NEXEN ENERGY ULC v ITP SA, 2020 ABQB 83
6.10: Electronic hearing
11.25: Real and substantial connection
11.31: Setting aside service
The Applicant, a Swiss company, applied to set aside an Order for service ex juris on the basis that the Plaintiff failed to comply with its disclosure obligations in obtaining the ex parte service ex juris Order. It also sought to strike, dismiss, or stay the Action against it, arguing that the Court either did not have jurisdiction to hear the Action against it, or alternatively that it should decline to exercise its jurisdiction to do so.
Prior to entering into any contracts, the Applicant had provided the Plaintiff with a “Proposal” which contained a forum selection clause in favour of the Courts of Lausanne, Switzerland. The parties had also entered into four Agreements, one of which contained a governing law and forum selection clause in favour of Alberta.
Nixon J. first considered the Plaintiff’s disclosure obligations. In obtaining the Order for service ex juris, the Plaintiff had only referenced one of the several agreements (the “Agreements”) between the parties, and not the Proposal or others of the Agreements. Nixon J. held that it had not acted deceitfully or in a “very misleading” manner; rather, it had taken the position that its claim was solely based on one of the Agreements, and disclosed that Agreement in whole to the Court. As such, His Lordship did not set aside the Order on the basis of non-disclosure.
Next Nixon J. considered whether the Court had jurisdiction to hear the Action. His Lordship reviewed Rule 11.25(2), which sets out the requirements for a service ex juris Order, and noted that commencement documents may be served outside of Canada if there is a real and substantial connection to Alberta, and the Court permits such service on an Application supported by Affidavit evidence. The parties agreed that the establishment of a “good arguable case” from the old Rules also remains a requirement under Rule 11.25(2), even though it is not explicitly referenced in the Rule. His Lordship also noted that the Court is entitled to refer to the commencement document and any materials filed in support of an Application to set aside service pursuant to Rule 11.31(1) in assessing whether the test for service ex juris has been met.
Nixon J. found that the Application and Affidavit evidence submitted by the Plaintiffs disclosed a “good arguable case”. His Lordship explained that a “good arguable case” is established where the Plaintiff has put forward “some evidence that the case it proposed to bring has a foundation in fact”. The evidence “need not be based on first-hand information or require a positive factual conclusion”. His Lordship further held that a real and substantial connection to Alberta had been established. In doing so, Nixon J. reviewed the list of “presumptive connecting factors” set out by the Supreme Court in Van Breda v Village Resorts Ltd, 2012 SCC 17, as well as the factors listed in Rule 11.25(3). His Lordship found that the forum selection clause in favour of Alberta was “broad, unambiguous, and unqualified”, and that the Proposal containing the clause in favour of Lausanne was not applicable.
Finally, Nixon J. considered whether the Court should not exercise its jurisdiction in spite of the forum selection clause naming Alberta, on the basis that it is forum non conveniens. In doing so, His Lordship noted that forum selection clauses are encouraged because they create certainty in cross-border transactions, and should only be disregarded where the Applicant shows “strong cause” that it should not be complied with. Nixon J. found that “strong cause” had not been established - in particular because the majority of witnesses were situated in Alberta, and those who were located in Switzerland could provide testimony electronically pursuant to Rule 6.10.View CanLII Details