3.3: Determining the appropriate judicial centre
3.5: Transfer of action

Case Summary

The Plaintiffs appealed a Master’s Decision that ruled that the Plaintiffs’ Action had been commenced in the wrong judicial centre, Calgary, and should be transferred to Fort McMurray.

Justice Feehan confirmed the Master’s finding that that the Rules had undergone significant transformation, and summarized the history of the Rule and the choice of venue proscribed by the Rules. Justice Feehan noted that the test under Rule 3.3 was as stated in 325303 Alberta Ltd v Prime Property Management Ltd, 2011 ABQB 817 (CanLII), confirming the approach from cases which considered the former Rules:

1. A statement of claim must be filed in the judicial centre that is nearest to the residences or places of business of all of the parties to the action (R 3.3(1)(a));

2. If a plaintiff carries on business in more than one location in Alberta, the plaintiff’s place of business for the purposes of the Rule is deemed to be the one closest to the location that is nearest to the location at which the matters in issue arose or were transacted (R 3.3(2));

3. When there is no single judicial centre nearest to the residences or places of business of all the parties to the action, a plaintiff must file in the judicial centre that is closest to the Alberta residence or Alberta place of business of one of the parties, selected by the plaintiff (R 3.3(1)(b)); and

4. The parties may agree on a judicial centre, unless the court otherwise orders (R 3.3(3)).

Justice Feehan found that the determinative considerations were that: the litigation related to the development of land in Fort McMurray; Pacific, while based in Calgary, carried on business in Fort McMurray; the relief sought in the litigation was inextricably connected to the policies, procedures, and governance of Wood Buffalo; and there was a resulting significant connection between Pacific and Fort McMurray.

With respect to transferring an action from one judicial centre to another, Feehan J. considered earlier Rules and jurisprudence which set out different tests. His Lordship concluded that the “appropriate test is the balance of convenience test” rather than a test which gave “a literal or plain meaning to the word “unreasonable””. Following prior leading authority, the factors to consider include: the number of parties or witnesses in each judicial centre; the nature of the issues in the lawsuit; the relationship between the parties in respect of those issues; the parties’ respective financial resources; the stage of proceedings; the convenience of location for pre-trial motions; and the location of relevant assets.

The Plaintiffs argued that the witnesses were located in multiple jurisdictions and that transferring the Action to Fort McMurray would impose expense and hardship on all parties. The Defendant argued that all its employees resided in Fort McMurray, including one which was described as a “pivotal witness”, that the relevant records were located in Fort McMurray, the lands at issue were in Fort McMurray, and all relevant interactions between the parties occurred in Fort McMurray.

Justice Feehan dismissed the Appeal, and held that that the balance of convenience favoured transferring the Action to Fort McMurray.

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