Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

Be Careful Where You Send Things

Posted by Seva on July 3, 2008

The Alberta case of Warren v. ABC Wilderness Adventures Ltd., 2008 ABQB 258 confirms that mailing an offer or a prospectus to a different province may be sufficient for the courts of that province to allow ex juris service and possibly even to establish jurisdiction simpliciter.

In Warren, shareholders were suing their corporation and its directors for misrepresentation in its share offer. While some of the plaintiff shareholders resided in Alberta, the defendant company was federally incorporated and operated in BC. As is common in such cases, the court was asked to decide whether to allow ex juris service, whether Alberta had jurisdiction simpliciter, and whether Alberta was forum conveniens.

In Alberta, ex juris service is governed by R. 30 of the Alberta Rules of Court, and R. 30(h) allows ex juris service when the action involves a tort a committed in the province. Martin J. explained that it in a misrepresentation action it does not matter where “a party may have learned that the representation was inaccurate”, but only where the offer containing the misrepresentation was made. Thus, she concluded that “the alleged tort of misrepresentation may have been committed in Alberta”. I note the use of “may have” as an implicit indication that the plaintiff needed only to establish jurisdictional facts on an arguable case standard without conclusively proving them (see discussion of Purple Echo).

Considering whether the court has jurisdiction simpliciter over the dispute, Martin J. went on to apply the eight-factor Muscutt RaSC test, imported into Alberta law in Royal and Sun Alliance Insurance Company of Canada v. Wainoco Oil and Gas Company,2004 ABQB 643. Considering inter alia that the offer was received in Alberta, that a third of the shareholders of the defendant company lived in Alberta, and that the federally incorporated company was “for the purposes of conflict of laws … domiciled throughout Canada”, Martin J. concluded that RaSC was established and Alberta court had jurisdiction simpliciter.

Having won on the ex juris service and RaSC issues, the plaintiff ultimately lost on forum non conveniens. Applying the customary factors dealing with relative convenience of the action in Alberta and B.C., Martin J. concluded that B.C. is clearly a more appropriate forum. “[M]ore immediate jurisdiction over the British Columbia parties, documents, witnesses and property” and “the nature and extent of both the interim and final relief sought by the Plaintiffs” militated towards B.C. The B.C. centric relief was “an interim and permanent order to restrain any further implementation of the Rights Offering, accounting of shares and proceedings, right of inspection of the books and records of ABC, removal of directors and voting rights, appointment of a receive-manager of ABC, transfer of the lands under the lodge, issuance and surrender of shares, enforcement of use rights, among other requested remedies.


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