Hans-Christian Preymann Plaintiff And: Ayus Technology Corporation Defendant, 2011 BCSC 1819

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Preymann v. Ayus Technology Corporation, 2011 BCSC 1819 Date: 20110711 Docket: S110770 Registry: Vancouver Between: Hans-Christian Preymann Plaintiff And: Ayus Technology Corporation Defendant Before: The Honourable Mr. Justice Leask Oral Reasons for Judgment In Chambers Counsel for the Plaintiff J.D. Shields Counsel for the Defendant by teleconference T.S. Kent Place and Date of Hearing: Vancouver, B.C. May 13 and July 11, 2011 Place and Date of Judgment Vancouver, B.C. July 11, 2011 [ 1 ] THE COURT: I am going to give a brief oral judgment now.

To a degree, it is going to be based on the original notice of application and application in response as far as the facts are concerned. Should it need to be reproduced, I may edit it for form but not content. [ 2 ] This is an application by the defendant for an order dismissing the notice of civil claim on the grounds that this Court does not have jurisdiction or, in the alternative, an order staying this action.

I think it is fair to say that the defendant has taken the proper steps to make this jurisdictional argument without, in fact, submitting to the jurisdiction in the process of doing so. [ 3 ] The plaintiff's position is that the facts support jurisdiction in British Columbia: first, the defendant is a British Columbia company; second, the defendant has its registered and records office in British Columbia; third, the plaintiff is a shareholder of the defendant company and has rights pursuant to the B.C. Business Corporations Act . The plaintiff has British Columbia counsel.

The defendant has British Columbia counsel. The business office of the defendant is in British Columbia . The president of the defendant is located in Vernon, British Columbia, and he signed two of the documents in issue. Execution would be in British Columbia . [ 4 ] I think the plaintiff's position is summed up in these two sentences: This is a simple debt collection matter.

The plaintiff is entitled to get paid back the funds he lent to the defendant here in British Columbia. [ 5 ] The Court heard argument on the jurisdiction of the B.C. courts and forum non conveniens on May 13 of this year and reserved and requested further written submissions from the parties, which both provided. Following the written submissions being received by the Court, a decision was made by the B.C. Court of Appeal - Viroforce Systems Inc. v. R&D Capital Inc. , 2011 BCCA 260 . In that decision, Mr.

Justice Tysoe, speaking for the Court, said this at paragraph 14: In my opinion, the Act does not alter the general approach to be taken when the parties agree to a forum selection clause. If it is determined or assumed that the British Columbia court has territorial competence, the issue is whether the court should decline jurisdiction, either because the forum selection clause ought to be enforced or a consideration of the factors contained in s. 11 of the Act leads to the conclusion that a court in another jurisdiction is a more appropriate forum.

The existence of a forum selection clause can, by itself, be sufficient reason for a court to decline jurisdiction, and it is not simply one of the factors to consider in making a determination under s. 11. It will not be necessary in all cases to first determine whether there is territorial competence because it may be clear that the forum selection clause will govern the outcome of the matter. The conclusion of the Court is at paragraph 18: The chambers judge was correct in her conclusion that the action should be stayed because even if the Supreme Court of British

Columbia has territorial competence, it should decline to exercise the jurisdiction because the forum selection clause ought to be enforced. [ 6 ] It is my view that despite the careful submissions of counsel for the plaintiff, who has politely suggested that the Court of Appeal is wrong and also pointed out that it is possible for its decision to be distinguished, I am of the view that on the facts of this case, I am bound by the decision of the Court of Appeal and, for that reason, I echo the decision of the chambers judge in Viroforce and I order that the action brought by the plaintiff should be stayed. [ 7 ] Subject to submissions, I think that the defendant should have their costs of this hearing on Scale B. [ 8 ] MR.

SHIELDS: I cannot add anything to that. [ 9 ] THE COURT: So ordered. "P. LEASK, J."