Central Mountain Air v. Webster Date:, 2013 BCPC 408

Citation: Central Mountain Air v. Webster Date: 20130406 2013 BCPC 0408 File No: C16587 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: CENTRAL MOUNTAIN AIR CLAIMANT AND: STEPHEN WEBSTER DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON Counsel for the Claimant: Mr. C. Wardell Appearing on his own behalf: Mr. S. Webster Place of Hearing: Smithers , B.C. Date of Hearing: April 5, 2013 Date of Judgment: April 6, 2013 Evidence

[ 1 ] This matter came before the court by means of a Notice of Motion brought by the defendant. The application was for a judicial stay or dismissal of the claim pursuant to the Court Jurisdiction and Proceedings Transfer Act SBC 2003 c28.

The basis for the application was that the Provincial Court of British Columbia lacked territorial jurisdiction. [ 2 ] The Notice of Motion and supporting affidavit also raised a second issue which was if the Provincial Court of British Columbia did have territorial jurisdiction whether the court should use its discretion and decline jurisdiction because Alberta was the more appropriate forum. [ 3 ] The facts were largely not disputed by the parties. The common ground is as follows:

a) The claimant’s action is for an alleged breach of employment contract.

b) The parties signed the contract in Alberta.

c) The claimant is a corporation based and registered in British Columbia.

d) The claimant carries on business in both Alberta and British Columbia.

e) The defendant at all times and currently lives in Alberta.

f) The defendant as part of his employment with the claimant, while based in Calgary, flew routes into both Alberta and British Columbia.

g) The claimant dispatch on routes, administration and payroll were all based in Smithers, British Columbia.

h) The employment contract ended in March 2013 but whether it was a resignation or constructive dismissal are in dispute.

i) The contract does not specify which jurisdiction governs enforcement. [ 4 ] The claimant submitted that more than 50% of the routes the defendant flew for the claimant were into Northern B.C. In reply, this was not challenged. [ 5 ] The defendant submitted in his affidavit that the witnesses to the matter are located in Alberta. When asked by the court who the witness to the contract itself was, the defendant indicated one in Alberta. It is unclear if there are other witnesses as to the issue of the termination of the contract.

The Law [ 6 ] The common law principles of conflicts of laws have been largely codified in the Court Jurisdiction and Proceedings Transfer Act . For British Columbian courts to proceed with an action there must be some nexus with the parties. These are enumerated in

section 3. Mr. Webster resides outside British Columbia. That is

section 3(d). He has not agreed to British Columbia having jurisdiction. That is

section 3(b). The contract does not specify that British Columbia law applies. That is

section 3(c). [ 7 ] For this court to assume territorial jurisdiction there must be a “real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.” That is

section 3(e). [ 8 ] To establish the “real and substantial connection” the onus is on the claimant as per Club Resorts Ltd v Van Breda 2012 SCC 17 paragraph 100 . [ 9 ] If the court finds that there is a “real and substantial connection” the onus then shifts to the defendant/applicant to establish that another jurisdiction is a more appropriate forum in which to hear the proceeding as per Club Resorts Ltd v Van Breda 2012 SCC 17 paragraph 103 . That is the Common Law doctrine of “forum non conveniens”. That principle has been codified in

section 11 of the Court Jurisdiction and Proceedings Transfer Act .

[ 10 ] The factors for the court to consider in deciding whether to decline jurisdiction in favour of another court are enumerated in s11(2) of the Court Jurisdiction and Proceedings Transfer Act . The factors are:

a) The comparable convenience and expense for the parties and their witnesses.

b) The law to be applied to the issues in the proceeding

c) The desirability of avoiding multiple proceedings

d) The desirability of avoiding conflicting decisions in different courts

e) The enforcement of an eventual judgment

f) The fair and efficient working of the Canadian legal system as a whole. Findings of Fact [ 11 ] While there is a preponderance of connections between the action and the province of Alberta, there remains a real and substantial connection with the province of British Columbia. That connection is found in the flights by the defendant into British Columbia as part of his employment, the location of his dispatch, payroll and administration in British Columbia. Both Alberta and British Columbia have real and substantial connections to this matter. [ 12 ] That leaves the question if Mr.

Webster has satisfied the court that it should exercise its discretion to decline jurisdiction in favour of Alberta. Of the factors listed in s11(2) of the Court Jurisdiction and Proceedings Transfer Act only two are applicable. [ 13 ] The Law to be applied to the issues is virtually identical in both provinces. As there is no counterclaim, only the claimant could generate a multiplicity of actions or conflicting decisions. [ 14 ] The two factors that are applicable are the convenience and expense for the parties and witnesses s11(2)(

a) and the enforcement of an eventual judgment s11(2)(e). [ 15 ] As it is most likely that Mr. Webster has most, if not all his assets in Alberta, any potential collection, should the claimant be successful, would be in Alberta. That would add at least two steps for the claimant to be able to enforce the possible judgment. [ 16 ] On the question of convenience and expense for the parties and their witnesses the court does not have enough evidence.

If the question of whether the termination of the contract in March was a resignation or a constructive dismissal requires a number of witnesses, the issue of which is the more appropriate forum may be raised again. [ 17 ] At this time the court will not exercise its discretion to decline jurisdiction but that is something that should be revisited at either a pretrial or settlement conference. Decision [ 18 ] The defendant’s application for a judicial stay/dismissal of the claim is dismissed. _________________________________ W. F. M. Jackson Provincial Court Judge