Fewer v. Ellis et al., (2010) 295 Nfld. & P.E.I.R. 32 (NLTD)

JudgeOrsborn, J.
CourtSupreme Court of Newfoundland and Labrador (Canada)
Case DateFebruary 19, 2010
JurisdictionNewfoundland and Labrador
Citations(2010), 295 Nfld. & P.E.I.R. 32 (NLTD)

Fewer v. Ellis (2010), 295 Nfld. & P.E.I.R. 32 (NLTD);

    911 A.P.R. 32

MLB headnote and full text

Temp. Cite: [2010] Nfld. & P.E.I.R. TBEd. FE.039

Derrick Fewer (plaintiff) v. Brian Ellis (first defendant), Sayisi Dene Education Authority (second defendant), Sayisi Dene Chief Ernie Bussidor (third defendant), Sayisi Dene First Nation Council (fourth defendant), Sayisi Dene First Nation (fifth defendant) and Keewatin Tribal Council Inc. (sixth defendant)

(200901T2450; 2010 NLTD 35)

Indexed As: Fewer v. Ellis et al.

Newfoundland and Labrador Supreme Court

Trial Division

Orsborn, J.

February 19, 2010.

Summary:

Fewer sued Ellis and five other defendants in his home province of Newfoundland and Labrador for damages sustained when he was allegedly assaulted by Ellis while employed in Manitoba. Four defendants applied for a stay of proceedings on the basis that the court did not have territorial jurisdiction. Alternatively, the defendants claimed that the court should decline to exercise its jurisdiction because Manitoba would be a more convenient and appropriate forum.

The Newfoundland and Labrador Supreme Court, Trial Division, held that it lacked territorial jurisdiction to adjudicate the claim. Therefore, the court dismissed the action against all six of the defendants.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter (territorial competence) - The Newfoundland and Labrador Supreme Court, Trial Division, reviewed the case law respecting the territorial jurisdiction of provincial superior courts - See paragraphs 7 to 55 - The court stated that "the extent of a provincial superior court's territorial jurisdiction is a constitutional issue. Based on my review of the authorities cited, I am satisfied that the appropriate test for answering this constitutional question is whether there is a real and substantial connection between the jurisdiction and the territorial aspects of the facts of the proceeding (the 'transaction' or 'subject matter of the action') and/or the defendant. The question can and should be answered by reference only to territorial facts; simply put, where did the relevant events of the case happen?" - See paragraph 56.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter (territorial competence) - The Newfoundland and Labrador Supreme Court, Trial Division, stated that "the extent of a provincial superior court's territorial jurisdiction is a constitutional issue. ... The determination of this constitutional question is qualitatively different from the determination of a discretionary question involving an assessment of relevant convenience. The determination of territorial jurisdiction is not an exercise of judicial discretion; what is relevant is the connection to the predominant factual elements of the claim. Concerns such as, for example, the number of witnesses, their location, and the expense involved in proceeding in a particular jurisdiction, are not relevant to the issue of territorial competence. There is room for consideration of issues such as fairness, expense and inconvenience when considering which of two capable jurisdictions should, for the sake of convenience, actually take carriage of a proceeding." - See paragraphs 56 and 57.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter (territorial competence) - On an application to determine whether the court had territorial jurisdiction, the Newfoundland and Labrador Supreme Court, Trial Division, summarized the applicable principles as follows: "1. The assumption by a provincial superior court of jurisdiction over a claim involving extraterritorial matters, interests, or parties raises the constitutional issue of the extraterritorial reach of one province into the interests of another province. 2. The constitutional consideration is informed in general by the principles of order and fairness; order in the sense of preserving and promoting a rational, secure and predictable legal system, and fairness in the sense of ensuring that jurisdiction is not too readily taken over persons who may have little or no connection to the forum jurisdiction. 3. The constitutional limitation of 'in the province' and the constitutional imperative of fairness to a non-resident defendant are respected and satisfied when territorial jurisdiction is exercised only over those proceedings where the forum jurisdiction has a real and substantial connection to the subject matter of the proceeding or to the defendant. 4. The 'subject matter of the proceeding' refers to the factual context of the primary elements of the event in question. In a tort case these would include, for example, the location of the negligent event and the location in which the damages were suffered and perhaps treated. 5. A real and substantial connection to a proceeding may exist in more than one jurisdiction. If so, the issue of the relative convenience of proceeding in either jurisdiction will arise for determination. 6. Consideration of fairness to the plaintiff and other considerations of fairness to the defendant(s) (assuming the existence of a real and substantial connection) are relevant only to the consideration of whether one capable forum is more appropriate than another." - See paragraph 58.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter (territorial competence) - The Newfoundland and Labrador Supreme Court, Trial Division, held that the determination of territorial jurisdiction of a court to adjudicate a claim was, in the first instance, based on the facts asserted in the pleadings - It was contrary to the principle of order and to the need for certainty and clarity to suggest that a determination of territorial jurisdiction should depend on or be influenced by yet-to-be determined trial conduct matters which might change over time and which conceivably could be manipulated to secure a juridical advantage - The authorities supported the conclusion that the determination of territorial jurisdiction of a court to adjudicate a claim was, in the first instance, based on the facts asserted in the pleadings - Those facts identified and located the primary elements of the claim - The court stated that "The fact that, in the absence of legislative intervention, the plaintiff's pleadings are considered as the primary source of the search for a 'real and substantial connection' to the chosen forum promotes order, clarity and certainty" - See paragraphs 60 to 72.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter (territorial competence) - The Newfoundland and Labrador Supreme Court, Trial Division, stated that "Unlike the location where physical injury may be suffered, or the location at which resources may be expended to treat injuries, an individual's economic loss resides with and moves with that individual. It would be contrary to the need for clarity and certainty to conclude that territorial jurisdiction could be founded on whatever location a plaintiff claiming economic loss happens to be in at the time the claim is initiated. Such an approach would give paramountcy to the residence of the plaintiff, a factor not considered relevant by the authorities referred to previously. Those authorities, as noted repeatedly, focus on the location of the subject matter of the action - the predominant factual elements - and on any links between the defendant and the jurisdiction in question." - See paragraph 84.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter (territorial competence) - Fewer sued Ellis and five other defendants in his home province of Newfoundland and Labrador for damages sustained when he was allegedly assaulted by Ellis while employed in Manitoba - Four defendants applied for a stay of proceedings on the basis that the court did not have territorial jurisdiction - The Newfoundland and Labrador Supreme Court, Trial Division, held that it lacked territorial jurisdiction to adjudicate the claim - The statement of claim set out in considerable detail the circumstances of an assault alleged to have taken place at Fewer's school in Manitoba - Damages were sought against Ellis on account of the assault - Damages were sought against the other defendants for failure to maintain care and control at the school and failure to take necessary steps to ensure Fewer's safety - Vicarious liability for the negligence of Ellis was also pleaded - The only connection that this jurisdiction had with the subject matter of the claim was Fewer's one visit to an orthaopedic surgeon - In the circumstances of the case as pleaded, this did not represent a substantial connection to the jurisdiction - Fewer's status as a resident of the province, and his claim of personal economic loss were not factors that gave the court territorial jurisdiction over the subject matter of the action - See paragraphs 79 to 87.

Conflict of Laws - Topic 615

Jurisdiction - General principles - Remedies - Fewer sued Ellis and five other defendants in his home province of Newfoundland and Labrador for damages sustained when he was allegedly assaulted by Ellis while employed in Manitoba - The Newfoundland and Labrador Supreme Court, Trial Division, held that it lacked territorial jurisdiction to adjudicate the claim - The court noted that the defendants had applied for a stay of proceedings - However, where the court did not have jurisdiction over the action, the appropriate course was to dismiss the proceeding - Further, although the application was brought only on behalf of the second, third, fourth and fifth defendants, the finding as to the absence of jurisdiction affected equally the claim against the first and sixth defendants - Accordingly, the claim was dismissed as against all defendants with costs to the second, third, fourth and fifth defendants on a party and party basis - See paragraphs 87 and 88.

Conflict of Laws - Topic 1661

Actions - Forum conveniens - General - The Newfoundland and Labrador Supreme Court, Trial Division, stated that "Once territorial jurisdiction has been established, whether that jurisdiction should in fact adjudicate the proceeding or should rather defer to another competent jurisdiction engages the related but analytically separate issue of forum non-conveniens - convenient jurisdiction. This is not a question that involves constitutional considerations; rather, it invokes the practical circumstances of the case and the practical circumstances of the parties. It requires an assessment and balancing of conflicting interests and it requires a sensitivity to the parties and their circumstances. It is not an intellectual exercise with defined parameters." - See paragraph 73.

Conflict of Laws - Topic 1664

Actions - General - Forum conveniens - Considerations - [See second Conflict of Laws - Topic 603 and Conflict of Laws - Topic 1661 ].

Conflict of Laws - Topic 7285

Contracts - Jurisdiction - Real and substantial connection - [See first and fourth Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 7602

Torts - Jurisdiction - Tort occurring outside jurisdiction - [See sixth Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 7605

Torts - Jurisdiction - Real and substantial connection - [See first, fourth, fifth and sixth 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 615 ].

Cases Noticed:

Muscutt et al. v. Courcelles et al. (2002), 160 O.A.C. 1; 213 D.L.R.(4th) 577 (C.A.), not appld. [para. 8].

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; 2006 NLTD 67, refd to. [para. 8].

Black v. Breeden et al., [2009] O.T.C. Uned. 733; 309 D.L.R.(4th) 708 (Sup. Ct.), consd. [para. 9].

Coutu v. Gauthier Estate (2006), 296 N.B.R.(2d) 34; 769 A.P.R. 34; 264 D.L.R.(4th) 319; 2006 NBCA 16, consd. [para. 10].

Stanway v. Wyeth Pharmaceuticals Inc. et al. (2010), 279 B.C.A.C. 158; 2009 BCCA 592, consd. [para. 10].

Universal Helicopters Newfoundland Ltd. v. Rolls-Royce Corp. et al. (2009), 288 Nfld. & P.E.I.R. 284; 888 A.P.R. 284; 2009 NLTD 125, consd. [para. 10].

Penny v. Bouch et al. (2009), 281 N.S.R.(2d) 238; 893 A.P.R. 238 (C.A.), disagreed with [para. 11].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81, appld. [para. 13].

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

Oakley v. Barry (1998), 166 N.S.R.(2d) 282; 485 A.P.R. 282 (C.A.), dist. [para. 18].

R. v. Libman, [1985] 2 S.C.R. 178; 62 N.R. 161; 12 O.A.C. 33, refd to. [para. 23].

Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers et al., [2004] 2 S.C.R. 427; 322 N.R. 306; 2004 SCC 45, refd to. [para. 23].

Hunt v. Lac d'Amiante du Québec Ltée et al., [1993] 4 S.C.R. 289; 161 N.R. 81; 37 B.C.A.C. 161; 60 W.A.C. 161, consd. [para. 26].

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. 33].

Furlan et al. v. Shell Oil Co. et al. (2000), 140 B.C.A.C. 235; 229 W.A.C. 235; 2000 BCCA 404, refd to. [para. 63].

Spar Aerospace Ltd. v. American Mobile Satellite Corp. et al. (2002), 297 N.R. 83; 2002 SCC 78, refd to. [para. 70].

Holt Cargo Systems Inc. v. ABC Containerline N.V. (Bankrupt) et al. (2001), 280 N.R. 1; 2001 SCC 90, refd to. [para. 75].

Counsel:

Olga McWilliam Benson, for the second through fifth defendants;

John F. Dawson, for the plaintiff.

This application was heard by Orsborn, J., of the Newfoundland and Labrador Supreme Court, Trial Division, who delivered the following decision on February 19, 2010.

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