"Fair is foul, and foul is fair": Another conflicting decision in Canadian conflict of laws: Fewer v. Ellis (Nfld & Lab TD)

“Fair is foul, and foul is fair: Hover through the fog and filthy air”William Shakespeare’s Macbeth (Act 1.Scene 1. lines 11 -12)
I recently discussed the Court of Appeal for Ontario decision in Van Breda v. Village Resorts Limited, 2010 ONCA 84 which significantly modified the oft-criticized “Muscutt factors” for assumed jurisdiction (see my previous posts here and here). The growing trend among provincial courts in rejecting Ontario’s approach to jurisdiction simpliciter was presaged in the recent decision of the Newfoundland & Labrador Trial Division in Universal Helicopters Newfoundland Limited v. Rolls-Royce Corporation, 2009 NLTD 125 (CanLII), which was also discussed in my post  here (H/T to Barry Glaspell who subsequently confirmed that the Universal Helicopters case was recently settled and the appeal abandoned)
Sometimes judicial news doesn’t travel as fast between Central and Eastern Canada.
After Van Breda was released on February 2nd to somewhat mixed reviews among legal commentators and blawgers, another conflict of laws case was pending in the  Newfoundland & Labrador courts. On February 19, 2010, Chief Justice David B. Osborne of the Newfoundland & Labrador Trial Division released his reasons in Fewer v. Ellis, 2010 NLTD 35 (CanLII)
The facts are straightforward. The plaintiff, Derrick Fewer sued the defendant, Brian Ellis and five other defendants for damages as a result of being allegedly assaulted by Ellis while Fewer was employed as a teacher at Tadoule Lake, a small community in northern Manitoba, approximately 1000 kms north of Winnipeg.  At the time Fewer, a resident of Newfoundland and Labrador, was working as a teacher on a First Nation’s reserve. Fewer visited an orthopaedic surgeon once but otherwise received no treatment or therapy in the province.  The defendants applied to stay the proceeding on the grounds that the provincial superior court lacks the territorial jurisdiction to entertain the claim or, alternatively, that Manitoba is a more convenient jurisdiction.
The learned Chief Justice dismissed Fewer’s claim against all defendants. The decision is otherwise unremarkable, except for explicitly rejecting the old Muscutt approach:

[10]         Some decisions are now questioning the Muscutt approach, favouring instead an analysis which seeks to eliminate the overlapping of factors relevant to territorial jurisdiction and convenient jurisdiction and which, for the purpose of determining territorial jurisdiction, concentrates on the linkage between the jurisdiction and the primary facts of the case.  See Succession de feu André Gauthier v. Coutu, 2006 NBCA 16 (CanLII), 2006 NBCA 16; Stanway v. Wyeth Pharmaceuticals Inc., 2009 BCCA 592 (CanLII), 2009 BCCA 592; Black v. Breeden; and, in this jurisdiction, Universal Helicopters Newfoundland Ltd. v. Rolls-Royce Corp., 2009 NLTD 125 (CanLII), 2009 NLTD 125.

[11]         Recent appellate authority in Nova Scotia takes the contrary view, specifically reaffirming the relevance of fairness to the parties in determining territorial jurisdiction.  See Bouch v. Penny (Litigation Guardian of), 2009 NSCA 80 (CanLII), 2009 NSCA 80.”

At para. 58, the Chief Justice summarizes the applicable principles as follows:
1. The assumption by a provincial superior court of jurisdiction over a claim involving extraterritorial matters, interests, or parties raises the constitutional issue of the extraterritorial reach of one province into the interests of another province.
2. The constitutional consideration is informed in general by the principles of order and fairness; order in the sense of preserving and promoting a rational, secure and predictable legal system, and fairness in the sense of ensuring that jurisdiction is not too readily taken over persons who may have little or no connection to the forum jurisdiction.
3. The constitutional limitation of “in the province” and the constitutional imperative of fairness to a non-resident defendant are respected and satisfied when territorial jurisdiction is exercised only over those proceedings where the forum jurisdiction has a real and substantial connection to the subject matter of the proceeding or to the defendant.
4. The “subject matter of the proceeding” refers to the factual context of the primary elements of the event in question. In a tort case these would include, for example, the location of the negligent event and the location in which the damages were suffered and perhaps treated.
5. A real and substantial connection to a proceeding may exist in more than one jurisdiction. If so, the issue of the relative convenience of proceeding in either jurisdiction will arise for determination.
6. Consideration of fairness to the plaintiff and other considerations of fairness to the defendant(s) (assuming the existence of a real and substantial connection) are relevant only to the consideration of whether one capable forum is more appropriate than another.
[59] It will be evident from this summary that, with respect, I do not consider the Muscutt factors to be appropriate when considering the issue of territorial jurisdiction. It will also be evident that, with respect, I differ with the decision of the Nova Scotia Court of Appeal in Bouch.
Apparently, no one gave the Chief Justice the legal research memo, as the Newfoundland & Labrador court was neither notified of the “new” Van Breda approach, nor did it factor into the Chief Justice’s analysis. This is regrettable. There is an inherent disconnect in the “real and substantial connection” test(s) following Van Breda and Fewer.

In Van Breda, Justice Sharpe retained “fairness” as an “analytical tool” in the jurisdictional analysis:

“Consideration of the fairness of assuming or refusing jurisdiction is a necessary tool in assessing the strengths of the connections between the forum and the plaintiffs’ claim and the defendant. However, fairness is not a free-standing factor capable of trumping weak connections, subject only to the forum of necessity exception.” (Van Breda, at para. 109).

Conversely,Chief Justice Osborne in Fewer relegates “fairness” to the forum non conveniens analysis phase (or as he puts it “convenient jurisdiction”), stating:

[12] On reflection and having reviewed the relevant authorities, I have concluded that territorial jurisdiction is properly determined by an assessment of the connections or links between the facts of the asserted claim and the jurisdiction in question.  In other words, and to use the phrase in the authorities, is there “a real and substantial connection” between the jurisdiction and the substantive matter requiring adjudication or between the jurisdiction and the defendant?  Consideration of other factors such as unfairness arising out of the particular circumstances of the parties and the logistics of any trial is properly confined to the convenient jurisdiction issue.
[32] The above quoted passage [in Hunt v. T&N plc, 1993 CanLII 43 (S.C.C.), [1993] 4 S.C.R. 289. at para. 59] also refers to the assumption of jurisdiction (territorial) and to the discretion not to exercise jurisdiction (convenient).  The authorities make clear that there is a clear analytical difference between these two issues; it is also clear that considerations of fairness – an assessment of the circumstances of the particular parties and of the potential trial – will inform the decision of which of two or more capable jurisdictions should have carriage of the proceeding. Accordingly, I suggest that one cannot take from the above passage that an open-ended assessment of ‘fairness’ is applicable to the determination of territorial jurisdiction. [emphasis added]

Following Van Breda and Fewer, the time is overripe for the Supreme Court of Canada to provide jurisprudential clarity in the conflict of laws area. At a minimum, the Ontario provincial government needs to make passing the CJPTA a priority.

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