Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

Minimal Evidentiary Burden on Defendants Disputing Jurisdiction

Posted by Seva on September 10, 2008

It is well-accepted, particularly in BC, that a plaintiff only needs to adduce affidavit evidence establishing an arguable case for jurisdiction simpliciter if the defendant first adduces evidence which contradicts the plaintiff’s jurisdictional assertions contained in the pleadings. As Blackedge Strategic Capital and Consulting Ltd., 2008 BCSC 1217, demonstrates, the defendant’s evidentiary burden is minimal.

In Blackedge, the plaintiff alleged, without any evidence, that a closing of an inter-provincial share sale contract was to occur in BC (i.e., arguing that the contract was made in BC), and that misinterpretations by telephone and email were also made in this province. In regards to the first assertion, Savage J. explained that to rebut this claim and place the burden on the plaintiff to adduce affidavit evidence, it was sufficient for the defendants to depose that the subject shares were to be delivered in another province and disclaim terms of the contract which implied a BC closing. In regards to the second assertion, Savage J. considered the terms of the contract and held that (effectively) the plaintiffs had not made out a prima facie case for the claimed misrepresentations. Because the plaintiffs had adduced no affidavit evidence, the defendants were successful in having the action dismissed for lack of jurisdiction simpliciter.

I think the point to be taken from all this is that if you find yourself on the defending side of a jurisdiction simpliciter assertion, keep in mind that the evidence required from your client to rebut the plaintiff’s assertions may be minimal. In fact, the Blackedge decision suggests that an affidavit from your client, essentially disagreeing with the jurisdictional facts alleged by the plaintiff, may be sufficient.

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