Ayles v. Arsenault, 2011 ABQB 493

Court of Queen ’ s Bench of Alberta Citation: Ayles v. Arsenault, 2011 ABQB 493 Date: 20110802 Docket: 1003 20706 Registry: Edmonton Between: Willette Ayles Plaintiff - and - William Arsenault, Ali Rastikerdar, John Olarte, Roberto Lino Gonzalez Hernandez, Randolph Tsang, Angela Pickles, Donald Fitzpatrick and Labrador-Grenfell Regional Health Authority Owning and Operating the Captain William Jackman Memorial Hospital Defendants _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice B.A. Browne _______________________________________________________ I.

Introduction [ 1 ] The Plaintiff filed a Statement of Claim in the Province of Alberta (“Alberta”) alleging medical malpractice against Labrador-Grenfell Regional Health Authority operating as the Captain William Jackman Memorial Hospital (“the Hospital”) and six doctors (collectively, the “Defendants”) who treated her in the Province of Newfoundland and Labrador (“Newfoundland”). [ 2 ] This is an application by all of the Defendants to stay or dismiss this action on the basis that there exists no real and substantial connection between the action and Alberta.

[ 3 ] In the alternative, should the Court find that there is a real and substantial connection between the action and Alberta, the Defendants apply to stay this action on the basis that Alberta is forum non conveniens and that Newfoundland is the appropriate forum. II. Factual Background [ 4 ] A thorough review of the facts is important to properly assess the connection between the Plaintiff’s claim and Alberta and the Plaintiff’s claim and Newfoundland. [ 5 ] The Plaintiff was born in Baie Verte, Newfoundland in 1981.

She grew up and made her home in Newfoundland until she moved to Grande Cache, Alberta at the end of October of 2009. She has three children, all of whom were born in Newfoundland. The children moved with her to Alberta in 2009. In August of 2009 she separated from her husband who remained in Newfoundland. [ 6 ] In March of 2009 the Plaintiff cut her wrist on a broken window in Newfoundland and attended the Captain William Jackman Memorial Hospital for treatment. From March to the end of October of 2009, she was treated by a number of doctors in Newfoundland.

In April of 2009 she was given a tentative diagnosis by a doctor in Newfoundland of complex regional pain syndrome. That diagnosis was later confirmed by another doctor in Newfoundland in September of 2009. [ 7 ] The move to Alberta took place in October of 2009 after the Plaintiff separated from her husband. Her parents were then living in Alberta. She and the children moved to be closer to them. She and her children live with her parents at the present time.

We have no information about the husband paying child support or the wife’s employment history in Newfoundland prior to or subsequent to the accident or prior to or subsequent to the birth of her children. [ 8 ] The Defendants each carry on the practice of medicine in Newfoundland. One of the Defendants has moved or is planning to move to Ontario. These Defendants provide rotational coverage to the Captain William Jackman Memorial Hospital in Labrador City and otherwise practice in Newfoundland. [ 9 ] The Defendant hospital contains 20 beds. Six family doctors rotate to provide service to the hospital.

In addition, there is a surgeon, an anaesthetist and other professionals who provide services out of the hospital. It is a regional medical facility whose sole place of business is Labrador City, Newfoundland. The hospital does not advertise or solicit for business, and it does not provide treatment outside of Labrador City. All of the hospital’s records are kept at the hospital. [ 10 ] The Statement of Claim was filed by the Plaintiff in Alberta on December 10, 2010.

Prior to issuing the Statement of Claim, the Plaintiff had seen two Alberta doctors with regard to this injury - a neurologist and an endocrinologist. From February to April of 2010 she saw a physiotherapist in Alberta nine times. Since December of 2010 the Plaintiff has seen the neurologist once and has attended physiotherapy once. III.

The Parties ’ Positions [ 11 ] The Defendants argue that the facts do not establish a real and substantial connection between the action and Alberta, and therefore the Alberta Courts should not take jurisdiction over this lawsuit. [ 12 ] The Plaintiff argues that there is a real and substantial connection between her action and Alberta as follows:

1. The Plaintiff resides in Alberta and her move was necessary for her to obtain the support that she required for herself and her children. 2. The Plaintiff’s damages continue to accumulate in Alberta. 3. The Plaintiff has received advice and treatment in Alberta, and will continue to receive advice and treatment in Alberta, for complex regional pain syndrome in her right wrist and hand. 4.

The Plaintiff intends to call as witnesses at least one member of her family, the physiotherapist and the doctors that have been treating her since her move to Alberta. [ 13 ] The Plaintiff further argues on the issue of fairness that the Defendants enjoy the benefit of insurance coverage to pay for their defence and the Plaintiff does not have funds to pursue a claim. The Plaintiff argues, therefore, that there is no unfairness to the Defendants to defend the claim in Alberta. IV. Overview of the Legal Principles Relating to Jurisdiction [ 14 ] Rules 11.25 and 11.31 of the Alberta Rules of Court , Alta.

Reg. 124/2010 are relevant, as they outline the procedure for service ex juris and permit an out-of-province defendant to bring an application, as here, to set aside such service: 11.25(1) A commencement document may be served outside Alberta and in Canada only if (

a) a real and substantial connection exists between Alberta and the facts on which a claim in the action is based, and (

b) the commencement document discloses the facts in support and specifically refers to the grounds for service of the document outside Alberta and in Canada. ...

(3) Without limiting the circumstances in which a real and substantial connection may exist between Alberta and the facts on which a claim in an action is based, in the following circumstances a real and substantial connection is presumed to exist: (

a) the claim relates to land in Alberta; (

b) the claim relates to a contract or alleged contract made, performed or breached in Alberta; (

c) the claim is governed by the law of Alberta; (

d) the claim relates to a tort committed in Alberta;

(

e) the claim relates to the enforcement of a security against property other than land by the sale, possession or recovery of the property in Alberta; (

f) the claim relates to an injunction in which a person is to do or to refrain from doing something in Alberta; (

g) the defendant is resident in Alberta; (

h) the claim relates to the administration of an estate and the deceased died while ordinarily resident in Alberta; (

i) the defendant, although outside Alberta, is a necessary or proper party to the action brought against another person who was served in Alberta; (

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

i) the trust assets include immovable or movable property in Alberta and the relief claimed is only as to that property; (ii) the trustee is ordinarily resident in Alberta; (iii) the administration of the trust is principally carried on in Alberta; (iv) by the express terms of a trust document, the trust is governed by the law of Alberta; (

k) the action relates to a breach of an equitable duty in Alberta. ... 11.31

(1) A defendant may apply to the Court to set aside (

a) service of a commencement document, (

b) an order for substitutional service of a commencement document, or (

c) an order dispensing with service of a commencement document, only before the defendant files a statement of defence or a demand for notice.

(2) An application under this rule is not an acknowledgment by the defendant that the Court has jurisdiction with respect to a claim, counterclaim or third party claim in respect of which the application is filed. ...

[15]

Section 11.25(3) enumerates a number of circumstances where a real and substantial connection is presumed to exist. Thosecircumstances are set out above but none apply to the facts that are before the Court in this action. [16] Regardless of whether one of the circumstances provided for in the rules is satisfied, a Court cannot take jurisdiction over anout-of-province defendant unless the test for real and substantial connection is met: Royal & Sun Alliance Insurance Co. of Canada v.Wainoco Oil & Gas Co., 2004 ABQB 643, 364 A.R. 151 at para. 29, aff’d 2005 ABCA 198, 367 A.R. 177.

Although Rule 11.25(3) isnot exhaustive of the circumstances that may establish a real and substantial connection between the Province and the facts on which theclaim in the action is based, in the absence of one of the enumerated circumstances applying, as here, the onus is on the Plaintiff toestablish a real and substantial connection. [17] The question of whether this Court has jurisdiction over this action involves a two-stage inquiry: Royal & Sun Alliance atparas. 29-31. 1. Can this Court exercise jurisdiction simpliciter over this action on the basis of a real and substantial connection? 2.

If so, should this Court exercise jurisdiction over this action in light of the doctrine of forum non conveniens? [18] The second stage of the inquiry recognizes that even where a Court can properly assume jurisdiction over an action under thefirst stage, it retains the residual discretion to decline to exercise its jurisdiction on the grounds that it is forum non conveniens and thatthere exists a more appropriate forum in which to entertain the action: Muscutt v.

Courcelles (2002), (ON CA), 60O.R. (3d) 20, 2002 CarswellOnt 1756 at para. 40 (C.A.); Royal & Sun Alliance at para. 31. [19] Of significance is that the first and second stages of the inquiry are distinct. Sharpe J.A. provides the following assistance inMuscutt at para. 43: While the real and substantial connection test is a legal rule, the forum non conveniens test is discretionary. The real and substantialconnection test involves a fact-specific inquiry, but the test ultimately rests upon legal principles of general application.

The question iswhether the forum can assume jurisdiction over the claims of plaintiffs in general against defendants in general given the sort ofrelationship between the case, the parties and the forum. By contrast, the forum non conveniens test is a discretionary test that focusesupon the particular facts of the parties and the case.

The question is whether the forum should assert jurisdiction at the suit of thisparticular plaintiff against this particular defendant. [20] The doctrine of forum non conveniens is to be considered separate from and subsequent to the issue of real and substantialconnection under the first stage, and it only arises where more than one forum can properly take jurisdiction simpliciter.

If this Courtdoes not have jurisdiction over this matter, the issue of the convenience of the forum is irrelevant: Royal & Sun Alliance at paras. 30, 34.Moreover, “the factors listed for consideration at the second, discretionary, forum non conveniens stage, have no bearing on real andsubstantial connection and, therefore, should not be considered at the first stage of jurisdiction simpliciter analysis”: Van Breda v.Village Resorts Ltd., 2010 ONCA 84, 98 O.R. (3d) 721 at para. 82. A.

First Stage: Real and Substantial Connection and Jurisdiction Simpliciter [21] Where, as here, a Court does not exercise jurisdiction as of right over an out-of-province defendant, either by the defendant’sphysical presence within the jurisdiction or by the defendant’s submission to the Court’s jurisdiction by consent or conduct, the Courtcan properly assume jurisdiction simpliciter if there exists a real and substantial connection between the action and the jurisdiction:Muscutt at paras. 19, 34; Morguard Investments Ltd. v.

De Savoye, (SCC), [1990] 3 S.C.R. 1077, 1990 CarswellBC283 at paras. 43-44, 51; Royal & Sun Alliance at paras. 26, 29. As set out by LaForest J. in Morguard at para. 51:

It seems to me that the approach of permitting suit where there is a real and substantial connection with the action provides a reasonable balance between the rights of the parties.

It affords some protection against being pursued in jurisdictions having little or no connection with the transaction or the parties. [ 22 ] Underlying the analysis of real and substantial connection are the principles of order, fairness and jurisdictional restraint set out by LaForest J. in Morguard at para. 42, as cited by Royal & Sun Alliance at para. 29: [I]t hardly accords with the principles of order and fairness to permit a person to sue another in any jurisdiction, without regard to the contacts that jurisdiction may have to the defendant or the subject matter of the suit...Thus fairness to the defendant requires that the judgment be issued by a court acting through fair process and with properly-restrained jurisdiction. [ 23 ] The party seeking to establish jurisdiction simpliciter need not prove the most real and substantial connection, only that there is a real and substantial connection to the jurisdiction: Muscutt at para. 44 ; Wheeler v. 1000128 Alberta Ltd. , 2008 ABQB 70 , 431 A.R. 209, aff’d 2008 ABCA 228 , 433 A.R. 234 . [ 24 ] The courts have attempted to provide guidance to assist with this analysis.

In Muscutt , at paras. 77-110 , Sharpe J.A. of the Ontario Court of Appeal sets out additional factors that can be of assistance in determining whether a real and substantial connection exists: 1. the connection between the forum and the plaintiff’s claim; 2. the connection between the forum and the defendant; 3. unfairness to the defendant in assuming jurisdiction; 4. unfairness to the plaintiff in not assuming jurisdiction; 5. the involvement of other parties to the suit; 6. the court’s willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis; 7. whether the case is interprovincial or international; and 8. comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere. [ 25 ] None of the factors are determinative, and flexibility is required on the facts of each case to consider all relevant factors as a whole and to weigh them appropriately: Muscutt at paras. 75-76 ; Royal & Sun Alliance at para. 39. [ 26 ] To date, Alberta Courts have adopted and applied the Muscutt factors: Royal & Sun Alliance at para. 39.

Recently, the Ontario Court of Appeal revisited the real and substantial connection test in Van Breda , where Sharpe J.A. elaborated and clarified a refined version of the test. Under Van Breda , a two-stage test for real and substantial connection is articulated. [ 27 ] At the first stage of Van Breda analysis, the Court determines whether the claim falls under the rules of court for service ex juris . With the exception of the circumstances listed in Rule 17.02(

h) and (

o) of the Ontario Rules of Civil Procedure , R.R.O. 1990, Reg. 194 , if a connection identified in the rules is satisfied, then a real and substantial connection is presumed to exist. The burden then lies on the defendant to demonstrate that the real and substantial connection test is not made out, notwithstanding the presumption. If a

connection identified in the rules is not satisfied, then the burden lies on the plaintiff to establish a real and substantial connection in thecircumstances: Van Breda at paras. 72, 109. [28] In the case at bar, where no connecting factors from Rule 11.25(3) are present, the burden lies on the Plaintiff under VanBreda. [29] At the second stage of Van Breda analysis, the first two Muscutt factors become the core of the real and substantialconnection test – the connection of the plaintiff’s claim to the forum and the connection of the defendant to the forum: Van Breda atparas. 84, 109.

The remaining six factors are to be considered, but they are to “serve as analytic tools to assist the court in assessing thesignificance of the connections between the forum, the claim and the defendant”: Van Breda at para. 84. They are “not to be treated asindependent factors having more or less equal weight when determining whether there is real and substantial connection but as generallegal principles that bear upon the analysis”: Van Breda at para. 109. [30] Both Van Breda and Muscutt where cited by all parties in support of their respective positions.

Van Breda was appealed tothe Supreme Court of Canada: 409 N.R. 398 (note), 2010 CarswellOnt 4829. The Supreme Court of Canada heard the matter on March21, 2011 and reserved judgment. [31] While there are no reported decisions of the Alberta Courts adopting Van Breda, Muscutt has been followed. In the case atbar, I find that the outcome would be the same under either formulation of the real and substantial connection test as Van Breda does notsubstantially alter the relevant considerations set out in Muscutt. It is consistent with the law as it presently stands in Alberta. Robinsonv.

Fiesta Hotel Group Resorts, 2008 ABQB 311, 450 A.R. 167 at para. 16, citing Beals v. Saldanha, 2003 SCC 72 , [2003] 3S.C.R. 416; Royal & Sun Alliance at para. 29; Wheeler at para. 20. [32] Notably, under Van Breda, fairness remains a relevant consideration.

Its relevance to real and substantial connection,however, is clarified in light of the post-Muscutt tendency of courts to “obscure the distinction between jurisdiction simpliciter andforum non coveniens and to merge considerations pertaining to forum non conveniens into the real and substantial connection analysis”, atendency which “is a product of the unduly wide

interpretation given in some cases to fairness”: Van Breda at para. 82. The followingstatement made by Sharpe J.A. at para. 109 is instructive as to the proper role fairness plays in the real and substantial connection test: Consideration of the fairness of assuming or refusing jurisdiction is a necessary tool in assessing the strengths of the connectionsbetween the forum and the plaintiff’s claim and the defendant.

However, fairness is not a free-standing factor capable of trumping weakconnections, subject only to the forum of necessity exception. [33] Forum of necessity is a doctrine whereby a Court has residual discretion to assume jurisdiction despite the absence of a realand substantial connection because there is no other forum in which the plaintiff can reasonably seek relief: Van Breda at paras. 54, 109.None of the parties assert that jurisdiction should be assumed on this basis, and I am satisfied that this is not a proper case in which toinvoke the doctrine. B.

Second Stage: The Doctrine of Forum Non Conveniens [34] If the Court assumes jurisdiction on the basis of a real and substantial connection, it then has the residual discretion to declineto exercise its jurisdiction on the basis that it is forum non conveniens. It can do so where another forum, which also has jurisdiction overthe matter, is found to be the more appropriate forum to entertain the action: Muscutt at para. 40; Royal & Sun Alliance at para. 31. [35] I propose to proceed with the analysis of real and substantial connection. V. Analysis of this Court’s Jurisdiction over this Matter

A. First Stage: Real and Substantial Connection and Jurisdiction Simpliciter [36] At the first stage of the jurisdictional inquiry, the eight factors set out in Muscutt, as refined and simplified in Van Breda, areconsidered. The core of the analysis rests on the first two factors – the connection between the Plaintiff’s claim and Alberta and theconnection between the Defendants and Alberta. The test is flexible and the relevant factors must be weighed appropriately, however, theremaining considerations do not have more or less equal weight to the first two. [37] As stated in Fewer v.

Ellis, 2011 NLCA 17, 2011 CarswellNfld 55, the strength, relevance and quality of the connectionsmust be considered in determining whether it is fair to assume jurisdiction over the defendant: at para. 53. [38] The parties agree that on the facts of this case the fifth and eighth Muscutt factors – the involvement of other parties to thesuit and comity and standards of jurisdiction, recognition and enforcement prevailing elsewhere – are not relevant. 1.

Connection Between the Plaintiff’s Claim and Alberta [39] The Plaintiff asserts a real and substantial connection between her claim and Alberta on the basis that she resides in Alberta,where she has suffered and will continue to suffer from the injury she alleges resulted from the breach by the Defendants of duties owedto her.

Further, at least some witnesses she intends to call reside in Alberta as she receives and will continue to receive advice andtreatment for complex regional pain syndrome allegedly caused by the aforementioned breaches. [40] The Defendants argue that mere residence of the Plaintiff in Alberta is not sufficient to establish a real and substantialconnection, that any damage the Plaintiff continues to suffer in Alberta is merely consequential, and that there is no evidence that hertreatment has been extensive or that her injury is significant or will require further treatment in Alberta.

Consideration of the variousfactors will follow. a. Residence in Alberta [41] It is clear that the fact the Plaintiff is a resident of Alberta is not a sufficient basis on which to find a real and substantialconnection: Muscutt at para. 79. b. Damages Sustained in Alberta [42] Where “the plaintiff lacks a significant connection with the forum, the case for assuming jurisdiction on the basis of damagesustained within the jurisdiction is weaker”: Muscutt at para.79.

The Ontario Court of Appeal excepted the “damages sustained in thejurisdiction” portion of Rule 17.02 from the list of circumstances where a real and substantial connection would be presumed to exist onthe basis of it being an unreliable indicator of real and substantial connection in many cases: Van Breda at para. 78. [43] Furthermore, “[e]ven if the connection is significant, however, the case for assuming jurisdiction is proportional to the degreeof damage sustained within the jurisdiction.

It is difficult to justify assuming jurisdiction against an out-of-province defendant unless theplaintiff has suffered significant damage within the jurisdiction”: Muscutt at para. 79, citing V. Black, “Territorial Jurisdiction Based onthe Plaintiff’s Residence: Dennis v.

Salvation Army Grace General Hospital Board” (1997), 1997 NSCA 177 , 14 C.P.C. (4th)201 at 232, 156 N.S.R. (2d) 372 (C.A.). [44] In support of her position respecting damages sustained in Alberta, the Plaintiff relies on a statement made by Sharpe J.A.,“[w]hile not presumptive of a real and substantial connection, damages suffered in the jurisdiction have often been accepted as asignificant connection”: Van Breda at para. 114.

His statement concerning damages sustained must be taken within the factual contextof that particular case, where there were other connections between the plaintiff’s claim and the jurisdiction. It must also be considered in

light of the Court’s finding it to be an unreliable indicator of real and substantial connection in many cases. [45] While the Plaintiff’s argument centres on damages sustained in Alberta, her claim herein involves first of all the determinationof liability against the Defendants as a result of the alleged negligent treatment of the Plaintiff at the hospital and subsequently inNewfoundland.

This is not a case, as in Muscutt, where the only real issue to be litigated is damages. [46] Many cases have been cited by the Defendants in support of the proposition that jurisdiction should not be assumed wherethere is a lack of evidence of extensive medical treatment or significant damage sustained in the jurisdiction: Markandu (LitigationGuardian of) v. Beranoch, 71 O.R. (2d) 377, 2004 CarswellOnt 2519 at paras. 17-19; Fewer; Muscutt at para. 81. [47] Although the Plaintiff relies on the Nova Scotia Court of Appeal decisions in Oakley v. Barry, 1998 NSCA 68 ,[1998] 166 N.S.R. (2d) 282 (C.A.), O’Brien v.

Canada (Attorney General), 2002 NSCA 21, 201 N.S.R. (2d) 338, and Penny(Litigation Guardian of) v. Bouch, 2009 NSCA 80, 281 N.S.R. (2d) 238, these cases are distinguishable from the one at bar.

In each ofthose cases, the Plaintiffs were residents of Nova Scotia who alleged medical malpractice for treatment received out-of-province andwho, at some point, returned home to Nova Scotia where they were diagnosed with their injuries and underwent extensive treatment. [48] Courts have declined jurisdiction where the allegations relate to events that occurred wholly within a foreign jurisdiction, theplaintiff was diagnosed with an injury in the foreign jurisdiction, and all of the elements of the cause of action arose while the plaintiffwas a resident of that foreign jurisdiction, despite that some subsequent treatment occurred in the forum: Warner v.

Edmonton GeneralHospital, 2008 CarswellOnt 4887 at paras. 13-14 (Ontario Master); Markandu at paras. 12-19. [49] Other courts have denied jurisdiction where “the only connection to the jurisdiction is the fact [the plaintiff] continues tosuffer her injuries while she resides there”: Dembroski v. Rhainds, 2010 BCSC 186, 2010 CarswellBC 311, aff’d 2011 BCCA 185, 2011CarswellBC 884. [50] I am struggling to establish a real and substantial connection between the Plaintiff’s claim and Alberta. It is correct that thePlaintiff lives in Alberta and has for a couple of years, with her parents.

It is acknowledged that the Plaintiff has received some ongoingphysiotherapy and doctor’s appointments to manage the challenges that she has with her hand which were diagnosed in Newfoundlandand confirmed in Alberta. There is no evidence that the hand is getting worse or that the limitations of the Plaintiff’s actions aredeteriorating since her move to Alberta. She has a challenge and that challenge continues. The record before me does not support aninference that the Plaintiff has suffered significant damage or is receiving extensive treatment within Alberta.

In this case, the eventsoccurred wholly in Newfoundland, where the Plaintiff was resident at the time, where she was diagnosed with complex regional painsyndrome, and where she received treatment prior to her move to Alberta. [51] Although the Plaintiff continues to suffer from the injury after moving to Alberta there is little real and substantial connectionbetween Newfoundland’s actions and that suffering. c. Location of Witnesses [52] As mentioned, both liability and damages are contested in this case.

The Plaintiff, the Defendant hospital and doctors will beessential witnesses in the determination of liability.

In dealing with the issue of liability, the Plaintiff may wish to call witnesses tosuggest that the care provided was substandard; however, it is not clear to me at this stage whether those witnesses should be fromAlberta or Newfoundland. [53] There is no doubt that there is a real and substantial connection between the Plaintiff’s claim and Newfoundland.Newfoundland is where the Defendants practice medicine, the hospital is located in Newfoundland, the Plaintiff lived in Newfoundlandall of her life until October of 2009 and was living in Newfoundland at the time of the accident.

Additionally, the diagnosis of complexregional pain syndrome was first made in Newfoundland, and she continued to be treated there subsequent to that diagnosis and prior toher move to Alberta. [54] The Plaintiff will likely call some witnesses from Alberta at her trial, but does the requirement or attendance of those

witnesses and the evidence that they will give establish a real and substantial connection with the Plaintiff’s claim?

The Alberta doctors may provide some update with regard to her condition and may provide their opinions as to the work done on the Plaintiff by the doctors in Newfoundland, but the wording of the Rule is that the real and substantial connection must be established between the forum and the Plaintiff’s claim, including liability and damages. [ 55 ] Regardless, with respect to the Plaintiff’s assertion of a connection to Alberta based on the location of her witnesses, I am satisfied that this factor is to be considered under the forum non coveniens test in order to avoid confusing the two stages of the jurisdictional inquiry: Van Breda at para. 121 . [ 56 ] The assertion of damages sustained within Alberta does not amount to a real and substantial connection.

This first core element, therefore, suggests that jurisdiction simpliciter should not be assumed over this matter. 2. Connection Between the Defendants and Alberta [ 57 ] In assessing the second core element of the real and substantial connection test, the connection between the Defendants and the jurisdiction, both Van Breda and Muscutt focus on things done by the defendant within the jurisdiction: Van Breda at para. 89 .

A Defendant will not generally find itself subject to foreign jurisdiction where it “confines its activities to its home jurisdiction” unless it was “reasonably foreseeable that the defendant’s conduct would result in harm in the jurisdiction”: Van Breda at para. 89, Muscutt at para. 83. [ 58 ] The concept of foreseeability of harm in the jurisdiction is, however, to be distinguished from “the situation where a wrongful act and injury occur outside the jurisdiction and the plaintiff returns home and continues to suffer consequential damage.

The fact that it was foreseeable that a visiting plaintiff will return home and continue to suffer damages does not, by itself, make the defendant subject to the plaintiff’s home jurisdiction”: Van Breda at para. 91 ; Muscutt at para. 83 . [ 59 ] In Van Breda , though he ultimately found a real and substantial connection between the defendant and the forum, Sharpe J.A. repeatedly recognized that “[the defendant’s] situation is readily distinguishable from that of the local service providers in [other cases] who confined their activities to their home jurisdictions”: at para. 120. [ 60 ] Unlike the defendant CRL in Van Breda and the defendant in Robinson , who, though situated in foreign countries, actively solicited business in the provincial jurisdictions at issue, all of the Defendants in this case confined their activities to their home jurisdiction of Newfoundland.

The Defendant doctors restrict their practice to Newfoundland. The Defendant hospital provides treatment only within Labrador City, and does not advertise or solicit for business outside Newfoundland.

Although it is foreseeable that out-of- province visiting patients might be treated in Newfoundland, especially given the inter-provincial mobility of Canadian residents, this is not enough on its own to establish a connection between the Defendants and Alberta. [ 61 ] On the evidence tendered, this second core element of the real and substantial connection test also favours the Defendants and suggests this Court should not assume jurisdiction simpliciter over this matter. 3.

Fairness of Assuming or Refusing Jurisdiction [ 62 ] The fairness of assuming or refusing jurisdiction must be considered from the perspective of both the Plaintiff and the Defendants: Van Breda at paras. 95-97 . [ 63 ] Counsel do not agree on the weight to be given to fairness in the consideration of the real and substantial connection test. The Plaintiff argues that fairness can relate to how the lawsuit is being funded and that since the Defendants have insurance and the Plaintiff does not, that fairness dictates in favour of the Plaintiff’s choice of forum.

[ 64 ] In support of her position, the Plaintiff relies on Muscutt at paras. 86-90 , where Sharpe J.A. considered the parties’ insurance coverage. He considered the fact that the plaintiff did not have the benefit of insurance but that the burden of defending the lawsuit would fall on the defendant’s motor vehicle insurer in holding that the assumption of jurisdiction would not be unfair to the defendants whereas the refusal to assume jurisdiction would be unfair to the plaintiff.

The insurers were required, in that case, to defend claims brought in any Canadian province: Muscutt at para. 87 . [ 65 ] The Defendant argues that fairness must be considered both ways - fairness to the Plaintiff and fairness to the Defendant and that the financing of the lawsuit is simply one of the factors to consider.

The Defendant also argues that we do not know how the Plaintiff is financing the pursuit of her claim and therefore it is difficult to address fairness to both sides. [ 66 ] In her affidavit of April 20, 2011, the Plaintiff deposes to receiving little financial support from her husband and to living with her parents because she is unable to afford her own residence.

There is, however, no evidence setting out how she is financing this action. [ 67 ] The Defendant doctors deny that they will necessarily enjoy the benefit of insurance coverage to pay for their defence as reimbursement by their insurer for any costs and expenses incurred to defend such claims is discretionary.

The Defendant hospital admits that all reasonable expenses incurred to defend the claims in this action, other than for loss of earnings, will be reimbursed by its insurer. [ 68 ] The issue of insurance as it relates to fairness in the context of real and substantial connection was reconsidered in Van Breda .

While fairness remains relevant to the real and substantial connection test, Sharpe J.A., in Van Breda at paras. 99-100, 109 (emphasis added), reconsidered Muscutt and clarified how fairness should be considered at this first stage of the jurisdictional inquiry: [U]nfairness to the plaintiff in not assuming jurisdiction does not amount to an independent factor capable of trumping the want of a real and substantial connection between the forum and the plaintiff ’s claim and/or the defendant .

Moreover, the fact that the foreign defendant is insured against the risk of litigation does not overcome a lack of connection between the claim or the defendant and the forum, and insurance is a matter that is more properly considered in relation to forum non conveniens ” [ 69 ] This statement re-emphasizes the importance of maintaining the distinction between the real and substantial connection test and the doctrine of forum non conveniens .

This is, of course, subject to the forum of necessity doctrine; however, the Plaintiff did not put forth a necessity argument. [ 70 ] The evidence in support of the Plaintiff’s position is lacking, at any rate.

Her affidavit falls short of detailing her specific reason for moving to Alberta after separating from her husband, how she is financing her lawsuit, or that she is financially or physically unable to pursue an action in Newfoundland. [ 71 ] As stated by the Newfoundland Court of Appeal in Fewer , to allow courts to assume jurisdiction on the basis of foreseeability of the plaintiff returning to the jurisdiction would lead to a risk of forum shopping by plaintiffs. “It would be unfair to subject a defendant to a legal system with different rules (longer limitation periods, the existence of presumed damages, etc.) merely because a plaintiff chose to move there to recuperate”: Fewer at para. 57 . [ 72 ] This is not a case wherein the Plaintiff was a resident of Alberta who suffered an injury out-of-province then returned home to Alberta to pursue an action, as was the case of the plaintiff in Muscutt and at least one of the plaintiffs in Van Breda .

Rather, the Plaintiff was a lifelong resident of Newfoundland at the time the alleged breaches occurred and at the time of her diagnosis and initial treatment. She then subsequently moved to Alberta where she currently resides. Her departure to Alberta is arguably less foreseeable than is the return of a resident to their home jurisdiction following an out-of-province accident. On this basis, the case at bar is distinguishable from Muscutt and Van Breda as the Defendants have virtually no reason to expect that they would be found liable in Alberta.

It would therefore be unfair to the Defendants to assume jurisdiction over this matter where no reasonable expectation of liability in Alberta exists. [ 73 ] Additionally, assuming jurisdiction over this matter would no doubt be unfair to the Defendants whose medical practice in Newfoundland would be disrupted by a trial on liability and damages in Alberta: Markandu at para. 24. Once again upon consideration of fairness the Plaintiff falls short of satisfying the required test.

Other Principles Relevant to Real and Substantial Connection [ 74 ] While the parties agree that the fifth and eighth factors set out in Muscutt are not relevant in this case, the Plaintiff asserts that the sixth and seventh factors – the court’s willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis and whether the case is interprovincial or international – support the assumption of jurisdiction by this Court. [ 75 ] In Muscutt , the Ontario Court of Appeal held that where a court would be willing to recognize and enforce a extra-provincial judgment rendered on the same jurisdictional basis, and where a case is interprovincial as opposed to international, the assumption of jurisdiction is more easily justified: at paras. 93-95.

In Van Breda , however, the Court clarified that these two factors are not to be considered to have more or less equal weight to the first two core factors of the real and substantial connection test – the connection between the forum and the plaintiff’s claim and the connection between the forum and the defendant. [ 76 ] Moreover, Muscutt and Van Breda both state that the real and substantial connection test must be flexible and cannot be undertaken by mechanical counting of the factors.

Despite that these latter two factors support an assumption of jurisdiction by this Court, I am satisfied that this is insufficient to override the core of the real and substantial connection test. [ 77 ] Having found that there is no real or substantial connection between either the Plaintiff’s claim and Alberta or the Defendants and Alberta, and that it would be unfair to the Defendants to assume jurisdiction in this case, I find that this Court lacks jurisdiction simpliciter over this matter. B.

Second Stage: The Doctrine of Forum Non Conveniens [ 78 ] As I find that there is no real and substantial to Alberta and, therefore, no jurisdiction over this action, there is no need to consider the second stage inquiry of forum of convenience. VI. Appropriate Remedy [ 79 ] With respect to remedy, the Defendant Labrador-Grenfell Regional Health Authority seeks to have the action stayed or dismissed on the grounds that there exists no real or substantial connection between the action and Alberta.

The Defendant doctors seek a direction that the Court lacks jurisdiction to entertain this action on the same grounds. [ 80 ] The importance first placed on the distinction between the real and substantial connection test and the forum of convenience analysis by the Ontario Court of Appeal in Muscutt applies when considering the appropriate remedy. The statement made by Stephen G.A. Pitel and Nicholas S. Rafferty, in Essentials of Canadian Law: Conflict of Laws (Toronto: Irwin Law, 2010) at 122 is illustrative: This separation of analysis also needs to be maintained on the question of the appropriate remedy.

If the Court lacks jurisdiction, the proceeding should be dismissed. In contrast, if the Court has jurisdiction but there is a more convenient forum elsewhere, the proceeding should be stayed. This distinction between a stay and a dismissal needs to be observed. One aspect of this is that courts should not be encouraged to avoid reaching a conclusion on the issue of jurisdiction by holding that, in any case, the forum is not the convenient forum and so stay the proceedings.

This might seem convenient where the jurisdiction issue is complex but the circumstances point quite clearly to another forum as the forum conveniens . This nonetheless amounts to having accepted jurisdiction without truly resolving that issue, since the Court must have jurisdiction to order a stay. [ 81 ] Having determined that there is no real and substantial connection between this action and Alberta, I find that the Alberta Courts lack jurisdiction over this matter. The issue of forum of convenience does not, therefore, arise.

Given the absence of jurisdiction, the Alberta action is dismissed as against all the Defendants.

Heard on the 8 th day of June, 2011. Dated at the City of Edmonton, Alberta this 2 nd day of August, 2011. B.A. Browne J.C.Q.B.A. Appearances: Alan R. Gray Weir Bowen LLP for the Plaintiff Michael G. Massicotte Borden Ladner Gervais LLP for the Labrador-Grenfell Regional Health Authority owning and operating the Captain William Jackman Memorial Hospital James S. Peacock, Q.C. Gowling Lafleur Henderson LLP for the Defendants William Arsenault, Ali Rastikerdar, John Olarte, Roberto Lino Gonzalez Hermandez, Angela Pickles and Donald Fitzpatrick