IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101201

Docket: S099074

Registry:
Vancouver

Between:

Amandeep Hans and
Pavandeep Hans

Plaintiffs

And

Volvo Trucks North
America Inc., National Truck
Centre Inc. dba Pacific Coast Heavy Truck Group, VFS Canada Inc.
dba Volvo Financial Services and N. Yanke Transfer Ltd.

Defendants

Before:
The Honourable Madam Justice Humphries

Reasons for Judgment

[1]          
This is an application by the defendant N. Yanke Transfer Ltd. (“Yanke”)
pursuant to Rule 21-8(1)(b), formerly Rule 14(6)(b), for a stay or dismissal of
this action in British Columbia on the basis of a forum selection clause favouring
the law of Saskatchewan contained in their contract with the plaintiffs.

[2]          
The remaining defendants took no position on this application.

Background

[3]          
The factual background set out for the purposes of this motion is, of
course, not binding in any subsequent proceedings.

[4]          
The plaintiffs, husband and wife, are long haul truck drivers.

[5]          
In 2007, they invested their life savings in a new Volvo truck, manufactured
by the defendant Volvo Trucks North America Inc. (“Volvo Corp”) which they
purchased  from the defendant Pacific Coast Heavy Truck Group (“the Dealer”),
financing it through VFS Canada Inc. (“Volvo Finance”).

[6]          
The plaintiff Amandeep Hans had entered into an exclusive owner-operator
Linehaul Agreement with Yanke in 2008, and renewed it on January 9, 2009 (the
“2009 Hauling Contract”).

[7]          
The contract contains the following provisions which are relevant to the
argument:

6. E. Insurance. The Company shall provide such
insurance as is necessary to insure the Contractor against loss or damage to
any said Equipment due to collision, fire, theft, or other causes, and against
liability for bodily injury and property damage resulting from or arising out
of the use, possession, or operation of said Equipment while under contract to
the company.

…

7. G. Irrevocable Agent for Settlement Purposes. 
That the Company, as irrevocable agent or attorney, may settle any claim with
one or more third parties, arising from personal injury, death, or damage to
property of others, made against the company, or Contractor, or both arising
from or related to any act or failure to act of the Contractor or his
employee)s) in the performance of this agreement, and the Company shall have
the right to deduct amounts disbursed with respect of any such settlement which
the Company negotiates on the behalf of the Contractor so long as the Company
acts in good faith.

….

7. R. Governing Jurisdiction. 
This Agreement shall be construed and interpreted in accordance with the Laws
of the Province of Saskatchewan and each of the Parties hereto hereby
irrevocably attorn to the exclusive jurisdiction of the courts of Saskatchewan
in respect of its interpretation or breach.

[8]          
The plaintiffs had many problems with the truck which they arranged to
have repaired under warranty at various locations.  Finally, on January 31,
2009, they were hauling a load from Montreal to Vancouver, and at 10:30 p.m. in
a snow storm just inside the Manitoba border, all the electrical systems on the
truck shut down, including the engine, lights, and for all practical purposes,
the steering and brakes.  Amandeep Hans, who was driving at the time, attempted
as a last resort to stop the vehicle by applying the trailer brakes.  The truck
jackknifed and went into the ditch.

[9]          
The plaintiffs immediately reported the accident to Yanke.  Yanke took
the truck to Winnipeg for repairs.  They interviewed the plaintiffs in
Saskatoon and terminated Amandeep Hans’ employment because of poor language
skills. Pavendeep Hans could continue to drive, but she would not drive alone. 
Yanke de-registered the vehicle.

[10]       
Yanke retained an engineer to inspect the truck and determine the cause
of the accident.  Yanke received an engineering report on March 6, 2006,
setting out the cause of the accident – a loose cab terminal nut.

[11]       
This report was not provided to the plaintiffs despite repeated
requests.  They did receive a letter from Yanke dated April 20, 2009, setting
out the conclusion of the engineers and telling them the catastrophic failure
was due to “the cab positive terminal nut somehow [becoming] loose.”  The
letter informed the plaintiffs that the cause of the nut coming loose had not
been determined and stated:

Given that the essential vehicle operation can be
catastrophically affected by a simple terminal failure, we are currently in
discussions and working with Volvo Corporate to attempt a resolution.

[12]       
Yanke kept the truck until May 7, 2009, at which time they told the
plaintiffs it was repaired and was ready to be picked up, and told them to
arrange for the appropriate permits, since the vehicle was no longer “plated.” 
The plaintiffs were reluctant to do so without understanding what had gone
wrong with the truck and what repairs had been done.  They were told the cost
of repairs had been covered by Yanke, who was seeking compensation from Volvo
Corp. for those costs and would put forward a claim for the plaintiffs’ down
time.

[13]       
The plaintiffs continued, through their lawyer, to request a copy of the
engineering report and other documentation, including the policy of insurance
which Yanke was contractually bound to obtain.  They also queried the basis
upon which Yanke was purporting to deal with Volvo for them as the plaintiffs
took the position that any claim was theirs to make against Volvo, given that
this was a one-vehicle accident.

[14]       
Without their truck, the plaintiffs were not earning income.  They
received notice from Vovlo in early April that the truck would be seized. 
Their lawyer requested extensions while he tried to obtain information about
the dealings between Yanke and Volvo.  Eventually, the truck was seized and
sold in October 2009, with a shortfall which Volvo has demanded from the
plaintiffs.

[15]       
The plaintiffs commenced this action on December 9, 2009, and discovery
of documents is ongoing.  The plaintiffs sue Volvo Corp. for the loss of the
truck based on Volvo Corp.’s failure to identify and prevent the failure of the
truck, for failure to warn, and for negligent design and manufacture.  They
seek rescission of the contract of sale and return of deposit, inter alia,
from the dealer and Volvo Finance.

[16]       
They sue Yanke for breach of fiduciary duty, breach of its contractual
duty of good faith, or alternatively breach of its agency duty, and wrongful
dismissal.  In general, their complaints against Yanke centre on Yanke’s
interference in the plaintiffs’ relationship with Volvo, including Yanke’s
assumption that they alone would deal with Volvo in circumstances not covered
by the irrevocable agent clause (7.G) in the contract, Yanke’s failure to
provide any information to the plaintiffs which would allow them to assess
realistically whether the truck was safe to drive, terminating the insurance on
the truck without notice to the plaintiffs, and terminating Amandeep Hans’
employment.

[17]       
The relevant paragraphs of the Statement of Claim are:

56.  As set out above, Yanke was in a fiduciary relationship
with the Plaintiffs and owed the Plaintiffs a corresponding fiduciary duty. 
The Plaintiffs say that Yanke breached its fiduciary duty, or alternatively its
contractual duty of good faith, or alternatively its Agency Duty, to the
Plaintiffs by

a.         failing to make complete
disclosure to the Plaintiffs of

i.          the
Engineering report and all information related to the cause of the catastrophic
electrical failure and subsequent accident.

ii.          all
information about the scale of damage or nature of repairs; and

iii.         all
information about the content of Yanke’s negotiations with Volvo Corp.

b.         preferring its own
interests over the Plaintiff’s interests

c.         failing
to invite the Plaintiffs to the inspection of their truck so that they could
protect their own interests

d.         failing
to preserve documents held in the truck related to the Plaintiff’s claim; and

e.         de-registering
the truck and termination all insurance on the truck without advising the Plaintiffs

57.  As a result of these breaches of fiduciary duty by
Yanke, the Plaintiffs suffered loss and damage.

58.  In particular, by failing to disclose the Engineering
Report or any information related to the cause of the catastrophic electrical
failure or the scale of the damage and nature of repairs to the truck, Yanke
has rendered the truck a total loss to the Plaintiffs, and the Plaintiffs say
that the total loss provisions in clause 6E of the 2009 Hauling Contract apply
and that Yanke is obliged to pay the Plaintiffs fair market value for the
truck.

58.  Furthermore, on or about February 18, 2009, Yanke
terminated the Plaintiff Amandeep Hans’ employment without cause or notice, and
as such breached the 2009 Hauling Contract, causing the plaintiffs to suffer
loss and damage.

59.  The Plaintiffs say that
Yanke’s termination of the plaintiff Amandeep Hans’ employment in these
circumstances was high-handed and in bad faith, and the plaintiffs seek
aggravated and punitive damages.

The present motion

[18]       
Yanke relies on Rule 21-8(1)(b), formerly Rule 14(6)(b), to challenge
the jurisdiction of this court.  That Rule provides:

(1) A party who has been served with an originating pleading
or petition in a proceeding, whether that service was effected in or outside
British Columbia, may, after filing a jurisdictional response in Form 108,

(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.

[19]       
Rule 24-1(14), which deals with transitional pleadings and ongoing
steps, provides:

If a step in a proceeding is
taken before July 1, 2010, the former Supreme Court Rules apply to any right or
obligation arising out of or relating to that step and to the extent that that
right or obligation is to have effect before September 1, 2010.

[20]       
There is no issue that Yanke complied with the requirements of the
former Rules of Court at the time they were in effect, and this motion was
originally filed in April 2009 under the old rules.  Under the old rules,
jurisdiction could be challenged after filing an appearance.  Yanke filed an
appearance before filing this motion.

[21]       
Since the new rules have come into effect, a defendant challenging
jurisdiction is required, pursuant to Rule 21-8(1), to file a jurisdictional
response in Form 108 before any steps can be taken.  Yanke did not file
that document before filing the new form of motion which they were asked to
file by the Registry.  The plaintiffs say they have therefore attorned and the
application must be dismissed on that technical ground.  Yanke is ready to file
the jurisdictional response, if required.

[22]       
The plaintiffs rely on Borgstrom v. Korean Air Lines Co. 2007
BCCA 263, in which the Court of Appeal considered an argument that mere
compliance with Rule 14(6)(c) and Rule 14(6.4) was not enough to allow a
challenge to jurisdiction where the challenge obviously lacked merit.  The
court held that procedural compliance was enough to bring the party within the
rule.  The plaintiffs say it necessary follows that failure to comply with the
rules is fatal to the present application.

[23]       
This is not a situation in which the plaintiffs are taken by surprise by
this challenge.  They have been aware of the motion, which was properly brought
under the old rules, since April, and it is only scheduling difficulties with
both counsel that resulted in the motion being heard after the new rules took
effect.  The rules are our servants, not our masters, and cannot force the
court to reach unfair conclusions because of the stipulation of an arbitrary
date in the transitional provisions.  This transitional rule cannot be taken to
mean that the defendant loses the right to argue jurisdiction, a right they had
under the rules when the motion was filed, because counsels’ calendars
interfered.

[24]       
Even if the strict application of the transitional provisions of the new
rules would lead to the result sought by the plaintiffs, to dismiss their
application on such a technical basis would be a triumph of form over substance
and common sense and would circumvent the object of the rules as set out in
Rule 1-3:

The object of these Supreme Court
Civil rules is to secure the just, speedy and inexpensive determination of
every proceeding on its merits.

[25]       
Moving on to the merits of the argument, Yanke frames its challenge as
one to jurisdiction simpliciter, which they say requires a determination
of whether or not the selection of forum clause in their contract with the
plaintiff Amandeep Hans applies, and if it does, whether the plaintiffs can
establish “strong cause” to override it.  They do not seek a determination of forum
non conveniens.

[26]       
Yanke relies on the principles respecting the construction of a contract
contained in Petty v. Telus Corp. 2002 BCCA 135:

The construction of a contract is
a question of mixed fact and law. The question is what the parties intended by
the language of the agreement, viewed objectively, in the circumstances in
which the agreement was made.

[27]       
Yanke says both the plaintiffs and Yanke are involved in long haul
trucking across North America in a commercial context.  A reasonable man would
construe the clearly worded jurisdictional clause to mean that Saskatchewan
would have exclusive jurisdiction in respect of the 2009 hauling contract or an
alleged breach thereof.

[28]       
Yanke says all of the claims as pleaded arise out of the contract or are
linked to it.  They rely on Scalas Fashions Ltd. v. Yorkton Securities Inc. (2003),
17 B.C.L.R. (4^th) 6, 2003 BCCA 366, where a clause referring
to “any disputes” was held to cover not only contractual claims, but those in
tort and fiduciary duty.  Yanke says that in the present contract, where the
clause specifically refers to contractual disputes, it is even clearer that all
claims related to the contract are covered.

[29]       
Yanke says the clause must be respected unless the plaintiffs, who bear
the onus on this issue, establish a “strong cause” to override it.  In that
respect, the test is set out by the Supreme Court of Canada in Z.I. Pompey
Industrie v. ECU-Line N.V. [2003] 1 S.C.R. 450, following, at para.19, the
tests set out in The “Eleftheria”, which I paraphrase here:

1.         in
what jurisdiction the evidence on the issues of fact is situated or more
readily available, and the effect of that on the relative convenience and
expense of trial

2.         whether
the law of the foreign court applies and if so whether it differs from the
local law

3.         with
what jurisdiction either party is connected and how closely

4.         whether
the defendants genuinely desire trial in the foreign jurisdiction or are only
seeking procedural advantages

5.         whether
the plaintiffs would be prejudiced by having to sue in the foreign Court
because they would

i.          be deprived of security
for that claim

ii.          be unable to enforce
any judgment obtained

iii.         be faced with a
limitation defence

iv.        be deprived of a fair trial.

[30]       
Yanke says the witnesses who can speak to a breach of the contract are
in Saskatchewan.  The parties should be bound by their bargain.

[31]       
The plaintiffs take a different approach. They rely on the Court
Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (“CJPTA”). 
They point out that Yanke has sought a ruling only on jurisdiction
simpliciter, not on forum non conveniens.  Jurisdiction simpliciter
is the same as “territorial competence.”  Therefore, according to the
plaintiffs, the parties are bound by the definition of “territorial competence”
in the CJPTA, and s. 3(d) and (e) provide complete answers to the
application:

Section 3:  A court has territorial competence in a
proceeding that is brought against a person only if

…

(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.

[32]       
Yanke is ordinarily resident in British Columbia because it is
registered ex-provincially here and because it has appointed an agent in
British Columbia as contemplated by s. 7(b)(ii) of the CJPTA.  As well,
s. 10 of the CJPTA sets out some factors from which a real and
substantial connection is presumed to exist, including contractual obligations
to be performed in British Columbia, a tort committed in British Columbia, and
a business carried on in British Columbia, all of which, in the plaintiffs’
submission, bring this action within the jurisdiction of British Columbia.

[33]       
The plaintiffs say that if the court moves on to a consideration of the
appropriate forum, it must do so within the context of a consideration of forum
non conveniens, and that must take place within s. 11 of the CJPTA,
which Yanke has not invoked.  Section 11 deals with a court declining
jurisdiction on the basis that another forum is more convenient, and makes
reference to many of the same considerations that were listed in the Eleftheria. 
Yanke would bear the burden of an application under this section, whereas under
the common law, the plaintiffs bear the burden of establishing “strong cause”
to override the forum selection clause.

[34]       
The factors listed in s. 11(2) as relevant to the determination of an
appropriate forum are:

(a)        the
comparative convenience and expense for the parties to the proceeding and for
their witnesses, in litigating in the court or in any alternative forum,

(b)        the
law to be applied to issues in the proceeding,

(c)        the
desirability of avoiding multiplicity of legal proceedings

(d)        the
desirability of avoiding conflicting decisions in different courts

(e)        the
enforcement of an eventual judgment, and

(f)        the fair and efficient working
of the Canadian legal system as a whole.

[35]       
The plaintiffs provided their position on forum non conveniens,
but the same considerations apply to the “strong cause” analysis, although the
onus differs.

[36]       
They say the substance of their claim against Yanke is bound up with the
claims against Volvo, and the court should consider the action as a whole, not
defendant by defendant (McNichol Estate v. Wolknik (2001) 13 CPC (5^th)
61 (Ont. C.A.)).

[37]       
The plaintiffs argue that, while their relationship with Yanke is
contractual, every case involving a forum selection clause is going to involve
a contract: the important question is how closely related the subject matter of
the claim is to the contract.  Here, the plaintiffs say the relationship is not
close.  The clause selects a forum only for disputes related to the
interpretation or breach of the hauling contract.  No reasonable man, looking
at the facts underlying this claim, would have contemplated such a dispute
arising under this contract.  Pavendeep Hans is not even a party to the
contract with Yanke, but she is a party to the contract with Volvo, has
suffered the same losses as Amandeep Hans and is subject to the same demand for
the shortfall as Amandeep Hans.

[38]       
The plaintiffs submit that Yanke is merely trying to delay and prevent
the claim against it from being determined on the merits, and they cannot
afford to pursue two claims in different provinces.  As well, they say the
wrong dismissal claim must be dealt with in British Columbia under the Employment
Standards Act, R.S.B.C. 1996, c. 113.

Discussion

[39]       
The positions of the plaintiffs and Yanke are at odds, not only in
substance, but in their respective approaches to the steps in the analysis. 
Yanke says the court must determine the applicability of the forum selection
clause first, which they term “jurisdiction simpliciter,” and which
includes a consideration of “strong cause” (if the plaintiffs choose to advance
that argument), and is to be decided on common law principles.  The plaintiff
says s. 3 of the CJPTA governs and if any further analysis is to take
place, the statutory factors in s. 11 are determinative, as the statute is a
complete code (see Teck Cominco Metals Ltd. v. Lloyd’s Underwriters
[2009] 1 S.C.R. 321).

[40]       
Teck Cominco, which was a case based in negligence and an
insurer’s duty to defend, does not make reference to a forum selection clause. 
In that case, the State of Washington had asserted jurisdiction, and the issue
was whether the British Columbia court must/should respect that decision.

[41]       
During argument on the present case, the court was referred to a number
of authorities considering whether a particular forum selection clause was wide
enough to encompass the relevant cause of action and therefore give rise to a
competition between jurisdictions. In all of them, jurisdiction simpliciter
in British Columbia was established, and the analysis, conducted under the
common law, moved to whether the clause covered the cause of action, and if so,
whether there was strong cause to override it.

[42]       
In Schleith v. Holoday (1997) 31 B.C.L.R. (3d) 81 (B.C.C.A.), jurisdiction
simpliciter in British Columbia was established.  The court considered the
applicability of the forum selection clause in favour of Ontario and held that the
clause was really an election clause and lacked the “force and clarity required
to engage the rule in The ‘Eleftheria’”.  In Voce Enterprises Ltd. v.
K-Swiss 2006 BCSC 1256, jurisdiction simpliciter in British Columbia
was acknowledged.  The court considered the forum selection clause relating to
New South Wales and adopted the approach of Schleith, saying the clause
was not clear enough but in the alternative, there was “strong cause” for
overriding it.  In Scalas Fashions Limited v. Yorkton Securities Inc.,
2003 BCCA 366, jurisidiction simpliciter in British Columbia was
established, but the clause designating Alberta as the forum of choice was held
to be wide enough to cover the causes of action, and there was no strong cause
to override it.  The action in British Columbia was stayed.

[43]       
The only case to which I was referred which dealt with a forum selection
clause and the CJPTA was Fujitsu Consulting (Canada) Inc. v. Themis
Program Management & Consulting Limited, 2007 BCSC 1376.  In that case,
jurisdiction simpliciter was acknowledged and argument proceeded both on
the common law under The “Eleftheria” and on the CJPTA.  Since
there had been an action in Ontario which had settled, the issue was argued on
the basis of forum non conveniens in respect of whether the British
Columbia action should be allowed to proceed.  The court analyzed both the
common law tests and those contained in the CJPTA and decided the action
should be allowed to proceed because the forum selection clause, which
designated British Columbia as the forum of choice, was clear and there was no
strong cause to override it.  This case pre-dated the Supreme Court of Canada’s
decision in Teck Cominco, and its determination that the CJPTA
was a complete code for determining forum non conveniens.

[44]       
The relationship between challenges to jurisdiction simpliciter
and determinations of forum non conveniens was examined thoroughly in Han
v. Cho 2006 BCSC 1623 and O’Brien v. Simard 2006 BCSC 814, but
neither case involved a forum selection clause.

[45]       
The different approaches taken by the parties in this case may be a
result of the applicant having equated the term “jurisdiction simpliciter”
with whether the contractual forum selection clause applies to the causes of
action in the Statement of Claim.

[46]       
Determination of the applicability of a forum selection clause is not
the same thing as jurisdiction simpliciter, although the method provided
under the rules to provide protection from attornment may be the same. Jurisidiction
simpliciter or territorial competence may exist, but the parties may have
bargained it away.

[47]       
If the contractual forum selection clause applies, that is, if the
parties have bargained away territorial competence, it only makes sense that
the plaintiff must bear the onus of establishing that the clause should be
overridden.  The defendant should not, having successfully established the
application of the contract to the causes of action, then have to go on to
defend the forum a second time under an application to determine forum non
conveniens.

[48]       
Despite the enactment of the CJPTA, the existence of the forum
selection clause is, as stated in Z.I. Pompey, sufficiently important to
warrant a different test than that required in a consideration of forum non
conveniens. The Supreme Court of Canada said at paras. 20 and 21:

[Forum selection clauses] are generally to be encouraged by
the courts as they create certainty and security in transaction, derivatives of
order and fairness, which are critical components of private international law
[citations omitted].  The “strong cause” test remains relevant and
effective…in the context of international commerce, order and fairness have
been achieved at least in part by application of the “strong cause” test. This
test rightly imposes the burden on the plaintiff to satisfy the court that
there is good reason it should not be bound by the forum selection clause.

…

There is a similarity between the factors which are to be
taken into account when considering an application for a stay based on a forum
selection clause and those factors which are weighed by a court considering
whether to stay proceedings in “ordinary” cases applying the forum non
conveniens doctrine [citations omitted]. …In the latter inquiry, the
burden is normally on the defendant to show why a stay should be granted, but
the presence of a forum selection clause in the former is, in my view, sufficiently
important to warrant a different test, one where the starting point is that
parties should be held to their bargain, and where the plaintiff has the burden
of showing why a stay should not be granted.

…

In my view, a separate approach
to applications for a stay of proceedings involving forum selection clauses in
bills of lading ensures that these considerations are properly taken into
account and that the parties’ agreement is given effect in all but exception
circumstances.

[49]       
In view of these statements, I do not accept the plaintiffs’ contention
that mere territorial competence as defined in the CJPTA is enough to
end the inquiry and require the defendants to bring another application based
on forum non conveniens.  The Supreme Court of Canada has recognized the
value of forum selection clauses and the importance of holding parties to their
bargains.  The CJPTA does not purport to override contracts, although it
does allow for consideration of them in s. 10(e)(ii) (a real and substantial
connection to British Columbia is presumed if the proceeding concerns a
contract with a forum selection clause in favour of British Columbia) and
arguably in s. 11(2)(b) (a relevant circumstance in deciding which court is
appropriate is “the law to be applied to issues in the proceeding”).

[50]       
If an action has already been commenced in another jurisdiction, as is
the situation in many of the cases to which I was referred, then of necessity
the analysis becomes one of forum non conveniens, even if the cause of
action is contractual and a forum selection clause is included in the contract.

[51]       
In the case before me, the plaintiffs have chosen to bring their action
in British Columbia in the face of the forum selection clause.  There is no
other action in another jurisdiction.  The applicant bases its motion on the
forum selection clause, not on a lack of territorial competence as defined in
the CJPTA. I am satisfied that the proper inquiry begins with a
consideration of whether the selection forum clause applies to the causes of
action against Yanke, and if so, whether the plaintiffs can show strong cause
to override it.

[52]       
In my view, the causes of action against Yanke, when considered objectively
in light of all the circumstances, (the approach for construction of a contract
set out in Petty, supra), are not covered by the forum selection
clause.

[53]       
It is true that the claims made against Yanke exist because the
plaintiffs and Yanke happened to be in a contractual relationship with each
other.  However, the claims arose not because Yanke and the plaintiff had a
difference of opinion over the interpretation of the contract or alleged the
other to be in breach of it, but because the plaintiffs had an accident while
driving for Yanke, and because Yanke purported to take over all dealings with
Volvo on behalf of the plaintiffs and did not keep the plaintiffs informed.  The
claims are not related to interpretation or breach of the contract, except
perhaps the claim relating to breach of agency in respect of Yanke’s alleged unauthorized
dealings with Volvo – that is, whether that clause covers a one-vehicle
accident with no third party claims.  Even there, a reasonable man would not,
as the plaintiffs point out, ever contemplate the circumstances that have given
rise to these claims, and it would not make sense to interpret the clause in
such a way that one of many claims in a single action with several defendants would
trigger its operation.  As well, where the basis of the claim is that Yanke is
acting on its own in purporting to deal with a third party on the plaintiffs’
behalf without any contractual authorization, it begs the question to allow
them to rely on the contractual forum selection clause by assuming the contract
applies before that very issue is determined.

[54]       
If I am wrong in my finding that the contractual forum clause does not
apply and were to move on to a consideration of “strong cause” under the common
law, the plaintiffs would be successful in persuading me not to enforce the
clause.  The facts of this case involve interactions between Yanke and Volvo Corp.
which have resulted in alleged losses to the plaintiffs.  The purchase of the
truck took place in British Columbia.  The plaintiffs live in British
Columbia.  Yanke is registered ex-provincially in British Columbia.  The
various entities of Volvo are based in British Columbia and are proper parties
to this British Columbia action.  They purport in their pleadings to blame
Yanke for any losses.  Pavendeep Hans is as much involved and subject to loss
as is her husband Amandeep but she is not a party to the contract relied on by
Yanke in support of their position that the action must be tried in
Saskatchewan.

[55]       
The undisputed evidence before me is that the plaintiffs are in difficult
financial straits because of the events underlying this action and cannot
afford to pursue two actions – one against Volvo in British Columbia, and one
against Yanke in Saskatchewan.  Two actions could well result in conflicting
findings of fact.

[56]       
The plaintiffs bear the burden of establishing strong cause to override
the contractual provision, but it is relevant to consider that Yanke puts
forward no compelling reason to require the plaintiffs to commence another
action in Saskatchewan.  The only reason advanced is that there are witnesses
from Yanke who are situated in Saskatchewan, but there is no other connection
to that province.  The accident took place in Manitoba and the truck was
repaired there.  On the material before me, there is no advantage or prejudice
to any party by the use of Saskatchewan law over British Columbia law.

[57]       
In my view, the result would be the same if the onus were reversed and
the application had been brought under s. 11 of the CJPTA.

[58]       
In the result, the application to stay or dismiss the British Columbia
action is dismissed.  The plaintiffs should have their costs of this
application in any event of the cause, at Scale B.

“M.A. Humphries J.”
The Honourable Madam Justice M.A. Humphries