6) (a) or (b) or (6.2) or an issue is raised by an allegation in a
pleading referred to in subrule (6) (c), the court may, on the application of a
party of record, before deciding the first-mentioned application or issue,

(a) stay the
proceeding,

(b) give
directions for the conduct of the first-mentioned application,

(c) give
directions for the conduct of the proceeding, and

(d) discharge any order previously made in
the proceeding.

[9]            
The substantive rules for determining the court’s
territorial competence are set out in s. 3 of the CJPTA. These
applications concern s. 3(e):  this court has territorial competence in a
proceeding that is brought against the third party applicants only if there is
a real and substantial connection between British Columbia and the facts on
which the proceeding against the third parties is based.

[10]        
Section 10 sets out the circumstances in which a
real and substantial connection between British Columbia and the facts on which
a proceeding is based is presumed to exist. Under s. 10(g), this includes
a proceeding that “concerns a tort committed in British Columbia”.

[11]        
The circumstances in which a real and
substantial connection is presumed to exist largely track the grounds on which
service ex juris could be effected under the former Rule 13(1).

[12]        
Section 10 is distinct from s. 11 of the CJPTA,
which constitutes a complete codification of the common law test for forum
non conveniens (see Teck Cominco Metals Ltd. v. Lloyd’s Underwriters,
2009 SCC 11, [2009] 1 S.C.R. 321 at paras. 21 and 22).

[13]        
The court must first determine whether it has territorial
competence before it can consider forum non conveniens; whether it
should decline jurisdiction on the basis that there is a more appropriate forum.
The burden of establishing territorial competence rests with the party seeking
to establish its existence: Williams v. TST Porter dba 6422217 Canada Inc.,
2008 BCSC 1315 at paras. 12 and 13.

[14]        
The purpose of the CJPTA was recently
considered in Stanway v. Wyeth Pharmaceuticals Inc., 2009 BCCA 592. The
plaintiff in that case, a resident of British Columbia, developed breast cancer
as a result of taking Progestin in combination with the defendants’ hormone
replacement therapy drug Premarin, which she had purchased in British Columbia.
Her claim against both the Canadian and United States defendants was for negligent
manufacture and failure to warn. Writing for the Court of Appeal, K. Smith J.A.
discussed the law before and after the enactment of the CJPTA noting
that what was formerly “jurisdiction simpliciter” is now “territorial
competence” as defined in s. 1, the criteria for determining territorial
competence are set out in s. 3, and that Rule 13(1) was amended to
permit service on a person outside British Columbia in any of the circumstances
enumerated in s. 10 of the CJPTA. He stated at para. 22:

The presumption
of a real and substantial connection in s. 10 is a mandatory presumption
with basic facts. The basic facts are those set out in s. 10(a) through
(l), which are taken to be proven if they are pleaded. While the presumption is
rebuttable, it is likely to be determinative in almost all cases.

[15]        
He concluded that, based on the pleadings and
the evidence, there was a presumed real and substantial connection between
British Columbia and the facts pursuant to ss. 10(g) and (h):

[62]      Thus, s. 10(g) of the CJPTA
was satisfied on the plaintiff’s pleading and there was a presumed real and
substantial connection between British Columbia and the facts on which the
proceeding against the defendants was based on the basis that the proceeding
concerns torts committed in British Columbia.

[63]      Further, the plea that the
defendants jointly “marketed, tested, manufactured, labelled, distributed,
promoted, sold, and otherwise placed” the products into the stream of commerce
in British Columbia is in effect a plea that the defendants (including the US
defendants) carried on business in British Columbia. Thus, s. 10(h) of the
CJPTA was also satisfied and a presumption of territorial competence was
raised.

[64]      The
question then for the chambers judge was whether the US defendants rebutted the
presumption of real and substantial connections on these grounds.

[16]        
He found that once the chambers judge concluded
that the United States defendants had not rebutted the presumed real and
substantial connection, it was not necessary for her to consider the factors
described by Sharpe J.A. in Muscutt v. Courcelles (2002), 60 O.R. (3d)
20 (C.A.):

[71]      The chambers judge had to go no
further to conclude that the US defendants’ application should be dismissed. Her
reliance on the Muscutt factors was misplaced. The validity of the
approach used in Muscutt to determine jurisdiction was doubted in Coutu
v. Gauthier (Estate), 2006 NBCA 16, 264 D.L.R. (4th) 319 at paras. 66-75.
Chief Justice Drapeau, writing for the court, summarized his view at para. 67:

[67]      In my respectful judgment, factor
(1) is the essence of the “real and substantial connection” test and factors
(2)-(8) invite the courts to go beyond that standard (see Walker, “Beyond Real
and Substantial Connection: The Muscutt Quintet”). Indeed, the last
seven factors, while differently formulated, appear to match, in substance and
effect, the forum conveniens factors enumerated in Spar Aerospace.
Recall that those factors include the interest of justice, the interest of the
parties, any advantages conferred upon the plaintiff by his or her choice of
forum, the existence of proceedings pending between the parties in another
jurisdiction and the need to have the judgment recognized in another
jurisdiction.

[72]      The Muscutt approach has
also been criticized in some of the academic literature: see Blom &
Edinger, “The Chimera of the Real and Substantial Connection Test” (2005) 38
U.B.C. L. Rev. 373 at paras. 36-40 and Tanya J. Monestier, “A Real and
Substantial Mess:  The Law of Jurisdiction in Canada” (2007) 33 Queen’s L.J.
179.

[73]      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.

[17]        
In Van Breda v. Village Resorts Limited,
2010 ONCA 84, a five-judge panel of the Ontario Court of Appeal made “several
clarifications and modifications to the Muscutt test in light of the
post-Muscutt changes to the legal landscape” (para. 70).

[18]        
I will return to Muscutt and Van Breda
later in these reasons.

C.       THE BACKGROUND AND UNDERLYING PROCEEDINGS

[19]        
On June 16, 2007 Davin Josephson and
Christopher Clark, both residents of Hayden, Idaho, were golfing at the Balfour
Golf Course in Balfour, near Nelson, British Columbia. Mr. Clark was
driving the golf court and Mr. Josephson was his passenger.

[20]        
According to the statement of claim, at
approximately 5:00 p.m. Mr. Josephson was thrown from the cart and
injured.

[21]        
The statement of claim alleges that Mr. Josephson’s
injuries and damages occurred as a result of the negligence of the following
defendants:  Mr. Clark, Osprey Ridge Golf Course Ltd. doing business as
Balfour Golf Course, and Balfour Recreation Commission as the registered owner
of the golf cart.

[22]        
Mr. Josephson commenced this action in
British Columbia on February 21, 2008. He is represented by his wife Jodie
Josephson as his litigation guardian.

[23]        
Mr. Clark filed his statement of defence on
July 15, 2008 and denies he was negligent; instead, he alleges that Mr. Josephson’s
injuries and damages were caused or contributed to by his own negligence, and
pleads the provisions of the Negligence Act, R.S.B.C. 1996, c. 333.

D.       THE THIRD PARTY PROCEEDINGS

[24]        
On June 16, 2009, Mr. Clark filed a
third party notice naming the Kootenay Lake Hospital, and Drs. Elizabeth
Sawyer and Gregory Hand, each of whom reside in British Columbia and take no
position on this application. The third party notice also names the third party
applicants.

[25]        
The third party notice was amended by order on July 29,
2009 so that the “Kootenay Lake Hospital” is now referred to as the “Interior
Health Authority operating as the Kootenay Lake Hospital”. The amended notice
was filed on August 13, 2009.

[26]        
Rule 13(1) to (3) provides as follows:

(1)  Service of an originating process or
other document on a person outside British Columbia may be effected without
leave in any of the circumstances enumerated in section 10 of the [CJPTA].

(2)  Except in
a family law proceeding, a copy of an originating process served outside
British Columbia without leave shall state specifically by endorsement in Form
6 upon which of the circumstances enumerated in section 10 of the [CJPTA]
it is claimed that service is permitted under this rule.

(3)  In any
case not provided for in subrule (1), the court may grant leave to serve an
originating process or other document outside British Columbia.

[27]        
According to the allegations set out in the
third party notice, after the golf cart accident, Mr. Josephson left the
golf course by ambulance and arrived at Kootenay Lake Hospital in Nelson at
20:41 where he was treated by Drs. Sawyer and Hand. During that time Mr. Josephson
exhibited signs of closed head injury, early signs of basal skull fracture, and
signs of distress. He was “intubated, sedated and paralyzed” and they prepared
for transport to Kootenay Boundary Regional Hospital in Trail where he arrived
at 23:55. A CT brain scan revealed that Mr. Josephson had a basal skull
fracture, marked brain swelling, and haemorrhages. He was discharged at around
3:34 and transferred to Kootenai Medical Center where he was admitted around
5:14 on June 17, 2007.

[28]        
Kootenai Medical Center, a 246-bed acute care
hospital in Coeur d’Alene, Idaho, is owned and operated by Kootenai Hospital
District, a government entity of the State of Idaho. Each of the personal third
party applicants is a medical doctor who provided care to Mr. Josephson at
Kootenai Medical Center.

[29]        
The allegations contained in both the original
and the amended third party notice are extensively particularized as to the actions
said to constitute medical negligence. However, the focus of Mr. Clark’s
argument, as alleged in the amended third party notice, is that from June 17
to on or about June 30, Mr. Josephson was intermittently able to
follow simple commands and move all of his limbs. Between June 25 and June 30
he began exhibiting diffuse weakness, by June 29 he was diagnosed as
suffering from pre-renal failure and myoglobinuria, and by July 2, he was
diagnosed as suffering flaccid quadraparesis.

[30]        
According to clinical records and the deposition
evidence of Mrs. Josephson, when Mr. Josephson was admitted to Kootenai
Medical Center’s intensive care unit on June 16, he was “extremely
vigorous and moving all four extremities, combative, and purposeful”. He could move
his arms and legs, reach out, and give his wife and daughter kisses. However,
his condition gradually worsened and he developed a fever. Less than two weeks
after he was admitted, Mr. Josephson became and remains a brain-damaged
quadriplegic.

[31]        
The substantive issues underlying Mr. Clark’s
claim, therefore, are the damages suffered by Mr. Josephson as a result of
the golf cart incident, and the extent to which they were caused or contributed
to by his medical treatment (if at all).

[32]        
Counsel for Mr. Josephson indicates that he
has no intention of advancing a claim against the third party applicants. There
is no suggestion that either Mr. Josephson or his litigation guardian
intends to commence an action in Idaho for damages for injuries arising out of
the golf cart incident or his medical treatment for those injuries.

E.       THE ISSUES

[33]        
The issues for determination are as follows:

       1)       Whether a presumed real and substantial connection exists on the
basis of s. 10(g) of the CJPTA that the proceeding “concerns a tort
committed in British Columbia”; if not,

       2)       Whether Mr. Clark has proved other circumstances that
constitute a real and substantial connection between British Columbia and the
facts on which the third party proceeding is based; if not,

       3)       Whether this Court should exercise its discretion under s. 6 of
the CJPTA.

1.       Is there a presumed real and substantial
connection under s. 10(g)?

[34]        
By virtue of the definition of “proceeding” in ss. 1
and 3(e), the “proceeding” for the purposes of this application must be the
third party proceeding and not the main or primary proceeding between the
plaintiff and the defendants—that is because the plaintiff has not brought a
proceeding against any of the third party applicants.

[35]        
A third party proceeding is a substantive
proceeding and not a mere incident of the principal action. In Bank of
Montreal v. Royal Bank of Canada, [1933] S.C.R. 311, Duff C.J. said
the following at 315-16:

…Claims for
indemnity, for example, from a third party, by a defendant in respect of the
claim in the principal action against him, can be preferred and dealt with in
the principal action. But there can be no doubt that the proceeding against the
third party is a substantive proceeding and not a mere incident of the
principal action.

[36]        
In Mainland Sawmills Ltd. v. IWA-Canada Local
1-3567, 2007 BCSC 1734, Fisher J. described third party proceedings as
“stand alone” proceedings:

[4]        Ms. Young, counsel for the
Union, objected to the plaintiffs having any standing to make submissions on
this application. She says that the issues between the parties in the third
party proceedings stand alone and do not affect the plaintiffs. It is clear
that generally, claims for indemnity and third party actions are not mere
incidents to the principal action but are independent actions: Wire Rope
Industries of Canada (1966) Ltd. v. British Columbia Marine Shipbuilders Ltd.,
[1981] 1 S.C.R. 363. It has been held in this Court that a plaintiff does not
have standing to apply to set aside a third party notice: Hopegain
International Holdings Inc. v. Buxton, 2002 BCSC 11, 97 B.C.L.R. (3d) 98 at
¶13-14.

[5]        I
agree that the plaintiffs have no interest in the substantive issue as between
the Union and Mr. Ghag in the third party proceeding. However, it is my
view that they have an interest in the process as to whether or not this Court
reopens and reconsiders the judgment and I have considered the submission of
the plaintiffs as set out in the Outline filed by Mr. McDonell on their
behalf.

[37]        
The facts on which Mr. Clark relies in the
third party proceedings refer to the golf course incident and the claim by Mr. Josephson
against Mr. Clark in negligence. However, Mr. Clark’s claim against the
third party applicants alleges that Mr. Josephson received negligent
medical treatment and care in Idaho.

[38]        
Counsel for Mr. Clark relies on Price v.
Milawski (1977), 18 O.R. (2d) 113 (C.A.); Scarff v. Wilson (1986), 10
B.C.L.R. (2d) 273 (S.C.); and Moran v. Pyle National (Canada) Ltd.,
[1975] 1 S.C.R. 393, but none of those cases assist in determining whether the
third party proceedings against the third party applicants concern a tort
committed in British Columbia. Price and Scarff dealt with
separate acts of negligence by two or more parties. Moran dealt with
negligent or careless manufacture, and concluded at 409 that “the forum in
which the plaintiff suffered damage is entitled to exercise judicial
jurisdiction over that foreign defendant. This rule recognizes the important
interest a state has in injuries suffered by persons within its territory”.

[39]        
Mr. Clark alleges that the Idaho hospital
and the Idaho doctors (who are the third party applicants) were negligent in
their medical treatment of Mr. Josephson and that he sustained damages as
a result. It cannot be said that Mr. Josephson’s damages (if any) as a
result of the negligence of the Idaho hospital and doctors occurred in British
Columbia. The facts on which the third party proceeding is based, thus, concern
a tort committed by the Idaho third parties in Idaho—not in British Columbia.

[40]        
Mr. Clark urges that there should be a
broader and more liberal interpretation given to s. 10(g) to account for
those circumstances when there is more than one tortfeasor, one of whom resides
outside of the jurisdiction, or those circumstances where the court must decide
whether a tortfeasor is liable for damages caused or contributed to by the
subsequent negligence of another party. In my view that is simply another way
of saying that the Idaho third party applicants are necessary or proper parties
to the proceedings between Mr. Josephson and Mr. Clark and ignores
that there must still be a real and substantial connection between the
jurisdiction and the facts on which the subject proceedings are based in order
for the court to take jurisdiction over the third party applicants.

[41]        
The commentary of the ULCC on s. 10 includes
the following statement:

10.3. One common ground for service ex juris is not found among the
presumed real and substantial connections in section 10, namely, that the
defendant is a necessary or proper party to an action brought against a person
served in the jurisdiction. The reason is that such a rule would be out of
place in provisions that are based, not on service, but on substantive
connections between the proceeding and the enacting jurisdiction. If a
plaintiff wishes to bring proceedings against two defendants, one of whom is
ordinarily resident in the enacting jurisdiction and the other of whom is not,
territorial competence over the first defendant will be present under paragraph
3(d). Territorial competence over the second defendant will not be presumed
merely on the ground that that person is a necessary or proper party to the
proceeding against the first person. The proceeding against the second person
will have to meet the real and substantial connection test in paragraph 3(e).

[42]        
It is insufficient for Mr. Clark simply to allege
that the claim against the Idaho third party applicants “concerns a tort
committed in British Columbia” when a cursory view of the facts underlying the
third party claim suggests that it concerns a tort committed in Idaho.

2.       Is there a real and substantial connection
between British Columbia and the facts on which the proceeding is based?

[43]        
If Mr. Clark cannot rely on the presumption
of a real and substantial connection conferred by s. 10(g), he may still
prove other circumstances that constitute a real and substantial connection
between British Columbia and the facts on which the proceeding is based.

[44]        
Mr. Clark argues that the interpretation of
“real and substantial connection” must be flexible to accommodate the myriad of
factual situations that come before the Court. He relies on the guiding principles
of order and fairness enunciated by the Ontario Court of Appeal in Van Breda,
which clarified and reformulated the Muscutt test. Sharpe J.A. stated at
para. 109:

To summarize the preceding discussion, in my
view, the Muscutt test should be clarified and reformulated as follows:

*           First,
the court should determine whether the claim falls under rule 17.02 (excepting
subrules (h) and (o)) to determine whether a real and substantial connection
with Ontario is presumed to exist. The presence or absence of a presumption
will frame the second stage of the analysis. If one of the connections
identified in rule 17.02 (excepting subrules (h) and (o)) is made out, the
defendant bears the burden of showing that a real and substantial connection
does not exist. If one of those connections is not made out, the burden falls
on the plaintiff to demonstrate that, in the particular circumstances of the
case, the real and substantial connection test is met.

*           At
the second stage, the core of the analysis rests upon the connection between
Ontario and the plaintiff’s claim and the defendant, respectively.

*           The
remaining considerations should not be treated as independent factors having
more or less equal weight when determining whether there is a real and
substantial connection but as general legal principles that bear upon the
analysis.

*           Consideration
of the fairness of assuming or refusing jurisdiction is a necessary tool in
assessing the strengths of the connections between the forum and the plaintiff’s
claim and the defendant. However, fairness is not a free-standing factor
capable of trumping weak connections, subject only to the forum of necessity
exception.

*           Consideration
of jurisdiction simpliciter and the real and substantial connection test
should not anticipate, incorporate or replicate consideration of the matters
that pertain to forum non conveniens test.

*           The
involvement of other parties to the suit is only relevant in cases where that
is asserted as a possible connecting factor and in relation to avoiding a
multiplicity of proceedings under forum non conveniens.

*           The
willingness to recognize and enforce an extra-provincial judgment rendered on
the same jurisdictional basis is as an overarching principle that disciplines
the exercise of jurisdiction against extra-provincial defendants. This
principle provides perspective and is intended to prevent a judicial tendency
to overreach to assume jurisdiction when the plaintiff is an Ontario resident.
If the court would not be prepared to recognize and enforce an extra-provincial
judgment against an Ontario defendant rendered on the same jurisdictional
basis, it should not assume jurisdiction against the extra-provincial
defendant.

*           Whether
the case is interprovincial or international in nature, and comity and the
standards of jurisdiction, recognition and enforcement prevailing elsewhere are
relevant considerations, not as independent factors having more or less equal
weight with the others, but as general principles of private international law
that bear upon the interpretation and application of the real and substantial
connection test.

*           The
factors to be considered for jurisdiction simpliciter are different and
distinct from those to be considered for forum non conveniens. The forum
non conveniens factors have no bearing on real and substantial connection
and, therefore, should only be considered after it has been determined that
there is a real and substantial connection and that jurisdiction simpliciter
has been established.

*           Where there
is no other forum in which the plaintiff can reasonably seek relief, there is a
residual discretion to assume jurisdiction.

[45]        
Ontario has not adopted the ULCC’s model act.
The first part of the reformulated Muscutt test requires the court
to determine whether the proceeding falls within one of the presumed
connections or categories in Rule 17.02 of the Ontario Rules of Civil Procedure,
R.R.O. 1990, Reg. 194, which contains a list of circumstances similar to
those in s. 10 of the CJPTA. If not, then the plaintiff has the
burden of demonstrating that there is a real and substantial connection based
on other circumstances. The core of the analysis in determining whether a real
and substantial connection exists rests on the connection of both the plaintiff’s
claim and the defendant to the forum. The remaining considerations are the
general legal principles or tools that assist in conducting the analysis.

[46]        
In discussing the core of the real and
substantial connection test, Sharpe J.A. stated:

[85]      As we explained in Muscutt,
at para. 36, the Supreme Court of Canada has rejected the notion that
there is a precise or mechanical test to define the nature or degree of
connections required. In Morguard, at pp. 1104-1109, the Court
variously described a real and substantial connection as a connection “between
the subject-matter of the action and the territory where the action is
brought”, “between the jurisdiction and the wrongdoing”, “between the damages
suffered and the jurisdiction”, “between the defendant and the forum
province”, “with the transaction or the parties”, and “with the action”
(emphasis added).

[86]      I see no reason to depart from
what we said in Muscutt, at paras. 54-74, in rejecting the argument
that assumed jurisdiction should focus solely or primarily upon the nature and
extent of the defendant’s contacts with the jurisdiction. We concluded,
at para. 74, that “[w]hile the defendant’s contact with the jurisdiction
is an important factor, it is not a necessary factor”. A personal
subjection test based exclusively on the defendant’s contacts would be unduly
restrictive, would fail to pay adequate heed to the interests of the injured
plaintiff, would be inconsistent with a substantial body of case law reviewed
in Muscutt, at paras. 63-74, and would be contrary to the Supreme
Court of Canada’s emphasis on the need for flexibility. It would also be
inconsistent with CJPTA [referring to the Uniform Law Conference of
Canada’s model act], s. 3(e), which confers jurisdiction if “there is a
real and substantial connection between the [forum] and the facts on which the
proceedings against that person is based.”

[Emphasis in original.]

[47]        
He affirmed that the test, as articulated,
incorporates the principles of “order and fairness” at para. 93:

…As we stated
in Muscutt, at para. 86, proper consideration of the defendant’s
position cannot be accomplished simply by looking at the acts or conduct that
would render the defendant subject to the jurisdiction. The quality, strength
or significance of those contacts cannot be assessed in a purely mechanical
fashion. The inquiry necessarily entails consideration of the fairness or
unfairness of asserting jurisdiction against the defendant in light of those
contacts.

[48]        
The Idaho third party applicants contend that Van
Breda and the Muscutt factors cannot be considered as a result of
what was said by K. Smith J.A. in Stanway at para. 73:

[73]      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.

[49]        
The third party applicants refer to Sooparayachetty
v. Fox, 2010 BCSC 185; and Dembroski v. Rhainds, 2010 BCSC 186, both
which are cases that adopt K. Smith J.A.’s view.

[50]        
In Sooparayachetty, Master Scarth stated:

[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.

Similarly in Dembroski,
Mr. Justice Truscott stated:

[33]      In Stanway
v. Wyeth Pharmaceuticals Inc., 2009 BCCA 592, the British Columbia Court of
Appeal said that any reliance on the Muscutt factors as a guide to the
question of jurisdiction came to an end in British Columbia with the coming
into force of the CJPTA.

[51]        
In Sooparayachetty there were eight
plaintiffs in seven actions that dealt with a motor vehicle accident that
occurred in Alberta. The defendants were Alberta residents. Three of the
plaintiffs were residents of British Columbia and the remaining plaintiffs were
residents of the United Kingdom. The plaintiffs brought actions against the
defendants in both British Columbia and Alberta. One of the British Columbia plaintiffs
had been in a second motor vehicle accident in British Columbia.

[52]        
In Dembroski, a resident of British
Columbia was injured in a motor vehicle accident in Alberta when her vehicle
collided with another vehicle owned by a resident of Alberta and operated by a
resident of Québec.

[53]        
In both decisions, the Court based its findings
on the longstanding authority that there is no real and substantial connection
to British Columbia based on the bare residence of the plaintiff in British
Columbia: Canadian International Marketing Distributing Ltd. v. Nitsuko
Ltd. (1990), 56 B.C.L.R. (2d) 130 (C.A.) at 132; and Jordan v. Schatz,
2000 BCCA 409 at para. 23. In Sooparayachetty, Master Scarth also
found that there could be no real and substantial connection based on the fact
that one of the British Columbia plaintiffs had been in a second accident in British
Columbia.

[54]        
In arguing that there is no allegation of any
wrongdoing by the Idaho doctors in British Columbia, Mr. Hungerford,
counsel for Drs. Ganz, Manteuffel, McDonald, and Osmanski, relies on
para. 89 of Van Breda:

When assessing
the connection between the forum and the defendant, the primary focus is on
things done by the defendant within the jurisdiction. Where the defendant
confines its activities to its home jurisdiction, it will not ordinarily be
subject to the jurisdiction of the forum: see e.g. Lemmex, Leufkins
and Sinclair. However, as was held in Moran, physical presence or
activity within the jurisdiction is not always required. Where a defendant
could reasonably foresee that its conduct would cause harm within the forum by putting
a product into the normal channels of trade and knows, or ought to know, that
the product would be used in the forum and that if defective could harm a
consumer in the forum, jurisdiction may be assumed.

[55]        
His reliance on Van Breda somewhat
contradicts the applicants’ position that it cannot be considered. In my view,
the comments of K. Smith J.A. at para. 73 of Stanway were
confined to the circumstances of a presumed real and substantial
connection, in which case it is not necessary to apply the Muscutt test.
Where the presumption does not apply, however, it is open to the plaintiff or
third party to prove that other circumstances constitute a real and substantial
connection between British Columbia and the facts on which the proceeding is
based. The party can only do so by resorting to the common law test for guidance
on what is necessary to establish jurisdiction simpliciter.

[56]        
The comment of the ULCC on s. 10 includes
the following:

10.1. The purpose of section 10 is to provide guidance to the meaning of “real
and substantial connection” in paragraph 3(e). Instead of having to show in
each case that a real and substantial connection exists, plaintiffs will be
able, in the great majority of cases, to rely on one of the presumptions in
section 10. These are based on the grounds for service ex juris in the
rules of court of many provinces. If the defined connection with the enacting
jurisdiction exists, it is presumed to be sufficient to establish territorial
competence under paragraph 3(e).

[57]        
Even if I am wrong in stating that Muscutt
applies when a real and substantial connection cannot be presumed by operation of
the CJPTA, the arguments advanced by the applicants for contending that
there is no real and substantial connection still reflect what the Ontario
Court of Appeal in Van Breda described as the core of the analysis and
the legal principles that assist in conducting the analysis.

[58]        
Mr. Ferguson for Dr. York also argues
that Van Breda does not simply take the eight steps in Muscutt
and reduce them to six steps (as Mr. Mersey, for Mr. Clark, contends);
rather, he says, Van Breda brings the law in Ontario closer in line with
the law in British Columbia. He refers to the ratio of the decision, which he
says is found at para. 84:

The core of the
real and substantial connection test is the connection that the plaintiff’s
claim has to the forum and the connection of the defendant to the forum,
respectively. The remaining considerations or principles serve as analytic
tools to assist the court in assessing the significance of the connections
between the forum, the claim and the defendant.

[59]        
The applicants argue that there is no real and
substantial connection between them or that actions and British Columbia that would
give this court territorial competence over any of them. The Kootenai Medical
Center is in Idaho. It does not advertise in or solicit business from British
Columbia. It could not have reasonably foreseen that treating a patient from
Idaho would have consequences for the patient in British Columbia. None of the
Idaho doctors reside in British Columbia, ever practiced medicine in British
Columbia, ever advertised in British Columbia, or have any assets in British
Columbia. They have no connection whatsoever with British Columbia. They reside
in Idaho, received their medical training in the United States, and practice
medicine in Idaho. All of the medical treatment they provided to Mr. Josephson
took place in Idaho. The Idaho doctors could not reasonably have foreseen that
their practise of medicine in Idaho on an Idaho resident would have
consequences for them in British Columbia.

[60]        
The applicants argue that it is not fair to any
of them that they should have to defend an action brought against them in
British Columbia when there is no connection between any of them and British
Columbia, never mind a real and substantial connection.

[61]        
Mr. Clark argues that it would not be fair
to him. If he is unable to rely on contributory negligence on the part of Mr. Josephson
or negligence on the part of the Idaho doctors. If that is the case, “he is on
the hook for one hundred percent”. He argues it is not fair to him if he is
unable to claim contribution and indemnity from the Idaho hospital and doctors.

[62]        
The applicants rely on Cook v. Parcel, Mauro,
Hultin & Spaanstra, P.C. (1997), 143 D.L.R. (4th) 213, 31 B.C.L.R. (3d)
24 (C.A.), leave to appeal to S.C.C. ref’d, [1997] S.C.C.A. No. 218. In
that case, two of the four plaintiffs were residents of British Columbia and
all were former directors or officers of a British Columbia company. The
plaintiffs brought proceedings against a Colorado law firm claiming injunctive relief
compelling the law firm to assert solicitor-client privilege on their behalf in
proceedings in Colorado. The plaintiffs claimed the legal advice provided by
the law firm was received in British Columbia and paid for from British
Columbia.

[63]        
Madam Justice Prowse concluded that to assume
jurisdiction in such a case would be “overreaching”. She applied the principles
in Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077;
and Amchem Products Incorporated v. British Columbia (Workers’ Compensation
Board), [1993] 1 S.C.R. 897, and concluded:

[42]      On
the basis of the action as pleaded, and having regard to the nature of the
relief claimed, I am unable to conclude that there is a real and substantial
connection between the B.C. courts and either the cause of action or the
respondent firm. The unlikelihood of a Colorado court enforcing the orders
claimed simply reinforces my conclusion. In my view, this action is an example
of the type of overreaching which the conflicts of law rules formulated by the
courts were designed to curb.

[64]        
In a more recent decision, Olney v. Rainville,
2009 BCCA 380, Groberman J.A. explained that the assumption of
jurisdiction should reflect the principles of order and fairness, and that a
court should exercise restraint in taking jurisdiction:

[27]      The
idea that the phrase “real and substantial connection between British Columbia
and the facts on which a proceeding is based” should be construed broadly is
also in accord with the goals of the CJPTA, which included bringing “Canadian
jurisdictional rules into line with principles laid down by the Supreme Court
of Canada in Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R.
1077 and Amchem Products Inc. v. British Columbia (Workers’ Compensation
Board), [1993] 1 S.C.R. 897” (see the comments of the Uniform Law
Conference of Canada on the Uniform Court Jurisdiction and Proceedings
Transfer Act and Teck Cominco Metals Ltd. v. Lloyd’s Underwriters,
2009 SCC 11 at para. 22). While Morguard and Amchem suggest
that appropriate restraint should be shown by a court in assuming jurisdiction
over a matter, they do not suggest any artificial narrowing of traditional
bases for taking jurisdiction based on unduly technical distinctions. What is
essential is that the taking of jurisdiction be consistent with order and
fairness.

[65]        
In that case, the petitioner, a Canadian citizen
residing in France, brought a petition against her former husband, a Canadian
citizen living in Québec, seeking a declaration that her present husband was
the father of her child. The child was born in Geneva and the child’s birth
certificate showed that the former husband was the father. Divorce proceedings
in France also indicated that the respondent former husband was the father of
the child and he considered himself as such. Although Groberman J.A. ultimately
declined jurisdiction on the basis of forum non conveniens, he did find
a real and substantial connection was established.

[66]        
Mr. Justice Groberman concluded at paras. 33
and 34:

[33]      Questions of personal status are
generally determined under the law of a person’s domicile. If the child is
domiciled in British Columbia, therefore, it is at least arguable that his
family status is to be determined under the law of British Columbia. I say “arguable”
because the parties have not presented comprehensive argument on the point
before us. Obviously, the parent-child relationship will affect not only the
child’s status, but also that of Mr. Rainville and Mr. Macdonald. Mr. Rainville
is domiciled in Québec; Mr. Macdonald’s domicile is not clearly
established by the affidavit evidence, but it appears probable that he is
domiciled in one of the Australian states.

[34]      The
fact that this case is, arguably, governed by British Columbia law is, in my
view, a real and substantial connection between the facts on which the case is
based and British Columbia. While the case for territorial competence in this
matter is not overwhelming, I am satisfied that the case does fall within
s. 3(e) of the CJPTA.

[67]        
It could be said that the Court of Appeal took a
flexible approach in determining that there was a real and substantial
connection, but an important distinction is that Olney dealt with an interprovincial
jurisdictional dispute and not an international jurisdictional dispute. In
Spar Aerospace Ltd. v. American Mobile Satellite Corp., 2002 SCC 78,
[2002] 4 S.C.R. 205, LeBel J. writing for the Court, referring to Morguard
and Hunt v. T&N PLC, [1993] 4 S.C.R. 289, stated as follows:

[54] Morguard
and Hunt have been cited by this Court in a number of cases which seem
to confirm that the “real and substantial connection” was specially crafted to
address the challenges posed by multiple jurisdictions within a federation.

[68]        
The applicants contend that comity requires this
court to consider the approaches to jurisdiction, recognition and enforcement
that prevail in Idaho. They rely on the expert report of Steven J. Hippler, an
Idaho attorney. Mr. Hippler was admitted into practise in the State of
Idaho in 1991. His primary area of practice is health care law, including the
defence of medical malpractice actions.

[69]        
Mr. Clark relies on the expert report of
Michael G. Brady, an attorney who was admitted to the Idaho Bar in 1970 and is
also admitted to the Utah, Washington, and Oregon State Bars. Mr. Brady
has also acted as the Chair of the Idaho medical malpractice pre-litigation
screening panel on at least ten occasions.

[70]        
Mr. Hippler opines that a judgment obtained
in British Columbia arising from the third party notice will not be enforceable
in Idaho against the Idaho doctors on the basis that British Columbia does not
have personal jurisdiction over them. The circumstances necessary to find that
the a foreign court had personal jurisdiction over a defendant who is an Idaho
resident include the following:  the defendant being served personally in the
foreign country, appearing voluntarily in the proceeding before or after the
commencement of the proceeding, being domiciled in the foreign jurisdiction
when the proceeding was instituted, having a business office in the foreign
jurisdiction, or operating a motor vehicle or airplane in the foreign country (where
the proceeding involves a claim for relief arising out of that operation). None
of those circumstances exist here. Both experts agree that these circumstances
are not exhaustive and that an Idaho court may enforce a foreign money judgment
if it determines that the defendants had sufficient “minimum contacts” with the
foreign jurisdiction (see also MTU Maintenance Canada Ltd. v. Keuhne &
Nagel International Ltd., 2007 BCCA 552 at para. 30, 287 D.L.R. (4th)
215).

[71]        
Mr. Brady opines that a United States court
would enforce a British Columbia judgment. As Mr. Clark is only seeking to
hold the Idaho physicians and Kootenai Medical Center severally liable (as
opposed to jointly liable), his third party claim is consistent with Idaho law
and may not be repugnant to Idaho public policy.

[72]        
More importantly, both experts agree on the
accuracy of the following descriptions, statements and provisions of Idaho law:

1)     A pre-litigation screening panel process is a condition
precedent to pursuing any medical malpractice litigation in Idaho;

2)     All plaintiffs who claim that Idaho physicians and hospitals are
liable for medical malpractice must file a request with the Idaho Board of
Medicine for a hearing by a pre-litigation screening panel, which renders a
confidential and non-binding opinion on the merits of the claim as a condition
precedent to proceeding with the litigation;

3)     Liability for medical malpractice is limited to persons with
whom the physician had a physician-patient or hospital-patient relationship,
and is subject to a two-year limitation period;

4)     The ability of a defendant who was not the patient to bring an
action for contribution or indemnity from a physician or hospital is not
recognized by Idaho law; and

5)     Idaho has abolished joint and several liability in most tort
actions, including medical malpractice.

Not only has Mr. Clark not filed a
request for a pre-litigation screening panel, he is out of time, and his claim
for contribution and indemnity from the Idaho hospital and doctors would not be
recognized by an Idaho court because he was not the patient.

[73]        
I will return to these points on which the
experts agree later in these reasons when dealing with s. 6 of the CJPTA.

[74]        
Mr. Clark’s strongest argument to support a
real and substantial connection is that he did not choose the forum. He is an
Idaho resident who has been sued in British Columbia by another Idaho resident.
The Idaho applicants treated Mr. Josephson for injuries arising out of an
incident in British Columbia. The Kootenai Medical Center clinical record
written by Dr. McDonald on May 17, 2007, the date of Mr. Josephson’s admission,
discloses that the physician was aware that Mr. Josephson reportedly
struck his head while golfing in British Columbia. Mr. Clark’s claim for
contribution and indemnity from the Idaho applicants cannot be brought against
them in Idaho.

[75]        
There are connections between British Columbia
and the facts on which the third party proceeding for contribution and
indemnity arising out of alleged medical malpractice in Idaho is based, but I
cannot conclude that the connections constitute a real and substantial
connection.

[76]        
It would not be unusual for a doctor or hospital
anywhere in the world to treat a patient who sustained an injury or contracted
an illness during his travels throughout the world, whether in British Columba
or elsewhere. I do not think it was the intention of the drafters of the CJPTA
that a real and substantial connection could be found on that basis alone, and that
doctors or hospitals from foreign states would be required to litigate or
defend their conduct in Canada simply because a patient was injured or became
ill in Canada.

[77]        
While the real and substantial connection test
has been described as “flexible”—which suggests an ability to bend without
breaking, or adaptability—there is still a requirement to prevent overreaching.
Flexibility does not equate to reaching to find a real and substantial
connection where none exists.

[78]        
Mr. Clark relies on Van Breda, where
Sharpe J.A. addresses this point succinctly at para. 100: 

…In my view,
the overriding concern for access to justice that motivates the assumption of
jurisdiction despite inadequate connection with the forum should be accommodated
by explicit recognition of the forum of necessity exception rather than by
distorting the real and substantial connection test.

[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.

3.       Should this court exercise its discretion under
s. 6 of the CJPTA?

[80]        
Section 6 of the CJPTA provides:

Residual discretion

6  A court that under section 3 lacks
territorial competence in a proceeding may hear the proceeding despite that
section if it considers that

(a) there is no
court outside British Columbia in which the plaintiff can commence the
proceeding, or

(b) the commencement of the proceeding in a
court outside British Columbia cannot reasonably be required.

[81]        
The comments of the ULCC on s. 6 are as
follows:

Comments to section 6.

6.1 This section creates a
residual discretion to act, notwithstanding the lack of jurisdiction under
normal rules, provided that the conditions in (a) or (b) are met. 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. The
language tracks that of Article 3136 of the Québec Civil Code.

Comments to section 10.

Section [6].1,
residual discretion, also provides a basis upon which jurisdiction can be
exercised over a necessary and proper party who cannot be caught under the
normal rules. A plaintiff seeking to bring in such a party would argue first,
that there is a real and substantial connection between the territory and the
party, or secondly that there is no other forum in which the plaintiff can or
can reasonably be required to seek relief against the party.

[82]        
There have been three decisions of this court
that have considered s. 6: Lailey v. International Student Volunteers,
Inc., 2008 BCSC 1344; Olney; and Sooparayachetty. Section 6
was not applied in any of those cases because there was another more
appropriate forum where the party could commence proceedings.

[83]        
In Lailey, Grauer J. found that this
court had jurisdiction over two of the three plaintiffs, but that the court had
no territorial competence over the third plaintiff who could commence her
action in California, Ecuador, or Ontario (where she was resident).

[84]        
In Olney, Kelleher J. had dismissed
the petition on the ground that that the court lacked territorial jurisdiction
(his reasons can be found at 2008 BCSC 753). In arriving at his decision, he
considered s. 6 and noted that the petitioner was entitled to commence her
action in Québec, even though there were substantive and evidentiary rules that
would make it difficult for her to succeed. The Court of Appeal allowed the
appeal and on the issue of her ability to commence the  action in Québec,
Groberman J.A. stated:

[46]      In this case, the juridical
advantage of proceeding in British Columbia is said to lie in a section of the Civil
Code of Québec. The evidence establishes that s. 530 of the Code
prohibits a person from seeking a declaration of paternity that is contrary to
that shown on a person’s birth certificate if the person shown as the father
has acted as and been reputed to be the father for a period of 18 months (a
recent case applying s. 530 is G.R. v. I.B., 2009 QCCA 332, leave
to appeal denied [2009] S.C.C.A. No. 166).

[47]      There
are a number of reasons to reject Ms. Olney’s argument. First, the Code
provision is substantive rather than procedural. It will apply if Québec law
governs this case, whether the case is tried in British Columbia or Québec. Equally,
it will be inapplicable if British Columbia law governs this case, whichever
forum the case proceeds in. It is, therefore, not clear that Ms. Olney will
suffer a juridical disadvantage if the case proceeds in Québec.

[85]        
In Soopararayachetty, Master Scarth
considered s. 6 and found that as the plaintiffs had commenced actions in
Alberta, this court was not a forum of last resort.

[86]        
The forum of necessity concept was drawn from
article 3 of the Swiss Federal Code on Private International Law, and is included
in both article 3136 of the Civil Code of Québec, S.Q. 1991, c. 64,
and s. 6 of the CJPTA. The forum of necessity or residual
discretion concept is also found in article 6 of the European Convention on
Human Rights:  see the article by Janet Walker “Muscutt Misplaced:  The
Future of Forum of Necessity Jurisdiction in Canada” (2009) 48 C.B.L.J. 135 at
136-37. A court may take jurisdiction as a forum of necessity when jurisdiction
does not otherwise exist, and when proceedings outside the jurisdiction cannot
possibly be commenced or the commencement of the proceedings cannot reasonably
be required.

[87]        
Article 3136 of the Québec Civil Code
read as follows:

Even though a Québec authority
has no jurisdiction to hear a dispute, it may hear it, if the dispute has a
sufficient connection with Québec, where proceedings cannot possibly be
instituted outside Québec or where the institution of such proceedings outside
Québec cannot reasonably be required.

[88]        
Article 3136 was considered in Lamborghini
(Canada) Inc. c. Automobili Lamborghini S.p.A., [1997] R.J.Q. 58 (C.A.). In
that case, Lamborghini Canada (“LC”) had an agency agreement with Lamborghini
Italy (“LI”) for the right to market Lamborghini automobiles in Canada. Chrysler
purchased LI and as part of its reorganization efforts sent LC a termination
notice. LC objected to the notice and when negotiations failed, served LI with
proceedings before the Superior Court in Québec seeking an injunction and
damages. The court allowed LI’s application and dismissed the proceeding on the
ground that the agency agreement contained a choice of law clause and
jurisdiction clause agreeing that the courts of Bologna had exclusive
jurisdiction. The Québec Court of Appeal dismissed the appeal:  a Québec
authority has no jurisdiction where the parties have agreed to submit all
existing or future disputes between them to a foreign authority or to an
arbitrator, unless the defendant submits to the jurisdiction of the Québec
authority. The Court of Appeal considered articles 3135 (forum non
conveniens) and 3136 (residual discretion) of the Québec Civil Code.

[89]        
The Québec Court of Appeal’s decision has not
been officially translated but the parties have agreed on the following English
translation of paras. 43-48 of the decision:

[43]      It is not, therefore, on Article
3135 of Civil Code of Québec [CCQ] that the appellant may rely. She is not
submitting as such before the Court. She maintains rather that her application
is based on Article 3136 of the CCQ and would like to see here a more flexible
method for determining jurisdiction than Article 3135, of the CCQ pursuant to
which a Québec court could seize itself of a matter over which it does not, in
principle, have jurisdiction, according to the connecting factors prescribed by
law, such as Article 3148 of the CCQ.

[44]      As with the defendant, under
Article 3135 of the CCQ, the plaintiff has the burden of proving that Québec
would be the most appropriate forum, by reason of a certain number of factors.
Thus, the appellant invokes the very nature of the proceedings, which would
have arisen in Québec: the additional costs, the uselessness of the expenses
already incurred, the requirement to engage Italian lawyers and interpreters,
if she has to start proceedings in Italy, the difficulty with respect to the
protective measures in Québec, etc. All these factors would justify the Québec
Courts to recognize jurisdiction, even if Article 3148 of the CCQ provides for
remand to Italy by reason of the recognition of the validity of the clause
regarding the choice of venue. The appellant thus rejects the doctrine
expressed in Article 3136 of the CCQ, which she believes is too restrictive.
She relies on Article 3135 of the CCQ, the conjunction of which would allow the
search for a more appropriate venue both for the petitioner and the defence.

[45]      According to legislative sources,
this provision represents a very narrow exception to the normal rules regarding
jurisdiction. It does not allow the Québec Court to take jurisdiction that it
would not otherwise have. It seeks to regulate certain problems regarding
access to justice for a petitioner who finds himself in the territory of Québec
when the foreign forum normally competent in the matter is not accessible for
exceptional reasons, such as a legal or practical impossibility, which are
almost absolute. In this regard, one could think that the results from the
rupture of diplomatic or business relations with a foreign state or the need
for protection of a political refugee, or the existence of serious physical
danger if one initiated proceedings before a foreign court.

[46]      Based on Swiss law regarding
conflict of laws, according to the Ministry of Justice and certain analyses of
legal doctrine, this rule of attributing judicial competence maintains an
exceptional character. It corresponds precisely to the very concept of the
forum of necessity. The comments of the Ministry of Justice, regarding Article
n 3136 L.A.R.C. incidentally say:

This article of
new law is inspired by the Federal Law regarding Swiss private international
law of 1987.

The provision
of Title Three intending to foresee in an exhaustive manner, the international
competence of the authorities in Quebec, it would be proper to establish a new
competence for Quebec in order to anticipate the case where a proceeding abroad
would be impossible or the case where it would be unreasonable to expect it to
be initiated. Therefore, it would be necessary that the issue to be litigated
would find a sufficient link with Quebec.

[47]      This interpretation has been
adopted in the doctrine. Thus, P. Glenn sees within the rule on jurisdiction in
Article 3136 of the CCQ, the creation of a forum of necessity.

74. The forum of
necessity. By following the Swiss model one more time, notably Article 3 of the
Swiss private international law, Article 3136 creates a forum “of necessity” in
Quebec, in the case where initiating proceedings abroad would be impossible, or
if it cannot be required that they be introduced there. This jurisdiction would
exist when there is no court of competent jurisdiction to hear the matter in Quebec,
but it would require, nonetheless, that the litigation find “a sufficient link”
with Quebec (Article 3136). The court thus created is a subsidiary court, but
it is a question of preventing a denial of justice, not just accommodating one
of the parties. The examples given in Swiss law: the refugee who cannot bring
legal proceedings in the country where he is persecuted, or the urgent
application that it would not be heard in a timely manner abroad. The Court of
Appeal has also acknowledged that the jurisdiction of the courts in Quebec in
cases of child custody can be heard based on just the child being in Quebec, or
in cases of imminent, manifest and serious danger. (op. cit., p. 744; see also
J.A. Talpis et G. Castel, “Interpretation of the rules of international private
law”, in La réforme du Code civil, Barreau du Québec et Chambre des Notaires du
Québec, P. UL., Sainte-Foy, 1993, pp. 900-901).

[Reform of the
Civil Code, Quebec Bar and the Chamber of Notaries of Québec]

[48]      Article
3136 of CCQ expresses an exception rule based on the impossibility of having
access to a foreign court in a litigation that has a sufficient link with Québec.
The costs and relative inconvenience of an Italian trial do not justify its
application. Italy has, just as Canada, a judicial system associated with the
Western tradition. There has been no argument that such forum would not allow
for a hearing conforming to the fundamental rules of law or procedure. Such a
thing would shock those who are cognizant of the long juridical tradition in
Italy, and its role as a source of many of the elements of Western law. We
find, in reality, the concern of a litigant, who justifiably believes his
tactical position will be weakened if required to plead before an Italian
court. This concern is not sufficient to ground the application of Article 3136
CCQ and the first judge rightly rejected it.

[90]        
In Van Breda, Sharpe J.A. discussed the
forum of necessity doctrine and stated the following at para. 100:

… The forum of
necessity doctrine recognizes that there will be exceptional cases where,
despite the absence of a real and substantial connection, the need to ensure
access to justice will justify the assumption of jurisdiction. The forum of
necessity doctrine does not redefine real and substantial connection to embrace
“forum of last resort” cases; it operates as an exception to the real and
substantial connection test. Where there is no other forum in which the
plaintiff can reasonably seek relief, there is a residual discretion to assume
jurisdiction. In my view, the overriding concern for access to justice that
motivates the assumption of jurisdiction despite inadequate connection with the
forum should be accommodated by explicit recognition of the forum of necessity
exception rather than by distorting the real and substantial connection test. [Emphasis
added.]

[91]        
Mr. Clark was not in a physician-patient or
hospital-patient relationship. He therefore cannot engage in the pre-litigation
screening process which is a condition precedent to proceeding with litigation
in Idaho. Even if he was able to overcome that obstacle, and apart from the
fact that he is now out of time by reason of the two-year limitation period for
an injured patient to bring a cause of action against a physician in that
state, Mr. Clark faces another insurmountable obstacle:  he cannot bring
an action or proceeding in Idaho against Kootenai Medical Center or the Idaho
medical practitioners for contribution or indemnity, because in Mr. Hippler’s
words “the ability for a defendant who was not the patient to bring a cause of
action for contribution or indemnity is not recognized in Idaho law”.

[92]        
Mr. Mersey on behalf of Mr. Clark
contends that requiring him to commence proceedings in Idaho “cannot reasonably
be required” under s. 6 of the CJPTA and that British Columbia is
the only forum in which he can proceed with his claim for contribution and
indemnity.

[93]        
Mr. Clark did not choose British Columbia
as the forum. He is forced by Mr. Josephson’s choice of forum to bring his
third party proceedings in British Columbia. Because he is a defendant in
British Columbia he will be “on the hook for 100% of the damages” suffered by Mr. Josephson
pursuant to the Negligence Act. If Mr. Josephson had commenced his
action in Idaho, like the Idaho hospital and doctors, Mr. Clark would only
be “on the hook” for his proportionate share of liability. Mr. Clark
claims that it is unfair to deny him the ability to adjudicate the liability of
the Idaho applicants in British Columbia because there is no other court in
which he can commence his proceeding for contribution and indemnity.

[94]        
Counsel for Drs. Manteuffel, Osmanski, McDonald,
and Ganz argue that Mr. Hippler does not say Mr. Clark cannot
commence proceedings in Idaho. They contend that “Mr. Clark can commence
an action in Idaho. He just will not be successful”. Any barriers to success,
he says, are the equivalent to the limitation period faced in Jordan. He
argues that s. 6 applies only in those situations where a party is in peril,
or in situations that are particularly egregious. In support of that
proposition, he refers to para. 45 of the Lamborghini decision,
which suggests there must be exceptional reasons for exercising discretion to
take jurisdiction, such as a legal or practical impossibility; for example, “the
rupture of diplomatic or business relations with a foreign state or the need
for protection of a political refugee, or the existence of serious physical
danger if one initiated proceedings before a foreign court”.

[95]        
I do not see how Jordan assists the Idaho
doctors. In that case, Ms. Jordan clearly could have commenced her action
in Alberta or Saskatchewan but was out of time. The Court of Appeal found that the
British Columbia court did not have jurisdiction simpliciter over the
action simply due to the fact that the limitation periods in the other two
provinces had expired.

[96]        
There is no dispute that Mr. Clark cannot
bring an action in Idaho against the applicants for contribution and indemnity
because he was not the patient and therefore his claim is not one that is
recognized under Idaho law. To argue that s. 6 does not apply because
Mr. Clark can commence his action and not be successful, does not reflect a
fair, large, and liberal construction of the CJPTA or an interpretation that
best ensures the attainment of its objects.

[97]        
In Castel and Walker’s text, Canadian
Conflict of Laws, looseleaf, 6th ed. (Markham, Ont.: LexisNexis Canada,
2005), the authors explain that the principles of order and fairness may be
served by hearing claims that do not meet the standard of a real and
substantial connection but are closely connected with the main action or
factual matrix of a case (at 11.12.e.i):

Even if a claim
against a foreign defendant would fail the real and substantial connection test
if it were constituted as a separate action, it may serve the requirements of
order and fairness to try the foreign claim together with the claims that are
clearly rooted in the forum.

[98]        
In Petrolio Brasilio S.A. v. Mellitus
Shipping Inc. (The “Baltic Flame”), [2001] 2 Lloyd’s L.R. 203 (C.A.),
the English Court of Appeal upheld the trial judge’s refusal to set aside a
third party notice served ex juris with leave of the court. In that
case, the recipient of two shipments of propane had suffered loss because the
propane was not up to standard (it had to be carried to other facilities and
sold at a discount). In addition, the tanks on the ship had to be cleaned. The
plaintiff Petrobras (holder of the bills of lading) sued Mellitus (the owners of
the vessel); Mellitus in turn served a third party notice on Fortum (the
charterers of the vessel); Fortum obtained leave and served a third party
notice on Saudi Aramco (the shipper and original holder of the bills of lading).
Saudi Aramco disputed the jurisdiction of the English court and applied to have
the service upon it set aside. Saudi Aramco was engaged in arbitration with
Mellitus in England at the time. However, even if Saudi Aramco was found liable
to Mellitus in the arbitration proceedings, that result would not allow Fortum
to claim contribution and indemnity from Saudi Aramco for its liability (if
any) with regard to the claims against Fortum in the court proceedings.

[99]        
Lord Justice Potter, writing for the Court of
Appeal, considered (among others) the following factors:  the fact that the
English courts were “already the venue for the trial of disputes which arise
out of the same subject matter and affect other parties who proceed [t]here”
(para. 19), that if Fortum was found liable but Saudi Aramco was not added as a
third party to the litigation, Fortum would be unable to claim contribution or
indemnity from Saudi Aramco (para. 30), and the fact that the remedy of
contribution or indemnity was not available in Saudi Arabian law (para. 35). Lord
Justice Potter said that Fortum’s claim against Saudi Aramco would be
“appropriate to be tried in the course of proceedings already afoot” (para.
36), Saudi Aramco would not be unfairly prejudiced, and the interests of
practical justice would be served by its inclusion in the English proceedings.
At para. 38 he concludes as follows:

…[T]he Court
should similarly be guided by the interests of the parties and the
considerations of practical justice. This is a case where plainly Fortum are
acting reasonably in seeking to issue contribution proceedings against Saudi
Aramco in proceedings in which Fortum have themselves been sued and require to
protect their position. So far as practical justice is concerned, while Saudi
Aramco would be under no liability if sued in Saudi Arabia, it will only be
held liable to contribute in this country if it is in truth directly liable to
Mellitus pursuant to a claim for damage already asserted and required to be
determined in England under English law (albeit in arbitration proceedings). In
such circumstances, as it seems to me, the demands of practical justice plainly
favour joinder of Saudi Aramco.

[100]     Similarly, in the case at bar, the factual matrix of the third party
claims is very closely connected to the claim initiated by Mr. Josephson. The
only practical approach is for one court to hear all of the matters relating to
the cause of Mr. Josephson’s injuries. If Mr. Josephson established
liability on the part of the applicants in a court in Idaho, the defendants and
the third parties would pay damages based on the several liabilities attributed
to each of them. If they are added to the present proceedings, they will not be
substantively prejudiced:  they will only be liable to pay for their
proportionate share of liability.

[101]     Counsel for Dr. Chang argues that once Mr. Clark has been
found liable in this action in British Columbia and satisfied the judgment, he
can claim contribution from the Idaho doctors. On the other hand, counsel agree
that if that should occur, the doctors would then argue that they ought to have
been able to have been heard on the issues of liability and quantum.

[102]     I conclude that it cannot reasonably be required that Mr. Clark
commence his proceedings in Idaho and that he is entitled to succeed on his
application on the basis of s. 6.

F.       CONCLUSION

[103]     As the basis for Mr. Clark’s service of the Idaho applicants—alleged
torts committed in Idaho—does not fall within the circumstances contemplated by
s. 10 of the CJPTA, he required an order from the court before he
could properly serve the applicants.

[104]     In UniNet Technologies Inc., the Court of Appeal upheld an
order made nunc pro tunc validating service ex juris where leave
should have been obtained.

[105]     That is the appropriate order to be made in this case. There will be
an order nunc pro tunc validating service ex juris of the amended
third party notices served in Idaho on the third party applicants.

“Loo J.”