AYLES v ARSENAULT, 2011 ABQB 493
11.25: Real and substantial connection
11.31: Setting aside service
The Defendant sought an Order staying or dismissing the Action on the basis that there was no real and substantial connection between the Action and Alberta and, in the alternative, that Alberta is forum non conveniens and that Newfoundland was the appropriate forum.
Rule 11.25 provides for the Service Ex Juris procedure. Conversely, Rule 11.31 allows an out-of-province Defendant to bring an Application to set aside service. Rule 11.25(3) enumerates a number of situations in which a real and substantial connection to Alberta is presumed to exist. “[W]here no connecting factors from Rule 11.25(3) are present, the burden lies on the Plaintiff”. The Court noted that regardless of whether one of the circumstances provided in Rule 11.25(3) exists, the Court cannot take jurisdiction over an out-of-province Defendant unless the test for real and substantial connection is met in accordance with the two-stage test that was set out by the Court in Royal & Sun Alliance Insurance Co of Canada v Wainoco Oil & Gas Co, 2004 ABQB 643. The onus of proving a real and substantial connection rests with the Plaintiff.
After considering the principles set out in Royal & Sun Alliance Insurance Co of Canada v Wainoco Oil & Gas Co, and other leading decisions including Muscutt v Courcelles (2002), 60 OR (3d) 20 and Van Breda v Village Resorts Ltd, 2010 ONCA 84, the Court held that there was no real and substantial connection between the Action and Alberta, and accordingly the Alberta Courts lacked jurisdiction over the matter.View CanLII Details