The Lawyers Weekly - June 24, 2011

B.C.’s top court has upheld the dismissal for lack of jurisdiction of a personal injury action arising from an accident in Alberta nearly four years ago.

Max Hufton, counsel for the
successful defendants, told The
Lawyers Weekly the decision
“upholds the long tradition of our
courts of refusing to sanction
forum shopping, while simultan-
eously upholding the rule of law
by respecting the right of Can-
adians to determine their own
local political circumstances free
from external encroachment.”
Megan Dembroski, who lives
and operates a business in B.C.,
was allegedly injured in a motor
vehicle accident in Grande Cache,
Alta. on Aug. 7, 2007. She pleaded
that she was a beneficiary under
B.C.’s Health Care Costs Recovery
Act (HCCRA) and that she had
an obligation to claim for services
pursuant to that statute.

Dembroski also claimed that as a result of the defendants’ negligence, she suffered loss in B.C. and that the Supreme Court of that province had jurisdiction over the case under the Court Jurisdiction and Proceedings Transfer Act (CJP TA). A Supreme Court judge ruled the CJPTA applied only to proceedings that are truly business claims and not personal injury matters. He also found there was no real and substantial connection between B.C. and the facts of the case and dismissed the suit entirely.

Now the Court of Appeal— Justice John Hall, with Justices Risa Levine and David Tysoe concurring in his reasons—have agreed with the chambers judge.

Hufton said the ruling makes it clear that the CJPTA “does not offer carte blanche to a plaintiff involved in a car accident to file suit where she lives regardless of where the accident occurred. Nothing in the Act changes the common-law position that residence alone is insufficient to ground jurisdiction.

“The decision preempts the migration of lawsuits which should be brought in Alberta, which has legislation capping damages awards in certain personal injury cases, into British Columbia, where no cap applies,” the Vancouver lawyer added.

Jon Harbut, lead counsel for the
plaintiff, told the national legal
newspaper that “we are actively
seeking leave to appeal the decision
to the Supreme Court of Canada.”
In the meantime, his firm has
already filed similar proceedings
in the Alberta Court of Queen’s
Bench, Harbut added.

In his reasons for upholding
the chambers judge and dismiss-
ing the appeal, Justice Hall
reviewed the facts of the case and
concluded that “is what I would
term an ordinary personal injury
action arising out of a motor
vehicle accident. The plaintiff
and certain potential witnesses
reside here, but the defendant
respondents and other potential
witnesses reside outside the prov-
ince. The trend of previous
authority in this Court and in the
Supreme Court of British Colum-
bia appears to support the thesis
that the mere residence of a
plaintiff in this jurisdiction will
not found jurisdiction in a British
Columbia court.”
He noted that because the
plaintiff carries on business in
B.C. and was in Alberta to offer
similar services in that province,
it was argued that jurisdiction
could be sustained under s. 10(h)
of the CJPTA.

“
The decision ‘upholds
the long tradition of
our courts of refusing
to sanction forum
shopping…’
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