More on Proving Jurisdiction Simpliciter
Posted by Seva on March 10, 2008
In an earlier post, I discussed Beazley, where Goepel J. held that a court has jurisdiction simpliciter over a tort action if the plaintiff can present an “arguable case” that the alleged tort exists under the lex fori. Another recent case expounding on a similar subject is the decision of the B.C. Court of Appeal in Purple Echo Productions, Inc. v. KCTS Television, 2008 BCCA 85, concerning the standard of proof required to establish a court’s territorial competence (jurisdiction simpliciter) over a dispute.
At issue was the chambers judge’s decision holding that a plaintiff must establish jurisdictional facts on the balance of probabilities. Unlike Beazley, where the defendants brought an application under R. 14(6)(a) attacking the sufficiency of the plaintiff’s pleadings, the defendant in Purple Echo brought the application under R. 14(6)(b), “apply[ing] to dismiss or stay the proceeding on the ground that the court does not have jurisdiction over that party in respect of the claim made against that party in the proceeding“.
While holding that “consideration of jurisdiction simpliciter and service ex juris is not one and the same”, Chiasson J.A. accepted the plaintiff’s argument that to successfully defend against a R. 14(6)(b) application, it is sufficient to adduce affidavit evidence which indicates that there is an arguable case that the court has jurisdiction:
34 In my view, consonant with the comments of Smith J.A. in Roth and those of Mackenzie J.A. in Furlan v. Shell Oil Co., 2000 BCCA 404 referred to in MTU Maintenance Canada Ltd. v. Kuehne & Nagel International Ltd., 2007 BCCA 552, where jurisdictional facts are not pleaded, affidavit evidence can be adduced to meet the requirement of the Rule. It would be a startling departure from existing jurisprudence if the consideration of jurisdiction were confined solely to the pleadings with no opportunity for a plaintiff to support jurisdiction with evidence. It also is my view that the nature of the inquiry does not change merely because evidence is adduced. The objective is to determine whether there are facts alleged, which if true, would found jurisdiction. The court is not charged with the task of determining whether the facts are true. A plaintiff need show only an arguable case that they can be established.
35 Rule 14(6)(b) entitles a defendant to challenge jurisdiction even if a plaintiff were able to meet the requirements of Rule 14(6)(a). In substance, that is how this case proceeded. That is, Purple Echo introduced evidence to support the existence of jurisdictional facts, which was challenged by KCTS. In my view, the second part of Smith J.A.’s comments in Roth was engaged: the contention that evidence introduced to show the plaintiff’s claim to jurisdiction is tenuous requires the plaintiff to “show a good arguable case”.
36 As a matter of principle, if there were no arguable case on either the pleadings or evidence that the facts, if true, would establish jurisdiction, the pleadings would be struck or the action dismissed or stayed.
[Emphasis added]
The other interesting aspect of the case is that it answers the question that implicitly arose in Beazley: what happens if the plaintiff ultimately fails to prove that the alleged tort exists under lex fori, or, in this case, fails to prove that the facts establishing jurisdiction are in fact true. As Chiasson J.A. explained, even if the defendant loses an application brought under R. 14(6)(a) or (b), as long as it pleads lack of jurisdiction under R. 14(6)(c), presumably in a statement of defence, jurisdiction remains to be a live issue and the plaintiff has an obligation to prove the facts on which it satisfied the arguable case standard:
37 If an arguable case were made out, the case would continue with jurisdiction potentially still a live issue. Insofar as jurisdiction remains a contested issue, a plaintiff that merely has established facts that if true would support jurisdiction, continues with the obligation to prove those facts (see: MTU Maintenance Canada Ltd. at para. 35). This brings into play Rule 14(6.4).
38 Rule 14(6.4) deals with attornment. A defendant does not attorn merely by bringing an application under Rule 14(6)(a) or (b) or by pleading lack of jurisdiction under Rule 14(6)(c), but this period of immunity lasts only until the court has decided the application or the issue raised in the pleading (Rule 14(6.4)(b)). In my view, if a defendant were to apply under Rule 14(6)(a) or (b) and lose and had or does not plead a lack of jurisdiction under Rule 14(6)(c), jurisdiction no longer would be a live issue and participation in the action would constitute attornment. … In my view, Rule 14(6)(c) allows a defendant to keep jurisdiction live even if an application under Rule 14(6)(a) or (b) were unsuccessful.
39 This supports the conclusion that a determination under Rule 14(6)(a) or (b) in favour of a plaintiff is not a final determination of the issue and does not require proof on the balance of probabilities.
[Emphasis added]
In my mind, this case provides clear instructions to counsel representing foreign defendants, indicating a two pronged approach to doubtful jurisdiction:
1) Bring an application under R. 14(6)(a) and/or (b). If it succeeds and the court does not have jurisdiction simpliciter, your clients will likely avoid a B.C. trial altogether.
2) If the application fails, make sure to take advantage of R. 14(6)(c) and plead lack or jurisdiction in your statement of defence. This way, even you lose the case on the merits, if the plaintiff fails to prove jurisdictional facts on the balance of probabilities at trial, your clients will likely get off scot-free as Rule 14(6.4)(b) will dictate that they never attorned to the court’s jurisdiction and thus the court has no authority over them.
