Pulse Ventures Inc. v. Ogee Tables and Chairs Inc. et al., (2008) 227 Man.R.(2d) 265 (QB)

• Judge: Clearwater, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: February 12, 2008
• Jurisdiction: Manitoba
• Citations: (2008), 227 Man.R.(2d) 265 (QB);2008 MBQB 51

Pulse Ventures v. Ogee Tables (2008), 227 Man.R.(2d) 265 (QB)

MLB headnote and full text

Temp. Cite: [2008] Man.R.(2d) TBEd. FE.038

Pulse Ventures Inc., o/a Pulse Furniture Design (plaintiff) v. Ogee Tables and Chairs Inc., 1159223 Alberta Inc., 1159223 Alberta Inc., carrying on business as Concorde Entertainment Group and the said Concorde Entertainment Group, The Calgary Flames Hockey Club and Flames Central (defendants)

(CI 07-01-51922; 2008 MBQB 51)

Indexed As: Pulse Ventures Inc. v. Ogee Tables and Chairs Inc. et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Clearwater, J.

February 12, 2008.

Summary:

The plaintiff, a Manitoba-based corporation, agreed to supply, construct and install furniture in Alberta pursuant to specifications provided by the defendants. The furniture was built in Manitoba. The plaintiff sued the defendants in Manitoba for breach of contract. The defendants alleged, inter alia, that the plaintiff negligently installed its product in Alberta. The defendants each sought to stay the action on the basis that Alberta was the more appropriate and convenient forum for determining the claim. A Master allowed the motions. The plaintiff appealed.

The Manitoba Court of Queen's Bench allowed the appeal and dismissed the defendants' motions.

Conflict of Laws - Topic 1663

Actions - General - Forum conveniens - Plaintiff's right to select the forum - The plaintiff, a Manitoba-based corporation, agreed to supply, construct and install furniture in Alberta pursuant to specifications provided by the defendants - The plaintiff sued the defendants in Manitoba for breach of contract - The defendants alleged, inter alia, that the plaintiff negligently installed its product in Alberta - The defendants each sought to stay the action on the basis that Alberta was the more appropriate and convenient forum for determining the claim - The furniture was built in Manitoba - All of the parties, except the plaintiff, were Alberta resident corporations with no connection to Manitoba - All parties did business in Alberta - Experts or consultants retained to date were from Alberta - A Master allowed the motions - The Manitoba Court of Queen's Bench allowed the plaintiff's appeal and dismissed the defendants' motions - There was a real and substantial connection to Manitoba and Alberta - The court was not convinced that it was any more inconvenient for the defendants to have this matter litigated in Manitoba than it was inconvenient for the plaintiff to have it litigated in Alberta - In the final analysis, the defendants failed to satisfy their onus to establish that Alberta was clearly a more appropriate forum.

Conflict of Laws - Topic 1668

Actions - General - Forum conveniens - Burden of proof - [See Conflict of Laws - Topic 1663 ].

Conflict of Laws - Topic 7284

Contracts - Jurisdiction - Forum conveniens - [See Conflict of Laws - Topic 1663 ].

Conflict of Laws - Topic 7285

Contracts - Jurisdiction - Real and substantial connection - [See Conflict of Laws - Topic 1663 ].

Practice - Topic 9036

Appeals - Evidence on appeal - Leave - The plaintiff, a Manitoba-based corporation, sued the defendants (Alberta corporations) in Manitoba for breach of contract - The defendants each sought to stay the action on the basis that Alberta was the more appropriate and convenient forum for determining the claim - A Master allowed the motions - The plaintiff appealed - It sought leave pursuant to Court of Queen's Bench Rule 62.01(10) to file four further affidavits on this appeal in addition to two new affidavits which it had filed without the consent of the defendants shortly before the matter was heard - The Manitoba Court of Queen's Bench dismissed the motion and ordered that the two affidavits already filed be removed from the record - Rule 62.01(10) was changed in 2007 specifically to prevent what the plaintiff wished to do on this appeal: that is, advance more of the same evidence which was, or ought to have been, known to it when it filed its material in opposition to the defendants' stay motion before the Master - There was no evidence of significant prejudice to the plaintiff - See paragraph 3.

Cases Noticed:

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. 5].

Toronto-Dominion Bank v. Hudye Soil Services Inc. et al. (2000), 149 Man.R.(2d) 56; 2000 MBQB 122 (Q.B.), refd to. [para. 5].

Caspian Construction Inc. v. Drake Surveys Ltd. (2003), 174 Man.R.(2d) 263; 2003 MBQB 86 (Q.B. Master), affd. (2004), 184 Man.R.(2d) 284; 318 W.A.C. 284; 2004 MBCA 71 (C.A.), refd to. [para. 5].

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. 5].

Statutes Noticed:

Queen's Bench Rules (Man.) - see Rules of Court (Man.), Queen's Bench Rules.

Rules of Court (Man.), Queen's Bench Rules, rule 62.01(10) [para. 3].

Counsel:

Jamie A. Kagan and Lynda K. Troup, for the plaintiff;

Dave Hill and Karen Wittman, for the defendants, Ogee Tables and Chairs Inc., 1159223 Alberta Inc. and Concorde Entertainment Group;

Dana J. Nelko and Johanna Charles (articled student-at-law) for the defendants, The Calgary Flames Hockey Club and Flames Central.

This appeal was heard before Clearwater, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on February 12, 2008.