Jurisdiction over Employers/Employees, and No to Muscutt FNC Factors in BC
Posted by Seva on October 23, 2008
Brief, but to the point, comes the decision of Mr. Justice Hinkson in Williams v. TST Porter dba 6422217 Canada Inc., 2008 BCSC 1315. The BC plaintiff, involved in an MVA in Alberta, sued in BC the corporate owner of the vehicle (who had a registered office in BC), and the driver, who was employed by the corporate defendant and only occasionally travelled to BC on business. The corporate defendant conceded jurisdiction simpliciter (based on ss. 7(a) and 3(d) of the CJPTA), but argued that Alberta is the forum conveniens. The individual defendant argued that the court lacked jurisdiction simpliciter and repeated the FNC argument.
Hinkson J. rejected the plaintiff’s argument that jurisdiction over the defendant employer was sufficient to establish a real and substantial connection and thus jurisdiction over the employee. Rather, the facts concerning the employee had to independently disclose a real and substantial connection and thus meet the requirements of s. 3(e) of the CJPTA.
On the forum non conveniens argument, Hinkson J. rebuffed the attempts of both counsel to rely on the Muscutt FNC factors. Instead, he concluded that s. 11 of the CJPTA provided all of the relevant considerations:
… it is my view that the relevant considerations with respect to the matter of forum conveniens in British Columbia are found in s. 11 of the CJPTA.
Although Hinkson J. did not elaborate on his position, I note the contrast with Madam Justice Gropper’s position in Stanway v. Wyeth Canada Inc., 2008 BCSC 847, where she imported Muscutt‘s jurisdiction simpliciter factors into s. 10 RaSC analysis (see previous comment). Interestingly, whereas s. 2(2) of the CJPTA dictates that “territorial competence …is to be determined solely by reference to this”Act, thus contradicting Gropper J.’s position, the same is could not be said with respect to the court’s discretion to decline to exercise territorial competence under s. 11.