11.25: Real and substantial connection

Case Summary

The Applicant, Geophysical Service Incorporated (GSI), appealed a Master’s Order dismissing their Claim against the Canada-Newfoundland and Labrador Offshore Petroleum Board (CNLOPB). The Master held that the Alberta court lacked jurisdiction simplicter to hear the matter and, further, the Alberta Courts ought to decline to hear the matter on the basis of forum non conveniens. GSI argued that the factors listed under Rule 11.25(3) are presumptive connecting factors that a Court ought to consider when assessing a real and substantial connection to the jurisdiction. CNLOPB disagreed arguing that, under Rule 11.25(3) the former “necessary and proper party” was no longer a presumptive connecting factor in light of the Supreme Court of Canada’s decision in Club Resorts v Van Breda, 2012 SCC 17 (CanLII), 2012 SCC 17 (Van Breda). CNLOPB argued that, even if Alberta has jurisdiction, the Action should be stayed pending the decision in a parallel Action in Newfoundland.

Justice MacLeod noted that Van Breda made it clear that service ex juris rules should be used as guidance in developing private international law, but they are not determinative factors on their own. His Lordship reviewed conflicting case law on whether or not the “necessary and proper party” factor was still a presumptive connecting factor for the purpose of Rule 11.25(3) in light of Van Breda. Justice MacLeod held that the “necessary and proper party” can still be a presumptive connecting factor in the context of an Action connected to Alberta where the other principal players are in Alberta. His Lordship noted that considerations may vary if the Action relates to matters outside of Canada. His Lordship granted the Appeal and declined to stay the Action.

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