Fair and Efficient Working of the Canadian Legal System and Juridical Advantage

Today’s note is about Gordon Estate v. Venables, 2008 BCSC 501, which deals with an application to stay a BC action in favour of Ontario on the ground of forum non conveniens. Aside from providing a convenient summary of case law dealing with post-CJaPTA forum non conveniens doctrine, I found the case to be notable for the following two points relating to juridical advantage.

The BC proceeding was a trustee’s petition for compensation. The Ontario proceeding was an action against the same trustee for passing of accounts and misadministration of the trust. The BC respondents requested a stay of proceedings arguing that the entire dispute should be resolved in the Ontario action. Metzger J. ultimately agreed and stayed the BC action.

The first interesting point was Metzger J.’s comment that fair and efficient working of the Canadian Legal System (s. 11(2)(f) CJaPTA) was a relevant consideration in this case because of the similar but different provincial Trustee Acts:

The sixth factor is the “the fair and efficient working of the Canadian legal system as a whole”. This factor is engaged in the case at bar by the difficulty in “meshing” the subtle differences in the two provincial statutory schemes regarding the calculation of trustee compensation. The fair and efficient working of the Canadian legal system as a whole is best served by having trustee compensation for the entire life of the Trust until today determined in one province. I consider this factor to favour Ontario.

The second interesting point was his comments on juridical advantage:

The most critical factor is that emphasized by the respondents, which is the simple fact that the Trust was administered in Ontario for over 30 years by an Ontario trust company under the delegation of a sole income beneficiary who still resides in Ontario. In Lloyd’s at para. 58, Newbury J.A. noted that in the context of juridical advantage, Sopinka J. at p. 919 of Amchem stressed the relevance of the reasonable expectations of the parties. In my view, everyone interested in the Trust had a reasonable expectation built up for over three decades that any litigation concerning the trust would take place in Ontario. Ontario clearly had the closest real and substantial connection to the Trust throughout that period. It would be a serious breach of the reasonable expectations of the parties for this court to find that British Columbia is the more appropriate forum for the disputes arising from the Trust. In my view, the extremely strong connection of the Trust to Ontario for approximately 95% of its lifetime is the strongest connection at play in this case, and strongly favours this court finding Ontario to be the appropriate forum.

There is no inherent conflict between these comments as both juridical advantage and working of the Canadian legal system are but non-determinative factors that must be considered on a forum non conveniens application. However, it is interesting to note that given the rationale behind these factors, they may in practice conflict, as the reasonably expected juridical advantage may in fact result in an application of diverging statutory schemes or common law authority and thus have a prima facie negative impact on the fair and efficient working of the Canadian legal system. In other words, the forum reasonably expected by the parties and the associated juridical advantages may be different from the forum adjudicating in which would be most advantageous from the standpoint of fairness and efficiency of the Canadian legal system as a whole. In such a case, it is unclear which of these two factors should take priority.