Knotty Pine Cabins Inc v MacDonald, 2023 ABKB 38

Court of King’s Bench of Alberta Citation: Knotty Pine Cabins Inc v MacDonald, 2023 ABKB 38 Date: 20230119 Docket: 2103 09196 Registry: Edmonton Between: Knotty Pine Cabins Inc Plaintiff - and - Lucye MacDonald, David MacDonald and Clair MacDonald Defendants _______________________________________________________ Reasons for Decision of the Honourable Applications Judge W.S. Schlosser _______________________________________________________ [ 1 ] This is an application to displace the forum chosen by the plaintiffs.

A central issue is whether the Electronic Transactions Act, SA 2001 c E-5.5 affects the place of the contract. [ 2 ] The main portion of the claim is pleaded in contract. It has to do with the construction and assembly of prefabricated buildings. The buildings were prefabricated in Alberta and assembled and installed in the Northwest Territories (NWT).

The plaintiffs also plead a tort arising from the detention of a scissor lift in the NWT. [ 3 ] The starting point is whether there is presumptive connection to this jurisdiction in that the claim ‘relates to a contract ... made, performed or breached in Alberta' (r 11.25(3)(b)). [ 4 ] The building components were prefabricated in Alberta and paid for by the defendants. They were shipped to the NWT and assembled and installed there. It is the assembly and installation part of the contract and the refusal of the defendants to pay for it that is in issue.

The defendants say that the assembly work was substandard and deficient. [ 5 ] Knotty Pine is an Alberta company. The company sent an unsigned ‘bill of sale’ (the offer) by e-mail to the defendants in Hay River, NWT. The bill of sale was signed in the NWT and entered the e-mail system there. The bill of sale was then received by the plaintiff in Alberta. [ 6 ]

Section 30 of the Electronic Transactions Act provides:

30(1) Unless the sender and addressee otherwise agree, information or a record in electronic form is sent when it enters an informationsystem outside the sender’s control or, if the sender and the addressee use the same information system, when it becomes capable ofbeing retrieved and processed by the addressee.

(2) Information or a record in electronic form is presumed to be received by the addressee (

a) if the addressee has designated or uses an information system for the purpose of receivinginformation or records of the type sent, when the information or record enters that information system and becomes capable of beingretrieved and processed by the addressee, or (

b) if the addressee has not designated or does not use an information system for the purpose of receivinginformation or records of the type sent, when the addressee becomes aware of the information or record in the addressee’s informationsystem and it becomes capable of being retrieved and processed by the addressee.

(3) Unless the sender and addressee otherwise agree, information or a record in electronic form is deemed to be sent from the sender’splace of business and received at the addressee’s place of business…. [7] If acceptance occurs when it is entered into the information system, the contract is, arguably, made in the NWT.

However,as stated in Christmas v Fort McKay, 2014 ONSC 373 at para 18: [18] It is well established that when acceptance of a contract is transmitted electronically and instantaneously, the contract is consideredto be made in the jurisdiction where the acceptance is received: see Eastern Power Ltd. v. Azienda Communale Energia & Ambiente, (ON CA), [1999] O.J. No. 3275, 178 D.L.R. (4th) 409 (C.A.), at paras. 23, 27-29, leave to appeal to S.C.C. refused[1999] S.C.C.A. No. 542; and Inukshuk Wireless Partnership v. 4253311 Canada Inc. (2013), 117 O.R. (3d) 206, [2013] O.J.

No.4014, 2013 ONSC 5631 (S.C.J.), at paras. 25-29. (Emphasis added). See also Lapointe Rosenstein Marchand Melancon LLP v Cassels Brock & Blackwell LLP, [2016] RCS 851 andZimmerman v Dovre Canada Ltd, 2020 ABPC 64 at paras, 11-15 [8] I am satisfied that the ‘when’ in ss 30(1) and (2) of the Electronic Transactions Act is a reference to time not place. As s30(3) makes clear, the time of entering an electronic record into the system does not affect where it is received.

See McCamus, The Lawof Contracts 3rd ed (Toronto: Irwin Law Inc, 2020) at 85-86, Anterra Sunridge Power Centre Ltd v Calgary (City), 2014 ABQB 223 atpara 36 per KD Nixon J. Accordingly, I am satisfied that Knotty Pines’ claim relates to a contract made and partially performed inAlberta and that there is a presumptive connection to this jurisdiction. [9] A presumptive connection to a jurisdiction (jurisdiction simpliciter) can be displaced if the defendant can show that there is amore convenient forum (forum conveniens), but the two are not the same.

Club Resorts Ltd v Van Breda, 2012 SCC 17, [2012] 1 SCR572. [10] The claim also raises a tort that occurred in the NWT, but this is part of a common thread and is not in itself enough todisplace this Court’s jurisdiction to deal with this Alberta contract. [11] There is some authority to suggest that the place of damages may be a factor: Moran v Pyle National (Canada) Ltd (SCC), [1975], 1 SCR 393 at 405, Gulevich v Miller, 2014 ABQB 377 at para 24 per Sullivan J, and Greenbuilt Group ofCompanies Ltd v RMD Engineering Inc, 2013 ABQB 297 per Wakeling (then) J.

However, these cases go to forum conveniens notjurisdiction simpliciter. The place of the damages may be a factor in determining the appropriate forum, but it is not sufficient to displacethe court’s jurisdiction. [12] There is no evidence about witnesses or records, but I presume that these would be more or less equally divided betweenAlberta and the NWT. [13] I am satisfied that there is a presumptive connection to this jurisdiction.

I am not satisfied that the defendant has demonstratedthat the forum chosen by the plaintiff should be displaced because the NWT is the more convenient forum. [14] The defendant's application to stay the action in this jurisdiction is dismissed. Heard on the 7th day of September 2022, with written submissions September 23 and September 29, 2022. Dated at the City of Edmonton, Alberta this 19th day of January 2023. W.S. Schlosser A.J.C.K.B.A.

Appearances: Kathleen Garbutt McLennan Ross LLP for the Plaintiff Murray L. Engelking Engelking Law for the Defendants