Cougar Helicopters Inc. et al. v. Sikorsky Aircraft Corp. et al., (2010) 304 Nfld. & P.E.I.R. 60 (NLTD(G))

• Judge: LeBlanc, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: December 29, 2010
• Jurisdiction: Newfoundland and Labrador
• Citations: (2010), 304 Nfld. & P.E.I.R. 60 (NLTD(G))

Cougar Helicopters v. Sikorsky (2010), 304 Nfld. & P.E.I.R. 60 (NLTD(G));

    944 A.P.R. 60

MLB headnote and full text

Temp. Cite: [2010] Nfld. & P.E.I.R. TBEd. DE.029

Cougar Helicopters Inc. (first plaintiff) and Lloyds TSB General Leasing (No. 20) Limited (second plaintiff) and Underwriters at Lloyd's of London, Allianz Global Risks US Insurance Company, Westport Insurance Corporation, Global Aerospace Underwriting Managers, GCAN Insurance Company, Underwriters at Lloyd's Per Catlin Canada Inc. and AIG Aviation Inc. (third plaintiffs) v. Sikorsky Aircraft Corporation (first defendant) and The Attorney General of Canada in Right of the Minister of Transport (second defendant)

(201001G3408; 2010 NLTD(G) 213)

Indexed As: Cougar Helicopters Inc. et al. v. Sikorsky Aircraft Corp. et al.

Newfoundland and Labrador Supreme Court

Trial Division (General)

LeBlanc, J.

December 29, 2010.

Summary:

Cougar Helicopters Inc., a Newfoundland and Labrador corporation that provided helicopter services to the offshore oil industry, claimed damages against Sikorsky and the federal Crown arising from the crash of a Sikorsky helicopter operated by Cougar. The action alleged that the crash was caused by improper design and manufacture by Sikorsky and/or fraudulent or negligent misrepresentations relating to safety procedures and issues involving the helicopter. Sikorsky contested the appropriateness of service of the statement of claim ex juris on it as well as the court's jurisdiction.

The Newfoundland and Labrador Supreme Court, Trial Division (General), found that Sikorsky had attorned to the court's jurisdiction and that Sikorsky had been properly served. The court refused Sikorsky's request for a temporary stay of proceedings, pending a decision being made on an application in the Connecticut court and/or the Supreme Court of Canada rendering a decision in the Van Breda v. Village Resorts Ltd. case. The court also found that it had territorial jurisdiction to hear the claim and refused to decline jurisdiction on the basis of the forum non conveniens doctrine.

Editor's Note: For related decisions in this action, see [2010] Nfld. & P.E.I.R. Uned. 37 and (2010), 302 Nfld. & P.E.I.R. 351; 938 A.P.R. 351.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter (territorial competence) - The Newfoundland and Labrador Supreme Court, Trial Division (General), reviewed the relevant law to be applied in assessing whether there existed a "real and substantial connection" between the jurisdiction and the issues to be decided and between the jurisdiction and the defendant - The court adopted the approach set out by the Ontario Court of Appeal in Van Breda v. Village Resorts Ltd. (2010) - See paragraphs 48 to 75.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter (territorial competence) - Cougar Helicopters Inc., a Newfoundland and Labrador (NL) corporation that provided helicopter services to the offshore oil industry, claimed damages against Sikorsky and the federal Crown arising from the crash of a Sikorsky helicopter operated by Cougar - The action alleged that the crash was caused by improper design and manufacture by Sikorsky and/or fraudulent or negligent misrepresentations relating to safety procedures and issues involving the helicopter - Sikorsky contested the appropriateness of service of the statement of claim ex juris on it as well as the court's jurisdiction, asserting that, even if the court had territorial jurisdiction, Connecticut was the most convenient forum - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that a real and substantial connection existed between the province and the claim and between the province and the defendants - Significant relevant events supporting the claim took place within this jurisdiction - While design and manufacture of the helicopter may have taken place in Connecticut, the helicopter was based in NL and was used by Cougar to further its enterprise in the province - Even though the helicopter crashed offshore, NL was the sensible and reasonable choice of jurisdiction - NL's links with the offshore oil industry strengthened that conclusion - Sikorsky's lack of physical presence and activity in NL did not overtake the strong connection of Cougar's claim to NL - There was no particular unfairness to Sikorsky in having the case heard in NL - Thus, the court had territorial jurisdiction to hear the claim - See paragraphs 89 to 97.

Conflict of Laws - Topic 643

Jurisdiction - Submission to jurisdiction - What constitutes - Cougar Helicopters Inc., a Newfoundland and Labrador corporation that provided helicopter services to the offshore oil industry, claimed damages against Sikorsky and the federal Crown arising from the crash of a Sikorsky helicopter operated by Cougar - The action alleged that the crash was caused by improper design and manufacture by Sikorsky and/or fraudulent or negligent misrepresentations relating to safety procedures and issues involving the helicopter - Sikorsky contested the appropriateness of service of the statement of claim ex juris on it as well as the court's jurisdiction, asserting that, even if the court had territorial jurisdiction, Connecticut was the most convenient forum - At issue was whether Sikorsky had attorned to the court's jurisdiction by filing, with the defendant HSI, an interlocutory application to strike a notice of discontinuance of the claim against HSI and requesting other relief - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that Sikorsky had attorned to the court's jurisdiction - What Sikorsky did went beyond what was contemplated in rule 6.07(7) - The notice of discontinuance against HSI had nothing to do with the claim against Sikorsky - Sikorsky went further than merely applying for a procedural order relating to itself, but asked for relief related to another party - This amounted to attornment - See paragraphs 23 to 35.

Conflict of Laws - Topic 646

Jurisdiction - Submission to jurisdiction - Effect of - Cougar Helicopters Inc., a Newfoundland and Labrador corporation that provided helicopter services to the offshore oil industry, claimed damages against Sikorsky and the federal Crown arising from the crash of a Sikorsky helicopter operated by Cougar - The action alleged that the crash was caused by improper design and manufacture by Sikorsky and/or fraudulent or negligent misrepresentations relating to safety procedures and issues involving the helicopter - Sikorsky contested the appropriateness of service of the statement of claim ex juris on it as well as the court's jurisdiction, asserting that, even if the court had territorial jurisdiction, Connecticut was the most convenient forum - At issue was Sikorsky's request for a temporary stay of proceedings, pending a decision being made on an application in the Connecticut court and/or the Supreme Court of Canada rendering a decision in the Van Breda v. Village Resorts Ltd. case, involving the "real and substantial connection" test - The Newfoundland and Labrador Supreme Court, Trial Division (General), having found that Sikorsky had attorned to the court's jurisdiction, refused to order a temporary stay of proceedings - Any stay would likely mean a significant delay - The claim involved substantial losses - In light of the finding of attornment, a stay was not justified - See paragraphs 36 to 47.

Conflict of Laws - Topic 1203

Service out of jurisdiction - Torts - Situs of tort - Cougar Helicopters Inc., a Newfoundland and Labrador corporation that provided helicopter services to the offshore oil industry, claimed damages against Sikorsky and the federal Crown arising from the crash of a Sikorsky helicopter operated by Cougar - The action alleged that the crash was caused by improper design and manufacture by Sikorsky and/or fraudulent or negligent misrepresentations relating to safety procedures and issues involving the helicopter - Sikorsky contested the appropriateness of service of the statement of claim ex juris on it as well as the court's jurisdiction, asserting that, even if the court had territorial jurisdiction, Connecticut was the most convenient forum - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that Sikorsky had been properly served in accordance with rule 6.07(1)(h) - The action was founded on a tort that had been committed within Newfoundland and Labrador - While the crash occurred 35 to 36 miles offshore, the site of the crash was not determinative - At least part of the tortious acts alleged had a substantial link to the province and had occurred within the province, including, in particular, the representations made - Further, service ex juris without leave was appropriate under rule 6.07(1)(j) - Sikorsky was a necessary and proper party - See paragraphs 76 to 88.

Conflict of Laws - Topic 1664

Actions - General - Forum conveniens - Considerations - Cougar Helicopters Inc., a Newfoundland and Labrador (NL) corporation that provided helicopter services to the offshore oil industry, claimed damages against Sikorsky and the federal Crown arising from the crash of a Sikorsky helicopter operated by Cougar - The action alleged that the crash was caused by improper design and manufacture by Sikorsky and/or fraudulent or negligent misrepresentations relating to safety procedures and issues involving the helicopter - Sikorsky contested the appropriateness of service of the statement of claim ex juris on it as well as the court's jurisdiction, asserting that, even if the court had territorial jurisdiction, Connecticut was the most convenient forum - The Newfoundland and Labrador Supreme Court, Trial Division (General), having found that Sikorsky had attorned to the court's jurisdiction and that the court had territorial jurisdiction over the claim, considered whether it should decline jurisdiction on the basis of the forum non conveniens doctrine - As inconvenience would arise no matter which forum was chosen, this factor was neutral - Regarding the law to be applied, the court was not satisfied that Connecticut law would apply to Cougar's tort-based claim - Based on the nature of the claim, the location of Cougar's operations and the location of the crash, itself, the NL court was at least as convenient as the Connecticut court - Regarding the need to avoid multiplicity of proceedings, there were applications relating to jurisdiction pending in both courts - This factor was neutral - Cougar could not be said to be "forum shopping" where a real and substantial connection existed - On balance, there was insufficient reason to decline jurisdiction - See paragraphs 98 to 118.

Conflict of Laws - Topic 1666

Actions - General - Forum conveniens - Stay of proceedings where action pending in another jurisdiction (lis alibi pendens) - [See Conflict of Laws - Topic 646 ].

Conflict of Laws - Topic 7601

Torts - Jurisdiction - Forum conveniens - [See Conflict of Laws - Topic 1664 ].

Conflict of Laws - Topic 7605

Torts - Jurisdiction - Real and substantial connection - [See both Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 9284

Practice - Stay of proceedings - Where court lacks or declines jurisdiction - [See Conflict of Laws - Topic 646 ].

Practice - Topic 2555

Service - Service of notice, writ or statement of claim out of jurisdiction - Service without leave - [See Conflict of Laws - Topic 1203 ].

Practice - Topic 2560

Service - Service of notice, writ or statement of claim out of jurisdiction - Requirement of necessary or proper party - [See Conflict of Laws - Topic 1203 ].

Practice - Topic 5277

Trial - Stay of proceedings - When available - [See Conflict of Laws - Topic 646 ].

Cases Noticed:

Van Breda et al. v. Village Resorts Ltd. et al. (2010), 264 O.A.C. 1; 2010 ONCA 84, leave to appeal granted (2010), 409 N.R. 396 (S.C.C.), appld. [para. 4, footnote 2].

Charron v. Bel Air Travel Group Ltd. - see Van Breda et al. v. Village Resorts Ltd. et al.

Black v. Breeden et al. (2010), 265 O.A.C. 177 (C.A.), leave to appeal granted (2010), 416 N.R. 390 (S.C.C.), refd to. [para. 4, footnote 2].

Executive Jet Aviation Inc. v. Cleveland (City) Ohio (1972), 409 U.S. 249, refd to. [para. 13].

East River Steamship Corp. v. Transamerica Delaval Inc. (1986), 476 U.S. 858, refd to. [para. 13].

Mid-Ohio Imported Car Co. v. Tri-K Investments Ltd. et al. (1995), 65 B.C.A.C. 98; 106 W.A.C. 98 (C.A.), refd to. [para. 27].

Iskander and Sons Inc. v. Haghighat et al., [2007] B.C.T.C. Uned. D12; 2007 BCSC 753, dist. [para. 28].

Balla et al. v. Fitch Research Corp. et al., [2006] B.C.T.C. 275 (S.C.), refd to. [para. 29].

Lombard General Insurance Co. of Canada v. Cominco Ltd. et al. (2009), 384 N.R. 351; 266 B.C.A.C. 32; 449 W.A.C. 32; 2009 SCC 11, refd to. [para. 38].

Teck Cominco Metals Ltd. v. Lloyd's Underwriters - see Lombard General Insurance Co. of Canada v. Cominco Ltd. et al.

Muscutt et al. v. Courcelles et al. (2002), 160 O.A.C. 1; 60 O.R.(3d) 20 (C.A.), refd to. [para. 43].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81, refd to. [para. 49].

Sobeys Land Holdings Ltd. et al. v. Harvey & Co. Ltd. et al. (2006), 255 Nfld. & P.E.I.R. 300; 768 A.P.R. 300 (N.L.T.D.), refd to. [para. 64].

Fewer v. Ellis et al. (2010), 295 Nfld. & P.E.I.R. 32; 911 A.P.R. 32; 2010 NLTD 35, refd to. [para. 68].

Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393; 1 N.R. 122, refd to. [para. 82].

ABB Power Generation Inc. v. CSX Transportation (1996), 47 C.P.C.(3d) 381 (Ont. C.J.), refd to. [para. 101].

Occidental Chemical Corp. v. Sovereign General Insurance Co. (1997), 32 O.R.(3d) 277 (Gen. Div.), refd to. [para. 101].

Kinch et al. v. Pyle, [2004] O.T.C. 1117 (Sup. Ct.), refd to. [para. 101].

Sun Hung Kai Investment Services Ltd. v. Sung, 2005 CarswellOnt 7887 (Sup. Ct.), refd to. [para. 101].

Denis v. Mouvement Desjardins et al., [2006] O.T.C. 1487 (Sup. Ct.), refd to. [para. 101].

Visram et al. v. Chandarana et al. (2008), 235 O.A.C. 95 (Div. Ct.), refd to. [para. 101].

Frymer v. Brettschneider and Shechtman (1994), 72 O.A.C. 360; 19 O.R.(3d) 60 (C.A.), refd to. [para. 101].

Norex Petroleum Ltd. et al. v. Chubb Insurance Co. of Canada et al. (2008), 444 A.R. 102; 95 Alta. L.R.(4th) 74 (Q.B.), refd to. [para. 102].

Blazek v. Blazek, [2010] B.C.A.C. Uned. 46; 2010 BCCA 188, refd to. [para. 103].

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. 106].

Spar Aerospace Ltd. v. American Mobile Satellite Corp. et al., [2002] 4 S.C.R. 205; 297 N.R. 83, refd to. [para. 106].

Lexus Maritime Inc. v. Oppenheim Forfait GmbH, [1998] J.Q. No. 2059 (C.A.), refd to. [para. 108].

Burton et al. v. Global Benefit Plan Consultants Inc. et al. (1999), 177 Nfld. & P.E.I.R. 60; 543 A.P.R. 60 (Nfld. T.D.), refd to. [para. 108].

Counsel:

Kevin F. Stamp, Q.C., and R. Patrick R. Saul, for the plaintiffs;

Ronald S. Noseworthy, Q.C., and Robert B. Bell, for the defendants.

This application was heard at St. John's, NL, on November 22-24, 2010, by LeBlanc, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following reasons for judgment on December 29, 2010.