Caspian Construction Inc. v. Drake Surveys Ltd.,

• Jurisdiction: Manitoba
• Judge: Scott, C.J.M., Philp and Hamilton, JJ.A.
• Neutral Citation: 2004 MBCA 71
• Citation: 2004 MBCA 71,(2004), 184 Man.R.(2d) 284 (CA),[2006] 2 WWR 264,184 Man R (2d) 284,184 ManR(2d) 284,(2004), 184 ManR(2d) 284 (CA),184 Man.R.(2d) 284
• Date: 15 April 2004
• Court: Court of Appeal (Manitoba)

Caspian Constr. v. Drake Surveys (2004), 184 Man.R.(2d) 284 (CA);

    318 W.A.C. 284

MLB headnote and full text

Temp. Cite: [2004] Man.R.(2d) TBEd. JN.003

Caspian Construction Inc. (plaintiff/respondent) v. Drake Surveys Ltd. (defendant/appellant)

(AI 04-30-05756; 2004 MBCA 71)

Indexed As: Caspian Construction Inc. v. Drake Surveys Ltd.

Manitoba Court of Appeal

Scott, C.J.M., Philp and Hamilton, JJ.A.

June 2, 2004.

Summary:

The plaintiff sued the defendant in Manitoba. The defendant moved for an order declaring Alberta to be the forum conveniens.

A Master of the Manitoba Court of Queen's Bench, in a decision reported at 174 Man.R.(2d) 263, dismissed the motion. The defendant appealed.

The Manitoba Court of Queen's Bench, in a decision reported at 182 Man.R.(2d) 14, dismissed the appeal. The defendant appealed.

The Manitoba Court of Appeal dismissed the appeal.

Conflict of Laws - Topic 1663

Actions - General - Forum conveniens - Plaintiff's right to select the forum - The plaintiff sued the defendant in Alberta - The plaintiff subsequently commenced an action in Manitoba - A Master held that Manitoba was the forum conveniens - The Master considered, inter alia, the plaintiff's right to choose the forum - The defendant appealed, arguing, inter alia, that the plaintiff's first choice of forum was Alberta and not Manitoba - The Manitoba Court of Appeal rejected the assertion that the forum in which a plaintiff's claim was first filed was the conclusive factor, or even a factor, in determining the forum conveniens - The court stated that "multiplicity of actions, unless there is prejudice that is oppressive or vexatious, will not deprive a plaintiff of the right to pursue his/her claim in the forum that is otherwise the forum conveniens. ... Any apprehended prejudice to the defendant in this case is met by the undertaking the plaintiff has given to discontinue its Alberta action." - See paragraphs 22 and 23.

Conflict of Laws - Topic 1663

Actions - General - Forum conveniens - Plaintiff's right to select the forum - The plaintiff sued the defendant in Manitoba - The defendant argued that Alberta was the forum conveniens - A Master held that Manitoba was the forum conveniens - The Master stated, inter alia, "This is a situation, albeit difficult, where the plaintiff's right to choose a forum should be upheld." - The Manitoba Court of Appeal stated that it did not read into the Master's comments that he considered the plaintiff's choice of forum as a factor that was weighted in Manitoba's favour in determining the forum conveniens - The Master had considered the relevant factors and his conclusion that "the plaintiff's right to choose a forum should be upheld" was a proper application of the test that "where there is no forum that is the most appropriate, the domestic forum wins out by default" - See paragraphs 24 to 26.

Conflict of Laws - Topic 7284

Contracts - Jurisdiction - Forum conveniens - The plaintiff, a general contractor, was registered and carried on business in Manitoba (although it had Alberta offices) - It sued the defendant in Manitoba, alleging negligent performance of a contract for surveying services - The defendant argued that Alberta was the forum conveniens - The services had been provided for an Alberta project - The defendant's business was in Alberta - Virtually all of its witnesses and documentary evidence were in Alberta - The plaintiff's witnesses and the majority of its evidence were in Manitoba - The plaintiff had previously commenced a similar action in Alberta, but undertook to discontinue it if the Manitoba action proceeded - A Master held that Manitoba was the forum conveniens - The Master was not satisfied that Alberta could adjudicate the dispute at any less inconvenience and expense than Manitoba - The plaintiff's right to choose a forum should be upheld - The Manitoba Court of Appeal dismissed the defendant's appeal.

Cases Noticed:

Muscutt et al. v. Courcelles et al. (2002), 160 O.A.C. 1; 60 O.R.(3d) 20 (C.A.), refd to. [para. 7].

Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241, refd to. [para. 8].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 9].

Craig Broadcast Systems Inc. v. Magid (Frank N.) Associates Inc. (1998), 123 Man.R.(2d) 252; 159 W.A.C. 252 (C.A.), refd to. [para. 10].

Poulsen (Jan) & Co. v. Seaboard Shipping Co., [1995] 2 W.W.R. 633 (B.C.S.C.), refd to. [para. 12].

Vancouver Island Helicopters Ltd. v. Robertshaw Controls Co. (1980), 116 D.L.R.(3d) 716 (Ont. H.C.), refd to. [para. 23].

Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.), [1993] 1 S.C.R. 897; 150 N.R. 321; 23 B.C.A.C. 1; 39 W.A.C. 1, refd to. [para. 26].

Authors and Works Noticed:

Perell, Paul M., A Litigator's New Primer on Conflict of Laws (1995), 17 Adv. Q. 300, generally [para. 24].

Counsel:

R. de Waal, for the appellant;

R.L. Tapper, Q.C., and T.J. Fry, for the respondent.

This appeal was heard on April 15, 2004, by Scott, C.J.M., Philp and Hamilton, JJ.A., of the Manitoba Court of Appeal. Philp, J.A., delivered the following decision for the court on June 2, 2004.