AG Armeno Mines and Minerals Inc. v. PT Pukuafu Indah et al., (2000) 140 B.C.A.C. 93 (CA)

• Judge: Esson, Rowles and Mackenzie, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 30, 2000
• Jurisdiction: British Columbia
• Citations: (2000), 140 B.C.A.C. 93 (CA);2000 BCCA 405

AG Armeno Mines v. PT Pukuafu (2000), 140 B.C.A.C. 93 (CA);

    229 W.A.C. 93

MLB headnote and full text

Temp. Cite: [2000] B.C.A.C. TBEd. SE.004

AG Armeno Mines and Minerals Inc. (plaintiff/appellant) v. PT Pukuafu Indah and Jusuf Merukh (defendants) and Newmont Gold Company (defendant/respondent)

(CA026020; 2000 BCCA 405)

Indexed As: AG Armeno Mines and Minerals Inc. v. PT Pukuafu Indah et al.

British Columbia Court of Appeal

Esson, Rowles and Mackenzie, JJ.A.

June 30, 2000.

Summary:

The plaintiff obtained an ex parte order allowing it to amend its statement of claim to add Newmont Gold Company (a Delaware company) as a defendant. The amended claim alleged tortious interference by New­mont in the contractual relations between the plaintiff and the original two defendants. The order also provided for service ex juris of the amended statement of claim upon New­mont. Newmont applied, inter alia, for a declaration under rule 14(6)(c) that the B.C. court had no jurisdiction over it or should decline jurisdiction. In the alternative, New­mont applied to set aside service ex juris under rule 13(10). An issue arose with re­spect to the burden of proof which the plain­tiff had to meet to establish jurisdiction simpliciter. The plaintiff argued that it must establish only a good and arguable case in relation to the facts required to be pleaded to establish a real and substantial connection to the court. Newmont argued that the plaintiff must not only prove such a real and substan­tial connection to the court on the pleadings but it also had an evidentiary burden to establish a good arguable case.

The British Columbia Supreme Court, in a decision reported in 14 B.C.T.C. 241, de­clared that it had no jurisdiction over New­mont in the proceeding. The plaintiff had not placed before the court a body of evidence which established that it had a good arguable case against Newmont sufficient to establish jurisdiction simpliciter. The court set aside service ex juris on Newmont. The plaintiff appealed.

The British Columbia Court of Appeal dismissed the appeal.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdic­tion simpliciter - Proof of - The British Columbia Court of Appeal discussed the burden of proof required of a plaintiff to establish jurisdiction simpliciter - See paragraphs 22 to 26.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdic­tion simpliciter - Proof of - The British Columbia Court of Appeal held that affi­davit evidence was admissible on an appli­cation for a declaration that the court lacked jurisdiction or should decline juris­diction under rule 14(6)(c) - See para­graphs 20 to 21.

Conflict of Laws - Topic 1203

Service out of jurisdiction - Torts - Situs of tort - The plaintiff added a Delaware company as a defendant, alleging inducing breach of a contract made in British Columbia and causing damage in B.C. - The Delaware company's head office was in Colorado; it never carried on business in B.C. - The plaintiff obtained an order for service ex juris - The British Columbia Court of Appeal held that on the plaintiff's pleadings and evidence with respect to the facts put in issue by the company's evi­dence (which was undisputed), the com­pany had a complete defence to the claim -The court affirmed that the B.C. court lacked jurisdiction over the Delaware company and that service ex juris should be set aside - See paragraphs 27 to 29.

Conflict of Laws - Topic 7606

Torts - Jurisdiction - Inducing or procuring breach of contract - [See Conflict of Laws - Topic 1203 ].

Constitutional Law - Topic 7422

Provincial jurisdiction (s. 92) - Ad­ministration of justice - Section 92(14) procedure in civil matters - Service ex juris - The British Columbia Court of Appeal held that the Supreme Court rule allowing for service ex juris was intra vires the Province of British Columbia under s. 92(14) of the Constitution Act ("the ad­ministration of justice including procedure in civil matters ...") - See paragraph 16.

Practice - Topic 2566.1

Service - Service of writ out of jurisdiction - Setting aside service ex juris - Evidence -The British Columbia Court of Appeal discussed the burden of proof on an ap­plication to set aside service ex juris - See paragraphs 22 to 26.

Practice - Topic 2566.1

Service - Service of writ out of jurisdiction - Setting aside service ex juris - Evidence - The British Columbia Court of Appeal held that affidavit evidence was admissible on an application to set aside service ex juris under rule 13(10) - See paragraphs 20 to 21.

Practice - Topic 2567

Service - Service of writ out of jurisdiction - Setting aside service ex juris - Grounds - [See Conflict of Laws - Topic 1203 ].

Cases Noticed:

Ichi Canada Ltd. et al. v. Yamauchi Rub­ber Industry Co. et al. (1983), 43 B.C.L.R. 215 (C.A.), refd to. [para. 17].

Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393; 1 N.R. 122, refd to. [para. 18].

G.W.L. Properties Ltd. v. Grace (W.R.) & Co. Connecticut (1990), 50 B.C.L.R.(2d) 260 (C.A.), refd to. [para. 19].

Girocredit Bank Aktiengesellschaft der Sparkassen v. Bader et al. (1996), 74 B.C.A.C. 233; 121 W.A.C. 233 (C.A.), refd to. [para. 20].

Nova, An Alberta Corp. v. Grove (1982), 140 D.L.R.(3d) 527 (Alta. C.A.), refd to. [para. 25].

Ecolab Ltd. v. Greenspace Services Ltd. et al. (1998), 107 O.A.C. 199; 38 O.R.(3d) 145 (Div. Ct.), refd to. [para. 25].

Statutes Noticed:

Rules of Court (B.C.), Supreme Court Rules, rule 13(1)(h) [para. 15]; rule 14(6)(c) [para. 20].

Counsel:

Henning Wiebach, for the appellant;

J.E. Gouge, Q.C., and J.C. Kleefeld, for the respondent.

This appeal was heard in Vancouver, B.C., on February 23, 2000, before Esson, Rowles and Mackenzie, JJ.A., of the British Colum­bia Court of Appeal.

Mackenzie, J.A., delivered the following judgment for the court on June 30, 2000.