What came first, the foreign defendant or the tort? The answer to this question lies, at least partially, in a recent decision by Mr. Justice Goepel of the B.C. Supreme Court in Beazley v. Suzuki Motor Corporation, 2008 BCSC 13, where he held that the defendant comes first and the “arguable case” standard applies to the question of whether there in fact exists a tort of which the defendant is accused.
First, some background. Under common law, virtually any appearance or communication with a court was sufficient to attorn to that court’s jurisdiction simpliciter (see for example First National Bank of Houston v. Houston E & C Inc. (1990), 47 B.C.L.R. 347 (C.A). Rules 14(6) and 14(6.4) of the B.C. Rules of Court override this common law principle and allow a party to dispute the court’s jurisdiction simpliciter (but not discretionary jurisdiction as forum non conveniens) without submitting to the court’s jurisdiction. In particular, R. 14(6) (a) allows a party to argue that the facts alleged in the pleadings do not establish the court’s jurisdiction:
(a) apply to strike out a pleading or to dismiss or stay the proceeding on the ground that the originating process or other pleading does not allege facts that, if true, would establish that the court has jurisdiction over that party in respect of the claim made against that party in the proceeding,
In 2003, the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 was enacted, codifying requirements for a B.C. court to have jurisdiction simpliciter over a dispute. Specifically, when a defendant is not a resident of B.C., s. 3(e) provides that the court has jurisdiction (“territorial competence”) if “there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.” Section 10 of the Act provides a number of situations when a real and substantial connection (“RaSC”) between B.C. and the dispute is presumed to exist. Among these rebuttable presumptions of RaSC is paragraph (g): a proceeding that “concerns a tort committed in British Columbia”.