kirker j

1.3: General authority of the Court to provide remedies
6.14: Appeal from master’s judgment or order
11.25: Real and substantial connection

Case Summary

The parties appealed the Order of the Master who held that Alberta had jurisdiction simpliciter to hear the issues in dispute, but that Saskatchewan was clearly the more appropriate forum for certain of the issues. The Master stayed those claims for which Alberta was forum non conveniens, and allowed the rest to proceed. The Action related to an embankment failure on a railway spur located in Saskatchewan, which was designed and constructed by the Defendants. The consultants on the project had offices and operations in Alberta, but the contractor hired by the Plaintiff was based solely in Saskatchewan.

Justice Kirker reiterated that per Rule 6.14(3) an Appeal from a Master’s Decision is an Appeal on the record, but that additional evidence may be considered if it is relevant and material, and that the standard of review is correctness.

The consultant Defendants had offices in Alberta, their contracts were formed in Alberta, and the contracts contained a forum selection clause granting Alberta Courts non-exclusive jurisdiction to hear disputes related to the contracts. Justice Kirker found that Alberta had jurisdiction over these Defendants. The contractor was a Saskatchewan based company who was retained in and performed its services in Saskatchewan. This Defendants’ contract did not contain a forum selection clause. Justice Kirker found that there was a real and substantial connection between Alberta and the circumstances giving rise to the dispute with this Defendant. Kirker J. found that this Defendant was an integral member of an “interjurisdictional [p]roject team assembled by an Alberta domiciled client for the [p]roject” who could not discharge its obligations without reliance upon and support from other members of the team who were based in Alberta. Justice Kirker held that this interconnectedness with Alberta based contracts created a real and substantial connection under both common law, and as a “necessary or proper party” pursuant to Rule 11.25(3)(i). Justice Kirker thus held that Alberta had jurisdiction over the claims regarding this Defendant.

Justice Kirker found that the material factors informing the forum non conveniens analysis were the balance of convenience and expense for the parties and their witnesses; how a decision declining to exercise jurisdiction may impact the efficient conduct of the litigation; and how a decision declining to exercise jurisdiction may impact the fair conduct of the litigation and parallel proceedings in Saskatchewan. Justice Kirker found that Saskatchewan was a more appropriate forum to hear the dispute, but only if all of the issues were heard there. Justice Kirker thus held that the Master erred by staying some of the claims but not all of them. Justice Kirker also noted that staying all of the claims would prejudice the Plaintiff, who would then face limitations arguments from several of the Defendants. Justice Kirker noted that this prejudice would be avoided if the Saskatchewan Court would accept a transfer of the Action pursuant to the provisions of the Court Jurisdiction and Proceedings Transfer Act, SS 1997, c C-41.1 (the “CJPTA”).

Justice Kirker noted that Rule 1.3(1)(a) provides for the Court to give any relief or remedy described in the Judicature Act, RSA 2000 c J-2 (the “Judicature Act”) including remedies not claimed or sought in an Action. Justice Kirker noted that section 8 of the Judicature Act grants the Court jurisdiction to grant any remedies which will avoid the multiplicity of legal proceedings. Justice Kirker held that Rule 1.3, section 8 of the Judicature Act, and the Court’s inherent jurisdiction to control its own process provided the authority to make a request that the Saskatchewan Court consider whether it will accept a transfer of the Action pursuant to the CJPTA. This authority granted the Court the ability to make an Order which would have the effect of transferring the entire Action and affect the Defendants who did not contest jurisdiction and did not participate in the hearings.

Justice Kirker held that if the Saskatchewan Court accepted a transfer of the Action, then the entirety of the Alberta Action would be stayed, but if the Saskatchewan Court declined to accept a transfer, then all claims in the Action would proceed in the Alberta Court.

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