BC Court Refuses Jurisdiction For Alberta Accident

BC Court Refuses Jurisdiction For Alberta Accident

It may seem logical to bring a personal injury claim in one’s home province regardless of where the damage occurred, but the law of conflicts often requires a detailed factual analysis to determine whether there is a “real and substantial connection” between the facts of the case and the plaintiff’s chosen jurisdiction. In the case of DEMBROSKI V. RHAINDS, 2011 BCCA 185 (“DEMBROSKI”), released April 14, 2011, the British Columbia Court of Appeal considered whether a British Columbia court could take jurisdiction for a personal injury action arising from a motor vehicle accident which occurred in Alberta. In its conclusion, the Court found that there was not a real and substantial connection to British Columbia, given that the only connection to the jurisdiction was the fact the Plaintiff resided in B.C. and suffered the deleterious effects of her injuries in the province upon returning home after the accident.

In DEMBROSKI, the Plaintiff (Appellant) was training as a horse farrier in her home province of British Columbia, but was involved in a motor vehicle accident in Alberta when she was en route to provide horse-shoeing services at an Albertan ranch. The Plaintiff was struck by a truck owned by a Defendant resident in Alberta and driven by a Defendant normally resident in Quebec after the truck went through a stop sign. There were two witnesses to the accident, both residents of Alberta.

In addition to the “real and substantial connection” argument founded on s. 3(e) of the COURT JURISDICTION AND PROCEEDINGS TRANSFER ACT, S.B.C. 2003, c. 28 (“CJPTA”) which would prove to be the focus of the Court’s analysis, the Plaintiff argued that B.C. should take jurisdiction based on s. 10(h) of the CJPTA since the facts of the proceeding “concern[ed] a business carried on in British Columbia” (at para. 7). The Plaintiff argued that s. 10(h) was relevant to the jurisdictional analysis due to the fact that she was in Alberta in order to carry out her farrier business. However, the Court of Appeal rejected this argument, upholding Truscott J.’s trial decision which held that s. 10(h) only applies “to proceedings that are truly business claims and not personal injury claims where part of the damage claim relates to the effect on a person’s business” (2010 BCSC 186, at para. 15).

The Court in DEMBROSKI also rejected an argument that s. 10(l) of the CJPTA could be invoked to ground jurisdiction. Section 10(l) states that jurisdiction will be found where an action is “for the recovery of taxes or other indebtedness and is brought by the government of British Columbia or by a local authority in British Columbia”. The Plaintiff argued that because the HEALTH CARE RECOVERY COST ACT, S.B.C. 2008, c. 27 required that she advance a claim on behalf of the provincial government to recover the government’s expenses relating to the treatment of her injuries, her claim could be brought within s. 10(l)’s contemplation of actions brought by the B.C. government. However, the Court found that this provision did not encompass statutorily mandated claims advanced on behalf of the government (at para. 16).

After rejecting the Plaintiff’s s. 10(h) and s. 10(l) arguments, the Court turned its attention to the question of whether a “real and substantial” connection capable of grounding jurisdiction under s. 3(e) was present on the facts. After a review of occasionally contradictory case law, the Court followed the dominant line of case law which holds that the fact that a plaintiff who suffers an injury in another jurisdiction happens to reside in the desired jurisdiction does not in itself constitute a real and substantial connection. The Court referred to the case of ROED V. SCHEFFLER, 2009 BCSC 731, in which Bruce J. held that the B.C. Supreme Court did not have jurisdiction over the defendant, who was a resident of Washington State, and who had been in an accident in Washington with the British Columbia plaintiff.

The Court in DEMBROSKI agreed with the following reasoning of Bruce J. (at para. 14):

[14]         I find the fact that the plaintiff continues to suffer damages in British Columbia insufficient to establish a real and substantial connection on its own.  These damages are suffered in British Columbia purely as a result of the plaintiff’s residence here.  To find a real and substantial connection based on these facts would be to effectively base jurisdiction entirely on the plaintiff’s residence.  As set out above, it is well established that a plaintiff’s residence is not sufficient grounds for a territorial competence.

The Court in DEMBROSKI also distinguished product liability cases like MORAN V. PYLE NATIONAL (CANADA) LTD., [1975] 1 S.C.R. 393 and STANWAY V. WYETH PHARMACEUTICALS INC., 2009 BCCA 592 on the basis that the plaintiffs in these cases actually suffered the initial harm in the desired jurisdiction, even if the product was manufactured elsewhere. The Court instead preferred to analogize with personal injury cases like JORDAN V. SCHATZ, 2000 BCCA 409 (“JORDAN”), where the damage was suffered out of the plaintiff’s jurisdiction, even if harm continued to be suffered once the plaintiff returned home. The Court inJORDAN found there was no real and substantial connection when the plaintiff resided in British Columbia, but the accident occurred outside the province and there were no other geographical connections to British Columbia on the facts of the case.

The Court compared the above cases at paras. 42-44:

[42]         MORAN and STANWAY were both product liability cases in which it was held that the tort occurred in that jurisdiction in which harm accrued to a plaintiff via contact with a defective product.  The harm in each case was caused by an item that harmed the particular plaintiff in the place where that injured party resided.  That sufficed to found jurisdiction over a defendant who did not have any physical presence in such location.

[43]         As can be seen from those cases, the place where the damage occurred via contact with the item was the crucial factor that underpinned the assumption of jurisdiction.  It seems to me that it was this type of situation that Cumming J.A. had in mind when he observed in JORDAN, “Clear examples of connecting factors include the residency of the defendant in the jurisdiction or the fact that the tortious act was committed or damages suffered here” (para. 23).

[44]         JORDAN was a personal injury case arising out of a motor vehicle accident in another province and this Court held that the residence of the plaintiff in British Columbia did not suffice to found jurisdiction.  Although the plaintiff in that case was undoubtedly considered to suffer damage from the SEQUELAE of the accident here, the incident causative of this damage occurred in Alberta and that was the place properly clothed with jurisdiction over a tort action.  JORDAN differs fromMORAN and STANWAY because in those latter cases the harm that resulted in damage was caused by contact between the plaintiffs and harmful objects in the jurisdictions where the respective plaintiffs resided.  No such occurrence constituted the foundation of the cause of action in JORDAN, hence it was held the British Columbia courts could not properly take jurisdiction.

The decision in DEMBROSKI suggests that a court will not assume jurisdiction merely because a plaintiff suffers the effects of an otherwise unconnected injury in his or her home jurisdiction. Something more will likely be required to convince a court that there is a “real and substantial connection” between the facts of the case and the jurisdiction.

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