Li v. MacNutt & Dumont, 2015 NSSC 53

Judge:Wood, J.
Court:Supreme Court of Nova Scotia
Case Date:January 20, 2015
Jurisdiction:Nova Scotia
Citations:2015 NSSC 53;(2015), 356 N.S.R.(2d) 176 (SC)
 
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Li v. MacNutt & Dumont (2015), 356 N.S.R.(2d) 176 (SC);

    1126 A.P.R. 176

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Temp. Cite: [2015] N.S.R.(2d) TBEd. FE.034

Tricy Chun Ying Li (plaintiff) v. MacNutt & Dumont and Matthew T. Walters (defendants)

(Hfx. No. 432249; 2015 NSSC 53)

Indexed As: Li v. MacNutt & Dumont et al.

Nova Scotia Supreme Court

Wood, J.

February 18, 2015.

Summary:

Walters was a Prince Edward Island lawyer who represented Li in litigation with her former employer in that province. Li brought a negligence action against Walters and his firm. The defendants moved for a determination under Civil Procedure Rule 4.07 that the Nova Scotia Supreme Court did not have jurisdiction over Li's claim or, alternatively, that the court decline to exercise jurisdiction in favour of P.E.I. on the basis of forum non conveniens.

The Nova Scotia Supreme Court held that it did not have jurisdiction over Li's claim. The court issued a stay of proceedings.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter (territorial competence) - The Nova Scotia Supreme Court stated that "The decision in Club Resorts [2012 SCC] modifies the approach taken in Bouch [2009 NSCA] and Muscutt [2002 ONCA]. Fairness and inconvenience to the plaintiff are no longer factors to be taken into account in assessing jurisdiction. Under s. 11 of CJPTA [Court Jurisdiction and Proceedings Transfer Act], the circumstances giving rise to a presumption of jurisdiction are broader than the common law list set out by the Supreme Court in Club Resorts. If a plaintiff wishes to prove circumstances beyond the legislation to support a claim to jurisdiction they can only do so if they meet the criteria established by the Supreme Court in Club Resorts. The fairness considerations discussed by Sharpe, J.A., in Muscutt, and adopted by the NSCA in Bouch, are not applicable in determining territorial jurisdiction. Once jurisdiction is established these factors will arise as part of the court's examination of the doctrine of forum non conveniens and s. 12(2) of CJPTA" - See paragraphs 36 to 37.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter (territorial competence) - [See Conflict of Laws - Topic 7605 ].

Conflict of Laws - Topic 7605

Torts - Jurisdiction - Real and substantial connection - Walters was a Prince Edward Island (P.E.I.) lawyer who represented Li in litigation with her former employer in that province - Li brought a negligence action against Walters and his firm - The Nova Scotia Supreme Court held that it did not have jurisdiction over Li's claim and issued a stay of proceedings - Li's claim did not have a real and substantial connection with Nova Scotia within the meaning of s. 4(e) of the Court Jurisdiction and Proceedings Transfer Act (CJPTA) - Li had not established any of the presumptive circumstances establishing a real and substantial connection set out in s. 11 of CJPTA - She had argued that Walters was soliciting business in Nova Scotia within the meaning of s. 11(e)(iii)(b) or (h) by virtue of his communication with her and the Nova Scotia Labour Standards Division - However, those activities did amount to a solicitation or carrying on of business in Nova Scotia - The alleged act of negligence was the addition of a counterclaim in the P.E.I. proceeding - Li's cause of action against Walters arose in P.E.I. - The effect of Walter's alleged negligence was the loss of Li's Labour Standards Complaint and the associated statutory lien over the assets of Li's former employer in Nova Scotia - That meant that Li's damages were suffered in Nova Scotia - The plaintiff's residence and the location where damage was incurred were not presumptive factors establishing a real and substantial connection - The relative fairness and efficiency in having Li's claim adjudicated in Nova Scotia versus P.E.I. did not create jurisdiction - The issue had to be determined by application of the provisions of CJPTA.

Conflict of Laws - Topic 9284

Practice - Stay of proceedings - Where court lacks or declines jurisdiction - [See Conflict of Laws - Topic 7605 ].

Practice - Topic 7024

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - General - The defendants moved for a determination that the Nova Scotia Supreme Court did not have jurisdiction over the plaintiff's claim - The Nova Scotia Supreme Court granted the motion and issued a stay of proceedings - The court held that since the briefs and hearing were based upon jurisprudence which was significantly changed by a decision which the defendants' counsel did not provide until after the hearing, it was appropriate to deny the defendants their costs - See paragraphs 43 to 44.

Cases Noticed:

Penny v. Bouch (2009), 281 N.S.R.(2d) 238; 893 A.P.R. 238; 2009 NSCA 80, consd. [para. 26].

Muscutt et al. v. Courcelles et al. (2002), 160 O.A.C. 1 (C.A.), consd. [para. 27].

Penny v. Bouch et al. (2008), 272 N.S.R.(2d) 259; 869 A.P.R. 259; 2008 NSSC 378, refd to. [para. 28].

Van Breda et al. v. Village Resorts Ltd. et al., [2012] 1 S.C.R. 572; 429 N.R. 217; 291 O.A.C. 201; 2012 SCC 17, appld. [para. 29].

Statutes Noticed:

Court Jurisdiction and Proceedings Transfer Act, S.N.S. 2003, c. 2, sect. 4 [para. 21]; sect. 11 [para. 22].

Counsel:

Tricy Chun Ying Li, self-represented;

Ian R. Dunbar, for the defendant.

This motion was heard at Halifax, N.S., on January 20, 2015, before Wood, J., of the Nova Scotia Supreme Court. Final written submissions were received on February 6, 2015. Wood, J., delivered the following decision on February 18, 2015.

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