Plaintiff’s Attempt to Transfer Action on Forum Non Conveniens Grounds Fails

In Hughes v. Porter, 2011 NLTD 106 (CanLII), the plaintiff made a novel, albeit unsuccessful, jurisdictional argument to transfer an action to Nova Scotia, nearly 10 years after commencing his action in Newfoundland.

The Plaintiff brought an action in Newfoundland and Labrador seeking damages arising from a motor vehicle accident. Ten years after the accident he applied to have the proceeding transferred to Nova Scotia where he had moved after commencing the action and where he claimed a trial would be more convenient.

The plaintiff argued that since his medical care and residency was now in Nova Scotia, such that the Nova Scotia Supreme Court had territorial jurisdiction. While conceding that the Newfoundland and Labrador Supreme Court also had territorial jurisdiction, he submitted that Nova Scotia was a more convenient (forum conveniens) because most of his medical witnesses were located in Nova Scotia and his poor health restricted his ability to travel. He argued that the Supreme Court of Newfoundland and Labrador had inherent jurisdiction to order the transfer and that it should be exercised to transfer this proceeding to Nova Scotia.

Goodridge, J. of the Supreme Court of Newfoundland and Labrador (Trial Division) dismissed the plaintiff’s application.

The court observed that it lacked jurisdiction to order another provincial superior court outside the province to assume jurisdiction over an action commenced in the original province. Additionally, the court held that the plaintiff failed to establish that Nova Scotia had territorial jurisdiction over the subject-matter of the dispute and failed to demonstrate that Nova Scotia was forum conveniens.

Goodridge, J. held:

[15]         This application is different from the typical jurisdictional dispute. Usually it is a Defendant who applies, immediately after an action begins, to challenge a Plaintiff’s choice of forum because of convenience or jurisdictional circumstances that existed at the time the action commences. Here the Plaintiff is challenging his own choice, ten years after the accident, based on a change of his personal circumstances that occurred after he commenced the action. For policy reasons, relating to concerns about fairness, cost and efficiency of court process, I would be reluctant to order such a transfer so late in the proceedings based on a change of circumstances created by the Plaintiff. The costs and complexities involved with a law suit, the management of witnesses and evidence generally make it obvious that it can not be treated as a portable commodity when a party decides to move house.

[16]         However, this policy basis is not the foundation of my decision. Rather, I find that the Plaintiff has failed to establish that this court has authority to order the transfer, has failed to establish that Nova Scotia has territorial jurisdiction over this matter, and has failed to show that Nova Scotia is the most convenient forum, even if it had territorial jurisdiction, to hear the trial.

The plaintiff relied on the obiter comments in Bartz (Guardian ad litem of) v. Canadian Baptist Bible College Inc., 2009 NSSC 115 (CanLII), 2009 NSSC 115,  interpreting the Court Jurisdiction and Proceedings Transfer Act, S.N.S 2003 (2nd Sess.), c.2 at para. 88 where Warner, J. notes:

… I have authority to transfer this proceeding, or part of it, if Manitoba has subject matter competence [Act, s.15(1)(a)], and is a more appropriate forum for the hearing of the liability issue [Act, s.15(1)(b)], and if I am satisfied that the differences between the Act and Manitoba’s Queen’s Bench Rules would not impair the effectiveness of the proceeding or inhibit the fair and proper conduct of the proceeding [Act, s.14(5)].

Goodridge, J. distinguished the Bartz decision, stating:

“Nova Scotia and Manitoba had territorial jurisdiction over the cause and there was legislation in Nova Scotia governing the transfer of a proceeding to a court outside the Province.

[20]         Most all of the comments of Warner, J. in Bartz relating to transfer between provinces dealt to his interpretation of the Nova Scotia legislation. There is no similar legislation in Newfoundland and Labrador. And even if similar legislation or common law authority existed, the most I could do is order that a request be made. The Nova Scotia legislation does not permit a unilateral order that the other province take over a matter. The legislation permits only that a request be made and the other superior court then has the option to refuse to accept the transfer for any reason that it considers just.

With respect to territorial competence, the court held that the only link between the plaintiff and Nova Scotia was his residency. By contrast, all the relevant events and factual elements surrounding liability and the plaintiff’s treatment arose in Newfoundland.

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