BANSAL v FERRARA PAN CANDY CO INC, 2014 ABQB 384
11.25: Real and substantial connection
11.31: Setting aside service
The Defendants brought an Application requesting that the Court order that it did not have jurisdiction to deal with the Action. Alternatively, the Defendants argued that, even if the Court had jurisdiction, Alberta was not the most appropriate forum.
The Plaintiffs took the position that because one of the Defendants had taken additional steps in Alberta, including having the original lawyer removed, the Defendants had attorned to Alberta. The Court noted that, although Rule 11.31 stated what is not required to constitute an attornment to the jurisdiction, it did not state what actions constitute attornment. The law firm representing the Plaintiffs had previously acted for the Defendants and potentially had confidential information. Thus, the Court held that making an Application to remove the law firm did not mean that the Defendants had attorned to the jurisdiction.
The Court then dealt with whether Alberta had original jurisdiction as a result of a contract. Justice Veit agreed with the Defendants that Rule 11.25(3) provided some guidance as to what constituted a real and substantial connection. The Court (following Club Resorts Ltd v Van Breda, 2012 SCC 17) noted that there were four presumptive connecting factors in contract cases in Alberta:
1. The defendant is resident in Alberta;
2. The defendant carries on business in Alberta;
3. A contract or alleged contract is made, performed or breached in Alberta; and,
4. A tort connected with the contract was committed in Alberta.
Because the Plaintiffs alleged that a contract was made in Alberta, the Court had jurisdiction to hear the matter in Alberta. However, based on the facts the Court stated five reasons why Alberta was not the most appropriate jurisdiction:
1. The corporate Defendant 1163196 Ontario Inc. and the individual Defendant Sarbjit Singh were residents and would have committed the conspiracy in Ontario. Furthermore, Illinois could also have been the original jurisdiction because the Defendants Ferrara Pan Candy Co. Inc. and Salvatore Ferrara II were residents there;
2. Many of the contractual relationships occurred outside of Alberta;
3. Only one of the Plaintiffs was a resident of Alberta. The corporate Plaintiff was not registered in Alberta and its status as an extra-provincial corporation could not be revived;
4. The Statement of Claim demonstrated that a major part of the Plaintiffs’ claim centred on the alleged conspiracy to cause economic harm. None of the conspiracies were committed in Alberta; and
5. The issue of whether the Plaintiffs would lose judicial advantage if they were deprived of an Alberta action was not fully explored at the hearing.
In summary, the Court held that although Alberta had jurisdiction, Ontario and Illinois had greater substantial connection to the dispute than Alberta.View CanLII Details