Select Classic Carriers Inc. - v. -, 2020 SKPC 56

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2020 SKPC 56 Date: October 9, 2020 File: SC# 150 of 2020 Location: Saskatoon _____________________________________________________________________________ Between: Select Classic Carriers Inc. - and - Journey Freight International Inc. William F. Kuchapski For the Plaintiff Shay Brehm, Student-at-Law For the Defendant _____________________________________________________________________________ FIAT D.C.

SCOTT , J _____________________________________________________________________________ [ 1 ] The plaintiff Select Classic Carrier Inc. is a company registered in Saskatchewan with its registered office in Saskatoon. The defendant Journey Freight International Inc. was incorporated under the Canada Business Corporations Act , RSC 1985, c C-44 with its registered office in Kirkland, Quebec and has no connection to Saskatchewan.

[ 2 ] According to its claim, the plaintiff entered into an agreement with the defendant to provide transportation services to the defendant. In particular, the plaintiff alleged that the services involved the transportation of HVAC units from Calgary, Alberta to Montreal, Quebec and from Quebec City to Ennis, Texas. The plaintiff further alleges that it incurred additional expenses in the course of performing its obligations under the agreement.

It claims reimbursement of those expenses along with payment of its invoice. [ 3 ] According to its reply, the defendant disputes the plaintiff’s claim, alleging the plaintiff breached the agreement by damaging one of the HVAC units, and claiming right of set-off. The defendant also submits the Provincial Court of Saskatchewan does not have jurisdiction to hear the claim. Rather, the defendant argues that the plaintiff’s claim should be stayed or the matter transferred to a court of competent jurisdiction in the Province of Quebec.

The defendant’s reply states that all prospective witnesses, other than the plaintiff’s principal, are from Quebec. Further, it states that a multiplicity of proceedings may occur should the defendant commence proceedings against the plaintiff in Quebec. [ 4 ] Both parties have filed a copy of the defendant’s on-line framework agreement. I note the agreement provides that in the event of a dispute between the parties, arbitration or, in certain circumstances, court proceedings may be taken. The parties agreed that the laws of the State of Pennsylvania apply.

Neither party has submitted that the forum selection clause binds them with respect to jurisdiction. [ 5 ] By its letter to the Court dated September 4, 2020, the defendant asked this Court to make a preliminary determination with respect to the matter of jurisdiction prior to trial. [ 6 ] The defendant relies on

section 4 of The Court Jurisdiction and Proceedings Transfer Act , SS 1997, c C-41.1 [ CJPTA ]. That legislation establishes a set of factors to be considered in determining the jurisdiction of Canadian courts in a matter and provides that the Court of Queen’s Bench may transfer litigation to a more appropriate forum, including courts outside of Saskatchewan.

The defendant argues that under s. 10 of the CJPTA , as a matter of convenience, jurisdiction ought to be deferred to a court of competent jurisdiction in the Province of Quebec. [ 7 ] Further, the defendant alleges that the contracts forming the basis of the claim were executed through electronic communications. The defendant argues that, in applying s. 21 of The Electronic Information and Documents Act 2000 , SS 2000, c E- 7.22 , the contract was formed at the location of the “offeror”, in this case the place of business of the defendant in Quebec.

However, s. 21 refers to the “originator” and “addressee” of an electronic document. In the present case, the “Signed Agreement Affidavit” indicates that “Graham Brown” on behalf of Select Classic Carriers Inc. agreed to the defendant’s online agreement. Receipt of the signed agreement was sent to gbrown@sasktel.net .

Which of the parties is the originator and the addressee, and where and when the contract was formed, must be determined on the basis of evidence. [ 8 ] In response, the plaintiff in its letters to the Court dated September 15, 2020 and September 16, 2020, submits that the matter of jurisdiction will need to be decided on a full evidentiary basis at a trial. [ 9 ] I draw the parties’ attention to Saskatchewan Government Insurance v Williams , 2011 SKCA 66 , 371 Sask R 305 [ Williams ], where the Small Claims Court judge made a preliminary ruling with regard to whether the claim was statute-barred under The Limitations Act , SS 2004, c L-16.1 [ LTA ].

Even though s. 19 of the LTA provides that an action shall not be maintained if, after commencement it has been established that the limitation period had expired before commencement, the Court of Appeal expressed doubt that the Provincial Court had the jurisdiction to determine a point of law that did not dispose of an action in its entirety where liability and damages are yet to be determined: para 8. [ 10 ] In support of its position, the plaintiff has filed a number of authorities, including Sacher v Canadian Hot Rods Inc ., 2018 SKPC 14 [ Sacher (PC) ].

In that case, the defendant argued that the Saskatchewan Small Claims Court did not have jurisdiction to hear the plaintiff’s claim, as the contract occurred in British Columbia for delivery of goods in Alberta and the only connection to Saskatchewan was the plaintiff’s residence. The Small Claims Court Judge decided that there is no procedural basis upon which this Court can make preliminary determinations regarding territorial competence other than by exercising its discretion at the time of issuing the summons.

The Court of Queen’s Bench dismissed the appeal on procedural grounds stating that a party can only appeal a judgment rather than an interlocutory ruling from Small Claims Court. According to the Appeal Court, the defendant’s remedy was to file a reply and defend the action: Sacher v Canadian Hot Rods Inc ., 2018 SKQB 199 . [ 11 ] The plaintiff pointed out that cases similar to the present one have been adjudicated in this Court.

In New Discovery Lines Canada Ltd. v Hopkins Transportation Inc. , 2019 SKPC 20 , the plaintiff, a company registered in Saskatchewan, brought an action for payment of its invoice for trucking services it provided to the defendant, a corporation registered in Ontario. In McLean v Can American Van Lines/Yellow Self Storage and Multicities Inc.

Demanagement , 2007 SKPC 105 , 303 Sask R 269 [ McLean ], the plaintiff, a Saskatchewan resident, brought an action against two defendants with whom she had contracted, one of which was registered in Ontario and the other in Quebec. [ 12 ] The defendant relied on certain cases to illustrate that this Court has exercised its discretion to decide preliminary matters prior to trial.

In McLean , the Court made a preliminary determination that the Saskatchewan Small Claims Court had territorial competence to hear the matter. [ 13 ] In Hannah v Industrial Alliance Insurance and Financial Services Inc. , 2007 SKPC 15 , 296 Sask R 5 [ Hannah (PC) ], the Court dismissed the defendant’s application to transfer the claim to the Court of Queen’s Bench. However, that application was made pursuant to s. 11(1) of The Small Claims Act , SS 2016, c S-50.12 [ Act ], a provision expressly authorizing the transfer of a Small Claims matter to the Court of Queen’s Bench in certain circumstances.

Further, on appeal, the Court of Queen’s Bench held there was no right of appeal except with regard to a final judgment: Wolfond v Hannah , 2007 SKQB 196 [ Hannah (QB) ]. [ 14 ] It is important to note that McLean , Hannah (PC) and Hannah (QB) pre-date Williams . [ 15 ] The defendant referred the Court to the decision of Sykes v Labuick , 2014 SKPC 145 . That case is distinguishable in that, after a case management conference, the Court struck certain portions of the respective self-represented parties’ claims found to be

frivolous or vexatious. In effect, the Court was narrowing the issues for trial. [ 16 ] The defendant also relied on Wildwood Transport Inc. et al v Eagle West Cranes Inc. et al , 2011 MBQB 42 , 263 Man R (2d) 195, which was commenced in Manitoba Court of Queen’s Bench, where on appeal from a Master’s Order to set aside service, the Court determined the issue of jurisdiction and the forum conveniens .

This Court agrees that the Court of Queen’s Bench has the authority and jurisdiction to address the issue of territorial competence in a preliminary way. [ 17 ] In the present case, as Small Claims Court judge, I exercised my discretion to issue the summons in support of the claim. On its face, the claim alleges a debt owed by the defendant to the plaintiff, a Saskatchewan-registered corporation: ss. 4 , 6 CJPTA .

Based upon the defendant’s agreement, filed at the time of the claim, it appears the plaintiff electronically agreed to the defendant’s online standard form agreement and receipt of the agreement was sent electronically to the plaintiff in Saskatchewan. [ 18 ] The defendant has filed its Reply and supporting documents. However, at this point in the proceedings there is no evidentiary record before the Court upon which to stay the plaintiff’s claim.

Further, if this Court were to exercise its discretion under s. 10 of the CJPTA , there is no provision for this Court to transfer the proceedings to a court of competent jurisdiction in the Province of Quebec, as it is only the Court of Queen’s Bench that can transfer proceedings:

Part III, CJPTA . [ 19 ] The Justice of the Peace in this case adjourned the action sine die for the Court to consider the issue of jurisdiction. However, the Act appears not to allow the bifurcation of proceedings and provides no process short of trial for the Court to adjudicate the issue on a preliminary basis: Williams ; Sacher (PC) , para 14. [ 20 ] Accordingly, this action will be rescheduled for a case management conference on a date agreeable to both parties. If a date cannot be agreed upon, the matter will be referred to a Judge of this Court to fix a date. [ 21 ] Alternatively, pursuant to

section 15 of the Act , the parties may, by consent , ask to have the action transferred to the Court of Queen’s Bench, where the matter of territorial competence may be determined prior to trial. _______________________ D.C. Scott, J