Mercantile Bank of Canada v. Hearsey Transport Ltd. et al., (1976) 1 A.R. 81 (TD)

• Judge: McDonald, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 14, 1976
• Citations: (1976), 1 A.R. 81 (TD)

Mercantile Bk. v. Hearsey Transport Ltd. (1976), 1 A.R. 81 (TD)

MLB headnote and full text

Mercantile Bank of Canada v. Hearsey Transport Ltd., Cummins Diesel Power Ltd., Cummins Diesel Sales Ltd. of B.C. Ltd., Inland Kenworth Sales (Kamloops) Ltd., Christopher Hearsey, Harold Hearsey and Leonard Hearsey

Indexed As: Mercantile Bank of Canada v. Hearsey Transport Ltd. et al.

Alberta Supreme Court

Trial Division

McDonald, J.

October 14, 1976.

Summary:

This case arose out of an application to set aside an order which permitted the plaintiff to serve a statement of claim out of the jurisdiction. The application was made by a British Columbia company which was joined as a defendant by the plaintiff. The plaintiff bank made a loan of $1,850,000.00 and the bank alleged that the British Columbia company guaranteed payment of the loan. The British Columbia company alleged circumstances to show that the plaintiff bank should commence an action against the British Columbia company in the British Columbia courts.

The Alberta Supreme Court dismissed the application. The Alberta Supreme Court stated that it was not satisfied that the British Columbia courts provided a forum "more convenient and appropriate for the pursuit of the action and for securing the ends of justice" - see paragraphs 18 and 30.

Conflict of Laws - Topic 1001

Service out of the jurisdiction - General principles - The Alberta Supreme Court, Trial Division, referred to a list of principles applicable to the granting of leave to serve a statement of claim ex juris - See paragraph 18.

Conflict of Laws - Topic 1162

Service of the jurisdiction - Actions in contract - What constitutes the appropriate and convenient forum - Alberta Rules of Court, Rule 30 - The plaintiff bank made a $1,850,000.00 loan in British Columbia so that the borrower could purchase equipment for use in a logging operation in Alberta - When the borrower defaulted in payment of the loan the plaintiff seized and sold the equipment and sued the borrower and several guarantors for a deficiency - A British Columbia company which guaranteed the loan was joined as a defendant by the plaintiff - The Alberta Supreme Court granted the plaintiff leave to serve the British Columbia company in British Columbia - The British Columbia company applied to the Alberta Supreme Court to set aside the order which permitted service ex juris - The application was dismissed - The Alberta Supreme Court stated that it was not satisfied that the British Columbia courts provided a forum "more convenient and appropriate for the pursuit of the action and for securing the ends of justice" - See paragraphs 18 and 30.

Cases Noticed:

Antares Shipping Corporation v. Ship "Capricorn" et al. (1976), 7 N.R. 518 (S.C.Can.), folld. [para. 16].

Rosler v. Hilbery, [1925] Ch. 250, folld. [para. 17].

Selan v. Neumeyer (1959), 29 W.W.R. 542, folld. [para. 18].

Atlantic Star, [1974] A.C. 436; [1973] 2 All E.R. 175, folld. [para. 19].

Logan v. Bank of Scotland (No. 2), [1906] 1 K.B. 141, folld. [para. 19].

St. Pierre v. South American Stores (Gath & Chaves) Ltd., [1936] 1 K.B. 382, folld. [para. 19].

Sittler v. Conwest Exploration Co. Ltd. (1971), 16 D.L.R.(3d) 725, affd. (1971), 18 D.L.R.(2d) 631 (N.W.T.C.A.), refd to. [para. 20].

Van Vogt v. All-Canadian Group Distributors Limited (1967), 60 W.W.R. 729, refd to. [para. 21].

Jannock Corp. Ltd. v. R.T. Tamblyn & Partners Ltd. (1975), 59 D.L.R.(3d) 678, folld. [para. 23].

Sittler v. Conwest Exploration Co. Ltd. (No. 2) (1973), 31 D.L.R.(3d) 201, folld. [para. 24].

Mohler v. Dairy Queen of Western Canada Limited, [1976] 3 W.W.R. 619, folld. [para. 25].

McKeeman v. Canadian Pacific Ltd. et al. (1973), 33 D.L.R.(3d) 379, folld. [para. 26].

Statutes Noticed:

Rules of Court (Alta.), rule 30 [para. 13].

Interpretation Act, R.S.A. 1970, c. 189, sect. 2 [para. 15].

Counsel:

G.A. Lucas, for the plaintiff;

W.J. Girgulis, for the defendants Cummins Diesel Power Ltd. and Cummins Diesel Sales of B.C. Ltd.;

L.W. Drewry, for the defendant Inland Kenworth Sales (Kamloops) Ltd.