TURNER v BELL MOBILITY INC, 2014 ABQB 36
3.30: Defendant’s options
11.25: Real and substantial connection
11.31: Setting aside service
The representative Plaintiff commenced a proposed Class Action against several communications and wireless companies in respect of overcharging for roaming fees in various provinces. The Action had not yet been certified, but two of the Defendants, Saskatchewan Telecommunications and Saskatchewan Telecommunications Holding Corporation (collectively “SaskTel”), applied to dismiss the Action on the basis that the Courts of Alberta lacked jurisdiction over SaskTel with respect to the claims against it. Justice Lee considered whether SaskTel’s Application to dismiss was made under the wrong Rules and it was only entitled to an invalidation of service, and whether the Courts of Alberta had jurisdiction over the claim.
SaskTel was served with the Plaintiff’s Statement of Claim at its head office in Saskatchewan. The Plaintiff argued that SaskTel could only seek an invalidation of service, not a dismissal of the Action under the Rules. Justice Lee noted that SaskTel was not restricted to seeking an Order to set aside service of the Statement of Claim under Rule 11.31. Justice Lee concluded that the Plaintiff’s argument was without merit: SaskTel had made a clear Application challenging the Court’s jurisdiction, and had cited all of the applicable Rules for the specific relief that it sought.
With respect to jurisdiction, SaskTel argued that, although it was extra-provincially registered in Alberta, it had not carried on business in Alberta since early 2006; therefore the Alberta Courts could not be seized of the Action. Justice Lee restated Rule 11.25(3), noting the consistency of the underlying analytical framework for a real and substantial connection and the provisions of the Alberta Rules. With respect to the first branch of the test under Rule 11.25, His Lordship rejected the use of damages as a presumptive connecting factor as determinative of whether the Court had jurisdiction. His Lordship held that the Alberta Court did have territorial competence and jurisdiction in the case on the basis that the Claim involved over 4,000 resident Albertans who may have been unlawfully charged system access fees by SaskTel.
With respect to the second branch of the test, Justice Lee considered the SaskTel contract which contained a choice of law clause which, SaskTel argued, presumptively removed any connecting factor to Alberta. The Plaintiff countered that the choice of law clause should not be conflated with a choice of forum clause which mandated proceedings in a particular jurisdiction. The Justice observed that leading Supreme Court case law suggested that Courts would assume jurisdiction over every aspect of the case for fairness and efficiency. Justice Lee applied this principled approach and concluded that, due to a variety of presumptive connecting factors, the Alberta Court had territorial competence and was capable of applying Saskatchewan law in the instant case.
With respect to the third element, Justice Lee agreed that the Plaintiff had misstated the test. Justice Lee analysed whether the place of sale was material, and how modern business activities affected the notion of place of sale. Justice Lee determined that SaskTel was likely “carrying on business” in Alberta, and agreed with the Plaintiff that residency status was of “minimal consequence to the question of jurisdiction” in the case at bar.
With respect to the final branch under Rule 11.25, Justice Lee emphasized the clarity of Rule 11.25(3)(i): that the consideration of whether a Defendant is a “necessary and proper party” is related to ascertaining the real and substantial connection to a jurisdiction. Justice Lee confirmed that this factor could be examined as a presumptive connecting factor for the purpose of a jurisdictional analysis. His Lordship stated that, though the proposed Class Action did not automatically provide the Court with jurisdiction, the “specter of commonality” of the claims against SaskTel and the other defendants made SaskTel a necessary and proper party to the Action.
In the result, Justice Lee found that the Courts in Alberta had territorial competence or jurisdiction over SaskTel. Briefly considering whether the Court should decline to exercise its jurisdiction, Justice Lee noted that the Defendant had not raised the issue of forum non conveniens and had not argued that the Statement of Claim constituted an abuse of process pursuant to Rule 3.68(2)(d). Justice Lee left open whether SaskTel could utilize that argument in the future. The Application to dismiss the Action as against SaskTel was denied.View CanLII Details