Deadman v Jager Estate, 2018 ABQB 985

Court of Queen’s Bench of Alberta Citation: Deadman v Jager Estate, 2018 ABQB 985 Date: 20181203 Docket: 1703 21226 Registry: Edmonton Between: The Estate of John Jager, by its Litigation Representative, Theodore Jager and Marion Jager, by Her Litigation Representative, Cindy Arcand Plaintiffs - and - Thomas Deadman and Constance Deadman Defendants _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice James T.

Neilson _______________________________________________________ [ 1 ] This is an application by the Defendants, Thomas Deadman and Constance Deadman, appealing the decision of the Master in Chambers dismissing the Defendants’ application to set aside service outside Alberta (formerly “service ex juris ”) of the Amended Statement of Claim. Furthermore, the Defendants challenge the jurisdiction of the Alberta Court to entertain this case, and assert that, even if Alberta has jurisdiction, it is not a convenient forum for consideration of this case, but rather, the more appropriate forum is in Mexico.

The Claims Asserted on Behalf of the Plaintiffs [ 2 ] Theodore Jager is the litigation representative of the Estate of John Jager, who passed away on November 7, 2016. Cindy

Arcand is the litigation representative of the Plaintiff Marion Jager. Theodore Jager, Cindy Arcand and Marion Jager reside in Alberta. Theodore Jager, Cindy Arcand and the Defendant Constance Deadman are children of John Jager and Marion Jager. [ 3 ] John and Marion Jager spent much of their time in retirement in Mexico, and owned property there.

They were granted permanent resident status by the Mexican government on or about March 1, 2013, but returned to Alberta when John suffered a stroke in April, 2014. [ 4 ] The Defendants are Canadian citizens and permanent residents in Mexico. [ 5 ] The Amended Amended Statement of Claim filed on January 3, 2018, alleges the following claims against the Defendants:

a) A claim by the Plaintiffs to recover debt under promissory notes dated September 2009 and September 2010 totalling $650,000 USD, which it is alleged has not been repaid in full by the Defendants. Each note provides that, the funds being advanced and the note being made in Alberta, the laws of this Province shall apply.

b) A claim to recover an additional loan, identified as the “Fifth Floor Condominium Loan” in the amount of $109,000 USD.

c) Claims for conversion, breach of fiduciary duty, breach of contract, and breach of duty at common law to deal fairly and in good faith, in relation to the “Fifth Floor Condominium Investment” in the amount of $318,500 USD.

d) A claim against the Defendants that, during family meetings including Marion Jager, held in April 2014 in St. Albert, Alberta, the Defendants admitted liability for debts owing under the Promissory Notes but denied any further debt owing and payable to John Jager. This is defined as the “Misrepresentation”, which was relied on by the Plaintiffs to their detriment. [ 6 ] The funds advanced to them by the Plaintiffs pursuant to the two promissory notes were loans to permit them to purchase property in Mazatlan, in the state of Sinaloa, Mexico.

The Defendants assert that these loans have been largely paid out, and the remaining sum allegedly owing remains in dispute. [ 7 ] The “Fifth Floor Condominium Investment” related to a real estate development in Mazatlan, whereby the Plaintiffs would purchase two condominium units on the fifth floor of a building to be constructed, and the Defendants would purchase a third unit. The investment is described by the Defendant Thomas Deadman in his affidavit sworn in these proceedings on February 7, 2018. [ 8 ] The purpose of the investment was ultimately to resell the units at a profit.

The purchase of two units was effected on behalf of the Plaintiffs through Connie Deadman, in order to avoid additional closing costs and residency requirements for property ownership. The purchase agreement is dated June 21, 2007. [ 9 ] The Fifth Floor Condominium Units were never constructed and litigation was commenced against the developer in Matazlan. The litigation was funded for a period of time by John and Marion Jager but they eventually gave up their pursuit.

The developer had gone out of business, but the Defendants ultimately reached a settlement with a successor corporation whereby they would accept one condominium unit in satisfaction of their claim. [ 10 ] The Plaintiffs allege that the Defendants breached their duties in contract and tort by failing to protect the Plaintiffs’ interests in effecting a settlement whereby the Plaintiffs made no recovery. [ 11 ] The documents relating to the Fifth Floor Condominium Loan were discovered by Cindy Arcand in 2016.

The Defendants will deny that there is any money owing pursuant to that loan. [ 12 ] At this stage in the proceedings, the court is not determining any of the issues on their merits. If jurisdiction exists and the Alberta Court exercises jurisdiction over this claim, then the Defendants may file a Statement of Defence and the litigation will proceed toward a determination on the merits.

The Decision of the Master [ 13 ] An appeal from the decision of a Master is a hearing de novo , and the standard of review by the appeal court is correctness: Bahcheli v Yorkton Securities Inc., 2012 ABCA 166 at paras. 19-21 and 30 . [ 14 ] Master Schlosser heard the application by the Defendants to set aside the service outside Alberta of the Amended Statement of Claim. [ 15 ] The Amended Statement of Claim was served on the Defendants personally while they were attending a funeral in the Province of Nova Scotia. [ 16 ] On January 2, 2018, the Master made the following Order: “1.

The Service Application is dismissed. 2. The Plaintiffs may file an Amended Amended Statement of Claim (the “Amended Amended Statement of Claim”) and serve the same on McLennnan Ross LLP by January 5, 2018, which service on behalf of the Defendants shall be without prejudice to the Defendants’ right to bring an application challenging the jurisdiction of this Court over the within Action. 3.

The Defendants shall file and serve, without prejudice, on Counsel for the Plaintiffs no later than January 31, 2018 a Statement of Defence to the Amended Amended Statement of Claim unless the Defendants file an application challenging the jurisdiction of this Court over the within Action, in which case no Defence is required until that application is decided.

4. Costs of the Service Application are payable by the Defendants to the Plaintiffs forthwith and in any event of the cause.” [17] The Defendants have appealed paragraph 1 of the Master’s Order, which dismissed the application to set aside the serviceoutside Alberta of the Amended Statement of Claim. [18] The Master noted that the Amended Statement of Claim includes claims under the Promissory Notes which provide that theyare governed by the law of Alberta. The Master noted that the pleading did not expressly state this, but the notes were in evidenceappended to an affidavit sworn by Lynette Senio.

Furthermore, it would be open for the Plaintiffs to file a further amended pleading tomake specific reference to a claim being governed by the law of Alberta. [19] The Plaintiffs filed an Amended Amended Statement of Claim on January 3rd, 2018 setting out additional pleas with respect tothe notes, and two alleged misrepresentations made by the Defendants while meeting with the Plaintiffs and others in St. Albert in April2014. [20] Deficiencies in a pleading when considering the application of Rule 11.25 to service outside Alberta are not fatal and thePlaintiff may amend the claim.

Under Rule 3.26(1), prior permission of the Court is not required to do this: Greenbuilt Group ofCompanies Ltd. v RMD Engineering Inc., 2013 ABQB 297, at para 117. [21] I find that the Master was correct in concluding that the commencement document, to be further amended, establishedpresumptively a real and substantial connection to the Province of Alberta for the purposes of service under Rule 11.25 (1), anddismissing the application to set aside service outside Alberta.

The appeal by the Defendants from the order of the Master dismissing theDefendants’ application to set aside service is dismissed. [22] The Master further ordered that the Defendants had leave to make application challenging the jurisdiction of the AlbertaCourt over the within action. Pursuant to Rule 11.31(2), an application to set aside service is not an acknowledgment that the Court hasjurisdiction. The Master was correct in permitting the Defendants to proceed with this application without attorning to the jurisdiction ofthis Court.

Service Outside Alberta – Jurisdiction Simpliciter and ForumNon Conveniens [23] In a series of decisions, the Supreme Court of Canada has set out the legal tests that are to be applied in determining whether aCourt has jurisdiction over a foreign Defendant, and if so, whether that jurisdiction ought to be exercised or whether another jurisdictionis the more convenient forum to entertain the action. [24] Most recently, the Supreme Court of Canada has outlined fundamental principles underlying Canadian private internationallaw relating to jurisdiction simpliciter and forum non conveniens in Haaretz.com v Goldhar, 2018 SCC 28, per Côté, J, beginning atparagraph 26: [26] In Club Resorts Ltd. v.

Van Breda, 2012 SCC 17 , [2012] 1 S.C.R. 572, LeBel J., for a unanimous Court, carefullyexplained the jurisdiction simpliciter analysis, which applies to the assumption of jurisdiction, as well as the forum non conveniensdoctrine, which is meant to guide courts in deciding whether to exercise their jurisdiction.

These principles, along with those relating tothe recognition of foreign judgments, represent the common law conflicts rules of Canadian private international law and must beunderstood and analysed as a cohesive whole (Van Breda, at para. 16). [27] Central to a proper understanding of the conflicts rules of Canadian private international law, and to the resolution of this appeal, isan appreciation of the distinct roles played by jurisdiction simpliciter and forum non conveniens (Van Breda, at paras. 46 and 56,affirming the reasoning of Sharpe J.A. in Muscutt v.

Courcelles (2002), (ON CA), 60 O.R. (3d) 20 (C.A.), andCharron Estate v. Village Resorts Ltd., 2010 ONCA 84 , 98 O.R. (3d) 721). The jurisdiction simpliciter analysis is meant toensure that a court has jurisdiction. This will be the case where a “real and substantial connection” exists between a chosen forum and thesubject matter of the litigation.

The forum non conveniens analysis, on the other hand, is meant to guide courts in determining whetherthey should decline to exercise that jurisdiction in favour of a “clearly more appropriate” forum. [28] The importance of maintaining this distinction flows from the discrete concerns underlying each analysis and the nature of therelevant factors at each stage. The “real and substantial connection” test at the jurisdiction simpliciter stage prioritizes order, stability andpredictability by relying on objective connecting factors for the assumption of jurisdiction.

Conversely, the forum non conveniensanalysis emphasizes fairness and efficiency by adopting a case-by-case approach to identify whether an alternative jurisdiction may be“clearly more appropriate”. I will briefly elaborate on the principles underlying each analysis. [29] In defining the content of the “real and substantial connection” test for the assumption of jurisdiction, this Court was faced with achoice between an approach based on objective connecting factors and a case-by-case approach (Van Breda, at para. 30).

This choicewas characterized by the tension between predictability and consistency, on the one hand, and fairness and efficiency, on the other (VanBreda, at para. 66). Ultimately, the Court decided to prioritize order and predictability at the jurisdiction simpliciter stage, in thefollowing terms: Given the nature of the relationships governed by private international law, the framework for the assumption of jurisdiction cannot bean unstable, ad hoc system made up “on the fly” on a case-by-case basis — however laudable the objective of individual fairness maybe.

As La Forest J. wrote in Morguard, there must be order in the system, and it must permit the development of a just and fair approachto resolving conflicts. Justice and fairness are undoubtedly essential purposes of a sound system of private international law. But theycannot be attained without a system of principles and rules that ensures security and predictability in the law governing the assumption ofjurisdiction by a court. Parties must be able to predict with reasonable confidence whether a court will assume jurisdiction in a case with

an international or interprovincial aspect. (Van Breda, at para. 73) To achieve this order and predictability, the Court opted to rely on a set of defined presumptive connecting factors at the jurisdictionsimpliciter stage (Van Breda, at para. 78). [30] This objectively ascertainable and relatively low bar to establishing that a chosen forum has jurisdiction, on a prima facie basis,reflects the constitutional imperative underlying the jurisdiction simpliciter stage, as described in Van Breda: From a constitutional standpoint, the Court has, by developing tests such as the real and substantial connection test, sought to limit thereach of provincial conflicts rules or the assumption of jurisdiction by a province’s courts. . . .

In its constitutional sense, it places limitson the reach of the jurisdiction of a province’s courts and on the application of provincial laws to interprovincial or internationalsituations. [Emphasis added; para. 23.] The constitutional purpose of the jurisdiction simpliciter test is to establish a minimum threshold for the assumption of jurisdiction inorder to prevent improper assumptions of jurisdiction (Van Breda, at para. 26; see also Hunt v. T&N plc, (SCC), [1993]4 S.C.R. 289, at p. 325).

Its objective is to delineate circumstances in which a court has jurisdiction, not circumstances in which it shouldexercise it (which is the purpose of forum non conveniens).

The prioritization of order and predictability at the jurisdiction simpliciterstage is also consistent with the principle of comity, which is central to Canadian private international law (Van Breda, at para. 74). [31] This prioritization of order and stability at the jurisdiction simpliciter stage, through the adoption of objective presumptiveconnecting factors, is meant to work in tandem with a flexible case-by-case approach to forum non conveniens.

Once it is established thata court has jurisdiction, the forum non conveniens doctrine requires a court to determine whether it should exercise such jurisdiction. [32] The purpose of the forum non conveniens analysis is to temper any potential rigidity in the rules governing the assumption ofjurisdiction and “to assure fairness to the parties and the efficient resolution of the dispute” (Van Breda, at para. 104). This is necessarygiven this Court’s recognition that jurisdiction “may sometimes be established on a rather low threshold (Van Breda, at para. 109).

Byfocusing “on the contexts of individual cases”, the forum non conveniens stage plays an important role in striking a balance betweenorder and fairness (Van Breda, at para. 105). Service Outside Alberta – The Alberta Rules of Court [25] The Supreme Court of Canada in Haaretz.com and Van Breda identified certain presumptive circumstances which couldestablish a real and substantive connection between the Court in which action was commenced and the facts on which a claim in theaction is based. The Court in those cases considered specifically claims in tort.

In Haaretz.com, Côté, J. set out the followingpresumptive connecting factors, following Van Breda: [36]… in Van Breda, the Court stressed the importance of determining jurisdiction “on the basis of objective factors” establishing arelationship between the subject matter of the litigation and the chosen forum (para. 82). The Court identified the following presumptiveconnecting factors grounding a court’s assumption of jurisdiction: (

a) the defendant is domiciled or resident in the province; (

b) the defendant carries on business in the province; (

c) the tort was committed in the province; and (

d) a contract connected with the dispute was made in the province. [26] In Alberta, the Legislature, in enacting the current Rules of Court, has identified further presumptive circumstances,specifically in Rule 11.25. [27] Rule 11.25(1) of the Rules of Court provides as follows: 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 outsideAlberta and in Canada. [28] In this case, the Defendants were served personally with the Amended Statement of Claim in the Province of Nova Scotia.Therefore, the Statement of Claim was served within Canada. [29] Under the current Rule, there is no longer a requirement to file an affidavit of merits in support of service of a claim outsideAlberta and within Canada.

Rather, the issue is whether “the commencement document discloses the facts in support and specificallyrefers to the grounds for service of the document outside Alberta and in Canada”. Rule 11.25(3) provides as follows:

(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. [ 30 ] While the foregoing claims give rise to a presumption of a “real and substantial connection” that may exist between Alberta and the facts on which a claim in an action is based, the Court may consider any factors which could establish a real and substantial connection: Van Breda , 2012 SCC 17 at para. 91 Jurisdiction S impliciter [ 31 ] At the first stage of the analysis, the court must determine whether the Plaintiffs have established that the Alberta Court does have presumptive jurisdiction in that there are circumstances of a real and substantial connection between Alberta and the facts on which a claim is based.

If presumed jurisdiction is established, this can be rebutted nonetheless by the Defendants, where the presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and the forum, or points only to a weak relationship between them: Van Breda at para 95. [ 32 ] The following circumstances alleged in the Amended Amended Statement of Claim give rise to a real and substantial connection which is presumed to exist under Rule 11.25 (3): The claim relates to a contract or alleged contract made, performed or breached in Alberta [ 33 ] The first promissory note was signed by the parties in Alberta and funds were advanced from the Plaintiff’s bank account in Alberta. [ 34 ] The second promissory note was signed in Mexico, but again the funds were advanced from the Plaintiff’s bank account in Alberta.

Thomas Deadman deposed that the loan terms were agreed to in Mexico. However, some payments were made by the Defendants to the Plaintiffs’ Alberta account, so the contracts were at least partially performed in Alberta. The claim is governed by the law of Alberta [ 35 ] The notes provide that they are governed by the law of Alberta. [ 36 ] Further, the Amended Amended Statement of Claim alleges in paragraph 12(

i) that “it is a term of the 5 th Floor Condominium Loan, express or implied, that it is governed by the law of Alberta.” The Defendants assert that the transactions that occurred in Mexico

are governed by Mexican law. However, determining the governing law may ultimately be a triable issue. The promissory notes, at least,provide evidence that the parties intended the law of Alberta would apply to those loans. The claim relates to a tort committed in Alberta; [37] The claim alleges facts relating to breach of fiduciary duty and misrepresentation upon which the Plaintiffs relied to theirdetriment. The misrepresentations were allegedly made during meetings in Alberta in April 2014.

Also, the allegations give rise toalleged damages incurred by the Plaintiffs, resident in Alberta. [38] Courts have previously considered the difficulties which may arise in determining the situs of a tort, including the place wherea breach occurred, and the place where damage or injury resulted: Gulevich v Miller, 2015 ABA 411 at paras 23-35; Morin v PyleNational (Canada) Ltd, (SCC), [1975] 1 SCR 393 at 402; Morguard Investments Ltd v De Savoye, (SCC), [1990] 3 SCR 1077 at 1109. [39] However, it is clear that the tort of misrepresentation occurs where the misinformation is received or acted upon, in this caseSt.

Albert, Alberta: 2249659 Ontario Ltd v Siegen, 2013 ONCA 354 at para 30; Central Sun Mining Inc v Vector Engineering Inc,2013 ONCA 601 at para 30. [40] Furthermore, as the Supreme Court of Canada ruled in Haaretz.com supra at para 36, a presumptive connecting factor for aclaim in tort which entitles a Court to assume jurisdiction, is where a “contract connected with the dispute was made in the province” [41] In this case, the contracts, represented by the promissory notes identified above, are connected with the dispute and made inAlberta, c.f.

Toews v Grand Palladium Vallarta Resorts & Spa, 2016 ABCA 408, at paras 9 to 12. The claim relates to the administration of an estate and the deceased died while ordinarily resident in Alberta; [42] John Jager passed away while ordinarily resident in Alberta on November 7, 2016. By Order granted by the Honourable D. R.Mah on May 23, 2017, in Surrogate Court File SES03 14802, the Court granted probate of John Jager’s last will and testament and theadministration of all of John Jager’s property and appointed Theodore Jager as the Estate’s personal representative.

Theodore Jager is aresident of Fort McMurray, Alberta. [43] In the litigation, Theodore Jager seeks to enforce, on behalf of the Estate, choses in action which are property of the Estate.These claims sound in contract, tort and other duties as against the Defendants. [44] Alberta possesses jurisdiction over the personal representative, as of right. Theodore Jager resides in Alberta and he causedJohn Jager’s will to be probated in Alberta: Re Foote (Estate of), 2007 ABQB 654 at paragraph 34. [45] The foregoing claims, then, establish a presumptive real and substantial connection to Alberta.

Rebuttal of Jurisdiction Simpliciter [46] The Defendants submit that any connection to Alberta’s jurisdiction is weak and does not meet the “real and substantialconnection” test. They submit that the transactions in issue involve business activity between the parties which occurred in Mexico, thejurisdiction where there is a real and substantial connection. [47] However, for the foregoing reasons, I have concluded that Alberta has presumptive jurisdiction and I find that this has notbeen rebutted by the Defendants.

In the circumstances, it was reasonably foreseeable that this claim would proceed in this jurisdiction.Indeed, this is the only jurisdiction where it could have proceeded, other than Mexico as the Defendants submit. For example, this is nota case of forum shopping, which can arise in multijurisdictional tort cases such as Internet defamation.

In those cases, there may be aconnection to many jurisdictions where there has been defamatory publication but the connection is too weak to meet the “real andsubstantial” test and a weak jurisdictional presumption may be rebutted. [48] Furthermore, if a real and substantial connection to Alberta exists with respect to at least some of the claims being advanced,then the Court must assume jurisdiction over all of the claims being advanced in the interest of fairness and efficiency.

As the SupremeCourt of Canada states in the Van Breda decision at paragraph 99: ... it is possible for a case to sound both in contract and in tort or to invoke more than one tort. Would a court be limited to hearing thespecific part of the case that can be directly connected with the jurisdiction? Such a rule would breach the principles of fairness andefficiency on which the assumption of jurisdiction is based. The purpose of the conflicts rules is to establish whether a real andsubstantial connection exists between the forum, the subject matter of the litigation and the Defendant.

If such a connection exists inrespect of a factual and legal situation, the court must assume jurisdiction over all aspects of the case. The plaintiff should not be obligedto litigate a tort claim in Manitoba and a related claim for restitution in Nova Scotia. This would be incompatible with any notion offairness and efficiency. [49] For the foregoing reasons, I find that a real and substantial connection has been established on several grounds to thejurisdiction of the Alberta Court, and has not been rebutted successfully by the Defendants.

Forum Non Conveniens and the Exercise of Jurisdiction [50] The Defendants submit that, even if the Court finds that Alberta has jurisdiction over this claim, there is a more appropriateforum, namely, Mexico. In that regard, I am assuming that a court in the State of Sinaloa, Mexico, could assume jurisdiction. TheDefendants are residents there. The transaction relating to the Fifth Floor Condominium Investment occurred there and raises allegationsof tort and breach of equitable duty.

However, any governing federal or state law from that jurisdiction, substantive or procedural, is notbefore the Court on this application. [51] In order to succeed, the Defendants must establish that another jurisdiction is clearly preferable. The Supreme Court ofCanada in Haaretz.com, supra., at para 46, defines the burden that must be met by the Defendants in order to persuade the Court that theother jurisdiction is more appropriate to try the case: Having established jurisdiction (pursuant to the jurisdiction simpliciter analysis), the motion judge properly considered the question offorum non conveniens.

At the forum non conveniens stage, the burden is on the defendant to satisfy the motion judge that the alternativeforum is “clearly more appropriate” by establishing that it would be fairer and more efficient to proceed in that forum: The use of the words “clearly” and “exceptionally” should be interpreted as an acknowledgment that the normal state of affairs is thatjurisdiction should be exercised once it is properly assumed.

The burden is on a party who seeks to depart from this normal state ofaffairs to show that, in light of the characteristics of the alternative forum, it would be fairer and more efficient to do so and that theplaintiff should be denied the benefits of his or her decision to select a forum that is appropriate under the conflicts rules. The courtshould not exercise its discretion in favour of a stay solely because it finds, once all relevant concerns and factors are weighed, thatcomparable forums exist in other provinces or states. It is not a matter of flipping a coin.

A court hearing an application for a stay ofproceedings must find that a forum exists that is in a better position to dispose fairly and efficiently of the litigation. But the court mustbe mindful that jurisdiction may sometimes be established on a rather low threshold under the conflicts rules.

Forum non conveniensmay play an important role in identifying a forum that is clearly more appropriate for disposing of the litigation and thus ensuringfairness to the parties and a more efficient process for resolving their dispute. [Emphasis added.] [52] The Supreme Court in Van Breda, supra at para 105, identified at least some of the factors that the court may take intoaccount in its forum non conveniens analysis. [105] A party applying for a stay on the basis of forum non conveniens may raise diverse facts, considerations and concerns.

Despitesome legislative attempts to draw up exhaustive lists, I doubt that it will ever be possible to do so. In essence, the doctrine focusses on thecontexts of individual cases, and its purpose is to ensure that both parties are treated fairly and that the process for resolving theirlitigation is efficient.

For example, s. 11(1) of the CJPTA [Court Jurisdiction and Proceedings Transfer Act]provides that a court maydecline to exercise its jurisdiction if, “[a]fter considering the interests of the parties to a proceeding and the ends of justice”, it finds that acourt of another state is a more appropriate forum to hear the case. Section 11(2) then provides that the court must consider the“circumstances relevant to the proceeding”. To illustrate those circumstances, it contains a non-exhaustive list of factors:

a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or inany 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. [s. 11(2)] [53] Other factors that may be considered in the forum non conveniens analysis were identified in Alliance Pipeline LimitedPartnership v C.E. Franklin Ltd., 2005 ABQB 102 at para 41: [41] The factors to consider when assessing forum conveniens are set out in Camco International (Canada) Ltd. v. Porodo (1997), (AB KB), 211 A.R. 71 (Q.B.), at para. 16, and they include: 1. Where each party resides 2. Where each party carries on business 3. Where the cause of action arose 4. Where the loss or damage occurred 5.

Any juridical advantage to the plaintiff in this jurisdiction 6. Any juridical disadvantage to the defendant in this jurisdiction 7. Convenience or inconvenience to potential witnesses 8. Cost of conducting the litigation in this jurisdiction

9. Applicable substantive law 10. Difficulty of proving foreign law, if necessary. [ 54 ] The Court must consider, then, a number of factors to determine whether there is clearly a more appropriate forum for disposing of the litigation and thus ensuring fairness to the parties in a more efficient process for resolving their dispute. [ 55 ] As for the comparative convenience and expense for the parties and witnesses, the Defendants have identified a number of potential witnesses who are located in Mexico. The Defendants, of course, are resident in Mexico.

They also cite four individuals who represented the corporate developer which defaulted on the Fifth Floor Condominium project and became insolvent, and some of whom were apparently convicted of crimes. Litigation was pursued in Mexico against that party and is now concluded.

The relevance of their evidence to the issues and this claim is therefore doubtful. [ 56 ] The Defendants also identified the legal representatives representing the Defendants in that litigation, and their evidence may also be of doubtful relevance. [ 57 ] A representative of Vive Homes with whom the Defendants reached a settlement resulting in the acquisition of one condominium unit, could provide relevant evidence in relation to the settlement impugned by the Plaintiffs. [ 58 ] The Plaintiffs identify several witnesses who may give relevant evidence in relation to the promissory notes and loans, as well as the alleged misrepresentations in April 2014.

These witnesses are Cindy Arcand, Theodore Jager, Gerald O’Neil, the solicitor who prepared the promissory notes, as well as family members who were present during the meetings with Thomas Deadman in April 2014.

One material witness to the Fifth Floor Condominium Investment claim, Ron Gollehon, now resides in the United States and has communicated a refusal to return to Mazatlan, Sinaloa, for reasons of personal security. [ 59 ] To the extent that the applicable law in relation to these various claims is an issue which must be tried, an expert in the applicable law of Mexico could be called to testify if the action proceeds in Alberta, and similarly, an expert in the applicable law of Alberta could be called if an action against the Defendants was to be commenced in Sinaloa.

I do not consider that this factor would clearly point to Sinaloa as the more appropriate forum. [ 60 ] Furthermore, any expense and inconvenience for witnesses to testify in the Alberta litigation could be obviated by the witnesses testifying remotely by electronic means pursuant to Rule 6.10 of the Rules of Court . [ 61 ] I consider then, that the comparative convenience and expense of the parties and witnesses is a neutral factor which does not clearly point to Mexico as the more appropriate forum. [ 62 ] As noted previously, the applicable law may have to be determined by the trial judge and in any event, that factor should be given little weight in the ultimate balancing: Haaretz.com , supra at para 90 . [ 63 ] As for juridical advantage, the Plaintiffs have selected Alberta as the forum to pursue their claims, being represented by counsel who are trained in Alberta law.

No action in respect of these claims has been commenced in Mexico. It is not known what law could apply to Mexican legal proceedings, including any possible limitation at this stage should action be commenced there if the Alberta litigation is stayed. This could lead to a juridical disadvantage for the Plaintiffs.

On the other hand, there should be no concern that the Defendants would receive a fair hearing should the Alberta litigation proceed. [ 64 ] As there is currently only one action, there is no danger of a conflicting decision coming from another court. [ 65 ] Should the Plaintiffs ultimately succeed in the Alberta action, then enforcement proceedings may be required in Mexico given that the Defendants reside there and have no assets in Alberta.

However, on the principle of comity between jurisdictions, it is assumed that a Mexican court would recognize a claim which had been served in accordance with the law and a judgment which had been reached on the merits in the Alberta court. Conclusion [ 66 ] Having established that the Alberta Court has jurisdiction simpliciter to hear this case, I also conclude that the Defendants have not met the onus to establish that a court in Mexico would be the more convenient forum for this litigation. The Alberta Court therefore assumes jurisdiction and the action will not be stayed.

The Defendants’ application is accordingly dismissed. [ 67 ] A single set of costs for this appeal and application is awarded to the Plaintiffs under column 4 of

Schedule C to the Rules of Court , as well as any reasonable disbursements, payable forthwith and in any event of the cause. [ 68 ] In addition, the cost award by the Master is upheld. Heard on the 17 th day of October, 2018. Dated at the City of Edmonton, Alberta this 3 rd day of December, 2018.

James T. Neilson J.C.Q.B.A. Appearances: Crista Osualdini McLennan Ross LLP for the Applicants (Defendants) Sharon A Roberts Field LLP for the Respondents (Plaintif f)