5.27: Continuing duty to disclose
6.11: Evidence at application hearings
11.25: Real and substantial connection

Case Summary

The Applicants sought an Order dismissing the Action against them on the grounds that Alberta did not have jurisdiction over the dispute or, in the alternative, an Order staying the Action in favour of an Action in Colorado.

A preliminary issue arose as to whether Eidsvik J. ought to consider a late filed Affidavit by one of the Respondents. The Respondents argued that the evidence clarified earlier evidence given in the Affiant’s Cross-Examination, and that they had a duty to clarify as soon as it was discovered that clarification was required.

The Applicants conceded that an Affiant has a duty to correct an answer that is misleading or incorrect and that the Court has the discretion to accept this evidence pursuant to Rules 5.27 and 6.11(1)(e). However, they argued that this new evidence did not correct anything, but simply supplemented missing information which should not be received. Eidsvik J. disagreed with the Applicants, stating that the evidence did help to clarify, and allowed the evidence.

With respect to whether Alberta had jurisdiction to hear the matter, the Respondents argued that there were four presumptive factors of real and substantial connection pursuant to Rule 11.25, those being:

1.      A contract formed in Alberta;

2.      An alleged Tort committed in Alberta;

3.      That the law of Alberta applies to part of the dispute; and

4.      A permanent injunction was being sought.

The Applicants argued that, although some presumptive factors might exist, they were weak or tenuous, and further, the parties agreed to Colorado in a jurisdiction clause in an earlier Letter of Intent. The Court dismissed this argument, stating that Alberta had jurisdiction over the dispute. The Court noted that the Supreme Court of Canada had set out the parameters for when a court in Canada should assume jurisdiction, and the Rules of Court (Rule 11.25 specifically) also set out the presumptive connective factors. The Supreme Court noted that any presumptive connecting factor will do, as long as the link is not weak or tenuous.

The Court then went on to discuss choice of forum. The Court stated that both Alberta and Colorado had jurisdiction to deal with the dispute. The Court noted that there were multiple daily direct flights between Alberta and Colorado, and that distance is much less of a factor than it would have been in times gone by. The Court examined all the factors which favoured one forum over the other, and vice versa. There were several factors in favour of each; however, for the most part both forums appeared to be of approximately equal convenience. The Court cited Dyck v Questrade, Inc, 2012 ABCA 187 for the proposition that the Applicants had the burden of showing that another other forum is “clearly more appropriate”.

Eidsvik J. found that the Applicants had not met this burden, and dismissed the Application, awarding costs to the Respondents.

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