Downey v. Finnegan, 2019 NSSC 394

Supreme Court of Nova Scotia Citation: Downey v. Finnegan , 2019 NSSC 394 Date: 20190228 Docket: 476774 Registry: Halifax Between: Robert Downey Plaintiff v. Katherine H. Finnegan and The North Face, a division of VF Outdoor Incorporated Defendants Library Heading Judge: The Honourable Justice C. Richard Coughlan Heard: February 19, 2019 in Halifax, Nova Scotia Oral Decision: February 28, 2019 Written Decision: January 2, 2020 Subject: Private international law – choice of forum – court having jurisdiction - Forum non conveniens

Summary: The plaintiff, a resident of Nova Scotia, was involved in a motor vehicle collision in Massachusetts. Action was commenced in Nova Scotia against the driver and owner of the other vehicle involved in the collision. The defendant driver was a resident of Massachusetts, who was driving a vehicle owned by her employer, a company incorporated in the state of Delaware and with its principal office and headquarters in the state of California. Neither of the defendants have any connection to Nova Scotia. Issues: Should Nova Scotia assume jurisdiction over the action?

Result: The claim does not have a real and substantial connection with Nova Scotia as set out in the Court Jurisdiction and Proceedings Transfer Act SNS 2003, c.2 and therefore lacks territorial competence to deal with the proceeding. There are no exceptional circumstances so that the commencement of the proceeding in a court outside Nova Scotia cannot reasonably be required. The action is dismissed. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: Downey v.

Finnegan , 2019 NSSC 394 Date: 20190228 Docket: 476774 Registry: Halifax Between: Robert Downey Plaintiff v. Katherine H. Finnegan and The North Face, a division of VF Outdoor Incorporated Defendants

Judge: The Honourable Justice C. Richard Coughlan Heard: February 19, 2019 Oral Decision: February 28, 2019 Written Release: January 2, 2020 Counsel: Robert B. Carter, for the Plaintiff Scott R. Campbell, for the Defendants By the Court: [ 1 ] I gave a judgment in Natteal Battiste v. Katherine H. Finnegan and The North Face, a division of VF Outdoor Incorporated, Hfx.

No. 476773 which arose out of the same motor vehicle collision which occurred on July 6, 2016 in Jamaica Plains, Massachusetts, United States of America. [ 2 ] The defendants move for an Order dismissing the action for lack of jurisdiction, saying Nova Scotia lacks territorial competence to deal with the claim. The facts and the law are as set out in the judgment in Hfx. No. 476773. In this judgment I will address whether there are connecting factors with regard to Robert Downey under which Nova Scotia would have territorial competence or that Nova Scotia should hear the proceeding by virtue of

Section 7 of the Court Jurisdiction and Proceedings Transfer Act , S.N.S. 2003, c.2 . (“ CJPTA ”) [ 3 ] Mr. Downey is a resident of Dartmouth, Nova Scotia. His girlfriend, Natteal Battiste is pregnant with her first child and the second child for Mr. Downey. Mr. Downey deposed he is currently not able to travel into the United States as a result of a marijuana related charge from his youth. [ 4 ] Mr. Downey was the passenger in the vehicle driven by Ms. Battiste which was involved in the accident in Jamaica Plains, Massachusetts. He did not receive any medical treatment in Massachusetts.

All his treatment providers are located in Nova Scotia. [ 5 ] For the same reasons as I set out in Battiste v. Finnegan Hfx. No. 476773, I find Mr. Downey’s claim does not have a real and substantial connection with Nova Scotia as defined in

Section 4(

e) of the CJPTA and therefore lacks territorial competence to deal with his proceeding. [ 6 ] Mr. Downey submits if there is not territorial competence, this Court should hear the proceeding on the basis of

Section 7 of the CJPTA . [ 7 ] Mr. Downey submits it would be disproportionately prejudicial and would likely result in him being forced to abandon his pursuit of justice, if his only option is to pursue litigation in Massachusetts, for the following reasons:

(1) As Ms. Battiste is pregnant to require him to travel internationally while dealing with the birth of their first child together would be disproportionately prohibitive.

(2) Due to a marijuana related charge from his youth, Mr. Downey is prohibited from travelling to the United States. If the defendants’ motion is allowed, he will be forced to abandon his claim. [ 8 ] As in the Battiste proceeding, Hfx. No. 476773, a pregnancy is not an exceptional circumstance so as to bring into play the doctrine of forum of necessity. [ 9 ] Mr. Downey submits that as a result of a marijuana related charge from his youth, he is prohibited from travelling to the United States. I note he was in the United States at the time of the accident on July 6, 2016.

The burden of establishing that he is unable to enter the United States is on Mr. Downey. Other than the bald statement in his affidavit, there is no evidence that Mr. Downey is prohibited from entering the United States. [ 10 ] The defendants entered into evidence an affidavit of Jeanette Kain, an attorney licensed to practice law in Massachusetts. Since 2004, Ms. Kain has focused on immigration law.

The purpose of the affidavit is to provide opinion evidence on the United States immigration law and the effect of a “marijuana related charge”, assumed to be simple possession on admissibility into the United States. Civil Procedure Rule 54.04 (1)(

b) provides the law of a foreign state may be proved by “expert opinion, introduced in accordance with Rule 55 – Expert Opinion and the Rules of Evidence.” Mr. Downey did not object to the admissibility of Ms. Kain’s affidavit. [ 11 ] As Ms. Kain did not have particulars of the charge Mr. Downey said he had, Ms. Kain assumed the charge was for simple or minor possession. Ms. Kain deposed: (

a) a ‘marijuana-related charge ’ is insufficient to render a person inadmissible to the United States; (

b) a youth conviction does not render an individual inadmissible to the United States; (

c) even if a person was convicted as an adult and is presumptively inadmissible, Mr. Downey could request a waiver of inadmissibility to the United States.

[ 12 ] Mr. Downey has not established that he is prohibited from entering the United States. Romanko v. Nettina, 2014 ONSC 5153 was a case in which Mr. Romanko was seeking to apply the doctrine of forum of necessity to have Ontario as the forum to hear his action concerning a motor vehicle accident which occurred in New York state. Bale, J. found Mr.

Romanko had not met the burden of proving he would not be granted permission to enter the United States and stated at paragraph 31: Because I have found that the plaintiffs have not met the burden of proving that Victor Romanko would not be granted permission to enter the United States, for the limited purpose of dealing with the litigation filed in the Supreme Court of the State of New York, I need not decide whether, in a case where inadmissibility was established, the doctrine of forum of necessity would apply.

However, it may be worth noting that it would surely come as a surprise to an Ontario resident, involved in an accident in the vicinity of her home, to learn that she was required to defend herself in a foreign country, solely because the other person involved in the accident had a criminal record and could not return to Ontario to deal with the litigation here. [ 13 ] I find Mr. Downey has not raised any exceptional circumstances which would cause me to consider the commencement of the proceeding in a court outside of Nova Scotia cannot reasonably be required. The proceeding could be commenced in Massachusetts.

Section 7 does not apply. [ 14 ] The motion is allowed and the action dismissed. J.